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Cornell Law School Library
Cornell University Library
KF 411.S88 1865

Thin
COMMENTARIES

ON THE

CONFLICT OF LAWS,

FOREIGN AND DOMESTIC,

IN REGARD TO
CONTRACTS, RIGHTS, AND REMEDIES,

AND ESPECIALLY IN REGARD TO

MARRIAGES, DIVORCES, WILLS, SUCCESSIONS, AND JUDGMENTS.

 
   

BY

JOSEPH STORY, LL.D.,

ONE OF THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES, AND
DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY.

J
& “ TIl régnera donc toujours entre les nations une contrariété perpétuelle de loix ; peutétre régnera-t-elle
‘perpétuellement entre nous sur bien des objets. Deld la nécessité de s’instruire des régles, et des princi-
pes, qui peuvent nous conduire dans la décision des questions, que cette variété peut faire naitre.”” —
WBouu.enois, Traité de la Personalité, &c., des Loix, Préface.
SIXTH EDITION, CAREFULLY REVISED AND CONSIDERABLY ENLARGED.

BY

ISAAC F. REDFIELD, LL.D..

BOSTON:
LITTLE, BROWN, AND COMPANY.
1865.
“B17335

Entered according to Act of Congress, in the year 1857, by
WILLIAM W. STORY,
in the Clerk’s Office of the District Court of the District of Massachusetts.

Entered according to Act of Congress, in the year 1865, by
; WILLIAM W. STORY,
in the Clerk’s Office of the District Court of the District of Massachusetts.

KE |
41

588
1265

C.)

UNIVERSITY PRESS:
WeicuH, BIGELOW, AND ComPANY,
CAMBRIDGE.
 

ADVERTISEMENT / .

TO THE SIXTH EDITION.

In preparing this edition, thé late English and American cases
have been generally inserted ; and the advance, or qualification of
the law, upon any point, since the decease of the author, carefully
noted; and it has been the purpose of the editor to give the
present state of the English and American law, upon all the.lead-
ing questions discussed in these Commentaries, in as brief and
succinct a form as possible. The new matter thus added amounts
to about one hundred sections, and more than half that number of
pages ; but the whole volume is so printed as to‘occupy less space
than the former editions, without any essential change of type.
It is hoped the edition will be acceptable to the Profession. The
present additions are thus indicated : [*]-

LF.R.
Boston, May 1, 1865.
ADVERTISEMENT

TO THE SECOND EDITION.

Tue former edition of this work beiag exhausted, I have availed
myself, in the preparation of the present edition, of the opportu-
nity of revising, correcting, and amending the text and notes
throughout, and of adding such new materials as have been
furnished by the recent authorities at the common law, as well
as by more diligent researches into foreign jurisprudence. For
the opinions of some foreign jurists, I was obliged, in the former
edition, (as the reader was informed in the notes,) to rely upon
the citations from their works, which I found in other authors,
not having access to the originals. With one or two,unimportant
exceptions, the originals of these foreign jurists are now in my
possession, and have been consulted by me; so that I have been
enabled to correct some errors in those citations, and also to
furnish more complete and perfect statements of their respective
opinions. Perhaps it may not be useless here to add, that in
every case, where any authority for any position is cited at the
bottom of the page, the reader may rest assured, that the very
citation has been perused and diligently compared by me with the
original.

As the works of foreign jurists, especially of those who lived
before the middle of the eighteenth century, are rarely to be
found in American Libraries, either public or private, and are
becoming daily more scarce and difficult to be purchased abroad,

I have made my extracts therefrom more copious, and often cited
a*
Eat ADVERTISEMENT.

the words of the original, so that the reader might be spared the
necessity of further researches into the originals, and also might
possess the means of ascertaining the accuracy of the expositions
in the text.

These explanations may account for the fact, that the work,
unexpectedly to myself, has swelled to double its former size; a
fact, which (as the pages and sections of the former edition are
still preserved) might not readily occur to those, who are not
accustomed to examine the signatures at the bottom of the differ-
ent sheets.

Since the publication of the former edition, Mr. Burge has
published his very able and comprehensive Commentaries on Co-
lonial and Foreign Law, mainly, as applicable to the colonies of
Great Britain, in which he has devoted a number of chapters to
the consideration of many of the topics embraced in the present
Work. The plan of his Work, however, essentially differs from
my own in its leading objects. It exhibits great learning and
research ; and as its merits are not as yet generally known to the
profession on this side of the Atlantic, I have made many refer-
ences to it, and occasional quotations from it, with the view of
enabling the profession to obtain many more illustrations of the
doctrines, than my own brief text would suggest, and also fully
to appreciate his learned labors. Monsieur Feelix, also, the ac-
complished editor of the Revue Htrangére et Francaise, (a highly
useful and meritorious periodical, published at Paris,) has, in the
volume of the year 1840, discussed, in a series of articles, many
topics of the Conflict of Laws, and given the opinions of the lead-
ing foreign jurists on the subject. I have gladly referred to his
very interesting and lucid expositions, that my own countrymen
may more readily understand their great value and importance. .

It is not probable, that, in the course of my own life, this work
will undergo any essential change from its present form. Other
avocations and other pressing duties, judicial as well as profes-
sorial, will necessarily occupy all the time and attention which I
ADVERTISEMENT. vil

may hereafter be permitted to command for any juridical pur-
suits. I must, therefore, dismiss these Commentaries to the
indulgent consideration of the reader, not as a work, which has
surveyed the whole subject, or exhausted the materials; but as
an essay towards opening the leading doctrines and inquiries be-
longing to private international jurisprudence, which the genius,
and learning, and labors of more gifted minds may hereafter
mould, and polish, and expand into an enduring system of public
law. My own wishes will be fully satisfied, if (to use the language
of my Lord Coke, in the close of his first Institute) anything shall
be found herein, which “may either open some windows of the
law, to let in more light to the student, by diligent search to see
the secrets of the law, or to move him to doubt, and withal to
enable him to inquire, and learn of the sages, what the law, to-
gether with the true reason thereof, in these cases is.”

JOSEPH STORY.

JANUARY, 1841.
TO THE
HON. JAMES KENT, LL.D.

Sir,

Ir affords me very sincere satisfaction to have the opportunity
of dedicating this Work to you. It belongs to a branch of inter-
national jurisprudence, which has been long familiar to your
studies, and in which you have the honor of having been the
guide and instructor of the American youth. I can trace back
to your early labors in expounding the civil and the foreign law
the motive and encouragement of my own far more limited re-
searches. I wish the present work to be considered as a tribute
of respect to a distinguished Master from his grateful pupil.

It is now about thirty-six years since you began your judicial
career on the Bench of the Supreme Court of the State of New
York. In the intervening period between that time and the
present, you have successively occupied the offices of Chief Jus-
tice and of Chancellor of the same State. I speak but the com-
mon voice of the Profession and the public, when I say, that in
each of these stations you have brought. to its duties a maturity
of judgment, a depth of learning, a fidelity of purpose, and an
enthusiasm for justice, which have laid the solid foundations of an
imperishable fame. In the full vigor of your intellectual powers,
you left the Bench only to engage in a new task, which of itself
seemed to demand by its extent and magnitude a whole life of
strenuous diligence. That task has been accomplished. The
“ Commentaries on American Law” ‘have already acquired the
x | DEDICATION.

reputation of a juridical Classic, and -have placed their author in
the first rank of the benefactors of the Profession. You have
done for America, what Mr. Justice Blackstone in his invaluable
‘Commentaries has done for England. You have embodied the
principles of our law in pages as attractive by the persuasive
elegance of their style, as they are instructive by the fulness and
accuracy of their learning. ;

You have earned the fairest title to the repose, which you now
seek, and which at last seems within your reach. It is, in the
noblest sense, Otium cum dignitate. May you live many years to
enjoy it! The consciousness of a life, like yours, in which have
been blended at every step public spirit and- private virtue, the
affections, which cheer, and the taste, which adorns the domestic
circle, cannot but make the recollections of the past, sweet, and
the hopes of the future, animating.

I am, with the highest respect,
Your obliged friend,

JOSEPH STORY.

Cambridge, Massachusetts,
January 1, 1834.
PREFACE.

I now submit to the indulgent consideration of the Profession
and the public another portion of the labors appertaining to the
Dane Professorship of Law in Harvard University. The subject
is one of great importance and interest; and from the increasing
intercourse between foreign States, as well as between the differ-
ent States of the American Union, it is daily brought home more
and more to the ordinary business and pursuits of human life.
The difficulty of treating such a subject in a manner suited to its
importance and interest can scarcely. be exaggerated. The mate-
rials are loose and scattered, and are to be gathered from many
sources, not only uninviting, but absolutely repulsive, to the mere
Student of the Common Law. There exists no treatise upon it
in the English language ; and not the slightest effort has been
made, except by Mr. Chancellor Kent, to arrange in any general
order even the more familiar maxims of the Common Law in
regard to.it. Until a comparatively recent period, neither the
English Lawyers, nor the English J udges seem to have had their
attention drawn towards it, as a great branch of international
jurisprudence, which they were required to administer. And, as
far as their researches appear as yet to have gone, they are less
profound and satisfactory, than their admirable expositions of
municipal law.

The subject has been discussed with much more fulness, learn-
ing, and ability by the foreign jurists of continental Europe. But
even among them there exists no systematical Treatise embrac-
ing all the general topics. For the most part, they have dis-
xii PREFACE.

cussed it only with reference to some few branches of jurispru-
dence, peculiar to the civil law, or to the customary law (almost
infinitely varied) of the neighboring States of Europe, or the dif-
ferent Provinces of the same Empire. And it must be confessed,
that their writings are often of so controversial a character, and
abound with so many nice distinctions, (not very intelligible to
jurists of the school of the Common Law,) and with so many the-
ories of doubtful utility, that it is not always easy to extract from
them such “principles, as may afford safe guides to the judgment,
Rodenburg, Boullenois, Bouhier, and Froland have written upon
it with the most clearness, comprehensiveness, and acuteness,
But they rather stimulate, than satisfy inquiry ; and they are far
more elaborate in detecting the errors of others, than in widening
and deepening the foundations of the practical doctrines of inter-
national jurisprudence. I am not aware, that the works of these,
eminent jurists have been cited at the English Bar; and I should
draw the conclusion, that they are in a great measure, if not alto-
gether, unknown to the studies of Westminster Hall. How it
should happen, that, in this age, English Lawyers should be so
utterly indifferent to all foreign jurisprudence, it is not easy to
conceive. Many occasions are constantly occurring, in which they
would derive essential assistance from it, to illustrate the ques-
tions, which are brought into contestation in all their courts.

In consulting the foreign jurists, I have felt great embarrass-
ment, as well from my own imperfect knowledge of the jurispru-
dence, which they profess to discuss, as from the remote analogies,
which it sometimes bears to the rights, titles, and remedies recog-
nized in the Common Law. To give their opinions at large upon
many topics would fill volumes; to omit all statements whatever
of their opinions would be to withhold from the reader many most
important lights, to guide his own studies, and instruct his own”
judgment. I have adopted an intermediate course; and have laid
before the reader such portions of the opinions and reasonings of
foreign jurists, as seemed to me most useful to enable him to un
PREFACE. xiii

derstand their doctrines and principles, and to assist him with the
means of making more ample researches, if his leisure or his curi-
osity should invite him to the pursuit. Humble as this task may
appear to many minds, it has been attended with a labor truly
discouraging and exhausting. I dare ndt even now indulge the
belief, that my success has been at all proportionate to my wishes
-or my efforts. I feel, however, cheered by the reflection (is it a
vain illusion?) that other minds, of more ability, leisure, and
learning, may be excited to explore the paths, which I have ven-
tured only to point out. I beg, in conclusion, to address to the
candor of the Profession my own apology in the language of Stry-
kius : —“ Crescit disputatio nostra sub manibus; unum enim si
absolveris jus, plura se offerunt consideranda. At nos temporis,
quod -nimis breve nobis fit, rationem habentes, accuratius illa
inquirere haud possumus. Hine sufficerit, in presens sparsisse
quedam saltem adhuc jura, quidque de iis statuamus, vel obiter
dixisse.” +
JOSEPH STORY.

Cambridge, Massachusetts,
January 1, 1834.

1 Strykii, Disputatio 1, ch. 2, § 92, Tom. ii. p. 24.
CONTENTS.

 

Page

List or AutHors CITED . ‘ - 3 ‘i 7 . Xvili—xix

Inpex To Cases Cited. ‘ ‘ < a é XXi-XXxVi
CHAPTER I.

Section

Introductory Remarks . ‘ ; : ; 7 : 4 1-16

CHAPTER II.

General Maxims of International Jurisprudence. . - 17-38 &

CHAPTER IIT.

National Domicil . ‘ ‘i ‘ r ‘ ‘ ‘ » 89-49 ¢

CHAPTER IV.
Capacity of Persons é 4 ‘ ‘ : »  «  . 50-106

CHAPTER V.
Marriage . : é ‘ ‘ . - z 3 107-124 6

CHAPTER VI.
Marriages — Incidents to 4 . 7 . - : + 125-199

CHAPTER VII.
Foreign Divorces . ; : ‘ : ‘ : is 200-230 d

CHAPTER VIII.
Foreign Contracts . ‘ : 3 : é : ‘ 231-373 h
xvi
Personal Property .

Real Property 7

Wills and Testaments

CONTENTS.

CHAPTER IX.

CHAPTER X.

° - .

CHAPTER XI.

*

CHAPTER XII.

Succession and Distribution

CHAPTER XIII.

Foreign Guardianships and Administrations

CHAPTER XIV.

Jurisdiction and Remedies

Foreign Judgments .

CHAPTER XV.

CHAPTER XVI.

Penal Laws and Offences

Evidence and Proofs

CHAPTER XVII.

Section
374-423 h

424-463 a
464-479 0
480=491d_

492-529 m
| 580-588
584-618 &
619 =628 a

. 629-645
LIST OF AUTHORS CITED..

Tae following list of some of the more important Authors, whose works have
been cited, may assist the student in his researches.

D’Aqguesseau, Henry Francis, Chancellor of France, born at Limoges, 1668,
and died 1751. His works are collected and published in 13 vols. 4to.

ALEXANDER AB ALEXANDRO, a Neapolitan lawyer, born 1461, and died at
Rome about the age of 62.

-D’ARGENTRE, BERTRAND, President of the Presidial of Rennes, born in 1519,
and died in 1590. His works are entitled “ Commentarii in Patrias Brito-
num Leges, seu Consuetudines generales Ducatus Britanniz.”

Batpvus, UBALpvs, born about 1324, died 1400. His works are comprised in 4
vols. folio.

BaRTOLO, or BaRTHOLDS, born at Sasse Ferrato, in the March of Ancona, 1313,
and died in his 46th year. He was called “the star and luminary of law-
yers, the master of truth, the lantern of equity, the guide of the blind,” &c.
His works were printed at Venice, 1499, in 4 vols. fol., according to Camus,
in 1599, in 10 or 11 vols. fol., according to Watt.

Bovuier, J., President of the Parliament of Dijon, born at that place, 1673, and
died 1746. His works, relating to the present subject, are published in two
vols. fol., and entitled, “ Les Coutumes du Duché de Bourgogne avec les
Observations du Président Bouhier.”

_BouLLENOIS, Louis, advocate in the Parliament of Paris, born at Paris, 1680,
and died 1762. There are two works by him, on the present subject:
“Traité et de la Personalité et de la Réalité des Lois, Coutumes, Statuts,
par forme d’Observations,” in two vols. 4to, and “ Dissertations sur des
Questions, qui naissent de la Contrariété des Loix et des Coutumes,” 4to.
This last was published first, and is the original outline of the larger work,
which afterwards appeared.

BRETONNIER, BARTHOLEMEW JOSEPH, advocate of the Parliament of Paris,
born at Montrotier, near Lyons, 1656, and died 1727. He is the author of a
work in 2 vols. 12mo, entitled “ Recueil des principales Questions de Droit
qui se jugent diversement dans les differens Tribunaux du Royaume, avec
des Réflexions pour concilier la Diversité de la Jurisprudence.” He also
edited the works of Henrys.

Bukcer, WILLIAM, Commentaries on Colonial and Foreign Laws generally and
in their conflict with each other. 4 vols. 8vo. London, 1838.

Bureunpus, Bureunpivs, or BourGoicne, NicoLavs, jurisconsult, born at
Enghien in Hainault, 1586. He is the author of a work entitled “ Tractatus
Controversiarum ad Consuetudinem Flandriz.”

b*
XxVUL LIST OF AUTHORS .CITED.

BYNKERSHOEK, CoRNELIUS VAN, born at Middlebourg, 1673, and died 1737.
His works are well known.

Casarecis, JoserH LAURENTIUS DE, born at Genoa, 1670, and died 1737,
His works are entitled, “ Discursus legales de Commercio,” and are published
in 2, 3, and 4 vols. folio.

Curistinavs, Pautus, born at Malines, 1533, and died 1638. His works are,
“ Practicaram Questionum Rerumque in Supremis Belgarum Curiis actarum
et observationum Decisiones”; and “ Commentarii in Leges Municipales
Mechlinienses.”

Cocuin, Henry, advocate in Parliament, born at Paris, 1687, and died 1747.
His works are collected in 6 vols. 4to.

Coquitix, Gut, advocate of the Parliament of Paris, born at Decise in Niver-
nois, 1523, and died 1603. There is a work by him, “ Des Coutumes des
Nivernois.”

Cusas, JAMEs, born at Thoulouse, 1520, and died 1590. His voluminous works
need not be particularly mentioned. ;

Denisart, J. B., jurisconsult, born 1712, and died 1765. He published “ Col-
lections de Décisions nouvelles relatives & la Jurisprudence.”

Domart, Joun, born at Clermont in Auvergne, 1625, and died 1696. His Civil

‘Law in its natural order is well known through the translation of Dr,
Strahan.

Dumovuiy, (in Latin Moumvzus,) Caarzes, born 1500, and died 1560,
What he has written upon the present subject is to be found in his Com-
mentary on the first book of the Code, verb, Conclusiones de Statutis, in his
53d Consilium, and in his notes on Alexander, Decius, and Chasseneuz.

Duranton, A., Professor of Law at Paris. His works are, “ Cours de Droit
Francais, suivant le Code Civil,” in 20 vols. 8vo.

Emericon, BanrazaARD Marie, advocate of the Parliament of Aix, born about
1725, and died 1784. His “ Traité des Assurances,” 2 vols. 4to, is referred
to in the present Commentaries.

Erskine, Joun, Professor of Law at Edinburgh. His principal work is entitled
“ Institutes of the Laws of Scotland.”

Evrrnarp, Nicuoxas, born in the island of Walcheren, 1462, and died 1532
His works are “Topica Juris, sive Loci Argumentorum Legales”; and
“ Consilia, sive Responsa Juris.”

Fa rx, M., Editor of the “ Review Etrangére et Francaise,” a learned periodical
publislied at Paris, beginning in 1833 and still (1840) continued.

Froianp, Lours, advocate of the Parliament of Rouen, died 1764. His works
relating to the present subject, in two 4to vols. are entitled, “ Mémoire con-
cernant la Nature et la Qualité des Statuts.”

Ga1LL, ANDREW, born at Cologne, 1525, and died 1587. He was called the
Papinian of Germany.

Grotius, Hueco, born at Delft, 1583, and died 1645. His works are well
known.

Hurnecorus, Jouannes Gorter, Professor of Philosophy and Law at Halle,
born at Eisenburg, 1681, and died 1741. His works need not be particylarly
mentioned.
LIST OF AUTHORS CITED. xix

Henrys, CLAUDE, jurisconsult, born at Montbrison, 1615, and died 1662. His
works are collected in 4 vols. folio.

Hertius, Jonannes Nicotavs, born near Giessen, 1651, and died 1710. His
treatise “ Collisione Legum” is to be found in his select works in 2 vols.
4to.

Hoseruvs, Uricvs, a lawyer, historian, and philologer, born at Dockum in the
Dutch territories, 1635, and died 1694. His treatise “De Conflictu Legum”
is to be found in his “ Prelectiones Juris Civilis,” 3 vols. 4to.

Kames, Lorp, (Henry Homs,) born at Kames, in Berwickshire, 1696, and died
1782, The reader is referred to his “ Principles of Equity.”

Lz Broun, Dents, advocate, died 1708, before the publication of his principal
work, “ Traité de Communautés.’

LEEUWEN, SIMON VAN, born at Leyden, 1625, and died.1682. His work referred
to, in the present Commentaries, is translated into English, with the title of
** Commentaries on the Roman-Dutch Law.”

Livermore, SaMvEL, of New Orleans, died 1833. He is the author of “ Dis-
sertations on the Contrariety of Laws.”

Mascarpvs, JosEPHUs, an ecclesiastic and Italian jurisconsilt, born at Sarzana
towards the end of the 16th century, and died about 1630. He is the author
of an extensive work, entitled “De Probationibus Conclusiones.”

Merurn, M. (de Dovau.) His voluminous works are entitled, “ Répertoire
Universel et Raisonné de Jurisprudence”; and “ Questions de Droit.”

Morwnac, Antorve, born near Tours, first appeared before the Parliament of
Paris in 1580, and died 1620. His works are comprised in 4 vols. folio.

Parpesseus, J. M., “ Cours de Droit Commercial,” 5 vols. 8vo. Paris, 1831.

Porurer, RoBert JOsersH, born at- Orleans, 1699, and died 1772. His works
need not be particularly mentioned.

Pecx, Peter, born at Zirckzee, in Zealand, 1529, and died 1589. His works
are collected in 1 vol. folio.

PUFFENDORF, SAMUEL, born in Upper Saxony, 1632, and died 1694. His
works are well known. ;

RopENBURG was a judge of the Supreme Court of Utrecht, and flourished about
the middle of the 17th century. His treatise, “ De Jure quod oritur ex Sta-
tutorum vel Consuetudinum Diversitate,” is to be found at the end of Boulle-
nois’s “ Traité de la Personalité et de la Réalité Des Loix.”

Srockmans, Peter, born at Antwerp, 1608, and died 1671. His works are
comprised in 1 vol. 4to. \

Stryxius, SAMUEL, born 1640, and died 1710. His son, Joan SAMUEL, was
born 1668, and died 1715. Their works, with those of RHETIUs, are col-
lected in 14 vols. folio.

Vorrt, Pavt, (the father,) born at Heusden, in Brabant, 1619, and died 1677.
His Work on the present subject is entitled, “De Statutis et eorum. Con-
cursu.’

Voert, Joun, son of Paul, born at Utrecht, 1647, and died 1714. His Commen-
tary on the Pandects contains a short chapter, “ De Statutis.”  ~
INDEX TO CASES CITED.

The figures refer to the Sections.

 

A.

Abbott v. Coburn 529 f
Abell v. Douglass 435
Abington v. N. Bridgewater 45a
Abraham v. Plestoro : 415, 419
Acebal v. Levy 262 a, 285, 319
Ackworth, Bain v. ‘B19
Adam v. Kerr 567
Adams v. Cordis 8lla

Fox v. 416

v. People 625 b

Whittemore v. 571
Adeline, The Ship 423 h
Agnew v. Platt 841
Aicken, Hitchcock v. 608
Alair v. Schenck 896
Albion F. & L. Ins. Co. v. Mills 285
Aldrich ». Kinney 608, 609

Alivon v. Furnival 399, 420, 565,
566, 603, 605, 606, 607

Allan, Phillips v. . 338, 339, 342
Allardice v. Onslow 49d
Allen, Buttrick v. 547, 608
v. Campbell 314
James v. 339

Alnutt, Scott v.
Alpuente, Barrera v.
Alves v. Hodgson

364, 867, 398
77

243, 260, 262
96

Amedie, The
Amedon, Ward v. 545
Amory, Orr v. 420, 565

Anderson v. Caunter 5138, 514 6, 515 e
Andrews v. Herriott 558, 567, 637,
648, 644

v. His Creditors 75, 102,

241, 242, 259 a, 493 f

v. Pond 242, 243, 244, 280

291, 292, 293 a, 293 c, 304 a, 558

Ann Green, The 47
Anonymous (9 Mod. 66) 528, 643
Anstruther v. Adair 143, 171 a, 276 a

v. Chalmers 479 c, 479 f,

491

Antelope, The . 96, 621
Appleton v. Campbell 258

 

Appleton v. Lord Braybrook 635 c, 643

Arags v. Currell 286 ¢

Archbald, Harvey v. 292

Arell, Warder v. 332

Arendall v. Arendall 198

Arglasse v. Muschamp 454, 544

Armoyd, Williams v. 592.

Armstrong v. Lear 468, 513

v. Toler 245,-246, 247,

248, 249, 250

Arndt v. Arndt 609 @

Arnott v. Redfern 291, 608, 607

Arthur v. Hughes 5174

Aspden v. Nixon 529 b

‘Atkyna v. Smith 513, 515

Attor.-General v. Bouwens —_ 383, 513,

514, 514 b, 523

v. Cockerell 513

v. Dimond 383, 514,

514 a, 514 b, 515 a, 574

v. Dunn 472, 481 a

v. Hope 883, 514 b

v. Mill 446

Atwater, Bartsch v. 831, 332

v. Townsend 335, 571, 572

Augusta (Bank of) v. Earle 38, 99

Augusta Ins. Co. v. Morton 428

Austin, Trecothick v. 513, 515

Aymar v. Sheldon 267, 348, 360
B.

Babcock v. Weston 348

Bailey v. McDowell 641 a

Bain v. Ackworth 319

v. Whitehaven & Furness
Junction R. Co. 634 a, 635 b

Baker v. Wheaton 335, 840
Balch, ex parte 610 a
Baldwin v. Gray 75, 78

v. Hale 341 a, 347 4

Willis v. 258
Balfour v. Scott 465
Ballantine v. Golding 335, 339
Ballingalls v. Gloster 360
xxii

284 b, 287
20, 38, 99,
565
606
606

Ballister v. Hamilton
Bank of Augusta v. Earle

Australasia v. Harding
v. Nias
England, De la Chau-

mette v. 346, 353, 356
Galliopolis v. Trimble 575
North America v.

Wheeler 599 ¢
Rochester v. Gray 260 a, 643
Tennessee v. Horn 5299
United States v. Donally 242,

272, 558, 567, 577

United States v. Lee 17le

Washington v. Triplett 361
Bank v. Danforth 325 s|
Banks, Peacock v. 291
Barber, Cockerell v. 308, 312

v. Root 228, 229, 229 a
Barker, Lanusse v. 199, 287
Barkman v. Hopkins 641 a
Barney v. Patterson 608, 609
Baron de Bodis’s Case 642
Barrera v. Alpuente 17
Barrett v. Barrett 859, 517

Hancock v. 609
Barrows v. West 592
Barrs v. Jackson 584
Bartsch v. Atwater 331, 332
Battelle, Lincoln v. 577, 581, 582, 641
Battey v. Holbrook 527 4
Bayley v. Edwards 605, 610 a
Baylies v. Houghton ‘400 a
Baysan v. Vavasseur 263
‘Bayth v. Vavasseur 263
Beamish v. Beamish 112a
Bearcroft, Crompton v. 123 a
Beattie v. Johnston 499
Beazely v. Beazely. 88, 106, 117, 124

Conway v. 81, 86, 336
Beckford v. Wade 582

Becquet v. McCarthy 547, 548, 599 a,
605, 606
108

513, 514 D

Belisario, Lindo v.
Bell, Tyler v.

Bellamont, Conner v. 287 a, 298, 305
Bellows v. Ingraham 608, 609
Bempde v. Johnstone 46, 47, 48, 465,

469
Bender, Grimshaw v. 819
Bennet, The 602
Bent v. Lauve 272
Benton v. Burgot 609
Bernes, Stanley v. 46, 465, 467
Berquier, Desesbats v. 88, 468, 473
Betton v. Valentine 406
Bevan, Scott v. 808, 313
Biggs v. Lawrence 251, 255, 257

.Boucier v. Lanusse

 

INDEX TO CASES -CITED.

Bingham, Ommaney v. 48, 465
Binnington v. Wallis 258
Bircham, Currie, Adm’r, v. 514},
515 a, 518

Bird v. Caritat 565, 571
Pawling v. 230, 549, 608

v. Pierpont 565
Birtwhistle v. Vardill 81, 87, 93 a,

* 93 e, 93h, 93 0, 93 w, 336, 380,
424, 428, 434, 463, 481, 483, 474,

488 a, 484

Bissell v. Briggs, 599 c, 523, 547, 549,
550, 586, 592 a, 608, 609

Black v. Lord Braybrook 635 c, 648
Blackmore v. Brider 115
Blad v. Bamfield 592, 593
Blades, ex parte 543
Blake, Hull v. 5926

v. Williams 329, 380, 396, 399,
409,410, 414, 415, 416, 417, 420, 428

Blakely, Newly v. 582.
Blakes, ex parte 407
Blanchard v. Russell 20, 35, 88, 244,

261, 278, 317, 335, 336, 337,

340, 345,346, 348, 349, 362

v. Stearns 43

Bland, Robinson v. 38, 123 a, 199,
243, 258, 281, 291, 296, 304 a, 305,
340, 364, 383, 554, 558, 571

Bligh, Obicini v. 607
Bliss v. Houghton 575
Bodurtha v. Goodrich 599 e
Bohlen v. Cleveland 886, 389, 395,
396
Bollord v. Spencer 516
Bonati v. Welsch lile
Bond ¥. Graham 518
Bonham v. Badgley ll4a
Booth v. Clark 410
Borden v. Borden 513
_-y, Fitch 230, 547, 608
Boston I. R. F. v. Hoit 618i
(Selectmen of) v. Boyl-
ston 513, 514}

Boston Type Foundery v. Wallack 339

Bostwick, Matter. of 529 m
Boucher v. Lawson 245, 257, 260,
595, 598, 604

143, 178, 179
Boulanger, Talleyrand v. 569

Bourke v. Ricketts 313
Bourne, Watson v. 335, 340
Bowaman v. Reeve 528
Bowles v. Orr 597, 603
Bowne v. Joy 610 a
Bowrey v. Bennett 258

Boyce v. Edwards
Boyden v. Taylor
Boyes v. Bedole

oe

286, 296, 305, 319
631
93 w, 491d
INDEX TO .CASES CITED.

Boyle v. Zacharie 287, 841
Boylston, Dawes v. 518, 518
Boynton, James v. 565
Brack v. Johnston 436
Brackett v. Norton 242, 637, 638,

: 641, 641 a
Bradford v. Farrand 342
; v. Harvard 283
Bradshaw v. Heath 230

Bradstreet v. The Neptune Ins. Co. 592
Braynard v. Marshall 817, 340, 341,343

Breadalbane v. Chandos "276 a
Brent v. Chapman 582
Brice, Canaan v. 247, 250, 254
Brickwood v. Miller 422
Bristow v. Secqueville 642
British Linen Co. v. Drummond = 272,

557, 577, 581, 582 a

575 a
428, 463, 465, 469,
485, 486, 487, 488, 489

Britton v. Bespop
Brodie v. Barry

Broh v. Jenkins 581
Brook v. Brook 114 a, 116
Brooks’s Syndics, Durnford v. 386
Brown v. Brown 479 c, 484, 490
v. Duncan 251
Gordon v. 490
Hicks v. 315, 335
Potter v. 315, 326, 332, 335,
; 380, 481
v. Richardson 268
v. Stone 577
v. Thornton 260, 635 ¢
v. United States 334

Bruce v. Bruce 46, 47, 49 d, 862, 379,
380, 390, 465, 481

In re 376
Bruneau v. Bruneau’s Heirs 176
Brush v. Curtis ’ 565

v. Wilkins 649
Bryan v. McGee 514}
Buchanan v. Deshon 430

v. Rucker 547, 586

Smith v. 342, 348, 408, 564

Buckner v. Finley 317
; v. Van Lear 610 a
Budge, Montgomery v. ' 281
Bulger v. Roche 577, 581, 582 b
Bull, Rex v. 627, 628
Bullock v. Rogers 529 f, 529 1
Bunberry v. Bunberry 479 m, 483
Burgess v. Burgess 1l4a@
Burn v. Cole 513
Burnham, Stearns v. 858, 513
v. Webster 598, 599 b

Burrows v. Jemino 243, 265, 333, 598
Burton, ez parte 339
v. Fisher 43, 44

Burwell, Harrison v. 114, 115, 116

 

XX111

Bush, Mather v. 839
Butler v. Delaplaine 96
v. Forbes 217

v. Freeman 124

v. Gastrill 114, 114 a, 115
Harper v. 359

v. Hopper 96
Buttrick v. Allen 547, 607, 608
Byrne v. Crowninshield 582 b
v. Walker 565

Cc.

Calbraith, Searight v. 832
Caldwell v. Ball 389
v. Van Vlissengen 541
Cambioso v. Maffat 246, 252, 255
Campbell, Appleton v. 258
East India Co. v. 627

Hall v. 18, 390

v. Stein 574 ¢

v. Tousey 518, 514, 514 }

v. Wallace 479 0

Canaan v. Bryce 247, 250, 254
Canfield, Scoville v. ; 621
White v. 339

Cargile v. Harrison 581
Caritat, Bird v. 565, 571
Carleton v. Beckford 599 e
Winthrop v. 296

Carnegie v. Morrison 298, 304 a, 642
Carpenter v. Atherton 313 e
Carr v. Shaw 353
Carrol v. McDonough 610 a
Carroll, Guinness v. 606
v. Waters 322, 322 B

Carter v. Carter 228
Casey v. Harrison 6104
Cash v. Kennion 291, 309
Caskie v. Webster 416, 420
Cassin, Touro v. _ 243
Catesby’s Case 210
Catherwood, James v. 260, 262, 818
Catlin v. Bell 254
v. Gladding ‘AT
Catterall v. Catterall 79a
Cavan v. Stuart 547, 586
Certain Logs of Mahogany 6104
Chalmers, Anstruther v. 479 c, 491
Champant, Ranelagh v. 287 a, 291,"
296

Champlin v. Tilley 513
Chandler, Fisk v.; 386
Chanoine v. Fowler 641 a
Chapel, Talmadge v. 522
Chapman, Brent v. 582

v. Robertson 270, 272, 287 a,
293, 298 a, 293 b, 298 c,
298, 424, 427, 428, 447

i
XXiV

Chapman »v. Robinson 305
Charters v. Cairnes 242, 332
Chewning v. Johnson 399 a, 400 a
Chichester v. Mure 114 f
Chick v. Ramsdale 115
Church v. Hubbart 637, 689, 640,

: 641, 641 a, 642, 643
City of Berne v. The Bank of

England 565
Clarke v. Cochran 260
v. Graham 428
v. Van Surlay 529 m
Clark’s Ex’ors v. Cochran 635 d
Clegg v. Levy 260, 262, 318
Clement, Yrissari v. 291
Cleveland; Bohlen v. 886, 395, 396
Clugas v. Penaluna 251, 255, 257
Cobb, Dix v. 396
Cochrane, Forbes v. 96 a, 259
Cockell v. Gray * 270
Cockerell, Attorney-General v. 513
v. Barber 308, 312
v. Dickens 376, 380, 428
Coffin v. Coffin 339
Cogswell v. Dolliver. 635
Coit v. Millikin 643
Collier Co. v. Schurmanns 8739
Colombian Government v.

Rothschild 565
Colt v. Partridge 610a
Commonwealth v. Aves 96, 259

v. Deacon 628

v. De Longchamps 628

v. Green 92, 620,

621, 628

v. Griffith 516

v. Holloway. 96

v. Perryman 115

v. Taylor 96

Comparet v. Jarnegan 641 a
Conard v. Atlantic Ins. Co. 389
Connelly v. Connelly 596
Connor v. Bellamont 287 a, 291, 293,
305

Consequa, Fanning ». 281, 291, 296
v. Fanning 283, 284, 291,

297, 8lla

v. Willing 242, 291, 307,

571, 637

«Conway v. Beazely 81, 86, 89, 205,
219, 336

Stapleton v. 288, 298, 305, 313

Cood v. Cood 873 b
Cook v. Litchfield 610a
v. Moffatt 346 b
Coolidge v. Inglee 259
v. Poor rs 288

Cooper v. Earl of Waldegrave 317,
319, 333

 

INDEX TO CASES CITED.

Cope v. Doherty 373 g
Coppin v. Coppin 428, 435, 474
Cottingham, eal v. 407
Courtois v. Carpentier 272, 307, 571
Cowan v. Broidwood. 606
Cowper, Wills v. 865, 428, 435, 474,

483 a
Cox & Dix v. United States 281, 290
Cragie v. Cragie 47
Crandall, Robinson v. 517
Cranston v. Johnston 544, 547
Crispin v. Daglioni 491 a, 618 b

Crompton v. Bearcroft 123 a, 124, 226¢
Crosby, United States v. 428, 435, 474,

483 a-
Croudson v. Leonard 592
Crowninshield, Sturgis v. 835, 580
Le Roy »v. 263, 267,
“$42, 577, 580, 582
Cruger, M’Candish v. 319
Culver v. Benedict 4005
Cummings v. Banks 606, 609
Curling v. Thornton 465
Currie, Adm’r, v. Bircham 514 },
515 a, 518
Curtis, Brush v.- 565
Greenwood v. 38, 98, 114,

116, 244, 252, 258, 259

v. Hutton 424, 428, 474, 479 d

v. Leavitt 883 b

Curtois v. Carpentier 571
Cuthbert, Royal Bank of Scot-

land ». 408, 428

Cutter v. Davenport 365, 428, 435,

483 a, 523

Cutts v. Haskins 46, 506

D.
Dallison, Wigglesworth v. 270
Dalrymple v. Dalrymple 37, 38 a, 76,

81, 82, 93 e, 108, 113, 209, 274, 642

Danforth v. Penny 565, 592 a
Dangerfield v. Thurston 513
Danville v. Putney 47

Darby v. Mayer
D’Arcy v. Ketchum

428, 485, 483 4
599.c, 599 f, 609

Davenport, Cutter v. 365, 428, 435,
483 a, 523

Davis v. Estey 513, 514, 524
Gale v. 178

v. Jaquin 390

v. Peckars 608
Selkrig ». 159, 186, 864, 395,

398, 400, 408, 423, 428, 543

v. Smith 609
Dawes v. Boylston 529 f, 518, 518

v. Head

513, 514 B, 518, 524
Day, Schofield v.

291, 805, 8114
4 INDEX TO CASES CITED.

Deacon, Commonwealth v. 628
Dean v. Richmond 229 a
De Bernales, National Bank of

St. Charles v. : ‘565

De Bonneval v. De Bonneval 472, 481 a
De Caix, McCarthy », 106, 117, 218,

225
De Conty’s Case 935
Decosse Brissac v. Rathbone 618 f
De Couche v. Savatier 89, 145, 152,

178, 276, 481, 577, 581, 582, 5824
De Haber v. Queen of Portugal 542a
De la Chaumette v. The Bank of
England 346, 353,356
Delafield v. Hand 643
De Lane v. Moore “‘171e
Dela Vega v. Vianna = 272, 557, 558,
571, 577, 581, 582 a
Delegal v. Naylor 308, 313
De Longchamps, Commonwealth v. 628
Delvalle v. Plomer 263
Depau v. Humphreys 260, 272, 298,
304, 304.4, 305, 306, 314

De Rottenham, Murray v. 348
Descadillas v. Harris 332
Desesbats v. Berquier. 38, 468, 473
Deshon, Buchanan »v. 430

De Sobry v. De Laistre 242, 243, 244,

258, 279, 296, 380, 468, 481, 524,

636, 637, 638, 643

Devisme v. Martin 409
Dewar v. Span 287 a, 293, 305
De Weitz v. Hendricks 259
Dewitt v. Burnett 539, 547
De Wolff v. Johnson 2874, 291, 293,

305
Diana, The 96, 642

Dickey, Morrill v. 499, 504 a, 514

Dickinson’s Adm’rs v. McCraw 513
Dickson v. Dickson 89
Dimick v. Brooks 572 a, 609
Ditson v. Ditson 230 d
Dix v. Cobb 396
Dixon’s Ex’rs v. Ramsay’s Ex’rs' 468,

513
Dixon v. Ramsay 358
Dobree, ex parte 408

509

' Doe dem. Lewis v. McFarland
: Birthwhistle v. Vardill 81, 87,
93 0, 336, 380, 428, 434, 481, 483
Dolliver, Cogswell v. 635
Don v. Lippmann 263, 278, 280, 281,
282, 317, 320, 547, 548, 5484,
550, 557, 558, 571,574 c, 574 d,
577, 579, 581, 582, 582 a, 582,
586, 603, 606, 634 a, 635 b.
Donnelly v. Corbett 341
Doolittle v. Lewis 514, 514 6, 515, 523
Dormoy, In re 642

CONFL. c

 

XXV
Dorsey v. Dorsey 205, 2304
v. Maury 609
Dos Santos (Jose Ferreira) 628
Douglas v. Brown 637
v. Forrest 541, 547, 548, 549,
607
Doulson v. Mathews 554
Dowdale’s Case 514 a, 514
Drake v. Brander 610a
Saunders v. 313, 479 b
Drummond v. Drummond 266 a, 487,
529
British Linen Co. v. 272,
581
Duchess of Kingston’s Case 592, 597
Dudley v. Warde 582

Duke of Brunswick v. King of
Hanover 5424
Du Moulin v. De Witt 1124
Dunbar v. Dunbar 483 d
Duncan v. United States 290
Dundas v. Bowler 815, 435
v. Dundas 435°
Dungannon v. Hackett “B11
Dunlap, Innes v. 354, 565
Duntze v. Levett 21%
Durand, Attorney-General v. 316
Durant, Lamb »v. 394
'Durgee, Mills v. 5AT
Durnford v. Brooks’s Syndics 386
Butch Richards v. 513
Dutch W. I. Co. v. Moses 565
Dwight, Pearsall.v. 38,242, 243, 558
Dyer v. Hunt 242, 248, 385
ve Smith 641

E.

East India Co. v. Campbell 627
Edmanstone et al. 98, 207, 221
v. Lockhart 217
Edwards, Boyce v. 286, 296, 305, 319
Van Schaick v. 243, 287 a,
298
Ekins v. East India Co. 291, 296, 307,
308, 311
Elfesson, Imley v. 571
Ellicot v. Early 838, 342, 348
Elliot v. Lord Minto 266 a, 366, 424,
Poe 428, 484
Elmendorf v. Taylor 277
Embree v. Collins 6104
Emerson v. Partridge 400@
Emery v. Berry 641 a
Emulous, The 334
Ennis v. Smith 481, 641 a
Estey, Davis v. 513, 514 b, 524
Eustace, Kildare v. 544
Evans v. Grey 332
xxvi

Evans v. Tarleton’ 609 | Foster v. Vassall 544
v. Tatem 514 a, 514 b| Fores v. Johnes 258
Eve, Hannay v. 246 | Fox v. Adams 416
Morris v. 272, 338, 339 | France, Jn re 96
Everhart, Thrasher v. 242, 244, 558,| Frances, The — 48
566, 681, 637 | Fraser, Sinclair v. 547, 603, 605
Ewer v. Coffin 549 | Frayes v. Worms 373 e, 618g
Ewin, In re 379 | Frazier v. Warfield 280, 320
Ewing, In re 362, 380, 383 | French v. Hall 242, 380, 383, 558, 592
Exeter v. Brighton 43 | Frey v. Kirk 842
Friendschaft, The 48
Fry, Yeaton v. 643
F.
Fabrigas, Mostyn v. 276, 554, 637, G.
: 642
Fairlie, Logan v. 518, 514 | Galbraith v. Neville 605, 606
Lowe v. 513 | Gale v. Davis 178
Fales, Musson v. 259 Lang v. 270
Fanning v. Consequa 281, 291, 296 | Gambier v. Gambier 4634
Consequa v. 291, 297 | Garcia del Rio, Jones v. 259
Faremouth v. Watson 115 | Garlick, Tenton v. 547
Farmers’ & Manufacturers’ Bank Garnier v. Poydras ’ 66a
v. Haight 643 | Garvan, Roach v. 595, 604
Farrant, Bradford v. 342 | Gastrill, Butler v. 114, 115
Ray v. Haven 514 b, 529 f| Gaylord, Stevens v. 518, 514 b, 520
v. Mahon 607 ; Gelston, Hoyt v. 592
Feaubert v. Turst 148, 145 a, 171, 276 v. Hoyt 592, 598
Fellows v. Fellows 230 a| General Steam Navigation Co. v.
Fenton v. Livingstone 114 ¢, 3Z3f|  Guillon 423 g, 556
Fenwick v. Sears 513, 558 | Geyer, Ingraham v. 416, 420, 465
Fergusson v. Flower 263, 322| Gibbs, Field v. 608
v. Fyffe 242, 262 a, 280, v. Fremont 314
391, 556, 576 v. Howard 575°
v. Mahon 547, 586, 603, | Gilman v. Brown 322 b, 325 0, 401
605, 606 | Girolamo, The Ship 423 h
Ferraris v. Marquis of Hertford 465, | Glass, McNiel v. 389
467 | Gleason v. Dodd 609
Field v. Gibbs 608 | Glen v. Smith 513
Fisher v. Otis 293 c | Gloster, Ballingalls v. 360
In re 628 | Golding, Ballantine v. 335, 339
Fisk v. Chandler 386 | Good, Hall v. 115
Fitch, Borden v. 280, 547, 608 | Goodall v. Marshall 529f
Fitz James, Melan v. 267, 568, 570 | Goodman v. Goodman 93 w, 491d
Flack v. Holm 569 | Goods of M. Bennet 465
Fletcher, Lever v. 257| Goodwin v. Jones 380, 404, 409, 420,
Planche v. 245, 257 428, 518, 514 b, 518, 523, 565
Flower, Tourton v. 513 | Gordon v. Brown 484, 490
Foden v. Sharp 296, 320 v. Pye 98, 217
Folliott ». Ogden 550, 565, 566, 620 | Gore, Harvard College v. 45, AT
Forbes’s Case 207, 221| Grace (The Slave) case of 59, 96, 964
Forbes v. Cochrane 96, 96 a, 244, 259 | Graham, Clarke v. 428
v. Forbes 49d Milne v. 356
Odwin v. 84 | Grant v. Dalliber 47
Forrest, Douglas v. 548, 607 v. Healy 284 a, 284 b, 287,
Ford’s Curators v. Ford 195, 198 997, 81la
Foss v. Nutting 556 a v. McLachlin 592
Foster v. Hall 43 | Gratton v. Appleton 468
v. Sinkler 396 | Gravillon v.

INDEX TO CASES CITED.

 

ichards, Ex’or 529/f, 513
-INDEX TO CASES CITED.

Gray, Baldwin v. 75, 78
Cockell v. 270
Evans v. 334
Shelby v. 582

Green v. Creighton 529 g, 5294)

Commonwealth v. 92, 620, 621

v. Sarmiento 335, 342, 348, 608,
*.

628
v. Windham 48, 44, 45, 46
Greene v. Greene 45 a, 46

Greenwade v. Greenwade 292
Greenwood v. Curtis 88, 98, 114, 115,
116, 244, 252, 258, 259

Grell v. Lévy 2576
Griffith, Commonwealth v. ~ 516
Grimshaw v. Bender 319
Griswold v. Pitcairn 598, 643
pea v. Waddington 259
uestier, Hudson v. 592
Guier v. O’Daniel 46, 380, 506
Guinness v. Carroll 606
Gulick v. Lodes 5824
H.
Hackett, Dungannon »v. 311
Haile, Mason v. 339, 340
Halliday v.. McDougal 317
Hallowell v. Saco 44, 45
Hall v. Boardman 835
v. Campbell 18, 390
v. Good 115
v. Odber 599 a, 603, 605, 606
v. Williams 599 c, 586, 608, 609
~ White v. 545
Hamilton v. McConnell 599¢
Hancock v. Barrett 609
Hanford v. Paine 325 p
Hannay v. Eve 246, 251
Hapgood, Jennison v. 47, 481 a, 513

Harding v. Alden
Harford v. Higgins
v. Morris 116 a; 118, 123 a, 124

46, 230a, 230d
79

‘Harmer v. Bell 6104
Harmony, The 45
Harper v. Butler 858, 359
v. Hampton 428

v. Lee 473 b

v. Stanborough 473 6b

‘Harris v. Hicks 115
Harrison v. Burwell 114, 114a, 115,
116

v. Edwards 575, 575 a

v. Nixon 468, 474, 479 e,

479 f, 479 9

v. Sterry 263, 272, 323, 416,

422, 524

Hart v. Granger 610 a

XXVii

Harteau v. Harteau 46, 171 d, 229 a

Harvard, Bradford v. 283
Harvard College v. Gore 48, 45, 47
Harvey v. Archbald , 292
v. Richards 379, 468, 481, 513,

518, 524
Haskell v. Andros, 347 b
Haskins, Cutts v. 46, 506
Hatch v. Spofford 610a
Hayden v. Nutt 198
Hazelhurst v. Kean 807
Head, Dawes v. 513, 514 b, 524
Healy v. Gorman 291
Heebner v. Eagle Ins. Co. 285 a
Hempstead v. Reed 835, 641
Henderson v. Henderson 606
Hendricks, De Weitz v. 259
Henry v. Adey 643
v. Sargent 625 a
Herbert v. Cook 605
v. Herbert 79, 118
Jerningham v. 366
Herriot, Andrews v. 558, 567, 637, 644
Heyward, In re ‘ 628
Hicks v. Brown 814, 315, 335
Higgins, Lacon v. 79, 113
v. Scott 582 a

Hill, v7 Meek 529 ¢
Packard v. 641

v. Tucker 529 ¢
Himeley, Rose »v. 590, 592

Hinkley v. Marean 339, 570, 571, 572
Hinsdale, Meredith v. 567
Hitchcock v. Aicken 608
Hobart, Titus v. 839, 571, 572

Hodgson, Alves v. 243, 260, 262
v. Beauchesnie 49a

v. Temple 254
Hoffman.v. Carew 380
Hogg, Lashley v. 148, 171, 187, 465
Holbeck v. Leeds 47
+Holcomb v. Phelps 481
)| Holloway, McNeilage v. 359
Holm, Flack v. 569
Holman v. Collins 347 b
v. Johnson 38, 246, 251, 257

v. King 638

Holmes, ex parte 628
.v. Barclay 807, 554

v. Holmes 272

v. Jennison 628

v. Remsen 388, 348, 379, 380,

395, 396, 399, 405, 406, 408,
409, 417, 418, 420, 428, 468,
A474, 481, 518, 524, 565, 5924

 

Holyoke v. Haskins 46, 506
Hooker v. Olmstead 513, 515, 523
Hooper, Lacon v. 270
Hopkins v. Hopkins 228, 528
XXViil

Hopkins, Medbury v.
Sherrill v. 840, 346

Hopper, Butler v. 96
Hosford v. Nichols 287 a, 291, 293, 365,
428, 435, 483 a, 637, 642

‘Houghton v. Page, 242, 243, 291, 335

242, 577

Houlditch v. Donegal 603, 606
Howard, Gibbs v. 575
Hoxie v. Wright 608, 609
Hoyt, Gelston v. 592

v. Gelston 598, 602

v. ‘Thompson 383 a
Hozier, Peck v. 839, 558, 571

Hubbart, Church v. 637, 639, 640, 641,

; 642, 643
Huber v. Steiner 557, 577, 581, 582
Hudson v. Guestier 592
‘Hughes, Langton v. 254

McDaniel v. 592 a
Hull v. Blake 542 a
Hullet v. King of Spain 542 a, 565

Humphreys, Depeau v. 260, 298, 304 a,

305, 314

Hunt, Dyer v. 242, 2438, 335
\ v. Foy 529 f

v. Pownal 625 a

v. Stevens 514
Hunter, Phillips v. 380, 390, 484, 405,
406, 428, 592 a, 599, 605

v. Potts 335, 337, 380, 390,

398, 404, 405, 406, 407, 408,

428, 481
Hurd, Delafield v. 648
Hutchinson, Rex v. 627
Huthwaite v. Phaire 358, 515,515 a, 518
Hyde v. Goodnow 558

Hylton v. Brown 43
1.

Iderton v. Ilderton 93, 113, 226 ¢

Imley v. Elfesson 571,
Imrie v. Castrigue 618 e
Indian Chief, The 47, 48

Inglee, Coolidge v. 259
Inglis v. Usherwood 402
Ingraham, Bellows v. 608, 609

v. Geyer 416, 420, 565

Inhabitants of Brampton, King v. 118

 

of Hanover v. Turner 228

Innes v. Dunlop 854, 565

Irby v. Wilson 46

Isabella v. Pecot 639, 642

Ives v. Farmers’ Bank 804 b
J.

Jacks v. Nicholls 279

INDEX TO CASES CITED.

Jacks v. Wynne 260, 262, 318

Jackson v. Jackson 230
v. Petrie 545
Jamerin, Middleton v. 81, n. 118
James v. Allen 339
v. Boynton 565

v. Catherwood 260, 262, 318
Jaques v. Withy « 246
Jaquin, Davis v. 390
Jauncey v. Seeley 518
Jefferson, Livingston v. 554
v. Washington 43

Jeffrey v. McTaggart 354, 565
Jemino, Burrows v. 248, 333, 598
Jennings v. Throgmorton 258
Jennison v. Hapgood 47, 481 a, 513
Jerningham v. Herbert 366, 436
Johnnes, Foxes v. 258
Johns, United States v. 643
Johnson, De Wolf v. 287 a, 291, 293,
305

Holman v. 38, 246, 251, 257

v. Hudson 254

Lloyd v. 258
Raymond »v. 565
Johnston, Cranston v. 544, 547

Johnstone, Bempde v. 46, 48, 465, 469
Jollet v. Deponthieu 407
Jones v. Garcia del Rio 259

Goodwin v. 380, 404, 409, 420,

428, 513, 514 b, 523, 565

v. Hook’s Administrator 558

v. Randall 258
Robinson v. 593

v. Taylor 325s

Jopp v. Wood 49d
Jose Ferreira de Santos 628
Josephine, The 48
Joseph Fisher, In re 628
| Judd v. Porter 839

K.

Kane, Van Reimsdyk v. 243, 263, 281,
335, 558, 577

Kay, Mure »v. 627
Kean, Hazlehurst v. 307
Kearney v. King 272 a, 313, 317
Kennedy v. Earl of Cassilis 595, 604
Kenney, Aldrich v. 608, 609
Kennion, Cash v. 291, 309
Kenny v. Clarkson 642
Kent v. Burgess 80, 81, 113
Kentucky v. Bassford 244, 2584
Kerr v. Moon 428, 435, 483 a, 513
Ketcham, Thompson ». 82, 241, 281;

291, 332
Kibblewhite v. Rowland 217
Kilburn 2» Woodworth 549, 599 ¢
INDEX TO CASES CITED.

Kildare v. Eustace

Kimberley, Rex v.

King v. Harman’s Heirs
v. Inhabitants of Brampton
of Spain v. Machado

544
627
267a
118
277

of Two Sicilies v. Wilcox 621
Kirby v. Waterford 49¢
Kirk, Frey v.- 342
Knight, The State v. 621

v. Wedderburn 96
Kohn v. Schooner 257
Koster v. Sapte 4814
Kraft v. Wickey 499, 5044

L.

Lacon v. Higgins 79, 118
v. Hooper 270
La Jeune Eugénie, The Ship 243, 257
Lamb v. Durant 389, 392
v. Smythe 43
Landes v. Brant 599 €

Lanfear v. Sumner 386, 389, 392
Lang v. Gale 270
v. Whitlaw 436
Langdon »v. Potter 513
Langton v. Hughes 254
Lansdowne v. Lansdowne 272, 288,
479 b, 479 m

Lanusse v.* Barker 199, 287, 3lla
Boucier v. 143, 178

599 ¢

291

148, 145 a, 171, 187,
465

Lapham »v. Briggs
Lapice v. Smith
Lashley v. Hogg

Latour v. Teesdale 118, 120

_ Law v. Mills 411
Lawrence, Biggs v. 251, 255, 257
v. Kittridge 465, 481

v. Lawrence 513

v. Smith 258

Lawson, Boucher v. 245, 257, 260,

595, 598, 604
La Virginio 47
Leach v. Pillsbury 44
Lear, Armstrong v. 468, 513

Leavenworth v. Brockway 638
Le Breton v. Miles 137, 143, 145 a, 151

v. Nouchet 78, 178, 180,

182, 198

Le Chevalier v. Lynch 337, 6104
Lee v. Moore 513

308

46
640
270
637
592

v. Wilcocks
Leeds v. Freeport
Leeman, Talbot v.
Leffingwell v. White
Legg v. Legg
Leonard, Croudson v.

Cc *

 

xxix

Le Roy v. Beard B67
v. Crowninshield 268, 267, 339,

: 342, 561, 577, 580, 382,

582 a, 5825

Lever v. Fletcher 257
Levett’s Case 207, 221
Levett, Duntze v. 217
Levy, Clegg v. 260, 262, 818
Lewis, Doolittle v. 513, 514 b, 523
v. Mew 610@

v. Owen 317, 319, 333, 341 a,

342

v. Wallis 895, 398

v. Wilder” 606
Lexington, W. Cambridge v. 89, 113,
123 b

Libbey v. Hodgson 565
Lickbarrow v. Mason 394
Lightfoot v. Bickley 522
, v. Tenant 251, 253, 257
Lincoln v. Battelle 577, 581, 582, 582 a,
641, 643

Lindo »v. Belisario 108
Lindsay, Tovey v. 88, 106, 117, 218,
225

Littleton v. Tuttle 96
Livingston v. Jefferson 554
Lloyd v. Johnston 258
v. Scott * 2874
Lockhart, Edmondstone v. 217
Lodge v. Phelps 857, 558
Logan v. Fairlie 513, 5146

86, 88, 106, 117, 124,
205, 218, 225, 226 ¢

Lolley’s Case

Lord v. Staples 641 a
Lord Baltimore, Penn v. 544
Louis v. Cabarrus 96
Louisville R. R. Co. v. Letson 580
Lowe ». Fairlie 513
Ludlow v. Van Rensselaer 257, 260,
281

Lundy’s Case 627
Lunsford v. Coquillon 96
Lyman v. Fiske 43
Lynch, Powers v. 281, 314, 315
Warren v. 567

M.

Machado, King of Spain v. 277
Mackey v. Coxe 529 d
Madrazo v. Willes 96 a, 259
Magoun v. N. England Ins. Co. 592
Maguire v. Maguire 205, 2304
Mahorner v. Hooe 4724
Maine Ins. Co., Richardson v. 259
Malcolm v. Martin 4796

Male v. Roberts 82, 89, 332, 541, 637
XXX

593
285, 286 b, 286 ¢
“48

Maley v. Shattuck
Malpica v. McKown
Maltass v. Maltass
Marean, Hinkley v.
Marlow, Wadham v.

339, 570
404

Marshall, Braynard v. 817, 340, 343
Martin v. Franklin 8lla
v. Nicholls 605, 606, 607
Martyn v. Fabrigas 276
Mary Anne, The 592
Mary, The Ship 592
Mason v. Haile 339, 340
Lickbarrow v. 394

v. Mason 6304
Massie v. Watts 545
Masson v. Lake 346 a
Mather v. Bush 338, 339
Matthews, Doulson v. 554
Maule v. Murray 6104
Mawdesley v. Park 412
Mayer, Darby v. 428, 485, 483 a
Mayo v. Pecks 3046
McCandish v. Cruger 319
McCarthy, Becquet v. 547, 548, 605
v. De Caix 106, 117, 205,

218, 225

McCormick v. Sullivant 428, 435, 474,
' 4834

McCraw, Dickinson’s Adminis-
trators v.

McDaniel v. Hughes

McElmoyle v. Cohen

513
5924
524, 582 a, 609

McFarland, Doe dem. Lewis v. 509
McGilvary v. Avery 599d
McIntyre v. Parks 251, 287
McJilton v. Love 610a
MeLachlin, Grant v. 592
McMenomy v. Murray 335, 339, 348
McMillen v. McNill 341
McNamara v. Dwyer. 504.a, 513
MeNeilage v. Holloway 355, 359, 517
McNeil v. Glass 389
McQueen v. Middletown Manuf.

Co. 565
McRae’s Adm’rs v. McRae 514d
McRay v. Mattoon 566
McTaggart, Jeffrey v. 354, 565
MeVicker v. Beedy 549, 599 a, 609 a
Mead v. Merritt 545

Peck v. 523
Smith v. 242, 279, 296
Medbury v. Hopkins 242, 577
Medrazo v. Willes. 96 a, 259
Medway v. Needham 118, 116, 123 b
Meeker v. Wilson 386
Meigs, Penniman v, 348
Melan v. Fitz James 267, 568, 570,
574¢

 

INDEX TO CASES CITED.

Mellish v. Simeon : 31la
Merchants’ Bank v. Bank of U.
States 399 a, 4004
v. Spaulding 244
Meredith v. Hinsdale 567
Merrick, Springfield Bank v. 246
Mette v. Mette 1l4¢
Metzer, In re . 628
Middlesex Bank v. Butnam 586, 599 a,
5996
Middleton v. Janverin 81, 113, 124
Mill, Attorney-General v. 446
Miller’s Estate, Case of 518, 524
Milles, Brickwood v. 422
Mills v. Duryee 547, 549 ¢
Patterson v. 259, 285
Milne v. Graham 353, 356
v. Moreton 283, 410, 414, 415,

416, 420, 428, 524, 565

Mingay, Snaith v. 289
Mitchell v. Bunch 545
Moffat, Cambioso v. 246, 252, 255
Moley v. Shattuck 593
Monroe v. Douglass 592, 603
Montgomery v. Bridge 291

Moon, Kerr v. 428, 435, 483 a, 513

Moore v. Budd 43, 465, 468, 481
v. Darell 467

Lee v. _ 513

v. Wilkins 43, 47
Moorhouse v. Lord . 496
Moreton v. Milne 383, 399, 411
Morgan v. McGhee 113
Price v. 391

Morrell v. Dickey 499, 504 a, 514,
5146

Morris v. Eves 272, 304, 338, 339
Harford v. 1234
Morrison, Quelin v. 408
Morrison’s Case 399

Mostyn v. Fabrigas 276, 554, 637, 638,

642
Moultrie v. Hunt 491¢
Mothland v. Wireman 529f
Moye v. Way 389
Mulen:v. Morris 291
Munford, Norris v. 386

Munroe v. Douglass 49 d, 481, 592, 608

v. Munro 43, 472

v. Saunders 87a, 93d, 1054,

118

Mure v. Kaye s 627
Murphy v. Murphy 143, 178
Murray v. De Rottenham 348
v. Murray 565
Starbuck v. 608
Muschamp, Arglasse v. 544
Musson v. Fales 959
INDEX: TO CASES CITED.

Nash v. Tupper

Nat v. Coon

Nathan v. Giles

National Bank of St. Charles v.

558
479 9
389

Bernales 565
Naylor, Delegal v. 308, 313
‘Neale v. Cottingham 407
Needham, Medway v. 118, 116, 123 8
Nelson, The 286 b
Neville, Galbraith »v. 605, 606
Newby v. Blakeley 582
Newell v. Newton 6104
Niblett v. Scott 609

Nichols, Hosford v. 287 a, 291, 365,

428, 435, 483 a

Martin ». 606, 607
Nicholson v. Leavitt 428
Niles, Wilson v. 609
Norris v. Mumford 386
Northern Bank v. Squires 348

242, 687, 688
78, 178, 180,

Norton, Brackett v.
Nouchet, Le Breton v.

182, 198
Nourse, Walsh v. 335, 339
Novelli v. Rossi 269, 607

Noyes v. Butler 586, 606, 609

0.
Obicini v. Bligh 607
O’Callaghan v. Thomond 855, 566
Qcean Ins. Co. v. Portsmouth
Marine Railway Co. 592 4
O’Daniel, Guier v. 46, 380, 506
Qdwin v. Forbes 84

Ogden, Folliott v. 550, 556, 566, 620
v. Saunders 261, 266, 323, 335,

340, 841, 341 a, 343, 346,

398, 416, 421, 570

Qhio Insur.-Co. v. Edmondson 244,
327 a, 558, 568
335, 339

386, 387, 389, 410,
416, 481, 524

O'Keefe, Quinn v.
Olivier v. Townes

Olmstead, Hooker v.
Ommaney v. Bingham
Orcutt v. Ormes

48, 465
521

Oxdronaux v. Rey 160, 185
Orr v. Amory A420, 565
“Ory v. Winter 817, 332, 340, 346
Ostell v. Lapage 6104
Otto Lewis, ex parte 89
Owen, Lewis v. 319, 333, 842

Owings v. Hall
Oxholm, Wolff v.

286 d
334, 348, 350, 565,

566, 620.

518, 515, 523

 

KXxi

P.

Packard v. Hill
Page, Houghton v.

641, 641 @
242, 248, 291, 385

Paradise v. Farmers’ and Mer- ‘
chants’ Bank of Memphis 400 ¢
Parish v. Seton 409
Park, Mawdesley v. 412
Parsons v, Lyman 4915
Patrick, Shedden v. 87a
Patterson, Barney v. 608
v. Gaines 113
Wallis v. 415, 416
Pattison v. Mills 269, 285

Pawling v. Bird’s Ex’ors 230 a, 549, 608

Peacock v. Banks 291
Pearl v. Hansborough 103
Pearsall v. Dwight. 88, 242, 248, 244,
558, 566
Peck v. Hibbard 279; 817, 341, 341 a,
845
v. Hozier 839, 558, 571
v. Mead 523
Peckars, Davis v. 608
Peckham v. North Parish in
Haverhill 565
Pecks v. Mayo 298, 3045
Pellicat v. Angell 251, 254
Penaluna, Clugas v. 250, 255, 257
Penn v. Lord, Baltimore 544
Penniman v. Meigs 348
Percival v. Hickey 423 h
Perkins, Walker v. 258
Pertreis v. Tondear 119
Peters v. Warren Ins. Co. 423g, 592,
‘ 593
Petrie, Jackson v. 545
Phelps v. Holker 549
v. Kent 292
Lodge v. 357, 558
Taylor v. 549, 598
Phillips v. Allan 338, 339, 342
v. Gregg 113
v. Hunter 380, 390, 404, 405,

406, 428, 592 a, 599, 605

v. Kingfield 43
Phipps v. Earl of Anglesea 288
Pickering v. Fiske 625 a, 63844
Picquet, ex parte 513
v. Swan 539, 547
Pierpont, Bird v. 565
Piers v. Piers 108
Pierson v. Garnet 479 b
Pilkington v. Commissioners of
‘Claims 818, 313 a
Pine v. Smith 305 b
Pipon v. Pipon 380, 481
Pitcairn, Griswold v. 598, 643
XXxii

Planche v. Fletcher
Plestoro v. Abraham
Plomer, Delvalle v. 263
‘Plummer, Webb ». 270

v. Woodburne 547, 548, 5994
Pomeroy, Slacum v. 307, 314, 317, 346

245, 257
416, 419

v. Wells 230 4

Poe v. Duck 341
Pond v, Makepiece 358, 514
Poor, Coolidge v. 283
Tappan v. 337, 339

Pope v. Nickerson 272, 286 cc
Porter v. Heydock 529 f
v. Munger 296

Potterw. Brown 315, 326, 332, 335, 340,
341 a, 346, 380, 414, 465, 481

Langdon v. 513
v. Titeomb 424
Pottinger v. Wightman 46, 473, 506
Potts, Hunter v. 835, 337, 380, 390,

398, 404, 406, 407, 428, 481

Powers v. Lynch 281, 314, 315
Powles, Thompson v. -259, 291, 305
Pratt v. Adams 292
Prentiss v. Savage 270, 281, 314, 315,
335, 345, 351
481, 513, 514,
514a, 515a
Price v. Dewhurst 465, 467, 479 a,
479 c, 481, 513, 603, 606

v. Morgan ; 391
Prigg v. Comm. of Pennsylvania 96
Pulver, Shultz v. 481, 515
Putnam v. Johnson 43, 45a

Preston v. Melville

v. Putnam ~~ 89,113, 1230
Pye, Gordon v. 98, 217
Q.

Quelin v. Moisson 342, 407, 408
Quinn v. O’Keefe 335, 339
R.

Rafael v. Verelts 551, 554, 620
Ralph v. Brown 610a
Ramsay v. Stevenson 386, 392

Ramsay’s Ex’rs, Dixon’s Execu-
tors v. 468, 513
Rand v. Hubbard 358, 359
Randall, Jones v. 258
Ranelagh v. Champant 287 a, 291,
296, 313

oe v. Webster 549, 598
Rankin v. Lydia 96
Rathbone v. Terry 608
Rawlinson v. Stone 359
Ray v. Sherwood 115

 

INDEX TO CASES CITED.

Raymond v. Johnson 555
Redfern, Arnott v. 291, 603, 607
Reed v. Gisty 599d
Waynell v. 251, 255
Reeve, Bowaman v. 528
Regina v. Chadwick 1144, 115
v. Lesley 873h

v. Povey 642

v. Wye ll4a

Reg. v. Brighton ll4e
v. Millis 1124
Remsen, Holmes v. 38, 348, 379, 380,

395, 396, 399, 405, 406, 408,
409, 411, 414, 415, 417, 418,
420, 428, 468, 474, 513, 524,

565, 592
Rex v. Bull 627, 628
v. Hutchinson 627
v. Kimberley + 627
v. Lolley 106, 117, 124, 218, 295
v. Picton 642
Ricardo v. Garceis 618h
Rice v. Courtis 3257
Richards v. Dutch B13

Harvey v. 379, 468, 481, 513,

524, 578
v. Richards 359
Richardson, Brown v. 268
v. Leavitt 399 a, 4004

v. Maine Ins. Co. 259

Ricketts, Bourke v. 313
Riley v. Riley 513
Ripple v. Ripple 603
Ritchie v. Smith 254

Roach v. Garvan 124, 595, 604
Roberdeau v. Rous 545
Robert Fulton, The 6104
Roberts, Male v. 82, 89, 241, 332, 637
Robinson v. Bland, 38, 123 a, 124,
199, 243, 258, 281, 291, 296,

304, 304 a, 305, 340, 364,

388, 554, 558, 571

v. Campbell 665

v. Crandall 517

v. Dawchy 637, 638

v. Jones 593

v. Ward’s Ex’ors 549

Rolph v. Brown 610%
Root, Barber v. 228, 229
Rose ». Himely 590, 592
v. McLeod 342

v. Ross 938
Ross, Solomon v. 398, 407
Rossi, Novelli v. 269, 607

Rothschild v. Currie 314, 317, 347, 360
Rowland, Kibblewhite v. 217
Rucker, Buchanan v. 547, 586
Ruding v. Smith 18, 62, 79, 90, oe
11
INDEX TO CASES CITED.

Rue High, Appellant

Ruggles v. Keeler

Rundle v. Delaware and Raritan
Canal

Russell, Blanchard v.

43, 383, 461
575

554
22, 35, 38,

244, 261, 278, 317, 335, 337, |

340, 846, 348, 349, 362

v. Field 6104

‘v. Smyth 539, 599 a

Ryan v. Ryan 79, 113

S.

Salmon v. Woodon 610a
Santa Cruz, The Ship 423 h
Sarmiento, Green v. 835, 842, 348,
608

Satterwaite v. Doughty 260

Saul v. His Creditors, 12, 13, 14, 28,
33, 38, 51, 75, 78, 89, 96, 153,

157, 168,170, 173, 174, 175,

176, 177, 178, 179, 190, 277,

306, 326, 431

Saunders v. Drake 113, 4138, 479 b
Ogden v. 266, 323, 335,

340, 841, 343, 346, 398,

416, 421, 570

: v. Williams A416
Savage, v. Marsh 817
Prentiss v. 270, 281, 314,

‘835, 845, 851
Savatier, De Couche v. 88, 89,
145 a, 152, 178, 276, 481, 577,
581, 582 a
Sawyer v. Me. Fire & Mar. Ins.
Co.
v, Shuter

Scarth v. Bishop of London 513 a
School Directors v. James 46
Scofield v. Day 291, 305, 311 a

Scotland, Royal Bank of, v. Cuthbert,

592
17la

408, 423

v. Smith 159

Scott v. Alnutt 864, 367, 398
Balfour v. 465

v. Bevan 308, 313

v. Pilkington 373 ¢, 618 b, 618¢
Scoville v. Canfield 621
Scrimshire v. Scrimshire

80, 80 a, 113, 121, 122, 122 a,
122 b, 514 b, 596

Searight v. Calbraith 332
Sears, v. City of Boston 46

Fenwick v. 513, 557
Selectmen of Boston y. Boylston 513,

514 b
v. Dawes 518

Selkrig v. Davis. 159, 186, 864, 395,

398, 400, 408, 423, 423 €, 428, 543.

37, 44, 46,

Xxxili

Sessions v. Little 388
Seton, Parish v. 409
Sewall v. Lee 430
Seymour v. Scott 807d
Shallcross v. Dysort 841 4
Shanklin v. Cooper 814, 347, 360
Sharp, Foden v, 296, 320
Shattuck, Moley ». 593
Shaw, Carr v. 853
Shedden v. Patrick 874
Shelby v. Guy 582
Sherrill v. Hopkins 340, 346 —
Shipman v. Thompson 516
Shultz v. Pulver 481, 515
Shumway v. Stillman ‘549, 586, 608,
609

Sill v. Worswick 862, 380, 390,

395, 398, 404, 406, 408, 428,

465, 481

Silver v. Stein 513
Silver Lake Bank v. North 565
Simmons, ex parte 96
Simpson v. Fogo 373 a, 618 e
Sinclair v. Fraser 603, 605
v. Sinclair , 596
Sinkler, Foster v. 396
Skinner v. East Ind. Co. 554
Slack v. Walcott 516

Slacum v. Pomeroy 307, 314, 317, 346

Slave Grace, The 59, 96

Slyhoof v. Fliteraft 6104

Smith, Atkins v. é 515
v, Atlantic Mut. Fire Ins.

Co. 610 a.

v. Buchanan 841 a, 342, 348,

408, 564, 565

ex parte 628

v. Godfrey 242, 244

Glenn »v. 513

v. Healy 571, 572

Lawrence v. 228

v. McIver 6104

v. Mead 942, 279, 296

v. Nicolls 522, 542, 599, 618%

v. Ruding 18, 62, 79, 90, 113,

118, 119

v. Shaw 3lla@

v. Smith 385, 342, 348

v. Spinolla 558, 571

v. Stotesbury 258

: v. Webb 513
Smith’s Adm’r v. Union Bank of

Georgetown 513, 524, 525

Snaith v. Mingay 289

Sneed v. Ewing 114

Solomons v. Ross 398, 407, 565

Somerset’s Case 27, 96, 259

Somerville v. Somerville 45, 46, 47,

 

379, 465, 469
XXxiv

South Car. Bank v. Case 565
Southey v. Sherwood 258
Southward, Wyman v. . 571
Span, Dewar v. 287 a, 293, 305
Speed v. May 411
Spencer, Bollard ». 516
Spratt v. Harris . 513, 514d
Springfield Bank v. Merrick 246
Sprowle v. Legge 272 a, 313, 317
Stacey v. Thrasher 529 ¢
Stanley v. Barnes 46, 465, 467
“Stapleton v. Conway 288, 293, 293 c,
305, 313

Starbuck v. Murray ~ 608
State, The, v. Knight 621
v. Barrow 198

v. Chandler 621

v. Hallet 47

v. Patterson 113

v. Twitty 641 a4
Stearns v. Burnham 358, 518, 517,
Steele v. Braddell 123 a, 124

Stein’s Case 186, 395, 408, 428
Sterry, Harrison v. 263, 323, 416, 422,

524

Stevens v. Gaylord 418, 514 b, 515,
520, 529 f

Stevenson, Ramsay v. 386, 392
Stewart v. Ellice 291
v. Garnett 4794
Thompson v. 643

St. Aubyn v. Obion 205
St. Louis, The 8, 96
Stodder, Whiston v. 242, 244, 285
Stone, Rawlinson v. 359
Strathmore v. Bowes 93 s
Peerage Case 87a

Stuart, Cavan v. 547, 586

Sturges v. Crowninshield 335, 341, 580
Suarez v. Mayor, &c. of New York 481

Sullivant, McCormick »v. 428, 435,

474, 483 a
Sumner, Lanfear v. 386, 389, 392
Sussex Peerage Case 114d

Sutton v. Warren 113, 114, 114 a, 116

 

INDEX TO CASES CITED.

Tanner v. King 43
Tappan v. Poor 337, 339 .

Tarleton, Evans v. 609

v. Tarleton 593, 598, 606

Tatnall v. Hankey 473 4

Taylor v. Boardman 386

v. Bryden 609

Elmendorf v. 277

v. Phelps 549, 598

v. Royal 6104

v. The Royal Saxon 6104

Teesdale, Latour v. 118, 120

Temple, Hodgson v. 254

Tenton v. Garlick 547

Terasson, Van Cleff v. 333

Territt v. Bartlett 244, 257 4

v. Woodruff 6387

Tewsch, Utterton v. 216, 217

Thayer v. Brooks 554

Thomond, O’Callaghan v. 355, 566

Thompson v. Advocate 376, 380

v. Ketcham 82, 241, 281,

291, 332

v. Powles 259, 291, 305

Shipman v. 516

v. Stewart 643

Vidal v. 262, 301, 302, 318

v. Wilson 858, 513, 517

Thorne v. Watkins 362, 481, 484,

518, 515

Thorndike v, City of Boston 45a

Thornton, Curling v. 465, 479 ¢, 481

Thrasher v. Everhart 242, 244, 558,

: 566, 567, 631, 637, 638

Thuret, Jenkins v. 891, 392, 393

Thurston, Dangerfield v. 518

Ticknor v. Roberts 2604

Tilley, Chaplin v. 518

Titus v. Hobart 339, 570, 571, 572

Tolen v. Tolen 230 a, 230d

Toler, Armstrong v. 245, 246, 247,

249, 250

Tondear, Pertreis v. 119

Touro v. Cassin 243

Tourton v. Flower 513

Suydam v. Broadnax 572| Tousey, Campbell v. 513, 514, 5145
Swan, Picquetv. 539, 547| Tovey v. Lindsay — 88, 106, 117, 205,
Swearingen’s Ex’rs v. Pendleton’s 218, 225
Ex’rs 514 b| Towle v. Forney 529 m
Swift v. Kelly 114 | Townes, Olivier v. 386, 388, 410, 416,
ov. Swift 513 481, 524
Symonds v. Union Ins. Co. 571 | Townsend, Atwater v. 335, 571, 572
v. Jennison—- 582 4

Trecothick v. Austin 359, 513, 515

T. ,| Tremere, Wood v. 586

‘| Trimbey v. Vignier 242, 242 a, 272,

Talbot v. Seeman 637, 640 314, 816 a, 353 a, 354, 356, 359,
Talleyrand v. Boulanger 569 558, 566
Talmadge v. Chapel 522| Triplett, Bank of Washington v. 361
INDEX TO CASES CITED.

Trotter v. Trotter 479 a, 479 h
Tulloch v. Hartley ‘+ 428, 630 6, 635c¢
Tupper, Nash v. 558

Turner, Inhabitants of Hanover v. 228
Turst, Feaubert v. 148, 145 a, 276
Tyler v. Bell 513, 514 b, 515 a

,  ». Trabue 281, 637

U.

U. Insur. Co., Vanderheuvel v. 593
Underwood, Englis v. 402
Union Bank v. Folly . 5297
United States, Brown v. 334
v. Crosby 428, 435,
474,483 a
Cox & Dick v. 281, 290
v. Davis 628
Duncan »v. 290
v. Johns 643

Union Bank of Georgetown,

Smith, Adm’r, v. 513, 524
Union Ins. Co., Symonds v. 571
Upton v. Hubbard 410 a
Utterton v. Tewsch 216, 217

vy.
Vallee v. Dumergue _ 606
Van Buskirk v. Muloch 641 a
Van Cleff v. Terasson 833
Vanderdonckt v. Thellusson 642
Vandenheuvel v. U. Insur. Co. 593
Vanquelin v. Bouard 529 k, 618 g
Van Raugh v. Van Arsdaln 342, 348

Van Rensselaer, Ludlow v. 257, 260, 281
Van Reimsdyk v. Kane 248, 268, 281,
335, 558, 577, 582, 582a

Van Shaick v. Edwards, 248, 287 a,
298, 804, 304 a

Vardill, Doe dem. Birthwhistle v. 81,
87, 93 a, 336, 386, 428, 434,

481, 483

Vassall, Foster v. 544

Vaughn v. Barrett 529 e
v. Northup 513
Vavasseur, Bayon v. 263
Venus, The 47, 48
Vernon, The 423 h
Very v. McHenry 335,341, 348, 351,
410

Vermilya v. Beatty 513
Vianna, De la Vega v. 272, 550, 571,
577, 582 a

Vickery, Kraft v. 499, 5044

Vidal v. Thompson
302, 304, 316, 318
Virginie, La 47

262, 262 a, 301, |

 

XXXV

W.
Waddington, Griswold v. 259
Wade, Beckford v. 582
Wadham v. Marlow 404
Wadleigh v. Veazie 6104
Wadsworth v. Queen of Spain 5424
Wait v. Hill 386
Walcott v. Walker 258
Walcot, Slack v. . 516
Walk v. Bank of Circleville 45a
Walker, Byrne v. 565
v. Perkins 258
v. Wittier 603, 605
Wall v. Williamson 114
Wallace v. Patterson 415, 416
Wallis, Birmingham v. 258
v. Brightwell 479 b
Lewis v. 395
Walsh v. Durkin 610a
v. Nourse 335, 339
Ward v. Amedon 545
v. Dey 79 a
v. Morrison 400a
Warde, Dudley v. 582
Warder v. Arell 332
Ward’s Ex’ors, Robinson v. 549
Warren v. Lynch - 558, 567
Warrender v. Warrender 46, 86, 88,

106, 1124, 114, 124,171, 171¢,
205, 218, 226 a,-227, 230 b, 230 e,

242, 259, 260, 268a, 322,

“851 a, 351 c, 351 d, 364, 620, 625
Washburn (In the Matter of) 627, 628

Waterhouse v. Stausfield 446a
Waters, Carrol v. 322
Watson v. Bourne 835, 340
-  v. Walker 643
Watts v. Kinney 554
Massie v. 515

v. Waddle 543
Wayne v. Greene 44
Waynell v. Reed 251, 252, 255, 257
Webb v. Plummer 270
. Webster v. Reid 599
Welsh v. Sykes 608
Wells v. Cowper 508
v. Whitehead 317

West Cambridge v. Lexington 89, 113,

1236

Weston, Babcock v. 348
Wheaton, Baker v. 835, 340
Whetherell v. Jones. 254
Whicker v. Hume » 496
Whiston v. Stodder 242, 244, 285,
3226

White v. Canfield 339
v. Hall 545
XXXVI INDEX TO CASES CITED.

White, Leffingwell v. 270
v. Whitman 6104
Whitney v. Walsh 592
Whittemore v. Adams 571
Whyte v. Rose 513, 518 a, 5291
Wigglesworth v. Dallison 270
Wightman, Pottinger v. 46, 506
v. Wightman 114, 116

Wilcox v. Hunt 242, 272, 558, 631, 635d
Wilcocks, Lee v. 7 808
Wiles v. Cowper 428
Madrazo »v. 96 a, 259
Wilkins, Brush v. 642
Williams v. Armroyd 592

v. Benedict

529

g
Blake v, 329, 380, 396, 399,

409, 410, 414, 415,

417, 420, 428

Hall v. 586, 608, 609

v. Jones "557
Saunders v. 416

v. Wade 316 db
Williamson v. Berry 529 m
Willing, Consequa v. 242, 291, 307,
571, 637

Willis v. Baldwin 258,

Wills v. Cooper 365, 428, 435, 474,

483 a

Wilson, In re 395, 898, 404, 407
Meeker v.. 386

v. Niles 609

Thompson v. 358, 513, 517

Winnie v.. Jackson
Winchelsea (Earl of) v. Ga-

260

retty 266 a, 366, 484, 529

Winchendon v. Hatfield

96

Winter, Ory v. 817, 332, 340, 346

Winthrop v. Carleton

296

 

| Withy, Jacques v. 246

Wolfe v. Oxholme 334, 348, 349, 351,

565, 566, 620

Wood v. Bullens 313 ¢
v. Partridge 396

v. Tremere 586

v. Watkinson 558, 608, 609
Woodbridge v. Wright 571, 572, 577
Woodruff v. Taylor 618 e
Woodstock v. Hartland 47

Wooster v. Winnepiseogee Lake
Cc

0.
v. Great Falls Manufac-

turing Co. 554

Worswick, Sill v. ~ 362, 380, 390, 395,
398, 404, 406, 408, 428, 481

554

Wrigby, ex parte. 47

Wright v. Delafield > 6374

Hoxie v 608, 609

v. Paton 339

Wyman v. Southward 571

Wynne v. Jackson 260, 262, 318
Y.

Yates v. Thompson 260, 479 a, 479 g,

481, 491, 630 B, 634 a, 635 6,
635 c, 636

Yeaton v. Fry 643
Young v. Crossgrave 57T
v. Templeton 182, 642
Yrisarii v. Clement 291

Z.

Zacharie, Bayle v. 287, 341
COMMENTARIES

ON THE

CONFLICT BETWEEN FOREIGN AND
DOMESTIC LAWS.

CHAPTER I.

INTRODUCTORY REMARKS.

[* §1. Causes of difference of laws in different nations.

§ 2. How these diversities were disposed of in early times.

§ 2a. Conquered races retained their former laws.

§ 2b. There was no recognized rule as to subjects of different states.

§ 8. The Law of Nations the result of convenience and necessity.

§ 4. Extension of commerce renders it indispensable.

§ 5. Illustration of the embarrassments otherwise arising.

§.6. This will occur, as between different provinces of the same empire.

§ 7. The laws of one state have no legal force in any other state.

§ 8. The legal force of laws limited to the jurisdiction of the state.

§ 9. This branch of the law is, private. international law.

410. It has not been systematically treated by common law-writers.

§11. The Continental writers have treated the matter more fully.

§ 12, They use the word statute for the whole municipal law.

§ 13. These are personal, real, and mixed.

4.14. Discussion of different definitions.

§15. Great conflict of opinion on the subject.

§ 16. Distinction between personality and reality of statutes, or laws, important to be
borne in mind.]

§ 1. Tue earth has long since been divided into distinct nations,
inhabiting different regions, speaking different languages, engaged
in different pursuits, and attached to different forms of govern-
ment.! It is natural, that, under such circumstances, there should
be many variances ‘in their institutions, customs, laws, and polity ;
and that these variances should result sometimes from accident, and

1 Upon the subject of this chapter the learned reader is referred to Burge’s

Commentaries upon Colonial and Foreign Law, Vol. 1, Pt. 1, ch. 1, p. 1 to 32.
CONFL. 1 :
2 CONFLICT OF LAWS.: [cx 1

sometimes from design, sometimes from superior skill and knowl-
edge of local interest, and sometimes from a choice founded in
ignorance, and supported by the prejudices of imperfect civiliza-
tion. Climate, and geographical position, and the physical adap-
tations springing from them, must at all times have had a power-
ful influence in the organization of each society, and have given a
peculiar complexion and character to many of its arrangements.
The bold, intrepid, and hardy natives of the north of Europe,
whether civilized or barbarous, would scarcely desire, or tolerate,
the indolent inactivity and luxurious indulgences of the Asiatics.
Nations, inhabiting the borders of the ocean, and accustomed to
maritime intercourse with other nations, would naturally require
institutions and laws, adapted to their pursuits and enterprises,
which would be wholly unfit for those, who should be placed in
the interior of a continent, and should maintain very differert re-
lations with their neighbors, both in peace and war. Accordingly
we find, that, from the earliest records of authentic history, there
has been (as far at least as we can trace them) little uniformity in
the laws, usages, policy, and institutions, either of contiguous or
of distant nations. The Egyptians, the Medes, the Persians, the
Greeks, and the Romans, differed not more in their characters and
employments from each other, than in their institutions and laws.
They had little desire to learn, or to borrow, from each other;
and indifference, if not contempt, was the habitual state of almost
every ancient nation in regard to the internal polity of all others.
§ 2. Yet even under such circumstances, from their mutual in-
tercourse with each other, questions must sometimes have arisen, as
to the operation of the laws of one nation upon the rights and rem-
edies of parties in the domestic tribunals, especially when they were
in any measure dependent upon, or connected with, foreign transac-
‘tions. How these questions were disposed of, we do not know. But
it is most probable, that they were left to be decided by the analogies
of the municipal code, or were abandoned to their fate, as belong-
ing to that large class of imperfect rights, which rests wholly on
personal confidence, and is left without any appeal to remedial jus-
tice. It is certain, that the nations of antiquity did not recognize
the existence of any general, or universal rights and obligations,
such as among the moderns constitute, what is now emphatically
called, the Law of Nations. Even among the Romans, whose
jurisprudence has come down to us in a far more perfect and com-
§1-24.] INTRODUCTORY REMARKS. 3

prehensive shape, than that of any other nation, there cannot be
traced out any distinct system of principles, applicable to interna-
tional cases of mixed rights. This has been in some measure ac-
counted for by Huberus! upon the supposition, that at the time
to which the Roman jurisprudence relates, the Roman dominion
extended over so great a portion of the habitable world, that fre-
quent cases of contrariety or conflict of laws could scarcely occur.?
But this is a very inadequate account of the matter; since. the an-
tecedent jurisprudence of Rome must have embraced many such
eases at earlier periods; and if there had been any rules, even tra-
ditionally known, to govern them, they could scarcely have failed
of being incorporated into the Civil Codes of Justinian. In many
of the nations, over which the Romans extended their dominion,
the inhabitants were left in possession of the local institutions,
usages, and laws, to a large extent; and commercial as well as
political intercourse must have brought many diversities of laws
and usages in judgment before the tribunals of justice.2 We have
the most abundant evidence on this head, in relation to the Jews,
after they had submitted to the Roman yoke, who were still per-
mitted to follow their own laws in the times of our Saviour, and
down to the destruction of Jerusalem.‘

§ 2a. When the northern nations by their irruptions finally
succeeded in establishing themselves in the Roman empire, and
the dependent nations subjected to its sway, they seem to have
adoped, either by design, or from accident, or necessity, the policy
of allowing the different races to live together, and to be governed
by and to preserve their own separate manners, laws, and insti-
tutions in their mutual intercourse. While the conquerors, the
Goths, Burgundians, Franks, and Lombards, maintained their own
laws and usages and customs over their.own race, they silently or
expressly allowed each of the races, over whom they had obtained
an absolute sovereignty, to regulate their own private rights and

1 2 Hub. lib. 1, tit. 3, p. 24.

? The language of Huberus is, “In j fare Romano non est mirum nihil hac de
re extare, cum populi Romani per omnes orbis partes diffusum, et equabili jure
gubernatum imperium, conflictui diversarum legum non eque potuerit esse sub-
jectum.” — 2 Hub. lib. 1, tit. 3, sect. 1.

% See 1 Hertii, Opera, § 4, de Collis. leg. p. 119, § 2; Id. p. 169, edit. 1716.

* There are traces to be found in the Digest of the existence and operation of

the Lex Loci. See Dig. lib. 50, tit. 1, 1. 21, § 7; Id. lib. 50, tit. 6, 1.5, $1; Id.
tit. 4, 1. 18, § 27; Id. tit. 3, 1.1; Livermore, Dissert. p. 1, n. a.
4 CONFLICT OF LAWS. [cH. L

affairs according to their own municipal jurisprudence. It has
accordingly been remarked, by a most learned and eminent jurist,
that from this state of society arose that condition of civil rights
denominated personal rights, or personal laws, in opposition to
territorial laws.

1 Savigny’s History of the Roman Law in the Middle Ages. The whole pas-
sage is exceedingly interesting and ‘curious; and therefore I quote it at large from
Mr. Cathcart’s Translation, Vol. 1, ch. 3, p. 99 to 104, — “ When the Goths, Bur-
gundians, Franks, and Lombards, founded kingdoms in the countries, formerly
subject to the power of Rome, there were two different modes of treating the
conquered race. They might be extirpated, by destroying or enslaving the free-
men ; or, the conquering nations, for the sake of increasing their own numbers,
might transform the Romans into Germans, by forcing on them their manners,
constitution, and laws, Neither mode, however, was followed; for, although
many Romans were slain, expatriated, or enslaved, this was only the lot of indi-
viduals, and not the systematic treatment of the nation. Both races, on the con-
trary, lived together, and preserved their separate manners and laws. From this
state of society arose that condition of civil rights, denominated personal rights,
or personal laws, in opposition to*territorial laws. The moderns always assume
that the law, to which the individual owes obedience, is that of the country where
he lives; and that the property and contracts of every resident are regulated by
the law of his domicil. In this theory, the distinction between native and foreigner
is overlooked, and national descent is entirely disregarded. Not so, however, in
the Middle Ages; where, in the same country, and often indeed in the same city,
the Lombard lived under the Lombardic, and the Roman under the Roman law.
The same distinction of laws was also applicable to the different races of Ger-
mans. The Frank, Burgundian, and Goth, resided in the same place, each un-
der his own law: as is forcibly stated by the Bishop Agobardus, in an Epistle to
Louis le Debonnaire. ‘It often happens,’ says he, ‘ that five men, each under a
different law, may be found walking or sitting together.’

“In the East-Gothic kingdom alone, this custom was not originally followed.
There, an artificial and systematic plan was adopted, which belongs to the par-
ticular history of that nation, and cannot be brought within the general inguiry.
All the other states followed the system of personal laws; and, this universal
practice could not have arisen from accidental reasons, but from common views,
principles, and wants. These may be appropriately illustrated at present.

“ According to the general opinion, the system of personal laws prevailed
among all the German nations, from the earliest times; and it is customary to
explain this circumstance by the love of freedom, so peculiar to these races. In
the first. place, however, it is difficult to perceive, how such an institution could
arise merely from regard to liberty. Such an attachment might, indeed, create a
wish among nations, or individuals to preserve their own laws, in a foreign coun-
try, or under a foreign yoke ; but the question is, how were the predominant peo-
ple induced to grant them this privilege? The benevolent and hospitable dispo-
sition of the victorious may have been partly the cause; but, their mere love of
freedom affords no satisfactory explanation. This humane treatment of foreign-
§ 2a, 26.] INTRODUCTORY REMARKS. 5

§ 2. Still, however, this was but a mere arrangement in the
domestic polity of each particular nation ; and even then, it must
often have involved serious embarrassments, whenever questions
arose in regard to conflicting rights, and claims, and remedies,
growing out of dealings, and acts, and contracts between individu-

ers was not deeply seated in the character of the old Germans. It is probable,
that among them every foreigner was, at first, a Wildfang, and belonged to the
class of the Biesterfreien ; — denied the advantages, arising from service in the
national army, or from the obligations of fealty, and living as an alien, unprotect-
ed by any power, except the weak hand of the general government; who, while
they excluded him from the rights of marriage, inherited his property, and exact-
ed his composition, if slain. Further, the want of such an institution, as the per-
sonal laws, could never have been felt, in a country without trade, and where few
foreigners resided. In these circumstances, its introduction was impossible. If
only a single Goth lived in the Burgundian Empire, none of his countrymen
could be found to administer Gothic law, and the Burgundians themselves were
entirely ignorant of it.

“ The truth is, that the want of such an institution, and the possibility of intro-.
ducing it, could occur only, after the nations were blended together in consider-
able masses. The internal condition of each kingdom would then produce what
could never have been brought about by mere benevolence toward individual for-
eigners. According to this account of the origin of the system of personal laws,
it prevailed in all the German States, settled in countries formerly subject to
Rome. At first, the validity of two laws only was admitted: e. g. the law of the
victorious race, and of the vanquished Romans. Individuals belonging to other
German nations, did not at first enjoy the right of living under their 6wn laws;
but when our supposed kingdom had extended its conquests, and spread out its
dominion over other German tribes, then the laws of the conquered German races
were acknowledged, in the same manner as the Roman formerly had been. Thus,
also, every foreign law, prevailing in the empire of the conqueror, was admitted
and considered as valid among all the vanquished. This practice ought to have
produced the following results. At first, in the northern parts of France, the
Frank and Roman laws must have been exclusively received ; and, under the
Carlovingian dynasty, it would become necessary to admit likewise the laws of
the West Goths, Burgundians, Alemans, Bavarians, and Saxons; because these,
as nations, belonged to the empire. Italy, however, did not forma a province un-
der the Franks, and there could not consequently be the same reason for admit-
ting the validity of Lombardic law within the Frank empire. In Italy, also, un-
der the Lombardic kings, only Lombardic and Roman law could have prevailed
to the exclusion of every other ; but after its conquest by the Franks, all the mul-
tifarious foreign laws, existing in the territory of the conquerors, must have been
introduced. Now, these anticipated results are supported by history ; and this
accordance is a strong practical confirmation of that account of.the origin of'per-
sonal laws already established by general reasoning.” — The same passage will
be found in Mr. Guenoux’s French translation of the same work, Vol. 1, ch. 3,

p. 84 to 88, edit. 1830; Id. ch. 3, § 30, edit. 1839,
1*
6 CONFLICT OF LAWS. (cH. 1.

als belonging to different races. But when the question assumed
a more comprehensive character, and the point to be decided was,
what rule should prevail, where there was a conflict of laws be-
tween different sovereignties, wholly independent of each other;
and there were rights to be established of a private nature between
some of the subjects of each sovereignty ; there was no recognized
principle or practice, which was promulgated by all, or submitted
to by all. Such rights were probably left without any remedy,
and became either the subject of porate adjustment, or were si-
lently disregarded.

§3. The truth is, that the Law of Nations, strictly so called,
was in a great measure unknown to antiquity, and is the slow
growth of modern times, under the combined influence of Chris-
tianity and commerce.! It is well known, that when the Roman
Empire was destroyed, the Christian world was divided into many
independent sovereignties, acknowledging no common head, and
connected by no uniform civil polity. The invasions of the barba-
rians of the North, the establishment of the feudal system in the
Middle Ages, and the military spirit and enterprise cherished by
the Crusades, struck down all regular commerce, and surrendered
all private rights and contracts to mere despotic power. It was
not until the revival of commerce on the shores of the Mediterra-
nean, and the revival of letters and the study of the civil law by
the discovery of the Pandects, had given an increased enterprise
to maritime navigation, and a consequent importance to maritime
contracts, that anything like a system of international justice be-
gan to be developed. It first assumed the modest form of commer-
cial usages ; it was next promulgated under the more imposing
authority of royal ordinances; and it finally became by silent
adoption a generally connected system, founded in the natural
convenience, and asserted by the general comity of the commercial
nations of Hurope. The system, thus introduced for the purposes
of commerce, has gradually extended itself to other objects, as the
intercourse of nations has become more free and frequent. New
rules, resting on the basis of general convenience, and an enlarged
sense of national duty, have, from time to time, been promulgated
by jurists, and supported by courts of justice, by a course of juridi-
cal reasoning, which has commanded almost universal confidence,

* See 1 Ward, Law of Nations, ch. 6, p. 171 to 200; Id. ch. 3, p. 120 to
130.
§2b-5.] INTRODUCTORY REMARKS. 7

respect, and obedience, without the aid, either of municipal stat-
utes, or of royal ordinances, or of international treaties.

§ 4. Indeed, in the present times, without some general rules
of right and obligation, recognized by civilized nations to govern
their intercourse with each other, the most serious mischiefs and
most injurious conflicts would arise. Commerce is now so abso-
lutely universal among all countries ; the inhabitants of all have~
such a free intercourse with each other ; contracts, sales, mar-
riages, nuptial settlements, wills, and successions, are so common
among persons, whose domicils are in different countries, having
different and even opposite laws on the same subjects ; that with-
out some common principles adopted by all nations in this regard,
there would be an utter confusion of all rights and remedies; and
intolerable grievances would grow up to weaken all the domestic
relations, as well as to destroy the sanctity of contracts and the se-
curity of property.? 2

§ 5. A few simple cases will sufficiently illustrate the importance
of some international principles in matters of mere private right
and duty. Suppose a contract, valid by the laws of the country,
where it is made, is sought to be enforced in another country,
where such a contract is positively prohibited by its laws ; or, vice
versd, suppose a contract invalid by the laws of the country, where
it is made, but valid by that of the country, where it is sought to
be enforced ; it is plain, that unless some uniform rules are adopt-
ed to govern such cases, (which are not uncommon,) the grossest
inequalities will arise in the administration of justice between the
subjects of the different countries in regard to such contracts.
Again; by the laws of some countries marriage cannot be con-
tracted until the parties arrive at twenty-one years of age ;
in other countries not until they arrive at the age of twenty-five
years. Suppose a marriage to be contracted between two persons
in the same country, both of whom are over twenty-one years but
less than twenty-five, and one of them is a subject of the latter
country. Is such a marriage valid, or not? If valid in the coun-
try, where it, is celebrated, is it valid also in the other country ?
Or, the question may be propounded in a still more general form ;

1 Boullenois, in his Preface, (1 vol. p. 18,) says, “ Il regnera donc toujours entre
les nations une contrariété perpetuelle de loix ; peut-étre regnera-t-elle perpetu-
ellement entre nous sur bien des objects. Dela la nécessité de s’instruire des régleg

et des principes qui peuvent nous conduire dans la décision des questions, que
cette variété peut faire naitre.”
8 CONFLICT OF LAWS [cu. 1.

is a marriage, valid between the parties in the place where it is
solemnized, equally valid in all other countries? Or, is it obliga-
tory only as a local regulation, and to be treated everywhere else
as a mere nullity ?

§6. Questions of this sort must be of frequent occurrence, not
only in different countries, wholly independent of each other, but
also in provinces of the same empire, which are governed by dif-
ferent laws, as was the case in France before the Revolution ; and
also in countries acknowledging a common sovereign, but yet or-
ganized as distinct communities, as is still the case in regard to
the communities composing the British Empire, the Germanic
Confederacy, the States of Holland, and the dominions of Austria
and Russia.! Innumerable suits must be litigated in the judicial
forums of these countries and provinces and communities, in which
the decision must depend upon the point, whether the nature of a
contract should be determined by the law of the place, where it is
litigated ; or by the law of the domicil of one or of both of the
parties; or by the law of the place, where the contract is made;
whether the capacity to make a testament should be regulated by
the law of the testator’s domicil, or that of the location (situs) of
his property ; whether the form of his testament should be pre-
scribed by the law of the place of his domicil, or by that of the
location of his property, or by that of the place, where the testa-
ment is made; and in like manner, whether the law of the domi-
cil, or what other law should govern in cases of succession to in-
testate estates.”

§ 7. It is plain, that the laws of one country can have no intrin-
sic force, proprio vigore, except within the territorial limits and
jurisdiction of that country. They can bind only its own subjects,
and others, who are within its jurisdictional limits; and the latter
only, while they remain therein. No other nation, or its subjects,
are bound to yield the slightest obedience to those laws. What-
ever extra-territorial force they are to have, is the result, not of
any original power to extend them abroad, but of that respect,
which from motives of public policy other nations are disposed to
yield to them, giving them effect, as the phrase is, sub mutue vicis-
situdinis obtentu, with a wise and liberal regard to common conven-
ience and mutual benefits and necessities. Boullenois has laid down

? See 1 Froland, Mémoires sur les Statuts, P. 1, ch. 1, § 5 to 10.
* Livermore, Dissert. 3, 4; Merlin, Répert. Statut.
§5-9.] INTRODUCTORY REMARKS. 9

the same exposition as a part of his fundamental maxims. “ Of
strict right,” (says he,) “all the laws made by a sovereign have
no force or authority, except within the limits of his domains.
But the necessity of the public general welfare has introduced
some exceptions in regard to civil commerce.” De droit étroit,
toutes les lois, que fait un souverain, wont force et autorité que
dans V étendue de sa domination; mais la nécessité du bien public
et général des nations a admis quelques exceptions dans ce qui re-
garde le commerce civil! = -

§ 8. This is the natural principle flowing from the equality and
independence of nations. For it is an essential attribute of every
sovereignty, that it has no admitted superior, and that it gives the
supreme law within its own dominions on all subjects appertaining
to its sovereignty. What it yields, it is its own choice to yield ;
and it cannot be commanded by another to yield it as matter of
right. And, accordingly, it is laid down by all publicists and ju-
rists, as an incontestable rule of public law, that one may with im-
punity disregard the law pronounced by a magistrate beyond his
own territory. Hztra territorium jus dicenti impune non paretur,
is the doctrine of the Digest ;? and it is equally as‘true in relation
to nations, as the Roman law held it to be,in relation to magis-
trates. The other part of the rule is equally applicable ; Idem est,
et si supra jurisdictionem suam velit jus dicere ; for he exceeds his
proper jurisdiction, when he seeks to make it operate extra-terri-
torially as a matter of power. Vattel has deduced a similar con-
clusion from the general independence and equality of nations,
very properly holding, that relative strength or weakness cannot
produce any difference in regard to public rights and duties; that
whatever is lawful for one nation, is equally lawful for another ;
and whatever is unjustifiable in one, is equally so in another.
And he affirms in the most positive manner, (what indeed cannot
well be denied,) that sovereignty, united with domain, establishes
the exclusive jurisdiction of a nation within its own territories, as
to controversies, to crimes, and to rights arising therein.

Ԥ9. The jurisprudence, then, arising from the po of the

1 1 Boullenois, Prin. Gén. 6, p. 4.

? Dig. lib. 2,’tit. 1, 1. 20; Pothier, Pand. lib. 2, tit. 1, n. 7.

® Dig. lib. 2, tit. 1, 1. 20; Pothier, Pand. lib. 2, tit. 1, n. 7.

* Vattel, Prelim. § 15 to 20; Id. B. 2, ch. 3, § 35, 36; The Le Louis, 2 Dod-

son, R. 210. ;
5 Vattel, B. 2, ch. 7, § 84, 85.
10 CONFLICT OF LAWS. {cu. 1.

laws of different nations, in their actual application to modern
commerce and intercourse, is a most interesting and important
branch of public law. To no part of the world is it of more in-
terest and importance than to the United States, since the union
of a national government with already that of twenty-six distinct
States, and in some respects independent States, necessarily cre-
ates very complicated private relations and rights between the citi-
zens of those States, which call for the constant administration of
extra-municipal principles. This branch of public law may, there-
fore, be fitly denominated private international law, since it is
chiefly seen and felt in its application to the common business of
private persons, and rargly rises to the dignity of national negoti-
ations, or of national controversies.

§ 10. The subject has never been systematically treated by writ-
ers on the common law of England ; and, indeed, seems to be of
very modern growth in that kingdom; and can hardly, as yet, be
deemed to be there cultivated, as a science, built up and defined
with entire accuracy and precision of principles. More has been
done to give it form and symmetry within the last fifty years, than
in all preceding time. But much yet remains to be done, to make
it, what it ought to be, in a country of such vast extent in its
commerce, and such universal reach in its intercourse and polity?

§ 11. The civilians of continental Europe have examined the
subject in many of its bearings with a much more comprehensive
philosophy, if not with a more enlightened spirit. Their works,
however, abound with theoretical distinctions, which serve little
other purpose than to provoke idle discussions, and with metaphys-
ical subtilties which perplex, if they do not confound, the inquirer.
They are also mainly addressed to questions intimately connected
with their own provincial or municipal laws and customs, some of
which are of a purely local, and others of a technical and peculiar
character; and they do not always separate those considerations
and doctrines, which belong to the elements of the general science,

1 The civilians are accustomed to call the questions arising from the conflict of
foreign and domestic laws mixed questions, questions miztes. 1 Froland, Mémoires
des Statuts, ch: 1, § 9, p. 133 Id. ch. 7, § 1, p- 155.

? Mr. Chancellor Kent has remarked, that these topics of international law
were almost unknown in the English courts, prior to the time of Lord Hardwicke
and Lord Mansfield ; and that the English lawyers seem generally to have been

strangers to the discussions on foreign law by the celebrated jurists of continental
Europe. 2 Kent, Comm. Lect. 39, p- 455, 3d edit.
§9-12.] INTRODUCTORY REMARKS. 11

from those, which may be deemed founded in particular national
interests and local ordinances. Precedents, too, have not, either
in the courts of continental Europe, or in the juridical discussions
of its eminent jurists, the same force and authority, which we,
who live under the influence of the common law, are accustomed
to attribute to them; and it is unavoidable, that many differences
of opinion should exist among them, even in relation to leading
principles. But the strong sense and critical learning of the best
minds among foreign jurists have generally maintained those doc-
trines which at the present day are deemed entirely persuasive and
satisfactory with us, who live under the common law, as well for
the solid grounds, on which they rest, as for the universal appro-
bation, with which they are entertained by courts of justice.

§ 12. In their discussions upon this subject the civilians have
divided statutes into three classes, personal, real, and mixed. By
statutes, they mean, not the positive legislation, which in England
and America is known by the same ‘name, namely, the acts of par-
liament and of other legislative bodies, as contradistinguished from
‘the common law; but the whole municipal law of the particular
state, from whatever source arising.2, Sometimes the word is used
by them in contradistinction to the imperial Roman law, which
they are accustomed to style, by way of eminence, the comMMON
LAW, since it constitutes the general basis of the jurisprudence of
all continental Europe, modified and restrained by local customs

1 The late Mr. Livermore, (whose lamented death occurred in July, 1833,) in
his learned Dissertations on the Contrariety of Laws, printed at New Orleans in
1828, has enumerated the principal continental writers, who have discussed this
subject at large. I gladly refer the reader to these Dissertations, as very able
and clear. There is also a catalogue of the principal writers in Boullenois, Traité
des Statuts, Preface, Vol. 1, p. 29, note (1); in Dupin’s edition of Camus, Pro-
fession d’Avocat, Vol. 2, tit. 7, § 5, art. 1561 to 1566; in Froland, Mémoires con-
cernans les Qualités des Statuts, Vol. 1, P. 1, ch. 2, p. 15; in Bouhier, Coutum.
de Bourg. Vol. 1, ch. 23, p. 450; and in Mr. Burge’s recent Commentaries on
Colonial and Foreign Law, Pt. 1, ch.1, p. 6 to 32. In the preparation of these
Commentaries I have availed myself chiefly of the writings of Rodenburg, the
Voets (father and son), Burgundus, Du Moulin (Molinaeus), Froland, Boullenois,
Bouhier, and Huberus, as embracing the most satisfactory illustrations of the lead-
ing doctrines. My object has not been to engage in any critical examination of
the comparative merits or mistakes of the different commentators ; but rather to
gather from each of them what seemed most entitled to respect and confidence.

® Bouhier, Coutum. de Bourg. Vol. 1, p. 173 to 179, § 9 to 32; 1 Hertii, Ope-
ra, De Collisione Legum, § 4, art. 5, p. 121; Id. p. 172, edit. 1716.
12 CONFLICT OF LAWS. [on. 1.

and usages, and positive legislation.1 Paul Voet says: Sequitur
jus particulare, seu non commune, quod uno vocabulo usitatissimo
Statutum dicitur, quasi statum publicum tuens.2 Appellatur etiam
jus municipale. Etiam in jure nostro dicta lex, seu lex municipii,
quemadmodum in genere signat jus commune® And he defines it
thus: Est jus particulare ab alio legislatore quam Imperatore
constitutum. Dico, jus particulare, in quantum opponitur juri
communi, non prout est gentium et-naturale, sed prout est jus civile
Romanorum, populo Romano commune, et omnibus, qui illo populo
parebant.. Additur, ab alio legislatore, cum qui statuta condit,
recte et suo modo. legislator appelletur, ut ipsa statuta leges dicun-
tur municipiorum. Et quidem, ab alio, quia regulariter statuta non
condit Imperator; excipe, nisi municipibus jura det, statuta pre-
scribat, secundum que ipsi sua regant municipia.® Denique adjici-
tur, quam imperatore, quod licet Imperator solummodo dicatur
legislator, id tamen, non alio sensu obtineat, quam quod suis legi-
bus non hunc aut illum popilum, verum omnes constringat, quos
su@ clementie regit imperium.” Merlin says: “ This term statute,
is generally applied to all sorts of laws and regulations. Every
provision of law is a statute, which permits, ordains, or prohibits
anything.” Ce terme, (statut,) s’applique en général @ toutes
sortes de lois et de réglemens. Chaque disposition d’une loi est un
statut, qui permet, ordonne, ou défend quelque chose 8

§ 18. The civilians have variously defined the different classes
of statutes or laws. The definitions of Merlin are sufficiently clear
and explicit for all the purposes of the present work, and will
therefore be here cited. The distinctions between the different
classes are very important to be observed in consulting foreign
jurists, since they have been adopted by them from a very early
period, and pervade all their discussions. Personal statutes are
held by them to be of general obligation and force everywhere ;

1 Bouhier, Coutum., de Bourg. Vol. 1, p. 175, 178, § 16, 28, 29.

* P. Voet, de Statut. § 4, ch. 1,§ 1; Id. p. 128, edit. 1661.

8 Thid.

* P. Voet, de Statut. § 4, ch. 1, § 2; Id. p. 124, edit. 1661.

5 Thid.

® Voet, de Statut. § 4, ch. 1, § 2; Id. p. 125, edit. 1661.

" P. Voet, de Statut. § 4, ch. 1, § 2; Id. p, 125, edit. 1661; Id. § 1, ch. 4; Jd
p. 35, edit. 1661; Liverm. Dissert. II. p. 21, note (b), edit. 1828.

* Merlin, Répertoire, art. Statut. Vol. 31, edit, 1828, Bruxelles; Saul v. His
Creditors, 17 Martin, R. 569, 589.
.§12, 18.] INTRODUCTORY REMARKS. 13

but real statutes are held to have no extra-territorial force or obli-
gation.?,. “Personal statutes,” (says Merlin,) “are those, which
have principally for their object the person, and treat only of prop-
erty (biens)? incidentally (accessoirement) ; such are those, which
regard birth, legitimacy, freedom, the right of instituting suits,
majority as to age, incapacity to contract, to make a will, to plead
-in proper person, etc. Real statutes are those, which have prin-
‘cipally for their object property (bien), and which do not speak of
persons, except in relation to property ; such are those which con-
.cern the disposition, which one may make of his property, either
while he is living, or by testament. Mixed statutes are those,
which concern at once persons and property.”” But Merlin adds,
“that in this sense almost all statutes are mixed, there being
scarcely any law relative to persons, which does not at the same
time relate to things.”5 He, therefore, deems the last classifica-
tion unnecessary, and holds, that every statute ought to receive its
denomination according to its principal object. As that object is
real, or personal, so ought the quality of the statute to be deter-
-mined.® But this distribution into three classes is usually adopted,
precisely as it is.stated. by Rodenburg:— Aut enim statutum sim-.
pliciter disponit de personis; aut solummodo de rebus; aut con-
junctim de utrisque.”. And he proceeds to explain this division in
1 Rodenburg, De Statut. Divers. c. 3 P- 7; 1 Froland, Mémoires des Statuts, ch.
7, § 1, 2.
aa term “biens,” in the sense of the civilians and continental jurists, com-
prehends not merely goods and chattels, as in the common law, but real estate.
But the distinction between movable and immovable property, is nevertheless rec-
ognized by them, and gives rise in the civil law, as well as in the common law, to
many important distinctions as to rights and remedies.
® See Pothier, Coutum. d’Orléans, ch. 1, § 1, art. 6.
* See Pothier, Coutum. d’Orléans, ch. 1, § 2, art. 21.
5 Merlin, Répertoire, Statut.; Id. Autorisation Maritale, § 10.
® Ibid.
7 Rodenburg, De Statut. Diversitate, ch. 2, p.4; Le Brun. Traité de la Com-
munauté, Liv. 2, ch. 8, § 20 to § 48; Bouhier, Coutum. de Bourg. ch. 21 to ch.
87; Voet, de Statut. § 4, ch. 2, p. 116 to p. 124; Id. p. 129 to p. 143, edit. 1661;
Livermore, Dissert. § 65 to § 162; 1 Froland, Mémoires, Qualité des Statuts, P.
1, ch. 3, p. 25; Id. ch. 4, p. 49, ch. 5, p. 81, ch. 6, p. 214; Boullenois, Traité des
Statuts, vol. 1, preface, p. 22; Pothier, Coutum. d’Orléans, ch. 1, § 1, art. 6,7, 8.—
Boullenois distributes all statutes into three classes: “Ou le statut dispose sim-
plement des personnes; ou il dispose simplement des choses; ou il dispose tout &
la fois des personnes et des choses.” 1 Boullenois, Traité des Statuts réels et
‘ personnels, tit. 1, ch. 2, obs. 2, p. 25; Id. Prine. Gén. p. 4, 6. Mr. Henry, in his
CONFL. 2
14 CONFLICT OF LAWS. [cn..1.

the following manner. Que ita constrictim dicta sic habentur ex.
plicatiis: Aut universus persone status, aut conditio in dispositione
statuti vertitur, citra ullam rerum adjectionem, adeoque de personis
agitur in abstracto, absque ullé consideratione rerum; ut, verbi
gratia, quoto quis ztatis anno fui Juris sit, quando exeat paren-
tum potestate; de quibus et consimilibus exemplis mox fusius. Aut
in solas nudasque res statuti dispositio dirigitur, ut nullum inter-
venire necesse sit actum hominis, aut aliquam concurrere persone
operam; cujusmodi sunt, quibus rerum successionibus ab intestato
Jus ponitur; ut bona materna cedant maternis, paterna paternis,
nothi succedant matribus, non succedant patribus ; quando succeda-
tur in stirpes, quando in capita; que Jura successionum ab intes-
tato appellaveris. Aut permittit denique, vetat, aut ordinat, actum
@ personis circa res peragendum, ex utriusque complexu construc-
tum Statutum, contra quod, ut queat committi quippiam, persone
actum intervenire necesse est. Quo pertinet. Sine indulto Prin
cipis derebus suis nemo testator; conjuges sibi invicem non leganto;
vir citra consensum uxorium res soli non alienato.

§ 14. In the application of this classification to particular cases,
there has been no inconsiderable diversity of opinion among the
civilians. What particular statutes are to be deemed personal,
and what real; when they may be said principally to regard per-
sons, and when principally to regard things ; these have been
vexed questions, upon which much subtlety of discussion, and
much heat of controversy have been displayed. The subject is in
itself full of intrinsic difficulties; but it has been rendered more
perplexed by metaphysical niceties and over-curious learning.
Dissertation on Personal, Real, and Mixed Statutes, has adopted the like distribu-
tion, without any acknowledgment of the source, (Boullenois,) from which he has
drawn all his materials. See Henry on Personal and Real Statutes, ch. 1, § 2 to
ch. 3, § 1, p. 2 to 33. See algo Livermore’s Dissert. 2, § 65 to § 162, p. 62 to
106; Id. § 168, p. 109. Mr. Justice Porter, in delivering the opinion of the Su-
preme Court of Louisiana, in the case of Saul v. His Creditors, (17 Martin, R.
569, 590,) said, that foreign jurists, by a personal statute, mean that, which fol-
lows, and governs the party subject to it, wherever he goes; and a real statute is
that, which controls things, and does not extend beyond the limits of the country,

from which it derives its authority. Is not this a description of the effect of such
statutes, rather than a definition of their nature? See Id. 593.

* Rodenburg, De Statut. Divers. ch. 2, p. 4, (2 Boullenois, Appendix, p. 4.)

* See 1 Boullenois, tit. 1, ch. 1, Observ. 2, p. 16, &c.; Id. ch. 2, Obs. 5, p. 114
to 122; 1 Froland, Mém. des Stat. ch. 2, p. 15; 2 Kent, Comm. Lect. 39, p. 453
to 457, (3d edit.) ; Saul v. His Creditors, 17 Martin, R. 569 to 596; Henry on
§138, 14.] INTRODUCTORY REMARKS. 15

Hertius admits, that these subtilties have so perplexed the subject,
that it is difficult to venture even upon an explanation. His lan-
guage is: De collisu legum anceps, difficilis, et late diffusa est dis-
putatio, quam nescio, an quisquam explicare totam aggressus
fueritt) And in another place, he adds: Ceterum Junioribus ple-
risque placuit distinctio inter statuta, realia, personalia, et mixta.
Verum in tis definiendis mirum est, quam sudant Doctores2 Bar-
tolus has furnished a memorable example of these niceties. After
remarking upon the distinction between personal and real statutes,
and the mode of distinguishing the one from the other, and that
in England the custom obtains of the eldest son’s succeeding to
all the property, he says: Mihi videtur, quod verba statuti seu con-
suetudinis, sunt diligenter intuenda. Aut illa disponunt circa res ;

Foreign Law, ch. 3, p. 23, &c. — The Supreme Court of Louisiana have made
some very just remarks on this subject. ‘“ We are led,” (says Mr. Justice Porter,
in delivering the opinion of the court,) “into an examination of the doctrine of
real and personal statutes, as it is called by the continental writers of Europe; a
subject the most intricate and perplexed of any, that has occupied the attention
of lawyers and courts; one on which scarcely any writers are found entirely to:
agree, and on which it is rare to find one consistent with himself throughout. We
know of no matter in jurisprudence so unsettled, or none, that should more teach
men distrust of their own opinions, and charity for those of others.” Saul v. His
Creditors, (17 Martin, R. 569, 588.) Chancellor D’Aguesseau has attempted a
definition, or test, of real and personal laws. He says: “ The true principle in
this matter is, to examine, if the statute has property directly for its object, or its
destination to certain persons, or its preservation in families, so that it is not the
interest of the person, whose rights or acts are examined, but the interests of oth-
ers, to whom it is intended to assure the property, or the real rights, which were
the cause of the law. Or, if, on the contrary, all the attention of the law is di-
rected towards the person, to provide in general for his qualifications, or his gen-
eral absolute capacity, as when it relates to the qualities of major or minor, or
father or son, of legitimate or illegitimate, of ability or inability to contract, by
reason of personal causes. In the first hypothesis, the statute is real; in the sec-
ond, it is personal.” Cited in 17 Martin, R. p. 594; D’Aguesseau, (Euvres, tom.
4, p. 660, 4to edit. How unsatisfactory is this description, when applied in prac-
tice.

1 1 Hertii, Opera, De Collis. Legum, §1,n.1, p. 91; Id. § 4, n. 3, p. 121, 122;
Id. p. 129, and p. 170, edit. 1716.

* 1 Hertii, Opera, § 4, n. 8, p. 120; Id. p. 170, edit. 1716. See also 1 Froland,
Mém. Qualité des Statut. ch. 3 to ch. 7; Bouhier, Coutum. de Bourg. ch. 23,
§ 58, 59. — Mr. Livermore has given a concise view of the various opinions of for-
eign jurists on this subject, which will well reward a diligent perusal. Liverm.
Dissert. 2, § 65 to § 162. His own opinions, which exhibit great acuteness, will
also be found in the same work from § 163 to § 214. The subject is very amply
discussed in Froland, Boullenois, Bouhier, Le Brun, and Rodenburg.
16 CONFLICT OF LAWS. (ou. 1

ut per hec verba, “‘ Bona decedentis, ut veniant in Primogenitum” ;
et tunc de omnibus bonis judicabo secundum usum et statutum, ubi
res sunt situate, quia jus affecit res tpsas, sive possideantur @ cive,
sive ad abvena. Aut verba statuti seu consuetudinis disponent circa
personas; ut per hec verba; “ Primogenitus succedat’’; et tune,
aut ille talis decedens non erat de Anglia, sed ibi haberet posses-
siones; et tunc tale statutum ad eum et ejus filios non porrigitur,
quia dispositio circa personas non porrigitur ad forenses. Aut:
talis decedens erat Anglicus, et tunc filius primogenitus succederet
in bonis, que sunt in Anglia, et in aliis succederet de jure communi.
So that, according to Bartolus, if a statute declares in words, that’
“The estate of the intestate shall descend to the eldest son,”
(Bona decedentis ut veniant in primogenitum), it is a real statute ;
if it says in words, that “‘ The eldest son shall succeed to the es-
tate,’ (Primogenitus succedat), it is a personal statute.? This
distinction has been justly exploded by other civilians, as the mere
order and construction of the words of the statute, and not its ob-
jects, would otherwise decide its character.® '

1 Bartolus, ad Cod. Lib. 1, tit. 1, De Sum. Trinit. 1. 1, Cunctos populus, n. 42;
Liverm. Dissert. § 68, 69, p. 63, 645; 1 Boullenois, Observ. 2, p. 16, 17. — The téxt
of Bartolus, in the only edition to which I have access, (Venet. 1602,) abounds
exceedingly in abbreviations, so that in some few instances I am not perfectly
sure, that I have given the exact word..

2 1 Boullenois, tit. 1, ch. 1, Obs. 2, p. 16,17; Liverm. Dissert. § 3, p. 22, 28; Id.
§ 67, 68, p. 62, 63; Mr. Justice Porter in the case of Saul v. His Creditors, 17
Martin, R. 569, 590 to 595; Burgundus, Tract. 1, § 4, p. 16; Stockman, Decis.
125, § 8, p. 268.

8 Jbid. p. 19; Liverm. Dissert. 2, § 67,68; Id. § 69 to 77; 1 Froland; Mém.
Statut. P. 1, ch. 3, § 3,4; Bouhier, Coutum. de Bourg. ch. 53, § 58 to 99. — The
opinion of the court by Mr. Justice Porter, in Saul v. His Creditors, 17 Martin,
R. 569, 590 to 596, illustrates this subject in a very striking manner. “ Accord-
ing to the jurists,” (says he,) “ of those countries, a personal statute is that, which
follows and governs the party subject'to it wherever he goes. The real statute
controls things, and does not extend beyond the limits of the country, from which
it derives its authority. The personal statute of one country controls the personal
statute, of another country, into which a party once governed by the former, or
who may contract under it, should remove. But it is subject to a real statute of
the place, where the person subject to the personal should fix himself, or where
the property on which the contest arises, may be situated. So far the rules are
plain and intelligible. But the moment we attempt to discover from these writ-
ers, what statutes are real, and what are personal, the most extraordinary confu-
sion is presented. Their definitions often differ, and when they agree on their
definitions, they dispute as to their application. Bartolus, who was one of the ‘first;
by whom this subject was examined, and the most distinguished jurist of his day,
§ 14, 15.] INTRODUCTORY REMARKS. 17

§ 15. Le Brun says, that in order to ascertain whether a statute
is personal or not, it is necessary to examine whether it universally

established as a rule, that, whenever the statute commenced by treating of per-
sons, it was a personal one; but if it began by disposing of things, it was real.
So that if a law, as the counsel for the appellants has stated, was written thus:
‘ The estate of the deceased shall be inherited by the eldest son,’ the statute was
real’; but if it said, ‘The eldest son shall inherit the estate,’ it was personal. This
distinction though purely verbal, and most unsatisfactory, was followed for a long
time, and sanctioned by many, whose names are illustrious in the annals of juris-
prudence ; but it was ultimately discarded by all. D’Argentré, who rejected
this rule, to real and personal statutes added a third, which he called mixed. The
real statute, according to this writer, is that which treats of immovables; In quo
de rebus soli, id est immobilibus agitur. And the personal, that which concerns
the person abstracted from things ; Statutum personale est. illud, quod afficit per-
sonam universaliter, abstracte ab omni materia reali. The mixed he states to be
one, which concerns both persons and things. D’Argentré, Comm. ad Leg. Brit.
des Donat. art. 228, n. 5 ton. 9; tom. 1, p. 648. This definition of D’Argentré
of a personal statute has been adopted by every writer, who has treated of this
matter. A long list of them, amounting to twenty-five, is given by Froland, in
his Mémoires concernans la Qualité des Statuts, among which are found Burgun-
dus, Rodenburg, Stockmans, Voet, and Dumoulin. (Froland, Mémoires concern-
ans la Qualité de Status, ch. 5, No. 1.) But the definition, which he has given
of a real statute, does not seem to have been so generally adopted. It was, how-
ever, followed by Burgundus, Rodenburg, and Stockmans. Boullenois, who is
one of the latest writers, attacks the definitions given by D’Argentré, and, as he
supposes, refutes them ; he adds others, which appear to be as little satisfactory,
as those he rejects. He divides personal statutes into personal particular, and
personal universal ; personal particular he subdivides again into pure personal,
and personal real. (Boullenois, Traité de la Personalité et de la Réalité des lois,
tit. 1, cap. 2, Obs. 4, p. 44 to 52.) Voet has two definitions, one, that a real
statute is that, which affects principally things, though it also relates to persons ;
and the other, that a personal statute is that, which affects principally persons,
although it treats also of things. It would be a painful and a useless task, to fol-
low these authors through all their refinements. President Bouhier, who wrote
about the same time as Boullenois, and who has treated the subject as extensive-
ly as any other writer, after quoting the definitions just given, and others, says,
that they are all defective, and that he cannot venture on any, until the world
are more agreed what statutes are real, and what are personal. While they re-
main so uncertain, he thinks the best way is to follow the second definition of.
Voet, which is; ‘that a real statute is that, which does not extend beyond the
territory within which it is passed, and a personal is that, which does.’ (Bouhier,
sur les Coutumes de Bourgogne, ch. 23, No. 59.) This last mode of distinguishing
statutes, which teaches us, what effect a statute should have, by directing us to
inquire what effget it has, is quite as unsatisfactory as the rule given by Bartolus,
who judged of it by the words with which it commenced. The rules given by
Chancellor D’Aguesseau are perhaps preferable to any other. ‘That,’ says he,
‘which truly characterizes a real statute, and essentially distinguishes it from a
2*
18 CONFLICT OF LAWS. {cH. 1

governs the state of the person, independent-of property. If it
does not universally govern the state of the person, but.only par-
ticular acts of the person, it is not personal. Thus, a. statute,
which prohibits married persons from making donations to each
other, is purely real and local; because it regulates a particular

personal one, is not, that it should be relative to certain personal circumstances,
or certain personal events; otherwise, we should be obliged to say, that the stat-
utes which relate to the paternal power, the right of wardship, the tenancy, by.
courtesy, (droit de viduité,) the prohibition of married persons to confer advan-
tages on each other, are personal statutes, and yet it is clear, in our jurisprudence;
that they are considered as real statutes, the execution of which is regulated, not
‘by the place of domicil, but by that, where the property is situated. The true
principle in this matter is, to examine if the statute has property directly for its
object, or its destination to certain persons, or its preservation in families, so that
it is not the interest of the person, whose rights or acts are examined, but the in-
terest of others, to whom it is intended to assure the property, or the real rights
which were the cause of the law. Or, if, on the contrary, all the attention of the
law is directed towards the person, to provide in general for his qualifications, or
his general and absolute capacity ; as, when it relates to the qualities of major or
minor, of father or of son, legitimate or illegitimate, ability or inability to contract,
by reason of personal causes.’ ‘In the first hypothesis the statute is real, in the
second it is personal, as is well explained in these words of D’Argentré: “Cum
statutum non simpliciter inhabilitat, sed ratione fundi aut juris realis alterum re-
spicientis extra personas contrahentes, totas hanc inhabilitatem non egredi locum
statuti.”’ (Ciuvres, D’Aguesseau, Vol. 4, 660, cinquante-quatriéme plaidoyer.)
This definition is, we think, better than any of the rest; though even in the ap-
plication of it to some cases, difficulty would exist. If the subject had been sus-
ceptible of clear and positive rules, we may safely believe this illustrious man
would not have left it in doubt; for if anything be more remarkable in him than
his genius and his knowledge, it is the extraordinary fulness and clearness, with
which he expresses himself on all questions of jurisprudence. When he, there;
fore, and so many other men, of great talents and learning, are thus found to fail
in fixing certain principles, we are forced to conclude, that they have failed, not
from want of ability, but because the matter was not stisceptible of being settled
on certain principles. They have attempted to go too far; to define and fix that,
which cannot in the nature of things be defined and fixed. They seem to have
forgotten, that they wrote on a question, which touched the comity of nations, and
that, that comity is, and ever must be, uncertain ; that it must necessarily depend
on a variety of circumstances, which cannot be reduced within any certain rule;
that no nation will suffer the laws of another to interfere with her own, to the in-
jury of her citizens; that, whether they do or not, must depend upon the condi-
tion of the country, in which the foreign law is sought to be enforced, the particu-
lar law of her legislation, her policy, and the character of her institutions ; that
in the conflict of laws, it must be often a matter of doubt, whit should prevail,
and that, whenever that doubt does exist, the court, which decides, will prefer the
laws of its own country to that of the stranger.”
§ 15, 16.] “INTRODUCTORY REMARKS. ' 19

act only. And a statute to be personal, must regulate the state
of the person without speaking of property, (biens). Thus, a stat-
ute which excludes females from inheriting fiefs, in favor of males ;,
or, which excludes a beneficiary heir from the succession, in favor
of the simple heir; or, which excludes a daughter, who is endowed,
from the succession, is real and local; for all these-statutes speak
of property. For the same reason, he holds the Senatés-consultum:
Velleianum, by which a married woman was prohibited from bind-
ing herself for the debt of another person,! (and which was bor-
rowed from the Roman law into the customary jurisprudence of
some of the French provinces), to be a real statute; because it
regulates a particular act of the person only.? And he adds, that.
the definition, of a real statute results from that of a personal stat-
ute. In one word, a statute is real which aicoagie a particular
act of the person, or which speaks of property.? Other jurists of
distinguished reputation (among whom is Boullenois) have denied
this to be a sound distinction; and have specially held the Sena-
tds-consultum Velleianum to be a personal statute.*

§ 16. It is not my design to engage in the controversy, as to
what constitutes the true distinction between personal statutes and
real statutes, or, to examine the merits of the various systems: pro-
pounded by foreign jurists on this subject. It would carry me too
far from the immediate purpose of these commentaries, even if I
felt myself possessed (which I certainly do not) of that critical
skill and learning, which such an examination would require, in
order to, treat the subject with suitable dignity. My object is
rather to present the leading principles upon some of the more im-
portant topics of private international jurisprudence, and to use
the works of the civilians, to illustrate, confirm, and expand the
doctrines of the common law, so far at least, as the latter have
assumed a settled form. If, in referring to the authority of the
civilians, I should speak of the personality of laws, (personalité
des statuts), and the reality of laws, (réalité des statuts), let it
not be attributed to a spirit of innovation upon the received usages

" Dig. lib. 16, tit. 1, 1. 1; Id. 1. 16, § 1.

* Le Brun, Traité de la Communauté, Liv: 2, ch. 3, § 5, n. 20 to 48, p. 310 to
319.

8 Thid.

* 1 Boullenois, Princ. Gen. 5; Id. Obser. 3, p. 40; Id. Obser. 4, p. 43, 49;

Id. Obser. 5, p. 78, 79, 82, 101, 108, 105, 106, 118; Henry on Foreign Law,
31, 50.
20 CONFLICT OF LAWS. [ cx. 1.

of our language ; but rather to a desire to familiarize expressions,
which in this peculiar sense have already found their way into our
juridical discussions, and are becoming daily more and more im-
portant to be understood by American lawyers, since they are
incorporated into the very substance of the jurisprudence of some
of the States in the Union.’ By the personality of laws foreign
jurists generally mean all laws which concern the condition, state,
and capacity of persons ; by the reality of laws, all laws which con-
cern property or things; que ad rem spectant.2?, Whenever they
wish to express that the operation of a law is universal, they com-
pendiously announce that it is a personal statute ; and whenever,
on the other hand, they wish to express .that its operation is con-
fined to the country of its origin, they simply declare it to be a real
statute.

CHAPTER II.

GENERAL’ MAXIMS OF-‘INTERNATIONAL JURISPRUDENCE.

[* §. 17. General maxims first to be considered. ®

§ 18. The fundamental one, the omnipotence of each sovereign.

§19. Classification of Boullenois. ‘

§ 20. Corollary, that no law binds, extra-territorially.

§ 21. The extent of natural allegiance.

§ 22. Any state may pass laws affecting the status of its natural subjects after their
return, wherever domiciled at the time.

§ 23. But no law can have any operation, extra-territorially, except by consent of the
local sovereign.

§ 24. This department of law generally left with the courts.

§ 25. Laws in one age or country not applicable always and everywhere.

§ 26. The writers have struggled to extract a general principle.

§ 27. Difficulty of subject, illustrated by slavery.

§ 28. Mr. Justice Porter’s discussion of the point.

§.29. Huberus’s axioms affecting the subject.

§ 30. Hertius’s discussion of these axioms. .

§ 31. The authority Huberus extensively recognized.

§ 82. No law of one country can affect injuriously another country or its subjects.

* See note to 2 Kent, Comm. Lect. 39, p- 456, 3d. edit.

* 1 Boullenois, Observ. 3, p. 41, 42.— Mr. Livermore, in his Dissertations,
used the words, personality and reality ; Mr. Henry, in his work, the words, per-
sonalty and realty. I have preferred the former, as least likely to lead to mis-

takes, as “ personalty ” is in our law confined to personal estate, and “ realty” to
real estate.
§16-19.] GENERAL MAXIMS. 21

§ 38, 34. The effect of foreign laws matter of comity.

§ 35. It seems to rest upon mutual interest and convenience.

§ 36. It is really matter of comity and not of binding obligation.

§ 37. Lord Stowell’s expressive definition of the principle.

§ 38. It rests upon the comity of nations, not of the courts.

§ 38 a. Statement of the extent to which comity operates, in determining the force of
foreign law.]

§17. Berore entering upon any examination of the various
heads, which a treatise upon the Conflict: of Laws will naturally
embrace, it seems necessary to advert to a few general maxims or
axioms, which constitute the basis upon which all reasonings on
the subject must necessarily rest ; and without the express or tacit
admission of which it will be found impossible to arrive at any
principles, to govern the conduct of nations, or to regulate the due
administration of justice.

§18. I. The first and most general maxim or proposition is
that which has been already adverted to, that every nation pos-
sesses an exclusive sovereignty and jurisdiction within its own
territory. The direct consequence of this rule is, that the laws of
every state affect and bind directly all property, whether real or
personal, within its territory ; and all persons who are resident
within it, whether natural-born subjects or aliens; and also all
contracts made and acts done within it.1 A Sate may, therefore,
regulate the manner and circumstances, under which property,
whether real, or personal, or in action, within it, shall be held,
transmitted, bequeathed, transferred, or enforced ; the condition,
capacity, and state of all persons within it; the validity of con-
tracts, and other acts, done within it; the resulting rights and’
duties growing out of these contracts and acts; and the remedies,
and modes of administering justice in all cases calling for the in-
terposition of its tribunals to protect, and vindicate, and secure
the wholesome agency of its own laws within its own domains.

§ 19. Accordingly, Boullenois has laid down the following
among his general principles (Principes généraux). He says,
(1.) He, or those, who have the sovereign authority, have the sole
right to make laws; and these laws ought to be executed in all
places within the sovereignty, where they are known, in the pre-
scribed manner. (2.) The sovereign has power and authority
over his subjects, and over the property which they possess within

1 Henry on Foreign Law, P..1, ch. 1, § 1, p.1; Huberus, Lib. 1, tit. 3, § 2;
Campbell v. Hall, Cowp. R. 208; Ruding v. Smith, 2 Hagg. Consist. R. 383.
22 CONFLICT OF LAWS. [cu. nm.

his dominions. (3.) The sovereign has also authority to regulate
the forms and solemnities of contracts which his subjects make
within the territories under his dominions; and to prescribe the
rules for the administration of justice. (4.) The sovereign has
also a right to make laws to govern foreigners, in many cases; for
example, in relation to property, which they possess within the
reach of his sovereignty; in relation to the formalities of con-
tracts, which they make within his territories; and in relation to
judiciary proceedings, if they institute suits before his tribunals.
(5.) The sovereign may in like manner make laws for foreigners,
who even pass through his territories; but these are commonly
simple laws of police, made for the preservation of order within
his dominions; and these laws are either permanent, or they are
made only for certain particular occurrences.! The same doctrine
‘is, either tacitly or expressly, conceded by every other jurist, who
has discussed the subject at large, whether he has written upon
municipal law, or upon public law.?

§ 20. IL. Another maxim, or proposition, is; that no state or
nation can, by its laws, directly affect, or bind property out of its
own territory, or bind persons not resident therein, whether they
are natural-born subjects or others. This is a natural consequence
of the first proposition ; for it would be wholly incompatible with
the equality and exclusiveness of the sovereignty of all nations,
that any one nation should be at liberty to regulate either persons
or things not within its own territory. It would be equivalent to
a declaration, that the sovereignty over a territory was never ex-
clusive in any nation, but only concurrent with that of all nations;
that each could legislate for all, and none for itself; and that all
might establish rules, which none were bound to obey. The ab-
surd results of such a state of things need not be dwelt upon.
Accordingly Rodenburg has significantly said, that no sovereign
has a right to give the law beyond his own dominions; and .if he
attempts it, he may be lawfully refused obedience ; for wherever
the foundation of laws fails, there their force and jurisdiction fail
also. Constat igitur extra territorium legem dicere licere nemini,
adque si fecerit quis, impune ei non pareri; quippe ubi cesset statu
torum fundamentum, robur, et jurisdictio’ P. Voet speaks to the

* 1 Boullenois, Traité des Statuts, p. 2, 8, 4.

* Vattel, p. 2, ch. 7, § 84, 85.

* Rodenburg, de Stat. ch. 8, § 1, p. 7.
§19-21.] GENERAL MAXIMS. 93

same effect: Nullum statutum sive in rem, sive in personam, si de
ratione juris civilis sermo instituatur, sese extendit ultra statuentis
territorium Boullenois (as we have seen) announces the same
rule: De droit étrott, toutes les loix, que fait un souverain, n’ont
force et autorité que dans P étendue de sa domination; * and, indeed,
it is the common language of jurists.2 Mr. Chief Justice Parker
has recognized the doctrine in the fullest manner. ‘That the
-laws”’ (says he) “‘of any state cannot by any inherent authority
be entitled to respect extra-territorially, or beyond the jurisdiction
of the state, which enacts them, is the necessary result of the inde-
pendence of distinct sovereignties.” +

§ 21. Upon this rule there is often ingrafted an exception, of —
some importance to be rightly understood. It is, that although
the laws of a nation have no direct binding force, or effect, except
upon persons within its own territories; yet that every nation has
aright to bind its own subjects by its own laws in every other
place.® In one sense this exception may be admitted to be correct,
and well founded in the practice of nations; in another sense it is
incorrect, or, at least, it requires qualification. Every nation has
hitherto assumed it as clear, that it possesses the right to regulate
and govern its own native-born subjects everywhere ; and conse-
quently, that its laws extend to, and bind such subjects at all
times, and in all places. This is commonly adduced as a conse-
quence of what is called natural allegiance, that is, of allegiance
to the government of the territory of a man’s birth. Thus, Mr.
Justice Blackstone says: ‘‘ Natural allegiance is such as is due
from all men, born within the king’s dominions, immediately upon
their birth.” ‘‘ Natural allegiance is, therefore, a debt of grati-
tude, which cannot be forfeited, cancelled, or altered, by any
change of time, place, or circumstance. An Englishman, who
removes to France, or to China, owes the same allegiance to the
king of England there as at home, and twenty years hence as well
as now.”® And he proceeds to distinguish it from local alle-

* Voet, de Stat. § 4, ch. 2, n. 7, p. 124; Id. 138, 139, edit. 1661.

? 1 Boullenois, des Statut. Princep. Gén. 6, p. 4; Id. ch. 3, Observ. 10, p. 152.

* Idem,

* Blanchard v. Russell, 13 Mass. R. 4. The same doctrine is reasoned out
with great ability in the opinion of Mr. Chief Justice Taney in the case of the
Bank of Augusta v. Earle, 13 Peters, R. 584 to 591.

* Henry on Real and Personal Statutes, P. 1, ch. 1, p. 1.

* 1 Black. Comm. 369, 370; Foster, C. L. 184.
24 CONFLICT OF LAWS. [cu. 1

‘

giance, which is such as is due from an alien, or stranger born, for
so long a time as -he continues within the dominions of a foreign
prince. The former is universal and perpetual ; the latter ceases
-the instant the stranger transfers himself to another country ;!
and it is, therefore, local and temporary. Vattel, on the other
hand, seems ‘to admit the right of allegiance not to be perpetual
even in- natives; and that they have a right to expatriate them-
selves, and, under some circumstances, to dissolve their connection
with the parent country.”

§ 22. Without entering upon this subject, (which properly be-
longs to a general treatise upon public law,) it may be truly said,
that no nation is bound to respect the laws of another nation,
made in regard to the subjects of the latter, who are non-residents,
The obligatory force of such laws of any nation cannot extend be-
yond its own territories. And if such laws are incompatible with
the laws of the country, where such subjects reside, or interfere
with the duties which they owe to the country where they reside,
they will be disregarded by the latter. Whatever may be the
intrinsic or obligatory force of such laws upon such persons, if
they should return to their native country, they can have none in
other nations wherein they reside. Such laws may give rise to
personal relations between the sovereign and subjects, to be en-
forced in his own domains; but they do not rightfully extend to
other nations. Statuta suo clauduntur territorio, nec ultra terri-
toriwm disponunt. Nor, indeed, is there, strictly speaking, any
difference in this respect, whether such laws concern the persons,
or concern the property of native subjects. A state has just as
much intrinsic right, and no more, to give to its own laws an
extra-territorial force as to the property of its subjects situated
abroad, as it has in relation to the persons of its subjects domiciled
abroad. That is, as sovereign laws, they have no obligation on
jeither the person or the property. When, therefore, we speak of
the right of a state to bind its own native subjects every where, we
speak only of its own claim and exercise of sovereignty over them
when they return within its own territorial jurisdiction, and not
of its right to compel or require obedience to such laws on the
part of other nations within their own territorial sovereignty. On
the contrary, every nation has an exclusive right to regulate per-

* 1 Black. Comm. 369, 370; Foster, C. L. 184.
* Vattel, B. 1, ch. 19, § 220 to 228.
§ 21-24] : GENERAL MAXIMS. 25

sons and things within its own territory peta to its own sover-
eign will and public policy.

§ 23. III. From these two maxims or propane there flows a
third, and that is, that whatever force and obligation the laws of
one country have in another, depend solely upon the laws and
municipal regulations of the latter; that is to say, upon its own
proper jurisprudence and polity, and upon its own express or tacit
consent.' A state may prohibit the operation of all foreign laws,
and the rights growing out of them, within its own territories. It
may prohibit some foreign laws, and it may admit the operation of
others. It may recognize, and modify, and qualify some foreign
laws; it may enlarge or give universal effect to others. It may
interdict the administration of some foreign laws; it may favor
the introduction of others. When its own code speaks positively
on the subject, it must be obeyed by all persons who are within the
reach of its sovereignty. When its customary, unwritten, or com-
mon law speaks directly on the subject, it is equally to be obeyed ;
for it has an equal obligation with its positive code. When both
are silent, then, and then only, can the question properly arise,
what law is to govern in the absence of any clear declaration of
the sovereign will. [* This may be determined either by the express
statute of the legislative power in a state, or, in defect of that, by
the decisions and constructions of the courts. ]

§ 24. Upon the continent of Europe some of the principal states
have silently suffered their courts to draw this portion of their juris-
prudence from the analogies furnished by the civil law, or by their
own customary or positive code. France, for instance, composed, as
it formerly was, of a great number of provinces, governed by differ-
ent laws and customs, was early obliged to sanction such exertions
of authority by its courts, in order to provide for the constantly
occurring claims of its own subjects, living and owniig property
in different provinces, in a conflict between the different provincial
laws. In England and America the courts of justice have hitherto
exercised the same authority in the most ample manner; and the
legislatures have in no instance (it is believed) in either country
interfered to provide any positive regulations. The common law of
both countries has been expanded to meet the exigencies of the
times, as they have arisen; and so far as the practice of nations,
or the jus gentium privatum, has been supposed to furnish any

1 Huberus, Lib. 1, tit. 3, § 2. ’

CONFL. 3
26 CONFLICT OF LAWS. [ou. 1,

general principle, it has been followed out with a wise and tnanly
liberality.
§.25. The real difficulty is to ascertain, what principles: in
point of public convenience ought to regulate the conduét of
nations on this subject, in regard to each other, and in what
manner they can be best applied to the infinite variety of cases
arising from the complicated concerns of human society in modern
times. No nation can be justly required to yield up ‘its own fin-
damental policy and institutions, in favor of thosé of another
nation. Much less can any nation be required to sacrifice its own
interests in favor of another; or to enforeé doctrines which, in a
moral or political view, are incompatible with its own safety, ot
happiness, or coscientious regard to justice and duty. In the
endless diversities of human jurisprudence many laws must exist
in one country, which are the result of local or accidental cireum-
stances, and aré wholly unfit to be ingrafted upon the institutions
and habits of another. Many laws; well enough adapted to the
notions of heathen nations, would be totally repugnant to the feel-
ings, as well as to the justice of those which embrace Christianity.
A heathen nation might justify polygamy, or incest, contracts of
moral turpitude, or exercises ‘of despotic cruelty over persons,
which would be repugnant to the first principles of Christian ‘duty.
The laws of one nation may be founded upon a narrow selfishness
exclusively adapted to promote its own peculiar policy, or the per-
sonal or proprietary interest of its own subjects, to the injury or
even the ruin of those of the subjects of all other countries. A
particular nation may refuse all reciprocity of commerce, rights,
and remedies to others. It may assume a superiority of powers
and prerogatives, for the very purpose of crushing those of its
neighbors, who are less fortunate or less powerful. In these, ‘and
in many other cases, which may easily be put, without any extrav-
agance of supposition, there would be extreme difficulty in saying,
that other nations were bound to enforce laws, institutions, or cus-
toms of that nation which were subversive of their own morals,
justice, or polity. Who, for instance, (not to multiply cases), who
would contend that any nation in Christendom ought to carry into
effect, to its utmost range, the paternal power of the ancient Ro
mans in their early jurisprudence, extending to the life and death
of their children?! Or, who would now contend for that terrible

* Laws of the Twelve Tables, Table 4, ch. 1; 1 Pothier, Pandects, and Id. § 1,
§ 24-27.] GENERAL MAXIMS. 27

power: (if it ever really existed) under the law of the Twelve
‘Tables, which, enabled creditors to cut their debtor’s body into
pieces, and divide it among them ? }

.§ 26. The jurists of continental Europe have with uncommon,
skill and acuteness endeavored to collect, principles which ought to
regulate this subject among all nations. But it is very question-
able, whether their success has been at all proportionate to their
labor ; and whether their principles, if universally adopted, would
he found either convenient, or desirable, or even just, under all
circumstanees. Their systems, indeed, have had mainly in view
the juridical polity, fit for the different provinces and states of a
gommon empire, although they are by no means limited to such
cases. It is easy to see, that, in a nation, like France before the
Revolution, governed by different laws in its various provinces,
some uniform rules might be adopted which would not be equally:
fit for the adoption of independent nations, possessing no such
common, interests, or such a common basis of jurisprudence. The
leading positions maintained by many of the French jurists are,
that the laws of a country which concern persons, who reside
within and are subject to the territorial jurisdiction, ought to be
deemed of universal obligation in all other countries ; that the laws,
which concern the property of such persons, ought to be deemed
purely local, and the laws of a mixed character, concerning such
persons and property, ought to be deemed local, or universal, ac-
cording to their predominant character, Thus, Boullenois lays
down these rules in pointed terms: Les loix pures personelles,
soit personelles universelles, soit persanelles particuliéres, se por-
_ tent partout; est @& dire, que Vhomme est partout de Vétat, soit
universel, soit particulier, dont sa personne est affectée, par la lot
de son domicil, Les loix réelles n’ont point d’extension directe, nt
indirecte, hors la jurisdiction et la domination du legislateur.. Le
sujet et le materiel dominant direct et immediat dw statut en deter-
mine la nature et qualité ; o’ est @ dire, que le sujet et le materiel le
font étre réel, ou personnel.*

§ 27. Independent of the almost insurmountable difficulties, in
which the continental jurists admit themselves to be involved, in
2, (8vo. edit. Paris, 1818, p. 386, 387) ; 1 Black. Comm. 452; Fergusson on Mar-
riage and Divorce, 411; Grotius, B. 2, ch. 5, sec. 7.

1 Table 3, ch. 4; 1: Pothier, Pandgcts, and Id. Comm. § 2, (8vo. edit. Paris,
1818, p. 372, 380, 381); 2 Black. Comm: 472, 473.

? 1 Boullenois, Traité des Statuts, Prin. Gén. 18, 23, 27, p. 6, 7.
28 CONFLICT OF LAWS. (cu. u.

the attempt to settle the true character of these mixed cases of
international jurisprudence, and about which they have been en-
' gaged in endless controversies with each other, there are certain
exceptions to these rules, generally admitted, which shake the very
foundation on which they rest, and admonish us that it is far easier
to give simplicity to systems, than to reconcile them with the true
duties and interests of all nations in all cases. Take, for example,
two neighboring states, one of which admits, and the other of
which prohibits the existence of slavery, and the rights of property
growing out of it; what help would it be to either, in ascertaining
its own duties and interests in regard to the other, to say, that
their laws, so far as they regard the persons of the slaves, were of
universal obligation ; and, so far as they regard the property in
slaves, they were real, and of no obligation beyond the territory of
the lawgiver ?}

§ 28. There is, indeed, great truth in the remarks which have
been judicially promulgated on this subject by a learned. court.
“ When so many men of great talents and learning are thus found
to fail in fixing certain principles, we are forced to conclude, that
they have failed, not from want of ability, but because the matter
was not susceptible of being settled on certain principles. They
have attempted to go too far, to define and fix that which cannot,
in the nature of things, be defined and fixed. They seem to have
forgotten, that they wrote on a question which touched the comity
of nations, and that that comity is, and ever must be, uncertain.
That it must necessarily depend on a variety of circumstances,
which cannot be reduced to any certain rule. That no nation will
suffer the laws of another to interfere with her own to the injury
of her citizens. That, whether they do or not, must depend on
the condition of the country in which the foreign law is sought to
be enforced; the particular nature of her legislation, her policy,
and the character of her institutions. That in the conflict of laws,
it must often be a matter of doubt which should prevail ; and that
whenever a doubt does exist, the court, which decides, will prefer
the laws of its own country to that of the stranger.’ 2

§ 29. Huberus has laid down three axioms, which he deems
sufficient to solve all the intricacies of the subject. The first is,

* See Somerset’s case, and Hargrave’s note to Co. Lit. 79 }, note 44.
* Mr. Justice Porter, in delivering the opinion of the court in the case of Saul -
v. His Creditors, 17 Martin, R. 569, 595, 596.
§ 27-30.] GENERAL MAXIMS. 29

that the laws of every empire have force only within the limits of
its own government, and bind all, who are subjects thereof; but
not beyond those limits,t_ The second is, that all persons who are
found within the limits of a goyernment, whether their residence
is permanent or temporary, are to be deemed subjects thereof,?
The third is, that the rulers of every empire from comity admit,
that. the laws of every people, in force within its own limits, ought
to have the same force everywhere, so far as they do not prejudice
the powers or rights of other governments, or of their citizens.®
‘From this,” he adds, “it appears, that this matter is to be deter.
mined, not simply by the eivil laws, but by the convenience and
tacit consent of different people; for since the laws of one people
cannot have any direct force among another people, so nothing
could be more inconvenient in the commerce and general inter-
course of nations, than that what is valid by the laws of one place
should become without effect by the diversity of laws of another;
and that this is the true reason of the last axiom, of which no one
hitherto seems to have entertained any doubt.” 4

§ 30. Hertius seems to have been dissatisfied with these rules ;
did especially with the last; and he doubts exceedingly, whether
this comity of nations, founded upon the notion of mutual con;
venience and utility, can furnish any sufficiently solid basis of a
system. Ob reciprocam enim utilitatem, in disciplinam juris gen-
tium abiise, ut civitas alterius civitatis leges apud se valere patiatur,
adeoque exemplum hoc, ut evidentissimi argumenti ad probandum,
quod jus gentium reverd a jure nature distinctum sit, vult obser-
vari. Verum enim nos valde dubitamus, num res hec ex jure
gentium, sive mutuad earum indulgentid, possit definiri, presertim
cum in und eddemque civitate collisio sepissime fiat. Norunt
etiam periti ex solis exemplis jus gentium adstruere, quam sit fal-
lax; tum si sola populorum conniventia id niti dicamus, que juris

" Huberus, Lib. 1, tit. 8, de Conflictu Legum, § 2, p. 538.

* Thid.- * Thid.

* Ibid. — These axioms of Huberus are so often cited, that it may be well to
give them in his own words. “ (1) Leges cujusque imperii vim habent intra ter-
mings ejusdem reipublicee, omnesque ei subjectos obligant, nec ultra. (2) Pro
subjectis imperio habendi sunt omnes, qui intra terminos’ ejusdem reperiuntur,
sive in perpetuum, siye ad tempus ibi commorentur. (3) Rectores imperiorum id
comitur agunt, ut jura cujusque populi intra terminos ejus exercita teneant ubj-
que suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium

prejudicetur.” 2 Hub. Lib. 1, tit. 3; De Conflictu ees § 2.
3%
30 CONFLICT OF LAWS. [cH. m.

erit eficacia?! He adds, that he is disposed to search deeper into
the matter: Nobis paullo altius libet repetere ;? and he proceeds
to enunciate his own views under the known distinctions of per-
sonal statutes and real statutes, and then lays down the following
rules. (1.) “When a law is directed, or has regard, to the person,
we are to look to (be governed by) the laws of the country, to
which he is personally subject.” Quando lex in personam diri-
gitur, respiciendum est ad leges illius civitatis, que personam habet
subjectam3 (2.) “If a law bears directly upon things, it is local,
in whatever place and by whomsoever the act is done.” S&S lex
directo rei imponitur, ea locum habet, ubicunque etiam locorum et a
quocunque actus celebretur.* (8.) “If a law gives the form (pre-
scribes the form) to the act, then the place of the act, and not of
the domicil of the party, or of the situation of the thing, is to be
regarded.” Si lex actut formam dat, inspiciendus est locus actis,
non domiciliz, non rei site.5 Now, after the admission of Hertius
himself, that the usage of nations must furnish a very fallacious
guide on such a subject, it is not a little difficult to perceive, what
superior authority. or value his own rules have over those of
Huberus. The latter has at least this satisfactory foundation f@r
his most important rule, that he is mainly guided in it by the prac-
tice of nations; and he thus aimed, as Grotius had done before
him, to avail himself of the practice of nations, as a solid proof of
the acknowledged law of nations.®

§ 31. Some attempts have been made, but without success, to
undervalue the authority of Huberus. It is certainly true, that
he is not often spoken of, except by jurists belonging to the Dutch
school. Boullenois, however, has quoted his third and last axiom
with manifest approbation.’ But it will require very little aid
of authority to countenance his works, if his maxims are well

* Hertii, Opera, De Collis. Leg. § 4, n. 8, 4, p. 120; Id. p. 170, 171, edit, 1716.

® Thid.

* 1 Hertii, Opera, De Collis. § 4, art. 8, p. 123; Id. p- 175, edit. 1716; Post,
§ 238.

* Id. § 4, art. 9, p, 128; Id. p. 177, edit. 1716; Post, § 238.

° 1 Hertii, Opera, De Collis. Leg. § 4, art. 10, p- 126; Id. p. 179, edit. 1716;
Post, § 238,

* The Scottish courts seem constantly to have held the doctrine of Huberus in
his third axiom to be entirely correct. See Fergusson on Marr. and Div. 395,
396, 410.

" 1 Boullenois, Traité des Statuts, ch. 3, Obser. 10, p. 155.
§30-33.] GENERAL MAXIMS. 31

founded ;. and if they are not, no approbation founded on foreign
recognitions of them, can disguise their defects. It is not, how-
ever, a slight recommendation of his works, that hitherto he has
possessed an undisputed preference on this subject over other con-
tinental jurists, as well in England as in America. Indeed, his
two first maxims will in the present day scarcely be disputed by
any one; and the last seems irresistibly to flow from the right and
duty of every nation to protect its own subjects against injuries,
resulting from the unjust and prejudicial influence of foreign laws ;
and to refuse its aid to carry into effect any foreign laws, which
are repugnant to its own interests and polity.

§ 382. It is difficult to conceive, upon what ground a claim can
be rested, to give to any municipal laws an extra-territorial effect,
when those laws are prejudicial to the rights of other nations, or
to those of their subjects. It would at once annihilate the sover-
eignty and equality of every nation, which should be called upon
to recognize and enforce them; or compel it to desert its own
proper interest and duty to its own subjects in favor of strangers,
who were regardless of both. A claim, so naked of any principle
or just authority to support it, is wholly inadmissible.

§ 33. It has been thought by some jurists, that the term,
“comity,” is not sufficiently expressive of the obligation of nations
to give effect to foreign laws, when they are not prejudicial to their
own rights and interests. And it has been suggested, that the
doctrine rests on a deeper foundation; that it is not so much a
matter of comity, or courtesy, as a matter of paramount moral
duty.1 Now, assuming, that such a moral duty does exist, it is
clearly one of imperfect obligation, like that of beneficence,
humanity, and charity. Every nation must be the final judge for
itself, not only of the nature and extent of the duty, but of the
occasions, on which its exercise may be justly demanded. And,
certainly, there can be no pretence to say, that any foreign nation
has a right to require the full recognition and execution of its own
laws in other territories, when those laws are deemed oppressive or
injurious to the rights or interests of the inhabitants of the latter,
or when their moral character is questionable, or their provisions
are impolitic or unjust.2. Even in other cases, it is difficult to per-

1 Liverm. Dissert. p. 26 to p. 30.

* See Mr. Justice Porter, in the case of Saul v. His Creditors, 17 Martin, R.
569, 596 to 599.
32 CONFLICT OF LAWS. -[cH. 1.

ceive a clear foundation in morals, or in natural law, for declar-
ing, that any nation has a right (all others being equal in sover-
eignty) to insist that its own positive laws shall be of superior
obligation in a foreign realm to the domestic laws of the latter, of
an equally positive character. What intrinsic right has one nation
to declare, that no contract shall be binding, which is made by any
of its subjects in a foreign country, unless they are twenty-five
years of age, any more than another nation, where the contract is
made, has a right to declare, that such contract shall be binding if
made by any person of twenty-one years of age? One would sup-
pose, that if there be anything clearly within the scope of national
sovereignty, it is the right to fix, what shall be the rule to govern
contracts made within its own territories,
. §84. That a nation ought not to make its own jurisprudence
an instrument of injustice to other nations, or to their subjects,
may be admitted. But in a vast variety of cases, which may be
put, the rejection of the laws of a foreign nation may work less
injustice than the enforcement of them will remedy. And, here
again, every nation must judge for itself what is its true aut ip
the administration of justice in its domestic tribunals, It is not
to be taken for granted, that the rule of the foreign nation, which
complains of a grievance, is right, and that its own rule is wrong.

§ 85. The true foundation, on which the administration of in-
ternational law must rest, is, that the rules which are to govern
are those which arise from mutual interest and utility, from 4
sense of the inconveniences which would result from a contrary
doctrine, and from a sort of moral necessity to do justice, in order
that justice may be done to us in return.2 This is the ground
upon which Rodenburg puts it. Quid, igitur (says he) ret in
causd est, quod personalia statuta territorium egrediantur 2? Uni-
cum hoc ipsa rei natura ac necessitas invexit, ut cum de statu et
conditione hominum queritur, unt solummodo judici, et quidem
domicilii, universum in illd jus sit attributum ; cum enim ab uno
certoque loco statum hominis legem accipere necesse est, quod ab-
surdum, earumque rerum naturaliter inter se pugna foret, ut mn
quot loca quis iter fasciens, aut navigans, delatus Suerit, totidem
ille statum mutaret aut conditionem; ut uno eodemque tempore hie

* See post, § 75; and Mr. Justice Porter’s opinion in Saul w. His Creditors, 17
Martin, R. 569, 596, 597, 598,

* Liverm. Dissert. p. 28; Blanchard v. Russell, 13 Mass. R. 4.
§33-37.] GENERAL MAXIMS. 33

sui juris, illic alient futurus sit; uxor simul in potestate viri, et
extra eandem sit; alio loco habeatur quis prodigus, alio frugi.’
President Bouhier expounds the ground with still more distinct-
ness. Mais avant toutes choses il faut se souvenir, quencore que
le régle étroite soit pour la reseriction des coutumes dans leurs
limites, Pextension en a néanmoins été admise en faveur de Cutilité
publique, et souvent méme par une espéce de nécessité, ec. Ainsi,
quand les peuples voisins ont souffert cette extension,-ce west point
qwils se soient vis soumis d un statut étranger. C'est seulement,
parce qwils y ont trouvé leur intérét particulier en ce, qu’en pareil
cas leurs coutumes ont le méme avantage dans les provinces voisines.
On peut donc dire, que cette extension est sur une espéce de droit
des gens, et de bienséance, en virtu duquel les différens peuples
sont tacttement demeurés d’accord, de souffrir cette extension de
coutume &@ coutume, toutes les fois que f equité et Putiltié commune
le-demanderoient ; ¢ moins que celle, o& Vextension seroit de-
mandée, ne contint en ce cas une disposition prohibitive?

§ 36. But of the nature, and extent, and utility of this recogni-
tion of foreign laws, respecting the state and condition of persons,
every nation must judge for itself, and certainly is not bound to
recognize them when they would be prejudicial to its own inter-
ests. The very terms, in which the doctrine is commonly enunci-
ated, carry along with them this necessary qualification and limita-
tion of it. Mutual utility presupposes that the interest. of all
nations is consulted, and not that of one only. Now, this demon-
strates, that the doctrine owes its origin and authority to the
voluntary adoption and consent of nations. It is, therefore, in the
strictest sense, a matter of the comity of nations, and not of any
absolute paramount obligation, superseding all discretion on the
subject.3

§.87. Vattel has with great propriety said: “That it belongs
exclusively to each nation to form its own judgment of what its
conscience prescribes to it; of what it can do, or cannot do; of
what is proper, or improper for it to do. And of course it rests
solely with it to examine and determine, whether it can perform
any office for another nation, without neglecting the duty which it
owes to itself.”* Lord Stowell has pointed out the same principle

1 Rodenb. de Stat. Diversit. tit. 1, c. 8, § 4; 2 Boullenois, App. p. 8.
2 Bouhier, Cout. de Bourg. ch. 23, § 62, 63, p. 467.

3 2 Kent, Comm. Lect. 39, p. 457, 458, 3d edit.

“ Vattel, Prelim. Disc. p. 61, 62, §°14, 16.
34 CONFLICT OF LAWS. (ex. 1

in his usual felicitous manner. Speaking with reference to the
validity of a, Scotch marriage, in controversy before him, he re.
marked: “Being entertained in an English court, it (the cause)
must be adjudicated according to the principles of English law
applicable to such a case. But the only principle, applicable to
such a case, by the law of England is, that the validity of the mar.
riage rights must be tried by reference to the law of the country
where, if they exist at all, they had their origin. Having fur-
nished this principle, the law of England withdraws altogether,
and leaves the legal question to the exclusive judgment of the law
of Seotland.”’ 4

§ 88. There is, then, not only no impropriety in the use of the
phrase, “comity of nations,” but it is the most appropriate phrase
to express the true foundation and extent of the obligation of the
laws of one nation within the territories of another.” It is derived
altogether from the voluntary consent of the latter; and is inad.
missible, when it is@ontrary to its known policy, or prejudicial to
its interests. In the silence of any positive rule, affirming, or de-
nying, or restraining the operation of foreign laws, courts of jus-
tice presume the tacit adoption of them by their own government,
unless they are repugnant to its policy, or prejudicial to its inter-
ests. It is not comity of the courts, but the comity of the nation,
which is administered, and ascertained in the same way, and
guided by the same reasoning, by which all other principles of the
municipal law are ascertained and guided.? The doctrine of Hu-

* Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 59. See Scrimshire v. Scrim-
shire, Id. 407, 416.

2 See Robinson v. Bland, 2 Burr. R. 1077, 1079 ; Blanchard v. Russell, 13 Mass.
R. 4.

® See this doctrine expressly recognized by the Supreme Court of the United
States, in Bank of Augusta v. Earle, 18 Peters, R. 519, 589. Mr, Chief Justice
Taney, in delivering the opinion of the court, said: “It is needless ta enumerate
here the instances, in which, by the general practice of civilized countries, the
laws of the one will, by the comity of nations, be recognized and executed in an-
other, where the rights of individuals are concerned. The cases of contracts made :
in a foreign country are familiar examples; and courts of justice have always ex-
pounded and executed them, according to the laws of the place in which they
were made ; provided that law was not repugnant to the laws or policy of their
own country. The comity thus extended to other nations is no impeachment of
sovereignty. It is the voluntary act of the nation by which it is offered ; and is
inadmissible, when contrary to its policy, or prejudicial to its interests. But it _
contributes so largely to promote justice between individuals, and to produce a
§ 87~388 a] GENERAL MAXIMS. 85

berus would seem, therefore, to stand upon just principles ; and
though, from its generality, it leaves behind many grave questions
as to its application, it has much to commend it, in point of truth,
as well as of simplicity. It has accordingly been sanctioned both
in England and America by a judicial approbation, as direct and
universal as can fairly be desired for the purpose of giving sanc-
tion to it, as authority, or as reasoning.!

[* § 88 a. We beg to suggest here, that the only ground of any
difference of opinion in regard to the just foundation of the prin-
ciple, by which the courts of one country in giving effect to con-
tracts or relations created in a foreign country, allow the force and
authority of the laws of the country where the transaction had its
consummation ; and whether this results from comity, or strict
obligation, arises solely from not carefully discriminating between
the different stages of the process by which the foreign transaction’
is carried into operation and effect in the domestic tribunals.

In regard to the question, how far one country will afford re-
dress for the violation of contracts, or the commission of torts, or
any other breach of duty, committed in a foreign forum, it must,/
in the first instance, be mere matter of discretion with the nation
where such. redress-is sought; and if any is afforded it may prop-
erly enough be said, in one sense, to be matter of courtesy, or
comity, to the nation where the transaction occurred. In regard
to this, we think the question of giving any redress at all in such
cases pertains more to the local policy of the state where such re-

*
friendly intercourse between the sovereignties to which they belong, that courts
of justice have continually acted upon it, as a part of the voluntary law of na-
tions. It is truly said, in Story’s Conflict of Laws, § 38, that, ‘In the silence of
any positive rule, affirming, or denying, or restraining the operation of foreign
laws, courts of justice presume the tacit adoption of them by their own govern-
ment; unless they are repugnant to its policy, or prejudicial to its interests. It
is not the comity of the courts, but the comity of the nation which is administered,
and ascertained in the same way, and guided by the same reasoning, by which all
other principles of municipal law are ascertained and guided.’ ”

1 Out of the great variety of authorities in which the rules of Huberus are di-
rectly or indirectly approved, the reader is referred to the following : — Co. Lit.
79 b, Hargrave’s note, 44; Robinson v. Bland, 2 Burr. R. 1077, 1078; Holman
v. Johnson, Cowper, 341; 2 Kent, Comm. Lect. 39, p. 453 to p. 463 (3d edit.) ;
Pearsall v. Dwight, 2 Mass. R. 84, 90; Desesbats v. Berquier, 1 Binn. R. 336;
Holmes v. Remsen, 4 Johns. Ch. R. 469; Mr. Cowen’s note to 4 Cowen, R. 410;
Saul ». His Creditors, 17 Martin, R. 569, 596, 597, 598; Greenwood v. Curtis, 6
Mass. R. 358; Bank of Augusta v. Earle, 13 Peters, R. 519, 588 to 591.
36 CONFLICT OF LAWS. [cH. 1.

dress is sought, than to its courtesy, or comity. But call it local
policy, or comity ; it clearly has reference, it is evident, to the
point of giving or withholding any or all redress. After the policy
of affording such redress is once conceded, it is manifest, there
no longer remains any further space for comity. The foreign law
by which the contract or relation was created, and according to
which, in its inception, it was expected, by the parties to the rela-
tion, to be performed, becomes an indispensable element, in order
to translate such contract, relation, or duty, into the vernacular
language of the forum, where the remedy is sought. And the
courts, in referring to the law of the foreign state, in order to give
the proper force and interpretation to the contract or relation, and
the consequent duties and obligations, cannot be said to act from
comity, any more than they could be said to refer to a dictionary
of the foreign language from comity, when such reference was in-
dispensable to the proper understanding of the terms in which the
contract is expressed. The knowledge of the foreign language is
no more indispensable to comprehend the natural force of the terms
of the contract, than the. knowledge of the foreign law is to a full
comprehension of the legal effect of such,terms. The nearest ap-
proach to the formal enunciation of this distinction which we have
found in the language of any writer or judge, is in the opinion of
Lord Stowell, in Dalrymple v. Dalrymple.'}

(*? 2 Hagg. Const. R, 59; ante, § 37.]
§ 38 a-41.] NATIONAL DOMICIL. 387

CHAPTER Iil.

NATIONAL DOMICIL.

[* § 39. Analysis of the subsequent parts of the work.

§ 40. What is the legal import of the word domicil ?

§41, 42. It is the settled home; and ultimate returning, central point, of one’s acqui-
- sitions, and affections.

§.43, In France, domicil is the place of one’s principal establishment.

§44. It is where one resides, without any present intent to remove.

§ 45. The place of domicil affected by intention and choice.

§ 45a. In Massachusetts held that one must have one, and can have but one, domicil.

§46, 47. Leading principles of the law of domicil.

§.48. The application of these principles to different states and classes of persons.

§ 49. Domicil of origin, by choice, and by operation of law.

§ 49a. Extensive discussion of change of national domicil before the Privy Council.

§49 6. Such change implies change of nationality.

§ 49 c. Change of domicil within same state, kingdom, &c.]

§ 39. Havine disposed of these preliminary considerations, it is
proposed, in the further progress of these commentaries, to ex-
amine the operation and effect of laws; first, in relation to per-
sons, their capacity, state, and condition ; secondly, in relation to
contracts ; thirdly, in relation to property, personal, mixed, and
real; fourthly, in relation to wills, successions, and distributions ;
fifthly, in relation to persons acting in autre droit, such as guar-
‘dians, executors, and administrators ; sixthly, in relation to reme-
dies and judicial sentences; seventhly, in relation to penal laws
and offences; and eighthly, in relation to evidence and proofs.

§ 40. As, however, in all the discussions upon this subject, per-
“petual reference will be made to the domicil of the party, it may
be proper to ascertain, what is the true meaning of the term
“domicil’’?; or rather, what constitutes the national or local
domicil of a party, according to the understanding of publicists
and jurists.!

§ 41. By the term “domicil,” in its ordinary acceptation, is
meant the place, where a person lives or has his home. In this
sense the place where a person has his actual residence, inhabi-
tancy, or commorancy, is sometimes called his domicil. In a
-strict and legal sense, that is properly the domicil of a person,
where he has his true, fixed, permanent home, and principal
a Upon the subject of this chapter the learned reader ‘is referred to Burge’s

Comment. on Col. and Foreign Law, Vol. 1, P. 1, cb. 2, p. 32 to 57.
CONFL. 4
38 CONFLICT OF LAWS. [cH. mm.

establishment, and to which, whenever he is absent, he has the
intention of returning (animus revertendi).'

'§ 42. In the Roman law it is said: ‘“‘There is no doubt that
every person has his domicil in that place, which he makes his
family residence and principal place of his business; from which
he is not about to depart, unless some business requires; when
he leaves it he deems himself a wanderer; and when he returns
to it, he deems himself no longer abroad.” In eodem loco sin-
gulos habere domicilium, non ambigitur, ubi quis larem rerumque ac
fortunarum summam constituit; unde rursus non sit discessurus, si
nihil avocet; unde cum profectus est, peregrinari videtur: quod si
rediit, peregrinari jam destitit.2 And in another place it is said:
“If any one always carries on his business, not in a colony, but in
a municipality, or city, where he buys, sells, and contracts ; where
he makes use of, and attends the forum, the public baths, and
public shows; where he celebrates the holidays, and enjoys all
municipal privileges, and none in colony; he is deemed there to
have his domicil, rather than in the place (colony), in which he
sojourns for purposes of agriculture.” Si quig negotia sua non in
colonia, sed in municipio, semper agit; in illo vendit, emit, contra-
hit; eo in foro, balneo, spectaculis utitur ; ibt festos dies celebrat;
omnibus denique municipit commodis, nullis coloniarum, fruttur;
ibi magis habere domicilium, quam ubi colendi causd diversaturé
And again: “He is deemed an inhabitant, who has his domicil,
in any place, and whom the Greeks call mapo:xov, that is to say, 4
neighbor, or person inhabiting near to a village. For those are
not alone to be deemed inhabitants, who dwell. in a town; but
those also, who cultivate grounds near its limits, so that they con-
duct themselves, as if their place of abode were there.” Incola
est, qui aliqué regione domicilium suum contulit; quem Greet
mapotxov, (id est, juxta habitantem) appellant. Nee tantum hi,
qui in oppido morantur, incole sunt; sed etiam, qui alicujus oppidt
Jinibus tla agrum habent, ut in eum se quasi in aliquam sedem,
recipiant.4 Some, at least, of these, are more properly descrip-

1 Dr. Lieber’s Encye. Americ. art. Domicil. And see Laneuville v. Anderson,
22 Eng. Law & Eq. R. 642.

* Cod. Lib. 10, tit. 39, 1.7; Pothier, Pand. Lib. 50, n. 15; 1 Voet, ad Pand.
Lib. 5, tit. 1, u. 92, p. 344; Id. u. 94, p. 345.

® Dig. Lib. 50, tit. 1, 1. 27; Pothier, Pand. Lib. 50, tit. 1, n. 18; 2 Domat, Pub-
he Law, B. 1, tit. 16, $3, art. 4.

* Dig. Lib. 50, tit. 16, 1. 239, § 2; Id. 1. 208; Pothier, Pand. Lib. 50, n. 16.
§41-48.] NATIONAL DOMICIL. 89

tions, than- definitions of domicil. Pothier has generalized them
in his own introduction, to this title of the Pandects, and says:
The seat of the fortune or property, which any person possesses in
any place, constitutes his chief domicil. Domicilium facit potis-
simum sedes fortunarum suarum, quas quis in aliquo loco habet.
Voet says: Proprie dictum Domictlium est, quod quis sibi consti-
tuet animo inde.non decedendi, si non aliud avocet.?

§ 48. The French jurists have defined domicil to be the place,
where a person has his principal establishment. Thus Denizart
says: “The domicil of a person is the place, where a person
enjoys his rights, and establishes his abode, and makes the seat of
his property.” Le domicile est le lieu, o% une personne, jouissant
de ses droits, établit sa demeure et le siége de sa fortune. The
Encyclopedists say: ‘‘ That it is, properly speaking, the place
where one has fixed the centre of his business.” C'est, d@ propre-
ment parler, Pendroit, ot l'on a placé le centre de ses affaires
Pothier says:-“‘It is the place, where a person has established the
principal seat of his residence and of his business.” C’est le lieu,
ou une ‘personne a établi le siége principal de sa demeure et de ses
affaires® And the modern French Code declares, that the domicil
of every Frenchman, as to the exercise of civil rights, is the place
where he has his principal establishment; (Est le lieu, 02 il a son
principal établissement).6 Vattel has defined domicil to be a
fixed residence in any place, with an intention of always staying
there.’ But this is not an accurate statement. It would be more
correct to say, that that place is properly the domicil of a person,
in which his habitation is fixed without any present intention of
removing therefrom.’ [The definition of the word domicil is, how-
ever, not without difficulty, and in a late case it was observed by
Dr. Lushington, that although so many powerful minds had been
applied to this question, there is no universally agreed definition
of the term; no agreed enumeration of the ingredients which con-

1 Pothier, Pand. Lib. 50, tit. 1, Introd. art. 2, n. 18.

* Voet, ad Pand. Lib, 5, tit. 1, n. 94.

8 Denizart, art. Domicil.

“ Encyclop. Moderne, art. Domicil.

5 Pothier, Introd. Gén. Cout. d’Orléans, ch. 1, § 1, art. 8.

* Cod. Civ. art. 102. See also Merlin, Répert. art. Domicil.

" Vattel, B. 1, ch. 19, § 22. ,

* Dr. Lieber’s Encyc. Amer. Domicil ; Putnam v. Johnson, 10 Mass. R. 488 ;
Tanner v. King, 11 Louisiana Rep. 175; Greene v. Windham, 13 Maine, 225.
40 CONFLICT OF LAWS. [cH. m.

stitute domicil; the gradation from residence to domicil consists
both of circumstances and intention."]

§ 44. Two things, then, must concur to constitute domicil ; first,
residence ; and secondly, the intention of making it the home of
the party. There must be the fact, and the intent; for, as Pothier
has truly observed, a person cannot establish a domicil in a place,
except it be animo et facto.2, Voet emphatically says: Ilud certum
est, neque sold animo atque destinatione patris familias, aut contes-
tatione sold, sine re et pacto, domicilium constituti ; neque sold do-
mus comparatione in aliqua regione ; neque sold habitatione, sine:
proposito illic perpetuo morandi.2 So D’Argentre says: Quamo-.
brem, qui figendi ejus animum non habent, sed usus, necessitatis,
aut negotiationis causd alicubi sint, protinus a negotio discessuri,
domicilium nullo temporis spatio constituent ; cum neque animus
sine facto, neque factum sine animo ad id sufficiat.+ However, in
many cases actual residence is not indispensable to retain a domi-
cil, after it is once acquired ; but it is retained, anima solo, by the
mere intention not to change it or to adopt another. If, therefore,
a person leaves his home for temporary purposes, but with an in-
tention to return to it, this change of place is not in law a change
of domicil. Thus, if a person should go on a voyage to sea, or to
a foreign country, for health, or for pleasure, or for business of a
temporary nature, with an intention to return, such a transitory

1 [Maltass v. Maltass, 1 Roberts, 74. And see Moore v. Budd, 4 Hagg. R.
852; Burton v. Fisher, 1 Milw. R. 187; Phillimore on Domicil, p. 13; Munroe
v. Munroe, 7 Clark & Finn. 842. For the difference between residence and domi-
cil, see Foster v. Hall, 4 Humph, 346; in re Thompson, 1 Wend. 43. In Har-
vard College v. Gore, 5 Pick. R. 370, and Lyman v. Fiske, 17 Pick. R. 281, it was
intimated that there might be a difference between habitation and domicil. See
also in re Wrigley, 4 Wend. 602; S. C. 8 Wend. 134; Exeter v. Brighton, 15
Maine, 58; Jefferson v. Washington, 19 Maine, 293. So, between the words
domicil and “settlement” under the pauper laws of a country. Phillips v. King-
field, 19 Maine, 375. But these words are often used as exactly synonymous with.
domicil as generally understood. See Hylton v. Brown, 1 Wash. C. C. 299;
Moore v. Wilkins, 10 New Hamp. 452; Lamb v.-Smythe, 15 Mees. and Welsh.
433: Horne v. Horne, 9 Ired. 99; Crawford v. Wilson, 4 Barbour, 505; Isham
v. Gibbons, 1 Bradford, 70; Blanchard v. Stearns, 5 Met. 298.]

* Pothier, Cout. d’Orléans, ch. 1, § 1, art. 9. See Scrimshire v. Scrimshire, 2
Hagg. Ecc. R. 405, 406. [See Hallowell v. Saco, 5 Greenl, R. 143, (Bennett's
ed.) and note; Greene v. Windham, 13 Maine, 225; Wayne v. Greene, 21
Maine, 357; Leach ». Pillsbury, 15 N. H. R. 137.]

* 1 Voet, ad Pand. Lib. 5, tit. 1, n. 98, p- 3846.

* D’Argentre, ad Leg. Britonum, art. 9, n. 4, p. 26.
§ 43 -45.] NATIONAL DOMICIL. 41

residence would not constitute a new domicil, or amount to an
abandonment of the old one; for it is not the mere act of inhabi-
tancy in a place, which makes it the domicil; but it is the fact,
coupled with the intention of remaining there, animo manendi+

§45. It is sometimes a matter of no small difficulty to decide,
in what place a person has his true or proper domicil. His resi-
dence is often of a very equivocal nature ; and his intention as to
that residence is often still more obscure.? Both are sometimes to
be gathered from slight circumstances of mere presumption, and
from equivocal and conflicting acts. An intention of permanent
residence may often be ingrafted upon an inhabitancy originally
taken for a special or fugitive purpose.? And, on the other hand,
an intention to change the domicil may be fully announced, and
yet no correspondent change of inhabitancy may be actually made.*
Domicilium re et facto transfertur, non nudé contestatione5 The
Roman lawyers were themselves greatly puzzled upon this subject
by cases of an equivocal nature ; and Ulpian, and Labeo, and
others, held different opinions respecting them.® Thus, to the ques-
tion, where a person had his domicil, who did his business equally
in two places, Labeo answered, that he had no domicil in either
place.’ But other jurists, and amoung them was Ulpian, were of
opinion, that a man might in such a case have two domicils, one in
each place. Celsus seems to have thought, that, in such a case,
which place was the domicil of the party depended upon his own
choice and intention.2 And Julian doubted whether, if he had no
fixed choice and intention, he could have two domicils. ,

1 Pothier, Cout. d’Orléans, ch. 1, § 1, art. 9; Encyclop. Amer. art. Domicil ;
Burton v. Fisher, 1 Milw. Cons. R. 188; Cochin, Guvres, tom. 5, p. 4, 5, 6, 4to.
edit.

2 Pothier, Cout. d’Orléans, ch. 1, art. 20; Merlin, Répert. Domicil, § 2, 6;
Bouhier, Cout. de Bourg. ch. 22, § 196 to 206.

® The Harmony, 2 Robinson, R. 322, 324; Pothier, Cout. d’Orléans, ch. 1, art.
15. '

* See Harvard College v. Gore, 5 Pick. R. 370. [Hallowell v. Saco, 5 Green.
R. (Bennett’s ed.) 143; Greene v. Windham, 13 Maine, 225.]

5 Dig. Lib. 50, tit. 1, 1. 20; Pothier, Pand. Lib. 50, tit. 1, n. 26.

® Dig. Lib. 50, tit. 1, 1. 5; Id. 1. 27,§ 1, 2,3; Pothier, Pand. Lib. 50, tit. 1, n.
16; Id. n. 18, 21, 22.

™ Dig. Lib. 50, tit. 1,1. 5; Pothier, Pand. Lib. 50, tit. 1, n. 18 ; Post, § 47.

® Dig. Lib. 50, tit. 1, 1. 6, § 2; Pothier, Pand. Lib. 50, tit. 1, n. 18.

® Dig. Lib. 50, tit. 1,1. 27, § 2; Pothier, Pand. Lib. 50, tit. 1, n. 18.

” Dig. Lib. 50, tit. 1, 1. 27, § 2; Pothier, Pand. Lib. 50, tit. 1, n. 18; Somer-

4*
42 CONFLICT OF LAWS. [cH. OL

[§ 45 a. The question of domicil, and the possibility of the ex-
istence of two domicils, was much discussed in a late case in Mas-
sachusetts, and Chief Justice SHaw there said, that in determining
such an inquiry, two important considerations must. be kept stead-
ily in view; first, that every person must have a domicil some-
where ; second, that. a person can have only one domicil, for one
purpose, at one and the same time.*]

ville v. Somerville, 5 Vesey, 750, 786, 790; 2 Domat, Public Law, B. 1, tit. 16,
§ 8, p. 462; Id. art. 6; Post, § 47.

{t Abington v. North Bridgewater, 23 Pick. R. 170, 177. In this‘ case the
learned Chief Justice said in giving judgment: “ Every one has a domicil of ori-
gin, which he retains until he acquires another ; and the one thus acquired, isin
like manner retained. The supposition that a man can have two domicils, would
lead to the absurdest consequences. If he had two domicils within the limits of
distant sovereign states, in case of war, what would be an act of imperative duty
to one, would make him a traitor to the other. As not only sovereigns, but all
their subjects, collectively and individually, are put into a state of hostility by
war, he would become an enemy to himself, and bound to commit hostilities and
afford protection, to the same persons and property at the same time. But with-
out such an extravagant supposition, suppose he were domiciled within two mili-
tary districts of the same state, he might be bound to do personal service at two
places, at the same time ; or in two counties, he would be compellable, on peril
of attachment, to serve on juries at two remote shire towns; or in two towns, to
do watch and ward in two different places. Or, to apply an illustration from the
present case. By the provincial laws cited, a man was liable to be removed bya
warrant, to the place of his settlement, habitancy, or residence, for all these terms
are used. If it were possible, that he could have a settlement or habitancy, in
two different towns. at the same time, it would follow that two sets of civil officers,
each acting under a legal. warrant, would be bound to remove him by force, the
one to one town, and the other to another. These propositions, therefore, that
every person must have some domicil, and can have but one at one time, for the
same purpose, are rather to be regarded as postulata, than as propositions to be
proved. Yet we think they go far, in furnishing a test, by which the question
may be tried in each particular case. It depends not upon proving particular
facts, but whether all the facts and circumstances taken together, tending to show
that a man has his home or domicil in one place, overbalance all the like proofs,
tending to establish it in another ; such an inquiry, therefore, involves a compar-
ison of proofs, and in making that comparison, there are some facts, which the law
deems decisive, unless controlled and counteracted by others still more stringent.
The place of a man’s dwelling-house is first regarded, in contradistinction to any
place of business, trade, or occupation. If he has more than one dwelling-house,
that in which he sleeps or passes his nights, if it can be distinguished, will govern.
And we think it settled by authority, that if the dwelling-house is partly in one
place and partly in another, the occupant must be deemed to dwell in that town,
in which he habitually sleeps, if it can be ascertained.” And see Walke v. Bank of
Circleville, 15 Ohio, 288, 299 ; Thorndike v. City of Boston, 1 Metc. 242. For some
§.45 a, 46.] NATIONAL DOMICIL. 43.

§ 46. Without speculating upon all the various cases which may
be started upon this subject, it may be useful to collect together
some of the more important rules which have been generally
adopted, as guides in the cases, which are of most familiar occur-
rence. First, the place of birth of a person is considered as his
domicil, if it is at the time of his birth the domicil of his parents.
Patris originem unusquisque sequatur This is usually denomi-
nated the domicil of birth or nativity, domiciliwm originis. But
if the parents are then on a visit, or on a journey, (i itinere,) the
home of the parents (at least if itis in the same country) will be
deemed the domicil of birth or nativity.2 If he is an illegitimate
child, he follows the domicil of his mother. Ejus, qui justum pa-
trem non habet, prima origo & matre Secondly, the. domicil of
birth of minors continues, until they have obtained a new domicil.
Thirdly, minors are generally deemed incapable, proprio marte, of
changing their domicil during their minority; and therefore they
retain the domicil of their parents; and if the parents change
their domicil, that of the infant children follows it; and if the
father dies, his last.domicil is that. of the infant children.* Placet
etiam. filium-familias domicilium habere posse ; non utique ibi, ubi
pater habuit, sed ubicunque ipse constitwit® Fourthly, a married

purposes it has been said a person may have two domicils, at the same time.
Wipe J. in Greene v. Greene, 11 Pick. R. 410, 415; Putnam v. Johnson, 10
Mass. 488; Isham v. Gibbons, 1 Bradford, 70; Somerville v., Somerville, 5 Ves.
750.)

1 Cod. Lib. 10, tit. 31, 1.36; 2 Domat, Public Law, B. 1, tit. 16, § 3, art. 10;
1 Boullenois, Observ. 4, p. 53; Voet, ad Pand. Lib. 5, tit. 1, n. 91, 92,100. See
Scrimshire v. Scrimshire, 2 Hage. Eccl. R. 405, 406 ; Cochin, Giuvres, Tom. 5,
p- 5, 6; Id. 698, 4to edit.

* Dr. Lieber’s Encyc. Amer. art. Domicil ; Pothier, Cout. d’Orléans, ch. 1, art.
10, 12;, Somerville v. Somerville, 5 Vesey, 750, 787; 1 Boullenois, Observ. 4, p. 53.

® Dig. Lib. 50, tit. 1, 1.9; Pothier, Pand. Lib. 50, tit. 1, n. 3.

“Id.; Pothier, Cout. d’Orléans, ch. 1, art. 12, 16; 2 Domat, Public Law, B.
16, tit. 16; § 3, art. 10; Guier v. O’Daniel, 1 Binn. R. 349, 351; Voet, ad Pand,
Lib. 5, tit. 1, n. 91, 92, 100.

* Dig. Lib. 50, tit. 1, 1. 1, 8, 4;, Pothier, Pand. Lib. 50, tit. 1, n. 25. Whether
a father or guardian can change the domicil of a minor, or idiot, or insane person,
under his charge, has been matter of doubt, upon which different opinions have
been expressed by jurists. In the affirmative there may be found among others,
Bynkershoeck, Boullenois, Bretannier. In the negative, Pothier and Mornac.
See Pothier, Cout. d’Orléans, ch. 1, art. 17; Bynker. Quest. Privat. Juris. Lib.
1, ch. 16; Merlin, Répert. Domicil, § 5, art. 2,8; Boullenois, Quest. de la Con-
trariété des Lois, Quest. 2, p. 40, edit, 1732. See also Guier v. O’Daniel, 1 Binn.
44 : CONFLICT OF LAWS. [cH. mm.

woman follows the domicil of her husband.!_ This results from
the general principle, that a person who is under the power and
authority of another, possesses no right to choose a domicil.?
Mulierem, quamdiu nupta est, incolam ejusdem civitatis videri, cu-
jus maritus ejus est. Fifthly, a widow retains the domicil of her
deceased husband until she obtains another domicil. Vidua mulier
amissi mariti domicilium retinet4 Sixthly, primd facie, the place,
where a person lives, is taken to be his domicil, until other facts
establish the contrary. Seventhly, every person of.full age, hav-
ing a right to change his domicil, it follows, that if he removes to
another place, with an intention to make it his permanent. resi-
dence (animo manendi), it becomes instantaneously his place of
domicil.6 Highthly, if a person has actually removed to another
place, with an intention of remaining there for an indefinite time, :
and as a place of fixed present domicil, it is to be deemed his place
of domicil, notwithstanding he may entertain a floating intention.
to return at some future period.’ Ninthly, the place where a
married man’s family resides, is generally to be deemed his domi-
cil. But the presumption from this circumstance may be con-

R. 349, note; Somerville v. Somerville, 5 Ves. 750, 787; School Directors v.
James, 2 Watts & Serg. 568; Potinger v. Wightman, 3 Merivale, R. 67; Cutts v.
Haskins, 9 Mass, R. 548 ; Holyoke v. Haskins, 5 Pick. R. 20; Leeds v. Freeport,
10 Maine, 356.

-? Voet, ad Pand. Lib. 5, tit. 1, n. 101; Warrender v. Warrender, 9 Bligh, R.
89, 103,104; [Greene v. Greene, 11 Pick. R. 411. If, however, the relations
between husband and wife become adverse, her domicil may become different -
from his, at least to allow her to file a bill for divorce. See Harding v, Alden, 9
Greenl. R. 140; Harteau v. Harteau, 14 Pick. R. 187; Irby v. Wilson, 1 Dev. &
Batt. Eq. R. 568.]

* Dr. Lieber’s Encye. Amer. Domicil ; Pothier, Cout. d’Orléans, ch. 1, art. 10;
2 Domat, Public Law, B. 1, tit. 16, § 3, art. 11,13; Merlin, Répert. Domicil, § 5.

® Dig. Lib. 50, tit. 1, 1. 88, § 3; Id. Lib. 5, tit. 1, 1. 65; Pothier, Pand. Lib. 50,
tit. 1, n. 24; 2 Domat, Public Law, B. 1, tit. 16, § 3, art. 12; Voet, ad Pand.
Lib. 5, tit. 1, n. 101.

* Dig. Lib. 50, tit. 1, l. 22, § 1; Pothier, Pand. Lib. 50, tit. 1, n. 28.

* Bruce v. Bruce, 2 Bos. & Pull. 228, note; Id. 230; Bempde v. Johnstone, 3
Ves. 198, 201; Stanley v. Bernes, 3 Hagg. Eccles. R. 374, 437.

® Pothier, Cout, d’Orléans, ch. 1, art. 13.

7 Bruce v. Bruce, 2 Bos. & Pull, 228, note; Id. 230; Stanley v. Bernes, 3
Hagg. Eccles. R. 374. [See the important case of Bears v. City of Boston, 1
Mete. 250. Also, Thorndike v. City of Boston, 1 Mete. 242; Greene v. Wind-
ham, 13 Maine, 225.]

* Pothier, Cout. d’Orléans, ch. 1, art. 20; Bempde v. Johnstone, 3 Ves. 198,
201. See Bump v. Smith, 11 New Hamp. 48, ;
§ 46, 47.] NATIONAL DOMICIL. 45

trolled by other circumstances; for if it is a place of temporary
establishment: only for his family, or for transient objects, it will
not be deemed his domicil.1_ Tenthly, if a married man has his
family fixed in one place, and he does his business in another, the
former is considered the place of his domicil.?

§.47. Eleventhly, if a married man has two places of residence
at different. times of the year, that will be esteemed his domicil
which he himself selects, or describes, or deems, to be his home,
or which appears to be the centre of his affairs, or where he votes,
or exercises the rights and duties of a citizen.2 Twelfthly, if a
man is unmarried, that is generally deemed the place of his domi-
cil, where. he transacts his business, exercises his profession, or as-
sumes and exercises municipal duties or privileges.* But this rule

%is of course subject to some qualifications in its application.’
Thirteenthly, residence in a place, to produce a change of domicil,
must be voluntary. If, theréfore, it be by constraint, or involun-
tary, as by banishment, arrest, or imprisonment, the antecedent
domicil of the party remains. Fourteenthly, the mere intention
to acquire a new domicil, without the fact of an actual removal,
avails nothing; neither does the fact of removal without the in-
tention.’ Fifteenthly, presumptions from mere circumstances will
not prevail against positive facts, which fix, or determine the dom-
icil.2 Sixteenthly, a domicil once acquired remains, until a new
one is acquired.® It is sometimes laid down, that a person may be
without any domicil ; as if he quits a place with an intent to fix
in another place, it has been said, that while he is in transitu, he

* = Pothier, Cout. d’Orléans, ch. 1, art. 15.
® Ante, § 42, 43, 44.
> Pothier, Cout. d’Orléans, ch. 1, art. 20; Somerville v. Somerville, 5 Ves. 750,
788, 789, 790; Harvard College v. Gore, 5 Pick. R. 370; Cochin, Géuvres, Tom.
8, p- 702, 4to aa
* Somerville v. Somerville, 5 Ves. 750, 788, 789.
5 Tdem.
® 2 Domat, Public Law, B. 1, tit. 16, § 3, art. 14; Merlin, Répertoire, Domicil,
§ 4, art. 3; Bempde:v. Johnstone, 3 Ves. 198, 202, [Grant v. Dalliber, 11 Conn.
R. 234; Danville ». Putney,.6 Vermont, 512; Woodstock v. Hartland, 21 Ver-
mont, 563.].
1 Ante, § 44.
* Dr. Lieber, Encyc. Amer. Domicil ; Ante, § 42, 43, 44.
® Somerville v. Somerville, 5 Ves. 750, 787; Merlin, Répertoire, Domicil, § 2;
Harvard College v. Gore, 5 Pick. R. 370; Cochin, Guvres, Tom. 5, p. 5, 6, 4to
edit.
46 CONFLICT OF LAWS. [cH. m.

has no domicil. Julian, in the Roman law, has so affirmed. S
quis domicilio relicto naviget, vel iter faciat, querens quo se con-
ferat, atque ubi constituat ; hunc puto sine domicilio esse But
the more correct principle would seem to be, that the original
domicil is not gone, until a new one has been actually acquired,
facto et animo2 Seventeenthly, if a man has acquired a new dom-
icil, different from that of his birth, and he removes from it with
an intention to resume his native domicil,? the latter is reacquired,
even while he is on his way, in itimere, for it reverts from the mo-
ment the other is given up.*

§ 48. The foregoing rules principally relate to changes of domi-
cil from one place to another within the same country, or terri-
torial sovereignty, although many of them are applicable to resi-
dence in different counties or sovereignties. In respect to the
latter there are certain principles, which have been generally
recognized by tribunals administering public law, or the law of
nations, as of unquestionable authority. First; Persons who are
born in a country, are generally deemed to be citizens and sub-
jects of that country. A reasonable qualification of the rule
would seem to be, that it should not apply to the children of par-
ents, who were in itinere in the country, or who were abiding
there for temporary purposes, as for health, or curiosity, or occa-
sional business. It would be difficult, however, to assert, that in
the present state of public law such a qualification is universally
established. Secondly ; Foreigners who reside in a country for
permanent or indefinite purposes, animo manendi, are treated uni-
versally as inhabitants of that country. Thirdly ; A national |

* Dig. Lib. 50, tit. 1, 1. 27, § 2; Pothier, Pand. Lib. 30, tit. 1, n. 18; ee
Public Law, B. 1, tit. 16, § 3, art. 9; Ante, § 45.

* See Jennison v. Hapgood, 10 Piet R. 77; Bruce v. Bruce, 2 Bos. & Pull
228; Moore v. Wilkins, 10 New Hamp. R. 452; Cochin, Zuvres, Tom. 5, p. 5,6,
4to ails» Ante, § 44.

5 The acquired domicil must be finally and totally abandoned, before the domi-
cil of origin revives. Cragie v. Cragie, 8 Curteis, 435.

* The Indian Chief, 3 Rob. 12; La Virginie, 5 Rob. 98; The Venus, 8 Cranch,
253; State v. Hallett, 8 Ala. R. 159; The Ship Ann Green, 1 Gallis. 275; Cat
lin v. Gladding, 4 Mason, 308. On the subject of domicil the learned reader is
referred to Fergusson on Marriage and Divorce, Appendix, p. 277 to 362; and
Henry on Foreign Law, Appendix A, p. 181, &c.; Cochin, Guvres, Tom. 5, p.
4,5, 6, 4to edit.; Ez parte Wrigby, 8 Wend. R. 134.

5 1 Black. Comm. 366, 369.

* Vattel, Lib. 1, ch. 19, § 213.
§47-49 4] NATIONAL DOMICIL. AT

character, acquired ina foreign country by residence, changes

‘when the party has left the country animo non revertendi, and is

on his return to the country where he had his antecedent domicil.
And especially, if he be in itinere to his native country with ‘that
intent, his native domicil revives, while he is yet in transitu; for

-the native domicil easily reverts The moment a foreign domicil

is abandoned, the native domicil is reacquired. But a mere re-
turn to his native country, without an intent to abandon his for-
eign domicil, does not work any change of his domicil.? Fourthly ;
Ambassadors and other foreign ministers retain their domicil in
the country which they represent, and to which they belong.’ But
a different rule generally applies to Consuls, and to other commer-
cial agents, who are presumed to remain in a country for pur-
poses of trade, and who therefore acquire a domicil where they
reside.t Fifthly ; Children born upon the sea are deemed to be-

‘long, and to have their domicil in the country, to which their par-

ents belong.

§ 49. From these considerations and rules the general con-
clusion may be deduced, that domicil is of three sorts; domicil .
by birth, domicil by choice, and domicil by operation of law. The
first is the common case of the place of birth, domicilium originis ;
the second is that which is voluntarily agatiredl by a party, proprio
marte. The last is consequential, as that of the wife arising from
marriage.®

[*§ 49a. There has been a good deal of fiecuesen’ in the Eng-

‘lish courts for many years past, in regard to change of domicil,

1 The Venus, 8 Cranch, 278, 281; The Frances, 8 Cranch, 335; The Indian
Chief, 8 Rob. 12; Bempde v. Johnstone, 3 Ves. 198, 202; The Friendschaft, 3
Wheaton, R. 14; Ommany »v. Bingham, cited 5 Ves. Jr., 756, 757, 765.

2 Ibid.

3 Vattel, B. 1, ch. 19, § 217; The Indian Chief, 3 Rob. 13, 27; The Josephine,
4 Rob. 26.

4 Thid.

5 Vattel, B. 1, ch. 19, § 216; Dr. Lieber’s Encyc. Amer. art. Domicil.

® Pothier, Cout. d’Orléans, ch. 1, art. 12. Whoever wishes to make more ex-

‘tensive researches upon this subject, may consult Denizart’s Dictionary, art. Dom-

icil ; Encyclopédie Moderne, Tom. 10, art. Domicil ; Merlin, Répertoire, Domicil ;
2 Domat (by Strahan,) p. 484; Lib. 1, tit. 16, § 3, of Public Law; Dig. Lib. 50,
tit. 1, per tot.; Cod. Lib.’ 10, tit. 30, 1 2 tol. 7; Voet, ad Pandect. Lib. 5, tit. 1,
§ 90 to § 92; ; Bynkershoek, Quest. Priv. Juris. "Lib, 1, ch. 11, and the authori-
ties cited in Dr. Lieber’s Encyclopedia Americana, Domicil ; Henry on Foreign
Law, Appendix A, on Domicil, p. 181, &c., to p. 209.

’
48 CONFLICT OF LAWS. [cu. m.

as between different countries, foreign to each other, which is the
only point, in regard to the law of domicil, properly coming within
the scope of this work. In provincial appeals coming before the
Privy Council questions of this kind very frequently arise. In
Hodgson v. Beauchesne,! the matter is very extensively and learn-
edly discussed, by counsel of great eminence, and by Dr. Lush-
ington, a judge of very great learning, in giving judgment. This
case turned a good deal upon the point of the testator having held
a commission in the British army, at the time of his change of
residence to Paris, and the consequent duties being incompatible
with the adoption of a foreign domicil. Considerable stress is here
also placed, as in most other cases involving similar questions,
upon the presumption of the continuance of the domicil of origin,
until some satisfactory evidence is given of a fixed purpose, at
some particular time, to abandon such domicil, and that in that
particular case the removal of the testator was sufficiently ex-
plained upon the ground of the testator’s wife being a French-
woman, and desiring to reside in her own country. And ‘the
strong circumstance of the testator procuring a burial-place for
his wife and himself in France, may also be referred to the nat-
ural desire of the wife to repose in her own country after death,
and that of the husband that the family might not be separated
even in their dust.

§ 49 b. The result of the more recent English cases seems to be
.that to a change of national domicil, there must be a definite and
effectual change of nationality. In the language of Lord Kines-
pown in the latest case where the subject is discussed in the
House of Lords? “a man must intend to become a Frenchman
instead of an Englishman.” Where one leaves his domicil of
origin with the expressed determination never to return, there can
-be no question or doubt, it ordinarily produces an immediate and
effectual abandonment of that domicil.2 But it is supposable that
all this may occur, and the domicil of origin and the primitive
nationality still remain, as where one in the last stages of incurable
disease goes to Madeira, or any other soft and mild climate, to
prolong the period of life, or to alleviate its sufferings, there can
occur no change of national domicil.t| There is in such cases no

[* 1.12 Moore P. C. C. 285.

2 Moorhouse v. Lord, 9 Jur. N. S. 677.

8 Whicker v. Hume, 7 Ho. Lods. Cas. 124.
* Lord Kingsdown in Moorhouse v. Lord, supra.
449a-49d] NATIONAL DOMICIL. 49

mere purpose of expatriation, than if the person left his country,
ever so temporarily, for the benefit of change of air, or of medi-
cinal springs, or for sea-bathing. It is obvious, therefore, that to a
change of national domicil, there must occur an absolute and
definitely fixed determination to abandon one nationality and
acquire another. So long as there exists ever so indefinite a pur-
pose or desire to return ultimately to the former domicil, —in the
language of Goldsmith’s Traveller, “here to return and die at
home, at last,” — there can occur no effectual change of national
domicil, so that all the controversy upon the point of change of
national domicil must ultimately come to Lord Kinespown’s
rule; the party must intend to put off one namenelity, and put
on another.

§ 49 ¢. It is obvious this rule will not apply to a change of
domicil by removing from one place to another in the same state,
province, or kingdom. In all such cases this remote, indefinite
purpose, expectation, or desire, to return to the former home, will
not be sufficient to prevent a change of domicil. If the person’s
home, the place of his permanent abode, the centre of his oper-
ations, and accumulations, is transferred from one place to another,
it is ordinarily sufficient within the limits of the same state, king-
dom, or province, for the purpose of determining the place of ex-
ercising the right of suffrage and other functions of citizenship ;
for the purpose of fixing the place of settlement or taxation, and
other similar incidents, liable to be affected by change of domicil
within the same state.?

§ 49 d. In some of the early English cases? it seems to be deter-
mined, that one who goes to India, with a view to reside there, for
the purpose of following a profession there in the service of the
East India Company, thereby acquires a new domicil. This rule
is considered as settled upon the assumption, that as the law re-
quires the officers and covenanted servants of the Company to take
up their permanent residence in India, the courts will not listen
to inference, or proof even, that this is not done bona fide; but will
presume the party intends to perform his duty in that respect.? It
is therefore held in such cases that the party intends permanently

1 Kirby v. Waterford, 14 Vert. R. 414.

2 Bruce v. Bruce, 6 Br. P. Cas. 566; 2B. & P. 229, and note; Munroe v.
Douglas, 5 Mad. 379.

* Vice-Chancellor Wood, in Forbes v. Forbes, Kay, 341.

CONFL. 5
50 CONFLICT OF LAWS. [cu rv.

to change his national domicil, notwithstanding his correspond-
ence during the whole period showed an intention to return to his
former domicil.1 But it has recently been decided that this rule
does not extend to persons going to India in their private capac-
ity, with an intention to return at some indefinite and uncertain

period.?]

CHAPTER IV.

CAPACITY OF PERSONS.

[* § 50. The effect of foreign laws on the capacity of persons.

§51. These are governed by the law of the place of domicil.

§ 51a. They go with the person wherever he goes.

§51. The distinctions maintained by some writers.

§ 52, 53. Writers differ as to personal disabilities extending to immovables in a foreign
country.

§ 54, 54a. Some claim that laws affecting capacity have no extra-territorial force.

§ 55. The law of actual domicil governs personal capacity.

§ 55a. Some writers qualify or question this.

§ 56, 57. How these matters are affected by change of domicil.

§ 58. Upon principle the new domicil must govern.

§ 59. This the most convenient rule.

§ 60. And the capacity in the place of domicil may control property everywhere.

§ 61. Some claim that incapacity is limited to the place of domicil.

§ 62. Criticisms on the doctrine of Huberus.

§ 63. Consideration of doctrines, best established, will follow.

§ 64. All acts, affecting property in the place of domicil, judged of by that law.

§ 65. Disabilities existing in place of domicil extend everywhere.

§ 66. Capacity, or incapacity, in the place of domicil extend everywhere.

§ 66a. This point illustrated by the relation of marriage.

§ 67. The rule is adopted from its great convenience.

§ 68. In France the same rule obtains with great strictness.

§69. In change of domicil these incidents are governed by the law of the new
domicil.

§ 70. No nation is bound to give force to acts contravening its policy.

§ 71. Conflict and confusion among different writers.

§ 72. Comments upon these conflicting rules.

§ 73. The law of domicil generally governs all questions of capacity or incapacity,
unless in the place of birth.

§ 74. Special and limited incapacities only operative in place of domicil.

§75. The rule as to majority in Louisiana.

§ 76. Criticisms upon the rule of Louisiana. Not generally approved.

§ 77. Louisiana holds to the law of the domicil of origin.

? Allardice v. Onslow, 10 Jur. N. S. 352.
* Jopp v. Wood, 11 Jur. N. S. 53.]
‘cH. IV.] CAPACITY OF PERSONS. 51

§ 78. An early case in that state adopts the Jaw of the actual domicil;') «|

§ 79. The English courts hold a foreign. marriage valid sometimes, even against the
local law.

§79@. Tlustration of the point from recent English decisions.

§ 80. Marriage of English minors void, if void where made.

§ 80a. Validity of marriage determined by lex loci contractus.

§ 81. Lord Stowell confines this to the validity of the marriage rites.

§ 82. The same rule applied to the advance of money to a minor.

§ 82a. Conflicting opinions among the civilians.

§ 83. Some deny the existence of the rule stated in § 82.

§ 84. Others restrain its operation to contracts of marriage.

§ 85. Cases of incest, and evasion of the law, exceptions.

§ 86. The latter exception overruled in England.

§ 87. This legality of marriage by the lex loci does not carry all the consequences of
such law.

§ 87a. Legitimacy generally governed by the law of place of birth.

§.88. The point illustrated by English law of marriage.

§ 89. Comments on the rule in America. i

§90. Parental restraints on marriage in continental countries.

§ 91. Disability of infancy generally governed by laws of domicil. _-

§ 92. Many disabilities are entirely local.

§ 93. Legitimacy governed by law of place of birth.

§93 a. There is however some conflict upon the point.

§ 93%. Foreign jurists generally hold marriage and legitimacy governed by same law.

§ 93¢. Some extend it to all the consequences of the marriage.

§ 93d. Writers of this class enumerated.

§ 93 e. Same rule adopted in English House of Lords.

§ 93 The application of the doctrine admits of some embarrassment.

$939. Statement of the various questions which may arise.

§ 93h. The English courts adhere pertinaciously to the English rule.

§ 93%. The continental jurists defer to the law of the place of domicil.

§93%. It has been thought some of these writers qualify the rule.

§934 The Voets, John and Paul, deny the rule, in toto.

§ 93 m. Their view has never been maintained, even in England.

§ 93 n. The question somewhat in debate in England.

§ 930. Heirship there implies legitimacy, and birth after marriage.

§ 93 p. This view examined and questioned.

§ 939. Reasons urged against the English view.

§ 937. Further arguments urged in same direction.

§ 938. The law of the place of marriage decides its consequences.

§93 7%, Illustrations from the continental writers.

§ 93 u, 93%, As to legitimacy, it seems to be determined by law of place of birth.

§ 93 w. The question of legitimacy as affected by laws of different states.

§ 94. Disabilities of religious profession confined to particular country.

§ 95. So also of those growing out of nationality or sect.

$96. The disability of slavery is strictly local.

§ 96a. But if the slave return his status revives.

§ 97. The general doctrine sometimes questioned.

§ 98. Foreign laws against morals, or national policy, of no force.

§ 99. Deference to foreign laws part of the law of nations.

§ 100. Resumé of the whole subject proper.

§ 101. Law of domicil governs as to validity of acts done there.
52 CONFLICT OF LAWS. [cH. rv.

7

§ 102. The validity of contracts depends on the lex loci contractus.
~§102a. The law of domicil will not always control this rule, even as to incapacities.
§ 1026. Infancy is determined by place of contract.
+4103. This general rule governs all contracts, even of marriage.
§ 104. This rule also applies to most disabilities.
§ 105. The law of the place of marriage defines legitimacy.
§ 105a. Same law governs as to prior born offspring.
§ 106. Every nation will judge for itself how far it will give effect to foreign laws.]

§ 50. We now come to the consideration of the operation and
effect of foreign laws, in relation to persons, and their capacity,
state, and condition.?

§ 51. All laws, which have for their principal object the regu-
lation of the capacity, state, and condition of persons, have been
treated by foreign jurists generally as personal laws. They are
by them divided into two sorts; those which are universal, and
those which are special. The former regulate universally the ca-
pacity, state, and condition of persons, such as their minority,
majority, emancipation, and power of administration of their own
affairs. The latter create an ability-or a disability to do certain
acts, leaving the party in all other respects with his general ca-
pacity or incapacity.? But, whether laws purely personal belong
to the one class or to the other, they are for the most part held by

1 Upon the subject of this chapter the learned reader is referred to Burge’s
Comment. on Col. and Foreigit Law, Vol. 1, P. 1, ch. 3, § 1, p. 52, &c.; Id. § 2,
p. 92, &e.; Id. § 3, p. 101; and to Id. ch. 4, p. 113 to 135. — Cujacius defines the
condition of a party ak Conditio pro statu accipitur; puta, pater-familias sit,
an filius-familias, servus, an liber. Adtatem, valetudinem, facultates, mores non
significat. Liverm. Dissert. § 26, p. 38, cites Cujacii, Observ. Lib. 7, cap. 36.

* See Saul v. His Creditors, 17 Martin R. 569, 596. Boullenois enumerates,
as personal, all laws, which regard majority or minority, emancipation, interdic-
tion for lunacy or prodigality, subjection of married women to the marital power,
subjection of minors to the power of their parents and guardians, legitimacy and
illegitimacy, excommunication, civil death, infamy, nobility, foreigners and stran-
gers, and naturalization. 1 Boullenois, Observ. 4, p. 46,51; Id. 78; Id. 800.
See, also, Merlin, Répert. Statut. Pothier enumerates among personal laws,
those respecting the paternal power, the guardianship of minors, and their eman-
cipation, the age required to make a will, and the marital authority. Pothier,
Cout. d’Orléans, introd. ch. 1, art. 6. See, also, Rodenburg, De Div. Stat. tit. 2,
ch. 5, § 16; 2 Boullenois, App. 48. Le Brun enumerates among personal stat-
utes those reapacting majority, legitimacy, guardianship, and the paternal power.
Le Brun, Traité de la Communauté, Liv. 2, ch. 8, § 5, n. 25. See, also, Boubier,
Cout. de Bourg. ch. 23, § 64; 1 Boullenois, ch. 2, Observ. 5, p. 74 to 122; 1
Burge, Comment. on Col. and For. Law, ch. 3, § 1, p. 57, &e.

® See Henry on For. Law, 2, 8; 1 Froland, Mém. ch. 5, p. 81.
§ 50, 51.] CAPACITY OF PERSONS. 53

foreign jurists to be of absolute obligation everywhere, when, they
have once attached upon the person by the law of his .domicil.!
Boullenois has stated the doctrine among his general principles.
Personal laws (says he) affect the person with a quality which is
inherent in him, and his person is the same everywhere. Laws
purely personal, whether universal or particular, extend themselves
everywhere; that is to say, a man is everywhere deemed in the
same state, whether universal or particular, by which he is affected
by the law of his domicil. Ces loix personnelles affectent la per-
sonne dune qualité, qui lui est inhérente, et la personne est telle
partout.2, And again, — Les loix pures personnelles, soit person-
nelles untverselles, soit personnelles particuliéres, se portent par
tout; cest a dire, que homme est partout de Petat, soit universel,
soit particulier, dont sa personne est affectée par la loi de son do-
micil® L’état personnel du domicil se porte partout. Habilis vel
inhabilis in loco domicilii, est habilis vel inhabilis in omni loco!
Rodenburg says: Whenever inquiry is made as to the state and
condition of a person, there is but one judge, that of his domicil,
to whom the right appertains to settle the matter. Cum de statu
et conditione hominum queritur, uno solummodo judici, et quidem
domicilii, universum in illé jus sit attributum.’ Hence (says Her-
tius) the state and quality of a person are governed by the law of
the place to which he is by his domicil subjected. Whenever a
law is directed to the person, we are to refer to the law of the
place to which he is personally subject. Hine status et qualitas

* How extensively this rule may operate, may be readily understood by simply
referring to the different ages at which majority is attained in different countries.
By the civil law full age was not attained until twenty-four. By the old law of
France the age of majority was twenty-five. By the custom of Normandy the age
of majority was twenty ; by the law of Spain the age of twenty-four; by that of
Holland, twenty-five. In some parts of Germany the majority is attained at twen-
ty-one ; in others at eighteen ; in others at twenty-five; in Saxony at twenty-one;
and so in England, Scotland, Ireland, and the United States of America. The
present law of France, for all purposes except marriage, adopts the same age ;
but for marriage the rule is still twenty-five. 1 Burge, Comm. on Col. and For.
Law, P. 1, ch. 4, p. 113, 114, 115; post, § 66, note, § 90.

* 1 Boullenois, Prin. Gén. p. 4.

® 1 Boullenois, Prin. Gén. 10, 18, p. 4, 6; Observ. 4, 10, 12,14, 46.

* Boullenois, Dissert. sur Quest. de Contrarieté des Loix, edit. 1732, Disc. Prél.
p. 20, Régle, 10,

* Rodenburg, De Div. Stat. tit. 1, ch. 3, § 4 to § 10; 1 Boullenois, p. 145, 146;

Id. Obs. 14, p. 196; 2 Boull. App. 789.
5*

*
54 CONFLICT OF LAWS. [cu. 1.

persone regitur a legibus loci, cui ipsa sese per domicilium subje-
cit Quando lex in personam dirigitur, respictendum est ad leges
illius civitatis, que personam habet subjectam.?

§ 51 a. Froland, Bouhier, Rodenburg, Paul Voet, Pothier, and
others, lay down a similar rule.® Froland lays down the doctrine
in the following broad terms. A personal statute not only exerts
its authority in the place of the domicil of the party ; but its pro-
visions follow the party, and accompany. his person, in every place,
where he goes to contract; and it extends over all his property
(biens) under whatever customs it may be situated: Et qu’elle
influe sur tous ses biens sous quelques coutumes, qwils soient assis.4
Bouhier adopts the very rule of Boullenois: Quand le statut per-
sonnel du domicil est en concurrence avec le statut personnel de Ia
situation des biens celui du domicil dont lemporter sur celui de ia
situation des biens.5 And again, he says: It is necessary constant-
ly to hold, that the capacity or incapacity, which the law of the
‘domicil has impressed upon the person, should follow the person
into all places ; so that it shall become utterly impossible, that a
person, being incapable in the place of his residence, should go to
contract in another place where he would have been capable, if he
had been domiciled there. Il faut donc tenir pour constant, que la ca-
pacité ou Pincapacité, que la loi du domicil a imprimée sur la per-
sonne la suit en tous Keux. En sorte que ce serozt inutilement, que
étant incapable au lieu de sa résidence, elle voudroit aller contracter
‘dans un endrott, ow il auroit été capable, si elle y avoit été domiciliée’
Abraham & Wesel uses language equally strong: Quotiescunque
enim de habilitate atque inhabilitate persone queritur, toties domi-
cuit leges et statuta spectanda, ut quocumque persona abeat, id jus

' Hertius, De Collis. Leg. § 4, n. 5, p. 122; Id. p. 173, 174, edit. 1716.

? Td. ; Id. n. 8, p. 123; Id. n. 12, p. 128; Id. p. 175; Id. p. 189, edit. 1716.

* 1 Froland, Mém. de Statut. ch. 7, § 2, p. 156; Id. vol.’ 2, ‘ch. 88, § 8, 9, 10, .,
p- 1574; Bouhier, Cout. de Bourg. ch. 23, § 92, p. 461; Id. ch. 24, § 11, p. 468;
Id. ch. 22, § 5 to § 11, p. 418; Voet, De Statut. § 4, ch. 2, n. 6, p. 137, 138;
Henry on For. Law, ch. 4, p. 84; Pothier, Introd. Gen. Cout. d’Orléans, ch. 1,
art. 7; 1 Hert. Opera, De Coll. § 4, n. 5, p.121, n. 8, p- 123; Id. p. 172, 178,
175, gdit. 1716. See, also, Foelix, Revue Etrangére et Francaise, &c., 1840,
Vol. 7, p. 200 to p. 216. Since the present work was in the press, I have for the

first time seen these Dissertations of Mr. Foelix, and I shall gladly avail myself
of his learned labors,

4 Froland, Mém. ch. 7, § 2, p. 1563; Id. ch. 5, § 4, p- 89; Post, § 84. |
® Bouhier, Cout. de Bourg, ch. 23, § 91 to 96, p- 461; Id. ch, 22, § 4 to 14,§ 19
* Bouhier, Cout. de Bourg. ch. 24, § 11, p- 463,
§51-516.] ‘CAPACITY OF PERSONS. 55

sit, quod judex domicilii statuerit ;1 and he applies the rule equal-
ly to movable and immovable property.? Pothier says, that per-
sonal statutes exert their power upon. the persons in relation to
their property (biens) wherever it may be situated: Au reste, ces
statuts personnels exercent leur empire sur les personnes par rap-
port a tous leur biens, quelque part, qwils soient situés® Roden-
burg says: Quocumque modo se casus habuerit, contrahentium erit
respicere ad suum cujusque domicilii locum, impressam ibidem per-
sone qualitatem, aut adeptam domi conditionem cujus ignarus non
sit aportet, qui cum alio volet contrahere. Quare Hollandie incola
major Ultrajecti, minor apud suos, contrahit apud nostrates inva-
lidé. Contra Ultrajectinus lege domicilii major contrahit in Hol-
landia efficaciter ; ut maxime ex more regionis istius rerum sua-
rum necdum habentur compos.* Stockmannus holds equally strong
language: Unde recte, eum, qui inhabilis est in uno loco, etiam in
alio inhabilem censert; et si aliter statuamus, incertus et varius
ertt personarum status; cum tamen uli personam ubique eandem,
ita qualitatem persone inherentem, velut ejus Accidens, ubique uni-
formem esse conveniat.5 Merlin has expressed it in equally com-
prehensive terms,° saying, that the law of the domicil, as to ma-
jority or minority, governs in respect even to property (biens)
situate in another territory.”

§ 51 5. Paul Voet, on the other hand, speaks in far more quali-
fied language, and lays down several rules on the subject.
1.) That a personal statute only affects the subjects of the state
or territory wherein it is promulgated, and not foreigners, although
doing some business there. Statutum personale tantum afficit sub-
ditos territortit, ubi statutum conditum est; non autem forenses,

1 Wesel, Com. ad Novell. Constit. Ultraj. art. 18, § 23, p. 169, 170.

* Id. § 25, 27, p. 170, 173; Liverm. Diss. § 55, p. 56.

* Pothier, Introd. Gén. aux Cout. d’Orléans, ch. 1, art. 7; Post, § 69.

“ Rodenburg, De Diversit. Statut. tif. 2, ch. 1, § 2; 2 Boullenois, App. p. 11.

§ Stockmann. Decis. 125, § 6, p. 262, cited also 1 Boullenois, Observ. 6, p.
131; Liverm. Dissert. § 22, p. 35. See also Abraham & Wesel, Comment. ad
Nov. Constit. Ultraject. art. 13, n. 24, 25, p. 170 to p. 172; Liverm. Dissert.
§ 55, p. 56.

* Merlin, Répert. Stat.; Id. Majorité, §5; Id. Autorisation Maritale, § 10.
The like rule is mamulgined by Burgundus, Stockmans, and D’Argentré, as to per-
sonal property and covenants. See Liverm. Diss. p. 34, 35,50; Merlin, Répert.
Majorité, § 5; Id. Autorisation Maritale, § 10.

” Merlin, Répert. Majorité, § 5, edit. Brux. 1827, p. 189.
56 CONFLICT OF LAWS. [cu. Iv.

licet ibidem aliquid agentes.1 (2.) That as a personal statute
does not affect a person out of the territory, it cannot therefore be
reputed: -to be the same without the territory, as it is within. Sfa-
tutum personale non afficit personam extra territorium ; sic ut pro
tali non reputetur extra territorium, qualis erat intra? (8.) That
a personal quality cannot be added out of the territory to a person
not a subject. Personalis qualitas non potest extra territoriwm
addi persone non subjecte.2 (4.) A personal statute accompanies
the person everywhere, in respect to property (biens) situate with-
in the territory of the state, where the person affected by it has
his domicil. Statutwm personale ubique locorum personam comi-
tatur, in ordine ad bona intra territorium statuentis sita, ubi per-
sona affecta domicilium habet.t We shall also presently see, that
he distinguishes between the effect of a personal statute upon mov-
able, and its effect upon immovable property.®
* § 52. The result of the doctrine maintained by the jurists above
named, except Paul Voet, is, that a person who has attained the
age of majority by*the law of his native domicil, is to be deemed
everywhere the same, of age; and, on the other hand, that a per-
son who is in his minority by the law of his native domicil, is to
be deemed everywhere in the same state or condition.* Thus, for
example, if, by the law of the place of his original domicil a per-
son cannot make a will of his property, before he is twenty-one
years of age, he cannot, if under that age, make a valid will, even
of such property as is situate in a place, where the law allows per-
sons of the age of fourteen years to make a will of the like prop-
erty.’ So, if by the law of her original domicil a married woman
cannot dispose of her property, except with the consent of her
husband, she is equally prohibited from disposing of her property
situate in another place, where no such consent is requisite.’

 Voet, de Stat. § 4, ch. 2, p. 137, edit. 1661.

® Thid. 5 Td. p. 138.

* Id. p. 138. 5 Post, § 52. -

* 1 Boullenois, p. 103, &c.; 1 Burge, Comment. on Col. and For. Law, P. 1,
ch. 4, p. 113 to p. 135.

* Pothier, Cout. d’Orléans, ch. 1, art. 7; 1 Boullenois, Prin. Gen. 19, p. 7; 1d
Observ. 16, p. 205; 1 Froland, Mém. ch. 7, p. 156; Bouhier, Cout. de Bourg.
ch. 22, § 5 to§ 11; ch. 24,§7to§ 18; Mer. Répert. Majorité, § 5; Id. Autori-
sation Maritale, § 10; Rodenburg, De Divers. Statut. tit. 2, ch. 1, § 1; 2 Boulle-
nois, App. p. 11.

* Ibid.; Henry on Foreign Law, § 1, p. 31.
§.51, 58.] CAPACITY OF PERSONS. 57

Many jurists apply this doctrine indiscriminately to movable, as
well as to immovable property. Thus, Boullenois says: “If a
man has immovable property, situate in a place where the age of
majority is fixed at twenty-five, and by the law of his own domicil
he is of age at twenty, he may at twenty sell or alienate such im-
movable property. On the other hand, if by the law of the place
where the immovable property is situate, he is of age at twenty,
but by the law of his domicil not until twenty-five, he cannot sell
or alienate such property, until the age of twenty-five.”! But
-other jurists distinguish between movable and immovable property,
applying the law of situs to the latter, and the law of the domicil
to the former.? Paul Voet insists throughout upon this distinc-
tion ; and holds, that no personal statute extends to immovable
property situate elsewhere. Non tamen statutum personale sese
regulariter extendet ad bona immobilia, alibi sita.2 But he admits,
that such a statute will apply to movable property, upon the
ground, that, wherever it may be situate, it follows the domicil of
the owner. Quin tamen ratione mobilium, ubicunque sitorum, do-
micilium seu personam domini sequamur, ut tamen spectentur loca,
quo destinata, nullus iverit inficias ; idque propter expressos textus
juris civilis, quibus mobilia certo loco non alligantur, verum secun-
dum juris intellectum personam comitari, eique adherere judican-
tur; id quod etiam mores ubique locorum sequuntur.t Burgundus
holds the same opinion: Consequenter ea, que sunt personalia,
wna cum persona circumferuntur, quocumgque loco se transtulerit, et
per universa territoria, viresque et effectum porrigunt., Realia
situm rerum sic spectant, ut territorit limites non excedant ; quia
rebus ipsis sunt affiza.© Many other jurists maintain the same
distinction ;* but it needs not be here further insisted on, as it will
hereafter come more fully under our consideration.

§ 53. The doctrine, as to the nature and operation of personal

1 Boullenois, Dissert. des Quest. de la Contrar. des Loix, Quest. I™* p. 19, 20;
Basnage, Coutum. de Normand. tom. 2, art. 481, p. 243. See, also, Merlin, Ré-
pert. Majorité, § 4, 5.

* Voet, Burgundus, Stockmans, and Peckius, ‘cited in Merlin, Répert, Majorité,
§ 5, p. 189, edit. 1827; Ante, § 52 a.

® P. Voet, ad Statut. § 4, ch. 2, n. 6, p. 138, edit. 1661; Id. ch. 3, n. 4, p. 148.

* P. Voet, ad Statut. § 4, ch. 2, n. 9, p. 139,140, edit, 1661.

5 Burgundus, Tract. 1, § 3, p. 15.

® See J. Voet, Stockmannus, and Peckius, cited Post, § 54, and 1 Boullenois,
Observ. 4, :p. 57; Id. Obs. 6, p. 131; Sandius, Lib. 4, tit. 8, Definit. 7, p. 104.
68 CONFLICT OF LAWS. [ cu. tv.

statutes, thus asserted by foreign jurists, even with the distinction
in its application between movable property and immovable prop.
erty, is found attended with many difficulties; and many of these
jurists are compelled to make exceptions in its application, which
go far to limit, if not to impair, its real force and efficiency. In-
deed, the language held by some of them on this subject has not
always such a precision, as to its actual extent and operation, as
to free the mind from all doubt in regard to the true meaning,
Merlin says:? “ The law of the domicil governs the state of the
person and his personal capacity or incapacity. It also governs
personal actions, movables, and movable effects, in whatever place
‘they may in fact be situated. The power of the law of the domi-
cil extends everywhere, to everything within its reach or jurisdic-
tion ; so that he, who is of a majority by the law of his domicil; is
of the age of majority everywhere. The law of the place where
the property * (biens) is situate, regulates the quality and dispo-
sition of it. When the law of the domicil, and that of the situ-
ation, (situs,) are in conflict with each other, if the question is
respecting the state and condition of the person, the law of the
domicil ought to prevail; if it is respecting the disposition of
‘property, (biens,) the law of the place where they are situate is to
‘be followed.”? “If several real statutes are found in conflict
with each other, each one has its own effect upon the property
‘(biens) which it governs.” * Now, this language of Merlin is in
some parts sufficiently broad to cover movable property, as well as
immovable property ; and yet it is very clear, that the disposition
of movable property, and the capacity to dispose of it, are by many
foreign jurists, and by Merlin himself, held to be governed by the
law of the domicil of the owner, according to the maxim, that
movables follow the person: Mobilia sequuntur personam® What,
perhaps, Merlin intends here to assert, may be, that where a person
is incapable by the law of his domicil, he cannot dispose of any of his
property situate elsewhere, the incapacity extending even to places
where he is not domiciled, and where, by the local law, he would
otherwise have capacity to dispose of it. But that, where a per-
son is capable by the law of his domicil, and the question does not

? See Livermore, Diss. p. 62 to 106.

* Merlin, Répert. Statut. See, also, Id. Majorité, § 5; Id. Autorisation Mari-
tale, § 10,

5 Thid. * Thid. . 5 Thid.
§ 53, 54.] CAPACITY OF PERSONS. 59

respect his personal capacity to dispose of property, but only the
extent to which it may be exercised by persons who are capable,
there the law of the place, where it is situate, will govern.! Yet
he would seem also to intimate, that there is or may be some dis-
tinction between personal property and real property, (between
movables and immovables,) as to the effect of the operation of the
lex domicilii.?

§ 54. In another place, Merlin lays down the rule, that a law,
which declares a person a major or a minor, who is born within its
reach of jurisdiction, is personal, and extends to property (biens)
situate out of the territory ; or, in other words, that a statute re-
specting majority, full and entire, is personal, and extends to
property (biens) situate out of the territory. Le statut de la ma-
jorité pleine et entiére est personnel, et s’etend aux biens situés hors
de son territoire Thus if by the law of the place, where a per-
son has his domicil, he is of majority at the age of twenty, and has
the faculty of disposing of his property situate there, the same
faculty will extend to his property situate in another country,
where he would not be capable of alienating until he was twenty-
five years of age. And he applies this doctrine equally to movables
and immovables.* He admits, that the Voets, Burgundus, Stock-
mans, and Peckius, while they deem such a law to be personal, in-
sist, that it does not extend to the disposal of immovables, situate
in a foreign country, where a different rule as to capacity or ma-
jority prevails.5 Merlin in another place says: “If the law of the

1 Pothier, Cout. d’Orléans, ch. 1, art. 7; 1 Boullenois, Prin. Gen. 16, p. 7; Id.
Observ. 19, p. 338, &c.; Rodenburg, ch. 3, § 4, 9,10, p. 7 to 9; Id. ch. 2, p. 6;
Voet, de Stat. § 7, ch. 2, P- 125, § 8; Pothier, De Choses, P. 2, § 3; Tivéemens,
Dissert. 82.

? See-Merlin, Répert. Majorité, § 5, p. 188, 189, edit. Brux. 1827.

* Thid. * Ibid.

5 See Merlin, Répert. Majorité, § 5, edit. Brux. 1827, p. 188; Id. Autorisation
Maritale, § 10. Ido not find the citations from some of these ‘authors accurately
given by Merlin. But I believe, that the following will be found to verify his
statement. J. Voet, ad Pandect, Lib. 4, tit. 4, n. 8, Lib. 23, tit. 2, u. 60, n. 186;
P. Voet, ad Statut. § 4, ch. 3, n. 10, p. 153; Burgundus, Tract. 1, n. 5, 6, 7, 8;
Peck. De Testam. Conjug. Lib. 4, ch. 28, Introd. n. 5, 6,7; Stockmans, Decis.
125, § 6,9, p. 262, 263; Christin. Tom. 2, Decis. 56, § 12; Livermore, Dissert.
§47 to 52, p. 50 to 54. Immobilia (says P. Voet) statutis loci, ubi sita; mobilia
loci statutis, ubi testator habuit domicilium. P. Voet de Statut. § 4, ch. 3, n. 10,
p. 153, edit. 1661. Again, he adds: Quid circa successionem. Spectabitur
loci statuta ubi immobilium sita, non ubi testator moritur. Id. § 9, chap. 1, n. 3,
60 CONFLICT OF LAWS. [ cu. Iv.

domicil declares a person incapable to sell, aliene, contract, or to
bind himself in any manner to another, it is impossible that his
immovables, in whatever country they may be situated, can be
aliened, bound, or hypothecated by him. Who has ever doubted,
that the interdiction pronounced against a prodigal, or a madman,
by the judge of his domicil, was an obstacle to the alienation of his
‘property (biens) which is situate within the reach of another ju-
risdiction? Who has ever doubted, that the tutor, (guardian,)
named by the judge of the domicil, has the right to administer the
property (biens) which is within the territory of another judge?”?!
This is very bold and uncompromising language ; but it will be
very difficult to sustain it without many qualifications. It may
be added, that the modern Civil Code of France expressly de-
clares, that the laws concerning the condition and capacity of per-
sons govern Frenchmen, even if residing in a foreign country?
In the progress of our inquiries, it will be found, that many ex-
ceptions are admitted to exist, as to the operation of personal laws,
and that the practice of nations by no means justifies the doctrine
in the extent to which it is ordinarily laid down by many foreign.
jurists.
§ 54 a. John Voet, on the other hand, is one of the few jurists,
who insist, that-personal statutes of all sorts, respecting capacity
or incapacity, majority or minority, legitimacy or illegitimacy,
have no extra-territorial operation, either directly or consequen-
tially. Verius est (says he) personalia non magis quam realia ter-
ritorium statuentis posse excedere, sive directo, sive per conse-
quentiam.? And he goes on to add: Ita nec ratio ulla est, cur
magis qualitas et habilitas privato per statutum data vel denegata,
vires extenderet per ea loca, in quibus diversum quid aut contra-
rium circa personarium qualitatem lege cautum est. Quod, si hae
cuiquam minus videantur sufficere, is velim mihi rationem modumve
expediat, per legislator personam, domicilii intuiti sibi suppositam,
habilem quem inhabilemve ad actus gerendos declarans, alterius
loci legislatorem, potestate parem cogeret, ut is alienis decretis sta-
tutisve pareret, aut rata irritave haberet, que judex domicilii talia

p- 805. See 1 Burge’s Comment. on Col. and For. Law, P. 1, ch. 3, § 3) p. 118 to
129.

? Merlin, Répert. Autorisation Maritale, § 10, art. 2.

* Code Civil of France, art. 3; Post, § 68.

* Voet, ad Pand. Lib. 1, tit. 4, § 7, p. 40.
§54-55.] CAPACITY OF PERSONS. 61

esse jussit in persond domicilium, illic fovente; maxime, si fateatur
(ut fateri necesse est) pari in parem nullam competere cogendi
‘potestatem. Eaponat, obsecro, prodigo declarato, vel infamid
notato, vel legitimato, vel in ipso pubertatis tempore habili ad tes-
tamentum condendum declarato per magistratum Hollandum, ac
Ultrajectum se conferente vel immobilia possidente; exponat in-
quam, quad juris vid magistratus. Ultrajectinus adstringi posset,
ut istum ratione bonorum, in Ultrajectino solo sitorum, pro tali
agnosceret ; adeoque contractus prodigi Hollandici haberet irritos;
dignitates Hollando infamato denegaret ; successtonem in bona Tra-
‘jectina ad spurium Hollandum legitimatum pertinentia, tanquam in
‘legitime nati patrimonium, pateretur proximis deferri ; testamentum
masculi, ante annum etatis octavum decimentum conditum, juberet
ratum esse.

§ 55. Hitherto we have been considering cases of the capacity
or incapacity of persons, arising from the domicil of origin, where
there has been no subsequent change-of domicil; as to which, as
we have seen, the doctrine of foreign jurists is, that the law of the
original domicil is to prevail, as to such capacity or incapacity ;
some of them holding, that it applies to all personal acts what-
ever, and to all alienation of property, whether movable or im-
movable; and others apply it only to personal acts and movable
property, where there is a conflict of personal laws. But, sup-
pose, that a person has had different domicils, a domicil by birth,
and a subsequent domicil by choice, when he is sui juris, which is
to prevail, as to his capacity or incapacity ?? Hertius does not
hesitate to say, that the law of the new domicil is to prevail. Hinc
status et qualitas persone regitur a legibus loci, (says he,) cui ipsa
sese per domicilium subjecit. Atque inde etiam fit, ut quis major
hic, alibi, mutato scilicet domictlio, incipiat fiert minor The like
opinion appears to be held both by Paul Voet and by John Voet.*
The-former says: Mullum statutum, sive in rem, sive in personam,
si de ratione juris civilis serma instiluatur, sese extendit ultra’ sta-

* Voet, ad Pand. Lib. 1, tit. 4, § 7, p. 40.

1 See on this subject, 1 Burge, Comment. on Col. and For. Law, P. 1, ch. 3,

§ 3, p. 102 to p. 106; Id. ch. 4, p. 118 to p. 125.
"® 2Hertii, Opera, §4,n. 5, p. 122; Id. n. 8, p. 123; Id. p. 178, 175, edit. 1716.
* 2 Boullenois, App. p. 57; Merlin, Répert. Majorité, § 4, edit. Brux. 1827, p.
186 ; Merlin, Rép. Retroactif, § 3, art. 9, u. 3; P. Voet, de Stat. § 4, ch. 2, n. 6,
p. 187, 188; Rodenburg, De Div. Stat. p. 2, ch. 1, § 5, 6; J. Voet, ad Pand. Lib.

4, tit. 4, n. 10; 1 Boullenois, Observ. 4, p. 58.
CONFL. 6
62 CONFLICT OF LAWS. ‘[ou. rv.

tuentis territorium The latter holds, that the change of domicil
of a person gives him the capacity or incapacity of his new dom-
icil; so that if he is of majority by the law of the place of his

birth, and he removes to another country, by whose laws he would,

according to his age, be a minor, he will acquire the character of:
his new domicil. Si quis ex lege domicilii derelicti anno forte

vicesimo completo major factus fuerit, translato domicilio ad locum

illum, ubi non nisi absoluto viginti quinque annorum curriculo

quisque major habetur, non dubitem quin ex novi domicilii jura in-

cipiat iterum minorennis esse?

§ 55 a. Froland thinks this question cannot be answered uni-
versally ; and he puts a distinction. ‘“ If” (says he) “the ques-
tion is purely as to the state of the person, abstracted from all
consideration of property, or subject-matter, (abstracté ab omni
materié reali,) in this case the law, which first commenced to fix
his condition, (that is, the law of the domicil of bis birth,) will
preserve its force and authority, and follow him wherever he may
go. Thus, if by the law of the domicil of his origin a person
attains his.majority at twenty years, and he goes to reside in an-
other place, where the age of majority is twenty-five years, he is
held to be of the age of majority everywhere; and, notwithstand-
ing he is under twenty-five years, he may in his new domicil sell,
aliene, hypothecate, and contract, as he pleases, and vice versd.”®
“ But” (he adds) ‘“‘ when the question is as to the ability or dis-
ability of a person, who has changed his domicil, to do a certain
thing, (@ faire une certain chose,) then that, which had governed
his power, (that is, the law of his original domicil,) falls, and fails
entirely in this respect, and yields its authority to the law of his
new domicil. Thus, if a married woman, by the law of the coun-
try of her birth, is not allowed to pass property by will, without
the consent of her husband, and she acquires a new domicil in
another country, where no such restriction exists, she has full
liberty to dispose of her property in the latter country by will,
without the consent of her husband; and vice versd.t This isa
very nice, if it be not in many cases an evanescent, distinction;

* P. Voet, ad Statut. § 4, ch. 2, n. 7, p. 138, edit. 1661.

* 1d. Voet, ad Pand. Lib. 4, tit. 4, n. 10; Id. Lib. 5, tit. 1, u. 101.

* Froland, Mém. ch. 7, § 13, 14, p. 1713 post, § 138, note. See 2 Boullenois, _
" Obs. 32, p. 7 to p. 11; Bouhier, Cout. de Bourg. ch. 22, § 4 to § 10.

* 1 Froland, Mém. ch. 7, § 15, p. 172; post, § 138, note.
§ 55-56.) CAPACITY OF PERSONS. 63

and Froland admits that a different doctrine -is held by many
jurists. But he is not singular in his opinion of the value and
importance of this distinction.2? Boullenois has given to it a quali-
fied sanction. Bouhier also cites the same distinction with ap-
probation, declaring it to be judicious; and he insists, that in case
of a transfer of the domicil, the law of the original domicil ought
in all cases to regulate the personal capacity ; and he enlarges on
the subject with much ability.4

§ 56. On the other hand, Burgundus does not hesitate to hold,
that the law of the new or actual domicil ought to prevail. After
citing the opinion of Baldus and Gail and Imbertus, that the state
of the person is to be decided by the place of his domicil ; Ideo,
si status persone inspici debeat, dumtaxat rationém haberi Baldus
existimat, cujus opinionem Andreas Gail et Imbertus amplectuntur ;
adeo ego, (he adds,) nisi ex privilegio vel longissimo usu aliud sit
introductum Proinde ut sciamus uxor in potestate sit mariti necne,
qué e@tate minor contrahere posset, et ejusmodi, respicere oportet
ad legem cujusque domicilii. Hac enim imprimit qualitatem per-
sone, atque adeo naturam ejus afficit, ut quocumque terrarum ‘sit
transitura, incapacitatem domi adeptam non aliter quam cicatri-
cam im corpore foras circumferat. Comsequenter dicemus; si
mutaverit domicilium persona, novi domicilii conditionem induere.®
Rodenburg is of the same opinion, upon the ground, that the state
and condition of the person is- wholly governed by the law of his
actual domicil; and when that is changed, his state and condition
change with it; Persone enim status et conditio cum tota regatur
a legibus loct, cui illa sese per domicilium subdiderit, utique mutato
domicilio, mutari et necesse est persone conditionem® And he

1 Ibid. Boullenois remarks on this distinction of Froland, that it contains some
truth mixed up with much obscurity, and embarrassed with ideas, liable to con-
tradiction, without being answered. 2 Boullenois, Observ. 32, p. 8, 9.

* See Rodenburg, De Div. Stat. tit. 2, ch. 1, 2, 8, 4, tit. 3, ch. 1, 2, 3, 4, tit. 4,
ch. 1, 2, 3,4; 2 Boullenois, App. p. 1, to p. 33; Id. p. 71 to p. 79; Id. p. 84 to p.
95; 2 Boullenois, ch. 1, Obs. 32, p. 1 to p. 53; Merlin, Répert. Effet Retroactif,
§ 3, p. 2, art. 5, u. 3, edit. Brux. 1827, p.15 to p. 18; Id. Majorité, § 4, p. 186,
187.

® 2 Boullenois, Observ. 32, p. 7 to p. 11.

* Bouhier, Cout. de Bourg. ch. 22, § 4 to § 10; Id. § 22, cited Merlin, Répert.
Autorisation Maritale, § 10, art. 4, edit. Brux. 1827, p. 243.

® Burgundus, Tract. 2, n. 5, 6, 7; post, § 140 a.. Cited also in Merlin, Répert.
Effet Retroactif, § 8, p. 2, art. 5, p. 14, Brux. edit. 1827.

* Rodenburg, De Div. Stat. tit. 2, P. 2, ch. 1, n. 3; 2 Boullenois, Observ. 32,

, p. 2,5, 7; Id. Appx. p. 56,57; post, § 71.
64 CONFLICT OF LAWS. [cu. rv.

applies the rule indiscriminately to the case of minors and to the
case of married women.! D’Argentré is also of the same opin-
ion, and says: Quotiescunque de habilitate aut in habilitate per-
sonam queratur, toties domicilii leges et statuta spectanda. Ratio
est, quia hic abstract2 de habilitate persone, et universal ejus
statu queratur, ideoque persone a foro domicilit afficiatur. Nam
originis locus nusquam in foro considerationem habet, cum aliud
domicilium probonitur?

§ 57. Boullenois (whose opinions will be stated more fully
hereafter)? admits the general principle to be, as Rodenburg
states it, and asserts, that the whole world acknowledges, that
the state of the person depends on his actual domicil, and that
the natural consequence is, that if a person changes his domicil,
and the law of the new domicil is contrary to that of the old one,
the state and condition of the person change accordingly. But
then he insists, that it is necessary to make a distinction between
the states and conditions of persons, which arise from laws (droits)
founded in public reasons, admitted by all nations, and which
have a cause absolutely unconnected with domicil, so that the
moment a man is affected with these states and conditions, the
original domicil not having any influence upon them, the new
domicil ought not to have any, but merely the public reasons,
superior to those of domicil, to which all nations pay respect; and
other subordinate states and conditions, which are in truth found-
ed in public laws, (droits publics,) but for one nation only, or for
certain provinces of that nation.6 Among the former class he
enumerates interdiction, or prohibition to do acts, by reason of
insanity, or of prodigality, emancipation by royal authority, legiti-
macy of birth, nobility, infamy, &c. These, he contends, are

* Rodenburg, De Div. Stat. tit. 2, P. 2,ch.1; Id.n. 5,6; 2 Boullenois, Ob-
serv. 32, p. 2, 5, 7,8; Id. Appx. p. 56, 57; post, § 71.

* D’Argentré, De Leg. Briton. art. 218, n. 47, 49; 1 Boullenois, Obs. 4, p. 53;
post, § 84. Yet, though the language of D’Argentré is thus explicit, Boubier
seems to suppose, that he aided his own opinion, because he has added in another
place: Affecta quocunque modo persona domicilii lege, aut jure, eo perpetuo sic
tenetur, ut ne ulla mutatione loci sese possit exercere. Bouhier, Count. de Bourg.
ch. 22, § 9. But it is plain that D’ Argentré is here speaking of a mere change of

place, without a change of domicil, D’Argentré, de Leg. Briton, art. 218, § 13,
p- 603.

® Post, § 71.
* 2 Boullenois, Observ. 82, p. 10, 18.
® 2 Boullenois, Observ. 32, p. 10, 11, 13, 19; post, § 71.
§ 56-58.] CAPACITY OF PERSONS. 65

never altered by any change of domicil ; but that having at first
fixed the condition of the person, the change of domicil does not
cause them to cease.) Among the latter class he enumerates the
community of property between husband and wife; the state of
the husband, as to the marital power; the state of the father, as
to real rights of the paternal power, and other subordinate states.
These, he contends, sometimes are affected by a change of domicil,
and sometimes are not.?, Some of this last class (he adds) affect
the person at least in vim conventionis tacite; and this, accord-
ing to the opinion of a great number of jurists, is the case in re-
spect to the law of the community of property between husband
and wife.? Others of the same class affect the person in vim solius
legis; such is the statute or law, Senatus consultum Velleianum,
which prohibits married women from making obligatory personal
contracts with others.* Boullenois himself holds, that the capacity
of married women is governed by the law of the actual or new
domicil;® but that the capacity of minors is governed by the law
of their domicil of birth. He also holds, that the paternal power
is regulated by the domicil of birth.’ But, here, again, he dis-
tinguishes between movable property and immovable property ;
holding that the law of the domicil of birth governs as to the
former, and the law of the situation (situs) as to the latter.®

§ 58. Merlin, after citing the opinions of other jurists, formerly
came to the conclusion, that the law of the place of birth, and
not that of the new domicil, ought to govern equally in all these
cases, of minority, of paternal power, and of marital power after
marriage ; and he expressed surprise, and not without reason, that
Boullenois should have attempted to distinguish between them.®
It is certainly not for me to interfere in such grave controversies

1 2 Boullenois, Observ. 32, p. 11; post, § 71; 1 Boullenois, Observ. 4, p. 50,
64.

? 2 Boullenois, Observ. 32, p. 11, 12, 13; post, § 71.

3 2 Boullenois, Observ. 32, p. 11; post, § 148 to 171.

* 2 Boullenois, Observ. 32, p. 11, 13; ante, § 15; post, § 71, 425.

5 2 Boullenois, Observ. 32, p. 13 to p19; 1 Boull. Obs. 4, p. 61; post, § 71.

$ 2 Boullenois, Observ. 32, p.19, 20 to p. 31; 1 Boull. Obs. 4, p. 53, 54; Id.
Dissert. Mixtes, Quest. 2, p. 40 to p. 62; Id. Quest. 20, p. 406 to p. 447.

7 2 Boullenois, Observ. 32, p. 31 to p. 53; 1 Boull. Obs. 32, p. 68; post, § 71.

® 1 Boullenois, Obs. 32, Bs 32, 33, to p. 53; Id. Dissert. Mixtes, Quest. 20, p.
406 to 447,

* Merlin, Répert. Antorisation Maritale, § 10, art. 4, edit. Brux. 1827, p, 243,

2445; post, § 139.
6%
66 CONFLICT OF LAWS. [ou. Iv.

between these learned jurists, differing from each other, sometimes
in leading principles, and sometimes in deductions and distinc-
tions, applicable to principles, in which they agree. Non nostrum
inter vos tantas componere lites, Yet Merlin himself, after having
advocated this doctrine, as best founded in principle, although
involving some inconveniences, still insisted, that upon such a re-
moval to a new domicil, the capacity of a person to dispose of his
movable property by a testament is to be governed by the law of
the new domicil; because the state of a person has no influence,
as to the distribution of his movable property after his death;
and the capacity to make a will, resulting from age, has nothing
in common with what is properly called the state of the person;
which is so true, that his state is governed by the domicil, and
the situation decides solely concerning the age, at which a person
may dispose of movable property upon his death.1 It seems, how-
ever, that Merlin has since, upon further reflection, come to a
different conclusion ; and he may be now numbered among those,
who support the doctrine, that the law of the new domicil ought
to govern in all cases, whether they respect capacity, or minority,
or the paternal power, or the marital power after mariage.?

§ 59. Pothier holds the doctrine in the most unqualified terms,
that the law of the new or actual domicil ought in all cases to
govern; and that the change of domicil discharges. the party
from the law of his former domicil, and subjects him to that of
his new domicil. Le changement de domicile delivre les person-
nes de ’ Empire des Lois du lieu du domicile, qu’elles quittent, et
les assujettit d celles du liew du noveau domicile, quelles acquie-
rent.2 Whatever doubts may be suggested of the correctness of
his opinion in a juridical sense, it must be admitted to possess
the strong recommendation of general convenience and certainty
of application.*

* Merlin, Répert. Majorité, § 4; Id. Effet Retroactif, § 3, n. 2, art. 5, 0.33 Jd
Autorisation Maritale, § 10, art. 4, edit. Brux. 1827.

* See Merlin, Répert. Effet Retroactif, § 3, n. 2, art. 5, p. 18, &c., edit. Brux.
1827; Id, Autorisation Maritale, § 10, art. 4, p. 248, 244; Id. Majorité, § 4, p.
187, 188. See, also, Id. Testament, § 1, n. 5, art. 1, art. 2, p. 309 to 824; post,
§ 139.

5 Pothier, Cout. d’Orléans, ch. 1, art. 1, n. 13.— We shall presently see, that
Lord Stowell holds the opinion, that a change of domicil may change the state
and condition of the party ; as, for example, if he be a slave. See The Slave
Grace, 2 Hagg. Adm. R. 94, 113; post, § 96, 96 a.

* See 1 Burge, Comment on Col. and For. Law, P. 1, ch. 8, § 8, p. 118, 119.
§ 58 - 60.] CAPACITY OF PERSONS. 67

§ 60. Huberus, instead of relying upon the mere quality of
laws, as personal, or real, or mixed, lays down the following
doctrine. Personal qualities, impressed by the laws of any place,
surround and accompany the person, wherever he goes, with this
effect, that in every place he enjoys, and is subject to the same
law, which such persons elsewhere enjoy, or are subject to. Quali-
tates personales certo loco alicui jure impressas, ubique circumferri
et personam comitari, cum hoc effectu, ut ubique locorum eco jure, .
quo tales persone alibi gaudent vel subjecti sunt, fruantur et sub-
jiciantur.1 Therefore, (he adds,) those, who with us are under
tutelage or guardianship, such as minors, prodigals, and married
women, are everywhere deemed to be persons subject to such
guardianship ; and possess, and enjoy the rights, which the law
of the place attributes to persons under guardianship. Hence,
he, who in Friesland has obtained the privilege of age, (veniam
etatis,) contracting in Holland, will not there be entitled to resti-
tution in integrum, as if he were a minor.? In other words, he,
who in Friesland has obtained the privilege of an exemption from
the disabilities of his minority, will not, if he afterwards contracts
in Holland, be deemed entitled to the privilege of being there
-held a minor, so as to exempt him from liability on his contract,
(1bi non restituitur in integrum.*) He, who is declared a prodi-
gal here, cannot enter into a valid contract or be sued in another
place. Hinc qui apud nos in tutelé curdve sunt, ut adolescentes,

* Huberus, De Conflict. Leg. Lib. 1, tit. 3, § 12.

® Thid.

8 Ibid. Under the Roman Law the Preetor by his Edict declared, that he would
grant redress in regard to transactions with minors under twenty-five years of
age. Quod cum minore quam viginti-quinque annos natu, gestum esse dicetur ;
uti queque res erit, animadvertam. Dig. Lib. 4, tit. 4, 1.1; Pothier, Pand. Lib.
4, tit. 4, n.1. But those persons, who had obtained the privilege of age, were not
entitled to any such relief. Eos, qui veniam etatis 4 principali clementia impe-
traverunt, etiamsi minus idonee rem suam administrare videantur, in integrum
restitutionis auxilium impetrare non posse, manifestissimum est; ne hi, qui cum
eis contrahunt, principali authoritate circumscripti esse videantur. Cod. Lib. 2,
tit, 45, 1.1; Pothier, Pand. Lib. 4, tit.4,n. 4. The action thus given to minors
was often called Restitutio in integrum. Vicat. Vocab. Voce, Restitutio.

* The Veniam Atatis is a privilege granted by the Prince or Sovereign, where-
by the party is entitled to act, and to have all the powers to act sui juris, as if he
were of full age. See Vicat. Vocabul. Voce, ‘ Veniam tats.” Calvinus, Lex.
Jurid. ch. v.; Cod. Lib. 2, tit, 45, 1. 1; Rodenburg, De Diversit. Statut. tit. 1, ch.
8,§9; 2 Boullenois, App. 9; 1 Burge, Comment. on Col. and Foreign Law, P.
1, ch. 3, § 3, p, 116.
68 CONFLICT OF LAWS. [ cH. IV.

filii-familias, prodigi, mulieres nupte, ubique pro personis, cure
subjectis habentur, et jure, quod cura singulis in locis tribuit, utun-
tur, [et] fruuntur. Hinc, qui in Frisid veniam etatis impetravit,
in Hollandid contrahens, ibi non restituitur in integrum. Qui pro-
digus heic est declaratus, alibi contrahens valide non obligatur,
neque convenitur.. Again, in some provinces, those, who are over
twenty-one years of age, are deemed of majority, and may alien-
ate their immovable property, and exercise other rights less
important even in those places, where no one is deemed of ma-
jority, until he has attained twenty-five years; because all other
governments give effect by comity to the laws and adjudications
of other cities in regard to their subjects, so, always, that there
be no prejudice to their own subjects, or their own law.?

§ 61. He goes on to remark: ‘There are some persons, who
thus interpret the effect of laws respecting the quality of persons,
that he, who in a certain place is a major, or a minor, in puberty,
or beyond it, a son subject to paternal power, or a father of a
family, under or out of guardianship; everywhere enjoys, and is
subject to the same law, which he enjoys, and to which he is
subject, in that place, where he first becomes, or is deemed such:
So that whatever he could do, or could not do in his own coun-
try, the same is allowed, and prohibited to him to do.? This
seems to me unreasonable, and would occasion too great a con-
‘fusion of laws, and a burden upon neighboring nations, arising
from the laws of others. The importance of this thing will be
made plain by a few examples. Thus, an unemancipated son,
Cjilias familids,) who cannot in Friesland make a testament, goes
into Holland, and there makes a testament; it is asked, whether
it has any validity? I suppose it is valid in Holland, according
to my first and second rule;® because the laws bind all those
who are within any territory; neither is it proper, (civile sit,)
that Hollanders, in respect to business done among themselves,
should, neglecting their own laws, be governed by foreign laws.’
But it is true, that this testament would not have effect in
Friesland, according to the third rule;7 because in that way
nothing would be more easy than. for our citizens to elude our

 Huberus, De Conflict. Leg. Lib. 1, tit. 3, § 12.

* Huberus, Lib. 1, tit. 3,§ 12; ante, § 29; post, § 189, 145.
® Huberus, Lib. 1, tit. 8,§ 12. ~

* Tid. 5 Ante, § 29.
§ Huberus, Lib. 1, tit. 8, § 13. T Ante, § 29.
§60—64.} CAPACITY OF PERSONS. 69

laws, as they might be evaded every day.1_ But such a testament:
would be of validity elsewhere, even where an unemancipated
son could not make a will; for, there, the reason of evading the
laws of a country by its own citizens ceases; for in such a case
the fact (of evasion) would not be committed.’ ?

§ 62. This doctrine of Huberus is not in its full extent main-
tainable, and especially in relation to immovable property, it is
universally repudiated by the common law, and in many cases is
also denied by foreign jurists. Lord Stowell has expressly said,
that he does not mean to affirm, that Huberus is correct in laying
down as universally true, that being of age in one country, a man
is of age in every other country, be the law of majority of the lat-
ter what it may.*

§ 63. Without venturing further into the particular opinions
maintained by foreign jurists on this subject, under all its various
aspects, (a task, considering the great diversity of judgment among
them, which would be almost endless,) it may perhaps be useful to
place before the reader some of the doctrines, maintained by foreign
jurists, which appear best established, or, at least, which seem to
have the sanction of such authority, as has given them a superior
weight and recommendation in the jurisprudence of continental
Europe.é

§ 64. In the first place the acts of a person, done in the place of
his domicil, in regard to property situated therein, are to be judged
of by the laws of that place, and will not be permitted to have any
other legal effect elsewhere, than they have in that place.6 There
are exceptions to this rule; but they result from some direct or

‘implied provisions of law in the customary or positive code of the
country, in which the act comes in judgment, applying to the very
case; for it is competent for a country, if it pleases, to prescribe
its own rule for all cases, arising out of transactions in foreign

1 Huberus, Lib. 1, tit. 3, § 13. .? Thid.

5 See the authors cited by Merlin, Répert. Majorité, § 5; post, § 363 to § 373,
§ 474 to § 479.

* Ruding v. Smith, 2 Hagg. Ecc. Rep. 391, 392.

® See 1 Burge, Comment. on Col. and Foreign Law, P. 1, ch. 4, p. 118 to p.
129.

* « Statutum personale,” (says Paul Voet,) “ ubique locorum personam comita-
tur, in ordine ad bona intra territorium statuentis sita, ubi persona affecta domi-
cilium habet.” P. Voet, De Statut. § 4, ch. 2, § 6, p. 188, edit. 1661. See 1
Burge, Comment. on Col. and For. Law, P. 1, ch. 4, p. 113.
70 CONFLICT OF LAWS. [cu. rv.

countries, whenever any rights under them are brought into con-
troversy, or are sought to be enforced in its own tribunals. If,
therefore, a person has a capacity to do any act, or is under an in-
capacity to do any act, by the law of the place of his domicil, the
act, wlien done there, will be governed by the same law, whenever
its validity may come into contestation with any other country.
Thus, an act done by a minor, in regard to his property, situate in
the place of domicil, without the consent of his guardian, if valid
by the law of the place of his domicil, where it is done, will be
recognized as valid in every other place; if invalid there, it will
be held invalid in every other place. So, if a married woman, who
is disabled by the law of the place of her domicil from entering
into a contract, or from transferring any property therein, without
the consent of her husband, should make a contract, or transfer
any property situated therein, the transaction will be held invalid,
and a nullity in every other country.! This seems to be a principle
generally recognized by all nations, in the absence of any positive
or implied municipal regulations to the contrary; according to the
maxim quando lex in personam dirigitur, respiciendum est ad ee
illius civitatis, que personam habet subjectam.?

§ 65. In the next place, another rule, directly connected with
the former, is, that the personal capacity, or incapacity, attached
to a party by the law of the place of his domicil, is deemed to
exist in every other country, (qualitas personam, sicut: umbra
sequitur,)- so long as his domicil remains unchanged, even in rela-
tion to transactions in any foreign country, where they might
otherwise be obligatory.2 Thus, a minor, a married woman, a

+ 1 Boullenois, Prin. Gén. 6; 1 Froland, Mém. des Statuts, ch. 7, p. 156.

* 1 Hertii, Opera, De Collis. Leg. § 4, art. 8, p. 128, edit. 1737; Id. p. 175,
edit. 1716. The learned reader is referred for proofs to Huberus, De Conflict.
Leg. Lib. 1, tit. 3, § 12, 18, 15; 1 Boullenois, Prin. Gén. 10, 12, 16, 17; Id. Ob-
serv. 8, tit. 1, ch. 3, p. 145, &c.; 2 Boullenois, Observ. 32, tit. 2, ch. 1, p. 11053;
Rodenburg, De Divers. Statut. ch. 3; 2 Boull. App. p. 7; Id. tit. 2,ch.1; 2
Boull. App. p. 10; P. Voet, De Statut. § 4, ch. 2; Id. ch. 3, p. 128, 143, edit
1661; 1 Hertii, Opera, De Collis. Leg. § 4, 8, p. 123, edit. 1737; Id. p. 175, edit
1716; Froland, Mém. des Statuts, P. 1, ch. 5, 7; Id. P. 2, ch. 33; Bouhier, Cout.
de Bourg. ch. 22, 23, 24.

age Ergo conditio persone a causa domicilii tota regitur. Nam ut consentiunt
Doctores, idem sunt forum sortiri et statutis subjici ; et unusquisque talis esse pra-
sumitur, qualis est dispositio statuti sue patria. Proinde, ut sciamus, uxor in po-
testate sit mariti necne, qua state minor contrahere. possit, et ejusmodi respicere
oportet ad legem cujusque domicilii.” Burgundus, Tract, 2, n. 6; 1 Boullenois,
§ 64-66.] CAPACITY OF PERSONS. 71

prodigal, or a spendthrift, a person non compos mentis or any other
person, who is deemed incapable of transacting business (sui juris)
in the place of his or her domicil, will be deemed incapable every-
where, not only as to transactions in the place of his or her dom-
icil, but as to transactions in every other place.!

§ 66. Thus, according to this rule, if an American citizen, dom-
iciled in an American State, as, for instance, in Massachusetts,
where he would be of age at twenty-one years, should order a pur-
chase of goods to be made for him in'a foreign country, where he
would not be of age until twenty-five years old, the contract will
nevertheless be obligatory upon him.? On the other hand, a per-
son, domiciled in such foreign country, of twenty-one years of age
only, who should order a like purchase to be made of goods in
Massachusetts, will not be bound by his contract; for he will be
deemed a minor and incapable of making such a contract.2 The

“same rule will govern in relation to the disposition <1 personal or
movable property by any person who is a minor or a major in the
place of his domicil; for it will be valid, or not, according to the
law of the place of his domicil, wherever such property may be

Observ. 4, p.58. “C’est ainsi, (says Boullenois,) que la majorité et la minorité
du domicil ont lieu partout, méme pour les biens situés aillours.” 1 Boullenois,
Prin. Gén. art. 6; Id. Observ. 10, 12, and 46. “ Celui qui est majeur (says Fro-
land) suivant la coutume, ou il a pris naissance, et sour laquelle il réside, est. ma-
jeur partout, et peut comme tel, aliener, hypotequer, vendre ses biens, sans con-
sidérer, si suivant la loi de leur situation il seroit mineur.” 1 Froland, Mém. des
Statuts, ch. 7, p. 156. Rodenburg holds the same doctrine. Rodenburg, De Di-
vers. Stat. tit. 2,ch.1. So D’Argentré: “ Quotiescunque de habilitate aut de
inhabilitate personarum queratur, toties domicilii leges et statuta spectanda.”
D’Argentré, de Briton. Leg. des Donations, art. 218, Gloss. 7, n. 48,49. 1 Liv-
ermore, Diss, 34. So, John Voet: ‘“ Potius domicilii leges observandas existi-
mem ; quoties in questione, an quis minor vel majorennis sit, obtinuit, id dijudi-
candum esse ex lege domicilii; sit ut in loco domicilii minorennis, ubique terrarum
pro tali habendus sit, et contra.” J. Voet, ad Pand. Lib. 4, tit. 1, § 29. See
also, Felix, Conflict des Lois-Revue Etrang. et Fran. Tom. 7, 1840, p. 200 to p.
216, : \

1 1 Boullenois, Prin. Gén. 10, 19, et Observ. 4, 12, 16, p. 5; 1-Froland, Mém.
des Stat. ch. 7, p. 155, 156; Rodenburg de Divers. Stat. tit. 2, ch. 1; 2 Boulle-

‘ nois, Appx. p. 10.

° By the law of some commercial countries, the age of twenty-five years is that
of majority. This was the old law of France ; but the modern code has changed
the age of majority to twenty-one, except as to marriage without the consent of
parents. Code Civil of France, art. 488; Id. art. 148. See also, Rodenburg, de
Statut. tit. 2, ch. 1; 2 Boullenois, Appx. 10.

® Huberus, De Conflictu Legum. Lib. 1, tit. 3, § 12.
72 CONFLICT OF LAWS. [cu. rv.

situate! There are exceptions also made to this rule; but they
stand upon peculiar grounds, as expounded by foreign jurists.

§ 66 a. The like rule will apply to the capacity and incapacity
of married women. If by the law of the place of the domicil of
the husband a married woman has a capacity to sue, or to make a
contract, or to ratify an act, her acts so done will be held valid
everywhere. On the contrary, if she is deprived of such capacity
by the law of the domicil of her husband, that incapacity exists in
relation to all the like acts and contracts, even when done in a
foreign country, or with reference to property in a foreign country.?

§ 67. The ground, upon which this rule has been generally
adopted by many eminent continental jurists, doubtless is that,
suggested by Rodenburg, namely, the extreme inconvenience,
which would otherwise result to all nations from a perpetual flue.
tuation of capacity, state, and condition, upon every accidental
change of place of the person, or of his movable property.2 The
language of Rodenburg is: Quid igitur rei in causa est, quod per-
sonalia statuta territorium egrediantur? Unicum hoc ipsa ret na-
tura ac necessitas invexit, ut, cum de statu ac conditione hominum
queritur, uni solummodo Judici, et quidem domicilii, universum in
illa Jus sit attributum: cim enim ab uno certoque loco statum hom-
inis legem accipere necesse esset, quod absurdum, earumque rerum
naturaliter inter se pugna foret, ut in quot loca quis ita faciens, aut
navigans delatus fuerit, totidem ille statum mutaret aut conditio-
nem; ut uno eodemque tempore hic sui Juris, illic alieni futurus
sit; uxor simul in potestate viri, et extra eandem sit; alio loco
habeatur quis prodigus, alio frugi; ac preterea quod persona certo
loco non affigeretur, cim res soli loco fixe citra incommodum ejus-
dem legibus subjaceant, summa providentid constitutum est, ut a
loco domicilit, cui quis larem fovendo se subdiderit, statum ac con-
ditionem induat: illis Legislatoribus, pro soli sui genio, optime
omnium compertum habentibus, qué judicii maturitate polleant sub-
diti, ut possint constituere, qui eorum, ac quando ad sua tuenda
negotia indigeant auctoritate. Hec igitur personarum qualitus ac
conditio, ubi venerit applicanda ad res aut actus alterius territorii,

* 1 Froland, des Stat. Mém, ch. 7, p. 157, 158; 1 Boullenois, Prine. Gén. 6,19;
Id. Observ. 4, 12; Rodenburg, De Divers. tit. 2, ch. 1; 2 Boullenois, Appx. p.
10.

* Garnier v. Poydras, 13 Louis. R. 177,

* Rodenburg, De Divers. Stat. tit, 1, ch. 3,n.4; 2 Boullenois, Appx. p. 8. See
also 1 Boullenois.
§ 66-68.] CAPACITY OF PERSONS. 73

jam indirecte, ac per consequentiam vis illius personalis Statuti
extra statuentis, pertinget locum: cam et alids non insolitum sit
multa indirecte permitti et per consequentiam, que directe et ex-
pressim non valerent. Nec est, quod quemquam turbet, quod et
illa Statuta extra territorii limites diximus excurrere, quibus nom-
inatim status hominum in universum non discutitur, que in incertos
personales actus @ persona exercendos, prohibendo eos aut permit-
tendo, concepta sunt.

§ 68. The modern law of France, as it is laid down by Pardes-
sus, is to the same effect.2 “ No act, whatsoever may be its na-
ture,” (says he,) “ can be stipulated, except by persons capable of
binding themselves; and the general consent of civilized nations
has allowed, that whatever concerns the capacity of a person should
be regulated by the laws of the country to which he belongs. A
person, declared incapable by the law of the country, of which he
is a subject, cannot be relieved of that incapacity, except by the
law of that country, as well in regard to the acts, which it permits
him to do, as to the conditions which it prescribes in doing them.
Thus, French minors, incapable of binding themselves by engage-
ments of commerce, unless they are emancipated or authorized,
cannot bind themselves in commercial transactions in a foreign
country, even when the law of that country does not require the
like conditions. So, French married women, who are not public
traders, are not deemed to have contracted valid engagements,
even in commerce, unless they should be authorized by their hus-
bands. Their personal incapacity follows them everywhere. For
the same reason, the French tribunals will not consider as valid
any commercial engagements, entered into in France by minors, or
persons of either sex, who, by the law of their own country, are
rendered incapable, even though the law, to which they are subject,
should require other conditions, than those prescribed by the law
of France. For it is the interest of one government to respect, in
favor of the subject of another government, when he is cited before
its tribunals, the laws, upon the faith of which that foreigner has
contracted, and not to tolerate him in withdrawing himself, by a
mere change of jurisdiction, from the laws which regulate his
capacity, and to which he is bound by his allegiance, wherever he

1 2 Boullenois, Appx. p. 8; Feelix Conflict des Lois-Revue Etrang. et Fran.
Tom. 7, 1840, p. 200 to p. 216.

* Pardessus, De Droit Commercial, Vol. 5, art. 1482, p. 248.
CONFL. 7 ,
74 CONFLICT OF LAWS. [cu. Iv.

may inhabit. Without this, the government, would expose its own
subject to be treated with a like injustice by what is denominated
the right of retaliation or reprisals.1 So also a foreigner, born
under a legislation, which does not require certain formalities, like
those of France, by which a minor, or other person of either sex,
may be authorized to engage in commerce, cannot avail himself of
our laws to escape from his engagement. One has no right to in-
voke for the same object two different legislations; the law, which
regulates, the capacity of the foreigner, regulates it everywhere.
It would be unjust, that he should derive from our legislation, to
which he is not subjected, an advantage, which is not granted to
him by his own proper legislation.” Yet Pardessus is compelled
to admit, that there may be exceptions to the doctrine. Thus, for
example, he says, that certain particular prohibitions, such as the
prohibition of persons, who are nobles, or possessing a certain dig-
nity, to sign bills of exchange, or other engagements, which carry
with them a right to arrest the body, ought not to govern transac-
tions of that sort in foreign countries. However, the modern
Civil Code of France? lays down the general rule in the broadest
terms, and declares, that the laws concerning the state and capa-
city of persons govern Frenchmen, even if resident in a foreign
country: Les loix concernant [état et la capacité des personnes
régissent les Frangois méme résidant en pais étranger3

§ 69. In the third place, another rule is, that, upon a change of
domicil, the capacity.or incapacity of the person is regulated by
the law of the new domicil.t Pothier lays down this rule as we
havé seen, in emphatic terms. “The change of domicil’’ (says
he) ‘‘ delivers persons from the empire of the laws of the place of
the domicil they have quitted, and subjects them to those of the
new domicil they have acquired.” Le changement de domicile
délivre les personnes de Vempire, des lois du lieu du domicile,
qu’elles quittent, et les assujettit ad celles du lieu de nouveau domi-
cile, qu’elles acquiérent.© Burgundus adopts the same rule: Con-

1 5 Pardessua, P. 6, tit. 7, ch. 2, § 1, art. 1482; Henry on Foreign Law, Appen-
dix, p. 221,222. See Cochin, uvres, Tom. 1, p. 154, 4to edit.

* Pardessus, de Droit Commere. Vol. 5, art. 1483, p. 250; post, § 74.

5 Code Civil of France, art. 3; ante, § 54.

* Consult 1 Burge, Comment. on Col. and For. Law, P. 1, ch. 3, § 3, p. 102,
103; Id. P. 1, ch. 4, p. 118 to p. 128, where the principal authorities are col

lected.
® Pothier, Coutum. d’Orléans, ch. 1, art. 1, n. 13; ante, § 51.

 
4 |

§ 68-71. CAPACITY OF PERSONS. 75

sequenter dicemus, si mutaverit domicilium persona, novi domicilii
- conditionem induere.1 So Rodenburg: Persone enim status et
conditio cum tota regatur alegibus loci, cui illa sese per domicilium
subdiderit, utique mutato domicilio mutari et necesse est persone
conditionem.? Froland, indeed, (as we have already seen,) men-
tions a different doctrine, in which to some extent he is followed
by Bouhier and others.’ The doctrine, however, which is most
generally approved, is that, which has been maintained by Pothier,
although it is contradicted by the modern Code of France.*

§ 70. Having stated these rules, it may be proper to notice a
distinction, which in many cases may have a material operation.
So far as respects the capacity or incapacity of the person, the
law of the new domicil would probably prevail in the tribunals
of the country of that domicil, as to all rights, contracts, and acts,
done or litigated there. The same law would probably have a like
recognition in every other country, except that of the original or
native domicil. The principal difficulty, which would arise would
be, how far any rights, contracts, and acts, would be recognized
by the latter, where they were dependent upon the law of the
new domicil, which should be in conflict with its own law on the
same subject. It is precisely under circumstancas of this sort,
that the third axiom of Huberus may be presumed to have a
material influence, namely, that a nation is not under any obliga-
tion to recognize rights, contracts, or acts, which are to its own
prejudice, or in opposition to its own settled policy.5

§ 71. Boullenois was sensible of this distinction, as we have
already seen,® and: says: “On this point it is necessary to dis-
tinguish from others the states and conditions of persons which

1 1 Boullenois, Obs. 4, p. 53; ante, § 51 a, 56; Burgundus, Tract. 2, n. 7,

. 61.
; * Rodenburg, De Divers. Stat. tit. 2, p. 2, ch. 1, n. 3; 2 Boullenois, Appx.
p- 56; 2 Boullenois, ch. 1, and Obs. 32; ante, § 51 a.

* 1 Froland, Mém. ch. 7, § 13, 14, 15, p. 171, 172; Id. ch. 33, § 4,'5, 6, 7, p.
1575 to 1582; ante, § 55 a; Bouhier, Coutum. de Bourg. ch. 22, § 17 to 20, 31,
p- 419 to 421. See also, Henry on Foreign Law, Appendix A,p. 196. See 2
Boullenois, p. 1 to 58; Merlin, Répertoire, Majorité, § 5; Autorisation Maritale,
§ 10; Effet Retroactif, § 2, 3, art. 5; ante, § 55, 55:a, 56.

* Code Civil of France, art. 8. See also, Cochin CEuvres, Tom. 1, p. 154, 4to.
edit. ; ante, § 51 a, 68.

> See on this subject, 1 Burge, Comment. on Col. and For. Law, P. 1, ch. 4,

p- 129 to p. 134.
* Ante, § 57; 2 Boullenois, Observ. 32, p. 10, 11, 13, 19.
76 CONFLICT OF LAWS. [cu. Iv.

arise from laws (qui sont des droits) founded upon public reasons,
admitted among all nations, and which have a foundation or
cause absolutely foreign from the domicil; so that the domicil,
from the moment a man is affected with these states or conditions,
not influencing it in any manner, the new domicil ought not to
influence it, but merely the public reasons, superior to those of
the domicil, to which all nations pay respect. Such are inter-
diction or incapacity from insanity or from prodigality, emancipa-
tion from the paternal power by royal authority, legitimacy of
birth, nobility, infamy, &c. These states do not change with the
change of domicil; and of these it is properly said, that, having
at first fixed the condition of the person, the change of domicil
does not put an end to them.”! And he adds: “ But there are
states and conditions more subordinate, and which in truth arise
from public laws, (que sont, a la verité des droits publics,) but
are for one nation only, or for some provinces of the same nation.
Such are the state of community or non-community (of property),.
among married persons (conjoints) ; the state of the husband as
to his marital power; the state of the father, as to the rights of
property from the paternal power; and these subordinate states
are almost infinitely various.”? In regard to these latter states,
he admits the embarrassment of laying down any general rules,
as to the effect of a change of domicil.2 And-he ‘concludes his -
remarks by saying: ‘‘In the occurrence of so great a number
of laws, (having enumerated several,) which have so different
an effect, what ought one to do in the decision of the questions,
which may be presented by them? For myself, I do not see any
other means, than these.”* He then proceeds to lay down these
rules: (1.) First, to follow the general principles, which declare,
that the person should be affected by the state and condition,
which his domicil gives him. (2.) Secondly; not to derogate
from these principles, except when the spirit of justice and neces-
sity of not injuring the rights of parties requires that it should
be departed from. (8.) Thirdly; not to impair these principles,
when otherwise the law furnishes the means of remedying any
wrong, which the change of domicil might cause. Or, in other
words, he affirms: first, that the law of the domicil ought gen-
1 2 Boullenois, Observ. 32, p. 10, 11, 19.
? Ibid. p. 11. 3 Thid.
 * Thid. p. 12. 5 Ibid. p. 12, 18.
§ 71] CAPACITY OF PERSONS. 17

erally to be followed, as to the state and condition of the persons ;
secondly, that it ought not to be derogated from, except so far as
the spirit of justice, and the necessity of not injuring the rights
of parties, require a departure; thirdly, that the general rule
ought not to be impaired, when the law will otherwise furnish
means to remedy any injury, which the change of domicil may
occasion. He goes on to declare what he supposes to be perfectly
consistent with this doctrine, that when a person in the domicil
of his birth (domicilium originis), has arrived at the age of ma-
jority, and he afterwards removes to another place, where, at the
same years he would still be a minor, the law of the domicil of
his birth ought to prevail. For instance, if a person, who by
the law of the domicil of his birth is of age at twenty, removes
to another place after that age, where the minority extends to
twenty-five years, he does not lose his majority, and become a
minor in his new domicil.2 And, on the other hand, if the same
person is a minor by the law of the place of his birth, and not
so by that of his new domicil, his state of minority continues, not-
withstanding his removal. He deduces the former from the
injustice, which he supposes would follow from reducing a per-
son of majority in the domicil of his birth to a state of minority
upon a change of domicil, so that thereby he is not of an age
sufficiently mature to contract, or to sell, or to alienate property.
The latter he seems to ground upon a like inconvenience of
allowing a man thus to escape from the disabilities of a minority
in the place of his birth, by a mere change of domicil.6 This,
however, is but changing the postures of the case. For Boulle-
nois himself does not hesitate to declare the general principle to
be incontestable, that the law of the actual domicil decides the
state and condition of the person; so that a person by changing
his domicil changes at the same time his condition.? And he is
compelled to admit, that, while he has Froland and Maillaud in
support of his opinion, Lauterback, and Burgundus, and Roden-
burg are against him.? Perhaps a better illustration of the in-
trinsic difficulties of laying down any general rules for all cases

1 Boullenois, Observ. 32, p. 11, 12, 18, 19; ante, § 57.
? Thid. p. 12. 8 Ibid. p. 12, 19, 20.
“ Thid. 5 Thid.
* 2 Boullenois, Observ. 32, p. 13; ante, § 57.
" Ibid. p. 19, 20.
; ne
78 CONFLICT OF LAWS. en. iv.

could not well be imagined; for Boullenois himself, as we have
seen, holds laws respecting the majority and minority of age, to
be laws affecting the state and condition of persons, and, as such,
governed by the law of the domicil; and yet in this instance he
rejects the natural inference from this doctrine.'

§ 72. The reason given by those civilians, who hold the opinion,
that the law of the domicil of birth ought in all cases to prevail
over the law of the place of the actual domicil, in fixing the age
of majority, and that it remains unalterable by any change of
domicil, is that each state or nation is presumed to be the best
capable of judging from the physical circumstances of climate or
otherwise, when the faculties of its citizens are morally or civilly
perfect for the purposes of society. And With respect to cases
of lunacy, idiocy, and prodigality, it is supported by them upon
the general argument from inconvenience, and the great con-
fusion and mischief, which would arise from the same person
being considered .as capable to contract in one place, and in-
capable in another; so that he might change his civil character
and capacity with every change of his domicil.? There may, per-
haps, be a solid ground of argument in favor of giving a univer-
sal operation in all other countries to certain classes of personal
incapacities, created by the law of the domicil of the party; but
it will be difficult to maintain, that the same reasoning does or
can apply with equal force in favor of all personal incapacities ;
or, that the law of the domicil of birth ought to prevail over the
law of the actual domicil. And, even in relation to those per-
sonal incapacities, which are supposed most easily to admit of a
general application, it is by no means so clear, that the argument
from inconvenience is not equally strong on the other side.®

§ 73. The truth, however, seems to be, that there are, properly
speaking, no universal rules, by which nations are, or ought to be,
morally or politically bound to each other on this subject. Each
nation may well adopt for itself such modifications of the gen-
eral doctrine, as it deems most convenient, and most in harmony
with its own institutions and interests, and policy. It may suffer
the same rule, as to the capacity, state, and condition of foreign-
ers, to prevail within its own territory, as does prevail in the place

* 1 Boullenois, Prine. Gén. 8, 10, 11, 17, 18; Id. Obs. 4, p- 51, 52.
* Henry on For. Law, p. 5, 6; Rodenb. tit. 1, ch. 8, n. 4; 2 Boull. App. p. &.
* See 1 Burge, Comment, on Col. and For. Law, P. 1, ch. 4, p. 129 to p. 134.
§ 71-74] CAPACITY OF PERSONS. 719

of their own native or acquired domicil; and it may at the same
time refuse to allow any other rule, than its own law, to prevail,
within its own territory, in respect to the capacity, state, and con-
dition of its own subjects, wherever they may reside, at home,
er abroad. It may adopt a more limited doctrine, and recognize
the law of the domicil both as to foreigners and as to its own
subjects, in respect to transactions and property in that domicil,
whether native or acquired, and at the same time exclude any
operation, except of its own law, as to the transactions and prop-
erty either of foreigners, or of its own subjects within its own
territory. It may adopt the more general doctrine, and allow the
tule of the actual domicil, as to capacity, state, and condition,
to prevail under every variety of change of domicil; or, on the
other hand, it may adhere to the stricter doctrine, that the domicil
of birth shall exclusively furnish the rule to govern in all such
matters. But whatever rules it may adopt, or whatever it may
repudiate, will be alike the dictate of its own policy and sense of
justice; and whatever it may allow, or withhold, will always be
measured by its own opinion of the public convenience and benefit,
or of the public prejudice and injury, resulting therefrom. Prob-
ably the law of the actual domicil (domicilium habitationis) will
be found in most cases to furnish the most safe, convenient, and
least prejudicial rule, at least in regard to transactions and prop-
erty out of the country of the birth of the party (domicilium
originis).1 As to transactions and property within the country
of his birth, the policy of most nations will naturally incline them
to hold their own laws conclusive over their own subjects, wher-
ever they may be domiciled, so far as regards their minority and
majority, and their other capacity, or incapacity, to do acts.

§ 74. Illustrations may be easily found to confirm these re-
marks in the actual jurisprudence of many countries. Thus, (as
we have seen,)? Pardessus, while he contends, that the law of
France, as to personal capacity and incapacity generally, ought to
prevail as to French subjects, wherever they reside, abroad, or at
home, at the same time admits, that it ought not to govern in
relation to certain particular disabilities. Thus, he thinks, that
the law of France, which forbids nobles, or persons of official
dignity, to sign bills of exchange or other engagements, by which

? See 1 Burge, Comment. on Col. and For. Law, P. 1, ch. 4, p. 129 to p. 134.
* Ante, § 68.
80 CONFLICT OF LAWS. [ou Iv.

the bodies of the parties are liable to an arrest for a breach of the
contract, ought not to extend to the like acts of the same persons
done in other countries. For, although it may be urged, that it
is a personal law, which follows the person everywhere, as in the
case of a minor, or of a married woman under the marital power,
and every person is bound to know the state and condition of the
person, with whom he contracts; yet, he contends, that the rule
ought not to be applied, except to the universal state of the per-
son, such as that of a minor or a major, or of a woman subject
to, or free from, the marital power. For, he adds, all nations
agreed in fixing the capacity to contract to a certain age, and
in placing women in dependence upon their husbands.? Every
one will at once perceive how exceedingly loose the distinction
is, for which Pardessus contends, and how unsatisfactory his
reasoning, by which this exception is attempted to be maintained.
The objection to the reasoning is, that if well founded, the argu-
ment from inconvenience would carry it much further; and per-
sons dealing with others may require proof of their majority, or
of their special authority to contract, if they are minors, or
whether they are married or not; and in both cases may guard
against false statements, by requiring a guaranty. On the con-
trary, these special prohibitions, on account of a certain quality
or dignity, are more arbitrary. They are founded less in general
public utility, and ought not, therefore, to be invoked in aid of
the party. At least, the exception ought not to be admitted, ex-
cept between subjects of the same state, or unless the incapacity
of the person, and the nullity of the obligation by the law, were
known at the time of the contract by the other party.’

§ 75. Now, it so happens, that, what Pardessus (and many other
jurists are certainly of the same opinion) supposed to be very clear
doctrine, has been directly overturned, and the contrary doctrine
has been held by the Supreme Court of Louisiana. That court,
in a very learned opinion, have said :.‘ The writers of this subject,
with scarcely any exception, agree, that the laws or statutes, which
regulate minority and majority, and those, which fix the state or
condition of man, are personal statutes, and follow, and govern

* Pardessus, de Droit. Comm. Vol. 5, art. 1483, p. 250.

* Pardessus, Vol. 5, P. 6, tit. 7, ch. 2, § 1, art. 1483, p. 250; Henry on Foreign
Law, App. 222.

5 Thid.
§ 74-76.] CAPACITY OF PERSONS. 81

r

him, in every country. Now, supposing the case of our law, fixing
‘the age of majority at twenty-five, and the country, in which a_
man was born and lived previous to his coming here, placing it at
twenty-one ; no objection could perhaps be made to the rule just
stated. And it may be, and, we believe, would be true that a con-
traet, made here at any time between the two periods already
mentioned, would bind him. But, reverse the facts of the case;
and suppose, as is the truth, that our law placed the age of major-
ity at twenty-one ; that twenty-five was the period, at which a man
ceased to be a minor in the country where he resided; and that,
at the age of twenty-four, he came into this state, and entered into
contracts; would it be permitted that he should in our courts, and
to the demand of one of our citizens plead, as to protection against
his engagements, the laws of a foreign country, of which the peo-
ple of Louisiana had no knowledge? And would we tell them,
that ignorance of foreign laws, in relation to a contract, made
here, was to prevent him from enforcing it, though the agreement
was binding by those of their own state? Most assuredly we
would not.

§ 76. The case first put seems founded upon a principle entirely
repugnant to that, upon which the second rests. In the former
case, the law of the place of the domicil of the party is allowed to
prevail, in respect to a contract made in another country; in the
latter case, the law of the place where the contract is made, is al-
lowed to govern, without any reference whatsoever to the law of
the domicil of the party. Such a course of decision certainly may
be adopted by a government, if it shall so choose. But, then, it
would seem to stand upon mere arbitrary legislation and positive
law, and not upon principle. The difficulty is in seeing, how a
court, without any such positive legislation, could arrive at both
conclusions. General reasoning would lead us to the opinion, that

1 Saul v. His Creditors, 17 Martin, R. 596 to 598. The opinion of the court
was delivered by Mr. Justice Porter. See also, Andrews v. His Creditors, 11
Louis. R. 464, 476. A like doctrine was held, by the same court in another case.
The court on that occasion said: “A foreigner coming into Louisiana, who was
twenty-three years old, could not escape from a contract with one of our citizens,
by averring, that according to the laws of the country he left, he was not a major
until he reached the age of twenty-five.” Baldwin v. Gray, 16 Martin, R. 192,
198. See also, Fergusson on Divorce, App’x, p. 276 to p. 363; post, § 82. Her-
tius, De Collisione, Tom. 1, § 4, n. 5, p. 120, 121; Id. p. 173, 174, edit. 1716.
Grotius seems to have been of opinion, that the lex loci contractus ought to govern
in cases of minority. Grotius, B. 2, ch. 11, § 5.
82 CONFLICT OF LAWS. [ cH. rv.

both cases ought to be decided in the same way; that is, either by
the law of the domicil of the party, or by that of the place, where
the contract is actually made. Many foreign jurists maintain the
former opinion ;! some the latter.? Perhaps it is not very easy to

1 See Livermore, Dissert. § 17, p. 32 to § 56, p.57. Mr. Livermore denies this
doctrine of the Supreme Court of Louisiana to be correct, and has collected in
the place cited the leading authorities in favor of the doctrine, which he contends
is the true one, that the law of the domicil of the person ought universally to pre-
vail, as to his personal capacity or incapacity. Among the authorities in its favor,
he enumerates D’Argentré, Bartolus, Rodenburg, Jason, and Paulo de Castro.
Liverm. Dissert. § 21, p. 34. D’Argentré, Comm. Leg. Briton. art. 218 (Gloss. 6,
n. 47, 48), says: Quotiescunque de habilitate aut inhabilitate personarum quera-
tur, toties domicilii leges et statuta spectanda. Nam de omni personali negotio,
Judicis ejus cognitionem esse, cui persona subsit, ut quocunque persona abeat, ad
jus sit, quod ille statuerit. Bartolus puts the case, whether, if a filius familias
(an unemancipated son) is allowed by the local law to make a testament, a for-
eign filius familias can in the same place make a valid testament ; and he answers
in the negative. Dico quod non; quia statuta non possunt legitimare personam
sibi non subditam, nec circa ipsam personam aliquid disponere. Bartolus, Ad.
Cod. Lib. 1, tit. 1, 1. 1, n. 25, 26. De Castro (as cited in D’Argentré ubi supra)
says, that a statute of Modena, permitting minors to contract at fourteen years of
age, will not make valid a contract at Modena by a minor of that age belonging
to Bologna. Ratio est, quia hic abstracté de habilitate persone, et universali ejus
statu queratur, ideoque persona a statuto domicilii efficiatur. Liverm. Diss. § 21,
p. 34, 35, § 25, p. 37. Burgundus, Christineus, Grotius, and De Wesel, appear
to hold the same opinion. See Voet, ad Pand. Lib. 1, tit. 4, p. 2, n. 7; Burgun-
dus, Tract. 1, u. 8, 34. Rodenburg is still more full to the same point. Rodenb.
de Diversit. Statut. tit. 2, ch. 1, n.1; 2 Boullenois, App. p. 11, cited also Liverm.
Diss. § 31, p. 40, 41. See also, Hertii, Opera, Tom. 1, De Collis. § 4, n. 8.

? Mr Livermore says, that Huberus alone is in favor of the latter opinion. |
draw the conclusion, that P. Voet (Voet, de Statut. § 4, ch. 2, n. 6, p. 137, 138,
edit. 1661) and J. Voet (Voet, ad Pand. Lib. 1, tit. 4, p*. 2, n. 7) entertain the
same opinion. There are probably many other jurists, who are on the same side.
It is very certain, that the rule, that either the law of the domicil of origin, or
the law of the actual domicil, or even the law of the lex loci contractus, is to
govern in all cases, has never been adopted in the English courts. The rule of
the actual domicil, or the place of the contract, has been admitted generally; but
does not (as we shall presently see) universally govern. Mr. Burge has pro-
pounded the same doctrine as the Supreme Court of Louisiana, and said: “Ina
conflict between the personal law of the domicil and the personal law of another
place at variance with it, that of the domicil prevails. But the preceding rule
admits of some qualification. It is not to be applied, when it would enable a
person to avoid a contract, which he was competent to make by the personal law
of the place in which he made it, although be was incompetent by the personal
law of his domicil. Thus, if a person, whose domicil of origin was in Spain,
where he does not attain his majority until his twenty-fifth year, should, at the age
of twenty-three, enter into a contract in England, or any other place, where his
§ 76.] CAPACITY OF PERSONS. 83

decide, which rule would, on the whole, be most convenient for
any nation to adopt. It may be said, that he, who contracts with
another, ought not to be ignorant of his condition: Qui cum alio
contrahit, vel est, vel esse debet, non ignarus conditionis ejus But
this rule, however reasonable in its application to the condition of
a person, as fixed by the law of the country, where he is domiciled,
is not so clear in point of convenience or equity, when applied to
the condition of a person, as fixed by the law of a foreign country.
How are the inhabitants of any country to ascertain the condition
of a stranger dwelling among them, as fixed by the law of a foreign
country, where he was born, or had acquired a new domicil ?
Even courts of justice do not assume to know, what the laws of a
foreign country are; but require them to be proved. How then
shall private persons be presumed to have better means of knowl-
edge? On the other hand, it may be said with great force, that
contracts ought to be governed by the law of the country where
they are made, as to the competence of the parties to make them,
and as to their validity ; because the parties may well be presumed
to contract with reference to the laws of the place, where the con-
tract is made, and is to be executed. Such a rule has certainty
and simplicity in its application. It ought not, therefore, to be
matter of surprise, if the country of the party’s birth should hold
such a contract valid or void, according to its own law, and that,
nevertheless the country where it is made and to be executed,
should hold it valid or void, according to its own law. It has been
well observed by an eminent judge, that “‘ with respect to any ig-
norance arising from foreign birth and education, it is an indispen-
sable rule of law, as exercised in all civilized countries, that a man
who contracts in a country, engages for a competent knowledge of
the law of contracts of that country. If he rashly presumes to
contract without such knowledge, he must take the inconveniences

minority ceases at twenty-one, he would not be permitted to avoid his contract
by alleging that he was a minor, and incompetent to contract, according to the
law of Spain. The maxim, that every man is bound to know the laws of a coun-
try, in which he enters into a contract, is of universal application, and is perfect-
ly just and reasonable ; because it is in his power to obtain that knowledge; but
the maxim, ‘* Qui cum alio contrahit, vel est, vel debet esse non ignarus condi-
tionis ejus,” cannot be applied to those.cases, in which the condition depends on
facts and law, to which he is a perfect stranger. 1 Burge, Comm. on Col. and
For. Law, R. 41. ch. 1, p. 27, 28. See post, § 79 to § 82.
* Dig. Lib. 50, tit. 17,119. See Livermore, Diss. p. 38.
84 CONFLICT OF LAWS. [cu. rv.

resulting from such ignorance upon himself; and not attempt to
throw them upon the other party, who has engaged under a proper
knowledge and sense of the obligation, which the law would impose
upon him by virtue of that engagement.” ?

§ 77. In another case, decided at an earlier period, the Supreme
Court of Louisiana adopted the doctrine, that the laws of the dom-
icil of origin ought to govern the state and condition of the party,
whether as major or as minor, into whatever country the party
removes. But the decision may, perhaps, be thought to rest on its
own peculiar circumstances. The case was this. The plaintiff in
the suit (a female) was born in Louisiana in 1802, and the laws of
the State at. that time fixed the age of majority at twenty-five
years. In the year 1808, the period of majority in the State was
altered to twenty-one years. The plaintiff in 1827 (when the suit
was brought) was, and for several years before had been, a Spanish
subject, and a resident in Spain, where minority does not cease
until twenty-five years. The suit having been brought by her to
recover her share in the succession to her grandmother, in the
courts of Louisiana, before she was twenty-five, the question arose,
whether she was competent to maintain the suit; and that turned
upon another question, whether she was to be deemed a minor, or
not. The court upon that occasion decided, that she was to be
deemed a major, as she was then over twenty-one years of age,
although not twenty-five. Mr. Justice Porter in delivering the
opinion of the court, said: “ The general rule is, that the laws of
the domicil of origin govern the state and condition of the minor,
into whatever country he removes. The laws of Louisiana, there-
fore, must determine at what period the plaintiff became of age;
and by them she was a major at twenty-five. Admitting that her
removal into another country, before the alteration of our law,
would exempt her from its operation, and that her state and con-
dition were fixed by the rules prevailing in the place where she
was born at the time she left it, a point by no means free from
difficulty, no proof has been given, that the plaintiff was taken
out of Louisiana before the change made in 1808. And as the
defendant by pleading the minority assumed the affirmative, it was
her duty to establish the fact on which the exception could be sus-
tained.”? The question, therefore, did not here arise, as to the

* Lord Stowell, in Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 61; ante,
§ 753; post, § 82.
* Barrera v. Alpuente, 18 Martin, R. 69.

-
§76-79.] CAPACITY OF PERSONS. 85

‘

effect of any contract, made in Louisiana, (as in the preceding
case), but the simple question of the state of minority or majority,
or the competency of the party to maintain a suit in her own
name, as being swi juris. The court seem to have acted upon the
general doctrine that the capacity of the party did not depend upon
her actual domicil; but- upon the law of her domicil of origin.
But it is difficult to perceive, why the same rule should not apply
to a case of contract, arising under the like circumstances; since
the capacity or incapacity to contract would depend upon the very
point, whether the law of the actual domicil, or that of the domicil
of origin, or that of the place of the contract, ought to govern in
respect to capacity or incapacity. And if the same rule would
apply, it is not easy to reconcile this with the preceding doctrine,
unless upon the ground, that the courts of the native domicil
ought to follow their own law, as to minority and majority, in all
cases, in preference to any oflicr.

§ 78. There is an earlier case in the same court, in which it
seems to have been incidentally stated, that, according to the law
of nations, “ personal incapacities, communicated by the laws of
any particular place, accompany the person wherever he goes.
Thus, he, who is excused from the consequences of contracts for
want of age in his country, cannot make binding contracts in an-
other.”1 This doctrine is certainly at variance with that main-
tained by the same court at other and later periods.? It is some-
what curious, that it was avowed in the case of what is called a
runaway marriage, celebrated at Natchez in Mississippi, between a
young man and a young woman, a minor of thirteen years of age,
both of them being at the time domiciled in Louisiana, without the
consent of her parents; and which marriage would seem to have
been void, without such. consent, by the law of Louisiana, if cele-
brated in that State. It was not, however, the main point in the
case; and the decision itself was placed, as we shall hereafter
see, upon a far broader foundation.®

§ 79. In respect to contracts of marriage, the English decisions
have established the rule that a foreign marriage, valid according
to the law of the place, where celebrated, is good everywhere else.*

1 Le Breton v. Fouchet, 3 Martin, R. 60, 70; S. C. post, § 180.

* Saul v. His Creditors, 17 Martin, R. 597, 598; Baldwin v. Gray, 16 Ib. 192,
193. 3 Post, § 180.

* 2 Ryan v. Ryan, 2 Phill. Ecc. R. 832; Herbert v. Herbert, 3 Ib. 58; S. C. 2

CONFL, 8
86 CONFLICT OF LAWS. [cH. tv.

[And the American cotrts have uniformly acted upon the same
principle.1] But these decisions have not, e converso, established,
that marriages of British subjects, not good according to the law
of the place, where celebrated, are universally, and under all pos-
sible circumstances, to be regarded as invalid in England? On
the contrary, Lord Stowell has decided that a marriage had, under
peculiar circumstances, at the Cape of Good Hope, during British
occupation, was valid, although not in conformity to the Dutch
law, which was then in force there.? In that case the husband (an
Englishman) was a person entitled by the laws of his own country
to marry without the consent of parents or guardians, he being of
the age of twenty-one: but by the Dutch law he could not marry
without such consent until he was thirty years of age. The lady
(an Englishwoman) was under the age of nineteen, her father was
dead, her mother had married a second husband, and she had no
guardian. Upon that occasion Lord Stowell said: “‘ Suppose the
Dutch law had thought fit to fix the age of majority at a still more
advanced period than thirty, at which it then stood, at forty, it
might surely be a question in an English court, whether a Dutch
marriage of two British subjects, not absolutely domiciled in Hol-
land, should be invalidated in England on that account; or, in
other words, whether a protection, intended for the rights of Dutch
parents, given to them by Dutch law, should operate to the annul-
ling a marriage of British subjects upon the ground of protecting
rights, which do not belong in any such extent to parents living in
England, and of which the law of England could take no notice,
but for the severe purpose of this disqualification. The Dutch
jurists (as represented in this libel) would have no doubt whatever,
that this law would clearly govern a British court. But a British
court might think that a question, not unworthy of further con-

Hagg. Ecc. R. 263, 271; Lacon v. Higgins, 3 Starkie, R. 178; S. C. 1 Dowl. &
Ryl. N. P. R. 38. See Ryan & Mood. R. 80.

* Medway v. Needham, 16 Mass. 157; Putnam v. Putnam, 8 Pick. 433; Sut
ton v. Warren, 10 Mete. 451; Commonwealth v. Hunt, 4 Cush. 49; Phillipps ».
Gregg, 10 Watts, 158; Wall v. Williams, 11 Ala. 826; Patterson v. Gaines, 6
How. U. S. R. 550; "Fornshill v. Murray, 1 Bland, Ch. R. 479; Morgan »
McGhee, 5 Humphr. 13; State v. Patterson, 2 Iredell, 346; Dumaredly-ts Fishly,
3 A. K. Marshall, 368.

* Rading v. Smith, 2 Hagg. Consist. R. 390, 391; Harford v. Morris, 2 Hagg.
Const. R. 432; post, § 79, note 1; Ib. § 118, 119.

5 Thid.
§79, 79 a.] CAPACITY OF PERSONS. 87

sideration, before it adopted such a rule for the subjects of this
country.” “In deciding for Great Britain upon the marriage of
British subjects, they (the Dutch jurists) are certainly the best and.
only authority upon the question, whether the marriage is con-
formable to the general Dutch law of Holland; ‘and they can de-
cide that question definitely for themselves and for other countries.
But questions of a wider extent may lie beyond this; whether the
marriage be not good in England, although not conformable to the
general Dutch law; and whether there are not principles leading
to such a conclusion. Of this question, and of those principles,
they are not the authorized judges; for this question and those
principles belong either to the law of England, of which they are
not the authorized expositors at all, or to the jus gentium, upon
which the courts of this country may be supposed as competent as
themselves ; and certainly, in the case of British subjects, much
more appropriate judges.” +

{§ 79 a. So in a very recent -case,? a marriage in New South
Wales, between two persons, neither of whom were Presbyterians,
before a minister of that persuasion, contrary to the provisions of
a local act, (which did not, however, declare such marriage a
nullity,) was held valid in England; sufficient at least to found a
decree of divorce in the English courts. And in a still later case,?
a marriage in one of the British provinces, according to the rites
of the Church of England, solemnized by a priest in orders, in the
parish church of which he was the minister, in pursuance of a
proper license, was held good in England, without examining the
point of its validity, according to the lex loci, for it was the duty

of the opposing party, to plead and prove that such marriage was
invalid. ]

" Ruding v. Smith, 2 Hagg. Consist. R. 389, 390; post, § 118,119. That there
are other cases excepted from the operation of foreign law, seems to have been
directly held by Sir George Hay, in Harford v. Morris, 2 Hagg. Consist. R. 423.
He there said: “Ido not mean, that every domicil is to give jurisdiction to a
foreign country, so that the laws of that country:are necessarily to obtain and at-
tach upon a marriage solemnized there. For, what would become of our facto-
ries abroad, at Leghorn, or elsewhere, where the marriage is only by the law of
England, and might be void by the law of that country ? Nothing will be admit-
ted in this court to affect such marriages, so celebrated, even where the parties
are so domiciled.” Id. 432.

? Catterall v. Catterall, 1 Roberts, 580; 11 Jurist, 914; S. C. 9 Jurist, 951; 1
Roberts. 304,

® ‘Ward v. Dey, 1 Roberts. 759.
88 CONFLICT OF LAWS. [cu. tv.

§ 80. In another case, where two British subjects, being minors,
and in France, solely for purposes of education, intermarried, it
was held by the court, that the marriage, being void by the law of
France, was a mere nullity... The court (Sir Edward Simpson)
said: “The question before me is not, whether English subjects
are to be bound by the law of France; for undoubtedly no law or
statute in France can bind subjects of England, who are not under
its authority. Nor is the consequence of pronouncing for or
against the marriage with respect to civil rights in England to be
considered in determining this case. The only question before me
is, whether this be a good or bad marriage by the law of England.
On this point F apprehend, that it is the law of this country to
take notice of the laws of France, or of any foreign country in
determining upon marriages of this kind; and I am inclined to
think it is not good. The question being in substance, whether by
the law of this country marriage contracts are not to be deemed
good or bad according to the laws of the country in which they
are formed; and whether they are not to be construed by that
law. If such be the law of this country, the rights of English
subjects cannot be said to be determined by the laws of France,
but by those of their own country, which sanction and adopt this
rule of decision. By the general law, all parties contracting gain
a forum in the place, where the contract is entered into. All our
books lay this down for law; “It is needless at present to mention
more than one. Gayll, (Lib. 2, obs. 123,) says: In contractibus
locus contractiis considerandus sit. Quoties enim statutum princi-
paliter habilitat, vel inhabilitat contractum, quoad solemnitates,
semper attenditur locus, in quo talis contractus celebratur, et obli-
gat etiam non subditum. And again, (Lib. 2, obs. 36): Quis
forum in loco contractis sortitur, si ibi loci, ubi contraxit, reperia-
tur; non tamen ratione contractis, aut ratione rei, quis subditus
dicitur illius loci, ubi contraxit, aut res sita est; quia aliud est
forum sortiri, et aliud subditum esse. Constat unumquemque sub-
Jici jurisdiction judicis, in eo loco in quo contraxit. This is accord-
ing to the text law, and the opinion of Donellus and other com-
mentators. There can be no doubt, then, that both the parties in
this case obtained a forum, by virtue of the contract in France.
By entering into the marriage there, they subjected themselves to

* Scrimshire v. Scrimshire, 2 Hagg. Consist. R. 395.
§ 80, 80 a.] CAPACITY OF PERSONS. 89

have the validity of it determined by the laws of that country.’’}
And he afterwards proceeded to add: “This doctrine of trying
contracts, especially those of marriage, according to the laws of
the country, where they were made, is conformable to what is laid
down in our books, and what is practised in all civilized coun-
tries, and what is agreeable to the law of nations, which is the law
of every particular country, and taken notice of as such.’’?

§ 80a. The learned judge proceeded to cite the opinions of
civilians to the same precise effect; and he afterwards concluded
with these remarks: “ Why may not this court then take notice
of foreign laws, there being nothing illegal in doing it? From the
doctrine laid down in our books — the practice of nations — and
the mischief and confusion that would arise to the subjects of
every country, from a contrary doctrine, I may infer, that it is the
consent of all nations, that it is the jus gentiwm, that the solemni-
ties of the different nations with respect to marriages should be
observed, and that contracts of this kind are to be determined by
the laws of the country where they are made. If that principle is
not to govern such cases, what is to be the rule, where one party
is domiciled, and the other not? The jus gentium is the law of
every country, and is obligatory on the subjects of every country.
Every country takes notice of it; and this court, observing that
law in determining upon this case, cannot be said to determine
English rights by the laws of France, but by the law of England,
of which the jus gentium is part.? All nations allow marriage con-
tracts. They are juris gentium; and the ‘subjects of all nations
are concerned in them; and from the infinite mischief and confu-
sion that must necessarily arise to the subjects of all nations with
respect to legitimacy, successions, and other rights, if the respec-
tive laws of different countries were only to be observed, as to
marriages contracted by the subjects of those countries abroad, all
nations have consented, or must be presumed to consent, for the
common benefit and advantage, that such marriages should be
good or not, according to the laws of the country where they are

-made. It is of equal consequence to all, that one rule in all these
cases should be observed by all countries; that is, the law of the

’ Scrimshire v. Scrimshire. 2 Hagg. Consist. R. p. 407, 408. See Kent v. Bur-
gess, 11 Simons, R. 361.
? Serimshire v. Scrimshire, 2 Hagg. Consist. R. 412.
5 Scrimshire v. Scrimshire, 2 Hagg. Consist. R. p. 416, 417.
8*
90 CONFLICT OF LAWS. [cH Iv.

countries where the contract is made. By observing this law no
inconvenience can arise; but infinite mischief will ensue, if it is
not.”2 Again—‘“If countries do not take notice of the laws of
each other with respect to marriages, what would be the conse-
quence, if two English persons should marry clandestinely in
England, and that should not be deemed a marriage in France?
Might not either of them, or both, go into France and marry
again, because by the French law such a marriage is not good?
And what would be the conclusion in such a case? Or, again;
suppose two French subjects, not domiciled here, should clandes-
tinely marry, and there should be a sentence for the marriage;
undoubtedly the wife, though French, would be entitled to all the
rights of a wife by our law. But if no faith should be given to
that sentence in France, and the marriage should be declared null,
because the man was not domiciled; he might take a second wife
in France, and that wife would be entitled to legal rights there,
and the children would be bastards in one country, and legitimate
in the other.”’ So that, in cases of this kind, the matter of domicil
makes no sort of difference in determining them ; because the
inconvience to society and the public in general is the same,
whether the parties contracting are domiciled or not. Neither
does it make any difference, whether the cause be that of contract
‘or marriage; for if both countries do not observe the same law,
the inconveniences to society must be the same in both cases.
And as it is of consequence to the subjects of both countries, and
to all nations, that there should be one rule of determining in all
nations on contracts of this kind, it is to be presumed, that all
nations do consent to determine on, these contracts, by the laws of
the country where they are made; as such a rule would prevent
all the inconveniences that must necessarily arise from judging by
different laws, and is attended by no manner of inconvenience,
but is for the advantage of the subjects of all nations.’’2

§ 81. Here, then, we have a doctrine laid down as the rule of
the jus gentium, at least, as it is understood and recognized in
England, in regard to contracts generally, and especially in re-
gard to contracts of marriage, very different from the rule, which
we have seen laid down by many foreign jurists, that the law of

? Scrimshire v. Scrimshire, 2 Hagg. Consist. R. 416, 417, 418.

* Id. 418, 419. See Lord Meadowbank’s Opinion, Fergusson on Marr. and
Divorce, Appendix, p. 361, 862.
§ 80 a-82a.] CAPACITY OF PERSONS. 91

the domicil of origin, or the law of the actual domicil, is of uni-
versal obligation as to the capacity, state, and condition of per-
sons.| The same doctrine has been formally promulgated upon
other occasions by the English courts.2 In a grave case of ex-
traordinary interest,? which turned upon the validity of a Scotch
marriage, where one of the parties was an English minor, Lord
Stowell said: “ Being entertained in an English court, it (the
case then before him) must be adjudicated according to the prin-
ciples of English law applicable to such a case. But the only
principle applicable to such a case by the law of England is, that
the validity of the marriage rites must be tried by reference to
the law of the country, where, if they exist at all, they had their |
origin.” 4

§ 82. In regard to other contracts made by minors, a similar
tule has prevailed. In a case, where’ money had been advanced
for a minor during his stay in Scotland (who seems to have had
his general domicil in England,) it was held by Lord Eldon, that
the question, whether in an English court a recovery could be
had for the money so advanced, depended upon the law of Scot-
land; for the general rule was that the law of the place, where
the contract is made, must govern the contract. This also seems
to be a just inference from the doctrine maintained by Lord Stow-
ell, in the case of a contract of marriage.®

§ 82a. Upon this point there is a diversity of opinion among
foreign jurists.’ Some of them are strongly inclined to act upon
the doctrine of the Roman law, as applicable to this subject. Aut
si non appareat, quid actum est, erit consequens, ut id sequamur,
quod in regione in qué actum est frequentatur.2 Dumoulin is
supposed to have adopted this doctrine ; but it is far from being

1 Ante, § 51 to 68.

2 Doe d. Birthwhistle v. Vardill, 5 B. & Cresw. 438, 452, 453; S.C. 7 Clarke
& Finn. 895.

* Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 54. ;

‘ Id. 58, 59; S. P. Kent v. Burgess, 11 Simons, R. 361. See also, Conway v.
Beasley, 8 Hagg. Ecc. R. 6393 Middleton v. Janverin, 2 Hagg. Consist. R. 437,
446.

* Male v. Roberts, 8 Esp. N. P. R. 163. See also, Thompson v. Ketcham, 8
Johns. R. 189; Grotius, Lib. 2, ch. 11, § 5. See also, Dalrymple v. Dalrymple, 2

‘ Hagg. Consist. R. 60, 61; ante, § 21, 25, p. 84, § 75, note (1) 37.

* Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 61; ante, § 80.

T Post, § 368.

® Dig. Lib. 50, tit. 17, 1. 345 post, § 270.
92 CONFLICT OF LAWS. [cu rv.

certain, that he intended by his language to embrace this case.
In concernentibus contractibus et emergentibus tempore contractis
inspici debet locus, in quo contrahitur. Paul Voet puts the doctrine
thus: Quid, si de contractibus proprie dictis, et quidem eorum
solemnibus contentio; quis locus spectabitur? An domicilit con
trahentis, an loci, ubi quis contrahit. Respondeo affirmate. Po-
sterius. Quia censetur quis semet contrahendo, legibus istius loci,
ubi contrahit, etiam ratione solemnium subjicere voluisse. Ut
quemadmodum loci consuetudo subintrat contractum, ejusque est
declarativa; ita etiam loci statutum. From the other known
doctrine of Paul Voet, that personal laws have no extra-territorial
operation,? we see at once that he meant to apply his statement
to laws of personal capacity and incapacity. It has been supposed,
that Christinaeus and Bartolus entertain a similar opinion. But
their language does not necessarily lead to that conclusion, since
the place of the contract, spoken of by them, may mean the place
also of the domicil of origin of the minor.t Grotius, however,
is more explicit to the purpose. Legs civiles (says he) justa
ratione mote, quasdam promissiones pupillorum ac minorum trritas
pronunciant. Sed hi effectus sunt proprii legis civilis, ac proinde
cum jure nature ac gentium nihil habent commune ; nisi quod qui-
bus locis obtinent, ibi eas servare naturale est. Que etiam si
peregrinus cum cive paciscatur, tenebitur illis legibus ; quia qui
in loco aliquo contrahit, tanquam subditus temporarius legibus
loci subjicitur.5

§ 88. On the other hand, many foreign jurists, (as we have
seen,) entertain a very different opinion on this very point of the
capacity of a person to contract in another country, when he is

* Molin, Tom. 1, tit. 1, De feud. § 12, gloss. 7, § 37. In another place, Dumou-
lin says, after adverting to the fact, that personal laws affect subjects and not
foreigners: Quamvis is, qui datus est: tutor vel curator a suo competenti judice sit
inhabilitatus propter tutelam et curam, ubique locorum pro bonis ubicumque sitis.
Quia non est in vim statuti solius, sed in vim juris communis, et per passivam in-
terpretationem legis, quee locum habet ubique. Molin. in Cod. Lib. 1, tit. 1, tom.
3, p. 556. See 1 Burge, Comment. on Col. and For. Law, P. 1, ch. 3; § 3, p. 129,
130; post, § 294; 1 Boullenois, Observ. 23, p. 463, 464.

* P. Voet, de Statut. § 9, ch. 2, u. 9, p. 323, edit. 1661; post, § 261.

8 Thid. § 4, ch. 2, n. 6, p. 137, edit. 1661.

* See the passages cited from these authors in 1 Burge, Comment. P. 1, ch. 4,
p. 130; Christin. Decis. Vol. 1, Decis. 183, p. 155; Bartolus, ad Cod. Lib. 1, tit
1,1. 1, n. 18, 20; 2 Boull. Observ. 46, p. 455, 456; post, § 299.

° Grotius, De Jure Belli. Lib. 2, ch. 11, § 5.
§ 82 a-84.] CAPACITY OF PERSONS. 93

disabled, as a minor, by the law of his own country and domicil.!
Thus it has been said by Di Castro, and approved by D’Argen-
tré, that where the law of Modena enabled a minor of fourteen
years of age to contract, that would not enable a minor of Bologna
of the same age to make a valid contract at Modena.2 And
Rodenburg asserts the same doctrine in the most emphatic terms ;
in which he is followed by Boullenois.? -

§ 84. Bouhier (as we have seen‘) holds to the doctrine, that
the capacity and incapacity by the law of the domicil extends to
every other place;® but yet he is manifestly startled, when it is
applied to the case of marriages. He admits, that in such cases

1 Ante, § 51 to 68,

* D'Argentré, Comm. ad Leges Britonum, art. 218, gloss. 6, n. 47, 48, cited
ante, § 76, note, and also in Liverm. Dissert. p. 42, § 33 to 56; 1 Froland, Mém.
des Statuts, 112, 156, 159.

* Rodenburg, De Div. Stat. tit. 2, ch. 1,§1; 2 Boull. App. p. 11; 1 Ib. Obs.
16, p. 200, 201, 204, 205; Bouhier, ch. 23, n. 92; 1 Froland, Mém. p. 112, 159;
2 Froland, Mém. p. 1576 to p. 1582. The language of Rodenburg is: De quibus
et consimilibus id Juris est, ut quocunque se transtulerit persona statuto loci dom-
icilii ita affecta, 1 habilitatem aut inhabilitatem ademptam domi, circumferat ubi-
que, ut in universa territoria suum Statutum exerceat effectum. Apertius rem
intuebimur in exemplis. Ultrajecti sui juris efficiuntur qui vigesimum etatis an-
num impleverint, apud Hollandos contra, ante vigesimum quintum rebus suis ne-
mo intervenit. Apud utrumque populorum nupta citra viri consensum & rebus
gerendis arcetur. In Regionibus, que Jure Romanorum hic utuntur, commerciis
gaudet uxor liberrime, potestati virili non supposita. Fac autem Ultrajectinum,
qui vigesimum quintum statis annum necdum habuerit, contrahere in Hollandia:
aut @ contra Hollandie incolam vigesimum jam annum egressum, Ultrajecti: aut
nuptam nostratem contrahere in regione Juris scripti, aut é contra. Quocumque
modo se casus habuerit, contrahentium erit respicere ad suum cujusque domicilii
locum, impressamque ibidem persone qualitatem, aut ademptam domi conditio-
nem, cujus ignarus non sit oportet, qui cum alio volet contrahere. Quare Hol-
landie incola major Ultrajecti, minor apud suos, contrahit apud nostrates inva-
lide. Contra, Ultrajectinus lege domicilii major contrahit, in Hollandia efficaci-
ter, ut maxime ex more regionis istius rerum suarum necdum haberetur compos.
Uxores domi sub maritorum potestate ita constitute, ut sine iis nec alienent nec
contrahant, nullibi locorum hance incapacitatem exuunt. Cum mulieris contra
Juri scripto obnoxie contractus, apud nos celebratus, consistat omnimodo. Et
quidem si ad personales actus, contractus puta, persone applicetur habilitas, Ar-
gentrei, Burgundique, (quos Jure precipui hic semper nomino,) ceterorumqué
scribentium placita sat consentiunts See ante, § 51. See also Liverm. Dissert.
§ 21, p. 34 to § 84, p. 43; 2 Boull. App. 11. See also, Foelix, Conflict. des Lois
Revue Etrangere et Francaise, Tom. 7, § 24, p. 204 to § 26, p. 216.

* Ante, §57 a.

* Bouhier, Cout. de Bourg. ch. 24, § 11,:p. 463; post, § 123.
94 CONFLICT OF LAWS. [cu. rv.

it is commonly held, that the law of the place, where the marriage
is celebrated, ought to prevail! But he insists, that such a rule
ought not to be adopted in regard to persons, who are both sub-
jects of the same country, who designedly go to a foreign coun-
try and contract marriage there, in order to evade the law of
the’country of their own domicil.? He applies also similar con-
siderations to the case of an unemancipated son or minor belong:
ing to one country, who, finding a woman of his own country in
a foreign country, marries her there, without the knowledge of
his parents, holding, that, under such circumstance, the marriage
ought not to be held valid.2 But he propounds as a case of more
difficulty, where such a person, going into a foreign country,.
without any intention of marrying, finds there a woman of his
own country to his liking, whom he seeks in marriage and espouses.
For, if such a marriage is celebrated according to the usual for-
malities in that country, he deems it valid, as being done in good
faith, and affirms, that the parties are not bound to follow the
laws of their own country. D’Argentré states the general doc-
trine in the following manner. ‘When the question is, as to the
right or capacity of any person to do civil acts generally, it is to
be referred to the judge, who exercises judicial functions in the
place of his domicil; that is to say, to whom his person is sub-
ject, and who has authority so to pronounce respecting him, so
that whatever he shall promulgate, adjudge, or. ordain respecting
the rights of persons, ought to obtain, and be of force, in every
place, to which he may transfer himself, on account of this author-
ity over the person.” Quare cum de persone jure aut habilitate
queritur ad actus civiles, in universum ea judicis ejus potestas est,
qui domicilio judicat, id est, cui persona subjicitur, qui sic de eo
statuere potest, ut quod edixerit, judicdrit ordindrit de personarum
jure, ubicumque obtineat, cocumque se persona contulerit, propter
afficentium persone. Froland asserts the same doctrine and
expressly extends it to cases of contract. La statut personnel
nexerce pas seulement son autorité dans le liew du domicile de la
personne, qui sa dispensation la suit, et Paccompagne en quelque

? Bouhier, Cout. de Bourg. ch. 28, § 50, G0, p. 556, 557,

* Thid. ch. 28, § 61, p. 557.

* Thid. ch. 28, § 62, p. 557.

* Ibid. ch. 28, § 59 to 67, p. 556, 557; Id. ch. 24, § 11, p. 463.

* D’Argentré, de Leg. Briton. art. 218, gloss. 6, n. 4, p. 647; ante, § 56; 1
Froland, Mém. des Statuts, 112; Liverm. Dissert. § 21, p- 34.
§ 84, 85.] CAPACITY OF PERSONS. 95

liew quelle aille contracter ; et qu’elle influe sur tous les biens sous
quelques cotitumes, quils soient assis.1_ Mr. Henry, in his judicial
capacity, has given the doctrine a like extent in the English
colony of Demarara; for he declares, that in cases of prodigals,
minors, idiots, and lunatics, the law of the domicil accompanies
the party everywhere.? Cochin lays down the doctrine with great
boldness, that a marriage contracted in a foreign country by
French subjects, although contracted in the form prescribed by
the foreign law, is void, if it violates the laws of France.2 The
subjects of the king of France (says he) are always his subjects.
And the parties contracting at a place in Brabant, have only that
capacity to contract, which is given by the laws of their own coun-
‘try. It is a personal statute, which follows them everywhere.‘

§ 85. Huberus seems in some places to affirm a doctrine, in
some respects quite as extensive, although it is liable to be modi-
fied in some measure by the local law; while in other places he
deems it too broad and indiscriminate, and introduces several
exceptions. ‘Thus, as we have seen, he lays it down as a general
tule: Qualitates personales certo loco alicui jure impressas, ubi-
que circumferri'et personam comitari, cum hoc effectu, ut ubivis
locorum eo jure, quo tales persone alibi gaudent vel subjecti sunt,
Jruuntur, et subjiciantur.® So, that, according to Huberus, the
state or condition of the party, as to capacity or incapacity in the
place of his original domicil, accompanies him everywhere, so far,
and so far only, that the law of the place, where he happens to
be, attaches to him, so far as it touches rights or powers grow-
ing out of such capacity or incapacity. A minor, for example,
in his own country, is subject in every other country to the laws
of minority of the latter country. In regard to the contract of
matrimony he holds, that it is to be governed by the law of*the
place, where the marriage is celebrated, with the exception, how-
ever, of cases of incest. “If” (says he) “the marriage is lawful
in the place, where it is contracted and celebrated, it will be held

1 1 Froland, Mém. des Statuts, 156 to 160; Id. 112; ante, § 51 a. See also 1
Hertii, Opera, § 4, n. 8, p. 123; Id. n. 5, p. 122, edit. 1737; Id. p. 171, 172, edit.
1715.

* Henry on Foreign Law, p. 38, 39 ; Odwin v. Forbes, Id. p. 95, 96, 97.

* Cochin, @Euvres, Tom. 1, Cause § xii. p. 158, 154, 4to edit.; Id. Tom. 3,
Cause xii, p. 136, 8vo edit. 1821.

* Thid.

5 Huberus, De Conflictu Legum, Lib. 1, tit. 3, § 12, 13.
96 CONFLICT OF LAWS. [ou. rv.

valid and have effect everywhere, with this exception, that it
does not create a prejudice to others. To which it may be added,
if it is not of an evil example; as if it should be a case of incest,
within the second degree according to the law of nations.” Si
licitum est eo loco, ubi contractum et celebratum est, ubique vali-
dum erit, affectumque habebit sub eddem exceptione, prejudicii aliis
non creandi. COwi licet addere, si exempli nimis sit abominandi,
ut si incestum juris gentium in secundo gradu contingeret, alicubi
esse permissum; quod vix est, ut usu venire possit.1 Huberus
also puts another exception, where persons belonging to one
country go into another to be married, merely to evade ‘the law
of their own country, in which case he holds the marriage to be
void, although it is good by the law of the place, where it is
celebrated.2 Sepe fit, ut adolescentes sub curatoribus agentes,
furtivos amores nuptiis conglutinare cupientes, abeant in Frisiam
Orientalem, aliave loca, in quibus curatorum consensus ad matri-
monium non requiretur, juxta leges Romanos, que apud nos hac
parte cessant. Celebrant ibi matrimonium, et mox redeant in
Patriam. Ego ita existimo, hance rem manifesto pertinere ad
eversionem juris nostri; et ideo non esse Magistratus heic obliga-
tos, é jure Gentium, ejusmodi nuptias agnoscere et ratas habere.
Multoque magis statuendum est, eos contra Jus Gentium facere
vidert, qui civibus alieni imperii sud facilitate, jus patriis Legi-
bus contrarium, scientes, volentes, impertiuntur?

§ 86. This latter doctrine has, upon the most solemn consi¢-
eration, been overturned in England, as we shall hereafter see ;*
and such a marriage in evasion of the domestic laws has been
held valid. But we are not, therefore, to conclude that every
marriage by and between British subjects in foreign countries will
be held valid, because it is celebrated according to the laws of
such countries. On the contrary, where the laws of England
create a personal incapacity to contract marriage, that incapacity
has, in some cases, been held to have a universal operation, 80
as to make a subsequnt marriage in a foreign country a mere
nullity, when litigated in a British court.5

1 Huberus, Lib. 1, tit. 3, § 8; post, § 122.

* Thid.

3 Thid.; post, § 123.

* See 2 Kent, Comm. Lect. 26, p. 91, 92, 3d edit. ; post, § 128, 124.

° Conway v. Beasley, 3 Hagg. Eve. R. 639, 647, 652; Lolley’s Case, 1 Russell
& Ryan, Cr. Cas. 237. It will probably be found very difficult to maintain the
§ 85 - 87.] CAPACITY OF PERSONS. ‘ 97

§ 87. Indeed, the general principle adopted in England in re-
gard to cases of this sort appears to be, that the lez loci contractis
shall be perfnitted to prevail, unless when it works some manifest
injustice, or is contra bonos mores, or is repugnant to the settled
principles and policy of its own laws. An illustration of the gen-
eral principle, and of the exception, may be found in the known
difference between the Scottish law and the English law, on the
subject of legitimation of antenuptial offspring. By the law of
Scotland illegitimate children become, by the subsequent*marriage
of the parents, legitimate, and may inherit as heirs. But the law
of England is otherwise ; and a subsequent marriage between the
parents will not take away the character of illegitimacy. Upon a
recent occasion the question arose in an English court (the Court
of King’s Bench,) whether a person, born in Scotland of Scottish
parents, who afterwards intermarried there, and thereby became
legitimate in Scotland, could inherit real estate as a legitimate
heir in England. It was held by the court that he could not.
On that occasion it was admitted by the court, that a foreign mar-
riage, however solemnized, if good by the foreign local law, ought
to be held valid everywhere ; but that it did not follow from this,
that all the consequences of such a marriage by such foreign local
law were to be adopted. On the other hand, that it was sufficient,
that all such consequences, as follow from a lawful marriage sol-
emnized in England, were admitted to govern in:such cases.?
One of the learned judges on that occasion said: “The very rule,
that a personal status accompanies a man everywhere, is admitted
to have this qualification, that it does not militate against the law
of the country, where the consequences of that status are sought
to be enforced.2
doctrine in Lolley’s case, and in subsequent discussions its authority has certainly
been a good deal shaken. See Warrender v. Warrender, 9 Bligh, R. 89; and
post, §117, 124, 221 to 231; Bishop on Marriage and Divorce, § 759, and note.

1 Doe d. Birthwhistle v. Vardill, 5 Barn. & Cress. 438; S. C. 9 Bligh, R. 32
to 88; 7 Clark & Finn. 895.

2 Doe d. Birthwhistle v. Vardill, 5 Barn. & Cress, 438; S. C. 9 Bligh, R.
32 to 88. This case was carried to the House of Lords, by a Writ of Error ;
and there the question was propounded to the judges, who returned an answer
" affirming the decision of the King’s Bench. But the question has since been re-
argued, and the case has not as yet been finally decided by the House of Lords.
[It has since been decided, and is reported in 7 Clark & Finn. 895.] See post,
§ 93,

* Per Littledale, J.. 5 Barn. & Cress. 455.
CONFL,. 9
98 CONFLICT OF LAWS. (cx. 1v.

§ 87 a. Yet the law of foreign countries as to legitimacy is so
far respected in England, that a person illegitimate by the law of
his domicil of birth, will be held illegitimate in England! Thus,
it has. been decided by the House of Lords, as a general doctrine,
that the courts of the country where the lands lie, in a question
respecting the heirship to these lands, ought to govern themselves
as to the question of legitimacy not by the law of the country,
where the lands lie, but by that of the country, where the mar-
riage of the parents was contracted, and the child born; and if he
is not the legitimate heir by that foreign law, his claim to the in-
heritance ought to be rejected.2, The natural conclusion from this
doctrine would seem to be, that if he was the legitimate heir by
that foreign law, his claim to the inheritance ought to be firmly
established. Yet this conclusion has been pointedly repelled by
the learned judges in the case already alluded to,? and which we
shall have occasion to consider more fully hereafter.*

§ 88. Another illustration, touching the capacity of persons to
contract marriage, may be stated from English jurisprudence. By
the law of England marriage is an indissoluble contract, except by
the transcendent power of parliament. Hence it has been held,
that a marriage once celebrated between British subjects in an
English domicil, cannot be dissolved by a divoree obtained under
the laws of a foreign country, to which the parties may tempora-
rily remove.® Thus, for example, that an English marriage cannot
be dissolved, under such circumstances, by a Scotch divorce, regu-
larly obtained according to the law of Scotland, by persons going
thither for that purpose, who have their domicil in England!

? See Munro v. Saunders, 6 Bligh, R. 468; Shedden v. Patrick, and The +
Strathmore Peerage, cited in Barn. & Cress. 444; in 3 Hagg. Ecc. R. 652; in 6
Bligh, R. 474, 475, 487; and in 9 Bligh, R. 51, 52, 75, 76, 80, and reported in 4
Wils. & Shaw, R. App. 89 to 95.

* See Shedden v. Patrick, and the case of the Strathmore Peerage, as cited in
9 Bligh, R. 51, 52, 75, 76, 80,81.

* Birthwhistle v. Vardill, 9 Bligh, R. 52, 53. I confess myself wholly unable
to reconcile these latter decisions with the former. The attempt to reconcile
them seems to me more ingenious than satisfactory. Lord Brougham’s comments
on the subject, in Birthwhistle v. Vardill, 9 Bligh, R. 75, 80, 81, appear to me
exceedingly forcible and difficult to be answered. Post, § 93.

* Post, 93, 94.

” Lolley’s Case, 1 Russ. & Ryan’s Cases, 237, But see Warrender v. Warren-
der, 9 Bligh, R. 89; post, § 219 a.

° See Rex v. Lolley, 1 Russ. & Ryan’s Cases, 237; Tovey v. Lindsay, 1 Dow,
§87a-89.] CAPACITY OF PERSONS. 99

And a second marriage in Scotland after such divorce will be un-
lawful, and will subject the parties to the charge of bigamy. This
doctrine, however, seems open to much controversy; and can
scarcely now be held firmly established, if indeed it has not been
overthrown by recent adjudications.2— Perhaps it yet remains an
undecided question in the English law, (as we shall hereafter see, )
whether bond fide change of domicil, and a divorce subsequently
obtained, would change the legal predicament of the parties in an
English tribunal.2 But it has been directly decided, that the mere
fact, that the marriage takes place in England between British
subjects, will not, if the husband at that time has his domicil in
Scotland, take away the right of the courts in Scotland to enter-
tain jurisdiction to decree a divorce founded on such domicil.*
But this subject will presently come more fully under consider-
ation.®

§ 89. In the American courts the doctrine, as to capacity ‘or
incapacity to marry, has been held to depend generally on the law
of the place, where the marriage is celebrated, and not on that of
the place of domicil of the parties. An exception would doubtless
be applied to cases of incest and polygamy.® But, in affirmance
of the general principle, it has been held, that if a person, divorced
from his first wife, is rendered by the law of the place of the
divorce incapable of contracting a second marriage, still, if he
contracts marriage in another state, where the same disability
does not exist, the marriage will be held valid.’ And a marriage,
celebrated in a foreign state, to evade the law of the place of
domicil, is on the same account held valid. Mr. Chancellor Kent
formerly laid down the doctrine in regard to contracts generally
in terms which might admit of a different interpretation. He
said: “The personal incompetency of individuals to contract, as
in the case of infancy, and the general capacity of parties to con-
R. 124; Beazley v. Beazley, 3 Hagg. Ecc. R. 639. See also, Fergusson on
Marr. and Div. Appendix, 269; Warrender v. Warrender, 9 Bligh, R. 89 ; post,

319 a.

1 Ante, § 88, n. 6. 2 Thid. 5 Ibid. * Ibid.

5 Post, ch. 7, from § 200 to 231. ,

* Post, § 118, 114.

7 9 Kent, Comm. 91 to 93, 3d edit. ; Id. 458, 459; Putnam v. Putnam, 8 Pick.
433; West Cambridge v. Lexington, 1 Pick. R. 505; De Couche v. Savatier, 3
Johns. Ch. R. 190; Conway v. Beazley, 3 Hagg. 639; Dickson v. Dickson, 1
Yerger, 110; post, § 123.
© Thid.
100 CONFLICT OF LAWS. [ou. Iv.

tract, depend, as a general rule, upon the law of the domicil.”?
But he was then to be understood as referring to the law of the
domicil, only when it is the place, where the contract is made; for
in the same paragraph he stated, that the lex loci contractés
governs in relation to the validity of contracts; and he applied
it especially to nuptial contracts.”

§ 90. The difficulty of applying any other tule, as to the
capacity and incapacity of the person, in respect to the class of
nuptial contracts, will become still more clear by attending to
the great extent of the parental power, recognized by the con-
tinental nations of Europe, and derived by them from the civil
law. Parental restraints upon the marriage of minors exist to
avery great extent in Germany, Holland, France, and other civil
law countries; to so great an extent, indeed, that the marriage
of minors, without the consent of their parents, or at least of
their father, is absolutely void; and the disability of minority is
in these countries carried to a much greater age than it is by the
common law.? In some of these countries majority is not at-

1 2 Kent, Comm. Lect. 39, p. 458, 2d edit. ; post, § 123.

2 2 Kent, Comm. Lect. 39, p. 458, 2d ee ; and De Couche v. Savatier, 3
Johns. Ch. R. 190. The English authorities, cited by Mr. Chancellor Kent, jus-
tify this conclusion. One is, Male v. Roberts, in 3 Esp. R. 163,;which was a case
of a contract by a minor in Scotland, during his temporary residence there, and
it was held to be governed by the law of Scotland. Another is, Ex parte Otto
Lewis, 1 Ves. R. 298, where a lunatic heir of a mortgagee, who had been de-
clared a non compos in Hamburg, and no commission of lunacy had been taken
out in England, was ordered to convey the estate in payment of the mortgage in
Hamburg, under Statute 4 Geo. ch. 10. Here Lord Hardwicke manifestly acted
upon the ground, that the mortgage-money was personal property, and, the luna-
tic being domiciled in Hamburg, the court would take notice of his disability to
convey there, by the law of that place. The remaining authority is Pardessus.
His doctrine is certainly more broad. But it could not have been intended by
Mr. Chancellor Kent to overrule the English doctrine, and his own prior state-
ment, upon the authority of a foreign jurist. The ambiguity is corrected in the
third edition ; and the words “ the law of the place of contract” are substituted
for the words “the law of the domicil.” 2 Kent, Comment. Lect. 39, p. 458, 3d
edit. See also, Pickering v. Fisk, 6 Vermont, 102; Polydore v. Prince, 1 Ware,
402. Pardessus is an authority in favor of the limited doctrine, that a person in-
capacitated by the law of his domicil cannot contract with validity there ; but he
carries his doctrine much further. The cases of Saul v. His Creditors, 17 Martin,
R. 596, 598, and Baldwin v. Gray, 16 Martin, R. 192, 193, already cited, establish
a like limited doctrine, and decide, that a contract by a minor is to be governed
by the lex loci contractfis ; ante, § 75.

* 2 Kent, Comm. Lect. 26, p. 86, 8d edit.; 1 Black. Comm. 437 ; Ruding
fe i
§ 89-92.] CAPACITY OF PERSONS. fo 101,

tained until thirty; and until a very recent pvt cen a
France, the age of a majority of males was fixed at tw nty-five
and of females at twenty-one. It is now fixed at twenty-one in
all other cases, except for the purpose of contracting marriage ;
and a marriage cannot even now be contracted in France by a
man until twenty-five years of age, and by a woman until twenty-
one, without the consent of their parents, or at least of their
fathers, if the parents differ in opinion Yet France has ven-
tured upon the bold doctrine that the marriages of Frenchmen
in foreign countries shall not be deemed valid, if the parties are
not by its own law competent to contract by reason of their
being under the parental power.?. There can be little doubt, that
foreign countries, where such marriages are celebrated, will follow
their own law, and disregard that of France.?

§ 91. If we pass from cases of minority to other disabilities,
enforced by the law of the native domicil, or that of an after ac-
quired domicil, there will be still more reason to. doubt, whether
any rule of such law, respecting personal capacity and incapacity,
ought to be deelared to be of universal obligation and efficacy.
Let us take the case of a person declared infamous by the law
of the place of his domicil. It is said that under such circum-
stances he ought to be deemed everywhere infamous. Hine (says
Hertius) in uno loco infamis, ubique infamis habetur. Surely, it
will not be contended, that, if a Protestant should be declared
a heretic in a Catholic country, and there rendered infamous,
and inhabilitated thereby, he is to be deemed under the like in-
famy and disability in all Protestant countries. That surely would
be pressing the doctrine to a wanton extravagance.* Yet certainly
many foreign jurists do press it to that extent.?

§ 92. In like manner, let us -consider the civil disabilities im-
~ posed by the English laws, in cases of outlawry, excommunica-
v. Smith, 2 Hagg. Consist. R. 372, 389; Id. 395. 1 Brown, Civ. and Adm.
Law, 59.

' Code Civil of France, art. 148, 488.

* 2 Kent, Comm. Lect. 26, p. 93, note, 3d edit.; Code Civil of France, art.
170; Id. art. 148 ; 1 Toullier, Droit Civil, art. 576, 577.

* See post, § 123, 124.

* See 1 Hertii, Opera, § 4, n. 8, p. 124, edit. 1737; Id. 178, edit, 1716; Liverm,
Diss. p. 30, 31.

° See Henry on Foreign Law, p. 30; 1 Boullenois, Observ. 4,‘p. 52 to 67; 1

Voet, ad Pand. Lib. 1, tit. 4, n. 7, p. 40.
@ ox
102 CONFLICT OF LAWS. [ cu. Iv.

tion, civil death, and popish recusancy.! It would be difficult
to maintain, that these accompanied the person to America, where
no like disabilities exist, and where they are foreign to the whole
genius of our institutions. Yet many foreign jurists strenuously
maintain the doctrine.2 We have no positive laws declaring that
such foreign disabilities shall not be recognized. But an American
court would deem them purely local, and incapable of being en-
forced here. Even the conviction of a crime in a foreign country,
which makes the party infamous there, and incapable of being a
witness in their courts, has been held not to produce a like effect
here.2 The capacity or incapacity of any persons, to do acts in
their own country, would undoubtedly, under such circumstances,
be judged by their own laws; but not their capacity or incapacity
to do the like acts in any foreign territory, where different laws
prevail.

§ 98. Foreign jurists, also, generally, although not universally,
maintain, that the question of legitimacy or illegitimacy is to be
decided exclusively by the law of the domicil of origin. They
assert the general maxim to be of universal obligation, pater est,
quem juste nuptie demonstrant, applying it in its broadest sense.!
They therefore hold, that if by the law of a country (as, for ex-
ample, of Scotland,) a man, born a bastard, becomes legitimate
by a subsequent marriage of his parents there, he ought to be
deemed legitimate everywhere. And so, on the contrary, if a
man would, by the law of the ‘country of his birth, be deemed
illegitimate, (as, for example, in England,) he ought to be deemed
illegitimate everywhere, even in another country, where he would
by its law otherwise be deemed legitimate.5

1 See 3 Black. Comm. 101, 102, 283; 1 Black. Comm. 132; 4 Black. Comm.
54, 319, 320.

* 1 Boullenois, Observ. p. 59 to p. 67; 2 Boullenois, p. 9,10, 19. But see
contra, J. Voet, De Statut. § 4, ch. 3, n. 17, 18, p. 130, edit. 1737.

* Commonwealth v. Green, 17 Mass. R. 515, 540, 541. [* But this case has
not been generaly regarded as based upon any sound principle of universal ap-
plication. It may with some propriety be applied to mere statutory inflictions for
offences not contra bonos mores ; but clearly the rule does not apply to convictions
for offences within the range of the crimen falsi, and which are regarded as in-
famous by the jurisprudence of all nations.]

* Post, § 93 a, to § 93 m.

° 1 Boull. Obs. 4, p. 62 to 64. But see Voet, de Statut. § 4, ch. 3, n. 15, p.
138, edit. 1712; 1 Hertii, Opera, § 4, n. 14, 15, p. 129, edit. 1737. Legitimation
by a subsequent marriage is admitted with different modifications by the law of
§ 92-93 c.] CAPACITY OF PERSONS. 108

§ 93 a. It has been above stated, that foreign jurists generally,
although not universally, hold this opinion; for there is some
diversity of opinion among them, if not as to the application of
the rule ez directo to the persons, at least as to its application to
property situate in a foreign country. Considering, therefore, the
importance of the subject, and that it has already undergone a
most elaborate discussion in England, in the case already adverted
to, and which we shall have occasion to consider more fully here-
after,! it is desirable, that doctrines maintained by foreign jurists,
as well as the reasoning of the English courts on the subject,
should be here brought under review.

§ 93 b. It seems, then, generally admitted by foreign jurists, that,
as the validity of the marriage must depend upon the law of the
country where it is celebrated, the status, or state, or condition, of
their offspring, as to legitimacy or illegitimacy, ought to depend
upon the same law. So that, if by the law of the place of the
marriage, (at all events, if the parents were then domiciled there, )
the offspring, although born before the marriage, would be legiti-
mated, they ought to be deemed legitimate in every other country,
for all purposes whatsoever, including heirship of immovable
property?

§ 93 c. This is certainly the doctrine maintained by many, per-
haps by a large majority of foreign jurists. Vinnius says: Item,
jus persone hic esse, quod statum et conditionem persone sequitur.
Nam status ipse est persone conditio, aut qualitas, que efficit, ut
hoc vel illo jure utatur, ut esse liberum, esse servum, esse inge-
nuum, esse libertinum, esse alieni, esse sui juris. Huberus also
extends the rule not only to the marriage itself, but also to all
rights and effects flowing therefrom. Porro, non tantum ipsi con-
tractus ipseque nuptie, certis locis rité celebrate, ubique pro justis
Scotland, France, Spain, Portugal, Germany, and most of the continental nations
of Europe. The rule was imported into their jurisprudence from the Roman
law. 1 Burge, Comment. P. 1, ch. 3, § 2, p. 92, 93; Cod. Lib. 5, tit. 27, 1. 5;
Novell. 78, ch. 4; Id. 89, ch. 8. In some of the American States the same rule
prevails. 1 Burge, Comment. on Col. and For. Law, ch. 3, § 3, p.101; Griffith’s
Law Register.

' Birthwhistle v. Vardill, 5 Barn. & Cress. 438; 8. C. 9 Bligh, R. 82; ante,
§ 81; 7 Clark & Finn. 895.

® See 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 3, p. 101 to p. 106.

* See 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 3, § 3, p. 101 to p. 106.
* Vinnius, ad Inst. Lib. 1, tit. 3, Introd.
104 CONFLICT OF LAWS. [cu. Iv,

et validis habentur, sed etiam jure et effecta contractuum et nuptia,
rum, in tis locis recepta, ubique vim suam obtinebunt.’ Stock-
mannus says: Statuta, in personas directa, que certam tis qualita
tem affigunt, transeunt quidem cum personis extra territorium sta-
tuentum, ut persone ubique sit uniformis, ejusque unus status?

§ 93d. Bouhier adopts the doctrine in its fullest extent, and
applies it to the very case of legitimacy. He says, that the state
of the child, whether legitimate or illegitimate, must be decided by
the law of the domicil of his parents; and that this is an inviola-
ble rule upon every question of his state or condition. And hence,
he holds, that if he is at his birth illegitimate, and he is legitimated
by a subsequent marriage in the same country between his parents,
he is in all respects to be treated as legitimate everywhere.2 Her-
tius holds a similar opinion.* Froland is of the same opinion.’
Boullenois is very full on the same point. He holds that the
general rule is, pater est, quem juste nupte demonstrant; and that
if a person is legitimate or illegitimate, by the law of the place of
the marriage, he is to be held of the same state and condition;
wherever he may go, and whatever change of domicil may take
place. Hence he declares, that if by the law of a country a man
born a bastard is legitimated by the subsequent marriage of his
parents, or € contra, if by the law of the country such subsequent
marriage does not legitimate him, he is in every other country
affected by his original state or condition ; that is to say, if legiti-.
mated by the subsequent marriage, he is legitimate everywhere;
if not so legitimated, he is illegitimate everywher¢.? Even Bur-
gundus, and Stockmannus, and Christineus, whose systems are
founded upon a different theory, namely, that personal statutes
have no extra-territorial effect, admit that so far as the person is

* Huberus, De Conn. Leg. Lib. 1, tit. 3, § 9.

* Stockman. Decis. 125, § 6, p. 262; also cited 1 Boullenois, Obser. 6, p. 131;
Livermore, Dissert. § 50, p. 52. John Voet, in the most explicit terms, admits,
that this rule is held to apply to questions of legitimacy by many jurists, and es-
pecially by D’Argentré, by Grotius, by Christinzus, and by Rodenburg. J. Voet,
Comm. ad Pand. Lib. 1, tit. 4, a. 7, p. 40.

* Bouhier, Cout. de Bourg. ch. 24, § 122, 123, p- 481.

* Hertii, de Collis. Leg. Tom. 1, § 4, n. 15, p- 184, edit. 1716 ; Id. p. 129, edit.
1737.

* 1 Froland, Mem. ch. 5, § 4, p. 89; Id. ch. 7, § 2, p. 156, edit. 1716; ante,
§ 514.

° 1 Boullenois, Observ. 4, p. 62, 63; post, § 93 ¢.

* Thid.
§93c-98 7] CAPACITY OF. PERSONS. 105

concerned, ‘though not as to immovable property, (as we shall
presently see, the original state or condition ought to govern
everywhere.? The opinion of Paul Voet and John Voet on the
same subject is far more limited and qualified, and will come
under our review hereafter.®

§°93 e. The same general doctrine is avowedly adopted by the
courts of England. Lord Stowell on one occasion in effect main-
tained, that by the law of England the status or condition of a
claimant must be tried by reference to the law of the country,
where that status originated. The same doctrine was adopted by
the judges of England in giving their opinion to the House of
Lords. They admitted, in the most solemn form, that the legiti-
macy or illegitimacy of a person must be decided by the law of the
place where the marriage was celebrated; and that if by the law
of that place (for example Scotland) a son, born before the mar-
riage of his parents, would by a subsequent marriage between them,
be legitimated, that status of legitimacy must be deemed equally
true and valid everywhere else, where the question might arise.®

§ 93 f. Still, however, although the general doctrine is thus ex-
tensively admitted, there is some diversity of opinion, as to the
true nature and extent of its application in regard to different
kinds of property, and also in regard to the circumstances of par-
ticular cases. Thus, for example, although its positive application
in regard to movable property is generally admitted; yet, in
regard to immovable property in a foreign country there has been
some contrariety of judgment. The circumstances, also, under
which the question of legitimacy or illegitimacy may arise, may be
very various and admit of important distinctions in the application
of the general doctrine. The birth may be in one country, the
marriage be in another, and the domicil of the parents be in a
third.? :

? Post, § 93 k.

* Ante, § 52; Burgundus, Tract. 1, § 3, p. 15; Christinzeus, Tom. 2, Decis. 3,
§ 8, p.4; Id. Decis. 56, § 12, p. 55; Stockmann. Decis. 125, § 6, 9, p. 262, 263 ;
1 Boullenois, Observ. 4, p. 130, 131.

® Post, § 93 1.

* Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 54,59; S.C. 9 Bligh, R. 45, 46.

5 Birthwhistle v. Vardill, 9 Bligh, R. 45, 46, 48 ; Id: 71; post, § 93 n, § 93 q.

* See 1 Burge, Comment. on Col. and For. Law, P. 1, ch. 3, § 3, p. 105, 106,

109, 110.
7 See Lord Brougham’s Remarks in Birthwhistle v. Vardill, 9 Bligh, R. 78.
106 CONFLICT OF LAWS. [cu. rv.

§ 93 g. Several cases may easily be put to illustrate this sug-
gestion. The question of legitimacy or illegitimacy may arise
among others in the following cases. (1.) Where a child is born
before marriage in the domicil of his parents, who afterwards inter-
marry there, and by the law of that domicil the child is thereby
legitimated. (2.) Where achild is born before marriage in the
domicil of his parents, and by the law thereof, a subsequent mar-
riage would legitimate the child, and the parents are afterwards
married in another country, by whose law no such legitimation
would follow. (8.) Where a child is born before marriage in the
domicil of his parents, by whose law no legitimation would follow
on their subsequent marriage, and they remove to a new domicil,
where the law would, upon such marriage, legitimate the child,
and they are there married. (4.) Where the child is born before
marriage in the domicil of his parents, by whose law no legitima-
tion would follow from a subsequent marriage, and they are there
married, and subsequently remove to a new domicil, by the law
whereof such subsequent marriage would legitimate the'child. It
is plain that these several cases may admit of, if they do not abso-
lutely require, the application of different principles to resolve
them; and different questions may be put in respect to them.
Ought the law of the place of birth, or that of the place of the mar-
riage, or that of the actual domicil of the parents, or that of the
actual domicil of the child, to govern ?!

§ 934. The most simple case, and that which has most fre-
quently arisen for discussion, is the first stated ; where the birth,
domicil, and marriage of the parties took place in a country, by
the laws whereof a subsequent marriage would legitimate the
child. Suppose, then, the question to arise, whether in such a
case the child, so legitimated by such marriage, could inherit
lands in another country by the laws whereof no such legitima-
tion would follow upon such marriage. Or, in other words, let

* A case still more complicated is said to be now pending before the House of
Lords, on an appeal from Scotland. In effect it is this. A., a Scotchman, domi-
ciled in Scotland, had an illicit connection with B., an English woman, domiciled
in England, by whom he had a son born in England. The parents afterwards
intermarried in England, the father retaining his Scotch domicil. They then
returned to Scotland; and the question before the court was, whether, under
these circumstances, the son was legitimated by the subsequent marriage. The

court of Sessions of Scotland held, that he was. From this decision appeal is
taken.
§ 938 ¢- 937] CAPACITY OF PERSONS. 107

us put the very case, as it actually occurred in the courts of
England, in the case above alluded to,! the case of an illegitimate
son born in Scotland, whose parents afterwards intermarried there,
and dying, held lands in England; would such son be entitled
to inherit the land, as lawful heir, under the law of England?
We have already seen, how this question has been decided by the
English courts ;? but, as the question is still supposed to be un-
settled there, and is also of very general application and im-
portance, it may be well to give it a fuller consideration.

§ 93 4. Itis plain, from what has been already stated, and indeed
is directly established by their positive declarations, that those of
the foreign jurists already mentioned, who affirm the general doc-
trine of the universality of the rule, that capacity and incapacity de-
pend upon the law of the domicil of birth, and that it equally applies
to movable property and unmovable property, situate in foreign
countries, would hold the same rule applicable to the question of
legitimacy and illegitimacy, in regard to the inheritance of real
property in all foreign countries. This is certainly maintained by -
Vinnius, Huberus, Wesel, Froland, Rodenburg, Bouhier, Boulle-
nois, Pothier, and Merlin,® and probably by Baldus and Grotius.*
Hertius puts the converse case: An filius, quem pater ante legiti-
mum connubium in Anglié genuerat, succedere possit patri huic
naturali in bonis ex Anglia sitis? And he holds, that he could
not; because the son, being illegitimate in England, would be held
illegitimate everywhere.® And this naturally flows from one of his
rules: Quando lex in personam dirigitur, respiciendum est ad leges
illius civitatis, que personam habet subjectam.® Bouhier states this
as the universal rule (as we have seen;)’ but he admits, that if
the law of a particular nation should allow the inheritance only to
a child born in lawful matrimony, (only in loyal marriage,) then
as to land there situate, it ought to prevail, upon the ground that
the, law, in such a case, designated the condition of heirship.

' Birthwhistle v. Vardill, 5 Barn. & Ald, 438; S. C. 9 Bligh, R. 51, 52; ante,
§ 93 a, § 93 e; post, 93 n.

? Ante, § 87.

"* Ante, § 51 a, 52, 53, 54, 93, 98 d.

* J. Voet, ad Pand. Lib. 1, tit. 4, n. 7, p.40; Liverm. Dissert. § 56, p. 57, § 109
to 114, p. 84 to p. 87.

5 1 Hertii, Opera, De Collis. Leg. § 4, n. 15, p. 183, edit. 1716; Id. p. 129, edit.
1737,

* Td. § 4, n. 8, p. 175; Id. p. 123, edit. 1837.

" Ante, § 93 d.
108 CONFLICT OF LAWS. [cx rv:

And this seems to have been also Dumoulin’s opinion. Boulle-
nois holds? the doctrine without any qualification whatever. He
presses the doctrine further, and insists, that if a child is born
before marriage in England, and his parents are afterwards natu-
ralized in France, and subsequently intermarry there, the child
becomes legitimate to all intents and purposes. He adds, that
if a child is so born illegitimately in England, and his parents
marry there, and then die, and he then takes up his domicil in
France, and is naturalized there, he will be entitled to succeed
to their property in France, to the exclusion of collaterals.*

§ 93k. Burgundus, Christineus, and Stockmannus may be
thought to hold the contrary doctrine, upon the general founda-
tion of their system, that personal laws have no operation as to
immovable property situate elsewhere.5 But I am not aware,
that they have ever directly discussed this question. And it may
be, that while they hold that immovable property must, as to
heirship, be decided by the dex loci status, they may deem the
capacity of legitimacy, as to that heirship, as conclusively estab-
lished by the law of the birth and domicil of the party. The one
doctrine is certainly not necessarily inconsistent with the other.

§ 932. Paul Voet and John Voet, are, as far as my researches
have gone, the only jurists, who contend, that the law of legiti-
macy of the domicil of the party, although a personal statute, is
exclusively, like all other personal statutes, confined to the terri-
tory, and has no operation directly or indirectly beyond it. Verius
est (says John Voet) personalia, non magis quam realia, territo-
rium statuentis posse excedere, sive directo, sive per consequen-
tiam ; and he goes on to deny,’ that a bastard, who is legitimated
by the law of his domicil, can inherit by succession property situ-
ate in another country, where no such legitimation would take

? Bouhier, Cout. de Bourg. ch. 24, § 124, p. 481.

* Ante, § 93 d; 1 Boullenois, Observ. 4, p. 62, 63; Id. Obs. 6, p. 129, 130, 184
to 137.

* 1 Boullenois, Observ. 4, p. 62, 63. Ante, § 93 d.

* 1 Boullenois, Obs. 4, p. 63.

* See Burgundus, Tract. 1, n. 8, 10, 25, 26; Christineeus, Vol. 2, Lib. 1, Decis.
56; Stockmann. Decis. 125, n. 10; Livermore, Dissert. § 47, p. 50; Id. § 106, p.
81; ante, § 93 d.

* John Voet seems to have understood, that those jurists who hold, that legiti-
macy by the law of domicil extended the same capacity everywhere, gave the

effect to it here supposed. J. Voet, ad Pand. Lib. 1, tit. 4,'n. 7, p- 40.
” Ante, § 54a; Liverm. Dissert. § 51, 52, p. 54.
§ 9387-98 n.] CAPACITY OF PERSONS. 109

place. Paul Voet holds the same opinion. Quid autem statuen-
dum erit de legitimato in uno territorio; censebitur, ne, ratione
bonorum alibi jacentium, ubi legitimatus, non erat statutum vires
suos excerere; vel, an illa qualitas seu habilitas, eum ubique loco-
rum comitabitur, quoad effectum consequende dig'nitatis, vel suc-
cedendi ab intestato? Respondeo, etsi per legitimationem habilite-
tur persona, ut velint D. D., qualitatem eam comitari ubique
locorum, etiam ex comitate id servart possit; quia tamen potissi-
mum illa legitimatio fit ad effectum vel honoris vel hereditatis
consequende ; in quam nihil juris habet is, quia in suo territorio
legitimavit ; existimarem illum legitimationem ad honores subeun-
dos et hereditatem extra territorium capiendam non sufficere

§ 93m. The weight of foreign authority would, therefore, on
the whole, seem decidedly to preponderate in favor of the rule,
that an illegitimate person, who by the subsequent marriage of
his parents becomes legitimated, as heir by the law of his domicil,
ought to be deemed such as to the inheritance of land in all
other countries, at least, where it is not expressly prohibited by
the terms of the local law, that such a person, born before mar-
riage, should inherit.2 Indeed, the opinion of the Voets is perhaps
Jess fairly maintainable, because it proceeds upon the ground,
that the status or condition of the person by the law of his domicil
has no operation beyond the territory, either directly or conse-
quentially. To this extent the doctrine has certainly never been
carried in England.®

§93n. In the case already alluded to in “the English courts,
where the question was, whether a son, born of Scottish parents
in Scotland before marriage, but who afterwards intermarried
there, could inherit lands in England, as heir, there was much
learned discussion on the point. The Court of -King’s Bench
decided in the negative, and that opinion was afterwards, upon
a writ of error to the House of Lords, held by all the judges
-of England to be correct. But it not being satisfactory, the case
has since been ordered to be reargued, and is still pending-*
‘Lord Brougham upon this occasion expressed an opinion directly

' Paul Voet, De Statut, § 4, ch. 3, § 15, p. 156, edit. 1661; Liverm. Dissert.
§ 51,52, p. 54.

® Liverm. Dissert. § 57 to 59, p. 58, 59. ® Ante, § 93 e.

‘ [It has since been elaborately reargued, and the decision of the King’s Bench
unanimously affirmed ; the question, therefore, may now be considered as at rest.

See Birthwhistle ». Vardill, 7 Clark & Finn. 895.]
CONFL. 10
110 CONFLICT OF LAWS. [cH rv.

opposed to that of the learned judges. It may, therefore, be well
to present a summary of the reasoning on each side of the ques-
tion, and thus to exhibit the grounds of difference.

§ 93 0. It was conceded, on all sides, that-the right to inherit
lands in England must depend-upon the laws of England; in
other words, that the right of inheritance follows the law of the
ret site, and not that of the domicil of the parties. In every
case, therefore, in which an inheritance is sought in England,
the question is, whether the claimant is the heritable heir accord-
ing to the law of England. The learned Chief Baron Alexander,
who delivered the opinion of the judges against the Scottish
claimant, (though legitimate in Scotland,) reasoned to this effect.
He admitted, that the status or condition of the claimant must
be tried by the law of Scotland, where that status originated;
that by the law of Scotland, the claimant was clearly legitimate,
and must be held so everywhere. But he insisted, that the ques-
tion was not, whether the claimant was legitimate or not; but
whether he was heir in England; that he might-be legitimate, and
yet might not be heir. By the law of England no person could
inherit lands there, unless he was born within lawful wedlock.
This was so expressly affirmed by the Statute of Merton, which
declared, that “‘he-is a bastard, that is born before the marriage
of his parents.” In order, therefore, to see, whether the claim-
ant was entitled, it was not sufficient to ascertain, whether he
was legitimate; but also to ascertain, whether he was born in
lawful wedlock; for that circumstance is essential to heirship in
England. Lord Coke has, indeed, said: Heres, in the legal un-
derstanding of the common law, implieth, that he is ex justis
nuptiis procreatus; for, Heres legitimus est, quem nuptie de-
monstrant. But his expression would have been more accurate
if, instead of saying ex justis nuptiis procreatus, he had said, ex
justis nuptits natus. As to the argument used for the claimant,
that he is deemed born in lawful wedlock, because by a presump-
tion of the Scottish law, a presumption juris et de jure, there was
a marriage anterior to the procreation, it is a mere fiction of that
law; and cannot govern in England, ees the actual fact of birth
after marriage decides the right. The cases alluded to, where
illegitimacy in the place of birth settled the question against the
heirship,' are perfectly consistent with this doctrine; for both

* Ante, § 87.
§93.n, 98 0.] CAPACITY OF PERSONS. 111

facts must concur to establish heirship in England, legitimacy,
and birth after marriage. In these cases the first fact was entirely
wanting, and in the first step, therefore, in the claimant’s title,
the ground sunk under him.}

1 His lordship’s opinion deserves here to be cited at large. “ As to the first
of these questions, I believe I express the opinion of the judges, when I say, in
the well-considered language of Lord Stowell, in the case of Dalrymple v. Dal-
rymple, ‘ The cause, being entertained in an English court, must be adjudicated
according to the principle of the English law, applicable to such a case; but
the only principle, applicable to such a case by the law of England is, that the
status or condition of the claimant must be tried by reference to the law of the
country, where the status originated; having furnished this principle, the law
of England withdraws altogether, and leaves the question of status in the case
put to the law of Scotland.’ Such is the sentiment of that great judge, and
such is his language, varied only so far as to apply to a question of legitimacy,
what was said of a question respecting the validity of marriage. When the
question of personal status has been settled upon these principles, when it has
been ascertained what the claimant’s character and situation are, it becomes
then necessary to inquire, what are the rules and maxims of inheritance, which
the law of that country, where the inheritance is placed, and whose tribunals
are to decide upon it, has stamped and impressed upon the land in debate. In
order the more distinctly to explain what is meant, I will suppose a case in
many circumstances resembling the present. In addition to the circumstances
stated in the question, let it be further supposed, that the father and mother of
the claimant had, after their marriage, one or more sons born to them. Sup-
pose then the present claim to be made. The first inquiry having been satis-
fied, and it being upon that inquiry perfectly ascertained, that the claimant is
the eldest legitimate son of his deceased parent for the purpose of taking land,
and for every other purpose, by the Jaw of Scotland, it will next be requisite to
inquire, what are the rules and maxims of inheritance, which the law of Eng-
land has impressed upon that land, which is the subject of the claim. Let it
further be supposed, that upon this inquiry it shall turn out, that the land
claimed is of that description which is called Borough English. This being
proved, we think it clear, that the claimant’s legitimacy by the law of Scotland, .
his right to inherit by that law, will give the claifaant no right whatever to the
land in England held in Borough English. The comity between nations is con-
clusive to give to the claimant the character of the eldest legitimate son of his
father, and to give him all the rights, which are necessarily consequent upon
that character; but what these rights are respecting English land must be left
to the law of England, and the comity is totally ineffectual to alter, in the
slightest degree, the rules of inheritance and descent, which the law of Eng-
land has attached to this English land. It would, unquestionably, descend upon
the youngest son. I am anxious to mark clearly the distinction, which I have
pointed out, because it is upon that distinction that our opinion turns. I will,
therefore, illustrate it by another example. Take the case of Ilderton v. Ider-
ton (2 H. Black. 145); that is the case of a claim to dower by a foreign widow ;
whether she is a widow or not, that is, whether she was the lawful wife of the
112 CONFLICT OF LAWS. [cx rv.

§ 93 p. On the other hand, the reasoning of Lord Brougham
was to this effect. The reasoning of the judges admitted the valid-

man, who was, during the coverture, seized of the land, is a question which
the law of England permits, upon a claim to English land, to be determined
by the foreign law, the law of the country, where the contract of marriage was
made ; there the comity stops. When her character of widow shall have been
fixed according to these foreign rules, the law of England comes into action;
and, proceeding inexorably by its own provisions and regulations, decides what
are the interests in the English land, which her character of widow has conferred
upon her. It inquires, what are the rules, which attach upon the particular land
in favor of a widow. If, upon that inquiry, it appears, that the land is subject to
the common law, it will give her a third ; if it appears to be gavel-kind, one half,
while she remains casta et sola. Ifthe land be customary land of any manor, the
custom must be looked into; and she can have only what that custom shall be-
stow, however strange and capricious that custom may be. The distinction, to
which I am directing your lordship’s attention, is very familiar to foreign jurists,
and is noticed by them as the difference between real and personal status; the
last being those which respect the person, and follow it everywhere; the first being
those which are connected with the land, and adhere to it, and are as immovable
as the subject to which they are applied. My lords, it appears to us, that the an-
swer to the question, which your lordships have put, must be founded upon this
distinction ; — while we assume that B. is the eldest legitimate son of his father,
in England as well as in Scotland, we think that we have also to consider, whether
that status, that character, entitles him to the land in dispute, as the heir of that
father ; and we think that this question, inasmuch as it regards real property sit-
uated in England, must be decided according to those rules which govern the
descent of real property in that country, without the least regard to the rules
which govern the descent of real property in Scotland. We have therefore con-
sidered, whether, by the law of England, a man is the heir of English land, mere-
ly because he is the eldest legitimate son of his father. We are of opinion, that
these circumstances are not sufficient of themselves, but that we must look further,
and ascertain whether he was born within the state of lawful matrimony ; be-
cause, by the law of England, that circumstance is essential to heirship; and that
is a rule not of a personal nature, but of that class, which, if I may use the expres-
sion, is sown in the land, springs out of it, and cannot, according to the law of
England, be abrogated or destroyed by any foreign rule or law whatsoever. It is
this circumstance, which, in my judgment, dictates the answer we must give to
your lordship’s question, namely, that in selecting the heir for English inherit-
ance, we must inquize only who is that heir by the local law. It has appeared to
us, that the vice of the appellant’s argument consists in treating the question of
who shall be heir to English land, as a question of personal status, So it is, no
doubt, up to a certain point, but beyond that point becomes a question to be de-
cided entirely by the local rules, relating to real property in the realm of Eng-
land. That the rule of the English law is what I have represented, can hardly
require proof. Ifthe argument from the comity of nations be shaken off, no man
will doubt that a person legitimated per subsequens matrimonium is not the heir
of English land. What my Lord Coke says, in page 7 of the first Institute, af
§93p.] CAPACITY OF PERSONS. 113

ity of the marriage, and the status of legitimacy of the claimant.
But it was said, that the question was of heirship. That was true.

fords the rule : ‘ Heees, in the legal understanding of the common law, implieth
that he is ex justis nuptiis procreatus, for” Heres legitimus est, quem nuptie de-
monstrant.’ Perhaps my Lord Coke’s expression would have been more precise
and accurate, if, instead of saying, ‘ ex justis nuptiis procreatus,’ he had said ‘ ex
justis nuptiis natus.” But this is what is meant, as all experience shows. It
would be useless to follow this further ; but it will be material to recollect, that
this maxim, which pervades all our books, and which is confirmed by all our prac-
tice, though it is, in form, a description of the person, who shall be heir, is, in sub-
stance, in our opinion, a maxim regarding the land, describes one of its most im-
portant qualities, traces out the course in which it shall descend, and is no more
liable to be broken in upon by any foreign constitution, than are the degree of
interest, which the heir shall take in the land, the conditions, on which he shall
hold it, the proportion, which a woman shall obtain as a widow, or the limitations
and conditions attached to her estate. I have endeavored to state the principles
and to show the course of reasoning, which has conducted my learned brothers
and myself to the conclusion, that B., the person designated by your lordships, is
not entitled to the property in question as the heir of A. Before I finish I will
notice two arguments used on behalf of the appellant, which merit particular at- ~
tention. It is said, for the appellant, that according to the rule we adopt, if he is
born in lawful wedlock, he fulfils every condition required of him. Now they say
he is born in lawful wedlock, because, by a presumption of the Scottish ‘law, a
presumption juris et de jure, there was a marriage anterior to his procreation. It
is by force of this presumption, that he is legitimate ; by this fiction he is born
within the pale of lawful matrimony. We know that this fiction is, by many re-
spectable writers on the Scottish law, represented as accompanying the legitima-
tion per subsequens matrimonium. But we do not concede the consequence de-
duced from it, as applicable to the present question. The question is, what the law
of England requires; and, as we are advised, the law of England requires that
the claimant should actually, and in fact, be born within the pale of lawful matri-
mony ; we cannot agree that the presumption of a foreign jurisprudence, contrary
to the acknowledged fact, should abrogate the law of England, and that by such
a fiction a principle should be introduced which, upon a great and memorable oc-
casion, the legislature of the kingdom distinctly rejected ; your lordships will per-
ceive that I allude to the statute of Merton. It would seem strange to introduce
indirectly, and from comity to a foreign nation, a rule of inheritance, which may
affect every honor and all the real property of the realm; which rule, when pro-
posed directly and positively to the legislature, they directly and positively nega-
tived and refused ; a refusal, that, in England, has obtained the approbation of
every succeeding age. Again, my lords, it’ is said that two cases have been de-
cided in this House, which are nearly in point, and will prove that the claim of B.
should be supported. ‘These cases are the cases of Shedden v, Patrick, and the
case of Lord Strathmore. These two cases are alike in principle, and establish
the same proposition. In the one case the parents lived in a state of concubinage
in America, and in the other, in England. In both, children were born to them.
Afterwards the parties married in their respective countries; by force of their
10*
114 CONFLICT OF LAWS. [cu. Iv.

But, then, who was the heir? Why, according to the law of Eng.
land, the eldest legitimate son. Now, the claimant answered. to
this very character. He was the eldest son, and he was legitimate.
In truth, legitimate son means lawful son, and the rule of inherit-
ance is, that the eldest lawful son shall succeed the father. But

marriages the American issue claimed Scottish land, and the English issue claimed
Scottish honors; in both, your lordships decided against the claimants. Now, it
is said, these authqrities are exactly the converse of the present case. They e-
tablish the principle, that the courts of the country, where the lands lie, in a ques-
tion respecting the heirship to these lands or honors, inform themselves, whether
the claimant is heir, not by the law of the country where the lands lie, but in the
country of the domicil where the marriage of the parents was contracted ; and if
he is not heir by that foreign law, his claim is rejected ; from which they deduce
this consequence, that if he is heir, his claim should be sustained. This argument
presents itself in a very plausible shape, and was pressed at the bar, as it seemed
to me, with striking ingenuity and force. But if I have the good fortune sufi-
ciently to explain the principles, which have conducted my learned brothers and
myself to the opinion I have stated, you will soon perceive, that these principles
aiford a conclusive answer to it. The first step to be taken in every case of this
kind, as I have already explained, is té inquire into the status of the claimant,
The status, it is argued, is to be determined by the law of the foreign country ;
with this the lex rei site does not intermeddle, and intermeddles no more, when
that foreign law establishes the claimant's bastardy, than when it proves his legiti-
macy. In both the cases the claimants were bastards; the laws of their own
country, the laws of their domicil, the laws of the spot, where the matrimonial
contract was entered into, declared them to be illegitimate ; the law which, by the
acknowledged principles, ascertained their personal status, fixed upon these per-
sons a character of illegitimacy, fatal to their claims; on the first step the ground
. sunk under them, and it became impossible for them to advance. It is obvious,
that if, in the cases to which I am now referring, the claimants had been declared
heirs by the Scottish law, the Scottish law admitting of no heirship without legiti-
macy, must have been called in aid to bestow upon them that personal character
of legitimacy refused to them by their own law; in other words, a law foreign to
their birth, to their domicil, and to the marriage of their parents would have been
held to bestow upon them their personal status and character — a decision cer-
tainly contrary to the acknowledged principles upon this subject. The character
of illegitimacy, attached to the persons of the English and American claimants by
their own law, accompanied them everywhere, and would prevent their being re-
ceived as heirs anywhere within the limits of the Christian world. This view, in
our judgment, renders these decisions entirely consistent with the principles I
have unfolded, and prevents our considering them as objections to the opinion I
entertain, that B. is not entitled to the property in question, as the heir of A.”
Birthwhistle v. Vardill, 9 Bligh, R. 45 to 53. See 7 Clark & Finn. 895, [* It
would seem that much of the argument, and illustration, of the learned judge in
the foregoing opinion, is altogether subversive of the conclusion ultimately
‘reached. See the opinion of Lord Brougham, post, § 98 r.]
§ 938 p—9837r.] CAPACITY OF PERSONS. 115

lawful or not, depends upon the law, which is to govern; and no
other definition can be given of what is lawful, than this, that he
is the lawful son, whom the law declares such. What law? There
are two, it:is said, in this case: the law of the place of the party’s
birth and of his parents’ marriage, and the law of place where the
land lies. Then, which law is to prevail? The law of the birth-
place. Any other rule would involve great inconvenience, and be
inconsistent with principle ; for then a man would be legitimate in
one place, and illegitimate in another; legitimate as to personal
property,.and illegitimate as to real property in the same country,
And this would not only affect him, but all persons, who after his
death should claim through him; even purchasers claiming from
him or them.

§93 g. Then as to the argument, that heir means he, who is
born in lawful wedlock, ex justis nuptiis, Itis true. But what is
lawful wedlock ? It is that, which is so-by the law of the. place of
marriage ; and there is no greater reason for being bound by that
law as to marriage, than there is as to legitimacy, as consequent
upon the marriage. Why may not the court look behind the mar-
riage, and ascertain, whether the parties were competent to marry
by the law of England? It is not correct to say, that the law of
the place of marriage governs as to that alone, it must govern as
to all the effects consequent thereon. So it was held by Huberus.
So it was held in the cases of Crawford v. Patrick, and Strath-
more v. Bowes, already alluded to.1 In Scotland the child, born
before the marriage ceremony has been performed, is legitimate,
not because of the subsequent act of his parents; but because he
is considered as born in lawful wedlock. The marriage is held to
have preceded his birth, and so he is deemed non legitimatus, sed
légitimus ab initio. This is not a mere refinement or fiction ; be-
cause in Scotland marriage is a cgnsentient contract; and such
consent and marriage before the birth are deemed to be evidenced
by the subsequent open ceremony and celebration of the marriage.
This is no more a ‘fiction, than the English law as to this very
point. If in England a child is born the day after the marriage,
he is deemed legitimate, although procreated long before. The
law will not inquire into the fact.

§ 93 r. As to the statute of Merton, it has no bearing on the
subject. That statute applies only to children born in England.

1 Ante, § 87.
116 CONFLICT OF LAWS. [ou. rv.

It is no authority for saying, that he only can inherit English lands,
whom that statute declares legitimate. That statute can in no
just sense apply to persons born out of England. Their status, as
to legitimacy, depends not on that statute ; but on the laws of the
country of their birth. He is legitimate, whom the law of his
birth declares to be so. He is lawful heir, whom the law of his
birth declares to be born in lawful wedlock. We are necessarily
driven to this conclusion ; and we must resort to the foreign law
to solve all such questions. If it is said, that he is the lawful heir
in England, who is the eldest son born within lawful wedlock, it is
but changing the position of the point; for we may just as well
say, that he, who is the eldest son born in lawful wedlock, (and so
the claimant is,) is the lawful heir in England. The real point in
difficulty was not met nor considered by the learned judges. The
very question was, whether the law of England did not take the
rule, as to legitimacy, the eldest son born within lawful wedlock,
from the very status as to these points recognized and held by the
law of Scotland. The whole constituted his personal status; and
that personal status travelled with him into England.

1 It may be far more satisfactory to the learned reader to have his lordship’s
reasoning at large in his own words. “In approaching this question, there are
some things not disputed. It is admitted that the validity of a marriage must de-
pend on the law of the country, where it is had, and that consequently the parents
of this party were validly married. It seems also to be agreed, that, generally
speaking, legitimacy is a status, and must be determined by the law of the coun-
try to which the party belongs. But it is said by those who support this judg-
ment, that whether the party here is legitimate or not, is no question before us ;
the only question being, it is alleged, whether or not he is the heir to an English
real estate. This distinction, I confess, appears to me founded on an inaccurate
view of the subject. It is true, that the question here arises upon the claim of an
heir as such, and that therefore the only question may be said to be, whether heis
heir or not. But it is also very possible, that this question may turn wholly upon
another, namely, whether or not the.claimant is eldest legitimate son of his father,
the person last seised ? Nor do I well see how legitimacy can ever come in ques-
tion in any other way, than as connected with the claim to succession, either real
or personal, in England, or in Scotland either, unless in the single case of a dec-
larator of bastardy or of legitimacy, — a proceeding unknown in the English law.
It is therefore by no means sufficient for deciding this case to say, that the ques-
tion touches not legitimacy, but inheritance ; not the personal status of the party,
but his right to real property. It may touch both those matters, and the latter
may wholly depend upon the former. In truth, legitimate son means lawful son ;
and the rule of inheritance is, that the eldest lawful son shall succeed to the fa-
ther; but ‘lawful’ or ‘not’ depends upon the law, which is to govern; and no
other definition can be given of what is lawful than this, that he is lawful son,
§.93 7, 98 s.] CAPACITY OF PERSONS. 117

§ 93s. Another question also has arisen in England, whether
a child born before marriage in one country, of parents domiciled

whom the law declares to be such. Whatlaw? There are two, it is said, in this
case — the law of the place of the party’s birth, and of his parents’ marriage, and
the law of the place where the land lies. Then which of these two laws shall
prevail? The whole inclination of every one’s mind must be towards that, law,
which prevails, where each person is born, and where his parents Were married,
supposing the countries to be one and the same; and if they differ, I should then
say certainly the law of the birthplace. Nor can anything be more inconvenient or
more inconsistent with principle, than the inevitable consequence of taking the lex
loci rei site for the rule ; because this makes a man legitimate or illegitimate, av-
cording to the place where his property lies, or rights come in question ; legitimate,
when he sues for distribution of personal estate ; a bastard, when he sues for suc-
cession to real; nay, legitimate in one country, where part of his land may lie;
and a bastard in some other, where he has the residue. So, in like manner, all,
who'claim through him, must have their rights determmed by the same vague and
uncertain canon ; a circumstance, which I nowhere find adverted to below. All
the learned judges proceed upon the case being one of an inheritance claimed by
the party himself. But what if he were dead years ago, and another claimed an
estate in England, to which he (the alleged bastard) never had been, and never
could have been entitled, an estate, for example, descending from a collateral,
who took it by purchase after the death of the alleged bastard? Then the pedi-
gree of the claimant must be made out through legitimate persons; and the ques-
tion of legitimacy is raised as to one, who is not himself claiming any land; who
never did or could claim any land ; and it is not raised in respect of any right in
him to inherit ; any right to be called the heir to any land. J apprehend this
shows strongly the necessity of taking another view, than the learned judges
seemed to have deemed sufficient for getting over the difficulty of the case ; and
of admitting, that there is a status of legitimacy, which is personal, and, travelling
about with the individual, must be determined by the law of his country. In the
argument for the judgment below, it is thought enough to say, that heir means he
who is born in lawful wedlock — ex justis nuptiis, Then what is lawful wedlock? .
Is there any greater reason for being bound by the law of the country where the.
marriage contract was made, in deciding, whether or not the wedlock was lawful,
than there is for being governed in ascertaining the legitimacy of the issue of the
marriage by the law of the country where that issue was born, more especially
when it was also the country where the marriage was had? But can the court stop
short, according to its own principle, at the mere fact of the martiage being ac-
cording to.the lex loci contractus? Do not the principles, on which their decis-
ion proceeds, demand this further inquiry, — Were the parties able to marry by.
the lex loci rei sit ? and thus a door is opened to the further examination of how.
far a.preceding divorce of one of the parties was sufficient to dissolve a previous
English marriage. All such difficulties are got rid of by holding the lex loci con-
tractus and nativitatis as governing the validity of the contract and legitimacy of
its issue ; but they are not to be got over in this way by any argument which
does not with equal force apply to holding that the legitimacy of the issue is a
question equally to be governed by the lex loci contractus and the law of the
118 CONFLICT OF LAWS. [ cu. Iv.

’

in that country, by whose laws a subsequent marriage would not
legitimate him, would by a marriage of his parents in another.

birthplace. Nor is it correct to say, as the judges below assumed, that the lex loci.
only influences the validity of the contract, and extends not to its effects. The
highest authorities have held expressly the reverse. Huber, in the Treatise De
Conflictu Legum, which forms part of his larger work, and is constantly cited as
the greatest. authority on this question, says, ‘Non solum ipsi contractus ipsseque
nuptiz certis locis rite celebratze ubique pro justis et validis habentur, sed etiam
jura et effectus contractiim nuptiarumque in iis locis recepta ubique vim suam ob-
tinebunt.’ I. 3, 9. It would be difficult to state anything more clearly and prop-
erly the effect of the matrimonial contract, than the legitimacy of the issue ; it is,
in fact, the main object, and therefore the principal effect of that contract. But
to remove all doubt on this subject, and to extend the same rule also to the lex
loci nativitatis; he adds, ‘ Qualitates personales certo loco alicui impressas ubique .
circumferri et personam comitari, cum hoc effectu ut ubivis locorum eo jure quo
tales persone alibi gaudent vel subjecti sunt, gaudeantur et subjiciantur.” This
principle was adopted and acted on in two very remarkable cases by your lord-
ships then proceeding under the advice of Lord Eldon ; I mean Crawford v. Pat-
rick, and Strathmore v. Bowes. In the former, a child having been born before
marriage in America, where the English law prevails, claimed a Scotch estate in
respect of the subsequent marriage of his parents there, of whom the father was
Scotch. He contended, that the question having arisen upon a real estate in Scot-
land, the Court of Session was bound to administer the law loci rei site, and that
law declared him legitimate. But the court below and your lordships held, that
legitimacy is a status to be determined by the law of the party’s birthplace, or at any
rate, by that of the country, where the marriage of his parents was had, as well
as himself born ; and they held him bastard in Scotland, where the land lay, be-
cause he was bastard in America, where his birth and his parents’ marriage took
place. In Strathmore v. Bowes, a marriage, had in London after the birth of the:
child, was held not to legitimate the issue either as to Scotch honors, or estate on
the same grounds; and in both these cases one of the points made for the judg-
ment was the absurdity of holding the same person to be bastard in one country:
and legitimate in another. It is plain that legitimacy has but one meaning,
namely, born in lawful wedlock. Now in Scotland the child born before the
marriage ceremony has been performed is legitimate, not because of a subsequent™
act of his parents, but because he is considered as born in lawful wedlock. The
marpiage is held to have preceded his birth, and according to the doctrine and
language of the civil law, from which Scotland and other countries have borrowed
this principle, he is considered as non legitimatus, sed legitimus ab initio. Nor is
this a mere fiction of law and a technical refinement. Marriage in Scotland is a.
consensual contract, and perfected by consent alone. But this may be given, and:
the contract made in two ways, either per verba de presenti, or by a promise
subsequente copula. Now in the latter case, the copula makes the previous prom-
ise a consent ; it turns the promise concerning the future into a present consent.
A child then, born in the interval between the promise and the copula, would be.
legitimate, for the copula would show that consent, and therefore a marriage, had.
preceded his birth. But so does a marriage after the birth, for that raises the le-
$985] CAPACITY OF PERSONS. 119

.

country, by whose laws such subsequent marriage would legiti-
mate him, become legitimate, so as to inherit lands in the latter

gal presumption, that there was a consent before the birth and at the cohabita-
tion. The cohabitation is held to have been a consent and a marriage ; the cere-
mony is only held as evidence of that previous consent and contract. So much
is this the case, that if either party was married to another at the time of the
-child’s birth, or during the interval between that birth and the ceremony, no le-
gitimation takes place, because no room exists for the presumption of law, that
the consent or marriage took place before the birth. All this is certain and clear,
but the learned judges in the court below appear not to have taken it into their
consideration. The judgment is rested entirely upon the statute of Merton, and
it is contended that, by that famous Act, he is declared a bastard, who is born be-
fore the marriage of his parents; no doubt so he is in England; and no doubt
bastardy, the status of bastardy, is what the English law is there dealing with.
But is this an authority for saying that he only shall inherit English lands, whom,
that statute declares legitimate ? It is said, that the lex loci rei sit must gov-
ern the succession to real estate ; undoubtedly it must; and if that law gives it in
Kent to all the sons, and in Brentford to the youngest, and elsewhere to the eld-
est, the several sons are the heirs in those several places. But when it is said the
lawful issue shall take, I agree; I too say only the legitimate son or sons shall in-
herit; but to find who are the legitimate sons, I must ask the law of the birth-
place, which fixes the status of legitimacy ; of the personal quality, according to
Huber, that travels round everywhere with the party. But the argument as-
sumes a narrower and apparently closer form still, for it is said that the statute
declares those only inheritable, who are born in marriage, and that Lord Coke
accordingly defines the heir to be him, who is ex justis nuptiis procreatus. There
is in this, however, a great fallacy : ‘ Born in marriage’ or not; ‘ex justis nup-
tiis procreatus’ or not ; is to be determined by some law or thier: it is not a ques-
tion that answers itself and in one way only. Then what law shall determine ?
Certainly either the law of the country where the party was born, or where the
marriage was had; the law either of the country, where the nuptie were had, or
where the procreatio took place. A question might arise, where the events hap-
pened in different countries; it might then be doubted which law should govern ;
which should be resorted to for an answer to the question. But where both events
happened in the same country, as. here, there seems no doubt at all in the matter.
Now the law of the country, where both the marriage and the birth took place,
declares that the party was born in lawful wedlock ; that he was ex justis nuptiis
procreatus ; and wholly denies, that he was born before marriage, or out of wed-
lock. But it is said, that this is a fiction, and that our law cannot import the fic-
tions of a foreign system, though its principles we are allowed to import. This
distinction I do.not profess to comprehend ; what is a fiction, but a principle? It
is only one particular view, which the law takes, and one doctrine which it lays
down. Suppose a Scotch court were to deny the legitimacy of a child, who was
born on the day after his parents married in England, should we not say, that a
gross absurdity was committed ? Should we not say, the child was born in lawful
wedlock, and hold the doctrine absurd, which should question his being lawfully
begotten ? Nay, suppose a gift, in the usual terms, to the heirs of the body law-
120 CONFLICT OF LAWS. [cu 1¥.

country. It has been held by the House of Lords, that the mere
‘fact of marriage in such country, where there was no change of

fully begotten ; we should let the child born the day after marriage take under
such gift, although it was clearly not lawfully begotten in point of fact. This is a
fiction exactly analogous to the Scotch fiction. The Scotch law presumes, against
the fact, the marriage to have been had before the birth of the child; our law
presumes, against the fact, the marriage to have been had before the cohabitation
of the parents. The fiction, or rather presumption, is parcel of the legal princi-
ple in both, and there can be no reason for importing the residue of the doctrine,
and rejecting the presumption ; there can be no reason for importing the English
law presimption into Scotland, which does not justify and require us to import
the Scotch law presumption into England. It must be recollected, too, that the
special verdict finds as a fact the legitimacy of the party, and not his legitima-
tion ; it finds as a fact, that he is legitimate; that is to say, lawfully born. Now
we know this to mean by the Scotch law, born in lawful wedlock ; but the find-
ing in the verdict is sufficient ; for legitimate, as contradistinguished from legiti-
mated, means born in lawful wedlock, and can mean nothing else. So in the civil
law, from whence this doctrine is wholly taken, both m Scotland and Holland
and other countries, the child is legitimus, not legitimatus, as in the same system
-of jurisprudence, liber is a free man, libertinus, one of the condition of a freed
man, ingenuus, one free born. If any person were found to be ingenuus by an
inquisition, we should contend, that he never had been a slave, though a finding of
liber might leave it equivocal. In like manner, and by parity of reason, a person
being found legitimate, or legitimus, and not legitimated or legitimatus, excludes
the supposition of his ever having been a bastard, and shows him to be lawfully
born and begotten. Suppose a Scotch estate devolved to one born before marriage,
as it might by devise (or rather Scotch conveyance in the nature of devise) to the
first son of A., I apprehend that A. marrying the mother the day after the devis-
or’s death, the estate would be vested in the son, because he would become legiti-
mate, though born before the death. But it is unnecessary to argue this, though
-it illustrates the principle ; the fact found is, that the lessor of the plaintiff was
born in Scotland legitimate, or in lawful wedlock. The cases of Crawford v. Pat-
-rick, and Strathmore v. Bowes, have been already referred to, but they require
another remark. They were decided in this House, by appeal, it is true, from
Scotland, and respecting the Scotch real estate, but still by this House, and upon
-general principles of law. Those cases were the precise converse of this; they
‘decided the bastardy of parties, and on the distinct ground, that, as Lord Redes-
‘dale said, they were ‘bastard by the law of their birthplace, and therefore
-bastard in Scotland, where the rights claimed respected real estate’ It is not
more the rule of the English law, that children born out of wedlock shall not in--
iherit, though their parents intermarry, than'it is the rule of the Scotch law that
such children shall inherit, if'their parents do intermarry. It isnot more alien to
‘the English law to adopt the fiction that such children are born in wedlock, than
it is alien to the Scotch law to exclude this principle. ‘The English rule being
‘statutory can make no difference. A fixed and known principle of common law
has exactly the same force with statutory provision. How then can the opposite
‘principle be adopted in two cases identically the same? The court below says,
§ 98 s.] CAPACITY OF PERSONS. 121

the domicil of the parents, would not give him such a capacity
to inherit land, and that the stain of illegitimacy by his birth was

that the English law gives not an estate to the bastard eigne, and that it treats
him as bastard, although by the law of his birthplace he was legitimate. The
Scotch law gives the estate to the bastard e/gne, regarding him as legitimate, and
this House adjudged, that he should not take that estate, only because he wags il-
legitimate by the law of his birthplace. Your lordships decided, that the lex loci
rei site should not be regarded, when it differed from the lex loci contractus et
nativitatis; you decided that when the former law declared for legitimacy, it
should yield to the latter, which declared for bastardy. How can you be called
upon here to decide that the lex loci rei site shall not overrule the other law, and
that again in favor of bastardy ? I profess my inability to understand how these
two decisions of the same question can in any way stand together; nor am I able
to perceive, that the least attention was paid by the court below to those impor-
tant decisions of your lordships. I perceive that the whole argument in that court’
turned upon a question not in dispute here. The learned judges suppose, that
they decide the question, when they prove that the English law is to govern the
case, because the question relates to real property situated in England. Now
undeniably the English law is to govern the case in one sense; the eldest lawful
son is to succeed; but who that son is must be determined by the law of his birth-
place, and by the fact found that, under that law, the lessor of the plaintiff is
eldest lawful son. Nay, even if we take the English law to be, that lawful son
or heir is he who was born in wedlock, then we have here the fact found, and
found as a fact, that in the country where he was born, the party was born in
wedlock. No one, it must be always borne in mind, pretends to say, that the
English law can in any way dispose of the whole question. Admitting that the
rule cited from Lord Coke in reference to the statute of Merton is to govern us,
heres, qui ex justis nuptiis procreatus est, no one contends, that the question,
what are juste nuptie, can be determined otherwise than by a reference to the
lex loci contractus, or it may be, loci nativitatis. To that foreign law, then, we
must resort ; and the only question is, at what period of our inquiry this recourse
shall be had. No more need be said to show how very far from decisive of the
present question that position is, which alone is argued or defended by the learned
judges, namely, that the law of England must govern. It does govern, but with
the aid, through the ministry, of the foreign law. The reference made to the dic-
tum of the Master of the Rolls, in Brodie v. Barry, (2 Ves. and Bea. p. 127,) does
not touch the case. All that his honor there said was, that questions on real
rights must follow the law of the country, where the land lies. This is not de-
nied ; nor was it denied by this House, when it refused to consider W. Sheddon
or J. Bowes, as legitimate in respect to Scotch estates, although the law of Scot-
land, where those estates lay, held them both to be so; or rather would so have
held, had they been born in Scotland. But while this House and the Court of
Session admitted, that the Scotch law must decide, they also held, that the Scotch
law refused estate to bastards, and that it regarded one as a bastard who was so
by the law of his birthplace. That was the same case in principle with this, in
every material respect. It is not easy in such a question, a question raised on the
conflictus legum, to omit all considerations of convenience ; inasmuch as it is prin-
CONFL. Il
122 CONFLICT OF LAWS. [ou. rv:

not wiped away by such a marriage.! And it was intimated, that,
under the like circumstances in other respects, the change of

cipally on views of convenience, that the whole doctrine of what is generally
called comitas turns. One should say, that nothing ean be more pregnant with
inconvenience, nay, that nothing can lead to consequences more strange in state-
ment, than a doctrine, which sets out with assuming legitimacy to be not a per-
sonal status, but a relation to the several countries, in which rights are claimed,
and indeed to the nature of different rights. That a man may be bastard in one
country, and legitimate in another, seems of itself a strong position to affirm ; but
more staggering when it is followed up by this other, that in one and the same
country he is to be regarded as bastard, when he comes into one court to claim
an estate in land, and legitimate, when he resorts to another to obtain personal
succession ; nay, that the same court of equity (when the real estate happens to
be impressed with a trust) must view him as both bastard and legitimate, in re-
spect of a succession to the same intestate. Further still, should he happen to be.
next of kin to his uncle, who had a mortgage upon the estate, he must be denied
his succession to the land of the mortgagor in his quality of bastard, and be al-
lowed to come in as an incumbrancer. upon the self-same estate in his capacity of
legitimate son to the same mortgagor. All this is assumed to be the law by the
learned judges, who have decided below, and advised your lordships here. They
have not assumed, what however they cannot deny, that it is another consequence
of their doctrine, to enable a descendant of the same bastard to claim through
him, as if he were legitimate, while the alleged force of the statute of Merton, and
of Lord Coke’s commentary thereupon, excludes him from taking to himself. In
the same country, in the same courts, in respect to the same land, he is both bas-
tard and legitimate; bastard for the purpose of his own succession, legitimate
when the succession of others is concerned. May I be permitted most respect-
fully to express a doubt, whether or not this question has received all the consid-
eration which it deserves at the hands of those learned judges? 1 know not,
that it carries the argument much further ; but there is a proceeding, well known
to your lordships sitting here as a court of general jurisdiction over the whole
United Kingdom, though unknown to the courts of England; the process of de-
clarator. Suppose a declarator of legitimacy had been brought in the Scotch
courts by the lessor of this plaintiff, the judgment would have been, and quite as,
a matter of course, that he was lawful son of Wm. Birthwhistle ; and the present.
defendant being made a party to this suit, the judgment could. be given in evi-
dence before the court, where the ejectment now before us was brought. I agree,
that such a judgment does not conclusively bind; yet it would place the conflict,
of the two laws in a somewhat stronger light, if the English court should pror
nounce him bastard, whom the Scotch court, sitting in the country of his birth,
had pronounced lawful son. But if both judgments were brought here by
appeal and writ of error, as might easily happen, your lordships would be com-
pelled to affirm the sentence of the Scotch court, and yet you are now asked to,
affirm the opposite judgment of the King’s Bench. Let it be observed, too, that,

1 Munro v. Saunders, 6 Bligh R. 468; Rose v. Ross, 4 Wils. & Shaw, 289.
See Id. App. p. 33 to p. 89, where the opinions of the Scotch judges are also
given at large.
§935.] CAPACITY OF PERSONS. 128

domicil of the parents to the country, where the marriage was
celebrated, would not have giver any better title to inherit, as the
stain of the illegitimacy would be indelible The converse case
has been decided in France, where it has been held, that, if a child
is born in a country (France) where he would become legitimate
by a subsequent marriage, he will become legitimate by such sub-
sequent marriage, although thé marriage should take place in a
country (England) where a different law prevails, and where a
subsequent marrtage would not have the effect of rendering him
legitimate? The result of these two cases seems to be, that the
law of the place of birth of the child, and not the law of the
place of the marriage of the parents, is to decide, whether a sub-
sequent marriage will legitimate the child or not.

all this anomaly is in England ; it begins and ends here; for the Scotch judges
have decided in such cases with perfect consistency, as well as entire uniformity.
Those learned persons, whose familiarity with legal principle, in its enlarged sense,
is derived from a deep study of the feudal and of the civil law, as well as of the
modern jurisprudence of Scotland, have been guided in all their determinations
of such questions by simple, rational, and intelligible principles. If a declarator
of legitimacy were brought before them by one born in England before marriage,
and whose parents afterwards intermarried, their sentence would be, that he was
illegitimate ; ahd even were he to claim a Scotch estate the law would be the
same. This has been ruled in Scotland in the cases more than once referred to,
and affirmed upon appeal here. But you are now advised to take a different
course, when the same question arises in another part of the United Kingdom.
It may be observed, that, in referring to those Scotch cases, the learned chief
justice says, without discussing them, that it is satisfactory to him, that the form
of the proceeding (a special verdict) was such as to carry the question before the

‘dame tribunal which pronqunced those decisions. In the advice, however, which

has been given to this tribunal by the same learned judges, I do not find that
those decisions have been much considered.” Birthwhistle v. Vardill, 9 Bligh R.
71 to 86.

1 Munro v, Saunders, 6 Bligh R. 468 ; Rose v. Ross, 4 Wils. & Shaw, 289; Id.
App. p. 33 to p. 89. See 1 Burge Comment. on Col. and For. Law, P. 1, ch. 3,
§ 2, p. 108, 109, 110.

* The case of De Conty, 1668, cited by Lord Brougham in Munro v. Saunders,
6 Bligh R. 478; and in Rose v. Ross, 4 Wils. & Shaw R. 299. The same case is

’ reported in Merlin, Quést. de Droit, art. Legitimation, § 2, note (1), p. 151, 4to

.edit., Paris, 1828, who corrects the error into which Boullenois had fallen in stat-

ing the facts of the same case. See also 1 Burge Comment. on Col. and For. Law,
P. 1, ch. 1, § 2, p. 102, 106,107. May there not be room for a distinction in such
4 case, as to the state of the part or property in the country of his birth, and that
of the party or the property in the country of the marriage, each country adher-
ing to its own laws in regard to the property situate there ?

* But see the elaborate opinions of the Scottish judges on the same questions,
124 CONFLICT OF LAWS. [cu. Iv.

§ 93 t. We have already seen, that the same doctrine upon these
very points is maintained by Hertius, by Bouhier, and by Boulle-
nois.! The latter puts the very case of a child born in England, in
concubinage, and whose parents afterwards become residents in
France, and there intermarry without being naturalized, and says,
that the child is not legitimated by such subsequent marriage, but
remains illegitimate, as he was by the law of the country of his
birth. The converse case of a child born in France, and the
parents subsequently intermarrying in England,-he holds equally
clear, and that thereby the child will become legitimate. Boulle;
nois has, as we have also seen, pushed his doctrine much further;
further, indeed, than seems consistent with any just principle,
especially in giving a retroactive effect to a subsequent naturali-
zation in another country.”

93 u. Merlin supports the same general doctrine, holding, that
it is impossible to consider as legitimate in France a natural child,
born in England of English parents, who afterwards intermarry
in England.* But, that a natural child born in France of French
parents, who should afterwards remove to England, and there
intermarry, without being naturalized, would by such subsequent
marriage be made legitimate.* In each case he holds, that the
law of the place of the birth of the child gives the rule, as to
legitimacy by a subsequent marriage.

§ 93 v. Merlin supposes, that Hertius holds a different doc-
trine, and affirms, that the law of the place of marriage gives the
rule as to legitimacy, and not that of the place of the birth of
the child. Ido not so understand Hertius. To me it seems clear
that Hertius was only contemplating the case of a marriage and
birth both in England. In Anglia (says he) legitimationi per
subsequens matrimonium locus non est.  Questio est igitur;
An filius, quem pater ante legitimum connubium in Anglia genue-
rat, succedere possit patri huic naturali in bovis extra Anglia
sitis? Affirmatum hoc in Auditorio Parisiensi.® Rectius nega-
in Rose v. Ross, 4 Wils. & Shaw, App. p. 383 to p. 89. The House of Lords re- ,
versed their judgment.

.) Ante, § 93 d, § 934.

* Ibid. ; 1 Boullenois, Observ. 4, p. 62, 63.

* Thid. ; Merlin, in his Quest. de Droit, art. Legitimation, § 2, n. 1, combats this
doctrine of Boullenois.

* Merlin, Quest de Droit, art. Legitimation, § 1, n. 1.

8 Ibid. § 2, n. 1, 2.

* Ante, § 89s. The case of De Conty, in 1668.
§ 93 t= 93 w.] CAPACITY OF PERSONS. 125

tur, nisi lex alterius populi etiam illegitimos ad successionem ad-
mittat; neque enim lex illa Anglorum pugnat cum equitate natu-
voli? It is highly probable, that Hertius understood the case
referred to, as Boullenois had, by mistake, as a case, where the
child was born in England; whereas he was born in Krance.?

[* § 93 w. The question of legitimacy, as affected by the laws
of different countries, seems; in many respects, to be an embar-
rassing one. The extensive discussions and marked contrariety
of opinion, which occurred in the case of Birthwhistle v. Vardill,?
sufficiently indicates this. But it seems to us, that, upon prin-
ciple, the status of legitimacy must depend upon the law of the
place of birth, in the first instance. He who, at the time of birth,
by the law of the 'place of birth, (which may under some circum-

' Hertii, Opera, De Collis. Leg. § 4, n. 15, p. 129; Id. p. 183, 184, edit. 1716.

* Merlin, Quest. de Droit, § 2, u. 2, p. 151, 4to edit., Paris, 1828 ; ante, § 93 s,
note 2.

[* * 7 Cl. & Fin. 895, ante, § 93 0, et seg. And in all the cases put in the text
of § 93 w, if the question of legitimacy arises in Scotland or France, that being
the place of birth, the marriage of the parents, in any place, provided it be a valid
marriage, will probably be regarded as having the effect to legitimize the prior
born offspring. But in those countries where no such consequence follows, as in
England, the courts will not give such an effect to the subsequent marriage, un-
less had at a time when, by the laws of the place of the domicil of the parties,
both parents and child, it would have the effect to legitimize the offspring. And
in such cases it will make no difference that the actual celebration of the marriage
occurs in England, if the parents and child are domiciled in France or Scotland,
the place of birth. The effect of the marriage will be determined by the force
of the law of the place of domicil. Hence we must conclude that the decision of
the House of Lords in Birthwhistle v. Vardill, is not maintainable upon just
principle; and we think this is abundantly shown by the commentary of the
learned author, and the dissenting opinion cited, ante, § 98 7, &c..and note.

In the very late case of Boyes v. Bedale, 12 W. R. 232, before Vice-Chancel-
lor Wood, it was held that a child born in France, and illegitimate at birth, but
legitimized pursuant to French law by the subsequent marriage of its parents,
both of whom were domiciled in France, is not entitled to a bequest of personal-
ty to the child of A., one of the parents, contained in the will of an English tes-
tator. And in another ease,-Goodman v. Goodman, 3 Giff. 643, under a bequest
to the children of S. who had three children born to him in England while domi-
ciled there, by a woman with whom he cohabited, and with whom he removed to
Holland, and while domiciled there had other children by the same woman: both
before and after his subsequent marriage with her in Holland, by which all the
children became legitimized. It was held that all the children born in Holland,
whether before or after the marriage, were entitled to share equally in the be-
quest, but that the children born in England could not take under it.]

11*
126 CONFLICT OF LAWS. [cH. iv.

stances embrace the place of the domicil of the mother,) is legiti-
mate, or the contrary, must be regarded as such everywhere and
at all times, until there is some satisfactory evidence of the change
of status. This will only be possible as to those born illegitimate.
And changg of status as to such, can only be effected by a pro-
ceeding in the place of the domigil of such illegitimate, and ac-
cording to the law of such domicil. Hence one born illegitimate of
parents domiciled in Scotland or France, but who subsequently in-
termarry, which by the laws of those countries will have the effect
to render prior offspring legitimate, will be rendered legitimate,
unless before the marriage the parents had changed their domicil
to a country where no such consequence followed the subse-
quent marriage; or unless the child had, before the marriage of
his parents, acquired a domicil in another country, where the
subsequent marriage could have no such effect. ]

§ 94. These cases may suffice in relation to the question of
legitimacy or illegitimacy. We may now pass to another class
of disabilities imposed by foreign laws, in order to illustrate the
difficulty of maintaining the doctrine, as a universal rule, obliga-
tory upon all countries, under all circumstances, that the capacity
or incapacity of a person is to be governed solely by the laws of
his birth and domicil; and that is the class of persons, whose
marriages’ are void or voidable by reason of their profession.
Thus, by the law of England, until after the Reformation, monks
and nuns were deemed incapable of contracting marriage, (as
they still are in many parts of the continent of Europe,) and their
contracts for this purpose were held nullities. The marriages:of
priests are also in some countries voidable in law, as contrary
to their office, at any time during their lives} And to this very
day in Catholic countries, marriages are prohibited to the priest-
hood, and to persons in monastic orders. Yet it would be ex-
tremely difficult to maintain, that the marriage of a nun, or a
monk, or a priest, celebrated in America, where no such pro-
hibition exists, ought, causd professionis, to be held a mere
nullity on account of such foreign prohibitions, especially where
the other party is at the time of the marriage domiciled here,
and as such is entitled to the protection of our laws.

§ 95. By the laws of some countries the subjects thereof are

* 2 Inst. 686, 687; Com. Dig. Baron and Feme, B. 2; 1 Woodes. Lect. 16, p.
422.
§ 93 w-96.] CAPACITY OF PERSONS. 127

prohibited from intermarrying with foreigners, or with persons
of another religious sect; and some civilians have held, that such
laws are of universal obligation, and accompany the person eyery-
where. But it can hardly be supposed, that any other nation
would suffer a marriage celebrated in its own dominions, accord-
ing to its own laws, between such persons, and especially where
one of them was a citizen or subject thereof, to be deemed a nul-
lity in its own courts. Such a narrow prohibition would justly
be deemed odious, and be rejected.

§ 96. Another case may be put of even a more striking char-
acter. Suppose a person to be a slave in his own country, having
no personal capacity to contract there, is he, upon his removal
to a foreign country, where slavery is not tolerated, to be still
deemed a slave? If so, then a Greek or Asiatic, held in slavery
in Turkey, would, upon his arrival in England, or in Massachu-
setts, be deemed a slave, and be there subject to be treated as
mere property, and be under the uncontrollable despotic power
of his master. The same rule would exist as to Africans and
others, held in slavery in foreign countries. But we know, that
no such general effect has in practice ever been attributed to the
state of slavery. There is a uniformity of opinion among foreign
jurists, and foreign tribunals, in giving no effect to the state of
slavery of a party, whatever it might have been in the country
of his birth or of that in which he had been previously domiciled,
unless it is also recognized by the the laws of the country of his
actual domicil, and where he is found, and it is sought to be en-
forced. Christinzus states this as a clear rule, affirmed by judicial
decisions, Propter libertatis personarum usum hic per aliquot secu-
la continué observatum.2 Groenewegen, speaking of slavery, says:
Ejusque nomen hodie apud nos exolevit. Adeo quidem, ut servi,
qui aliunde huc adducuntur, simul ac imperii nostri fines intrarunt,
invitis ipsis dominis, ad libertatem proclamare possint. Id, quod
et aliorum Christianorum gentium moribus receptum est.2 In
Scotland the like doctrine has been solemnly adjudged.* The

* See Paul Voet, De Statut. § 5, ch. 2, n. 1, p. 178, 179, edit. 1661; Vattel,
B. 2, ch. 8, § 115.

* Christineus, Vol.’4, Decis, 80, p. 114, 115, n.4; 1 Burge Comment. on Col.
and For. Law, ch. 10, p. 739.

* Groenewegen ad Instit. Lib. 1, tit. 8, n. 8, p. 5; cited also in 1 Burge Com-
ment. on Col. and For. Law, ch. 10, p. 739. Groenewegen cites many authori-

ties in support of his opinion.
* Knight v. Wedderbern, 1778, 20 Howell, State Trials, 1 to 15, note.
128 CONFLICT OF LAWS. [ou. Iv.

tribunals of France have adopted the same rule, even in relation
to slaves, coming from and belonging to their own colonies. This
is also the undisputed law of England.1 It has been solemnly
decided, that the law of England abhors, and will not endure thé
existence of slavery within the nation ; and consequently, as soon
as a slave lands, in England, he becomes ipso facto a freeman;
and discharged from the state of ‘servitude. Independent of the
provisions of the Constitution of the United States, for the pro-
tection of the rights of masters in regard to domestic’ fugitive
slaves, there is no doubt, that the same principle pervades the
common law of the non-slaveholding States in America; that is
to say, foreign slaves would no longer be deemed such after their
removal thither.? In an important case in America, it was held

1 See cases cited 20 Howell, State Trials, 12, 13, 14, note; and Causes Célé-
bres, Vol. 18, p. 492, edit. 1747; 1 Burge Comment. on Col. and For. Law, ch.
10, p. 739, 740.

2 Somerset’s Case, Lofft, R. 1; S.C. 11 State Trials (Hargrave edit.), 340;
20 Howell, State Trials, 1 to 79; Co. Lit. 79; Harg. note, 44; 1 Black. Comm,
424, 425, Christian’s note, and Coleniapets note; Forbes v. Cookrane, 2 Barn.
& Cres. 448; The Amedie, 1 Acton, R. 240; S. C. 1 Dodson, R. 84; Id. 91,
95; The St. Louis, 2 Dodson, R. 210; The Slave Grace, 2 Hagg. Adm. R. 94,
104, 105, 106, 107, 109, 110, 111, 118; 1 Burge Comment. on Col. and For.
Law, P. 1, ch. 10, p. 734 to p. 752.

® See the opinion of the court delivered by Mr. Justice Porter, in Saul v. His
Creditors, 17 Martin, R. 598; In re Francisco, 9 Amer. Jurist, 490; Buller v.
Hooper, 1 Wash. C. C. R. 499; Ex parte Simmons, 4 Ib. 390. See also Butler
v. Delaplaine, 7 Serg. & Rawle, R. 378; Commonwealth v. Holloway, 6 Binn.
R. 213; S. C. 2 Serg. & Rawle, R. 305; Lumsford v. Coquillon, 14 Martin, R.
408 ; Louis v. Cabarrus, 7 Louis. R. 170, 172; 1 Burge, Comm. on Col. and For.
Law, P. 1, ch. 10, p. 744 to 749; Prigg v. Comm. of Penn. 16 Peters, R. 541,
611,612. Inthe recent case of Commonwealth v. Aves, 1836, 18 Pick. R. 198,
before Mr. Chief Justice Shaw, in Massachusetts, it was expressly held, that a
slave brought into Massachusetts voluntarily by his master from a slave State of
the United States, was free here, and could not be recovered or carried back as
a slave. Upon that occasion the learned judge said: “ The question now before
the court arises upon a return to a habeas corpus, originally issued in vacation,
by Mr. Justice Wilde, for the purpose of bringing up the person of a colored ebild,
named Med, and instituting a legal inquiry into the fact of her detention, and
the cause, for which she was detained. By the provisions of the Revised Code,
the practice upon habeas corpus is somewhat altered. In case the party com-
plaining, pr in behalf of whom complaint is made on the ground of unlawful im-
prisonment, is not in the custody of an officer, as of a sheriff or deputy, or corre-
sponding officer of the United States, the writ is directed to the sheriff, requiring
him or his deputy to take the body of the person thus complaining, or in behalf
of whom complaint is thus made, and have him before the court or magistrate
§.96.] CAPACITY OF PERSONS. 129

that. civil incapacities and disqualifications by which a person is
affected under the law of his domicil, should be held’ valid in

issuing the writ, and to summon the party alleged to have or claim the custody
of such person, to appear at the.same time, and show the cause of the detention.
The person thus summoned is to make a statement under oath, setting forth all
the facts fully and particularly ; and in case he claims the custody of such party,
the grounds of such claim must be fully set forth. The statement is in the nature
of a return to the writ, as made under the former practice, and will usually
present the material facts, upon which the questions arise. Such return, how-
ever, is not conclusive of the facts stated in it; but the court is to proceed and
inquire into all the alleged causes of detention, and decide upon them in a
summary manner. But the court may, if the occasion require it, adjourn the
examination, and in the mean time bail the party, or commit him to a general
or special custody, as the age, health, sex, and other circumstances of the case
may require. It is further provided, that, when the writ is issued by one judge
of the court in vacation, and in the mean time, before a final decision, the court
shall meet in the same county, the proceeding may be adjourned into the court,
and there be conducted to a final issue, in the same manner as if they had been
originally commenced by a writ issued from the court. I have stated these pro-
visions the more minutely, because there have been as yet but few proceed-
ings under the revised statutes, and the practice is yet to be established. Upon
the return of this writ before Mr. Justice Wilde, a statement was made by Mr.
Aves, the respondent; the case was then postponed. It has since been fully
and very ably argued before all the judges, and is now transferred to, and
entered in court, and stands here for judgment, in the same manner as if the
writ had been originally returnable in court. The return of Mr. Aves states,
that he has the body of the colored child described in his custody, and produces
her. It further states, that Samuel Slater, a merchant, citizen, and resident in
the city of New Orleans, and State of Louisiana, purchased the child with her
mother in 1833, the mother and child being then and long before slaves, by the
laws of Louisiana; that they continued to be his property, in his service at New
Orleans, till about the first of May last, when Mary Slater, his wife, the daugh-
ter Mr. Aves, left New Orleans for Boston, for the purpdése of visiting her
father, intending to return to New Orleans after an absence of four or five
months; that the mother of: the child remained at New Orleans in a state of
slavery, but that Mrs, Slater brought the child with her from New Orleans to
Boston, having the child in her custody, as the agent and representative of her
husband, whose slave the child was, by the laws of Louisiana. When the
child was brought thence, the object, intent, and purpose of the said Mary Sla-
ter being to have the said child accompany her, and remain in her custody
and under her care during her temporary absence from New Orleans, and
‘that the said child should return with her to New Orleans, the domicil of her-
self and husband; that the said child was confided to the custody and care of
said Aves by Mrs. Slater, during her temporary absence in the country for her
health. The respondent conchades by stating, that he has exercised no other
restraint over the liberty of this child, than each as was necessary to the health
and safety of the child. Notice having been given to Mr. and Mrs. Slater, an
130 CONFLICT OF LAWS. [cH. iv.

other countries so far as applicable to acts done or rights acquired
in the place of his domicil, but not as to acts done or rights ac-

appearance has been entered for them, and in this state of the case and of the
parties, the caus¢ has been heard. Some evidence was given at the former
hearing, but it does not materially vary the facts stated in the return. The
fact testified, which was considered most material, was the declared intent of
Mrs. Slater to take the child back to New Orleans. But as that intent is dis-
tinctly avowed in the return, — that is, to take the child back to New Orleans
if it could be lawfully done, it does not essentially change the case made by the
return. This return is now to be considered in the same aspect, as if made by
Mr. Slater. It is made, in fact, by Mr. Aves, claiming the custody of the slave
in right of Mr. Slater, and that claim is sanctioned by Mr. Slater, who appears
by his attorney, to maintain and enforce it. He claims to have the child as
master, and carry her back to New Orleans, and whether the claim has beet
made in terms or not, to hold and return her as a slave, that intent is manifest,
and the argument has very properly placed the claim upon that ground. The
case presents an extremely interesting question, not so much on account of any
doubt or difficulty attending it, as on account of its important consequences to
those who may be affected by it, either as masters or slaves. The precise ques:
tion presented by the claim of the respondent is, whether a citizen of any one
of the United States, where negro slavery is established by law, coming into
this State, for any tempprary purpose of business or pleasure, staying some
time, but not acquiring a domicil here, who brings a slave with him as a per-
sonal attendant, may restrain such slave of his liberty during his continuance
here, and convey him out of this State on his return, against his consent’ It is
not contended, that a master can exercise here any other of the rights of a
slave-owner, than such as may be necessary to retain the custody of the slave
during his residence, and to remove him on his return. Until this discussion, I
had supposed, that there had been adjudged cases on this subject in this Com-
monwealth; and it is believed to have been a prevalent opinion among law-
yers, that if a slave is brought voluntarily and unnecessarily within the limits
of this State, he becomes free, if he chooses to avail himself of the provisions of
our laws; not so much, because his coming within our territorial limits, breath-
ing our air, or treading on our soil, works any alteration in his status, or con-
dition, as settled by the law of his domicil, as because by the operation of our
laws, there is no authority on the part of the master, either to restrain the slave
of his liberty, whilst here, or forcibly to take him into custody in order to his
-temoval. There seems, however, to be no decided case on the subject reported.
It is now to be considered as an established rule, that by the constitution and
laws of this Commonwealth, before the adoption of the Constitution of the
United States, in 1789, slavery was abolished, as being contrary to the prin+
ciples of justice and of nature, and repugnant to the provisions of the Decla
ration of Rights, which is a component part of the constitution of the State. It
is not easy, without more time for historical research, than I now have, to show
the course of slavery in Massachusetts. By a very early Colonial Ordinance
(1641) it was ordered, that there should be no bond slavery, villanage, or cap
tivity among us, with the exception of lawful captives taken in just wars, oF

/
§ 96.] CAPACITY OF PERSONS. 131

quired within another jurisdiction, where no such disqualifica-
tions exist; and therefore a person who is a slave by the law of

those judicially sentenced to servitude, as a punishment for crime. And by an
act @ few years after, (1646,) manifestly alluding to some transaction then
recent, the General Court, conceiving themselves bound to bear witness against
the heinous and crying sin of man-stealing, etc., ordered, that certain negroes
be sent back to their native country (Guinea) at the charge of the country,
with a letter from the Governor expressive of: the indignation of the court
thereabouts. See Ancient Charters, étc. 52, ch. 12, § 2,3. Bue notwithstand-
ing these strong expressions in the acts of the Colonial Government, slavery to
a certain extent seems to have crept in; not probably by force of any law, for
none such is found or known to exist; but rather, it may be presumed, from
that universal custom, prevailing. through the European colonies, in the West
Indies, and on the continent of America, and which was fostered and encour-
aged by the commercial policy of the parent State. That it was so established,
is shortly shown by this, that by several provincial acts, passed at various times,
in the early part of the last century, slavery was recognized as existing in fact,
and various regulations were prescribed in reference to it. The act passed
June, 1703, imposed certain restrictions upon manumission, and subjected the
master to the relief and support of the slaves, notwithstanding such manumis-
sion, if the regulations were not complied with, The act of October, 1705,
levied a duty and imposed various restrictions upon the importation of negroes,
and allowed a drawback upon any negro, thus imported, and for whom the
duty had been paid, if exported within the space of twelve months, and bona
fide sold in any other plantation. How, or by what act particularly, slavery
was abolished in Massachusétts, whether by the adoption of an opinion in Som-
erset’s case, as a declaration and modification of the common law, or by the
Declaration of Independence, or by the Constitution of 1780, it is not now very
easy to determine, and it is rather a matter of’ curiosity, than of utility ; it being
agreed on all hands, that, if not, abolished before, it was so by the Declaration
of Rights. In the case of Winchendon »v. Hatfield, (4 Mass. R. 123,) which was,
a case between two towns, respecting the support of a pauper, Chief Justice
Parsons, in giving the opinion of the court, states, that at the first action, which
came before the court after the establishment of the constitution, the judges,
declared, that, by virtue of the Declaration of Rights, slavery in this State was no
more. And he mentions another case, Littleton v. Tuttle, (4 Mass. R. 128, note,)
in which it was stated, as the unanimous opinion of the court, that a negro born
within the State, before the constitution, was born free, though born of a female
slave. The chief justice, however, states, that the general practice and common
usage have been opposed to this opinion. It has recently been stated as a fact,
that there were judicial decisions in this State prior to the adoption of the present
constitution, holding, that negroes, born here of slave parents, were free. A fact,
is stated in the above opinion of Chief Justice Parsons, which may account for
this suggestion. He states, that several negroes, born in this country, of import-
ed slaves, had demanded their freedom of their masters by suits of law, and ob-
tained it by a judgment of court. The defence of the master, he says, was faintly
made ; for such, was the temper of the times, that a restless, discontented slave,
182 CONFLICT OF LAWS. [cu. rv.

his domicil, may maintain an action in his own name in a‘coun-
try where slavery is not allowed, for a personal tort committed
within that jurisdiction.‘]

was worth little; and when his freedom was obtained in a course of legal proceed-
ings, his master was not holden for his support, if he became poor. . It is very
probable, therefore, that this surmise is correct, and that records of judgments to
this effect may be found; but they would throw very little light on the subject.
Without pursuing this inquiry further, it is sufficient for the purposes of the case
before us, that by the constitution adopted in 1780, slavery was abolished in Mas-
sachusetts, upon the ground, that it is contrary to natural right and the plain
principles of justice. The terms of the first article of the Daclnsation of Rights
are plain and explicit. ‘All men are born free and equal, and have certain nat-
ural, essential, and unalienable rights, among which are the right of enjoying and
defending their lives and liberties, that of acquiring, possessing, and protecting
property.’ It would be difficult to select words more precisely adapted to the
abolition of negro slavery. According to the laws prevailing in all the States,
where slavery is upheld, the child of a slave is not deemed to be born free, a slave
has no right to enjoy and defend his own liberty, or to acquire, possess, or protect
property. That the description was broad enough in its terms to embrace ne-
groes, and that it was intended by the framers of the constitution to embrace
them, is proved by the earliest contemporaneous construction, by an unbroken
series of judicial decisions, and by a uniform practice from the adoption of the
constitution to the present time. The whole tenor of our policy, of our legislation
and jurisprudence from that time to the present, has been consistent with this
construction, and with no other. Such being the general rule of law, it becomes

1 Polydore v. Prince, 1 Ware, R. 413, Ware, J. said: —“ Another objection
has been raised and learnedly argued by the respondent’s counsel, which requires
a more grave and mature consideration. It is founded on the supposed personal
incapacity of the libellant to maintain any action in a court of justice, under any
circumstances. It is alleged in the answer as a substantive ground of defence,
and the fact is admitted on the other side that the libellant, in his own country,
is a slave, and as such, incapable of appearing as a party in any court of justice ;
and it is contended that this persoual incapacity upon the received principles of
the jus gentium, or at least on the principles of national comity, follows him into
whatever country he may voluntarily go or be carried by his master. The argu-
ment is, that the institution of personal servitude, however contrary it may be to
natural right, is an institution admitted and acknowledged by the law of nations;
that every nation having the exclusive right to regulate its own internal polity,
and to determine the personal state or capacity of its members, all other nations
are bound by the jus gentium, or by national comity, to take notice of, and recog-
nize this personal status as it would be recognized in the forum of their original
domicil, while they remain members of that community ; that personal qualities
impressed upon them by the law of their original domicil as to their civil capaci-
ties, or incapacities, travel with them wherever they go, until their legal connes-
tion with that country is dissolved. I have stated the position of the counsel in
its broadest and most comprehensive terms, and it is not to be disguised that it
§ 96, 96 a.] CAPACITY OF PERSONS. 1838

§ 96a. It is quite a different question, how far rights acquired,
and wrongs done to slave property, or contracts made respecting

necessary to inquire how far it is modified or controlled in its operation ; either,
1. By the law of other nations and states, as admitted by the comity of nations to
have a limited operation within a particular state ; or, 2. By the constitution and
laws of the United States. In considering the first, we may assume, that the law
of this State is analogous to the law of England, in this respect; that, while slavery
is considered as unlawful and inadmissible in both, and this because coritrary to
natural right, and to laws designed for the security of personal liberty, yet in both,
the existence of slavery in other countries is recognized, and the claims of foreign-
ers, growing out of that condition, are to a certain extent respected. Almost the
only reason assigned by Lord Mansfield in Somerset’s case was, that slavery is of
such a nature, that it is incapable of being introduced on any reasons moral or
political, but only by positive law; and, it is so odious, that nothing can be suf-
fered to support it but positive law. The same doctrine is clearly stated in the
full and able opinion of Marshall, C. J., in the case of the Antelope, 10 Wheat.
R. 120. He is speaking of the slave-trade, but the remark itself shows, that it
applies to the state of slavery. ‘That it is contrary to the law of nature will
scarcely be denied. That every man has a natural right to the fruits of his own
labor, is generally admitted, and that nd other person can rightfully deprive him
of those fruits, and appropriate them against his will, seems to be the necessary
result of the admission.’ But although slavery and the slave-trade are deemed
contrary to natural right, yet it is settled by the judicial decisions of this country
and of England, that it is not contrary to the law of nations. It has been too

involves questions of serious difficulty, upon which there is no little diversity of
opinion among the most eminent jurists, and on which there is not certainly an
entire agreement in the practice of different nations. The whole subject is ex-
amined with all the learning which belongs to it by Mr. Justice Story, in his very
Jearned and profound treatise on the Conflict of Laws, Ch. 4. It may there be
seen how many curious and perplexing questions may arise out of the conflicting
laws of different nations, relating to the state or capacity of persons; questions
which must’ often occur for discussion in the forum, and judicial decision, in an
age of such constant intercourse and intercommunication for the purpose of busi-
ness and pleasure among all civilized and commercial nations as the present. It
may also be seen how much diversity and contrariety of opinion exists among the
most celebrated and learned jurists on this subject. {t is a large chapter, says
‘Lord Stowell, and full of many difficult questions, that treats of such diversities in
the writings of the civilians. The general doctrine of foreign jurists seems to be
that the state of the person, that is, his legal capacity to do, or not to do, certain
acts is to be determined by the law of his domicil, so that if he has, by that law,
the free administration of his goods, or the right to maintain an action in a court
of justice there, he has the same capacity everywhere; and if that capacity is
‘denied to him by the law of his domicil, it is denied everywhere ; that the laws
determining the civil qualities of the person, called by the foreign jurists personal
statutes, follow the person wherever he goes, as the shadow follows the body, and
-adhere to him like the color of the skin which is impressed by the climate. Per-
CONFL, 12
134 CONFLICT .OF LAWS. [cu. Iv.

such property, in countries where slavery is permitted, may be
allowed to be redressed or recognized in the judicial tribunals of

long and too extensively admitted;’by the laws of all modern civilized nations,
and more explicitly by those, who have had foreign colonies, to warrant any one
independent community to say, that it is opposed to the laws of nations. The
authorities are cited in the case of the Antelope, and that case is itself an author-
ity directly in point. The consequence is, that each independent community, in
its intercourse with every other, is bound to act on, the principle, that such other
country has a full and perfect authority to make such laws for the government of
its own subjects, as its own judgment shall dictate, and its own conscience ap-
prove, provided the same are consistent with the law of nations; and no inde-
‘pendent community has any right to interfere with the acts or conduct of another
state, within the territories of such state, or on the high seas, which each has an
equal right to use and occupy ; and that each sovereign state governed by its own
laws, although competent and well authorized to make such laws, as it may think
most expedient, to the extent of its own territorial limits, and for the government
of its own subjects, yet beyond those limits, and over those who are not its own
subjects, has no authority to enforce her own laws, or treat the laws of other
states as void, although contrary to its own views of morality. This view seems
consistent with most of the leading cases on the subject. Somerset’s case, 20
Howell State Trials, 1, as already cited, decides that slavery, being odious and
against natural right, cannot exist except by force of positive law. But it clearly
admits, that it may exist by force of positive law. And it may be remarked, that
by positive law, in this connection, may be as well understood, customary law, as
the enactment of a statute; and the word is used to designate rules established

sonal statutes are those which relate primarily to the person, and determine the
civil privileges and disabilities, the legal capacity or incapacity of the individual,
and do not affect his goods, but as they are accessory to the person. Such are
those which relate to birth, legitimacy, freedom, majority or minority, capacity to
‘enter into contracts, to make a will, to be a party to an action in a court of justice,
with others of the like kind. Repertoire de Jurisprudence, Mot, Statut. Accord-
ing to this principle, a person who is a major or a minor, a slave or a freeman,
has, or has not a capacity to appear as a party to an action in a court of justice,
stare in judicio, in his own country, has the same capacities and disabilities wher-
ever he may be. The Code Napoleon has erected what seems to be the prevail
ing doctrine among the continental civilians into a positive law. ‘The laws
concerning the state or capacity of persons’ govern Frenchmen, even when resid-
ing in a foreign country.” Code Civile, art. 8. If this general principle is to be
received without qualification, it would seem to decide the present case at once,
for it is admitted that in Guadaloupe where the libellant has his domicil, he can
maintain no action in a court of justice. But though the principle is stated in
these broad and general terms, yet when it is brought to a practical application in
its various modifications, in the actual business of life, it is found to be qualified by
so many exceptions and limitations, that the principle itself is stripped of a great
part of its imposing authority. No nation, it is believed, ever gave it effect in its
practical jurisprudence, in its whole extent. Among these personal statutes, for
§.96 a.] CAPACITY OF PERSONS. 135

governments, which prohibit slavery. And it is also a very differ-
ent question, how far the original state of slavery might reattach

by tacit acquiescence, or by the legislative act of any state, and which derive
their force and authority from acquiescence or enactment, and not because they
are the dictates of natural justice, and as such of universal obligation. The Louis,
2 Dodson R. 238. This was an elaborate opinion of Sir William Scott. It was
the case of a French vessel seized by an English vessel in time of peace, whilst
engaged in the slave-trade. It proceeded upon the ground, that a right of visi-
tation, by the vessels of one nation, of the vessels of another, could only be exer-
cised in time of war, or against pirates, and that the slave-trade was not piracy
by the laws of nations, except against those, by whose government it has been so
declared by law or by treaty. And the vessel was delivered up. The Amedie,
i Acton R. 240. The judgment of Sir William Grant in this case, upon the
point, on which the case was decided, that of the burden of proof, has been doubt-
ed. But upon the point now under discussion, he says, but we do not lay down
as a general principle, that this is a trade, which cannot, abstractedly speaking,
be said to have a legitimate existence. I say, abstractedly speaking, because we
cannot legislate for other countries; nor has this country a right to control any
foreign legislature, that may give permission to its subjects, to prosecute this trade.
He, however, held, in consequence of the principles declared by the British gov-
ernment, that he was bound to hold prima facie, that the traffic was unlawful, and
threw on the claimant the burden of proof, that the traffic was permitted by the

which this ubiquity is claimed, are those which formerly over the whole of Eu-
rope, and, still over a large part of it, divide the people into different castes, as
nobles and plebeians, clergy and laity. The favored classes were entitled to many
personal privileges and immunities particularly beneficial and honorable to them-
selves. It cannot be supposed that these immunities would be allowed in a coun-
try which admitted no such distinctions in its domestic policy. Ifa bill in equity
were filed in one of our courts against an English nobleman temporarily resident
here, would he be allowed to put in an answer upon his honor, and not under
oath, because he was entitled to that personal privilege in the forum of his domi-
cil? Iapprehend not. In like manner the disqualification and incapacities, by
which persons may be affected by the municipal institutions of their own coun-
try, will not be recognized against them in countries by whose laws no such dis-
qualifications are acknowledged. In England a person who has incurred the pen-
alties of a premunire, or has suffered the process of outlawry against him, can
maintain no action for the recovery of a debt, or the redress of a personal wrong.
But would it be contended that because he could not maintain an action in the
forum of his domicil, he could have no remedy on a contract entered into, or a
tort done to him within our jurisdiction ? The reasons upon which an action is
denied him in the forum of his domicil are peculiar to that country, and have no

1 Madrazo v. Willes, 3 B. & Ald. 353; Forbes v. Cochrane, 2 B. & Cres. 448 ;
The St. Louis, 2 Dodson, R. 210; The Antelope, 10 Wheaton, R. 66; Wharton,
Digest, Servants and Slaves, A.D. See 1 Burge, Comm. on Col. and For. Law,
P. 1, ch. 10, p. 735 to 752.
136 CONFLICT OF LAWS. {cu rv,

upon the party, if he should return to the country, by whose laws
he was declared to be, and was held as a slave. Lord Stowell,

law of his own country. The Diana, 1 Dodson R.95. This case strongly corrob-
orates the general’ principle, that, though the slave-trade is contrary to the princi-
ples of justice and humanity, it cannot with truth be said, that it is contrary to the
laws of att civilized nations ; and that courts will respect the property of persons
engaged in it, under the sanction of the laws of their own country. Two cases
are cited from the decisions of courts of common law, which throw much light
upon the subject. Madrazo v. Willis, 3 B. & Ald. 353. It was an action brought |
by a Spaniard against a British subject, who had unlawfully, and without justifias
ble cause, captured a ship with three hundred slaves on board. The only ques-
tion was, the amount of damages. Abbott,.C. J., who tried the cause, in refer-
erice to the very strong language of the acts of Parliament, declaring the traflic
in slaves a violation of right, and contrary to the first principles of justice and
humanity, doubted, whether the owner could recover damages, in an English
court of justice, for the value of the slaves as property, and directed the ship and
the slaves to be separately valued. On further consideration he and the whole
court were of opinion, that the plaintiff was entitled to recover for the value of
the slaves. That opinion went upon the ground, that the traffic in slaves, how-
ever wrong in itself, if prosecuted by a Spaniard between Spain and the coast of
Africa, and if permitted by the laws of Spain, and not restrained by treaty, could
not be lawfully interrupted by a British subject, on the high seas, the common
highway of nations. And Mr. Justice Bayley, in his opinion, after stating the
general rule, that a foreigner is entitled, in a British court of justice, to compen-

application within another jurisdiction. The incapacity is created for causes that
relate entirely to the domestic and ‘internal polity of that country. As soon as he
has passed beyond its territorial limits, the reason of his incapacity ceases to oper-
ate, and in justice the incapacity should cease also. Every nation has a perfect
right to establish for itself its own forms of internal polity, and to determine the
state and condition, the civil capacities and incapacities of its own members. Be-
sides these personal laws determining the state and condition of individuals which
are founded on natural relations and qualities, and such as are universally. recog-
nized among civilized communities, as those of parent and child, those resulting
from marriage, from intellectual imbecility, and the like, they may and in point
of fact do establish distinctions which are not founded in nature, but relate only
to the peculiarities of their own social organization, to their own municipal laws,
and to the artificial forms of society, which are established among themselves.
Now it is freely admitted that other nations are bound by the jus gentium to ad-
mit the validity of all those personal statutes of other communities establishing
such distinctions among their members, whether natural or artificial, to a certain
extent, Their validity will be admitted, and they will be enforced by the tribu-
nals of other countries, as to acts which are done, and rights which are acquired
within the territorial limits of the community where these laws are established.
There they have a legal, and other nations are bound to admit, certainly as a gen-
eral rule, a rightful authority. But it is by no means so clear that those personal
distinctions which are not founded in nature, and are the result of mere civil in-

\
§ 96 a.] CAPACITY OF PERSONS. 137

in a case of this sort, held, that upon such a return of the slave
to his original domicil, the state of slavery would reattach upon

sation for a wrongful act, added, that, although the language used by the statutes
was very strong, yet it could only apply to British subjects. It is true, he further
says, that if this were a trade contrary to the laws of nations, a foreigner could
not maintain this action, And Best, J., spoke strongly to the same effect, add-
ing, that the statutes speak in just terms of indignation of the horrible traffic in
human beings, but they speak only in the name of the British nation. , If a ship
be acting contrary to the general law of nations, she is thereby subject to confis-
cation ; but it is impossible to say, that the slave-trade is contrary to what may
be called the common law of nations. Forbes v. Cochrane, 2 Barn. & Cresw.
448; Dowl. & Ryl. 679. This case has been supposed to conflict with the one
last cited ; but I apprehend, in considering the principles, upon which they were
decided, they will be found to be perfectly reconcilable. Thé plaintiff, a British
subject, domiciled in East Florida, where slavery was established by law, was the
owner of a plantation, and of certain slaves, who escaped thence and got on board
a British ship of war on the high seas. It was held, that he could not maintain
an action against the master of the ship for harboring the slaves after notice and
demand of them. ‘Some of the opinions given in this case are extremely instruc-
"tive and applicable to the present. Holroyd, J., in giving his opinion, said, that
the plaintiff could not found his claim to the slaves upon any general right, be-
cause by the English law such a right cannot be considered as warranted by the
general law of nature ;' that if the plaintiff could claim at all, it must be in virtue
of some right, which he had acquired by the law of the country, where he was

stitutions, can be allowed to accompany them, and give them personal immunities,
or affect them with personal incapacities in other countries in which they may be
temporarily resident or transiently passing,gwhose laws acknowledge no such dis-
tinction. The law of the place where a person is for the time being, as to acts
done, or rights acquired within that jurisdiction, it would seem, ought to prevail
so far as his civil rights depend on his personal status. For these personal stat-
utes, establishing distinctions between individuals as to their civil qualities, have a
direct relation to public order, and, as is remarked by one of the most eminent
living jurists in continental Europe, ‘every person who establishes his dwelling in
a country, or it may be added who is transiently within it, is bound to conform to
the measures which the local law prescribes, in the interest of public decorum and
good morals.’ Merlin, Repertoire de Jurisprudence — Effet Retroactif, sect. 3,
§ 2, art. 5. The observation is applied to the case of a married woman. If by
the law of her domicil she is authorized to make valid contracts, and to maintain
an action in a court of justice in her own name without the authorization of her
husband, and she removes to a country by whose laws this power is denied to
married. women, she will not carry with her into her new residence the capacity
to contract, to plead, and to be impleaded in a court of justice as she is allowed
by the.law of her domicil, this capacity being denied by the local law, as offen-
sive to good-manners. If a person happens to transfer his residence to a country
where the same personal distinctions are established, as are allowed in his own
domestic forum, it is not intended to be denied, but that the tribunals of this
12*
1388 . CONFLICT OF LAWS. [cu. rv.

him. On that occasion he said: “The entire change of the legal
character of individuals, produced by the change of local situation,

domiciled ; that when such rights are recognized by law, they must be considered
as foanded not upon a law of nature, but upon the particular law of that coun-
try, and must be co-extensive with the territories of that state ; that if such right
were violated by a British subject, within such territory, the party grieved would
be entitled to a remedy ; but that the law of slavery is a law in invitum; and
when a party gets out of the territory, where it prevails, and under the protection
of another power, without any wrongful act done by the party giving that protec-
tion, the right of the master, which is founded on the municipal law of the place
only, does not continue. So in speaking of the effect of bringing a slave into Eng-
land, he says, he ceases to be a slave in England, only because there is no law
which sanctions his detention in slavery. Best, J., declared his opinion to the same
effect. Slavery is a local law, therefore if a man wishes to preserve his slaves, let
him attach them to him by affection, or make fast the bars of their prison, or rivet
well their chains, for the instant they get beyond the limits where slavery is rec-
ognized by the local law, they have broken their chains, they:have escaped from
their prison, and are free. That slavery is a relation founded in force, not in
right, existing, where it does exist, by force of positive law, and not recognized as
founded in natural right, is intimated by a definition of slavery in the civil law:
‘Servitus est constitutio juris gentium, qua quis dominio alieno contra naturam
subjicitur.’ Upon a general review of the authorities, and upon an application
of the well-established principles upon this subject, we think they fully main-
tain the point stated, that though slavery is contrary to natural right, and to

country may allow him his personal immunities or affect him with the personal
incapacity of his domicil ; but it will, I apprehend, be according to the local law,
and not according to the law of higdomicil. If a Turkish or Hindoo husband
were travelling in this country with his wife, or temporarily resident here, we
should, without hesitation, acknowledge the relation of husband and wife between
them ; but the legal pre-eminence of the husband as to acts done here, would be
admitted only to the extent that the marital rights are recognized by our laws,
and not as they are recognized by the law of his domicil. If a Roman father,
or a father from any country which had adopted the Roman law of paternal
power, were travelling in this country with a minor child, we should acknowledge
the relation of parent and child, but we should admit, I presume, as a general
rule, the exercise of the paternal power no further than as it is authorized by our
own law. Ifa foreigner, in whose country slavery is established, were tempora-
rily resident in Virginia, where slavery also exists, and had brought with him a
slave as a servant, a court, sitting in Virginia might, I suppose, recognize the
relation of master and slave, because that is a relation known to the local law,
but it would limit the exercise of the master’s authority over his slave, by their
own law, and not by the law of the master’s domicil. It is among the first max-
ims of the jus gentium that the legislative power of every nation is confined to its
own territorial limits. This is a principle which results. directly and necessa-
rily from the independence of nations. Whatever may be the nature of the
law, whether it relates purely to persons and their civil qualities, or to things, it . |.
§.96 a.] CAPACITY OF PERSONS. 139

is far from being a novelty in the law. . A residence in a new
country often introduces a change of legal condition, which im-

the principles of justice, humanity, and sound policy, as we adopt them, and
found our own laws upon them, yet not being contrary to the laws of nations,
if any other state or community see fit to establish and continue slavery by
law, so far as the legislative power of that country extends, we are bound to
take notice of the existence of those laws, and we are not at liberty to declare
and hold an act done within those limits unlawful and void, gpon our views of
morality and policy, which the sovereign and legislative power of the place has
pronounced to be lawful. If, therefore, an unwarranted interference and wrong
is done by our citizens to a foreigner, acting under the sanction of such laws, and
within their proper limits, that is, within the local limits of the power by whom
they are thus established, or on the high seas, which each and every nation has
a right in common with all others to occupy, our laws would no doubt afford a
remedy against the wrong done. So in pursuance of a well-known maxim, that,
in the construction of contracts, the lex loci contractus shall govern, if a persone
having in other respects a right to sue in our courts, shall bring an action against
another, liable in other respects to be sued in our courts, upon a contract made
upon the subject of slavery in a state where slavery is allowed by law, the law
would here give it effect. As if a note of hand made in New Orleans were sued
on here, and the defence should be, that it was a bad consideration, or, without
consideration, because given for the price of a slave sold, it may well be ad-
mitted, that such a defence could not prevail, because the contract was a legal
oue by. the law of the place where it was made.' This view of the law applica-

can, proprio vigore, have no force within the territorial limits of another nation.
It follows that the peculiar personal status, as to his capacities or incapacities,
which an individual derives from the law of his domicil, and which are imparted
only by that law, is suspended when he gets beyond the sphere in which that law
isin force. And when he passes into another jurisdiction his personal status be-
comes immediatély affected by a new law, and he has those personal capacities
’ only which the local law allows. The civil capacities and incapacities with which
he is affected by the law of his domicil, cannot avail either for his benefit or to his
prejudice, any further than as they are coincident with those recognized by the
local law, or as that community may, on principles of national comity, choose to
adopt the foreign law. Though the civilians, as has been observed, generally
hold that the law of the domicil should govern as to the personal status, it is by no
means true that they are universally agreed. Voet, one of the most eminent, of
whom it has been said that by his clearness and logic he merits the title of the
geometer of jurisprudence, (Merlin, Quest. de Droit Confession, sect. 2, note 1,)
‘after stating that such is the opinion of the majority, plurium opinio, gives his own
opinion in decisive terms, that personal statutes, as well as those relating to things,
are limited in their operation to the country by. which they are established ; and
he supports -his opinion by the authority of the Roman law, as well as by that
plain and obvious axiom of the jus gentium, that the legislative power of every

1 But see post, § 259.
140 CONFLICT OF LAWS. [cH Iv.

poses rights and obligations totally inconsistent with the former
rights and obligations of the same persons. Persons, bound by

ble to slavery, marks strongly the distinction between the relation of master and
slave, as established by the local law of particular states, and in virtue of that
sovereign power and independent authority, which each independent state con-
cedes to every other, and those natural and social relations, which are every-
where and by all people recognized, and which though they may be modified
and regulated by municipal law, are not founded upon it, such as the relation. of
parent and child, and husband and wife. Such also is the principle, upon which
. the general right of property is founded, being in some form universally recog-
nized as a natural right, independently of municipal law. This affords an an-
swer to the argument drawn from the maxim, that the right of personal property
follows the person, and therefore, where by the law ofa place, a person there
domiciled acquires personal property, by the comity of nations, the same must ba
deemed his property everywhere. It is obvious, that if this were true, in the ex-
etent in which the argument employs it, if slavery exists anywhere, and if by the
laws of any place a property can be acquired in slaves, the law of slavery must
extend to every place, where such slaves may be carried. The maxim, there-
fore, and the argument can apply only to those commodities, which are every-
where, and by all nations, treated and deemed subjects of property. But it is
not speaking with strict accuracy to say, that a property can be acquired m
human beings by local laws. Each state may, for its own convenience, declare, '
that slaves shall be deemed property, and that the relations and laws of personal
chattels shall be deemed to apply to them; as for instance, that they may be

government is confined to its own territorial limits. Ad Pand. L. 1, tit. 4, pant
2, note 5, 7,8. Gail, who has been styled the Papinian of Germany, maintains
the same opinion in terms equally positive. Pract. Obs. L. 8, Obs. 122, note 14.
The inconveniences which would result from a practical adoption of the principle
that the law ef the domicil must prevail, which determines the personal status of
the individual, wherever he may be, would be found to be very great. If we
admit that a foreigner has all those personal capacities and civil qualities.in this
country which the law of his domicil allows, to be consistent and follow out the
principle we must adopt all those subsidiary laws of his domicil which regulate
and protect him in the enjoyment of his personal status. If, for example, we ac-
knowledge the relation of master and slave, our law should, in consistency, arm
the master with the authority to govern his slave, with the power of disposing of
his person and labor, which he enjoys by the law of his own-country.. It would
be a mockery to acknowledge the relation of master and slave and to deny all the
legal consequences which that relation imports. If we adopt the artificial distine-
tions of other nations with regard to their subjects, when they are temporarily
resident among us, it would seem that we must also adopt that part of their laws
which regulate those artificial relations, and the rights and duties which result
from them. Natural relations of foreigners, and such as are established by our
own domestic institutions, we recognize in foreigners who are temporarily resident
among us; but the rights and obligations which flow from them must, as a general
rule as least, be determined by our own law, and be enforced by such means only
§ 96 a.] CAPACITY OF PERSONS. 141

particular contracts, which restrain their liberty, debtors, appren-
tices, and others, lose their character and condition for the time,

bought and gold, delivered, attached, levied upon; that trespass will lie for an
injury done to them, or trover for converting them. But it would be a perversion
of terms to say, that such local laws do in fact make them personal property
generally; they can only determine, that the same rules of law shall apply to
them, as are applicable to property, and this effect will follow only so far as such
laws proprio vigore can operate. The same doctrine is recognized in Louisiana.
In the case of Lunsford v. Coquillon, 14 Martin, R. 404, it is thus stated, — The
relation of owner and slave in the States of this Union, in which it has a legal
existence, is a creature of the municipal law. See Story, Conflict of Laws, 92,
97, The same principle is declared by the Court in Kentucky, in the case of
Rankin v. Lydia, 2 Marshall, R. 470. They say, slavery is sanctioned by the
laws of this State; but we consider this as a right; existing by positive law of a
municipal character, without foundation in the law of nature. The conclusion,
to which we come with this view of the law, is this: That by the general and
now well-established law of this Commonwealth, bond slavery cannot exist, be-
cause it is contrary to natural right, and repugnant to numerous provisions of the
constitution and laws, designed to secure the liberty and personal rights of all
persons within its limits and entitled to the protection of its laws, That though
by the laws of a foreign state, meaning by ‘foreign’ in this connection, a state
governed by its own laws, and between which and our own there is no depend-
ence one upon the.other; but which in this respect are as independent as foreign
states; a person may acquire a property in a slave, that such acquisition, being

as the local law allows. But those merely artificial distinctions, those capacities
and disqualifications of mere positive institution, established by different commu-
nities among their members, which are not founded in nature but which relate to
their own domestic economy, their municipal institutions, and their peculiar social
organization, cannot be admitted to follow them into other nations in whose laws
such distinctions are unknown, without disturbing the whole order of society, and
introducing into communities privileged castes of persons, each governed to a con-
siderable extent by different laws and affected by personal privileges peculiar to
themselves, and totally at variance with the habits, social order, and the laws of
the community among whom they reside. I have thus far considered the subject
as it was presented in one branch of the argument, as purely a question of the jus
gentium, to which the same considerations will apply whether it be raised in one
country or another, and I come to the conclusion that the libellant is not disqual-
ified from maintaining an action for a personal tort committed within our juris-
diction, merely because he is by the laws of his own country rendered incapable
of maintaining an action in the forum of his domicil. And that conclusion will '
be fortified by recurring to our own domestic jurisprudence. It is stated by Mr.
Justice Story as one of the rules which appear to be best established by the juris-
prudence of this country and England, that personal disqualifications, not arising
from the law of nature but from the principles of the positive or customary law of
a foreign country, are not generally regarded in other countries where the like
disqualifications do not exist. Conflict of Laws, 97. It is now fully settled in
142 CONFLICT OF LAWS. (cu. Iv,

when they reside in another country, and are entitled as persons
totally free, although they return to their original servitude and

contrary to natural right, and affected by local law, is dependent upgn such local
law for its existence and efficacy, and being contrary to the fundamental law of
the state, such general right of property cannot be exercised or recognized here.
That as a general rule, all persons coming within the limits of a state, become
subject to all its municipal laws, civil and criminal, and entitled to the privileges,
which those laws confer, that this rule applies as well to blacks, as whites, except
the case of fugitives, to be afterwards considered; that if such persons. have
been slaves, they become free, not so much because any alteration is made in
their status, or condition, as because there is no law which will warrant, but there
are laws, if they choose to avail themselves of them, which prohibit their forcible
detention, or forcible removal. That the law arising from the comity of nations
cannot apply, because if it did, it would follow as a necessary consequence, that
all those persons, who, by force of local laws, and within all foreign places, where
slavery is permitted, have acquired slaves as property, might bring their slaves
here, and exercise over them the rights and power, which an owner of property
might exercise, and for any length of time, short of acquiring a domicil, that such
an application of the law would be wholly repugnant to our laws, entirely incon-
sistent with our t policy and our fundamental principles, and is therefore inadmissi-
ble. Whether, if a slave voluntarily brought here, and with his own consent re-
turning with his master, would resume his condition as a slave, is a question which |
was incidentally raised in the argument, but is one on which we are not called
on to give an opinion in this case, and we give none. From the principle above

England, though it was once a doubtful question, that if a minor, who is disquali-
fied from entering into the marriage contract without the consent of his guardian,
goes into Scotland, where a minor has that capacity without such consent, and is
married conformably to the laws of Scotland, the contract will be held valid and
binding by the law of England. Compton v. Bearscroft, Buller’s N. P. 115. The
same principle is fully established in this country. 2 Kent’s Com. 92, 98; Con-
flict of Laws, 115, 116 ; Medway v. Needham, 16 Mass. R, 157; West Cambridge
v. Lexington,'1 Pick. 506; Putnam v. Putnam, 8 Id. 506. ‘And though the con-
siderations on which ash. marriages have been held valid in the domestic forum
of the parties, where there has been a studied evasion of the law of their domicil,
is the hardship and the mischief which would arise to society by bastardizing the
- issue of such marriages, yet it is not the less a distinct recognition of the principle
that the legal capacity of a person to do an act depends on the law of the place
where the act is done. Huber (De Conflictu Legum, 1 - 8) denies that the mag-
istrate in the forum of the domicil is bound by the jus gentium to admit the valid-
ity of such marriages in direct evasion of the law of the parties’ own country, yet
no doubt can be entertained that they would be held valid in every other forum.
And in a case where two British subjects, being minors, were in France for the
purpose of education, and intermarried there, it was held that the validity of the
marriage, and of course the capacity of the parties to enter into the contract, was
to be determined by the law of France, and not by that of England, although the
English domicil remained unchanged, and the marriage being a nullity by the
§ 96 a.] CAPACITY OF PERSONS. 148

obligations, upon coming back to the country they had quitted ;
and even in the case of slavery, slaves themselves possess rights

stated, on which a slave brought here becomes free, to wit, that he becomes enti-
tled to the protection of our laws, and there is no Jaw to warrant his forcible ar-
rest and removal, it would seem to follow, as a necessary conclusion, that, if the
slave waives the protection of those laws, and returns to the state, where he is
held as a slave, his condition is not changed. In the case ex parte Grace, 2 Hage.
Adm. R. 94, this question was fully considered by Sir William Scott, in the case
of aslave brought from the West Indies to England, and afterwards voluntarily
returning to the West Indies; and he held, that she was reinstated in her condi-
tion of slavery. A different decision, I believe, has been made of the question
in some of the United States; but for the reasons already given, it is not neces-
sary to consider it further here. The question has thus far been considered as a
general one, and applicable to’ cases of slaves brought from any foreign state or
country ; and it now becomes necessary to see, how far this result differs, where
the person is claimed as a slave by a citizen of another State of this Union, that
is, how the question, as between citizens of different States, is affected by the pro-
visions of the Constitution and laws of the United States. In article 4, sec. 2,
the Constitution declares, that, no person held to service or labor in one State
under the laws thereof, escaping into another, shall in consequence of any law or
regulation therein, be discharged from such service or labor, but shall be deliv-
ered up on claim of the party, to whom such service or labor may be due. The
law of Congress made in pursuance of this article, provides, that when any person
held to labor in any of the Unitéd States, &c., shall escape into any other of the

law of France, was held to be void in England. Conflict of Laws, 77; 2 Hag-
gard, Consist. R. 407, 408. It has been decided in Massachusetts, after the most
deliberate consideration, that a person who has been convicted of an infamous
erime which rendered him incapable of being received as a witness in the country
where the conviction took place, is a competent witness when in another juris-
diction. Commonwealth v. Green, 17 Mass. R. 515. This is another application,
of the general principle that the personal status of an individual is to be deter-
mined by the law of the place where he is, as to acts done within that jurisdic-
tion, and that the civil incapacities which attach to him in one country do not
follow him into another. By the law of France a man does not attain to the age
of legal majority until the age of twenty-five. If a Frenchman entered into a
contract in this State, where the age of majority is twenty-one, between the ages
of twenty-one and twenty-five, would he be allowed to avoid it on the plea of
minority ? The Supreme Court of Louisiana has said that in such a case the
contract would be binding, and that the capacity of the person would depend on
the law of the place where the contract was made, and not on that of the person’s
domicil. Conflict of Laws, 73; Saul v. His Cre@jtors, 17 Martin’s Rep. 596; and
though that court does not appear to have a settled opinion on the general ques-
tion how far the personal status of an individual, as it is fixed by the law of his
domicil, may be changed by the law of the place where the act is done, it is ap-
prehended that the opinion here expressed would be followed in this State. But
the clearest and most distinct recognition of the principle that the civil capacities
144 CONFLICT OF LAWS. [cH. IV.

and privileges in one character, which they are not entitled to in
another. The domestic slave may, in that character, by law ac-

said States or territories, the person entitled, &c., is empowered to arrest the fugi-
tive, and upon proof made, that the person so écizedl, under the law of the State,
from which he or she fled, owes service, &c. Act of February 12, 1793, ¢. 7, § 3,
In regard to these provisions, the court are of opinion, that as by the general law
of this Commonwealth, slavery cannot exist, and the rights and powers of slave
owners cannot be exercised therein, the effect of this provision in the constita-
tion and laws of the United States is to limit and restrain the operation of this
general rule, so far as it is done by the plain meaning and obvious intent and im-
port of the language used, and no further. The constitution and law manifestly
refer to the case of a slave escaping from a State, where he owes service or labor,
into another State or territory. He is termed a fugitive from labor ; the proof to
be made is, that he owed service or labor, under the laws of the State or territory
from which he fled, and the authority given is to remove such fugitive to the
State from which he fled. This language can, by no reasonable construction, be
applied to the case of a slave, who has not fled from the State, but who has been
brought into this State by his master. The same conclusion will result from a
consideration of the well-known circumstances, under which this constitution was
formed. Before the adoption of the constitution, the States were, to a certain
extent, sovereign and independent, and were in a condition to settle the terms,
upon which they would form a more perfect union. Jt has been contended by
some over-zealous philanthropists, that such an article in the constitution could
be of no binding force or validity, because it was a stipulation contrary to natural

and incapacities of an individual are to be determined by the law of the place
where the person is, and not by that of his domicil, is found in the decisions upon
the very subject which is involved in this case — that of slavery. It was decided
in 1772, in Sommersett’s case that a slave who was carried by his master to Eng-
land, from any of the colonies, became free as soon as he stepped on English
ground. 1 Black. 425, note; Loft’s R.1; 11 St. Trials, 340. A similar decis-
jon, some years after, was made in Scotland. 2 Hagg. 118. It is supposed, in-
deed, that a different rule prevailed before that decision. It is said that the traf-
fic in slaves had for a long series of years been as public and notorious in London
as in the colonies, and that the legality of it had been sustained by the most emi-
nent lawyers in the kingdom. The Slave Grace, 2 Haggard’s R. 105-114
However that may be, the law as it was ‘then declared, has never since been
‘brought into doubt ; and whether the real grounds of the decision are to be found,
as intimated by Lord Stowell, in the “increased refinement of the sentiments
and manners of the age,” or in the maxims of the ancient common law relating to
villanage, (2 Haggard, 109,) it seems to me that it may be well vindicated upon
those principles of the jus gentiym which have already been frequently mentioned,
‘and which are indicated by Lord Stowell in another part ,of the same opinion.
“ The entire change of the legal character of individuals, produced by a change
of local situation, is far from being a novelty in the law. A residence in a new
country introduces a change of legal condition, which imposes rights and obliga-
tions totally inconsistent with the former rights and obligations of the same per
§.96 a.} CAPACITY OF PERSONS. 145

company his master or mistress to any part of the world. But
that privilege exists no longer tharhis character of domestic slave

right, But it is difficult to perceive the force of this objection. It has already
heen shown, that. slavery is not contrary to the laws of nations, It would then
be the proper subject of treaties among sovereign and independent powers. Sup-
pose, instead of forming the present constitution, or any other confederation, the
several States had become in all respects sovereign and independent, would it,
not have been competent for them to stipulate, that fugitive slaves should be mu-
tually restored, and to frame. suitable regulations, under which such a stipulation
should, be carried into effect? Such a stipulation would be highly important: and
vnecessary, to secure peace and harmony between adjoining nations, and to pre-
vent perpetual collisions and border wars. It would be no entroachment on' the
rights of the fugitive ; for no stranger has a just claim to the protection of a for-
eign State against its will, especially where a claim to. such protection would be
likely. to involve the State in war; and each independent State has a right to
determine by its own laws and treaties who may come to reside or seek shelter
within its limits. Now the Constitution of the United States partakes both of the:
nature of a treaty and of a form of government. It regards the States, to a cer-
tain extent, as sovereign and independent communities, with full power to make
their own laws, and regulate their own policy, and fixes the terms upon which.
their intercourse with each other shall be conducted. In respect to foreign rela-
tions, it regards the people of the States as one community, and constitutes a form
of government for them. It is well known, that, when this constitution was’
formed, some of the States permitted slavery and the slave-trade, and considered

sons. Persons bound by particular contracts which restrain their liberty, debtors,
apprentices, and others, lose their character and condition for the time, when they:
reside in another country, and are entitled as persons totally free, though they
return to their original servitude and obligations upon coming back to the coun-
try they had quitted.’ 2 Haggard, 113. But,if the decision in Sommersett’s
case did not entirely approve itself to the judgment of that eminent magistrate,
we may set against his doubts the opinion of another learned judge, although he
also. may be thought to trace the decision to the improved moral- perceptions of
the age, and the more full development of the principles‘ of natural equity and
universal justice, than to any ancient maxims of the common law, considered asa
mere municipal code. ‘It is matter of pride to me,’ says Mr. Justice Best, ‘ to
recollect. that while economists and politicians were recommending to the legisla-
ture the protection, of this traffic, and senators were framing statutes for its pro-
motion, and declaring it a benefit to the, country, the judges of the land, above
the age in which they lived, standing on the high ground of natural right, and
disdaining the lower doctrine of expediency, declared that slavery was inconsist-
ent with the genius of the English constitution, and that human beings could not
be the subject-matter of property. Asa lawyer, I speak of that early determina-"
tion, when a different doctrine was prevailing, in the senate, with a considerable.
degree of professional pride.” ‘ Forbes v. Cochran, 2 Barn. & Cresw. 448. But
to whatever cause is to be ascribed this change of the common law of England, if
change it was, it has since that time been considered the settled law, that a slave
CONFL. 13
146 CONFLICT OF LAWS. [cu. Iv.

attaches to him; for should the owner deprive him of the charac-
ter of being a domestic slave by employing him as a field slave,

them highly essential to, their interests, and that some other States had abolished
slavery within their own limits, and, from the principles deduced and policy
avowed by them, might be presumed to desire to extend such abolition further.
It was, therefore, manifestly the intent and the object of one party to this com-
pact to enlarge, extend, and secure, as far as possible, the rights and powers of
the owners of slaves, within their own limits, as well as in other States, and of the
other party, to limit and restrain them. Under these circumstances, the clause in
question was agreed on, and introduced into the constitution. And as it was well
considered, as it was intended to secure peace and harmony, and to fix, as pre-
cisely as language could do it, the limit to which the rights of one party should be
exercised within the territory of the other, it is to be presumed, that they selected
terms intended to express their exact and their whole meaning ; and it would be
a departure from the purpose and spirit of the compact, to put any other con-
struction upon it, than that to be derived from the plain and natural import of the
language used. Besides, this construction of the provision in the constitution gives
to it a latitude, sufficient to afford effectual security to the owners of slaves. The
States have a plenary power to make all laws necessary for the regulation of slav-
ery and the rights of slave-owners, whilst the slaves remain within their territorial
limits ; and it is only when they escape, without the consent of their owners, into
other States, that they require the aid of other States to enable them to regain
‘their dominion over the fugitives. But this point is supported by most respectable

on being introduced into England becomes free. And the law as it was then de-
clared’by Lord Mansfield, is believed to be generally adopted by the non-slave-
holding States, in this country. Conflict of Laws, 92; Case of Francisco, 9 Amer.
Jurist, 490. The question was very fully considered by the Supreme Court of
Massachusetts, in the recent case of the slave Med,’ August, 1836, and it was de-
cided, that a slave on coming into that State became free,-except in a case falling
within the provisions of the Constitution of the United States, and the Act of
Congress, of Feb. 12, 1793, by which provision is made for delivering up persons
who are held to labor or service in one of the United States on their escaping in-
to another. If the owner voluntarily brings his slave into the State, the case
does not come within the provisions of the law, and he becomes free. The same
doctrine was held by Mr. Justice Washington in the case of Butler v. Hopper, 1
Wash. C. C. R. 499, and again in Ex parte Simmons, 4 Wash. C. C. R. 396. And
it appears from the cases of Lunsford v. Coquillon, 14 Martin’s R. 405, and Ran-
kin v. Lydia, 2 A. K. Marsh. 470, that the principle has been fully recognized in
Louisiana and Kentucky, that the relation of master and slave is founded exclu-
siyely on municipal law for which the courts in those States do not claim any ex-
tra-territorial force. All these cases stand upon the principle that slavery, and
with it as a necessary consequence, all the civil incapacities which are peculiar to
that servile state, depend entirely on the local law. It follows of course that when
a slave passes into a country, by whose laws slavery is not recognized, his civil

1 Commonwealth v. Aves, 18 Pick. 193.
§ 96 a.] CAPACITY OF PERSONS. 147

he would be deprived of the right of accompanying his master
out of the colony.”! [In exact accordance with this doctrine, it

and unexceptionable authorities. In the case of Butler v. Hooper, 1 Wash. C. C. R.
499, it was held by Mr. Justice Washington, in terms, that the provision in the
constitution which we are now considering, does not, extend to the case of aslave,
voluntarily carried by his master into another State, and there leaving him under
the protection of some law declaring him free. In this case, however, the master
claimed to hold the slave in virtue of a law of Pennsylvania, which permitted
members of Congress and sojourners to retain their domestic slaves, and it was
held, that he did not bring himself within either branch of the exception, because
he had, for two years of the period, ceased to be a member of Congress, and so
lost the privilege ; and by having become a resident, could not claim as a so-
journer. The case is an authority to this point, that the claimant of a slave, to
avail himself of the provisions of the constitution and laws of the United
States, must bring himself within their plain and obvious meaning, and they
will not be extended by construction ; and that the clause in the constitution is
confined to the case of a slave escaping from one State and fleeing to another.
But in a more recent case, the point was decided by the same eminent judge.
Ex parte Simmonds, 4 Wash. C. C. R. 396. It was an application for a certifi-
. cate under § 3 of the Act of Feb. 12, 1793. He held that both the constitution
and the laws of the United States, apply only to fugitives, escaping from one
State and fleeing to another, and not to the case of a slave vountarily brought
condition is changed from a state of servitude, to that of freedom, and he becomes
invested with those civil capacities which the law of the place imparts to all who
stand in the same category. It is, indeed, said by Chief Justice Shaw, in‘ deliv-
ering the opinion of the court, in the case of the slave Med, that ‘slaves in such
case become free, not so much because any alteration is made in their status or
condition, as because there is no law which will warrant, but there are laws, if
they choose to avail themselves of them, which prohibit their forcible detention,
or forcible removal.’ If by this is meant there is no change in the personal state
of a slave in relation to the law of the country he has left, it may well be admit-
ted to be correct. The law of that country, notwithstanding he is for the time
withdrawn from its direct and immediate control, would hold him to be a slave un-
tilhe acquired his freedom in some of the forms of emancipation known to that
law. His mere transit into a country whose law declared him free, within its juris-
dictional limits would not per se liberate him from the incapacities and obligations
resulting from the law of his domicil within the legitimate sphere of that law’s
Operation, and if he were to return to that country the condition of servitude
would reattach to him precisely as when he left it. So it was decided by Lord
Stowell, in the case of the slave Grace, and the same principle is distinctly estab-
lished by the case of Williams v. Brown, 3 Bos. & Pull. 69. But it by no means

* The Slave Grace, 2 Hagg. Adm. R. 94, 113,114. It seems that Christinezus
and Gudelin held the same opinion as Lord Stowell. See Christinzeus, Vol. 4,
Decis. 80, n. 4, p. 115; cited also, 1 Burge, Com. on Col. and For. Law, P. 1,
ch, 10, p. 749.
148 CONFLICT OF LAWS. [cu rv.

thas been frequently held in the American slave States, that if a
master removes with, or sends his slave to a free State, for a tem-

by his master. Another question was made in that case, whether the slave ‘was
free by the laws of Pennsylvania, which, like our own, in effect liberate slaves
voluntarily brought within the State; but there is an exception in favor of mem-
‘bers of Congress, foreign ministers, and consuls, and sojourners. But this pro-
‘vision is qualified as to sojourners and persons passing through the State in such
manner as to exclude them from the benefit of the exception, if the slave was
retained in the State longer than six months. The’slave in that case, having been
detained in the State more than six months, was therefore held free. This case
is an authority to this point, — the general rule being, that if a slave is brought
into a State where the laws do not admit slavery, he will be held free, the per-
son who claims him as a slave under any exception or limitation of the general
rule, must show clearly that the case was within such exception. The same
principle was substantially decided by the State court of the same State in the
case of Commonweath v. Holloway, 2 Serg. & Rawle, 305. Jt was the case ofa
child of a fugitive slave, born in Pennsylvania. It was held that the Constitution
of the United: States was not inconsistent with the law of Pennsylvania; that as
the law and Constitution of the United States did not include the issue of fugitive
slaves in terms, it did not embrace them by construction or implication. The
court considers the law as applying only to those who escape. Yet by the opera-
tion of the maxim which obtains in all the States wherein slavery is permitted by
law, Partus sequitur ventrem, the offspring would follow the condition of the
mother, if either the rule of comity contended for applied, or if the law of the

follows that because the law of his domicil holds him to be a slave, he has not,
while within a jurisdiction which declares him to be free, all the faculties which
belong to a state of freedom. It is difficult to understand what the law does, by
declaring him free, if it does not invest him with the rights and capacities of a
free man ; and if it does, it confers upon him a personal state very different from
that of slavery ; and there is no absurdity or contradiction in supposing a man to
be a free man in one country and a slave in another. Both result from the same
principle, the absolute supremacy of the laws of every State within its own terri-
torial limits, And though Lord Stowell rather sarcastically remarks, that the
law of England, by adopting this principle, puts the liberty of a man, as it were,
into a parenthesis, it is nothing different from what occurs in many other cases,
in which an individual is affected by the law of his domicil with peculiar capaci
ties and disqualifications, which are recognized cither in his favor or against him
while resident within another jurisdiction. When he returns to his own country
he ‘becomes reinvested with his original personal status, and the capacities and
disqualifications of the law of his domicil attach. Take a case of familiar and
daily occurrence. A man is a magistrate in the place of his domicil. He passes
out of that jurisdiction, and he can exercise no authority as a magistrate. He
becomes a private person, but on his return to the place of his domicil he reas- '
sumes his personal status as a magistrate. The law which declares a slave free
on his introduction into this country, by necessary consequences, if it be not af
identical proposition, declares him to be possessed of the civil qualities of a free-
§96a.] CAPACITY OF PERSONS. 149

porary purpose, and not with intent to abandon his domicil in a
slave State, and the slave voluntarily returns to the slave State, his

United States would be extended by construction. ‘The same decision has been
made in Indiana, 3 Amer. Jurist, 404. In Louisiana, it had been held, that if a
person with a slave goes into a State to reside, where it is declared that slavery
shall not exist, for ever so short a time, the slave ipso facto becomes free, and will
be so adjudged and considered afterwards in all other States; and a person
moving from Kentucky to Ohio, to reside, his slaves thereby became free, and
were so held in Louisiana. This case also fully recognizes the authority of States
to make laws dissolving the relation of master and slave; and considers the special
limitation of the general power by the Federal Constitution, as a forcible impli-
cation in proof of the existence of such general powers. Lunsford v. Coquillon,
14 Martin, R. 404. And in the above fled case from Louisiana, it is very signifi-
cantly remarked, that such a construction of the constitution and law of the
United States can work injury to no one, for the principal acts only on the
willing, and Volenti non fit injuria. The same rule of construction -is adopted
in analogous cases in other countries, that is, where an institution is forbidden,
but where, for special reasons and to a limited extent, such prohibition is re-
laxed, the exemption is to be construed strictly; and whoever claims the ex-
emption, must show himself clearly within it, and where the facts do not bring
the case within the exemption, the general rule has its effect. By a general law
of France, all persons inhabiting or being within the territorial limits of France,
are free. An edict was passed by Louis XIV., called ‘ Le Code Noir,’ respect-
ing slavery in the colonies. In 1716, an edict was published by Louis XV.,

man, and confers on him the faculty of vindicating his rights, and claiming re-
dress for wrongs in the ordinary course of justice ; and this general proposition is
an answer to another part of the argument, that the libellant in this case, was put
under the government of the respondent who stood loco domini, the owner hay-
ing delegated to him his authority. That authority when the slave was within
the jurisdiction of.this country, could be exercised only under the restrictions of
our law. Years before the decision of Sommersett’s case, it was said by Lord
Chancellor Northington, that a negro might maintain an action in England,
against his master for ill usage. Shanley v. Harvey, 2 Eden, Rep. 126, quoted,
2 Hagg. R. 116. It was supposed in the argument that a distinction might be
made, founded on the circumstance that the tort was committed on the high seas,
which are within the common jurisdiction of all nations. It is true that no nation
can claim an exclusive jurisdiction over any part of the high seas, but all nations
can, and do claim an exclusive jurisdiction over their own vessels that float on
the high seas. A foreigner who is a passenger on board an American vessel,
when the vessel has left the port, and is beyond the jurisdiction of his own coun-
try,.is amenable to the laws of this country and is under their protection. If he
cotamits a crime he may be indicted in our courts, and punished by our laws. If
he commits a tort, he is personally liable to answer for it in our courts, and if he
suffers a wrong he may appeal to the laws of this country for redress, as much as
though the wrong had been done him on land. If the libellant would not be pre-
cluded from maintaining an action for a tort done on land, he may equally main-
13 *
150 CONFLICT OF LAWS. [cu. 1v.

condition reattaches, and he has not acquired a right to freedom
by a temporary sojourn in a free country.” But if while tempo-

concerning slavery in the colonies, and reciting among other things, that many
of the colonists were desirous of bringing their slaves into France, to have
them confirmed in the principles of religion, and to be instructed in various
arts and handicrafts, from which the colonists would derive much benefit, on
the return of the slaves, but that many of the colonists feared, that their slaves
would pretend to be free on their arrival in France, from which their owners
would sustain. considerable loss, and be deterred from pursuing an object at
once so pious and useful. The edict then provides a series of minute regula-
tions, to be observed both before their departure from the West Indies, and on
their arrival in France, and if all thesg regulations are strictly complied with,
the negroes so brought over to France shall not thereby aequire any right to
their freedom, but shall be compellable to return; but if the owners shall neg
lect to comply with the prescribed regulations, the negroes shall become free,
and the owners shall lose all property in them. 20 Howell, State Trials, 15,
note. The constitution and laws of the United States, then, are confined to
cases of slaves escaping from other States, and coming within the limits of this
State, without the consent and against the will of their masters, and cannot by
any sound construction extend to a case where the slave does not esvape, and
does not come within the limits of this State against the will of the master, but

a
tain one for a tort done in an American vessel on the high seas. Forbes v. ‘Coch-
*ane, 2 Barn. & Cresw. 448. H was supposed at the argument that the capacity
of the libellant to maintain this action in the courts of the United States may
stand on grounds somewhat different from what it would in the State courts ; that
slavery existing in some of the individual States, and not being prohibited by the
constitution and laws of the United States, the national courts might be bound by
the principles of the jus gentium to recognize the incapacities of slaves having a
foreign domicil, even where it would not be done by the State courts, and that
the national tribunals are under the same obligations in this respect, whether sit-
ting in a State where slavery is admitted, or where it is prohibited. If this were
conceded, and in the view which I take of the case I do not think it necessary to
give an opinion upon the question, the answer is, that a court sitting in Louisiana
is no more bound, than one sitting in Maine, to recognize as to any acts, or rights
acquired, within the exclusive jurisdiction of the United States, the artificial in-
capacities of persons resulting from a foreign Jaw. The question in both cases
would be, whether the party could by the laws of the United States, have a
standing in court. The court certainly is not bound to enforce against him a
personal incapacity derived from the law of his domicil, because that law can have
no force in this country any further than our law on the principles of comity

{' Liza v. Puissant, 7 Louis, Ann. R. 80; Conant v. Guesnard, 5 Id. 696; Lewis
v. Fullerton, 1 Rand. 15, as explained in Hunter v, Fulcher, 1 Leigh, 172; Gra-
ham v. Strader, 5 B. Monroe, 178; Mary v. Brown, 5 Louis. Ann. R. 269; Collins
v. America, 9 B. Monroe, 565; Maria v. Kirby, 12 Id. 545; Haynes »v. Forno, 8
Louis. Ann. R. 35; Hinds v. Brazcalle, 2 How. 841.
a

§ 96 a.] CAPACITY OF PERSONS. 151

rarily in a free State with the consent of his master, a slave claims
his freedom, and refuses to return to a state of servitude, the
power of the master over him is gone."]

by his own act and permission. This provision is to be construed according to
its plain terms and import, and cannot be extended beyond this, and where
the case is not that of an escape, the general rule shall have its effect. It is
upon these grounds, we are of opinion, that an owner of a slave in another
State where slavery is warranted by law, voluntarily bringing such slave into
this State, has no authority to detain him against his will, or to carry him out
of the State against his consent, for the purpose of being held in slavery. The
opinion is not to be considered as extending to a case where the owner of a
fugitive slave, having produced a, certificate according to the law of the United
States, is bona fide removing such slave to his own domicil, and in so doing
passes through a free State; where the law confers a right or favor, by neces-
sary implication it gives the means of executing it. Nor do we give any opin-
ion upon the case, where an owner of a slave in one State, is bon fide removing
to another State, where slavery is allowed, and in so doing necessarily passes
through a free State, or, arriving by accident or necessity, he is compelled to
touch or land therein, remaining no longer than necessary. Our geographical

‘chooses to adopt it ; and every nation will judge for itself how far it is consistent
with its own interest and policy to extend its comity in this respect. If the legis-
lative power has prescribed no-rule, the courts must of necessity decide in each |
individual case as it is presented, and however embarrassing and perplexing the
case may sometimes be, the courts cannot escape them. If the incapacity alleged
were slavery, it is not for me to say what would be the judgment of a court sit-
ting within a jurisdiction where slavery is allowed, but sitting as this court does,
in a place where slavery by the local law is prohibited, I do not feel myself called
upon to allow that disqualification when it is alleged by a wrongdoer, as attach-

.ing to the libellant by the laws of a foreign power, for the purpose of withdraw-

ing himself from responsibility for his own wrong.”

1 The People v. Lemmon, 5 Sandf. R. 681. Paine, J., said: “I certainly sup-
posed, when this case was first presented to me, that, as there could be no dispute
about the facts, there would be no delay or difficulty in disposing of it. But,
upon the argument, the counsel for the respondent cited several cases which
satisfied me that this case could not be decided, until those cases had been care-
fully examined. The principle which those cases tend more or less forcibly to
sustain, is, that if an owner of slaves is merely passing from home with them,
through a free State, into another slave State, without any intention of remain-
ing, the slaves, while in such free State, will not be allowed to assert their free-
dom. As that is precisely the state of facts constituting this case, it becomes
necessary to inquire whether the doctrine of those cases can be maintained upon
general principles, and whether the law of this State does not differ from the
laws of those States where the decisions were made. I shall first consider whether
those cases can be sustained upon general principles. The first case of the kind
which occurred, was that of Sewall’s slaves, which was decided in Indiana, in

‘
152 CONFLICT OF LAWS. [cH tv.

§ 97. Struck with the inconveniences of the doctrine of the
ubiquity of the law of the domicil, as to the capacity, state, and

position exempts us from the probable necessity of considering such a case, and
we give no opinion respecting it. The child, who is the subject of this habeas
corpus, being of too tender years to have any will or give any consent to be re-
moved, and her mother being a slave, and having no will of her own, and no
power to act for her child, she is necessarily left in the custody of the law. The
respondent having claimed the custody of the child, in behalf of Mr. and Mrs,
Slater, who claim the right to carry her back to Louisiana, to be held in a state
of slavery, we are of opinion, that his custody is not to be deemed by the court
a proper and lawful custody. Under a suggestion made in the outset of this
inquiry, that a probate guardian would probably be appointed, we shall for the
present order the child into a temporary custody, to give time for an application
to be made to the Judge of Probate. [See also Commonwealth v. Taylor, 3 Mete.
72, where this doctrine was reaffirmed, and where it was also held that the con-
sent of a negro slave, then only eight years of age, would not authorize an order
for his removal to a state of slavery, and he was delivered over to a guardian
appointed for him by the Court of Probate of Massachusetts where he then was.]

1829, by Judge Morris, and will be found reported in 3 Am. Jurist, 404. The
return to the habeas corpus stated that Sewall resided in Virginia, and owned
and held the slaves under the laws of that State; that he was emigrating with
them to Missouri, and on his way was passing through Indiana, when he was
served with the habeas corpus. It, however, appeared on the hearing, that
Sewall was not going to Missouri to reside, but to Illinois, a State whose laws do
not allow of slavery. The judge for this reason discharged the slaves. This
case, therefore, is not in point, and would be entirely irrelevant to the present,
were it not for a portion of the judge’s opinion, which was not called for by the 5
case before him, but applies directly to the case now before me. ‘By the law,’
he says, ‘of nature and of nations, (Vattel, 160,) and the necessary and legal
consequences resulting from the civil and political relations subsisting between
the citizens as well as the States of this federative republic, I have no doubt but
the citizen of a slave State has a right to pass, upon business or pleasure, through
any of the States, attended by his slaves or servants; and while he retains the
character and rights of a citizen of a slave State, his right to retain his slaves
would be unquestioned. An escape from the attendance upon the person of his
master, while on a journey through a free State, should be considered as an escape
from the State where the master had a right of citizenship, and by the laws of
which the service of the slave was due. The emigrant from one State to another
might be considered prospectively as the citizen or resident of the State to which
he was removing; and should be protected in the enjoyment of those rights he
acquired in the State from which he emigrated, and which are recognized and
protected by the laws of the State to which he is going. But this right I con-
ceive cannot be derived from any provision of positive law.’ The next case re-
lied upon is Willard v. The People, 4 Scammon, R. 461, and which was decided
in the State of Illinois in 1848. It was an indictment for secreting a woman of
color owing service to a resident of Louisiana. The indictment was under the
§97.] CAPACITY OF PERSONS. 158

condition of persons, as an absolute and general doctrine, a learned
judge in the Scottish courts! has not hesitated to hold, that no

149th section of the Criminal Code, which provides, that ‘if any person shall
harbor or secrete any negro, mulatto, or person of color, the same being a slavé
or a servant owing service or labor to any other persons, whether they reside in
this State or in any other state, or territory, or district, within the limits and
under the jurisdiction of the United States, or shall in anywise hinder or prevent
the lawful owner or owners of such slaves or servants from retaking them in a
lawful manner, every such person so offending shall be deemed guilty of a misde-
meanor, and fined not exceeding five hundred dollars, or imprisoned not exceed-
ing six months.’ It appeared that the woman of color was ‘a slave, owned by a
resident of Louisiana, and that, while passing with her mistress from Kentucky
to Louisiana through the State of Illinois, she made her estape in the latter State,
and was secreted by the defendant. There were several questions raised in the
ase which it is unnecessary now to notice. The indictment, which was de-
murred to, was sustained by the court. The main objection to it was that the
section of the code under which it was found was a violation of the sixth articlé
of the constitution of the State of Illinois, which declares that ‘neither slavery
nor involuntary servitude shall hereafter be introduced inte this State, otherwise
than in the punishment of crimes, whereof the party shall have been duly con-
victed.’ The court, in answering this objection, say, ‘The only question, there~
fore, is the right of transit with a slave; for if the slave upon entering our terri-
tory, although for a mere transit to another State, becomes ‘free under the consti-
tution, then the defendant in error is not guilty of concealing such a person as is
described in the law and in the indictment. The 149th section of the Criminal
Code, for a violation of which the plaintiff is indicted, does most distinctly recog-
nize the existence of the institution of slavery in some of these United States,
and whether the constitution and laws of this State have or have not provided
adequate remedies to enforce within its jurisdiction that obligation of service, it
has provided by this penal sanction, that none shall harbor or conceal a slave
within this State, who owes such service out of it. Every state or government
may or may not, as it chooses, recognize and enforce this law of comity. And
to this extent this State has expressly done so. If we should, therefore, regard
ourselves as a distinct and separate nation from our sister States, still, as by the
law of nations (Vattel, B. 2, ch. 10, § 182, 133, 184), the citizens of one govern-
ment have a right of passage through the territory of another peaceably, for
business or pleasure, and that too without the latter’s acquiring any right over
the person or property (Vattel, B. 2, § 107, 109), we could not deny them this
international right without a violation of our duty. Much less could we disregard °
their constitutional right, as citizens of one of the States, to all the rights, immu-
nities, and privileges of citizens of the several States. It would be startling, in-
deed, if we should deny our neighbors and kindred that common right of free
and safe passage which foreign nations would hardly dare deny. The recogni-
tion of this right is no violation of our constitution. Jt is not an introduction of
slavery into this State, as was contended in argument, and the slave does not

_» + Lord Meadowbank ; Fergusson on Mar. and Divorce, Appx. 361, 362.
154 CONFLICT OF LAWS. [cu. Iv.

such doctrine is recognized, as of universal obligation in Scotland.
‘Would a marriage here,” (says he,) ‘be declared void, because

become free by the constitution of Illinois by coming into the State for the mere
purpose of passage through it.’ Another case cited by the respondent’s counsel,
was the Commonwealth v. Aves, 18 Pick. R. 193. In this case the owner brought
her slave with her from New Orleans to Boston, on a visit to her father, with
whom she intended to spend five or six months, and then return with the slave
to New Orleans. The slave being brought up on habeas corpus, the court
ordered her discharge. The case was fully argued, and Chief Justice Shaw
closes a very elaborate opinion with these words: ‘Nor do we give any opinion
upon the case, where an owner of slaves in one State is bona fide removing to
another State where slavery is allowed, and in so doing necessarily passes through
a free State, or where by accident or necessity he is compelled to touch or land
therein, remaining no longer than necessary.’ I have quoted largely from the
opinions in these cases, in order that it may be understood clearly what is pre-
sented by them as their governing principle. The respondent’s counsel insists it
is this, — That by the law of nations, an owner of a slave may, either from ne-
cessity or in the absence of all intention to remain, pass with such slave through
a State where slavery is not legalized, on his way from one slave State to another,
and that during such transit through the free State the slave cannot assert his
freedom. I admit that this is the principle of these cases, and I now propose to
cotisider it. Each case denies that the right of transit can be derived from the
provision of the Constitution of the United States respecting fugitive slaves,
and, where an opinion was expressed, places the right upon the law of nations.
Writers of the highest authority on the law of nations agree that strangers have
a right to pass with their property through the territories of a nation. Vattel,
B. 2, ch. 9, § 123 to § 136; Pufendorf, B. 3, ch. 3,§ 5 to§ 10. And this right,
which exists by nature between States wholly foreign to each other, undoubtedly
exists, at least as a natural right, between the States which compose our Union.
But we are to look further than this, and to see what the law of nations is when
the property which a stranger wishes to take with him is a slave. The property
which the writers on the law of nations speak of is merchandise or inanimate
things. And by the law of nature these belong to their owner. Institutes of
Just. B. 1, t. 2,§ 2. But those writers nowhere speak of a right to pass through
a foreign country with slaves as property. On the contrary, they all agree that
by the law of nature alone no one can have a property in slaves. And they also
hold that, even where slavery is established by the local law, a man cannot have
that full and absolute property in a person which he may have in an inanimate
thing. Pufendorf, B. 6, ch. 3, § 7. It can scarcely, therefore, be said, that when
writers on the law of nations maintain that strangers have a right to pass through
a country with their merchandise or property, they thereby maintain their right
to pass with their slaves. But the property or merchandise spoken of by writers
on the law of nations which the stranger may take with him, being mere inani-
mate things, can have no rights; and the rights of the owner are all that can be
thought of. It is, therefore, necessary to look still further, and to see what is the
state of things, by the law of nature, as affecting the rights of the slave, when
an owner finds himself, from necessity, with his slave in a country where slavery
§ 97.] CAPACITY OF PERSONS. 155

the parties were domiciled in England, and were minors, when
they married here, and of course incapable, by the law of that

is not legalized or is not upheld by law. It is generally supposed that freedom
of the soil from slavery is the boast of the common law of England, and that a
great truth was brought to light in Sommersett’s case. This is not so. Lord
Mansfield was by no means, so far as the rest of the world is concerned, the
pioneer of freedom. Whatever honor there may be in having first asserted that
slavery cannot exist by the law of nature, but only by force of local law, that
honor among modern nations belongs to France, and, among systems of jurispru-
dence, to the civil law. The case of Sommersett did not occur until the year 1772,
and in 1738 a case arose in France, in which it was held that a negro slave be-
came free by being brought into France. 13 Causes Célébres, 49. But in truth
the discovery that by nature all men are free, belongs neither to England nor
France, but is as old as ancient Rome; and the law of Rome repeatedly asserts
that all men by nature are free, and that slavery can subsist only by the laws of
the state. ‘Bella etenim orta sunt, et captivitates secute et servitutes que sunt.
naturali juri contrariz ; jure enim naturali omnes homines ab initio liberi nasce-
bantur.’ Institutes, B. 1, t. 2,§ 2. ‘Naturalia quidem jura, que apud omnes
gentes perzeque servantur, divina quadam providentia constituta, semper firma
atque immutabilia permanent.’ Institutes, B. 1,t. 2, § 11; Digest, B. 1, t. 1, § 4;
B. 1, t. 5, § 4, 5. The writers on the law of nations uniformly maintain the same
principle, namely, that. by the law of nature all men are free, and that where
slavery is not established and upheld by the law of the state there can be no
slaves. Grotius, B. 2, ch. 22, § 11; Hobbes de Cive, B. 1, ch. 1, § 3; Pufendorf, .
(Barbeyrac) Droit de la Nature, B. 3, ch. 2, § 1, 2, B. 6, ch. 3,§ 2. The same
writers also hold that by the law of nature one race of men is no more subject
to be reduced to slavery than other races. Pufendorf, B. 3, ch. 2, § 8. When
we are considering a master and slave in a free state, where slavery is not upheld
by law, we must take into view all these principles of the law of nature, and see
how they are respectively to be dealt with according to that law; for it will be
remembered that the master can now claim nothing except by virtue of the law
of nature. He claims under that law a right to pass through the country. That
is awarded to him. But he claims in addition to take his slave with him; but
upon what ground? ‘That the slave is his property. By the same law, however,
under which he himself claims, that cannot be; for the law of nature says that
there can be no property ina slave. We must look still further to see what is
to be done with the claims of the slave. There being now no law but the law
of nature, the slave must have all his rights under that, as well as the master;
and it is just as much the slave’s right under that to be free as it is the master’s
to pass through the country. It is very clear, therefore, that the slave hasa
right to his freedom, and that the master cannot have aright to take him with
him: As the cases cited by the respondent’s counsel all rest the master’s right of
transit exclusively upon the law of nations, and admit that he cannot have it
under any other law, I have thus followed out that view, perhaps at unnecessary
length, in order to see to what it would lead. In order to prevent any misappre-
hension as to the identity of the law of nature and the law of nations, I will close
my observations upon this part of the case with a citation upon that point from
156 CONFLICT OF LAWS. [cx. Iv.

country, of contracting marriage? This category of law does not
affect the. contracting individuals, only, but the public, and that
in various ways. And the consequences would prove not a little
inconvenient, embarrassing, and probably even inextricable, if the
personal incapacities of individuals, as of majors and minors, the
competency to contract marriages, and infringe matrimonial en-
gagements, the rights of domestic authority and service, and the

Vattel. Preliminaries, § 6. ‘The law of nations is originally no more than the
Jaw of nature applied to nations.” I ought also to notice here that the respon-
dent’s counsel, upon the authority of the case in Illinois, insisted that this right of
transit with slaves is strengthened by that clause in the Constitution of the United
States which declares that ‘The citizens of each State shall be entitled to all the
privileges and immunities of citizens in the several States.’ The case in Indiana,
on the other hand, says expressly that the right does not depend upon any posi-
tive law. I think this remark must have found its way into the opinion of the
judge who decided the Illinois case without due consideration. I have always
understood that provision of the Constitution to mean (at least so far as this case
is concerned) that a citizen who was absent from his own State, and in some
other State, was entitled while there to all the privileges of the citizens of that
State. And I have never heard of any other or different meaning being given
to-it. It would be absurd to say that while in the sister State he is entitled to al
the privileges secured to citizens by the laws of all the several States, or even iof

«bis own State; for that. would be to confound all territorial limits, and give to the
States not only an entire community, but a perfect confusion of laws. If I am
right in this view of the matter, the clause of the Constitution relied upon cannot
help the respondent; for if he is entitled while here to those privileges only
which the citizens of this State possess, he cannot hold his slaves. J must also
here. notice some other similar grounds insisted upon by the respondent’s counsel.
He eites Vattel (B. 2, ch. 8, § 81) to prove that the goods. of an individual, as
regards other States, are the goods of his State. I have already shown that by
the law of nature, about which alone Vattel is always speaking, slaves are.not
goods;- and I may add that what Vattel says in the passage to which the counsel
refers, has no connection with the right of transit through a foreign country.
Besides, in the case from Illinois referred to by respondent’s counsel, the court
‘distinctly declare (Willard v. People, 4 Scammon’s R. 471) that they ‘ cannot
see the application to this case of the law of nations in relation to the domicil of
the owner fixing the condition of and securing the right of property in this slave,

' and regarding the slave as a part of the wealth of Louisiana, and our obligation
of comity to respect and enforce that right.’” And so if a slave is allowed by
his master to reside and acquire a domicil in a free country, and subsequently
returns voluntarily to a slave State, it is held, even in slave States, that he is still
free. Tom Davis v. Tingle, 8 B. Monroe, 545; Rankin v. Lydia, 2 A. K. Marsh.
467; Bush v. White, 3 B. Monroe, 104; Guillemette v. Harper, 4 Rich, 186;
Josephine v. Poultney, 1 Louis. Ann. R. 329; Brown v. Smith, 8 Id. 59; Marie
Louise v. Marot, Louis. R, 475; Eugenie v. Preval, 2 Id. 180; Smith v. Smith,
13 Id. 444; Celestie v. Himel, 10 Id. 187.]
§ 97, 98.] CAPACITY OF PERSONS. 15T

like, were to be qualified and regulated by foreign laws and cus-
toms, with which the mass of the population must be utterly
unacquainted. Accordingly, the laws of this description seem
nowhere to yield to those of foreign countries; and accordingly,
it is believed, no nation has hitherto thought of conferring powers
and forms on its courts of justice, adequate for enabling them to
execute over foreigners regular authority for enforcing the ob-
servance by them of the laws of their own country, when expa-
triated. In fact, the very same principles, which prescribe to
nations the administration of their own criminal law, appear to
require a like exclusive administration of law relative to the do-
mestic relations. Hence, both in England-and Scotland, the most
regular constitution abroad of domestic slavery was held to afford
no claim to domestic service in this country, though restrictions
for only such service, and under such domestic authority, as our
laws recognized. The whole order of society would be disjointed,
were the positive institutions of foreign nations concerning the
domestic relations, and the capacities of persons regarding them,
admitted to operate universally, and form privileged castes, living
each under separate laws, like the barbarous nations during many
eenturies after their settlement in the Roman empire.”1 =~

§ 98. These diversities in the practical jurisprudence of differ-
ent countries, as to the effect of personal ability and disability,
and personal capacity or incapacity, abundantly establish, in the
first place, that there is no general rule on the subject, which is
‘admitted by all nations; and, in the next place, that the very ex-
eeptions introduced or conceded by those who most strenuously
contend for the universal operation of the law of the domicil of
the party, either native or acquired, in cases of this nature, as
satisfactorily establish, that no general rules, have been or can be
established, which may not work serious inconvenience to the
imterests or institutions of some particular countries, or to some
particular classes of capacities or incapacities. The proper con-
clusion, then, to be drawn from this review of the subject is, that
the rule of Huberus is correct, that no nation is under any ob-
ligation to give effect to the laws of any other nation, which are
prejudicial to itself or to its own citizens; that in all cases every
nation must judge for itself, what foreign laws are so prejudicial
or not; and that, in cases not so prejudical, a spirit of comity

1 Lord Meadowbank; Fergusson on Mar. and Divorce, Appx. 361, 262.

CONFL. 14 ‘
158 CONFLICT OF LAWS. [cH. Iv.

and a sense of mutual utility ought to induce every nation to
allow full force and effect to the laws of every other nation. This
is the doctrine asserted by Mr. Chancellor Kent; and it certainly
has a most solid foundation in the actual practice of nations.
“There is no doubt of the truth of the general proposition, that
the laws of a country have no binding force beyond its own
territorial limits; and their authority is admitted in other states,
not ex proprio vigore, but ex comitate; or in the language
of Huberus, quatenus sine prejudicio indulgentium fiert potest.
Every independent community will judge for itself, how far the
comitas inter communitates is to be permitted to interfere with its
domestic interests and policy, etc. It is a maxim, that Locus
regit actum, unless the intention of the parties to the contrary
be clearly shown. It is, however, a necessary exception to the
universality of the rule, that no people are bound to enforce, or
hold valid in their courts of justice, any contract, which is injuri-
ous to their public rights, or offends their morals, or contravenes
their policy, or violates a public law.’’!

§ 99. In discussing this subject, our attention has been more
particularly drawn to the common cases of incapacity, resulting
from minority, and marriage, and legitimacy. But the principles
which apply to them are not materially different from those which
apply to cases of idiocy, insanity, and prodigality. The extent of
the rights and authorities of guardians, curators, parents, and
masters over persons subjected to their control, or committed to
their charge, may, in a general sense, be said to depend, so far
as they are to be recognized or enforced by and in foreign nations,
‘upon the same common ground of international jurisprudence,
that is to say, upon a general comity, founded in the sense of
mutual interests, mutual benefits, and mutual obligations to cul-
tivate peace and harmony. It was said, on a recent occasion,
with great force and propriety, by Mr. Chief Justice Taney, in
delivering the opinion of the Supreme Court: “The comity thus

_ 7 2 Kent, Comm. Lect. 39, p. 457, 458 (3d edit. ; post, § 244 to § 259. See
also Greenwood v. Curtis, 6 Mass. R. 378, 379. This subject is a good deal dis-
cussed in the able work of Mr. Fergusson on Marriage and Divorce; and the
opinions of the judges in the case of Gordon v. Pye, in 1815, and that of Edmon-
stone and others, in 1816, before the Scottish courts, are particularly worthy of
examination, from their comprehensive learning and ability. Fergusson, Appx.
p. 276 to p. 363. See also, id. p. 384 to p. 422.
§98-102.] CAPACITY OF PERSONS. 159

extended to other nations is no impeachment of sovereignty. It
is the voluntary act of the nation, by which it is offered, and is
inadmissible when contrary to its policy or prejudicial to its in-
terests. But it contributes so largely to promote justice between
individuals, and to produce a friendly intercourse between the
sovereignties to which they beloitg, that courts of justice have
constantly acted upon it, as a part of the voluntary law of
nations.?

§ 100. In concluding this discussion, as to the operation of
foreign laws on questions relating to the capacity, state, and con-
dition of persons, it may be useful to bring together some of those
rules which seem best established in the jurisprudence of England
and America, leaving others of a more doubtful character and ex-
tent to be decided, as they may arise, in the proper forum.

- §101. (1). The capacity, state, and condition of persons ac- ,
cording to the law of their domicil will generally be regarded as
to acts done, rights acquired, and contracts made, in the place of
their domicil, touching property situate therein. If these acts,
rights, and contracts have validity there, they will be held equally
valid everywhere. If invalid there, they will be held invalid
‘every where,”
* §102. (2). As to acts done, and rights acquired, and contracts
made in other countries, touching property therein, the law of the
country, where the acts are done, the rights are acquired, or the
contracts are made, will generally govern in respect to the capa-
city, state, and condition of persons.’ In affirmance of this doc-
‘trine the Supreme Court of Louisiana, in a case, where the direct
question came before them, expressly stated, that they had no
difficulty in assenting to the proposition, that contracts entered in
other states, as it relates to their validity, and the capacity of the
‘contracting parties, are to be tried in Louisiana by the lex loct
-celebrati contractus. And that if a contract was entered into in
another state in conformity to the local law, to have its effects and
execution there, the courts of Louisiana cannot declare it a nul-
‘lity on the ground that it would not be valid according to the

. 1 Bank of Augusta v. Earle, 13 Peters, R. 589.
fee See Male v. Roberts, 3 Esp. R. 163; Thompson v. Ketcham, 8 Johns. R. 189;
ante, § 64 to § 68; id. § 87. See Felix, Conflict des Lois Revue Etrang. et
“Frang. Tom, 7, 1840, § 38, p- 342 to p. 344.
# Ante, § 69, 70 to 74; id. § 80, 81, 82, 87.
160 CONFLICT OF LAWS. [cw. rv.

system of jurisprudence of that state, even if one or both the con-
tracting. parties were not citizens of such foreign state.

§ 102 a. It has been well remarked by Mr. Burge: “This doc-
trine promotes, whilst that to which it is opposed, is inconsistent
with those principles of mutual convenience, which induce the
recognition of foreign laws. The obstacles to commercial inter-
course between the subjects of foreign states would be almost in-
- surmountable, if a party must pause to ascertain, not by the means
within his reach, but by recourse to the law of the domicil of the
person with whom he was dealing, whether the latter has attained
the age of majority, and, consequently, whether he is competent
to enter into a valid and binding contract. If the country, in
which the contract was litigated, was also that in which it had
been entered into, and if the party enforcing it were the subject of
that country, it would be unjust, as well as unreasonable, to in-
voke the law of a foreign state for the benefit of the foreigner,
and to deprive its own subject of the benefit of the law of his own
state.” 2

§ 102 b. He adds: “It has been hitherto assumed, that, accord-
ing to the law of the domicil, the person was a minor, and incap-
able of contracting, although he had attained the age, which ix
loco contractus constituted majority, and where, according to that
law, he was competent to contract. In such a case, it has been
submitted, that the lex loci contractus ought to be followed. It
ought also to be followed, if the converse of that case occurred, and
he had attained majority according to the law of his domicil, but
was a minor according to that which prevailed in loco contractus.
Jt is true, in the latter case, the party was subject to no greater
liability than he would have incurred in the place of his domicil.
But if the principle ‘be correct, that the lez loci contractus ought
to determine the validity of a contract when that validity depends
on the capacity of the contracting party, it must be uniformly ap-
plied, whether the law prevailing in the domicil be that which
capacitates or incapacitates. For it would not be reasonable, that
two different laws should be applied to one and the same contract,
and that the liability of one of the parties should be decided by

* Mr. Justice Bullard, in Andrews v. His Creditors, 11 Louis. R. 464; ante,
§ 95, note 3, § 96 a.

* 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 4, p. 182.
§102-105 a.] CAPACITY OF PERSONS. 161

the lex loci contractus, and that of the other by the lea loci
domicilii.” + ;
» §103. (8). Hence we may deduce, as a corollary, that in re-
gard to questions of minority or majority, competency or incom-
“petency to marry, incapacities incident to coverture, guardianship,
emancipation, and other personal qualities and disabilities, the law
of the domicil of birth, or the law of any other acquired and fixed
domicil, is not generally to govern, but the Jex loci contracts aut
acti's, the law of the place where the contract is made, or the act
done. ‘ Therefore, a person, who is a minor, until he is of the age
of twenty-five years by the law of his domicil, and incapable, as
-such, of making a valid contract there, may nevertheless in an-
other country, where he would be of age at twenty-one years,
generally make a valid contract at that age, even a contract of
marriage.” ;
' §104, (4). Personal disqualifications, not arising from the law
of nature, but from the principles of the customary or positive law
of a foreign country, and especially such as are of a penal nature,
are not generally regarded in other countries, where the like dis-
-qualifications do not exist.2 Hence, the disqualifications, result-
ing from heresy, excommunication, Popish recusancy, infamy, and
-other penal disabilities, are not enforced in any other country, ex-
cept that, in which they originate. They are strictly territorial.
So, the state of slavery will not be recognized in any country
whose institutions and policy prohibit slavery.®
§ 105. GG). In questions of legitimacy, or illegitimacy, the law
of the place of the marriage will generally govern, as to the issue
subsequently born. If the marriage is valid by the law of that
place, it will generally be held valid in every other country, for the
_ purpose of ascertaining legitimacy and heirship. If invalid there,
‘it will generally (if not universally) be held invalid in every other
country.§
§ 105 a. (6). As to issue born before the marriage, if, by the
law of the country where they are born, they would be legitimated

1 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 4, p. 183.: oo ,
' ® Ante, § 75, 79, 80, 81, 82. See also, Pearl v. Hansborough, 9 Humphreys,
R, 426. .
® Ante, § 91 to § 96. * Ante, § 91, 92, 94, 95.
® Co. Lit. 79 b, Harg. n. 44; ante, § 96.
© Ante, § 79, 80, 81, 86.
14%
162 CONFLICT OF LAWS. [ca. 1.

by the subsequent marriage of their parents, they will by such
subsequent marriage (perhaps in any country, but at all events)
in the same country, become legitimate, so that. this character of
legitimacy will be recognized in every other country. If illegit-
imate there, the same character will belong to them in every
other country.)

§ 106. (7.) No nation being under any obligation to yield up
its own laws in regard to its own subjects, to the laws of other
nations, it will not suffer its own subjects to evade the operation
of its own fundamental policy or laws, or to commit frauds in
violation of them, by any acts or contracts made with that design
in a foreign country; and it will jadge for itself, how far it will
adopt, and how far it will reject, any such acts or contracts.
Hence the acts of prodigals, of minors, of idiots, of lunatics, and
of married women, escaping into foreign countries, are not to be
deemed as, of course, absolutely obligatory, even if sanctioned by
the foreign law, unless the laws of their own country adopt such .
foreign law, as a rule to govern in such cases. Hence, too, a
person born before wedlock, who in the country of his birth is
deemed illegitimate, may not, by a subsequent marriage of his
parents in another country, by whose laws such a marriage would
make him legitimate, cease to be illegitimate in the country of

1 Ante, § 87, 87 a; Munro v. Saunders, 6 Bligh, R. 468.

2 An apt illustration of this rule may be found in the present law of France.
By that law,.a marriage contracted in a foreign country between Frenchmen, or
a Frenchman and a stranger, is valid, if celebrated according to the forms used
in that country, provided, it is preceded by a proper publication of banns, and
the Frenchman does not contravene the other provisions of the French law.
Upon this law Toullier remarks, that the conditions, required to be complied with,
are those of the code respecting the contract of marriage; for as the laws re-
specting the person follow a Frenchman everywhere, it results, that even in a
foreign country he is held to conform to the French laws relative to the age of
the contracting parties, their family, and the impediments to marriage. 1 Toul-
lier, Droit Civil Francois, art. 575, p. 484. So that French minors, who are in-
capable of contracting a marriage in France, are disabled everywhere, even
though the marriage would be good by the law of the place where the marriage
is celebrated. The English and American courts would: hold such a marriage
good. Code Civil, art. 144, 148,170; Merlin, Répert. tit. Loi, § 6, n.1. See
also, 2 Kent, Comm. Lect. 26, p. 93, note, 3d edition. The doctrine of France,
in this respect, is but an illustration of the general rule, prescribed by the Civil
Code of France, (art. 8,) that the laws respecting the state and condition of
Frenchmen govern them, even when resident in a foreign country. Ante, § 54.
§ 105 a, 106.] MARRIAGE, 163

his birth. Hence, also, if a marriage is by the laws of a coun-
try indissoluble, when once contracted between its own subjects,
they may not, by a mere removal into another country, at least
without a change of domicil, be deemed capable of contracting a
new marriage after a divares, lawful by the law of the place to
which they have removed? In short, every nation, in these and
the like cases, will govern itself by such rules and principles as
are best adapted in its own judgment to subserve its own sub-
stantial interests, and to uphold its own institutions, as well as
to promote a liberal intercourse, and a spirit of confidence and
reciprocal comity with all other nations. But this subject will
be more fully considered in the succeeding chapters.

CHAPTER V.

MARRIAGE.

[*§ 107. The general subject of marriage to be considered.

§ 108. Marriage is a contract, and something more.

§ 109-112. Lord Robertson’s exposition of the relation.

§.112a. Discussion of the nature of the relation by the English law.

§ 113. The general rule is that the validity of marriage depends upon the law of the
place of solemnization.

§ 113. The exceptions to the rule are cases of polygamy and:incest, and those. against
public policy.

§114, These exceptions are founded upon religion and state policy..

§ 14a. What is incest each nation must decide for itself.

§ 1148. Great contrariety'of opinion among different writers and nations:.

§.114c. The English courts declare marriages incestuous by their law void, wherever
celebrated, so far as concerns English subjects.

§114d. The rule as declared by the House of Lords.

§115. In America the rule is less stringent, especially as to affinity...

116. By what law shall incest be defined ?

§116a, The local law of incest not evaded by casual marriage abroad.
- §117. Confusion resulting from diversity of laws as to. marriage.

§ 118. Marriages in foreign countries rendered valid by law of domicil.

§ 119. All such marriages valid, if made with reference to law of domicil.

1 Ante, § 79, 87,87 a, § 105.a.

* See Rex v. Lolley, 1 Russ..& Ryan’s Cases, 237; Tovey v. Lindsay, 1 Dow,
R. 124; Beazley v. Beazley, 3 Hagg. Eccl. R. 639; McCarthy v. De, Caix, 1831,
2 Russ. & Mylne, R. 620., But see Warrender v. Warrender, 9 Bligh, R. 89;
post, § 215 to 231.

”
164 CONFLICT OF LAWS. [cu. v.

§ 120. ‘English subjects carry their own laws of marriage into Pagan and other
countries.

§ 121. Statement of some difficulties arising on this subject.

§ 122, Always valid if celebrated according to law of place.

§ 1224. Opinion of John Voet against marriages otherwise solemnized.

§ 1226, The solemnities to be according to law of the place.

§ 123. Marriages celebrated abroad to evade law of domicil often questioned.

§ 123a. Such marriages valid in England and America.

§ 123. This exception to general rule recognized on grounds of policy.

§ 124. Distinction between the English and American rule upon the question. «i,

§ 124a. Further discussion of the question. :

§ 1246. General summary of the law upon the subject. =

§ 107. Havine treated of the capacity and incapacity of per-
sons, as affected by foreign law, and especially in relation to their
capacity or incapacity to contract marriage in a foreign country, -
we shall next proceed to consider more fully the nature and effect
of the relation of marriage contracted by and between persons,
who are admitted to be sui juris, and to possess competent
capacity everywhere.” We shall then discuss the manner in which
that relation may be dissolved, and the effect of such dissolution.

§ 108. Marriage is treated by all civilized nations as a peculiar
and favored contract.2 It is in its origin a contract of natural
law.* It may exist between two individuals of different sexes,
although no third person existed in the world, as happened in the
case of the common ancestors of mankind. It is the parent and
not the child of society; principium urbis et quasi seminarium
republice. In civil society it becomes a civil contract regulated
and prescribed by law, and endowed with civil consequences. In
many civilized countries, acting under a sense of the force of
sacred obligations, it has had the sanctions of religion superadded.
It then becomes a religious, as well as a natural and civil con-
tract; for it is a great mistake to suppose, that because it is the

1 Ante, § 79 to § 90.

* On this subject consult 1 Burge, Com. on Col. and For. Law, P. 1, ch. 53 §1,
2, 8, p. 185 to p. 201.

® See Piers v. Piers, 2 House of Lords Cases, 331.

* [have throughout treated marriage as a contract in the common sense of the
word, because this is the light in which it is ordinarily viewed by jurists, domestic
as well as foreign. But it appears to me to be something more than a mere con-
tract. It is rather to be deemed an institution of society, founded upon the con-
sent and contract of the parties; and in this view it has some peculiarities in its

nature, character, operation, and extent of obligation, different from what belong
to ordinary contracts.
§107+110.] MARRIAGE, 165

one, therefore it may not likewise be the other.1 The common
law of England (and the like law exists in America) considers
marriage in no other light than as a civil contract. © The holiness
of the matrimonial state is left entirely to ecclesiastical and re-
ligious scrutiny.? In the Catholic countries, and in some of the
Protestant countries, of Europe, it is treated as a sacrament.®

§ 109. There are some remarks on this subject, made by a dis-
tinguished Scottish judge, so striking, that they deserve to be
quoted at large.* ‘Marriage being entirely a personal, consen-
sual contract, it may be thought that the lex loci must be re-
sorted to in expounding every question, that arises relative to it.
But it will be observed, that marriage is a contract sui generis,
and differing, in some respects, from all other contracts; so that
the rules of law, which are applicabl@ in expounding and enforcing
other contracts, may not apply to this. The contract of marriage
is the most important of all human transactions. It is the very
basis of the whole fabric of civilized society. The status of mar-
riage is juris gentium, and the foundation of it, like that of all
other contracts, rests on the consent of parties. But it differs
from other contracts in this, that the rights, obligations, or duties,
arising from it, are not left entirely to be regulated by the agree-
ments of parties, but are, to a certain extent, matters of municipal
regulation, over which the parties have no control, by any dec-
laration of their will. It confers the status of legitimacy on chil-
dren born in wedlock, with all the consequential rights, duties,
and privileges, thence arising; it. gives rise to the relations of
consanguinity and affinity; in short, it pervades the whole system
of civil society. Unlike other contracts, it cannot, in general,
amongst civilized nations, be dissolved by mutual consent; and
it subsists in full force, even although one of the parties should be
forever rendered incapable, as in the case of incurable insanity,
or the like, from performing his part of the mutual contract.

§ 110. “No wonder, that the rights, duties, and obligations,
arising from so important a contract, should not be left to the
discretion or caprice of the contracting parties, but should be

1 Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 63 ; Lindo v. Belisario, 1 Hagg.
Consist. R.°231.

? 1 Black. Com. 483.
. * Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 63 to 65.

* Lord Robertson, in Fergusson on Mar. and Divorce, 397 to 399.
166 CONFLICT OF LAWS. [cH. v.

regulated, in many important particulars, by the laws of every
civilized country. And such laws must be considered as forming
a most essential part of the public law of the country. As-to
the constitution of the marriage, as it is merely a personal, con-
sensual contract, it must be valid everywhere, if celebrated ac-
cording to the lex loci; but, with regard to the rights, duties,
and obligations, thence arising, the law of the domicil must be

looked to. It must be admitted, that in every country, the laws —-

relative to divorce are considered as of the utmost importance,
as public laws affecting the dearest interest of society.

§ 111. “It is said, that, in every contract the parties bind them-
selves, not only to what is expressly stipulated, but also to what

is implied in the nature of the contract; and that these stipula-....

tions, whether express or infplied, are not affected by any sub-
‘sequent change of domicil. This may be true in the general
case, but, as already noticed, marriage is a contract sui generis,
and the rights, duties, and obligations which arise out of it, are
matters of so much importance to the well-being of the state,
that they are regulated, not by the private contract, but by the
public laws of the state, which are imperative on all, who are
domicled within its territory. If a man in this country were to
confine his wife in an iron cage, or to beat her with a rod of the
thickness of the judge’s finger, would it be a justification in any
court, to allege that these were powers which the law of England
conferred on a husband, and that he was entitled to the ex-
ercise of them,.because his marriage had been celebrated in that
country ?

§ 112. “In short, although a marriage, which is contracted
according to the lex loci, will be valid all the world over, and
although many of the obligations incident to it are left to be
regulated solely by the agreement of the parties; yet many of
the rights, duties, and obligations, arising from it, are so im-
portant to the best interests of morality and good government,
‘that the parties have no control over them; but they are regu-
lated and enforced by the public law, which } is imperative on all,

who are domiciled within its jurisdiction, and which cannot be
controlled or affected by the circumstance, that the marriage was
celebrated in a-country where the law is different. In expound-
ing or enforcing a contract entered into in a foreign country, and
executed according to the laws of that country, regard will be
§110+1124.] MARRIAGE. 167

paid to the dex loci, as the contract is evidence that the parties
had in view the law of the country, and meant to be bound by it.
But a party, who is domiciled here, cannot be permitted to import
into this country a law peculiar to his own case, and which is in
opposition to those great and important public laws which our
legislature has held to be essentially connected with the best
interests of society.’ !

[* §112¢. Marriage is unquestionably a state, or relation, de-
pending for its existence upon the fact of parties competent to
contract the relation, and their legally voluntary present consent
to do so; with such formalities as the law of the place requires
for its valid solemnization. These solemnities may be either
civil, or religious, or none at all. In America no religious so-
lemnities are held indispensable. In most Catholic, and especially
Roman Catholic countries, marriage is regarded as a sacrament,
and its solemnization must therefore be had in the presence of
a priest of the Church. That was the law of England, so long
as she maintained an unquestioned claim of national membership
in the one Catholic and Apostolic Church. And the same doc-
trine is still maintained by those members of the English Church,
who adhere to its Catholicity. And the English nation adhered
to the doctrine of the necessity of priestly offices in the solemniza-
tion of marriage, long after the separation of the Roman Church
from the English, by what the English Church calls the Roman
schism or usurpation, and until a comparatively recent period?
But quite recently the British Parliament has degraded the sol-
emnization of that sacred relation to the level of a mere civil
contract, allowing its solemnization before the civil magistrate,
and practically abandoned the former claim of its indissolubil-
jity.2 We have no purpose, or desire, to discuss the nature of
the bond, or state, or relation, created by marriage; our space
would not allow of doing that here, understandingly. We may
be pardoned for intimating the painful regret we have felt, in
.! Lord Robertson, in Fergusson on Mar. and Divorce, 397 to 399.
 [*# Beamish v. Beamish, 8 Jur. N. S. 770; 9 Ho. Ids. Cas. 274 ; Reg. v. Millis,
10 Cl. & Fin. 534. The rule as declared by the House of Lords in the case first
cited, is, “It must be taken as established law, since the decision in Reg. v. Millis,
that there never could have been a valid marriage in England before the Refor-
mation without the presence of a priest episcopally ordained ; or afterwards, with-
out the presence of a priest or deacon.” See also Du Moulin v. Druitt, 13 Irish
‘Com. Law Rep. 212.

* Warrender v. Warrender, 2 Cl. & Fine 488; 8. C. 9 Bligh, 89, 127.]
168 CONFLICT OF LAWS. [cu. v.

common with many others, at the apparent levity with which the
sacredness of the fundamental relation of society is handled, and
discussed, by too many of the American legislatures, courts, and
text writers. ]

-§ 118. The general principle certainly is, that between persons,
sui juris, marriage is to be decided by the law of the place where
it is celebrated.! If valid there, it is valid everywhere. It has 4
legal ubiquity of obligation. If invalid there, it is equally in-
valid everywhere. The grounds of this doctrine we shall have
occasion presently to consider.2 It is only necessary here to state
that it has received the most deliberate sanction of the English
and American courts.4

§ 113 a, The most prominent, if not the only known excep-
tions to the rule, are those marriages involving polygamy and
incest ; those positively prohibited by the public law of a country
from motives of policy; and those celebrated in foreign countries
by subjects, entitling themselves under special circumstances to
the benefit of the laws of their own country. Cases, illustrative
of each of these exceptions, have been already alluded to.§

§ 114. In respect to the first exception, that of marriages, in-
volving polygamy and incest, Christianity is understood to pro-
hibit polygamy and incest; and therefore no Christian country
would recognize polygamy, or incestuous marriages.’ But when

* Ante, § 80, 81. See Kent v. Burgess, 11 Simons, R. 361; Patterson v.
Gaines, 6 How. U. S. R. 550.

* Ryan v. Ryan, 2 Phill. Eccl. R. 332; Herbert v. Herbert, 3 Phill. Eccl. R.
58; Dalrymple v. Dalrymple, 2 Hagg. Consist. R.54; Ruding v. Smith, 2 Hagg.
Consist. R. 390, 391; Scrimshire v. Scrimshire, 2 Hagg. Consist. R. 395 ; Munro
zy. Saunders, 6 Bligh, R. 473, 474; Ilderton v. Ilderton, 2 H. Bl. 145 ; Middleton
v. Janverin, 2 Hagg. R. 437 ; Lacon v. Higgins, 3 Starkie, R. 178 ; 2 Kent, Comm,
Lect. 26, p. 91, 92, 93, 8d edit.; Medway v. Needham, 16 Mass. R. 157; Put-
nam v. Putnam, 8 Pick. R. 433; West Cambridge v. Lexington, 1 Pick. R. 506;
1 Burge, Comm. on Col. and For. Law, ch. 5, § 3, p- 184 to p. 201; 2 Kaims on
Eq., B. 3, ch. 8, § 1; Kent v. Burgess, 11 Simons, R. 361.

* Post, § 121. See also ante, § 80.

* See cases cited supra, § 118, note 1; Sutton v. Warren, 10 Metc. 451; Phil-
‘lips v. Gregg, 10 Watts, 158; Morgan v. McGhee, 5 Humphreys, R. 13; State v.
Patterson, 2 Ired. 3846 ; post, § 122 to § 124.

° 1 Burge, Comm. on Col. and For. Law, ch. 5, § 3, p. 188.

® Ante, § 89.

* Paley on Moral Phil. B. 3, ch. 6; 2 Kent, Comm. Lect. 26, p- 81, 3d edit.; 1
BI. Comm. 436. See Grotius, B. 2, ch. 5,§ 9; Greenwood v. Curtis, 6 Mass. R.
378 ; Sutton v. Warren, 10 Metc. 451; Sneed v. Ewing, 5 J. J. Marsh, 460; 1
§ 1120-114] | MARRIAGE. 169

-we speak of incestuous marriages, care must be taken to confine
the doctrine to such cases as by the general consent of all Chris-
ftendom are deemed incestuous. It is difficult to ascertain exactly
the point at whi _the law of nature, or the authority of Christian-
ity ceases to prohibit marriages between kindred; and: Christian
nations are by no means generally agreed on this subject.1 In
most of the countries of Europe, in which the canon law has had
any authority or influence, marriages are prohibited between near
relations by blood, or by marriage, or in other words, by con-
sanguinity, or by affinity; and the canon and the common law
seem to have made no distinction on this point between consan-
guinity, or relation by blood, and affinity, or relation by mar-
riage, although there certainly is a very material difference in the
,eases.2- Marriages between relations by blood, in the lineal as-
ending or descending line, are universally held by the common
law, the canon law, and the civil law, to be unnatural and un-
lawful. So are marriages between brother and sister in the col-

Burge, Comm. on Col. and For. Law, P. 1, ch. 5, § 3, p. 188, 189, 190; Hube-
rus, Lib. 1, tit. 8, § 8. See Swift v. Kelly, 3. Knapp, R. 258, 279; Wall v. Wil-
Jiamson, 8 Ala. /R. 48. ;

1 Grotius, B. 2, ch. 5, § 12, 13, 14. See 1 Brown, Civ. Law, 61 to 65; 1
‘Burge, Comm. on Col. and For. Law, ch. 5, § 3, p. 188. °

4 2 Kent, Comm. Lect. 26, p. 81, 82, 3d edit.; 1 Bl. Comm. 434. See on this
subject, The London Quarterly Law Magazine for May, 1839, Vol. 21, p. 371 to
382, The London Monthly Law Magazine for May, 1840, Vol. 7, p. 330, 332, and
the London Legal Observer for January, 1840..

+ Wightman. v. Wightman, 4 Johns. Ch. R. 343; 2 Kent, Comm. Lect. 26,
p. 81 to p. 84, 3d edit. ; Harrison v. Burwell, Vaughan, R. 206 ;.8. C. 2 Vent. R.
9; Grotius, B. 2, ch. 5,§ 12, n. 1,2; Id.§ 13, n.4; Id. §14,n.1; 2 Heinec.
Elem. Juris. Natur. B. 2, ch. 2, § 40, by Turnbull; 1 Burge, Comment. on Col.
and For. Law, P. 1, ch. 5, § 1, p. 137, 146,147; Com. Dig. Baron and Feme, (B)
4; 2 Inst. 693.— Lord Brougham, in Warrender v. Warrender, (9 Bligh, R.
112, .113,) speaking on this subject, said; ‘“ But this rule extends, I apprehend,
no further than to the ascertaining of the validity of the contract, and the mean-
ing of the parties, that is, the existence of.the contract and its construction. If,
indeed, there go two things under one and the same name in different countries ;
ifthat which is called marriage is of a different nature in each; there may be
some room for holding, that we are to consider the thing, to which the parties
have bound themselves, according to its legal acceptation in the country, where
the obligation was contracted. But marriage is one and the same thing substan-
cially all the Christian world over. Our whole law of marriage assumes this ;
and it is important to observe, that we regard as wholly a different thing, a dif-
‘ferent status, from Turkish or other marriages among infidel nations, because we
¢learly never should recognize the plurality of, wives, and consequent validity of

CONFL. 15
170 CONFLICT OF LAWS. [cH. v.

lateral line, whether of the whole blood, or of the half-blood ;}
and, indeed, such marriages seem repugnant to the first principles
of social order and morality. It has been well remarked by Mr.
Chancellor Kent, that it will be found difficult to carry the pro-
hibition further in the collateral line than the first degree, (that
is, beyond brother and sister,) unless where the legislature have
expressly provided such a prohibition.? Grotius has expressed an

second marriages standing the first, which second marriages the laws of those
‘countries authorize and validate. This cannot be put upon any rational ground,
except our holding the infidel marriage to be something different from the Chris-
tian, and our also holding Christian marriage to be the same everywhere. There-
fore, all that the courts of one country have to determine, is, whether or not the
thing called marriage, that known relation of persons, that relation, which those
courts are acquainted with, and know how to deal with, has been validly con-
tracted in the other country, where the parties professed to bind themselves. | If
the question is answered in the affirmative, a marriage has been had ; the rela-
tion has been constituted ; and those courts will deal with the rights of the par-
ties under it, according to the principles of the municipal law which they admin-
ister.” See also, Id. 114.

19 Kent, Comm. Lect. 26, p. 83, 84, 3d edit. See also, Butler v. Gastrill,
Gilb. Eq. R. 156; 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 6, § 1, p.
127; Id. § 3, p. 188; Grotius, de Jure Belli, Lib. 2, ch. 5, § 12, n. 2; Id. § 13, n.
3 ton. 7.

* Wightman v. Wightman, 4 Johns. Ch. R. 343. The whole remarks of the
learned Chancellor on this occasion deserve to be cited at large. “Besides the
case of lunacy, now before me, I, have, hypothetically, mentioned the case of a
marriage between persons in the direct lineal line of consanguinity, as clearly
unlawful by the law of the land, independent of any church canon, or of any stat-
ute prohibition. That such a marriage is criminal and void by a law of Nature,
is a point universally conceded: And, by the law of Nature, I understand those fit
and just rules of conduct which the Creator has prescribed to man, as a depend-
ent and social being ; and which are to be ascertained from the deductions of right
reason, though they may be more precisely known, and more explicitly declared
by Divine Revelation. There is one other case, in which the marriage would be
equally void, causa consanguinitatis, and that is the case of brother and sister;
and since it naturally arises, in the consideration of this subject, I will venture to
add a few incidental observations. Iam aware, that when we leave the lineal
line, and come to the relation by blood or affinity, in the collateral line, it is not
so easy to ascertain the exact point at which the Natural Law has ceased to dis-
countenance the union. Though there may be some difference in the theories of
different writers on the law of Nature, in regard to this subject, yet the general
current of*authority, and the practice of civilized nations, and certainly of the
whole Christian world, have condemned the connection in the second case, which
has been supposed, as grossly indecent, immoral, and incestuous, and inimical to
the purity and happiness of families, and as forbidden by the law of Nature.”
(Grotius, de Jure, &c. lib. 2, ch. 5, § 13; Puffend. de Jure, Gent. lib. 6, ¢. 1,
§ 114] MARRIAGE. 171

equally strong opinion upon the intrinsic difficulty of the subject.
De conjugtis eorum, qui sangwine aut affinitate satis gravis est

§ 34; Id. de Off. Hom. lib. 2, c. 2, § 8; Heinece. Oper. tom. 8, pars 2, p. 203;
Taylor’s Elem. Civ. Law, 326 ; Monies, Esp. des Loix, liv. 26, c. 14; Paley’s
Moral Philosophy, B. 3, p. 3, c. 5.) We, accordingly, find such senitieatiaa exe
pressly prohibited in different codes. (Dig. lib. 23, tit. 2, 1. 18, lib. 28, tit. 2, 1.
“14, § 2, lib. 45, tit. 1, 1. 35,§1; Just. Inst. lib. 1, tit. 10; De Nuptiis, Vinnius,
h. t.; Heinece. ubi supra, Code Civile de France, u. 161, 162, 163, 164; Inst. of
Menu, by Sir William Jones, c. 3, § 5; Staunton, Ta-Tsing-Leu-Lee, § 107, 108;
Sale’s Coran, c. 4; Marsden’s Sumatra, p. 194, 221.) And whatever may have
been the practice of some ancient nations, originating, as Montesquieu observes,
in the madness of superstition, the objection to such marriages is, undoubtedly,
founded in reason and nature. It grows out of the institutions of families, and
the rights and duties, habits and affections, flowing from that relation, and which
may justly be considered as part of the law of our nature, as rational and social
beings. Marriages among such near relations would not only lead to domestic
licentiousness, but, by blending in one object duties and feelings incompatible
with each other, would perplex and confound the duties, habits, and affections
proceeding from the family state, impair the perception, and corrupt the purity
of moral taste, and do violence to the moral sentiments of mankind. Indeed, we
might infer the sense of mankind, and the dictates of reason and nature, from the
language of horror and detestation, in which such incestuous connections have
been reprobated and condemned in all ages. (Plato de Leg. lib. 8; Cic. Orat.
pro Mil. 27; Hermion. in Eurip. Androm. v. 175 ; Byblis. Ovid. Met. lib. 9 ; Ta-
cit. Ann. lib. 12,c.4; Vel. Paterc. Aist. lib. 2, ch. 45; Corn. Nep. Excel. Imp.
Prefat.) The general usage of mankind is sufficient to settle the question, if it
were possible to have any doubt on the subject; and it must have proceeded from
some strong uniform and natural principle. Prohibitions of the Natural Law are
of ‘absolute, uniform, and universal obligation. They become rules of Common
Law, which is founded in the common reason and acknowledged duty of mankind,
sanctioned by immemorial usage, and, as such, are clearly binding. To this ex-
tent, then, I apprehend it to be within the power and within the duty of this
court, to enforce the prohibition. Such marriages should be declared void, as
contra bonos mores. But as to the other collateral degrees, beyond brother and
sister, I should incline to the intimation of the judges in Harrison v.. Burwell,
(Vaugh. R. 206; S. C. 2 Vent. 9,) that as we have no statute on the subject, and
no train of common law decisions, independent of any statute authority, the Le-
vitical degrees are not binding, as a rule of municipal obedience. Marriages out
of the lineal line, and in the collateral line, beyond the degree of brothers and
sisters, could not well be declared void, as against the first principles of society.
The laws or usages of all the nations, to whom I have referred, do, indeed, extend
the prohibition to remoter degrees ; but this is stepping out of the family circle ;
and I cannot put the prohibition on any other ground than positive institution.
There is a great diversity of usage on this subject. Neque teneo, neque dicta re-
fello. The limitation must be left, until the legislature thinks proper to make
‘some provision in the case, to the injunctions of religion, and to the control of man-
ners and opinion.” See also 2 Kent, Comm. Lect. 26, p. 83, 84, 3d edit. ; 1 Burge,
Comment. on Col. and For. Law, p. 1, ch. 5, § 1, p. 188. ;
172 CONFLICT OF LAWS. [cH. V.

questio, et non raro magnis motibus agitata. Nam causas certas
ac naturales, cur talia conjugia; ita ut legibus aut moribus vetantur,
illicita sint, assignare, qui volwerit, experiendo discet, quam id sit
difficile, imo prestari non possit.1

[*§114a. One of the propositions of the preceding section
has been very pointedly condemned by the learned law lords, in,
the recent English case of Brook v. Brook.? Lord Campbell,
Chancellor, here said: “The legislature of England, whether
wisely or not; considers the marriage of a man with the sister
of his deceased wife, contrary to God’s law, and of bad exam-
ple.’ And Lord St.-Leorard’s said in the same case, we do
not admit any foreign law to be of force here, when it is op-
posed to God’s law, according to our view of that law,’”*® and
after alluding to the origin of the English stat. 25 Hen. VIII.
and others, as declaring that no man has power to dispense with
God’s law, &c., adds, “It appears from these acts, that the mar-
riage in question is, by the law of England, declared to be against
God’s law, and to be detested by God, plainly because, although
there is only affinity between the ‘parties, it was deemed, like cases
of consanguinity, incestuous. We are not at liberty to consider
whether the marriage is contrary to God’s law, and detested by
God, for our law has already declared such to be the fact, and we
must obey the law.’ Much to the same purport might be quoted
from other members of the court, and it seems to us to be placing
the law upon an entirely satisfactory basis, when each separate na-
tion claims to determine for itself what shall be regarded as incest or
immorality. That is contra bonos mores, which in any particular
country, and among the people of that country, is of such evil
example, as to shock the general public sentiment. And it is
scarcely competent to measure morality and decency, by com-
parison of ‘public opinion throughout the world, or even the Chris-
tian portion of it. Lord Wensleydale said, “I must think that
so able a man as Mr. Justice Story could never have meant to
lay down the proposition, that where any country prohibited a
marriage on account of incest, it must be of such a quality of
incest as to be of that character in universal Christendom. If he
really did mean to state such a proposition I must say I think it

} Grotius, de Jure Belli, Lib. 2, ch. 5, § 12.

(* * 7 Jur. N.S, 422; 3 Sm. & Gif. 481, 518, by Cresswell, J.; S.C. 9 Ho.
Lads. Cas. 193.
* Thid.]
§ 114-1146] MARRIAGE. 173

cannot be supported... .. This sort of marriage is forbidden
in this country on the ground of its being against the law of God
as deduced from Holy Scripture.”

§ 1140. It is unquestionably true that the ‘public sentiment
upon matters of this kind depends very much upon the public
teaching and consequent practice. If the law in any particular
country were made to exclude all marriages, as incestuous, where
any consanguinity could be traced between the parties, ever so
reniote, it would very soon come to be regarded as a wholesome
and necessary regulation. And on the other hand, if the rule
were very much more relaxed than it is, so as not to exclude any
relation by affinity merely, it would in time come to be regarded,
as all very well. But when the matter is attempted to be con-
trolled by the written law, as contained in Holy Scripture, each
people and nation must be allowed to decide for itself, what this
written canon fairly imports. Any other rule upon matters so
purely of municipal control would involve too manifest a de-
parture from the practice, and universally recognized rule of law
upon analogous questions. |

-§ 11452. At all events, in other cases of consanguinity not in
the lineal line, or in the first degree of the collateral line, there
is much room for diversity of opinion and judgment among
jurists, and of practice among nations. Grotius has taken notice
of this distinction, and says: Que manifesta expressio ostendere
videtur discrimen, quod est inter hos et alios remotiores gradus.+
Thus, he says, that it is forbidden to marry an aunt on the father’s
side; but not the daughter of a brother, who is of the same de-
gree. Nam ducere amitam agnatam vetitum est. At filiam fra-
tris, qui par est gradus, ducere vetitum non est.2, In England it

‘has been declared by statute, that all persons may lawfully marry,
but such as are prohibited by God’s law, that is, such as are
within the Levitical degrees. Under this general provision, it

1 Grotius, de Jure Belli, B. 2, ch. 5, § 14, n. 1.

2 Thid.

* Com. Dig. Baron and Feme, B. 2, B. 4; 1 Black. Comm. 435 ; Leviticus, ch.
18. Mr. Burge states the prohibitions in Boland arising from the Levitical law
in the following terms. “ Cognatio, consanguinity, or relationship by blood, and
affinitas, affinity, or relationship by marriage, constitute impediments to a lawful
marriage. Marriages between parties related by blood or by affinity, in the di-
rect, ascending or descending line, in infinitum, are prohibited by the civil and

canon law. This prohibition prevents that confusion of civil duties, which would
15*
174 CONFLICT OF LAWS. [cH. v.

has been held that a marriage between an uncle and a niece by
blood is incestuous, (it being in the third degree,) upon the
ground that it is against the law of God, and sound morals; that.
it would tend to endless confusion ; and that the sanctity of pri-
vate life would be polluted, and the proper freedom of intercourse
in families would be destroyed, if such practices were not dis-
couraged in the strongest manner. Yet Grotius not only deems
such a marriage perfectly unexceptionable; but adds, that there
are examples of it among the Hebrews. [And in America, such
a marriage has been held not absolutely void, but only voidable
during the lives of the parties. After the death of either, its
validity cannot be called in question.?] But marriages between
first cousins by blood or cousins-german being in the fourth de-
gree, are, according to English jurisprudence, lawful; so that the

be the necessary results of such marriages. The codes of Europe concur in this
prohibition. In the collateral line, the prohibition is confined to those who stand
in certain degrees of consanguinity or affinity to each other. In the computation
of these degrees there is a difference between the civil and canon law. Thus,
those, who, according to the civil law, are in the second degree, are placed by the
canon law in the first degree ; and those who are placed by the civil law in the
‘fourth degree, are by the canon law placed in the second degree.- The degrees
prohibited by the Levitical law are all with the fourth degree of consanguinity,
according to the computation of the civil law; all collaterals, therefore, in that
degree, or beyond it, may marry. First cousins are in the fourth degree by the
civil law, and, therefore, may marry. Nephew and great aunt, or niece and
-great uncle, are also in the fourth degree and may intermarry ; and though | aman
may not marry his grandmother, it is certainly true that he may marry her sis-
ter. All these fourth degrees in the civil law are second degrees in the canon
law. By the civil law, persons in the fourth degree might intermarry with each
other. Such is the law of England, Scotland, Ireland, and the Coloniés.” 1 Burge,
Comment. on Col. and For. Law, P. 1, ch. 5, § 1, p. 146,147. There seems to be
a mistake of the press in one part of the passage of Mr. Burge’s remarks, as to
the difference between the civil law and the canon law. The latter counted the
degrees only up to the common ancestor ; the former also down to the Propositus.
So, that the first degree in the canon law was the second in the civil law, and the
second in the canon law was the fourth in the civil law. 2 Black. Comm. 224;
Ersk. Instit. B. 1, tit. 6, § 8; 2 Burn, Eccles, Law, tit. Marriage, I. See also the
London Monthly Law Magazine for Feb. 1840, Vol. 7, p. 44 to p. 46. Mr. Burge’s
text reverses the statement. 1 Burge, Commeane. on Col. and For. Law, P. 1,
ch. 5, § 1, p. 147.
* Burgess v. Burgess, 1 Hagg. Consist. R. 884, 386; 1 Bl. Comm. 435; Butler
v. Gastrill, Gilb. Eq. R. 156, 158; 2 Kent, Gorn: Lack 26, p. 84, 3d adit. ; Com.
Dig. Baron and Feme, B. 4.
1 Grotius, De Jure Belli, B. 2, ch. 5, § 14, n. 1.
3 Bonham v. Badgley, 2 Gilman, 622.
§1144-114 d.] MARRIAGE. 175

prohibitions in the collateral line ‘stop at the third degree.1 The
same rule, as to the marriage of first cousins, has been adopted
by the Protestant countries of Europe. But the canon law pro-
hibited such marriagés, although a dispensation might be obtained
thereof? [The same rule has been applied to the marriage of a
man and his mother’s sister. Such a marriage is not incestuous
by the law of nature, nor was it void by the law of England,
before the stat. 6 Will. IV. c. 54, but only voidable by process
in the Ecclesiastical Court.2 Incestuous marriages. by the Eng-
lish law are not, however, deemed by the common law absolutely
void; but they are voidable only during the lives of the parties;
and if not so avoided during their lives, they are deemed valid
to all intents and purposes.+

[* §114c¢. The English courts, uader the present siointa, cer-
tainly adhere very unflinchingly to the rule of declaring all mar-
riages, within the prohibited degrees of affinity, incestuous and
void. And they will not allow even a denizen, or naturalized in-
habitant, to contract such a marriage by a temporary return to
his own country, where the marriage is valid and is celebrated
between himself and a sister of his deceased wife, who was at the
time domiciled in that country.é \

§ 114d. And even under the former English statute,® which
provided that the marriage should not be declared void, after the
decease of both or either of the parties, it was held nevertheless
illegal, and void, for. purposes of succession to real estate in Scot-
land.’ The Jaw is here declared, by the House of Lords, that such
a marriage, although no proceedings had been taken in the Eccle-

1 1 Black. Comm. 435; Burn, Eccles. Law, tit. Marriage, I.; Harrison v. Bur-
well, Vaughan,-R. 219; S. C. 2 Vertt. 9; 2Instit. 684.

? Burn, Eccles. Law, tit. Marriage, I.; 1 Burge, Comm. on Col. and: For. Law,
P.1, ch. 5, § 1, p. 147, 148.

a Sutton v. Warren, 10 Mete. 451. See Poynter on Marriage, 86,120; Re-
gina v. Wye, 7 Ad. & Ell. 771.
"41 Black. Comm. 434, 435; Regina v. Wye, ’7 Ad. & Ell. 761; S.C. 8 Nev.
& Per. 18; Sutton v. Warren, 10 Mete. 451. By arecent act of Parliament Act
of 5th and 6th William Fourth, ch. 54. (1835,) all future incestuous. marriages
.are declared to be utterly void, and not merely voidable. [And see the late case
of Regina v. Chadwick, 11 Ad, & Ell. N.S, 173; S. C. 2 Cox, C. C. 381.]
[© Mette v. Mette, 28 L. J. Prob. 117; 1 Sw. & Tr. 416.

*5 &6 Wm. IV.c. 54.

" Fenton v. Livingstone, 5 Jur. N. S, 11838. See The Sussex Peerage Case,
11 Cl. & Fin. 85.
176 CONFLICT OF LAWS. ; «[cH. Vv.

siastical courts to declare it void, was nevertheless, by the laws
of England unlawful, and not a valid marriage, and although by
force of the English statute, the issue after the decease of one or
both the parents must be held legitimate in that country, this
did not’*Mmake the son legitimate in Scotland, where such a mar-
riage is assumed to be incestuous, and to contract it a capital
offence. The rule that the Jez loci contractus of a marriage estab-
lishes its validity requires this qualification, that where the law
of a country forbids marriage under any particular circumstances,
the prohibition follows the subjects of that country wherever they
may go. The comity of nations does not require that a nation
should recognize as valid every marriage which is valid lege loci
contractus. Each nation has the right to define and prohibit in-
cest. Lord Brougham here said, “If the lex loci contractus
were to prevail absolutely, and a marriage, good where it took
place and where the party claiming it was born, were to make
that party inheritable in Scotland, then uncle and niece marrying
in a foreign country with Papal dispensation, their issue might
claim to take a Scotch estate and Scotch honors, although had
the marriage been contracted in Scotland, the parties might have
been capitally convicted.”

§114¢. It seems to make no difference in regard to reck-
oning the degrees of consanguinity, that one of the parties is
related to the other through an illegitimate tie. The marriage
will be equally incestuous if coming within the prohibited degrees
of consanguinity, as if both chains had been reckoned through '
legitimate descent.

§ 114 f. By the English law the courts had no power until the
recent statute,” to grant divorces whereby the parties should be-
come competent to marry again. By that statute the party, against
whom the decree of divorce is made in the Court of Matrimonial
Causes, has a specified time in which to appeal from such decree
to the House of Lords; and after the expiration of that time and
no appeal taken, or if the appeal has been dismissed, or the de-
cree affirmed, but not sooner, the parties divorced may marry
again, the same as if the prior marriage had been dissolved by
death. It was held that a marriage solemnized with one of the
parties, within the time limited, was absolutely void, and not
merely voidable.*]

? Reg. v. Brighton, 1 B. & S, 447. * 20 & 21 Vic. Ch. 85.
* Chichester v. Mure, 9 Jur. N. S. 779.]
§114d-115.] MARRIAGE. LTT.

§ 115. Hitherto we have ‘been speaking of cases of relation by
consanguinity, between: which and: cases of relation by. affinity,
there’seems to be a clear and just..moral difference. The English.
law, however, has treated both classes of cases as falling within the
same predicament of prohibition by the Levitical law. Hence it
has been there held, that.a marriage between a father-in-law and:
the daughter of his first wife by a former marriage: is incestuous
and unlawful; ' and, indeed,.there seems something repugnant to:
social feelings in such marriages. The prohibition has also been
extended in England to the marriages between a. man and the sis-
ter of his former deceased wife.; but upon what ground of Scrip-
tural authority it has been thought very difficult to affirm.? [The
rule is, however, ‘fully and deliberately settled in that country ;
and the prohibition is extended to an illegitimate daughter, as well

‘1 Blackmore and Thorp v. Briteay 1 a Donniste R, 898, note;'S. €. 2 Phil.
Eccles. R. 359.

? Burn, Eccles. Law, tit. Marriage, I. ee ‘Black. Comm. 434, 435, Christian’ 8,
note (2,) citing Gibson’s Codex, 412 ; Hh v. Hicks, Salk. 548 ; Hall v. Good,
Vaughan, R. 302, 312; Faremouth v Watson, 1 Phill. Ecel. R. 855; Chick ».
Rawsdale, 1 Curteis, R. 34; Com. Dig. Baron and Feme, B. 2, B. 4; 2 Inst. 683;
Bac. Abridg. Marriage, A. Lord Chief Justice Vaashates in daligenites the opin-
ion of the court, in Harrison v. Burwell, (Vaughan, R. 206; 8. C. 2 Vent. R. 9,),
says, that a man is prohibited by the statute 32 Henry 8, [ch. 38,] to marry his
wife's sister. But within the meaning of, Leviticus, (ch. 18, v. 14,) and the con-
stant practice of the commonwealth of the Jews, a man was prohibited to marry
his wife’ 3 sister only during her life ; after he might, So the text is. Vaughan,
R. 241:'S. C. 2 Vent. 17. ‘There seems a discrepancy between what is here said,
and his judgtnent in the subsequent case of Hall v. Good, Vaughan, R. 302, 312,,
820. The opinion of Lord Chief Justice Vaughan, in both cases, and the case of
Butler v. Gastrill, Gilbert, Eq. R. 156, are: full of learning and instruction,, on the,
Thiet of the canonical and, ecclesiastical prohibitions of marriage. Dr. John H.

ivingston, of New Jersey, has written an elaborate dissertation upon the subject
of the marriage of a man with his sister-in-law, (wife’s sister,) which was printed
at New Brunswick, N. J. in 1816. Jt holds the. doctrine, that such marriages are
Scripturally incestuous. The opposite doctrine has been maintained by many able.
writers.. See also, 2:Kent, Comm. Lect. 26, p. 85, 8d edit. note. There are some
very able articles on this subject in the London Quarterly Law Magazine for May,
1839, Vol. 21, p. 371; in the London Legal Observer for January, 1840; and in
the London Monthly Law Magazine for May, 1840. All these articles are. de-
signed to'show, that the most learned writers have differed upon this subject,.and
to-establish, that the doctrine is ill-founded, and ought.to be abolished. Grotius
maintains in strong terms, that there is no foundation for the prohibition. Certé,
canonibus antiquissimis, qui apostolici dicunter, qui duas sorores alteram post al-
teram duxisset aut dSeAqcSer, id est, fratris aut sororis filiam, tantum 4 clero ar-
cetur. Grotius, De Jure Dell B..2, ch. 5, § 14, n. 2
178 CONFLICT OF LAWS. [cH ve

as legitimate daughter of the first wife’s parents.1] In many,
and indeed in most of the American States, a different rule pre-
vails, and marriages bétween a man and the sister of his former
deceased wife are not only deemed in a civil sense lawful ; but are
deemed in a moral, religious, and Christian sense lawful, and ex-
ceedingly praiseworthy. In some few of the States the English
rule is adopted. Upon the continent of Europe most of the Prot-
estant countries adopt the doctrine, that such marriages are law-
ful?

§ 116. It would be a strong point to put, that a marriage, per-
fectly valid between a man and the sister of his former deceased:
wife in New England, should be held invalid in Virginia, or in
England, even though the parties originally belonged to or were
born in the latter country or state. But as to persons not so born
or belonging, it would. be of the most dangerous consequence to
suppose that the courts of either of them would assume the lib-
erty to hold such marriages a nullity, merely because their own
jurisprudence would not, in a local celebration of marriage there-
in, uphold it. This distinction between marriages incestuous
by the law of nature, and such as are incestuous by the positive
code or customary law of a state, has been fully recognized by
one of our most learned American courts. “If a foreign state
allows of marriages incestuous by the law of nature, as between
parent and child, such marriage would not be allowed to have
any validity here. But marriages not naturally unlawful, but
prohibited by the law of one state and not of another, if cele-
brated where they are not prohibited, would be holden valid in a
state where they are not allowed. As in this State, a marriage be-
tween a man and his deceased wife’s sister is lawful ; but it is not

* Regina v. Chadwick, 11 Ad. & Ell. N. S. 178, where the subject is examined
at much length. See also 2 Cox, C. C. 381; Ray v. Sherwood, 1 Curt. 173; 1
Moore, 395.

* This is certainly the law in all the New England States and in New York.
Greenwood v. Curtis, 6 Mass. R. 378, 379. In Virginia, the English rule pre-
vails. Commonwealth v. Perryman, 2 Leigh, R. 717; 2 Kent, Comm. Lect. 36,
p- 85, note (a.) Dr. Jeremy Taylor and Sir William Jones both contend, that
the Levitical degrees do not by any law of God bind Christians to their observa
tion. See London Quart. Law Magazine, Vol. 21, p. 373, 374. In Prussia, Sax-
ony, Hanover, Baden, Mechlenburgh, Hamburg, Denmark, and in most other of
the Protestant states of Europe, the rule prevails, that a man may lawfully marry

the sister of his former wife. Id. p. 376. It is otherwise in Scotland, Ersk.
Inst. B. I, tit. 6, § 9.

eat
§ 115-116 a.] MARRIAGE. 179

so in some States. Such a marriage celebrated here would be
held valid in any other State, and the parties entitled to the bene- ’
fits of the matrimonial contract.” Indeed, in the diversity of
religious opinions in Christian countries, a large space must be al-
lowed for interpretation, as to religious duties, rights, and solem-
nities? In the Catholic countries of continental Europe, there
are many prohibitions of marriage, which are connected with relig-
ious canons and establishments ; and in most countries there are
some positive or customary prohibitions, which involve peculiari-
ties of religious opinion, or of conscientious doubt. It would be
most inconvenient to hold all marriages celebrated elsewhere void,
which are not in scrupulous accordance with the local institutions
of a particular country.

§ 116 a. In the cases of incest hitherto discussed, it has been
supposed, that the parties marrying were either natives of, or act-
ually and bond fide domiciled in, the country where the marriage
was celebrated. But, suppose the case of a marriage, incestuous by
the law of the country, where the parties are born, or are bond fide
domiciled, and without changing their domicil, for the purpose of
evading that law, they go to a foreign country, where a different
rule prevails, and the marriage, which would not be incestuous by
its laws, is there celebrated ; and the parties afterwards return to
their own country. Ought such a marriage to be held valid in
such country? Huberus has put the very case, and held, that it
ought not there to be held valid. If (says he) a Brabanter, who
should marry within the prohibited degrees, under a dispensation
from the Pope, should remove here (into Holland) the marriage
would be considered valid. Yet if a Frisian should marry the
daughter of his brother in Brabant, and celebrate the nuptials
there, returning here, he would not be acknowledged as a married

2 Greenwood v. Curtis, 6 Mass. R. 378, 379; Medway v. Needham, 16 Mass.
R. 157, 161; Sutton v. Warren, 10 Mete. 451. [* These cases are carefully re-
viewed by Lord Campbell, Chancellor, in Brook v. Brook, ante, § 114 a, and their
authority denied. It seems to us there is great difficulty in defining whether, and
to what extent, either incest, or polygamy, is prohibited, by the law of nature.
And itsis certain that while the former was prohibited by the law of the Hebrews,
the latter was allowed and practised to an unlimited extent.] But see Huberus,
lib. 1, tit. 8, § 8; Wightman v. Wightman, 4 Johns. Ch. R. 343.

* See on this point, 2 Kent, Comm. Lect. 26, p. 85, 3d edit. ; Harrison v. Bur-
well, Vaugh. R. 206; S.C. 2 Vent. R.9; Co. Litt. 149; Grotius, B. 2, ch. 5,_
§ 12,13, 14; Rutherf. Inst. B. 1, ch. 15, § 10; Wightman v. Wightman, 4 Johns,
Ch. RB. 343,
180 CONFLICT OF LAWS. , [CH v.

man, because in this way our laws might. be evaded by the worst
examples. Brabantus uxore ductd dispensatione. Pontificis, in
gradu prohibito, si huc migret, tolerabitur. Attamen, st Frisius
cum fratris filié se conferat in Brabantiam, ibique nuptias celebret,
uc reversus non videtur tolerandus ; quia sic Jus nostrum pes

-exemplis eluderetur+ a
§117. In respect to the second exception, that of prsiinitlens
‘depending upon positive law of a particular country,? they of
course can apply strictly only to the subjects of that country. An
illustration of this nature may be. found in the Civil Code of
France, which annuls marriages by Frenchmen, in foreign coun-
tries, who are under an incapacity by the laws of France A.
law of a similar nature may be found in the Act of 12 Geo. 8,
‘ch. 11, respecting the royal family, by which they are prohib-
ited from contracting marriage, unless under special circum-
‘stances, pointed out in the act;* and the provisions of that act
chave. been actually applied to the case of :a foreign marriage, con-
tracted by one of the royal princes. The doctrine of the Eng-
‘lish courts, already alluded to,> in regard to the indissolubility of
‘English marriages celebrated in England, notwithstanding a sub-

1 Huberus, Lib. 1, tit. 3,°§ 8; post, §123; 1 Burge, Comment. on Col. and For,
‘Law, P. 1, ch. 5, § 1, p. 147; Id. § 3, p. 188 to p. 191. — Mr. Burge: maintains
‘this to be the. true doctrine, and says: “ The law which prohibits persons related
-to each other in ‘a certain degree from intermarrying, and declares their intermar-
tiage to be null, imposes on them a personal incapacity quoad that act ; and that
incapacity must continue to affect them, so long as they retain their domicil in
‘the country in which that law prevails. The resort to’ another country, where
‘there was no such prohibitory law, for the mere purpose of evading the law of
‘their own country, and with the intention of returning thither, when their mar-
riage had taken place, cannot be considered a change. of their former domicil, or
‘ihe. acquisition of a domicil in the country to which they had resorted. They
must, therefore, be regarded as still subject to the personal incapacity imposed by
‘the law of their real domicil.” See post, § 128, 124. There are certain parts of
“the opinion of Sir George Hay, in Harford v. Morris, 2: Hagg. Consist. R. 481,
432, 485, from which it may fairly be deduced as his opinion, that the law of the
-place of marriage was the rule, only when the parties were domiciled there; and
that if they went from their own country merely to celebrate the marriage in 4
-foreign country, and immediately to return home, the law of such country would
‘not govern, but the law of the country of their domicil. Post, § 124, note.

2 Ante, § 113 a.

* 2 Kent, Comm. Lect. 26, p. 98, 8d edit.; Code Civil of France, art. 170;
Merlin, Répert. Loi, § 6, n. 1.

* 1 Black. Comm. 226, ® Ante, § 88.
§116 a@-119.] MARRIAGE, 181

sequent divorce in a foreign country, affords a still more striking
illustration, as in its practical effects, it may render the issue of a
second marriage illegitimate ; so that a son, the issue of the sec-
ond marriage in Scotland, may be legitimate there and illegitimate
in England; he may be a lawful Scotch Peer, and yet lose the
English estates, which support his peerage.}

§ 118. In respect to the third exception, that of marriages, con-
tracted and celebrated in foreign countries by subjects under pecu-
liar circumstances, it has been deemed to arise in cases of a sort
of moral necessity ; and it has been held to apply to persons, re-
siding in foreign factories, in conquered places, and in desert or
barbarous countries, or in countries of an opposite religion, who
are therefore permitted, from necessity, to contract marriage there
according to the laws of their own country. In short, wherever
there is a local necessity from the absence of laws, or from the
presence of prohibitions or obstructions, in a foreign country, not
binding upon other countries, or from peculiarities of religious
opinion and conscientious scruples, or from circumstances of ex-
emption from the local jurisdiction, marriages will be allowed to
be valid according to the law of the native or of fixed actual
domicil. ;

§119. The doctrine upon which this exception from necessity
is founded, will be best explained by a quotation from the opinion
of Lord Stowell, in a case, already referred to, in which the ques-
tion of the validity of a marriage celebrated at the Cape of Good
Hope between English subjeets, by a chaplain of the British forces
then occupying that settlement under a capitulation, recently
made, came before him for decision.t After citing the rule, that
the law and iegislative government of every dominion equally
affected all persons and all property within the limits thereof, and
remarking, that to such a proposition, expressed in very general

1 See Beazley v. Beazley, 8 Hage. Ecc. R. 639; Rex v. Lolley, 1 Russ. &
Ryan, C. C. 237; Tovey v. Lindsay, 1 Dow. 724; McCarthy v. De Caix, cited 3
‘Hage. 642, note; 8. C. 2 Russ. & Mylne, R. 620.

® Ante, § 113 a.

*® See Ruding v. Smith, 2 Hagg. Consist, R. 371, 384, 385, 386; ante, § 79;
Lautour v. Teesdale, 8 Taunt. R. 830; S.C. 2 Marshall, R. 243; The King v. In-
hab. of Brampton, 10 East, R. 282. See also, Harford v. Morris, 2 Hagg. Con-
sist. R. 432, where Sir George flay, in delivering judgment, spoke of this excep-
tion of foreign English Factories. Ante, § 79, and id. p. 79, note 1.

* Ante, § 79.

CONFL. 16
182 CCNFLICT OF LAWS. [cH. v.

terms, only general truth can be ascribed, (for .it is undoubtedly
subject to.exceptions,) he proceeded to say, that even the native
and resident inhabitants are not all brought strictly within the
pale of the general law. And, in illustration of this remark, he
referred tothe fact, that even in England, there is a numerous
and respectable body (referring to the Jews) distinguished by
great singularity of usages, who, though native subjects, under the
protection of the general law, are, in many respects, governed by
institutions of their own; and particularly in their marriages.
For it being the practice of mankind to consecrate their marriages
by religious ceremonies, the differences of religion in all countries,
that admit residents professing religions essentially different, una-
voidably introduce exceptions in that matter to the universality of
the rule, which makes mere domicil the constituent of an unlim-
ited subjection to the ordinary law of the country. He then
added: “‘ What is the law of marriage in all foreign establish-
ments, settled in countries professing a religion essentially differ-
ent? In the English factories at Lisbon, Leghorn, Oporto, Cadiz,
and in the factories in the East, Smyrna, Aleppo, and others? In
all of which (some of these establishments existing by authority
under treaties, and others under indulgence and toleration,) mar-
riages are regulated by the law of the original country to which
they are still considered to belong. An English resident at St.
Petersburg does not look to the ritual of the Greek Church, but
to the rubric of the Church of England, when he contracts a mar-
riage with an English woman. Nobody can suppose, that, whilst
the Mogul empire existed, an Englishman was bound to consult
the Koran for the celebration of his marriage. Even where no
foreign connection can be ascribed, a respect is shown to the opin-
ions and practice of a distinct people. The validity of a Greek
marriage in the extensive dominions of Turkey is left to depend,
I presume, upon their own canons, without any reference to Ma-
hommedan ceremonies. There is a jus gentiwm upon this matter,
a comity, which treats with tenderness, or, at least, with tolera-
tion, the opinion and usages of a distinct people, in this transac-
tion of marriage. It may be difficult to say a priori, how far the
general law should circumscribe its own authority in this matter.
But practice has established the principle in several instances ;
and where the practice is admitted, it is entitled to acceptance and
respect. It has sanctioned the marriages of foreign subjects in
§119-121.] MARRIAGE. 183

the houses of the ambassadors of the foreign country to which
they belong. I am not aware of any judicial regulation upon
this point. But the reputation which the validity of such mar-
riages has acquired, makes such a recognition by no means im-
probable, if such a question was brought to judgment.”? And
again: “It is true, indeed, that English decisions have established
this rule, that a foreign marriage, valid according to the law of the
place where celebrated, is good everywhere else. But they have
not e converso established, that marriages of British subjects, not
good according to the law of the place where celebrated, are uni-
versally, and under all possible circumstances, to be regarded as
invalid in England. It is, therefore, certainly to be advised, that

_ the safest course is always to be married according to the law of
the country ; for then-no question can be stirred. But if this can-
not be done on account of legal or religious difficulties, the law
of this country does not say, that its subjects shall not marry
abroad.” And he accordingly held the marriage valid, on the
distinct British character of the parties, on their independence of
‘the Dutch law in their own British transactions, on the insuper-
able obstacles of obtaining any marriage conformable to the Dutch
law, on the countenance given by British authority and British
administration to this transaction, and upon the whole country
being under British dominion.‘

§ 120. In regard to marriages by British subjects in their own
foreign settlements, the general rule is, that marriages, good by
the laws of England, will be valid there; for they carry those laws
-with them into such settlements, and are not to be governed by
the laws or customs of the natives. Thus, it has been held, that
a marriage between British subjects at Madras is good, if con-
formable to the British laws, and not to the laws of the natives of
India.6

§ 121. The ground, however, upon which the general rule of
-the validity of marriages, according to the lex loci contractus, is
maintained, is easily vindicated. It cannot be better expressed,
‘than in the language of Sir Edward Simpson, already cited.6 All

1 See Pertreis v. Tondear, 1 Hagg. Consist. R. 136.
* Ruding v. Smith, 2 Hagg. Consist. R. 385, 386.

3 Thid.

“ Ibid. p. 371; ante, § 79.

5 Lautour v. Teesdale, § Taunt. R. 830; 8. C. 2 Marsh. R. 243.,
® Ante, § 80 a.
184 CONFLICT OF LAWS. [cH. ¥.

civilized nations allow marriage contracts. They are juris gen
tium; and the subjects of all nations are equally concerned in
them. Infinite mischief and confusion must necessarily arise to
the subjects of all nations with respect to legitimacy, successions,
and other rights, if the respective laws of different countries were
only to be observed, as to marriages contracted by the subjects of
those countries abroad; and therefore all nations have consented,
or are presumed to consent, for the common benefit and advan-
tage, that such marriages shall be good or not, according to the
laws of the country where they are celebrated. By observing this
rule, few, if any, inconveniences can arise. By disregarding it,
infinite mischiefs must ensue.1 Suppose, for instance, a marriage
celebrated in France, according to the law of that country, should
be held void in England, what would be the consequences? Hach
patty might marry anew in the other country. In one country
the issue would be deemed legitimate; in the other illegitimate.
The French wife would in France be held the only wife, and enti-
tled as such to all the rights of property appertaining to that
relation. In England, the English wife would hold the same ex-
clusive rights and character. What, then, would be the confusion
in regard to the personal property of the parties, in its own nature
transitory, passing alternately from one country to the other!
Suppose there should be issue of both marriages, and then all the
parties should become domiciled in England or France, what con-
fusion of rights, what embarrassments of personal and conjugal
relations, must necessarily be created ! 2

§ 122. Foreign jurists in general as strenuously support the
general rule, as the tribunals sitting to administer the common
law ; and undoubtedly from a common sense of the pernicious
consequences which would flow from a different doctrine. This
subject is much discussed by Sanchez, to the following effect. As
to the maxim or general rule, ut non teneantur peregrini legibus
et consuetudinibus loci, per quem transeunt, this rule has excep-
tions: C1.) Quoad contractwum solemnitatem ; nam quicunque fo-
renses, et peregrini tenentur servare solemnitates in contractu
requisitas legibus et consuetudinibus oppidi, im quo contrahunt.

* Scrimshire v. Scrimshire, 2 Hagg. Consist. R. 417, 418, and ante, § 79, 80,
80 a.

2 Jhid. ante, § 80 a.

* 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 5, § 8, p. 184 — 188.
§ 121-1224] MARRIAGE. 185

Ratione enim contractus quilibet forum sortitur in loco contractus ;
hine est contractum absoluté initum, censeri celebratum juxta con-
suetudines et statuta loci, in quo initur. Quod ita provenit, quia
contractus sequitur consuetudines et statuta loci, in quo celebratur3
And a case is put, as to inhabitants of a place, where the decree
of the Council of Trent, for avoiding clandestine marriages, is not
received. Suppose they go from England to places per modum
transitus, ubi obligat ‘decretum, and marry there according to the
laws of their own domicil. Some think, that such marriage is
good in the case of strangers, as agreeable to their own laws,
to the law of the country in which they are domiciled, though
not to the law of the place where they are married. But Sanchez
holds, that a marriage is void, where it wants the solemnities pre-
scribed by the local law. ‘‘ What the law of the place requires,
where the contract is made, and what are to be followed in con-
tracts, are to be decided solely by the laws of the place in which
the contract is celebrated”: Que petunt leges loci, ubi contrac-
tus initur, et quoad solemnitatem adhibendam in contractibus, sole
leges loci, in quo contractus celebratur, inspiciuntur.2 Locus au-
tem, ubi hoc matrimonium initur, non petit eam parochi et testium
solemnitatem ad matrimonii valorem, cum ibi decretum Tridentini
non obliget® Ea solemnitas adhibenda est, quam petunt legres loci,
ubi contractus initur ; cum ergo locus, ubi celebratur matrimonium,
ab his peregrinis exegat solemnitatem Tridentini in eo vigentis ;
aliter contractum nullum erit.*

§ 122 a. John Voet seems to affirm the same doctrine to be
generally but not universally true, and liable to exceptions. He
puts the case of the marriage of an inhabitant of Holland with
a female of Flanders or Brabant, in Flanders or Brabant, accord-
ing to the laws of the latter, but not according to the laws of
Holland, and-asks, if it would be valid in Holland. To which he
answers, that primd facie it should seem, that such marriages
ought in Holland to be held valid; “because it is sufficient
in contracts to follow the solemnities of the place in which the

1 Post, § 260.

* I cite this whole passage from the case of Scrimshire v. Scrimshire, 2 Hagg,
Consist. R. 412, 413. - See also, 1 Burge, Comment. on Col. and For. Law, P. 1,
ch. 5, § 8, p. 185, 186 ; Sanchez, De Matrim. Lib. 3, Disput. 18, § 10, u. 26, 28.

® Cited in Burge, Comment. ubi supra, p- 185, 186.

* Cited ibid.

16*-
186 CONFLICT OF LAWS. [oH. v.

contract is celebrated, although the solemnities are not observed
which are prescribed in the place of the domicil of the parties, or
of the situation of the property, in executing the act.” Primd
quidem specie videri posset, nuptias tales etiam in ipsd Hollandié
ratas habendas esse. Eo quod sufficit in contrahendo adhiberi so-
lennia loci illius, in quo contractus celebratur, etsi non inveniantur
observata solennia, que in loco domicilit contrahentium, aut rei
site, actui gerendo prescripta sunt... He adds, that there had been
different opinions given in Holland on this point. But he ex-
presses his own opinion to be, that such marriage, so celebrated
out of Holland, ought to be pronounced invalid in Holland, upon
the very terms of the Edict of Holland, by which marriages by
Hollanders, without proper notifications thereof, published in the
place of their domicil, are declared to be void. ‘That the general
rule, that it is sufficient in negotiations and contracts to follow the
‘solemnities, required by the law of the place where the business is
transacted, does not apply in such :a case; for that rule has its
proper place, only where the business is not so transacted in fraud
of the law,-or where no statute has positively declared, that the
act shall be void, when done by a subject according to the foreign
solemnities. Sed, eo non obstante, magis est, ut matrimonia, eo
modo extra Hollandiam:ab.Hollando celebrata,infirma per Judicem
-Hollandicum pronunciari debeant, propter Edicti verba, quibus
nuptie, per Hollandum sine denunciationibus publicis in domicilit
loco interpositis contract, irrite esse jusse sunt. Nihil in contra-
rium faciente illo axiomate, quod sufficiat in negotiis contrahendis
-adhiberi solemnia loci, in quo actus geritur.: cum ista regula locum
inveniat, si non in fraudem statuti quis alio se contulerit ad actum
celebrandum, aut statutwm nominatim irritum declaraverit actum,d
suo ‘subjecto peregrind solemnitate gestum2
§122 6. Paul Voet holds an opinion decidedly in favor of the
_ general rule. Quid si de contractubus proprie dictis, et quidem
eorum solemnibus .contentio; Quts locus spectabitur.; an domicilii
contrahentis, an-loci, ubi quis contrahit? Respondeo affirmanter.
Posterius. Quia, censetur quis semet contrahendo, legibus istius

1 J. Voet, ad Pand. Lib. 28, tit. 2,'§ 4, Tom. 2, p. 20; cited also in Scrimshire
v. Scrimshire, 2 Hagg. Consist. R. 415. See also, Voet, ad Pand. ‘Lib. ‘23, tit. 2,
§ BS, p. 55.

* J. Voet, ad Pand. Lib. 23, ‘tit. 2,'§ 4, p.'20.
§ 122 a, 1225.) MARRIAGE. 187

loci, ubt contrahtt, etiam ratione solemnium subjicere voluisse
Huberus admits, that a marriage valid by the law of the place,
where it is celebrated, is binding everywhere, under the exception,
which he generally applies, that it is not prejudicial to others, or
that it is not incestuous. Matrimonium pertinet etiam ad has re-
gulas. Si licitum est eo loco, ubi contractwm et celebratum est,
ubique validum erit, effectumque habebit, sub eadem eaceptione pre-
judicti aliis non creandi ; cuilicet addere, si exempli nimis sit .abo-
minandi ; ut si incestum juris gentium in secundo gradu contigerit
_alicubi:esse permissum.2. Bouhier.adopts the general rule, hesitating
as to the nature and extent of the exceptions.? Hertius lays down
the following axiom. If the law prescribes a form for the act, the
place of the act, and not of the domicil of the parties, or of the
situation of the property, is to be considered. Si Lex actui for-
mam dat, inspiciendus est locus actis, non domicilii, non ret site.*
‘And he puts the following as an example. A marriage contracted
according to the solemnities of any place where the married
couple are commorant, cannot be rescinded upon the pretext, that,
«in the domicil or country of the husband, other solemnities are re-
quired. Matrimonium juzta solennitates loci alicujus, ubi sponsus
et sponsa ‘commorabantur, contractum non potest pretextu illo ne-
scindi, quod in domicilio aut patrid mariti alie solennitates obser-
ventur® He afterwards puts exceptions to this general axiom ; one
of which is, that a contract between foreigners, both belonging to
a foreign country, is to be governed by the law of their own coun-
try, and mot by that:of the dex loct contractés.6 In this exception
she has to encounter many distinguished adversaries.’ The French
jurists seem generally to support the doctrine, that marriage is
to be held valid or not, according.to the law of the place of cele-
“bration, except in cases positively prohibited by their own laws to
their own subjects, or where it is in fraud of those laws. And
1 Voet, De'Statut. § 9, ch. 2,:n.‘9,"p.:267, edit..1715 ; Id. 323, edit. 1661 ; “post,
261.
. * Huberus, Lib. 1, tit. 3,§ 8; ante, § 85.
® Bouhier,:Cout. de Bourg. ch. 27, § 59 to § 66.
* Post, § 242, 260; Hertii, Opera, Tom. 1, De Collis. Leg. § 4, art. 10, e 1:26,
edit. 1737; Id. p..179, edit. 1716.
4 ‘Hertii, Opera, De Collis. Leg. § 4, art. 10, edit. 1837, p. 126. Id. p. ae
edit. 1716 ; Id. art. 10,:p. 128, edit. 1737 ; Id. p..182, edit. 1716.
* Id. p. 128, § 10, edit. 1737; Non Valet (6).
7 Ibid. ® Post, § 128.
188 CONFLICT OF LAWS. [cH y.

Merlin says, that it is a contract so completely of natural and
moral law, that when celebrated by savages in places where there
are no established laws, it will be recognized as good in other
countries.

§ 123. A question has been much discussed, how far a marriage,
regularly celebrated in a foreign country, between persons belong-
ing to another country, who have gone thither from their own
country for that purpose, is to be deemed valid if it is not cele-
brated according to the law of their own country. Huberus, as
we have scen;? has put the very question, and has applied it as well
to cases of minority as of incest ; and he does not hesitate to pro-
nounce such marriages invalid, because they are an invasion, or
fraud upon the law of the country to which the parties belong,
and in which they are domiciled. Bouhier has advocated the
same opinion ;‘ and it is also maintained by Paul Voet. He states
it as an exception to the general rule, that the law of the place of
the contract ought to govern. Mist quis, quo in loco domicilii evi-
taret molestam aliquam vel sumptuosam solemnitatem; adeoque in
fraudem sui statuti nulla necessitate cogente alio proficiscatur; et
mox ad eorum domicilium, gesto alibi negotio, revertatur® John
Voet (as we have seen) holds the same opinion.* Pothier puts
the very case in the strongest terms. He says that the conditions
and ceremonies, prescribed by the French laws, for the validity of
marriages between French subjects are obligatory, even when the
marriage has been celebrated between them in a foreign country,
whenever it appears that they have gone thither in fraud of those
laws, and that the marriage, under such circumstances, will be a
nullity.” This doctrine turns upon the general principle, that an

" Merlin, Répert. Marriage, § 1, p. 343. See also, 2 Boullenois, Obser. 46,
p- 458; 1 Froland, Mém. p. 177, ch. 1; Pardessus, Vol. 5, P. 6, tit. 7, ch. 2, art:
1481 to 1495; Pothier, Traité du Marriage, u. 263; Journal des Audiences,
Tom. 1, ch. 24; S. C. cited Scrimshire v. Scrimshire, 2 Hagg. Consist. R. 413,
414.

2 Ante, § 85, 116 a.

* Huberus, Lib. 1, tit. 8, § 9. See ante, § 85, 116 a, where the passages are
cited at large.

* Bouhier, Cout. de Bourg. ch. 28, § 60, 61, 62, p. 557; ante, § 84.

5 P. Voet, De Statut. § 9, ch. 2, p. 268, edit. 1715; Id. p. 3238, 324, edit. 1661.

* Ante, § 122; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 5, § 3, p.
196. 7

” Pothier, Traité du Marriage, o. 263.
§ 122 6-123 b.] MARRIAGE. 189

act done designedly, in fraud or evasion of the law, by a mere
change of locality, is utterly void.

4123 a. In opposition to this doctrine it has, however, been
settled, after some struggle both in England and America, that
such a marriage is good. The question in England was first sol-
emnly decided by the High Court of Delegates in 1768 ; } and hav-
ing been subsequently recognized, notwithstanding the doubts of
Lord Mansfield, it may now be deemed settled there beyond con-
troversy.2, Lord Mansfield, on the occasion alluded to, arguendo,
said: “It has been laid down at the bar, that a marriage in a for-
eign country must be governed by the law of the country where
the marriage was had; which in general is true. But the mar-
riages in Scotland of persons going from hence for that purpose,
were instanced by way of example. They may come under a very
different consideration, according to the opinion of Huberus and
other writers.” 8 This is manifestly no more than the expression
of a doubt upon a point not directly before the court. [The Irish
courts have also, after full deliberation, adopted the same rule.‘]

_ § 123 6. In Massachusetts, upon full discussion, the doctrine
has been firmly established.6 It was admitted on that occasion, by
the court, that the doctrine is repugnant to the general principles

* Compton v. Bearcroft, cited in Bull. N. P. 114, and in Harford v. Morris, 2
Hage. Consist. R. 429, 430, 448, 444.—It has been said, that this decision may
.be explained upon the ground, that the English Marriage Act, under which that
question arose, contained an express exception of marriages in Scotland; and
that the marriage of the parties in that case, who were English, and had gone
from England for the express purpose of celebrating the marriage in Scotland,
was therefore good, as it was according to the law of Scotland. Admitting this
to be the true construction of the English Marriage Act; yet the question direct-
ly raised by the libel was, whether a marriage in a foreign country by British sub-
jects domiciled in England, and not changing their domicil, who had gone there
expressly to avoid and evade the laws of England, was good or not; and there is
strong reason to believe, that this point was deemed a material ingredient in the
ultimate judgment of the case. — See the case of Compton v. Bearcroft, as com-
mented on in 2 Hagg. Consist. R. 443, 444, and the Reporter’s note in p. 444.

* See Hartford v. Morris, 2 Hagg. Consist. R. 423; Robinson v. Bland, 2 Burr,
RB. 1077 to 1080; Steele v. Braddell, 1 Milw. Consist. R. 1; Fergusson on Marr.
and_ Divorce, 68 to 65.

* Robinson v. Bland, 2 Burr. R. 1079, 1080; Huber. Lib: 1, tit. 3, § 8.

* Steele v, Braddell, 1 Milw. Consist. R. 1, where this subject is ably exam-
ined.

* Medway ». Needham, 16 Mass. R. 157, 161; Putnam v, Putnam, 8 Pick. R.
433, :
190 CONFLICT OF LAWS. [cu. v.

of law relating to contracts; for a fraudulent evasion of or fraud
upon the laws of the country, where the parties have their domi-
cil, would not, except in the contract of marriage, be protected
‘ under the general principle.1 But the exception in favor of mar-
riages+s-maintained upon principles of public policy, with a view
to prevent the disastrous consequences to the issue of such a mar-
riage, which would result from the loose state in which persons so
situated would live. The doctrine has been carried even further,
so as to admit the legitimacy of the issue of a person who had
been divorced @ vinculo for adultery, and had been declared by
the local law incompetent to marry again, but who had gone into
a neighboring State, and there contracted a new marriage, and
had issue by that marriage. The like rule has been applied in
favor of the widow by such second marriage, so as to entitle her
to dower in the real estate of. her deceased husband, situate in
Massachusetts.*

§ 124. The English doctrine, in relation to Scotch marriages, by
parties domiciled in England, and going to Scotland to marry,
though a plain violation of the real object and intent, even if not
of the words of the English Marriage Act, seems to have proceeded
mainly upon the ground of public policy.6 It is the least of two

* Ibid. The court put the following case. Thus, parties, intending to make
an usurious bargain, cannot give validity to a contract, in which more than the
lawful interest of their country is secured, by passing into another territory,
where there may be no restriction of interest, or where it is established at a

higher rate, and there executing a contract before agreed on. Medway v. Need-
ham, 16 Mass. R. 160.

* Medway v. Needham, 16 Mass. 160, 161.

° ‘West Cambridge v. Lexington, 1 Pick. R. 506; 2 Kent, Comm, Lect. 26,
Pp. 92, 93, 3d edit. See Fergusson on Marr. and Divorce, note R, p- 469; ante,
§ 89.

* Putnam v. Putnam, 8 Pick. R. 433.

5 See Steele v. Braddell, 1 Milw. Consist. R. 1. Mr. Burge does not deem it
to be in fraud of the English laws, because the English Marriage Act does not in
fact. prohibit such Scottish marriages. This is true in terms; and if it did pro-
hibit, the question of the conflict of laws in relation to such marriages would
never have arisen in England; for the statute would have directly decided the
matter. Nevertheless, the whole object of the parties in this class of marriages
plainly is to evade the law of their own country by a marriage, valid by the law
of the country, where it is celebrated, without changing their own domicil, and
thus getting rid of all the anxious provisions of the statute against ill-advised and
‘clandestine marriages. In short, all the Gretna Green marriages in Scotland (as
they are called) are intended by the parties to get rid of the solemnities of the
§ 123 6, 124.] MARRIAGE. 191

evils, in a political sense, a civil sense, and a moral sense. We
have already seen, that the positive code of France has promul-

English Jaw. Mr. Burge says: “ The decisions of the courts in England, which
have declared valid a marriage contracted in Scotland by English persons, who
had resorted thither for the sole purpose of evading the prohibitions of the Eng-
lish Marriage Act, are perfectly consistent with the admission of this exception.
Such a marriage is valid, because it is not prohibited by the English Marriage
Act. It is a misapplication of terms to describe it as an evasion, or in fraud of
the act; for, in fact, it is not prohibited. There is an express provision, that
~nothing in that act shall extend to’ marriages in Scotland, or to any marriages
beyond sea. The act, therefore, left English subjects at perfect liberty to
resort to any country for the purpose of contracting and celebrating their mar-
riage. So far from the act containing a general and absolute prohibition, and a
declaration of the nullity of all marriages, contracted otherwise than in confor-
mity to its provisions, it confines such prohibition and declaration to marriages
contracted in England. ‘These decisions, therefore, are founded upon the right
of the parties, consistently with the Marriage Act, to resort to the foreign country
for the purpose of contracting their marriage, and upon the act itself containing
no provision which renders void a marriage so contracted. It is upon this ground,
and to this extent, that the argument of Sanchez must be understood, when he
contends that a marriage is not void, because the parties have resorted to a coun-
try, in which they have contracted it, for the purpose of avoding ceremonies,
which are required in their own country. ‘‘ Displicet mihi hac limitatio, et credo,
licet adirent eo fine, ut pofsent libere absque parocho et testibus contrahere, esse
ratum matrimonium. Nam qui jure suo utitur non potest dici fraudem commit-
tere, ut ed ratione effectus impediatur,’ ‘ Nullus videtur dolo facere, qui jure suo
utitur’” ‘Est enim fraus licita, cum contrahentes utantur jure suo: ergo cum
adeuntes locum, ubi non viget Trident. animo contrahendi absque parocho et
testibus, utuntur jure suo, habet enim jus sic ibi contrahendi, erit fraus licita, nec
ea ratione effectus ac valor matrimonii impedietur.’ The same jurist, in a subse-
quent passage, admits the distinction between a personal incapacity imposed by
the law of the domicil, which would accompany. the party in whatever country
he contracted, and a law which attached to the act only in respect of its taking
place in the country in which that law prevailed. ‘Dic quando inhabilitas est
constituta, absolute et simpliciter, sequi personam quocumque euntem: secus
quando est constituta per modum legis, sicut enim lex illa non obligat in illis locis,
ita inhabilitas, et annullatio actus non obligat ibi, nec sequitur personam, nisi
dum est in locis, in quibus ea lex vim obligandi habet....non enim ligatur
lege Ecclesiastica in loco, ubi ex voluntate ac dispositione ejusdem Ecclesiz non
habet robur eadem lex: ut contingit in locis, ubi aut non recepta aut non publi-
cata fuit.” 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 5, § 3, p. 192, 193.
The decisions in the Supreme Court of Massachusetts, as they are stated in the
Commentaries on American Law, carry the doctrine much further, and reject
any exception founded on the purpose for which the parties resorted to the coun-
try, where they contracted the marriage. The parties, in the case referred to,
had left the State on purpose to evade its statute law, and to marry in opposition
to it, and being married, they returned again; yet their marriage was held valid,
192 CONFLICT OF LAWS. ~ [cu. v,

gated an opposite doctrine, with unrelenting severity. The wis-
dom of such a course remains to be established ; and it will be no

if it were valid according to the laws of the place where it was contracted, not-
withstanding the parties went into the other State with an intention to evade the
laws of their own.” (Ibid.) In these remarks Mr. Burge is mainly borne out
as to the effect of the English Marriage Act, by the language of Sir George
Hay, in Harford v. Morris, (2 Hagg. Consist. R. p. 428 to p. 432.) He there
said: “The next question is, whether by the law of England this marriage-is
valid? It is stated throughout that it is a marriage without the consent of the
natural mother of the party, and of the testamentary guardians, and the Lord
Chancellor; and that the parties went into a foreign country to evade the laws
of this realm. Whether upon that account, or any of the accounts already men-
tioned, it is void by the law of England, is the first question. Parties may go
out of England and marry by necessity or choice; in either way a foreign mar-
riage is not void upon that account by the laws of Egland. But it is said, they
go in violation of the order of the Chancellor, and without the consent of parents
and guardians. What is the law of England, that requires the consent of parents
and guardians? It is the Marriage Act. One of the greatest magistrates, that
ever appeared in this country, explains it, that the view of that act was to re-
strain the abuse, that was so scandalous in this country, from clandestine mar-
fiages, and to get proof of marriages, which otherwise might become uncertain;
as it is, wherever you cannot have evidencgof the fact of the marriage being rightly
performed, and legitimacy becomes uncertain. The principal view of that law
was to affect such marriages. The law does, indeed} in one respect, put a re-
straint, which was not known to the common law, upon the marriage of minors
without the consent of parents; but it does not make all the marriages of minors,
even in England, void. Marriages by license only are void, for want of consent
of parents and guardians. If this marriage had been in England, and if, instead
of going abroad, the parties had been married in any great parish of this town or
country by banns, would that marriage have been good, or not, by the laws of
England? No law says that it shall be void. It is a marriage by license only,
that is void by the law of England, for want of consent of the parents or guar-
dians. It is observed also, that the act makes particular exceptions, without
which the purpose of the Marriage Act, though an exceeding good act, might have
been questioned before this time, if there had not been so many ways to avoid
the restraint put upon the marriage of minors. It is provided, that nothing in
this act shall extend to marriages in Scotland, nor to any marriages solemnized
beyond sea. Then marriages in Scotland and beyond sea by the law of England,
remain in the same state as if the statute had not passed. Marriage in Scotland,
if not contrary to the law of England, is good, and it has been so determined.
That determination passed, not on the ground, that the marriage“was valid in
‘Scotland, and that therefore it was good, — nothing was laid before the court to
show, that the marriage was valid in Scotland, — but because the Act of Parlia-
ment did not put any restraint upon English subjects being married in Scotland,
with respect to the consent of parents. On that ground it is, that those marriages

; 1 Ante, § 84,.90, 123, and note.
§124.] * MARRIAGE. 193

matter of surprise, if hereafter we shall find a Frenchman with
two lawful wives, one according to the law of the place of the mar-

are held good, not being contrary to the law of England. The same holds as to
marriages beyond sea. For English subjects going abroad, or to Scotland, to
marry English subjects, have an exemption from that restraint in the act. What
was the case before the Marriage Act? Will anybody say, that before the act, a
marriage solemnized by persons going over to Calais, or happening to be there,
was void in this country, because such a marriage might be void by the laws of
France, as perhaps it was, if solemnized by a Protestant priest, whom they do
not acknowledge, or if any way clandestine, or without consent; and that there-
fore it should be set aside by a court in England, upon account of its being void
by the law of France? No. The laws of the state, to which the parties are
subject, must determine the marriage, unless you can show that the law of the
other country is that by which its validity is to be decided. That brings, me to
the other great consideration in this case, whether the validity of these marriages,
being solemnized in Ypres and Denmark, are to be tried by the laws of those
countries. If they are, the laws of those countries must be laid before the court,
and proved in the best manner possible ; not by the opinions of lawyers, which is
the most uncertain way in the world, but by certificates, laying the ordinances of
those countries before the court. Without considering how far that law is capa-
‘ble-of being proved in the present case, the previous' question arises with respect
to jurisdiction, whether the laws of that country, in which thé marriage is cele-
brated, should operate, merely because it was celebrated there. I conceive the
law to be clear, that it is not the transient residence, by coming one morning and’
going away the next-day, which constitutes a residence, to which the lex loci can
be applied ; so as to give a jurisdiction to the law, and cause it to take cognizance
of a! marriage celebrated there. It is certain that domicil, or established: resi-
dence, (that is, such a kind of residence as makes the party subject to the laws
of that country,) may have that effect ; and, with respect to persons so domiciled,
the laws of the country must be adhered to in contracts made there. This was
the case of Scrimshire. All the proceedings of the Court of France were laid
before.the court. I remember it, though it was a long time ago; and I was
counsel for the lady. The mother of the young man was at Bologne, where they
had gone animo morandi. It was stated in all the proceedings, that they were
domiciled in France; Ke went there to reside for purposes of education, and did
reside there; and the mother continued to reside there, till she obtained the
sentence, that was pleaded in the Consistory Court. I-do’not in the least call in
question that determination in the Consistory Court. Every man has allowed
. the great and extensive knowledge of the judge; but he founded his judgment:
upon the sentence given in that court, which had assumed jurisdiction, and had’
aright to assume it; he'paid all respect to the judgment ; and upon that he gave’
his'opinion, that the party suing should be dismissed.” A somewhat different
account of the case of Compton v. Bearcroft (here referred to) is given by Sir
W. Wynne, in Middleton v. Janverin, (2 Hage. Consist. R. 443, 444). On that
occasion he said, — “It is, however, eontanded, that admitting the law to invali-
date the marriage in those countries, yet that is not the law by which this case is
to be decided in this court. It is‘not’the lex loci, where the marriage ceremony:
CONFL. 17
194 CONFLICT OF LAWS. {cH. v.

riage, and the other according to that of his domicil of origin.!
The doctrine in England has; indeed, stopped short of the moral

is performed, which is to determine the question, but you must find out some other
law, and that is declared by the counsel for Mrs. Janverin to be the law of .Eng-
land. Note respect to the lex loci having been adopted as a rule, I think the
case of Compton v. Bearcroft proves it very strongly. In that case the Court. of
Delegates affirmed the rejection of the libel, which was given in against the mar-
riage, on different grounds, as I have understood, from those which were taken
in the Court of Arches, and because the marriage was a good marriage in Scot-
land, and if all the facts pleaded in the libel were proved, the marriage could
not be pronounced void under the Marriage Act; in which it is expressly declared
that it shall not extend to Scotland. On those grounds it was, as I have under-
stood, that the delegates rejected the libel. The case of that marriage was there-
fore determined by the lex loci. Those persons having gone to Scotland, and
been married in a way not good in England but good in Scotland, and not affect-
ed by the Marriage Act, were considered to have contracted a valid marriage.”
The learned Reporter has added a very important note to 2 Hagg. Consist. R.
444, note (*), on this point. It is certain, that foreign jurists do not take any
distinctions between a violation of the positive prohibition by the words, if the
laws and the case of a mere evasion or fraud upon the known policy of the Jaws,
by a marriage in another country, without any change of domicil by the parties,
See also Fergusson on Marr. and Divorce, 417; Id. 223,461. It has always
appeared to me, that the true doctrine of international policy is, that a foreign
marriage, valid by the law of the place of marriage, is valid everywhere, not-
withstanding the parties may be domiciled in another country, where the mar-
riage, if celebrated there, would, by the laws thereof, be void, and the parties
have gone thither for the express purpose of evading the requisitions of the law
of their domicil. A learned writer, in the London Legal Observer for January,
1840, has commented on this subject with great acuteness and ability. The fol-
lowing extract may be gratifying to the learned reader, as it constitutes an oppo-
site view to that of Mr. Burge. “The idea of fraud on the law of a country is
rather a favorite one with jurists. When examined, however, we think it will
be found to have a very narrow foundation for the supposed countenance afforded.
to it by our law. By the courts of several American States it has been repeat-
edly overruled. It is principally grounded on an opinion of the jurist, Huber,
(Hub. de Confl. Leg. lib. 1, tit. 3, § 8,) supported by a dictum of Lord Mansfield,
in Robinson v. Bland, (1 W. Bl. 234, 256; 2 Burrows, 1077). In the first place,
it is at once met by the difficulty, that it has been over and over again decided,
that Scotch and foreign marriages (between minors and others, who could not
have contracted marriage here) undertaken, expressly and admittedly, to evade
our law, are good, if good per legem loci, and vice versa. But then, say the advo-
cates of the in fraudem legis doctrine, these decisions are consistent; because the
Marriage Act in terms excepts Scotch and foreign marriages. In this view, how-
ever, they at once throw over Lord Mansfield’s authority, because, as Sir W.

11 Toullier, Droit Civil, art. 576; Code Civil, art. 144, 148, 170; Merlin,
Répert. tit. Loi, § 6, n. 1; and ante, note, § 84, 117.
§ 124] : MARRIAGE. 195

mischief; if the decision promulgated in its courts can be main-
tained, (of which doubts may justly be entertained,) that a second

Blackstone, who was counsel in the case, notes it in the margin of his. report, he
threw out a ‘quere, whether stolen marriages in Scotland are valid.’ However,
as this case is really the only one, in which, as far as we are aware, the idea of
evasion of our law is set up, we must go more fully into it. ‘The case was argued
in 1760. The question was, whether a bill of exchange given in France by one
English subject to another, but made payable in England, the consideration of
which was a gambling debt, should be held recoverable in an English court. It
was found not to be recoverable in France; but Lord Mansfield (though, on this
plain ground, he afterwards said the case had after all come to nothing) had it
argued twice, as bearing on international law. In his judgment he touched on
the rules applicable to foreign personal contracts. He lays down the general
rule as to the lex loci prevailing. But then he says: ‘ This rule admits of an ex-
ception, where the parties had a view to a different kingdom. Contracts are to
be considered according to the place where they are to be executed.’ And Mr.
Justice Wilmot said: ‘The place where the money is to be paid, must govern the
law. This was determined as to usury on contracts in Ireland.’ From this it is
evident, that there is no ground in the decision for the wide principle contended
for. The quere thrown out, merely in answer to an illustrative argument used
by counsel, comes more to the point; but is plainly overruled. Burrows, in his
report, says, that Lord Mansfield referred to a case before Lord Hardwicke of a
minor’s stolen marriage at Ostend; the validity of which Lord Hardwicke
doubted, and ordered to be tried before an Ecclesiastical Court; but the trial
was stopped by the minor’s marrying again on coming of age. We have looked
carefully for this case, and have no doubt Butler and Freeman (Ambl. 302) is
the one referred to. It had been decided in 1756, four years before. It was the
case of a ward married at Antwerp. Lord Hardwicke said: ‘ This is the first
case under the late Marriage Act. As to such a marriage (I was going to call it
a robbery) there is a door open in the statute as to marriages beyond seas and in
Scotland” He afterwards goes on to question the validity of the marriage: ‘It
is said by witness, that he saw them married, according to the rites and ceremo-
nies of the Church of England. But it will not be valid here, unless it was so
by the laws of the country where it was had.’ The father, it appears, instituted
a suit in the Ecclesiastical Court to try the validity according to the foreign law.
This case, therefore, so far from supporting Lord Mansfield’s doubt, as stated in
the margin of Blackstone’s report, expressly overrules it. It is more material for
our present purpose, as being the first case under the Marriage Act. The Mar-
riage Act was passed in 1753. If Lord Hardwicke had thought, that before that
act there was a principle of law in operation, that a party going abroad to evade
our laws could not set up the lex loci contractus, but that the new act had altered
this, he could hardly have failed to have said so. He treats it, that the new statute,
by leaving the old principle of lex loci contractus untouched, had left a door
open to evade its new provisions of banns, rites, consent for minors, &c.; not had
opened a new door. We find but one other case before Lord Hardwicke bearing
on the subject. It is Roach v. Garvan, decided in 1748. (1 Ves. R. 159.) It is
material as showing the principles of law as to foreign marriages clearly laid
196 CONFLICT OF LAWS. [cH. v.

marriage, after a divorce, in Scotland, from a marriage, originally
celebrated in England between English subjects, is void, although

down, before the Marriage Act passed. It was the case of a ward of court, aged
only eleven, married in France to a boy of seventeen, the son of a Frenchman.
Lord Hardwicke laid down, that the infant, being a natural-born subject, could
not renounce her allegiance. He said: ‘ The most material consideration is the va-
lidity of the marriage. It has been argued to be valid from being established by
the sentence of a court in France, having proper jurisdiction. And it is true,
that if so, it is conclusive, whether a foreign court or not, from the laws of nations
in such cases ; otherwise the rights of mankind would be very precarious and un-
certain.’ Now here, if Mr. Burge is right, Lord Hardwicke was called upon to
fall back on the general principle Mr. Burge contends for, that the subject, though
broad, unless bona fide domiciled there, (which in Mr. Burge’s sense of domicil
was not the case,) could not avail himself of the lex loci to avoid the operation of
our law. The girl here was only eleven years old. By our common law, as stat-
ed by Mr. Burge, a female under twelve could not contract matrimony. Indeed,
according to Sir Matthew Hale, the attempt would have subjected the party to a
conviction for rape. (1 Hall. P. C. 630; and 4 Bla. Com. 212.) So far from
doing this, in committing unreservedly the jurisdiction, as to validity, to a foreign
court, he lays down a principle quite destructive of all Mr. Burge’s doctrines, as to
bona fide domicil; because, as we shall presently remark further, if that principle
only means bona fide, so far as required by the foreign law, it amounts to nothing,
and there is nobody who doubts it. It would then be, by common consent, one of
the incidents bearing on the validity of the marriage according to the lex loci
contractus. There are few opinions which command higher respect than Mr. Ja-
cob’s. In his very learned notes appended to his edition of Roper’s Husband and
Wife he takes the same view. He says, as to the objection, that an intention to
evade our law may affect the validity of the foreign contract ; ‘that, though appar-
ently sanctioned by Lord Mansfield, it has not prevailed, either with respect to
marriages in Scotland, or with respect to marriages in other places out of England,
and there does not appear any exception to the rule, that a foreign marriage,
-valid according to the law of the place where celebrated, is good everywhere else.
.. (2 Roper, Husb. and Wife, edit. by Jacob, p. 495.) It must be observed, that
Mr. Jacob does not specifically advert to objections arising from affinity, or from
” any prohibitory.rules not being in the Marriage Act. The rule, however, is evi-
dently older than the Marriage Act, and is always found without a limitation from
the first. Except the case of legal personal disqualification against marrying at
all, such as Lolley’s, to which we shall soon advert, we know but of one country
(France) where the validity of a foreign marriage between its own subjects is
tried by its own, and not the foreign law. French subjects, who are required at
home to obtain the consent of parents, &c., are required so equally, if they marry
out of France. Did such a broad personal rule obtain here, there would have
been no room for the present article ; and it is to such a result, that we are ade
dressing ourselves, unless the. rules of restriction can be so narrowed, as to ap-
prove themselves to the moral approbation of all the community, minority as well
as majority, that is, to those cases of affinity, which, by the common consent of the
country would be discountenanced, namely, affinities in one degree, as step-father

eo
§ 124.] MARRIAGE. 197

such divorce and second marriage would be unquestionably good
by the law of Scotland.1 So that, here, there may be two lawful

and step-daughter. We will now go on to examine the supposed second rule, as
to a foreign bona fide domicil being required. Our English supposed limitation
of the general rule, is not, as we have seen, treated by such of the civilians as
have espoused these views, as an absolute personal rule, but one merely in frau-
dem legis; and they therefore attach to the limitation this sub-limitation, that the
qualification will be removed by a sufficient domicil abroad. But sufficient by
what law ? The sufficiency according to the requirements of the foreign law is
admitted on all sides, Our law as to gonuiell proceeds on quite different grounds,
But supposing our law required a year’s residence to make a domicil in any place,
and the law of that place required two years, and also required domicil to ratify
the contract of marriage within it, it is evident, that we here, trying the validity
of such a marriage, should require the two years’ residence to be proved. These
civilians admit this, and require us to fulfil the foreign law in all cases. But then
they require a sufficient domicil by our law as well. They would split the unity
of the contract, and determine it partly by one law, and partly by the other.
They require two sorts of domicil to make up the marriage contract — the one by
the law abroad to get over the lex loci, the one by our law, not as essential to the
contract, but as evidence of the bona fides of the contract, and to get over the
quasi pedal disability they suppose, that is, the suspicion of intention to evade
our supposed prohibitory law. It is clear the bona fide domicil, they wouldexact,

must be by way of evidence, and evidence only. But if so, how can it be an es-
sential? Parties may marry without any intended fraud on their own law, where
not domiciled to the satisfaction of the civilians; or, what is more likely, may be-
come so domiciled with a positive intention to evade their own law. They may
get naturalized abroad, move their property there, do everything, which would
show a domicil with regard to the laws about personal estate, and yet all the while
it may be capable of clear proof, that they did this only, because they chose to be
married, and were not permitted.to be married here, and that they intended, and
did all for evasion. They may intend a permanent residence also, and merely
because they do not like the English law as to affinity. What would the civilians,
who countenance these refinements, say to this case? Their notion seems to have
arisen from viewing the law, as an individual, whose honor is to be vindicated,
and who is to be treated with at least outward show of observance and respect.
They make it, let it be observed, not a principle of English law merely, but of
general law; though they can find no instance in any one country to support it,

except iol Mahsfield’s manifestly erroneous dictum in a bill of exchange case.

To us the whole scheme seems altogether insupportable. A law, we shatile think,
is either local, or it is personal, and anything between we cannot comprehend.

If it were the case of a foreigner’s marriage here, would they ask, if he came here
in evasion of his own law? Or would they not rather sdy, with Fergusson, ‘A
party domiciled here cannot be permitted to import a law peculiar to his own.
case’ (Ferg. on Mar. and Div. 399.)” See also, Huberus, Lib. 1, tit. 3, De

* Lolley’s Case, 1 Russ. & Ryan, Cas, 237. See Warrender v. Warrender, 9
Bligh, R. 89 ; ante, § 86, 88; post, § 215 to 226. -
17%
198 CONFLICT OF LAWS. [cu. v.

wives of the party, living at the same time, in different countries,
and two families of children, one of which may be deemed legiti-
mate by the law of the one country, and illegitimate by the law. of
the other.1 It is easy to see what various difficulties may grow,
out of such a state of things. A son, by the second marriage,
may be entitled to the whole real and personal estate of the father
in Scotland, and incapable of touching either in England. The
Massachusetts doctrine escapes from these incongruities; and ap-
pears to be founded upon a liberal basis of international policy,
which deems it far better to support marriages, celebrated in a for-
eign country, as valid, when in conformity with the laws of that
country, although the rule may produce some minor inconve-
niences, than, by introducing distinctions as to the designs, and
objects, and motives of the parties, to shake the general confidence
in such marriages ; to subject the innocent issue to constant doubts
as to their own legitimacy ; and to leave the parents themselves to
cut adrift from their solemn obligations, when they may become
discontented with their lot.

124 a. It is no answer to this reasoning to say, that every na-
tion has a right, at its pleasure, to impose any restraints and pro-
hibitions upon the marriages of its own subjects, whether they
marry within or without its own territory. Admitting this to be
true in the fullest extent, to which it can justly be claimed in
virtue of national sovereignty, it must be quite as true, and quite
as obvious, that no other nation is bound to recognize those re-
straints, and those prohibitions, as obligatory upon such subjects,
while they are domiciled -within its own territory, or when they
have contracted marriages there, according to the laws thereof.
All such local municipal restraints and prohibitions, must, under
such circumstances, necessarily tend to mutual embarrassment
and confusion in the intercourse between such nations. The
very object of the rule, arising from the comity of nations, and a
sense of the importance and public policy of giving to marriages
everywhere the most solemn and binding obligation, is to secure

Conflictu Legum, § 13; Paul Voet, de Statut. § 9, ch. 2, n. 4, p. 268, edit. 1715 ;
Id. p. 319, edit. 1661. Lord Brougham, in Warrender v. Warrender, 9 Bligh, R.
129, 130, manifestly considered, that the doctrine, that a marriage in a foréign:
country was void, if it was a fraud upon the law of the domicil of the parties,
was not maintainable in point of law.

' Beazley v. Beazley, 8 Hage. Eccl. R. 639; Rex v. Lolley, 1 Russ. & Ryan,
Cas. 237.
§.124, 124 b.] MARRIAGE. 199

all nations against such a. conflict of laws. If France has chosen
to declare, that all marriages celebrated by its subjects in foreign
countries, in conformity with their laws, but not according to its
own laws, shall be utterly void, every other country has an equal
right to declare, that such marriages shall be deemed valid, and
refuse:to submit to the dictation of France. France may at home
enforce such laws upon her own subjects and their property, when
found within its territory. But every other nation, by. whose
laws the marriages celebrated therein would be valid, would sus-
tain such marriages, and treat the claims of France, as an usur-
pation, founded in injustice, and a disregard of the true duty. and
policy of all civilized nations in their intercourse with each other.

.[* 124 b. There is, unquestionably, serious difficulty in deter-
mining the exact limits of the acknowledged rule of international
law, that a foreign marriage, valid according to the law of the
place where it is celebrated, is “ good everywhere.” The limitation
defined by Lord Campbell, Chancellor, in. Brook v. Brook,! is cer-
.tainly characterized by great moderation and good sense: That
while the forms of the contract, the rites and ceremonies, proper,
or indispensable, for its due celebration, are to be governed by the
law of the place of contract, or of celebration, ‘the essentials of
‘the contract depend upon. the lex domicilii, the law of the coun-
try in which the parties are domiciled at the time of the marriage,
and in which the matrimonial residence is contemplated.” Hence
if the incapacity of the parties is such that no marriage could be
solemnized between them, or not without the consent, or agency
of other parties, as that of parents or guardians, and the parties,
without changing, or intending to change their domicil, go into
some other country, where no such restriction or limitation exists,
and. there enter into the formal relation, with a view to return
and dwell in the country where such marriage is prohibited by
positive law, it is but fair to say, that a proper self-respect would
seem to require, that the attempted evasion should not be al-
lowed to prevail. But where the evasion only extends to certain
formalities, there is no objection, in favor of the greater conven-
ience of the rule, to recognize the validity of the marriage thus de-
fectively celebrated, according to the law of the place of domicil.
It seems to us that this qualification of the rule, as to the general
binding force of the law of the place of celebration of marriage,

[* 2 7Jur. Nv S. 422; 9 Ho. Lds. Cas.]

¥
200 CONFLICT OF LAWS. [cH. VL

will enable us to steer clear of most of the embarrassments attend-
ing the question; and at the same time to reconcile most, if not
all of the conflict in the opinions of the leading jurists upon the
subject. And unless this qualification is allowed, there is produced
a state of anarchy and confusion upon the subject of this funda-
mental relation of society, whereby any state may be compelled to
recognize the perfect validity and binding force of polygamous
marriages. For polygamy is probably recognized, by the law of
nature, if the majority of the peoples of the earth are allowed
to determine that question by appeal to the past history of the
race. And if the practice of the Hebrews were conclusive upon
the matter, that will be found to bear in the same direction. ]

CHAPTER VI.

MARRIAGES. —INCIDENTS TO.

[* § 125. These incidents embrace personal capacity, rights of property, etc.

§ 126. The great diversity of laws existing in different countries.

§ 127. Law of domicil determines authority of husband.

§ 128. Statement of law of different countries.

§ 129. The conflict in the laws of two countries will illustrate the question.

§ 130. The French law is a community of estate, unless controlled by contract.

§ 131. There are other peculiarities of the French law.

§ 132. The husband is the head of the family and controls contracts.

§ 133. Contrast presented by English law stated.

§ 134. The property rights and personal power of wife suspended during covertare.

§ 135. The same contrast exists in the American States which derive their laws from
different sources. ;

§135 a. The subject divides itself into the disabilities of the wife, and the property
rights of both husband and wife.

§ 136. The disabilities of the wife attend wherever she goes.

§ 137. Where no change of domicil, her disabilities continue.

§ 138. Foreign jurists not agreed upon the point.

§ 139. The law of the existing domicil should govern.

§ 140. Many learned men contend for the lex rei site.

§ 1404, 141. The law of the actual domicil seems most to control.

§ 142. Confused opinions of some foreign jurists.

§ 143° How is the separate property of husband and wife affected by the marriage.

§ 144. These questions arise where there has been no change of domicil and where
there has been.

§ 145. How far the law of the place of celebration attaches to married relation.

§145a. Antenuptial contracts affected by the law of domicil.
§ 1248, 125.] MARRIAGES. — INCIDENTS TO. 201

§147. The law of domicil governs as to property rights of the parties.

"§ 148-157. Different theories of different foreign writers.

-§ 158. The result is, that as to all movables, and all property in the place of domicil
at the time of marriage, the law of that place governs, and as to immovables in other
countries, the lex red site will govern.

§ 159. This seems most in analogy to the principles of the common law.
§160. What principle shall govern where there is a change of domicil.
§161-169. Conflict among foreign jurists on these points.
§170. The law of Louisiana and of Scotland.
§171. No decisions.at common law. Lord Eldon’s dictum.
§171a. Upon principle the law of domicil should govern.
41718. This is now, practically, the law of England.
§.171c. No other rule practicable in America.
§172. The question often discussed in Louisiana.
-§173. The embarrassment of such questions not relieved by former discussions.
§174. The law of matrimonial domicil not carried to new domicil.
§175. Reason and convenience favor this rule.
$176. The courts in Louisiana adopt this rule.
§177. Even special contracts may only operate until change of domicil.
§.178. Special contract for community of estate will operate everywhere.
§.179. But married persons cannot stipulate for the control of foreign law.
§ 180. Where the parties marry in one state, but intend to reside in another, the laws
of-the latter control.
$181. This question is one of fact determinable by circumstances.
§ 182. Foreign laws must yield to repugnant domestic policy.
§182a. Validity of marriage settlements determined by law of domicil at their date.
§183. General doctrines of Louisiana law prevail in America.
§ 184. Antenuptial contract, if so intended, operates universally.
§ 185. If not so intended, will operate till change of domicil.
§186. If no special contract, law of matrimonial domicil controls.
§ 187. When no change of domicil, same rule controls as to'acquisitions before and
after marriage, otherwise the law of new domicil controls subsequent acquisitions.
§ 188. These rules are subject to that which gives the law of actual domicil pre-
eminence in cases of conflict.
§ 189. No conntry is bound to give effect to foreign laws in conflict with its own
settled policy.
§190. Tacit understandings of the parties have“no legitimate force against positive
law.
§.191. Many perplexing questions as to actual matrimonial domicil.
§ 192. Where the law of the place of celebration and of the domicil of the parties con-
cur there is no difficulty.
§193. If not, the law of the place of intended domicil will control.
§ 194-199. The law of the domicil of the husband will control, unless some other is
in the contemplation of the parties.]

§ 125. Havine considered how far the validity of marriages is
to be decided by the law of the place where they are celebrated,
we are next led to consider the operation of foreign law upon the
incidents of marriage. These may respect either the personal ca-
pacity and powers of the husband and wife, or the rights of each
202 CONFLICT OF LAWS. [CH. VI.

in regard to the property, personal or real, acquired, or held by
both or either of them during the coverture.!

-§126. The jurisprudence of different nations contains almost
infinitely diversified regulations upon the subject of the mutual
obligations and duties of husband and wife, their personal capaci-
ties and powers, and their mutual rights and interests in the prop-
erty belonging to, or acquired by each, during the existence of the
marriage; and the task of enumerating all of them would be as
hopeless as it would be useless. Before the Revolution there were
in France a multitude of such diversities in the local and custom-
ary law of her own provinces; and in Germany, and the states of
Holland and Italy, and the vast domains of Austria and Russia,
the like diversities existed, and probably still continue to exist.
Froland has enumerated a few of these diversities, and by way of
illustrating the endless embarrassments arising from the conflict of
laws of different provinces and nations ;? and his ample work is
mainly devoted to a consideration of the mixed questions, arising
from the conjugal relation, as affected by different laws in different
provinces and nations. In some of the French provinces before
the Revolution, a married woman had a separate power to con-
tract; in others she had not.2 In Holland, under the old laws
thereof the husband had the sole power to dispose of all the prop-
erty of his wife ; and she was entirely deprived of any power over
it. In Utrecht her consent was necessary, if there were not chil-
dren by the marriage; and in some other places, whether there
were or were not children. In Utrecht the husband and wife were
disabled from making donations to each other; in Holland they
may or might make them. In some states there is a community

* See on the subject of this chapter, 1 Burge, Comm. on Col. and For. Law, Pt.
1, ch. 6, § 1, 2, p. 201 to p. 262; Id. ch. 7, § 1, p. 262 to p. 276.

? Froland, Mémoires, ch. 1, § 7, 8.

* Id.; Henry on Foreign Law, 31. See also, 1 Boullenois, ch. 1, p. 421; Id.
p. 467, 468; Merlin, Répert. Autoris. Maritale, § 10. _

* 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 2, p. 276, 302.

° Rodenburg, De Divers. Stat. tit. 2, ch. 5,§ 9; 2 Boullenois, Appx. p. 39. —
It may be useful here to state, (once for all,) that, in referring to the laws of dif-
ferent countries, I generally state them as they formerly were, without any atten-
tion to the changes which they may actually have undergone. The reasoning of
the foreign jurists upon this subject would be rendered exceedingly obscure, and
sometimes incorrect in any other way ; and the object of this work is not so much
to show what particular conflicts of laws may now arise from the present jurispru-
dence of a particular country, as to illustrate the principles which different ju-
§ 125 -128.] MARRIAGES. — INCIDENTS TO. 208

of property between husband and wife; in others none;.and in
‘others again, mixed rights and qualified claims.

Ԥ127. Boullenois has put several cases, showing the practical
difficulties of this conflict of laws. Suppose a husband domiciled
in a place’where he cannot bind his wife, if he contracts alone and
without her, although she is under his marital power and author-
ity; and the husband should go to, and contract in a place, where,
by reason of this authority, he can bind his wife by binding him-
self; will the latter contract bind her? He answers in the negative;
because the obligation of the wife does not spring from the nature
of the contract, nor from the place of the contract, but from the
marital authority, which has no such effect in the place of his
domicil.2 In Brittany, formerly, when a husband and wife were
each bound in solido for the same contract or debt, payment was
to be first sought out of the effects of the husband. But in Paris,
upon a like contract, the effects of the husband and wife were
formerly indiscriminately bound. Suppose, then, that at that pe-
riod married persons, domiciled in Brittany, had gone to Paris and
there contracted, or that married persons domiciled in Paris had
gone to Brittany and there contracted, in what manner should the
creditor seek payment? Boullenois seems to have held that in
such a case the laws were to be followed, which regulate the es-
tate and condition of the wes that is to say, the laws of her
domicil.?

§ 128. It is hardly possible to enumerate the different rules
adopted in the customary law or in the positive law of different
provinces of the same empire, upon the subject of the rights of
husband and wife. In some places the laws, which place the wife
under the authority of her husband, extend to all her acts, as well
to acts inter vivos as to acts testamentary. In others, the former
only are prohibited. In some places the consent of the husband
is necessary to give effect to the contracts of the wife. In others,
the contract is valid, but is suspended in its execution during the
rists have adopted in solving questions relating to the conflicts of laws generally.
See 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 2, p. 276 to p. 332,
where there will be found a summary of the laws of Holland on the subject of this
chapter.

y Burge, Comm. on Col. and For. Law, ch. 7, § 1 to § 8, p. 262 to p. 561;
Henry on Foreign Law, ch. 1, § 8, p. 10, 36, note; Id. 95; 1 Boull. Obs. 15, p.

198; Id. Princ. Gén. 8, p. 8.
* Boullenois, Obs. 46, p. 467. * Id. p. 468, 469.
204 CONFLICT OF LAWS. [cH. VL

life of the husband. In some places the wife has no power over
the administration of her own property. In others, the prohibition
is confined to property merely dota/, and she has the free disposal
of her own property, which is called paraphernal.'

—$4297-But not to perplex ourselves with cases of a provincial
and untsal nature, let us attend to the differences on this sub-
ject in the existing jurisprudence of two of the most polished and
commercial states of Europe, in order to realize the variety: of
questions which may spring up and embarrass the administration
of justice in the tribunals of those countries.

§ 180. The present code of France does not undertake to regu-
late the conjugal association as to property, except in the absence
of any special contract, which special contract the husband and
wife may, under certain limitations, make, as they shall judge
proper. When no special stipulations exist, the case is governed
by what is denominated the rule of community, le régime de la
communauté. This community, or nuptial partnership, generally.
extends to all the movable property of the husband.and wife, and
to the fruits, income, and revenues thereof, whether it is in pos-
session, or in action at the time of the marriage, or it is subse-
quently acquired. It extends also to all immovable property of
the husband and wife acquired during the marriage; but not to
such immovable property as either possessed at the time of mar-
riage, or which came to them afterwards by title of succession, or
by gift.2 The property thus acquired by this nuptial partnership,
is liable to the debts of the parties existing at the time of the
marriage; to the debts contracted by the husband during the
community, or by the wife during the community with the con-
sent of the husband; and to debts contracted for the maintenance
of the family, and other charges of the marriage. As in com-
mon cases of partnership, recompense may be claimed and had
for any charges, which ought to be borne exclusively by either
party. The husband alone is entitled to administer the property
of the community; and he may alien, sell, and mortgage it with-
out the concurrence of the wife. He cannot, however, dispose

+ 2 Boullenois, Obser. 32, p. 11; 1 Domat, B. 1, tit. 9, p. 166, 167; Id. § 4, p.
179, 180, &c. See also, 1 Froland, Mém, per tot.; Merlin, Répert. Autoris. Ma-
ritale, § 10; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 6, § 1, p- 201-to p.
244; Id. ch. 7, § 1 to § 7, p. 262 to 561.

* Code Civil of France, art. 1887 to 1408 ; Id. art. 1497 to 1541.
§ 128 -182.] MARRIAGES. — INCIDENTS TO. 205

inter vivos, by gratuitous title, of the immovables of the commu-

.nity, or of the movables, except under particular circumstances ;
and testamentary dispositions made by him cannot exceed his
share in the community.1. The community is dissolved by natu-
ral death, by civil death, by divorce, by separation of body, or by
separation of property. Upon separation of body, or of prop-
erty, the wife resumes her free administration of her movable
property, and may alien it. But she cannot alien her immovable
property without the consent of her husband, or without being
authorized by law uponchis refusal. Dissolution of the marriage
by divorce gives no right of survivorship to the wife; but that
right may occur on the civil death or the natural death of the
husband. Upon the death of either party, the community being
dissolved, the property belongs equally to the surviving party, and
to the heirs of the deceased, in equal moieties, after the due ad-
justment of all debts, and the payment of all charges, and claims
on the fund.*

§ 181. Such is a very brief outline of some “of the more im-
portant particulars of the French Code, in regard to the property
of married persons, in cases of community. The parties may
vary these rights by special contract, or they may marry under
what is called the dotal rule le régime dotal. But it would carry
us too far to enter upon the consideration of these peculiarities,
as our object is only to point out some of the broader distinctions
between the English and the French law, as to the effects of
marriage.

§ 182. In regard to the personal rights, and capacities, and
disabilities of the parties, it may be stated, that independent of
the ordinary rights and duties of conjugal fidelity, succor, and
assistance, the husband becomes the head of the family; and the
wife can do no act in law without the authority of her husband.
She cannot, therefore, without his consent, give, alien, sell, mort-
gage, or acquire property. No general authority, even though
stipulated by a marriage contract, is valid, except as to the ad-
ministration of the property of ‘the wife. But the wife may make
a will without the authority of her husband. If the wife is a
public trader, she may, without the authority of her husband,
bind herself in whatever concerns her business; and in such case

1 Td. art. 1409 to 1440.
* Code Civil of France, art. 1441 to 1496,
CONFL, 18
206 CONFLICT OF LAWS. [cu. vi.

she also binds her husband, if there is a community between
them. :
§ 133. If we compare this nuptial jurisprudence, brief and im-
perfect as the outline necessarily is, with that of England, it
presents, upon the most superficial examination, very striking
differences. In the first place, as to personal rights, capacities,
and disabilities, the law of England, with few exceptions, (which
it is unnecessary here to mention,) places the wife completely
under the guardianship and coverture of the husband. The hus-
band and wife are, in contemplation of law, one person. He
possesses the sole power and authority over the person and acts
of the wife; so that, as Mr. Justice Blackstone has well observed,
the very being, or legal existence of the wife, is suspended during
the marriage, or at least, is incorporated and consolidated into
that of the husband.? For this reason, a man cannot grant any-
thing to his wife, or enter into a covenant with her during his
life, though he may devise to her by will. She is incapable of
entering into any contract, executing any deed, or doing any other
valid act in her own name. All suits, even for personal injuries
to her, must be brought in the name of her husband and her-
self, and with his concurrence. Upon the marriage, the husband
becomes liable to all her debts; but neither the wife, nor her
property is liable for any of his debts. In the Roman law, and
(as we have seen) in the French law, the husband and wife are,
for many purposes, considered as distinct persons, and may have
separate estates, contracts, rights, and injuries.®

§ 134. In respect to property, in England, the husband, by the
marriage, independent of any miarriage settlement, becomes ipso
facto entitled to all her personal or movable property of every de-
scription, in possession, and in action, and may dispose of it at his
pleasure. He has also a freehold in her real estate during their
joint lives; and if he has issue by her, and survives her, he has a
freehold also during his own life in her real estate ; and an exclu-
sive right to the whole profits of it during the same period. There
is not any community between them in regard to property, as in
the French law. Upon his death she is simply entitled to dower

* Code Civil of France, art. 212 to 226, art. 1426; 2 Toullier, Droit. Civ. art
618 to 655.

* 1 BI. Comm. 441; 2 Story, Eq. Jurisp. ch. 86, § 1366 to 1429.

* 1 Bl. Comm. 441; 2 Story, Eq. Jurisp. ch. 36, § 1866 to 1429; 1 Brown Civ.
Law, 82; 2 Kent, Comm. Lect. 28, p. 129, &c. 3d edit.
§ 132-186.] MARRIAGES. — INCIDENTS TO. 207.

of one third of his real estate during her life; and he may, at his
pleasure, by a testamentary disposition, deprive her of all right
and interest in his personal or movable estate, although the whole
of it came to him from her by the marriage. During the cover-
‘ture she is also incapable of changing, transferring, or in any man-
ner disposing of her real estate, except with his concurrence; and
she is incapable of making an effectual will or testament.)

§ 185. Now, these differences, (which are by no means all which
exist,) exemplified in the French laws and in the English laws,
are, for the most part, the very same as exist in America between
the States settled under the common law, and those settled under
the civil law ; between those deriving their origin from Spain or
France, and those deriving their origin from England.27 We may
see at once, then, upon a change of domicil, or even of temporary
residence, from a state or country governed by the one law, to an-
other governed by the other law, what various questions of an in-
teresting and practical nature may, nay must, grow up from this
conflict of local and municipal jurisprudence.

§ 185 a. The subject naturally divides itself into two heads;
first, the effect of the marriage upon the personal capacities and
incapacities of the wife, or in other words, her disabilities and her
powers, consequent upon the marriage ; and secondly, the effect of
the marriage upon the rights and interests of the husband or wife,
or of both of them, in the property belonging to them at the time
of the marriage, or subsequently acquired by them. We will ex-
amine them under these two separate heads, although (as we shall
presently see) some of the considerations applicable to them mu-
tually run into each other.

§ 186. And in the first place, as to the capacities and disabilities
of the wife. It is extremely difficult upon the subject of the per-
sonal capacities and disabilities of the wife to lay down any satis-
factory rule, as to the extent to which they are or ought to be re-
cognized by foreign nations. In general, she is deemed to have
the same domicil as her husband; and she can during the cover-
ture acquire none other, suo jure.2 Her acts, done in the place

1 2 Kent, Comm. Lect. 28, p. 129, &c. 3d edition ; 2 Black. Cofhm. 433.

* 2 Kent, Comm. Lect. 28, p. 183, and note, 3d edit. See 1 Domat, B. 1, tit.
9; Id. tit. 10. See Christy, Louisiana Digest, art. Husband and Wife, and Lou-

‘isiana Code, art. 121 to art. 133.

® Ante, § 46. See on this subject, 1 Burge, Comm. on Col. and For. Law, Pt.
1, ch, 6, § 2, p. 244 to p. 262.
208 CONFLICT OF LAWS. [cH. VI

of her domicil, will have validity or not, as they are, or are not,
valid there. But as to her acts done elsewhere, there is much
room for diversity of opinion and practice among nations. We
have seen, that many of the civilians and jurists of continental
Europe hold, that the capacity and incapacity of married women,
as in other cases of the personality of laws, accompany them every-
where, and govern their acts... And Mr. Chancellor Kent has
said, that as personal qualities and civil relations of a universal
nature, such as infancy and coverture, are fixed by the law of the
domicil, it becomes the interest of all nations mutually to respect
and sustain that law.2 This is true in a general sense. But every
nation will judge for itself, what its own interest requires, and, in
framing its own jurisprudence, will often hold acts valid within its
own territories, which the laws of a foreign domicil might prohibit,
or might disable the parties from doing.

§ 187. In considering this subject, it is material, at least so far
as foreign jurists are concerned, to distinguish between cases,
where there has been a change of domicil of the parties, and
where there has not been any such change of domicil. Where
the domicil of marriage remains unchanged, the acts of the wife,
and her power over her property in a foreign country, are held by
many foreign jurists, to be exclusively governed by the law of her
domicil ; in other words, her acts are valid, or not, as the law of
her domicil gives her capacity or incapacity to do them.? And
the rule is applied to her immovable property, as well as to her
movable property. Thus, if by the law of her domicil she cannot
alien property, or cannot contract, except with the consent of her
husband, she cannot alien her property and cannot contract, with-
out such consent, in a foreign country, where no such restriction
exists.‘ But suppose that the parties afterwards remove to a new
domicil, where the consent of the husband is not necessary, is the
law of the new domicil, as to the capacity of the wife, to prevail,
or that of the matrimonial domicil? This is a question upon
which foreign jurists have been greatly divided in opinion.

1 See ante, § 51, 55, 56, 57, 58, 60; Henry on Foreign Law, p. 50; Fergusson
on Marr. and Biv. 334 to 336; Merlin, Répert. Autoris. Maritale, § 10.

* 2 Kent, Comm. Lect. 39, p. 419, 8d edit.

® Ante, § 51 to § 55, 57, 64, 65; post, § 141.

* Merlin, Répert. Autoris. Maritale, § 10, art. 2; Pothier, Cout. d’Orléans,:

ch. 1, n. 7, 15; ante, § 51 to 54, § 64, 65, 69; Le Breton v. Miles, 8 Paige, R. 261.
5 See Merlin, Répertoire, Effet Rétroactif, § 2, 8, art. 5; Autorisation Mari-
§.136 - 188.] MARRIAGES. — INCIDENTS TO. 209

§.188. We may illustrate this distinction by a few examples.
Thus, for example, the law of England disables a married woman
from making a will in favor of her husband or any other person ;
the law of France allows it. Suppose a husband and wife, mar-
ried in and subjects of England, should temporarily or permanently
become domiciled in France; would a will of the wife in France,
in regard to her property in England, made in favor of her hus-
band or others, be held valid in England?! Many foreign jurists,
among whom may be enumerated Hertius, Paul Voet, John Voet,
Burgundus, Rodenburg, Pothier, and Merlin, hold the opinion
that the law of the new domicil, must in all cases of a change of
domicil, govern the capacities and rights of property of married
women, as well as their obligations, acts, and duties.2. Froland (it
should seem) would answer this particular question upon princi-
ple in the affirmative, as a mere question of capacity or incapacity,
or status of the wife ; for he holds, that the capacity or incapacity
of married women to do things changes with their domicil; and
that acts, valid by the law of their original domicil, if done in’
a new domicil, by whose laws they are void, are to be deemed nul-
lities2 Thus, he says, that a married woman, who is incapable by
the law of her domicil, where the Roman law (Droit Ecrit) pre-
vails, of entering into a suretyship for another, by the Senatus con-
sultum Velleianwm, or of contracting with her husband, as in Nor-
mandy, if she goes to reside at Paris, where no such law exists, is
there deprived of that exception. And, on the other hand, a
woman married and living at Paris, and afterwards going to re-
side in Normandy, or in any other country, where the Roman law
prevails (Droit Ecrit), loses her capacity to enter into any such
contract, which she previously possessed. Yet Froland has in
tale, § 10; ante, § 55 to 62. See also, 1 Burge, Comm. on Col. and For. Law,
Pt. i, ch. 5, § 2, p. 244 to p. 262.

See Merlin, Répert. Testament, § 1, 5, art. 1, 2, p. 309 to p. 319.

* Ante, § 55 to 62; post, § 140, 141. See also, 1 Burge, Comm. on Col. and
For. Law, Pt. 1, ch. 6, § 2, p. 253 to p. 261.

* 1 Froland, Mém, 172; ante, § 55.

* 1 Froland, Mém. 172; 1 Boullenois, Obser. 4, p. 61; 2 Boullenois, Obser. 32,
p- 7,18. Froland has some subtile distinctions on this subject, whieh, to say the
least of them, are not in a practical sense very clear. Lest I should: misstate the
purport-of his remarks, I will quote them in the original, having already referred
to them in another place. “ Quand il s’agit de l’etat universel de la personne,
abstraction faite de toute matiére réelle, abstracte ab omni materia reali, en ce cas
le statut, qui a commeneé A fixer sa condition, conserve sa force et son authorité,

18* .
210 CONFLICT OF LAWS. [cH. v1.

some other places made distinctions, and insisted on a different
rule, as applicable to the rights of married women in the property
of their husbands, holding that those rights are governed by the
law of the place of the marriage, rather than by that of the subse-
quent actual domicil.?

§ 189. Other foreign jurists, however, have given a different
response to the general question ; for we have already seen, that
in regard to personal laws, there is much conflict of opinion among
them, how far these laws are affected by any change of domicil.?
Huberus holds a somewhat modified opinion.2 Bouhier maintains
the opinion in the broadest terms, that in respect to the rights de-
rived from the marital power (Puissance maritale), the law of the
matrimonial domicil determines the state or condition of the wife,
and by consequence the extent of the marital authority ; and this
state or condition of the wife being once fixed, cannot be after-
wards changed by any change of domicil.4 Dumoulin seems to
have entertained the same opinion.’ Merlin also at one time bent
the whole strength of his acknowledged ability, to establish the
doctrine, that the law of the matrimonial domicil, and not of the
new domicil, as to the capacity and incapacity of the wife, ought
to prevail. He reasoned it out principally in his examination of
et la suit par tout en quelque endroit, qu’elle aille. — Mais quand il est question
de Phabileté ou inhabileté de la personne, quia changé de domicile, a faire une
certaine chose, alors le statut, qui avoit réglé son pouvoir, tombe entiérement &
son égard, et cede tout son empire & celui dans le territoire duquel elle va demeu-
rer.” 1 Froland, Mém. 171, 172; ante,§55. See 2 Boullenois, Observ. 32,
p: 7 to p. 10; Bouhier, Cout. de Bourg. ch. 22, § 6 to 14; Id. § 30 to 38; Id.
§ 148, 149,

‘ 1 Froland, Mém. Pt. 2, ch. 4, p. 340 to p. 408 ; 2 Boullenois, Obser. 32, p. 22,
23, 29.

* See ante, § 55 to § 62; 1 Boullenois, Observ. 13, p. 187, 188 top. 196; Id.
p- 200; 2 Boullenois, Observ, 32, p. 2; Id. Observ. 32, p. 14, 15,17, 19 tee
Obie. 37, p. 204; Rodenburg, De Div. Stat. tit. 2, ch. 1, § 3; Id. Pt. 2, ch. 1,
§ 1; 2 Boullenois, Ree p- 12.; Id. 55, 56, and 2 Boullexiois, Observ. 32, p. 22 to
p. 28; Henry on For. Law, p. 50, 51;' Merlin, Répert. Antoris. Maritale, § 10;
Id. Effet. Rétroactif, § 3, n. 2, art. 3; Bouhier, Cout. de Bourg. ch. 22, § 4 to
§ 108, and especially § 67 and 68; 1 Bunge, Comm. on Col. and For. Law, Pt. 1,
ch. 6, § 2, p. 253 to p. 262.

2 Ante, § 60, 61; ae § 145; Huber, ‘Lib. 1, tit. 8, De Conflict. Leg, § 12,
18; Id. § 9. « u .

’ Bouhier, Cout. iS caer: a 22, §.22 to 27; Id.§ 45 to 47; Id. § 48 to 66;
Id. § 69,70; Id: § 79, 80, 82, 835 Td..§ 89, 90; Ta. § 147,

5 Molin. Oper. Comment: ad. Cod, Lib, 1, tit 1, 1.1; Conclus, De Statutis.
Tom. 3, p. 555, ed. 1681.
§ 188-140 a.] MARRIAGES. — INCIDENTS TO. 211

the subject of the marital power, or the incapacity of the wife, ac-
cording to certain local laws, to do any valid act, make any con-
veyance, or engage in any contract, without the consent and
authorization of her husband. And he then held, that this inca-
pacity is not changed by a change of domicil to a place, in whose.
laws it has no existence.! After maintaining this opinion (as he
himself says) for forty years, he has recently changed it, and ad-
hered to the doctrine, that the law of the new domicil ought to
govern. In discussing the nature and extent of the parental
authority, conferred by the domicil of birth, in regard to foreign
property, he seems to have been aware of the difficulties of his
early doctrine ; and he has said, with great truth, that to put an
end to all the difficulties of such cases, it is necessary to make a
uniform law, not for France oBly, but for the world; for the set-
tlement of a foreigner in France, or of a Frenchman in a foreign
country, would at once raise them anew, notwithstanding all the
regulations of the present Civil Code of France.2 His reasoning
upon the testamentary power, and the manner in which it is af-
fected by the situs of the property, also affords very strong proof
of the intrinsic infirmity of all general speculations on this sub-
ject.4

‘$140. It has been already intimated, that the opposite opinion
has been maintained by many jurists. Let us briefly refer to the
Opinions of a few of them. Hertius has put the following case.
By the law of Utrecht married persons are incapable of making a
will of property in favor of each other; not so in Holland. Is
such a will of property in Utrecht made by married persons in
Holland, valid? Or, e contra, is such a will, made by married
persons in Utrecht, of property in Holland, valid? He answers
the former question in the negative, and the latter in the affirm-
ative.5

§ 140 a. The language of Burgundus is still more direct, he
affirming in every case of this sort, as to the rights and powers of
the husband and wife, that they are regulated by the law of the

1 Bouhier, Cout. de Bourg. ch. 22, § 22 to 32, § 45.

2 Merlin, Répert. Effet Retroactif, § 3, n. 2, art. 5, p.15; Id. Autorisation Ma-
ritale, § 10, art. 4, p. 243, 244; Id. Majorité, § 5; ante, § 58, 59.

3 Merlin, Répert. Puissance Paternelle, § 7, art. 1, 2, 3.

“ Id. Testament, § 1, § v. art. 1, 2, p. 809 to p. 319.

5 Hertii, Opera, De Collis. Leg. § 4, p. 142, § 42, 43, edit. 1787 ; Id. p. 201, edit.
1716, i
212 CONFLICT OF LAWS. [ CH. VI.

new domicil. Proinde, ut sciamus, uxor in potestate sit mariti,
necne, quad @etate minor contrahere possit, et ejusmodi, respicere,
oportet ad legem cujusque domicilii. Hac enim imprimit qualita-
tem persone, atque adeo naturam ejus afficit, ut quocunque terrarum..
sit transitura, incapacitatem domi adeptam, non aliter quam cica-
tricem in corpore foras circumferat. Consequenter dicemus, si mu-
taverit domicilium persona, novi domicilii conditionem induere.

§ 141. Rodenburg has distinguished the cases on this subject
into two sorts: (1) those in which there is no change of domicil
of the married parties ; (2) and those in which there is a change
of domicil. In the former case he holds, that the capacity and in-
capacity by the law of the domicil extends everywhere. In the
latter case, that the capacity and incapacity of the new domicil at-
tach.2 So that, according to him, the disabilities of a wife by the
law of her domicil attach to all her acts, wherever done, at home
or abroad, as long as the domicil exists.2 But upon a bond fide
change of domicil by her husband, she loses all disabilities, not ex-
isting by the law of the new domicil, and acquires all the capaci-
ties allowed by the latter. Hence, if a husband, who by the law
of his domicil has his wife subject to his marital authority, changes
his domicil to a place, where no such law exists, or e contra, if he
changes his domicil from a place, where the wife is exempt from
the marital power, to one where it exists; in each case the wife
has the capacity or incapacity of the new domicil. Fac, igitur, vi-
rum, qui per leges loci, ubi degit, uxorem habeat in potestate, collo-
care domicilium alio, ubi in potestate, virorum uxores non sunt; vel
vice versd. Dicendumne erit, induere uxorem potestatem qué pris
liberdta, et exuere, cui alligata est? In affirmationem sententiam
deduct videmur per tradita Burgundi. Et recte; persone enim
status et conditio, cum tota regatur a legibus loci, cui illa sese per
domicilium subdiderit, utique mutato domicilio, mutari necesse est
persone conditionem.> Boullenois holds on this point the same
opinion. Rodenburg puts another case. By the law of Holland

? Burgundus, Tract. 2, u. 7, p. 61.

* Rodenburg, de Div. Stat. tit. 2, ch. 1, §1; Id. Pt. 2,ch.1, §1; Id. ch. 4,
§ 1; 2 Boullenois, App. p. 10, 11; Id. p. 55, 56; Id. p. 63,

* Ibid. * Ibid.

. Rodenburg, De Divers. Stat. tit. 2, Pt. 2, ch. 1, § 1; 2 Boullenois, App. p-
55, 56; Burgund. Tract. 2, n. 7.

* 1 Boullenois, Observ. 4, p. 61, 62; Id. Observ. 16, p- 205; 2 Boullenois, Ob-
serv. 32, p. 7 to p. 54; Id. p. 81, 82; Id. Observ. 35, p. 98 to p- 112.
§ 140 a—142.] MARRIAGES. — INCIDENTS TO. 213

married persons may make a will in favor of each other; by the
law of Utrecht, not. Suppose a man and wife, who are married
in Holland, move to Utrecht, is the will between them, previously
made, good? And he decides in the negative.}

§ 142. Boullenois, however, has himself put a case, which he
seems to decide upon a ground, which breaks in, in some measure,
upon the general doctrine. He supposes the case of a woman
domiciled, and married in a country using the Roman law (Droit
Ecrit,) toa man belonging to the same country. She has the right
and capacity by that law to enjoy her paraphernal property there,
and to alienate it independently of her husband,? and without his
being entitled to intermeddle in the administration of it in any
manner. He then puts the question, whether, if her husband
goes to reside at Paris, (where no sucli law exists,) then she falls
under his marital authority, so as to lose from that period the ad-
ministration and alienation of her paraphernal property? Boul-
lenois admits, that she falls under the marital authority ; but at
the same time he contends, that she has, notwithstanding, the
tight of administering and alienating her paraphernal property ;
because it was given to her by the contract of marriage, supported
by the law of her matrimonial domicil; and that her husband can-
not by a change of domicil extinguish her right, founded upon
such authentic titles. And though she cannot act without the
consent of her husband in such administration and alienation ;
yet he is bound to give such consent. But Boullenois is com-
pelled to admit other exceptions to the doctrine, where other con-
siderations are mixed up in the case. Thus he says: Suppose a
woman is married at Paris, and has a community of property with
her husband there, and she has property at Aix or Toulouse, and
her husband goes to reside at either of these places; the question
is, whether she is at liberty to sell her property there without the
authority or consent of her husband; and he holds, that she can-
not sell her property there without the consent of her husband,
although she was married at Paris. The reason he assigns is;
because in the countries governed by their own customary law, the

 Rodenburg, De Div. Stat. tit. 2, Pt. 2, ch. 4, § 1; 2 Boullenois, Appx. p. 63;
Id. p. 81; Id. Obs. 35, p. 93 to p. 112.

* 1 Domat, B. 1, tit. 9, p. 167; Id. § 4, p. 179, 180.

® 2 Boullenois, Observ. 32, p. 20, 21; Id. p. 22 to p. 28. See Bouhier, Cout.
de Bourg. ch. 22, § 28 to § 30; Id. § 40 to § 45.
214 CONFLICT OF LAWS. f [cH. vi.

property of a married woman in community is deemed dotal prop-
erty; and is presumed to have been brought there by the parties}!
as such; and that such property, as dotal property, is-less alien-
able at Aix and Toulouse than in countries governed by their cus-
tomary law; and that in those Provinces, as well as in Paris, the
husband has the right of the administration of dotal property dur-
ing the marriage ; so that the change of domicil does not make
the right of the husband to cease. But (he adds) if the woman,
married at Paris, had no community of property, and having the
administration thereof, came to reside at Aix or Toulouse, then
she might sell her property without the authority of her husband,
even if situate in Paris; because she is no longer under the au-
thority of her husband, who has no interest in the sale. But,
if there were no such community, then he holds, that she might
sell.4

§ 148. Passing from the consideration of the personal capaci-
ties, disabilities, and powers of the wife, and of the examination
of the different opinions of foreign jurists respecting them in cases
where there has been no change of domicil, and in cases where
there has been such a change, let us in the next place examine
into the effect of marriage upon the mutual property of the hus-
band and wife, and their respective rights in and over it.2 The
marriage may have taken place with an express nuptial contract,
or arrangement, as to the property of the parties; or it may have
taken place without any such contract or arrangement. The prin-
cipal difficulty is not so much to ascertain, what rule ought to
govern in cases of an express nuptial contract, (at least, where
there is no change of domicil,) as what rule ought to govern in
cases where there is no such contract, or no contract, which pro-
vides for the emergency. Whiere there is an express nuptial con-
tract, that, if it speaks fully to the very point, will generally be
admitted to govern all the property of the parties, not only in the
matrimonial domicil, but in every other place, under the same lim-
itations and restrictions, as apply to other cases of contract. But

* 2 Boullenois, Observ. 32, p. 22, 28, 24. See 2 Froland, Mém. 1007 to 1064;
Bouhier, Cout. de Bourg. ch. 22, § 5 to § 10; Id. § 28 to § 32; J. Voet, ad Pand.

Lib. 5, tit. 1, § 101; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 6, § 2,
p. 244 to p. 262.

* See 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 8, p. 599 to p.
640.

* See Le Brun, Traité de la Communauté, Liv. 1, ch, 2, § 2; Murphy v. Mur-
§ 142-145.] MARRIAGES. — INCIDENTS TO. 215

where there is no express nuptial contract at all, or none speaking
to the very point, the question, what rule ought to govern, is
surrounded with more difficulty. Is the law of the matrimonial
domicil to govern? Or is the law of the local situation of the
property? Or is the law of the actual or new domicil of the par-
ties? Does the same rule apply to movable property as to immov-
able property, when it is situated in different countries?! Boulle-
nois has remarked, that even on the subject of marriage contracts,
the law of the place of the contract will not always decide all the
questions arising from it. Many of the questions touching it
must be decided by the law of the domicil of the parties, and
sometimes by the law of the domicil of one of them.

§ 144. Two classes of cases naturally present themselves in con-
sidering this subject. First, those, where during the marriage
there is no change of domicil; secondly, those, where there is
such a thange.*

§ 145. And first, in cases where there is no change of domicil,
and no express nuptial contract. Huberus lays down the doctrine,
in-broad terms, that not only the contract of the marriage itself,
properly celebrated in a place according to its laws, is valid in all
other places ; but that the rights and effects of the marriage con-
tract, according to the laws of the place, are to be held equally in
force everywhere. Thus, he says, in Holland married persons
have a community of all their property, unless it is otherwise
agreed in their nuptial contract; and, that this will have effect in
respect to property situate in Friesland, although in that province
there is only a community of the losses and gains, and not of the
phy, 5 Martin, R. 83; Lashley v. Hogg, Robertson’s Appeal Cases, 4; Feaubert
». Turst, Preced. in Chan. 207, 208. This doctrine has been fully recognized in
England, in the case of Anstruther v. Adair, 2 Mylne & Keen, 513; post, § 184;
Le Breton v. Miles, 8 Paige, R. 261.

* In some foreign Codes, there are express provisions, that marriage contracts
shall not fix the rights of the couple according to the law of foreign countries.
In France, there is an effective prohibition of contracts regulating marriage rights
by the old customs of the provinces which it has abolished. Code Civil, art. 1390.
See also Bourcier v. Lanusse, 3 Martin, R. 581.

‘4 1 Boullenois, Prin. Gén. 48, p. 11. See also Dig. Lib. 5, tit. 1, 1. 65.

® Tbid. 3

* See 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 8, p. 599 to p.
640.

§ Huberus, Lib, 1, tit. 83, § 9; post, § 169; 1 Burge, Comm. on Col. and For.
Law, Pt. 1, ch. 6, § 2, p. 244 to p. 262.
216 CONFLICT OF LAWS. [CH- VI.

property itself. Therefore, (he adds,) a Frisian married couple
remain after their marriage the separate owners, each of their own
property situated in Holland. But whenever a married couple
remove from the one province, (Holland,) into the other, (Fries-
land,) the property, which afterwards comes to either of them,
ceases to be in community, and is held ine distinct proprietary
rights. But their antecedent property, held in community, re-
mains in the state or right, in which they originally possessed it.
Porro, non tantum ipsi contractus ipseque nuptie certis locis rité
celebrate, ubique pro justis et validis habentur ; sed etiam jura et
effecta contractuum nuptiarumque, in tis locis recepta, ubique vim
suam obtinebunt. In Hollandia conjuges habent omnium bonorum
comunionem, quatenus aliter pactis dotalibus non convenit. Hoc
etiam locum habebit in bonis sitis in Frisia, licet ibt tantum sit com-
munio questus et damni, non ipsorum bonorum. Ergo et Frizti
conjuges manent singuli rerum suarum, etiam in Hollandia sita-
rum, domint; cum primum vero conjuges migrant ex una provincia
in aliam, bona deinceps que, alteri adveniunt, cessant esse commu-
nia, mgnentque distinctis proprietatibus ; sic ut res antea communes
facte, manent in eo statu juris, quem induerunt.1 The example
he thus puts, obviously shows that his doctrine is applied to cases
where there is no express contract.

§ 145 a. Mr. Chancellor Kent has applied the doctrine of Hu-
berus in the case of an express antenuptial contract between the
parties ; and has laid down the rule, that the rights, dependent
upon nuptial contracts, are to be determined by the lex loci con-
tractés.2 This may be generally correct, in regard to cases of ex-
press or of implied nuptial contracts ; and it is probable that none
other were at the time in the mind of the learned judge. But we
shall presently see, that, as a general question, in regard to the
universal operation of the lex loci matrimonii, there is much con-

. troversy upon the subject among foreign jurists.

§ 146. There are many distinguished jurists, who in common
with Huberus, maintain the opinion, that the incidents and effects
of the marriage upon the property of the parties, wherever it is
situate, are to be governed by the law of the matrimonial domicil,

a Huberus, Lib. 1, tit. 3, De Conflict, Leg. § 9; post, § 169.

* See De Couche v. Savatier, 3 Johns. Ch. R. 211; 2 Kent, Comm. Lect. 39,
p. 458, 459, 8d edit. See also Feaubert v. Turst, cited in Robertson’s Appeal
Cases, 1, and Lashley v. Hogg, 1804, cited id. 4; Le Breton v. Miles, 8 Paige, R.
261.
§145 = 147.) MARRIAGES. — INCIDENTS TO. 217

in the absence of all other positive arrangements between ‘the par-
ties! Thus, if English subjects are married in England without
any nuptial contract, the husband, being entitled by the law of
England to all the personal or movable property of his wife, will be
entitled to it wherever it may be situated, whether in England or
in any foreign country. And his rights, it would seem, in her im-
movable property, wherever it may be situated, would, in the opinion
of many of the foreign jurists, be exclusively regulated by the law
of England.2 So, on the other hand, French subjects, married in
France, without any contract. whatever, would hold (as we have
seen *) certain kinds of their property in community generally ;
and this rule would apply as well to-the like property situated in
foreign countries, as to that situated in France.

§ 147. The grounds upon which this opinion has been main-
‘tained, are various. Some foreign jurists hold, that the law of the
matrimonial domicil attaches all the rights and incidents of mar-
riage to it, proprio vigore, and independent of any supposed con-
‘sent of the parties. Others hold that there is in such cases an
implied consent of the parties to adopt the law of the matrimonial
domicil by way of tacit contract; and then the same rule applies,
as is applied to express nuptial contracts. Dumoulin was the au-

* Merlin, Répert. Commun. de Biens, § 1, art. 3; 1 Boullenois, p. 660 to p.673;
Jd. Observ. 29, p. 732 to p. 818; Rodenb. De Div. Stat. tit. 2, ch. 5, § 12, 18, 14,
15; 2 Boullenois, Appx. p. 41 to p. 46; 1 Burge, Comm. on Col. and For. Law,
Pt. 1, ch. 6, § 2, p. 244 to p. 253; Id. ch. 7, § 8, p. 599 to p. 609.

* Hertii, Opera, De Collis. Leg. § 47, p. 143, edit. 1737; Id. p. 204, edit. 1716.
Many jurists make no distinction in the application of the doctrine of the tacit
“contract of marriage between movable and immovable property, and consider
both to be governed by the law of the domicil of marriage. Others again, dis-
tinguish between them. Foreign jurists commonly in the term, “ biens,” include
all sorts of property, movable and immovable, in their discussions on this subject.
See Merlin, Répert, Autoris. Maritale, § 10, art. 2; Id. Majorité, § 5; Id. Com-
“munauté de Biens, § 1, art. 3; Voet, De Statut. § 4, ch. 2, n. 16; Rodenburg, D.
‘Div. Stat. Pt. 1, tit. 2, ch. 5, § 13, 14,15; Id. Pt. 2, tit. 2, ch. 4, § 1; 2 Hacilanas
‘Appx. p. 41 to 46; Id. p. 63; 1 Boullenois, p. 673, 683, 767; 2 Boullenois, p. 81,
88; Observ. 35, p. 93, 94; Id. Observ. 37, p. 266, 277; 1 Hertii, Opera, De
Collis, Leg. § 46, 47, p. 143, 144, edit. 1737; Id. p. 203, 204, edit. 1716; Liver-

_ more, Dissert. § 89, p. 73, 74; Huberus, Lib. 1, tit. 3, § 9; Bouhier, ch. 22; § 79,
p- 429. See also 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 8, p. 399
to p. 609.

® Ante, § 130.

* See 1 Boullenois, Observ. 29, p. 741, 750, 757, 758; Huberus, Lib. 1, tit. 3,
“De Confl. Leg. § 9.

CONFL. 19
218 CONFLICT OF LAWS. [cH. VEL

thor, or at least, the most distinguished advocate, of this latter
doctrine! Quia per predicta inest tacitum pactum, quod maritus.
lucrabitur dotem conventam, in casu, et pro proportione statuti illius
domicilii, quod previdetur, et intelligitur ; et istud tacitum pactum,
nisi conventum fuerit, intrat in actionem ex stipulatu ret uxoria, et
illam informat. Itaque semper remanet forma ab initio impressa:*
And he adds, that it applies to all property, wherever situate,
and whether movable or immovable: Non solum inspiciatur sta-
tutum vel consuetudo primi illius domicilit pro bonis sub ilo sitis.
Sed locum habebit ubique etiam extra fines et territorium dicti sta-
luti, etiam interim correpti; et hoc indistincté, sive bona dotalia
sint mobilia, sive immobilia, ubicunque sita, sive nomina. Ratio
punctualis specifica procedat in vim taciti pacti ad formam sta-
tutt; veluti, quod tacitum pactum pro expresso habetur.

§ 148. The opinion of Dumoulin, that the law of the place of
the marriage constitutes the rule, by which the rights of married
persons are regulated, by a tacit contract of the parties, in the
absence of any express contract, according to the maxim, In con-
‘ tractibus tacité veniunt ea, que sunt moris et consuetudinis, has
been adopted by Bouhier, Hertius, Pothier, Merlin, and other
distinguished jurists. It is opposed, however, by others of no
small celebrity ; and the doctrine of tacit contract in the case of
marriage (as we shall see) is treated by some of them as a mere
indefensible and visionary theory. D’Argentré, and Froland, and

‘1 1 Boullenois, Obser. 29, p. 757.

* Molin. Comm. ad. Cod. Lib. 1, tit. 1, 1 1, Opera, Tom. 8, p. 555, edit. 1681;
1 Froland, Mém. 62, 218 ; Livermore, Dissert. § 89, p. 73, 74; 1 Boullenois, Ob-
ser. 29, p. 756, 758,

® Molin. Comm. ad Cod. Lib. 1, tit. 1, 1.1; Conclus. de Statutis, Opera, Tom.
3, p. 555, edit, 1681; 1 Froland, Mém. 61, 62, 63, 218 ; Livermore, Dissert. § 89,
p- 73, 74; 1 Boullenois, Obser. 29, p. 757, 758.

* Bouhier, Cout. de. Bourg. ch. 28, § 69 to § 75, p. 458, 459; Id. ch. 26, p, 462
to p. 490; 1 Froland, Mém. 61 to 63; Id. 178 to 211; Id. 214 to 222; Id. 274;
Merlin, Répert. Communauté de Biens, § 1, art. 8; Pothier, Traité de la Com-
munauté, art. 1,n.10; 1 Hertii, Opera, De Collis. Leg. § 47, p. 148, edit. 1737;
dd. p. 204, edit. 1716; post, § 150, 151, 152; 1 Burge, Comm. on Col. and For.
Law, Pt. 1, ch. 7, § 8, p. 599 to p. 614.

* Froland, in opposing the doctrine of tacit contracts, derived from the sup-
posed operation of the Lex Loci Matrimonii, says, Ce ne sont J& que des paroles,
et rien au-dela. Mirificum illud Molinei acumen; des subtilites d’Esprit ; des
Idées ; des Chimeres ; Enfin des moyens, que la seule imagination échaufféé pro-
duit. Hac grandiloquentid etiamsi Molinzus personat, tamen aperté non est ve-
tum, quod dicit. 1 Froland, Mém. 316 ; post, § 167.
§147-150.] MARRIAGES. — INCIDENTS TO. 219

Vander Muelin, are at the head of those who maintain that the
law of the situs of the property constitutes the rule to decide the
rights of the marriage couple at all times and under all circum-
stances! D’Argentré says: Primim, quod Molineus @ simplici
consuetudinis dispositione elicet partium conventionem et pactum,
citra ullam conventionem partium adjectam consuetudint, rationem
non habet. Alia enim vis et ratio, aliud et principium et causa
obligationis, que a lege inducitur, alia ejus, que ab pacto et con-
ventione partium proficiscitur 2

§ 149. It may be useful to bring together in this place in a
more exact form the opinions of some other jurists of the highest
reputation on this subject for the purpose of exhibiting some of
the differences, as well as some of the coincidences, in the doc-
trines respectively maintained by them.
. §150. Cochin holds the doctrine, that if the contract of mar-
riage contains no stipulation for community of property, the law
of the place, where the parties are domiciled, and to which they
submit by the contract of marriage, must govern, not only as to
property (biens) situate in that place, but as to property situate
in all other places.? The rights of married persons (he adds)
over the property, which they then have, as well as over that,
which they afterwards acquire, ought to be regulated by an uni-
form rule. If they have established an express rule by the con-
tract of marriage, that ought to decide their rights as to all their
property. If they have made no stipulation, then the law of the
place of their common domicil establishes a rule for them; since
they are presumed to submit themselves to it, when they have not
stipulated anything to the contrary.

1.D’Argentré, In Briton. Leges. Des Donations, art. 218, Glos. 6, n. 33, Tom
1, p. 655 to p. 657; Livermore, Dissert. § 95, p. 77; 1 Froland, Mém. 192 to
200; Id. 220, 222; Id. 316; 1 Boullenois, p. 673 to p. 699; Id. Obser. 29, p.
782 to p. 736; Id. p. 740 to p. 750; Id. p. 757, 792; 2 Boullenois, Obser. 35,
p- 110; Merlin, Répertoire Communauté de Biens, § 1, art. 3, p. 110, 111; Liv-
ermore, Dissert. § 92 to 106, p. 75 to p. 82; 1 Froland, Mém., 61 to 64; post,
§ 152 a, note 2, § 167,168; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7,
§ 8, p. 609.

* D’Argentré, In Briton, Leg. Des Donations, art. 218, Gloss. 6, n. 33, Tom. 1,
p- 656; Livermore, Dissert. § 92, p. 75, § 95, p. 77, § 106, p. 81. See also 1
‘Burge, Comm, on Col. and For. Law, Pt. 1, ch. 7, § 8, p. 609 to p. 614; 1 Boul-
lenois, Obser. 29, p. 761 to p. 767.

3 Cochin, Euvres, Tom. 3, p. 703, 4to edit.
220 CONFLICT OF LAWS. [cH. v1.

§.151. Le Brun is quite as explicit. After stating that the
community of property may be formed by an express contract, or
by a tacit contract, he gives as a reason for the latter, that, if the
married couple have not made any express stipulation, and are
domiciled in a place where the law of community exists, when they.
are married, the conclusion is, that they have referred themselves:
to that Jaw. And this presumption has its foundation in law,.
which often decides, that, as to things omitted in the contract, the
parties have referred themselves to the usage or law of the place.
And he adds, that as in cases of express contracts for community
of property, the contracts reach all the property of the parties,
even in other countries, so in cases of tacit contracts, such as
those resulting by operation of law, the same rule applies. If the
law of the place of domicil and marriage of the parties creates
such a community, it applies to all property, wherever it is situate.
It has, in short, all the character and effect of a personal law or
statute, although it regulates property.?

§ 152. Hertius has put a number of cases to “illustrate the gen-
eral principle. At Liege, by law, the husband by marriage ac-
quires the ownership of all the property of his wife of every nature.
At Utrecht' it is otherwise. Is an inhabitant of Utrecht entitled,
jure connubii, to take all the property of his deceased wife situate
in Liege? He answers in the negative; because the law of the
place of marriage (Utrecht) does not confer it.3 Again. A per-
son, in whose domicil there is no community of property between
married persons, possesses property in another territory, where
such community of all property exists, and he contracts marriage
in another country, where a qualified community only exists ( Ubi
societas bonorum tantum, sive simpliciter, ita dicta, obtinet). What
law is to prevail? Some jurists hold, that the law of the domicil
shall prevail. Others are of a different opinion. Hertius himself
holds, that, as the case supposes the place of the marriage to be
foreign to both parties, the law of the husband’s domicil ought to
prevail as an implied contract between the parties. Again. In
the domicil of the husband, a community of property exists be-

1 Le Brun, Traité de la Communauté, Liv. 1, ch. 2, § 2, 3, 4.

* Id. Liv. 1, ch. 2, § 6, 86 to 42,

® Hertii, Opera, De Collis. Leg. § 44, p. 142, 143, edit. 1787; Id. p. 201, edit
1716.

* Id. § 46, p. 143, edit. 1787; Id.p. 209, edit. 1716.
§ 151 -153.] MARRIAGES. — INCIDENTS TO. 221

tween married persons; will that community apply to immovable
property, bought by either party in a territory where such a law
does not exist? Many jurists decide in the negative. Hertius
holds the affirmative, upon the ground of an implied contract, re-
sulting from the marriage.

§ 152 a. Froland puts the case of a man domiciled at Paris, who
goes and marries a woman in a country governed by the Roman
law, as in Rheims, Auvergne, or Normandy, or é contra; and the
marriage is without any express contract; and he then asks, in
such a case, what law is to prevail as to future acquisitions (con-
quests?) The law of the domicil of the husband? Or that of the
wife? Or that of the place of marriage? Or of the location of
the property ? And he decides in favor of the latter.?

§ 158. Froland has stated the question in a more general
shape; whether, if a community of property exists by the law of
the place of domicil and marriage of the parties, it extends to all
property situate elsewhere, where no such law prevails?? He
gives the reasoning of different jurists, maintaining opposite opin-
ions on the point, and concludes by stating, that the opinion of
Dumoulin in the affirmative has finally prevailed, in cases where

” Id. p. 144, § 47, edit. 1737; Id. p. 204, edit. 1716.— The decision of Mr.
Chancellor Kent in De Couche v. Savatier, 3 Johns. Ch. R. 190, 211, treating
it as a case of an express or an implied contract, would lead to the same conclu-
sion.

2 1 Froland, Mém. 321. See also Voet, De Stat. § 4, ch. 3, § 9, p. 134, 135,
edit. 1715; Id. p. 151, 152, edit, 1661.

"84 Froland, Mém. p. 178 to 200; Id. p. 211 to p. 271; Id. p. 272 to p. 340,
See also 1 Boullenois, p. 660 to 683; Id. Observ. 29, p. 732 to p. 818. Dumou-
lin’s words are: “Nullum habet dubium quin societas, semel contracta, complec-
tatur bona ubicumque sita, sine ull4 differentia territorii, qaemadmodum quilibet
contractus, sive tacitus, sive expressus, ligat personam, et res disponentis ubique.
Non obstat, quod hujusmodi societas non est expressa, sed tacita; nec oritur ex
contractu expresso partium, sed ex tacito vel prasumpto contractu a consuetudine
locali introducto.” 1 Froland, Mém. 274. See also Livermore, Dissert. § 78 to
90, p. 69, 71, 72, 738, 74; Saul v. His Creditors, 17 Martin, R. 569, 599. The
same doctrine is maintained by Bouhier. “ Tout statut,” says he, “qui est fondé
sur une convention tacite et presumée, des contractans, est personnel.” Bouhier,
Cout. de Bourg. ch. 32, § 69 to 74. And he expressly applies it to the case of
tacit contracts of marriage, following out the reasoning of Dumoulin. Id. ch.
26,§1to 20. On the other hand, D’Argentré and Vander Muelen, hold, that
all laws respecting community are real and not personal; and therefore, that
they are governed by the law rei site. 1 Boullenois, Obser. 39, p. 758, 759, 760
to 765.

: 19*
‘222 CONFLICT OF LAWS. _ [ CH. VI.

there is an express contract for such community; and Dumoulin
equally contends for it in cases of tacit contract, resulting from
the lex loci contractus1 From this latter point, however, Fro-
land dissents in a, qualified manner.2_ He deems the law of com-
munity, independent of an express contract, to be a real law;
‘and therefore confined to the territory. As to acquests, or acqui-
sitions, whether of movable or of immovable property made in
foreign countries, where the law of community exists, he agrees,
that, in cases of an express contract, the law of the matrimonial
domicil ought to prevail. But as to foreign countries where the
law of community does not exist, he thinks the right does not ex-
tend, aut in vim consuetudinis, or, in vim contractés; for it is in
vain to presume a tacit contract; and that, therefore, it ought to
be governed by the law rei site.2 It would seem, however, from
subsequent passages, that he applied his doctrine to the case of
immovables only ; admitting, that movables should be governed
by the law of the domicil of the parties.*

§ 154. Rodenburg seems to apply the same principle to cases,
where there is a nuptial contract, as to cases where there is none,
holding, that, in the latter cases, the law of the matrimonial
domicil is adopted by a tacit contract. At the same time he
asserts, that the law of community is not personal, but is real ;
and hence, that although it does not, or may not, directly act
upon property aliunde, where no community exists; yet it will
‘give a right of action, founded in the tacit contract, which may
be enforced everywhere. And, therefore, the law of matrimonial
domicil, in such a case, acts indirectly and obtains universality of
application by reason of the tacit contract.6 And he applies it
equally to present and future acquisitions.$

§ 155. Boullenois holds an opinion somewhat different. After
having stated, that jurists have entertained different views as to
the operation of the law of the matrimonial domicil upon the real
property then possessed by the parties, and upon that afterwards
acquired by them, he says, that they seem generally agreed in one

" Tid. * 1 Froland, Mém. 315, 316, 317.

* 1 Froland, Mém. 315, 816, 317, 321, 322, 328, 838, 841; 1 Boullenois, Obser.
29, p. 758, 759.

* Ibid.
’ Rodenburg, De Div. Stat. tit, 2, ch. 5, § 12 to § 15; 2 Boullenois, Appx.

p. 41 to p. 47; 1 Boullenois, p. 673 to p. 683; Id. Obser. 29, p. 782 to p. 735;
Id. p. 754 to p. 757. ® Ibid,
§ 153 = 156.] MARRIAGES. — INCIDENTS TO. 223

point, that so far as respects their property at the time of the mar-
riage, of strict right, the law of the situs ought to be followed.
But as to their property acquired after the marriage, they differed ;
some holding, that it was governed by the law of the situs; others,
that it was not, and that the law of the place of the marriage, as
to community or non-community, ought to govern. Boullenois
holds, that this latter doctrine is not correct; because all laws
respecting property are real; and that those who adhere to this
doctrine, are obliged to resort to a supposed tacit contract of the
parties, to be governed by the law of the matrimonial domicil.
‘He goes on to state, that, without aiming a blow against this sys-
tem of tacit contract, which on account of its equity he highly ap-
proves, his own opinion is, that there is no necessity for deeming
the law of community to be a personal law, in order to give full
effect to the.doctrine, as to property acquired after the marriage,
upon another distinction. This distinction is, that the law of com-
munity or non-community, is one, merely fixing the state or con-
dition of the married couple; and therefore not a real, but a
personal law.1 Hence he holds, that the law of community or of
non-community, existing in the matrimonial domicil, extends to
all property of the parties, wherever it is situated; not upon the
‘ground of any tacit contract, but proprio vigore, as a law, binding
both as to their present property, and as to their future acquisi-
tions. But if by the law of the situs the law of community is
prohibited, as to their present property, or as to their future ac-
‘quisitions, or as to both, then he admits, that the law of the situs
ought to prevail; for in all cases of this sort the personal law
yields to the real law of the situs. Le statut personnel cede en
-cette occasion au statut reél de la situation.”

§ 156. Pothier has adopted the doctrine of tacit contracts, main-
tained by Dumoulin; and, therefore, in case there is no express
‘nuptial contract, if the law of the matrimonial domicil creates a
community, he holds, that it applies to all property, present and
future, wherever situated, and even in provinces which do not
admit of a community.’ Grotius is also stated to have held the
same opinion in a case where he was consulted.+

1 1 Boullenois, Obser. 29, p. 736, 741, 751 to 770.

? 1 Boullenois, Obser. 29, p. 736, 741, 750, 751 to 754; Id. p. 754 to p. 757,
759, 760, 766, 769, 770; 2 Boullenois, Obser. 37, p. 277; post, § 166.

® Pothier, Traité de la Communauté, art. Prélim. n. 10 to n. 18; post, § 166.

* See Henry on Foreign Law, ch. 5, p. 36, 37, note; 1 Burge, Comm, on Col.
and For. Law, Pt. 1, ch. 7, § 8, p. 605.
224 CONFLICT OF LAWS. [cH. VI.

§ 157. It has been remarked by the Supreme Court of Louisi-
ana, that the greater number of the jurists of France and Hol-
land are of opinion, that in settling the rights of the husband and
wife, on the dissolution of the marriage, to the property acquired
by them, the law of the place, where the marriage was contracted,
and not of that, where it was dissolved by death, must be the
guide. And that this opinion is, by most of them, founded on the
idea first promulgated by Dumoulin, that, where the parties marry
without an express nuptial contract, they must be presumed to
contract with reference to the law of the country, where the mar-
riage took place, and that ‘his tacit contract follows them wherever
they go! But that court are of opinion, that the ground is un-
satisfactory, especially when it is applied to cases of property, ac-
quired after a subsequent change of domicil of the parties. Their
view of the subject is, that if the doctrine of a tacit contract be
admissible at all, the contract is to be construed in the same way,
as if the laws of the country of the marriage were inserted in it;
and that, so far as they are to be deemed real laws, and not to be
personal laws, they are necessarily territorial, and can be con-
strued to apply only to acquests or acquisitions within that pecu-
liar country. The extent of the tacit agreement depends upon the
extent of that law. If it has no force beyond the jurisdiction of
the sovereign, by which it is enacted; if it is real, and not per-
sonal; then the tacit consent of the parties cannot turn it into a
personal statute. The parties have not said so; and they are pre-
sumed to have contracted in reference to the law, such as it was;
to have known its limitations, as well as its nature; and to have
had the one as much in view as the other. In one word, the par-
ties have agreed that the law shall bind them, as far as that law
extends, but no further.?

§ 158. The result of this reasoning (and it certainly has very
great force) would seem to be, that in the case of a marriage with-
out any express nuptial contract the lex loci contractiis (assum-
ing that it furnishes any just basis to imply a tacit contract) will
govern as to all movable property, and as to all immovable prop-
erty within that country ; and as to property in other countries, it

* Mr. Justice Porter in delivering the opinion of the court in Saul v. His Cred-
itors, 17 Martin, RB. 599; post, § 170.

* Mr. Justice Porter in the case of Saul v. His Creditors, 17 Martin, R. 569,
603 to 605 ; post, § 187.
$157 —160.] MARRIAGES. — INCIDENTS TO. 225

will govern movables but not immovables; the former having no
situs, and the latter being governed by the lex rei site.

§ 159. Perhaps, the most simple and satisfactory exposition of
the subject, or at-least, that which best harmonizes with the analo-
gies of the common law, is, that in the case of a marriage, where
there is no special nuptial contract, and there has been no change.
of domicil, the law of the place of celebration of the marriage
ought to govern the rights of the parties in respect to all personal,
or movable property, wherever that is acquired, and wherever it
may be situate ; but real or immovable property ought to be left ta
be adjudged by the dex rei site, as not within the reach of any ex-
tra-territorial law.1| Where there is any special nuptial contract,
between the parties, that will furnish a rule for the case; and as
a matter of contract, ought to be carried into effect everywhere;
under the general limitations and exceptions belonging to all
other classes of contracts.”

[*§160. We shall next inquire what principle, in the absence

1 See Henry on Foreign Law, ch. 7, p. 48, 49 ; post, § 454 ; Le Breton v. Miles,
8 Paige, R. 261; Newcomer v. Orem, 2 Md. R. 297; Vertner v. Humphreys, 14
Smedes & Marsh. 130.

* Post, § 454. Paul Voet lays down the following doctrine. “ Si statuto hujus
loci inter conjuges bona sint communia, vel pactis antenuptialibus ita conventum sit,
ut omnia, miaae locorum sita, communia forent, etiam ad illa, que in Frisia j je-
cent, ubi non nisi quesitorum est communio, dabitur actio, ut communicentur.”
Voet, De Stat. §4, ch. 2, § 16, p. 127, edit. 1716; Id. p. 142, edit. 1661; Id. ch.
3, § 9, p. 134, edit. 1716; Id. p. 140,141. Yet he deems laws ebishine a com-
munity of property to be real, and not personal laws. Id. § 4, ch. 3, § 9, p. 134,
135, edit. 1716. See 1 Froland, Mém. 199, 200. This apparent discrepancy
may be reconciled, by considering, that though the law of community be real, yet
it may found a right of action for property situate elsewhere. See also, Roden-
burg, De Divers. ‘Stat, tit. 2, ch. 5, § 12 to 15; 2 Boullenois, Appx. p. 41 top. 46:
A distinction of this sort seems not unknown to the Scottish law. 1 Rose, Cas. in
Bank. 481. Lord Meadowbank, in a Scottish case of great importance, laid down
the following doctrine as unquestionable. “In the ordinary case of transference
by contract of marriage, when a lady of fortune, having a great deal of money in
Scotland, or stock in the bank, or public companies there, marries in London, the
whole property is ps0 jure her husband’s. It is assigned to him. The legal as-
signment’ of a marriage operates, without regard to territory, all the world over.”
Royal Bank of Scotland v. Smith, &c. 1 Rose, Cas. Bank. Appx. 491. Lord Eldon
has affirmed this doctrine to be correct, in relation to personal property; but not
in relation to real property. ‘In the cases of bankruptcy, to which he applied it,
he added, that there was no legal obligation on a bankrupt to convey his real es-
tate, situate in a foreign country, to the assignees, Selkrig v. Davies, 2 Rose,
Bank. Cas. 99, 8. C. 2 Dow, B. 230, 250.
226 CONFLICT OF LAWS. [ou. vie

of all express contract between the parties, will govern, as to
property acquired, either before or after, where there has been a
change of domicil.!]

§ 161. There is no small diversity of opinion among foreign
jurists upon both these points.? Bouhier lays down the rule in gen-
eral terms, that in relation to the beneficial and pecuniary rights
(les droit utiles et pécuniaires) of the wife, which result from the
matrimonial contract, either express or tacit, the husband has no
power by a change of domicil to alter or change them, according
to the rule, nemo potest mutare consilium swum in alterius inju-
riam; and he insists, that this is the opinion of jurists generally.
Thus, if by the law of the matrimonial domicil there exists a com-
munity of property between the husband and the wife, and they re-
move to another place where no such community exists, the rights
of neither party are changed; and the community applies in the
same manner as in the original domicil.4 And on the other hand,
if no such community exists in the matrimonial domicil, a trans-
fer of domicil to a place where it does exist, will not create it; for
a change of domicil would not add anything to the marriage rights
in the case of an express contract, and therefore ought not to do
so in that of a tacit contract.6 This also is Dumoulin’s opinion.
He says, that this is controverted by some authors; but it is so
unjustly and falsely. Sed controvertunt, si maritus postea cum
uxore transtulerit domicilium, an debeat attendi illud, quod erat
tempore contractus, an vero ultimum, quod invenitur tempore mor-
tis; et istud ultimum tenet Salicetus, et sequitur Alexander. Sed
hoc non solum iniquum; quia maritus de loco, in quo nihil lucratur,
vel tantum quartam, posset transferre domicilium ad locum, in quo
totam dotem lucraretur premoriente uxore sine liberis. Et quod
sit falsum, probo per textem dicte Legis, Exigere dotem’ Bou-
hier makes no distinction whatsoever between movable property
and immovable property.’ Nor does he seem to recognize any

* See 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 7, p. 609 to 640;
ante, § 155; post, § 449 to 454; Ordronaux ». Rey, 2 Sandf. Ch. R. 33.

* Ante, § 137 to 142; Id. 143 to 159; 1 Burge, Comm. on Col. and For. Law,
Pt. 1, ch. 7, § 8, p. 609 to 640.

* Bouhier, Cout. de Bourg. ch. 22, § 63 to 72.

* Tbid. 5 Thid.

. Dig. Lib. 5, tit. 1, 1. 65, De Judicis; ante, § 147 ; Molin, Comment. ad Cod.
Lib, 1, tit. 1, 1.15; Molin. Opera, Tom. 8, p. 555.

" Bouhier, Cout. de Bourg. ch. 22, § 79, 80.
§ 160 -164.] MARRIAGES. — INCIDENTS TO. 227
distinction between property acquired before the change of domi-
cil, and that acquired after the change of domicil.!

§ 162. Le Brun supports the like opinion. He insists that, if
there is no special contract of marriage, the law of the place
where the marriage is celebrated, and in which the parties are
domiciled, governs as a tacit contract; and that no subsequent
change of domicil can change the legal rights of the parties, even
as to after-acquired property.2, And he puts the case of a mar-
riage in Paris, and a subsequent change of domicil of the parties
to the province of Bar, where the survivor is by custom entitled
to the whole property in movables by survivorship ; and holds, that
if either die, the movables, whether acquired before the removal, or
after the removal, are governed by the law of community, and do
not all remain to the survivor. La raison est, quice seroit changer
Pestablissement de communauté fait par le contrat, ou par le cow
tume, selon lequel on a dé partager les meubles aussi bien que les
conquets.8

§ 163. ,Rodenburg puts the case of a marriage, in a place where
the law of community of property between husband and wife pre-
yails, and a subsequent removal to another place, where it has no
existence ; and he asks, if the community still subsists in the new
domicil? He observes, that most of the Dutch jurists are of opin-
ion that it does; and in this opinion, he concurs to this extent,
that the community will continue, until the parties have, by some
overt act, discarded it; and then it will cease.* And he applies
the same principle to cases of dowry by the customary law, hold-
ing, that the matrimonial domicil ought to prevail.®

§ 164. Hertius puts the following question. A marriage is
contracted in a place where the civil law governs, (that is, where
there is no community) ; and afterwards the couple remove to a
place where the law of community exists; and to the inquiry,
whether in such a case there is a community in the acquisitions of
the parties after the removal, he answers in the negative, adopting
the doctrine of Rodenburg ; and he gives this reason for his opin-

1 Id. ch. 22, per tot.

* Le Brun, Traité de Ja Communauté, Liv. 1, ch. 2, § 55, 56, p. 20.

* Tbid.; ante, § 151. :

* Rodenburg, De Div. Stat.: Pt. 2, tit. 2, ch. 4, § 3, 43 2 Boullenois, Appx.
p- 66, 67; Id. p. 85 to p. 87; Id. Obser. 36, p. 173; ante, § 154.

5 Rodenburg, De Div. Stat. Pt. 2, tit. 2, ch. 4, § 5; 2 Boullenois, Appx. p. 66,
67; Id. p. 87; ante, § 154.
228 CONFLICT OF LAWS. [c#. vi.

ion ; that it is not probable that the married couple, who did not
agree to a community of goods in the beginning, intended to adopt
it by a mere change of domicil. Nam probabile non est, conjuges,
qui pactis in societatem bonorum ab initio non consensuerant, sola
domicilii mutatione eam inducere volwisse In the more general
form in which the question may be presented, whether in the case
of married persons, removing from their matrimonial domicil,
where a community of property exists, to a place where it does
not, they are to be governed by the law of the matrimonial domi-
cil, he evidently adopts the affirmative, citing Rodenburg.2 And
he applies his doctrine to immovable property, as well as movable
‘property, making an exception, however, of the case where there
is a prohibitory law of the country of the situs.’

§ 165. Paul Voet appears to maintain the doctrine generally,
that a change of domicil does not change the effect of the mar-
riage contract, express or tacit. Quid, si maritus alio domicilium
postmodum transtulerit, eritne conveniendus, secundum loci statu-
tum, in quem postremum sese recepit. Non equidem. .Quia non
€0 ipso, qui domicilium transferat, censetur voluntatem circa facta
nuptialia mutasse. Nisi eadem solemnitas in actu contrarjo inter-
cesserit. Accedit, quod illa pacta solus mutare nequeat maritus, td
-quod tamen posset, si per emigrationem in alium locum, ea muta-
rentur.* Merlin maintains the like opinion, saying that if a couple
are married at Paris, meaning at the time to live there, and after-
wards they remove to Lyons; in such a case the community formed
at Paris, will continue as to property acquired at Lyons.®

§166. Boullenois holds the opinion, (as we have seen,) that the
law regulating the community affects the state or condition of the
parties, and is, therefore, a personal law; and accompanies them

+ 2 Hertii, Opera, De Collis. Leg. § 49, p. 145, edit. 1737; Id. p- 205, edit.
1716.

? Id. § 48, p. 145, edit. 1737; Id. p. 206, edit. 1716.

* Id. § 47, 48, edit. 1737, p. 144, 145; Id. p. 205, edit. 1716.

* Voet, De Stat. § 9, ch. 2, n. 5, 6, 7, p. 264, 266, edit. 1716; Id. p. 319, 322,
edit. 1661; Id. § 4, ch. 2, n. 16, p- 127, edit. 1716; Id. p. 142, edit. 1661; Id. §4,
ch, 3, u. 9, p. 134, 185, edit. 1716; Id. p. 151, 152, edit. 1661; post, § 168.—
Paul Voet holds all such contracts, whether express or tacit, to be real and not
personal laws; and therefore not directly affecting property out of the territory;
but only indirectly, by a remedy to enforce the contract against extra-territorial
property. Voet, ad Statut. § 4, ch. 8, § 9, p. 184, 135, edit. 1716; Id. p. 151,

152, edit. 1161; post, § 168; Livermore, Dissert. § 115 to 123, p. 87 to p. 92.
5 Merlin, Répertoire, Communauté de Biens, § 1, p. 111.
§ 164-167.] MARRIAGES. — INCIDENTS TO. 229

everywhere, and affects property, wherever situate! He accord-
ingly insists, that, if by the law of the matrimonial domicil a com-
munity of property exists, that community extends to all future
‘aequisitions, whether movable or immovable, even in places to
which the parties have afterwards removed, and where no such
community exists.? Pothier has adopted the opinion of Boulle-
nois, that the law of community is to be deemed a personal law,
and not a real law; and he also adopts the doctrine of Dumoulin,
as to tacit contracts.? So, that he has no hesitation in declaring,
as we have seen, that the law of the matrimonial domicil governs
the property everywhere.* But he has omitted to put the case of
a change of domicil, and the effects which it would produce. In
another place he has laid down as a general principle, that a
change of domicil delivers all persons from the.empire of the laws
of their former domicil, and subjects them to the new.5 What,
then, ought to be the effect of a removal, upon property acquired
in the new domicil ?

§ 167. Froland, after a good deal of hesitation, has given his
own opinion on the subject to this effect. In cases where there’ is
an express contract. of community of property between the hus-
band and the wife, he holds, that a change of domicil does not al-
ter the rights of the parties; and, that the community applies to
property situate where the community is unknown as well as where
‘it.exists.© But where there is no express contract, he deems the
law of community as purely real, and, therefore, as not extending
beyond the matrimonial domicil.’? He treats the notion of Dumou-
lin, of a tacit contract in such a case, as a mere imaginary thing ;
words, and nothing else ; a mere subtilty, phantom, and chimera.
Ce sont ld, que des paroles, et rien au dela. Mirificum illud Mo-
linet acumen; des subtilités d esprit; des Idées; des Chiméres ;

1 Ante, § 155; 1 Boullenois, Obser. 29, p. 736, 741, 750 to 754; Id. p. 759 to
p- 770; 2 Boullenois, Obser. 38, p. 277; 17 Martin, R. 607..

* 2 Boullenois, Obser. 38, p. 277, 278, 283, 284, 285; ante, § 155.

* Pothier, Traité de la Communauté, art. Prélim. n. 10, 11, 12, 13; ante,
§ 156.

* Tbid.; ante, § 156.

® Pothier, Cout. @’Orléans, ch. 1, n. 13; ante, § 51 a, § 156.

* 1 Froland, Mém. Pt. 2, ch. 1, § 10,11, p. 200 top. 210; Id. p. 341; Id.

190.
ss 7 1 Froland, Mém. Pt. 2, ch. 3, § 9, 10, 11, p. 315 to p. 338; Id. p. 341; ante,

§ 148, note, § 149.
CONFL. 20
230 CONFLICT OF LAWS. [cH. VI.

Enjin des moyens, que la seule imagination échauffée produit. Hac
grandiloquentié etiam Molineus personat, tamen aperté non est ve-
rum, quod dicit.1 The conclusion, to which he arrives, is, that, if
two persons marry without any contract in a place, where the law
of community exists, and remove to another place, where it does
not exist, the change of domicil has no effect whatsoever ; but the
rights of each are the same, as if they had remained in their mat-
rimonial domicil; and the acquisitions of immovable ‘property,
situate in the new domicil, do not fall into community, but are
governed by the law rei site. As to movables, he holds, that the
‘law of the actual domicil ought to govern.?

§ 168. There are many other jurists who maintain, that the
law of community among married persons is real, and not per-
sonal; and among these the most ae are D’Argentré,
Dumoulin, Paul Voet, and Vander Meulen.? According to them,
the law rei site will govern in all cases, where there is no express
or tacit contract. But, then, we must take this proposition, with
the accompanying qualification, that. those of these jurists who
admit of the doctrine of a tacit contract, adopting the law of the
place of marriage, (among whom are Dumoulin and Paul Voet,)
also hold, that although the law of the place of the marriage does
not directly act upon. the property in a foreign country; yet,
through the means of this tacit contract, it acts indirectly and
enables the parties to enforce it against that property by a proper
suit. in rem.4

§ 169. Huberus (as we have seen) does not hesitate to assert

1 1 Froland, Mém. Pt. 2, ch. 3, § 9, p. 316.

1 Froland, Mém. Pt. 2, ch. 3, § 9,10, 11, p. 815 top. 323; Id. p. 341.—Icon-
-fess myself under some difficulty in reconciling what is is here said, with what
Froland seems to decide in the next chapter (4th), § 3, p- 345, etc., where he
appears to hold, that a woman marrying in a place, where the law of community
does not exist, does not, by removing with her husband to a place, where it does
exist, acquire any right of community to his acquisitions or movables in the
latter.

* 1 Boullenois, Obser. 29, p. 758 to 761, 765; P. Voet, De Stat. § 4, ch. 3,
p. 184, 135, § 9, edit. 1716; Id. p. 151, 152, edit. 1661. See also J. Voet, ad
Pand. Lib. 5, tit. 1, n. 101; Merlin, Communauté de Biens, § 1, art. 3, p. 104, 110;
Bouhier, Cout. De Bourg. ch. 83, § 34. See Saul v. His Creditors, 17 Martin,
R. 588, 598, 599; ante, § 148, 159, note.

* P. Voet, De Statut. § 9, ch. 2, n. 5, 6, 7, p. 264 to p. 266, edit, 1716; Id.
‘p. 319 to p. 323, edit. 1661; ante, § 165, note; ante, § 147; post, § 169; 1 Burge,
Comm. on Col. and For. Law, Pt. 1, ch. 7, § 8, p. 612 to 614. "
§.167 -170.] MARRIAGES. — INCIDENTS TO. 231

the doctrine, that, in case of a change of domicil, future acqui-
sitions of married persons are governed by the law of their actual
domicil, and not of their antecedent matrimonial domicil.1_ Thus
after asserting that in Holland there is a community of property,
and in Friesland not; he says, if the married couple remove from
the one province (Holland) to the other (Friesland,) whatever
property is afterwards acquired, ceases to be common, and remains
in distinct ownership (distinctis proprietatibus) ; and the property
before held in community remains clothed with the same legal
character that it previously possessed.2 And he applies this doc-
trine as well to immovable property, relying upon the doctrine of
tacit consent, or tacit contract ;* and holding the opinion of Du-
moulin: Quia pactio bene extenditur ubique, sed non statutum
merum, hoc est, sold et mera vi statuti.A

‘4170. It would be endless to recount the diversities of opin-
ion among foreign jurists on this subject, following out the almost
infinitely varied cases, which the customs and laws of different
provinces and countries have brought before them. According
to the opinion of the Supreme Court of Louisiana, already cited,°
the greater number of foreign jurists are of opinion, that, in set-
tling the rights of husband and ‘wife, on the dissolution of mar-
riage, to the property acquired by them, the law of the domicil
of the marriage, and not of the place, where it is dissolved by
death, is to be the guide.* It is probably so; but there is more
difficulty in affirming it, where there has been a change of domi-
cil, than where there has been no such change. It may be in-
ferred, that the Scottish law has adopted the rule, that in cases
of community, where there is no written contract, the law of the
domicil of the parties at the death of either of them regulates"
the disposal of the property of the parties.’

1 Ante, § 145. > Thid.

* Huberus, Lib. 1, tit. 3, § 9; ante, § 145.

* Livermore, Diss. § 89, p. 73, 74; 1 Froland, Mém. 63.

5 Ante, § 157.

_ © Mr. Justice Porter, in delivering the opinion of the Court in Saul v. His
Creditors, 17 Martin, R. 599; ante, § 157.

* Fergusson on Mar. and Divorce, 346, 347; Id. 361.— There are some re-
marks of Mr. Burge on this subject, which deserves tobe cited in this place. “In
hoc igitur” (says he) “conflictu quibus adstipulabimur ? was the obvious ques-
tion of one of the jurists, after he had been reviewing these discordant opinions.
The following considerations will perhaps justify a concurrence with him in the
answer, given by himself. ‘Mihi tutius videtur adhzrere secunde, sententiz,
232 CONFLICT OF LAWS. [(CH. VI.

§ 171, No question appears to have arisen in the English courts
upon the point, which we have been discussing; that is, what rule

(que negat predia alib sitia communicari,) quam non solum ratio validissima
munit, sed et prestantes auctores, et consensus aliquot municipiorum probant.’
Ist. The law, which by its own force and operation, and independently of con-
tract, gives an interest in immovable property, is a real law. 2d. Immovable
property is not subject to the power of a real law, unless such law exists in the
country where that property is situated. 3d. The joint interest, which the hus-
band and wife acquire under the community in the immovable property of each
other, is conferred by the law alone, unless that law be controlled in its operation
by a tacit agreement; such an interest, therefore, will not be acquired in immo-
vable property situated in a country where the law of community does not exist.
4th. If a tacit agreement could be inferred for the purpose of giving to the law
of community a more extensive operation than belongs to the quality of a real
law, it might with equal propriety be inferred for a similar purpose in the case of
other real laws, i. e. those which govern the succession of real property, etc. A
preference of the law of the country, in which a man has passed his life, to that
of another country, in which his real property may be situated, is as natural a
presumption as that in favor of the law of the matrimonial domicil. 5th. It can-
not be said, that, because the title is conferred by the law, as the consequence.of
the marriage, there is a ground peculiar to marriage for admitting the presump-
tion of a tacit agreement; because no such presumption is admitted in respect of
other titles conferred by law as the consequence of marriage, e. g. the titles to
douaire and droit de viduité. 6th. ‘The laws, which confer douaire, and le droit
de viduité, are admitted by all jurists to be real laws; and consequently they
attach on that property only which is situated in the country where they prevail,
and they do not extend to that which is situated in another country, and no tacit
agreement is presumed in order to control their powers. 7th. The law establish-
ing a community in immovable property is not essentially distinguished from the
laws of douaire and viduité, in any one of those particulars, which, in the opin-
ion of jurists, determine the reality or personality of laws, and consequently the
extent of their power. There does not, therefore, appear to be any substantial
reason for allowing the law of community to have the effect of a personal law,
and to attach on immovable property, in whatever country it may be situated.
If this reasoning be admitted, the community, when it prevails in the matrimo-
nial domicil, will be confined to such immovable property as is situated either
there, or in a country, in which a similar law exists, but it will not extend to such
property situated in a country where a similar law does not exist. In the pre-
ceding observations, the law of community has been considered only as it affected
immovable property. Its effect on personal property is determined by other
principles. According to a principle of international jurisprudence, the acquir
sition of movable or personal property by the operation of law, is, as will be
presently shown, governed by the law of its owner’s domicil, The community, if
it prevailed in the matrimonial domicil, would therefore attach on the movable
property of the husband and wife, in whatever place it was situated.” 1 Burge,
Comment. on Col and For, Law, Pt. 1, ch. 7, § 8, p. 617 to p. 619; and Lashley
e. Hogg, cited Id.-p. 623 to p. 625.
§.171-1715.] MARRIAGES. — INCIDENTS TO. 233

is to govern in cases of matrimonial property, where there is no
express nuptial contract, and there has been a change of domicil.
But there is a case, which, Lord Eldon is reported to have said,
-was founded in (a nuptial) contract; and that, if there had been
no such contract, the law of England (notwithstanding the domi-
cil of the parties at the time of their marriage was in France)
would have regulated the rights of the husband and wife, who
were domiciled in England at the dissolution of the marriage by
death.2 So that, according to this doctrine, the law of the actual
Gomicil will govern as to all property, without any distinction,
whether it is property acquired antecedently, or subsequently, to
the removal.

§ 171 a. In a more recent case, where the parties were inhabi-
tants of Prussia, and domiciled there, a question arose in the
Court of Exchequer upon the distribution of an intestate’s estate
under the administration of the court, whether the wife, being a
distributee, was entitled in equity, upon a petitition by her hus-
band for the amount, to have any of the money settled on her, or
whether the whole was to be paid to him. It appeared, that, by
the laws of Prussia, the whole of the personalty of the husband
and wife is, during the coverture, at the absolute disposal of the
husband ; but on the death of either it is divided between the sur-
vivor and the heirs of the deceased. The man made no applica-
tion to the court; and the court ordered the whole money to be
paid over to the husband.? Here, we see, the court adopted the
law of their actual domicil, to regulate the rights of the parties to
the movable property.

[*§171 6. We have had occasion to give this point consider-
able attention and study,‘ and it has seemed to us that a proper
appreciation of the true principles involved in the nature of
the married relation, and of the extent to which its rights and du-
ties enter into all social and civil rights and duties, in the State,
could not fail to convince every thoughtful and dispassionate mind,
of the indispensable importance, and almost necessity, of regard-
’1 Lashley v. Hogg, citéd in Robertson’s Appeal Cases, 4, and in 1 Burge,
Comm. on Col. and For. Law, Pt. 1, ch. 7, § 8, p. 623 to p. 625; Feaubert v.
. Turst, Prec. Ch. 207. :

2 Thid.

® Sawer v. Shute, 1 Anstr. R. 63. See also Anstruther v. Adair, 2 Mylne &
Keen, 513.

[** American Law Register, Vol. 3, N. S. 193.
20 *
234 CONFLICT OF LAWS. [ cH. ‘VI

ing the law of the place of actual domicil, as the controlling law,
in regard to all the rights and duties, for the time being, springing
from the relation.

§ 171 c, Whatever may have been the earlier rule of the Eng-
lish law upon this subject, we believe the case of Warrender v. War-
render,! without exactly professing to do so, has effectually demol-
ished the former embarrassing pretensions of the English courts,
that an English marriage conferred English rights, and that these
rights, and the correlative duties, will attend the parties, as an in-
separable concomitant of the relation, into whavever country they
may transfer their domicil. The prominent difficulty in admitting
this doctrine is, that it subjects the citizens or subjects of the same
State, to as many different laws, as the different nationalities of its
inhabitants. .

§171 d. This, in former days, when permanent emigrations
from one state to another were of infrequent occurrence, was not

attended with so many embarrassments. But in the American
Republic, with almost half a-hundred States and Provinces, and
half as many distinct nationalities, the absurdity of giving to the
marital relation the unchanging law of the place of its celebration
or of the domicil of the parties at the time, or of the contemplated
-matrimonial domicil, would present such a confusion, in the lan-
guages of the law, as to convince all that the rule cannot be
founded in any just or practicable principle.?

§ 171 e. In the case of Bonati v. Welsch? it was decided bya
divided court, that where parties domiciled in France married,
and while still residing there, the real estate of the wife was con-
verted into money, and thus, by the law of France, became a part
of the gommon property of the parties, for which the wife was en-
titled to priority of payment out of the common estate in the
event of the decease of the husband, that the same rule would pre-
vail in the distribution of the estate of the husband, who deceased
while domiciled in the State of New York, where the parties had
resided for many years, having abandoned all domicil in France;
the property in question having been acquired in New York. Al-

1 2 Cl. & Fin. 488; 8. C. 9 Bligh, 89, 197.

* Opinions of Terai Brougham and Lyndhurst in Warrender v. Warrender,
2 Cl. & Fin. 488; 9 Bligh, 89, 127.

3 24N. Y, sa R. 157. The case of Harteau v. Harteau, 14 Pick. R. 181,
cited in favor the last case does not seem to afford it much support.
§171 6-172] MARRIAGES. — INCIDENTS TO. 235

though this decision only extended to the rights of legatees as
against the claim to priority preferred by the wife, it seems very
questionable whether it can fairly be maintained even to that ex-
tent. For if it can be, it must be made ‘to rest upon the rights of
the wife acquired in France, treating her as the creditor of the
husband, after the change of domicil, to the extent of all her prop-
erty interests existing at the time of the change. This, it seems
to us, Will be giving an effect and operation to the laws of a for-
-eign state, in regard to the continuing and accruing rights and
duties of the relation, not very consistent with the abiding force
and operation of the laws under which the marital relation is con-
tinued and maintained.

§ 171 f. It has been decided from an early day, that an ante-
nuptial contract, duly made and recorded in the state where the
parties resided, and where the property is, continues to bind that
property, as against creditors and purchasers, where the same
‘property is removed to another state. And it has been held, with
great propriety, that subsequent creditors of the husband, who
may be supposed to have trusted, in some respects, to the prop-
erty, while it was still held and used by the husband, must never-
theless be postponed to the prior rights of the wife, which had
accrued and been perfected by her in a foreign state, in regard to
this same property, while it remained under the jurisdiction of
that state.2 But to extend this right not only to all the implica-
tions resulting from the provisions of the municipal law of the
place of the domicil of the parties, but to continue the hold of
such implications, by fastening it upon all the future acquisitions -
of the husband, seems to be a virtual extension of the force of the
laws of the place of the original matrimonial domicil, into every
other country, where the parties shall subsequently acquire dom-
cil, or estate, both of which should be subject to the laws of the

place of the newly acquired domicil.]
' §172. In America there has been a general silence in the States
governed by the common law. But in Louisiana, whose jurispru-
dence is framed upon the general basis of the Spanish and French
law, the point has several times come under judicial decision.
The law of community exists in that State;*® and from the fre-

1 De Lane v. Moore, 14 How. U. S. 253.

2? Bank of the United State’ v. Lee, 13 Pet. U. 8. R. 107.]

* Civil Code of Louisiana, (1809,) 336, art. 2363; New Code, (1825,) art.
2369 to 2393.
236 CONFLICT OF LAWS. -[CH. VI.

quency of removals from and to that State, it is scarcely possible
that some of the doctrines, which have so much perplexed foreign
jurists, should not be brought under review.

§ 178. We have already had occasion to take notice of some of
the views entertained by the Supreme Court of Louisiana upon
this subject.1_ It has been very properly remarked by that court,
that questions upon the conflict of the laws of the different States
are the most embarrassing and difficult of decision of any that can
occupy the attention of courts of justice. And it may be added,
almost in their own language, that the vast mass of learning which
the researches of counsel can furnish, leaves the subject as much
enveloped in obscurity and doubt, as it would be, if one were
called upon to decide, without the knowledge of what others had
thought and written upon it.

§ 174. It is manifest, that the great body of foreign jurists, who
maintain the universality and ubiquity of the operation of the
law of the matrimonial domicil, notwithstanding any subsequent
change of domicil, found themselves upon the doctrine of a tacit
contract, which, being once entered into, is of legal obligation
everywhere.t The remarks of the Supreme Court of Louisiana
on this point have been already cited; and certainly they have a
great tendency to shake its foundation.’ If the law of community
be a real law, and not a personal law, it would seem to follow,
that it ought to regulate all things which are situate within the
limits of the country wherein it is in force, but not elsewhere.®
The most strenuous advocate for the doctrine of tacit contract
must admit, that, if by the statute of any country community is
prohibited, as to property there, the law of the matrimonial domi-
cil ought not to prevail in such country in contradiction to its
own. And the learned court, above referred to, have said, that
they can perceive no solid distinction between the case of a real
statute, and a prohibitory statute, as to property situate in that
country.’

1 Ante, § 157, 170.

2 Thid.

° Mr. Justice Porter, in delivering the opinion of the Court in Saul v. His
Creditors, 17 Martin, R. 571, 572.

* Ante, § 147 to 170.

* Saul v. His Creditors, 17 Martin, R. 599 to 608 ; ante, § 157, 170.

s Mr. Justice Porter, in Saul v. His Creditors, 17 Martin, R. 601, 602.
" Ibid. See post, § 449 to 454.
§172-177.] MARRIAGES. — INCIDENTS TO. 237

§175. But if the law of community be ‘personal, still there is
strong ground to contend, that the personal laws of one country
cannot control the-personal laws of another ‘country, ipso facto,
where they extend to and provide for property within the juris-
diction of the latter. No one can doubt, that any country has
a right to say, that contracts for community, made in another
country, shall have no operation within its own territory. The
question, then, is reduced to the mere consideration, whether the
law of the country does directly or indirectly provide for, or repu-
diate, the community, as to property locally situate within it.)

§176. Upon reasoning to this effect, after full consideration,
the Supreme Court of Louisiana came to the conclusion, that the
law of community must, upon just principles of interpretation,
be deemed a real law, since it relates to things more than to per-
sons, and it has, in the language of D’Aguesseau, the destination
of property to certain persons, and its preservation in view.2 The
court, therefore, held, that, where a married couple had removed
from Virginia, (their matrimonial domicil,) where community
does not exist, into Louisiana, where community does exist, the
aequests and gains, acquired after their removal, were to be gov-
erned by the law of community in Lousiana. ;

§177. This doctrine appears to be in full accordance with the
laws of Spain. Those laws apply the same rule to cases of ex-
press contract, and to cases of tacit contract, or customary law.
Where there is an express contract, that governs as to all acqui-
sitions and gains before the removal. Where there is no express
contract, the customary law of the matrimonial domicil governs
in like manner. But in both cases all acquisitions and gains,
made after the removal, are governed by the law of the actual
domicil.* The present revised Code of Louisiana adopts a like

"? Saul v. His Creditors, 17 Martin, R. 573, 574 to 588; 1 Hertii, Opera, De
Collis. Leg. § 47, p. 143, 144, edit. 1737; Id. p. 294, edit. 1716; post, § 449 to
454.

* Mr. Justice Porter, in Saul v. His Creditors, 17 Martin, R. 593, 594, 595, 606,
607; D’Aguesseau, uvres, Tom. 4, Pl. 54, p. 660, 4to. edit.

® The law of community existed in Louisiana under the Spanish law, and now
exists under the Civil Code of that State. Bruneau v. Bruneau’s Heirs, 9 Mar-
tin, R. 217; Code Civil of Louisiana, (1809,) 536, art. 63; Revised Code, (1825,)
art. 2370; Saul v. His Creditors, 17 Martin, R. 573; 2 Kent, Comm. Lect. 28,
p- 183, note, 3d edit.

* Saul v. His Creditors, 17 Martin, R. 576 to 581, 607, 608.
238 CONFLICT OF LAWS. ” [CH. VI.

rule; and declares, that a marriage, contracted out of the State
between persons, who afterwards come to live within the State,
is subject to the community of acquests, with respect to such
property as is acquired after their removal.} .

§ 178. This code of course furnishes the rule for all future
cases in Louisiana ;- but the discussions in that State have arisen
upon antecedent cases, and have involved a general examination
of the whole doctrine upon principle and authority. The doc-
trine, which, with reference to public law, has been thus estab-
lished in that State, resolves itself into two fundamental proposi-
tions. First: where there is an express nuptial contract, that
there shall be a community of acquests and gains between the par-
ties, even though they should reside in countries where different
laws prevail, that agreement will be held obligatory throughout, as
a matter of contract, in cases of the removal of the parties to an-
other State ; with this restriction, however, which is applicable to
all contracts, that it is not to cause any prejudice to the citizens
of the country, to which they remove, and that its execution is not
incompatible with the laws of that country.2, Secondly ; where
there is no such express nuptial contract, the law of the matrimo-
nial domicil is to prevail, as to the antecedent property ; but the

‘property acquired after the removal is to be governed by the law
of the actual domicil.2 This latter proposition has been laid down
in terms unusually strong, by the Supreme Court of that State.
“ Though it was once a question, (say the court,) it seems now to
be a settled principle, that when a married couple emigrate from
the country, where the marriage was contracted, into another, the
laws of which are different, the property, which they acquire in
the place, to which they have removed, is governed by the laws of
that place.”* Upon these propositions the court have accordingly:
decided, that, where a couple, who were married in North Caro-
lina, where community does not exist, had removed to Louisiana,
where it does exist, the property acquired after the removal was
to be held in community.5 And, in another case, where the mar-

* Code Civil of Louisiana, (1825,) art. 2370,

.* Mr. Justice Derbigny, in Murphy v. Murphy, 5 Martin, R. 83 3; Mr. Justice
Porter, in Saul v. His Creditors, 17 Martin, R. 605, 606.
: * Mr. Justice Derbigny, in Gale v. Davis, 4 Martin, R. 645; Saul v. His Cred-
itors, 17 Martin, R. 605, 606 ; Le Breton »v. Nouchet, 3 Martin, R. 60, 73.
* Mr. J ustice Derbigny, in Gale v. Davis's Heirs, 4 Martin, R. 645, 649.
* Mr. Justice Derbigny, in Gale ». Davis's Heirs, 4 Martin, R. 645. :
§ 177 -180.] MARRIAGES. — INCIDENTS TO. 239

riage was in Cuba, and there was a special contract, that there
should be a community according to the custom of Paris, in what-
ever country the parties might reside; and the parties remove to
South Carolina, where no community exists, the contract was held
to govern the property acquired in the latter State.1 The same
doctrine has been maintained in New York, in the case of a mar-
riage between French subjects, under a similar stipulation of com-
munity and of mutual donation in case of survivorship of either
of the parties.?

§179. An instance, illustrative of the exception in cases of ex-
press contract, may be drawn from other decisions in Louisiana.
Upon a marriage celebrated in that State, the parties stipulated,
that the rights of the parties should be governed by the custom of
Paris. The question was, whether the parties, residing in the
country, were competent to enter into a nuptial contract, stipulat-
ing, that the effect of it on their property should be governed by
a foreign law. The court held, that they had no such competency,
and that the contract was void.?

§ 180. A still more striking case occurred in the same State,
upon some of the doctrines of which, as stated by the court, there
may, perhaps, be reason to pause ; but the grounds are neverthe-
less stated with great force. A man ran away with a young lady
of thirteen years of age, both of them being then domiciled in
Louisiana, without the consent of her parents or guardian, and
they went together to Natchez in Mississippi, and were there mar-
ried, and soon after returned to New Orleans, the place of their
original domicil. The wife afterwards died, while they were living
in Louisiana; and after her death her mother demanded her prop-
erty, as it would descend by the Louisiana law. The court sus-
tained the demand. From the elaborate opinion delivered for
the court by Mr. Justice Derbigny, the following extract is made,
as highly interesting. “With respect (say the court) to the law
of nations, the principle, recognized by most writers, may be re-
duced to this; that although no power is bound to give effect,

1 Mr. Justice Derbigny, in Murphy v. Murphy, 5 Martin, R. 83; Mr. Justice
Porter, in Saul v. His Creditors, 17 Martin, R. 605; Mr. Justice Derbigny, in
Bourcier v. Lanusse, 3 Martin, R. 581, 583.

2 De Couche v. Savatier, 3 Johns. Ch. R. 190, 211.

* Mr. Justice Derbigny, in Bourcier v. Lanusse, 3 Martin, R. 581. See Code

Civil of France, art. 1390.
* Le Breton v. Nouchet, 3 Martin, R. 60, 73.
240 CONFLICT OF LAWS. [cu. VI.

within his own territory, to the laws of a foreign country; yet by
the courtesy of nations, and from a consideration of the inconven-
iences, which would be the result of a contrary conduct, foreign
laws are permitted to regulate contracts made in foreign. countries.
But in order that they may have such effect, it must, first, be as-
certained, that the parties really intended, to be governed by those
laws, and had not some other country in contemplation at the time
of the contract. This being previously recognized, the govern-
ment, within the bounds of which such foreign laws claim admis-
sion, has next to consider, whether the enforcing of these laws will
eause no prejudice to its rights, or to the rights of its citizens.

§ 181. “Let us take the first exception, and apply it to this
case. Did the parties really intend to be governed by the laws of
the Mississippi Territory, and had they not in contemplation, at
the time of contracting marriage, their return to this country?
If we were to judge from their acts alone, there could be no hesi-
tation in saying, that they went to Natchez for the purpose only
of contracting marriage, and intended to come back, as soon as it
could conveniently be done. Their remaining at Natchez only a
few weeks, and that in a tavern, their return to New Orleans not
long after, and the continuation of their residence there, until the
‘death of the wife, would amount to an irresistible proof, that they
had this country in contemplation at the time of contracting their
marriage. But it is alleged, that however evident their intention
may appear from these facts, the appellant had really taken. the
resolution to settle at Natchez. Evidence has been furnished. of
his declarations to that purpose, both before his departure and
after his arrival in the Mississippi Territory. One of his brothers
has sworn, that, previous to his leaving New Orleans, he told him
and his other brothers, that he intended to stay at Natchez. Other
persons have deposed, that letters, expressive of the determination
of the appellant to remain there, were by them received from him,
shortly after their dates. Without questioning the propriety of
the admission of such testimony, the court is satisfied, that it is
insufficient to counterbalance the weight of the facts, which. dis-
close the real intention of the parties.

§ 182. “ But, should their intention still remain a subject. of
doubt, we have next to consider, whether by permitting the laws
of the Mississippi Territory to regulate this case, this govern-
ment would not injure its own rights, or the rights of its citizens.
§ 180 -182.] MARRIAGES. — INCIDENTS TO. 241

For, a foreign law having no other force, than that which it de-
rives from the consent of the government, within the bounds of
which it claims to be admitted, that government must be sup-
posed to retain the faculty of refusing such admission, whenever
the foreign law interferes with its own regulations. A party to
this marriage was one of those individuals, over whom our laws
watch with particular care, and whom they have subjected to
certain incapacities for their own safety. She wasa minor. Has
she, by fleeing to another country, removed those incapacities ?
Her mother is a citizen of this State; she herself was a girl of
thirteen years, who had no other domicil than that of her mother.
Did she not remain, notwithstanding her flight to Natchez, under
the authority of this government? Did not the protection of this
government follow her, wherever she went? If so, this government
cannot, without surrendering its rights, recognize the empire of
laws, the effect of which would be, to render that protection in-
efficacious. But the laws of the Mississippi Territory, as stated
by: the parties, do not only interfere with our rights, but are at
war with our regulations. By our laws a minor, who marries,
cannot give away any part of his property without the author-
ization of those whose consent is necessary for the validity of the
marriage. By the laws of the Mississippi Territory all the per-
sonal estate of the wife (that would embrace, in this case, every-
thing which she had) is the property of the husband. Again;
according to our laws, we cannot give away more than a certain
portion of our property, when we have forced heirs. But what
our laws thus forbid, is permitted in the Mississippi Territory.
And shall our citizens be deprived of their legitimate rights by
the laws of another government upon our own soil? Shall the
mother of Alexandrine Dussuau lose the inheritance of her de-
ceased child, secured to her by our laws, because her daughter
married at Natchez? Shall our own laws be reduced to silence.
within our own precincts, by the superior force of other laws?
If such doctrine were maintainable, it would be unnecessary for
us to legislate. In vain should we endeavor to secure the per-
sons and the property of our citizens. Nothing would be more.
easy, than to render our precautions useless, and our laws a dead
letter. But the municipal law of the Mississippi Territory, which
is relied upon by the appellant, is not the law which would gov-
ern this case, even there. The law of Nations is law at Natchez,
CONFL. 21
242 CONFLICT OF LAWS. [cH. VI

as well as at New Orleans. According to the principles of that
law, ‘Personal incapacities, communicated by the laws of any
particular place, accompany the person wherever he goes. Thus,
he, who is excused the consequences of contracts for want of age
in his country, cannot make binding contracts in another.’ There-
fore, even if this case were pending before a tribunal of the Mis-
sissippi Territory, it is to be supposed, that they would recognize
the incapacity, under which Alexandrine Dussuau was laboring,
when she contracted marriage, and decide, that such marriage
could not have the effect of giving to her husband, what she was
forbidden to give. If that be sound doctrine in any case, how
much more so must it be in one of this nature, where the minor,
almost a child, has, in all probability, been seduced into an escape
from her mother’s dwelling, and removed in haste out of her
reach? We cannot, here, hesitate to believe, that the courts of
our neighboring territory, far from lending their assistance to this
infraction of our laws, would have enforced them with becoming .
severity. For, if when an appeal is made to those general prin-
ciples of natural justice, by which nations have tacitly agreed to
govern themselves in their intercourse with each other, while
nations entirely foreign to one another feel bound to observe them,
how much more sacred must they be between governments, who,
though independent of each other in matters of internal regula-
tion are associated for the purposes of common defence, and
common advantage, and are members of the same great body
politic? ”’}

[§ 182 a. Another familiar principle was recently declared in
Louisiana, namely, that a marriage settlement, executed in another
State, where the parties at the time resided, and where the proper-
ty was situated, if valid by the laws of the place where made, can-
not-be affected by the subsequent removal of the parties to another
State.?]

§ 183. In general, the doctrines thus maintained in Louisiana,
will, most probably, form the basis of the American jurisprudence
on this subject. They have much to commend them in their in-
trinsic convenience and certainty, as well as in their equity ; and
they scem best to harmonize with the known principles of the com-
mon law in other cases. In concluding this topic, the following

* Mr. Justice Derbigny in Le Breton v. Nouchet, 3 Martin, R. 60, 66, 71.
* Young v. Templeton, 4 Louis. Ann. R. 254,
§ 182 —187.] MARRIAGES. — INCIDENTS TO. 243

propositions may be laid down, as those, which, although not uni-
versally established or recognized in America, have much of do-
méstic authority for their support, and have none in opposition to
them.

§ 184. (1.) Where there is a marriage between parties in a for-
eign country, and an express contract respecting their rights and
property, present and future, that, as a matter of contract, will be
held equally valid everywhere, unless, under the circumstances it
stands prohibited by the laws of the country where it is sought to
be enforced. It will act directly on movable property everywhere.
But as.to immovable property in a foreign territory, it will, at
most, confer only a right of action, to be enforced according to the
jurisprudence rei site.

-§ 185. (2.) Where such an express contract applies in terms or
intent only to present property, and there is a change of domicil,
the law of the actual domicil will govern the rights of the parties
as to all future acquisitions.”

§ 186. (8.) Where there is no express contract, the law of the
matrimonial domicil will govern as to all the rights of the parties
to their present property in that place, and as to all personal prop-
erty everywhere, upon the principle, that movables have no situs,
or, rather, that they accompany the person everywhere.? As to
immovable property the law rei site will prevail.*

§ 187. (4.) Where there is no change of domicil, the same rule
will apply to future acquisitions, as to present property. (5.) But
where there is a change of domicil, the law of the actual domicil,
and not of the matrimonial domicil, will govern as to all future
acquisitions of movable property ; and, as to all immovable prop-
erty, the law rei site.5

” See Henry on Foreign Law, 48, 49; Id. 95 ; ante, § 148 ; Le Breton v. Miles,
8 Paige, R. 261. 5

? Ante, § 171,171 a. Ordronaux v. Rey, 2 Sandf. Ch. R. 45.

® See Stein’s Case, 1 Rose, Bank. Cases, Appx. 481; Selkrig v. Davis, 2 Rose,
Bank. Cas. 99; S. C. 2 Dow, 230, 250; 1 Burge, Comm. on Col. and For. Law,
Pt. 1, ch. 7, § 8, p. 619.

* See Henry on Foreign Law, 48, 49 ,: Burge, Comm. on Col. and For. Law,
Pt. 1, ch. 7, § 8, p. 618, 619.

® How will it be as to personal or movable property antecedently acquired ?
See ante, § 178; ante, § 157, 158. — Mr. Burge, adverting to the different opin-
ions on this subject, has remarked: + According to the general doctrine of jurists,
the property of the husband and wife, whether it be acquired before or after the
change of domicil, continues subject to.the law of community, notwithstanding
244 CONFLICT OF LAWS. [cH. VL

§ 188. (6.) And here, also, as in cases of express contract, the
exception is to be understood, that the laws of the place, where the

they have removed to another domicil, where that law does not exist. The change
of the domicil neither divests them of any right, which they had acquired under
the law of their matrimonial domicil, nor confers on them any right, which they
could not acquire under that law. If the law of community existed in their mat-
rimonial domicil, they will not cease to be in community, although they should
have acquired another domicil in a country where no law of community was es-
tablished; and on the other hand, if there was no law of community in their mat.
rimonial domicil they will not become subject to the law of community, because
they have taken up their domicil in a country where that law does exist. The
concurrence of jurists in this doctrine is so general, that there are few who have
dissented from it. This doctrine seems to result as a necessary and legitimate
conclusion from the theory, that the community exists by force of the tacit agree-
ment of the parties, and which is considered of the same weight as if it had been
an express agreement; because, if the rights of the parties, either in their pres-
ent property, or in their future acquisitions, had been conferred by an agreement,
they could not be varied by a change of domicil. But if this theory be rejected,
and the law of community has no greater operation than any other real law, it
can never be necessary to consider the effect of a change of domicil on the inter-
ests of the husband and wife on their real property, because those interests in
their present property, as well as in their future acquisitions, are determined by
the lex loci rei site. The application of this doctrine to the interests acquired by
the husband and wife in the personal property of each other under the law of
their matrimonial domicil, so far as it regards property acquired before their re-
moval from their matrimonial domicil, might, it seems, be maintained without the
aid of this theory. The matrimonial domicil of the parties may be supposed to be
in a country, where, as in England, the marriage is an absolute gift to the hus-
band of the wife’s whole personal estate ; the subsequent domicil may be ina coun-
try, where, as in British Guiana, the wife, by virtue of the communio bonorum,
retains an interest in her own, and acquires an interest in her husband’s personal
property ; or the matrimonial domicil may have been in British Guiana, and the
subsequently-acquired domicil in England. In the one case the whole personal
estate of the wife has become vested in the husband, the wife brings no personal
property of her own into British Guiana, on which the law of community can
attach. In the other case, the wife arrives in England, not only retaining an in-
terest in her own, but having acquired an interest in the property of her husband.
The law of the matrimonial domicil has, in this case, already made a disposition
of the property of the husband and wife at the time, when the parties and the
property were subject to that law. In neither case could the law of the new
domicil be admitted without divesting rights, which had been already legally ac-
quired. But in the opinion of the greater number of jurists, not only the proper-
ty, which had been acquired by the husband and wife before their removal from
their matrimonial domicil, but even that acquired in their new domicil, is subject
to the law of the matrimonial domicil; and*their opinion has been sanctioned,
even to this extent, by the decisions in France, A person was married and domi-
ciled in L., where the civil law prevailed. He afterwards removed to Paris, and
§ 188, 189.] MARRIAGES. — INCIDENTS TO. "245

rights are sought to be enforced, do not prohibit such arrangements.
For if they do, as every nation has a right to prescribe rules for
the government of all persons and property within its own territo-
rial limits, its own law in a case of conflict ought to prevail.

§ 189. C7.) Although, in a general sense, the law of the matri-
monial domicil is to govern in relation to the incidents and effects
of marriage; yet this doctrine must be received with many quali-
fications and exceptions. No other nation will recognize such in-
cidents or effects, when they are incompatible with its own policy
or injurious to its own interests. A marriage in France or Prus-
sia may be dissolved for incompatibility of temper; but no divorce
would be granted from such a marriage, for such a cause, in Eng-
land, Scotland, or America.? “If” (said a learned Scottish judge,
in a passage already cited) “‘a man in this country were to con-
fine his wife in an iron cage, or beat her with a rod of the thick-

established his domicil there. On his death his widow demanded a share of his
movables, and of the acquets made since the marriage. By an arret of the 29th
of March, 1640, her demand was rejected. A similar decision was given in the
case of a person married and domiciled in Normandy, who afterwards removed
to, and established his domicil in, Paris. A demand by his widow for a share of |
the acquets, made since the removal from Normandy, was rejected. The applica-
tion of this doctrine to the acquisitions of personal property made by the husband
and wife in their new or actual domicil, can only be sustained by means of the
theory of a tacit agreement.’ Even its advocates do. not all concur in subjecting
future acquisitions after a change of domicil, to the law of the matrimonial domi-
cil. Thus, Huber was of opinion, that’ they are governed by the law of the new
or actual domicil: ‘ Cum primum vero conjuges migrant ex una provincia, (where
the community prevailed,) in aliam, (where it does not prevail,) bona, que dein-
ceps alteri adveniunt, cessant esse communia, manentque distinctis proprietati-
bus; sicut res antea communes fact, manent in eo statu juris, quem induerunt.’
But if the law of community be a real law, its power as to personal property can-
not be more extensive than as to real property. As it affects only such real
property as is actually situated in the country where it is established, so it affects
personal property only when its owner is actually domiciled in the country where
such law is established, because the place of his domicil is the situs in fictione ju-
ris of his movable property. The real law as to personal property is that which
prevails in the place of the owner’s actual domicil. He acquires and holds it ac-
cording to the disposition of that law, and it depends upon that law, whether he
and his wife acquire it for their joint benefit or for his sole benefit.” 1 Burge,
Comm. on Col: and For. Law, Pt. 1, ch. 7, § 8, p. 619 to p. 622. See also, Lash-
ley v. Hogg, cited Id. p. 623 to p. 625; Id. p. 626.

1 See Fergusson on Marr. and Divorce, 358 to 363; Id. 383, 392 to 422; Hu-
berus, Lib. 1, tit. 83, De Conflict. Leg. § 2; ante, § 111.

; Fergusson on Marr. and Div. 398.

21*
246 CONFLICT OF LAWS... [cH. vI.

ness of the judge’s finger, would it be any justification in any court
to allege, that these were powers, which the law of England con-
ferred on a husband, and that he was entitled to exercise them,
because his marriage had been celebrated in that country ?”}
And he added, with great emphasis, ‘ Marriage is a contract sui
generis; and the rights, duties, and obligations, which arise out
of it, are matters of so much importance to the well-being of the
state, that they are regulated not by the private contract, but by
the public laws of the state, which are imperative upon all who
are domiciled within its territory.”’?

§ 190. (8.) The doctrine of tacit contract to regulate the rights
and duties of matrimony, in cases where there is no express con-
tract, according to the law of the place where the marriage has

been celebrated, is questionable in itself; and, even if admitted, _.

must be liable to many qualifications and restrictions. We have
seen, that it has been much doubted in Louisiana; * and the Scot-
tish courts have utterly refused (as we shall fully see hereafter) to
allow the doctrine of such a tacit contract to regulate the right of
divorce.5

§ 191. But a question may sometimes occur, what is to be
deemed in the proper sense of the rule the true matrimonial dom-
icil? Is it the place where the actual marriage is celebrated ?
Or that where the contract of marriage is entered into? Or that
where the parties are domiciled, if the marriage is celebrated else-
where? Or, if the husband or wife have different domicils, whose
is to be regarded? These, and many other perplexing inquiries
may be raised ; and foreign jurists have not passed them over with-
out examination.®

§ 192. Where the place of domicil of both the parties is the
same with that of the contract and the celebration of the marriage,
no difficulty can arise. The place of celebration is clearly then
the matrimonial domicil. But, let us suppose that neither of the
parties has a domicil in the place where the marriage is celebrated ;
but it is a marriage im transitu, or during a temporary residence,

? Per Lord Robertson. See Fergusson on Marr. and Divorce, 399; Id. 361.
a Jd. 399; Id. 361.

4 Ante, § 147 to 170.
* Saul v. His Creditors, 17 Martin, R. 598 to 607 ; ante, § 157.
* Fergusson on Marr. and Div. 858 to 368; Id. 382, 398 to 422.

* See on this subject, 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 6, § 2,
p- 244 to p. 261. ~
§189-194.] MARRIAGES. — INCIDENTS TO. 247

or on a journey made for that sole purpose, animo revertendi;
what ts then to be deemed the matrimonial domicil?

.,§ 198. The principle maintained by foreign jurists, in such cases,
-is, that, with reference to personal rights and rights of property, the
actual or intended domicil of the parties is to be deemed the true
matrimonial domicil; or, to express the doctrine in a still more
general form, they hold, that the law of the place, where at the time
of marriage the parties intend to fix their domicil, is to govern all
the rights resulting from the marriage. Hence, they would answer
the question proposed, by stating, that in such a case the law of the
actual domicil of the parties is to govern, and not the place of: the
marriage in transitu.

§194. But, suppose a man, domiciled in Massachusetts, should
marry a lady domiciled in Louisiana, what is then to be deemed
the matrimonial domicil? Foreign jurists would answer, that it is
the domicil of the husband, if the intention of the parties is to fix”

: their residence there ; and of the wife, if the intention is to fix their
residence there; and if the residence is intended to be in some
other place, as in New York, then the matrimonial domicil would
be in New York. Rodenburg lays down the doctrine in explicit
terms ; and gives as a reason, that the marriage is presumed to be
contracted according to the laws of the place where they intend to
fix their domicil. Quia per destinationem in locis illis domicilit
matrimonium contractum esse intelligitur.2 Boullenois states the
same doctrine ; and says, that ordinarily, where the domicil of the
husband and that of the wife are not the same, the law of the hus-
band’s domicil is to prevail, unless he means to establish himself in
that of his wife. Dumoulin is equally expressive. inc infertur
(says he) ad questionem quotidianam de contractu dotis et matri-
monii, qui censetur fieri non in loco, in quo contrahitur, sed in loco

domicilit viri; et intelligitur, non de domicilio originis, sed de

1 2 Boullenois, Obser. 36, p. 260; Pothier, Traité de la Communauté, art.
Prélim. n. 14, 15, 16; Voet, de Statut. § 9, ch. 2, § 5, 6, p. 264, edit. 1715; Id.
p- 319, 320, edit. 1661; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 6, § 2,
p- 244 to p. 261.

* Rodenburg, tit. 2, ch. 5, § 15; 2 Boullenois, Appx. p. 47; 1 Boullenois, 11,
682, 683; Id. Obser. 29, p. 802; Voet, De Statut. § 9, ch. 2, § 5; p. 264, edit.
1716; Id. p. 319, 320, edit. 1661; Le Brun, Traité de la Communauté, Liv. 1,
ch, 2, § 42, 48, 46, 47, 48.

® 1 Boullenois, Obser. 29, p. 802; 2 Boullenois, Obser. 37, p. 259, 260, 265 ;

' Voet, De Stat. § 9, ch. 2, § 5, 6, p. 264, 265, edit. 1715; Id. p. 319, 320, edit.
1661. 1
248 CONFLICT OF LAWS. [cn. v1.

domicilio habitationis ipsius viri, de quo nemo dubitat, sed omnes
consentiunt.\ This appears also to be the opinion of Maschrdus,
Bartholus, Bouhier, Pothier, Merlin, and other distinguished ju-
rists.? 5

§ 195. Cujas affirms the same doctrine. Sed ex eo contractu
mulier migravit in alium locum, id est, talis est contractus, ut ex eo
mulier statim migret in alium locum. Ergo non is locus spectatur,
sed ille, in quem sit migratio. Hac ratione, mulier non agit, ubi
matrimonium contraxit; sed ubi ex matrimonio migravit, divertit,
aut aget.2 And in so doing, he does no more than affirm the very
doctrine of the Pandects. Exigere dotem mulier debet illic, ubi
maritus domicilium habuit, non ubi instrumentum dotale conscrip-
tum est; nec enim id genus contractus est, ut eum locum spectari
oporteat, in quo instrumentum dotis factum est, quam eum, in cujus
domicilium et ipsa mulier per conditionem matrimoniti erat reditura*4

§ 196. Huberus holds very decisive language on the same sub-
ject. “But (says he) the place where a contract is made, is not so
exactly to be looked at, but, that, if the parties have in contracting
had reference to another place, that is rather to be regarded : Con-
traxisse unusquisque in eo loco intelligitur, in quo, ut solveret, se
obligavit® Therefore, the place of the marriage contract is not so
much to be deemed the place where the nuptial contract is made,
as that in which the parties contracting matrimony, intend to live.
Thus, it daily happens, that men in Friesland, natives or sojourn-
ers, marry wives in Holland, whom they immediately bring into
Friesland. If this be their intention at the time of the contract,
there is no community of property, although the marriage contract
is silent, according to the law of Holland ; but the law of Friesland
in this case is the law of the place of a contract. Proinde et locus

* Molinzi, Comment. ad Cod. Lib. 1, tit. 1, 1. 1, Conclus. de Statut. Molin.
Opera, Tom. 3, p. 555; 2 Boullenois, Obser. 37, p. 261.

* 2 Boullenois, Obser. 37, p. 260 to p. 265; Pothier, Traité de la Commu-
nauté, art. Prélim. u. 14, 15,16; Bouhier, Cout. de Bourg. ch. 22, § 18 to 28;
Merlin, Répert. Autoris. Maritale, § 10, art. 5, p. 244; Id. Communauté de
Biens, § 1, p. 111; 1 Burge, Comm. on Gol. and For. Law, Pt.:1, ch. 6, § 2,
p- 244 to p. 261.

* Cujas, ad Legem, Exigere dotem, Dig. Lib. 5, tit. 1, ]. 65, Cujaccii, Opera,’
Tom. 7, p. 164, edit. 1758. See also Ford’s Curators v. Ford, 14 Martin, R. 577;
Le Brun, Traité de la Communauté, Liv. 1, ch. 2, § 41; post, § 198.

* Dig. Lib. 5, tit. 1, § 65; Pothier, Pand. Lib. 5, tit. 1, n. 38.

5 Id. 44, tit, 7, 1. 21; Pothier, Pand. Lib. 44, tit. 7, n. 21.

* Huberus, Lib. 1, tit. 8,§ 10; S. P. Fergusson on Marr. and Div. 174; Voet,
De Statut. § 9, ch. 2, § 5, 6, p. 264, 265, edit. 1715; Id. p. 819, 320, edit, 1661.
§194-198.] MARRIAGES. — INCIDENTS TO. 249

matrimonii contracti non tam is est, ubi contractus nuptialis initus
est, quam in quo contrahentes matrimonium exercere voluerunt ; ut
omni die sit, homines in Frisia indigenas aut incolas, ducere uxores
in Hollandia, quas inde statim in Frisiam deducunt ; idque si in ipso
contractu ineundo propositum habeant, non oritur communio bono-
rum, etst pacta dotalia sileant, secundum jus Hollandie, sed jus
Frisie in hoc casu est loco contractis3

§ 197. Le Brun has discussed the question at considerable length,
and has arrived at the same conclusion. And he puts the case of
a person domiciled in Normandy, where the law of community does
not exist, who marries in Paris, without any contract, where the
law of community does exist; and he holds, that, if he has not
changed his domicil, but returns immediately to Normandy, the
law of Normandy will govern, and no community of property will
exist between himself and his wife.?

§ 198. The same doctrine has been repeatedly acted on by the
Supreme Court of Louisiana. ‘In one case of a runaway marriage
(already alluded to) in another State by parties domiciled in Louis-
iana, who immediately afterwards returned, the court held, as we
have seen, that the law of Louisiana governed the marriage rights
and property.2 In another case, where the parties were married in
one State, intending immediately to remove into another, which in-
tention was consummated, the court held, that the marriage rights
and property were governed by the law of the place of the intended
residence. On this last occasion, the court said: “ We think that
it may be safely laid down as q principle, that the matrimonial
rights of a wife, who marries with the intention of an instant re-
moval for residence into another State, are to be regulated by the
laws of her intended domicil, when no marriage contract is made,
or one without any provision in this respect.””* In the same case,
the court also recognized the general rule, that, where the husband
and wife have different domicils, the law of that of the husband is
to prevail; because the wife is presumed to follow her husband’s
domicil.6 :

 Huberus, Lib. 1, tit. 3, § 10.

1 Le Brun, Traité de la Communauté, Liv. 1, ch. 2, § 46 to 51, 55.

? Le Breton v. Nouchet, 3 Martin, R. 60; ante, § 78, 180.
* Ford’s Curators v. Ford, 14 Martin, R. 574, 578. See The State v. Barrow,

14 Texas, 187.
* Ford’s Curators v. Ford, 14 Martin, 577. See also, Arendell v. Arendell,

10 Louis. Ann. R. 567; Hayden v. Nutt, 4 ib. 66, where the cases are all re-
viewed.
250 CONFLICT OF LAWS. [cH. vi.

§ 199. Under these circumstances, where there is such a gen-
eral consent of foreign jurists to the doctrine thus recognized in
America, it is not, perhaps, too much to affirm, that a contrary
doctrine will scarcely hereafter be established ; for in England, as
well as in America, in the interpretation of other contracts, the
law of the place where they are to be performed, has been held to
govern.! Treated, therefore, as a matter of tacit matrimonial con-
tract, (if it can be so treated,) there is the rule of analogy to
govern it. And treated as a matter to be governed by the muni-
cipal law, to which the parties were, or meant to be, subjected by
their future domicil, the doctrine seems equally capable of a solid
vindication.”

CHAPTER VII.

FOREIGN DIVORCES.

[* § 200. Christianity regards marriage as a very sacred, civil, and religious instita-
tion, upon the permanency of which social harmony and happiness chiefly depend.

§ 201. Decree of dissolution in the place of domicil and celebration effectual.

§ 202. Diversity of laws in different states creates embarrassing questions.

§ 203, 204. Many perplexing questions stated.

§ 205. The Scottish law does not seem to require actual domicil of both parties to
create jurisdiction.

§ 206. Strictures of Scottish judge upon the subject.

§ 207. Arguments in favor of the rule of the divine law.

~ § 208. It is thus natural to expect great diversity of practice.

§ 209. The distinction between Catholics and Protestants.

§ 210. In Catholic France marriage always held indissoluble.

§ 211. In Protestant countries the law very much relaxed.

§ 212, The continental writers say very little upon the subject.

§ 213. Divorce depends upon the existing law of the state.

§ 214. Is divorce according to the law of domicil valid 2

§ 215. The subject most discussed in England and Scotland.

§ 216. Ground of jurisdiction in Scotland.

-§217. Temporary residence of defendant without change of national domicil suffi-
cient. ,

§ 218. The English courts do not assent to this ground of jurisdiction.

§ 219. The English courts require change of domicil at the least.

§ 220. Broader questions have arisen in Scottish courts.

* Robinson v. Bland, 2 Burr. R. 1077 ; Lanusse v. Barker, 8 Wheaton, R. 101;

4 Cowen, R. 513, note; 2 Kent, Comm. Lect. 39, p. 459, 8d edit.; Fergusson on
Marr. and Divorce, 341, 342, 395, 396, 416.

* See Fergusson on Marr. and Divorce, 389 to 346,
§ 199-201.]. FOREIGN DIVORCES. 251

§ 221. The doctrines established in the Scottish courts.

§ 222, Marriage and its obligations depend upon the law of the present domicil of the
parties. :

§ 223. These are not affected by the will of the parties.

§ 224. These rules are indispensable to national self-respect.

§ 225, 226. Statement of the opposite view.

§ 226. Decision in Warrender v. Warrender.

§ 226 b. Doctrines involved in the decision.

§ 226 c. Lord Brougham’s reasoning upon the question.

§ 227. Many perplexing questions suggested.

§ 228. In America divorce must be obtained where parties domiciled at the time
of cause.

§ 229. Such divorce valid without regard to place of marriage.

§ 229 a. The domicil of husband is. that of the wife until after separation.

§ 230. The court must have jurisdiction of both parties.

§°230a. The actual domicil of both parties gives jurisdiction.

§ 2800. The effect of such a divorce will be the same in all other countries as a
domestic divorce.

§ 200. We next come to the consideration of the important
subject of divorce.1 Marriage is not a mere contract between the
parties, subject as to its continuance, dissolution, and effects, to
their mere pleasure and intentions. But it is treated as a civil in-
stitution, the most interesting and important in its nature of any
in society. Upon it the sound morals, the domestic affections, and
the delicate relations and duties of parents and of children, essen-
tially depend. On this account, it has, im many nations, the sanc-
tion and solemnity of religious obligation superadded to it And
it may be truly said, that Christianity, by giving to it a more
affecting and sublime morality, [* and by cementing the domestic
tie of marriage by the solemnities of religion,] has conferred upon
mankind new blessings; and has elevated woman to the rank and
dignity of an equal, instead of being a humble companion, or a
devoted slave to her husband.

§ 201. It is not my design to enter into any discussion, as to
the general right of the legislative power to authorize directly or
indirectly a dissolution of the matrimonial state, and to release
the parties from all the future obligation thereof. It is deemed
by all modern nations to be within the competency of legislation
to provide for such a dissolution and release, in some form, and
for some causes. And there is no doubt, that a divorce, regularly

1 See on this subject, 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, § 1,

p- 640 to p. 668; Id. § 2, p. 668 to p. 694.
® See ib. p. 642, 643; post, § 209.
252 CONFLICT OF LAWS. [cx. vi.

obtained according to the jurisprudence of the country, where the
marriage is celebrated, and where the parties are domiciled, will
be held a complete dissolution of the matrimonial contract in
every other country.! I say where the marriage is celebrated, and
where the parties are domiciled; for both ingredients are, or may
be, material; and the presence of one and the absence of the other
may change the legal predicament of the case, according to the
jurisprudence of different countries, when the subject comes under
consideration therein.

§ 202. The real difficulty is to lay down appropriate principles
to govern cases, where the marriage is celebrated in one place,
and the parties are at the time domiciled in another; where
afterwards there is a change of domicil by one party, without
a similar change by the other; where by the law of the place of
celebration the marriage is indissoluble, or dissoluble only under
peculiar circumstances, and where, by the law of another place,
it is dissoluble for various other causes, and even at the pleasure
of the parties. By the law of England, marriage is indissoluble
except by a special act of Parliament.2 By the law of Scotland
a divorce may be had through the instrumentality of a judicial
process, and a decree on account of adultery. By the civil law
an almost unbounded license was allowed to divorces ; and wives
were often dismissed by their husbands, not only for want of
chastity, and for intolerable temper, but for causes of the most
trivial nature. In France a divorce may be judicially obtained
for the cause of adultery, excess, cruelty, or grievous injuries of
either party; and in certain cases by mutual and persevering
consent. In America an equal diversity of principle and prac-
tice exists. In some States, as in Massachusetts and New York,

? 2 Kent, Comm.,Lect. 27, p- 107, 108, 3d edit.

* 1 Black. Comm. 440, 441; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch,
8, $1, p. 654 to p. 660,

® Fergusson on Marr. and Div. 1,18; Erskine’s Inst. B. 1, tit. 6, § 88,43; 1

Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, § 2, p. 670 to p. 680.
* 2 Kent, Comm. Lect. 27, p. 102, 108, 3d edit.: 1 Brown, Civ. Law, 89 to 92;

1 Black. Comm. 441; Justin Novelle, 117, ch. 8 i Cod. Lib. 5, tit. 17, 1.8; Mer-
lin, Répertoire Divorce, § 2, p- 149, 150; Pothier, Traité de Mariage, art. 463;
Van Leeuwen, Comm. B. 1, ch. 15, § 1, 2, 3.

* Code Civil, art. 229 to 288; Id. 275, &e. See in Fergusson on Marriage
and Divorce, Appx. 448, the Prussian Code on the subject of Divorce ; among

others, incompatibility of temper, endangering life or health, is a good cause of
divorce, art. 703.
§ 201 ~ 204.] FOREIGN DIVORCES. 258

divorces are grantable by judicial tribunals for the cause of adul-
tery. In other States divorces are grantable judicially for causes
of far inferior grossness and enormity, approaching sometimes
almost to frivolousness. In other States divorces can be pro-
nounced by the legislature only, and for such causes, as in its
wisdom it may choose from time to time to allow.?

§ 208. Some of the most embarrassing questions belonging to
international jurisprudence arise under the head of marriage and
divorce. Suppose, for instance, a marriage celebrated in Eng-
land, where marriage is indissoluble, and a divorce obtained in
Scotland @ vinculo matrimonii, as it may be for adultery under
the laws thereof, will that divorce be operative in England, so as
to authorize a new marriage there by either party? Suppose a
marriage in Massachusetts, where a divorce may be had for adul-
‘tery, will a divorce obtained in another State, for a cause un-
-known to the laws of Massachusetts, be held valid there? If, in
each of these cases the divorce would be held invalid in the coun-
try, where the marriage is celebrated, but it would be held valid,
where the divorce is obtained; what rule is to govern in other
countries as to such divorce? Is it to be deemed valid, or invalid
there ? Will a new marriage contracted there by either party be
good, or be not good? These, and many other perplexing ques-
tions may be put; and it is difficult at the present moment to
give any answer to them, which would receive the unqualified.
assent of all nations..

§ 204. Other most perplexing inquiries may grow out of the
consideration of the national character of the parties; whether
they are both citizens, or subjects, or both foreigners, or one a cit-
izen, and the other a foreigner ; whether the marriage is celebrated
at home, or celebrated abroad; whether the jurisdiction of any
court to pronounce a decree of divorce is to be founded upon the
national character of the parties, or upon the celebration of the
marriage within the territorial jurisdiction, or upon the domicil of
the parties within it, or upon the actual presence or temporary

? This also is the law in Holland, in Prussia, and in the Protestant states of
Germany, i in Sweden, Denmark, and Russia. Fergusson on Marr. and Divorce,
202.

2 See 2 Kent, Comm. Lect. 27, p. 106 to 110; Id. p. 117,118, 3d edit. See
also 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, § 1, p. 640 to p. 668,
where are brought together in. a general. review the laws of different nations on

the subject of divorce.
CONFL, 22
254 CONFLICT OF LAWS. [cH. vi.

residence of one or both of them at the time, when the process for
divorce is instituted. And if, upon any of these grounds, the
jurisdigtion is sustained, another not less important inquiry is,
whether the law of divorce of the place of the marriage, or that
of the place where the suit is instituted, is to be administered by
the court, ‘before which the suit is pending. “

§ 205. It seems to have been thought, that under the Scottish
law it is not necessary to found a jurisdiction for divorce in the
courts of Scotland, that both the parties should at the time of the
adultery committed, or at the time of the suit brought, have their
actual domicil in Scotland. It seems to be sufficient, that the de-
fendant, against whom the suit is brought, is domiciled in that
kingdom, so that a citation may be served upon him, and that a
divorce under such circumstances may be granted, whether the
adultery is committed at home, or in a foreign country. Undoubt-
edly this doctrine is to be understood with the limitation, that the
domicil is real, and not pretended, and that it is bond fide, and
not by collusion between the parties for the mere purpose of main-
taining the suit and procuring the divorce."

1 Fergusson on Marr. and Divorce, Introd. p. 16,17, 18; Id. p. 51; Id. p. 114,
115, note; St. Aubyn v. Obrien, Id. Appx. p. 276; Id. note B. p. 363 to p. 376;
1 Burge, Comm: on Col. and For. Law, Pt. 1; ch. 8, § 2, p. 672, 674 to 679, 688,
689. See McCarthy v. DeCaix, cited in a note to 3 Hagg. R. 642, and in War-
render v. Warrender, 9 Bligh, R. 141, 142; Conway v. Beazley, 3 Hagg. Eccles.
R. 639, 645, 646; S. C. reported at large in 2 Russ. & Mylne, 614, 618, 619, 620;
Tovey v. Lindsay, 1 Dow, R. 115, 181, 185, 136, 137; S. C. 2 Clark & Fin. 569,
note; post, § 216, 217, 218. See also, Warrender v. Warrender, 9 Bligh, R. 89,
144; post, § 226 a to 226 c. Mr. Chief Justice Gibson in delivering the gpinion
of the Supreme Court of Pennsylvania, in a case of divorce, used the following
language: “In constructing our international law of divorce, we naturally look
for the materials of it in the jurisprudence of our ancestors, whose institutions
are more congenial with our own than those of their continental neighbors, and
whose process of forensic discussion is usually more exact. But we find an irre-
concilable difference betwixt the decisiofs of the English and of the Scottish
courts. The English judges acknowledge the legitimacy of no jurisdiction which
is not founded in the law of divorce at the place of the marriage, if it be an
English one ; while the Scottish, in the other extreme, are willing to found theirs
even on a temporary residence of the complainant in the country of the forum,
Of the latter pretension, I shall say little more than that it is in truth a usurpa-
tion of power, to intermeddle in the domestic concerns of a neighbor. Ifa bona
fide domicil, in the strictest sense of the word, were not essential to jurisdiction,
there would be nothing to prevent the exhibition of a libel by a proctor, and
without the presence even of the complainant. But the respondent's presence
would be more essential still; for a sentence against one who was not subject to the

~
‘
§ 204-206.] FOREIGN DIVORCES. 255

§ 206. A learned Scottish jurist, in remarking upon the embar-
rassments arising out of this state of the law of Scotland, has
imade the following powerful observations. ‘These conclusions
evidently demonstrate, that, unless the remedy in this judicature
shall be limited, either to that, which the lex loci contractts

jurisdiction, would be void on the plainest principles of natural law. Moreover, it
is not perceived, how the actual presence of both of them could confer jurisdic-
tion of a cause of divorce, which was not, in its inception, subject to the law of
the forum. It seems to me the fallacy in the reasoning of the Scottish judges, —
plausible though it be,— consists in their assumption, that divorce is a penalty
everywhere annexed to a breach of the marriage contract, which, like a civil
cause of action attendant on the person, may be enforced anywhere ; thus for-
getting that, whether it be a penalty at all, depends not on the Scottish law, as
an interpreter or avenger, but on the law of the domicil, or else on the lex loci
contractus, which exclusively furnishes the original conditions. The English
doctrine, on the other hand, is not more reconcilable to our principle of finite
allegiance; for notwithstanding the doubt and manifest inclination of Doctor
Lushington, in Conway v. Beazley, (3 Hagg. Eccles. R. 639,) I take it to be
settled by Lolley’s case, (1 Russ. and Ryan’s Crim. Cas. 236,) sanctioned in Tovey
v. Lindsay, (1 Dow, R. 124,) by the preponderating weight of Lord Eldon’s
name, that the dissolution of an English marriage, for any cause whatever, can
be effected so as to be acknowledged in that country only by English authority.
It was indeed infimated in Conway v. Beazley, that the question of jurisdiction
in Lolley’s case, perhaps, turned on the difference between temporary and per-
manent residence ; but the report certainly does not indicate it, and besides, the
conclusion attained was an unavoidable consequence of the British tenet of per-
petual allegiance. Though an English subject acquire a foreign character from
a foreign domicil, insomuch as to be treated as an alien for commercial purposes ;
though he formally renounce his primitive allegiance, and profess another; he is
accounted but as a sojourner while abroad, and England, by the dogma of her
government, is his home, and his country still. Holding this dogma, it would be
strange did she tolerate foreign interference with her domestic relations within
our pale. Insisting on jurisdiction of his person, absent or present, she neces-
sarily regards an attempt to change any one.of these as an invasion of her sov-
ereignty; and in that aspect, it cannot be denied, that the matter is within her
province and her power; for though the status of marriage is juris gentium, the
institution is undoubtedly a subject of municipal regulation. And it is this per-
petual allegiance to the country, its institutions, and its laws, — not an indissolu-
bility of the marriage contract from the presumptive will and reservation of the
parties, — which is the root of the English doctrine. It truly assumes, that mar-
riage is contracted on the basis of the laws, and that these forbid a British subject
to dissolve it by the authority of any other country; but take away the law of
perpetual allegiance, and you take away the foundation of the presumptive
pledge not to submit the duration of it to foreign action.” Dorsey v. Dorsey,
7 Watts, 349; S. C. 1 Chand. Law a p. 288, 389. See Maguire v. Ma-
guire, 7 Daria, R. 181.
256 CONFLICT OF LAWS. [cH. va.

affords, or to that, which the lex domicilii, taken in the same fair
sense, as in questions of succession, might give, the public decrees
of the only court of Scotland, which is competent to pronounce
one in such consistorial causes, become proclamations to invite all
the married, who incline to be free, not in the rest of the British
empire alone, but in all countries where marriage is indissoluble
by judicial sentence, to seek that object in this tribunal. -Adul-
tery and presence within our territory are the only requisites to
found the jurisdiction by citation. What numbers of foreign
parties may accept such an offer, and may even commit the crime
here, for the very purpose of affording ground for the action, it is
impossible to conjecture. But it is manifest, that, in exact pro-
portion to their number, injury to the morals of this country must
follow ; and, by setting at nought the laws of other nations, re-
proach must be brought upon our own. For all foreign parties,
while matters stand upon this footing, have it in their power, with
the help of evidence, as easily provided, as it may be disgusting
and impure, to oblige the Scotch Consistorial Court to entertain
the whole mass of their foreign causes, although there is no fair
interest to insist, that the municipal law of Scotland shall decide
these by its own peculiar rules. To what extent, therefore, the
good order of society may eventually be disturbed by this compul-
sory abuse and pollution of its jurisdiction, in consequence of the
doubts and contests that must ensue, as to rights of legitimacy and
succession, no calculation can be made.” !

§ 207. Upon the point, what is the rule of divorce, a learned
Scottish judge has made the following remarks, in a case depend-
ing before him in judgment.2 “ With us, the laws relative to di-
vorce are founded on Divine authority. How can a person with-
draw himself from obedience to such laws? Are thése laws re-
laxed as to a person domiciled in Scotland, because his marriage
is contracted in a country where the law of divorce is different?
If two natives of Scotland were married in France or Prussia ac-
cording to the laws of those countries, the marriage would no
doubt be valid here. But would they be entitled to come into the
Commissary Court, aid insist for a dissolution a vinculo matrimo-
mit, merely because their tempers were not suitable, which, in

? Fergusson on Marr. and Div. Introd. p. 18, 19.

* Lord Robertson; The Cases of Edmonstone, of Levett, and of Forbes, in
Fergusson, Appx. 383; Id. 398. See also Id. 415.
-§ 206 - 210.] FOREIGN DIVORCES. 257

France, was a ground of divorce, or for any of the numberless
reasons for dissolving a marriage, which are allowed by the laws
of Prussia? But, if we would not listen to the lex loci, when it
facilitates divorce to a degree which our law considers as inconsist-
ent with the best interests of society, and as not warranted by the
Divine law, on what principle are we to give effect to the lex loci,
which prohibits divorce, even adulterii causd, though permitted in
this country under the sanction of the Divine law ?”

§ 208. These passages are sufficiently significant, as to the in-
trinsic difficulties of the subject, looking only to the law of divorce
of asingle country. But, when we look at the almost endless di-
versities of foreign continental jurisprudence on the same subject,
and the little regard which is habitually paid in that jurisprudence
to the decrees of foreign courts, especially in matters which con-
cern persons helonging to any other continental sovereignty ; it
ought not to surprise us, that one nation should hold its own law
of divorce of universal obligation and authority, and that another
should yield it up in favor of the law of the domicil of the parties.

§ 209. Upon the continent of Europe there has long existed a
known distinction between the Catholics and the Protestants upon
the subject of divorce. The former, according to the doctrine of
the Romish Church, consider marriage as a sacrament, and in its
effects to be governed by the Divine law; and according to their
interpretation of that law it was formerly held to be indissoluble.!
The Protestants, on the contrary, have not generally considered it
as a sacrament; but many, if not all of them, have considered it
mainly as a civil institution, and subject to the legislative author-
ity, as matter of public police and regulation.?

§ 210. In Catholic France, we are informed, that, until some
time after the revolution, (until 1792,) marriage was always treat-
ed as indissoluble.2 ‘Our Church” (says Merlin) “never ap-

1 See Fergusson on Marr. and Divorce, Appx. note M. p. 443; Heinece.
Elem: Juris. Germ. tit. 14, § 328 to 332; Dalrymple v. Dalrymple, 2 Hagg.
Consist. R. 68, 64, 67; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, § 1,
p. 642, 643.

2 1 Black. Comm. 433; 2 Hagg. Consist. R. 63, 67; 1 Burge, Comm. on Col.
and For. Law, Pt. 1, ch. 8, § 1, p. 648, 649; Id. p. 650 to 653.

3 We have already seen, that by the Code Civil of France, art. 229 to 233,
divorce is allowed in a variety-of cases. Upon the restoration of the Royal
Family, in 1816, it seems that the existing law of divorce was abolished. Mer-

" lin, Répertoire, Divorce, § 4, p. 161. Whether, since the revolution of 1830, it
22%
258 CONFLICT OF LAWS. [cH. vn,

proved of divorce, properly so called. It has always regarded it
as contrary to the precept, quod Deus conjunxit, homo non sepa-
ret: What God hath joined together, let not man put asunder.
It is, therefore, a perpetual maxim among us, that marriage can-
not be dissolved by means of a divorce.” Pothier says: Mar-
riage is not dissolved, but by the natural death of one of the par-
ties; while they live, it is indissoluble.2 He adds, that, though
divorce was permitted by the Christian emperors, the Church re-
garded it as prohibited by the Gospel ; and that it is not permitted
by the French law for any cause whatsoever.*

§ 211. Protestants have dealt differently by it. In Scotland,
which proposes on this subject to be governed exclusively by the
Scriptures, divorce is allowed for the Scriptural causes, for adul-
tery, and for wilful desertion.6 In many other Protestant coun-
tries, it is not treated as indissoluble, except for Scriptural causes ;
but it may be dissolved for other causes. In England, it is never
dissolved, except by an act of Parliament, and for adultery.’ In
the Protestant continental nations of Europe many other causes of
divorce are known ; and in America, as we have seen, it is gener- -
ally treated as a matter of civil regulation.®

§ 212. The conflict of laws on the subject of divorce does not
seem to have undergone much discussion among the continental
jurists ; at least I have not been able to trace any systematic ex-
amination of the subject in those works which are within my reach,
and in which almost all other topics of the conflict of laws are so
amply treated. The silence of the French jurists may be account-
ed for, in a great measure, from the uniformity of operation of the
has been reinstated, I am not at this moment able to say. See Duranton, Cours
de Droit Francaise, Vol. 14, p. 535, note.

1 Matthew, ch. 19, v. 6.

* Merlin, Répertoire, Divorce, § 3, p. 151.

® Pothier, Traité du Mariage, o. 462.

* Pothier, Traité du Mariage, n. 464.

5 Td. n. 495; ante, § 209. :

° Erskine’s Instit. B. 1, tit. 6, § 48, 44; Fergusson on Marr. and Div. Appx.
note H. p. 423. [* We do not understand that desertion is a Scriptural cause of

divorce. ‘“ Whosoever putteth away his wife save for the cause of adultery, com-
mittéth adultery.”]

T Ante, § 202.
* See 1 Black. Comm. 441; Code Civil of France, art. 229 to 233; Fergusson

on Marr. and Div. Appx. note N. p. 448; 2 Kent, Comm. Lect. 27, p. 95 to
p. 106, 3d edit.; Van Leeuwen, Comm. B. 1, ch. 15, § 1 to 6.
§ 210 - 218.] FOREIGN DIVORCES, 259

Catholic religion and its canons over all the provinces of that
kingdom ; from the strong probability, that few cases of foreign
divorces between French subjects were ever judicially examined ;
and from the natural conclusion, that, as in their view Christianity
made the marriage udion indissoluble, no earthly tribunal, either
foreign or domestic, could rightfully pronounce a sentence of di-
vorce. The silence of other Catholic countries may be accounted
for in the same way. But it is not so easy to assign a satisfactory
reason for the omission of the Protestant countries of the conti-
nent of Europe to discuss the subject at large. It is highly prob-
able, that, in those countries, the parties have been referred to
their own matrimonial forum, either to furnish the true rule to
expound the contract, or to administer the law of divorce, or for
both purposes. This course has not been without example, even
in our own country, upon cases bearing a close affinity.?

§ 218. Merlin has treated the question purely as one arising
under the French law, either with reference to the allowance of
divorces under the legislation of 1792, or with reference to the pro-
hibition of divorces after the restoration of the Bourbons in 1816.2
He asks the question, whether, in virtue of the new law (of 1792)
which introduced divorce, a marriage celebrated under the old
law, which prohibited divorce, could be dissolved ; and vice versdé,
whether a marriage celebrated after the new law, which permitted
divorce, could be dissolved after the promulgation of the law (of
1816) which prohibited divorce.? He says, that if divorce was, as
the state of the parties (état des époux), the immediate effect and
simple consequence of the marriage, the question might be easily
answered. Upon this hypothesis, as the state of the parties, the
right of divorce would depend altogether upon the law at the time
when the marriage was celebrated ; because then, in the first case
put, the contract must be deemed one for an indissoluble union ;
and in the second case, a contract dissoluble for the proper causes
of divorce. But, he goes on to state, that divorce does not depend
upon the intention of the parties, nor is it a consequence, or inter-
pretation of it. The legislature, in allowing or prohibiting divorce,
has regard only to considerations of public order, and not to the

1 2 Kent, Comm. Lect. 27, p. 108, 3d edit.

2 Ante, § 210.

* Merlin, Répertoire, Effet Rétroactif, § 3, n. 2, art. 6.

"Id. § 3, n. 2, art. 6, p. 19. 5 Tbid.
260 CONFLICT OF LAWS. [cH. Vu.

mere contract of the parties. They are not permitted by private
agreement to change the laws, or to make a marriage dissoluble or
indissoluble in contravention of the policy of the state.1 He, there-
fore, comes to the conclusion, that in a French court a fivore | in
such case would be granted or denied according to the law of
France at the time of the suit.?

§ 214. The question, how a marriage in a foreign country be-

tween French subjects, or between foreigners, would be affected by
a naturalization or domicil in France, is not here touched. In an-
other work, however, treating of moot questions, he has recently
discussed the point. He asks, whether French subjects married in
France since the repealing act of 1816, who have abandoned their
country, and become naturalized in a country where divorce is
allowed, could institute a suit there, and dissolve their marriage
by a decree of divorce pronounced there by mutual consent. He
supports the affirmative upon the general reasoning, by which he
has sustained the doctrine in the preceding paragraph. It would
seem, however, from his own statement, that this is quite an open
question in France.
- § 215. It is to the decisions of the English and Scottish courts,
however, that we must look for the most thorough and exact dis-
cussion of this subject. From the different nature of the respective
laws of England and Scotland-upon the subject of divorce, from
their national union, and from their constant, easy, and familiar
intercourse, the courts of both countries have been frequently
called upon to pronounce very elaborate judgments respecting the
jurisdiction ‘and law of divorce in suits and contestations before
them.

§ 216. Several questions on this subject have been recently dis-
cussed in the courts of Scotland. One is, whether a permanent
domicil of the parties is indispensable to found a jurisdiction in
cases of divorce in the Scottish tribunals; or whether a citation
given formally to the party defendant, or left at his dwelling-place
in Scotland, after he has been forty days there, is sufficient to sub-
ject him to the jurisdiction of those courts in a suit for divorce.
In the case, in which this question was principally discussed, the
marriage was celebrated in England; the husband “Many years

: ea Répertoire, Effet Rétroactif, § 3, n. 8, art. 6, p. 19.

1
* Merlin, Questions de Droit, Divorce, § 11, p. 850; ante, § 218.
§ 218 -218.] FOREIGN DIVORCES. 261

‘afterwards abandoned his wife, and went to Scotland to reside;
and the wife commenced a suit for divorce against her husband in
the Scottish Consistorial Court. The court were of opinion, that
as the parties were English, and never cohabited as husband and
wife in Scotland, and there was no proof, that the husband had
taken up a fixed and permanent residence in Scotland, the suit
ought to be dismissed upon the ground of a want of jurisdiction.
Upon appeal the decree was reversed by the superior tribunal, and
a decree of divorce was ultimately pronounced.!

§ 217. The leading grounds of the reversal were: “ That the
relation of husband and wife is a relation, acknowledged jure gen-
tium ; that the duties, obligations, and rights to redress wrongs in-
cident to that relation, as recognized by the law of Scotland, attach
on all married persons living within the territory and subject to
that law, wheresoever their marriage may have been celebrated ;
that jurisdiction, or the right and duty of the courts of Scotland to
administer justice in such matters, over persons not natural-born
subjects, arises from the person sued being resident within the ter-
ritory at the time of their citation and appearance, or being duly
domiciled, and being properly cited accordingly, at the instance of
& person having a sufficient interest and title, and proceeding in
due form of law.” 2 ‘The result of this decision is, that permanent
domicil, or the animus remanendi, is not necessary to found the
jurisdiction. In several other succeeding cases, the court have
followed up the same doctrine, affirming that a temporary residence
is sufficient to found the jurisdiction, notwithstanding the perma-
nent jurisdiction of the parties is in another country.?

§ 218. This doctrine has been maintained by the Scottish judges
with great ability and learning, and no one can read their reason-
ing without admitting its force. It has not, however, been deemed
satisfactory in England. In a very important case before the
twelve judges (Lolley’s case,) where English subjects were married,

_in England, and afterwards the husband went to Scotland, and pro-
cured a divorce a vinculo there, and then returned to England, and

1 Utterton v. Tewsh, Fergusson on Marr. and Divorce, 'p. 1 to p. 55; Id. p. 56
to p. 67.

3 Thid.

® Duntze v. Levett, Fergusson on Marr. and Div. p. 68 to p. 167 ; Edmonstone
v. Lockhart, Id. p. 168 to p. 208; Butler v. Forbes, Id. p. 209 to p: 225; Kibble-
white v. Rowland, Id. p. 226 to p. 248; Gordon v. Pye, Id. p. 276 to p. 362; Id.
p- 888 to p. 423.
262 CONFLICT OF LAWS. -[oH. vir

married another wife, it was decided, that the second marriage was
void; and the husband was guilty of bigamy.1 It has been com-
monly supposed, that this decision proceeded upon the broad and
general ground, that an English marriage is incapable of being dis-
solved under any circumstances by a foreign divorce; and so it
seems to have been understood by Lord Eldon on a later occasion.’

" Lolley’s Case, 1 Russ & Ryan’s Cr. Cases, 236. See Warrender v. Warren-
der, 9 Bligh, R. 122, 123, 127, 128, 129, 180, 189 to 143. ;

* Tovey v. Lindsay, 1 Dow, R. 117,131. See also McCarthy 0. De Caix, 1831,
cited 8 Hagg. Eccles. R. 642, note; S. C. 2 Russ. & Mylne, 614, 620. Lord El-
don on this occasion is reported to have used the following language: “ Here
then we have a case, in which both parties were domiciled in England, and then
the husband went to Scotland, where it was said he had a domicil by reason of
origin, and his being heir of entail of an estate there, and instituted a suit against
his wife, which she said did not affect her in England ; and if his domicil was at
Durham, the answer would be sufficient, though the rule of law should be admit-
ted, that the domicil of the wife followed that of the husband. But if the juris-
diction by reason of the original domicil could be maintained, it would be attend-
ed with the most important consequences to the law of marriage. The decision
in the second case appeared rather singular, when connected with the decision in
the first. They stated, as a main ground of the judgment in the second cause,
that the respondent was confessedly domiciled in Scotland, and that therefore they
had jurisdiction, which appeared to imply a doubt, whether they had jurisdiction
in the first cause. If the first cause could be supported, there was no occasion for
the second. But, suppose the respondent were domiciled in Scotland at the
time of the alleged acts of adultery there, the question still remained, whether in
1810 he could institute a suit against her with effect, unless she had changed her
forum likewise, merely upon the ground of the fiction, which had been stated.
This was a question of the very highest importance.” Lord Brougham, in deliv-
ering his own judgment in McCarthy v. De Caix, 2 Russ. & Mylne, 614, 620, said:
“T find from the note of what fell from Lord Eldon on the present appeal, that
his Lordship labored under considerable misapprehension as to the facts in Lol-
ley’s case. He is represented as saying, he will not admit, that it is the settled
law, and that therefore he will not decide, whether the marriage was or not pre-
maturely determined by the Danish divorce. His words are, ‘I will not without
other assistance take upon myself to do so.’ Now, if it has not validly and by. the
‘highest authorities in Westminster Hall been holden that a foreign divorce can-
not dissolve an English marriage, then nothing whatever has been established.
For what was Lolley’s case? It was a case the strongest possible in favor of the
doctrine contended for. It was not a question of civil right but of felony. Lolley
had bond fide, and in a confident belief, founded on the authority of the Scotch
lawyers, that the Scotch divorce had effectually dissolved his prior English. mar-
riage, intermarried in England, living his first wife. He was tried at Lancaster
for bigamy, and found guilty; but the point was reserved, and was afterwards
argued before all the most learned judges of the day, who, after hearing the case
fully and thoroughly discussed, first at Westminster Hall, and then at Serjeantis
§ 218, 219.] FOREIGN DIVORCES. 263

It has been suggested, however, that Lord Eldon was not prepared
to carry the doctrine to such a length; and certainly there was
room in that case for a distinction, founded upon the fact, that
neither of the parties at the time of the suit for the divorce in Scot-
land had a bond fide domicil there; but that they both, at that
very time in fact had their domicil in England, where the marriage
was had.}

§ 219. It has been stated by another learned judge, in a very
recent case, that Lolley’s case turned upon the very distinction, in
point of jurisdiction between a temporary and fugitive residence
for:the purpose of a divorce, and bond fide change of domicil by
the husband and wife, animo remanendi. And upon the ground
of that distinction, in a case, where there was no change of domi-
cil, and the parties were not at any time bond fide domiciled in
Scotland, he declared a Scottish divorce from an English marriage
utterly void.2? The language of his opinion is so important, that it

Inn, gave a clear and unanimous opinion, that no divorce or proceeding in the
nature of divorce in any foreign country, Scotland included, could dissolve a mar-
riage contracted in England; and they sentenced Lolley to seven years’ trans-
portation. And he was accordingly sent to the hulks for one or two years ; though
in mercy, the residue of his sentence was ultimately remitted. I take leave to say,
he ought not to have gone to the hulks at all, because he had acted bond fide,
though this did not prevent his conviction from being legal. But he was sent
notwithstanding, as if to show clearly that the judges were confident of the law
they had laid down ; so that, never was there a greater mistake than to suppose,
that the remission argued the least doubt on the judges. Even if the punishment
had been entirely remitted, the remission would have been on the ground, that there
had been no criminal intent, though that had been done, which the law declares to
be felony. I hold it to be perfectly clear, therefore, that Lolley’s case stands as
the settled law of Westminster Hall at this day. It has been uniformly recog-
nized since; and in particular: -it was repeatedly made the subject of discussion,
before Lord Eldon himself, in the two appeals of Tovey v. Lindsay in the House
of Lords, when I furnished his Lordship with a note of Lolley’s case, which he fol-
lowed in disposing of both those appeals, so far as it affected them. That case
then settled two points, — first, that no foreign proceeding in the nature of a di-
vorce in an ecclesiastical court could effectually dissolve an English marriage ;
and, secondly, that a Scotch divorce is not such a proceeding in an ecclesiastical
court, as to bring the case within the exception in the Bigamy Act, for which
nothing less than the sentence of an English ecclesiastical court is sufficient.” See
also 2 Clarke & Finnell. R. 567, note, and Warrender v. Warrender, 9 Bligh, R.
89, 121, 124, 127; Id. 141, 142, 143; post, § 219 a.

 Lolley’s Case, 1 Russ. & Ryan’s Cr. Cases, 237; S. C. 2 Clarke & Finnell.
R. 567, note.

* Dr. Lushington, in Conway v. Beazley, 3 Hagg. Eccles. R. 639, 645, 646, 647,
653. .
264 CONFLICT OF LAWS. [cu. va.’

deserves to be quoted at large. ‘A case, in which all the par-
ties are domiciled in England, and resort is had to Scotland (with
which neither of them have any connection) for no other purpose
than to obtain a divorce a vinculo, may properly be decided on
principles, which would not altogether apply to a case differently
circumstanced ; as, where, prior to the cause arising, on account
of which a divorce was sought, the parties had been bond fide
domiciled in Scotland. Unless I am satisfied, that every view of
this question had been taken, the court cannot from the case re-
ferred to (Lolley’s case) assume it to have been established as a
universal rule, that a marriage had in England, and originally
valid by the law of England, cannot, under any possible circum-
stances, be dissolved by the decree of a foreign court. Before I
could give my assent to such a doctrine, (not meaning to deny
that it may be true,) I must have a decision, after argument, upon
such a case, as I will now suppose, namely, a marriage in England,
the parties resorting to a foreign country, becoming actually bond
fide domiciled in that country, and then separated by a sentence
of divorce pronounced by the competent tribunal of that country.
Iam not aware, that that point has ever been distinctly raised ;
and I think, I may say with certainty, that it has never received,
any express decision. I believe the course of decision in Scotland
up to the present hour has been to consider, that the Scotch courts
have a right to entertain jurisdiction with respect to marriages had.
in England, after the parties have been residents for a certain
period in Scotland, though that period had been infinitely too
short to constitute what we should call a legal domicil ; and that
those courts have proceeded in such cases to divorce a vinculo. It
is obvious, that many most important differences may arise in cases
of this description. Two Scotch persons, married in England,
may afterwards go to reside in Scotland. Again; one of the con-
tracting parties may be English, and the other Scotch. If the law
of Scotland continue such, as their courts have hitherto held it to
be, and if the decision in Lolley’s case be of universal application,
the issue of the second marriage may be legitimate in Scotland,
and illegitimate in England. The son may take the real estate in
Scotland, and not the real estate in England. He might possibly
be a Scotch, peer, and lose his English title, and with it the Eng-
lish estates, the only support of his Scotch peerage.” !

* Conway v. Beazley, 3 Hagg. Eccles. R. 645, 646, 647, 653.
§ 219 -— 221.] FOREIGN DIVORCES. 265

§ 220. Independent of the point of general jurisdiction, founded
ypon the fact of the domicil of both the parties, or at least of the
party defendant in the suit for a divorce, which for a series of
years was most elaborately discussed, and remained in a state of
distressing uncertainty, as well as to the effect of a permanent
domicil, as to that of a temporary domicil, to found a sentence of
divorce, the Scottish courts have been called on to decide other
questions of a broader character, and involving more extensive
consequences. In the first place, the general question already
hinted at, whether an English marriage between English subjects,
being indissoluble by the law of: England, can under any possible
circumstances be dissolved by-a decree of divorce in Scotland. In
the next place, whether a marriage in Scotland by English sub-
jects, domiciled at the -time in England, is dissoluble under any
circumstances by a decree of divorce in Scotland. In the next
place, whether, in case of a marriage in England, it will make any
difference, that the parties are both Scotch persons, domiciled in.
Scotland, or afterwards become bond fide and permanently domi-
ciled there.

§ 221. Upon these questions the highest tribunals in Scotland
have come to the following conclusions. First, that a marriage
between English subjects in England, and indissoluble there, may
be lawfully dissolved by the proper Scottish court for a cause of
divorce, good by the law of Scotland, when the parties are within
the process and jurisdiction of the court; or, in other words, that
it.is not a valid défence against an action of divorce in Scotland
for adultery committed there, that the marriage was celebrated in
England. Secondly, that a Scotch marriage by persons, domiciled
at.the time in England, is dissoluble in like manner by the proper
Scottish court; or in other words, that it is not a valid defence,
that the parties were domiciled in England, when the marriage
was celebrated in Scotland. Thirdly, that in. case of a marriage
in England, it will make no difference, that the parties are Scot-
tish persons, domiciled in Scotland, or are afterwards bond fide
and permanently. domiciled there; or, in other words, that it is
not a valid defence, that the parties are Scottish persons, happen-
' ing to be in England when their marriage was celebrated, but who
afterwards returned to Scotland, and cohabited, and continued
domiciled there. The result of these opinions (the unanimous
opinions of the judges of the Court of Session) is, that the mere

CONFL. 23
266 CONFLICT OF LAWS. [cu. vu.

fact of the marriage having been celebrated in England, whether
it is between English parties, or Scottish parties, or both, is not
per se a defence against a suit of divorce for adultery committed
there. /

§ 222. The reasoning, by which these opinions are maintained,
as it may be gathered from comparing the arguments of the differ-
ent judges, is to the following effect. The relation of husband
and wife, wherever it may have been originally constituted, and
the parties thereto been connected, is entitled to the same protec.
tion and redress from the courts of justice in Scotland, as to
wrongs committed in Scotland, which belong of right to fab rela-
tion by the law of Scotland.? By marrying in England the parties
do not become bound to reside forever in England, or to treat one
another in every other country, where they may afterwards reside,
according to the law of England. Their obligation is to fulfil the
duties of husband and wife to each other in every country, to
which they may be called in the course of Providence ; and they
neither promise, nor have they power to engage, that they will
carry the law of England along with them to regulate, what the
duties and powers shall be, which they shall fulfil and exercise, or
the redress which the violation of those duties, or abuse of those
powers, may entitle them to in all other countries. All these
functions belong to the law of the country where they may event-
ually reside, and to which they unquestionably contract the duties
of obedience and subjection, whenever they enter its territories.
Even, if it had been the will of the parties by any stipulation,
however express, to make the /ex loci the law of their marriage, it
would derive no force from that circumstance. An action of di-
vorce could not be dismissed, because the parties, when intermar-
rying, had in the most formal manner renounced the benefit of
divorce, and had become bound, that their marriage should be in-
dissoluble. It would be no objection to a divorce at the instance
of a Roman Catholic, that his marriage was to him a sacrament,
and, therefore, by its own nature indissoluble. These are all
facta privatorum, and cannot impede or embarrass the steady,
uniform course of the jus publicum, which with regard to the
rights and obligations of individuals, affected by the three great

+ Cases of Edmonstone, Levett, and Forbes, Fergusson on Marr. and Div. 388,

392, 393; Id. 414, 415.
Renranion on Marr. and Divorce, 358.
§ 221-224] FOREIGN DIVORCES. 267

domestic relations, enacts them from motives of political expedi-_
ency and public morality ; and in nowise confers them as private
benefits, resulting from agreements concerning meum et tuum,
which are capable of being modified and renounced at pleasure.!

§ 223. If this supposed obligation of indissolubility, resulting
from contract, can derive no force from the will of the parties, it
cannot derive any from the dictates of the municipal law, where
the relation of marriage originated, so as to give it efficacy ultra
lerritorium ; for the general rule is: extra-territorium jus dicenti
impune non paretur.2 In the fulfilment of ordinary contracts, as
to meum et tuum, the lex loci contractis forms an implied condi-
tion of the contract, and is accordingly adopted, as furnishing the
means of construing it aright. But this is merely a proceeding in
execution of the will of the parties, and not in the least a recogni-
tion of the authority of a foreign law. The case is, therefore,
quite different, where the will of the parties only constitutes, and
does not modify the relation or its rights; and where of course
the municipal law, deriving nothing from stipulation or agreement,
is merely the positive institution of the sovereign, and cannot di-
rect the decisions of foreign courts, or the circumstances occurring
within their own jurisdiction. Matrimonial rights and obligations,
so far as they are juris gentium, admit of no modification by the
will of parties; and foreign courts are, therefore, in nowise called
upon to inquire after that will, or after any municipal law, to
which it: may correspond.®

§ 224. Foreigners, equally with natives, while residents, are

subject to the law here, and of course are under the protection of
the law. The relations in which they stand towards one another,
and which have been duly constituted, before they came here, if
they are relations recognized by all civilized nations, must be ob-
served; and the obligations created by them must be fulfilled
agreeably to the dictates of the law of Scotland. If the law refused
to apply its rules to the relation of husband and wife, parent and
child, master and servant, among foreigners in this country, Scot-
land could not be deemed a, civilized country ; as thereby it would
permit a numerous description of persons to traverse it, and vio-
late with utter impunity all the obligations on which the principal

' Fergusson on Marr. and Divorce, 359, 360 ; Id. 398, 399, 402.

2 Ante, § 8; Dig. Lib. 2, tit. 1, 1. 20.

5 Fergusson on Marr. and Divorce, 360, 361, 402, 410, 412, 414.
268 CONFLICT OF LAWS. [cH. vit.

comforts of human life depend. If it assumed jurisdiction, but
applied not its own rules, but the rules of the law of a foreign
country, the supremacy of the law of Scotland within its own ter-
ritories would be compromised ; its arrangements for domestie
comfort would be violated, confounded, and perplexed ; and the
powers of foreign courts, unknown to its law and constitution,
would exercise a usurped control.! In every country the laws
relative to divorce are considered of the utmost importance, as
positive laws affecting the domestic interests of society; and in
some places they are treated as of divine authority.2 A party
domiciled here cannot be permitted to import into this country a
law peculiar to his own case, and which is in opposition to those
great and important public laws, which are held to be connected
with the best interests of society?
§ 225. That there is great force in this reasoning, cannot well
be denied. For a long time it did not obtain any positive sanc-
tion in England; but, as far as judicial opinions went, they were
_ against the doctrine, that an English marriage is dissoluble by a
Scottish divorce.t The reasoning, by which this latter view was
sustained, was to the following effect. The law of the place where
the marriage is celebrated, furnishes a just rule for the interpre-
tation of its obligations and rights, as it does in the case of other
contracts which are held obligatory according to the lex loci com
tractés.6 It is not just that one party should be able at his option
to dissolve a contract by a law different from that under which it
was formed and by which the other party understood it to be
governed. If any other rule than the lex loci contractis is
adopted, the law of marriage, on which the happiness of society
so mainly depends, must be completely loose.and unsettled ;* and
the marriage state, whose indissolubility is so much favored by
Christianity, and by the best interests of society, will become
subject to the mere will, and almost to the caprice of the parties
? Fergusson on Marr. and Divorce, 57, 58, 414, 418.

2 Id. 398, 402, 403; ante, § 108, 210.

* Td. 399, 400, 412, 418,

* Lolley’s Case, 1 Russ. & Ryan’s Cas. p. 236; Tovey v. Lindsay, 1 Dow, R.
124; McCarthy v. De Caix, 3 Hagg. Eccles. R. 642, note; S.C. 2 Russ. &
Mylne, 620; 2 Kent, Comm. Lect. 27, p. 116, 117, 8d edit.

* Fergusson on Marr. and Divorce, 288, 284, 285, 311, 312, 318, 318, 325, 335,
339. |

* Fergusson on Marr. and Divorce, 288, 298, 312.
§ 224-226 a.] FOREIGN DIVORCES. 269

as to its duration. The courts of the nations whose laws are most
lax upon this subject will be constantly resorted to for the pur-
pose of procuring divorces; and thus, not only frauds will be
encouraged, but the common cause of morality and religion be
seriously injured, and conjugal virtue and parental affection be-
come corrupted and debased.! Thus, a dissatisfied party might
resort to one foreign country, where incompatibility of temper is
a ground of divorce; or to another, which admits of divorce upon
even more frivolous pretences, or upon the mere consent of both,
or even of one of the parties.

§ 226. In this manner a nation may find its own inhabitants
throwing off all obedience to its own laws and institutions, and
subverting by the interposition of a foreign tribunal, its own
fundamental policy. Nay, a stronger case may be put of a mar-
riage, deemed as a sacrament, indissoluble by the public religion
of.a nation, which is yet dissolved at the will of a foreign nation,
in violation of the highest of all human duties, a perfect obedi-
ence to the Divine law. There is no solid ground upon which any
government can be held to yield up its own fundamental laws
and policy, as to its own subjects, in favor of the laws or acts of
other countries. Parties contracting in a country where marriage
is indissoluble, voluntarily submit to the jurisdiction and laws of
that country, if they are foreigners, domiciled there. If they are
natural subjects, they are bound by the laws of the country in
virtue of the general duty of allegiance. Why then should Eng-
land permit her subjects, by a foreign domicil, to escape from
the indissolubility of a marriage contracted in England, and thus
permit them to defeat a fundamental policy of the realm?? Such
is a summary of the reasoning on each side of this vexed question.

§ 226 a. This whole subject, however, recently came before the
House of Lords in England, upon an appeal from the Court of

Session in Scotland, in which the direct question was, whether
it was competent for the S¢éottish courts to decree a divorce
between parties domiciled in Scotland, who were married in Eng-
land. The facts of the case in substance were these: A Scotch-

1 Id. 108, 104, 283, 284, 318, 319, 353} 355, 356.

2 Mr. Chancellor Kent has given an excellent summary of the reasoning on
each side in his Commentaries; 2 Kent, Comm. Lect. 27, p. 110 to p. 117, 3d
edit. My own duty required me to follow out his doctrine by some additional
sketches. :

23 *
270 CONFLICT OF LAWS. [‘cH. vit.

man, domiciled in Scotland, was tuarried to an Englishwoman in
England ; and, by their mami contract, a jointure was secured
to her in his Sottish estates. After their marriage they went to
Scotland, and resided there a short time, and then returned to
England. They afterwards in England executed articles of sepa-
ration, by which a separate maintenance was secured to the wife
during her separation. Immediately afterwards the wife went
abroad, and has ever since resided abroad. The husband con:
tinued to be domiciled in Scotland; where he brought a suit for
a divorce against his wife, founded upon the charge of adultery.
The preliminary question presented was, whether, even assuming
the parties to be domiciled in Seotland, the suit could be main-
tained in Scotland for a divorce from an English marriage, whicli
‘was by the law of England indissoluble. The Court of Session
affirmed the jurisdiction to decree the divorce; and this decree
was upon the appeal confirmed by the House of Lords.

§ 226 b. Very elaborate judgments were delivered by Lord
Brougham and Lord Lyndhurst upon this occasion. The direct
point decided was, that the courts of Scotland had by the laws
of Scotland a clear jurisdiction to decree a divorce in such a case
between parties actually domiciled in Scotland, notwithstanding
the marriage was-contracted in England, and that the House of
Lords, sitting as a court of appeal in a case, coming. from Seot-
land, was bound to administer the law of Scotland. The court
did not, however, decide, what effect that divorcé would have, ot
ought to have in England, if it should be brought in question in
an English court of justice.? Lolley’s case was a good deal dis
cussed ; and without being overturnef as to its professed general
doctrines must be now deemed to be greatly shaken, except as
a decision upon its own peculiar circumstances.

§ 226 c. But although the general question as to the indissolu-
bility of an English marriage, so far at least, as it could arise in
England upon a litigation there, was left undecided, Lord Brough+
am, in delivering his judgment, went into an élaborate exami-
nation of the general principles: of international law upon: this
subject. It cannot, therefore, but be acceptable to the learned

_reader to have in the subjoined note a summary of the reasoning,
by which this distinguished judge maintained the opinion, that

1 Warrender v. Warrender, 9 Bligh, R. 89; S.C. 2 Clarke & Finnell. R. 488.
2 Ibid.
§ 226 a - 226 c.] FOREIGN DIVORCES. O71

upon principles of public law, a divorce from an English mar-
riage, made by a cofipetent court of a foreign country where thé
parties are domiciled, ought to be deemed in England to dissolve
the marriage, and to confer upon the parties all the rights arising
from a lawful dissolution.

1 His Lordship’s reasoning was in substance to the following effect. ‘The
general principle is denied by no one, that the lex loci is to be the governing rule
in deciding upon the validity or invalidity of all personal contracts. This is some-
times expressed, and I take leave to say inaccurately expressed, by saying, that
there is a comitas shown by the tribunals of one country towards the laws of the
other country. Such a thing as comitas or courtesy may be said to exist. in
certain cases, as where the French courts inquire, how our law would deal with a
Frenchman in similar or parallel circumstances, and upon proof of it, so, deal
with an Englishman in those circumstances. This is truly a comitas, and can be
explained. upon ho other ground; and I must be permitted to say, with all re+
spect for the usage, it is not easily reconcilable to any sound reason. But when
the courts of one country consider-the. laws of another, in which any contract
has been made, or alleged to have been made, in constructing its meaning, or
ascertaining its existence, they can hardly be said to act from courtesy, ex comi-
tate, for it is of the essence of the subject-matter to ascertain the meaning of the
parties, and that they did solemnly bind themselves; and it is clear, that you
must presume them to have intended what the law of the country sanctions or
supposes; and equally clear, that théir adopting the forms and solemnities which
that law prescribes, shows their intention to bind themselves, nay more, it is the
only safe criterion of their having entertained such an intention. Therefore, the
courts of the country, where the question arises, resort to the law of the country,
where the contract was made, not ex comitate, but ex debito justitie; and in
order to explicate their own jurisdiction by discovering that which they are in
quest of, and which alone they are in quest of, the meaning and intent of the
parties. But whatever may be the foundation of the principle, its acceptance in
all systems of jurisprudence is unquestionable. Thus, a marriage, good by the
laws of one country is held good in all others, where the question of its validity
may arise. For why? The question always must be, Did the parties intend to
contract marriage? And if they did, what in the place they were in is deemed
a marriage, they cannot reasonably, or sensibly, or safely, be considered other-
wise than as intending a marriage contract. The laws of each nation lay down
the forms and solemnities, a compliance with which shall be.deemed the only
criterion of the intention to enter into the contract. If those laws annex certain
qualifications to parties circumstanced in a particular way, or if they impose
certain conditions precedent on certain parties, this falls exactly within the same
rule; for the presumption of law is in the one case, that the parties are abso-
lutely incapable of the consent required to make, the contract, and in the other
ease, that they are incapable, until they have complied with the conditions im-
posed. I shiall only stop here to remark, that the English jurisprudence, while it
adopts this principle in words, would not perhaps, in certain cases, which may. be
put, be found very, willing to act upon it throughout. Thus, we should expect
272 CONFLICT OF, LAWS. [cH. vn.

§ 227. If in any nation the doctrine shall ever be established
in regard to marriages, that the law of the place of its actual

that the Spanish and Portuguese courts would hold an English marriage avoid-
able between uncle and niece, or brother and sister-in-law, though solemnized
under Papal dispensation, because it would clearly be avoidable in this country.
But I strongly incline to think that our courts would refuse to sanction, and
would avoid ‘by sentence a marriage between those relatives contracted in the.
Peninsula, under dispensation, although beyond all doubt such a marriage would
there be valid by the lex loci contractiis, and incapable of being set aside by any
proceedings in that country. But the rule extends, I apprehend, no further than
to the ascertaining of the validity of the contract, and the meaning of the
parties, that is, the existence of the contract, and its construction. If, indeed,
there go two things under one and the same name in different countries, —
if that which is called marriage is of a different nature in each, —there may be
some room for holding, that we are to consider the thing to which the parties
have bound themselves, according to its legal acceptation in the country, where
the obligation was contracted. But marriage is one and the same thing, substan-
tially, all the Christian world over. Our whole law of marriage assumes this;
and it is important to observe, that we regard it as a wholly different thing, a
different status from Turkish or other marriages among infidel nations; because
we clearly never should recognize the plurality of wives, and consequent validity
of second marriages, standing the first, which second marriages the laws of those
countries authorize and validate. This cannot be put upon any rational ground,
except our holding the infidel marriage to be something different from the Chris-
tian, and our also holding Christian marriage to be the same everywhere. There-
fore, all that the courts of one country have to determine is, whethe? or not the
thing called marriage, that known relation of persons, that relation which those
courts are acquainted with, and know how to deal with, has been validly con-
tracted in the other country, where the parties professed to bind themselves. If.
the question is answered in the affirmative, a marriage has been had; the rela-
tion has been constituted; and those courts will deal with the rights of the parties
under it, according to the principles of the municipal law which they administer.
But it is said, that what is called the essence of the contract must also be judged
of according to the lex loci; and as this is somewhat vague, and for its vagueness
a somewhat suspicious proposition, it is rendered more certain by adding, that
dissolubility or indissolubility is of the essence of the contract. Now I take this
to be really petitio principii. It is putting the very question under discussion
into another form of words, and giving the answer in one way. There are many
other things which may just as well be reckoned of the essence as this. If it is
said, that the parties marrying in England must be taken all the world over to
have bound themselves to live, until death, or an Act of Parliament them ‘do
part’; why shall it not also be said, that they have bound themselves to live to-
gether on such terms, and, with such mutual personal rights and duties as the
‘English law recognizes and enforces? ‘Those rights and duties are just as much
of the essence as dissolubility or indissolubility ; and yet all admit, all must admit,
that persons married in England and settled in Scotland will be entitled only to
the personal rights, which the Scotch law sanctions, and will only be liable to
§ 227.] FOREIGN DIVORCES. 273

celebration shall prevail, not only as to its original validity, but
also as to its mode of dissolution, some other interesting ques-

perform the duties which the Scotch law imposes. Indeed, if we are to regard
the nature of the contract in this respect as defined by the lex loci, it is difficult
to see why we may not import from Turkey into England a marriage of such 4
nature, as that it is capable of being followed by and subsisting with another,
polygamy being there of the essence of the contract. The fallacy of the argu-
ment, ‘that indissolubility is of the essence,’ appears plainly to be this; it con-
founds incidents with essence; it makes the rights under a contract, or flowing
from and arising out of it, parcel of the contract; it makes the mode in which
judicatures deal with those rights, and with the contract itself, part of the con-
tract; instead of considering, as in all soundness of principle we ought, that the
contract and all its incidents, and the rights of the parties to it, and the wrongs
committed by them respecting it, must be dealt with by the courts of the country
where the parties reside, and where the contract is to be carried into execution.
But at all events this is clear, and it seems to be decisive of the point, that if on
some such ground as this a marriage indissoluble by the lex loci is held to be in-
dissoluble everywhere, so conversely, a marriage dissoluble by the lex loci must
be held everywhere dissoluble. The one proposition is in truth identical with
the other. Now, it would follow from hence, or rather it is the same proposition,
that a marriage contracted in Scotland, where it is dissoluble by reason of adul-
tery, or of non-adherence, is dissoluble in England, and that at the suit of either
party. Therefore, a wife married in Scotland might sue her husband in our
courts for adultery, or for absenting himself four years, and ought to’ obtain 4
divorce a vinculo matrimonii. Nay, if the marriage had been solemnized in
Prussia, either party might obtain a divorce on the ground of incompatibility of
temper; and if it had been solemnized in France during the earlier period of the
Revolution, the mere consent of the parties ought to suffice for dissolving it here.
Indeed, another consequence would follow from this doctrine of confounding with
the nature of the contract that, which is only a matter touching the jurisdiction
of the courts, and their power of dealing with the rights and duties to it. If there
were a country, in which marriage could be dissolved without any judicial pro-
ceeding at. all, merely by the parties agreeing in pais to separate, every other
country ought to sanction a separation had in pais there, and uphold a second
marriage contracted after such separation. It may safely be asserted, that so
absard a proposition never could for a moment be entertained ; and yet it is not
like, but identical with the proposition tpon which the main body of the appel-
lant’s argument rests, that the question of indissoluble or dissoluble must be’ de-
cided in all cases by the lex loci. Hitherto we have been considering the contract
as to its nature and solemuities, and examining how far, being English, and
eutered into with reference only to England, it could be dissolved by a Scotch
sentence of divorce. But the circumstances of parties belonging to one country
marrying in another (which is the case at bar) presents the question in another
light. In personal contracts much depends upon the parties having regard to the
country, where it is to be acted under, and to réceive its execution, — upon their
making the contract, with a view to its execution in that country. The marriagé
contract is emphatically one, which parties make with an immediate view to the
274 CONFLICT OF LAWS. [ou. vn.

tions will still remain for decision. In the first place, will any
foreign court have a right to entertain jurisdiction to decree a

usual place of their residence An Englishman marrying in Turkey contracts ‘a
marriage of an English kind, that is, excluding plurality of wives, because he
is an Englishman, and only residing in Turkey and under the Mahometan law
_accidentally and temporarily, and because he marries with a view of being a
married man and having a wife in England, and for English purposes; conse-
quently the incidents and effects, nay, the very nature and essence (to use
the language of the appellant’s argument) must be ascertained by the Eng-
lish, and not by the Turkish law. So of an Englishman marrying in Prussia,
where incompatible temper, that is, disagreement, may dissolve the contract.
As he marries with a view to English domicil, his contract will be judged by
English law, and he cannot apply for a divorce here upon the ground of incom-
patible tempers. In like manner a domiciled Scotchman may be said to con-
tract not an English, but a Scotch marriage, though the consent wherein it
consists may be testified by English solemnities. The Scotch parties looking
to residence and rights in Scotland, may be held to regard the nature and inci-
dents and consequences of the contract, according to the law of that country,
their home; a connection formed for cohabitation, for mutual comfort, protection,
and endearment, appears to be a contract having a most peculiar reference to
the contemplated residence of the wedded pair; the home, where they are to
fulfil their mutual promises, and perform those duties which were the objects of
the union ; in a word, their-domicil; the place so beautifully described by the
civilian : — ‘ Locus, ubi quisque larem suum posuit sedemque fortunarum suarum,
unde cum proficiscitur peregrinare videtur quo cum revertitur redire domuni.’
It certainly may well be urged, both with a view to the general question of lex
loci, and especially in answering the argument of the alleged essential quality of
indissolubility, that the parties to a contract like this must be held emphatically
to enter into it with a reference.to their own domicil and its laws; that the con-
tract assumes, as it were, a local aspect, but that, at any rate, if we infer the na-
ture of any mutual obligation from the presumed intentions of the parties, and if
we presume those intentions from supposing, that the parties had a particular sys-
tem of laws in their eye, (the only foundation of the argument for the appellant,)
there is fully more reason to suppose they had the law of their own home in their
view, where they purposed to live, than the law of the stranger under which
they happened for the moment to be. Suppose we take now another, but a very
obvious and intelligible view of the subject, and regard the divorce not as a rem-
edy, given to the injured party by freeing him from the chain that binds him toa
guilty partner, but as a punishment inflicted upon crime, for the purpose of pre-
venting its repetition, and thus keeping public morals pure. The language of the
Scotch acts plainly countenances this view of the matter, and we may observe
how strongly it bears upon the present question. No one can doubt, that every
state has the right to visit offences with such penalties as to its legislative wisdom
shall seem meet. At one time adultery was punishable capitally in England ; it
is so in certain cases still by the letter of the Scotch law. Whoever committed
it must have suffered that punishment, had the law been enforced, and without
regard to the marriage, of which he had violated the duties, having been con-
§ 227.] FOREIGN DIVORCES. 275

divorce for causes justified by the law of the matrimonial domicil ?
Will the like right exist where no divorce is grantable by the lex

tracted abroad. Indeed, in executing such statutes, no one ever heard of a ques-
tion being raised as to where the contract had been made. Suppose, again, that
the proposition frequently made in modern times were adopted, and adultery
were declared to be a misdemeanor, could any one, tried for it either here or in
Scotland, set up in his defence, that to the law of the country where he was mar-
ried, there was no such offence known? In like manner if a disruption of the
marriage tie is the punishment denounced against the adulterer for disregarding
its duties, no one can pretend, that the tie being declared indissoluble by the laws
of the country where it was knit, could afford the least defence against the exe-
cution of the law declaring its dissolution to be the penalty of the crime. Who-
ever maintains, that the Scotch courts are to take cognizance of the English law
of indissolubility, when called upon to inflict the penalty of divorce, must likewise
be prepared to hold, that, in punishing any other.offence, the same courts are to
regard the laws of the state where the culprit was born, or where part of the.
transaction passed; that, for example, a forgery being committed on a foreign bill
of exchange, the punishment awarded by the foreign law is to regulate the visita-
tion of the offence under the law of Scotland. It may safely be asserted, that no
instance whatever can be given of the criminal law of any country being made
to bend to that of any other in any part of its administration. When the Roman
citizen carried abroad with him his rights of citizenship, and boasted that he could
plead in all the courts of the world, ‘ Civis Romanus sum, his boast was founded
not on any legal principle, but upon the fact that his barbarian countrymen had.
overrun the world with their arms, reduced all laws to silence, and annihilated
the independence of foreign legislatures. Their orators regarded this very plea
as the badge of universal slavery, which their warriors had fixed upon mankind.
But if any foreigner had come to Rome, and committed a crime punishable with
loss of .civil rights, he would in vain have pleaded in bar of the capitis diminutio,
that citizenship was indelible and indestructible in the country of his birth. The:
lex loci must.needs govern all criminal jurisdiction, from the nature of the thing,
and the purposes of that jurisdiction. How then can we say, that, when the
Scotch law pronounces the dissolution of a marriage to be the punishment of
adultery, the Scotch courts can be justified in importing an exception in favor of
those who had contracted an English marriage; an exception created by the
English law and to the Scotch law unknown? But it may be said, that the of-
fence being committed abroad, and not within the Scotch territory, prevents the
application to it of the Scotch criminal law. To this it may, however, be an-
swered, that where a person has his domicil in a given country, the laws of that.
country to which he. owes allegiance, may visit even criminally offences committed
by, him out of his territory. Of this we have many instances in our own juris-
prudence. Murder and treason committed by Englishmen abroad are triable in
England and punishable here. Nay, by the bill, which I introduced in 1811, and
which is constantly acted upon, British subjects are liable to be convicted of fel-
ony for slave-trading in whatever part of the world committed by them. It.
would no doubt be going far to hold the wife criminally answerable to the law of.
Scotland in respect of her legal domicil being Scotch. But we are here not so
276 CONFLIOT OF LAWS. [cu. vi.

loci for a similar cause in case of a domestic marriage? For in-
stance, could a Consistory Court of England entertain a suit for

much arguing to the merits of this case, which has abundant other ground to rest
upon, as to the general principle ; and at any rate the argument would apply to
the case most frequently mooted, of English married parties living temporarily in
Scotland, and adultery being there committed by one of them. To such a state
of facts the whole argument now adduced is applicable in its full foree; and with-
out admitting that application, 1 do not well see how we can hold, that the Scotch
legislature ever possessed that supreme power, which is absolutely: essential to.the
" very nature and existence of a legislature. If we deny this application, we truly
admit that the Scottish Parliament had no right to punish the offence of adultery.
by the penalty of divorce. Nay, we hold, that English parties had a right to
violate the Scotch criminal law with perfect impunity in one essential particular ;
for, suppose no other penalty had been provided by the Scoteh law, except di-
voree, all English offenders against that law must go unpunished. Nay, worse
still, all Scotch parties, who choose to avoid the punishment, had only to marry
in England, and then the law, the criminal law, of their own country became in-
operative. The gross absurdity of this strikes me as bearing directly upon the
argument, and as greater than that of any consequences, which I remember to
have seen deduced from almost any disputed position. It may further be re-
marked, that this argument applies equally tothe case, if we admit that the
Scotch divorce is invalid out of Scotland, and consequently, that it stands well
with even the principles of Lolley’s case. In order to dispose of the present
question, it is not at all necessary on the one side to support, or on the other to
impeach, the authority of Lolley’s case, or of any other, which may have been
determined in England upon that authority. This ought to be steadily borne in
mind. The resolution in Lolley’s case was, that an English marriage could not
be dissolved by any proceeding in the courts of any other country, for English
purposes ; in other words, that the courts of this country will not recognize the
validity of the Scotch divorce, but will hold the divorced wife dowable of an
English estate, the divorced husband tenant thereof by the courtesy, and either
party guilty of felony by contracting a second marriage in England. Upon the
force and effect of such a divorce in Scotland, and for Scotch purposes, the judges
gave, and indeed could give no opinion; and as there would be nothing legally
impossible in a marriage being good in one country, which was prohibited by the
law of another ; so, if the conflict of the Scotch and English law be complete and
irreconcilable, there is nothing legally impossible in a divorce being valid in the
one country, which the courts of the other may hold to be a nullity. Lolley’s.
case, therefore, cannot be held to decide the present, perhaps not even to affect
it in principle. In another point of view it is inapplicable ; for, though the decis-
ion was not put upon any special circumstance, yet in fairly considering its ap-
plication, we cannot lay out of view, that the parties were not only married, but
really domiciled, in England, and had resorted to Scotland for the manifest pur-
pose of obtaining a temporary and fictitious domicil there, in order to give the
Scotch courts jurisdiction over them, and enable them to dissolve their marriage;
whereas, here, the domicil of the parties is Scotch, and the proceeding is bona
fide taken’ by the husband in the courts of his own country, to which he is amen-
§ 227.] FOREIGN DIVORCES. 277

a divorce a vinculo for the cause of adultery in case of a Scottish
marriage? Or in such cases is the remedy to be exclusively pur-

able, and ought to have free access, and no fraud upon the law of any other
country is practised by the suit. It must be added, that, in Lolley’s case, the
English marriage had been contracted by English parties, without any view to
the execution of the contract at any time in Scotland; whereas the marriage
now in question was had by a Scotchman and a woman, whom the contract made
Scotch, and therefore-may be held to-have contemplated an execution and effects
in Scotland. But although for these reasons, the support of my opinion does not
require, that I should dispute the law in Lolley’s case, I should not be dealing
fairly with this important question, if I were to avoid touching upon that subject;
and as no decision of this House has ever adopted that rule, or assumed its princi-
ple for sound, and acted upon it, I am entitled here to express the difficulty which
I feel in acceding to that doctrine, — a difficulty, which much deliberation and
frequent discussion with the greatest lawyers of the age, —I might say both of
this and of the last age, — has not been able to remove from my mind. If no
decision had ever been pronounced in this country, recognizing the validity of
Scotch marriages between English parties going to Scotland with the purpose of
escaping from the authority of the-English law, I should have felt it much easier
to acquiesce in the decision of which I am speaking. For then it might have
been said consistently enough, that whatever may be the Scotch marriage law
among its own subjects, and for the government of Scotch questions, ours is in
an irréconcilable conflict with it, and we cannot permit the positive enactments
of our statute book, and the principles of our common law, to be violated or
eluded by merely crossing a river, or an ideal boundary Jine. Nor could any-
thing have been more obvious, than the consistency of those who, holding that
no unmarried parties, incapable of marrying here, can, in fraud of our law, con-
tract a valid marriage in Scotland, by going there for an hour, should also hold
the cognate doctrine, that no married parties can dissolve an English marriage,
indissoluble here, by repairing thither for six weeks, But upon this firm ground,
the decision of all the English courts have long since prevented us from taking
our stand. They have held, both the Consistorial Judges in Compton v. Bear-
croft, and those of the common law in Ilderton v. Ilderton, the doctrine uni-
formly recognized in all subsequent cases, and acted upon daily by the Eng-
lish people, that a Scotch marriage, contracted by English parties in the face
and in fraud of the English law, is valid to all intents and purposes, and car-
ries all the real and all the personal rights of an English, marriage, affecting
in its consequences, land, and honors, and duties, and privileges, precisely as
it does the most lawful and solemn matrimonial contract, entered into among our-
selves, in our own churches, according to our ritual, and under our own statutes.
It is quite impossible after this to say, that we can draw the line, and hold a for-
eign law, which we acknowledge all-powerful for making the binding contract, to
be utterly impotent to dissolve it. Were the sentence of the Scotch court in a
declarator of marriage to.be given in evidence here, it would be conclusive, that
the parties were man and wife, and no exception could be taken to the. admissi-
bility, or the effect of the foreign evidence, upon the ground of the parties hav-
ing been English, and repaired to Scotland for the purpose of escaping the pro-
CONEL. 24
278 CONFLICT OF LAWS. [cH. va.

sued in the domestic forum of the marriage? Whoever shall
diligently consider these “questions, will not find them without

visions of the English law. A similar sentence of the same court, declaring the
marriage to be dissolved by the same law of Scotland, is now supposed to be given
in evidence between parties, who had married in England. Can it, in any con-
sistency of reason, be objected to the reception, or to the force of this sentence,
that the contract had been made, and the parties had resided here? In what
other contract of a nature merely personal, — in what other transaction between
men, — is sucha rule ever applied, — such an arbitrary and gratuitous distinction
made, — such an exception raised to the universal position, that things are to be
dissolved by the same process, whereby they are bound together ; or rather, that
the tie is to be loosened by reversing the operation which knit it, but reversing
the operation according to the same rules? What gave force to the ligament?
If a contract for sale of a chattel is made, or an obligation of debt is incurred, or
a chattel is pledged in one country, the sale may be annulled, the debt released,
and the pledge redeemed by the law and by the forms of another country, in
which the parties happen to reside, and in whose courts their rights and obliga-
tions come in question, unless there was an express stipulation in the contract it-
self against such voidance, release, or redemption. But at any rate this is certain,
that if the laws of one country and its courts recognize and give effect to those of
another, in respect, of the constitution of any contract, they must give the like
recognition and effect to those same foreign ‘laws, when they declare the same
kind of contract dissolved. Suppose a party forbidden to purchase from another
by our equity, as administered in the courts of this country (and we have some
restraints upon certain parties, which come very near prohibition ;) and suppose
a sale of chattels by one to another party, standing in this relation towards each
other, should be effected in Scotland, and that our courts here should (whether
right or wrong) recognize such a rule, because the Scotch law would affirm it, —
surely it would follow, that our courts must equally recognize a rescission of the
contract of sale in Scotland by any act which the Scotch law regards as valid to
rescind it, although our own law may not regard it as sufficient. Suppose a ques-
tion to arise in the courts of England, respecting the execution of a contract, thus
made in this country, and that the objection of its invalidity were waived for some
reason : if the party resisting its execution were to produce either a sentence of a
Scotch court, declaring it rescinded by a Scotch matter done in pais, or were
merely to produce evidence of the thing so done, and proof of its amounting by
the Scotch law to a rescission of the contract, — I apprehend, that the party, re-
lying on the contract, could never be heard to say, ‘the contract is English, and
the Scotch proceeding is impotent to dissolve it.’ The reply would be, ‘ Our
English courts have (whether right or wr ong) recognized the validity of a Scotch
proceeding to complete the dbtization, and can no longer deny the validity of a
similar but reverse proceeding to dissolve it, — unumquodque dissolvitur eodem
modo, quo colligatur.’ Suppose, for another example, (which is the case,) that
the law of this country precluded an infant, or a married woman, from borrowing
money in any way, or from binding themselves by deed; and that in another coun-
try those obligations could be validly incurred ; it is probable, that our law and
our courts would recognize the validity of such foreign obligations. But suppose
§ 227.) FOREIGN DIVORCES. 279

serious embarrassment. They are incidentally treated in the Scot-
tish decisions already alluded to; and the reasoning on each side

a feme.covert had executed a power, and conveyed an interest under it to anoth-
er feme covert in England, could it be endured, that, where the donee of the
power produced a release under seal from the feme covert in the same foreign
country, a distinction should be taken, and the court here should hold that party
incapable of releasing the obligation ? Would it not be said, that our courts, hav-
ing decided the contract of a feme covert to be binding, when executed abroad,
must, by parity of reason, hold the discharge or release of the feme covert to be
valid, if it be valid in the same foreign country ? Nor can any attempt succeed,
in this argument, which rests upon distinctions taken between marriage and other
contracts, on the ground, that its effects govern the enjoyment of real rights in
England, and that the English law alone can regulate the rights of landed prop-
erty. For, not to mention, that a Scotch marriage between English parties gives
English honors and estates to its issue, which would have been bastard, had the
parties married, or pretended to marry, in England ; all personal obligations may
in their consequences affect real rights in England. Nor does a Scotch divorce,
by depriving a widow of dower, or arrears of pin-money, charged on English
property, more immediately affect real estate here, than a bond, or a judgment
released in Scotland according to Scotch forms, discharges real estate of a lien,
or than a bond executed, or indeed arsimple contract debt incurred in Scotland,
eventually and consequentially charges English real estate. It appears to me
quite certain, that those who decided Lolley’s case, did not look sufficiently to the
difficulty of following out the principle of the rule which they laid down. ’ At
first sight, on a cursory survey of the question, there seems no impediment in the
way of a judge, who would keep the English marriage contract indissoluble in
Scotland, and yet allow a Scotch marriage to have validity in England; for it
does not immediately appear, how the dissolution and the constitution of the con-
tract should come in conflict, though diametrically opposite principles are applied
to each. But only mark, how that conflict arises, and how, in fact and in prac-
tice, it must needs arise as long as the diversity of the rules applied is maintained.
When English parties are divorced in Scotland, it seems easy to say, ‘ We give
no validity to this proceeding in England, leaving the Scotch law to deal with it
in that country ; and with its awards we do not in anywise interfere.’ But the
time speedily arrives, when we can no longer refuse to interfere, and then see
the inextricable confusion that instantly arises and involves the whole subject.
The English parties are divorced, — they return to England, and one of- them
marries again ; that party is met by’Lolley’s case, and treated as a felon. So far
all is smooth. But what if tle second marriage is contracted in Scotland? And
what if the issue of that marriage claims an English real estate by descent, or a
widow demands her dower? Lolley’s case will no longer serve the purpose of
deciding the rights of the parties; for Lolley’s case is confined to the effects of the
Scotch divorce in England, and professes not to touch, as, indeed, they who de-
cided it had no authority to touch, the validity of that divorce in Scotland. Then
the marriage being Scotch, the lex loci must prevail by the cases of Compton v.
Bearcroft, and Ilderton 'y, Ilderton. All its consequences to the wife and issue
must be dealt with by the English courts, and the same judge, who, sitting under
280 CONFLICT OF LAWS. (cH. vu.

is worthy of an exact perusal.! The attempt to ingraft foreign
remedial justice upon domestic institutions has always been found

a commission of gaol delivery, has in the morning sent Mr. Lolley to the hulks for
felony, because he remarried in England, and the divorce was insufficient ; sitting
at Nisi Prius in the afternoon, must give the issue of Mr. Lolley’s second mar-
riage an estate in Yorkshire, because she remarried in Scotland, and must give it
on the precise ground that the divorce was effectual. Thus the divorce is both
valid and nugatory, not according to its own nature, or the law of any one state,
but according to the accident, whether a transaction which follows upon it, and
does not necessarily occur at all, chanced to take place in one part of the island
or in the other; and yet the felony of the husband depended entirely upon his
not having been divorced validly in Scotland, and not at all upon his not being
divorced validly in England; and the title of the wife’s issue to the succession, or
of herself to dower, depetids wholly upon the same husband having been validly
divorced in that same country of Scotland. Nor will it avail to contend, that the
parties marrying in Scotland after a Scotch divorce is in fraud of the English
rule, as laid down in that celebrated case. It may be so; but it is not more in
fraudum legis Anglicanz, than the marriage was in Compton v. Bearcroft, which
yet has been held good in all our courts. Neither will it avail to argue, that the
indissoluble nature of the English marriage prevents those parties from marrying
again in Scotland, as well as in England; for the rule in Lolley’s case has no
greater force in disqualifying parties from marrying in Scotland, where that is
not the rule of law, than the English Marriage Act has in disqualifying infants
from marrying without banns published; and yet these may, by the law of Eng-
land, go and marry validly in Scotland. Indeed, if there be any purely personal
disqualification or incapacity caused by the law, and which, more than any other,
may be said to travel about with the party, it is that, which the law raises upon a
natural status, as that of infancy, and fixes on those, who by the order of nature
itself, are in that condition, and unable to shake it off, or by an hour to acceler-
ate its termination. If, in a manner confessedly not clear, and very far from be-
ing unincumbered with doubt and difficulty, we find that manifest and serious
inconvenience is sure to result from one view, and very little in comparison from
adopting the opposite course, nothing can be a stronger reason for taking the lat-
ter. Now surely it strikes every one, that the greatest hardships must occur to
parties, the greatest embarrassment to their rights, and the utmost inconvenience
to the courts of justice in both countries, by the rule being maintained as laid
down in Lolley’s case. The greatest hardship to parties, — for what can be a
greater grievance, than that parties living bona fide in England, though tempo-
rarily, should either not be allowed to marry at all during their residence here,
or if they do, and afterwards return to their own country, however great its dis-
tance, that they must be deprived of all remedy in case of misconduct, however
aggravated, unless they undertake a voyage back to England, ay, and unless they
can comply with the Parliamentary forms in serving notices ; — the greatest em-
barrassment to their rights, — for what can be more embarrassing than that a per-
son’s status should be involved in uncertainty, and should be subject to change its

* See Fergusson on Marriage and Divorce, Appx. 388 to 422.
§ 227.] FOREIGN DIVORCES. ° 981

extremely difficult ; and as we shall hereafter see, has led to the
conclusion, that the safest and best rule is to give remedies only

nature, as he goes from place to place ; that he should be married in one country,
and single, if not a felon, in another; bastard here, and legitimate there ? — the
utmost inconvenience to the courts,— for what inconvenience can be greater, than
that they should have to regard a person as married for one purpose and not for
another, — single and a felon, if he marries a few yards to the southward, — law-
fully married, if the ceremony be performed a few yards to the north, — a bastard,
‘when he claims land, — legitimate when he sues for personal suecession, — widow,
when she demands the chattels of her husband, — his concubine, when she counts
as dowable of his land? It is in vain to remind us of the opportunity, which a
strict adherence to the lex loci, with respect to dissolution of the contract, would
give to violators of our English marriage-law. This objection comes too late.
Before the validity of Scotch marriages had been supported by decisions too nu!
merous and too old for any question, this argument ab inconvenienti might have
been urged and set against those other reasons, which I have adduced, drawn
from the same consideration. But we have it now firmly established, as the law
of the land, and daily acted upon by persons of every condition, that, though the
law of England ineapacitates parties from contracting marriage here, they may
go for afew minutes to the Scotch border, and be married as effectually as
if they had no incapacity whatever in their own country, and then return, after
eluding the law, to set its prohibitions at defiance, without incurring any penalty,
and to obtain its aid, without any difficulty, in securing the enjoyment of all the
rights incident to the married state. Surely there is neither sense nor consis-
tency in complaining of the.risk, infraction, or evasion arising to the English law
from supporting Scotch divorces, after having thus given to the Scotch marriages
the power of eluding, and breaking, and defying that law for so many years. I
have now been commenting upon Lolley’s case on its own principle, — that is, re-
garding it as merely laying down a rule for England, and prescribing how a Scotch
divorce shall be considered in this country, and dealt with by its courts. I have
felt this the more necessary, because I do not see, for the reasons which have oc-
ionally been adverted to in treating the other ar; gument, how, consistently with
* principle, the judges, who decided the case, could limit its application to Eng-
land, and think that it did not decide also on the validity of the divorce in
Scotland. They certainly could not hold the second English marriage invalid
and felonious in England, without assuming, that the Scotch divorce was void
even in Scotland. In my view of the present question, therefore, it was fit to
show, that the Scotch courts have a good title to consider the principle of Lolley’s
case erroneous even as an English decision. This, it is true, their Lordships have
not done; and the judgment now under appeal is rested upon the ground of the
Scotch divorce being sufficient to determine the marriage contract in Scotland
only. I must now observe, that, supposing (as may fairly be concluded) Lolley’s
case to have decided, that the divorce is void in Scotland, there can be no ground
whatever for holding, that it is binding upon the Scotch courts on a question of
Scotch law. If the cases and the authorities of that law are against it, the learned
persons who administer the system of jurisprudence, are not bound to regard —
nay, they are not entitled to regard — an English decision, framed by English
24 *
282 CONFLICT OF LAWS. [cH. vn.

to the extent, and in the manner, which the lex loci justifies and
approves.!

§ 228. In America, questions respecting the nature and effect of
foreign divorces upon domestic marriages, and vice versd, have, as
might be expected, not unfrequently been under discussion in our
courts. In Massachusetts, in some early cases, the Supreme Court
refused to interfere, and grant a divorce, where the parties lived in
another State at the time the adultery was charged to have been’
committed, and the libellant had since that time removed into the
State. These decisions seem mainly to have proceeded upon the
construction of the local statutes, which conferred jurisdiction upon
the court in matters of divorce ; but,it was admitted, that the State
to which the parties belonged had jurisdiction, and could exercise
it if it appeared expedient.? In a later case, where a marriage,
celebrated in Massachusetts, had been dissolved in Vermont, upon
a suit by the husband for a divorce, for the cause of extreme cruel-
ty of his wife, (a cause inadmissible by the laws of Massachusetts
to dissolve a marriage,) it appearing, that the parties had not at
the time any permanent domicil in Vermont, but that the husband
had gone there for the purpose of obtaining a divorce, the divorce
was held a mere nullity, upon the ground, that there was no real
change of domicil. “If” (said the court) “ we were to give effect
to this decree, we should permit another State to govern our citi-
zens in direct contravention of our own statutes; and this can be
required by no rule of comity.” 8

judges upon an English case, and devoid of all authority beyond the Tweed.
Now, I have no doubt at all, that the Scotch authorities are in favor of the juris-
diction, and support the decision under appeal. But I must premise that, unless
it could be shown that they were the other way, my mind is made up with respect
to the principle, that I should be for affirming on that ground of principle alone,
if precedent or dicta did not displace the argument. The principle I hold so
clear upon grounds of general law, that the proof is thrown, according to my view,
upon those who would show the Scotch law to be the other way.” I have given
his Lordship’s reasoning at large, because it seemed difficult to admit particular
passages, which have been already cited, or will be cited hereafter in other con-
nections, without impairing its true force. Ante, $115; post, § 259 b. ‘

* See in English Law Magazine, Vol. 6, p. 32, a review of the English law as
to Divorces. See on this very point the judgment of Lord Brougham in Warren-
der v. Warrender, 9 Bligh, R. 115 to 118, cited ante, § 226 c, note.

? Hopkins v. Hopkins, 3 Mass. R. 158; Carter v. Carter, 6 Mass. R. 268.

* Inhabitants of Hanover v. Turner, 14 Mass. R. 227, 231. See also Barber v.
Root, 10 Mass. R. 265, 266 i Lyon v. Lyon, 2 Gray, 369.
§ 227 - 229.] FOREIGN DIVORCES. 283

§ 229. In another case, the general question came before the
court, whether a marriage, celebrated in Massachusetts, could be
dissolved by a decree of divorce of the proper State Court of Ver-
mont, both parties being at the time bond fide domiciled in that
State, and the cause of divorce being such as would not authorize
a divorce a vinculo in Massachusetts. The court decided in the
affirmative, upon the ground, that the law of the actual domicil
must regulate the right. The reasoning of the court was to the
following effect. “Regulations on the subject of marriage and
divorce are rather parts of the criminal than of the civil code; and
apply not so much to the contract between the individuals as to the
personal relations resulting from it, and to the relative duties of
the parties, to their standing and conduct in the society of which
they are members; and these are regulated with a principal view
‘to the public order and economy, the promotion of good morals,
and the happiness of the community. A divorce, for example, in
a case of public scandal and reproach, is not a vindication of the
contract of marriage, or a remedy to enforce it; but a species of
punishment which the public have placed in the hands of the in-
jured party to inflict, under the ‘sanction, and with the aid of the
competent tribunal ; operating as a redress of the injury, when the
contract having been violated, the relation of the parties, and their
continuange in the marriage state, have become intolerable or vex-
atious to them, and of evil example to others. The lex loci, there-
fore, by which the conduct of married persons is to be regulated,
and their relative duties are’ to be determined, and by which the
relation itself is to be in certain cases annulled, must be always re-
ferred, not to the place where the contract was entered into, but
where it subsists for the time, where the parties have had their

‘ domicil, and have been protected*in the rights resulting from the
marriage contract, and, especially where the parties are or have
been amenable for any violation of the duties incumbent upon them
in that relation.’’ 4

1 Barber'v. Root, 10 Mass. R. 265.— By the Revised Statutes of Massachu-
setts, 1835, ch. 76, § 9, 10, 11, it is declared, that no divorce shall be decreed for any
cause, if the parties haye'never lived together as ‘husband and wife in this State.
‘No divorce shall be decreed for any cause which shall have occurred in any other
State or country, unless the parties had, before such cause occurred, been living
together as husband and wife in this State. No divorce shall be decreed for any

cause which shall have occurred in any other State or country, unless one of the
parties was then living in this State. It is‘also by another section (§ 39) of the
284 CONFLICT OF LAWS. [cH.. VIL.

§ 299 a. In another case the question, as to the jurisdiction to
found a suit for a divorce, also arose, and it was held, that ordi-
narily such a suit cannot be entertained, unless the parties are bond
fide domiciled in the State, in which the suit is brought ; and that
for this purpose the domicil of the husband must be treated as the
domicil of his wife. Hence, if a husband should bond fide remove
from Massachusetts to another State with his wife, and there a good
cause for a divorce by law should occur, a suit could not be main-
tained therefor in the courts of Massachusetts.’ But the court
thought, that cases might arise, in which the change of domicil of
the husband might not deprive the wife of her right to sue fora
divorce in the State, where they originally lived together.?

same chapter provided, that when an inhabitant of this State shall go into any

. other State or country, in order to obtain a divorce for any cause, which had oc-
curred here, and whilst the parties resided here, or for any cause .which would
not authorize a divorce by the laws of this State, a divorce so obtained shall be of
no force or effect in this State. Lyon v. Lyon, 2 Gray, 369. [By a recent stat-
ute in that State, divorces may be granted for causes occurring out of the State,
if the libellant has resided five years in the State previous to filing the libel.
Stat. 1843, c. 47.]

1 Harteau v. Harteau, 14 Pick. R. 181; See Lyon v. Lyon, 2 Gray, 369.

* Ibid. On this occasion Mr. Chief Justice Shaw, in delivering the opinion
of the court, said: “ Much obscurity has, we think, been thrown on the sub-
ject, by confounding the two questions, which are essentially different,, namely,
1. In what cases a party is entitled to claim a divorce; and 2. In what county
the libel should be brought. As it is a right conferred by statute, the one
question may sometimes depend on the other; for if by the terms of the
statute no suit can be instituted, it is very clear, that no divorce can be had.
But I think there may be cases, where the statute confers a right to have a
divorce, in which the statute gives a general jurisdiction to this court, and yet
where the parties do not live, that is, have their domicil, either at the time of
the act done, or at the time of the suit commenced, in any county in this Com-
monwealth. If so, there are cases, where the statute cannot be literally com-'
plied with, and must be construed cy pres according to the intent. Suppose
a husband commits adultery, and then purchases a house and actually takes up
his domicil in another State, but before his wife has joined him, she is apprised
of the fact, and immediately files a libel for a divorce, and obtains an order to
protect her from the power of her husband, as by law she may. He is an in-
habitant of another State, and can in no sense be said to live in any county in
this State. And yet it would be difficult to say, that she is not entitled to have
a divorce here. Supposing, instead of the last case, he has actually purchased a
house and changed his domicil to another State, and there commits adultery, and
the wife not having joined him, and not having left her residence in this State,
becomes acquainted with the fact, and libels and obtains a similar order, could
she not maintain it? Yet, in the latter case, at the time of the act done, and in
§ 229 a - 280.] FOREIGN DIVORCES. 285

§ 230. In New York, as far as decisions have gone, they coin-
cide with those of Massachusetts. Thus, in a case, where the mar-

the other, at the time of the suit instituted, the respondent, one of the parties,
certainly did not live in any county of this Commonwealth. This suggests an-
other course of inquiry, that is, how far the maxim is applicable to this case, ‘ that
the domicil of this wife follows that of the husband.’ Can this maxim be true in its
application to this subject, where the wife claims to act, and by law, to a certain
, extent and in certain cases, is allowed to act, adversely to her husband? It
would oust the court of its jurisdiction, in all cases, where the husbarid should
change his domicil to another State, before the suit is instituted. It is in the
power of the husband to change and fix his domicil at his will. If the maxim
could apply, a man might go from this county to Providence, take a house, live
in open adultery, abandoning his wife atogether, and yet she could not libel for
a divorce in this State, where, till such change of domicil, they had always lived.
He clearly lives in Rhode Island; her domicil, according to the maxim, follows
his; she therefore, in contemplation of law, is domiciled there too; so that neither
of the parties can be said to live in this Commonwealth. It is probably a just
view, to consider, that the maxim is founded upon a theoretic identity of person,
and of interest between husband and wife, as established by law, and the pre-
sumption, that from the nature of that relation, the home of the one is that of the
other, and intended to promote, strengthen, and secure their interests in this re-
lation, as it ordinarily exists, where union and harmony prevail. But the law
will recognize a wife, as having a separate existence, and separate interests, and
separate rights, in those cases, where the express object of all proceedings is to
show that the relation itself ought to be dissolved, or so modified as to establish
separate interests, and especially a separate domicil and home, bed and board
being put, a part for the whole, as expressive of the idea of home. Otherwise,
the parties in this respect would stand upon very unequal grounds, it being in
the power of the husband to change his domicil at will, but not in that of the
wife. The husband might deprive the wife of the means of enforcing her rights,
and in effect of the rights themselves, and of the protection of the laws of the
Commonwealth, at the same time, that his own misconduct gives her a right to
be rescued from his power on account of. bis own misconduct towards her. Dean
v. Richmond, 5 Pick. 461; Barber v. Root, 10 Mass. R. 260. The place, where
the marriage was had, seems to. be of no importance. The law looks at the re-
lation of husband and wife, as it subsists and is regulated by our laws, without
considering under what law or in what country the marriage was contracted.
The good-sense of the thing seems to be, if the statute will permit us to reach it,
that where parties have boné fide taken up a domicil in this Commonwealth, and
have resided under the ‘protection and subject to the control of our laws, and
during the continuance of such domicil, one does an act, which may entitle the
other to a divorce, such divorce shall be granted, and the suit for it entertained,
although the fact was done out of the jurisdiction, and whether the act be a
crime, which would subject a party to punishment or not; that after such right
has accrued, it cannot be defeated, either by the aetzial absence of the other
party, however long continued animo revertendi, or by a colorable change of
domicil, or even by an actual change of domicil ; and that it shall not be con-
286 CONFLICT OF LAWS. [cH. vn.

riage was in that State, and afterwards the wife went to Vermont,
and instituted a suit for divorce there, for a cause not recognized
by the laws of New York, against her husband, who remained dom-
iciled in New York, the Supreme Court of the latter State refused
to carry the decrée into effect in regard to alimony, notwithstand-
ing the husband had appeared in the cause,’ upon the ground, that
there being no bond fide change of the domicil of the parties, it was
an attempt fraudulently to evade the force and operation of the
laws of New York.2. The court, however, abstained from declar-
ing, what was the legal effect of the divorce so obtained. In an-
other case, where the marriage was in Connecticut, and the hus-
band afterwards went to Vermont, and instituted a suit there for
a divorce against his wife, who never resided there, and never ap-
peared in the suit, it was held, that the decree of divorce, obtained
in Vermont, was invalid, being in fraudem legis of the State, where
the parties were married, and had their domicil. It was further
held, that the courts of Vermont could not possess a proper juris-
diction over the case, both parties not being within the State, and

sidered in law, that the change of domicil of the husband draws after it the
-domicil of the wife to another State, so as to oust the courts of this State of their
jurisdiction, and deprive the injured wife of the protection of the laws of this
Commonwealth and of her right to a divorce. But where the parties have boné
.fide renounced their domicil in this State, though married here, and taken up a
domicil in another State, and there live as man and wife, and an act is done by
one, which, if done in this State, would entitle the other to a divorce, and one
of the parties comes into this State, the courts of this Commonwealth have not
such jurisdiction of the parties, and of their relation as husband and wife, as to
warrant them in saying, that the marriage should be dissolved. The case of
Barber v. Root, is an authority for saying, that such a divorce would not be valid
in New York. It is of importance, that such a question should be regulated, if
possible, not by local law, or local usage, under which the marriage relation
should be deemed subsisting in one State and ‘dissolved in another; but upon
some general principle, which can be recognized in all States and countries, so
that parties who are deemed husband and wife in one, shall be held so in all. So
many interesting relations, so many collateral and deprivative rights of property,
and of inheritance, so many correlative duties depend upon the subsistence of
this relation, that it is scarcely possible to overrate the importance of placing it
upon some general and uniform principle, which shall be recognized and adopted
in all civilized States.”

' This does not appear in the statement of facts; but it is averred by counsel,

to appear upon the exemplification of the record of the decree of Vermont. 1
Johns. R. 431. ‘

* Jackson v. Jackson, 1 Johns. R. 424.
§ 230, 230 a.] FOREIGN DIVORCES. 287

the wife not having had any personal notice of the suit.) What
would be the effect of a marriage in Connecticut, a subsequent
bond fide change of domicil to New York, and then a divorce in
Connecticut, both parties appearing in the suit, remains as yet un-
decided.

§ 230 a. Upon the whole, the doctrine now firmly established in
America upon the subject of divorce is, that the law of the place of
the actual bond fide domicil of the parties gives jurisdiction to the
proper courts to decree a divorce for any cause, allowed by the
local law without any reference to the law of the place of the ori-
ginal marriage, or the place, where the offence, for which the di-
vorce is allowed, was committed.2 Perhaps the doctrine cannot be
stated, with more clearness, than in the reasoning of Mr. Chief
Justice Gibson, in a recent case. ‘The law of the place” (says he)
“is necessarily the law of the marriage, for its primitive obli8ation ;
but, except on the principle of perpetual submission to its suprem-
acy in all things, it is not the law of the contract for the determi-
nation of its dissolubility. Is, then, a rule thus founded, adapted
to the jurisprudence of a country, whose law of allegiance is differ-
ent, and whose asserted right of affiliation in respect to those whom
it admits on that ground to its civil and political privileges, divorce
among the rest, concedes the same right to every other country ?
Framed on the basis of this law, the contract implies no perpetuity
of municipal regulation. While the parties remain subject to our
jurisdiction, the marriage is dissoluble only by our law ; when they
are remitted to another, it is incidentally remitted along with them.
And that consequence must ensue, as well when they are remitted
to a jurisdiction entirely foreign, as when they are remitted to that
of asister State ; for whatever ultra-territorial force a sentence of
divorce, by a court of competent jurisdiction, may have been
thought to-gain from the constitutional precept, that the judgment
of a State court is to receive the same faith and credit in every

‘other State as in its own, nothing in the Federal constitution or
laws has been thought to touch the question of jurisdiction ; and
the members of the Union, therefore, stand towards each other in

1 Borden v. Fitch, 15 Johns, R. 121. See 2 Kent, Comm. Lect. 27, p. 108 to
p- 118, 8d edit. See also Bradshaw v. Heath, 13 Wend. R. 407.

* Pawling v. Bird’s Ex’ors, 13 Johns. R. 192, 208, 209; Harding ». Alden, 9
Greenl. (Bennet’s edit.), 140; Pomeroy v. Wells, 8 Eaige, 406; Fellows v. Fel-
lows, 8 New Hamp. R. 160; Tolen v. Tolen, 2 Blackf. 407.
288 CONFLICT OF LAWS. [cH. vu.

relation to it as strangers. With what consistency, then, would
naturalized citizens be allowed our law of divorce, if the validity
of a divorce by the law of the domicil in a sister State were dis-
allowed, because the marriage had not the same origin? Transfer
of allegiance and domicil is a contingency which enters into the
views of the parties, and of which the wife consents to bear the
risk. By sanctioning this transfer beforehand, we consent to part
with the municipal governance incident to it; but with this limi-
tation we part not with the remedy of past transgression.” ?

[* § 230 5. There is no question of more vital interest to inde-
pendent states nearly conterminous to each other, than that of the
effect of foreign divorces. We think the obvious reason and jus-
tice of the rule that allows the courts of the country where both
the parties are domiciled to adjudicate in regard to the validity,
continuance, or dissolution of the married relation, must finally
induce almost all Christian states to yield their acquiescence in it.
But this rule must receive this qualification, that it be not extended
beyond transactions occurring while the parties had a fixed and
permanent domicil within that forum. This principle is virtually,
although not formally, recognized by the English court of last
resort in Warrender v. Warrender.? For although it has been
claimed as the rule of the Scottish courts, and the courts of some
of the American States have acted upon statutes conferring juris-
diction, to grant divorces for causes accruing without the jurisdic-
tion, there is no general principle of universal law, which could
fairly be claimed to justify such a practice. And the judges in
Scotland have entereda most vehement protest against any such
construction of their law, the tendency of which was to make that
country the arena for a most discreditable traffic in divorces, for
causes accruing throughout all those states and countries where
the facilities for such divorces were more restricted? *

§ 230 c. It would seem that no argument could be requisite to
convince every one of the unreasonableness of such a construction.
The causes of divorce allowed in any country are an offence against
the peace and the policy of the state where committed, and to be
estimated by the laws of that state only. It would be an intoler-
able perversion, that an act, which by the law of the state where

* Dorsey v. Dorsey, 7 Watts, 349; S.C. 1 Chand. Law Reporter, 287, 289.
- See Maguire v. Maguire, 7 Dana, R. 181.

* 9 Bligh, 127, - 2 Ante, § 206.
§ 230 a — 280 e.] FOREIGN DIVORCES. 289

committed was no cause of divorce, should, by the removal of the
parties to another state where the law was different, become suffi-
cient to produce a dissolution of the married relation. Upon that
principle, incompatibility of temper, or slight irregularities of con-
duct, of which the municipal law takes no cognizance in the place
where they occur, would, by the transfer of the domicil of the parties
to a place where greater relaxation of the marriage tie obtains, as,
to some of the American, or European continental states, become
just cause of divorce a vineulo ; or, what is the same thing in prin-
ciple, by a change of the law of the state, where the parties are all
along domiciled, that, which was innocent at the time it occurred,
might be made the occasion of the severest penalty and forfeiture,
in the dissolution of a relation the most sacred and the most valu-
able of all earthly bonds.

§ 230 d. But if this were conceded, there is still one further
descent, against which almost all civilized states have hitherto pro-
tested, but which, to the great discredit of the American charac-
ter and name, some of the American States seem disposed to yield ;
that of giving effect to merely ex parte decrees of divorce, granted
upon the petition of one of the parties, domiciled temporarily or
permanently in a State foreign to that where the alleged cause of
the divorce occurred, and where both parties were at the time dom-
iciled, and where the other party still resides, and is domiciled,
unless that domicil can be transferred, in invitum, after the separa-
tion of the parties.1 But we are happy to believe, that this painful
disregard of the most vital principles of international jurisprudence
has not yet been adopted, or countenanced, in those States whose de-
cisions are most regarded as authority, both at home and abroad.?]

§ 230 e. The incidents to a foreign divorce are also naturally to
be deduced from the law of the place, where it is decreed. If
valid there, the divorce will have, and ought in general to have, all

1 Harding v. Alden, 9 Greenl. R. 140; Ditson v. Ditson, 4 Rhode Isl. R. 87;
, Tolen y. Tolen, 2 Blackf. R. 407, and some few others probably.

# Dorsey v. Dorsey, 7 Watts, 349; Lyon v. Lyon, 2 Gray, 367; Borden ».
Fitch, 15 Johns. 121; Vischer v. Viaelor, 12 Barb. 640; McGiffret o. McGiffret,
31 id. 69 ; Maguire v. Maguire, 7 Dana, 181; Irby v. Wilson, 1 Dev. & Batt. Eq.
568, 576; awards v. Greén, 9 Louis, Ann. 317; Hull v. Hull, 2 Strobh, 174;

aseneie, Turner, 14 Mass. 227, 231. See also 3 Gn, Law Reg. N.S. 193, where
we have attempted to show, that an ex parte decree of divorce, where there is a
defect of jurisdiction, both as to the subject-matter and one of the par ties, is abso-
lutely void, both upon principle and authority: ; that it is in fact the same as no

decree.]
CONFL. 25
290 CONFLICT OF LAWS. [cH. vim.

the effects, in every other country, upon personal property locally
situated there, which are properly attributable to it in the forum,
where it is decreed. In respect to real or immovable property, the
same effects would in general be attributed to such divorce, as
would ordinarily belong to a divorce of the same sort by the lex
loci rei site. If a dissolution of the marriage would there be con-
sequent upon such a divorce, and would there extinguish the right
of dower, or of tenancy by the curtesy, according to such local
law, then the like effects would be attributed to the foreign di-
yorce, which worked like a dissolution of the marriage.t

 

CHAPTER VIII.

FOREIGN CONTRACTS.

[*§ 231. The conflict of laws, as to contracts, better settled.

§ 232. The incidents affecting contracts various.

§.233. Some claim that contracts are governed by the law of the place of contract ;
others, by that of performance.

§ 234. This best reconciled by referring the contract to the one or the other law, ac-
cording to the intent of the parties.

§ 235. It often becomes necessary to refer the contract to the law of other places.

§ 236-240. Views of different writers on the continent of Europe.

§ 241, The doctrines of the English common law require chief attention.

§ 242. The law of the place of contract governs, unless to be performed in another
place.

§ 242a. Illustration in regard to the endorsement of bills of exchange.

§ 243. Contracts void by the law of the place of contract, void everywhere.

§ 244, But no nation is bound to enforce a contract against its own settled policy.

§ 245. Contracts, evasive of foreign revenue laws, not voidable on that ground.

§ 246. But those intended to evade domestic laws cannot be enforced.

§ 247. Nor any contract remotely atfected by such consideration. -

§ 248. But this will not extend to transactions entirely new.

§ 249, 250. Nor to those wholly disconnected with illegal contract.

§ 251. Mere knowledge in the vendor of an intended illegal act by the vendee, will
not render sale illegal.

§ 252. Sale of prohibited merchandise at another place.

§ 553. A bad motive can scarce form a good consideration.

§ 254. One who knows the object of a purchase, by sale aids that object.

§ 255. Justice would seem to require the extension of this rule to all cases.

§ 256. Contracts void by law of place where made void everywhere.

§ 257. This will not include contracts against the revenue laws of other states.

? Warrender v. Warrender, 9 Bligh, R. 127; ante, § 226 c, note.
CH. VII] FOREIGN CONTRACTS. 291

§'257a. What acts render a contract void, as in contravention of law.

§ 257). A foreign contract to violate a local statute affords no ground of action.

§ 257¢. The same rule applied to common-law offences.

§ 258. Contracts against morality and decency void everywhere.

§ 258a. But contracts valid where made are generally so held elsewhere.

§ 259. Contracts against state policy are void.

§ 259 a. Acts done in another state may defeat discharge under insolvent laws.

§ 259 &. Incestuous marriages void, even with Papal dispensation. ”

§ 260. Indispensable formalities by lex loci are requisite to the validity of contract
elsewhere.

§ 260a. All formal proceedings must be according to lex loci.

§ 261. This is an unquestionable prerogative of local law.

§ 262. The rule illustrated by reference to stamp acts, &c.

§ 263. The nature, interpretation, and obligation of contracts governed by lex loci.

§ 264. The point illustrated by the case of implied warranty in sales.

§ 265. The acceptance of a bill of exchange governed by law of the place.

§ 266. Obligation of contract governed by lex loci.

§ 266. This extends to marshalling assets in the distribution of estates.

§ 267. The extent of the obligation of foreign contracts further illustrated.

§ 267a. The indemnity of sureties measured by the law of the place.

§ 268. So also the obligation of the heir for his ancestor’s debt.

§ 268 a. Contracts of marriage seem to be an exception.

§ 269. Decree of foreign court, upon mistake of domestic law, not conclusive.

§ 270. Usages of the place of contract form part of it.

§ 271. The meaning of words fixed by the place of contract.

§271a, This rule admits of possible modifications.

§ 272. Obscure words are to be interpreted by surrounding incidents.

§ 272a. The kind of currency of contracts fixed by law of place of payment.

$278. The parties may intend the: contract to be governed by the law of their
domicil.

§ 274, Strangers are bound by the law of the place of contract.

§ 2744, Some writers hold this not of universal obligation.

§ 275. Illustrations under this head.

§ 276. The subject illustrated by marriage settlements.

§ 276 a, An English case bearing upon this point.

§ 277. The decisions of foreign courts establish the law of that place.

§ 278. Exposition of the point by a learned judge.

§ 2784. The law of the place of contract governs unless some other place is clearly
indicated.

§ 279. This rule applies to residents and non-residents.

§ 279. Conditions in contracts to be performed according to ler loci.

§ 280. The law of the place of performance controls the contract.

§ 281. Views of different writers upon the point.

§ 282. Difficulty may arise in regard to which rule shall control.

§ 283. The law of the place of a transaction governs its construction.

§ 284. This rule applies to mutual accounts between merchants.

§ 284. Balance of account, reimbursable where advances made.

§ 284. This is sometimes questioned, upon good grounds.

§ 285. Contracts made by an agent have the locality of place of contract.

§ 286. So contracts made by adoption are subject to same rule.

§ 286 a. Some nice questions have been raised on this point.

§ 286. By what law the authority of a shipmaster is determined.
292 CONFLICT OF LAWS. [cH. va.

§ 286 c. Rule adopted by the Louisiana courts.
§ 286 cc. This rule not approved in all cases.
§ 286d. Nice question raised in. regard to the revocation of letters of attorney by
death.
§ 287. Interest is due on advances according to the law where made.
§ 287. But if repayment is stipulated elsewhere, the place of payment governs.
§ 288. The security given will not draw to it the locality of contract.
§ 289. The locality determined by date of contract.
§ 290. Official bonds of United States officers regarded as made at the capital.
§ 291. Interest due according to place of payment.
§ 292. And will be legal although higher than where contract made.
§ 2924. Civil law writers adopt same view.
§.293. Security given in another place will not affect the rule.
§ 293 a. Contracts to evade the law void everywhere.
§ 293 8, Bond fide contract, good by law of place where made, is good everywhere.
§ 293¢. Decision of Chancellor Walworth questioned.
§ 293 d, 293 e. Civil law writers and foreign jurists upon the point.
§ 294. Parties may contract for the interest either of the place where contract is made
or where it is payable.
§ 295. The law is more uncertain as to implied interest. ‘
§ 296. The settled rule is as stated in § 294, both as to express and implied interest.
§ 297. Interest on remittances may depend upon whom falls the risk of conveyance.
§ 298. Illustration of the rule that the parties may stipulate for the interest of the
place of contract, or of payment.
§ 299. Review of foreign writers upon the point.
§ 299 2-303. Further review of the continental writers upon interest.
§ 304. The result is that the parties may stipulate for interest according to the place
of payment.
§ 304a. This rule adopted by Supreme Court of the United States.
§ 3046. The rules of interest more specifically defined.
§ 305. Interest expressly given by the contract is that of the place of contract.
§ 305 a. But if the contract stipulate the rate it will be referred to that place where
it is legal.
§ 306. This may lead to evasions, and any state may repudiate it.
§ 307. Different parties to same contract bound according to law of place where such
liability assumed. Quere ?
§ 307 a. Every party liable for the same contract is liable to same extent.
§ 307 b. This may be fixed by special law of the place of contract.
§ 307 c. Otherwise the law of place of payment determines it.
§ 308. There had formerly been considerable conflict as to the rale.
§ 309. The rule above stated now generally acquiesced in.
§ 810. This includes the par value and the rate of exchange.
§ 811. Exchange is for remitting the money to place of payment.
§ 31la. This rule is dissented from in some states.
§ 3ll aa, n. 4, Question elaborately discussed, on principle.
§ 312, 813. Legacies paid according to value of money at domicil of testator. ‘
§ 313. Depreciated currency, in equity, should be made good. *
§ 313 6, 313c. But the rule at law seems otherwise.
§ 314, Argument in favor of liability according to law of place of contract.
§ 315, 316. Comparison of this rule with other incidents of the contract.
§{316a. The formalities of an indorsement must be according to the law where made.
§ 817. Indorsements of bills governed by the law of the place of acceptance.
CH, VIL] FOREIGN CONTRACTS. 298

ey
¢

§.318. Stamps and formalities of execution governed by ler loci contractus.

§ 319. An acceptance may refer to place of business of acceptor.

§ 820. But in general it is reckoned of the place where made.

§ 320 a. How far are limited partnerships bound by foreign contracts ?

§ 322, 322a. Some of the effects and incidents of contracts discussed.

§ 322. The rights of sureties and the law of liens governed by place of contract.

§ 322¢, 322d. Some diversity among the foreign writers.

§ 323-325 c. Priority may depend upon the law rei site. ¢

§ 325d. Priority obtained by process governed by the law of the forum.

§ 825 e-3825 g. Movables governed by law of domicil of owner, except as to process.

§ 325 7. But immovables always by lex rei site.

§ 325 9-825 n. The majority of foreign writers agree that priority among creditors as
to movables depends ‘upon the law of the place of domicil, and as to immovables upon
law rei site. i

§ 3250. But as to immovables unquestionably such priorities are governed by the law
ret site. :

§ 325 p-325s. The present established doctrines in regard to giving effect to securi-
ties in favor of particular creditors, where there is a conflict between the laws of the
state where made and where they are attempted to be carried into effect.

§ 326, 327. Foreign laws must always yield to the Jaw of the forum in case of
conflict.

§ 827. Decision in Louisiana illustrating the point.

§ 327 b. The point illustrated with réference to policies of insurance.

§ 328. Lex loci does not apply: 1, where the parties had another place in view ; 2,
where the contract is against good morals ; 3, against public policy.

§.329. Contracts not necessarily payable where made.

§ 330. What defences to contracts admissible on the merits.

§ 331, 331 a. The foreign jurists agree, that a good defenc® by the law of the contract
is good everywhere.

§ 332. The same rule applies in England and America. Illustrations.

§ 333. Acceptances governed by law where made.

§ 334. Exceptions when debt confiscated contrary to law of nations.

.~§ 385. Discharge of contract-by its law good everywhere.

§ 336. All the effects of contracts, where made, not obtainable elsewhere.

§ 337. Priorities in one country not recognized in others.

§ 338. Distinction between absolute and partial discharges.

§ 339. These latter interpose no impediment in other countries.

§. 340. Some states limit general discharges to citizens and residents.

§ 341. Decisions in regard to state insolvent laws not applicable.

§ 341. Comment on the validity of discharges under bankrupt laws.

§.342. Discharges not according to the law of the contract void.

§ 348-347. Negotiable paper, how affected by this rule.

§ 847. Discharge under state insolvent law no bar as to citizens of other states.

§ 3475, Exemptions from attachment and levy extend to non-residents.

§ 348. Any country may make special enactments upon the subject.

§ 349. Discharges by laws of place of contract subject to limitation.

§ 350, 351. Mustsnot be exclusive or unequal.

§ 851 a, 3516. The parties may agree to discharge a contract by the law of another
state.

§351c. Lord Brougham’s illustrations of the point.

§ 351d. This rule applies to contracts affecting real as well as personal estate.

§358. Foreign notes negotiable under statute of Anne.

25*
294 CONFLICT OF LAWS. [cH vii.

§ 353a. Endorsements where not effective to transfer title give no right of action.
§ 354. Negotiability a matter pertaining to the contract.
355, 356. It would seem a tigle good in the place of contract should be good every-

were. ;
§ 357. But a contract negotiated where it is held negotiable may be there sued in the

name of an endorsee.

§ 358. Personal representative cannot endorse note in another state.
* § 359. But such assignment in the place of administration will entitle the assignee to
sue in any state.

§ 360. By what law protest, etc., of bills of exchange governed.

§ 361. Different terms of grace allowed on notes and bills in different countries.

§ 362. Personalty has no situs but the domicil of the owner.

4 3624. Choses in action follow the same law.

§ 3626. They fall under the class of movables.

§ 363 -365a. Contracts concerning land must be made according to the law rei site.

§ 366. The point illustrated by Scotch heritable bonds.

§ 367. But land converted into money may pass as personalty.

§ 368. The foreign jurists not agreed upon this point.

§ 369. Many of them claim the universal application of the law of the place of con-
tract. :

§ 369 a, 370. Illustrations from their writings.

§ 371. Pothier and others hold contracts affecting immovables governed by law rei site.

§ 371a¢-371e. Many foreign writers seem to think all contracts governed by the law
of the place where in fact made.

§ 372-372c. Some go so far as to extend the rule to wills, executed out of the place
of domicil, to affect immovables elsewhere. 5

§ 372d. A contract to transfer realty is good if made according to the law of th
domicil ; but the actual transfer must be according to the law rei site, as the foreign
jurists say.

§ 372e. The same point further discussed.

§ 372 f. The common law seems to require contracts to transfer realty to be executed
according to the law rie site. :

§ 373. They must, at all events, not be in conflict with that law.

§ 373a. Statement of principles adopted in a late English case.

§ 3736. It seems contracts concerning lands abroad may be governed by the law of
the place of domicil of the parties.

§ 873 c, 373d. The lex loci contractus conclusively determined by the courts of that
country.
: § 373 e. If such is the effect of the judgment where rendered.

§ 231. We next come to the consideration of the highly impor-
tant branch of international jurisprudence arising from the con-
flict of laws in matters of contract generally.! This subject has
been very much discussed, not only by foreign jurists and foreign
courts, but in our own domestic tribunals. The general princi-

* See on the subject of this chapter, 1 Burge, Comm. on Col. and For. Law,
Vol. I, Pt. 1, ch, 1, p. 23, 24, 29; Id. Vol. IIL, Pt. 8, ch. 20, p. 749 top. 780;
Felix, Conflict. des Lois, Revue Etranger et Francais, Tom. 7, 1840, § 39 to 51,
p. 344 to p. 365.
§ 231 ~233.] FOREIGN CONTRACTS. , 295

ples, which regulate it, have, therefore, acquired a high degree of
certainty ; although, upon so complex a topic, many intricate and
difficult questions yet remain unsettled.

§ 232. It is easy to see, that, in the common intercourse of dif-
ferent countries, many circumstances may be required to be taken
into consideration, before it can be clearly ascertained, what is the
true rule, by which the validity, obligation, and interpretation of
contracts are to be governed. To make a contract valid, it is a
universal principle, admitted by the whole world, that it should be
made by parties capable to contract; that it should be voluntary ;
that it should be upon a sufficient consideration ; that it should be
lawful in its nature; and that it should be in its terms reasonably
certain. But upon some of these points there is a diversity in the
positive and customary laws of differént nations. Persons, capable
in one country, are incapable by the laws of another ;! consider-
ations good in one country, are insufficient, or invalid in another ;
the public policy of one country permits, or favors certain agree- -
ments, which are prohibited in another ; the forms, prescribed by
the laws of one country, to insure validity and obligation of con-
tracts, are unknown in another; and the rights‘acknowledged by
one country, are not commensurate with those belonging to an-
-other. A person sometimes contracts in one country, and is dom-
iciled in- another, and is to pay in a third; and sometimes the
property, which is the subject of the contract, is situate in a fourth ;
and each of these countries may have different, and even opposite
laws, affecting the subject-matter. What then is to be done in this
conflict of laws? What law is to regulate the contract, either to
determine the rights, or the remedies, or the defences growing out
‘of it; or the consequences flowing from it? What law is to in-
terpret its terms, and ascertain the nature, character, and extent
of its stipulations? Boullenois has very justly said, that these are
questions of great importance, and embrace a wide extent of ob-
jects?

§ 233. There are two texts of the civil law, which treat of this
subject, which have been supposed by civilians and jurists to in-
volve an apparent antinomy. One seems to require, that the place
where the contract is entered into, should alone govern the con-
tract. Si fundus venierit, ex consuetudine ejus regionis, in qua

1 Ante, § 51 to 90.
2 2 Boullenois, Obser. 46, p. 445.
296 CONFLICT OF LAWS. [cH. vim.

negotium gestum est, pro evictione cavert oportet ; 1 Tf land shall
be sold, it is to be warranted against eviction according to the law
of the country, in which the business is transacted. The other,
on the contrary, seems to require, that the place, where the con-
tract is to be executed, should govern it. Contraxisse unusquisque

in eo loco intelligitur, in quo, ut solveret, se obligavit ; Every one
is understood to have contracted in the place in which he has
bound himself to perform the contract.?

§ 234. Dumoulin has endeavored to reconcile these texts, by
supposing, that the former law, si fundus, truly and fundamentally
presupposes, that the contracting parties have their domicil in the
place of the contract, and that the contract is there to be exe-
cuted; but that the latter law, contrazisse, applies to the case,
where the party has bound himself to execute the contract through-
out in another place, than that, in which the contract is made.
Sed hic venditor eo ipso se obligat, solutionem et traditionem realem,
per se vel per alium facere in loco, in quo, fundus situs est; ergo,
ibi contraxisse, censetur. Et sic lex, st fundus, ex viva et radicale
ratione, presupponit contrahentes habere domictlium in loco con-
tractés Le Brun says, that when the doctors say, in comment-
ing on the law, (si fundus,) locus contractés regit in contractibus,
they mean in everything, which concerns the manner of con-
tracting, the exterior form of the contract. But that the law of
the domicil is to govern in whatever respects the substance and
effects of the acts done. However, the generality of French
authors have reconciled these laws in a different manner ; by con-
sidering, that the place of. a contract admits of a double meaning,
namely, the place, where the contract is entered into, ubi verba
proferuntur, and that, where the contract is to be executed, where

* Dig. Lib. 21, tit. 2, 1. 6; Pothier, Pand. Lib. 21, tit. 2, n. 7. See Everhardus,
Concil. 178, p. 207; post, § 300 b. See Bartolus’s interpretation of this law.
Bartolus, ad Cod. Lib. 1, tit. 1, 1,1, n. 14, 15, 16; post, § 301.

* Dig. Lib. 44, tit. 7, 1. 21; Pothier, Pand. lib. 5, tit. 1, n. 36.— To the same
effect is the text: “Contractum autem non utique eo loco intelligitur, quo
negotium gestum sit, sed quo solvenda est pecunia,” Dig. Lib. 42, tit. 5, 1.3;
Pothier, Pand. Lib. 42, tit. 5, n. 24.

* Molin. Comment, In. Cod. Lib. 1, tit. 1, 1.1; Conclusiones de Statutis Molin.
Opera, Tom. 3, p. 554; Everhardus, Consil. 178, p. 206, 207; 3 Burge, Comm.
on Col. and For. Law, Pt. 2, ch. 20, p- 851, 852, 853; 2 Boullenois, Obser. 46,
p. 445, 446, 447,

* Le Brun, De la Communauté, Liv. 1, ch. 2, § 46.
§ 283 — 236.] FOREIGN CONTRACTS. 297

payment is to be made, ubi solutio distinatur! They think, there-
fore, that the law, si fundus, is to be understood of the place,
where the contract is entered into, wbi verba prolata sunt; and,
that it properly applies to cases, where it is necessary to decide
upon the form, either of the proof, or the substance, or the consti-
tution, or the mode of the contract, or of its extrinsic ceremonies
or solemnities ; and, that the law, contravisse, applies to the case
where the question is respecting the rights, santo spring from the
contract, of which the execution and performance are referred to
another place.?

§ 285. Boullenois holds both interpretations unsatisfactory, and
insufficient for many occasions ; for they suppose, that two places
only are to be examined in resolving all questions, the place of the
making, and the place of performance of the contract; and in
effect they put aside the law of the place of the situs of the thing
(rei site), and that of the domicil of the parties, which are often
imperative, and on many occasions deserve a preference.2 He
adds, that there is another difficulty, which arises in these mixed
questions, which is, that the laws in one place affix to certain
clauses a certain sense and a certain effect, and the laws of another
place give them a sense and an effect, either more extensive, or
more restrained.* He also informs us, that many foreign jurists
have warned us against two errors, which constitute the quick-
sands of the law on this subject, and which are necessary to be
avoided. One of these errors is the confounding of those things,
which belong to the solemnities of the acts, and the effects which
result from the nature of the acts, on the one side, with those,
which belong to the charges or liens, which spring up after the
acts, purely as accidents, on the other side.© “The other, the omis-
sion in a proper case to have a due regard or deference to the law
of the situs or locality of the thing.’

§ 236. Mevius has given us a warning in this matter against
confounding the solemnities of acts and contracts, as well as the
effects caused by them, with the charges thereof, and extrinsic ac-
* 2 Boullenois, Observ. 46, p. 446, 447; post, § 299 to 304.

2 Ibid. See also Everhard. Consil, 78, n. 18, 19, p. 207.
® 2 Boullenois, Observ. 46, p. 447.

* Post, § 275.

5 2 Boullenois, Observ. 46, p. 447, 449.

* Ibid. p. 447, 448, 449.

” Thid. p. 449, 450,
298 CONFLICT OF LAWS. [cH. vi.

cidents, which follow the contracts, but are not in the contracts
themselves. Cave, autem, in hec materia, confundas actuum et
contractuum solennia, nec non effectus ac tpsis causatos cum eorum
onere, et accidenti extrinseco, quod contractus subsequitur, sed ex
non ipsis contractibus est. Id, dum multi ignorant, aut non dis-
cernunt, forenses naximé ledunt, et gravantur.1 So that, accord-
ing to Mavius, the law of the place of the contract is to govern,
first, as to the solemnities of the act or contract ; and secondly, as
to the effects caused thereby; but as to the charges (onus) and ex-
trinsic accidents, that it is not to govern. Forenses servare teneri
statuta et consuetudines loci, ubi aliquid agunt, et contrahunt ad
validitatem actus et contractus. Statutum enim actus seu con-
tractus semper attenditur, cui disponentes vel contrahantes se alli-
gare et conformare voluisse censetur2 And speaking afterward
upon the charges and extrinsic accidents of acts and contracts, he
adds: In his enim, quia non spectant ad formam modumque con-
trahendi, contractum autem extrinsecus subsequuntur, non sectamur
statuta loci contractus.2 In this system he is not generally followed ;
and Boullenois has observed, that it is very difficult to say, what
ought to be deemed to belong to the solemnities of contracts ; what
are the effects caused by them ; and what are the charges and ex-
trinsic accidents resulting from them.‘

§ 237. Burgundus has offered the following system. In relation
to express contracts two things are to be considered, the form and
the matter of the contract. (Omnis autem obligandi ratio habeat,
necesse est, rem et vérba, hoc est, formam et materiam.5) But he
adds, that it is not indiscriminately permitted to contract in all
times and places ; but it is very often material, with what persons
we contract ; and all these things will be unaviling, unless the
contract is conformable to the laws. Sed nec omni loco et tempore
contrahere licet; plurimum quoque refert, cum quibus stipulemur.
Et sane hec omnia supervacua sint, nisi et secundum leges pacis-
camur.® These things being premised, Burgundus lays down the
following rules ; first, in everything, which regards the form of
contracts, and the perfecting of them, the law of the place, where

* Mevius, ad Jus Lubecense, Quest. Prelim. 4, n. 18, p. 22.

* Ibid. 4, n. 11, 18, 14, p, 22,

* Ibid. 4, n. 18, p. 22; 2 Boullenois, Observ. 46, p. 448, 449, 450.
* 2 Boullenois, Observ. 46, p. 447, 448, 449,
» Burgundus, Tract. 4, n. 1, p- 100.

* Ibid. p. 100, 101 ; Boullenois. Observ. 46, p. 450, 451; post, § 300 a.
§ 286, 287.] FOREIGN CONTRACTS. 299

the contract is entered into, is to be followed. Et quidem in scrip-
turd instrumenti, in solemnitatibus et ceremoniis, et generaliter in
omnibus, que ad formam, ejusque perfectionem pertinent, spectanda
est consuetudo regionis, ubi fit negotiatio! These he deems the
substantials of the contract ‘(substantialia contractis); and among
them he includes the necessity of giving a caution or security upon
a sale against any eviction, according to the customary law.? So,
the laws which determine ‘the place and time, when and where
contracts ought to be made, bélong to the perfection of the form:

Conditio loci et temporis perfectionem forme quoque respiciunt ; et
ideo regione contractis pariter diriguntur3 In like manner, all
special stipulations for a limited responsibility, as of particular
heirs only, belong to the form.* And he concludes by observing,
that in all questions, touching the obligation of the contract, or its
interpretation ; as, for example, whom it binds, and to what ex-
tent ; what is included, what is excluded from it; also in respect
to all actions, and all ambiguities, arising out of the contract; we
are first to follow. what has been done by the parties ; or if it does
not appear, what has been done, the consequence will be, that we
are to follow what is usual in the country, where the act took
place. For the law is the common instructor of the whole country,
whose voice all hear; and, therefore, every one, who contracts in
another province, is not supposed to be ignorant of its customs ;
but whatever he does not express plainly, he refers to the interpre-
tation of the law, and wills and intends. that, which the law itself
wills and iftends. And all these things may well be said of the
solemnities of contracts.. Igitur, ut paucis absolvam, quoties de
vinculo obligationis vel de ejus interpretatione queritur, veluti,
quos et in quantum obliget, quid sententie stipulationes inesse, quid
abesse credi oporteat: item in omnibus actionibus, et ambiguitati-
bus, que inde oriuntur, primim quidem id sequemur, quod inter
partes actum erit ; aut si non paret, quid actum est, erit consequens,
ut id sequamur, quod in regione in qua actum est, frequentatur.
Imputandum enim ei est, qui dicit, vel agit, quod apertius legem non
dizerit, in cujus potestate erat cuncta complecti, et voluntatem suam
verbis eaprimere. Nec enim stipulator ferendus est, st ejus inter-
sit aliter actum non esse, ciim scire debuerit, id quod @ contrahenti-
bus est omissum, suppleri legibus, que haud aliter dirigunt humanas

1 Burgundus, Tract. 4, n. 7, n. 29, p. 104, 105. ;
3 Id. n. 7, p. 105. 3 Thid. * Ibid.
300 . CONFLICT OF LAWS. (cx. vin.

actiones, quam corpora nostra luna alternat. Lex enim communis
est preceptrix civitatis, cujus vocem cuncti exaudiunt. Et ideo,
qui in aliend provincia paciscitur, non credendus est esse consuetu-
dinis ignarus : sed id, quod palam verbis non exprimit, ad interpre-
tationem legum se referre, atque idem’ velle, et intendere, quod lex
ipsa velit. -Et hec quidem cuncta de solemnitate dicta sint.. He
then passes to the consideration of the matter of the contract, by
which he means the things, of which it disposes ; and he affirms,
in respect to the matter, that the law of the situation of the prop-
erty ought to govern. Ceterum, ut sciamus, contractus, ex parte
materia utilis sit, vel inutilis, ad leges, que, de quibus tractatur,
im press@ sunt, hoe est, ad consuetudinem situs respiciemus.? He
applies the same rule to quasi contracts, as to express contracts:
Idem in quasi contractibus, quod in contractibus obtinet3 :
§ 238. Hertius has laid down three general rules upon the sub-
ject of the operation of foreign law. The first is, that, when the
law respects the person, the law of the country to which the party
is a subject, is to be followed. Quando lex in personam dirigitur,
respiciendum est ad leges civitatis, que personam habet subjectam.
Secondly, when the law respects things, the law of the situs is to
‘govern, wherever, and by whomsoever the act may be celebrated.
Si lex directo rei imponitur, ea locum habet, ubicunque etiam loco-
rum et a quoeunque actus celebretur.6 Thirdly, when the law im-
poses any form in the transaction of the business (actus), the law
of the place where it is transacted, is to govern, and not the law
of the domicil of the parties, or of the place where the property is
situate. Si lex actui formam dat, inspiciendus est locus actus, non
domicilit, non rei site." This last rule, in an especial manner, he
applies to contracts, even when they regard property situated ina
foreign country. Valet etiamsi, bona in alio territorio sunt sita®
* a Burgundus, Tract. 4, n. 8, p. 105, 106. 2 Thid. Tract. 4, n. 8, 9.
* Ibid. Tract. 5, u. 1. Sée also 2 Boullenois, Observ. 46, p. 420 to p. 454,
where he has given a summary of the doctrine of Burgundus. Burgundus,
in exemplifying what he means by the matter of the contract, where -the

law of the situs governs, evidently confines himself to real estate, or immovable
property. See Everhardus, Consil. 78, n. 18, 19, p- 207; post, § 299 c.

* Ante, § 30.

° 1 Hertii, Opera, De Collis. Leg. p. 123, § 8; Id. p. 175, edit. 1716.

* Ibid. p. 125, § 9; Id. p. 177, edit. 1716,

T Ibid. p. 126, § 10; Id. p. 179, edit. 1716.

* 1 Hertii, Opera, De Collis, Leg. § 4, p. 126, § 10, edit. 1787; Id. p. 179, 180,
edit. 1716; post, 371 a. :
§ 237 - 289.] FOREIGN CONTRACTS. 801

§ 239. Huberus lays down the following doctrine. All business
and acts done in court, and out of court, (or, as we should say, in
pais, or judicial,) whether testamentary, or inter vivos, regularly
executed in any place according to the law of that place, are valid
everywhere, even in countries where a different law prevails, and
where, if transacted in the like manner, they would have been in-
valid. On the other hand, business and acts executed in any place
contrary to the law of that place where they are executed, as they
are in their origin invalid, never can acquire any validity. And
this rule applies not only to persons who are domiciled in the place
of the contract, but to those who are commorant there. There is
this exeeption, however, to be understood, that if the rulers of an-
other people would be affected with any notable inconvenience
‘thereby, they are not bound to give any effect to such business and
transactions. Inde fluit hec positio: Cuncta negotia et acta, tam
in judicio, quam extra judicium, seu mortis causd sive inter vivos,
secundum jus certi loci rite celebrata, valent, etiam ubi diversa juris
observatio viget, ac ubi sic inita, quemadmodum facta sunt, non va-
lerent. E contra, negotia et acta certo loco contra leges ejus loci
celebrata, cum sint ab initio invalida, nusquam valere possunt ; id-
que non modo respectu hominum, qui in loco contractis habent do-
micilium, sed et illorum, qui ad tempus ibidem commorantur. Sub
hac tamen exceptione ; si rectores alterius populi exinde notabili
incommoda afficerentur, ut hi talibus actis atque negotiis usum ef-
Fectumque dare non teneantur, secundum tertii axiomatis limitatt-
onem.! He applies the same doctrine indiscriminately to testa-
mentary acts, to acts inter vivos, and to contracts. Quod de testa-
mentis habuimus, locum etiam habet in actibus inter vivos. Pro-
inde contractus celebrati secundum jus loci, in quo contrahuntur,
ubique tam in jure, quam extra judicium, etiam ubi hoc modo cele-
brati non valerent, sustinentur : idque non tantum de forma, sed
etiam de materia contractus afirmandum est.2 He adds, that the
place where a contract is entered into, is not to be precisely re-
garded ; that if the parties had another country in view in making
the contract, that ought not rather to be considered, Verum ta-
men non ita pecise respiciendus est locus, in quo contractus est
initus, ut, si partes alium locum respexerint, ille non potius sit con-

* 2 Huberus, De Confl. Leg. Lib. 1, tit. 3, § 3.
* Ibid. § 5, 6, 7, 8, 9.
CONFL. 26
302 CONFLICT OF LAWS. [cu. VIL

siderandus.1 But here the same restriction is to apply, that no in-
jury arise thereby to the citizens of the foreign country in regard
to their own rights. Datur et alia limitationis sepe dicte applica,
tio in hoc articulo; Effecta contractuum certo loco initorum, pro
jure loci illius alibi quoque observantur, si nullum inde civibus ali-
enis creetur prejudicium, in jure sibi quesito; ad quod Potestas
alterius loci non tenetur, neque potest extendere jus diversi terri-
toriit.2, And he deduces the following general conclusion, that if
the law of a foreign country is in conflict with the law of our own
country, in which a contract is also entered into, conflicting with
another contract, which is entered into elsewhere, in such a case
our own law ought to prevail, and not the foreign law. Ampliamus’
hane regulam tali extensione. Si jus loci in alio imperio pugnet
cum jure nostre civitatis, in qua contractus etiam initus est, confii-
gens cum eo contractu, qui alibi celebratus est, mags est, ut jus
nostrum, quam jus alienum, servemus.3

§ 239 a. Bartolus, on the subject of contracts between. foreign-
ers in another country, has expressed himself to the following
effect: That we are to distinguish whether the question is (1.) as
to the law or custom, which regulates the solemnities of the con-
tract; or (2.) as to the institution of the remedy ; or (8.) as to
those things, which belong to the jurisdiction, in executing the
contract. In the first case, the law of the place of the contract is
to govern ; in the second case, the law of the place where the suit
is instituted. But in the third case, as to those things which arise
from the nature of the contract at the time when it was made, or
those which arise afterwards on account of negligence or delay,
the law of the place of the contract is to govern. Et primo, Quero
quid de contractibus? Pone contractum celebratym per aliquem
Sorensem in hac civitate ; litigium ortum est, et agitatur lis in loco
originis contrahentis ; cujus loci Statuta debent servari, vel spec-
tari? Distingue, aut loquimur de Statuto, aut de consuetudine,
que respiciunt ipsius contractus solemnitatem, aut litis ordinatio-
nem, aut de his que pertinent ad jurisdictionem ex ipso contracts
evenientis executionis. Primo casu, inspicitur locus contractis.
Secundo casu, aut queris de his, que pertinet ad litis ordinatio-
mem, et inspicitur locus judicti. Aut de his que pertinent ad ‘p-

* 2 Huberus, De Confl. Leg. Lib. 1, tit. 8, § 103; post, § 281, 299.

? 2 Huberus, Lib. 1, tit. 1, § 11.
® Tid. tit. 3, § 11.
§ 239 - 240.] FOREIGN CONTRACTS. 303

sius litis decisionem; et tunc, aut de his, que oriuntur secundum
ipsius contractds naturam tempore contractis, aut de his, que ori-
untur ex post facto propter negligentiam, vel moram. Primo casu,
inspicitur locus contractis}

§ 240. Boullenois has discussed this subject in a most elaborate
manner ; and has laid down a number of rules, which are entitled
to great consideration.2 First. The law of the place, where a con-
tract is entered into, is to govern, as to everything which concerns
the proof and authenticity of the contract, and the faith which is
dWe'to it, that is to say, in all things which regard its solemnities
or formalities.2 Secondly. The law of the place of the contract
is generally to govern in everything which forms the obligation of
the contract (/e lien du contrat), or what is called vinculum obli-
gationis. Thirdly. The law of the place of the contract is to
govern as to the intrinsic and substantive form of the contract.®
Fourthly. When the law has attached certain formalities to the
things themselves, which are the subject of the contract, the law
of their situation is to govern.6 This rule is applicable to con-
tracts respecting real estate. Fifthly. When the law of the place
of the contract admits of dispositions or acts, which do not spring
properly from the nature of the contract, but have their founda-
tion in the state and condition of the person, there the law which
regulates the person, and upon which his state depends, is to gov-
ern.’ Sixthly. In questions, whether the rights which arise from
the nature and time of the contract, are lawful or not, the law of
the place of the contract is to govern. Seventhly. In questions
concerning movable property, of which the delivery is to be in-
stantly made, the law of the place of the contract is to govern,?
Fighthly. If the rights which arise to the profit of one of the con-

1 Bartol. Comment. ad Cod. Lib. 1, ]. 1, n. 13, cited also 2 Boullenois Observ.
44, p. 455, 456,

2 2 Boullenois, Observ. 46, p. 445 to p. 538. — Mr. Henry has laid down the
first eight rules of Boullenois, as clear law, without the slightest acknowledg-
ment of the source whence they are taken. In fact, his treatise is in sub-
stance taken from Boullenois, whose name, however, occurs only once or twice
in it. ;

® 2 Boullenois, Observ. 46, p. 458.

* Tbid.

6 Ibid. p. 467. 6 Thid.

” Ibid. p. 467; post, § 437.

® Ibid. p. 472.

® Ibid. n. 46, p. 475.
304 CONFLICT OF LAWS. (cH. Va.

tracting parties, in fact arise under a contract valid in itself, and
not subject to rescission, but they arise from a new cause purely
accidental, and ex post facto; in this case, the law of the place
where these rights arise is to govern, unless the parties have other-
wise stipulated! Ninthly. These rules are to govern equally,
whether the contestation be in a foreign tribunal, or in a domestic
tribunal, having proper jurisdiction over the controversy.” Tenth-
ly. In questions upon the true interpretation of any clauses in a
contract, or in a testament, the accompanying circumstances —_
ordinarily to decide them.®

§ 241. Without entering further into the examination of the
opinions and doctrines of foreign jurists, (a task which would be
almost endless,) we shall now proceed to the consideration of those
doctrines, touching contracts made in foreign countries, fvhich ap-
pear to be recognized and settled in the jurisprudence of the com-
mon law. The law which is to govern in relation to the capacity
of the parties to enter into a contract, has been already fully con-
sidered.’ It has been shown, that, although foreign jurists gener-
ally hold, that the law of the domicil ought to govern in regard to
the capacity of persons to contract ;* yet, that the common law
holds a different doctrine, namely, that the lex loci contractis is to
govern.”

1 Ibid. p. 477, * Thid. p. 489.

* 2 Boullenois, Observ. 46, p.489. See also Felix, Conflict, des Lois, Revue
Hitrang. et Franc. Tom. 7, 1840, § 39, p. 344 to p. 346.

* The learned reader who wishes for further instruction as to the opinions of
foreign jurists on all these points, will find many of them collected in 2 Boulle-
nois, Observ. 46, from p. 458 to p. 538.

5 Ante, § 51 to 79.

* Ibid. — In addition to the foreign authorities already cited, we may add that
of Cochin and D’Aguesseau. The former says, that the subjects of the king of
France are always subjects, and they cannot break the bonds, which attach them
to his authority ; and parties, contracting in a foreign country, cannot possess any
capacity to contract, but according to the law of their own country. It is a
personal law, which follows them everywhere. Cochin, (uvres, Tom. 1, p: 153,
154; Id. 545, 4to edit.; Ib, Tom. 4, p. 555, 4to edit. “ When,” (says D’Agues-
seau,) “the question is, as to an act purely personal, we consider only the law
of the domicil. That alone commands all persons who are subjects to it. Other
laws cannot make those capable or incapable, who do not live within their reach.
And this is what Bartolus intended to remark, when he said, statutum non potest
ee personam sibi non subjectam.” D’Aguesseau, (Euvres, Tom. 4, p. 689,
4th edit.

" See ante, ch. 4, § 51 to 54; Id. § 100 to 106. See also Male v. Roberts, 3
§. 240 - 242.] FOREIGN CONTRACTS. 305

§ 242. (1.) Generally speaking the validity of a contract is to
be decided by the law of the place, where it is made, unless it is to
be performed in another country, for, as we shall presently see, in
the latter case, the law of the place of performance is to govern.!
If valid there, it is by the general law of nations, jure gentium,
held valid everywhere, by the tacit or implied consent of the par-
ties? The rule is founded, not merely in the convenience, but in
the necessities of natioifs ; for otherwise, it would be impracticable
for them to carry on an extensive intercourse and commerce with
each other. The whole system of agencies, of purchases and sales,
of mutual credits, and of transfers of negotiable instruments, rests
on this foundation ; and the nation which should refuse to acknowl-
edge the common principles, would soon find its whole commer-
cial inter@ourse reduced to a state, like that, in which it now ex-
ists amongst savage tribes, among the barbarous nations of Sumatra,
and among other portions of Asia, washed by the Pacific. Jus
autem gentium (says the Institute of Justinian) omni humano
gener commune est; nam, usu exigente, et humanis necessitatibus,
gentes humane jura quedam sibi constituerunt. Et ex hoc jure
gentium, omnes pene contractus introducti sunt, ut emptio et vendi-
tio, locatio et conductio, societas, depositum, mutuum, et alii innu-
merabiles2 No more forcible application can be propounded of
this imperial doctrine, than to the subject of international private

Esp. R. 163; Thompson v. Ketcham, 8 Johns. R. 189; Liverm. Diss. p. 34, § 21,
p- 85; Id. § 22, 23, 24, p. 38; Id. § 26, 27, p. 40; Id. § 31, p. 42; Id. § 33, p. 43,
§ 385; Andrews v. His Creditors, 11 Louis. R. 464, 476.

1 Post, § 280.

* Pearsall v. Dwight, 2 Mass. R. 88, 89. See Casaregis, Disc. 179, § 1, 2;
Willing v. Consequa, 1 Peters, C. C. R. 317; '2 Kent, Comm. Lect. 39, p. 457,
458, 3d edit.; De Sobry v. De Laistre, 2 Harr. & Johns. R. 193, 221, 228;
Smith v. Mead, 3 Conn. R. 253; Medbury v. Hopkins, 3 Id. R. 472; Houghton
v Page, 2 N. Hamp. R. 42; Dyer v. Hunt, 5 Id. 401; Erskine’s Inst. B. 8, tit. 2,
§ 89, 40, 41, p. 514 to p. 516; Trimbey v. Vignier, 1 Bing. New Cas. 151, 159;
S.C. 4 Moore & Scott, 695; Andrews v. Pond, 13 Peters, R. 65; Andrews v.
His Creditors, 11 Louis. R. 465; Fergusson v. Fyffe, 8 Clark & Finn. R. 121;
post, § 816 a; Bayley on Bills, ch. (A.) 5th edit. by F. Bayley, p. 78; Id. Amer.
edit. by Philipps and Sewell, 1836, p. 78 to p. 86; 1 Burge, Comment. on Col.
and For. Law, Pt. 1, ch. 1, p. 29, 80; Whiston v. Stodder, 8 Martin, R. 95 ;
Bank of the U. States v. Donally, 8 Peters, R. 361, 372; Wilcox v. Hunt, 13
Peters, R. 378, 379; French v. Hall, 9 N. Hamp. R. 137; Smith v. Godfrey, 8
Foster, 381.

* 1 Inst, Lib, 1, tit. 2, § 2

26 *
306 CONFLICT OF LAWS. [cn. vin.

contracts.! In his, as a general principle, there seems a universal
consent of all courts and jurists, foreign and domestic.?

§ 242 a. Illustrations of this general doctrine may be derived
from cases which have actually occurred in judgment. Thus, for
example, where a bill of exchange was made and indorsed in blank
in France, and the holder afterwards sued the maker in England,
a question arose, whether, upon such an indorsement in blank
without following the formalities prescribed by the Civil Code of
France, the indorsement passed the right of property to the holder ;
and it being found, that it did not, by the law of France, the court
held, that no recovery could be had by the holder upon the note in
an English court. The court on that occasion said, that the question,
as to the transfer, was a question of the true interpretation of the
contract, and was therefore to be governed by the law of France,
where the contract and indorsement were made.®

§ 248. (2.) The same rule applies, vice versd, to the invalidity
of contracts ; if void or illegal by the law of the place of the con-
tract, they are generally held void and illegal everywhere.* This

1 2 Kent, Comm. Lect. 39, p. 454, 455, and rote, 3d edit.; 10 Toullier, art.
“80, note; Pardessus, Droit Comm. Vol. V. art. 1482; Charters v. Cairnes, 16
Martin, R. 1.

2 The cases which support this doctrine are so numerous that it would bea
tedious task to enumerate them. They may generally be found collected in the
Digests of the English and American Reports, under the head of Foreign Law,
or Lex Loci. The principal part of them are collected in 4 Cowen, R. 510,
note; and in 2 Kent, Comm. Lect. 39, p. 457 et seg., in the notes. See also
Fonblanque on Eq. B. 5, ch. § 6, note (t.) p. 443; Bracket v. Norton, 4 Conn.
R. 517; Medbury v. Hopkins, 3 Id. R. 472; Smith v. Mead, 3 Id. R. 253; De
Sobry v. De Laistre, 2 Harr. & Johns. R. 193, 221, 228; Thrasher v. Everhart,
8 Gill & Johns. R. 234. The foreign jurists are equally full, as any one will find
upon examining the most celebrated of every nation. They all follow the doc-
trine of Dumoulin. “In concernentibus contractibus, et emergentibus tempore
contractifis, inspici debet locus, in quo contrahitur.” Molin. Comment. ad Con-
suet. Paris. tit. 1, § 12, Gloss. n. 87, Tom. 1, 224; post, § 260, § 300 d. See
Bouhier, ch. 21, § 190; 2 Boullenois, Observ. 46, p. 458. Lord Brougham, in
Warrender v. Warrender, 9 Bligh, R. 110, made some striking remarks on this
subject, which have been already cited, ante, § 226 b, note.

* Trimbey v. Vignier, 1 Bing. New Cases, 151, 159 ; post, § 267, 270.

* Huberus, Lib. 1, tit. 3, De Confl. Leg. § 8, 5; Van Reimsdyk v. Kane, !
Gallis. R. 375 ; Pearsall v. Dwight, 2 Mass. R. 88, 89; Touro v. Cassin, 1 Nott &
McCord, R. 173; De Sobry v. De Laistre, 2 Harr. & Johns. R. 193, 221, 225;
Houghton »v. Paige, 2 N. Hamp. R. 42; Dyer v. Hunt, 5 N. Hamp. R. 401; Van
Schaik v. Edwards, 2 Johns. Cas, 355; Robinson v. Bland, 2 Burr. R. 1077; Bur-
rows v. Jemino, 2 Str. 732; Alves v. Hodgson, 7 T. R, 241; 2 Kent, Comm. Lect.
§ 249 — 244.] FOREIGN CONTRACTS. 307

would seem to be a principle derived from the very elements of
natural justice. The Code has expounded it in strong terms.
Nullum enim pactum, nullam conventionem, ullum contractum, inter
cos videri volumus subsecutum, qui contrahunt lege contrahere pro-
hibente.1 If void in its origin, it seems difficult to find any princi-
ple, upon which any subsequent validity can be given to it in any
other country.

§ 244. (8.) But there is an exception to the rule, as to the
universal validity of contracts, which is, that no nation is bound to
recognize or enforce any contracts, which are injurious to its own
interest, or to. those of its own subjects.2. Huberus has expressed
it in the following terms: Quatenus nihil potestati aut juri alterius
imperantis ejusque civium pra@judicetur ;3 and Mr. Justice Martin
still more clearly expresses it, in saying, that the exception applies
to cases, in which the contract is immoral or unjust, or in which
the enforcing it in a state would be injurious to the rights, the in-
terest, or the convenience of such state or its citizens. This ex-
ception results from the consideration, that the authority of the
acts and contract done in other states, as well as the laws, by which
they are regulated, are not, proprio vigore, of any efficacy beyond
the territories of that state ; and, whatever effect is attributed to
them elsewhere, is from comity, and not of strict right And
every independent community will, and ought to judge for itself,
how far that comity ought to extend. The reasonable limitation
is, that it shall not suffer prejudice by its comity.’ This doctrine
89, p. 457, 458, 3d edit. ; La Jeune Eugenie, 2 Mason, R. 459; Andrews v. Pond,
13 Peters, R. 65, 78.

1 Code, Lib. 1, tit. 14, 1. 5.

2 Greenwood v. Curtis, 6 Mass. R. 376, 379; Blanchard v. Russell, 13 Mass. R.
1,6; Whiston v. Stodder, 8 Martin, R. 95; De Sobry v. De Laistre, 2 Harr. &
Johns, R. 198, 228; Trasher v. Everhart, 3 Gill & Johns. R. 234; 3 Burge,
Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 779; post, § 348 to 351; Smith v.
Godfrey, 8 Foster, 382; Andrews v. Pond, 13 Peters, R. 65, 78.

® Huberus, Lib. 1, tit. 3, De Conflict. Leg. § 2.

“ Whiston v. Stoddon, 8 Martin, R. 95, 97.

® Ante, § 7, 8, 18, 20, 22, 23, 36.

$ Thid. ;

T Ante, § 25, 27, 29; Huberus, Lib. 1, tit. 8, De Conflict. Leg. § 2, 3, 5;
Trasher v. Everhart, 3 Gill & Johns. R. 234; Greenwood v. Curtis, 6 Mass. BR.
378; 2 Kent, Comm. Lect. 39, p. 457, 3d edit.; Kentucky v. Bassford, 6 Hill,
N. Y. R. 526; Pearsall v. Dwight, 2 Mass. R. 88, 89; Eunomus, Dial. 3, § 67.
See Terrill v. Bartlett, 21 Verm. 189; Merchants’ Bank v. Spalding, 12 Barb.
‘302.
308 CONFLICT OF LAWS. fou. vin.

has been on many occasions, recognized by the Supreme Court of
Louisiana. On a recent occasion it was said by the court: “By
the comity of nations a practice has been adopted, by which courts.
of justice examine into, and enforce contracts made in other States,’
and carry them into effect according to the laws of the place, where
the transaction took its rise. This practice has become so general
in modern times, that it may be almost stated to be now a rule of
international law, and it is subject only to the exception, that the
contract, to which aid is required, should not, either in itself or in
the means used to give it effect, work an injury to the inhabitants
of the country where it is attempted to be enforced.” ! Mr. Jus-
tice Best (afterwards Lord Wynford) on another occasion with
great force said, that in cases turning upon the comity of nations
(comitas inter communitates), it is a maxim, that the comity can-
not prevail in cases where it violates the law of our own country,
or the law of nature, or the law of God. Contracts, therefore,
which are in evasion or fraud of the laws of a country, or of the
rights or duties of its subjects, contracts against good morals, or
against religion, or against public rights, and contracts opposed to
the national policy or national institutions, are deemed nullities in
every country, affected by such considerations ; although they may
be valid by the laws of the place, where they are made.?

§ 245. Indeed, a broader principle might be adopted ; and it is
to be regretted that it has not been universally adopted by all na-
tions, in respect to foreign contracts, as it has been. in respect to
domestic contracts, that no man ought to be heard in a court of
justice to enforce a contract, founded in or arising out of moral or
political turpitude, or in fraud of the just rights of any foreign na-
tion whatsoever. The Roman law contains an affirmation of this
wholesome doctrine. Pacta, que contra leges constitutionesque,
vel contra bonos mores fiunt, nullam vim habere, indubitati juris
est. Pacta, que turpem causam continent, non sunt observandas

* Mr. Justice Porter, in Ohio Insur. Company v. Edmondson, 5 Louis. R. 295,
299, 300.

* Forbes v. Cochrane, 2 Barn. & Cres. R, 448, 471; Smith v. Godfrey, 8
Foster, 382.

* Armstrong v. Toler, 11 Wheaton, R. 258, 260; Chitty on Bills, (8th edit.),
1833, p. 143, note; Boucher v. Lawson, Cas. Temp.-Hard. 84, 89, 191; Planche
v. Fletcher, Doug. R. 251; post, § 255, 257.

* Cod. Lib. 2, tit. 3, 1. 6.

® Dig. Lib. 2, tit. 14, 1. 27, § 4. See also 1 Chitty on Comm. and Manuf. ch. 4,
p. 82, 83.
§ 244 ~-247.] FOREIGN CONTRACTS. 309

6
Unfortunately from a very questionable subserviency to mere com-

mercial gains, it has become an established formulary of the juris-
prudence of the common law, that no nation will regard or enforce
the revenue laws of any other country; and that the contracts of
its own subjects, made to evade or defraud the laws or just rights
of foreign nations, may be enforced in its own tribunals.) Sound
morals would seem to point to a very different conclusion. Pothier
has (as we shall presently see) reprobated the doctrine in strong
terms, as inconsistent with good faith, and the just duties of na-
tions to each other.?

§ 246. A few cases may serve to illustrate the exceptions under
each of the foregoing heads.® First, contracts, which are in evasion
or fraud of the laws of a particular country.* Thus, if a contract
is made in France, to smuggle goods into America in violation of
our laws, the contract will be treated by our courts as utterly void,
as an intended fraud upon our laws.’ And in such a case brought
into controversy in our courts, it will be wholly immaterial, whether
the parties are citizens or are foreigners. So, if a collusive cap-
ture and condemnation are procured in our courts in fraud of eur
laws by foreigners, who are even enemies at the time, their con-
tract for the distribution of the prize proceeds will be held utterly
void by our courts; although the acts are a mere stratagem of war.
And it will make no difference, that the laws have since been
repealed, or that the war has since ceased; for the contract, being
clearly in fraud of the laws existing at the time, the execution of
it ought not to be enforced by the courts of the country whose laws
it was designed to evade.®

§ 247. The same principle applies, not only to contracts grow-
ing immediately out of, and connected with, an illegal transaction,
but also to new contracts, if they are in part connected with the

1 See Boucher v. Lawson, Cas. Temp. Hard. 85, 89, 191; post, § 256, 257.

? Post, § 257.

* Many of the cases upon this subject will be found referred to in the argu-
ment of Armstrong v. Toler, 11 Wheaton, R, 265, 266.

* See 1 Bell, Comm: § 233 to 247, p. 232 to p. 240, 4th edit.; Id. p. 298 to
p. 314, 5th edit.; Kames on Eq. B. 3, ch. 8, § 1.

’ See Holman v. Johnson, Cowper, R. 341; Armstrong v. Toler, 11 Wheaton,
R. 258; Cambioso v. Maffit, 2 Wash. Cir. R. 98.

* Hannay v. Eve, 3 Cranch, R. 242. See Jaques v. Withy, 1 H. Black. R.
65; The Springfield Bank v. Merrick, 14 Mass. R. 322.
310 CONFLICT OF LAWS. (cx. vu.

illegal transaction, and grow immediately out of it! Thus, for ex-
ample, a man, who, under a contract made in a foreign country,
imports goods for another, by means of a violation of the laws of
his own country, is disqualified from founding any action in the
courts of that country upon such illegal transaction, for the value,
or for the freight of the goods, or for:other advances made on
them. He is thus justly punished for the immorality of the act ;
and a powerful discouragement from the perpetration of the act
thus provided.2 And if the importation is the result of a scheme
to consign the goods to a friend of the owner, with the security of
the former, that he may protect or defend them for the owner, in
case they should be brought into jeopardy, a promise, afterwards
made by the owner to such friend, to indemnify him for his ad-
vances and charges on account of any proceedings against the
property, although it purports to be a new contract, will be held
utterly void, as constituting a part of the res gesta, or original
transaction. It will clearly be a promise, growing immediately
out of, and connected with, the illegal transaction.’

§ 248. But the principle stops here, and is not extended to new
and independent transactions after the illegal act. If the new
contract is wholly unconnected with the illegal act, and is founded
on a new consideration, and is not a part of the original scheme,
it is not tainted by the illegal act, although it may be known to
the party with whom the contract is made.t Thus, if, after the
illegal act is accomplished, a new contract (not being unlawful in
itself) is made by the importer for a sale of the goods to a retail
merchant, and the merchant afterwards sells the same to a tailor
or to a customer, who had no participation whatsoever in the ori-
ginal illegal scheme, such new contract will be valid, although the
illegality of the original importation is known to each of the ven-
dees at the time when he entered into the new contract.®

§ 249. It will make no difference that such new and independent

* Armstrong v. Toler, 11 Wheat. R. 261, 262. See Canaan v. Brice, 3 Barn.
& Ald. 179,

2 Thid.

* Armstrong v. Toler, 11 Wheat. R. 261, 262. See Canaan v. Brice, 8 Barn.
& Ald. 179.

* Armstrong v. Toler, 11 Wheat. R. 262, 268, 269. In this case the general

principles applicable to the question of illegality, as well as the authorities, were
fully discussed and considered by the Court. ‘

* Armstrong v. Toler, 11 Wheat. R. 261.
§ 247 -251.] FOREIGN CONTRACTS. 311

contract is made with the person who was the contriver and con-
ductor of the original illegal act, if it is wholly disconnected there-
from ; for a new contract, founded on a new consideration, although
in relation to property, respecting which there have been prior un-
lawful transactions between the parties, is not in itself unlawful.
Thus, if A. should in a foreign country, during war, contrive a
plan for importing goods from the country of the enemy on his
own account, by means of smuggling, or of a collusive capture ;
and goods should be sent in the same vessel by B.; and A. should,
upon the request of B., afterwards become surety for the payments
of the duties, or should afterwards undertake to become answer-
able for the expenses on account of a prosecution for the ‘illegal
importation, or should afterwards advance money to B., to pay
these expenses ; any such act, if it constituted no part of the ori-
ginal scheme, and if A. was not concerned, nor in any manner in-
strumental in promoting the illegal importation of B., but he was
merely engaged in a similar illegal transaction, devising the plan
for himself, would be deemed a new contract upon a valid and
legal consideration, unconnected with the original act, although
remotely caused by it.2, Hence, such new contract would not be
so contaminated by the turpitude of the offensive act, as to turn
A. out of court, when seeking to enforce the new contract in the
courts of this country, although the illegal introduction of*the
goods into the country was the consequence of the scheme projected
by himself, in relation to his own goods.’

§ 250. The same principle may be illustrated by another ex-
ample. If A. should become answerable for expenses on account
of a prosecution for the illegal importation, or should advance
money to B., to enable him to pay those expenses ; these acts would
constitute a new contract, on which an action might be maintained
in our courts, if it constituted no part of the original scheme for
the illegal importation, but it was subsequent to, and independent
of it.

§ 251. The same general distinction has been asserted in many
cases, which have undergone a legal adjudication. Thus, in a case
where goods were sold in France by a Frenchman to an English-

2 Armstrong v. Toler, 11 Wheat. R. 262, 268, 269.

2 Ibid. 3 Ibid.

* Armstrong v. Toler, 11 Wheat. R. 258, 260, 268 to 271. But see Canaan v.
Brice, 3 Barn. & Ald. 179.
312 CONFLICT OF LAWS. [cH. vin.

‘man, for the known purpose of being smuggled into England, it
was held, that the Frenchman could maintain a suit in England
for the price of the goods, upon the ground that the sale was com-
plete in France, and the party had no connection with the sriug-
gling transaction. The contract, (said the court,) is complete, and
nothing is left to be done. The seller, indeed, knows what the
buyer is going to do with the goods ; but he has no concern in the
transaction itself! [So, in a late case in Massachusetts,? (where
the sale of lottery tickets is prohibited by statute,) it was held, that
a sale in New York, where such sale is not forbidden, to a citizen
of Massachusetts, is not invalid although the seller knew that the
purchaser was buying to sell again in Massachusetts, contrary to
the law; and the sale was held to be made in New York although
‘the proposal was first made by letter from the State of Massachu-
“setts.] But, if it enters at all, as an ingredient, into the contract
between the parties, that the goods shall be smuggled, or that the
seller shall do some act to assist or facilitate the smuggling, such
as packing them in a particular way, there, the seller is deemed
active, and the contract will not be enforced.2 The same doctrine
has accordingly been held in other cases.*

§ 252. Huberus puts a case illustrative of the same doctrine.
In certain places (says he) particular merchandise is prohibited.
If sold there, the contract is void. But, if the same merchandise
is sold in another place, where there is no such prohibition, and a
suit is brought upon the contract in the place where the prohibition
‘exists, the buyer will be held liable, (emptor condemnabitur) ; be- ,
cause the contract therefor was, in its origin, valid. But, if the
merchandise is sold to be delivered in the other place where it is
prohibited, the buyer will not be held liable ; because such a con-
tract is repugnant to the law and interest of the country which
made the prohibition.®

" Holman v. Johnson, Cowp. R. 341; Hannay v. Eve, 3 Cranch, 242. But
see Pellicat v. Angell, 2 Cromp., Mees. & Rosc. 311; post, § 254, and note.

% McIntyre v. Parks, 3 Mete. 207.

* Waymell v. Reed, 5 T. R. 599; S.C.1 Esp. R. 91; Lightfoot v. Tenant, |
Bos. & Pull. 551; Biggs v. Lawrence, 8 T. R. 454; Clugas v. Penaluna, 4 T. B.
466; Holman v. Tuhirset; Cowp. R. 341; Brown v. Duncan, 10 B. & C. 98; post,
§ 254, and note.

* Ibid.

Huber. Lib. 1, tit. 8, De Conflictu Legum, § 5; S. P. Greenwood v. Curtis,

6 Mass. R. 378; Executors of Cambioso v. Assignees of Moffat, 2 Wash. Cir.
R. 98.
§ 251 -254.] FOREIGN CONTRACTS. - 318

§ 258. The résult of these decisions certainly is, that the mere
knowledge of the illegal purpose for which goods are purchased,
will not affect the validity of the contract of sale of goods, in-
tended to be smuggled into a foreign country, even in the courts
of that country ; but that there must be some participation or in-
terest of the seller in the act itself. It is difficult, however, to
reconcile this doctrine with the strong and masculine reasoning of
Lord Chief Justice Eyre in an important case upon the same sub-
ject ; reasoning, which has much to commend it in point of sound
sense, and sound morals. “Upon the principles of the common
law,” (said he,) “the consideration of every valid contract must
be meritorious. The sale and delivery of goods, nay, the agree-
ment to sell and deliver goods, is, primd@ facie, a meritorious con-
sideration to support a contract for the price. But the man who
sold arsenic to one, who, he knew, intended to poison his wife with
it, would not be allowed to maintain an action upon his contract.
The consideration of the contract, in itself good, is there tainted
with turpitude, which destroys the whole merit of it. I put this
strong case, because the principle of it will be felt and acknowl-
edged without further discussion. Other cases, where the means
of transgressing a law are furnished, with the knowledge that they
are intended to be used for that purpose, will differ in shade more
or less from this -strong case ; but the body of the color is the
same in all. No man ought to furnish another with the means of
transgressing the law, knowing that he intended to make that
use of them.’”?! The wholesome morality and enlarged policy of
this passage make it almost irresistible to the judgment; and, in-
deed, the reasoning seems positively unanswerable.

§ 254. The doctrine of Lord Chief Justice Eyre has been ex-
pressly adopted in other cases. Thus, on one occasion,” the Court
of King’s Bench-in England held, that a person who sold drugs to a
brewer, knowing that they were intended to be used in the brewing
of beer contrary to an Act of Parliament, was not entitled to recover
the money due upon the sale. Lord Ellenborough on that occa-
sion said: ‘A person, who sells drugs with a knowledge that they
are meant to be so mixed, may be said to cause or procure, quan-
tum in illo, the drugs to be mixed. So, if a person sell goods with
a knowledge, and in furtherance of the buyer’s intention to con-

1 Lightfoot v. Tenant, 3 Bos. & Pull. 356.

* Langton v. Hughes, 1 Maule & Selw. 593.
CONFL. 27
314 CONFLICT OF LAWS. [cH. vi.

vey them upon a smuggling adventure, he is not permitted by the
policy of the law to recover such a sale.”?1 And the other mem-
bers of the court concurred in that opinion. Mr. Justice Bayley
added: “If a principal sell articles in order to enable the vendee
to use them for illegal purposes, he cannot recover the price. The
smuggling cases, which were decided on that ground, are very fa-
miliar.’2 [So in a very recent case, an agreement to enable a
person to sell spirits without a license, was held not enforceable, a
license being required for the protection of public morals.?] There
are other cases, which adopt the same general principle of enlight-
ened justice.t It has, however, been directly denied in some later
decisions.» Whether these' last decisions will be sustained, re-
mains a question for the determination of other tribunals. It is
difficult to perceive any just or solid ground upon which a con-
tract is maintainable, or ought to be enforced in the tribunals of a
country, which is knowingly entered into in a foreign country,
with the subjects of the former country, for the sale of goods,
which are to be smuggled into it against its laws; for the sale
thus made is the avowed means to accomplish the illegal end.®

1 Langton v. Hughes, 1 Maule & Selw. 598.

2 Thid.

3 Ritchie v. Smith, 6 M., G. & Scott, 462; 18 Law J. R.C. P. 9.

* Canaan v. Brice, 3 Barn. & Adolph. 179, 181; Catlin v. Bell, 4 Camp. R.
183.

® Hodgson v. Temple, 5 Taunt. R. 182; Pellicat v. Angell, 2 Cromp., Mees.
& Rose. 311. See also Johnson v. Hudson, 11 East, R. 180.

® In Pellicat v. Angell, 2 Cromp., Mees. & Rose. 311, the case was of a bill of
exchange, accepted in France by the defendant, a British subject, payable to
the plaintiff, (a Frenchman,) being for the price of goods sold by the plaintiff
to the defendant in Paris for the avowed purpose of being smuggled into Eng-
land. The bill was sued in the English Court of Exchequer. Lord Abinger
on that occasion said: “It is perfectly clear, that, where parties enter into a con-
tract to contravene the laws of their own country, such a contract is void ; but it
is equally clear, from a long series of cases, that, the subject of a foreign country
is not bound to pay allegiance or respect to the revenue laws of this; except, in-
deed, that where he comes within the act of breaking them himself, he cannot
recover here the fruits of that illegal act. But there is nothing illegal in merely
knowing, that the goods he sells are to be disposed of in contravention of the
fiscal laws of another country. It would have been most unfortunate if it were
so in this country, where for many years, a most extensive foreign trade was
carried on directly in contravention of the fiscal laws of several other states.-
The distinction is, where he takes an actual part in the illegal adventure, as in
packing the goods in prohibited parcels, or otherwise, there, he must take the con-
sequences of his own act. But it has never been said, that merely selling to a
§ 254, 255.] FOREIGN CONTRACTS. 315

§ 255.. There seems at present a strong inclination in the courts
of law to hold, that, if a contract is made in foreign parts by a
citizen or subject of a country, for the sale of goods which he
knows at the time are to be smuggled in violation of the laws of
his own country, he shall not be permitted to enforce it in the
courts of his own country, although the contract of sale is com-
plete, and might be enforced in the like case of a foreigner.1 The
true doctrine would seem to be, to make no distinction whatsoever
between the case of a sale between citizens or subjects, and the
case of a sale between foreigners ; but to hold the contract in each
case to be utterly incapable of being enforced at least in the courts
of a country, whose laws are thus designedly sought to be violated.
Sound morals and a due regard to international justice seem
equally to approve such a conclusion.?

party, who means to violate the laws of his own country, is a bad contract. If
the position were true, which is contended for on the part of the defendant, that
this appears upon the plea to have been a contract for the express purpose of
smuggling the goods, it would follow, that it would be a breach of the contract if
the goods were not smuggled. But nothing of the kind appears upon the plea;
it only states a transaction, which occurs about once a week in Paris, The
plaintiff sold the goods; the defendant might smuggle them if he liked, or he
might change his mind the next day; it does not at all import a contract, of
which the smuggling was an essential part.” It appears to me that this reasoning
is wholly unsatisfactory. The question is not, whether it is a part of the contract
with the Frenchman, that the goods shall be smuggled ; but whether he does not
knowingly co-operate by the very sale, as far as in him lies, to accomplish the
illegal intention of a British subject to smuggle his goods contrary to the laws of
his country. Can a British tribunal be called upon to enforce such a contract ?
Can it be called upon to aid a Frenchman to recover a debt contracted for the
purpose of violating British laws? Could a Frenchman, selling poison in France
to an Englishman, for the avowed purpose of poisoning the King or Queen of
England, recover on such a contract in England? In Wetherell v. Jones, (3
Barn. & Adolph. R. 225,) Lord Tenterden said: “ When a contract, which a
plaintiff seeks to enforce, is expressly or by implication forbidden by the statute
or common law, no court will lend its assistance to give it effect. And there are
numerous cases in the books, where an action on a contract has failed, because
either the consideration for the promise, or the act to be done, was illegal, as
being against the express provisions of the law, or contrary to justice, morality,
or sound policy.” Can a contract be fit to be entertained in a British court,
whose very object is to aid in a violation of British laws, and policy, and
morals ? ;

1 Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R. 466; Weymell
v. Reed, 5 T. BR. 599; Eunomus, Dial. 3, § 67; Executors of Cambioso v. As-
signees of Moffat, 5 Wash. Cir. R. 98.

2 Ante, § 244, 245.
316 CONFLICT OF LAWS. [cH. vu.

§ 256. Pardessus has asked the question, whether, if French-
men have entered into a contract abroad, forbidden by the laws of
the place where it is made, they can insist upon its execution in.
France ; as, for example, a contract for contraband trade, or
smuggling against the laws of that country. And he has an-
swered, that he rather thinks they may; since this offence is only,
a violation of the law of the foreign state ;-and governments in -
this respect exercise a sort of mutual hostility ; and, without
openly favoring enterprises of a contraband nature, they do not
proscribe them.!' But this doctrine of Pardessus is certainly a de-
parture from the general principle, that the validity of contracts
depends upon the lex loci contractis ; for in the case supposed, the,
contract is clearly void by the laws of the country where it is
made. Huberus holds a doctrine somewhat different, and ap-
proaching nearly to sound principles. If (says he) goods are se-
cretly sold in a place where they are prohibited, the sale is void ab
initio, and no action will lie thereon, in whatever country it may
be brought, nay not even to enforce the delivery thereof; for if
there had been a delivery thereof, and the buyer should refuse to
pay the price, he would be bound not so much by the contract as
by the fact of having received the goods, and so far he would en-
rich himself at the expense and loss of another.?

§ 257. It might be different, according to the received, although
it should seem upon principle indefensible, doctrine of judicial tri-
bunals, if the contract were made in some other country, or in the
foreign country, to which the parties belong; for (as we have
seen)? it has been long laid down as a settled principle, that no
nation is bound to protect, or to regard the revenue laws of an-
other country ; and, therefore, a contract made in one country by
subjects or residents there to evade the revenue laws of another
country, is not deemed illegal in the country of its origin.
Against this principle Pothier argued strongly, as being inconsist-
ent with good faith, and the moral duties of nations.® Valin,

1 5 Pardessus, art. 1492,

* Hub. De Conflict. ch. 8, § 5. ® Ante, § 245.

* See Boucher v. Lawson, Cas. Temp. Hard. 84, 89, 191; Holman v. Johnson,
Cowper, R. 341; Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R.

466; Ludlow v. Van Rensaellaer, 1 Jobns. R. 94 ; Lightfoot v. Tenant, 1 Bos. &

Pull. 551, 557; Planché v, Fletcher, Doug. R. 251; Lever v. Fletcher, 1 Marsh,
Insur. 58 to 61, 2d edit.

® Pothier, Assur. n. 58.
.§ 256, 257.) FOREIGN CONTRACTS. 317

however, supports it ; and Emérigon defends it upon the unsatisfac-
tory ground, that smuggling is a vice common to all nations.) An
enlightened policy, founded upon national justice, as well as na-
tional interest, would seem to favor the opinion of Pothier-in all
cases, where positive legislation has not adopted the principle, as a
retaliation upon the narrow and exclusive revenue system of an-
other nation.2 The contrary doctrine seems, however, firmly es-

? 2 Valin, Comm. art. 49, p. 127; 1 Emérig. ch, 8, § 5, 212, 215, (p. 216 to 218,
edité par Boulay-Paty,) and see note of Estrangin to Pothier, Assur. n. 58; 1
Marsh. Ins. ch. 3, § 1, p. 59, 60, 2d edit.

4 Jt is gratifying to find, that Mr. Marshall and Mr. Chitty have both taken
side with Pothier on this point. The following passage from a work of the latter
expounds the reasoning with considerable force. “ There is something in these
decisions, to which a liberal mind cannot readily assent ; and the impropriety of
them seems to have been hinted at by Lord Kenyon, in the before-mentioned case
of Weymell v. Reed. It is impossible not to feel a greater inclination towards
the opinion of Pothier, who observes, ‘that a man cannot carry on a contraband
trade in a foreign country, without engaging the subjects of that country to com-
mit an offence against the laws, which it is their duty to obey ; and it is a crime
of moral turpitude to engage a man to commit a crime ; that a man carrying on
commerce in any country, is bound to conform to the laws of that country ; and
therefore to carry on an illicit commerce there, and to engage the subjects of
that country to assist him in so doing, is against good faith ; and consequently a
contract made to favor or protect this commerce is peculiarly unlawful, and can
raise no obligation.’ If our law be justifiable in protecting these transgressions,
it can be only on the plea of necessity. But where is the necessity ? Shall we
be told, that it is impossible to ascertain in the English courts the complex pro-
visions of another country’s revenue law? Surely this argument can avail but
little, when it is recollected, that in all cases, where the argument is not con-
venient, the law of another country, however complex, is the rule, by which con-
tracts negotiated in that country are tried and construed. It may be true, that
the rule of our law was adopted by way of retaliation for the illiberal conduct of
other states, and is continued from a cautious policy. But a cautious policy in a
great state is but too often a narrow policy ; and, after all, the best policy for a
state, as well as for an individual, will perhaps be found to consist in honesty and
honorable conduct. Indeed the system is so directly opposite to the clear prin-
ciples of right feeling between man and man, that nothing could have withheld
the states of Europe from concurring for its total abrogation, except the small-
ness of the gain or loss, that attends upon it.” 1 Chitty on Commerce and
Manufac. p. 83, 84; 1 Marshall, Insur. 59 to 61, 2d edit. Mr. Chancellor Kent
hag also added his own high authority in favor of the rule of Pothier. He has
observed: “It is certainly matter of surprise and regret, that in such countries
as France, England, and the United States, distinguished for a correct and en-
lightened administration of justice, smuggling voyages, made on purpose to elude
the laws, and seduce the subjects of foreign states, should be countenanced, and
even encouraged, by the courts of justice. The principle does no credit to the

27%
318 CONFLICT OF LAWS. [cH. vu.

tablished in the actual practice of modern nations without any
such discrimination, too firmly, perhaps, to be shaken except. by
some legislative act abolishing it.!

[* 257 a. A contract which has for its object, or which contem-
plates any act prohibited by express statute in the state where the
act is done, or which incurs a penalty there, is as much illegal and

void, as if the statute, in express terms, so declared. Hence, a
contract for the sale and delivery of spirituous liquors to be sold
without license in a state where license is required for such traffic,
is void, and no recovery can be had thereon, or for the value of stich
‘spirits, although the sale is made in such state by a house situated
in another state, where the sale is legal, through their agent, and
is forwarded by common carriers.? But if these transactions had
occurred wholly out of the state, and the plaintiff’s only agency in
effecting a violation of the statute of the state, consisted in de-
livering the liquors to common carriers, at the place of his doing
business, in another state, with the knowledge that the purchaser
intended to put them to an illegal use on their arrival at the place
of destination, the casks being marked with his address by the
sellee, it would seem this will not preclude a recovery.’

§ 257 6. So, too, in a very late English case, it was held, where.
an attorney entered into an agreement with a client on the terms,
that the attorney should be allowed to retain for his trouble half
the sum recovered, the agreement being entered into in France,
where, by law, it was not illegal, that as the debt was to be recov-
ered in England, the agreement was void, as amounting to cham-
perty, and that an officer of court could not shield himself in the
violation of his official duty, under a contract made abroad, where
it was not against law, but which had for its object the violation of
the English law.]

§ 258. (2.) The second class of excepted contracts comprehends
those against good morals, or religion, or public rights. Such are
contracts made in a foreign country for future illicit cobbitation

commercial jurisprudence of the age.” 8 Kent, Comm. Lect. 48, p. 266,.267, 3d
edit. See also La Jeune Eugénia, 2 Mason, R. 459, 461.
1 See also, Kohn v. Schooner Renaisance, 5 Louis. Ann. R. 25.

i ® Territt v. Bartlett, 21 Vt. R. 184 ; Spalding v. Preston, id. 9.
3 Thid.

* Grell v. Levy, 10 Jur. N. S. 210.]
* 1 Bell, Comm. § 232, p. 232 to p. 242, 4th edit.; Id. p. 297 to p. $14, 5th edit.
§ 257 ~259.] FOREIGN CONTRACTS. 319

and prostitution ;+ contracts for the printing or circulation of ir-
religious and obscene publications ; contracts to promote or reward
the commission of crimes ; contracts to corrupt, or evade the due
administration of justice ; contracts to cheat public agents, or ta
defeat the public rights; and in short, all contracts, which in their
own nature are founded in moral turpitude, and are inconsistent
with the good order and solid interests of society.? All such con-
tracts, even though they might. be held valid in the country where
they are made, would be held void elsewhere, or at least ought to
be, if the dictates of Christian morality, or of even natural justice,
are allowed to have their due force and influence in the adminis-
tration of international jurisprudence.

[§.258 a. But to come within this exception, a contract must
be clearly founded in moral turpitude, and not simply contrary to
the statutes of the country, where it is sought to be enforced.
Thus, in a late case in New York, where the sale of lottery tickets
is prohibited by law, an action was brought on a bond conditioned
for the faithful performance of certain duties enjoined by a law of
Kentucky, which authorized the obligees: to sell lottery tickets, for
the benefit of a college in that State, and the bond was held valid,
it being so at the place where the condition was to be performed ;
and it was considered immaterial whether the bond was executed
in New York, or in Kentucky.?]

§ 259. (3.) The next class of excepted contracts comprehends
those, which are opposed to the national policy and institutions.

1 See 1 Selwyn’s Nisi Prius, Assumpsit, p. 59,60; Walker v. Perkins, 3 Burr.
1568; Greenwood v. Curtis, 6 Mass. R. 379; Bidainebon v. Wallis, 4 Barn. &
Ald. 650; Lloyd v. Johnson, 1 Bos. & Pull. 340; Jones v. Randall, Cowp. R.
37; Appleton v. Campbell, 2 Carr. & P. 347; De Bobiy v. De Laistre, 2 Harr. &
Johns. R. 198, 228. Lord Mansfield, in the case of Robinson v. Bland, 2 Burr.
1084, puts the very case.” In many countries (says he) a contract may be main-
tained by a courtesan for the price of her prostitution ; and one may suppose an
action to be brought here; but that could ‘never be allowed in this country.
Therefore the lex loci cannot in all cases govern and direct.

* See Com. Dig. Assumpsit, F. 7; Smith v. Stotesbury, 1 W. Bl. 204; 8. C.
2 Burr. 924; Fores v. Jobnnes, 4 Esp. R. 97; Willis v. Baldwin, Doug. R.
450; Walcot v. Walker, 7 Vesey, R. 1; Southey v. Sherwood, 2 Merivale,
435, 441; Lawrence v. Smith, Jacob, R. 471, 474, note; Jones v. Randall,
Cowp. R. 37; Bowrey v. Bennett, 1 \Camp. 348; Jennings ». Throgmorton, Ry.
& Moody, 251; Appleton v. Campbell, 2 C. & P. 347; Fergusson on Marr. &
Div. 396, 397.

a Wen tacky v. Bassford, 6 Hill, N. Y. R. 526.
t

320 CONFLICT OF LAWS. [ cH. vu.

For example, contracts made in a foreign country to procure loans
in our own country, in order to assist the subjects of a foreign
state in the prosecution of war against a nation with which we are
at peace ; for such conduct is inconsistent with a just and impar-
tial neutrality ;! contracts entered into with a foreign government
or its agents, (such as for a loan of money,) such government
‘being a new government, unacknowledged by our own govern-
ment, to which the party, entering into the contract, belongs ;?
for a like rule of public policy applies to such cases; contracts
entered into by our own citizens or others in violation of a monop-
oly, granted by our own country to particular subjects thereof ;?
contracts by our own citizens or others to carry on trade with the
enemy, or to cover enemy property, or to transport goods contra-
band of war ;* contracts to carry into effect the African slave-trade, |
or the rights of slavery, in countries, which refuse to acknowledge
its lawfulness, at least if entered into by subjects of, or residents
within, such countries.5> In all such cases the contracts would, or
might be, held utterly void, whatever might be their validity in the

1 De Wutz v. Hendricks, 9 Moore, R. 586; S. C. 2 Bing. R. 314.

* Thompson v. Powles, 2 Simons, R. 194. See also, Jones v. Garcia del Rio,
1 Turner & Rush. R. 299.

* Pattison v. Mills, 1 Dow & Clarke, R. 342.

* 1 Marshall, Insur. B. 1, ch. 3, § 3, p. 78, § 4, p. 85, 2d edit.; Griswold v. Wad-
dington, 16 Johns. R. 438; 2 Wheaton, R. Appendix, 35; Richardson v. Maine
Ins. Co. 6 Mass. R. 102, 110, 112, 113; Musson v. Fales, 16 Mass. R. 332; Cool-
idge v. Inglee, 13 Id. 26.

° See Somerset v. Stuart, Lofft’s R. 1; 20 Howell’s State Trials, 79; Fergus-
son on Mar. and Div. 396, 397; Madrazo v. Willes, 3 Barn. & Ald. 353; Forbes
v. Cochrane, 2 Barn. & Cresw. 448; and especially the opinion of Best, J. Iam
not unaware of the bearing of the case of Greenwood v. Curtis, 6 Mass. R. 358,
on this point; and without undertaking to examine its authority, it may be suffi-
cient to say, that it is not without difficalty in its principles and application, as
will abundantly appear from the elaborate argument of Mr. Justice Sedgwick in
the same case (Id. 362, n.), and the later reasoning of Mr. Justice Best, in Forbes
v. Cochrane, 2 Barn. & Cresw. 448. I have given, in the text, what seems to me
to be the just doctrine resulting from the modern cases, without meaning to assert,
that the authorities cited are fully in point. Ante,§ 96a. Mr. Chief Justice
Shaw, arguendo, in the case of Commonwealth v. Aves, 18 Pick. R. 193, (ante,
§ 96 a., note,) held, that a suit brought here upon a note of hand, given in a State,
where slavery was allowed, for the price of a slave, might be maintainable in our
courts, and that the consideration would not be invalidated upon the ground of
the consideration. It may be so here; but this doctrine, as one of universal appli-
cation, may admit of question in other countries, where slavery may be denounced
as inhuman and unjust, and against public policy.
§ 259, 259 a.] FOREIGN CONTRACTS. 821

country, where they are made, as being inconsistent with the du-
ties, the policy, or the institutions, of other countries, where they
are sought to be enforced.1

§ 259 a. A case illustrative of the same principle, but of far less
repugnancy to the policy and interests of the particular country,
where the rights under a contract are sought to be enforced, oc-
curred in Louisiana. A debtor in another State made a contract,
and transferred his property to certain creditors in preference to
his general creditors, which were not deemed by the laws of that
State fraudulent in regard to the latter creditors ; he afterwards
came to Louisiana, and was arrested there ; and he then by petition
sought the benefit of the insolvent laws of Louisiana, by whose laws
such a preference would be fraudulent, and would deprive the
debtor of the benefit of a discharge under the insolvent acts of the
State. The court held, that as the debtor sought the benefit of the
Louisiana laws, he could entitle himself to it only by showing a
compliance with all their provisions; and that the preference, so
given being fraudulent by those laws, he was not entitled to the
discharge. On that occasion the court said: “ But it is said, that
if we put such a construction upon the act, we give an extra-
territorial operation to our law, by treating, as null, contracts
sanctioned by the lez loci, and regarding as fraudulent those tran-
sactions, which were in fact not only legal, but meritorious. To
this it may be answered, that we leave those contracts undisturbed,
and take cognizance of them no further, than as the voluntary dis-
position of property in reference to our own insolvent laws, when
the insolvent seeks an extraordinary remedy, to which he would
not be entitled by the law of his domicil; that of being declared
exonerated from the payment of his remaining debts, on the assign-
ment of the remainder of his effects. We look at them only so
far, as they form a condition, upon which depends his right to be
discharged, and consequently as pertaining to the remedy, sought
for. It is further urged, that the acts, spoken of in the statute,
must be shown to have been done in contemplation of taking the
benefit of the act, and, that it cannot be supposed that Andrews
had in view the bankrupt laws of Louisiana, when he made these
assignments in Alabama. Taken in their literal sense, it is cer-
tainly difficult if not impossible, to give any legal effect to these

11 Bell, Comm. § 234 to § 250, p. 232 to p. 240, 4th edit.; Id. p. 298 to p. 314,
5th edit. :
322 CONFLICT OF LAWS. [cH. vin.

expressions, without resorting to the extravagant supposition, that
the insolvent had procured his own arrest, by colluding with some
one creditor, and, that he had done other acts, which would tend
to defeat his own project. But the charge prayed for does not
omit those expressions, and it is not now our duty to inquire, in
what sense they are to be understood, and whether, by the general
principles of our law, all contracts of the kind spoken of, within
three months preceding insolvency, between debtor and creditor,
be not presumed to be in fraud of other creditors.” ?

§ 259 b. A case of a more difficult character, if indeed it be not
of a more questionable character, is one put by Lord Brougham,
arguendo, in the course of one of his judgments. Speaking upon
the point, that the lex loci contractés is the governing rule in de-
ciding upon the validity or invalidity of all personal contracts, he
said: ‘“‘ Thus a marriage, good by the laws of one country, is held
good in all others, where the question of its validity may arise.
For why? The question always must be: Did the parties intend
to contract marriage? And if they did, what in the place they
were in, is deemed a marriage, they cannot reasonably, or sensibly,
or safely, be considered otherwise than as intending a marriage
contract. The laws of each nation lay down the forms and solem-
nities, a compliance with which shall be deemed the only criterion
of the intention to enter into the contract. If those laws annex
certain qualifications to parties circumstanced in a particular way,
or if they impose certain conditions precedent on certain parties,
this falls exactly within the same rule ; for the presumption of law
is in the one case, that the parties are absolutely incapable of the
consent required to make the contract, and in the other case, that
they are incapable, until they have complied with the conditions
imposed. I shall only stop here to remark, that the English juris-
prudence, while it adopts this principle in words, would not, per-
ae in certain cases, which may be put, be found very willing to
act upon it throughout. Thus, we should expect that the Spanish
and Portuguese courts would hold an English marriage avoidable
between uncle and niece, or brother and sister-in-law, though
solemnized under papal dispensation ; because it would clearly be
avoidable in this country. But I strongly incline to think, that
our courts would refuse to sanction, and would avoid by sentence,
a marriage between those relatives contracted in the Peninsula,

? Andrews v. His Creditors, 11 Louis. R. 464, 479.
§ 259 a - 260.] FOREIGN CONTRACTS. 323

under dispensation, although beyond all doubt such a marriage
would there be valid by the lea loci contractis, and incapable of
being set aside by any proceedings in that country.” !

§ 260. (4.) Another rule, naturally flowing from, or rather il-
lustrative of, that already stated, respecting the validity of con-
tracts, is, that all the formalities, proofs, or authentications of
them, which are required by the lex loci, are indispensable to their
validity everywhere else.? And this is in precise conformity to the
rule laid down on the subject by Boullenois.2 Il faut, par rapport
@ la forme intrinsique et constitutive des actes, suivre encore la loi
du contrat. Quand la Loi exige certaines formalites, lesquelles
sont attachées aux choses mémes, il faut suivre la loi de la situa-
tion.* Burgundus has expressed the same doctrine in very point-
edterms. Et quidem in scriptura instrumenti, in solemnitatibus,
et ceremoniis, et generaliter in omnibus, que ad formam ejusque
perfectionem pertinent, spectanda est consuetudo regionis, ubi fit
negotiatio® Dumoulin says: Aut statutum loquitur de his, que
concernunt nudam ordinationem vel solemnitatem actus; et semper
inspicitur statutum vel consuetudinem loci, ubt actus celebratur, sive
in contractibus, sive in judiciis, sive in testamentis, sive in instru-

_mentis, aut aliis conficiendis.® And again: In concernentibus con-
tractum, et emergentibus, spectatur locus, in quo contrahitur ; et in
concernentibus meram solemnitatem cujuscunque actus, locus, in quo
ille celebratur.’7 Casaregis says: Communissima enim est distinc-

1 Warrender v. Warrender, 9 Bligh, R. 111, 112; post, § 226 c.

* See ante, § 123; 1 Burge, Comment. on Col. and For. Law, Pt. 1, ch. 1, p.
29, 30; 8 Burge, Comm. Pt. 2, ch. 20, p. 752 to p. 764; Foelix, Conflict des Lois,
‘Revue Etrang. et Franc. Tom. 7, 1840, § 40 to § 51, p. 346 to p. 8360; Warren-
der v. Warrender, 9 Bligh, 111; ante, § 259 ¢.

* Erskine’s Inst. B. 3, tit. 2, § 39, 40, 41, p. 514, 515; Boullenois, Quest. Mixt.
p- 5; Boubier, Cout. de Bourg. ch. 21, § 205; 2 Boullenois, Observ. 46, p. 467;
ante, § 240; 1 Hertii, Op. de Collis. Leg. § 4, n. 59, edit. 1737; Id. p. 209, edit.
1716. See also Voet, ad Pand. Lib. 5, tit. 1, § 51; 1 Boullenois, Observ. 23, p.
523; Id. p. 446 to p. 466; Henry on Foreign Law, 37, 38; Id. 224; 5 Pardessus,
Droit Comm. art. 1485; Mr. Justice Martin, in Depau v. Humphreys, 20 Martin,
R. 1, 22; ante, § 122, § 259 b; post, § 299 a.

* 2 Boullenois, Observ. 46, p. 467; ante, § 240; 1 Boullenois, Observ. 23,
p. 491, 492.

® Burgundus, Tract. 4, n. 7, n. 29; post, § 300 a; 2 Boullenois, Observ. 46,
p- 450, 451.

* Molin. Opera, Comment. Cod. Lib. 1, tit. 4, 1. 1, Conclus. de Statut. Tom. 3,
p- 554, edit. 1681; post, § 441, 479k.

7 Molin. Opera, tit. 1, De Fiefs, § 12, Gloss. 7, n. 37, Tom. 1, p. 224, edit. 1681.
824 CONFLICT OF LAWS. [cH. vm

tio, quod aut disseritur de‘modo procenendi in judicio, aut de juri-
bus contractis, cui robur et specialis forma tributa est a statuto, vel
a contrahentibus. Et in primo casu attendendum sit statutum loci,
in quo judicium agitatur ; in secundo, vero, casu attendatur statu-
tum loci, in quo fuit celebratus contractus.1_ Hertius is still more
direct. Si Lex actui formam dat, inspiciendus est locus actis, non
domicilii, non rei site; id est, si de solemnibus queratur, si de
loco, de tempore, de modo actis, ejus loci habenda est ratio, ubi
actus sive negotium celebratur? Christineus, Everhardus, and
other distinguished jurists, adopt the same doctrine.? And it seems
fully established in the common law. Thus if by the laws of
a country a contract is void, unless it is written on stamped paper,
it ought to be held void everywhere ; for unless it be good there,
it can have no obligation in any other country.* It might be dif-

1. Casaregis, Disc. Comm, 179, n. 59.

2 Hertii, Opera, Collis. Leg. § 4, n. 10, p. 1265; Id.n. 59, p. 148, edit. 1737; Id.
p- 179, p. 209, edit. 1716; post, § 3,8, 10,11. See also, Cochin, (Suvres, Tom.
1, p. 72, 4to edit.; Id. Tom. 3, p. 26; Id. Tom. 5, p. 697; D’Aguesseau, Zuvres,
Tom. 4, p. 637, 722, 4to edit.

® Everhard. Consil. 72, n. 11, p. 206; Id. n. 18, p. 207;. Id. 27, p. 209; post,
§ 300b.; Christin. Decis. 283, Vol. 1, p. 355, n. 1, 4, 5, 8, 9, 10, 11; post, § 300
c.; Molin. Comment. ad Consuit. Paris. tit. 1, § 12, Gloss. 7, n. 37, Tom. 1, p. 224;-
post, § 300 d.; 2 Boullenois, Observ. 46, p- 460, 461; ante, § 122. Dumoulin
pushes the doctrine further and says: Et est omnium Doctorum sententia, ubi-
cumque consuetudo, vel statutum locale, disponit de solemnitate, vel forma acti,
ligari etiam exteros ibi actum illum gerentes, et gestum esse validum, et efficacem
ubique, etiam super bonis solis extra territorium consuetudinis. Molin. Consil. 53,
§ 9; Molin. Oper. Tom. 2, p. 965, ed. 1681; Burge, Com. on Col. and For. Law,
Pt. 2, ch. 9, p. 865, 866; post, § 441.

* Alves v. Hodgson, 7 T. R. 237; Clegg v. Levy, 3 Campb. R. 166; Satter-
waith v. Doughty, 1 Busbee, Law, 314. But see Chitty on Bills (8th edit.), p.
143, note; and Wynne v. Jackson,-2 Russell, R. 351; 3 Burge, Comm. on Col.
and For. Law. Pt. 2, ch. 20, p. 762. The case of Wynne v. Jackson, 2 Russell,
R. 351, is certainly at variance with this doctrine. It was a bill, brought to stay
proceedings at law on a suit, brought in England by the holder against the ac- °
ceptor of bills of exchange, made and accepted in France, and which, in an action
brought in the French courts, had been held invalid for want of a proper French
stamp. The Vice-Chancellor held,'‘that the circumstance of the bills being
drawn in France, in such a form that the holder could not recover on them in
France, was no objection to his recovering on them in an English court.” This
doctrine is wholly irreconcilable with that in Alves v. Hodson, 7 T. R. 241, and
Clegg v. Levy, 3 Camp. R. 166; and if by the laws of France such contracts
were void, if not on stamped paper, it is equally unsupportable upon acknowl
edged principles. In the case of James v. Catherwood, 8 Dowl. & Ry. 190, where
§ 260.] FOREIGN CONTRACTS. 325

ferent, if the contract had been made payable in another country ;
or if the objection were not to the validity of the contract, but
merely to the admissibility of other proof of the contract in the
foseign court,! where a suit was brought to enforce it; or if the

asstimmpsit was brought for money lent in France, and unstamped paper receipts
were produced in proof of the loan, evidence was offered to show, that by the
laws of France such receipts required a stamp to render them valid; but it was
rejected by the court, and the receipts were admitted in evidence upon the
ground, that the courts of England could not take notice of the revenue laws of a
foreign country. But this is a very insufficient ground, if the loan required such
receipt and stamp to make it valid as a contract. And, if the loan was good per
se; but if the stamp was requisite to make the receipt good as evidence, then an-
other question might arise, whether other proof, than that required by the law of
France, was admissible of a written contract. This case also is inconsistent with
the case in 8 Camp. R. 166. Can a contract be good in any country, which is
void by the law of the place where it is made, because it wants the solemnities
required by that law? Would a parol contract made in England, respecting an
interest in lands, against the Statute of Frauds, be held valid elsewhere? Would
any court dispense with the written evidence required upon such a contract ? On
a motion for a new trial, the court refused it, Lord Chief Justice Abbot saying:
“The point is too plain for argument. It has been settled, or, at least, considered
as settled, ever since the time of Lord Hardwicke, that in a British court we can-
not take notice of the revenue laws of a foreign state. It would be productive
of prodigious inconvenience, if, in every case, in which an instrument was exe-
‘cuted in a foreign country, we were to réceive in evidence, what the law of that
country was, in order to ascertain whether the instrument was, or was not, valid.”
With great submission to his Lordship, this reasoning is wholly inadmissible. The
law is as clearly settled, as anything can be, that a,contract, void by the law of
the place where it is made, is void everywhere. Yet, in every such case, what-
ever may be the inconvenience, courts of law are bound to ascertain what the
foreign law is. And it would be a perfect novelty in jurisprudence to hold, that
an instrument, which, for want of due solemnities in the place where it was exe-
cuted, was void, should yet be valid in other countries. We can arrive at such a
conclusion only by overturning well-established principles. The case alluded to,
before Lord Hardwicke, was probably Boucher v. Lawson (Cases T. Hard. 85) ;
Id. 194, which was the case of a contract between Englishmen, to be executed in
' England, to carry on a smuggling trade against the laws of Portugal. Lord Hard-
wicke said, that such a trade was not only a lawful trade in England, but very
much encouraged. The case is wholly distinguishable from the present case; and
from that of any contract made in a country and to be executed there, which is
invalid by its laws. .A contract made in Portugal by persons domiciled there, to
carry on smuggling against its laws, would or ought to be held void everywhere.
See also 3 Chitty on Comm. and Manuf. ch. 2, p. 166.

1 Ludlow v. Van Rensellaer, 1 Johns. R. 93; James v. Catherwood, 3 Dowl. &
Ryl. 190. See Clarke v. Cochran, 8 Martin, R. 358, 360, 361; Brown v. Thorn-
ton, 6 Adolph. & Ellis, R. 185; Yates v. Thompson, 3 Clarke & Finn. R. 564.

CONFL. 28
326 CONFLICT OF LAWS. (cu. vim.

contract concerned real or immovable property, situated in another
country, whose laws are different, respecting which, as we shall
presently see, there is a difference of opinion among foreign jur-
ists, although in England and America the rule seems firmly estab-
lished, that the law rei site, and not that of the place of the con-
tract, is to prevail.1

§ 260 a. So, where the forms of public instruments are regu-
lated by the laws of a country, they must be strictly followed, to
entitle them to be held valid elsewhere. As, for example, if a pro-
test of a bill of exchange, made in another state, is required by
the laws of that state to be under'seal, a protest, not under seal,
will not be regarded as evidence of the dishonor of the bill.?

§ 261. The ground of this doctrine, as commonly stated, is, that
every person, contracting in a country, is understood to submit
himself to the law of the place, and silently to assent to its action
upon his contract. Paul Voet has expressed it in the following
language. Quid st de contractibus proprie dictis, et quidem eorum
solemnibus contentio; quis locus spectabitur, an domicilii contra-
hentis, an loci, ubi quis contrahit ? Respondeo, affirmanter ; Pos-
terius. Quia censetur quis, semet contrahendo, legibus istius loci,
ubi contrahit, etiam ratione solemnium subjicese voluisre. Ut que-
madmodum loci consuetudo subintrat contractum, ejusque est decla-
rativa ita etiam loci statutum.® It would, perhaps, be more cor-

? Post, § 363 to 373, 435 to 445; Feelix, Confl. des Lois, Revue Etrang, et
Franc. Tom. 7, 1840, § 40 to 50, p. 346 to p. 359.

* Ticknor v. Roberts, 11 Louis. R. 14; Bank of Roche&ter v. Gray, 2 Hill,
N. Y. Rep. 227. ‘

* P. Voet, De Stat. § 9, ch. 2, n. 9, p. 267; Id. p. 323, edit. 1661; Cochin
CEuvres, Tom. 5, p. 697, 4to edit. ; Fergusson on Marr. and Div. 397; 2 Boul-
lenois, Observ. 46, p. 475, 476; Id. 500, 501, 502; Casaregis, Disc. 179, § 56;
ante, § 122. — Boullenois, and some other jurists contest the universality of this
presumed assent to the law of the place of the contract; and assert, that this
principle generally and broadly taken, généralement et cruement (nuditer et
indistincte), is not correct. But where no other place of performance is pointed
out, it seems difficult to see, what other law is to govern. See 2 Boullenois,
Observ. 46, p. 457, 458, 459 ; Id. 501, 502 to 518; Bouhier, Cout. de Bourg. ch.
21, § 191, 192; Voet, De Stat. § 9, ch. 2, § 10, p. 269; Id. p. 825, edit. 1661.
Hertius even goes so far as to say, that the law of the place of a contract does
not govern, where the party is a stranger, ignorant of its laws: “ Non valet, is
exterus ignoravit statutum.” 1 Hertii, Opera, De Collis, Leg. § 4, p. 126, 127,
§ 10, edit. 1737; Id. p. 179, edit. 1716. See also, 2 Boullenois, Obser. 46, p. 502
Can a stranger, living in a country, plead ignorance of the laws of that country
in his defence? Is he not bound by them, whether he knows them or not?
§ 260 - 262.] FOREIGN CONTRACTS. 327

rect to say, that the law of the place of the contract acts upon it,
independently of any volition of the parties, in virtue of the gen-
eral sovereignty, possessed by every nation, to regulate all persons,
and property, and transactions, within its own territory And, in
admitting the law of a foreign country to govern in regard to con-
tracts made there, every nation merely recognizes, from a princi-
ple of comity, the same right to exist in other nations, which it
demands and exercises for itself? Some foreign jurists make an
exception from the general rule in cases of contract, made in a
foreign country by any persons, for the purpose of evading the
revenue system, or the local solemnities, prescribed by the laws of
their own country, respecting such contracts.? Thus, Paul Voet
lays it down among his exceptions. Nisi quis, quo in loco domici-
ii evitaret molestam aliquam vel sumptuosam solemnitatem, ade-
oque in fraudem sui statute nullé necessitate cogente alio proficis-
catur, et mox ad locum domicilii, gesto alibi negotio, revertatur.*
Nist etiam extra locum domicilii velit uti statuto sue patrie favor-
abili, quoad solemnia; tu forte contractus alibi ita gestus, ubi alia
solemnia erant adhibenda, ex equo et bono in patria, sustineretur.®

§ 262. Illustrations of this rule might be easily multiplied.
Thus, by the English and American law, contracts, which fall
within the purview of what is called the Statute of Frauds, are re-
quired to be in writing ; such are contracts respecting the sale of
lands, contracts for the debts of third persons, and contracts for
the sale of goods beyond a certain value. If such contracts made
by parol, (per verba,) in a country, by whose laws they are fe-
quired to be in writing, are sought to be forced in any other coun-
try, they will be held void, exactly as they are held void in the
place where they are made. And the like rule applies; vice versd,
where parol contracts are good by the law of the place, where they
are made ; but they would be void, if originally made in another

Huberus, on the contrary, holds, that the law of the place of the contract governs,
not only in respect to those who are domiciled, but those who are commorant
there. Huberus, Lib. 1, tit. 3, De Conflict. Leg. § 3.

1 See the opinion of Mr. Chief Justice Marshall in Ogden v. Saunders, 12
Wheat. R. 332, 338 to 347.

2 Blanchard v. Russell, 13 Mass. R. 1, 4.

* P. Voet, De Statut. § 9, ch. 2, n. 9, p. 268, Excep. 3, 4; Id. p. 324, edit.
1661.

* Ibid. Ex. 2, p. 268, edit. 1715; Id. p. 324, edit. 1661.

* Thid.
328 CONFLICT OF LAWS. [cH. vin.

place, where they are sought to be enforced, for want of certain
solemnities, or for want of being in writing, as required by the lo-
cal law. It is a very different question, as we shall presently see,
what rule is to prevail, where the contract respects real or immov-
able property, and the law of the place of the contract and that of
the situs rei require different forms and solemnities to give validity
to them.?

§ 262 a. But, suppose goods are bargained for by a merchant
in one country, to be paid for on delivery by a merchant in an-
other country, who is domiciled there, and has given the order
therefor ; and the law of the country, where the bargain is made,
does not require, that there should be any memorandum thereof in
writing ; but the law of the country, where the delivery is to be
made, does require such a memorandum in writing. By what law
is the bargain to be governed ; by the law of the place of the bar-
gain, or by that of the place of delivery? It seems to have been
thought, that, in such a case, the law of the place of delivery is to
govern.®

1 2 Boullenois, Observ. 33, p. 459, 460, 461; 1 Boullenois, Observ. 46, p. 492
to p. 498; Id. 499; Id. 506; Id. 523; Erskine’s Inst. B. 3, tit. 5, § 39, 40; Vidal
v. Thompson, 11 Martin, R. 23 ; Casaregis, Disc. 179, n. 59, 60; 1 Hertii, Opera,
De Collis. Leg. p. 148, § 59, edit. 1737; Boullenois, Quest. de la Contrar. des
Loix, p. 5; Livermore, Diss. p. 46, § 41; 1 Burge, Comm. Pt. 1, ch. 1, p. 29; 3
Burge, Comm. p- 2, ch. 20, p. 758 to p. 762, 769; Alves v. Hodgson, 7 T. R. 241;
Clegg v. Levy, 3 Camp. 166. But see Wynne v. Jackson, 2 Russell, R. 351; and
James v. Catherwood, 3 Dowl. & Ryl. 190; ante, § 260, and note, p. 216; post,
§ 862 to § 373. Hertius seems to think, that, if foreigners in another country
make a contract according to the law of their own country, (both belonging to
the same country,) in such a case, the contract will avail in their own country,
even if not made according to the lex loci contractés. 1 Hertii, Opera, De
Collis. Legum, § 10, p. 126, 128, edit. 1737; Id. p- 179, 180, 181, edit. 1716.
So is Voet, de Statut. § 9, ch. 2, Excep. 4, p. 268, edit. 1716; Id. p. 325, edit:
1661. But Boullepois has observed, that he does not find any authors, who are
of opinion, that such a contract made elsewhere, according to the law of their
own country, ought to have place even beyond the country. 2 Boullenois,
Obsery. 46, p. 459.

* Post, § 363 to 878, § 485 to 445; 1 Boullenois, Observ. 23, p. 448 to p.
472.

* The case of Acebal v. Levy, 10 Bing. R. 876, seems to have involved this
very question, although it does not appear to have attracted the attention either
of the bar or of the court. The case went off upon a supposed variance between
the counts and the evidence. The statement of the facts in the body. of the re-
port does not show whether the goods in the case, which were sold and shipped at
Gigon in Spain, by order of an agent of the defendants, were to be sent to the
§ 262-268.] FOREIGN CONTRACTS. 329

§ 263. (5.) Another rule illustrative of the same general prin-
ciple is, that the law of the place of the contract is to govern, as to
the nature, the obligation, and the interpretation of the coritract
locus contractis regit actum.1 Again: Quod si de ipso contractu
queratur (says Paul Voet) seu de naturd ipsius, seu de tis, que ex
naturé contractis veniunt, puta fidejussione, etc., etiam spectandum
est loci statutum, ubi contractus celebratur ; quod ei contrahentes
semet accommodare presumantur? First, as to the nature of the

defendants in England, were sold to be paid for in England after their arrival and
delivery there, or were to be paid for on their shipment. But Lord Chief Justice
Tindal, in delivering the opinion of the court said, that in point of fact the parol
evidence at the trial, established, that the price of the goods was to be the cur-
rent shipping price at Gigon ; and to be paid for on the delivery thereof in Eng-
land. The defendants refused to receive them; and the agent of the plaintiff
then ‘sold them for account of the plaintiff, and the action was brought for the
difference between the price of the purchase, and the sale thus made. One of
the objections taken was, that there was no memorandum in writing required by
the English Statute of Frauds. The objection was not sustained, because the
court thought, that there was a sufficient memorandum ; but the memorandum
varied from the counts in the declaration. But the court and bar seem to have
supposed, that the English Statute of Frauds did apply to the case ; which is cer-
tainly a matter open to much discussion, and as we shall presently see, (post,
§ 285, § 318,) has been thought open to a very different conclusion. See Vidal
v. Thompson, 11 Martin, R. 23, 24, 25. [* None of the cases cited by the learned
author seem to adopt the views which he here intimates in regard to contracts not
in writing, as required by the Statute of Frauds, but which were in fact executed
out of that country, but are sought to be enforeed in the English courts. It
seems to be here pretty distinctly intimated, that such contracts, if valid by the
law of the place, where they are made, may be made the basis of a recovery in
the courts of those countries, where the provisions of the Statute of Frauds ob-
tain. It is indeed acknowledged that this view seems not to have been enter-
tained by the court or bar in the case of Acebal v. Levy, supra. And we must
confess, that, upon principle, as the statute does not declare the contracts void,
but only that no action or suit, either in law or equity, shall be maintained upon
such contract, it ought to be regarded as a statute affecting the remedy rather than
the contract, and that wherever made it could not be sued in the courts of a
state, where the statute expressly provided that no such action shall be main-
tained. Post, § 635 b, 635 ¢.] :

‘11 Emér. Assur. ch. 4, § 8, p. 122, 125, 128. See Casaregis, Disc. 179, § 60;
Erskine’s Inst. B. 3, tit. 2, § 89, 40, p. 514, 515; Delvalle v. Plomer, 3 Camp. R.
47; Harrison v. Sterry, 5 Cranch, 289; Le Roy v. Crowninshield, 2, Mason, R.
151; Van Reimsdyke v. Kane, 1° Gallis. R. 871; 2 Kent, Comm. Lect. 37; ; Pp
394, ‘Test 39, p. 458 to 469, 3d edit.; 5. P. Ferguson v. Fyffe, 8 Clark & Finn.
121, 140. .

* P. Voet, De Stat. § 9, ch. 2, § 10, p. 269, edit. 1737; Id. p. 253, edit. 1661.
J. Voet is still more full on the same point. Voet, ad Pand. Lib. 4, tit. 1, § 29,

28 *
330 CONFLICT OF LAWS. [cH vi,

contract ; by which is meant those qualities, which properly belong
to it, and by law or custom always accompany it, or inhere in it.

p- 240, 241. Si adversus contractum (says he) aliudve negotium gestum fac-
tumve restitutio desideretur, dum quis aut metu, aut dolo, aut errore: lapsus,
damnum sensit contrahendo, transigendo, solvendo, fidejubendo, heriditatem
adeundo, aliove simili modo; recte interpretes statutisse arbitror, leges regi-
onis in qua contractum gestumve est id, contra quod restitutio petitur, locum
sibi debere vindicare in terminend& ipsd restitutionis controversia, sive res
illa, de quibus contractum est, et in quibus lzsio contigit, eodem, in loco, sive
alibi site sint. Nec intererit, utrum lesio circa res ipsas contigerit, veluti pluris
minorisve, quam xquum est, errore justo distractas, an vero propter neglecta
solemnia in loco contractiis desiderata. Si tamen contractus implementym
non in ipso contractus loco fieri debeat, sed ad locum alium sit destinatum,
non loci contracttis, sed implementi leges spectandas esse ratio suadet: ut ita,
secundum cujus loci jura implementum accipere debuit contraectus, juxta ejus
etiam leges resolvatur. Boullenois says, that Jurists distinguish four things in
contracts. (1.) Substantiala contractuum; (2.) Naturalia contractuum ;
(3.) Accidentalia contractuum; (4.) Solemnia contractuum. He says: Ils
appellent. substantiala contractuum,, tout ce qui sert & la composition
intérieure des contrats; c’est-d-dire, tout ce qui est de l’essence déter-
minant la nature de chaque acte, et sans quoi il ne seroit pas un tel
acte. Substantialia sunt, que ita formam et essentiam uniuscujusque actis
constituunt, ut sine iis talis actus esse non possit, cum forma dat unicuique
esse id, quod est. Suivant cette définition, le consentement des Parties dang
tous les contrats, la chose, et les prix de la chose dans un contrat de vente,
pertinent ad substantialia contractuum et ad speciem contractis contituendam ;
et elles sont tellement nécessaires, intrinsiques et constitutives d’un contrat, que
sine lis actus qui geritur, non valeat. Naturalia, contractuum, ce sont les suites
et les, engagements qui fluent et derivent de la nature et de l’espéce des contrats,
dont il s’agit. Naturalia contractuum dicuntur ea, que pendent et manant 4
natura et potestate cujusque actés ; sed ejus formam non constituunt. Telle est
la garantie dans la vente. Mais par rapport & ces engagements qui dérivent des
contrats, on en distingue de deux sortes. I y en a, que sunt interna, intrinseca,
et inseparabilia ; c’est-a-dire, qui sont liés et attachés & chaque espéce de con-

» Pothier, as well as other jurists, distinguish between the essence, the nature,
and the accidents of contracts; the former includes whatever is indispensable, to
the constitution of it; the next, whatever is included in it, without being ex-
pressly mentioned by operation of law, but is capable of a severance without
destroying it; and the last, those things which belong to it only by express agree-
ment. Without meaning to contest the propriety of this division, I am content
to include the two former in the single word, nature, as quite conformable to our
English idiom. Cujas also adopts the same course. See Pothier, Oblig. n. 5
See also 2 Boullenois, Observ. 46, p. 460, 461, 462; Bayu v. Vavasseur, 10 Mar-
tin, R. 61; Merlin, Répertoire Conyention, § 2, n. 6, p. 357; Rodenhurg, De
Div. Stat. tit. 2, ch. 5, § 16; 2 Boullengis, Appendix, 50; 1 Boullengis, 688; 3
Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 848 to p. 851.
§ 263.] FOREIGN CONTRACTS. 3381

Foreign jurists are accustomed to call such qualities naturalia con-
tractis.| Ea enim, que auctoritate legis vel consuetudinis contrac-
tum comitantur, eidem adherent, naturalia é doctoribus appellantur.

trats, et qui sont propres & chacun de ces contrats, suivant la differente nature,
dont ils sont. Que nature contractfis coherent,.et sunt veluti_proprize posses-
siones, proprize affectiones ab essentialibus cujusque contractis principii senate.
Telle est, dans un contrat de vente, la nécessité que le domaine de la chose ven-
due, soit transféré & 1’ Acquéreur; et a, cet, égard on ne peut se soustraire & ces
choses; gn ne pourroit pas en effet stipuler, que le domine de la chose vendue
ne passeroit pas 4 l'acquéreur ; et il y en a qui ne naissent que de V’usage ordi-
naire ou on est d’en convenir, et qui, & raison de ce, sont toujours présumés,
étre convenus par les Parties. Que ex consuetudine etiam insunt contractibus,
que consuetudo in naturam, quasi contractus transiit; et on les appelle, externa
et, separabilia.. Telle est la garantie de fait dans une cession, et & cet égard on
peut y déroges, les Parties ‘peuvent stipuler qu'il n’y aura, d’autre garantie que
celle que l’ on appelle garantie de droit. Accidentalia contractiis, ce sont les
choses, qui ne sont point de la substance constitutive de l’ acte, qui ne fluent et
ne dérivent point de sa nature et de son espéce, et ne tombent point en conven-
tion ordinaire; mais qui ne se rencontrent dans les contrats que parceque les
parties en conviennent. Accidentalia contractiis ea sunt, que neque substantiam
contractuum constituunt, neque ex natura et potestate contractfis dimanant, sed
pro voluntate contrahentium, adjici contractibus solent, veluti varia pacta. Je
voudrois ajouter, et encore celles, qui ne sont requises que par des dispositions
légales, & la vérite, mais pures locales comme la nécessité de donner caution pour
la garantie d’un contrat, laquelle a lieu dans certains endroits. Enfin, il y a,
solemnia contractuum ; et on en distingue de deux sortes, solemnia intrinseca, et
solemnia extrinseca. Solemnia intrinseca sunt ea, que insunt in ipsa forma
cujusque actiis, neque separari ad ea possunt; telles sont les choses qui apper-
tiennent A la preuve et 2 Vauthenticité de l’acte, et qui comme telles sont partie
de ce qui constitue l’étre et l’existence de cet acte ; aussi sont-elles appellées par
quelques-uns substantialia contractuum. Solemnia extrinseca sunt ea, que actui
per se formam habenti, et ultra conventionem contrahentium sed ad ipsam conven-'
tionem roborandam, extrinsecus accedunt, et ce sont les choses, qui. n’appartenant
en rien 4 la composition intrinsique de Vacte, sont seulement requises, post actum
originatum, pour lui procurer son exécution. La solemnité intrinsique est telle-
ment nécessaire, que si on l’omet, l’acte n’est pas acte,,il n’a nul étre, nulle ex-
istence ; Yomission vitiat et corrumpit actum; raison pour laquelle on la place
volontiers inter substantialia contractuum. Mais & l’égard de la solemnité ex-
trinsique, il n’en est pas toujours de méme,, aliquando obmissa. impedit execu-
‘tionem ex omni parte. 1 Boullenois, Observ. 23, p. 446 to p. 448. See also, 2
Burge, Comm. on Col, and For. Law, Pt. 2, ch. 9, p. 848, 849, 850; 3 Burge,
Comm. on Col..and For. Law, Pt. 2, ch. 20, p. 758, 759, 762, 763 ; Don.v. Lippe
man, 5 Clark & Fin. 1, 12, 13.

11 Boullenois, Observ. 23, p. 446; 2 Boullenois, Observ. 46, p. 460, 461;
Voet, De Stat. § 9, ch. 10, § 10, p. 287; Id. p. 325, edit. 1661; Hertius, De
Collis. Leg Tom. 1, § 10, p..127; Id. p. 179, 180, edit. 1716 ;, post, § 301 fF
332 CONFLICT OF LAWS. [cH. Val.

Lex enim altera est quasi natura, et in naturam transit. Atque
quoad naturalia contractuum etiam forenses statuta loci contractts
observare debent Thus, whether a contract be a personal obliga-
tion, or a real obligation ; whether it be conditional, or absolute ;
whether it be the principal, or the accessory ; whether it be that of
principal or surety ; whether it be of limited or of universal oper-
ation; these are points properly belonging to the nature of the
contract, and are dependent upon the law and custom of the place
of the contract whenever there are no express terms in the con-
tract itself, which otherwise control them. By the law of some
countries, there are certain joint contracts, which bind each party
for the whole, in solido ; and there are other joint contracts, where
the parties are, under circumstances, bound only for several and
distinct portions.? In such case the law of the place of the contract
regulates the nature of the contract, in the absence of any express
stipulations.2 These may, therefore, be said to constitute the nature
of the contract.* :

1 Lauterback, Diss. 104, Pt. 3, n. 58, cited 2 Boullenois, Observ. 46, p. 460.

2 4 Burge, Comment. on Col. and For. Law, Pt. 2, ch. 7, § 2, p. 722 to p. 735;
post, § 322.

8 Pothier on Oblig. n. 261 to 268; Van Leeuwen, Comment. B. 4, ch. 4, § 1;
Fergusson v. Flower, 16 Martin, R. 312; 2 Boullenois, Observ. 46, p. 463; Code
Civil of France, art. 1197, 1202, 1220, 1222; Id. Code de Comm. art. 22, 140.
One may see, how strangely learned men will reason on subjects of this nature,
by consulting Boullenois. He puts the case of a contract made in a country,
where all parties would be bound in solido, and by the law of their own domicil,
they would be entitled to the benefit of a division, and vice versa; and asks, What
law is to govern? In each case he decides, that the law should govern, which is
most favorable to the debtor. “ Ainsi, les obligés solidaires ont contracté sous une
loi, qui leur est favorable ; j’embrasse cette loi; elle leur est contraire, Jembrasse
la loi de leur domicile.” 2 Boullenois, Observ. 46, p. 463, 464. See also Bouhier,
ch. 21, § 198, 199.

* See Henry on Foreign Law, 39. Pothier on Obligatious, n. 7, has explained
the meaning of the words, the nature of the contract, in the following manner.
“ Things which are only of the nature of the contract are those, which, without
being of the essence, form a part of it, though not expressly mentioned; it being
of the nature of the contract, that they shall be included and understood. These
things have an intermediate place between those, which are of the essence of the
contract, and those which are merely accidental to it, and differ from both of them.
They differ from those, which are of the essence of the contract, inasmuch as the
contract may subsist without them, and they may be excluded by the express
agreement of the parties; and they differ from things, which are merely acci-
dental to it, inasmuch as they form a part of it without being particularly ex-
pressed, as may be illustrated by the following examples. In the contract of sale
§ 263, 264.] FOREIGN CONTRACTS. 333

§ 264. An illustration may be taken from a case often put by
the civilians. By the law of some countries a warranty is implied
in all cases of sale ; by that of others, it is not. Suppose a contract
of sale is made in any of the former countries, by parties domiciled
in any of the latter countries. If the contract is to be executed in
the country where it is made, a warranty will be implied, as an in-
cident arising from the nature of the contract; if it is to be exe-
cuted in the place of the domicil of the parties, for reasons, which
we shall presently see, no warranty will be implied By the civil
law, there is an implied warranty, as to the quality and soundness

the obligation of warranty, which the seller contracts with the purchaser, is of the
nature of the contract of sale; therefore the seller, by the act of sale, tontracts
this obligation, though the parties do not express it, and there is not a word re-
specting it in the contract; but as the obligation is of the nature and not of the
essence of the contract of sale, the contract of sale may subsist without it: and if
it is agreed, that the seller shall not be bound to warranty, such agreement will
be valid, and the contract will continue a real contract of sale. It is also of the
nature of the contract of sale, and as soon as the contract is completed by the
consent of the parties, although before delivery, the thing sold is at the risk of
the purchaser ; and that, if it happens to perish without the fault of the seller, the
loss falls upon the purchaser, who is, notwithstanding the misfortune, liable for
the price; but as that is only of the nature, and not of the essence of the contract,
the contrary may be agreed upon. When a thing is lent to be specifically re-
turned [commodatur,] it is of the nature of the contract that the borrower shall
be answerable for the slightest negligence in respect to the articles lent. He con-
tracts this obligation to the lender by the very nature of the contract, and without
anything being said about it. But as this obligation is of the nature, and not of
the essence of the contract, it may be excluded by an express agreement, that
the borrower shall only be bound to act with fidelity, and shall not be respon-
sible for any accidents merely occasioned by his negligence. It is also of the
nature of this contract, that the loss of the thing lent, when it arises from inevita-
ble accident, falls upon the lender. But as that is of the nature, and not of the
essence of the contract, there may be an agreement to charge the borrower with
every loss, that may happen until the thing is restored. A great variety of other
instances might be adduced from the different kinds of contracts. Those things,
which are accidental to a contract, are such, as, not being of the nature of the
contract, are only included in it by express agreement. For instance, the allow-
ance of a certain time for paying the money due; the liberty of paying it by
instalments ; that, of paying another thing instead of it; of paying to some other
person than the creditor; and the like, are accidental to the contract ; because
they are not included in it without being particularly expressed.”

1 Pothier, Oblig. n. 7; 2 Boullenois, Obser. 46, p. 475, 476; Id. 460 to 463;;
Code Civil of France, wat 1135; Voet, De Statut. § 9, ch. 2, § 10, p. 269, edit.
1715; Id. p. 325, edit, 1661; 3 Burge, Comm. on Col, and For. Law, Pt. 2, ch. 20,
p, 769, 770.
334 CONFLICT OF LAWS. [cH. Vu.

of goods sold ; by the common law, there is not.1_ A sale of goods
in England would be governed by the common law; a sale in a
foreign country, under the civil law, would be governed by that
law, as to this implied warranty. Boullenois lays down this as one
of his fundamental rules, in the interpretation of contracts. When-
ever (says he) the controversy respects movables, of which an im-
mediate delivery is made, the law of the place of the contract is to
govern; adopting on this point the doctrine, although not the
reasoning of Colerus. Consuetudo si quidem loci ubi negotium
geritur, ita subintrat ipsum contractum ; ut secundum leges loci
intelligatur actus fuisse celebratus, quamvis ea de re nihil fuerit
expressum.?

§ 265. Another illustration may be borrowed from an actual
decision under the common law. By the law of England an ac-
ceptance of a bill of exchange binds the acceptor to payment at all
events. By the law of Leghorn, if a bill is accepted, and the
drawer fails, and the acceptor has not sufficient effects of the
drawer in his hands at the time of acceptance, the acceptance be-
comes void. An acceptance in Leghorn is governed by this latter
law ; and under such circumstances it has been held void, and not
obligatory upon the acceptor.®

§ 266. Secondly, the obligation of the contract, which, though
often confounded with, is distinguishable from, its nature. The
obligation of a contract is the duty to perform it, whatever may be
its nature. It may be a moral obligation, or a legal obligation, or
both. But when we speak of obligation generally, we mean legal
obligation, that is, the right to performance, which the law confers
on one party, and the corresponding duty of performance, to which
it binds the other.5 This is what the French jurists call le lien du
contrat (the legal tie of the contract), onus conventionis, and what
the civilians generally call vinculum juris, or vinculum obligationis.§

* Pothier, Pand. Lib, 19, tit. 1, art. 5,§48 to 51; 2 Black. Comm. 451; 2 Kent,

Comm. Lect. 39, p. 478 to 481, 3d edition.

* 2 Boullenois, Observ. 46, p. 475, 476.

* Burrows v. Jemino, 2 Str. R. 733; 2 Eq. Abr. 526; S. P. Pardessus, Tom. 5,
art. 1495, p. 270, 271.

* See 2 Boullenois, Observ. 46, p. 454, 460, 462, 463,464; 3 Burge, Comm. on
Col. and For. Law, Pt. 2, ch. 20, p. 764, 765.

® See 3 Story, Comm. on Constitution, § 1372 to 1879; Ogden v. Saunders,
12 Wheaton, 218; Pothier on Oblig. art, 1, n. 1, p- 178, 174, 175.

* 2 Boullenois, Observ. 46, p. 458, 459, 460.
§ 264-266 a.] FOREIGN CONTRACTS. 835

1

The Institutes of Justinian have thus defined it. Obligatio est
juris vinculum, quo necessitate adstringimur alicujus rei solvende,
secundum nostre civitatis jura. A contract may in its nature be
purely voluntary, and possess no legal obligation. It may be a
mere naked pact (nudum pactum). It may possess a legal obliga-
tion ; but the laws may limit the extent and force of that obligation
im personam, or in rem. It may bind the party personally, but not
bind his estate ; or it may bind his estate, and not bind his person.
The obligation may be limited in its operation or duration ; or it
may be revocable or dissoluble in certain future events, or under
peculiar circumstances.”

§ 266 a. An illustration may be readily seen in the common
case of a Scotch heritable bond. It is well known, that by the
common law of England a bond, which is also a charge on land, as
for example, a bond, accompanying a mortgage of land as a se-
curity, is primarily, in a contest between the heir and the adminis-
trator, a charge on the personal estate, and of course the heir has
aright in equity to be relieved therefrom, so far as there are per-
sonal assets to discharge the bond.? In the Scotch law the same
rule prevails as to movable debts, which are primarily and properly.
chargeable upon the personal assets.4 But, as to heritable bonds,
a different rule prevails; and they are primarily a charge on the
real estate of the debtor.6 Now, suppose a question should arise
in England, as, indeed, it has arisen, whether in the case of a
Scotch movable debt, the heir, upon payment of it was entitled to
be exonerated therefrom, and to receive the amount out of the
personal assets in England. Upon principle it should seem clear,
that he would be entitled to the relief and exoneration ; for the
heir, having by the law of the country, where the land lies, a right
to such relief and exoneration, would have the same right in re-
gard to the same debt in every other country, since it properly be-

1 Inst. Lib. 3, tit. 14; Pothier, Pandect. Lib. 44, tit. 7, P. 1, art. 1, § 1; Po-
thier, Oblig. n. 173, 174.

2 See 2 Boullenois, Observ. 46, p. 452, 454; Code Civil of France, art. 1168
to 1196.

® 1 Story on Eq. Jurisp. § 571, 574; Earl of Winchelsea v. Garetty, 2 Keen,
R, 293, 309.

* Earl of Winchelsea v. Garetty, 2 Keen, R. 298, 309, 310; post, § 487,

529.
5 Post, § 486 to 489, § 529; Deommond - v. Drummond, 6 Bro. Parl. RB. by
Tomlins, 601.
336 CONFLICT OF LAWS. [cH. Vint.

longs to the nature, obligation, and interpretation of the contract.'
On the other hand a Scotch heir, paying a heritable bond, would

1 Earl of Winchelsea v. Garetty, 2 Keen, R. 293, 308, 309, 310. Upon this
occasion Lord Langdale said: “ By the law of England, the personal estate ix
the primary fund for the payment of all debts contracted by the deceased per-
son, whose estate it was. By the law of Scotland movable debts are primarily
and properly chargeable upon the personal estate. The creditor may, indeed,
enforce payment against the real estate in the hands of the heir; but if he does
so, the heir is entitled to relief against the executors out of the personal estate ;
in other words, according to the law of Scotland, the real estate, though subject
to the payment of movable debts, is only a subsidiary fund for the purpose of pay-
ment. Payment by the heir does not extinguish the debt, but vests in him the
right to recover the amount against the personal estate and constitutes him a
creditor against the personal estate; and whether he can enforce payment
against the personal estate, which is to be distributed according to the laws of
another country, which makes the personal estate the primary fund for the pay-
ment of debts, is the question. Prima facie there would seem to be no difficulty;
the heir, having by the law of the country in which the land lies, a right to relief
or exoneration, would seem to be at liberty to make that right available in a
country, where the personal estate is the primary fund for the payment of all
debts. But it is objected, that in all the opinions, upon which the finding of the
Master rests, it has been assumed, that the law of domicil makes no difference ;
whereas it is clear, that the domicil determines the law by which the personal
estate is to be distributed ; and that, although it be true, that in England, the per-
sonal estate must be applied in exoneration of the English heir of real estate, yet,
that the right of the heir to be exonerated is founded on the law peculiar to Eng-
land, and that a foreign heir of foreign lands is not entitled to the same relief as an
English heir of English lands. The law of England, it is said, affords no relief to for-
eign real estate out of English personal estate ; and although the law of Scotland
regulates the administration of the real estate, and provides that the real estate,
if applied in payment of personal debts, shall be exonerated out of the personal
estate, the proposition must be limited to personal estate, of which the distribu-
tion is regulated according to the law of Scotland, and consequently to the per-
sonal estate of debtors domiciled in Scotland. Several cases were cited. They
sufficiently establish the propositions, which are not disputed on either side ; and
Drummond v. Drummond establishes, that a Scotch heir is ultimately liable to
pay heritable debts, which have, in the first instance, been paid out of the per-
sonal estate distributable according to the law of England ; but no case has oc-
curred, in which it has been decided, that the Scotch heir, having paid movable
debts, is entitled to be relieved out of the personal estate distributable according
to the law of England; and that is the question here. The personal estate is
taken by the administrator, according to the law of England, subject to the pay-
ment of all the debts of the intestate. The real estate is taken by the heir, ac-
cording to the law of Scotland, subject to the payment of all movable debts, but
with a right of relief out of the personal estate, and subject to the payment of all
heritable debts without such right of relief. As to the heritable debts, in respect
of which there is no such right of relief, the heir is not entitled to the benefit of the
|

§ 266 a, 267.] FOREIGN CONTRACTS. 337

be entitled to no such relief or exoneration, because the debt is
primarily by the local law a charge on the real estate ;! and if such
heritable bond should be paid by an English administrator out of
the personal assets, he would be entitled to reimbursement from
the Scotch heir.? .

§ 267. It would be easy to multiply illustrations under this head.
Suppose a contract by the law of one country to involve no per-
sonal obligation, (as was supposed to be the law of France in a
particular case which came in judgment,®) but merely to confer a

English law, which makes the personal estate subject to the payment of all debts.
The Scotch law, which makes the heir ultimately liable to the payment of such
debts, and which governs the distribution of the real estate, prevails in favor of
the persons entitled to the personal estate distributable according to the laws of
England. As to personal debts, in respect of which there is such a right to relief,
the English law subjects the personal estate to all debts; the Scotch law relieves
the real estate, as far as it can consistently with the claims of the creditors. The
heir, by paying, satisfies the creditor, but at the same time acquires for himself a
right of demand against the executor ; he may, if he pleases, take an assignation
for the debt, and make it available; but that is not necessary, because, without
any assignation, his own claim to relief subsists and constitutes him a creditor
against the personal estate. Under these circumstances the question does not
appear to me to be fully stated, when it is said to be, whether a foreign heir of
foreign lands is entitled to the same relief, as an English heir of English lands.
The case is, that a foreign heir of foreign lands is, in respect of those lands, sub-
sidiarily liable to pay debts, to which the personal estate, distributable according
to the law of England, is primarily liable ; and that, having paid the debt, he is
by the law of the country, in which the land lies, constituted a creditor upon the
personal estate distributable according to the law of that country. And it is
under these circumstance, and without reference to English tenures, or the title
to exoneration, which an English heir may possess, that the question arises,
whether the subsidiary debtor, or the person, who by the law of a foreign coun-
try is constituted surety for the payment of debts, primarily chargeable on an-
other fund, and paying the debts by force of, and according to the law, which
éonstitutes him a creditor upon that other fund, is, or is not entitled to make his
title as to creditors available in another country, where the personal estate is dis-
tributable, and where the law makes the personal estate primarily liable to the
payment of all debts. And, upon consideration of the case, I am of opinion, that
the right of relief or demand against the personal estate, which in the administra-
tion of the real estate by the law of Scotland is vested in the heir, who has paid
movable debts, is capable of being made available in England, where the personal
estate is the primary fund for the payment of all debts.”

1 Drummond v. Drummond, 6 Bro. Parl. R. by Tomlins, 601; post, § 486 to
489, 529; Elliot v. Lord Minto, 6 Madd. R. 16; Earl of Winchelsea ». Ga-
retty, 2 Keen, R. 293, 308 to 310.

* Robertson on Personal Succession, 209 to 214.

® Melan v. Fitz James, 1 Bos. & Pull. 138.

CONFL. 29
838 CONFLICT OF LAWS. [cH. vm.

right to proceed in rem; such a contract would be held every-
where to involve no personal obligation whatsoever. « Suppose, by
the law of a particular country, a mortgage for money borrowed,
should, in the absence of any express contract to repay, be limited
to a mere repayment thereof out of the land, a foreign court would
refuse to entertain a suit giving to it a personal obligation. Sup-
pose a contract for the payment of the debt of a third person, ina
country where the law subjected such a contract to the tacit con-
dition, that payment must first be sought against the debtor and
his estate ; that would limit the obligation to a mere accessorial
and secondary character; and it would not be enforced in any
foreign country, except after a compliance with the requisitions of
the local law. Sureties, indorsers, and guarantees are, therefore,
liable everywhere, only according to the law of the place of their
‘contract. Their obligation, if treated by such local law, as an
accessorial obligation, will not anywhere else be deemed a princi-
pal obligation. So, if by the law of the place of a contract, its
obligation is positively and ex directo extinguished after a certain
period by the mere lapse of time, it cannot be revived by a suit in
a foreign country, whose laws provide no such rule, or apply it
only to the remedy. To use the expressive language of a learned
judge, it must be shown, in all such cases, what the laws of the
foreign country are, and that they create an obligation which our
laws will enforce.* :

§ 267 a. This doctrine was fully recognized in a recent case,
where the question was as to the rights of parties, growing out of
various bonds, executed in a state which was governed by the com-
mon law, some of the bonds being designed as security or indem-
nity to a surety on the other bonds. The court said: “ These
different bonds were entered into in States of the Union where the
common law prevails, and consequently the rights and liabilities
‘of the parties are to be measured by that system of jurisprudence ;
and whatever the plaintiff (the assignee of the surety) would be
entitled to recover (upon the indemnity bond) in a court of law or

1 Aymar v. Sheldon, 12 Wend. R. 439.

* See Pothier on Oblig. n. 407; Trimbey v, Vignier, 6 Carr. & Payne, 253
‘S.C. 1 Bing. N. C. 151, 159; 4 Moore & Scott, 695 ; post, § 314, 316 a; 3 Burge,
‘Comm. on Col. and For. Law, Pt. 2, ch, 20, p. 764 to p. 766.

® See Le Roy v. Crowninshield, 2 Mason, R. 151; Pothier, Oblig. n. 636 to
639 ; Voet, ad Pand. Lib. 4, tit. 1, § 29, ad finem.

* Lord Chief J. Eyre, Melan v. Duke of Fitz James, 1 Bos. & Pull. 141.
§ 267 - 268 a.] FOREIGN CONTRACTS. 339

equity in the State where the transaction originated, he is entitled
to in this court, in the present form of action.’ !

§ 268. Let us take another case, which has actually passed into
judgment. By the common law, heirs are not bound by the sim-
ple contracts of their ancestor, but only by instruments under
seal, declaring them expressly bound. By the law of Louisiana,
the heirs are ipso facto bound by such simple contracts of their
ancestors.2, If a simple contract is made in a State governed by
the common law, it cannot be enforced in Louisiana against the
heirs of the debtor, although they are domiciled in Louisiana.®
The remedy must be sought through the instrumentality of an ad-
ministration of the assets there.*

§ 268 a. To this head, of the obligation of contracts, may also
be appropriately referred the consideration of the nature and ex-
tent of the obligation of contracts, in respect to their dissolubility.
or indissolubility in point of duration. This topic has been al-
ready incidentally discussed in examining the nature and obliga-
tion of the contract of marriage, which indeed is truly a contract ;
but, properly speaking, it is something more, an institution of civil
society.6 It has been often urged, especially in regard to the con-
tract of marriage, that indissolubility is of its very essence ; and

* Mr. Justice Bullard, in King v. Harman’s Heirs, 6 Louis. R. 607, 617.

? Brown v. Richardson, 13 Martin, R. 202. — Mr. Justice Porter, in delivering
the opinion of the court in this case said: “ We recognize the distinction made
by the plaintiffs’ counsel between the right and the remedy, and agree with him,
that contracts should be expounded according to the laws of the country where
they are made, and enforced according to the regulations which prevail where the
debtor is found. It is that distinction, which gives the defendants immunity in
this case. For in order to ascertain who is debtor, we must recur to the laws of
the country where the contract was made; and if these laws do not make per-
sons standing in the character of the appellants liable, under the circumstances
now in proof, they cannot be made so by a change of jurisdiction. It is true,
that, according to our jurisprudence, the heir is obliged to pay the debts of the
ancestor, if he accepts the succession unconditionally ; but it does not follow, that
the same rule exists in other countries. An embarrassment is created in con-
sidering the case, from a feeling, which it is difficult to check, that there exists
something like a natural obligation on the child to pay the parent’s debts; par-
ticularly if he takes any of his property. But, that obligation is, in fact, nothing
but the creature of positive law, and is of course subject to all the modification
which the policy of different States may induce them to adopt.” Id. p. 208.

® Brown v. Richardson, 13 Martin, R. 202.

* Thid.

5 Ante, § 108 a; § 218 to 230; Id. 226 c, note.
340 CONFLICT OF LAWS. [cx vin.

that, what is of the essence of a contract, must be judged of ac-
cording to the lex loci contractés. It has been remarked by an
eminent judge that this is somewhat a vague, and for its vague-
ness a somewhat suspicious, proposition, and that there are many
other things, which may just as well be reckoned of the essence of
the contract, as this. He afterwards added: ‘“ The fallacy of the
argument, ‘ that indissolubility is of the essence,’ appears plainly
to be this; it confounds incidents with essence ; it makes the rights
under a contract, or flowing from and arising out of it, parcel of
the contract ; it makes the mode in which judicatures deal with
those rights, and with the contract itself, part of the contract ; in-
stead of considering, as in all soundness of principle we ought,
that the contract and all its incidents and the rights of the parties
to it, and the wrongs committed by them respecting it, must be ~
dealt with by the courts of the country where the parties reside,
and.where the contract is to be carried into execution.”! These
considerations are certainly entitled to great weight; but they
only show the intrinsic difficulty of laying down any general rules
on such complicated subjects, which shall be of universal applica-
tion. It will probably be found, that the proposition that a con-
tract cannot be dissolved, except in the manner and under the cir-
cumstances prescribed by the law of the place where it was made,
if true at all, must be asserted with many qualifications and ex-
ceptions. Contracts of marriage, and other contracts of a peculiar
nature, may perhaps require a different exposition in this respect
from other ordinary pecuniary contracts. And even if a contract
be indissoluble by the lex loci contractés, except in a special mode,
it may nevertheless be thought reasonable, that that rule should
not prevail upon a change of domicil, as to an act.of the parties
done in the latter place, where another mode is prescribed, or al-
lowed for its dissolution. But of this we shall speak hereafter.

§ 269. Cases sometimes occur, in which the tribunals of a for-
eign country are called upon to decide upon the law of another
country, where the contract is made ; and they by mistake misin-
terpret that law. In such a case if they discharge the parties
from the obligation of the contract, in consequence of such misin-

* Lord Brougham in Warrender v. Warrender, 9 Bligh, R. 114; ante, § 226 ¢,
note. ‘

* Warrender v. Warrender, 9 Bligh, 114 ; ante, § 226 c, note.
* See post, § 851 a; ante, § 226 a, note.
§ 268 a- 270.] FOREIGN CONTRACTS. 841

terpretation of the foreign law, that discharge will not be held ob-
ligatory upon the courts of the country where the contract was
made.’ A recent case has occurred on this subject. A bill of ex:
change, drawn in France, and indorsed there, and accepted and
payable in England at a banker’s, was passed by an indorsee in
discharge of an antecedent debt; and upon presentment for pay-
ment, it was dishonored, and the banker’s clerk by mistake can-
celled the acceptance, and then wrote on it, “cancelled by mis-
take.” Afterwards the indorser, who had so passed the bill in
discharge of his debt, cited all the parties, and among others, the
creditor and holder of the bill, before the tribunals of France, who
decreed, that the cancellation operated as a suspension of legal
remedies against the acceptor, and consequently discharged the
other parties, the indorsers, as well as the drawer. A suit was
afterwards brought by the creditor against the debtor-indorser in
England ; and it was held, that the courts of France had mistaken
the law of England, as to the effect of the cancellation ; and that
the plaintiff was entitled to recover against the defendant the full
amount of the debt, notwithstanding the decree in the French
courts? ‘

§ 270. Thirdly. The interpretation of contracts. — Upon this
subject there would scarcely seem to be any room for doubt or dis-
putation. There are certain general rules of interpretation recog-
nized by all nations, which form the basis of all reasoning on the
subject of contracts. The object is to ascertain the real intention
of the parties in their stipulations ; and when the latter are silent,
or ambiguous, to ascertain, what is the true sense of the words
used, and what ought to be implied in order to give them their
true and full effect.2 The primary rule in all expositions of this

1 Novelli v. Rossi, 2 Barn. & Adolph. 757.

2 Thid.

® See Lord Brougham’s striking remarks on this subject already cited ante,
§ 226 ce. In Prentiss v. Savage, 13 Mass. R. 23, Mr. Chief Justice Parker said:
“Tt seems to be an undisputed doctrine, with respect to personal contracts, that
_the law of the place where they are made shall govern in their construction ; ex-
cept when made with a view to performance in some other country, and then
the law of such country is to prevail. This is nothing more than common
sense and sound justice, adopting the probable intent of the parties as the rule
of construction. For when a citizen of this country enters into a contract in
another with a citizen or subject thereof, and the contract is intended to be there‘
performed, it is reasonable to presume, that both parties had regard to the law of

29 *
842 CONFLICT OF LAWS. ’ [cH. vin.

sort is that of common sense, so well expressed in the Digest. In
conventionibus contrahentium voluntas, potius quam verba, spectari
placuit. But in many cases the words used in contracts have dif-
ferent meanings attached to them in different places by law and
by custom. And where the words are in themselves obscure, or
ambiguous, custom and usage in a particular place may give them
an exact and appropriate meaning. Hence, the rule has found
admission into almost all, if not into all, systems of jurisprudence,
that, if the full and entire intention of the parties does not appear
from the words of the contract, and if it can be interpreted by any
custom or usage of the place where it is made, that course is to be
adopted. Such is the rule of the Digest. Semper in stipulationi-
bus, et in ceteris contractibus id sequimur, quod actum est, erit
consequens, ul id sequamur, quod in regione in qué actum est, fre-
quentatur.2 Conservanda est consuetudo regionis et civitatis (says
J. Sande) ubi contractum est. Ommnes enim actiones nostre (si
non aliter fuerit provisum inter contrahentes) interpretationem re-
cipiunt a consuetudine loci, in quo contrahitur2 Usage is, indeed,
of so much authority in the interpretation of contracts, that a con-
tract is understood to contain the customary clauses, although
they are not expressed, according to the known rule, In contracti-

the place where they were, and that the contract was shaped accordingly. And
it is also to be presumed, when the contract is to be executed in any other coun-
try, than that in which it is made, that the parties take into their consideration
the law of such foreign country. This latter branch of the rule, if not}so ob-
viously founded upon the intention of the parties as the former, is equally well
settled as a principle in the law of contracts.” Mr. Chancellor Walworth, in
Chapman v. Robertson, (6 Paige, R. 627, 680,) used equally strong language.
“It is an established principle,” (said he,) “that the construction and validity of
personal contracts, which are purely personal, depend upon the laws of the place
where the contract is made, unless it was made with reference to the laws of some
other place or country where such contract in the contemplation of the parties
thereto was to be carried into effect and performed.” 2 Kent, Com. Lect. 89, p.
457, 458, 3d edit.; 3 Burge, Com. on Col. and For. Law, Pt. 2, ch. 20, p. 752 to
p. 764,

* Dig. Lib. 50, tit. 16, 1. 219.— Many rules of interpretation are found in
Pothier on Obligations, n. 91 to 102; in Fonblanque on Equity, B. 1, ch. 6, § 11,
to 20, and notes; 1 Domat, Civil Law, B. 1, tit. 1,§ 2; 1 Powell on Contracts,
370 et seq. ; Merlin, Répertoire, Convention, § 7, 366.

* Dig. Lib. 50, tit. 17, 1. 34; 1 Domat, Civil Law, B. 1, tit. 1, § 2, n. 9; 2 Boul-
lenois, Observ. 46, p. 490; 8 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20,
p. 775, 776.

'* J, Sande, Op. Comm. de Reg. Jur. 1. 9, p. 17.
§ 270, 271.] FOREIGN CONTRACTS. 843

bus tacite veniunt ea, que sunt moris et consuetudinis.1 Thus, if
a tenant is by custom to have the outgoing crop, he will be entitled
to it, although not expressed in the lease.2 And if a lease is en-
tirely silent, as to the time of the tenant’s quitting, the custom of
the country will fix it? By the law of England, a month means
ordinarily in common contracts, as in leases, a lunar month; but
in mercantile contracts it means a calendar month. A contract,
therefore, made in England for a lease of land for twelve months,
would mean a lease for forty-eight weeks only. A promissory
note, to pay money in twelve months, would mean in one year, or
in twelve calendar months.6 If a contract of either sort were re-
quired to be enforced in a foreign country, its true interpretation
must be everywhere the same, that is, according to the usage in
the country, where the contract was made.

§ 271. The same word, too, often has different significations in
different countries. Thus, the term wsance, which is common
enough in negotiable instruments, means, in some countries, a
month, in others, two or more months, and in others, half a month.
A note payable at one usance must be construed everywhere ac-
cording to the meaning of the word in the country, where the con-
tract is made.? There are many other cases illustrative of the
same principle. A note made in England for 100 pounds, would
mean 100 pounds sterling. A like note made in America, would
mean 100 pounds in American currency, which is one fourth less
in value. It would be monstrous to contend, that, on the English
note, sued in America, the less sum only ought to be recovered ;
and on the other hand, on the American note, sued in England,
that one third nfore ought to be recovered.®

1 Pothier, Oblig. n. 95; Merlin, Répertoire, Convention, § 7; 2 Kent, Comm.
Lect. 39, p. 555, 3d edit.

1 Wigglesworth v. Dallison, Doug. R. 201, 207.

3 Webb v. Plumer, 2 B. & Ald. 746.

* 2 Black. Comm. 141; Catesby’s Case, 6 Coke, R. 62; Lacon v. Hooper, 6
T. R. 224; 3 Burge, Comm. on Col. and For. Law, Pt. 3, ch. 20, p. 776, 777.

° Thid.

* Chitty on Bills, (8th edit. 1833,) p. 406; Lang v. Gale, 1 M. & Selw. 111;
Cockell v. Gray, 3 B. & Bing. 187; Leffingwell v. White, 1 Johns, Cas. 99.

™ Chitty on Bills, (8th edit. 1833,) p. 404, 405. See also 2 Boullenois, Observ.
46, p. 447.

® See also Powell on Contracts, 376; 2 Boullenois, Observ. 46, p. 498, 503 ;
Henry on Foreign Law, Appendix, 233; Pardessus, Droit, Comm. art. 1492;
3 Burge, Comm. on Col. and For. Law, Pt. 3, ch. 20, p. 772, 773 ; post, § 272 a,
§ 307, 308,
344 CONFLICT OF LAWS. [cH. viii.

§ 271 a. Another illustration may easily be suggested which is
not quite so simple in its circumstances. Suppose a contract: is
made in England between two Englishmen for the sale of lands
situated in Jamaica; and the vendee agreed to give £20,000 for
the lands, without specifying in what currency. The difference
between Jamaica pounds currency and English sterling pounds
currency, by the par of exchange, exclusive of any premium on
bills of exchange on England, is forty per cent. Consequently,
£28,000 Jamaica currency would constitute only £20,000 sterling.
The question might then arise, according to which currency the
purchase-money is to be paid. In the absence of all expressions
and circumstances, from which a different intention may be in-
ferred, the interpretation of the contract would be, that it was pay-
able in the currency of the country where the contract was made,
and not in that of the situs of the property.! Another illustration
may be in case of a sale of lands situated in one country, and the
contract made in another, and the sale to be a certain number of
acres for a gross price, or at a specific price per acre, the mode of
measuring an acre, or the contents thereof, being different in dif-
ferent countries. The question might arise, whether the acre was
to be according to the measurement in the one country, or in the
other. Now, upon this very point different opinions and judg-
ments have been held by different jurists and tribunals on the con-
tinent of Europe; some holding, that the lex loci contractus ought
to govern, and others, that the lex situs ought to govern the ad-
measurement.” Choppin has reported a case, where the highest
tribunal of Orleans held, that the laws of the place of the contract
should determine the admeasurement of the acret But he disap-
proves of it, and says: Justior tamen est diversa opinio, venditi
agrimensuram ex lege petendam situs prediorum non loci pacte
venditionis.2 John Voet holds the same opinion : Si res immobilis
ad certam mensuram debeantur, et ea pro locorum diversitate varia
stt, in dubio solvi debent juxta mensuram loci, in quo site sunts
In respect to movables he holds the opposite opinion, that they are

+ 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 860, 861.

* Thid. 858, 859, i 4

* Choppini, Opera, De Feudis Andeg. Tom. 2, Lib. 2, tit. 3, n. 10, p. 182, 133,

edit. 1611; 2 Boullenois, Observ. 46, p. 497; 2 Burge, Comm. on Col. and For.
Law, Pt. 2, ch. 9, p. 858, 859.

* J. Voet, Lib. 46, tit. 8, n. 8, p. 949; 2 Burge, Comm. Pt. 2, ch. 9, p. 859;
2 Boullenois, Observ. 46, p. 497,
§ 2714, 272.) FOREIGN CONTRACTS. 345

governed by the law of the place of the contract. Dumoulin
holds the same opinion as to immovables: that they are governed
by the lex situs. Unde stantibus mensuris diversis, si fundus ven-
ditur ad mensuram, vel affirmatur, vel mensuratur, non continuo
debet inspici mensura, que viget in loco contractis, sed in dubio
debet attendi mensura loci, in quo fundus debet metiri, et tradi, et
executio fieri.1 He admits, that other jurists differ from him, and
that other circumstances may vary this interpretation. Et ita te-
nendum, nisi ex aliis circumstantiis constet, de qua mensura sense-
rint.2 Indeed, he denies, that any universal rule can be estab-
lished. The same doctrine, that the lex situs ought to govern in
the like cases, would seem to be favored, if not positively estab-
lished, in the jurisprudence of England and America.*

§ 272. The general rule, then, is, that in the interpretation of
contracts, the law and custom of the place of the contract are to
govern in all cases where the language is not directly expressive
of the actual intention of the parties, but it is to be tacitly inferred
from the nature, and objects, and occasion of the contract.6 The
rule has been fully recognized in the courts of common law; and
it has been directly decided by those courts, that the interpretation
of the contract must be governed by the laws of the country where
the contract is made.6 And the rule is founded in wisdom, sound
policy, and general convenience. Especially in interpreting am-
biguous contracts, ought the domicil of the parties, the place of
execution, the various provisions and expressions of the instru-
ment, and other circumstances, implying a local reference, to be

.

1 Molin. Oper. Comm. ad Cod. Lib. 1, tit, 1,1. 1, Tom. 3, Conclus. de Statut.
p. 554.

2 Thid. 3 Ibid. ; post, § 274 a.

* Ante, § 270.

5 See the opinion of the court delivered by Mr. Justice Martin, in the case of
Depau v. Humphreys, 20 Martin, R. 1, 8, 9, 18, 22, 23, 24; Bent v. Lauve, 3
Louis. Ann. R. 88; Mr. Justice Porter, in the case of Morris v, Eves, 11 Martin,
R. 730; Courtois v. Carpenter, 1 Wash. Cir. R. 376.

* Trimby v. Vignier, 1 Bing. New Cases, 151, 159; post, § 816 a; De la Vega
v. Vianna, 1 Barn. & Adolph. R. 284; British Linen Company v. Drummond, 10
Barn. & Cresw. 903; Bank of United States v. Donally, 8 Peters, R. 368, 372;
Pope v. Nickerson, 3 Story, R. 484; Harrison v. Sterry, 5 Cranch, 289; Wilcox
v. Hunt, 13 Peters, R. 878, 379. — We shall presently see, that the same rule is
adopted in the interpretation of wills. See Lansdowne'v. Lansdowne, 2 Bligh, R.
60,88, 89, 91, and cases there cited. Holmes v. Holmes, 1 Russ. & Mylne, 660,
662; Chapman v. Robertson, 6 Paige, R. 627, 630; post, § 479 a to 479 n.
346 CONFLICT OF LAWS. [cH. vil

taken into consideration.1 Thus Gothofredus says: Consuetudo
regionis sequemur, et ideo conducere, concedere, contrahere, et
quidvis agere pro modo regionis in dubio presumitur. Nam sicut
natura non separetur a subjecto, ita nec ad consueto. Quod est de.
consuetudine habetur pro pacto2 Burgundus is more full and.
pointed to this point, as we have already seen. John & Sande ex-.
presses the same doctrine in these words. Quando verba sunt du
bia et ambigua, tunc inspicimus, quod verisimiliter a contrahentibus
actum sit, aut quid Testator senserit.*

§ 272 a. One of the simplest cases, to illustrate the rule, is the.
case of a promissory note, made and dated in a particular country, .
payable in a currency which has the same name, but is of a differ-
ent value in different countries. The question is, what currency.
is presumed to be intended by the parties? The answer would
seem to be equally certain, the currency of the country where it is
payable. Suppose, then, a promissory note dated in Dublin, and.
thereby the maker promises to pay to the payee, or order, one.
hundred pounds in forty days after date; and the note is after-
wards sued in England; the question would arise, whether the
note meant a hundred pounds English currency, or Irish currency...
This would depend upon another question, where the note was.
payable, as no place of payment was named, in England or. in Ire-.
land. Now, by the rules of law in the interpretation of all such.
contracts, when no other place of payment is named, the contract
is treated as a contract made in and governed by the law of the.
place where it is made and dated, and therefore it would be inter-;
preted to mean one hundred pounds Irish currency, because pay-
able there, and, indeed, payable everywhere, where the maker
should afterwards be found. The converse rule would be applied,
if the note, though drawn in the same terms, and dated at Dublin,
were upon its face made payable in London.®

? Ante, § 237. See Lansdowne v. Lansdowne, 2 Bligh, Parl. R. 60, 87; post,
§ 479 m to 479 n.

* Gothofred. ad Pand. Lib, 50, tit. 17, 1. 34; Le Brun, Traité de la Commu-
nauté, Liv. 1, ch. 2, § 46.

® Ante, § 237; 2 Boullenois, Observ. 46, p- 451.

* J. a Sandé, Op. Comm. De Rig. Juris. 1. 9, p. 17.

* Kearney v. King, 2 Barn. & Ald. R. 301; Sprowle v. Legge, 1 B. & Cresw.
16.

* Ibid. ; ante, § 271; post, § 317; 3 Comm. on Col. and For. Law, Pt. 2, ch.
20, p. 772, 778; 2 Burge, Comm. Pt. 2, ch. 9, p. 860, 861, 862. }
§ 272 - 274.] FOREIGN CONTRACTS. 347

-§ 278. Boullenois, while he admits the general propriety of the
rule, locus contractis regit actum, contests its universality! He
seems to think, and some other jurists have adopted the same
opinion, that where a contract is made between foreigners belong-
ing to the same country; who are not domiciled, but are merely
transient persons, in the place where the contract is made, it ought
to be governed by the law of their own country; and that this
rule applies, @ fortiori, where they are ignorant of the laws of the
place where the contract is made.? Without undertaking to say,
that the exception may not be well founded in particular cases, as
to persons merely in transitu, it may unhesitatingly be said, that
nothing but the clearest intention on the part of foreigners, to act
‘upon their own domestic law, in exclusion of the law of the place
‘of the contract, ought to change the application of the general
rule. And, indeed, even then, if the performance of the contract
is to be in the same country where it is made, it seems difficult,
upon principle, to sustain the exception. Huberus has applied
the same rule to those who are domiciled, and to those who are
merely commorant, in the place of the contract; that the law of
the place of the contract is to govern.*

§ 274. Grotius has also affirmed the doctrine in a general form.
“If” (says he) “a foreigner makes a bargain with a native, he
‘shall be obliged by the laws of his state; because he, who enters
into a contract in any place, is a subject for the time being, and
‘must be obedient to the laws of that place.” Quare eliamst pere-
grinus cum cive paciscatur, tenebitur illis legibus ; quia qui in loco
-aliquo contrahit, tanquam subditus temporarius legibus loci subjici-
"12 Boullenois, Observ. 46, p. 456, 489, 490.

* 2 Boullenois, Observ. 46, -p. 455 to p. 458; Id. p. 495, 496, 497, 501, 502, 503,
and note. — Boullenois (in p. 494,495) says: To return to our question upon the
interpretation of contracts or testaments, I think the sole rule, which can be pre-
scribed, is that of determining it according to the different circumstances. These
different circumstances will lead us sometimes in favor of the law of the place of
‘the contract, sometimes in favor of that of the situs, often in favor of that of the
‘domicil, and often in favor of that where the payment is to be made. And hence
he agrees to Dumoulin’s opinion in his Commentary on the Code Molin. Comment.
ad Cod. Lib. 1, tit. 1, 1. 1, Conclus. de Statut. p. 554; ante, § 263; Bartol. Com-
ment. ad Cod. Lib. 1, tit. 1, 1. 1, n. 13; post, anes 3 Burge, Comm. on Col. and
For. Law, Pt. 2, ch. 20, p. 775, 776, 777.

® See Pardessus, Droit Comm. n. 182, 191; 1 Emérigon, ch. 4, § 8.

* Huberus, Lib. 1, tit. 8, De Confl. Leg. § 2, 3; ante, 261, note. See Liver-
more’s Diss. p. 46, § 42.
848 CONFLICT OF LAWS. ; [cu. vim.

tur Emérigon follows Grotius, and adopts his very language.
“ A stranger,” (says he,) ‘“ who contracts in the territories of a
state, is held as a temporary subject of the state, subject to the
laws thereof. L’étranger, qui contracte dans les terres d'un état,
est tenu, comme sujet @ temps de cet état, de se soumettre auc lois du
pays Lord Stowell, in a passage in one of his most celebrated
judgments, has refused to acknowledge ignorance of the law of a
foreign country to be any foundation to release a party from the
obligation of a contract made there.” ?

§ 274 a. Dumoulin, while he admits the general rule to be, that
the law and custom of the place, where a contract is made, ought
generally to govern in the interpretation of the contract, at the
same time denies that it is of universal application. On the con-
trary, he holds that there are cases, in which it ought to be disre-
garded. “Et animadvertendum,’ (says he,) “ quod doctores pes-
simé intelligunt, d.1., quia putant ruditer et indistincté, quod debeat
ibi inspici locus et consuetudo, ubi fit contractis, et sic jus in loco
contractis. Quod est falsum; quinimo jus est in tacita et verisi-
militer mente contrahentium. Fac, civem Tubingensem peregré
euntem per urbem Italie, vendere ibi domum suam Tubinge vel
Auguste, an teneatur dare duos fidejussores evictionis, et de duplo,
prout probat statutum loci contractis. Et omnes dicunt, quod sic,
im quo errant, non intelligentes praxim, et hic non perspicientes
mentem, d. l., que est practica. Ideo contrarium dicendum; quia
venditor non est, subditus statutis Italia, et statutum illud non con-
cernit rem, sed personam, et sic non potest ligare exteros, qui non
censentur sese obligare ad statutum, quod ineunt. Ideo non tene-
tur cavere, nisi secunddm morem sui domicilii, vel secunddm jus
commune ; nec verum est, quod istud statutem concernat solemnita-
tem et modum contrahendi. Quinimo respicit effectum, meritum,
et decisionem, et dicta lex malé allegatur ad materiam prime con-
clusionis. Faciamus civem Tubingensem hic vendere vicino domum
Geneve, vel Tiguri sitam, ubi sit statutum, quod venditor fundi te-
netur de duplo cavere, per duos idoneos cives, ne teneantur litigare
extra forum suum. Iste est proprius casus et verus, intellectus, d.
l. in qua dicitur; Venditorem teneri cavere secundum consuetudi-

1 Grotius, B. 2, ch. 11, § 5, n. 2.

* Emérigon, Assur, ch. 4, § 8, Tom. 1, p. 124,125. See also Casaregis, Disc.
179, n. 60, 61, 62.

* Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 60, 61.

\
§ 274-275.] FOREIGN CONTRACTS. 349

nem loci contractds ; quod est intelligendum non de loco contractts
fortuiti, sed domicilii, prout crebrius usuvenit, immobilia non vendi
peregré, sed. in loco domicilii. Lex autem debet adaptari ad casus
vel hypotheses, que solent frequenter accidere: nec extendi ad ca-
sus raro accidentes. Saltem quando contrarium apparet de ratione
diversitatis, vel quando sequeretur captio ingerentis. Quia qud
ratione dicta lex, excludit externum locum sitis rei, in quo contra-
hentes non habent domicilium ; multo fortius excluditur locus fortu-
itus contractds, in quo partes peregré transeunt. Patet : Quia quis
censetur potius contrahere in loco, in quo debet solvere, quam in
loco, ubi fortuito transiens contrahit. Sed hic venditor eo ipso se
obligat, solutionem et traditionem realem, per se, vel per alium, fa-
cere in loco, in quo fundus situs est: ergo ibi contraxisse censetur.
Et tamen in dubio non attenditur consuetudo loci contractés. Quia
venditor illi non subest, nec ejus notitiam habere presumitur, ergo
multo minus consuetudo loci fortuiti, quam magis ignorat.

§ 275. Cases, illustrative of the importance of the general rule,
may be easily found in the jurisprudence of modern nations. “In
some countries,”’ (says Boullenois,) “ the laws give a certain sense
and a certain effect to clauses in an instrument, while the laws of
another country give a sense and effect more extensive or more re-
strained. For example, at Toulouse, the clause, si sine liberis,
added to a substitution, means a gradual substitution ; and in
other places, it means only a condition, if other circumstances do
not concur.”’? The full effect of this example may be felt only by
a civilian. But an analogous one may be put from the common
law. A contract in England for an estate there situate, or a con-
veyance of such an estate, to A., and the heirs of his body begot-
ten, would, before the statute de donis, have been interpreted, to
mean a contract for, or a conveyance of, a conditional fee-simple ;

* Molin. Opera, Comm. ad Cod. Lib. 1, tit. 1, 1 1, Conclus. de Statut. Tom. 3,
p. 554; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 851, 852; Id. p.
858, 859. ‘

2 2 Boullenois, Observ. 46, p. 447, 518,519. In the French law substitution
is either simple or gradual. It is called simple, when one person only is substi-
tuted for another in a donation ; as a donation to A., and if he refuses or dies to
B. It is ‘called gradual, when there are several substitutes in succession ; as a
donation to A., and if he refuses or dies to B., and if B. refuses or dies to C., and
if C. refuses or dies to D., etc., etc. Pothier, Traité des Substitutions, art. ,
Prelim. ; Id. § 8, art. 1. See also, 3 Burge, Comm. on Col. and For. Law, Pt. 2,
ch. 20, p. 855, 856, 857. ~ '

CONFL. 30
850 CONFLICT OF LAWS. [cH. vin

but since that statute, it would be construed to be a contract for
or a conveyance of a fee-tail.1 The rights: growing out of these
different interpretations are (as every common lawyer knows) ex-
ceedingly different ; and to construe them otherwise, than accord-
ing to the common law, would defeat the intention of the parties,
and uproot the solid doctrines of law. The sense of the terms,
and the legal effect of the instrument ought, and, it is to be pre-
sumed, would be everywhere ascertained by the same mode of in-
terpretation wherever the point should come, directly or ane
in judgment, in any foreign country.

§ 276. The language of marriage contracts and seuilocients
must, in like manner, be interpreted according to the law of the
place where they are contracted. A moment’s consideration would
teach us the inextricable confusion, which would ensue from dis-
regarding the habitual construction put by courts of law upon in-
struments of this sort, executed in England, or in France, and
brought into controversy in any other country. The whole system
of interpretation of the clauses of marriage contracts and settle-
ments in England is in a high degree artificial; but it is built
upon uniform principles, which could not now be swept away with-
out leaving innumerable difficulties behind. What could a foreign
court do in interpreting the terms, heirs of the body, children, issue,
connected with other words of limitation, or description, in a mar-
riage settlement or a will made in England? The intricate branch
of English jurisprudence, upon which the true exposition of such
clauses depends, has tasked and exhausted the diligence and learn-
ing of the highest professional minds; and requires almost the
study of a life to be thoroughly mastered.2 Probably the system.
of interpretation in similar cases in France does not involve fewer
difficulties, dependent upon the nice shades of meaning of words
in different connections, and the necessary complexity of matri-
monial rights and nuptial contracts, and prospective successions.’
The general rule is in no cases more firmly adhered to, than in
cases of nuptial contracts and settlements, that they are to be con-
strued and enforced according to the lex loci contractis.4

1 2 Black. Comm. 110 to 112.

? See Fearne on Contingent Remainders, passim.

* See 2 Boullenois, Observ. 46, p. 489 to 494, 503, 504, 505, 513; Martyn ».
Fabrigas, Cowper, R. 174.

* Feaubert v. Turst, Prec. Ch. 207; De Couche v. Savatier, 3 Johns. Ch. R.
190.
§ 275 - 278.] FOREIGN CONTRACTS. 351

§ 276 a. The same doctrine was fully recognized in a recent case
in England. In that case the parties were domiciled and married
in Scotland, and executed a nuptial contract, containing mutual
provisions for the benefit of the parties and their offspring. After-
wards the wife, upon the death of her mother in England, became
entitled to certain stock; and the husband filed a bill in chancery
to have the stock conveyed to him by the trustee thereof, without
a settlement being made upon his wife in regard thereto. The
question was, whether the wife was entitled to the common equity
to a settlement out of the stock, according to the English law. It
appeared, that, by the law of Scotland, acting upon the interpreta-
tion and construction of the provisions of the nuptial contract, the
wife was not entitled to any such equity to a settlement. The
Lord Chancellor held, that the court, in administering the rights
of the parties under that nuptial contract, was bound to give the
same construction and effect to it in England, as the Scottish law
would give to it; and he therefore awarded the stock to the hus-
band without any settlement.

-§ 277. The same rule is also univerally acknowledged in rela-
tion to commercial contracts.2, Where the terms of an instrument,
executed by foreigners in a foreign country, are free from ob-
scurity, it will be construed according to the obvious import of
those terms, unless there is some proof that, according to the law
of the foreign country, the true interpretation of them would be
different.2 But where a particular interpretation is established,
that must be followed. Indeed, the courts of every country must
be presumed to be the best expositors of their own laws, and
of the terms of contracts made with reference to them. And no
court, professing to be governed by principle, would assume the
power to declare, that a foreign court misunderstood the laws of
their own country, or the operation of them on contracts made
there.4

§ 278. The remarks already suggested upon this rule cannot be

1 Anstruther v. Adair, 2 Mylne & Keen, R. 513, 516. See also Breadal-

bane v. Chandos, cited in 4 Burge, Comm. on Col. and For. Law, Appendix,
749, 755.

2 Pardessus, Droit Comm. Tom. 5, n. 1491, 1492; 2 Kent, Comm. Lect. 39,
p- 457, 458, 3d edit. ;

8 King of Spain v. Machado, 4 Russell, R. 225; post, § 286.

4 Mr. Chief Justice Marshall, in Elmendorf v. Taylor, 10 Wheaton, R. 159;
Mr. Justice Porter, in Saul v. His Creditors, 17 Martin, R. 587. 3
302 CONFLICT OF LAWS. [cH. ViIL.

better enforced, than by a quotation from an opinion of the late
learned Mr. Chief Justice Parker, ‘That the laws of any state
cannot by any inherent authority, be entitled to respect extra-ter-
ritorially, or beyond the jurisdiction of the state which enacts them,
is the necessary result of the independence of distinct sovereign-
ties. But the courtesy, comity, or mutual convenience of nations,
amongst which commerce has introduced so great an intercourse,
has sanctioned the admission and operation of foreign laws relative
to contracts. So, that it is now a principle generally received, that
contracts are to be construed and interpreted according to the laws
of the state in which they are made, unless from their tenor it is
perceived, that they were entered into with a view to the laws of
some other state. And nothing can be more just than this princi-
ple. For when a merchant of France, Holland, or England, enters
into a contract in his own country, he must be presumed to be
conusant of the laws of the place where he is, and to expect that
his contract is to be judged of and carried into effect according to
those laws ; and the merchant with whom he deals, if a foreigner,
must be supposed to submit himself to the same laws, unless he
has taken care to stipulate for a performance in some other coun-
try, or has in some other way excepted his particular contract from
the laws of the country where he is.’’+

§ 278 a. Hence it is adopted by the common law, as a general
rule in the interpretation of contracts, that they are to be deemed
contracts of the place where they are made, unless they are posi-
tively to be performed or paid elsewhere. Therefore, a note made
in France, and payable generally, will be treated as a French note,
and governed accordingly by the laws of France, as to its obligation
and construction. So, a policy of insurance, executed in England
on a French ship for the French owner, on a voyage from one
French port to another, would be treated as an English contract,
and, in case of loss, the debt would be treated as an English debt.
Indeed, all the rights and duties, and obligations growing out of
such a policy, would be governed by the law of England, and not
by the law of France, if the laws respecting insurance were differ-
ent in the two countries.?

§ 279. It has sometimes been suggested, and especially by for-
eign jurists, that contracts, made between foreigners in a foreign

1 Blanchard v. Russell, 13 Mass. R. 1, 4, 5.
* Donn v. Lippman, 5 Clark & Finn. 1, 18, 19, 20; post, § 817.
§ 278-279 a.] FOREIGN CONTRACTS. 358

country, ought to be construed according to the law of their own
country, whenever they both belong to the same country.1 Where
they belong to different countries, some controversy has arisen as
to the point, whether the law of the domicil of the debtor, or that
of the creditor ought to prevail.2, Where a contract is made in a
country between a citizen and a foreigner, it seems admitted, that
the law of the place where the contract is made, ought to prevail,
unless the contract is to be performed elsewhere.? In the com-
mon law of England and America, all these niceties are discarded.
Every contract, whether made between foreigners, or between for-
eigners and citizens, is deemed to be governed by the law of the
place where it is made, and is to be executed.*

§ 279 a. Hertius has put a case, where a contract made in a
country is subject to a condition, and the performance of that con-
dition takes place in another country, the laws of which are differ-
ent ; and the question is, whether the laws of the one, or those of
the other ought to govern the contract. He answers, that the laws
of the country where the contract was made; because the condi-
tion, when fulfilted, refers back to the time of the contract. Quia
conditio retrotrahitur ad tempus conventionis.© J. & Sandé adopts
the same doctrine almost in the same words.®

1 Ante, § 273; 2 Boullenois, Observ. 46, p. 455 to p. 458; Id. p. 495 to p.
593. — Hertius seems to make the following distinction. After having stated the
general rule to be; Si lex actui formam dat, inspiciendum est locus actiis, non
domicilii, non rei site; he adds: Nimirum valet hec Regula, etiam in extero,
qui actum celebrat, licet enim hic subjectus revera maneat patrie sux, tamen
illud, de acto primo est intelligendum, quoad actum vero secundum subditus
illius loci sit temporarius, ubi agit, vel contrahit, simulque ut forum ibi sortitur,

. ita-statutis ligatur. Non valet si exterus ignoravit statutum. Hertii, Opera, Tom.
1, De Collis. Leg. § 4, n. 10, p. 126, 128; Id. edit. 1716, p. 179 to 181.

2 See Feelix, Conflict. des Lois, Revue Etrang. et Franc. 1840, Tom. 7, § 21 to
23, p. 200 to 209; Id. § 40 to 50, p. 46 to 49; 3 Burge, Comm. on Col. and For.
Law, Pt. 2, ch. 20, p. 775, 776.

® See Livermore’s Dissert. § 42, p. 46; 1 Hertii, Opera, De Collis. Leg, § 10,
p- 126, 128; Id. p. 179 to p. 181, edit. 1716; Voet, de Statut. § 9, ch. 2, Excep. .
4; Id. § 10, p. 268, edit. 1715; Id. p. 325, edit. 1661. But see contra, 2 Boul-
lenofe, Observ. 46, p. 459; ante, § 263, § 273, 274.

* Smith v. Meade, 3 Cann: R. 253; De Sobry v. De Laistre, 2 Harr. and
Johns. R. 193, 228; Peck v. Hibbard, 26 Verm. 703; Jacks v. Nicholls, 5 Barb.
38,

* Hertii, Opera, De Collis. Leg. § 4, n. 54, p. 147, edit. 1737; Id. p. 207, edit.
1716.

® J. & Sandé, Comm. ad Reg. Jur. 1. 9, p. 18; post, § 287.

30 *,
354 CONFLICT OF LAWS. [cH. VIL

§ 280. The rules already considered, suppose that the perform-
ance of the contract is to be in the place where it is made, either
expressly or by tacit implication.1 But where the contract is,
either expressly or tacitly, to be performed in any other place, there
the general rule is, in conformity to the presumed intention of the
parties, that the contract, as to its validity, nature, obligation, and
interpretation, is to be governed by the law of the place of perform-
ance. This would seem to be a result of natural justice ; and the
Roman law has adopted it as a maxim: Contraxisse unusquisque
in eo loco intelligitur, in quo ut solveret, se obligavit.2 And again,
in the law, aut ubi quisque contraxerit. Contractum autem non
utique eo loco intelligitur, quo negotium gestum sit; sed quo sol-
venda est pecunia.t The rule was fully recognized, and acted on
in a recent case by the Supreme Court of the United States, where
the court said, that the general principle, in relation to contracts
made in one place to be executed in another, was well settled ;
that they are to be governed by the laws.of the place of perform-
ance.®

§ 281. Paul Voet has laid down the same rule. Hinc, ratione
effectis et complimenti ipsius contractis, spectatur ille locus, in
quem destinata est solutio: id, quod ad modum, mensuram, usuras,
&c., negligentiam, et moram post contractum initum accedentem
referendum est.6 He puts the question: Quid si in specie, de num-
morum aut redituum solutione difficultas incidat, si forte valor sit
immutatus, an spectabitur loci valor, ubi contractus erat celebratus,

_ an loci, in quem destinata erat solutio. Respondeo; ex generali
regula, spectandum esse loci statutum, in quem destinata erat so-
lutio.’ So that, according to him, if a contract is for money or

1 Ante, § 242.

* 2 Kent, Comm. Lect. 37, p. 393, 394, and Lect. 39, p.'459, 3d edit. ; Casaregis,
Disc. 179; 1 Emérigon, c. 4, § 8, Voet, de Stat. § 9, ch. 2, § 15, p. 270, edit. 1715;
Id. p. 328, edit. 1661 ; Boullenois, Quest. Contr. des Lois, p. 339, etc.; 3 Burge,
Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 771, 772; Donn v. Lippman, 5
Clark & Finnell. R. 1, 13,19; Fergusson v. Fyffe, 8 Clark & Finnell. 121. —

® Dig. Lib. 44, tit. 7,1. 21; ante, § 233.

* Dig. Lib. 42, tit. 5, 1. 8.

®° Andrews v. Pond, 13 Peters, R. 65. See Frazier v. Warfield, 9 Smedes &
Marshall, 220.

* P. Voet, de Stat. § 9, ch. 2, p. 270, § 12, 14, 15, 16, p. 269 to p. 273, edit.
1715; Id. p. 326 to p. 829, edit. 1661; post, § 301 f. '

" P. Voet, De Stat. § 15, 16, p. 271, edit. 1715; Id. p, 328, edit. 1661; post,
301 f s e:
§ 280, 281.] FOREIGN CONTRACTS. 355

goods, the value is to be ascertained at the place of performance,
and not at the place where the contract is made.1 And the same
rule applies to the weight or measure of things, if there be a diver-
sity in different places.2 Everhardus adopts the same doctrine.
Quod, estimatio rei debite consideratur secundum locum, ubi des-
tinata est solutio, seu deliberatio, non obstante quod contractus alibi
sit celebratus.2 Ut videlicit inspiciatur valor monete, qui est in
loco destinate solutionis.*| Huberus adopts the same exposition.
Verum tamen non ita precisé respiciendus est locus, in quo contrac-
tus est initus, ut si partes alium in contrahendo locum respexerint,
ille non potius sit considerandus.® Indeed, it has the general con-
sent of foreign jurists ;° although to this, as to most other doc-
trines, there are to be found exceptions in the opinions of some
distinguished names. Thus, John & Sandé maintains, that the law
of the place, where the contract is made, is to govern, although the
payment is to be made in another place. Denique inspicitur locus
contracts, etiamsi solutio.in alium locum sit destinata. Et proinde
mensura usurpanda est non loci, ubi frumentum vel vinum exigitur,
sed ubi de eo conventum est.’ The general rule has, however, been
adopted both in England and America. In one of the earliest
cases, Lord Mansfield stated the doctrine with his usual clearness.
“The law of the place can never be the rule, where the transaction
is entered into with an express view to the law of another country, |
as the rule, by which it is to be governed.”’® And this has uni-”
formly been recognized as the correct exposition in the common
law.?

1 P. Voet, De Stat. § 15, 16, p. 271, edit. 1715; Id. p. 828, edit. 1661; post,
301 f.

* P. Voet, De Stat. § 15, 16, p. 271, edit. 1715 ; Id. p. 328, edit. 1661.

* Everhard. Consil, 78, n. 9, p. 205; post, § 300 0. ,

* Thid.

5 Huberus, Lib. 1, tit. 3, § 10, ante, § 239; post, 299.

® 2 Boullenois, Observ. 46, p. 475, 476 ; Id. p. 488; 1 Hertii, Oper. De Collis.
Leg. § 4, n. 53, p. 147, edit. 1737; Id. p. 207, edit. 1716; Voet, ad Pand. Lib. 4,
tit. 1, § 29; Post, § 300 a@ to § 300 7.

7 J. a Sande, Opera, Comm. De Reg. Jur. 1. 9, p. 18. See also Colerus, de
‘Process. Exec. Pt. 2, n. 79, cited 2 Boullenois, Observ. 46, p. 475, 476.

8 Robinson v. Bland, 2 Burr. R. 1077, 1078; Post, § 308 to § 314.

9 Ludlow v. Van Rensselaer, 1 Johns. R. 94; Thomson v. Ketcham, 8 Johns.
R. 189; Fanning v. Consequa, 17 Johns. R. 511; Powers v. Lynch, 3 Mass. R.
77; 4 Cowen, Rep. 510, note; Van Reimsdyke v. Kane, 1 Gall. R. 371; Cox
and Dix v. U. S., 6 Peters, 172, 203; 2 Fonbl. Eq. B. 5, ch. 1, § 6, and note;
856 CONFLICT OF LAWS. [CH. Vil.

§ 282. But although the general rule is so well established, the
application of it in many cases is not unattended with difficulties ;
for it is often a matter of serious question, in cases of a mixed na-
ture, which rule ought to prevail, the law of the place where the
contract is made, or that of the place where it is to be performed.!
In general, it may be said, that, if no place of performance is stated,
or the contract may indifferently be performed anywhere, it ought
to be referred to the lex loci contractis.2 But there are many
cases, where this rule will not be a sufficient guide; and as the
subject is important in its practical bearing, it may be well to illus-
trate it by some cases.?

§ 283. One of the most simple cases is, where two merchants,
doing business with each other, reside in different countries, and have
mutual accounts of debt and credit with each other for advances
and sales. What rule is to be followed as to the balance of ac-
counts existing from time to time between them? Is it the law of
the one country, or of the other, if there is a conflict between their
laws on the subject? If the business transactions are all on one
side, as in case of sales and advances, made by a commission

Prentiss v. Savage, 13 Mass. R. 20, 23, 24; Ante, § 270, 280; 3 Burge, Comm.
on Col. and For. Law, Pt. 2, ch. 20, p. 752 to p. 754; Id. 771, 772, 773; Donn
v. Lippman, 5 Clark & Fin, R. 1, 13, 19, 20; Tyler v. Trabue, 8 B. Monroe,
306.

1 See 2 Kames, Eq. B. 3, ch. 8, § 4; Voet, de Statute, § 9, ch. 2,§10. Her-
tius puts some question under this head. A condition is added to a contract in
Belgium, which is performed by the debtor in Germany ; if the laws of the
countries are different, which are to prevail? Hertius says those of Belgium,
because the condition performed relates back to the time of making the contract.
Again, a contract made in one place is confirmed in another; what laws are to
govern? He answers, if the confirmation is to give greater credit to the contract,
as putting it in writing for the sake of proof, the law of the place of the contract
is to prevail. If to give validity to the contract, the law of the place of the con-
firmation. 1 Hertii, Opera, De Collis. Leg. p. 147, § 54, 55; Id. p- 207, 208, edit.
1716.

* Donn v. Lippman, 5 Clark & Fin. R. 1, 18, 19, 20; Post, § 317.

* Mr. Burge has expressed the true sense of the general rule, and its qualifica-
tions, in the following terms. “It may be stated generally, that with respect to
contracts, of which movable property is the subject, the law of the place in which
the contract is made will in some respects exclusively prevail, although the con-
tract is to be performed in another; and that in. those respects in which it does
not prevail, the law of the place where the contract is to be performed, must

be adopted. But this conclusion is subject to some qualifications and excep-
tions.”
§ 282 - 284 a.] FOREIGN CONTRACTS. 857
'

merchant in his own country for his principal abroad ; there the
contracts may well be referred to the country of the commission
merchant, and the balance be deemed due to him according to its
laws.! For, although it may be truly said, that the debt is due
from the principal, and he is generally expected to pay it, where
he dwells; yet it is equally true, that the debt is due where
the advances are made, and that payment may be insisted upon
there.

§ 284. But suppose the advances have been made in the coun-
try of the principal, and the goods sold in the other country; is
the same rule to prevail? Or, are the advances to be. governed
by the law of the place where they are advanced, and the sales of
the goods by that of the place where they are received by the com-
mission merchant? Suppose both the merchants, in different
countries, sell goods and make advances mutually for each other ;
and upon the accounts a balance is due from one to the other ; by
the law of what place is such balance to be ascertained and paid?
In these and many other like mixed cases, the amount of the bal-
ance, the time, and the manner, and the place of payment, the
true principle of the adjustment of the mutual accounts, may
materially depend upon the operation of the /ex loci, when the
law of one country conflicts with that of the other. The habits
of business and trade between the parties may sometimes decide
these points ; but if no such governing circumstances are estab-
lished, the cases must be reasoned out upon principle. Upon
principle, it may, perhaps, be found most easy to decide, that each
transaction is to be governed by the law of the place where it
originated ; advances by the law of the place where they are ad-
vanced ; and sales of goods by the law of the place where they
are received The importance of the true rule is peculiarly felt
in all cases of interest to be paid on balances.

§ 284 a. This subject was a good deal discussed in a recent case,
where goods had been consigned for sale in Trieste by a merchant
of Boston, and advances were made by the agent of the consignees
in Boston to an amount exceeding the amount of the proceeds of

1 Coolidge v. Poor, 15 Mass. R. 427; ‘Consequa v. Fanning, 3 Johns. Ch. R.
587, 610. -See also Bradford v. Farrand, 13 Mass. R. 18; Milne v, Moreton,
6 Binn. R. 353, 359, 365.

2 See Consequa v. Fanning, 8 Johns. Ch. R. 588, 610; 17 Johns. R. 511;
Casaregis, Disc. 179.
358 CONFLICT OF LAWS. [oH. vin.

the goods when sold. A suit was brought by the consignees to re-
cover the balance, and the question was, at what rate of exchange
the balance was to be allowed ; and that depended upon another
question, whether the balance was reimbursible at Boston, or in
Trieste. The court held that the balance was reimbursible at Bos-
ton, where the advances were made; but that, if the advances
had been made at Trieste, the balance would have been reimburs-
ible there. The court consequently allowed the par of exchange
at Boston upon the balance, it being payable there.

[§ 284 b. On the other hand, it has been very recently deter-
mined in Louisiana, and apparently in conflict with the case last
cited, that where an advance was obtained in that State from an
agent residing there, of a foreign principal, on merchandise to be
shipped to, afid sold by, the latter abroad, the rate of interest on
a balance due the foreign principal by reason of the proceeds of
the sale falling short of the advances, must be determined by the
law of the domicil of the principal, where the merchandise was
sold.?]

§ 285. Another case may serve to illustrate the same doctrine.
A merchant in America orders goods to be purchased for him in
England. In which country is the contract to be deemed com-
plete, and by the laws of which is it to be governed? Casaregis
has affirmed, that in such a case the law of England ought to gov-
ern ; for there the final assent is given by the person, who receives
and executes the order of his correspondent. Pro hujus materia
declaratione premittenda est regula ab omnibus recepta, quod con-
tractus vel negotium inter absentes gestum dicatur eo loci, quo ulti-
mus in contrahendo assentitur, sive acceptat; quia tunc tantum

'* Grant v. Healey, 2 Chand. Law Reporter, 113; S. C. 3 Sumner, R. 523.
See post, § 311 a, and note.

* Ballister v. Hamilton, 3 Louis. Ann. R. 401, Slidell, J., who delivered the
judgment in this case, observed: “ We are aware that this view conflicts with the
opinion of Judge Story, in Grant v. Healy, 2 Law Rep. 113; 3 Sumner, R. 523;
but we feel a strong conviction that the rule we have followed, accords with the
general mercantile opinion, which in a matter of this sort is entitled to great
weight.” [* It would seem that questions of interest and exchange should de-
pend, not upon the place where the advances were made, but upon the place,
where it is presumable they were expected to have been paid, which, in such
cases, will ordinarily be, where the deficiency occurred; which, in both the cases

named in the two preceding sections, was the place where the goods were sold,
and fell short of the advances.]
§ 284 a, 285.] FOREIGN CONTRACTS. 859

uniuntur ambo consensus.1 Sic mandati contractus dicitur initus
in loco, quo diriguntur litere missive alicujus mercatoris, si alter
ad quem diriguntur, eas recipit, et acceptat mandatum2 He goes
on to illustrate the doctrine by putting the case of a merchant, di-
recting his correspondent, in a foreign country, to buy goods for
him; in which case he says, if the correspondent accept the order,
and in the execution of it he buys the goods of a third person, two
contracts spring up; the first of mandate between the principal
and his agent, and the second of purchase and sale between the
vendor ang the agent, as purchaser in the name of the principal ;

and both are to be deemed contracts made in the place, where the
agent resides. His language is: Quando Mercator alteri suo Cor-
responsori mandat, ut aliquas merces pro se emat, easque sibi trans-
mittat, quo casu si Corresponsor acceptet mandatum, et in illius
executionem ab aliqua tertia persona merces commissas emat, duo
perficiuntur contractus : ‘Primus, mandati inter mandantem, et man-
datarium, et alter, emplionis, et respective venditionis inter eundem
mandatarium, uti emptorem nomine mandantis, et venditorem, et
ambo perficiuntur in loco mandatarii: Nam, quoad mandati con-
tractum, ratio est, quia consensus mandantis per literas unitur cum
ultimo consensu mandatarii in loco, quo mandatarius reperitur, et
acceptat mandatum, eoque magis quoad alterum venditionis, et re-
spective emptionis, quia mandatarius vere emit in loco, in quo et
ipse, et venditor existunt2 This doctrine, so reasonable in itself,
has been expressly affirmed by the Supreme Court of Louisiana.!
It has also received a sanction in a recent case in the House of
Lords, where the Lord Chancellor said: “If I, residing in Eng-
land, send down my agent to Scotland, and he makes contracts for
me there, it is the same as if I myself went there and made them.” ®

1 Casaregis, Disc. 179, § 1, 2. See 1 Hertii, Opera, De Collis. Leg. § 56, p.
147; Id. p. 208, edit. 1716; 3 Burge, Com. on Col. and For. Law, Pt. 2, ch. 20,
p. 753.
~-* Thid.

® Casaregis, Disc. 179, n. 10, p. 192.

‘Mr. Justice Martin, in Whiston v. Stodder, 8 asin, R. 95. See also
Malpica v. McKown, 1 Louis. R. 248, 355.

* Pattison v. Mills, 1 Dow & Clark, R. 342; Albion F. and L. Insur. Co. v.
Mills, 3 Wils. & Shaw, 218, 233. It is difficult to reconcile this doctrine with the
views of the court and bar in Acebal v. Levy, 10 Bing. R. 376, 379, 380, 381,
(ante, § 262 a,) where upon a sale of goods in Spain, to be delivered in England,
the purchase having been made by an agent of the purchasers by orders sent to
Spain, the court and bar seem to have thought that the contract was gaverned
860 CONFLICT OF LAWS. (cH. vin.

The same rule has been held to apply even to an English corpora-
tion, contracting by its agent in Scotland; for the contract takes
effect as a contract in Scotland.}

{* § 285 a. So a contract of insurance issued by a company es-
tablished in a foreign State, or another of the American States,
signed by their president and secretary there, but which is not to
become operative until countersigned by the agent here, and issued
here by him, is to be construed by the laws of this State, as a Mas-
sachusetts contract,? and the rule of deducting one third new for
old,.is to be applied in estimating a constructive total loss. ]

§ 286. And if a contract of purchase is made by an agent
without orders, and the correspondent ratifies it, Casaregis says,
that the contract is not to be deemed a contract in the country of
the ratification, but of the purchase ; because the ratification has
reference back to the time and place of the purchase. Ratio est,
quia tlle ratificationis consensus, licet emitatur, in loco ratificantis,
et ibi videatur se unire cum altero precedenti gerentis consensu,
qui venit a loco gerentis ad locum ratificantis, retrotrahitur ad
tempus et ad locum, in quo fuit per gestorem initus contructus
emptionis ; vel aliud negotium pro absente ; et ratio rationis est, quia
consensus ratificantis non unitur in loco suo ad aliquem actum seu
contractum perficiendum, sed acceptandum contractum vel negotium
pro se in loco gestoris jam factum; ac si eodem tempore et loco, in
quo fuit per gestorem negotium gestum, ipsemet ratificans esset
presens, ibique contraxisset.2 So, a like rule applies, if a mer-
chant in one country agrees to accept a bill drawn on him by a
person in another country. It is deemed a contract in the place
where the acceptance is to be made. Paul Voet adopts the same
conclusion. Quid si de literis cambii incidat questio, Quis locus
ertt spectandus? Is spectandus est locus, ad quem sunt destinate,
et ibidem acceptate.5

by the English Statute of Frauds. See ante, § 262 a; post, § 318, and note.
Did the place of the delivery and payment make any difference? See post,
§ 818, and note.

1 Albion F. and L. Insur. Co, v. Mills, 3 Wils. & Shaw, R. 218, 238, 234, See
also 8 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 753.

[*? Heebner v. Eagle Insurance Co. 10 Gray, 131.]

® Casaregis, Disc. 179, § 20, 64, 76 to 80, 83.

* Boyce v. Edwards, 4 Peters, R. 111. .

* P. Voet, De Statut. § 9, ch. 2, § 14, p. 271, edit. 1715; Id. p- 327, edit.
1661.
§ 285 — 286 b.] FOREIGN CONTRACTS. 361

§ 286 a. Hertius takes a curious distinction on this subject.
If, says he, a contract is made in one country, and is ratified in
another, it may be asked, if the laws of the different places vary,
which is to govern? To which he answers: If the confirmation
is made to add additional faith to the contract, as, for example, if
the contract is reduced to writing for the sake of proof, then the
law of the place where the contract is made, is to be looked to.
But, if to give validity to the contract itself, the law of the place
of confirmation, —Contractus in alio loco fit, in alio confirmatur ;
queritur, cujus loci leges, si discrepare eas usuveniat, intuer ide-
beamus ? Si confirmatio accedat ad conciliandam contractui ma-
jorem fidem, v. g'. contractus probationis gratid in scripturam
redigatur, arbitramur, spectandam loci, ubi contrahitur legem.
Sin, ut contractus sit validus, loci, ubi confirmatur, jura prevale-
bunt. So that Hertius seems to put the solution of the case upon
the point of the supposed intention of the parties, to give validity
to a defective contract, or only to impart a better proof of its orig-
inal validity.

§ 286 6. A question of a somewhat analogous nature, growing
out of agency, and of very familiar occurrence, deserves notice in
this place. It is well known, that by the common law the master
of a ship has a limited authority to take up money in a foreign
port and give a bottomry bond in cases of necessary repairs, and
other pressing emergencies. But he is not at liberty to give such
a bond for mere useful supplies or advances, which are not strictly

_neeessary. It is highly probable, that in some maritime countries,
the basis of whose jurisprudence is the civil law, a broader author-
ity is allowed to the master or at least a broader liability may
attach upon the vessel and the owner.? In such a case, the ques-
tion might arise, whether the liability of the ship, or of the owner,
was to be decided by the authority of the master according to the
law of the foreign place, where the money was advanced, or by the
law of the place of the domicil of the ship and owner. In England
it would be held, (at least such seems the course of the adjudica-
tions,) that the master’s authority to bind the ship, or the owner,
in a foreign port, would be governed by the law of the domicil of

1 1 Hertii, Opera, De Collis. Leg. § 4, n. 55, p. 147, edit. 1737; Id. p. 208,
edit. 1716 ;, ante, § 297. ,
2 See 2 Emérigon, Contrats & la Grosse, ch. 4, § 2 to § 6, § 8; p. 422 to p.

445. ;
CONFL. 81
362 CONFLICT OF LAWS. [cH.. VII.

the owner; and that consequently the master of an English ship
could not bind the owner for advances, or supplies in a foreign
port, which were not justifiable by the English law.’ But it is far

1 The Nelson, 1 Hagg. Adm. R. 169, 175, 176.—In the case of The Nelson,
Lord Stowell said: “It is certainly the vital principle of this species of bonds,
that they shall have been taken, where the owner was known to have no credit ;
no resources for obtaining necessary supplies. It is that state of unprovided ne-
cessity that alone supports these bonds. The absence of that necessity is their
undoing. Ifthe master takes up money from a person, who knows that he has a
general credit in the place, or at least an empowered consignee, or agent, willing
to supply his wants, the giving a bottomry: bond is a void transaction, — not af-
fecting the property of the owner, — only fixing loss and shame on the fraudu-
lent lender ; but where honorably transacted, under an honest i ignorance of this
fact, an ignorance that could not be removed by any reasonable inquiry, it is the
disposition of this court to uphold such bonds, as necessary for the support of com-
merce in its extremities of distress, and as such recognized in the maritime codes
of all commercial ages and nations. To the bond exhibited here, some objections
are taken respecting its form, but not affecting its validity. One objection is,
that it binds the owners personally, as well as the ship and freight, which it can-
not do. That is held in this court to be no objection to the efficacy of what it is
admitted it can do. Here we do not take this bond in toto, as is done in other
systems of law, and reject it as unsound in the whole, if vicious in any part. But
we separate the parts, reject the vicious, and respect the efficiency of those which
are entitled to operate. The form of these bonds is different in different coun-
tries; so is their authority. In some countries they bind the owner or owners, in
others not ; and where they do not, though the form of the bond affects to bind
the owners, that part is insignificant, but does not at all touch upon the efficiency of
those parts, which have an acknowledged operation. It is objected likewise, that
this bond does not express the obligation to be on the sea risk, and it does not ex-
pressly, or in exact terms; but it does in terms amounting to the same effect.
The money is to be paid at such a time ‘ after the ship arrives at her port.’ If
the ship never arrives at her port, or is lost upon the voyage, that is a sufficient
description of sea risk. I take no notice of the other objections made to this bond.
They are objections invariably paraded on these occasions, and as invariably over-
ruled by the court.” Mr. Brodie in his notes on Lord Stair’s Institutes, (Vol. 2,
p- 955, 956,) has gone into a full examination of this subject, and said: “ It may
be laid down as a general, though not absolute principle, that people may be held
to contract in reference to the law of the country under whose protection they
happen to be at the time. Grant this, however, and the conclusion follows, that
the lex loci contractiis becomes in reality a constituent quality of their agree-
ments. Hence it may be argued, that if, on account of a vessel, a debt be con-
tracted in a foreign country, which admits the principle of a tacit hypothecation
for repairs, etc., such a jus in re ought to be implied, as the actual import and un-
derstanding of the transaction, and as therefore no less acquired ex lege loci, than

“if it had been constituted by a formal writing. But if in this way such a right do
arise ex lege loci, then ex justitia, and on principles of international law, ought
to be rendered effectual with us; a point, which will be manifest, if we consider,

.
§ 286 b.] FOREIGN CONTRACTS. 363

from being certain, that foreign courts, and especially the courts
of the country, where the advances or supplies were furnished,

that the validity of a written instrument must be tried by the law of the place in
which it was executed. Still, however, must it be remembered, that it is merely
‘as the presumed understanding and intention of parties, that the j jus in re can so
arise ; as a right conceived in favor of the creditor it can unquestionably be re-
nounced by him ; and then comes the question, whether circumstances do not ex-
clude the presumption quoad a mutual understanding founded on the law of the
place. When, not to speak of necessary advances, a foreign ship is repaired here,
the shipwright, who parts with the possession without stipulating for, and obtain-
ing in due form, a security over the thing, may be supposed to have, according to
the principle of the common law, relied exclusively on the personal credit of his
debtor ; did, therefore, the other party even conceive, that he had likewise bound
the vessel, there would be wanting the mutual understanding to infer an agree-
ment. So far, then, does the lex loci operate against the contraction of a jus in
re for the debt ; but it does not thence follow, that elsewhere the lex loci should
operate in favor of a tacit hypothecation. A distinction is ever to be attended to
between the case of a party casually entering a foreign country, and that of one
who resides in it ; and the distinction is particularly strong in regard to an indi-
vidual, who, as master, has the charge of a vessel in a foreign port. Well may
such a person, when he orders repairs on personal credit, be presumed to be ig-
norant of any further condition, which the law of his own country denies; and
while, if the other party leave that unexplained, it may be argued with great
plausibility, that he has consented to waive the additional security, tacitly admit-
ted in ordinary cases, ex lege loci, it must be considered, that there would, at all
events, be wanting the mutual assent, which constitutes the basis of a contract.
But this is not all, The contract, in such cases, is made with the shipmaster, who
acts as the implied mandatory of the owners; and the effect of the transaction
must greatly depend on the extent of his authority. Now, it is true, that, as a
person, who has been appointed to an office, must be presumed to be invested
with the usual powers, so restrictions upon the ordinary authority will not be ef-
fectual against another party, who has not been apprised of them ; — yet it will
be observed, that, since it is the duty of those who deal with an agent, to make
themselves acquainted with the extent of his powers, whether expressed or fairly
implied from his office, so the presumed mandate here must be measured, either
by some general principle of maritime law, or by the law of the country to which
the ship belongs. Such a general principle of maritime law would of itself, though
in a different way, tend, in my apprehension, to exclude the lex loci; but there
is no such universally received principle, and the more positive exclusion of the
‘principle of the lex loci is the consequence. Thus, the English law does not al-
low the master to hypothecate the vessel, at least expressly, unless in a foreign
port, where personal credit is unattainable; but entitles him to pledge the abso-
lute personal responsibility of his constituents for the amount of necessary repairs,
furnishings, etc. ; while on the other hand, the French law authorizes him to hy-
pothecate the vessel, etc., not bind his constituents personally, at least not be-’
yond the eventual value of the ship and freight, etc.,on herreturn. And it is
quite clear, that the merchants and artisans of the respective countries must con-
364 CONFLICT OF LAWS, [eu. vin.

would adopt the same rules, if the lender or supplier had acted
with good faith, and in ignorance of the want of authority in the
master.}

§ 286 c. In a recent case in Louisiana, where the question arose
as to the liability of the owner for the property on board, belong-
ing to a passenger who died on the voyage, the property being
afterwards lost, the point was made, whether, as the passenger and
property were taken on board at a foreign port, the law of that
port, or the law of the place where the vessel and owner belonged,
ought to govern as to the owner’s liability. On that occasion the
court said: “We are of opinion that the law of the place of the
contract, and not that of the owner’s residence, must be the rule
by which his obligations are to be ascertained. The lex loci con-
tractus governs all agreements unless expressly excluded, or the
performance is to be in another country, where different regula-
tions prevail. What we do by another we do by ourselves; and
we are unable to distinguish between the responsibility created by
the owner, sending his agent to contract in another country, and
that produced by going there and contracting himself.””? Perhaps
the case itself did not require so broad an expression of opinion ;
since the court seem to have assumed, that the law of the owner’s
domicil coincided with the law of the place of the contract, as to

tract with the shipmasters of each other, according to the powers respectively in-
herent in those offices. It would be to no purpose for the English artisan or mer-
chant to plead in France the law of his own country in support of his action for
absolute responsibility ; and to allow the Frenchman to have the benefit of a privi-
lege ex lege loci, while he has acquired the absolute personal liability of the own-
ers, would, while an opposite measure of justice was awarded to the English, be
to afford him a double advantage, — the combined effect of the laws of both coun-
tries, — would give him a right the opposite party never contracted for, nor him-
self could fairly anticipate. The clear result then is, that the transactions must
be held to have reference to the master’s implied mandate, according to the law
of his own country, — a mandate, which is the duty of those who deal with him
as an agent, to ascertain the extent of; and, that, while they never can justly
complain of having their right limited by such a principle, the shipmaster cannot
be supposed to intend an abuse of his powers, — whence the very gist of all con-
tracts, the understanding of parties, would be wanting to infer a right, ex lege
loci contractis, which the scope of his authority did not import. Thus much for
the principle of the lex loci contractis. We shall now proceed to inquire into
the principles recognized in England.”

+ 2 Emérigon, Contrat. A la Grosse, ch. 4, § 8, p. 441,442; Malpica ». McKown,
1 Louis. R. 249, 254, 255.

* Mr. Justice Porter in Malpica v. McKown, 1 Louis, R. 249, 254; ante, § 258.
§ 286 b, 286c.] * FOREIGN CONTRACTS. 365

the owner’s responsibility, and the authority of the master. But
the same doctrine has been elaborately maintained by the same
court in another case.}

4 Arago v. Currell, 1 Louis, R. 528. Mr. Justice Martin, in delivering the
opinion of the court in this case, said: “ The first question it presents, relates to
the law, by which the rights of the parties are to be governed. The defendant
sent his vessel from New Orleans to Vera Cruz, to be employed in the transpor-
tation of passengers; and the master there entered into a contract for their pas-
sages, which being within the scope of his authority, must be as binding on the
defendant as if it had been entered into by him personally. This proposition is,

‘however, strenuously combated by his counsel, who contends, that the master
had no authority to bind the owner absolutely, but only to the amount of the
value of the vessel and freight; because the laws of the country, in which the
owner has his domicil, fix the measure of his responsibility, on all contracts made
by the master; that the question, whether an agent has exceeded his powers,
must be solved by the laws of the place in which he received them. The admis-
sion of this position would still present the question, whether, according to the
laws of Louisiana, the agent who contracted in Mexico, in the manner the mas-
ter did in the present case, exceeded his powers; and the question would still
remain open as to the laws, which ought to govern. So it would be under the
provision of our code, relied on, that the principal is bound only for the acts of
his agent, which he could have prevented. So, if it, be held, that the law of
Mexico i is to govern a contract directed to be made there, the question would not
be, whether the agent exceeded his powers, but what responsibility the principal
would have incurred, had he contracted personally. This has appeared to us the
sole question for our examination and solution. The master was sent to Vera Cruz
to take passengers on board of the vessel he commanded. He did so. It is not
pretended that he made any other than the agreement usual on such an occasion.
Whether the property was received and put on board by the owner, or master,
would make no difference. If the tort was committed out of the presence of the
owner, his liability would be the same. No question therefore arises as to the au-
thority conferred being exceeded. The owner is sought to be made liable, not on
thé contract, but for a tort committed by the master, acting within the scope of
‘his powers, in the execution of the contract. The law relied on, which furnishes
the owner with an exemption on account of the misfeasance of the master and
crew, on the surrender of the vessel and freight, would cause the same immunity
had the owner contracted personally. If we understand the matter rightly, the
immunity is independent entirely of the agreement having been entered into by
‘the agent. For example, in England, where such a rule prevails, we do not un-
derstand, that there could be the slightest difference in the responsibility of the
owner for the torts of the master, whether the contract was for passage or freight,
whether the contract was entered into with one or the other. We repeat, therefore,
that we cannot see how the question, whether the agent exceeded his powers, is

at all involved in the inquiry before us. The moment it is admitted, or estab- |

lished, that the master’s agreement for carrying passengers was on terms, such as
he was authorized to make, its legal consequences must depend on other princi-
31*
366 CONFLICT OF LAWS. [cu. vim.

[§ 286 ce. On the other hand, in a still more recent case’ in
the Circuit Court of the United States, a different rule was adopted.

ples than those of the law of the contract of mandate. The agreement must
have the same effect as if entered into with the owner personally. If then the
defendant had gore himself to Vera Cruz, and entered into a contract with a
man there, which was to be performed in the island of Cuba, would it have been
governed by the law of Louisiana? Now, if there be a principle better estab-
lished than any other on the subject of the conflict of laws, it is, that contracts
are governed by the laws of the country in which they are entered into, unless
they be so with a view to a performance in another. Every writer on that sub-
ject recognizes it. Judicial decisions again and again through the civilized world.
have sanctioned it. Why then should this form an exception? Why should the
contract of affreightment, or for the conveyance of passengers, stand on different
grounds than those of buying and selling merchandise ? Whoever contracts in a
particular place subjects himself to its laws, as a temporary citizen. The idea
that the law of a man’s domicil follows him through the world, and attaches to all
his contracts, is as novel as unfounded. The proposition was not, indeed, main-
tained in general terms; but that offered to the court in relation to the contract
is identical with it; and it is impossible for us not to feel, that, if the defendant
and appellant is to have the contract decided by the laws of Louisiana, it will be
equivalent to a declaration of this amount, that an inhabitant of this State carries
its laws with him wherever he goes, and they regulate and govern his contracts in
foreign countries, — that, whether a man contracts with him in Paris or London,
our municipal regulations are the measure of the rights and duties of both par-
ties to the contract. That the legislature of Louisiana may have a right to regu-
late the contracts of her own citizens in every country so long as they owe her
allegiance, may or may not be true. But where the citizen contracts abroad,
with a foreigner, it is evident the rule must be limited in its operation. The
legislature may refuse permission to enforce the agreement at home ; but abroad,
and particularly where the agreement is entered into, it is valid. The general
rule, however, is never to extend the prohibition to contracts made abroad unless
there be an express declaration of the legislative will. We therefore conclude,
that as the master was sent with the vessel to Vera Cruz to take passengers; as
he acted as the owner’s agent in making the agreement, and this is admitted by
the answer; and as the limitation to the responsibility is resisted on grounds
which would have an equal force, if the agreement had been made with him per-
sonally, we are bound, in our inquiry as to the law which governs the agreement,
to consider it as made personally by the owner, and it is to be governed, not by
the laws of his domicil, but by those of the country in which it was entered into
and to be performed. But, although the case does not present the question of
the owner’s responsibility in relation to the contract of mandate, the agent having
confined himself within his powers; yet, as the argument has placed the immu-
nity claimed by the defendant and appellant on that ground, it is well to notice it
more particularly. If we understood the arguments correctly, it was contended,
that the laws of Louisiana, having put some limitations to the power of the mas-

1 Pope v. Nickerson, 3 Story, R. 465.
§ 286 cc.] FOREIGN CONTRACTS. 367

In that case a vessel, owned in Massachusetts, being on a voyage
from a port in Spain to a port in Pennsylvania, was compelled by

ter to bind the owner, any contract of the former, in a foreign country, must be
subject: to the limitation ; and-if they be exceeded, there is an end to the latter’s
responsibility. Where a general power is confined to an agent, the party con-
tracting with him is not bound by any limitation, which the principal may have
affixed, at the time or since, by distinct instructions. Now, in the case before us,
if instructions be supposed to have been given to the master, not to bind the
owner beyond the value of the vessel and freight, or for any act-which the latter
could not prevent, would parties contracting with the former, in a foreign coun-
try, be bound by them? We think it is certain they would not. Every contract,
which by the general maritime law the master can make, is binding on the owner.
By putting the former in command, and sending him abroad, the latter invests
‘him with the general powers masters have as such, and those who contract with
him have nothing to do with any private instructions by which the general power
may have been limited. If the limitation arises not from the owner’s instructions,
but from the particular laws of the country from which the vessel has sailed, must
not the consequences be the same? Can these laws limit the master’s power
more effectually than the owner could, or can they extend further? We think
not. They have no force in a foreign country, where they are presumed to be
equally unknown. Emérigon, treating of the case, where the master was pro-
hibited from taking des deniers a la grosse, during the voyage, examines the
question, whether those who furnished them would have an action against the
‘owner. He cites all the texts of the Roman laws, on which the negative can be
maintained, and concludes, that if the lender had no knowledge of the prohibi-
‘tions, the owner would be responsible; that those who contract with him in a
foreign country, have a right to presume he is clothed with all the powers which
belong to his station. Boulay Paty is of the same opinion, as to the responsibili-
ties of the owner for the acts of the master appointed by him, whom they put in
command, with a special prohibition from making a subrogation of his powers.
(2 Emérig. Contrats & la Grosse, ch. 4, § 8; Boulay Paty, 289.) In another part
of his work, Emérigon treats of the power of a master to draw bills on his owners
in a foreign port, contrary to the authority given by the ordinance, and he con-
siders he cannot, because he exceeds the powers of his legal mandate. In sup-
port of this opinion he cites decisions in opposition to what he says was the former
‘jurisprudence of France, founded on the authority of Valin. He seems to con-
‘clude the rule is firmly fixed, as he understood it. But we find it was not gener-
‘ally adopted. Boulay Paty states, that opinions were divided, and the Chamber
of Commerce of Nantz, in their observations on the Code of Commerce, observe,
it is a question often agitated and which had been decided in different ways. .
(3 Emérig. Contrats & la Grosse, ch. 4, § 11, p. [441] 458; 2 Boulay Paty, 71.)
The new Code adopted Valin’s doctrine. But Emérigon, who is an author of
distinction, in treating of the question, says, that although the master cannot
abroad go beyond the legal mandate, provided, that his contract (son raccord) or
the general mercantile laws give him a more extensive power, a moins que son
raccord ou le droit commune, en certant cas, ne lui donne un pouvoir plus étendu.
(2 Emérig. Contrats 4 la Grosse, ch. 4, § 11, p. 452.) The general rule, where
368 CONFLICT OF LAWS. [ou. vu.

stress of weather to put into Bermuda, where the master sold the
vessel and whole cargo. In an action by the shippers against the
owners to recover the amount of their consignment, in which the
right of the master to sell the whole cargo and thus involve the
owners was directly in issue, it was determined that the liability
of the owners was governed by the law of Massachusetts, where
they resided, and not by the law of Spain, where the contract of
shipment was made, nor by the law of Pennsylvania, where the
goods were to be delivered; and the cases in Louisiana, just re-
ferred to, were not approved. }

§ 286 d. Another case may readily be suggested: as to the con-
flict of laws in cases of agency. Let us suppose, that A., in “Mas-
sachusetts, should by a letter of attorney, duly executed in Boston,
authorize B., his agent in New Orleans, to sell his ship, then lying
in New Orleans, and to execute a bill of sale in his (A.’s) name,
to the purchaser, and B. should accept the agency and sell the.
ship after the death of A., but before he had received, or could re-
ceive any notice thereof, and should execute a bill of sale in A.’s
name to the purchaser. In such a case, the question might arise,
(especially if A. died insolvent, or the money was invested in pur-
suance of other orders of A. in goods which had perished by fire,
or other accident,) whether the bill of sale was valid or not valid.
By the law of Massachusetts a letter of attorney is revoked by the
death of the principal, whether known or unknown, and all acts
done, after his death, under it are mere nullities.1_ By the law of
Louisiana, if any attorney, being ignorant of the death, or of the
cessation of the rights of his principal, should’ continue to act under
his power of attorney, the transactions done by him during this state
there is no statute limiting the-owner’s responsibility, is, that he is responsible for
all damages done by the master, while acting within the scope of his powers.
Abbott states, that this is the doctrine of the common and civil law, and so do all
the writers, we have been able to consult. In Chancellor Kent’s late work, and
in Judge Story’s edition of Abbott, it is stated, that the owner is bound for the
whole amount of the injury done by the master or crew, unless where ordinances
and statutes have established a different rule. 3 Kent, Comm. 172; Abbott on
Shipping, edit. 1829; 1 Pothier, Oblig. n. 451, 452. If this question turned on
the master’s having exceeded his powers, we are inclined to think, that, as the
general rule authorized him to bind the owner to the extent, contracted for, the
plaintiff and appellant, who contracted with him, was unaffected by a limitation
in a statute of another country, of which he could not be presumed to have any

knowledge, and to the authority of which he was not subject.”
1 Story on Agency, § 488, 489.
§ 286 ce — 287.] FOREIGN CONTRACTS. 869

of ignorance, would be valid.1. Assuming, that this provision covers
all cases, not only when the transaction is executed in the name
of the agent, but also when it is executed in the name of the prin-
cipal, upon which some doubt may be entertained, (as a dead man
cannot act at all,?) still the question would be, by what law the
‘letter of attorney, with reference to its revocability, duration, and
effect, is to be governed. The general rule certainly is, that all
the instruments, made and executed in a country, take effect, and
are to be construed, as to their nature, operation, and extent, ac-
cording to the law of the country where they are made and exe-
cuted. Locus regit actum’ But the question here would be,
whether, as the execution of the power was to be in another coun-
try, the power should not be construed and executed, and its na-
ture, operation, and extent, ascertained by the law of the latter, as
an exception to the general rule. There is no doubt, that where
an authority is given to an agent to transact business for his prin-
cipal in a foreign country, it must be construed, in the absence of
any counter proofs, that it is to be executed according to the law
of the place where the business is to be transacted. But this may
well be admitted to be the rule, while the authority is in full force,
without making the law of that place the rule, by which to ascer-
tain, whether the original power of attorney is still subsisting, or
is revoked, or dead by operation of law in the place of its origin.
The point has never, as far as my researches extend, been directly
decided either at home or abroad; and, therefore, it is submitted
to the learned reader for his consideration. Some of the cases
already alluded to may be thought to furnish an analogy unfavor-
able to the validity of the sale. — ‘

§ 287. Another class of cases may be stated. A merchant in
one country sends a letter to a merchant in another, requesting
him to purchase goods, and to draw on him for the amount of the
purchase-money by bills. In which country is the contract, for
the repayment: of the advances, if the purchase is made, to be
deemed to be made? Is it in the country where the letter is writ-
ten, and on which the drafts are authorized to be drawn? Or

1 Code Civil of Louisiana, art. 3001. The Civil Code of France contains a
similar regulation. | Code Civil of France, art. 2008 ; Pothier on Oblig. n. 81.

2 See Story on Agency, § 491 to § 499.

® Ante, § 263.

* Owings v. Hull, 9 Peters, R. 607, 627, 628.
5 Anite, § 286 Bb, § 286 ¢.
370 CONFLICT OF LAWS. [cH. VII.

where the goods are purchased? ‘The decision has been, that
when such advances are made, the undertaking is to replace the
money at the same place at which the advances are made; and,
therefore, the party advancing will be entitled to interest on the.
advances according to the law of the place of the advances.! So,
if advances are made for a foreign merchant at his request, or se-
curity is given for a debt, the party paying, or advancing, is in
like manner entitled to repayment in the place where the advances
are made, or the security is given, unless some other place is stip-
ulated therefor? [So, where a proposal to purchase goods is
made by letter sent from one state to another state, and is there
assented to, the contract of sale is made in the latter state.?]

§ 287 a. So, where a loan is made i in one state, and security is
to be given therefor in another state by way of mortgage; it may
be asked, what Jaw is to govern in relation to the contract and its
incidents? The decision has been, that the law of the place where
the loan is made is to govern; for the mere taking of a foreign
security does not (it is said) necessarily alter the locality of the
contract. Taking such security does not necessarily draw after it
the consequence, that the contract is to be fulfilled, where the se-
curity is taken. The legal fulfilment of a contract of loan on the
part of the bondsman is repayment of the money ; and the secu-
rity given is but the means of securing what he has contracted for,
which, in the eye of the law, is to pay, where he borrows, unless
another place of payment be expressly designated by the contract.
But if the mortgage is actually to be executed in a foreign coun-
try, and the money is to be paid there, the loan will be deemed to
be there completed, afthough the money may have been actually
advanced elsewhere.5

} Lanusse v. Barker, 8 Wheat. R. 101, 146; Grant v. Healey, 2 Chand. Law
Reporter, 113; S. C. 3 Sumner, R. 523; ante, § 284.4. But see contra, Ballis-
ter v. Hamilton, 3 Louis. Ann. R. 401. See also Hertii, Opera, Tom. 1, De Col-
lis. Leg. § 4, u. 55, p. 147, edit. 1737; Id. p. 208, edit. 1716.

* Bayle v. Zacharie, 6 Peters, R. 635, 643, 644; post, § 320 a.

® McIntyre v. Parks, 8 Mete. 207.

* De Wolf v. Johnson, 10 Wheaton, R. 867, 388. See also, Ranelagh v. Cham-
pant, 2 Vern. R. 395, and Raithby’s note ; Connor v. Bellamont, 2 Atk. 382; post,
§ 298. See Chapman v. Robertson, 6 Paige, R. 627, 680; post, § 293 b.

5 fe? Wolf v. Johnson, 10 Wheaton, R. 367; Hosford v. Nichols, 1 Paige, R.

; Lloyd v. Scott, 4 Peters, R. 211, 229. Whether a confract, made in one
eer for the sale of lands situate in another state, on credit, reserving interest at
the legal rate of interest of the state where the lands lie, but more than that of
§ 287 -289.] FOREIGN CONTRACTS. 371

§ 288. A case somewhat different in its circumstances, but illus-
trative of the general principle, occurred formerly in England.
By a settlement made upon the marriage of A. in England, a term
of five hundred years was created upon estates in Ireland, in trust
to raise £12,000 for the portions of daughters. The parties to
the settlement resided in England; and a question afterwards
arose, whether the £12,000, charged on the term of years, should
be paid in England, without any abatement or deduction for the
exchange from Ireland to England. It was decided that the por-
tion ought to be paid in England, where the contract was made,
and the parties resided ; and not in Ireland, where the lands lay,
which were charged with the payment ; for it was a sum in gross,
and not a rent issuing out of the land.t

§ 289. Let us take another case. A merchant, resident in Ire-
land, sends to England certain bills of exchange, with blanks for
the dates, the sums, the times of payment, and the names of the
drawees. These bills are signed by the merchant in Ireland, in-
dorsed with his own name and dated from a place in Ireland, and
are transmitted to a correspondent in England, with authority to
him to fill up the remaining parts of the instrument. The corre-
spondent in England accordingly fills them up, dated at a place in
Treland. Are the bills, when thus filled up, and issued, to be
deemed English, or Irish contracts? It has been held, that under
such circumstances they are to be deemed Irish contracts, and of
course to be governed, as to stamps and other legal requisitions,
by the law of Ireland ; and that as soon as they are filled up, the
whole transaction relates back to the time of the original signature
of the drawer.2 One of the learned judges on that occasion said,
that if the drawer had died, while the bills were on their passage,
and afterwards the blanks had been filled up, and. the bill nego-
tiated to an innocent indorsee, the personal representatives of the
drawer would have been bound.® é
the state where the contract is made, would be usurious, has been much discussed
in the State of New York. In Van Schaick v. Edwards, 2 Johns. Cas. 355, the
judges were divided in opinion upon the question. See also, Hosford v. Nichols,
1 Paige, R. 220, and Dewar v. Span, 3 T. R. 425; ante, § 279 a.

_ 1 Phipps v. Earl of Anglesea, cited 5 Vin. Abridg. 209, pl. 8; 2 Eq. Abridg.
220, pl. 1; Id. 754, pl. 3; 1 P. Will. 696; 2 Bligh, Parl. R. 88,89. See also,
Lansdowne v. Lansdowne, 2 Bligh, Parl. R. 60; Stapleton v. Conway, 3 Atk. 727,
“S. C. 1 Ves, 427.

* Snaith v. Mingay, i Maule & Selw. 87.
® Mr. Justice Bayley, ibid. p. 95.
372 CONFLICT OF LAWS. [cH. vor

§ 290. Bonds for the faithful discharge of the duties of office are
often given with sureties, by public officers, to the government of
the United States; and it sometimes happens, that the bonds are
executed by the principals in one state, and by the sureties in a
different state, or in different states. What law is in such cases
to regulate the contract? The rights and duties of sureties are
known to be different in different states. In Louisiana one sys-
tem prevails, deriving itself mainly from the civil law; in other
states a different system prevails, founded on the common law.
It has been decided, that the bonds in such cases must be treated
as made and delivered, and to be performed by all the parties, at
the seat of the government of the Union, upon the ground that the
principal is bound to account there; and, therefore, by necessary
implication, all the other parties look to that, as the place of per-
formance, by the law of which they are to be .governed.!

§ 291. The question, also, often arises in cases respecting the
payment of interest. The general rule is that interest is to be paid
on contracts according to the law of the place where they are to be
-performed ; in all cases, where interest is expressly or impliedly to
be paid.2 Usurum modus ex more regionis, ubi contractum est,

1 Cox & Dick v. United States, 6 Peters, R. 172, 202 ; Duncan ». United States,
7 Peters, R. 435.

* Fergusson v. Fyffe, 8 Clark & Finnell. 121, 140; Post, § 292, 293, § 293 a to
§ 293 e, § 304; Conner v. Bellamont, 2 Atk. R. 382; Cash v. Kennion, 11 Vesey,
R. 314; Rabinsod v. Bland, 2 Burr. R. 1077; Bkins v. East India Company, 1
P. W. 395; Ranelagh v. Champant, 2 Vern. R 395, and note ibid. by Raithby ;
1 Chitty on Comm. & Manuf. ch. 12, p. 650, 651; 8 Chitty, Id. ch. 1, p. 109; Eq,
Abridg. Interest, E; Henry on Foreign Law, 43, note; Id. 53; 2 Kames, Equi-
ty, B. 3, ch. 8,§ 1; 2 Fonbl. Eq. B. 5, ch. 1, § 6, and note; Bridgman’s Equity
Digest, Interest, vii.; Fanning v. Consequa, 17 Johns. R. 511; S. C. 3 Johns. Ch.
R. 610; Hosford v. Nichols, 1 Paige, R. 220; Houghton v. Page, 2 N. Hamp. R.
42; Peacock v. Banks, 1 Minor, R. 387; Lapice v. Smith, 13 Louis. R. 91, 92;
Thompson v. Ketchum, 4 Johns. R. 285 ; Stewart v. Ellice, 2 Paige, 604; Mullen
v. Morris, 2 Barr, 85 ; Healy ». Gorman, 3 Green, N. J. R. 328; 2 Kent, Comm. ,
Lect. 39, p. 460, 461, 3d edit. — A case, illustrative of this principle, recently oc-
curred before the House of Lords. A widow in Scotland entered into an obliga-
tion to pay the whole of her deceased husband’s debts. It was held by the Court.
of Sessions in Scotland, that the English creditors, on contracts made in England,
were entitled to recover interest in all cases, where the law of England gave
interest, and not where it did not. Therefore, on bonds, and-bills of exchange;
interest was allowed, and on simple contracts not. And this decision was affirmed
by the House of Lords. Montgomery v. Bridge, 2 Dow and Clark, Rep. 297.
The case of Arnott v. Redfern, (2 Carr. & Payne, 88,) may at the first view seem
§ 290, 291.) FOREIGN CONTRACTS. 373

constituitur, says the Digest.! Thus, a note made in Canada,
where interest is six per cent, payable with interest in England
where it is five per cent, bears English interest only.2 Loans made
in a place bear the interest of that place, unless they are payable
elsewhere.? And, if payable in a foreign country, they may bear
any rate of interest not exceeding that which is lawful by the laws
of that country. And, on this account, a contract for a loan
made, and payable in a foreign country, may stipulate for interest
higher than that allowed at home.’ If the contract for interest be

inconsistent with the general doctrine. There the original contract was made in
London between an Englishman and a Scotchman. The latter agrees to go to
Scotland as agent four times a year, to sell goods, and collect debts for the other
party, to remit the money and to guarantee one fourth part of the sales; and he
was to receive one per cent upon the amount of sales, ete. The agent sued for
the balance of his account in Scotland, and the Scotch court allowed him interest
on it. The judgment was afterwards sued in England; and the question was,
whether interest ought to be allowed. Lord Chief Justice Best said: “Is this an
- English transaction ? For, if it is, it will be regulated by the rules of English law.
But, if it is a Scotch transaction, then the case will be different.” He afterwards
added: “ This is the case of a Scotchman, who comes into England and makes a
contract. As the contract was made in England, although it was to be executed
in Scotland, I think, it ought to be regulated according to the rules of the Eng-
lish law. This is my present opinion. These questions of international law do
not often occur.” And he refused interest, because it was not allowed by the law
of England. The court afterwards ordered interest to be given, upon the ground
that the balance of such an account would carry interest in England. But Lord
Chief Justice Best rightly expounded the contract as an English contract, though
there is a slight inaccuracy in his language. So far as the principal was con-
cerned, the contract to pay the commission was to be paid in England. The ser-
vices of the jagent were ‘to be. performed in Scotland. But the whole contract
was not to be executed exclusively there by both parties. A contract made to
pay money in England, for services performed abroad, is an English contract, and
will carry English interest.

1 Dig. Lib. 22, tit. 1, 1.15; 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9,
p- 860, 861, 862.

® Scofield v Day, 20 Johns. R. 102.

® De Wolf v. Johnson, 10 Wheaton, R. 367, 383; Consequa v. Willing, Peters,
Cir. R. 225; 2 Boullenois, Observ. 46, p. 477,478; Andrews v. Pond, 13 Peters,
R. 65, 78.

* Ibid. ; 2 Kent, Comm. Lect. 39, p. 460, 461, 3d edit. ; Thompson v. Ketchum,
4 Johns. R. 285; Healy v. Gorman, 3 Green, N. J. R. 328.

5 2 Kent, Comm. Lect. 39, p. 460, 461, 3d edit.; Hosford v. Nichols, 1 Paige,
R. 220; Houghton v. Page, 2'N. Hamp. R. 42; Thompson v. Powles, 2 Simons,
R. 194. In this last case the Vice-Chancellor said: “ With respect to the ques-
tion of usury, in order to hold the contract to be usurious it must appear that the

CONFL. 32
874 CONFLICT OF LAWS. [ca. VIL

illegal there, it will be illegal everywhere. But if it be legal
where it is made, it will be of universal obligation, even in places
where a lower interest is prescribed by law.?

§ 292. The question, therefore, whether a contract is usurious
or not, depends, not upon the rate of the interest allowed, but upon
the validity of that interest in the country, where the contract is
made, and is to be executed. A contract made in England for
advances to be made at Gibraltar, at a rate of interest beyond that
of England, would, nevertheless, be valid in England; and so a
contract to allow interest upon credits given in Gibraltar at such
higher rate, would be valid in favor of the English creditor.

§ 292 a. This too seems to be the doctrine propounded by
Rodenburg, who says: Status quidem aut conditio personarum
dirigitur @ loco domicilii: ceterum tamen in vineulo cujusque
obligationis, ut sciamus, quos obliget conventio, spectamus leges
regionis, ubi illa celebratur. Quemadmodum et in illicita stipula-
tione, que legibus est interdicta, ut puta; si debitum modum usu-
rarum excedit, traditum est valere pactum, quo foris secundum
mores illius regionis stipulati sumus prohibitam domi usurarum
quantitatem. Unde non longe abire videtur, quod memini nuper
apud nos responsum esse, si contracta sit eo loci obligatio, ubi
sortem liceat exigere cum usuris, ut maxime jam earum alique
contract was made here, and that the consideration for it was to be paid here. It
should appear at least, that the payment was not to be made abroad ; for if it was
to be made abroad it would not be usurious.” See also, Andrews v. Pond, 13
Peters, R. 65, 78; De Wolf v. Johnson, 10 Wheat. R. 383.

1 2 Kames, Equity, B. 3, ch. 8,§1; Hosford v. Nichols, 1 Paige, R. 220; 2
Boullenois, Observ. 46, p. 477.— In the case of Thompson v. Powles, (2 Simons,
‘R. 194,) the Vice-Chancellor said: “In order to have the contract (for stock)
usurious, it must appear that the contract was made here, and that the considera-
tion for it was to be paid here.” See also, Yrisarri v. Clement, 2 Carr. and
Payne, R. 223. In Hosford v. Nichols, (1 Paige, R. 220,) where a contract was
made for the sale of lands in New York, by citizens then resident there, and the
vendor afterwards removed to Pennsylvania, where the contract was consumma-
‘ted, and a mortgage given to secure the unpaid purchase-money, with New York
interest, (which was higher than that of Pennsylvania,) the court thought the
mortgage not usurious, it being only a consummation of the original bargain made
in New York.

2 Ibid. e :

® Harvey v. Archibold, 1 Ryan & Mood, R. 184; S. C. 3 B. & C. 626; Phelps
v. Kent, 4 Day, 96; Pratt v. Adams, 7 Paige, 616; Greenwade v. Greenwade, 3
Dana, 497; Andrews v. Pond, 13 Peters, R. 65, 78; Ante, § 243.

* Ibid.
§ 291 - 293 a.] FOREIGN CONTRACTS. 375

essent persolute, Jure caput cum usuris et apud nos exigi, ubi usu-
rarum solutione protinis via petitioni sortis percluditur, locumque
sibi vindicat decantata adeo paremia Burgundus is still more
direct and positive.”

§ 298. And in cases of this sort, it will make no difference that
the due performance of the contract is secured by a mortgage, or
other security, upon property, situate in another country, where
the interest is lower.2 For it is collateral to such contract, and
the interest reserved being according to the law of the place where
the contract is made, and to be executed, there does not seem to
be any valid objection to giving collateral security elsewhere, to
enforce and secure the due performance of a legal contract.* But,
suppose a debt is contracted in one country, and afterwards, in
consideration of further delay, the debtor in another country
enters into a new contract for the payment of interest upon the
debt at a higher‘rate than that allowed by the country where the
original debt was contracted, but not higher than that allowed by
the law of the country where it is so stipulated ; it may be asked
whether such stipulation is valid? It has been decided that it is.
On the other hand, suppose the interest so stipulated is according
to the rate of interest allowed in the country where the debt was
contracted, but higher than that in the country where the new con-
tract is made ; is the stipulation invalid ? It has been decided that
it is.® In each of these cases the lex loci contractés was held to
govern as to the proper rate of interest.

§ 293 a. In the cases hitherto stated, the transaction is sup-
posed to be bond fide between the parties. For if the transaction
is a mere cover for usury, as if the transaction is in form a bill of
exchange drawn upon and payable in a foreign country, but in
reality the parties resort to that as a mere machinery to disguise

? Rodenburg, Diversit. Stat. tit. 4, Pt. 2, ch. 2, p. 92.

* Burgundus, Tract. 4, n. 10, p..109; Post, § 293 ¢, § 300 a; 2 Burge, Comm.
Pt. 2, ch, 9, p- 860, 861, 862.

3 Ante, § 287.

* Conner v. Bellamont, 2 Atk. R. 882; Stapleton v. Conway, 3 Atk. R. 727;
S. C. 1 Vesey, R. 427; De Wolf v. Tdimecn, 10 Wheaton, 367, 383.

5 Conner v. Biellamont, 2 Atk. R. 382. See also, Hosford v. Nichols, 1 Paige,
R. 220.

® Dewar v. Span, 3 T. R. 425. See also, Stapleton v. Conway, 3 Atk. R.
382; S. C. 1 Vesey, R. 427. See Chapman v. Robertson, 6 Paige, R. 627,
631.
876 CONFLICT OF LAWS. [cH Vu.

usury in the transaction against the laws of the country where the
contract is made, the form of the transaction will be treated as a
mere nullity; and the court will decide according to the real ob-
ject of the parties. Thus, for example, where a bill of exchange
was drawn in New York payable in Alabama, and the bill was for
an antecedent debt, and a larger discount was made from the bill,
greater than the interest in either State, for the supposed differ-
ence of exchange, the court considered the real question to be as
to the bona fides of the transaction. If a mere cover, it was
usurious.!

1 Andrews v. Pond, 13 Peters, R. 65, 77, 78. On this occasion Mr. Chief Jus-
tice Taney said: “ Another question presented by the exception, and much dis-
cussed here, is, whether the validity of this contract depends upon the laws of
New York or those of Alabama. So far as the mere question of usury is con-
cerned, this question is not very important. There is no stipulation for interest
apparent upon the paper. The ten per cent in controversy is charged as a dif-
ference in exchange only, and not for interest and exchange. And if it were
otherwise, the interest allowed in New York is seven per cent and in Alabama
eight; and this small difference of one per cent per annum, upon a forbearance
of sixty days, could not materially affect the rate of exchange, and could hardly
have any influence on the inquiry to be made by the jury. But there are other
considerations which make it necessary to decide this question. The laws of New
York make void the instrument when tainted with usury ; and if this bill is to be
governed by the laws of New York, and if the jury should find that it was given
upon an usurious consideration, the plaintiff would not be entitled to recover;
unless he was a bona fide holder, without notice, and had given for it a valuable
consideration ; while by the laws of Alabama, he would be entitled to recover the
principal amount of the debt, without any interest. The general principle, in re-
lation to contracts made in one place to be executed in another, is well settled.
They are to be governed bythe law of the place of performance ; and if the
interest allowed by the laws of the place of performance is higher than that
permitted at the place of the contract, the parties may stipulate for the higher
interest, without incurring the penalties of usury. And in the case before us,
if the defendants had given their note to H. M. Andrews & Co. for the debt then
due to them, payable at Mobile, in sixty days, with eight per cent interest, such
a contract would undoubtedly have been valid; and would have been no viola-
tion of the laws of New York, although the lawful interest in that State is only
seven per cent. And, if in the account adjusted at the time this bill of exchange
was given, it had appeared that Alabama interest of eight per cent was taken
forthe forbearance of sixty days, given by the contract, and the transaction was
in other respects free from usury, such a reservation of interest would have been
valid and obligatory upon the defendants; and would have been no violation of
the laws of New York. But that is not the question which we are now called on
to decide. The defendants allege, that the contract was not made with reference
to the laws of either State, and was not intended to conform to either. That a
§ 293 a, 298 b.] FOREIGN CONTRACTS. 307

§ 293 b. Indeed, in all cases of this sort we are to look to the
real intentions of the parties, and their acts are expressive of
them. Thus, where a citizen of New York applied in England to
a British subject for a loan of money upon the security of a bond
and mortgage upon land in New York, at the legal rate of inter-
est (seven per cent) of that State; and it was agreed that the
borrower should, upon his return to New York, execute the bond
and mortgage, and duly record the same; and upon the bond and
mortgage being received in England, the lender agreed to deposit
the money loaned at the bankers of the borrower in London for
his use ; and the bond and mortgage were executed and received,
and the money paid accordingly to the bankers; the question
arose, whether the transaction was usurious or not; and that de-
pended upon the law of the place by which it was to be governed,
whether by the law of England (where interest is only five per
cent) or by the law of New York. It was held by the court, that
the contract was to be construed according to the laws of New
York, and therefore that a bill to foreclose the mortgage, filed in
New York, was maintainable ; and that the law of usury of Eng-
land was no defence to the suit. On that occasion the learned
chancellor said, that as no place of payment was mentioned in the
bond or mortgage, the legal construction of the contract was, that
the money was to be paid where the obligee resided, or wherever
he might be found; that the residence of the obligee, being in
England at the time of the execution of the bond, that must be
considered the place of payment for the purpose of determining
rate of interest forbidden by the laws of New York, where the contract was made,
was reserved on the debt actually due; and that it was concealed under the name
of exchange, in order to evade the law. Now, if this defence is true, and shall
be so found by the jury, the question is not, which law is to govern in executing
the contract ; but, which is to decide the fate of a security taken upon an usuri-
ous agreement, which neither will execute? Unquestionably, it must be the law
of the State where the agreement was made, and the instrument taken to secure
its performance. A contract of this kind cannot stand on the same principles
with a bona fide agreement made in one place to be executed in another. In
the last-mentioned cases the agreements were permitted by the lex loci con-
tractéis; and will even be enforced there, if the party is found within its jurisdic-
tion. But the same rule cannot be applied to contracts forbidden by its laws and
designed to evade them. In such cases, the legal consequences of such an agree-
ment must be decided by the law of the place where the contract was made. If
void there, it is void everywhere.” See Chapman v. Robertson, 6 Paige, R. 627,

630, 631.
32 *
3878 CONFLICT OF LAWS. [cH. vim.

the question where that part of the contract was to be performed ;
and that the execution of the bond in New York did not make it
a personal contract there, because it was inoperative until received
there, and the money deposited with the bankers for the borrower.
And he concluded by saying: ‘ Upon a full examination of all the
cases to be found upon the subject, either in this country, or in
England, none of which, however, appear to have decided the pre-
cise question, which arises in this cause, I have arrived at the con-
clusion, that this mortgage, executed here, and upon property in
this State, being valid by the lez situs, which is also the law of the
domicil of the mortgagor, it is the duty of this court to give full
effect to the security, without reference to the usury laws of Eng-
land, which neither party intended to evade or violate by the exe-
cution of a mortgage upon the lands here.’’ +

§ 293 c. Whatever objections may be made to the reasoning of
the learned chancellor, and it is. certainly open to some observa-
tion,? the decision itself seems well supported in -point of princi-
ple ; for the parties intended that the whole transaction should be
in fact, as it was in form, a New York contract, governed by the
laws thereof, and the repayment of the debt was there to be made.
It is easily reconcilable with other laws and principles, if viewed
in this light; if viewed, as the chancellor interpreted the case,
it is perhaps irreconcilable with other cases and with general prin-
ciples.®

2 Chapman v. Robertson, 6 Paige, R. 627, 630, 633.

2 But see Fisher v. Otis, 3 Chandler, 107, where both the decision and reasoning
in Chapman v. Robertson are approved.

§ Chapman v. Robertson, 6 Paige, R. 627 to 630, 633. It appears to me, that
the case was correctly decided ; but with the greatest deference for the learned
chancellor, upon principles and expositions, to which I cannot assent, and which
appear to me inconsistent with the general reasoning of the authorities. It ap-
pears to me, that there being no place of payment designated in the bond and
mortgage, which was executed at New York, where the borrower was domiciled,
that, although it was not operative, until received by the lender, yet when re-
ceived and adopted by him, the transaction related back to its origin, and it was
valid, not as a bond and mortgage executed in England for the payment of money
there, but as a bond and mortgage for the payment of the money in New York,
as having originated there, and having its whole validity and operation from the
law of New York. If an order for goods were sent from New York to England;
and the order were complied with, and the goods received in New York ; after the
receipt of the goods the debt would be treated as an English debt, since the con-
tract of purchase would there be deemed to be negotiated and perfected. Ante,
§ 285, 286. In truth, where no place of payment was mentioned, the law of the
§ 298 b — 298 e.] FOREIGN CONTRACTS. 379

§ 293 d. John Voet, in his Commentaries on the Pandects,
holds this very doctrine, which appears to me to be entirely in har-
mony with the received principles of international law. He con-
siders, that the interest must be according to the law of the place
where the contract is to be performed, whether that place be
where the contract is made, or it be another place. If the inter-
est is in either case stipulated for beyond that rate he deems it
usurious. Si alio in‘loco graviorum usurarum stipulatio permissa,
in alio vetita sit, lex loci, in quo contractus celebratus est, spec-
tanda videtur in questione, an moderate, an vero modum exre-
dentes, usure per conventionem constitute sint. Dummodo memi-
nerimus, illum proprie locum contractis in jure non intelligt, in
quo negotium gestum est, sed in quo pecuniam ut solveret, se quis
obligavit. Modo etiam bond fide omnia gesta fuerint, nec consulto
talis ad mutuum contrahendum locus electus sit, in quo graviores
usure, quam in loco, in quo alias contrahendum fuisset, probate
inveniuntur. Etiamsi de cetero hypotheca, in sortis et usurarum
‘securitatem obligata, in alio loco sita sit, ubi sole leviores usure
permisse ; cum aquius sit, contractum accessorium regi ex loco
principalis negotit gesti, quam ex opposito contractum principalem
regi lege loci, in quo accessorius contractus celebratus est.

§ 293 e. Burgundus adopts the same doctrine, and says: Licita
vero sit, an illicita stipulatio, @ formé quoque videtur proficisct, et
ideo ejusdem legibus dirigitur, quibus ipsa forma, et ad locum con-
tractus collimare, oportet. Quare etu surarum modus is constitu-
endus est, qui in regione in qua est contractum legitimé celebratur.

place, where the contract is made, fixes it in that place, wherever the parties may
be domiciled. The bond and mortgage took effect, as contracts of the borrower ex-
ecuted at New York. If a negotiable note is made in one state, and is negotiated
to an indorsee in another state, the contract with the indorsee by the maker
takes effect as a promise in the state where the note was made, and not where
it was indorsed. The payment of the money to the bankers of the borrower in
London was merely for his accommodation, and it by no°means made the money
repayable there. The case of Stapleton v. Conway, 3 Atk. R. 727; S.C. 1 Ves.
427, is, as far as it goes, in opposition to the decision in 6 Paige, R. 627. It is
not, however, my design in this place to enter upon the reasons of my dissent
from the doctrines stated by the learned chancellor in 6 Paige, R. 627. The
principles stated from § 280 to § 321, sufficiently explain some of the grounds
upon which that dissent may be maintained. See also, 2 Kent, Comm. Lect. 39,
p- 460, 461, 3d edit.; and Andrews v. Pond, 18 Peters, R. 65; ante, § 291; post,
§ 304.
1 J. Voet, ad Pand. Lib. 22, tit. 1, § 6, p. 938; post, § 304.
880 CONFLICT OF LAWS. [cH. vin.

Et cam reditus duadena rius,in Gallia stipulatus, in controversiam
incidisset, patrocinante me judicatum est, in curia Flandrie valere
pactum : nec obesse, quod in Flandria, ubi reditus constitutus, sive
hypothece impositus proponeretur, usuras semisse graviores stipu-
lari non liceat ; quia ratio hypothece non habetur, que hac in re
nihil conferens ad substantiam obligationis, tantum extrinsecus ac-
cedit legitime stipulationi. Sed hoc intellige de usuris in stipula-
tionem deductis, non autem de iis, que ex mora debentur, in quibus
ad locum solutionis (ut docebimus posted) respicere oportet.

§ 294. In cases of express contracts for interest foreign jurists
generally hold the same doctrine. Dumoulin, and after him Boul-
lenois, says: In concernentibus contractum, et emergentibus tempore
contractis spectatur locus, in quo contrahitur.2 And hence the lat-
ter deduces the general conclusion, that the validity of contracts
for rates of interest depends upon the laws of the place where the
contract is made and payable, whether it be in the domicil of the
debtor, or in that of the creditor, or in that where the property
hypothecated is situated, or elsewhere. He holds this also to be
a just inference from the language of the Digest. Cum judicio
bone fidei disceptatur, arbitrio judicis usurarum modus ex more
regionis, ubi contractum est constituitur;+ and that it applies,
where the parties have designedly contracted in the one place,
rather than in the other. But, where there is no express con-
tract, and interest is to be implied, foreign jurists are not so well
agreed. Some contend, that, if the contract is between foreign-
ers, the law of interest of the domicil of the creditor ought to
prevail; and others, that that of the domicil of the debtor ought
to prevail.”

§ 295. Boullenois is of opinion, that, where there is no express
contract, the interest for which a delinquent debtor is tacitly liable,
on account of his neglect to pay the debt, is the interest allowed

? Burgundus, Tract. 4, § 10, p. 108, 109; post, § 302.

* Molin. Opera, Comment. ud Consuet. Paris, tit. 1, § 12, Gloss. 7, n. 37, Tom.
1, p. 224 ; 2 Boullenois, Observ. 46, p. 472; Henry on Foreign Law, p. 53; Boul-
lenois, Quest. de la Contr. des Lois, p. 830 to 338; ante, § 82 a.

* 2 Boullenois, Observ. 46, p. 472.

* Dig. Lib. 22, tit. 1,1 1.

5 2 Boullenois, Observ. 46, p. 472.

° 2 Boullenois, Obsery. 46, p. 472, 477, 478, 479, 496.

‘ Id.; Bouhier, Cout. de Bourg. ch. 21, § 194 to § 199; Livermore, Dissert.
§ 42, p. 46, 47.
§ 293 e - 295.] FOREIGN CONTRACTS. 381

by the law of the place where the debt is payable; because it is
there that the interest has its origin. And, in this, he follows the
doctrine of Everhardus, who says: Quia, ubi certus locus solutionis
faciende destinatus est, tune non facta solutione in termino et loco
prefixo, mora dicitur contrahi in loco destinate solutionis, non in
loco celebrati contractés.2 Strykius holds the same opinion. S
lis orttur ex post facto propter negligentiam et moram, consideratur
locus, ubi mora contracta est. Boullenois puts a distinction, which
also deserves notice, between cases where the debt for money loaned
is payable at a fixed day, and where no day is fixed for payment,
but it is at the pleasure of the creditor when it shall be paid, and
no place of payment is mentioned. In the former case he holds,
that the debtor is bound, in order to avoid default, to seek the
creditor and pay him ; and therefore the neglect to make payment
arises in the domicil of the creditor, and interest ought to be al-
lowed according to the law of that place.6 In the latter case the
creditor is to demand payment of the debtor; and the neglect of
payment is in the domicil of the debtor, and, therefore, interest
ought to be allowed according to the law of his domicil.6 And if,
between the time of contracting the debt. and the demand of the
creditor, the debtor has changed his domicil, Boullenois is of opin-
ion that, if the demand is in the new domicil, interest for neglect
of payment should be according to the law of the latter ; especially
if the change of domicil is known to the creditor.’ And he applies
the same rule to a case where, by the law of the old domicil, a
simple demand only is required, and, by the law of the new domi-
cil, a demand by judicial process is necessary. The distinction
does not appear to have any foundation in our jurisprudence ; for,
whether the debt be payable at a fixed day, or upon a demand of
the creditor, if no place of payment is prescribed, the contract takes
effect as a contract of the place where it is made; and being pay-
able generally, it is payable everywhere, and after a demand and

1 2 Boullenois, Observ. 46, p. 477.

* Everhard. Consil. 78, n. 10, p. 205.

3 2 Boullenois, Observ. 46, p. 477; Henry on Foreign Law, p. 53. — For the
citation. from Strykius I have been obliged to rely on Boullenois; as I have not
been able, after considerable research in the voluminous words of Strykius, to find
the particular passage.

* 2 Boullenois, Observ. 46, p. 477, 478.°

5 Thid. ® Ibid. 7 Thid.

® Id. p. 477 to p. 479,
382 CONFLICT OF LAWS. [cH. Vink

refusal of payment, interest will be allowed according to the law
of the place of the contract.?

§ 296. It may, therefore, be laid down as a general rule, that,
by the common law, the lea loci contractés will, in all cases, govern
as to the rule of interest, following out the doctrine of the civil
law already cited: Cum judicio bone fidei desceptatur, arbitrio
judicis usurarum modus, ex more regionis, ubi contractum, consti-
tuitur ; ita tamen ut legi non offendat.2 But if the place of pay-
ment or of performance is different from that of the contract, then
the interest may be validly contracted for at any rate not exceed-
ing that which is allowed in the place of payment or performance.
And in the absence of any express contract as to interest, the law
of the same place will silently furnish the rule, where interest is to
be implied or allowed for delay (ex mord) of payment, or perform-
ance.8 [And generally the lex fori will govern the allowance of
interest for delay of payment, and the rate thereof, unless it be
shown that the lea loci contractis requires a different rule.*]

§ 297. But, clear as the general rule, as to interest, is, there are
cases, in which its application has been found not without embar-
rassments. Thus, where a consignor in China consigned goods for
sale in New York, and delivered them to the agent of the con-
signee in China, and the proceeds were to be remitted to the con-
signor in China, and there was a failure to remit, the question
arose, whether interest was to be computed according to the rate
in China, or the rate in New York. Mr. Chancellor Kent held,
that it should be according to the rate in China. But the appel-
late court reversed his decree, and decided in favor of the rate in
New York. Each court admitted the general rule, that the inter-
est should be according to the law of the place of performance,
where no express interest is stipulated. But the Court of Chancery

* Ante, § 272, 278 a; post, § 317, 329.

* Dig. lib. 22, tit. 1,11; Id.1. 87; ante, § 294; 1 Eq. Abr. Interest, E. ;
Champant v. Renelagh, Prec. Ch. 128; De Sobry v. De Laistre, 2 Harr. & Johns.
R. 193, 228. See 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 1, p. 29, 30.

* Ante, § 291; 2 Kent, Comm. Lect. 32, p. 460, 461, 8d edit.; Robinson v.
Bland, 2 Burr. R. 1077; Ekins v. East India Company, 1 P. W. 396; Boyce v.
Edwards, 4 Peters, R. 111; 2 Fonbl. Eq. B. 5, ch. 1, § 6; Fanning v. Consequa,
17 Johns. R. 511; De Sobry v. De Laistre, 2 Harr. & Johns. R. 193, 228; Smith
v. Mead, 3 Conn. R. 253; Winthrop v. Carlton, 12 Mass. R. 4; Foden »v. Sharp,
4 Johns. R. 183; Henry on Foreign Law, p. 53.

* Porter v. Munger, 22 Ver. 437.
§ 295 — 298.] FOREIGN CONTRACTS. 383

thought, that the delivery of the goods being in China, and the re-
mittance being to be made there, the contract was not complete,
until the remittance arrived, and was paid there. The appellate
court thought, that the delivery of the goods in China, to be sold
at New York, was not distinguishable in principle from a delivery
at New York; and, that the remittance would be complete, in the
sense of the contract, the moment the money was put on board the
proper conveyance in New York for China; and it was then at the
risk of the consignor. The duty of remittance was to be performed
in New York, and the failure was there; and consequently the
rate of interest of New York only was due.}

§ 298. Another case has arisen of a very different character.
The circumstances of the case were somewhat complicated ; but
the only point for consideration there arose upon a note, of which
the defendants were the indorsers, and with the amount thereof.
they had debited themselves in an account with the plaintiff; and
which they sought now to avoid upon the ground of usury. The
note was given in New Orleans, payable in New York, for a
large sum of money, bearing an interest of ten per cent, being the
legal interest of Louisiana, the New York legal interest being seven
per cent only. The question was, whether the note was tainted
with usury, and therefore void, as it would be if made in New
York. The Supreme Court of Louisiana decided, that it was not
usurious ; and that, although the note was made payable at New
York, yet the interest might be stipulated for, either according to
the law of Louisiana, or according to that of New York. The
court seems to have founded their judgment upon the ground, that
in the sense of the general rule, already stated,” there are, or there
may be, two places of contract ; that, in which the contract is actu-
ally made ; and that, in which it is to be paid or performed ; locus,
ubi contractus celebratus, est ; locus, wbi destinata solutio est ; and,
therefore, that if the law of both places is not violated, in respect
to the rate of interest, the contract for interest will be valid? In

! Consequa v. Fanning, 3 Johns. Ch. R. 587, 610; S. C,17 Johns. R. 511, 520,
521. See Grant v. Healey, 2 Chand. Law Reporter, 113; S.C. 3 Sumner, R.
523 ; ante, § 284 a.

2 Ante, § 280,

= Depau v. Humphreys, 20 Martin, R. 1. — Mr. Chancellor Walworth, in Chap-
man v. Robertson, 6 Paige, R. 627, 634, has expressed his entire concurrence in
the decision in 20 Martin, R. 1. And see Canegie v. Morrison, 2 Mete. 381;
Pecks v. Mayo, 14 Ver. 33, where an able judgment is pronounced by Redfield,
J. But see Van Schaike v. Edwards, 2 Johns. Ch. Cas. 355.
384 CONFLICT OF LAWS. [cH. va.

support of their decision the court mainly relied upon the doc-
trines, supposed to be maintained by certain learned jurists of
continental Europe, whose language, however, does not appear to
me to justify any such interpretation, when properly considered,
and is perfectly compatibl® with the ordinary rule that the interest
must be, or ought to be, according to the law of the place where
the contract is to be performed, and the money is to be paid. It
may not be without use to review some of the more important au-
thorities thus cited, although it must necessarily involve the repe-
tition of some, which have been already cited.

§ 299. There is no doubt, that the phrase lex loci contractis
may have a double meaning or aspect; and, that it may indiffer-
ently indicate the place, where the contract is actually. made, or
that, where it is virtually made according to the intent of the par-
ties, that is, the place of payment or performance.1 We have
seen, that the rule of the civil law clearly indicates this. Con-
tractum autem non utique eo loco intelligitur, quo negotium gestum
sit; sed quo solvenda est pecunia.2, Many distinguished jurists
refer to this distinction. Huberus, in the passage already cited,
says: Verum tamen non ita precisé respiciendus est locus, in quo
contractus est initus, ut st parles. alium in contrahendo locum re-
spexerint, tlle non potius sit considerandus.2 Everhardus (as we
have seen) says: Ubi certus locus solutioni faciende destinatus
est, tunc non facta solutione in termino et loco prefixo mora dici-
tur contrahi in loco destinate solutionis, et non in loco celebrati con-
tractus. Nimirum, ergo, si inspiciatur valor rei debite secundum
locum, ubi destinata est solutio. Tum etiam, quia locus contrac-
tus, conventio, sive obligatio, perficitur, seu verba proferuntur.
Secundo, ubi solutio sew deliberatio destinatur.4 And he adds:
Quia dico, ut supra dixi; quod locus contractus dicitur duobus mo-
dis ; primo, ubi contractus celebratus est; secundo, ubi solutio des-
_tinata est® And again: Duplex est locus contractus, ut supra dizi,
quo casu in tantum censetur contractus celebratus in loco destinate
solutionis, quod nullo modo censetur celebratus in loco, ubi verba
Juerunt prolata, quoad ea, que veniunt post contractum in esse pro-

1 2 Boullenois, Observ. 46, 446 ; ante, § 235.

* Dig. Lib. 42, tit. 5, 1.8; Pothier, Pand. Lib, 42, tit. 5, n. 24; ante, § 280.
® Ante, § 239, 281; Huber. Lib. 1, tit. 3, § 10.

* Everhard. Consil, 78, n. 10, 11, p. 205; ante, § 295.

§ Everhard. Consil. 78, n. 18.
4 298 - 299 a.] FOREIGN CONTRACTS. 885

ductum.1 Paul Voet places it in a strong light. Ne tamen hic
oriatur confusio, locum contractus duplicem facio; alium, ubi fit,
de quo jam dictum ; alium, in quem destinata solutio. Illud locum
verum, hunc fictum appellat Salicetus.2 Uterque tamen recte locus
dicitur contractis, etiam secundum leges civiles, licet postremus
aliquid fictionis contineat.?

§ 299 a. But for what purpose do these foreign jurists refer to
the distinction? Is it, that the validity of the same contract is to
be at the same time ascertained in part by the law of one country,
and in part by that of another? By no means. They nowhere
assert, that the validity of the contract is not to be judged of
throughout by one and the same law, that is, by the law of the
place, where it is made, or by the law of the place, where it is to be
performed, according as, in a just sense, with reference to the na-
ture and objects of the particular contract, the one or the other is
properly to be deemed the place of the contract. They nowhere
assert, that one and the same rule is not to apply throughout to
all the stipulations in the contract. That the contract is good,
notwithstanding it doesnot conform either to the law of the place,
where it is made, or to that, where it is to be performed. That
the contract is to be treated, not as a whole; but is to be distrib-
uted into parts; so that, if in some of the stipulations it violates
the law of each place, it shall still be good throughout, if it does
not violate in the whole the law of both places. In many of the
passages cited in support of the supposed mixed character, and
mixed interpretation, and mixed operation of the contract, these
learned jurists were considering questions of a very different na-
ture. Some of them were considering the question as to the rule,.
which is to govern generally in regard to the formalities, solemni-
ties, and modes of execution of contracts, where the place of exe-
cution is the same place, where it is made; others again were
considering the rule, as to the interpretation and extent of the ob--
ligation of contracts generally, under the like circumstances; and
others again were considering the rule, where the contract is made
in one place, and is to be executed in another. We are therefore

1 Tbid. n. 17; Id. u. 20.

? Lib. 1, Cod. tit. 1, Summ. Trinit. n. 4. °

® Voet, De Stat. § 9, ch. 2, § 11, p. 270, edit. 1715; Id. p. 326, edit. 1661. See
also, 2 Boullenois, Observ. 46, p. 488; Boullenois, Quest. sur. Contr. des Lois, p.
330 to p. 338,

CONFL. 33
= °
886 CONFLICT OF LAWS. [cH. VIL

to understand their language according to the particular occasion,
and the particular circumstances, to which it is applied.

§ 300. Let us examine then the particular language, which is
used by these jurists, in the passages cited. Thus Alexander is
said to use the following passage :! In scriptura instrumenti, in
ceremontis, et solemnitatibus, et generaliter in omnibus, que ad
formam et perfectionem contractis pertinent, spectanda est consue-
tudo regionis, ubi fit negotium. Debet enim servari statutum loci
contracts, quoad hec, que oriuntur secundum naturam ipsius con-
tractus. This language expresses only a general truth, and we
have no means of knowing that the author intended to speak
here of anything further than the general rule, applicable to all
contracts made. and to be performed in the same place.?

§ 300 a. Burgundus says: Et quidem in scriptura instrumenti,
in solemnitatibus, et ceremoniis, et generaliter in omnibus, que ad
formam ejusque perfectionem pertinent, spectanda est consuetudo
regionis, ubi fit negotiatio. Rationem assignant Doctores quod
consuetudo influat in contractis, ef convenientes ad eum respicere,
ac voluntatem suam accomodare videantur. Et recte.2 Now wé
know upon what occasion this language was used. Burgundus
was here considering the question solely with reference to the
point, when a contract is to be deemed lawful, or not; or in other
words, by what law its validity is to be governed. llicita stipula-
tio est, (says he,) que legibus est interdicta, ut puta, si debitum
modum usurarum excedat. Nunc ergo considerandum, cujus loct

1 I cite the passage from Alexander, (Consil. 37,) as I find it in 20 Martin, R.
22, 23, not having been able to obtain the works of Alexander. But I have some
doubt, whether the first part of the passage. is not copied by mistake from Bur-
gundus, who uses almost the identical language. Burgundus, Tract. 4, n. 7, p.
104; post, § 300 a. I now suspect that the citation is not (as I supposed it was)
from Alexander al Alexandro, but by a mistake of the court in 20 Martin, R. 22,
23, (probably taking it at second hand from some other author,) from Alexander
Tartagni Jmolens (or De Imola) who wrote a large work in 5 and 7 vols. folio, of
Consilia, published Mediol. 1488, 1489. Lipenius in his Bibl. Jurid. vol. 1, p.
333, refers to this work. 1842. Everhardus in his Consil. 78, in several sections
refers to Alex. de Imola, Consil. 37, and Consil. 49.

2 From other passages cited by Everhardus from Alexander de Imola, and Bar-
tolus, and Baldus, it seems clear, that they all consider the locus solutionis to be
the proper locus contractiis, except so far as regards the solemnities and creation
of the contract. (Solemnitatem et subsistentiam contractis.) See Everhard.
Consil. 78, n. 20, p. 207 ; Id. n. 24, p. 208.

5 Burgundus, Tract. 4, n. 7, p. 1043; ante, § 260.
§ 299 a—3005.] FOREIGN CONTRACTS. 387

ratio haberi debeat.. He does not even allude to a case, where
the contract is made in one place, and is to be performed in an-
other place. He adds: Igitur, ut paucis absolvam, quoties de vin-
culo obligationis, vel de ejus interpretatione qaeritur, veluti, quos
et in quantum obliget, quid sententie, stipulationis inesse, quid
abesse credi oporteat ; item in omnibus actionibus, et ambiguitati-
bus, que inde oriuntur, primum quidem id sequemur, quod inter
partes actum erit, aut si non apparet, quid actum est, erit conse-
quens, ut id sequamur, quod in regione, in qué actum est, frequen-
tatur.2 And he concludes by saying: Doctores toties ingerunt ea,
que respiciunt solemnitatem actus, vel que tempore contractus ex
natura ipsius adhibentur, oriunturque, ex more regionis, ubi con-
tractum est, legem accipere. Ea vero, que ad complementum vel
executionem contractus spectant vel absoluto eo superveniunt, solere
a statuto loci dirigi, in quo peragenda est solutio.

§ 800 b. Everhardus says: Quod quo ad perfectionem contractus
séu ad solemnitatem ad esse seu substantiam ejus requisitam semper
inspicitur statutum seu consuetudo loci celebrati contractus. Et est
ratio, quia ex quo agitur de consuetudine contrahendi non mirum,
st inspiciatur locus inite conventionis, ubi contractus accepit perfec-
tionem.4 But he immediately adds: Sed ubi agitur de consuetw-
dine solvendt, ut in casu presenti, (that is, where a contract, made
in one place, was payable in another,) vel de his, que veniunt im-
plenda diu post contractum, et in alio loco impletioni destinato, tunc
inspicitur locus destinate solutionis. Now, this latter passage would
seem as strictly to apply to the case of payment of interest, as to
the case of payment of principal. If the parties have not stipulated
for a particular rate of interest, the usage of the place of payment
ought constantly to govern. If they have stipulated for a particu-
lar rate of interest, inconsistent with that of the lex loci solutionis,
the question wifl still remain, whether it can lawfully be done.
Everhardus has not here discussed it; far less has he decided it.
And he cites Baldus in support of his opinion, as saying: Quod in

* expeditivis contractus non inspiciuntur ordinativi contractus, sed
locus solutionis.6 He afterwards adds, that this rule, in regard to

1 Td. n. 6, p. 104.

? Burgundus, Tract. 4, n. 7, p. 105.

* Id. n. 29, p. 116. See also Id. n. 10, p. 109; ante, 292 a, § 293 ¢.

* Everhard. Consil. 78, n. 11, p. 246; Id. n. 18, p. 207; Id. n. 27, p. 209.
5 Ibid. n. 17, p. 207; Id. n.:27, p. 209.
388 CONFLICT OF LAWS. [cH. VIII.

the forms and solemnities, required in order to create and perfect
any contract, equally applies to cases, where the performance is to
be in the same place, and where it is to be in another place. Ubi
vero in uno loco celebratus est contractus, et in alio loco destinata
est solutio, tunc quoad ea, que concernunt solemnitatem actus, item
ad esse et perfectionem contractus, inspicitur consuetudo loci cele-
brati contractus. Unde si ex statuto loci contractus requiratur certa
solemnitas in ipso contractu, etc., tale statutum vel consuetudo debet
observari, licet in loco destinate solutionis non sit simile statutum2
How far this latter doctrine is correct and maintainable, as a gen-
eral rule, we have already had occasion, in some measure, to con-
sider.2 It is not material to the present discussion, which turns
upon another point, that is, whether the validity of a contract may
depend partly upon the law of one place, and partly on the law of
another place, some of its stipulations being contrary to the law of
each place.

§ 300 c. Christineus expressly professes to follow the doctrine
of Everhardus on this subject. Conswetudo loci, (says he,) ubi
contrahitur spectanda est, scilicet quoad observantiam solemnitatum
ipsius actis. Generalitur enim in omnibus, que ad formam ejusque
perfectionem pertinent, spectanda est consuetudo regionis ubi fit
negotiatio, quia consuetudo influit in contractus, et videtur ad eos
respicere, et voluntatem suam eis accommodare. Idiqué recté.
Conditio quoque loci et temporis perfectionem forme etiam respicit,
et idcirco @ regione contractis vicissim diriguntur? He adds:
Sed quoad ejus executionem, utpote quoad solutionem faciendam,
inspicienda venit consuetudo destinate solutionis* And again:
Quoad ea, que celebrato contractu veniunt facienda, inspicitur con-
suetudo loci, ubi ea debent fieri, puta, tradi, solvi.

§ 800 d. Gregorio Lopez states only the general doctrine.
Quando contractus celebratur in uno loco, puta in Hispali, et desti-
nata solutio in Cordube; tunc nod inspicitur locus contractis, sed
locus destinate solutionis ; ut habetur in ista Lege ff. 1. contraxisse$
Dumoulin (Molineus) says: In concernentibus contractum, ete
emergentibus tempore contractis, spectatur locus, in quo contra-

? Everhard. Consil. 78, n. 18, p. 207.

2 Ante, § 280. ;
* Christin. Decis. 288, Vol. 1, n. 1, 4, 5, 9, 10, 11, p. 255.
* Ibid. n. 8, 9, p. 855. 5 Thid. n. 10, 11, 355.

* 20 Martin, R. 9,17; ante, § 233; Dig. Lib. 44, tit, 7, lL. 21.
§ 300 b+ 300 e.] FOREIGN CONTRACTS. 389

hitur, et in concernentibus meram solemnitatem, cujus actis, locus,
in quo ille actus celebratur In another place he says: Aut
statutum loquitur de his, que concernunt nudam ordinationem et
solemnitatem actis ; et semper inspicitur statutum vel consuetudo
loci, ubi actus celebratur, sive in contractibus, sive in judictis, sive
in testamentis, sive in instrumentis aut aliis conficiendis. Aut sta-
tutum loquitur de his, que meritum scilicet cause, vel decisionem
concernunt ; et tunc, aut in his, que pendent &@ voluntate partium,
vel per eas immutart possunt, et tunc inspictuntur circumstantie,
voluntatis, quarum una est statutum loci, in quo contrahitur; et
domicilii contrahentium antiqui vel recentis, et similes circumstan-
tie? In another passage he finds fault with those who exclusively
look to the place where the contract is made in all cases. Quia
putant nuditer et indistincté quod debeat ibi inspict locus et consue-
tudo, ubi fit contractus, et sic jus in loco contractis.2 Quod est
falsum ; quinimo jus est it tacita et verisimiliter mente contrahen-
tium. He adds: Quia quis censetur potius contrahere in loco, in
quo debet solvere, quam in loco, ubi fortuito transiens contraxit.4
It is plain, that these passages do not justify the inference sought
to be adduced from them. They import no more, than that the
law, which is to govern contracts, is not, in all cases, to be exclu-
sively the law of the place, where they are made.

§ 300 e. Boullenois is also relied on in support of the doctrine.
In one of the passages cited he says: When the question is, wheth-
er, in contracts upon any subject, the rights which spring from
the nature and time of the contract, (natura et tempore contrac-
tés,) are lawful or not, it is necessary to follow the law of the
place, where the contract is made. And in another passage, he
says: When the question is, to determine the lawfulness of a rate
of rent, or annuity, (taux de rentes,) and in the place where the
contract is made, the rate is different from that, which is to be
paid, either in the country of the domicil of the debtor, or in that
of-the domicil of the creditor ; or finally, in the place where the
property hypothecated is situated ; the rate will be adjudged law-
ful, if it conforms to the law of the place, where the contract is

1 Dumoulin, cited in 20 Martin, R. 24; Molin. Comm. ad Consuet. Paris, tit. 1,
§ 12, gloss. 7, n. 37, tom. 1, p. 224, edit. 1681; 2 Boullenois, Observ. 46, p. 472.
2 Molinzeus, Comm. in Cod. Lib. 1, tit. 1, tom. 3, p. 554, edit. 1681.
3 Thid. * Thid.
5 2 Boullenois, Observ. 47, p- 472.
33 *
390 CONFLICT OF LAWS. [cu. var

made.! The context shows that Boullenois was only contemplat-
ing the case, where the contract was made in the place of its in-
tended performance. For he adds: This is the provision of the
law of the Digest (De Usuris,) where it is declared : Cum judicio
bone fidei disceptatur, arbitrio judicis usurarum modus ex more
regionis, ubi contractum est, constituitur ; ita tamen, ut legi non
offendat ;# and I believe it takes place whenever the parties de-
signedly contract in one place, rather than another.? The true
meaning of Boullenois, in this citation, may be gathered from his
own interpretation of the law of the Digest in another page, where
he cites, with approbation, the opinion of Gothofredus, that the
words “bi contractum” ought to be understood to mean the
place where the payment ought to be made. Hec verba, “ ubi
contractum est,” sic intellige, ubi actum est, ut solveret.5

§ 301. Bartolus has discussed the question somewhat at large,
how far the law of the place of the contract is obligatory upon for-.
eigners, and what effects the laws of the place of the contract have
beyond the territory. And first, (he says,) let us suppose a con-
tract made by a foreigner in one place, and afterwards a suit is
litigated thereon in another place, that of the origin of the con-
- tracting party; of which place ought the laws to be observed and
followed in deciding it? He says, we should make a distinction.
Either we speak of the statute or custom which respects the so-
lemnities of the contract, or of the process and proceedings in the
suit, or of those things which appertain to the jurisdiction in the
execution of the contract. In the first case, we are to look to the
law of the place of the contract; in the second case, (as to the
process and proceedings in the suit,) to the place of judgment.
Or else, we speak respecting those things which belong to the de-
cision of the cause ; and then the question is as to those things
which arise from the very nature of the contract itself in its ori-
gin, or as to those things, which arise afterwards on account of
negligence or delay. In the first case, the law of the place of the

1 2 Boullenois, Observ. 46, p. 472.

? Dig. Lib. 22, tit. 1, 1.1; Pothier, Pand. Lib. 22, tit. 1, n, 52; ante, § 296.

® 2 Boullenois, Observ. 46, p. 472; Id. p. 446. :

* 2 Boullenois, Observ. 46, p. 446.

5 Gothofred. n. 10, ad Dig. Lib, 22, tit. 1,1. 1.

* Everhardus manifestly understands Bartolus to speak with reference to con-

tracts, where payment is to be made in loco celebrati contractus. Everhard.
Consil, 78, n. 26, 27, p. 208,
§ 800 e, 801.] FOREIGN CONTRACTS. 891

contract is to be looked to, that is, the place where the contract is
made, and not where it is performed. In the second case, either
the payment is to be made in a fixed place, or alternately in sev-
eral places, so that the plaintiff has his election; or it is to be
made in no particular place, because the promise is simply made.
In the first case, the custom of the place is to be looked to, in
which the payment is to be made. In the second and third cases,
the place is to be looked to, where the suit is brought. His lan-
guage is: Et primo, utrum statutum porrigatur extra territorium
ad non subditos; secundo utrum effectus statuti porrigatur extra
territorium statuentium. Et primo, quero, quod de contractibus.
_ Pone contractum celebratum per aliquem forensem in hac civitate ;
litigium ortum est, et agitatur lis in loco originis contrahentis, cu-
jus loci statuta debent servari et spectari. Distingue. Aut loqui-
mur de statuto, aut de consuetudine, que respiciunt ipsius contractas
solemnitatem, aut litis ordinationem, aut de his, que pertinent ad
jurisdictionem ex tpso contractu evenientis executionis. Primo
casu, inspicitur locus contractus. Secundo casu, aut queris de
his,.que pertinent ad litis ordinationem, aut de his, que pertinent
ad litis ordinationem ; et inspicitur locus judicii. Aut de his, que
pertinent ad ipsius litis decisionem ; et tunc, aut de his, que oriun-
tur secundum ipsius contractis naturam tempore contractis, aut de
his, que oriuntur ex post facto propter negligentiam, vel moram.
Primo casu, inspicitur locus contractus, ubi est celebratus contrac-
tus; et intelligo locum contractus, ubi est celebratus contractus non
de loco, in quem collata est solutio. Secundo casu, aut solutio est
collata in locum certum, aut in pluribus locis alternative, ita quod
electio sit actoris; aut in nullum locum, quia promissio fuit facta
simpliciter. Primo casu inspicitur consuetudo, que est in illo loco,
in quem est collata solutio ; secundo et tertio casu, inspicitur locus,
ubi petitur. Ratio predictorum est, quia ibi est contracta negli-
gentia vel mora... Now taking this whole passage together, it is
difficult to misunderstand the meaning of Bartolus. It is plain,
that he did not intend to repudiate the common distinction, as
to the lex loci contractés and the lex loci solutionis. He gives
full effect to the latter, where a fixed place is prescribed for pay-
ment ; and whether he is right or not, that where no place of pay-
ment is named, the payment is to be made according to the law
of the place where it is demanded by the promisee ; he goes no

1 Bartolus, ad Cod. Lib. 1, tit. 1, 1. 1, n. 14, 15, 16, tom. 7, p. 4, edit. 1602.
892 CONFLICT OF LAWS. [cH. VoL

further than to assert the general proposition, that the law of the
place where the contract is made, is to govern in respect to its
solemnities, and that the law of the place of payment is to be re-
garded in cases of ‘payment.! He does not at all discuss the point
which we have now under consideration.

§ 801 a. These are the principal passages adduced from foreign
jurists, as authorities in support of the doctrine, that a contract is,
or may be valid, notwithstanding it does not in its entirety conform,
either to the law of the place where the contract is made, or to that
of the place where it is to be performed. Now, in the first place, it
is manifest, that many of these jurists, in the passages cited, speak
exclusively as to the formalities and solemnities, and modes of ex-
ecution of contracts; and they hold, that in these respects they
must conform to the law of the place where they are made. Some
of them make no distinction in the application of this rule, be-
tween cases of contracts to be performed in foreign places, and
cases of contracts to be performed in the place where they are
‘made. And, perhaps, the generality of language used by most of
them, even when they do not refer to this distinction, may be fairly
applied, indifferently, to both classes of cases. But several, and,
indeed, most of them do expressly and directly recognize the rule,
that, where the contract is made in one place, and is to be per-
formed in another, not only may the law of the latter be properly
called the locus contractus ; but that it ought in all respects, except
as to the formalities, and solemnities, and modes of execution, to
be deemed the rule to govern such cases.

§ 301 5. In the next place, when these foreign jurists speak of
payment or performance, they all agree, that the contract must be
governed by the law of the place of payment or performance, and
not by the law of the place where the contract is made. How,
then, are we to distinguish between different parts of the payment?
If principal and interest are both to be paid in a foreign place, how
can the law of that place govern, as to the one, and not as to the
other? As these jurists make no distinction in respect to the pay-
ment of principal, and that of interest, but say generally, that the
payment must be according to the law of the place where the pay-
ment is to be made, it is certainly a reasonable inference, that they
did not intend to make any exception whatsoever, but deemed

* Bartolus, ad Cod. Lib. 1, tit. 1, a. 14, 15, 16, tom. 7, p- 4, edit. 1602. See
Vidal v. Thompson, 11 Martin, R. 23.

.
§ 301-301] FOREIGN CONTRACTS. 393

both the principal and the interest governed by the same rule.
Indeed, it will be found exceedingly difficult to maintain any dis-
tinction between them, which is not purely artificial and arbitrary ;
for interest is but an incident or accessory to principal.

§ 801 ¢c. But we need not rest entirely on the silence of foreign
jurists in these passages ; for the subject of interest will be found
to be expressly treated by some of them; and, therefore, if any
exception was intended by them, there, the exception would
naturally have found its appropriate place. The omission of any
exception becomes, under such circumstances, peculiarly signifi-
cant. Let us, therefore, review, in this connection, some of the
passages in which the subject of interest is expressly or impliedly
discussed.

§ 301 d. Everhardus says: Aut querimus, quis locus inspicia-
tur, quoad accessoria, utputa expensas et damna de jure canonico,
et usuras de jure civili, si minores vel leviores sunt in uno loco,
quam in alio, et similiter ; certum est, quod inspicitur locus desti-
nate solutionis ; nedum quoad principalem obligationem, sed etiam
quoad accessoria.! And he insists, that the leading jurists whom
he quotes, hold the same opinion. This language would seem to
be as direct as possible to the present inquiry ; and it affirms that
the lex loci solutionis must govern, as well as to the interest, as
to the principal, the former being merely accessorial to the- latter.
It is no answer to suggest, that he meant to speak of interest ex
moré, or interest, not expressly provided for ; because there is no
such qualification in his language, and it. is positive, as well as
general, as to the accessorial rights, under all circumstances.

§ 801 e. Christineus avows the same doctrine, sic etiam inspt-
citur statutum loci destinate solutionis, si agatur de extinctione ac-.
tionis per prescriptionem staturiam vigentem in uno loco, et non in
alio. Item si agatur de accessoriis, ut de expensis, damnis et in-.
teresse, aut denique usuris, si majores vel minores sint in uno loco,
quam in alio2

§ 301 f. Paul Voet may fairly be deemed to hold the same
opinion. After having said, in the passage already cited, that
there may be a double place of the contract, one where it is made,
and the other, where it is to be paid or performed, he immediately
adds: Hinc ratione effectus, et complementi tpsius contractus, spec-.

1 Everhard. Consil. 78, n. 24, p. 208; Id. n. 27, 28, 29, p. 208, 209.

* Christin. Decis. 283, n, 12, 13, Vol. 1, p. 355. it

.
394 CONFLICT OF LAWS. [cH. vim.

tatur ille locus, in quem destinata est solutio, id, quod ad modum,
mensuram, usuras, etc., negligentiam et moram post contractum ‘int-
tum accedentem referendum est;1 and he then refers to several
authorities in support of this opinion. It seems plain from this
language, in this connection, that, as to interest, he deemed the
true law, by which the legality of the contract was to be adjudged,
was the law of the place of payment.

§ 802. In one passage, Burgundus says, that interest is to be
allowed according to the place of the contract; and that, if the
question comes under consideration in a foreign court, the interest
stipulated, though higher than what is lawful by the lea fori,
ought to be allowed. But, where no interest is stipulated, there,
the interest is to be ex mord, according to the law of the place of
payment.? His language is: Quare et usurarum modus is consti-
tuendus est, qui in regione, in qua‘est contractum, legitimé cele-
bratur. Et cum redditus duodenarius in Gallia stipulatus, in
controversiam incidisset, patrocinante me, judicatum est, in Curia
Flandria, valere pactum ; nec obesse, quod in Flandria, ubi reddi-
tus constitutus, sive hypothece impositus proponeretur, usara semisse
graviores stipulari non liceat. Quia ratio hypothece non habetur,
que hac in re nihil conferens ad substantiam obligationis, tantum
extrinsecus accedit legitime stipulationi. Sed, hoc intellige de
usuris+in stipulationem deductis, non autem de tis, que ex mora
debentur, in quibus ad locum solutionis (ut docemus postea) respt-
cere oportet.2 Now, if such be the rule, where the contract is
made in France, and to be performed there, the converse would
seem equally to be correct, if the contract had been made in
France to be performed in Flanders; that the contract would be
void for usury as against the law of the latter. In another place
he says: Idem ergo de solutionibus dicendum, scilicet, ut in omni-
bus, que ex ed sunt, aut inde oriuntur, aut circa illam consistunt,
aut aliquo modo affinia sunt, consuetudinis loci spectemus, ubi eam-
dem implere convenit.t He adds: Itaque ex solutione sunt solem-
nia, valor rei debite, pretium monete; ex solutione oriuntur pre-

* P. Voet, de Statut. § 9, ch. 2, n. 12, p. 270, edit. 1715 ; Id. p. 326, edit. 1661;
ante, § 281.

* 20 Martin, R. 28; Burgundus, Tract. 4, n. 10, p. 109. See also Vidal v.
Thompson, 11 Martin, R. 23.
* Burgundus, Tract. 4, n. 10, p. 109.

* Burgundus, Tract. 4, n. 25, 26, p. 114,115; Id. n. 10, p. 109; 2 Boullenois, .
Observ. 46, p. 488, 498; ante, § 293 e.
§ 801 f-303.] FOREIGN CONTRACTS. 895

statio apoche, antigraphe, similiaque ; circa solutionem consistunt
pondera, mensure bonitas expense, mora, damna, interesse, usura
ex mora debite, et ejusmodi. And he concludes by stating the
reason of the doctrine as given by all jurists. Rationem mutuan-
tur & Juris Consultis, qui unumquemque vult in eo loco contraxisse
intelligi, in quo, ut solveret, se obligavit.2 So that, if this lan-
guage is to be interpreted in its broad sense, the interest must, in
all cases, be according to the law of the place of performance.?
Burgundus’s opinion may, perhaps, by some persons be thought of
less yalue, however, because he applies the like rule to prescrip-
tions. Affinia solutioni sunt prescriptio, oblatio rei debite, con-
signatio, novatio, delegatio, et ejusmodi.*

§ 308. Boullenois has nowhere, to my knowledge, directly and
positively treated the question, whether the interest may be stipu-
lated for according to the place of the contract, when payment is
to be made in another place where it would be illegal. “The cita.
tions already referred to,’ which are supposed to countenance the
affirmative, put the case only of a rate of interest, or of an annuity,
good by the law of the place of the contract, (and for aught that.
appears, payable there,) and hold, that it will be good, although
different from the law of the domicil of the creditor, or debtor, or
even from the law of the place, where the property, pledged for
security, is situate.6 There is, however, a passage, which seems
to indicate, although not directly, an opinion of Boullenois in the
negative. After referring to, and approving the doctrine of Gotho-
fredus, that interest is to be according to the law of the place of
payment, he adds, that it is in this sense, that Gothofredus is to.
be understood, in what he says of the Law, 20, of the title of the
Digest de Jurisdictione,’ where he supposes a Parisian, who has
contracted at Rome (Demus Rome contractum esse); and in-
quires, whether the Parisian, if-sued at Paris, shall be condemned
to pay the interest prescribed by the law of Rome for the delay ;
and he answers in the affirmative, saying: Jd videtur. Contrac-

1 Burgundus, Tract. 4, n. 27, p. 115.

4 Thid. n. 29, p. 116.

® Thid, n. 10, p. 109, ante, § 293 a.

“ Burgundus, Tract. 4, n. 28, p. 116; 2 Boullenois, Observ. 46, p. 488, 498;
ante, § 300 e.

5° Ante, § 300 e

® 2 Boullenois, Observ. 46, p. 472, 473,

" Dig. Lib. 2, tit. 1,1. 20; Gothofred. n, 37.
396 CONFLICT OF LAWS. [ou. vim.

tus enim istius initium vitio caret. Boullenois says, that this
decision is very just in effect, if we suppose that the Parisian has
not only made the contract at Rome, but also has promised to pay:
at Rome. The natural inference certainly would be, that if he
expressly agreed to pay interest, that he should pay according to
the rate of interest at,the place of payment.

§ 304. It may then be affirmed with some confidence, that the
foreign jurists, who have been relied on, do not establish the as-
serted doctrine. On the other hand there are other foreign ju-
rists, whose doctrines lead to an opposite conclusion. Thus, John
Voet says, if a stipulation for a high interest is allowed in one
place, and in another it is prohibited, the law of the place, where
the contract is made, is to decide, whether it is good, or whether
it exceeds that which, is allowable. Nevertheless, we must re-
member, that, in point of law, that is not properly to be deemed
the place of the contract, where the business is transacted, but
where the money is, by the contract, to be paid. But good faith
must also be observed ; and the place of the contract, where higher
interest is allowed, must not be sought for the purpose of evading
the law. He adds; that an hypothecation of property, as security,
situated in another place, where the interest is lower, will not
vary the rule; for the security will be treated as merely acces-
sorial. And it is more equitable, that the accessorial contract
should be governed by the law of the place, where the principal
contract is made, than, on the contrary, that the principal contract
should be governed by the law of the place in which the acces-
sorial contract is made.”

1 2 Boullenois, Observ. 46, p. 446,

* Voet, ad Pand. Lib. 22, tit. 1, § 6, tom. 1, p. 938; Id. Lib. 4, tit. 1, § 29,
tom. 1, p. 241; ante, § 293d. I have given the sense, although not a precisely
literal translation of the passage. The words are: Si alio in loco graviorum
usurarum stipulatio permissa, in alio vetita sit, lex loci, in quo contractus cele-
bratus est, spectanda videtur in questione, an moderate, an vero modum exce-
dentes usurz per conventionem constitute sint. Dummodo meminerimus, illum
proprie locum contractiis in jure non intelligi, in quo negotium gestum est, sed in
quo pecuniam, u. solvevet, se quis obligavit. Modo etiam bona fide omnio gesta
fuerint, nec consulto talis ad mutuum contrahendum locus electus sit, in quo gra-
viores usure, quam in loco, in quo alios contrahendum fuisset, probate conve-
nientur. Etiamsi de cxetero hypotheca in sortis et usurarum securitatem obligata,
in alio loco sita sit, ubi sole leviores usuree permisse ; cum zquius sit, contractum
accessorium regi ex loco principalis negotii gesti, quam ex opposito contractum
principalem regi lege loci, in quo accessorius contractus celebratur. It appears
$303 -804 a.] FOREIGN CONTRACTS. 897

. § 3804 a. If to this doctrine, thus maintained by John Voet,
-Chimself an author of distinguished weight and ability,) we add

‘to me, that the first part of the passage has been misunderstood, or at least mis-
translated, in Depau v. Humphreys, 20 Martin, R. 32. The reasoning of the court
upon the passage will here be given, in justice to that learned tribunal. “The
authority: of the passage,” says Martin, J., in delivering the opinion of the court,
“from Voet remains to be examined. This author says: Si alio in loco graviorum
‘usurarum stipulatio permissa, in alio vetita sit, ‘lex loci, ubi contractus celebratus
est, spectanda videtur, an moderates, an vero modum excedentes usure, per con-
‘ventionem stipulate sint. If in a place, the stipulation of higher interest be per-
‘mitted, in another forbidden, the law of the place, in which the contract: was
-gelebrated, is to be resorted to, in order to ascertain, whether the lesser or the
greater rate of interest be stipulated by the contract. Thus far Voet teaches
“what we have seen Alexander, Bartolus, Burgundus, Everhard, Strykius, and
‘Boullenois ‘teach, and the contrary, of which no other commentator positively
‘asserts ; what, in our opinion, every sound principle of law dictates. But the
appellant’s counsel urges, that Voet, unsays, in the succeeding paragraph, what
she appears to have so emphatically expressed. The words of the second para-
-graph are: Dummodo meminerimus illum proprie locum contractis, in jure non
intelligi, in quo negotium gestum est, sed in quo, ut pectiniam solveret, se obligavit.
In the argument, which the appellee’s counsel draws, in this respect, he is fully
supported, by what is said, arguendo, by Lord Mansfield, in Robinson v. Bland,
‘and in some degree, by Judge Kent, in the same manner, in the case of Van
Schaick v. Edwards, already cited. In endeavoring to ascertain the character of
_the rate of interest, stipulated in a note given in Massachusetts, Judge Kent says:
‘ Had the money, for instance, in this case been made payable at Albany, or else-
“where i in this State, (New York,) then perhaps the decision in Robinson v. Bland,
“would have applied’ If, in the second paragraph, Voet meant to introduce an
‘exception to the rule laid down in the first ; if he meant to teach, that the legality
of arate of conventional interest, arising not ex mora, but tempore contractiis,
is exclusively to be tested by the law loci solutionis, even when it is different
from the law loci celebrati contractus; then, we cannot consider him as affording
to us a legitimate rule of decision in the present case ; because the weight of his
authority is borne down by that of a crowd of the most respectable commentators
of the law he cites. Perhaps, he must be understood, in the second paragraph,
_to convey to the student a warning, that by what he teaches in the first, he must
not be understood to impugn the proposition, that, in a great degree, the law loci
solutionis, influences the obligation of the party, who bound himself, ut solveret
‘pecuniam. Upon the whole, we must conclude, as we did in Norris v. Eves, and
’ Vidal v. Thompson, that contracts are governed by the law of the country, in
which they were made, in everything which relates to the mode of construing
them, the meaning to be attached to the expressions, by which the parties bound
themselves, and the nature and validity of the engagement. But that, wherever
the obligation be contracted, the performance must be according to the law of the
place where it is to take place... In other words, that in a note executed here, on
a loan of money made here, the creditor may stipulate for the legal rate of con-
CONFL. 34
898 CONFLICT OF LAWS. (cH. VIL.

the concurrent testimony of Huberus, Everhardus, Christinzus,
and Paul Voet, already cited} on the same side, and the entire
absence of any direct and absolute authority to the contrary, it is:
not perhaps too much to affirm, that the decision already alluded
to of the Supreme Court of Louisiana, is not supported by the
reasoning or the principles of foreign jurists. It is certainly also
at variance with the doctrine maintained by Lord Mansfield, and
the Judges of the King’s Bench, in a highly interesting case, (al-
though not positively necessary to the judgment then pronounced,)
that the law of the place of payment, or performance, constitutes
the true test, by which to ascertain the validity or invalidity of
contracts. And finally, in a very recent case the Supreme Court
of the United States have adopted the doctrine, that, where a con-
tract is made in one place, to be executed in another, it is to be
governed, as to usury, by the law of the place of performance, and
not by the law of the place where it is made. So, that if the
transaction is bond fide, and not with intent to evade the law
against usury, and the law of the place of performance allows a
higher rate of interest than that permitted at the place of the
contract, the parties may lawfully stipulate for the higher interest.5
But, then the transactions must be bond fide, and not intended as
a mere cover of usury.° Bouhier, indeed, thinks that every con-
tract of this sort would almost from its very terms and nature im-
port a design to evade the laws, and to cover usury. But he man-
ifestly presses the presumption far beyond its legitimate application;
for the circumstances of the case may often establish, that the con-
tract is perfectly innocent and praiseworthy.

[* § 804 6. ,We had occasion to examine this question of inter-

ventional interest authorized by our law, although such a rate be disallowed in
the place, at which payment isto be made.” If I am right in the remarks in the
text, it will be found, that the authorities cited by the learned judge by no
means justify the judgment. See Bouhier, Cout. de Bourgogne, Vol. 1, ch. 21,
p- 313; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 773, 774, 775.

1 Ante, § 299, 300 b, § 300 c.

? Depau v. Humphreys, 20 Martin, R. 1.

® See the late case of Carnegie v. Morrison, 2 Metc. R. 391. Curtis, argu-
endo.

* Robinson v. Bland, 2 Burr. 1077. -See also, Van Schaick v. Edwards, 2
Johns. Cas. 355.

5 Andrews v. Pond, 13 Peters, R. 65, 77, 78.

" Bouhier, Cout. de Bourg. Vol. 1, ch. 21, p. 413,
§304a-305.] + FOREIGN CONTRACTS, 399

est with some care,! and found, as we thought at the time, the fol-
lowing propositions established by the authorities.

_ 4, If a contract is entered into in one country to be performed
in another, and the rate of interest differ in the two countries, the
parties may stipulate the rate of interest of either country, and
thus by their own express contract, determine, with reference to
the law of which country, that incident of the contract shall be
decided.

2. If the contract so entered into stipulate for interest gener-

ally, it shall be the rate of interest of the place of payment, un-
less it appear the parties intended to contract with reference to the
law of some other place.
. 8, If the contract stipulate for the payment of money, at a time
and place named, and no interest be stipulated, and payment be
delayed, interest, by way of damages, shall be allowed according
to the rate at the place of payment, where the money may be sup-
posed to be required by the creditor for use, and where he might
be supposed to have borrowed to supply the deficiency caused by
the default, and to have paid the rate of interest of that country.

The early cases are here carefully reviewed, and we are not
aware that the law upon this question has undergone any subse-
quent change, The precise point here decided is, that a promis-
sory note made in Canada, and indorsed in Vermont, in both of
which places the rate of legal interest is six per cent, and payable
in New York, where the legal rate of interest is sevén per cent,
the same not being paid at maturity, both the makers and indors-
ers are liable for seven per cent interest, as damages, for the de-
lay of payment, there being no interest stipulated in the note.]

§ 805. It has been said, that, if the principle be, that a con-
tract, valid in the place where the contract is celebrated, is void,
if it is contrary to the law of the place of payment, it must estab-
lish the converse proposition, that a contract, void by the law of
the place where it is made, is valid, if good by the law of the place
of payment.2 This would seem to be reasonable; and the doc-
trine is supported by the modern cases, notwithstanding the old

[*! Pecks v. Mayo, 14 Vert. R. 38, 38. But in Ives v, Farmers’ Bank, 2 Allen,
236, it is held that interest for delay of payment beyond the time stipulated,
where the contract does not give interest in terms, must be reckoned according to
the lex fori, it being there regarded as a mere rule of damages. ]

? Depau v. Humphreys, 20 Martin, R. 1, 30.
400 CONFLICT OF LAWS. : {cH. VIL.

cases have been supposed to lead to a contrary conclusion. In one
case, a bond was executed in Ireland for a debt contracted in Eng-
land ; and because it constituted a security on lands in Ireland,
Lord Chancellor Hardwicke held, that it was valid, although it bore
the Irish interest of seven per cent. But he thought it would have
been otherwise if it had been a simple contract debt; or if the bond
had been executed in England.? Mr. Chancellor Kent has cor-
rectly laid down the modern doctrine ; and he is fully borne out by
the authorities. ‘‘ The law of the place,” says he, ‘‘ where the con-
tract is made, is to determine the rate of interest, when the contract
specifically gives interest ; and this will be the case, though the loan
be secured by a mortgage on lands in another state, unless there
be circumstances to show, that the parties had in view the law of
the latter place in respect to interest. When that is the case, the
rate of interest of the place of payment is to govern.’’ ®

[*§ 305 a. But if the contract stipulate for a rate of interest
which is lawful, either in the place where the contract is made, or
in that of payment, but not in the other, it should be construed as
intended by the parties to have. been made with reference to the
law of the place where it will be legal, since no contract is to be
held to have been intended to have been made in violation of the
law, so long as there is any reasonable sense or construction in
which it can be made consistent with the ‘law, and which it was
competent for the parties to adopt.

§ 805 6. But where the loan is applied for in New York by a
citizen of Massachusetts, with the proposition to secure the same
by mortgage upon real estate, which proposition is accepted by
letter addressed to the borrower in Massachusetts, who thereupon
sends the note and mortgage to the lender in New York, who re-
turns the money, it was held that the contract as to usury must
be governed by the law of Massachusetts, which left the contract
in force, after deducting three times the amount of the excess of
interest.‘]

‘1 Conner v. Bellamont, 2 Atk. R. 382.

* Stapleton v. Conway, 3 Atk. R. 727; S.C. 1 Ves. R. 427, See Dewar v.
Span, 3 T. R. 425.

5 2 Kent, Comm. Lect. 39, p. 460, 461, 8d edit.; D’Wolf v. Johnson, 10
Wheaton, R. 367; Scofield v. Day, 20 Johns. 102; Thompson v. Powles, 2
Simons, R, 194; Robinson v. Bland, 2 Burr. 1077; Boyce v. Edwards, 4 Peters,
R. 111. But see Chapman v. Robertson, 6 Paige, R. 627, 630.

[** Pine v. Smith, 11 Gray, 38.]
§ 304 - 307.] FOREIGN CONTRACTS. 401

§ 306. But it has been asked, if this be the established doctrine,
of what use is it for any legislature to pass a law for the protec-
tion of the weak and necessitous?+ And the case of minors has
been mentioned, as exhibiting the inconvenience of the principle.
But we have already seen, that minors in one country may law-
fully contract in another, in which they are deemed of age.? The
true answer to all such suggestions is, that no country can give to
its own.laws any extra-territorial authority, so as to bind other na-
tions. If it undertakes to legislate in regard to acts done, or con-
tracts performed elsewhere, it can claim for its own laws no other
yalidity, than such as the comity of other nations may choose to
allow towards them. It may, if it chooses, deem all such acts
and contracts valid, or invalid, according to its own laws; but
it cannot impose a like obligation on other nations, so to treat
them. The repose and common interest of all nations, therefore,
require each to observe towards all others the principles of recip-
rocal justice and comity; and these, as we have seen, are best
subserved by the adoption of the general rule, that the law of the
place of the contract and payment shall govern.®

§ 307. Analogous to the rule respecting interest would seem to
be the rule of damages in cases of contract, where damages are to
be recovered for a breach thereof ex mord, or where the right to
damages arises ex delicto, from some wrong, or injury done to per-
sonal property. Thus, if a ship should be illegally or tortiously
converted in the Hast Indies by a party, the: interest there will be
allowed by way of damages in a suit against him. So, the rate
of damages on a dishonored bill of exchange will be according to
the lex loci contractés of the particular party.2 So if a bill of ex-
change be made in one state and indorsed in another state, and
again indorsed by a second indorser in a third state, the rate of
damages upon the dishonor of the bill will be against each party
according to the law of the place, where his own contract had its
origin, either by making, or by indorsing the bill.® So, if a note,

2 Depau v. Humphreys, 20 Martin, R. 1, 30.

2 Saul v. His Creditors, 17 Martin, R. 596, 597; ante, § 82.

3 Ante, § 242, 280.

* Ekins v. East India Company, 1 P. Will. 395, 396 ; Consequa v. Willing, Pe-
ters, Cir. R. 225; Id. 303 ; Holmes v. Barclay, 4 Louis. Ann. R. 64.

_§.Slacum v. Pomeroy, 6 Cranch, 221; Hazelhurst v. Kean, 4 Yeates, R. 19;
Pothier on Oblig. n. 171. [* But see ante, § 304 6.]

® Post, § 314, 317.
34 *
402 CONFLICT OF LAWS. ‘Le. vin?

made in a foreign country, is for the payment of a weriatn sum in
sugar, and by the custom of that place, the like notes are payable
in sugar at a valuation, the law of the place is to govern in as-
sessing the damages for a breach thereof.

[*§ 807 a. The principle, here enunciated by the learned au-
thor and discussed more in detail in subsequent sections? seems to
be one of great inconvenience ; and not altogether consistent with
principle, if we run the matter a little more into detail. The
note, or bill, or contract, whatever it is, and whether negotiable,
or not, will not vary the principle, is one thing. It is for the pay-
ment of a certain sum expressed in currency, or in specie or kind;
at a particular place, either expressly or by construction. It is
the law of the place of payment, confessedly, which determines
what currency or measure was intended. Interest, by way of dam-
ages for delay of payment, and probably, where the contract car-
ries interest before maturity, must be reckoned according to the
law of the place of payment. Why then, it may be asked, should
different parties to the same contract, who have become, either pri-
marily, or secondarily, liable for its payment; or it may be that
such liability is, or was, in its inception, conditional ; be held lia-
ble to different rates of damages, for delay of payment, when the
mode of estimating the amount embraced in the contract is the
same as to all? It seems very obvious, that the indorser is bound
only to the extent, and that he must be bound to the full extent,
of the maker or acceptor, both as to the amount due at maturity,
and the ratio of damages for a failure to pay at maturity. It
would be strange that a surety upon the same identical paper
could be held to any different obligation from the principal, or
from another surety, who had assumed his obligation in a different
country, And the same rule must, upon principle, and in justice,
apply to all guarantors of the same contract, in whatever es
whether by the same or distinct instruments.®

§ 307 6. But in avery late English case,‘ where a bill of ex-
change was drawn in Canada, upon parties in England, and there
accepted by them payable to parties residing in Canada, it was
held that the acceptor was liable for interest and damages accord-

1 Courtois v. Carpentier, 1 Wash. Cir. R. 376.

[* ? Post, § 814, 317.
2 Ante, § 304 d.

* In re The State Fire Insurance Company, 9 Jur. N.S. 298.
§ 807 -807 e.] FOREIGN CONTRACTS. 403

ing to the provincial statute of Canada, fixing the rate of interest
‘on all foreign bills at six per cent, and the damages at ten per cent
for default of payment. This was a decision in Chancery by Vice-
Chancellor Wood.

§ 307 c. There is a late English case,! in which this subject is
very extensively discussed at the bar, and the opinion delivered by
Mr. Justice Byles, the author of the treatise upon Bills of Ex-
change. It is here decided, that if a bill be drawn in England on
A. B. in Vienna, and A. B. does not pay the bill on present-
ment, the holder is entitled to have from an indorser such a sum
in English money as would have enabled him in Vienna, on the
day of the maturity of the bill, to purchase there the number of
Austrian florins which he ought to have received from A. B., plus
the expense necessary for him to incur in order to obtain them,
and interest. This must be regarded as the present state of the
English law. The judge here illustrates the point very fully, to
show that each and all the parties to the same bill, whenever they
become responsible for its payment, can only be held -responsible
to the extent of the primary and principal debtor.

§ 807 d. In general where actions ex delicto are held transitory,
and suits allowed to be maintained in a foreign forum, the right of
action and the nature and extent of damages must be estimated
according to the law of the place where the wrong was commit-
ted. And in a recent English case,? Wightman, J., thus states
the general rule of law, as to torts committed abroad: That a
British subject may maintain an action, in this country, against
another British subject to recover damages for an assault and bat-
tery committed in a foreign country, although by the law of that
country no damages are recoverable for that trespass.

§ 807 e. In the same case it was held, that in an action between
two non-resident foreigners, for damages for an assault, battery
and imprisonment, committed in Naples, the place of their domicil
and birth, it was not a sufficient plea in bar, that by the law of
Naples no action, for private damages, for such a tort, could be
maintained until after the defendant had been convicted, in a pub-
lic prosecution for the offence, and that the suit for that purpose
was still pending and, undetermined in the courts of Naples ; and
that it made no difference in that respect, whether the damages

1 Suse v. Pomp, 7 Jur. N. 8. 166; 8. C. 8 C. B. N.S. 538.
* Seymour (Lord) v. Scott, 1 H. & C. 219; 9 Jur. N. §. 522.]
404 ; CONFLICT OF LAWS. [cH. vi,

sued for in the English suit were recoverable in the suit pending
in the Neapolitan court or not, all those questions having refer-
ence to the remedy only.]

§ 808. Where a contract:is made in one country, and is payable
in the currency of that country, and a suit is afterwards brought
in another country, to recover for a breach of the contract, a ques-
tion often arises as to the manner in which the amount of the debt
is to be ascertained, whether at the nominal or established par
value of the currencies,of the two countries, or according to the
rate of exchange at the particular time existing between them.
In all cases of this sort, the place where the money is payable, as
well as the currency, in which it is promised to be paid, are (as.
we shall presently see) material ingredients.! For instance, a
debt of £100 sterling is contracted in England, and is payable
there; and afterwards a suit is brought in America for the recoy-
ery of the amount. The present par fixed by law between the two
countries is, to estimate the pound sterling at four dollars and
forty-four cents? But the rate of exchange, on bills drawn in
America on England, is generally at from eight to ten per cent
advance on the same amount. In a recent case, it was held by
the King’s Bench, in an action for a debt payable in Jamaica, and
sued in England, that the amount should be ascertained by adding
the rate of exchange to the par value, if above it; and so, vice.
versd, by deducting it, when the exchange is below the par? Per.
haps it is difficult to reconcile this case with the doctrine of some
other cases. In a late American case, where the payment was to
be in Turkish piastres, (but it does not appear from the report,
where the contract was made, or was made payable,) it was held
to be the settled rule, “ where money is the object of the suit, to

1 Post, § 310.

* This is the par for ordinary commercial purposes. But by the Act of Con-
gress of 1832, ch. 224, § 16, the par, for the purpose of estimating the value of
goods, paying an ad valorem duty, and for that purpose only, is declared to be to
estimate a pound sterling at four dollars and eighty cents. The still more recent
Act of 22d duly, 1842, ch. 66, makes the par, for estimating duties in like cases,
at four dollars and eighty-four cents for the pound sterling.

* Scott v. Bevan, 2 Barn. & Adolph. 78. Lord Tenterden in delivering the
opinion of the court in favor of the rule said: “ Speaking for myself personally,
I must say, that I still hesitate as to the propriety of the conclusion.” See

Delegal v. Naylor, 7 Bing. R. 460; Ekins v. East India Company, 1 P, Will.
396.

“ See Cockerell v. Barber, 16 Ves. 461; post, § 312.
§ 807 e-3810.] FOREIGN CONTRACTS. 405

fix the value according to the rate of exchange, at the time of the
trial.” It is impossible to say, that a rule laid down in such gén-
eral terms ought to be deemed of universal application ; and cases
may easily be imagined, which may justly form exceptions.

§ 809. The proper rule would seem to be, in all cases, to allow
that sum in the currency of the country where the suit is brought,
which should approximate most nearly to the amount to which the
party is entitled in the country where the debt is payable, calcu-
lated by the real par, and not by the nominal par of exchange.”
This would seem to be the rule, also, which is adopted by foreign
jurists.2 In some countries there is an established par of exchange
by law, as in the United States, where the pound sterling of Eng-

land is now valued at four dollars and forty-four cents for all pur-
poses, except the estimation of the duties on goods paying an ad
valorem duty.t In other countries, the original par has, by the
depreciation of the currency, become merely nominal ; and, there,
we should resort to the real par. Where there is no established
par from any depreciation of the currency, there, the rate of ex-
change may justly furnish a standard, as the nearest approxima-
tion of the relative value of the currencies. And where the debt
is payable in a particular known coin, as in Sicca rupees, or in
Turkish piastres, there the mint value of the coin, and not the
mere bullion value, in the country where the coin is issued, would
seem to furnish the proper standard, since it is referred to by the
parties in their contract, by its descriptive name as coin. 2

§ 810. But in all these cases we are to take into consideration
the place where the money is, by the original contract, payable ;
for wheresoever the creditor may sue for it, he is entitled to have

1 Lee v. Wilcocks, 5 Serg. & Rawle, 48.— It is probable, that in this case the
money was payable in Turkey.

* In Cash v. Kennon, (11 Vesey, R. 314,) Lord Eldon held, that, if a man in a
foreign country agrees to pay £100 in London, upon a given day, he ought to
have that sum there on that day. And if he fails in that contract, wherever the
creditor sues him, the law of that country ought to give him just as much as he
would have had, if the contract had been performed. J. Voet says: “ Si major,
alibi minor, eorundem nummorum valor sit, in solutione facienda ; non tam spec-
tanda potestas pecuniz, que est in loco, in quo contractus celebratus est, quam
potius que obtinet in regione ill4, in qué contractus implementum faciendum est.”
Voet, ad Pand. Lib. 12, tit. 1, § 25; Henry on Foreign Law, 43, note. See also
ante, § 281; 8 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 771, 772,
778.

® Ante, § 281. "* Ante, § 308, n. 2. i
406 ; CONFLICT OF LAWS. [cH. vin,

an amount equal to what he must pay, in order to remit it to that
country.1 Thus, if a note were made in England for £100 ster.
ling, payable in Boston (Mass.), if a suit were. brought in Massa. -
chusetts, the party would be entitled to recover four hundred and
forty-four dollars and forty-four cents, that being the established
par of exchange by our laws. But, if our currency had become
depreciated by a debasement of our coinage, then the depreciation,
ought to be allowed for, so as to bring the sum to a real par, in,
stead of the nominal par.” But if a like note were given in Eng.
land for £100, payable in England, or payable generally (which
in legal effect would be the same thing); there, in a suit in Mas.
sachusetts, the party would be entitled to recover, in addition to
the four hundred and forty-four dollars and forty-four cents, the
rate of exchange between Massachusetts and England, which is or-
dinarily from eight to ten per cent above par. And if the ex-
change were below par, a proportionate deduction should be made;
so that the party would have his money replaced in England at
exactly the same amount which he would be entitled to recover in
a suit there.

§ 311, This distinction may, perhaps, reconcile some of the
cases, between which there might seem, at first view, to be an ap-
parent contrariety. It was evidently acted on in! an old case,
where money, payable in Ireland, was sued for in England; and
the court allowed Irish interest, but directed an allowance to the
debtor for the payment of it in England, and not in Ireland? It
is presumable, that the money was of less value in Ireland than in
England. A like rule was adopted in a later case, where money
payable in India was recovered in England; and the charge of
remitting it from India was directed to be deducted.

* See 1 Chitty on Comm. and Manufact. ch. 12, p. 650, 651. See ante, § 281,
308.

* Paul Voet has expressed an opinion upon this subject in general terms.
“ Quid, si in specie de nummorum aut redituum solutione difficultas incidat,
forte valor sit immutatus; an spectabitur loci valor, ubi contractus erat celebrar
tus, an loci, in quem destinata erat solutio? Respondeo, ex generali regula, spee-
tandum esse loci statutum, in quem destinata erat solutio.” P.-Voet, de Stat. § 9,
ch. 2, § 15, p. 271; Id. p. 328, edit, 1661. And he applies the same rule, where
contracts are for qpeaifia articles, the measures whereof are different in different
countries. Id, § 16, p. 271; Id. p. 828, edit. 1661.

® Dungannon v. Hackett, 1 Eq. Cas. Abr, 288, 289.

* Ekins v. The East India Company, 1 P. Will. 396; S. C. 2 Bro. Par. Cas.
382, edit. Tomlins.
§810~ 811 4.] FOREIGN CONTRACTS. 40T

§ 811 a. There is, however, an irreconcilable difference in some
of the authorities on this subject. Thus, it has: been held in New
York, that, where a debt is contracted in a foreign country and is
payable there, if the creditor afterwards sues the debtor here for
the debt, he is entitled to recover only for the debt according to
the par of exchange, and not according to the rate of exchange,
hecessary to remit the amount to the foreign country. On that
occasion the court said: “ The debt is to be paid according to the
par, and not the rate of exchange. It is recoverable and payable
here to the plaintiffs, or their agent, and the courts are not to in-
‘quire into the disposition of the debt, after it reaches the hands of
the agent. He may remit the debt to his principal abroad in bills
of exchange, or he may invest it here on his behalf, or transmit it
to some other part of the United States, or to other countries on
the same account. We cannot trace the disposition which is to
take place subsequent to the recovery, nor award special dam-
ages upon such uncertain calculations.! The same doctrine hag
been adhered to in subsequent decisions.? It has also been adopted
by the Supreme Court of Massachusetts, as the proper rule in all
cases, except bills of exchange.2 On the contrary, in the Circuit

Courts of the United States the opposite doctrine has been main-
tained.

' Martin v. Franklin, 4 Johns. R. 124, 125.

* Scofield v. Day, 20 Johns. R. 102.

5 Adams v. Cordis, 8 Pick. R. 260, 266, 267.

4 Smith v. Shaw, 2 Wash. Cir. R. 167, 1684 Grant v. Healey, 2 Chand. Law
Reporter, 113; 8. 0. 3 Summer, R. 523; ante, § 284. In this last case the
subject was canna at great length ; sind the following remarks were made by
the judge, in delivering the opinion of the court. “I take the general doctrine to -
be elear, that whenever a debt is made payable in one country, and is afterwards
sued for in another country, the creditor is entitled to receive the full sum neces-
saty to replace the money in the country where it ought to have been paid, with
interest for the delay ; for then and then only, is he fully indemnified for the vio-
lation of the contract. In every such case the plaintiff is, therefore, entitled to
“have the debt due to him first ascertained at the par of exchange between the two
countries, and then to have the rate of exchange between those countries added
to, or subtracted from, the amount, as the case may require, in order to replace
the money in the country where it ought to be paid. It seems to me, that this
doctrine is founded on the true principles of reciprocal justice. The question,
therefore, in all cases of this sort, where there is not a known and settled com-
mercial usage to govern them, seems to me to be rather a question of fact: than of
law. In cases of accounts and advances, the object is to ascertain where, accord-
ing to the intenion of the parties, the balance is to be repaid ? ? In the country of
408 CONFLICT OF LAWS. [cH. VII.

§ 312. In one\ case, where by a will made in India, a legacy was
given of 30,000 i rupees, and the testator afterwards died in

the creditor or of the debtor? In Lanusse v. Barker, (3 Wheat. R. 101, 147,)
the Supreme Court of the United States seem to have thought, that where money
is advanced for a person in another state, the implied understanding i is to replace
it in the country where it is advanced, unless that conclusion is repelled by the
agreement of the parties, or by other controlling circumstances. Governed by
this rule, the money being advanced in Boston, so far as it was not reimbursed
out of the proceeds of the sales at Trieste, would seem to be proper to be repaid
in Boston. In relation to mere balances of account between a foreign factor and
a home merchant, there may be more difficulty in ascertaining where the balance
is reimbursable, whether where the creditor resides, or where the debtor resides,
Perhaps it will be found, in the absence of all controlling circumstances, the truest
rule and the easiest in its application, that advances ought to be deemed reim-
-bursable at the place where they are made, and sales of goods accounted for at
the place where they are made, or authorized to be made. Thus, if a consignment
4s made in one country for sales in another country, where the consignee resides,
the true rule would seem to be, to hold the consignee bound to pay the balance
there, if due from him; and if due to him, on advances there made, to receive the
balance from the couslgna there. The case of Consequa v. Fanning, (3 Johns. Ch.
R. 587, 610,) which was reversed in 17 Johns. R. 511, proceeded upon this intelli-
gible ground, both in the Court of Chancery, and in the Court of Errors and Ap-
peals, the difference between these learned tribunals not being so much in the rule,
‘as in its application to the circumstances of that particular case. I am aware, that
a different rule, in respect to balances of account and debts due and payable in a
foreign country, was laid down in Martin v. Franklin, (4 Johns. R. 125,) and
Scofield v. Day, (20 Johns. R. 102); and that it has been followed by the Su-
preme Court of Massachusetts, in Adams v. Cordis, (8 Pick. R. 260.) It is with
unaffected diffidence, that I venture to express a doubt as to the correctness of
-the decisions of these learned courts upon this point. It appears to me, that the
‘reasoning in 4 Johns. R. 125, which constitutes the basis of the other decisions, is
far from being satisfactory. It states very properly, that the court have nothing
.to do with inquiries into the disposition which the creditor may make of his debt
.after the money has reached his hands; and the court are not to award damages
upon such uncertain calculations, as to the future disposition of it. But that is
not, itis respectfully submitted, the point in controversy. The question is, whether
af a man has undertaken to pay a debt in one country, and the creditor is
,compelled to sue him for it in another country, where the money is of less value,
. the loss is to be borne by the creditor, who is in no fault, or by the debtor, who by
;the breach of this contract has occasioned the loss. The loss, of which we here
.Speak, is not a future contingent loss. It is positive, direct, immediate. The very
.Tate of exchange shows, that the very same sum of money, paid in the one country,
is not an indemnity or equivalent for it, when paid in another country, to which by
.the default of the debtor the creditor is bound to resort. Suppose a man under-
takes to pay another $10 ,000 in China, and violates: his contract ; and then he is
-sued therefor in Boston, when the money, if duly paid in China, would be worth
at the very moment 20 per cent more than it is in Boston; what compensation is
§ 312.] FOREIGN CONTRACTS. . 409

England, leaving personal property, both in England and in India;
upon a suit in chancery for the legacy, the master, to whom it was

it to the creditor to pay him the $ 10,000 at the par in Boston? Indeed, I do not
perceive any just foundation for the rule, that interest is payable according to the
law of the place where the contract is to be performed, except it be the very same
on which a like claim may be made as to the principal, namely, that the debtor
undertakes to pay there, and therefore is bound to put the creditor in the same
situation as if he had punctually complied with his contract there. It is suggest-
ed, that the case of bills of exchange stands upon a distinct ground, that of usage ;
and is an exception from the general doctrine. I think otherwise. The usage
has done nothing more than ascertain what should be the rate of damages for a
violation of the contract generally, as a matter of convenience and daily occur-
rence in business, rather than to have a fluctuating standard dependent upon the
daily rates of exchange ; exactly for the same reason that the rule of deductin

one third new for old is applied to the cases of repairs of ships, and the deduction
of one third from the gross freight is applied in cases of general average. It cuts
off all minute calculations and inquiries intoevidence. But in cases of bills of ex-
change, drawn between countries where no such fixed rate of damages exists, the
doctrine of damages, applied to the contract, is precisely that which is sought to
be applied to the case of a common debt due and payable in another country ;
that is to say, to pay the creditor the exact sum, which he ought to have received
in that country. That is sufficiently clear from the case of Mellish v. Simeon, (2
H. Black. R. 378,) and the whole theory of re-exchange. My brother, the late
Mr. Justice Washington, in the case of Smith v. Shaw, (2 Wash. Cir. R. 167, 168,
in 1808,) which wasa suit brought by an English merchant on an account for
goods shipped to the defendant’s testator, where the money was doubtless to Be
paid in England, and.a question was made, whether, it being a sterling debt, it
should be turned into currency at the par of exchange, or at the then rate of ex-
change, held, that the debt was payable at the then rate of exchange. To which
Mr. Ingersoll, at that time one of the ablest and most experienced lawyers at the
Philadelphia bar, of counsel for the defendant, assented. It is said, that the point
was not started at the argument, and was settled by the court suddenly, without
advancing any reasons in support of it. I cannot but view the case in a very dif-
ferent light. The point was certainly made directly to the court, and attracted
its full attention. The learned judge was not a judge accustomed to come to sud-
den conclusions, or to decide any point which he had not most scrupulously and
Geliberately considered. The point was probably not at all new to him; for it
must frequently have come under his notice in the vast variety of cases of debts
due on account by Virginia debtors to British creditors, which were sued for dur-
ing the period in which he possessed a most extensive practice at the Richmond
bar. The circumstance, that so distinguished a lawyer as Mr. Ingersoll assented
to the decision, is a further proof to me that'it had been well understood in Penn-
sylvania to be the proper rule. If, indeed, I were disposed to indulge in any crit-
icism, I might say, that the cases in 4 Johns. R. 125, and 20 Johns. R. 101, 102,

do not appear to have been much argued or considered ; for no general reasoning
is to be found in either of them upon principle, and no authorities were cited. The

CONFL. 35

~
410 CONFLICT OF LAWS. [cH. vin.

referred, estimated the Sicca rupees at 2s. 6d. per Sicca rypee,
‘being the East India Company’s rate of exchange between India
and Great Britain, (i. e. on bills drawn in India on Great Britain,)
at the time the legacy became due. At the same time, the par or
sterling value of the Sicca rupees in India and England was 2s. 1d.
per Sicca rupee ; and the East India Company’s rate of exchange
between Great Britain and India, (i. e, on bills drawn in England
on India,) was 2s. 8d. Upon exceptions taken to the report, it
was contended, that either the par of exchange, or the rate’of ex-
change between Great Britain and India ought to have been
adopted. Lord Eldon on that occasion said: “In all the cases
reported upon the wills of persons in Ireland or Jamaica, and
dying here, and vice versd in this country, some legacies being
expressed in sterling money, others in sums, without reference to
the nature of the coin in which they are to be paid, the legacies
are directed here to be computed according to the (real) value of
the currency of the country to which the testator belonged, or
where the property was; and I apprehend no more was done in
such cases than ascertaining the value of so many pounds in the
current coin of the country, and paying that amount out of the
funds in court. On the other hand, I do not believe the court
have ever said they would not look at the value of the current
coin of the country, but would take it as bullion. At the time of
Wodd’s half-pence in Ireland, whatever was their actual worth,
yet payment in England must have been according to their nominal
current value, not the actual value. So whatever was the current
value of the rupee at the time when this legacy ought to be paid, is-
the ratio according to which payment must be made here in pounds
sterling. If twelve of Wood’s half-pence were worth sixpence in
this court, sixpence must have been the sum paid. And in a pay-
ment in this court the cost of remittance has nothing to do with
it. So if the value of 30,000 rupees, at the time the payment
- ought to have been made in India, was £10,000, that is the sum
to be paid here, without any consideration as to the expense of
remittance.” And he accordingly directed the master to review

arguments and the opinion contained little more than a dry statement and decis-
ion of the point. The first and only case, in which the question seems to have
been considered upon a thorough argument, is that in 8 Pick. R. 260. I regret
that I am not able to follow its authority with a satisfied assent of mind.”

? Cockerell v. Barber, 16 Ves, 461, 465.
§ 812, 313.] FOREIGN CONTRACTS. 411

his report, and the legacies to be paid, according to the current
value of the Sicca rupee in Calcytta.1

§ 813. In considering this decision, it is material to observe,
that the will was made in India, and, of course, the legacy pay-
able there ; and the testator died in Bigbinid. leaving personal assets
in both countries. Under these circumstances, the legatee was not
compellable to resort to England for payment of the legacy; but
he elected of his own merelbctioiaa to receive it there. He might
have resorted to India, if he had pleased ;? and if so, he would
have been entitled to the exact amount of 30,000 Sicca rupees,
according to their current value there. He ought not, then, by
resorting to a court in England, to oblige the estate to bear the
charge of the remittance of the amount to England, with which it
-was charged by the master’s report. Nor ought the estate, upon
his mere election to receive the amount in England, to pay for the
remittance of the same from England to India. The decree of the
court was, therefore, manifestly right, and consistent with the
principles above stated. The language of the court, however, does
not seem to put the case upon this clear ground; but to put it
upon the ground, that the valwe, at the par of exchange, (not in-
deed the nominal, but the real par,) without any reference to the
place of payment, or of remittance, was, in all cases, the true rule.
It admits, however, of some doubt, whether the court intended to
make so general an application of its language, and did not intend
to restrain it to the circumstances of the particular case. Suppose
the executor in India had remitted all the funds to England, and
_ had become domiciled there, and the legatee had always lived in
India; would not the latter, having no other means of getting
payment but by a suit in England, have been entitled to the charge
of remittance to India? Without expressing any opinion upon
the subject, it may, perhaps, be thought worthy of further consid-
eration. Some of the cases,? already cited, are certainly at vari-
ance with this decision, if it is to be deemed to assert a doctrine
of universal application. :

1 Cockerell v. Barber, 16 Ves. 461, 465.

* See Bourke v. Ricketts, 10 Ves. 332, and Raithby’s Notes to Ranelagh v.
Champant, 2 Vern. 395; Saunders v. Drake, 2 Atk. R. 466; Stapleton v. Con-
way, 1 Ves. 427.

8 Scott v. Bevan, 2 Barn. & Adolph. 78. See also Delegal v. Naylor, 7 Bing.
R. 460, which apparently supports | the rule in Scott v. Bevan, and ante, § 308,

809, 311, 311 a.
* In the case of mixed money, in Sir John Davies's Reports [28,] 48, there is a
412 . CONFLICT OF LAWS. [cH. va.

§318 a. The question touching the effect of a depreciation of the
currency between the time-when the debt is contracted, or it be-
comes due, and the subsequent payment thereof, which was hinted
at in the preceding case, has since arisen in a more direct and
solemn form, and undergone no inconsiderable discussion. The
French government, during the war between England and France,
had confiscated a debt due from a Frepch subject to a British sub-
ject ; ard subsequently an indemnity” was stipulated for, on the
part of the French government; and, there having been a great
depreciation of the French currency after the time when the debt
was confiscated, the question arose, whether the debt was to be
calculated at the value of the currency at the time, when the con-
fiscation took place, or subsequently ; and it was held, that it
ought to be calculated according to the value at the time of the
confiscation. On that occasion, the case in Sir John Davies’s Re-
ports, already alluded to,! was referred to, as well as the opinions

curious discussion, as to the nature and changes of English currency. A bond
was given in England for the payment of “£100 sterling, current and lawful
money of England,” to be paid in Dublin, Ireland; and between the time of
giving the bond, and its becoming due, Queen Elizabeth by proclamation, re-
ealled the existing currency in Ireland, and issued a new debased coinage, (called
mixed money,) declaring it to be the lawful currency in Ireland. A tender was
made in this debased coin, or mixed coin, in Dublin, in payment of the bond.
The question, before the Privy Council of Ireland, was, whether the tender was
good, or ought to have been in currency, or value, equal tothe current lawful
money, then current in England. The court held the tender good ; first, because
the mixed money was current lawful of England, Ireland being within the sover-
eignty of the British crown ; and secondly, because the payment being to be in
Dublin, it could be made in no other currency, than the existing currency of Ire-
land, which was the mixed money. The court do not seem to have considered,
that the true value of the English current money might, if that was required by
the bond, have been paid in Irish currency, though debased, by adding so much
more, as would bring it to the par. And it is extremely difficult to conceive, how
a payment of current lawful money of England could be interpreted to mean
current, or lawful money of Ireland, when the currency of each kingdom was dif-
ferent, and the royal proclamation made a distinction between them, the mixed
money being declared the lawful eur rency of Ireland only. Perhaps the desire
to yield to the royal prerogative of the queen a submissive obedience, as to all
payments in Ireland, may account for a decision so little consonant with the prin-
‘ciples of law in modern times. See also the comments on this case in the case of
Pilkington v. Commissioners for Claims, 2 Knapp, R. 18 to 21; S. C. cited 2 Bligh,
R. 98, note. See K Kearney v, King, 2 Barn. & Ald, 801; Sprnwle v. Legg, 1 Barn.
& Cress. 16,
' Ante, § 312, 313, note 2.
§ 818 4.] | FOREIGN CONTRACTS. 413

of foreign jurists on the same subject ; and Sir William Grant, in
delivering the opinion of the court, said: “ Great part of the argu-
ment at the bar would undoubtedly go to show, that the commis-
sioners have acted wrong in throwing that loss upon the French
government in any case ; for they resemble it to the case of depre-
ciation of currency,. hamponint: between the time that a debt is
contracted, and the time that it is paid ; and they have quoted
authorities for the purpose of showing, that in such case the loss
must be borne by the creditor, and not by the debtor. That point
it is unnecessary for the present purpose to consider, though Vin-
nius, whose authority was quoted the other day, certainly comes
to. a conclusion directly at variance with. the decision in Sir John
Davies’s Reports. He takes the distinction, that if, between the
time of contracting the debt and the time of its payment, the cur-
rency of the country is depreciated by the state, that is to say,
lowered in its intrinsic goodness, as if there were.a greater propor-
tion of alloy put into a guinea or a shilling, the debtor should not
liberate himself by paying the nominal amount. of his debt in the
debased money ; that is, he may pay in the debased money, being
the current coin, but he must pay so much more, as would make
it equal to the sum he borrowed. But he says, if the nominal
value of the currency, leaving it unadulterated, were to be in-
creased, as if they were to make the guinea pass for 30s., the
debtor may liberate himself from a debt of 1/. 10s. by paying a
guinea, although he had borrowed the guinea, when it was but
worth 21s. .I have said it is unnecessary to consider whether the
conclusion drawn by Vinnius, or the decision in Davies’s Reports,
be the correct one; for we think this has no analogy to the case of
ereditor and debtor. There is a wrong act done by the French
government ; then they are to undo that wrong act, and to put the
party in the same situation as if they never-had done it. It is as-
sumed to be a wrong act, not only in the treaty, but in the repeal-
ing decree. They justify it only with reference to that which, as
to this country, has a false foundation ; namely, on the ground of
what other gqvernments had done towards them, they having con-
fiscated the property of French subjects; therefore, they say, we
thought ourselves justified at the time in retaliating upon the sub-
jects of this country. That being destitute of foundation as to this
country, the republic themselves, in effect, confess that no such
decree ought to have been thade, as it affected the subjects of this
35 *
414 CONFLICT OF LAWS. _ (cu. vie

country. Therefore it is not merely the case of a debtor paying a
debt at the day it falls due; but it is the case of a wrongdoer, who
must undo, and completely undo, the wrongful act he has done ;
and if he has received the assignats at the value of 50d., he does
not make compensation by returning an assignat, which is only
worth 20d. ; he must make up the difference between the value of
the assignat at different periods. And that is the case stated by
Sir John Davies, where restitutio in integrum is stated. He says,
two cases were put by the judges, who were called to the assistance
of the Privy Council, although they were not positively and for-
mally resolved. He says, it is said if a man upon marriage receive
1,000/. as a portion with his wife, paid in silver money, and the
marriage is dissolved causd precontractus, so that the portion is
to be restored, it must be restored in equal good silver money,
though the state shall have depreciated the currency in the mean
time. So if 4 man recover 1002. damages, and he levies that in
good silver money, and that judgment is afterwards revised, by
which the party is put to restore back all he has received, the
judgment creditor cannot liberate himself by merely restoring 1002.
in the debased currency of the time; but he must give the very
same currency that he had received. That proceeds upon the
principle, that if the act is to be undone, it must be completely
undone, and the party is to be restored to the situation in which
he was at the time the act to be undone took place. Upon that
principle, therefore, undoubtedly the French government, by re-
storing assignats at the end of thirteen months, did not put the
party in the same situation in which he was when they took from
him assignats that were of a very different value. We have sdid,
that as this point is not directly or immediately before us, it can
make no part of our decree. At the same time, it may not per-
haps have been without some utility to have given an opinion upon
it, inasmuch as it was argued and discussed at the bar. And we
think, therefore, the commissioners have proceeded on a perfectly
right principle in those cases, in which we understand they have
made an allowance for the depreciation of paper-mogey ; and con-
sidering that this case does not differ from those in which they
have made that allowance, we are of opinion that the claimants
ought to have the same equity administered to them in remuner-
ating them for the loss they have sustained.” }

' Pilkington v. Commissioners for Claims, 2 Knapp, R. 17 to 21.
i)
§ 318 a, 318 b.] FOREIGN CONTRACTS. 415

§ 318 6. The opinions of Vinnius and Pothier, alluded to in
the opinion of Sir William Grant, fully confirm his statements.
Vinnius is of opinion that the value of the money at the time
when it ought to be paid, is the value which is to be allowed to
the creditor. Of the same opinion, he adds, are Bartolus, and
Baldus, and De Castro, and indeed of jurists generally, with the
exception of Dumoulin, and Hotomannus, and Donellus, who
think the value at the time of making the contract ought to gov-
ern. Hence, after having discussed the principle, Vinnius says,
in conformity with the opinions of the former jurists: Hoc autem
fundamento posito, siquidem neutri contrahentium injuriam fieri
volumus, ita definiendum videtur, ut si bonitas monete intrinseca
mutata sit, tempus contractus, si extrinseca, id est valor impositi-
tius, tempus solutionis in solutione facienda, spectari debeat. Po-

“4 ‘Vinnius, ad Instit. Lib. 3, tit. 15, Textus, De Mutuo, Comm. n. 12, p. 599,
edit, 1726; Id. p. 664, edit. 1777, Lugduni. The whole passage deserves to be
cited. Atque hinc pendet-decisio nobilissimee questionis, si post contractum
zstimatio nummorum creveret aut decreverit, utrum in solutione facienda spec-
tare oporteat valorem, quem habebant tempore contractus, an qui nunc est
tempore solutionis: intellige si nihil, de ea re expresse dictum sit, neque mora
intervenerit. Molinzeus, Hotomannus, Donellus contendunt, tempus contractus
inspiciendum esse, id est, ea estimatione nummos reddendos, non que nunc est,
sed que initio fuit, cum dabantur. Nimirum nihil illi in pecunia numerata preter
zstimationem considerandum putant, totamque nummi bonitatem in hac ipsa esti-
matione consistere : ac proinde creditori non facere injuriam, qui eandem zstima-
tionem, quam accepit, reddit : tantum enim reddere eum, quantum accepit, quod
ad solutionem mutui sit satis. Itaque secundum horum sententiam, si 100. aurei
mutuo dati sint, cum aureus valebat asses 50. reddantur autem, cum singuli valent
asses 55. debitor reddens creditori aureos 90. aut in singulos aureos 50. asses red-
dit, quantum accepit, et liberatur : et vicissim si imminuta sit ad eundum modum
accepit, et liberatur: et vicissim si imminuta sit ad eundem modum aureorum
zstimatio, non liberatur, nisi reddat aureos 110. aut in singulos aureos asses 55.
Bartolus vero (in 1. Paulus. 101. de solut.) Baldus (in 1. res in dotem, 24. de jur.
dot.) Castro, in lib, 3, de reb. ered. et DD. comm. ut videre est apud Boer.
decis. 327. contra censent, spectandum esse in propésito tempus solutionis, id est,
aucto vel deminuto nummorum valore, ea estimatione reddi eos oportere, non
que tune fuit, cum dabantur, sed que nunc est, cum solvuntur; neque aliud
statui posse sine creditoris aut debitoris injuria. Que sententia, ut mihi videtur,
et verior et equior est. Nam quod contrarie sententie auctores unicum urgent,
in nummis non materia, sed solius estimationis imposite atque extern, quam ob
id vulgo extrinsecam nummi bonitatem vocant, rationem duci, nummumque nihil
aliud esse, quam quod publicé valet, vereor, ut simplicitur verum sit. Utique
enim materia numismatis fundamentum est et causa valoris: quippe qui variatur
Bre diversitate materiz : oportetque valorem hune justa aliqua proportione mate-
riz respondere: neque in bene constituta repub. nummo ea estimatio imponi
416 CONFLICT OF LAWS. [cH. vm.
a

thier holds the opposite opinion, and says: “It remains. to be
observed, in regard to the price, that it may be rendered in a
money different from that in which it is paid. If it is paid to the
seller in gold, the seller may repay it in pieces of silver, or vice
versé. In like manner, though subsequent to the payment of
the price, the pieces in which it is paid are increased or dimin-
ished in value; though they are discredited, and at the time of
their redemption their place is supplied with new ones of better
or worse alloy ; the seller, who exercises the redemption, ought to
repay in money which is current at the time he redeems, the same
sum or quantity which he received in payment, and nothing more
nor less. The reason is, that, in money we do not regard the
coins which constitute it, but only the value which the sovereign
has been pleased that they shall signify: Haque materia forma
publica percussa, usum dominiumque non tam ex substantia prebet,

debet, que pretium materi, ex qua cuditur, superat, aut superet ultra modum
expensarum, que in signanda pecunia fiunt; quod’ ad singularum specierum va-
lorum parum addere potest. Sed hoc ad actus et prestationes privatorum non
pertinet. Illud pertinet, quod si dicimus, creditis nummis nihil preeter estima-
tionem eorum creditum intelligi, necessario sequitur, creditorem teneri in alia
forma aut materia nummos accipere contra definitionem Pauli in d. 1. 99. de solut,
etiamsi damnum ex eo passurus sit: nam, qui recipit, quod credidit, nihil habet,
quod conqueratur. Sequitur et hoc, si contingat mutari nummorum bonitatem
intrinsecam, id est, si valore veteri retentio percutiantur novi nummi ex deteriore
materia, quam ex qua cusi, qui dati sunt, puta, si qui dati sunt, cusi fuerint ex
puro auro, postea alii feriantur ex auro minus puro et mixto ex ere, debitorem
restituendo tot mixtos et contaminatos, quot ille puros accepit, liberari cum insigni
injuria creditoris: et contra interpp. pene omnium doctrinam, qui hoc casu solu-
tionem faciendam esse statuunt ad valorem intrinsecum monet, qui currebat
tempore contractus, testibus Gail. 2, obs. 73, u.6 and 7. Borcholt. de feud. ad
cap. un. que sunt regal. num. 62. Tllud enim maxime in hac disputatione con-
siderandum est, quoniam hic finis nummi principalis est, ut serviat rebus neces-
sariis comparandis, auctore Aristotele 1. Polit. 6. quod mutata monet bonitate
sive extrinseca, sive intrinseca, pretia rerum omnium mutentur, et pro modo
aucte aut imminute bonitatis nummorum crescant aut decrescant: quod ipsa
docet experientia: eoque facit 1, 2. C. de vet. num pot. lib. 11. Crescunt rerum
pretia, si deterior materia electa, aut manente eadem materia valor auctus sit:
decrescunt electu materia melioris, aut si eadem bonitate materi manente valor
imminutis fuerit. Fallitur enim imperitum vulgus, dum sibi persuadet, ex aug-
mento valoris aurei aliquid sibi lucri accedere. Hoc autem fundamento posito,
siquidem neutri contrahentium injuriam fieri volumus, ita definiendum videtur,
ut si bonitas monetz intrinseca mutata sit, tempus contractus, si extrinseca, id
est, valor imposititius, tempus solutionis in solutione Selenide spectari debeat.
Atque ita seepissimé judicatum est.
§ 313 b-314.] FOREIGN CONTRACTS. A1T

quam ex quantitate; D.18,1,1. When the price is paid, the seller
is not considered to receive the particular pieces, so much as
the sum or value which they signify; and, consequently he ought
to repay, and it is sufficient for him to repay, the same sum or
value in pieces which are current, and which have the signs au-
thorized by the prince to signify that value. This principle being
well established in our French practice, it is sufficient merely to
state it. It cuts off all the questions made by the doctors concern-
ing the changes of money.” +

[* § 813c¢. It has recently been decided in-the State of Cali-
fornia,” that an act of the legislature of that State, by which con-
tracting parties are allowed to stipulate for payment in coin, and
the courts are required to award specific performance, according
to the practice in courts of equity, is entirely constitutional and
valid. But, at law, there are some embarrassments in the way of
giving judgment upon a contract expressed to be payable in coin,
in such formas to require the officer executing the final pro-
cess to enforce it, in any currency different from that, which by
the national statute, 10 whose authority all matters of this kind
are subject, is an equivalent to the sum expressed in the contract ;
that statute allowing of no discrimination between coin, and the
depreciated paper of the country, which is by act of Congress de-
clared a lawful tender upon all debts.?] ;

§ 314. Negotiable instruments often present questions of a like
mixed nature.* Thus, suppose a negotiable bill of exchange is-
drawn in Massachusetts on England, and is indorsed in New York,
and again by the first indorsee in Pennsylvania, and by the second
in Maryland, and the bill is dishonored ; what damages will the
holder be entitled to? The law as to damages in these States is
different. In Massachusetts it is ten per cent, in New York and
Pennsylvania twenty per ceft, and in Maryland fifteen per cent.
What rule then is to govern? The answer is, that,.in each case,
the lex loci contractis, The drawer is liable on the bill according

1 Pothier, Traité du Contrat de Vente, n. 416. I quote from Mr. Cushing’s
excellent translation, n. 419, p. 264, 265. See Pardessus, Tom. 5, art. 1495, p.
269, 270, 271. : ,

[*? Carpenter v. Atherton, 4 Am. Law Reg. N. S, 225.

® Wood v. Bullens, 6 Allen, 516. See 4 Am. Law Reg. January, 1865.]

, * See post, § 344, 353 to 361.
5 3 Kent, Comm. Lect. 44, p. 116 to p. 120, 8d edit.
418 CONFLICT OF LAWS. [cH. VII.

to the law of the place where the bill was drawn ;] and the $uc-
cessive indorsers are liable on the bill according to the law of the
place of their indorsement, every indorsement being treated as a
new and substantive contract.2. The consequence is, that the in-
dorser may render himself liable upon a dishonor of the bill, for
a much higher rate of damages, than he can recover from the
drawer. But this results from his own voluntary. contract; and
not from any collision of rights arising from the nature of the origi-
nal contract.? ’

§ 315. It has sometimes been suggested, that this doctrine is a
departure from the rule, that the law of the place of payment is
to govern. But, correctly considered, it is entirely in conformity
to the rule. The drawer and indorsers do not contratt to pay the
money in the foreign place, on which the bill is drawn ; but only
to guarantee its acceptance and payment in that place by the

1 So a note dated and made in one country, but payable in anogher, draws in-
terest at the rate of the place where it is made, in the absence of any stipulation
to the contrary. Gibbs v. Fremont, 20 Eng. Law & Eq. R. 555; Allen v. Kemble,
6 Moore, P. C. R. 314.

* Ante, § 307; post, § 316; Powers v. Lynch, 3 Mass. R. 77; Prentiss v. Save
age, 13 Mass. R. 20, 23, 24; Slacnm v. Pomeroy, 6 Cranch, 2213 Depau v. Hum-
phreys, 20 Martin, R. 1,14, 15; Hicks v. Brown, 12 Johns. R. 142; Bayley on
Bills, ch. A, p. 28, Phillips & Bawallle edition ; Trimbey v. Vignier, 1 Bing. R.
151, 159, 160; ante, § 267; post, § 316 a, § 353 to 361; 3 Burge, Comm. on Col.
and For. Law, Pt. 2, ch. 20, p. 771 to p. 774.

* Pardessus has discussed this matter at large. He adopts the general doctrine
here stated, that the law of the place of each indorsement is to govern, as each
indorsement constitutes a new contract between the immediate parties. And he
applies the same rule to damages; and says, that, if the law of the place, where
a bill of exchange is drawn, admits of the accumulation of costs and charges on
account of re-exchanges, (as is the law of some countries,) in such a case each
successive indorser may become liable to the payment of such successive accu-
mulations, if allowed by the law of the place, where they made their indorse-
ment. He seems, indeed, to press his doctrine further, and to hold, that, if the
law of the place of such indorsement does not allow such accumulation of re-
exchanges, but the law of the place where the bill is drawn does, the indorsers
will be liable to pay, as the drawer would. But his reasoning does not seem satis-
factory ; and it is certainly inconsistent with the acknowledged doctrines of the
common law. Pardessus, Droit Commerce. art. 1500. See also Henry on Foreign
Laws, 53, Appx. 289 to 242; 3 Kent, Comm. Lect. 44, p. 115, 3d edit. See
Rothschild v. Currie, 1 Adolph. & Ell. N. R. 43; Shanklin v. Cooper, 8 Blackf.
41.

* 2 Kent, Comm. Lect. 39, p. 459, 460, 3d edit. ; ; Chitty on Bills, p. 191 to 194,
8th edit. London ; ante, § 313 a, et seg.
§ 314-316 d.] FOREIGN CONTRACTS. ‘ 419

drawee; and in default of such payment they agree upon due
notice to reimburse the holder, in principal and damages, at the
place, where they respectively entered into the contract.

§ 816. Nor is it any departure from the rule to hold, that the
time when the payment of such arbill is to accrue, is to be accord-
ing to. the law of the place where the bill is payable; so that the
days of grace (if any) are to be allowed according to the law or
custom where the bill is to be accepted and paid ;? for such is the
appropriate construction of the contract, according to the rules of
law, and the presumed intention of the parties.®

§ 316 a. Another illustration of the general doctrine may be
derived from the case of negotiable paper, as to the binding obli-
gation and effect of a blank indorsement. It seems, that by the
law of France an indorsement in blank of a promissory note does
not transfer the property to the holder unless certain prescribed
.formalities are observed in the indorsement, such as the date, the
consideration, and the name of the party to whose order it is
passed ; otherwise, it is treated as a mere procuration.* Now, let
us suppose a note made at Paris, payable to the order of the
payee, and he should there indorse the same in blank without the
prescribed formalities, and afterwards the holder should sue the
maker of the note in another country, as, for example, in England,
where no such formalities are prescribed; the question would
arise, whether the holder could recover in such a suit in an Eng-
lish court upon such an indorsement. It has been held that he
cannot; and this decision seems to be founded in the true princi-
ples of international jurisprudence ; for it relates not to the form.
of the remedy but te the interpretation and obligation of the con-
tract created by the indorsement, which ought to be governed by
the law of the place of indorsement.®

§ 316 6. Another illustration may be derived from the different

obligations which an indorsement creates in different states. By
.

1 Potter v. Brown, 5 East, R. 123, 130; Dundas v. Bowler, 3 McLean, 400 ;
Hicks v. Brown, 12 Johns. R. 142; Powers te Lynch, 3 Mass. R. 77; Prentiss v.
Savage, 13 Mass. R. 20, 24; Pardemus, ‘Droit Comm. art. 1497.

* See 2 Kent, Comm. Tacks 39, p. 459, 460, 3d edit.; Chitty on Bills, p. 191,
8th edit., London; Pothier, Contrat de Change, n. 15, 155; 5 Pardessus, § 1495;
post, § 347, 361. / ,

* Mr. Justice Martin, in Vidal v. Thompson, 11 Martin, R. 23, 24.

* Code de Commerce, art. 137,138; Trimbey v. Vignier, 1 Bing. New Cases,
151, 158, 159, 160.

® Trimbey v. Vignier, 1 Bing. New Cases, 151, 158, 159, 160; ante, § 272,
420 : CONFLICT OF LAWS. (cH. vm.

the general commercial law, in order to entitle the indorsee to re-
cover against any antecedent indorser upon a negotiable note, itis
only necessary that due demand should be made upon the maker
of the note at its maturity, and due notice of the dishonor to the
indorser. But by the laws of some of the American States, it is
required, in order to change an antecedent indorser, that not only
due demand should be made and due notice given, but that a suit
shall be previously commenced against the maker, and prosecuted
with effect in the country where he resides ; and then, if payment
cannot be obtained from him under the judgment, the indorsee
may have recourse to the indorser. In such a case, it is clear,
upon principle, that the indorsement, as to its legal effect and ob-
ligation, and the duties of the holder, must be governed by the law
of the place where the indorsement is made. This very point has
been recently decided in a case where a note was made and in-
dorsed in the State of Illinois. On that occasion, Mr. Chief Jus-
tice. Shaw, in delivering the opinion of the court, said: “The note
declared on, being made in Illinois, both parties residing there at
the time, and it also being indorsed, in Illinois, we think that the
contract created by that indorsement must be governed by the law
of that State. The law in question does not affect the remedy,
but goes to create, limit, and modify’ the contract effected by the
fact of indorsement. In that, which gives force and effect to the
contract, and imposes restrictions and modifications upon it, the
law of the place of contract must prevail when another is not
looked to as a place of performance. Suppose it were shown, that,
by the law of Illinois, the indorsement of a note by the payee
merely transferred the legal interest in the rtote to the indorsee,
so as to enable him to sue in his own name, but imposed no con-
ditional obligation on the indorser to pay; it would hardly be
contended, that an action could be brought here upon such an in-
dorsement if the indorser should happen to be found here, because
by our law such an indorsement, if made here, would render the
indorser conditionally liable to pay the note. By the law of Illi-
nois, the indorser is liable only after a judgment obtained against
the maker; and as no such judgment appears to have been ob-
tained on this note, the condition upon which alone the plaintiff
may sue, is not complied with, and therefore the action cannot be
maintained.”’?

* Williams v. Wade, 1 Metcalf, R. 82, 83.
§ 3168, 317.] FOREIGN CONTRACTS. 421

§ 317. But, suppose a negotiable note is made in one country,
and is payable there, and it is afterwards indorsed in another coun-
try, and by the law of the former country equitable defences are
let in, in favor of the maker, and by the latter such defences ex-
cluded ; what rule is to govern, in regard to the holder, in a suit
‘against the maker to recover the amount upon the indorsement to
him? The answer is, the law of the place, where the note was
‘made ; for there the maker undertook to pay; and the subsequent
negotiation of the note did not change his original obligation, duty,
or rights! Acceptances of bills are governed by the same princi-
ciples. They are deemed contracts of acceptance in the place,
where they are made, and where they are to be performed.? So
Paul Voet lays down the doctrine. Quid si de literis Cambii in-
‘cidat questio ; quis locus erit spectandus? Is spectandus est locus,
ad quem sunt destinate, et ibidem acceptate. But, suppose a ne-
-gotiable acceptance, or a negotiable note, made payable generally,
without any specification of place ; what law is to govern, in case
of a negotiation of-it by one holder to another in a foreign country,
in regard to the acceptor, or to the maker? Is it a contract by
them to pay in any place where it is negotiated, so as to be deemed
a contract of that particular place, and governed by its laws? The
Supreme Court of Massachusetts have held, that it creates a debt
payable anywhere, by the very nature of the contract; and it is a
promise to whosoever shall be the holder of the bill or note.*
Assuming this to be true ; still it does not follow, that the law of
the place of the negotiation is to govern ; for the transfer is not, as
to the acceptor, or the maker, a new contract ; but it is under, and
a part of, the original contract, and springs up from the law of
the place, where that contract was made. A contract to pay

* Ory vy. Winter, 16 Martin, R. 277; post, 332, 343, 344.
~ * Lewis ». Owen, 4 Barn. & Ald. 654; ante, § 307; post, § 338, 334, 345. If
made in one place and accepted there, payable in another place, the law of the
place where the bill is payable governs. Cooper v. Earl of Waldegrave, 2 Beavan,
R. 282. What bills are deemed foreign? Bills drawn in one state payable in
another state, are deemed foreign. Bleekner v. Finley, 2 Peters, R. 236; Halli-
day v. McDougal, 22 Wend. R. 264, 272; Wells v. Whitehead, 15 Wend. R. 527;
_ Rothschild v. Currie, 1 Adolph. & Ell. N. Rep. 43.
8 P. Voet; de Statut. § 9, ch. 2, n. 14, p. 270, edit. 1713; id. p. 327, edit. 1661 ;
poss, § 346, note.
* Braynard v. Marshall, 8 Pick. R. 194; and see Savoye v. ean 10 Met. 594;
post, § 341, 343 to 346.
CONFL, 36
422 CONFLICT OF LAWS. [oH. vin.

generally is governed by the law of the place, where it is made;
for the debt is payable there, as well as in every other place. To
bring a contract within the general rule of the Jez loci, it is not
necessary, that it should be payable exclusively in the place of its
origin. If payable everywhere, then it is governed by the law of
the place, where it is made ; for the plain reason, that it cannot be
said to have the law of any other place in contemplation, to govern
its validity, its obligation, or its interpretation. All debts between
‘the original parties are payable everywhere, unless some special
-provision to the contrary is made ; and, therefore, the rule is, that
debts have no situs, but accompany the creditor everywhere? The
holder, then, takes the contract of the acceptor, or maker, as it
was originally made, and as it was in the place, where it was made.
It is there, that the promise is made to him to pay everywhere.®

§ 318. ‘A case a little more difficult in its texture is, when a
-contract is made in one country, for payment of money in another

1 See Kearney v. King, 2 Barn. & Ald. 301; Sprowle v. Legge, 1 Barn. &
Cres. 16; Peck v. Hibbard, 26 Verm. 702; ante, § 272; post, § 329; Donn v.
Lippmann, 5 Clark & Finn. 1, 12, 13. — In this last case a bill of exchange was
drawn and accepted in Paris by a Scotchman domiciled in Scotland, and it was
payable generally. It seems, that, by the law of Scotland, an acceptance is
deemed payable at the place of the domicil of the acceptor, at the time when
it becomes due. Lord Brougham on this occasion said: ‘It appears, that in
Scotland, — and it is rather singular that it should be so, — where a bill is ac-
cepted generally, without any particular place being named, it shall be deemed
payable at the place, at which the acceptor is domiciled, when it becomes due.
It becomes of some importance to know, where the bills were payable, because
this principle, which has been adopted of late years in many of the Scotch de-
cisions, and towards which I admit the great leaning of the Scotch profession is,
renders it material to consider, whether this is a Scotch or a foreign debt. Yet
sometimes this expression is ysed in the cases without affording any accuracy of
description ; for sometimes the debt is called English, or French, in respect of the
place, where the contract was made; sometimes it is the place of the origin, some-
times of the payment of the contract; and sometimes of the domicil of one of
the parties. But at all events it becomes important to consider, whether this was
a foreign or a Scotch debt. In the present case it was held most properly to be
a foreign debt. That is a fact admitted; it is out of all controversy. This, there-
fore, must now be taken to be a French debt; and then the general law is, that
where the acceptance is general, naming no place of payment, the place of pay-
ment shall be taken to be the place of the contracting of the debt. I shall there-
fore deal with this bill, as if it was accepted, payable in Paris.”

* Blanchard v. Russell, 13 Mass. R. 1,6; Slacum v. Pomeroy, 6 Cranch, a2i;
post, § 829, 362, 399, 400.
~ * Post, § 843, 344,
§317-319.] FOREIGN CONTRACTS. 423

country, and, by the laws of the latter, a stamp is required, to
make the contract valid, and it is not by those of the former ;
whether it is governed by the lex solutionis, or by the lex loci con-
tractés, as to the stamp. It has been held, that a stamp is not re-
quired in such a case to give validity to the contract, upon the
ground that an instrument, as to its form and solemnities, is to be
governed by the lez loci contractés, and not by the law of the place
of payment; and that, therefore, a stamp is not required by the
principal! On that occasion the court said: “ An instrument, as
to its form and the formalities attending its execution, must be
tested by the laws of the place where it is made; but the
laws and usages of the place where the obligation, of which it
is evidence, is to be fulfilled, must regulate the performance. A
bill drawn out of London, must be paid at the expiration of the
days of grace, which the laws and usages of that place recognize ;
but need not have those stamps which are by law required on a
bill drawn there.” 2 .

§ 319. But a case, more difficult to reconcile with established
principles, in its actual adjudication, has occurred in Massachusetts.
A bill‘of exchange was drawn in Manchester, in England, upon a
firm established at Boston, in Massachusetts, payable in London,
and was accepted at Manchester by one of the firm, then there.
The bill was, therefore, drawn in England, accepted in England,
and payable in England. But upon its dishonor, it was held, that
it was to be deémed a bill accepted in Boston ; because the domicil
of the firm was there, and that damages were recoverable of 10 per
cent, as they would be upon a like bill accepted in Boston. There
was nothing upon the face of the bill, that alluded to an acceptance
in Boston, and nothing in the circumstances, that pointed in that
direction. It was certainly competent for the firm to contract in

‘ Mr. Justice Martin in Vidal v. Thompson, 11 Martin, R. 23, 24, 25. But see
ante, § 260, and note, 262, 262a; Wynne v. Jackson, 2 Russell, R. 351; Clegg
v. Levy, 3 Camp. R. 166; James v. Catherwood, 3 Dowl. & Ryl. R. 190.

? Ibid.

Grimshaw v. Bender, 6 Mass. R. 157. — The case of Acebal v. Levy, 10 Bing.
R. 376, 379, seems to have involved a question very nearly the same, arising un-
der the Statute of Frauds of England, the contract having been made in Gijon,
in Spain, for the delivery of the goods purchased in England. The court and bar
seem to have thought, that the contract was to be governed by the English Stat-
ute of Frauds, although made in Spain. See ante, § 262 a, and note. See also,
Cooper v. Earl Waldegrave, 2 Beavan, R. 282.
424 CONFLICT OF LAWS. {cH vim.

England, and to accept in England; and, beyond all question, if
the bill had been drawn solely on the person who accepted it, the
acceptance must have been deemed to be made in England, not-
withstanding his domicil was in Boston. Is there any difference
between an acceptance by a firm, and‘an acceptance by a single
person? Is not the general principle of law that which is affirmed
by Casaregis, that a contract or acceptance is to be deemed made,
where the contract or acceptance is perfected ; eo loci, quo ultimus
in contrahendo assentitur ?1 It has certainly been put upon that
ground in many modern authorities.? And, therefore, if the ac-
ceptor be an accommodation acceptor in one country, payments
made by him of the bills drawn by the drawer in a foreign coun-
try, will be deemed payments under a contract made with the
drawer in the place of acceptance and payment.®

§ 820. The doctrine maintained in Massachusetts, in this last
case, is directly in conflict with that maintained under similar cir-
cumstances by the Supreme Court of New York. The latter court
has held, that the bill, having been drawn in England, and
made payable there, and accepted there, it was to be treated as‘an
English contract; and that the English interest of five per cent
only was to be allowed for the delay of payment.* This decision,
being in entire harmony with the general principles on this sub-

ject, will probably obtain general credit in the commercial world.®

§ 820 a. Many other cases might easily be put, to illustrate the
law in relation to the conflict of the laws of differént countries in
cases of contract. In some countries there are limited or special
partnerships, called in France partnerships in commandité. In
these partnerships the contract is between one or more partners,
who are jointly and severally responsible for the whole contracts
and orders of the partnership, and one or more partners, who
merely furnish a particular amount of funds, and are responsible
only to the amount of such funds, and who are called commanda-

? Casaregis, Disc. 179, n. 1; ante, § 285.

* Boyce v. Edwards, 4 Peters, R. 111; P. Voet, De Statut. § 9, ch. 2, § 14.
See also McCandlish v. Cruger, 2 Bay, R. 877; Bain v. Ackworth, 1 S. Car. R.
107; Lewis v. Owen, 4 B. & Ald. 654.

3 Lewis v. Owen, 4 B. & Ald. 654, .

* Foden v. Sharpe, 4 Johns. R. 183; Frazier v. Warfield, 9 Smedes & Mar-
shall, 220.

a See Bayley on Bills, (5th edit.) ch. A. p. 72 to p- 86, Phillips and Sewall’s
. edit,
§319-321.] FOREIGN CONTRACTS. — - 425

‘taires, or partners in commandité.' Similar limited partnerships
are also authorized in some of the American States.2 Now, let us
suppose an order given by the general partner in such a firm in
one of such States, upon a. house in England, for the purchase of
goods there ; and they were accordingly purchased in England on
the credit of the firm. If the partnership became insolvent, the
question might then arise, whether the partner in commandité was
liable to pay for the goods beyond the amount of the funds which
he had contributed, or was bound to contribute, for the partner-
ship, That question might essentially depend upon another,
whether the contract is to be treated as made in the American
States, where the partnership was established, or in England,
where the contract was consummated. And it might also be im-
portant in the case, whether the seller knew that the partnership
was so limited or not. No point of this sort has as yet arisen for
decision ; and therefore it is left for the more full consideration of
.those who may be called upon to examine it in the case of a judi-
cial controversy.2 [* There can be no reasonable question, that in
-such a case the limited partner is bound only to the extent of the
local law. The law of the association is one of the essential for-
malities indispensable to the creation of the obligation, which are
always governed by the law of the place where the contract is
solemnized, like stamps, or a seal, or writing, &c. ]

§ 321. In stating the foregoing rules, we have been necessarily
led to the consideration of many of what are properly deemed the
.effects of contracts, which, like the validity of contracts, are de-
pendent upon, and are to be governed by, the lex loci contractis.
These effects are ; the right conferred on the party for whose ben-
efit the contract is made; the correspondent duty of the other
party to fulfil it; the right of action, which arises from the non-
fulfilment of it ; and the consequential right to interest or damages,
for the injury done by such non-fulfilment, belonging to the injured
party. The manner, in which remedies are to be administered,
will fall under another and distinct head.®

1 Code of Commerce of France, art. 23 to art. 37.

[2 Whether such a partnership is recognized by the present law of England,
see an able article in the London Law Mag., Feb. 1852, No. 94, p. 50, art. v.]

® Ante, § 285 to 287.

* See Pothier, Oblig. n. 141 to 172; P. Voet, De Statut. § 9, ch. 2, § 12; Boul-
lenois, Ques. de la Contr. des Lois, p. 330 to 338.

5 Post, § 556 to 575.

36 *
426° CONFLICT OF LAWS. [cH. VII.

§ 822. But there are some other effects, which may be deemed
accompaniments, effects, or incidents of contracts, which may here
deserve a passing notice. They are properly collateral to them,
and arise by operation of law, or by the act of the parties. Among
these may be placed the liability of ‘partners and part owners for
partnership debts. If, by the law of the place, where the contract
is made, they would be liable im solido, although by the law of the
domicil of the partnership, they might be liable only for a propor-
tionate share, the law of.the former will follow the debt every-
where ; or in other words the effect of the Jez loci of the contract
upon the liability of the partners and part owners will be of uni-
versal obligation! By the law of some countries the acceptor of a
bill of exchange is discharged from his acceptance, if, when he
accepted, the drawer was bankrupt; and this effect of the accept-
ance regularly accompanies it everywhere, as an incident.?

§ 822 a. Another illustration may be found in the law of some
countries, (as in Alost in Flanders,) which allows to a debtor, who
has assigned, or transferred a debt, the right of redemption of it
upon payment back of the price. In such a case, according to
Burgundus, the right of redemption will exist, notwithstanding the
debt has been contracted in another country ; for, in such a case,
the right is for the benefit of the debtor, and the debts and the
rights of action are judged of by the law of his domicil, without
any consideration of the place where the debts were contracted.
Unde recte dict potest, consuetudinem Alostensem, que indulget
debitori redemptionis cegsi nominis, eo pretio, quod assionis auctori
solutum est, etiam locum habere in e@re alieno extra territorium
Alostense contracto. Cum enim ejusmodi redemptio in favorem
debitoris introducta, situm nominum, et actionum ex domicilio ejus
metitur, sine consideratione qua regione contracta fuerint® A
more unexceptionable illustration is the incidental right of war-
ranty, conferred by the civil law in cases of sales of merchandise,
not merely as to title, but as to quality.4

§ 322 6. Of the like nature is the benefit of the right of dis-
cussion, as it is called. By the Roman law sureties were not pri-

1 Fergusson v. Flower, 16 Martin, . 312. See also, Carroll v. Waters, 9 Mar-
tin, R. 500; Pardessus, Droit. Comm. art..1495.

2 Pardessus, Droit. Comm. art. 1495.
® Burgundus, Tract. 2, n. 24, 25.

* Ante, § 264; Henry on Foreign Law, 51, 52; 2 Boullenois, Observ. 46, p.
475, 476; P. Voet, De Statut. § 9, ch. 2, § 10.
§ 322 - 822 d.] FOREIGN CONTRACTS. 427

marily liable to pay the debt, for which they became bound as
sureties ; but were liable only after the creditor had sought pay-
ment from the principal debtor, and he was unable to pay. This
was called the benefit or right of discussion.! Under those sys-
tems of jurisprudence which adopt the Roman law, and under the
present law of France, the rule is similar ; and the obligation con-
tracted by the surety with the creditor is, that the latter shall not
proceed against him until he has first discussed the principal debtor,
if he is solvent. This right the surety enjoys, as the beneficium
ordinis vel excussionis.2, And, again ; if other persons are joined
‘with him in the obligation as sureties, he is not in the first instance
to be proceeded against for the whole debt, but only for his share
cof it, if his co-sureties and co-obligees are solvent.? This is com-
monly known as the benefit of division, or beneficium divisionis.
If the suit should be brought in a different country from that where
the contract or obligation is made, the right of discussion or divis-
ion would still belong to the surety, as an incident to his contract,
although it did not exist by the law of the place where the suit
was brought (lex fori.) The converse proposition would be
equally true. Such, also, is the lien of a vendor, upon a real
-estate sold for the payment of the purchase-money, according to
the law of England ; the lien given for the purchase-money, upon
-goods or merchandise sold by the civil law, and by the law of some
modern countries ;® the right of stoppage im transitu of the vendor
of goods, in case of the insolvency of the purchaser in the course
of the transit ;7 the lien of a bottomry bond on the thing pledged ;

1 1 Domat, B. 3, tit. 4, § 2, art. 1; Dig. Lib. 46, tit. 1, 1. 68; Novell. tit. 4,
cap. 1.

* Pothier on Oblig. n. 407 ton. 414; Code Civil of France, art. 2021 to art.
2026.

* Pothier on Oblig. n. 415 to n. 427; Code Civil of France, art. 2026.

* 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch, 20, p. 765, 766; Carroll v.
Waters, 9 Martin, R. 500.

5 Thid; ante, 316 0.

® 1 Domat, Civil Law, B. 4, § 2, n.3; 3 Burge, Comm. on Col. and For. Law,
Pt. 2, ch. 20, p. 770, 771. See, as to Lien of Vendor on Real Estate, Gilman v.
Brown, 1 Mason, R. 219, 220, 221; Warrender v. Warrender, 9 Bligh, R. 127. —
It seems, that a lien created by the lex loci contractiis may be dissolved and ex-
tinguished not only according to the law of that place, but also by any act done
in a foreign country, which, according to the law of that country, would work
such dissolution or extinguishment. See post, § 351 @ to 351 d.

T Post, § 401.
498 CONFLICT OF LAWS. [cH. vim.

the lien of mariners on the ship for their wages; the priority of
payment in rem, which the law sometimes attaches to peculiar
debts, or to particular persons. In these, and like cases, where
the lien or privilege is created by the lex loci contractis, it will
generally, although not universally, be respected and enforced in
all places where the property is found, or where the right can be
beneficially enforced by the lex fori.1_ And on the other hand,
where the lien or privilege does not exist in the place of the con-
tract, it will not be allowed in another country, although the local
law, where the suit is brought, would otherwise sustain it.2 Thus,
if goods are purchased in England by a citizen of Louisiana, no
lien or privilege will exist for the unpaid price, in case of his in-
solvency, although the law of Louisiana allows it in common cases ;
because it is not given by the law of the place of the contract,
(England.*) Nor would there seem to be any just ground of doubt,
that a bottomry bond would generally be held valid i rem in all

1 See 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 770, 771, 779;
post, § 401; Folix, Conflict des Lois, Revue Etrang. et Franc. Tom. 7, 1840, § 33,
p- 217, 228. The latter says: ‘‘ Nous avons vu, que la régle suivant laquelle les
meubles sont régis par la loi du domicile de celui, & qui ils appartiennent, repose
sur le rapport intime entre les meubles et la personne du propriétaire, sur une

fiction légale, qui les répute exister au lieu du domicile de ce dernier. De la il
suit, que cette regle ne peut s’appliquer, qu’aux circonstances, ou actes dans les-

. quels les meubles n’apparaissent,.que comme un accessoire de la personne; par
q P ’ }

exemple: en cas de succession ab intestat, des dispositions de deniére volonté ou
entre-vifs (telles que les contrats de mariage exprés ou tacites). La régle est
sans application & tous les cas ou les meubles n’ont pas un rapport intime avec la
personne du propriétaire: par exemple, lorsque la propriété de meubles est ré-
clamée, et contestée, lorsqu’on invoque la maxime, qu’en fait de meubles posses-
sion vaut titre ; lorsqu’il s’agit d’exercer des priviléges ou des voies d’exécution
sur les meubles, d’en prohiber Valiénation, d’en prononcer la confiscation, ou de
déclarer une succession mobiliére en déssérence au profit du fisc, ou enfin d’inter-
dire exportation des meubles. Dans tous ces cas, il faut appliquer la loi du lieu,
ou les meubles se trouvent effectivement: car la dite fiction cesse par le fait. Par
rapport aux priviléges sur les meubles, Hert soutient opinion contraire, en fai-
sant observer, que toutes les questions de privilége sur les meubles doivent étre
décidées dans Je lieu du domicile du débiteur, par suite de la connexité des cau-
ses. Cette opinion revient & celle, qui attribue a la loi du domicile son effet sur
Puniversalité des biens d’un individu. Nous réfuterons cette opinion au n° 37 ci-
aprés. Ce que nous venons de dire des meubles s’applique non seulement aux
meubles corporels, mais aussi aux meubles incorporels; il y a identité de raison,”
See post, § 401 to 403,
® Ibid. ,
* Whiston v. Stodder, 8 Martin, R. 95, 134, 135.
§ 822 b-322 4] FOREIGN CONTRACTS. 429

commercial countries, if the lien is good by the law of the place of
the contract.}

§ 322 c. We have said, that such liens will be generally, al-

though not universally, respected ; for although the foreign jurists
generally assert the doctrine, they do not universally agree in it as
to all kinds of property, or under all circumstances. Some of them
take a distinction between personal or movable property and real or
immovable property ; giving effect to the former according to the law
of the place of the contract, and insisting, as to the latter, that no
lien can exist, except it is founded in the law of the place where
the property is situated (rei site.) Others make no distinction
whatsoever in respect to such lien or privilege between movable
property and immovable property ; some holding, that in both cases
the lea: loci contractis is equally to govern ; and some, that in both
cases the lex ret site is equally to govern.”
. § 822 d. Rodenburg notices these distinctions ; and says, that,
although by the laws of some countries where a marriage is had,
the wife has an hypothecation upon all the property of her hus-
band, for her dotal portion, (pro restitutione dotis,) yet a question
may arise, whether this hypothecation can reach the property of
the husband, situate in another country ; where no such law exists ;
or.the law is to the contrary! He remarks, also, that Christinzeus
has stated, that the affirmative has been maintained in many de-
cisions. But Rodenburg adds, that he dares not affirm that they
have been rightly made. Que tamen an recte se habeant, affirmare
non ausim. And he thinks, that the hypothecation does not ex-
tend to the real property of the husband, situate in a foreign coun-
try; because the statute is real, and cannot have an extra-territo-
rial authority. Consequenter non tacita seu legalis hypotheca
adstringit bona alia, quam quibus lex poterit imperare ; ea nimirum,
que legislatoris territorio sunt supposita, cujus solius loci legis est,
tanquam statuti realis, realem in rebus effectum producere, cum ul-
terius judicis auctoritas non efficiat hypothecam.?

1 Post, § 323, note 2.

2 See some of these opinions cited in Rodenburg, De Divers. Statut. tit. 2, ch.
‘5, § 16; 2 Boullenois, Appx. p. 49, 50, 51; Matthwus, De Auctionibus, Lib. 1,
ch. 21, n. 85 to n. 41, p. 294 to p. 299; 1 Boullenois, Obs. 30, p. 833, 834, 838 ;
Felix, Conflit des Lois, Revue Etrang. et Frang. 1840, Tom. 7, § 32 to 34, p. 222
to p. 228.

. + Roeabaeg De Divers. Stat. tit. 2, ch. 5,§16; 2 Boullenois, Appx. p. 47.
See ‘also Rodenburg, tit. 2, ch. 5, § 5, 6, 7; 2 Boullenois, Appx. p. 37, 38. See
also, post, § 324, 325; 1 Boullenois, 684, 685.
430 CONFLICT OF LAWS. [ cH. VOL

§ 323. But the recognition of the existence and validity of such
liens by foreign countries is not to be confounded with the giving
them a superiority or priority over all other liens and rights, just-
ly acquired in such foreign countries under their own laws, merely
because the former liens in the countries where they-first attached,
had there by law, or by custom, such a superiority or priority.
Such a case would present a very different question, arising from
a conflict of rights equally well founded in the respective coun-
tries! This very distinction was pointed out by Mr. Chief Justice
Marshall, in delivering the opinion of the court, in an important
case. His language was: ‘The law of the place where a con-
tract is made, is, generally speaking, the law of the contract ; i. e.
it is the law by which the contract is expounded. But the right
of priority forms no part of the contract. It is extrinsic, and
rather a personal privilege, dependent on the place where the
property lies, and where the court sits which is to decide the
cause.” ? And the doctrine was on that occasion expressly applied
to the case of a contract made in a foreign country with a person
resident abroad.® ,

§ 324. Huberus has also laid down the same qualifying doc-
trine ; foreign contracts are to have their full effect here, provided
they do not prejudice the rights of our own country, or its citi-
zens. Quatenus nihil potestati aut juri alterius imperantes ejusque
civium prejudicetur.* Or, as he has more fully expressed it in
another place: Effecta contractuum certo loco initorum, pro jure
loci illius alibi quoque observantur, si nullum inde civibus alienis
creatur prejudicium in jure sibt quesito ; ad quod potestas alterwus

1 Post, § 324, 827, 524 to 527, 582; Feelix, Conflit des Lois, Revue Etrang.
et Franc. Tom. 7, 1840, § 33, p. 227, 228.— This question might arise even
in relation to a bottomry bond, which by the law of most maritime countries
has a priority or preference over most other claims, in case of a deficiency of the
proceeds to satisfy all claims. In such a case, if the local law of the country,
where the bond was sought to be enforced, differed, as to such propriety or pref
erence, from that of the place where the bond was made and executed, it might
be a very nice question, which ought to prevail; and would therefore probably
be disposed of upon consideration of local and municipal policy. But upon

this subject we shall have occasion to speak hereafter. See post, § 401 to
§ 403.

* Harrison v. Sterry, 5 Cranch, 289, 298. See Ogden v. Saunders, 12 Whea-
ton, R. 361, 362.

3 Tbid.

* Huberus, De Conflict, Leg. Tom. 2, Lib. 1, tit. 8, § 2.
§ 823 -325.] FOREIGN CONTRACTS. 431

loci. non tenetur, neque potest extendere jus diversi territorii.
Hence he adds, that the general rule should be thus far enlarged,
if the law of another country is in conflict with that of our own
state, in which also a contract is made, conflicting with a contract
made elsewhere, we should, in such a case, rather observe our
own law than the foreign law.2, Ampliamus hanc regulam tali
extensione. Si jus loci in alio imperio pugnet cum jure nostre
civitatis, in qua contractus etiam initus est, confligens cum eo con-
tractu, qui alibi celebratus fuit; magis est, ut jus nostrum, quam
jus alienum, servemus® And he puts several cases to illustrate
the rule. By the Roman law, and the law of Friesland, an ex-
press hypothecation of movable property, oldest in date, is entitled
to a preference or priority, even against a third possessor. But it
is not so among the Batavians. And, therefore, if, upon such an
hypothecation, the party brings a suit in Holland against such
third possessor, his suit will be rejected; because the right of
-such third possessor cannot be taken away by the law of a foreign
-country.*

§ 825. He also puts another case. In Holland, if a marriage
contract is privately or secretly made, stipulating that the wife
shall not be liable for debts contracted solely by the husband, it is
valid, notwithstanding it is to the prejudice of subsequent credit-,
‘ors. But in Friesland such a contract is not valid unless pub-
lished ; nor would the ignorance of the parties be any excuse, ac-
cording to the Roman law and equity. If the husband should
contract debts in Friesland, on a suit there, the wife would be
held liable for a moiety thereof to the Frisian creditors, and could
not defend herself under her private dotal contract; for the cred-
itors might reply, that such a private dotal contract had no effect
in Friesland, because it was not published. But the Batavian
creditors, contracting in Holland, although suing in Friesland,
would not be entitled to a similar remedy ; for, in such a case, the
law of the place of their contract alone, and not the law of both
countries, would come under consideration.° The author was

* Huberus, Tom. 2, Lib. 1, tit. 3, De Confl. Leg. § 11; post, 525.

? Huberus, Tom. 2, Lib. 1, tit. 3,§ 11; post, § 525.

® Thid.; ante, § 239. é

4 Ibid. — See also, Rodenburg, De Divers. Stat. tit. 2, ch. 5; 2 Boullenois,
Appx. p. 47; 1 Boullenois, p. 683, 684.

® Huberus, Lib. 1, tit. 3, De Confl. Leg. § 11. — Huberus adds: Et hoc preva-
let apud nos, jn contractibus heic celebratis, ut nuperrimé consultus respondi,

*
432 ‘CONFLICT OF LAWS. [cu. vii.

probably here treating of a case where the debts were contracted
in Friesland, after the husband and wife had removed their domi-
cil there ; or, at least, if there was no change of domicil, where the
property of the parties, to be affected by the marriage contract,
was situate in Friesland. Under any other aspect, it would be dif-
ficult to maintain the doctrine.

§ 825 a. Huberus in another place asserts a similar doctrine.
A creditor (says he) on account of a bill of exchange, exercising
his right in due time, has a preference in Holland to all other
creditors against the movable property of his debtor. The debtor
has property of the same kind in Friesland, where no such law ob-
tains. The question is, whether such a creditor will be preferred
there to all other creditors ? Certainly not, since by the law there,
the right of the creditors is established. Creditor ex causa Cam-
bii, jus suum in tempore exercens, prefurtur apud Batavos omnibus
aliis creditoribus in bona mobilia debitoris. Hic habet ejusmodi
res in Frisia, ubi hoc jus non obtinet. An, ibi, creditor etiam pre-
Seretur aliis creditoribus 2? Nullo modo; quoniam his creditoribus
vi legum hic receptarum jus pridem quesitum est.

§ 825 6. The same doctrine is adopted by Hertius. After re-
marking, that in this matter of preferences and privileges of cred-
itors, the statute laws of particular countries have changed the
common (the civil) law; in answer to the question, what law
ought to govern in such cases, he says: If the controversy respects
immovables, the law of the country of the situs rei is, without
doubt, to govern. But in respect to movables, if the question
arises in cases of contract, or of guasi contract, the law of the
place of the contract is to be examined. But, inasmuch as the
preference arises from some peculiar law or privilege, it ought not
to be extended to the prejudice of the state where the debtor re-
sides, and his movables are deemed to be collected. In the con-
flict (concursus) of creditors, the law of the place of domicil of
the debtor ought to be observed. Enimvero, quia antelatio: ex
jure singulari vel privilegio competit, non debet in prajudicium
The sense of this passage in Huberus is mistranslated in the note to 8 Dallas, R.
875. The translator has translated the words, in contractibus heic celebratis,
“where the marriage was contracted here,” and jus loci contractus, “ the law of
the place where the marriage was contracted”; whereas the author in this clause
is manifestly referring to the contracts (debts) of the respective creditors.

? D. Hub. Lib. 3, J. P. Univer. cap. 10, § 44, cited 1 Hertii. Opera, De Collis.
Leg. § 4, n. 64, p. 150, edit. 1737; Id. p. 511, edit, 1716; post, § 627.

°
~ §825-325 d.] FOREIGN CONTRACTS. 433

illius civitatis, sub qua debitor degit, et res ejus mobiles contineri
éonsentur, extendi. Ad jura igitur domicilii debitoris, ubi fit con-
cursus creditorum, et quo omnes cujuscunque generis lites adversus
illum debitorem propter connexitatem cause traduntur, regulariter
gespiciendum erit.)

§ 825 c. Rodenburg has discussed this subject at large, in rela-
tion to the liens, the privileges, and the priorities of creditors in
cases of insolvency, and in other cases, where his property, mova-
ble or immovable, is situated in different countries, and is not suf-
ficient to satisfy all his.debts. This is commonly known by the
name of concursus creditorum, and the privilege, or priority itself,
‘by the name of the jus prelationis. It may be useful to present
a brief sketch of the substance of his remarks and his conclusions
on the subject. In respect to the property of debtors in different
countries, he says, that jurists have distinguished between those
things which concern the form and order of the suit, and those
which concern the decision or matter of the suit. The suit is to
-be according to the law of the place where it is instituted. As,
for example, if the debtor’s property is to be taken in satisfaction
of a judgment, the execution and sale thereof are to be according
to the law of the placq where the goods are situated, or where
they are taken upon the judgment. But if the debtor has become
bankrupt, or notoriously insolvent, so that there is no further op-
portunity for the seizure of his movables, or for execution thereon,
all the creditors being in the same condition, the question as to
their rights and privileges should be discussed or litigated in the
place of his domicil; for it is properly a question as to the pro-
ceedings in the suit, de litis ordinatione® But a different rule
prevails as to the decision and merits of a suit; and the rights of
the creditors, in respect to the priority of their debts upon the
-property of the debtor, ought to be measured according to the law
of the place. where it is really situated, or is presumed to be sit-
‘uated.2

§ 825 d. In respect to movable property, as it is always sup-

1 1 Hertii, Opera, De Collis. Leg. § 4, n. 64, p. 150, edit. 1737; Id. p. 211,
edit. 1716.

4 Rodenburg, De Div. Stat. tit. 2, ch. 5, § 16; 2 Boullenois, Appx. p. 47, 48;
1 Boullenois, 684, 685.

® Rodenburg, ibid.; 2 Boullenois, Appx. p. 48; 1 Boullenois, 685; post, § 524
to 527, 582,

CONFL. 37
434 CONFLICT OF LAWS. [cH. vim.

posed to be in the place of the domicil of the debtor, (for all effects
not having a fixed location are presumed to adhere to his person,)
it is the law of his domicil which ought to decide the rights of
creditors as to such movables. This rule will prevail, where the
goods are in his possession, unless indeed a creditor has by his dil-
igence, according to the laws of the place, acquired a superior right
by an execution over them ; for he will then retain that privilege,
since it is nct so much founded in the quality of the debt, as that
the creditor has by his diligence gained a priority; so that this
privilege being attached to the formalities regulating the execu-
tion, it ought therefore to be regulated by the law of the place of
execution. And besides; the judge who puts the creditor judi-
cially in possession of property, seized within his jurisdiction, is
regarded as acting in the name of the debtor; so that it may be
deemed affected by the same reasoning, as if the debtor himself
had given it in pledge to the creditor in the place where the prop-
erty is seized.

§ 825 e. Rodenburg afterwards puts thé case of a merchant
having different shops of trade in different places; and he says
that the question has been put, whether in such a case the cred-
itors in each place are entitled to be paid out of the property there
in trade, or the whole property is to be divided among all the cred-
itors. Some jurists maintain the affirmative. But others, with
whom Rodenburg agrees, hold, that the whole should be distrib-
uted among the creditors generally in cases of insolvency.?

§ 825 f. Rodenburg then puts the case of a contract made in a
foréign country, not being the domicil of the debtor, by whose
laws a preference is granted to creditors by promissory notes of
hand; and he says, that it might seem in such a case, that the law
of the place where the contract is made ought to govern; for that
is the law by which the obligation of contracts is ordinarily ex-
pounded and governed:* Eo quod obligationes dirigi soleant a
loco, ubi contrahuntur But after stating, that Mascardus has ex-
pressed a similar opinion, following Decianus, he adds: That it is
a nearer approach to the truth to say, that the law of the place of

 Rodenburg, De Div. Stat. tit. 2, ch. 5, § 16; 2 Boullenois, Appx. p. 48; 1
.Boullenois, 685.

* Rodenburg, ibid.; Boullenois, Appx. p. 49, 50; 1 Boullenois, 687, 688,

* Rodenburg, De Div. Stat. tit. 2, ch. 5, § 16; 2 Boullenois, Appx. p. 50; 1

Boullenois, 688.
4 Ibid.
sere

§ 825 d- 325 g.] FOREIGN CONTRACTS. 435

the contract ought not to govern; because that law can determine
only the greater or less extent of the engagements of the debtor,
and concerns only the contracting parties, who having contracted
in another place than that of their domicil, are presumed to have
referred to the laws of that place the form, the obligation, the
mode, the condition, and whole nature of the contract. Verum
non esse respiciendum locum contractis vero proprius est; utpote,
qui.eo duntaxat pertineat quo vel arctius, vel remissius ex contractu
suo teneatur ipse debitor, adeoque spectatur, quoad ipsos contra-
hentes, quo deo ipso, quod alio in loco contractum celebrant, ad
ejusdem leges, formam, vinculum, modum, conditionem, totam deni-
que negotii naturam, sui respectu, componunt.’ He proceeds to
render the reasons of his opinion, that this preference of creditors
constitutes no part of the law of the contract, obligatory in other
countries, and says: Moreover, what does not arise from the act
of man, but simply from the authority of the law, of which sort all
privileges of preference among creditors are, it should be said, that
the authority of the legislator has no effect upon property not sub-:
jected to him, when the controversy respects the interest of third
persons, or of other creditors, who have not contracted in that
place, and who consequently have submitted themselves to the
laws of that place. Besides; it is manifest, that we do not exer-
cise this sort of privileges upon the persons of debtors, because,
being directed upon the property, they have their place properly
among all the creditors: Ceterum, si quid non ab actu hominis,
sed a potestate legis proficiscitur, cujusmodi sunt prelationis priv-
ilegia omnia, dicendum est vim legislatoris nullam esse in bona sibi
non subjecta tertii respectu, seu creditorum aliorum, qui inibi nul-
lum gesserint negotium, nec legibus loci isitus se submiserint. Ad
hec constat privilegiis istis non agi in debitoris personam, utpote
que in res directa, locum habeant inter creditores.?

§ 825 g. Rodenburg further insists, that the same rule applies
when the debtor has changed his domicil to another country. If
in the country of his original domicil where the contract is made,
there would be a privilege thereby created upon the movables of
the debtor, and he afterwards removes to another country, where

1 Rodenburg, De Div. Stat. tit. 2, ch. 5, §16; 2 Boullenois, Appx. p. 50; 1
Boullenois,- 688.

* Rodenburg, De Div. Stat. tit. 2, ch. 16; 2 Boullenois, Appx. p. 50; 1 Boul-
lenois, 688; 3 Burge, Comm, on Col. and For. Law, Pt. 2, ch, 20, p. 770, 771.
436 CONFLICT OF LAWS. . [cH. vIn.

no such privilege exists, Rodenburg says, that although it might
seem that the privilege ought still to continue on his movables in
his old domicil, yet the true rule is, that the law of the new domi-
cil is to prevail; for movables are governed by the law of the dom-
icil. Nec aliud de eo debitore dicendum est, qui in loco illo privi-
legit domicilium foverit tempore celebrati contractus; quamvis
enim videri possit Jus illud prelationis creditori per leges loci domi-
cilii in rebus mobilibus legitimé quesitum, subsecuté domicilit mu-
tatione non debere amitti ; mobilia tamen, in quibus pgioris domicilii
lege tenuit prelationis privilegium, traductis alio domesticis laribus,
traducuntur quoque in leges novi domicilii, edque ; lege adminis-
trantur mutatione enim domicilii mutatur et mobilium conditio
eorum, que in manum aliis tradita non sunt, etiam dispendio tercti.

§ 325 h. In regard to immovables, Rodenburg holds, that, if
there is either an express or tacit hypothecation or lien by the law
of the domicil of the debtor, which is not equally allowed by the
law of the situs thereof, the law of the situs or situation is to gov-
ern ; and that the creditor will in vain seek to assert any right of
priority or privilege; for, as no man has authority expressly to
create such a charge under a foreign law by a judicial proceeding,
so neither can the foreign law itself exert such an authority ; since
real statutes have no operation beyond the territory where they
are enacted. Tandem ut ad immobilia transeam. Fac, jus tacite
seu legalis hypothece non obtinere idem in loco rei site, quod obti-
net in loco domicilii debitoris, dicendum frustra est esse creditorem,
qui hujusmodi hypothece obtentu prioritatem sibi asseruerit; cum.
@que atque expressim facto hominis, coram uno judicio, hypothece
nexu devinciri nequeunt alterius territorti bona, ita nec legis ullius
potestas est afficere predia extera; quod statuta realia territorium
non egrediantur.2, The result, therefore, of the doctrine of. Ro-
denburg seems to be, that the proper forum to decide upon all
questions of the priorities and preferences of creditors, is the place
of the domicil of the debtor ; and that the law of that place, and
not the law of the place of the contract, is to govern in all cases of
such priorities and preferences, in respect to movables situated in

* Rodenburg, De Div. Stat. tit. 2, ch. 5, § 16; 2 Boullenois, Appx. p. 50; 1
Boullenois, 688, 689; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20,
p. 770, 771.

* Rodenburg, ibid.; 2 Boullenois, Appx. p. 50, 51; 1 Boullenois, 689, 690; Id.
Observ. 30, p. 818 to p. 875.
§ 825 g, 825 h.] FOREIGN CONTRACTS. 437

his place: of. domidil. But as to movables situate. elsewhere, as
well as to immovables, the law rei site is to govern; although, to
prevent confusion and inconvenience, the administration and ad-
judication thereof in all cases is to be by the forum or tribunal of
the debtor’s domicil.?

1 1 Boullenois, Observ. 30, p. 818 to p. 820.— As the work of Rodenburg is
rarely found in our libraries, and the subject here discussed is of great practical
consequence, it may be useful to subjoin the.whole passage in this note. “ Per-
gamus querere ulterius, creditoribus de prelatione contendentibus, quod Jus
cujusque loci oporteat inspicere. Primum utamur vulgata D. D. distinctione,
qua separantur ea, que litis formam concernunt, ac ordinationem, ab iis, que de-
cisionem aut materiam. Lis ordinanda, secundum morem loci, in quo ventilatur.
Ut, si judicati exequendi causa bona debitoris distrahantur, qui solvendo sit, exe-
cutio peragatur eo loci, ubi bona sita sunt, aut in causam judicati capiuntur.

: Sin cesserit foro debitor, aut propalam desierit esse solvendo, ut isti mobilium
capioni, aut ulli omnino executioni non sit ultra locus, facta jam omnium credito-
rum conditione pari, disputatio de privilegiis, aut concursu creditorum veniat
instituenda, ubi debitor habuerit domicilium. | Unde cum apud nos relictis fortu-
nis solum vertisset debitor obzratus, ac res ejus sitas in Hollendia venum proscri-

“ beret. curator, creditores Hollandi, apud Provincie sue curiam venditioni inter-
cedentes, causa ibidem ventilata tulerunt repulsam: audito in et curatore, quod
apud nos super universis debitoris facultatibus, adeoque et pretio ex venditione
illa redigendo, ab uno eodemque Judice perasagenda decidendaque sit creditorum
contentio: ex communi scribentium placito. Ob manifestam quoque cause con-
tinentiam, ne super creditorum jure & diversis Judicibus dissone sententie pro-
nuntientur. Hee de litis ordinatoriis. Aliud fere 4 preecedentibus obtinere dixeris
-in ejusdem decisoriis: jus enim creditorum super prioritate in bonis debitoris de-
- meteri oportet & loco, ubi distracta bona sita sunt, velle esse, intelliguntur. Et
quidem de mobilibus si-quaeratur, cum semper ibi esse existimentur, ubi creditor
[debitor] fovet domicilium, cujus ossibus vag he res intelligentur adherere,
utique ex lege ejusdem domicilii discutienda causa creditorum est. Hee ita nisi
forsan executio directa sit in ejus debitoris mobilia, qui.ad huc in possessione suo-
rum bonorum sit, feret enim tum creditor diligentiz ac vigilantize sue premium, si
quod eo nomine loci mores, ubi in causam judicati ceperit mobilia, pra aliis credito-
ribus ipsi indulserint ; quod privilegium illud non tam proficiscatur ex credito, quam
ex actu ipso executionis, qua alios creditor prevertit, adeoque hxc res tanquam
concernens exequendi ordinem, legum accipiat 4 loco, ubi illa. peragitur, ac prz-
terea ‘pignus illud judiciale ita constituens Judex in bonis, apud se in causam
judicati captis, dicitur supplere vicem debitoris; ut perinde res habeatur, ac. si
ipse debitor bona illa eo loci pignori tradidisset.. Hzec ita si in uno loco debitoris
sit domicilium.” . Again: “ Fac foris contractum, celebratum, ubi per mores ejus-
dem loci Jus .prelationis inter chirographarios competit, locus videri posset atten-
dendus esse contracte obligationis: eo quod obligationes dirigi soleant & loco, ubi
contrahuntur. Verum non esse respiciendum locum contractus vero proprius est:
utpote qui eo duntaxat pertineat, quo. vel arctius, vel remissius ex contractu suo.
teneatur ipse debitor, adeoque spectetur quoad ipsos contrahentes, quod eo ipso,

37%
438 CONFLICT OF LAWS. [cH. vm.

§ 825 7. Boullenois in commenting upon Rodenburg says, that
every hypothecation or privilege upon property is to be deemed a
real right (jus ad rem, or jus in re). An action without any hy-
pothecation or privilege is purely personal. The existence of a

quod alio in loco contractum celebrent, ad ejusdem leges, formam, vinculum,
modum, conditionem, totam denique negotii naturam, sui respectu, componunt.
Czeterum si qui non ab actu hominis, sed & potestate legis proficiscitur, cujusmodi
sunt prelationis privilegia omnia, dicendum est vim Legislatoris nullam esse in
bona sibi non subjecta tertii respectu, seu creditorum aliorum, qui inibi nullam
gesserint negotium, nec legibus loci istius se submiserint. Ad hee constat privi-
legiis istis non agri in debitoris personam, utpote que in res directa, locum habeant
inter creditores. Ecquid autem Juris est alieno Judici circa res sibi non suppos-
itas, dispendio tertii, qui apud se non contraxit ? Nec est, quod retorserit credi-
tor suuin non minus spectari oportere, atque debitoris domicilium. Constat quippe,
qui cum alio contrahit, non esse vel debere esse conditionis ejus ignarum. Ut
nihil imputetur ei, qui in mobilibus & loci domicilii debitoris sua mensus est. privi~
legia, ad quem locum palam est mobilia pertinere: cum culpa non vacent alii, qui
privilegium sibi assumpserint & potestate Legislatoris alieni, cui de mobilibus dis-
‘ponendi nullum Jus est. Nec aliud de eo debitore dicendum est, qui in loco illo
privilegii domicilium foverit tempore celebrati contractus: quamvis enim videri
possit Jus illud prelationis, creditori par leges loci domicilii in rebus mobilibus
legitime quesitum, subsecuta domicilii mutatione non debere amitti; mobilia
tamen, in quibus prioris domicilii lege tenuit prelationis privilegium, traductis
alio domesticis laribus, traducuntur quoque in leges novi domicilii, edque lege
administrantur: mutatione enim domicilii mutatur et mobilium conditio eorum,
que in manum aliis tradita non sunt, etiam dispendio tertii: quo argumento, alia
quanquam in specie, usus est Senatus Parisiensis, apud Chopin. Et hue spectat
quod Burgundus tradit, mobilia sequi personam, hoc est (inquit) in domicilio ejus
existere, et non aliter quam cum domicilio transferri. Tandem ut.ad immobilia
transeam. Fac jus tacite, seu legalis hypothece non obtinere idem in loco rei
site, quod obtinet in loco domicilii debitoris, dicendum frustra esse creditorum, qui
hujusmodi hypothecz obtentu prioritatem sibi asseruerit: cum eque atque expres-
sim facto hominis, coram uno judicio, hypothece nexu devinciri nequeunt alterius
territorii bona, ita nec legis ullius potestas est afficere predia extera; quod Sta-
tuta realia territorium non egrediantur, ut supra tractatum est. Ita si Hollandus,
cui generalitur bona debitoris coram quocunque Hollandix judicio, hypothece
data sunt, apud nos cum reliquis creditoribus experiatur de preelatione, profutura
erit ei hypotheca in bonis, in quacunque Holandi parte, extra districtum Amste-
lodamensem, sitis 5 non autem in bonis suppositis territorio nostratium, quibus
nulla subsistit hypothecz datio, nisi pacta coram judice rei site. Contra cum
apud Hollandos hypotheca generalis extinguatur alienatione, non juvabitur cred-
itor moribus nostris, quibus res ita obligata ad emptores transit cum suo onere.
Consimilitér, si teneat alibi Conmetndo, ut in bonis debitoris concurrant credi-
tores, nulla habita ratione hypothecaruin quale Statutum profert Florentium
Straccha. Ex lege loci rei sitz dirimenda creditorum contentio.” Rodenburg,
De Div. Stat. tit. 2, ch. 5, § 16; 2 Boullenois, Appx. p. 47 to p, 51.
§ 325 i, 325 k.] FOREIGN CONTRACTS. 439

real right must depend either upon local ordinances, or upon the
law of the situs of the property ; and if the law of the situs differs
-from the ordinances of the place, where the parties create the hy-
pothecation or privilege, in allowing or disallowing such an hypoth-
ecation or privilege, the law of the sifws must govern. In regard
to movables, they are presumed to have their situs in the place of
‘the domicil of the owner ; and if the law of that domicil gives a
“privilege upon them, that privilege ought to be regarded in every
other place in which those movables may be found.! Boullenois
in this respect adopts the language of Lautenburg. In rebus mo-
bilibus observari debent jura illius loci, in quo illorum dominus, vel
creditor habet domicilium, etiam quando agitur de concursu et pre-
‘latione creditorum.2, In regard to immovables, Boullenois adopts
the doctrine, that all preferences and privileges thereon are real,
‘and are therefore governed by the law rei site

§ 825 k. John Voet has treated this question with great fulness.
In respect to priority and privileges in cases of hypothecations, he
insists, that, as to movable property, the law of the domicil of the
debtor ought to govern the order thereof, as well, because all mov-

ables are understood to be in the place where the owner lives, and
are to be governed by the law of that place, as because all credit-
ors, who ought to bring their suit in the tribunal where the prop-
erty is, (forum rei,) are deemed in their contracts to have had
reference to the place of domicil of the debtor, since in that place
the debtor, as the principal forum, ought to be sued ; and also be-
cause if the laws of the place where the contract is made, or of the
forum in which the controversy respecting the conflict of rights
and preferences between creditors are to be observed, inexplicable
difficulties will arise, or notorious absurdities will be fallen into ;
of which he proceeds to give some illustrations. But in respect to
‘ immovables, he holds that the law of the place of the situs ought
to govern in all questions of priority and privileges. Immobilia
—regenda esse jure loci, in quo site sunt.

1 1 Boullenois, Observ. 30, pp. 832, 833, 834. |

Td. p. 834. * Thid.

* J. Voet, ad Pand. Lib. 20, tit. 4, n. 38, p. 904. — The whole passage deserves
to be cited. “In questione, cujus loci statuta in prelatione tum hypothecariorum
tum chirographariorum privilegio munitorum spectari debeant, dicendum videtur
secundum fundamenta generalia in tit. de constitut. Princip. parte altera, de sta-
tutis proposita. In mobilibus debitoris bonis illum observari oportere prelationis
ordinem, qui in loco domicilii debitoris probatus est ; tum quia mobilia omnia, ubi-
440 CONFLICT OF LAWS. [cH. vu.

§ 825 1. Matthaus holds, in a great measure, the same opinion,
and has discussed the subject at large. The whole passage. is: too
long for insertion in this place ; but a moderate extract will pre-
sent his views in a very clear manner. Speaking of movables, he

‘says: Quantum igitur ad res mobiles attinet, tametst omnes sint
ejusdem generis atque nature, motu tamen et qutete discriminari
possunt. Earum enim alia nullo certo loco disposite, huc: illuc
feruntur trahunturve ; veluti merces in itinere deprehense, et ut
hodié fieri solet, arrestoretente : alie vero certo loco dispostte qui-

cunque existentia, illic domino suo presentia esse intelliguntur, ac propterea isto
quoque jure regenda sunt; tum quia creditores omnes, qui sequi in ‘agendo de-
bent forum rei, etiam maxime locum domicilii in contrahendo respexisse videntur,
quippe in quo precipue debitor, velut in foro preeprimis competente, conveniendus
est ; tum denique, quia,.si leges vel loci in quo contractum est, vel fori in quo de
creditorum prelatione ac concursu disputatur, observandas censueris, aut inexpli-
cabilibus et difficultatibus implicaturus es, aut ad notabiles delapsurus absurditates.
Etenim, si contractuum singulorum loca spectari debere contendas, explicari non
poterit, quid fieri debeat, si in Hollandia, Frisia Anglia, Italia, Hispania diversi per
-eundem debitorem contractus initi sint, quarum regionum unaqueque diversis ex
parte, quin et subinde contrariis de .protopraxia legibus utitur, dum in Anglia aut
Hollandia contrahens ex legibus Anglicanis aut Hollandicis preeferri desiderabit
ei, qui in Frisia contraxit; hic vero ex Frisia legibus contrariis potior esse velit
eo, qui in Hollandia vel Anglia effecit sibi devinctum debitorem. Quod si locum,
ubi mobilia proscribunter, et judicium concursus inter creditores agitatur, spectan-

- dum existimes quasi distributio pecuniarum inter creditores pars et sequela exe-
cutionis sit, (posito, quod alibi, quam in loco domicilii postremi debitoris oberati
mobilia vendi et lis de protopraxia agitari possit, cujus contrarium apud nos nunc
obtinere, supra x. t. num. 12. dictum est,) absurdum illud inde sequeretur, quod
tunc non mobilium tantum sed et immobilium intuitu leges loci, in quo judicium
de protopraxia agitur, observand# forent ; cum non minus distributio pecuniz ex
-immobilibus, quam ex mobilibus, redacte dici deberet executionis sequela aut
pars ; atque ita fieret, immobilia non ex lege situs regi, sed incerti juris subesse
dispositioni, prout in hoc vel illo loco, diversis juribus utente, contentio fuerit, in-
ter creditores instituta de przlatione. Quinimo, posito illo jure, quod judicium
universale concursus creditorum in eo loco ventilari debeat, in quo debitor, cum
moreretur aut foro cederet, domicilium habuit, esse in arbitrio debitoris positum,
ut migrando de loco in locum creditores non privilegiatos, efficeret privilegiatos,
hypothecam legalem faceret aliis nasci, aliis interire, prout aliud atque contrarium
domicilii prioris aut rei site lebibus jus in novissimi domicilii loco viguerit; quod
in immobilibus loco certo alligatis, nec arbitrio domini situm mutantibus, feren-
dum non est; sed potius (cum jam ad immobilia nos deduxerit ratiocinium),in
immobilium pretio inter creditores secundum cujusque privilegium distribuendo
servande erunt leges locorum illorum, in quibus immobilia singula existunt, idque,
convenienter regule in tit. de constit. Princip. parte alterd de statutis num, 12.
firmatz, ac dictanti, immobilia regenda esse jure loci, in quo sita sunt.”
§ 3251] FOREIGN CONTRACTS. 441

escunt ; veluti instrumentum et supellex, quam paterfamilias ; pre-
diorum instruendorum gratia, in provinciam misit : item fere bestia,
et pisces, ef reliqua animalia, que in fundis habentur feture et
propagationis gratia. Quecunque ejus generis deprehenduntur, ut
certo loco prediove affixe non sint, in tis haud dubié superior defi-
nitio observanda est. Cum enim maximé in motu sint, ac incertis
quasi sedibus vagentur, nihil proprius est, quam ut in disputatione
de prerogativa creditorum spectemus domicilium debitoris. Que
vero loco affixe, aut certis possessionibus attribute sunt, ee natu-
ram prediorum sequuntur, ejusque provincie esse censentur, in
qua predia sita sunt. Unde dicendum videbatur, in his rebus
spectandas esse leges ejus loci, ubi predia sita sunt, non ubi domi-
cilium debitor habet1 Again, referring to objections which might
be made, he says: Illud’ etiam objici poterat definitioni nostre:
In contractibus spectandas esse leges ejus loci, ubi contractum est,
vel in quem solutio destinata est: his enim legibus contrahentes
ultro subjecisse se intelliguntur. Igitur in creditorum quoque con-
tentione, non semper leges domicilii, sed si alibi contractum sit,
loci contractus sunt observande. Respondeo; Si ex contractu
agatur, spectari quidem leges ejus loci, ubi contractum est, non
tamen in omnibus controversiis. Etenim, si de solemnibus quera-
tur, si de loco, de tempore, et modo obligationis, tum quidem locum
contractus observamus : sin de materia obligationis, seu de rebus,
que in eam deducuntur, ejus loci habenda ratio est, ubi res site
sunt. Situm autem cum dicimus, predia denotamus: hec enim
proprié sita dicuntur, non etiam res mobiles. In disputatione vere
-creditorum de prerogativa, quo minus locum contractus spectemus,
ipsa quodammodo rerum natura impedimento est. Quid enim st
oberatus cum multis contraxerit, et variis quidem in locis, vario ac
diverso jure utentibus: veluti-Rome, Lugduni, Antuerpie, Am-
stelodami, Dantisci, Genuc, etc., qui poterit spectari locus contrac-
tus, et cujus potissimum loci leges spectabis citra manifestam alio-
rum creditorum injuriam? At locum domicilii debitoris possis
observare citra cujusquam injuriam, dum omnes cujuscunque gentis
aut nationis cum aliquo debitore contrahentes, domicilium ejus spec-
tasse, ac fortunam judiciorum ibidem experiri voluisse videantur.
Postremo, opponi poterat, non tam domicilium debitoris spectandum
esse, quam eum locum, ubi bona proscribuntur. Executionis enim
Seu pars, seu appendix, et sequela, videtur esse illa distributio pe-

* Matthzus, De Auctionibus, Lib. 1, ch. 12, n. 35, 36, p. 295.
442 CONFLICT OF LAWS. [cH. vit.

cuniarum inter creditores. Communit autem calculo doctorum tra-
ditur,-in executione facienda spectandum eum locum ubi executio
sit. Verim hunc obicem ita facilé removebimus, si .cogitaverimus
communam illam sententiam de ordine et solemnibus executionis
duntaxat loqui, non etiam de ipsa creditorum contentione et causé,
que inter eos vertitur : hec enim incidit quidem in executionem, ab
ordine tamen executionis separata est. In tis autem, que ad.cause
decisionem pertinent, non illicé locum judicti, sed antiquiorem ali-
quem, puta domicilii, interdum contractus, aliquando situm rei spec-
tamus. Instari poterat : Si ad decisionem cause pertinet disputatio
illa creditorum, jam sententia hec premetur alio argumento: Nempe,
quod in decisoriis litis observande sint leges ejus loci, ubi contrac-
tum est. Sed respondetur, hoc tum procedere, cum inter creditorem
et debitorem lis vertitur: cum vero plures creditores ejusdem debi-
toris de prerogativa disputant, locum domicilii debitors spectamus:;
quia locum contractus citra injuriam aliorum spectare per rerum
naturam non possumus: nullo certé modo, cum idem debitor, qui
variis in locis negotiari solet, habuerit variarum gentium atque
locorum creditores: puta Italos, Gallos, Belgas, Germanos, His-
panos, etc. Hic enim constituere non possis, cujus potissimum loci
leges sint spectande: ut autem omnium simul locorum leges atque
mores pectentur, rerum natura non patitur 3

§ 825 m. And, then, referring to immovables, he says: Quan-
tum ad res tmmobiles attinet, videndum, an recté separaverimus
hypothecam @ privilegio: ita ut in estimandis viribus hypothece
spectemus eum locum, ubi predium situm est; in privilegio inter
hypothecarios exercendo, domicilium debitoris ? Argumentum enim,
quo ust sumus, infirmius videtur : Privilegium concernit personam:
igitur domicilium debitoris in eo spectandum. Quasi vero non sit
duplex privilegiorum ratio: ita ut’ alia quidem persone, alia rei
seu cause data sint. Deinde, non videtur illa necessaria consecu-
tio: privilegia personam concernunt ; igitur personam comitantur,
quocunque locorum commigraverit. Etenim illo duntaxat jura que
persone qualitatem aliquam imprimunt, comitari personam solent :
veluti si quis minor, fatuus, prodigus, infamis, declaretur : Vitium
enim hoc perdurat, et quocunque locorum te contuleris, eircumferes
tecum notam illam et qualitatem in loco domicilii tibi impressam.
At privilegium, quod persone coneeditur, nullam qualitatem per-
sone imprimit, nullam notam inurit: comitari ergo personam non

* Matthaus, De Auctionibus, Lib. 1, ch. 21, n. 37, 38, 89, 40, p. 296, 297, 298.
§ 325 1-325 n.] FOREIGN CONTRACTS. 443

poterit in eam provinciam, in qua forte privilegium cessat. Sed
imprimis tllud obstat, quod privilegium detur quidem persone,
tamen in bonis debitoris exercendum. Ut autem in prediis debito-
ris in alia provincia sitis exerceam privilegium, non possunt miht
tribuere ti, qui in loco domicilii debitoris jura. condunt: quippe
quorum jurisdiction ager alterius territorii subjectus non sit. Mo-
bilia duntaxat, quia personam comitantur, jurisdictioni eorum sub-
jecta videntur, quocunque in loco reperiantur. Itaque st mulier
nupserit in Frisia, ubi dotes sunt, dotiumque privilegia: distra-
hantur mariti predia in Gelria, Hollandia, Trajecti, ubi ne dotes
quidem vere sunt, nedum dotium privilegia: non videtur mulier
inter hypothecarios habitura privilegium, quod haberet, si in Frisia
sita predia distraherentur. Valdé enim absurdum sit, velle hypo-
thecartis eam preferri, quam ne numerant quidem Gelri inter hy-
pothecarios. His de causis generalius concludendum, sive de viri-
bus hypothece, sive de privilegio inter hypothecarios exercendo
loquamur, in prediis spectandas esse leges ejus loci, ubi predia
sita sunt.

§ 825 n. Mevius adheres to the same rule in cases of movables,
that is to say, that the law of the domicil of the debtor is to gov-
ern in all cases of preferences and privileges.2 D’Argentré adopts
the same opinion: Quare statutum de bonis mobilibus veré perso-
nale est, et loco domicilit judctum sumit; et quodcumque Judex do-
micilit de eo statuit, ubique locum obtinet2 Burgundus may also
fairly be presumed to hold the like opinion. De cetero mobilia
ibi esse dicemus, ubi quis instruxit domicilium ; et ideo quodcumque
Judex domicilit de tis statuerit, ubique locorum obtinet, sive, quod
persona ibi est, aut esse, semper intelligitur, sive quod ibi rerum
suarum summam collocavit. Et sic intelligendum est, quod dicimus
mobilia sequi personam, hoc est, in domicilio ejus existere, et non
aliter quam cum domicilio transferri. Nec refert, eadem bona in
loco domicilii reperiantur, an non.4 Many other jurists assert the
same doctrine.’ Still, however, (as has been already intimated,)
all foreign jurists are not agreed ‘in this doctrine, at least not with-
out many modifications thereof.®

' Mattheus, De Auctionibus, Lib. 1, ch. 21, n. 41, p. 298, 299.

* Mevius, ad Jus, Lubesense, Lib. 3, tit. 1, art. 11,.n. 23 to n. 35.

* D’Argentré, de Briton. Leg. Art. 218, Gloss. 6,.n. 30, p. 654.

* Burgundus, Tract. 2, n. 21, p. 113. “

* 1 Boullenois, Observ. 80, p. 834, 835, 840.
* Ante, § 322 b, §.322 ¢.
444 CONFLICT OF LAWS. [cH. vi.

§ 325 o. But, whatever may be the differences of opinion among
them, as to the operation of the rights of preference or privilege
of creditors upon movable property, situate in fact in a foreign
country, there seems to be a great preponderance of authority,
although certainly not an universal agreement, in respect to im-
movable property, in favor of the doctrine, that the law of the
place rei site ought to prevail, as to the denial or allowance of
such preferences and privileges.1_ Paul Voet expressed the gen-
eral sense, when he said: Vero immobilia reguntur locorum sta-
-tutis, ubi sita; etiam quoad ea, si de estimandd hypothecd, aut de
privilegtis inter hypothecarios agatur, non inspiciendus erit locus
domicilii, vel debitoris, vel creditoris, verum locus statuti, ubi ja-
cent.2— An easy example may illustrate the importance of the dis-
tinction. Suppose a contract, made in Massachusetts for the sale
of lands lying in New York, by whose laws the vendor has a lien
for the unpaid purchase-money, and by the laws of Massachusetts
there would in such a case be no lien, if the land were in Massa-
chusetts ; the question would then arise, whether any lien attached
on such a contract on the land. According to the opinions of the
foreign jurists already referred to, the law rei site and not the
law of the place of the contract would attach upon the contract;
and consequently, a lien for the unpaid purchase-money would
exist on the lands in New York, although no such lien would ex-
ist in Massachusetts under or in virtue of the contract.?

[*§ 825 p. In two somewhat recent cases,* we had occasion to
consider the question of. priority among creditors, as affected by
the laws of different states. Those cases were very carfully pre-
pared and argued at the bar, and the authorities extensively con-
sidered, as well as the principles involved in the decision. We
are not aware that the doctrines there maintained have been essen-
tially modified by any more recent decisions.

§ 825 g. As to the effect of general or special assignments ; i.e.
for the benefit of creditors generally, or to secure particular cred-
itors, it was there held, that the law of the place of the domicil of
the debtor, where the assignment was in fact made in that partic-

1 Ante, § 322 to § 325 m.; Post, § 362 to § 373.

* P. Voet, de Stat. § 9, ch. 2, n. 8, p. 267, edit. 1715; Id. p. 322, edit. 1661,

® See Gilman v. Brown, 1. Mason, R. 219, 220, 221; S. C. 4 Wheat. R. 255.

* [* Hanford v. Paine, 32 Vert. R. 442; Rice v. Courtis, id. 460. In this case

the assignment was held to give a valid ena in favor of the assignee as against an
attachment i in favor of a creditor in Vermont. Post, § 400 }, 410 a.
§ 325 0 -325%.] FOREIGN CONTRACTS. 445

war case ; and where, by construction of law, such contracts are
generally presumed to be made, will govern. And hence if such
contract be made in conformity to the law of New York, where the
debtor is domiciled at the time, it will operate to create a valid
security or lien upon personal estate situated in Vermont, although
not executed in conformity with the laws of that state, unless the
operation of such assignment is limited or restrained by some local
law, or policy, of the state where the property is situated.

§ 825 r. But the local rule of policy established in the State of
Vermont, whereby all sales or assignments, by debtors, are held
to leave the property liable to attachment and levy of execution,
by all creditors, until after delivery and a substantial and visible
change of possession in fulfilment of such sale or assignment, is of
universal application to all personal property within the state, and
will affect the completeness of the transfer of such property as
long as it remains within the state, although owned by a resident of
another state, and there transferred in conformity with the laws
of such state, which do not require such change of possession in
order to defeat subsequent attachments and levies ; ; the want of
such change of possession being there only regarded as evidence,
and not conclusive, of such transfer being fraudulent and void as
‘to subsequent attachments and levies.1
_ .§ 325 s. But this rule will not extend to defeat a transfer of
personalty made and perfected in another state, the domicil of the
transferrer, in conformity with the law of that state,even where the
“same property is afterwards brought, by the transferrer or some
third party, into a state where the transfer, if made there, would
not be regarded as perfected in reference to personal estate having
its permanent locality there.?

§ 325 ¢. The doctrine of the preceding section is not intended
to countenance the rule which has prevailed in some states, of an
" arbitrary preference in favor of the creditors domiciled in the place
of the former. Such a rule of policy is never to be countenanced
except-as a matter of. strict necessity, in order to maintain essen-
tial state policy, or good morals, or when it is done in strict self-
defence, as a virtual .set-off against some counter-discrimination
against the citizens of the locum fort.]

1 Post, § 386,

_ 1 Jones v. Taylor, 30 Vert. R. 42, where the subject is very thoroughly and
“learnedly discussed by Mr. Justice Benneit. See also Taylor v. Boardman, 25

Vt. 589; post, § 391; Bank v. Danforth, 14 Gray, 123.]
CONFL, 38
446 CONFLICT OF LAWS. [cH. vin.

§ 826. Lord Ellenborough has laid down a doctrine: essentially
agreeing with that of Huberus. ‘ We always import,” (says he,) ;
“together with their persons, the existing relations of foreigners,
as between themselves, according to the laws of their own coun-
tries ; except, indeed, where those laws clash with the rights of
our own subjects here, and one or other of the laws must necessa-
rily give way ; in which case our own is entitled to the preference.
This having-been long settled in principle, and laid up among our
acknowledged rules of jurisprudence, it is needless to discuss it
further.”! The Supreme Court of Louisiana have adopted a little
more modified doctrine, coinciding exactly with that of Huberus:
“ That, in a conflict of laws, it must oftener be a matter of doubt,
which should prevail: and that whenever that doubt does exist,
the court, which decides, will prefer the law of its own country
to that of a stranger.? And if the positive laws of a state pro-
hibit particular contracts from having effect according to the
rules of the country, where they are made, the former must pre-
vail.” 8

§ 827. Mr. Chancellor Kent has laid down the same rule in his
Commentaries, as “stated by Huberus and Lord Ellenborough, and
has said: ‘ But on this subject of conflicting laws, it may be gen-
erally observed, that there is a stubborn principle of jurisprudence,
that will often intervene and act with controlling efficacy. ‘This
principle is, that when the lex loci contractés and the lex fori, as
to conflicting rights acquired in each, come in direct collision, the
comity of nations must yield to the positive law of the land. In
tali conflictu magis est, ut jus nostrum, quam jus alienum, serve-
mus.” * Mr. Burge has expressed his own exposition of the.same
doctrine in the following terms. “It may be stated generally, that,
with respect to contracts, of which movable property is the subject,
the law of the place in which the contract is made, will in some
respects exclusively prevail, although the contract is to be per-
formed in another ; and that in those respects, in which it does not
prevail, the law of the place, where the contract is to be performed,
must be adopted. But this conclusion is subject to some qualifi-
cations and exceptions. If a right, which ,is claimed as resulting’

1 Potter v. Brown, 5 East, R. 124.

* Mr. Justice Porter, in the case of Saul v. His Creditors, 17 Martin, RB. 596.
* Td. p. 586, 587,

* 2 Kent, Comm. Lect. 39, p. 461, 3d edit.
826-827 a.] FOREIGN CONTRACTS. 447

from the contract, or if an act or disposition affect the interest of
third parties, as the creditors of the owner, resort must be had to’
the law of his domicil to determine, whether that right exists, and
whether he was competent to do the act or make the disposition.
_A preference claimed by a creditor on the estate of his debtor, by
virtue of the contract, and a disposition made by a debtor, which
might be void against his creditors, are instances of this exception.
The law of a foreign country, is admitted, in order that the con-
tract may receive the effect, which the parties to it intended. No
state, however, is bound to admit a foreign law even for this pur-
pose, when that law would contravene its own positive laws, insti-
tutions, or policy, which prohibit such a contract, or when it would
prejudice the rights of its own subjects.” !

§ 827 a. A question involving considerations of this natureicame
recently before the Supreme Court of Louisiana. It was a suit
brought in Louisiana upon a bottomry bond of a peculiar charac-
ter, given by the owner of a steamboat in Cincinnati (Ohio,) and
pledging the vessel for the repayment of a sum of money and in-
‘terest, lent to the owner for a year. The steamboat had in the
intermediate time been sold in Kentucky to a purchaser with no-
tice of the lien, and she was at New Orleans at the time.of the suit
brought ; and the object thereof was to enforce the hypothecation
or lien created by the bond. Various objections were taken in the
defence; and among them was the objection, that no lien was”
created in such a case by the laws of Louisiana, where the suit was
brought. Mr., Justice Porter, in delivering the opinion of the
court on this occasion said: “ But a more formidable objection has
been raised against the regularity of the proceedings. The statutes
and jurisprudence of Louisiana, it is contended, only confer the
privilege of sequestration to enforce liens given by its laws; and
that, in aid of which this remedy was extended here, was not one,
that had any force, or conferred any privilege in our state, though
it'might have that effect in the country where it was made. The
objection now taken raises a distinction in cases so circumstanced,
between remedies before and after judgment; and we confess we
are unable to see any solid grounds, on which it can rest. If it be
true, as we apprehend it is, that the court can and should enforce

13 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 778, 779; Id. p. 770.

See also Felix, Conflict des Lois, Revue Etrang. et Franc. Tom. 7, 1840, § 33,
p. 227, 228,
448 CONFLICT OF LAWS. [(cH. vin.

the personal obligation, which a party, not a citizen of the state,
may have entered into in another country, and that on the judg- |
ment so rendered, the foreign creditor could obtain the benefit of
all writs of execution, which an inhabitant of Louisiana might
resort to against a domestic debtor, then we can see no good
ground for refusing the auxiliary process in the first instance ;
whether it be an order to arrest the person of the debtor, and hold
him to bail, or a writ to seize the property brought within the juris-
diction of a court, if it be the subject of contest. Both seem to
rest on the same principles. And a familiar illustration of the
commonly received opinion on this subject, may be given in the
case of attachments, which are almost every day resorted to in aid
of the foreign creditor against the foreign debtor ; and yet there is
nothing in our law more expressly giving that remedy to the
stranger, than there is in the case of sequestration.” After taking
notice, that by the laws of Ohio, it had been found, that the bond
created a lien on the steamboat, the learned judge proceeded to
say: “If the steamboat, then, had remained within the State of
Ohio, the evidence satisfies us, the plaintiffs could have had a lien‘
on her. But the main difficulty in the cause still remains. She
was sold in the State of Kentucky, under a decree of one of the
courts of that state, and purchased by the defendant at the sale.
It is admitted on all hands, that this sale was legal and regularly
made, and the question is not; what was the effect of the lien in
the country, where the contract was made, nor in that where it is
sought to be enforced, but what effect it had in the state, where
the defendant acquired title to the property.” He then examined
the laws of Kentucky on the subject ; and concluded in the follow-
ing words: “ The State of Kentucky, we presume, -gives effect to
liens, existing on property brought there from another country, on
the principle of comity, which we have‘already noticed, and we
must also presume, until the contrary be shown, that she admits
them with the same limitation, which other states.do ; namely, that
they shall not work an injury to her own citizens. To ascertain,
whether they do or not, recurrence must be had to her laws and
policy in relation to contracts made within her limits; for we take
the true principle in such cases to' be, that the foreign creditor,
who has a lien, should have no greater or no less privilege, than
the domestic creditor. If, for example, the laws of Kentucky re-
quired no record to be made of liens given on personal property
§ 327 a, 327 b.] FOREIGN CONTRACTS. 449

within the state, she would not require registry on the part of
the stranger, who came there to enforce a mortgage on property,
on which he had a lien in another country; for if she did, she
would neither carry the contract into effect, according to the law
of the country where it was made, nor according to her own. If
this be true, whatever time is given to the domestic creditor to
record his lien, should be given to him, who comes from another
state with one, if his lien be recognized as valid, when enregistered,
and his prayer to enforce it be admitted, as we are told by the tes-
timony it could be.’? The court accordingly enforced the lien
‘against the steamboat.

-§ 327 6. Another case, which may serve to illustrate the diffi-
culty of laying down any universal rule on the subject of contracts,
as the incidents and rights which may attach to or against third
persons, residing in different countries, may readily be stated, as
it is one which may not infrequently occur in practice. By the
law of England, if two policies are underwritten on the same ship
or cargo for the same voyage, to the full.amount of the property
at risk, it is treated as a double insurance, and each policy is valid,
without any reference to the respective dates thereof. And in case
of a loss, the insured may recover the whole loss from the under-
writers on either policy, at his own election ; and they are then
entitled to contribution pro raté from the underwriters on the
other policy.2 Now, in France, no such rule of contribution ex-_
ists; but the policy prior in date is, in case of a double. insurance,
‘to be first exhausted, and if that is sufficient to pay the whole loss,
there is no right to recover the loss, or to exact contribution from
the underwriters on the policy of a later date.2 This also seems to
‘be the general rule among most of the maritime nations of conti-
nental Europe. Now, let us suppose that two policies, of differ-
‘ent dates, are underwritten on the same ship or cargo, the-one in
‘France, and the other in England, for an American owner, on the
~ 1 Ohio Insur. Company v. Edmondson, 5 Louis. R. 295 to 305; Ante, § 244.

2 Park on Insur. ch. 15, p. 280, 281, 5th edit.; 3 Kent, “Comm. Lect. 48, p. 280,
281, 3d edit.; 1 Marsh. on Insur. ch. 4, § 4, p. 146, 2d edit.; 2 Phillips on Insur.
p. 59, 60, 2d edit.

..? 8 Kent, Comm. Lect. 48, p. 280, 281, 3d edit.; Code de Commerce, art.
359, Ordin. of Louis 14th, 1681 ; 2 Valin, Comm. Lib. 3, tit. 6, art. 23, 24, 25,
72, 73,
. * 1 Emerigon, Assur. ch. 1, § 7, p. 23; 1 Marsh. on Insur. ch. 4, § 4, p. 146, 2d
edit. note a.
38 *
450 CONFLICT OF LAWS. [cH vu.

same voyage, each policy being for a sum equal to the full value
of the -property at risk, and there should be a total loss on the
voyage; the question might arise whether the English under-
writers were liable at all, if the French policy was prior in date ;
and also, whether, if liable, they could claim contribution from the
French underwriters ; and conversely, the question might arise,
whether, if the English policy was prior in date, the French under-
writers were liable at all; and if liable, whether they could claim
contribution from the English underwriters. No such case seems
as yet to have undergone any judicial decision. But probably it
would be held, that each contract was to be exclusively construed
according to the obligations and rights created by the lex loci con-
tractés between the parties themselves, without any regard to the
callateral rights and obligations which might arise between the
underwriters, if both contracts were made in the same country.
If a different rule were adopted, there might be an entire want of
reciprocity in its operation. Thus, if the French policy were prior
in date, and a recovery were had thereon against the French un-
derwriters, they might have contribution from the English under-
writers; and yet, if a recovery were had against the English
underwriters, they could not have contribution from the French
underwriters. On the other hand, if the English policy were prior
in date, the French underwriters might be exempted from all lia-
bility for the loss, or if liable, might recover a contribution from
the English underwriters; at the same time, that if a recovery
were had against the English underwriters, they would not be
entitled to any contribution against the French underwriters.
However, this case is merely propounded as one on which the
-author professes to have no fixed opinion ; and is designed rather
to awaken inquiry, than to satisfy doubts.

§ 828. This subject will be resumed hereafter under other
heads.? But the remarks of a learned Scottish judge? may here
be properly introduced as exceedingly pertinent to the present dis-

* In some of the present American policies, there is now what is commonly
called a priority clause, similar in effect to the French Law. The very question,
therefore, may arise in the case of a double insurance by different policies in Eng-
land, and in a state using the priority clause, or in the latter state, and a state
which uses the common English policy, and is governed by its laws.

2 Post, § 401, 402, 423 a, § 524 to § 527.

8 Lord Robertson in the case of Mrs. Levett in Fergusson on Mar. and Div.
885, 397.
§ 827 6b -—331.] FOREIGN CONTRACTS. 451

cussion. ‘The application of the lex loci to contracts, although
general, is not universal. It does not take place, where the
parties, at the time of entering into the contract, had the law of
another kingdom in view ; or where the lex loci is in itself unjust,
or contra bonos mores ; or contrary to the public law of the state,
as regarding the interests of religion, or TaeraL ys or the general
well-being of society.”

§ 329. It has been already incidentally stated, that, when a debt
is contracted in a foreign country, it is not to be deemed exclusively
payable there, unless there is in the contract itself some stipula-
tion to that effect. On the contrary, a debt contracted in a par-
ticular country, and not limited to:a particular place of payment,
is by operation of law payable everywhere, and may be enforced,

‘-wherever the debtor or his property can be found.?

§ 830. We are next led to the consideration of the manner in
which contracts may be discharged, and what matters upon the
merits will constitute a good defence to them. I say upon the
‘merits ; for the objections’arising from the law of the state where
the suit is brought, (lex fori,) such as the limitations of remedies,
and the form and modes of suit, will constitute a separate head of
inquiry.?

. § 831, And, here, the general rule is, that a defence or dis-
charge, good by the law of the place where the contract is made,
or is to be performed, is to be held of equal validity in every other
place, where the question may come to be litigated.* John Voet
has laid down this-doctrine in the broadest terms. Si adversus
contractum aliudve negotium gestum factumve restitutio desidere-
tur, dum quis aut metu, aut dolo, aut errore lapsus, damnum sensit
contrahendo, transigendo, solvendo, fidejubendo, hereditatem ade-
undo, aliove simili modo; recte interpretes statuisse arbitror, leges

2 Ante, § 272 a, § 278 a, § 295, § 317; Donn v. Lippmann, 5 Clark & Fin. R. 1,
12,13.
ang : See Blake v. Williams, 6 Pick. R. 286, 315; ante, § 272'a, § 317; Donn v.
Lippmann, 5 Clark & Fin. 1, 12, 13.

® Post, § 524 to § 527.

* 2 Bell, Comm. B. 8, ch. 3, § 1267, p. 692, 4th edit.; Id. p. 688, 5th edit.; 3
Burge, Comm. on Col. and For. Law, Pt. 2, ch. 21, § 7, p. 874 to p. 886; Id. ch.
22, p. 924 to p. 929.— As to what will constitute a discharge in foreign countries,
and especially by novation, by confusion, by set-off or compensation, by payment
or consignation, and by relapse, see 3 Burge, Comm. on Col. and For. Law, Pt. 2,

ch. 21, § 1 to § 6, p. 781 to p. 880. See also Bartsch v. Atwater, 1 Connect. R.
409.
452 . CONFLICT OF LAWS. [cH. vin.

regionis, in qua contractum gestumve est, id, contra quod restitutio
petitur, locum sibi debere vindicare in terminandd ipsd restitutionis
controversié; sive res ille, de quibus contractum est, et in quibus
lesio contigit, eodem in loco, sive alibi site sint. Nec intererit
utrum lesio circa res ipsas contigerit, veluti pluris minorisve, quam
aequum est, errore justo distractas, an vero propter neglecta solen-
nia in loci contractus desiderata. Si tamen contractis implemen-
tum non in ipso contractis loco fieri debeat, sed ad locum alium sit
destinatum, non loci contractis, sed implementi, leges spectandas
esse ratio suadet; ut ita secundum cujus loci jura implementum
accipere debuit contractus, juxta ejus etiam leges resolvatur.
Casaregis in substance lays down the same doctrine ;? and Hu-
berus throughout implies it,3 as, indeed, does Dumoulin.*

§ 831 a. Burgundus says: Idem ergo de solutionibus dicendum;
scilicet, ut in omnibus, qué ex ea sunt, aut inde oriuntur, aut circa
illam consistunt, aut aliquo modo affinia sunt, consuetudinem loci
spectemus, ubi eandem implendam convenit. Itaque ex solutione
sunt solemnia, valor rei debite, pretium monete ; ex solutione ori-
untur prestatio apoche, antigraphi, similiaque. Affinia solutioni
sunt, prescriptio, oblatio ret debite, consignatio, novatio, delegatio,
et ejusmodi.6 Ea, vero, que ad complementum vel executionem
contractus spectant, vel absoluto eo superveniunt, sola a statuto loci
dirigi, in quo peragenda est solutio® Many other foreign jurists
maintain the same doctrine.”

382. In England and America the same rule has been adopted,
and acted on with a most liberal justice. Thus, infancy, if a valid
defence by the lex loci contractés, will be a valid defence every-
where.? A tender and refusal, good by the same law either as a
full discharge, or as a present fulfilment of the contract, will be

1 J. Voet ad Pand. Lib. 4, tit. 1, § 29, p. 240.

* See Casaregis, Disc. 179, § 60, 61.

* Huberus, ‘Lib. 1, tit. 8, § 8, 7; J. Voet, De Statut. § 9, ch. 2, § 20, p. 275,
edit. 1715; Id. p. 332, 333, edit. 1661.

* 2 Boullenois, Observ. 46, p. 462; Molin. Comm. ad Cod. Lib. 1, tit. 1, 1. 1;
Conclus. de Stat. Toni. 3, p. 554, edit. 1681.

° Burgundus, Tract. 4, u. 27, 28, p. 114, 115, 116.

° Id. n. 29, p. 116.

" 8 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 21, § 7, p. 874, 875, 876.

* 2 Kent, Comm. Lect. 39, p. 459, 8d edit.; Potter v. Brown, 5 East, 124;
Dwarris on Stat. Pt. 2, p. 650, 651; 2 Bell, Comm. § 1267, p. 691, 692, 4th edit.;
Id. p. 688, 5th edit.

* Thompson v. Ketcham, 8 Johns, R. 189 ; Male v. Roberts, 3 Esp. R. 168.
§ 331-334.] FOREIGN CONTRACTS. 453

respected everywhere.1_ Payment in paper money bills or in other
things, if good by the same law, will be deemed a sufficient pay-
ment everywhere.? And, on the other hand, where a payment by
negotiable bills or notes is, by the lex loci, held to be conditional
payment only, it will be so held, even in states, where such pay-
ment under the domestic law would be held absolute.? So, if by
the law of the place of a contract (even although negotiable) equi-
table defences are allowed in favor of the maker, any subsequent
indorsement will not change his rights in regard to the holder.*
The latter must take it cum onere5

§ 383. The case of an acceptance of a bill of exchange in a for-
eign country affords another illustration. Although by our law it
‘is absolute, and binding in every event. yet, if by that of the.
foreign country it is merely a qualified contract, it is governed by
that law in all its consequences. Acceptances are deemed con-
tracts in the country, where they are made ; and the payments are
regulated by the law thereof.’

§ 884. But, although the general rule is clear, as above stated,
that a discharge by the law of the place, where a contract is made,
is a discharge everywhere; yet there are exceptions to the rule,
which every country will enforce, or not, according to its own dis-
cretion, and sense of justice. Thus, where a contract was made in
England between two Danish subjects, one of whom was domiciled
in England ; and afterwards, during a war between England and
Denmark, the Danish government confiscated the debt, and re-
quired it to be paid by the debtor, who was then in Denmark, and
he paid it accordingly ; the English Court of King’s Bench on a
suit, brought in England after the peace, by the creditor —

1 Warder v. Arell, 2 Wash. Virg. R. 282, 293, etc.

2 Warder v. Arell, 2 Wash. Virg. R. 282, 293 ; 1 Brown, Ch. R. 376; Searight
v. Calbraith, 4 Dall. 835; Bartsch v. Atwater, 1 iConnaen R. 409.

? Bartsch v. Atwater, 1 Connect. R. 409; Descadillas v. Harris, 8 Greenl. R.
298. See other cases cited, 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 21,
§ 7, p. 876, 877, 878.

* Ante, § 317.

5 Ory v. Winter, 16 Martin, R. 277. See also Evans v. Gray, 12 Martin, R.
475; Charters v. Cairnes, 16 Martin, R. 1. © ‘a

* Burrows v. Jemino,‘2 Str. R. 733; S. C. 2 Eq. Abridg. 525. See Van. Cleff
v Terasson, 3 Pick. R. 12; Ellicott v. Early, 3 Gill, 431.

7 Lewis v. Owen, 4 B. & Ald. 654; 5 Pardessus, § 1492; ante, § 307, 317;

Cooper v. Earl of Wéildegrave, 2 Bawa; R. 282.
® Post, § 337.
454 CONFLICT OF LAWS. [cH. vIn.

the debtor, held, that the payment to the Danish government was
no discharge, although it would have been so by the laws of Den-
mark, upon the ground, that such a confiscation was not justified
by the law of nations.!

§ 835. The most important, or at least most frequent cases of
discharges of contracts, occurring in practice, are those of dis-
charges arising from matters ex post facto; such as a discharge
from the contract upon the subsequent insolvency or bankruptcy:
of the contracting party. And here the general rule is, that a dis-.

charge from the contract according to the law of the place where

it is made, or where it is to be performed, is good everywhere,
and extinguishes the contract.2 This doctrine was fully recog-
nized in the English law by Lord Mansfield (and it doubtless had
a mpch earlier existence) in a formulary of language, which has
been since often quoted as a general axiom of jurisprudence.
“Tt is a general ptinciple,” said he, “ that, where there is a dis-
charge by the law of one country, it will be a discharge in an-
other.” ® The expression is too broad, and should have the quali-
fication annexed which the case before him required, and which
has been uniformly understood, namely, that it is a discharge in
the country where the contract was made or was to be performed:

And so it was interpreted by Lord Ellenborough i in a much later:
case. “The rule,” said he, ‘“ was well laid down by Lord Mans-"
field, in Ballantine v. Golding, that what is a discharge of a debt
in the country where it was contracted, is a discharge of it every-

where.” * This doctrine is also firmly established and generally

? Wolfe v. Oxholme, 6 M. & Selw. R. 92. See post, § 348, 349, 350, 351. It
is wholly unnecessary here to consider, whether the confiscation of debts by an
enemy is conformable, or not, to the Yaw of nations. That is a point belonging
to the public law of nations, and underwent very grave discussions in England,
in the case in 6 Maule & Selw. 92, as well as in the American courts, during the
late war with Great Britain. See the Emulous, 1 Gallison, R. 563; S. C. on

_ appeal, Brown v. United States, 8 Cranch, R. 110.

* 2 Kent, Comm. Lect. 87, p. 392, 393, 3d edit.; 2 Bell, Comm. § 1267, p. 691
to 695, 4th edit.; Id. p. 688, 5th edit.; 1 Chitty on Comm. and Manuf. ch. 12,
p. 654.

* Ballantine v. Golding, 1 Coop. Bank. Laws, p. 847, 5th edit., , p. 515, 4th edit.;
Blanchard v. Russell, 18 Mass. R. 7; 2 Bell, Comm. § 1267, p. 691, 692, 4th edit.;
Id. p. 688, 5th edit.

* Potter v. Brown, 5 East, 124,180. See Hunter v. Pots, 4 T. R. 182; Quin
v. O'Keefe, 2 H. Bl. 558.
4384 -336.] FOREIGN CONTRACTS. 455

recognized in America.! By some judges.the doctrine has been
put upon the implied consent of the parties in making the contract,
that they would be governed as to all its effects by the lex loci con-
tractis2 By others it has been put upon the more firm and solid
basis of the sovereign operation of the local law upon all contracts
made within its sovereignty ; and the indispensable comity which
all other nations are accustomed to exercise towards such laws
whenever they are brought into question either as to contracts, or
to rights, or to property.

§ 336. The doctrine has been stated in a more general form by a
late learned American judge,,who said: “ It may be assumed, as a
rule affecting all personal contracts, that they are subject to all
the consequences attached to contracts of a similar nature by the
laws of the country where they are made, if the contracting party is
a subject of or resident in that country where it is entered into, and
no provision is introduced to refer to the laws of another country.”’*
This is not, perhaps, in strictness of language, entirely correct.
There are many consequences flowing from contracts in the place
where they are made, which do not accompany them everywhere,
and are not of universal obligation.© Remedies are a consequence
of contracts when broken ; but, as we shall hereafter see, they are
_governed by different rules from rights.® And the rights, given by
the law of the place of the contract, are not always deemed of
universal obligation or validity. Marriage, for instance, is admit-

1 See on this point Smith v. Smith, 2 Johns. R. 235; Hicks v. Brown, 12 Johns,
R. 142; Van Reimsdyk v. Kane, 1 Gallis, R. 371; Blanchard v. Russell, 13 Mass.
-R.1; Baker v. Wheaton, 5 Mass. R. 511; Watson v. Bourne, 10 Mass. R. 337;
4 Cowen, Rep. note, p. 515 ; Green v. aieteaie, Peters, Cir. BR. 74 ; MoMenoniy
e%, Murray, 3 Johns. Ch. R. 435, 440, 441; Walsh v- Nourse, 5 ‘Bim, R. 381;
Sturges v. Crowninshield, 4 Wheaton, R. 122; Ogden v. Saunders, 12 Wheaton,
R. 213, 358; 2 Kent, Comm. Lect. 37, p. 392, 393; Id. Lect. 39, p. 459, 3d edit. ;
Hall v. Boardman, 14 New Hamp. 38; Very v. McHenry, 29 Maine, 214; At-
water v. Townsend, 4 Connect. R. 47; Hempstead v. Reed, 6 Connect. R. 480;
Houghton v. Page, 2. New Hamp. R. 42; Dyer v. Hunt, 5 New Hamp. R. 401;
2 Bell, Comm. § 1267, p. 691, 692, 693, 4th edit. ; Id. p. 688, 5th edit.
* See ante, § 261; Blanchard v. Russell, 18 Mass. R. 1, 4, 5; Prentiss v. Sav-
age, 13 Mass. R. 20, 23.
® Potter v. Brown, 5 East, R, 124; Ante, § 261.
* Mr. Chief Justice Parker, in delivering the opinion of the court in the case of
Blanchard v. Russell, 13 Mass. R. 1, 5.
® Ante, § 825 to 327.
® Post, § 556 to 575.

,
456 CONFLICT OF LAWS. (cH. Vin.

ted to be a valid contract. everywhere when it is valid by the law
of the place where it is celebrated.1 But, as we have seen, all the
consequences, attached to marriage in one country, do not follow
it into other countries.2 In Scotland a subsequent marriage legit-
imates children antecedently born ; but this consequence has not
yet been (as we have seen) finally adjudged in England to the ex-
tent of making such antenuptial children legitimate, so as to be
entitled to inherit lands of their parents situate in England. Ad-
huc subjudice lis est.2 So, the indissolubility of marriage by the
law of one country will not attach to it everywhere.*

§ 837. And even in regard to common contracts of a different
nature, the general rule, as to the consequences of them, must re-
ceive many qualifications and limitations resulting from the public
policy or the domestic laws of other states where they are sought
to be enforced, and the right and duty of self-protection against
unjust foreign legislation.6 If, for example, a country, where a
contract was made, should, under the pretence of a general bank-
-rupt act, authorize a discharge from all contracts made with for-
eigners, and should at the same time exclude the latter from all
participation with domestic creditors in the assets; it cannot be
presumed that such an act would be held a valid discharge in the
countries to which such foreigners belonged. And certainly the

‘priorities and privileges: annexed by the laws of particular states
to certain classes of debts contracted therein, are not generally
admitted to have the same pre-eminence over debts contracted in
another country which is called upon to enforce them.’ Nor are
the courts of any state under any obligation to give effect to a dis-
charge of a foreign debtor, where, under its own laws, the creditor
has previously dcquired a right to proceed against his property
within its own territory.®

1 Ante, § 111, 113, 121 to 125.

* See ante, § 145 to 190; Fergusson on Marr. and Div. 859, 360, 361, 397,
398, 399, 402, 414; Conway v. Beazley, 3 Hagg. Ece. R. 639.

* Doe dem. Birtwhistle v. Vardill, 5 B. & Cresw. 438 ; ante, § 87, 98, 94; 1
Hertii, Opera, De Collis, Leg. § 4, 15, p. 129, edit. 1737; Id. p- 183, 184, edit.
1716.

* Ante, § 215 to 230. § Ante, § 325 to 327, 334.

° Blanchard v. Russell, 13 Mass. R. 1, 6; Huberus, De Conflict. Leg. Lib. 1,
tit, 8, § 11.

7 See ante, § 322 to 327; Huberus, De Conflict. Leg. Lib. 1, tit. 8, § 11.

* Tappan v. Poor, 15 Mass. R. 419; Le Chevalier v. Lynch, Doug, R. 170.
But see Hunter v. Potts, 4 T. R. 182; S, P. 2 H. Bl. 402; ante, § 325 to 327.
§:336 —339.] FOREIGN CONTRACTS. 45T

*. $338. When we speak of the discharge of a debt in the country
where it is contracted, being a discharge thereof everywhere, care
inust be taken to distinguish between cases where, by the lex loci
contractés, there is a virtual or direct extinguishment of the debt
itself; and where there is only a partial extinguishment of the
remedy thereon. By the bankrupt laws of England, and by the
corresponding insolvent laws of some of the United States, an ab-
sdlute discharge from all rights and remedies of the creditors is
provided for, as part of the system; and, therefore, the whole ob-
ligation of the contract is deemed, ipso facto, extinguished.1 But
there are insolvent. laws, and other special systems, both in Europe
and America, which fall short of this extent and operation. In
some cases, the person only is liberated from future imprisonment
and responsibility ; in others, particular portions of property only
are exempted; and in others, again, a mixed system, embracing
some postponed or modified liabilities both of the person and prop-
erty, prevails.?

§ 339. Now, in all these cases, where there is not any positive
extinguishment, or any virtual extinguishment, of all rights and
remedies of the creditors, the contract is not deemed to be extin-
guished ; and, therefore, it may be enforced (as we shall hereafter
more fully see) in other countries. By the Roman law a Cessio
Bonorum of the debtor was not a discharge of the debt, unless
the property ceded was to the full sufficient for that purpose. It
otherwise operated only as a discharge, pro tanto, and exonerated
the debtor from imprisonment. Qui bonis cesserint, (says the
‘Code,) nisi solidum creditor reciperit, non sunt liberati. In eo
enim tantummodo hoc beneficium eis prodest, ne judicati detrahan-
tur in earcerem.* Huberus informs us, that in, Holland a Cessio

1 See 2 Kent, Comm. Lect. 37, p. 389 to p. 402, 3d edit.; 3 Burge, Comm. on
Col. and For. Law, Pt. 2, ch. 22, p. 886 to p. 929. .

* See 1 Domat, Civ. Law, B. 4, tit. 5,§ 1; Morris v. Eves, 11 Martin, R. 730.
See Mather v. Bush, 16 Johns, R. 233 ; 2 Bell, Comm: ch. 5, § 1162 to § 1164, p.
563 to p. 567, 4th edit. ; Id. p. 580 to p. 997, 5th edit. ; Phillips v. Allen, 8 B. &
Cresw. 477 ; 2 Kent, Comsen, Lect. 37, p. 389 to p. 404, 3d edit. ; 2 Burge, Comm.
on Col. and For. Law, Pt. 2, ch. 22, p: 886 to p. 904.

* Judd v. Porter, "7 Greenl. R. (Bennett's ed.) 337; Boston Type Foundery v.
Wallack, 8 Pick. R. 186; Coffin v. Coffin, 16 Pick. R. 323; post, § 340 to § 352.

* Cod. Lib. 7, tit. 71, 1.1; 1 Domat, Civ. Law, B. 4, tit. 5,§1,n.1,2. See
Mather ». Bush, 16 Johns. R. 233; 2 Bell, Comm. ch. 5, § 1162 to § 1164, p. 563
to:p.. 567, 4th edit, ; Id. p. 580 to p. 598,.5th edit. Pe

CONFL, 39
458 CONFLICT OF LAWS. [cH. VII.

Bonorum does not not even exempt from imprisonment, unless
the creditors assent. Secundum jus nostrum Cessio Bonorum, in-
vitis creditoribus, debitorem a carcere publico non liberat;+ and
Heineccius proclaims the same as the law of some parts of Ger-
many.2 The Scottish law conforms to the Roman Code in its
leading outlines;? and the modern Code of France adopts the
same system. An Insolvent Act, or Bankrupt Act, or Cessio Bo-
norum, which only absolves the person of the debtor from impris-
onment, but not his future property, or, which only suspends
remedies against either the one or the other for a limited period, is
not to be deemed a discharge from the contract, and its operation
is (as we shall presently see) purely intra-territorial.®

1 Huberus, Tom. 3, lib. 42, tit. 8, § 1, 3, note; Hx parte Burton, 1 Atk. 255;
McMenomy »v. Murray, 3 Johns. Ch. R. 442; Voet, ad Pand. Lib. 42, tit. 3, § 8;
Le Roy v. Crowninshield, 2 Mason, R. 160.— Lord Mansfield is reported to have
said, in Ballantyne v. Golding, (1 Cooke, Bank. Laws, p. 347, 5th edit., p. 515,
4th edit.) “ That he remembered a case in Chancery, of a Cessio Bonorum in
Holland, which is held a discharge in that country, and it had the same effect
here.” The case alluded to is most probably Ex parte Burton, (1 Atk. R. 225.)
The law of Holland is the reverse of what his Lordship is here supposed to affirm,
as the case in 1 Atk. R. 225, and the citations from Huberus and Voet establish.
Whether the error is in the Reporter, or in Lord Mansfield himself, may well be
questioned. Mr. Henry has given a sketch of the present law of France, as to
the Cessio Bonorum in cases of foreign contracts, which certainly has some pecu-
liarities, not conforming to the general principles of international law adopted in
other nations. Henry on Foreign Law, Appx. p. 250. See Pardessus, art. 1324
to 1328. ‘The Cessio Bonorum of Scotland is (it seems) a mere discharge of the
person. See 2 Bell, Comm. ch. 5, p. 563, etc. 4th edit. ; Id. p. 580, ete. 5th edit.
Phillips v. Allan, 8 Barn. & Cresw. 479.

* Heinece. Elem. Jur. Civ. ad Pand. Lib. 42, tit. 3, § 252, 254, p. 6; 3 Johns,
Ch. R. 441, 442.

* Erskine, Inst. B. 4, tit. 8, § 26, 27; 2 Bell, Comm. ch. 5, § 1162 to § 1164,
p. 568 to p. 567, 4th edit. ; Id. p. 580, 5th edit.

* Code Civil of France, art. 1265 to 1270; Merlin, Répert. Cession de
Biens. ;

° Tappan v. Poor, 15 Mass. R. 419 ; Morris v. Eves, 11 Martin, R. 730; Boston
Type Foundery’v. Wallack, 8 Pick. R. 186; Judd v. Porter, 7 Greenl. R. 337;
Hinckley v. Marean, 3 Mason, R. 88; Titus v. Hobart, 5 Mason, R. 378; 1 Kent,
Comm. Lect. 19, p. 420, 422, 8d edit.; 2 Bell, Comm. § 1162 to § 1164, p. 562,
567, 694, 4th edit.; Id. p. 580 to p. 598, 5th edit.; Mason v. Haile, 12 Wheat. R.
870; 2 Kent, Comm. Lect. 37, p. 394 to p. 401, 3d edit.; Phillips v. Allan, 8
Barn. & Cresw. 479; Ex parte Burton, 1 Atk. R. 255; Huberus, Lib. 42, tit. 3,
§ 5; Heineccii Elem. ad Pand. Tom. 3, P. 6, Lib. 42, tit. 8, § 253; 8 Burge,
Comm. on Col. and For. Law, Pt. 2, ch. 22, p. 924 to p. 929; White v. Canfield,
7 Johns. R. 117; James v. Allen, 1 Dall. R. 188; Quinn v, O'Keefe, 2 H. Bl.
§.339, 840.] FOREIGN CONTRACTS. 459:

§ 840. The general form in which the doctrine is expressed,
that a discharge of a contract by the law of the place where it is
made, is a discharge everywhere, seems to preclude any consider-
ation of the question, between what parties it is made; whether
between citizens, or between a citizen and a foreigner, or between
foreigners. The continental jurists recognize no distinction in
thecases. The English decisions are understood to maintain the
universality of the doctrine, whatever may be the allegiance of the
' country of the creditor. And a like doctrine would seem gener-
ally to be maintained in America.? There are, however, some
cases in which a more limited doctrine would seem to be laid
down ; and which appear to confine it to cases.of a discharge from
contracts between citizens of the same state. Thus, in one case,
it was laid down by the Supreme Court of Massachusetts, that if,
when the contract was made, the promisee was not a citizen of the
state where it was made, he would not be bound by the laws of
such state in any other state; and, therefore, that a discharge
there would not bind him or his rights.2 In another case the
same learned court said, that a discharge of the contract can only
operate where the law is made by an authority common to the
creditor and the debtor in all respects; where both are citizens
and subjects. But this qualification of the doctrine (which was
only incidentally argued in those cases) was afterwards deliber-
ately overruled by the same court; and the general doctrine was
established in its universality. The qualification seems, however,
again to have been asserted in a more recent decision of the same
court; upon grounds not very clearly defined, or perhaps not entire-
ly satisfactory, unless the case is to be governed by the decisions of
the Supreme Court of the United States upon the subject of dis-
charges under insolvent laws, with reference to the Constitution of

553; Le Roy v. Crowninshield, 2 Mason, R. 160; Wright v. Paton, 10 Johns. R.
300; Peck v. Hozier, 14 Johns, R. 346; Walsh v. Nourse, 5 Binn. R. 381.

1 See Mason v. Haile, 12 Wheaton, R. 360; Potter v. Brown, 5 East, R.
124,

2 See Robinson v. Bland, 1 W. Black. R. 258; Blanchard v. Russell, 13 Mass.
R.1; Smith v. Smith, 2 Johns. R. 235; 2 Kent, Comm. Lect. 37, p. 392, 393, 3d
edit.; Ory v. Winter, 16 Martin, R. 277; Sherill v. Hopkins, 1 Cowen, R. 103,
107; Pack 3, Hibbard, 26 Verm. 703.

e Baker v. Wheaton, 5 Mass. R. 511.

* Watson v. Bourne, 10 Mass, R. 337, 340.

*® Blanchard v. Russell, 13 Mass. R. 1, 10, 11, 12.
460 CONFLICT OF LAWS. [cH. vi.

the United States.! It has been expressly denied by other learned’
state courts.2 In commenting upon some of the cases in which,

. Braynard v. Marshall, 8 Pick. R. 194. — The case was a negotiable promis-
sory note, made by A., in New York, to B., or order;. the note was afterwards
indorsed to C., in Massachusetts, who sued A., the maker, there, and he pleaded
his discharge under the insolvent laws of New York. On that occasion, Mr.
Chief Justice Parker, in delivering the opinion of the court, declaring the dis-
charge no bar to the suit, said: “The questions which arise out of the subjeas of
state insolvent laws, and the effect of discharges under them, have been so long
unsettled in this Commonwealth, owing to the unsatisfactory character of the de-
cisions of the Supreme Court of the United States, which ought to govern cases
of this nature, that we have waited with anxiety for a revision of all the cases by
that high court, and a final adjudication upon a subject so universally interesting,
and hitherto involved in so much perplexity. The case of Ogden v. Saunders
seemed in its progress, to promise such a result, but unhappily, on some of the
points which the case presented, the law is left as uncertain as it was before.
One thing, however, we understand to have been clearly decided by a majority
of the justices of that court, and virtually by all, (as those who admit no validity.
at all to such laws may be considered as uniting with those who give them only a
limited operation,) which is, that discharges under such laws have no effect with-
out or beyond the territory of the state where they are obtained, or against a
party not a citizen of that state, or where the suit shall be brought in a court of
the United States, or of any state other than that in which the proceedings took
place, notwithstanding the contract, on which the discharge was intended to
operate, was entered into and was to be performed in the state in which the dis-
charge was granted. Now this law, thus settled, is binding upon this court, as
well on account of the nature of the question, which is peculiarly proper for the
decision of the highest court of the nation, as because the case itself, unless re-
strained by the smallness of the sum in controversy, may be carried to that court
by writ of error, and our judgment be reversed ; it being a question of which by
§ 25, of the judiciary act of the United States, (of September 24, 1789,) that
court has jurisdiction. But even if we were not inclined to repose on the decision
in Ogden v. Saunders, but considered ourselves at liberty to resort to general
principles, we are disposed to think that the defence set up under the certificate
in this case could not prevail. It does not come within the case of Blanchard ».
Russell, in which the contract was made in New York, by a citizen of that state,
and was to be performed there, it not being transferable in its nature, being mat-
ter of account. A negotiable instrument, made in New York, and indorsed for a
valuable consideration to a citizen of Massachusetts before an application for the
benefit of the insolvent law, ought not to be discharged under the process provided
by that law. It is a debt payable anywhere, by the very nature of the contract,
and it is a promise to whosoever shall be the holder of the note. At the time of
the defendant’s application for a discharge, his creditor upon this note was a

* Ory v. Winter, 16 Martin, R. 277; Sherill y. Hopkins, 1 Cowen, R. 103,107;
Peck v. Hibbard, 26 Verm. 702. [i In this latter case the authorities are very
extensively and learnedly discussed by Isham, J. Post, § 341.]
®
§ 840, 341.] FOREIGN CONTRACTS. 461

upon questions of discharge, considerable importance has been at-,
tached to the circumstance, that one or both of the parties were
inhabitants of, and domiciled in, the state or country where the
contract was made, the Supreme Court of New York have said:
“All these cases stand upon a principle entirely independent of
that circumstance. It is that of the lex loct contractiés, that the
place where the contract is made must govern the construction of
the contract ; and that, whether the parties to the contract are
inhabitants of that place or not. The rule is not founded upon
the allegiance due from citizens or subjects to their respective gov-
ernments, but upon the presumption of law, that the parties to a
contract are conusant of the laws of one country where the con-
tract is made.” ?

§ 341. Under the peculiar structure of the Constitution of the

United States, prohibiting the States from passing laws impairing
the obligation of contracts, it has been decided, that a discharge,
under the insolvent laws of the state where the contract was made,
will not operate as a discharge of the contract, unless it was made
between citizens of the same state. It cannot, therefore, discharge
a contract made with a citizen of another state.2 But this doc-
trine is wholly inapplicable to contracts and discharges in foreign _
countries, which must, therefore, be decided upon the general
principles of international law.’
Massachusetts man, and according to the case of Baker v. Wheaton, (5 Mass. R.
509,) the certificate would be no bar to the action. The principle of this case
was fully recognized and adopted in the case of Watson v. Bourne (10 Mass, R.
337). Nor is there anything in the case of Blanchard v. Russell to controvert
these decisions, whatever may have been said, arguendo, by the judge who deliv-
ered the opinion. The contract in that case was in its nature te be performed in
New York, and so was to be governed entirely by the laws of that state. The
case before us is that of. a negotiable promissory note, given in the first place by
a citizen of New York to a person resident there, by whom it was immediately
indorsed to a citizen of Massachusetts. The promisor became, immediately upon
the indorsement, the debtor to the-indorsee, who was not amenable to the laws of
New York, where the application was made for relief under the insolvent law.”
See Ogden v. Saunders, 12 Wheaton, R. 213, 358; post, § 341, 343, 344.

? Sherrill v. Hopkins, 1 Cowen, R. 103,'108.

? Ogden v. Saunders, 12 Wheaton, R. 358 to 369; Poe v. Duck, 5 Md. R. 1;
Donnelly v. Corbett, 3 Seld. 500; Boyle v. Zacharie, 6 Peters, R. 348 ; Agnew
v. Platt, 15 Pick. 417; 2 Kent, Couim: Lect. 37, p. 392, 393, 3d edit.; 3 Story,
Comm. on Const. § 1884; 1 Kent, Comm. Lect. 9, p. 418, 422, 3d edit.

® See Very v. McHenry, 29 Maine, R. 214 ; Peck v. Hibbard, 26 Verm. R. 704.
In that case, Isham, J. said: “ We are satisted, upon principle as well as author-

39 *
462 CONFLICT OF LAWS. [cH. vit.

[* § 841 a. We should feel, naturally, great hesitation in ques-
tioning the ground upon which the distinction between a discharge
under insolvent laws of the different states, and a general bank-

ity, that at common law, when a note is executed and payable in a foreign coun-
try, and a regular discharge in bankruptcy has been obtained by the debtor resi-
dent there, the discharge will constitute a valid defence to the note, wherever the
creditor may be domiciled, or wherever the note may be prosecuted. The cases
in this country, in which this subject has been considered to any great extent,
have arisen under the insolvent laws of the different states. Under those laws
the question has arisen, to what extent such discharges are valid against credit-
ors who were citizens of other states, and who, by no act of their own, have
waived their extra-territorial immunity, and submitted themselves or their claim
to the laws of that state. Since the cases of Sturges v. Crowningshield, 4 Wheat.
122; McMillan v. McNiel, 4 Wheat. 209, and Ogden v. Saunders, 12 Wheat.
358, the rule has been generally adopted, that a discharge under the insolvent
laws of a state where the contract was made, will not be considered a valid dis-
charge of a debt, if the creditor was a resident of another state. Such laws are
considered as impairing the obligation of contracts, when they affect’ contracts
made out of the state, or a citizen not a resident of the state where the discharge
is granted. Justice Story, Conflict of Laws, § 341, observes, ‘that those cases
have arisen under the peculiar structure of the Constitution of the United States,
prohibiting the states from passing laws impairing the obligation of contracts.
‘But in relation to the doctrine of all those cases, he says it is wholly inapplicable
to contracts and discharges in foreign countries, which must, therefore, be decid-
ed upon general principles of international law.’ This difference between the
two cases is apparent ; for the legality of those acts of the provincial Parliament,
and their universality is not affected or limited by that, or any other ‘provision of
our Constitution. Their binding and universal obligation rests upon those prin-
ciples of comity, which convenience and commercial relations have introduced
and established. Upon those principles, we think, the discharge, granted in the
country where the note was executed and payable, is a valid defence in this suit.
Weare satisfied also, that the result would be the same, if we were to apply to this
case the rule adopted in this country, in relation to discharges under state insol-
vent laws. In the case of Braynard v. Marshall, 8 Pick. 194, the insolvent’s dis-
charge was held inoperative, on the ground that the note was indorsed to the
plaintiff, a citizen of Massachusetts, before the defendant’s application was made
for his discharge under the insolvent law of New York. The plaintiff’s right, as
a creditor, in that case, was perfected before the application was made for the
debtor's discharge. Parker, Ch. J., observed, ‘ that at the time of the defendant’s
application for a discharge, his creditor was a Massachusetts man, and according
to the case of Baker v. Wheaton, 5 Mass. 509, the certificate would be no bar to
the action.’ He further observed, ‘that a note made in New York, and indorsed
to a citizen of Massachusetts, before an application for the benefit of the insolvent
law, ought not to be discharged under the process provided by that law.’ It is
apparent from the language of the court, that the discharge would have been

operative, if the indorsement had been made after the debtor’s applicatibn for his
discharge under that law.”
4341 a.] FOREIGN CONTRACTS. 463

rupt law, is here placed by one so pre-eminently qualified to judge
upon that subject. But, with all due deference, it does seem to
us, that the distinction cannot fairly be made to stand upon that
provision in the United States Constitution against state laws im-
pairing the obligation of contracts. No such point is made by
Mr. Justice Johnson, who declared that he delivered the opinion
of the court upon this point, in the case of Ogden v. Saunders,
but on the contrary he expressly declares that “ every bankrupt
or insolvent system in the: world must partake of the character of
a judicial investigation. Parties whose rights are to be affected,
are entitled to a hearing.” ... -‘‘ But on what principle can a
citizen of another state be forced into a state for this investigation.”
He therefore announces, as the judgment of the court, that a dis-
charge under state insolvent laws being judicial in its nature, can
only bind parties domiciled within the jurisdiction of the state, or
who voluntarily submit to that jurisdiction by presenting their
claims for. allowance, and a dividend out of the insolvent’s estate.
The same doctrine, precisely, is maintained in the very thorough
opinion of the same court, on the last occasion when the question
came hefore them,? where the authorities are carefully reviewed
by Mr. Justice Clifford, and set forth, in a manner to leave no
doubt of the ground upon which the question has always been
placed by that court. And it seems to us impossible to maintain
the point satisfactorily upon any other basis. And if it be an-
swered that this view would result in denying the validity of dis-
charges under general bankrupt laws, except as to parties within
their jurisdiction, we can only reply, that this is precisely the view
taken of this latter question by Mr. Justice Johnson,.in giving the
opinion of the court in Ogden v. Saunders, and we are by no means
sure such is not the true rule, in regard to foreign bankrupt laws,
strictly speaking, notwithstanding the English decisions claimed to
the contrary, but which on careful scrutiny seem to rest upon the
fact of both the parties at the time residing within the jurisdiction
of the country where the discharge is obtained.? As to all debts
‘really contracted in England by debtors residing abroad, or debts
contracted before the existence of the bankrupt law, the foreign
bankrupt discharge is no defence.* So that it would seem that
, [* ' 12 Wheaton, 213, 366. 2 Baldwin v. Hale, 1 Wallace, R. 223.
* Potter v. Brown, 5 East, 124, and cases cited.

“4 Smith ». Buchanan, 1 East, R. 6; Shallcross ». Dysort, 2 Glyn & J. 87;
Quin v. Keefe, 2 H. Bl. 553; Lewis v. Owen, 4 B. & A. 654. Post, § 342.
464 CONFLICT OF LAWS. [cH. Vin.

the effect of a discharge under foreign bankrupt laws, as to credit-
ors having a domicil in England, must depend upon the fact of
the debt being contracted in the foreign country, with reference to
the law of that country where a bankrup?# law! existed when the
debt was contracted, and so as to make the right to release it by a
discharge in bankruptcy a part of the contract.

We are aware that this isnot the view presented in Peck v.
Hibbard,? and in some of the other American cases there referred”
to. But in that case the contract in question was presented under
the commission, and this alone gave the court jurisdiction, and
made the discharge conclusive upon the contract. In that case,
too, the parties to the contract originally were domiciled in the
country where the discharge was obtained, and there presented
and obtained an allowance of the claim against the bankrupt’s
estate. So that this case is clear of all question upon both
grounds. | ;

§ 842. The converse doctrine is equally well established, name-
ly, that a discharge of a contract by the law of a place where the
contract was not made, or to be performed, will not be a discharge
of it in any other country. Thus it has been held in England,
that a discharge of contract, made there, under an insolvent act of
the State of Maryland, is no bar to a suit upon the contract in the
courts of England. On that occasion Lord Kenyon said: “It is
impossible to say, that a contract made in one country, is to be
governed by the laws of another. It might as well be contended,
that, if the State of Maryland had enacted that no debts due from
its own subjects to the subjects of -England should be paid, the
plaintiff would have been bound by it. This is the case of a con-
tract lawfully made by a subject in this country, which he resorts
to a court of justice to enforce ; and the only answer given is, that
a law has been made in a foreign country to discharge these de-
fendants from their debts, on condition of their having relinquished
all their property to their creditors. But, how is that an answer
to a subject of this country, suing on a lawful contract made here ?

1 See preceding note. * 26 Vt. R. 698.]

* See 2 Bell, Comm. § 1267, p. 691 to p. 695, 4th edit.; Id. p- 688 to p. 692,
5th edit.; Phillips v. Allan, 8 B. & Cresw. 479; Lewis v. Owen, 4 Barn. & Ald.
654; 8 Bhege, Comm. on Col. and For. Law, Pt. 2, ch. 22, p. 924 to p. 929;
Quelin v. Moisson, 1 Knapp, R. 265, note. Rose v. McLeod, 4 S, & D. 311, cited
3 Burge, Comm. ubi supra, p. 927, 928.

* Smith v. Buchanan, 1 East, R. 6, 11.
§.841 4-344] FOREIGN CONTRACTS. 465

How can it be pretended, that he is bound by a condition, to
which he has given no assent, either express or implied ?”}.. In
America, the same doctrine has obtained the fullest sanction.”
It is also clearly established in Scotland.?

_ § 348. The subject of negotiable paper is generally governed by
the same principles. Wherever the contract between the particu-
lar parties is made, the law of the place will operate, as well in
respect to the discharge as to the obligation thereof. A nice ques-
tion, however, has recently arisen on this subject, in a case already
mentioned.* A negotiable note was made at- New York between
persons resident there, and was payable generally ; and the payee
subsequently indorsed the note to a citizen of Massachusetts, by
whom a suit was brought.in the state court of the latter state
against the maker.> One point of argument was, whether a dis-
charge of the maker, under the insolvent laws of New York, oper-
ated as a bar to the suit? The case was decided upon another
ground. But the court expressed a clear opinion that it did not;
and said: “It is a debt payable anywhere by the very nature of
the contract; and it is a promise to whoever shall be the holder
of the note.” “The promisor became, immediately upon the in-
dorsement, the debtor to the indorsee, who was not amenable to
the laws of New York, where the discharge was obtained.”

§ 344. It is difficult (as has been, already intimated) to per-
ceive the ground upon which this doctrine can be maintained, as
a doctrine of public law.’ The court admit that a debt contracted

1 Smith v. Buchanan, 1 East, R. 6,11; Lewis v. Owen, 4 Barn. & Ald. 654 ;
Phillips v. Allan, 8 Barn. & Cresw. 477.

2 Van Rangh v. Van Arsdaln, 3 Cain, R. 154; Frey v. Kirk, 4 Gill & Johns.
R,.509; Green v. Sarmiento, Peters, Cir. C. R. 74; Le Roy v. Crowningshield,
2 ‘Mason, R. 151; Smith v. Smith, 2 Johns. R. 235 ; Ellicott v. Early, 8 Gill, 439;
Bradford v. Recrand, 13 Mass. R. 18; 2 Kent, Comm. Lect. 37, p. 392, 893; Id.’
Lect. 39, p. 458, 459, 3d edit.; 2 Bell, Comm. § 1267, p. 692, 693, 4th edit. ; Id.
p- 688 to 692, 5th edit.; 3 Barge, Comm. on Col. and For. Law, Pt. 2, ch. 22, Dp.
924 to p. 929; Rose v. McLeod, 4 S. & D. 311, cited in 3 Burge, Comm. 928,
929,

* 2 Bell, Comm. § 1267, p. 692, 698, 4th edit. ; Id. p. 688 to 692, 5th edition.

* See Aymer v. Sheldon, 12 Wend. R. 439.

® Ante, § 217, 340.

é Braynard v. Marshall, 8 Pick. R. 194. See Ogden v. Saunders, 12 Wheaton,
R. 358, 362-364; Northern Bank v. Squires, 8 Louis, Ann. R. 318; for a full ar-
gument of this question, see ante, § 317, 340.

™ Ante, § 340.

.
466 CONFLICT OF LAWS. _ (cH. vi.

in New York, and not negotiable, would be extinguished by such
a discharge; although such a debt is by its very nature payable
everywhere, as debts have no locality. As between the original
parties, (the maker and the payee,) the same result would follow.
How, then, can the indorsement vary it? It does not create a
new contract between the maker and the indorsee in the place of
the indorsement. The rights of the indorsee spring from, and
under, the original contract, and are a component part of it. The
original contract promises to pay the indorsee, as much as the
payee, and from the first of its existence. The indorsement is but
a substitution of the indorsee for the payee ; and it transfers over
the old liability, and creates no new liability of the maker.) If
the indorsement created a new contract in the place where it was
made, between the maker and the indorsee, then the validity, obli-
gation, and interpretation of the contract would be governed by
the law of the place of the indorsement, and not by that of the
place where the note was originally made. It would not, then,
amount to a transfer of the old contract, but to the creation of a
new one, which, from a conflict of laws, not unusual in different
states, would, or might, involve obligations and duties wholly dif-
ferent from, and even incompatible with, the original contract.
Nay, the maker might, upon the same instrument, incur the most
opposite responsibilities to different holders, according to the law
of the different places where the indorsement might be made.?

§ 345. Such a doctrine has never been propounded in any com-
mon law authority, nor ever been supported by the opinion of any
foreign jurist.? The same principle would apply to general negotia-
ble acceptances as to negotiable notes; for the maker stands in the
same predicament as the acceptor. Yet no one ever supposed that
an indorsement after an acceptance, ever varied the rights or obli-
gations of the acceptor. It is, as to all persons who become
holders, in whatever country, treated as a contract made by the
acceptor in the country where such acceptance is made. Yet the
acceptance being general, payment may be required in any place
where the holder shall demand it. The other point, that the in-

1 Pothier, De Change, art. 22; ante, § 317.

2 Ante, § 814, 316, 317.

® See also Peck v. HEINE 26 Verm. 702, ae the doctrine of the text is
approved.

* Ante, § 314, 317.
§ 844-346] FOREIGN CONTRACTS. 46T

dorsement was to a citizen of another state, is equally inadmissible.
The question is not, whether he is bound by the laws of New York
generally ; but, whether he can, in opposition to them, avail him-
self of a contract made under the sovereignty of that state, and
vary its validity, obligation, interpretation, and negotiability, as
governed by those laws. If the payee had been a citizen of Mas-
sachusetts, and the note had been made by the maker in New
York, there could be no doubt that the contract would still be
governed by the laws of New York, in regard to the payee. What
difference, then, can it make, that the indorsee is a citizen of another
state, if he cannot show that-his contract has its origin there? In
short, the doctrine of this case is wholly repugnant to that main-
tained by the same court in another casé, which was most ma-
turely considered, and in which the argument in its favor was
repelled. The court there declared their opinion to be, that‘full
effect ought to be given to such discharges, as to all contracts
made within the state where they are authorized, although the
creditor should be a citizen of another state.

§ 846. The Supreme Court of Louisiana have adopted the same
reasoning ; and held, that, where a negotiable promissory note was
made in one state, and was indorsed in another state. to a citizen

. of the latter, the contract was governed by the Jaw of the place
where the note was made, and not by that of the place where
the indorsement was made. ‘ We see nothing,” (said the court)
“in the circumstance of the rights of one of the parties being
transferred to the citizens of another state, which can take the
case out of the general principle. It is a demand made under
an agreement (a note) entered into in a foreign state ; and conse-
quently the party claiming rights under it, must take it with all
the limitations to which it was subject.in the place where it was
made; and that, although he be one of our citizens.”? This is
certainly in conformity to what is deemed settled doctrine in Eng-
land, as well as in some other states in America.? It was taken
for granted by the Supreme Court.of the United States to be the
true doctrine in the case of a negotiable bill of exchange, in which

1 Blanchard v. Russell, 18 Mass. R. 1, 11,12. See also, Prentiss v. Savage, 13
Mass. R. 20, 23, 24; ante, § 317, 340.

4 Ory v. Winter, 16 Martin, R. 277; Sherrill v. Hopkins, 1 Cowen, R. 108;
ante, § 317, 340.

2 See Blanchard v. Russell, 13 Mass. R. 12; Ogden v Saunders, 12 Wheaton,
R. 360; Potter v. Brown, 5 East, R. 123, 130.
468 CONFLICT OF LAWS. [CH. Vint.

the drawer’s responsibility was supposed to be governed by the law
of the place where the bill was drawn, notwithstanding an indorse-
ment in another country ;! and also by the Conrt of King’s Bench
in England, in a case in which a right to a Bank of England note
was supposed to be governed by the law of England, notwith-
standing a transfer of the same had been subsequently made in
France.?

[* § 346 a. But it seems to be held in the Supreme Court of the
United States, that the formalities required to charge an indorser
must be such as required by the law of the place of indorse-
ment, that being the domicil of the indorser. It was accord-
ingly held, that where a bill of exchange is accepted by a resident
of Louisiana and indorsed by one residing in Mississippi, in that
state, and where the law of the latter state required presentment
of the bill to charge the indorser, he would not be liable without
such presentment, even if the law of Louisiana dispensed with it.’
And notes made and dated at Baltimore, but delivered in New
York, in payment of goods purchased there, are payable in, ane
to be governed by the law of that state.*]

§ 347. Pardessus has laid down a doctrine equally broad. He
says, that it is by the law of the place, where a bill of exchange is
payable, that: we are to ascertain, when it falls due, the days of
grace belonging to it, the character of these delays, whether for the
benefit of the holder or of the debtor; in one word, everything
which relates to the right of requiring payment of a debt, or the
performance of any other engagement, when the parties have not
made any stipulation to the contrary. And it is of little conse-
quence, whether the person, who demands payment, is the creditor,
who made the contract, or an assignee of his right; such as the
holder of a bill of exchange by indorsement. This circumstance
makes no change in regard to the debtor. The indorsee cannot

1 Slacum v. Pomeroy, 6 Cranch, R. 221.

*® De la Chaumette v. The Bank of England, 9 Barn. & Cresw. 208; S. C. 2
Barn. & Adolph. 885 ; post, § 353. See also 2 Bell, Comm. § 1267, p. 692, 693,
4th edit. ; Id. p- 688 to 692, 5th edit. — Quid si de literis cambii incidat questio,
(says Paul Voet,) quis locus spectandus? Js locus, ad quem. sunt destinate et
ibidem acceptate. P. Voet, De Stat. § 9, ch. 2, § 14, p. 271, edit. 1715; Id. p.
327, edit. 1661; ante, § 317.

(* ® Masson v. Lake, 4 How. U. S. 262,

* Ibid.)

* Pardessus, Droit Comm. art. 1495, 1498, 1499, 1500; ante, § 816; post
§ 361,
§.846 - 348.] FOREIGN CONTRACTS. 469

require payment in any other manner, than the original creditor
could. And he applies this doctrine to the case of successive in-
dorsements of bills of exchange, made in different countries, stating,
that the rights of each holder are the same, as those of the original
payee against the acceptor. He adds, also, that the effects of an
acceptance are to be determined by the law of the place, where it
has been made ;* that every indorsement subjects the indorser to
the law of the place, where it has been made ; and that it governs
his responsibility accordingly.*

[* § 847 a. It is now settled by the latest decision of the United
States Supreme Court, that a discharge under state insolvent laws
is not a bar to an action upon a promissory note given in and
made payable in the same state where the discharge was obtained
and which in terms is declared to be operative upon all contraets
to be performed within that state. The note in this case was made
payable to the order of the maker and by him indorsed to the
plaintiff at the time and ever since residing in another state.®
General bankrupt laws of the United States have an unusual
operation throughout the Union by force of the United States con-
stitution, and discharges under such laws are not embarrassed by
any questions affecting discharges under foreign bankrupt laws.® -
' §847 b. Exemption of the debtor’s property from attachment,
and levy of execution, by state laws, is a matter affecting process,
which is governed by the law of the forum, and will apply to non-
residents, if sued within the state, as well as to residents. Thus it
was held that where the debtor’s last cow was exempt from process
of attachment and levy of execution, the same privilege should be
extended to a non-resident debtor casually found in the state, or
against whom process was served by attachment of the last cow.”]

§ 348. Notwithstanding the principle, that a discharge by the
lex loci contractis is valid everywhere, and vice versd, is generally
admitted, as a part of private international law; yet it cannot be
: * Pardessus, Droit Comm. art. 1495, 1498, 1499, 1500; ante, § 316; post, § 361.
' # Thid. ,

*“Pardessus, Droit. See Rothschild v. Currie. 1 Adolph. & Ellis, New R. 43;
Shanklin v. Cooper, 8 Blackf. 41; ante, § 314, 316, post, § 361; Com. art. 1499.

* Id. art. 1499.

(**® Baldwin v. Hale, 1 Wallace, U. S. R. 223; ante, § 431 a.

® Note to Baldwin v. Hale, 3 Am. Law Reg. N. S. 469, 470.

* Haskill y. Andros, 4 Vert. R. 609; post, § 572; Holman v. Collins, 1 Carter,
24.) .

aa 40
470 CONFLICT OF LAWS. [cH. vu

denied, that any nation may by its own peculiar jurisprudence re-
fuse to recognize it ; and may act within its own tribunals upon an
opposite doctrine.! But, then, under such circumstances its acts
and decisions will be deemed of no force or validity beyond its own
territorial limits. Thus, if a state should by its own laws provide,
that a discharge of an insolvent debtor under its own laws should
be a discharge of all the contracts, even of those made in a foreign
country, its own courts would be bound. by such provisions.? But
they would, or might be held mere nullitics in every other country?
§ 849. And even in relation to a discharge according to the
laws of the place, where the contract is made, there are (as we
have seen) some necessary limitations and exceptions ingrafted
upon the general doctrine, which every country will enforce, when-
ever those laws are manifestly unjust, or are injurious to the fair
rights of its own citizens. It has been said by a learned judge
with great force: “As the laws of foreign countries are not ad-
mitted ex proprio vigore, but merely ex comitate, the judicial
power will exercise a discretion with respect to the laws, which
they may be called upon to sanction ; for if they should be mani-
festly unjust, or calculated to injure their own citizens, they ought
to be rejected. Thus, if any state should enact, that its citizens
should be discharged from all debts due to creditors living without
the state, such a provision would be so contrary to the common
principles of justice, that the most liberal spirit of comity would
not require its adoption in any other state. So, if a state, under
the pretence of establishing a general bankrupt law, should author-
ize such proceedings, as would deprive all creditors living out of
the state of an opportunity to share in the distribution of the effects
of the debtor, such a law would have no effect beyond the territory
of the state, in which it was passed.” § :

1 Ante, § 834; post, § 349, 350, 351.

® See Penniman v. Meigs, 9 Johns. R. 325; Babcock v. Weston, 1 Gallis. R.
168; Murray v. De Rottenham, 6 Johns. Ch. R. 52; Holmes v. Remsen, 4 Johns.
Ch. R. 471.

* See Blanchard v. Russell, 18 Mass. R. 6; post, § 349; Ellicott v. Early, 3
Gill, 439; Very v. McHenry, 29 Maine, 208; Van Raugh v. Van _Arsdaln, 3
Cain. R. 154; Smith v. Buchanan, 1 East, R. 6; Smith v. Smith, 2 Jobns. R.
235; Green v. Sarmiento, Peters, Cir. R. 74; McMenomy v. Murray, 3 Jobns. Ch.
R. 435; Wolff v. Oxbolm, 6 Maule & Selw. R. 92; ante, § 338.

* Ante, § 339; post, § 850, 351.

5 Mr. Chief Justice Parker, in Blanchard v. Russell, 13 Mass. R. 6.
§ 848-351 a.] FOREIGN CONTRACTS. 471

,§350. The same reasoning was again asserted ‘by the same

learned judge in another case, calling for an exposition of the
limitations of the doctrine. ‘This rule must however, from its
very nature, be qualified and restrained ; for it cannot be admitted,
as a principle of law or justice, that, when a valid personal con-
tract is made, which follows the person of the creditor, and may be
enforced in any foreign jurisdiction, that a mode of discharge,
manifestly partial or unjust, and tending to deprive a foreign cred-
itor of his debt, while he is excluded from a participation with the
domestic creditors in the effects of the debtor, should have force in
any country, to the prejudice of their own citizens. The comity
of nations does not require it, and the fair principles of a contract
would be violated by it.’? }

§ 351. “ Thus if a citizen of this state, being in a foreign coun-
try, should, for a valuable consideration, receive a promise to pay
money, or to perform any other valuable engagement, from a sub-
ject of that country ; and the law should provide for a discharge
from all debts upon a surrender of his effects, without any notice,
which could by possibility reach creditors out of the country,
where such a law should exist ; we apprehend, that the contract
ought to be enforced here, notwithstanding a discharge obtained
under such law. For although the creditor is to be presumed to
know the laws of the place where he obtains his contract, yet that
presumption is founded upon another, which is, that those laws
are not palpably partial and unjust, and calculated to protect the
creditors at home at the expense of those who are abroad. Such
laws would come within the well-known exception to the rules of
comity, viz. that the laws, which are to be admitted in the tribu-.
nals of a country, where they are not made, are not to be injuri-
ous to the state, or the citizens of the state, where they are so
received.” 2

§ 851 a. But although the general rule, that a contract, as to
its dissolution and discharge, is to be governed by the law of the
place where it is made, is thus, with few exceptions and limita-
tions, admitted to be well established ; yet we are not to under-
stand, that it thence follows, as a necessary consequence, that in

? Mr. Chief Justice Parker, in Blanchard v. Russell, 13 Mass. R. 6.

® Mr, Chief Justice Parker, in Prentiss v. Savage, 13 Mass. R. 23, 24; Very v.
McHenry, 29 Maine, 208. See also Fergusson on Marr. and Div. 396, 397; Wolff
v. Oxholm, 6 Maule & Selw. 92; ante, § 244.
472 CONFLICT OF LAWS. [cH. VIL

no cases whatever, can a contract be discharged or dissolved, ex-
cept in the mode, and by the process and formalities, prescribed
by the same law: or, in other words, that it must be discharged
and dissolved eo ligamine, quo ligatur, or rather by reversing: the
operation, which knit it under the local law.! On the contrary,
there are, or may be, circumstances under which an opposite rule
may be maintainable ; and the law of another country, prescribing
different modes of proceeding, or different formalities, or different
acts, which shall establish a dissolution thereof, may also well pre-
vail to annul or discharge the contract. A change of domicil of
the parties to the latter country, or an act done in that country,
which would there operate to dissolve or discharge the contract,
may well produce the fullest effect, although the same act might
not be recognized by the law of the place of the origin of the con-
tract. Thus, for example, as we well know, the obligation of a
bond, or other sealed instrument, after a breach of the contract
created thereby, cannot in England be discharged, or released, ex-
cept by a sealed instrument, or a release under seal, according to
the known maxim of the common low: Eodem modo, quo quid
constituitur, eodem modo dissolvitur. And yet by the law of most,
if not of all, of the continental countries, whose jurisprudence is
founded on the Roman law, a simple receipt or discharge, not
under seal, would, if executed in such countries, be held to dis-
charge the bond or other sealed instrument. Let us, then, sup-
pose a bond, executed in England for the payment of money, and
when it became due, there should be a default in payment, and
afterwards the creditor should receive payment of the debtor in
France, or otherwise should discharge him by a written unsealed
instrument in France ; such a discharge would in France be held
valid, and conclusive, if good by the law of France, notwithstand-
ing it might be held invalid in an English court of common law.
In short, any act done, after such an obligation was created, in a
foreign country, by whose laws the act would operate as a dissolu-
tion thereof, would be treated in- that country at least, as a com-
plete extinguishment thereof.

§ 351 5. It is not easy, therefore, upon principle, to say, why
such an extinguishment of a contract, according to the lex loci,
ought not everywhere else to have the same operation, even in the
country of the origin of the contract. For, if the contract derives

* See Warrender v. Warrender, 9 Bligh, R. 124, 125; ante, § 226 c, note.
§ 851 a-351c¢.] FOREIGN CONTRACTS. 478

its whole original obligatory force from the law of the place where
it is made, it is but following out the same principle to hold, that
any act subsequently done, touching the same contract by the par-
ties, should have the same obligatory force and operation upon it,
which the law of the place where it is done attributes to it. And
in this respect there certainly is, or at least may be, a clear dis-
tinction between acts done by the parties in a foreign country, and
which derive their operation from their voluntary consent and in-
tention, and acts im invitum, deriving their whole authority and
effect from the operation of the local law, independent of any such
consent.

§ 351 c. Indeed the reasonable interpretation of the general
rule would seem to be, that, while contracts made in one country
are properly held to be dissolublé and extiiguishable, according to
the laws of that country, as natural incidents to the original con-
coction of such contracts, they are, and may at the same time also
be equally dissoluble and extinguishable by any other acts done or
contracts made subsequently in another country by the parties,
which acts or. contracts, according to the law of the latter country,
are sufficient to work such a dissolution or extinguishment. It is
to this double posture of a case, that Lord Brougham referred in
one of his judgments. ‘Ifa contract for sale of a chattel is made,
or an obligation of debt is incurred, or a chattel is pledged in one
country, the sale may be annulled, the debt released, and the
pledge redeemed by the law and by the forms of another country,
in which the parties happen to reside, and in whose courts their
rights and obligations come in question unless there was an ex-
press stipulation in the contract itself against such avoidance,
release, or redemption. But at any rate, this is certain, that if
the laws of one country and its courts recognize and give effect to
those of another in respect of the constitution of any contract,
they must’ give the like recognition and effect to those same for-
eign laws, when they declare the same kind of contract dissolved.
Suppose a party forbidden to purchase from another by our equity,
as administered in the courts of this country, (and we have some
restraints upon certain parties, which come very near prohibition ;)
and suppose a sale of chattels by one to another party, standing in
this relation towards each other, should be effected in Scotland,
and that our courts here should, (whether right or wrong,) recog-

1 Post, § 411.
40*
474 CONFLICT OF LAWS. [cH. vit.

nize such a rule, because the Scotch law would affirm it; surely it
would follow that our courts must equally recognize a rescission
of the contract of sale in Scotland by any act which the Scotch
law regards as valid to rescind it, although our own law may not
regard it as sufficient. Suppose a question to arise in the courts
of England respecting the execution of a contract, thus made in
this country, and that the objection of its invalidity were waived
for some reason ; if the party resisting its execution were to pro-
duce either a sentence of a Scotch court, declaring it rescinded by
a Scotch matter done in pais, or were merely to produce evidence
of the thing so done, and the proof of its amounting by the Scotch
law to a rescission of the contract; I apprehend, that the party
relying on the contract could never be heard to say: ‘ The con-
tract is English, and thé Scotch proceeding is impotent to dissolve
it. The reply would be, ‘Our English courts have (whether
right or wrong) recognized the validity of a Scotch proceeding to
complete the obligation, and can no longer’ deny the validity of a
similar, but reverse proceeding to dissolve it, — unumguodque dis-
solvitur eodem modo, quo colligatur.’ Suppose, for another exam-
ple, (which is the case,) that the law of this country precluded an
infant or a married woman from borrowing money in any way, or
from binding themselves by deed; and that in another country
those obligations could be validly incurred; it is probable, that
our law and our courts would, recognize the validity of such for-
eign obligations. But, suppose a feme covert had executed a
power, and conveyed an interest under it to another feme covert
in England ; could it be endured, that where the donee of the
power produced a release under seal from the feme covert in the
same foreign country, a distinction should be taken, and the court
here should hold that party incapable of releasing the obligation ?
Would it not be said, that our courts having decided the contract
of a feme covert to be binding when executed abroad, must, by
parity of reason, hold the discharge or release of the feme covert
to be valid, if it be valid in the same foreign country ?”?}

§ 351 d. Nor does there seem to be in this respect any acknowl-
edged distinction between contracts, which are purely personal,
and contracts which impose or may impose any charge on real
estate ; for although in respect to immovable property the law of
the situs should be admitted (as certainly is the case at the com-

* Warrender v. Warrender, 9 Bligh, R. 125 to 127; ante, § 226 c, note.
 

§ 851 ¢-853.] FOREIGN CONTRACTS. 475

mon law) to regulate all the rights to immovable property ; yet it
does not thence follow, that an act, which would operate as a dis-
solution or extinguishment of the contract, creating such charge,
according to the law of a foreign country, where it is subsequently
done, may not incidentally and indirectly work such a dissolution
or extinguishment thereof, although it does not conform to the
lex ret site. Lord Brougham on the same occasion, referring to
this topic said: “All personal obligations may in their consequen-
ces affect real rights in England. Nor does a Scotch divorce, by.
depriving a widow of dower or arrears of pin-money, charged on
English property, more immediately affect real estate here than a
bond or a judgment released in Scotland according to Scotch
forms, discharges real estate of a lien, or than a bond executed, or
indeed a simple contract debt incurred inScotland, eventually and
consequently charges English real estate.” 1

§ 352. Before we quit this head of contracts, it may be well to
bring together some principles applicable to negotiable instru-
ments, which have not been brought as distinctly under review
in the preceding discussions as they deserve to be, and which afford
important illustrations of the operation of foreign law upon con-
tracts and their incidents. The subject of the assignments of
debts and other choses in action, not negotiable by the general law
merchant, or the laws of particular countries will more properly
find a place in our subsequent inquiries.”

§ 858. Questions have arisen, whether negotiable notes and
bills, made in one country, are transferable in other. countries, so
as to found a right of action in the holder against the other par-
ties. Thus, a question occurred in England, in a case where a
negotiable note, made in Scotland, and there negotiable, was in-
dorsed, and a suit brought in England by the indorsee against the
maker, whether the action was maintainable. It was contended,
that the note, being a foreign note, was not within the statute of
Anne (3 and 4 Ann. ch. 9) which made promissory notes payable
to order assignable and negotiable ; for that. statute applied only
to inland promissory notes. But the court overruled the objec-
tion, and held the note suable in England by the indorsee, as the

‘+ Thid. 9 Bligh, R, 127; ante, § 226 c, note.
1 Post, § 855, 895 to § 400, 566; 3 Burge, Comm. on Col. and For. Law, Pt. 2,
ch. 20, p. 777, 778.
476 CONFLICT OF LAWS. [cH. vu.

statute embraced foreign, as well as domestic notes.! In another
case a promissory note, made in England, and payable to the
bearer, was transferred in France ; and the question was made,
whether the French holder could maintain an action thereon in
England ; such notes not being by the law of France negotiable ;
and it was held, that he might.2— But in each of these cases the
decision was expressly put upon the provisions of the statute of
Anne respecting promissory notes, leaving wholly untouched the
general doctrine of international law.
* § 853 a. In a more recent case, which has been already cited,’
a negotiable note was made in France and indorsed in France, and
afterwards a suit was brought thereon by the indorsee against the
maker, in England. One question in the case was, whether a
blank indorsement in France was by the law of France sufficient
to transfer the property in the note, without any other formalities.
It was held, that it was not sufficient. But it seems to have been
taken for granted, that if the note was well negotiated by the in-
dorsement, a suit might be maintained thereon in England by the
indorsee in his own name. On that occasion the court said:
“The rule, which applies to the case of contracts made in one
country, and put in suit in the courts of law of another country,
appears to be this ; that the interpretation of the contract must be
governed by the law of the country where the contract was made
(lex loci contractis); the mode of suing, and the time within
which the action must be brought, must be governed by the law
of the country where the action is brought. (Jn ordinandis judi-
cits, loct consuetudo, ubi agitur.) This distinction has been clear-
ly laid down and adopted in the late case of De la Vega v. Vianna.
See also the case of a British Linen Company against Drummond,
where the different authorities are brought together. The question
therefore is, whether the law of France, by which the indorsement
in blank does not operate as a transfer of the note, is a rule which
governs and regulates the interpretation of the contract, or only
1 Milne v. Graham, 2 Barn. and Cresw. 192.— It does not distinetly appear
upon the report, whether the indorsement was made in Scotland or in England.
But it was probably in England. But see Carr v. Shaw, Bayley on Bills, p. 16,
note, 5th edit.; Id. p. 22, American edition, by Phillips & Sewall, 1836.

2 De la Chaumeita v. The Bank of England, 2 Barn. & Adolph. R. 385; 8.
C. 9 Barn. & Cresw. 208; and see Chitty on Bills, p. 551, 552, 8th edit.; ante,

§ 346.
® Ante, § 316 a.
§ 853+ 354.] FOREIGN CONTRACTS. ATT

relates to the mode of instituting and conducting the suit ; for, in
the former case, it must be adopted by our courts, in the latter it
may be altogether disregarded, and the suit commenced in the
name of the present plaintiff. And we think the French law on
the point above mentioned is the law by which the contract is gov-°
erned, and not the law which regulates the mode of suing. If the
indorsement has not operated as a transfer, that goes directly to
the point, that there is no contract upon which the plaintiff can
sue. Indeed, the difference in the consequences that would fol-
low, if the plaintiff sues in his own name, or is compelled to use
the name of the former indorser, as the plaintiff by procuration,
would be very great in many respects, particularly in its bearing
on the law of set-off; and with reference to those consequences, we
think the law of France falls in with the distinction above laid
down, that it is a law which governs the contract itself, not merely
the mode of suing. We therefore think, that our courts of law
must take notice, that the plaintiff could have no right to sue in
his own name upon the contract in the courts of the country
where such contract was made ; and that such being the case there,
we must hold in our courts that he can have no right of suing
here.” } :

§ 854. Several other cases may be put upon this subject. In
the first place, suppose a note negotiable by the law of the place
where it is made, is there transferred by indorsement; can the in-
dorsee maintain an action in his own name against the maker in a
foreign country, (where both are found,) in which there is no
positive law on the subject of negotiable notes applicable to the
case? If he can, it must be upon the ground that the foreign
tribunal would recognize the validity of transfer by the indorse-
ment according to the law of the place where it is made. Accord-
ing to the doctrine maintained in England, as choses in action are
by the common law (independent of statute).incapable of being
transferred over, it might be argued that he could not maintain an
action, notwithstanding the instrument was well negotiated, and
transferred by the law of the place of the contract.2 So far as this
principle of non-assignability of choses in action would affect trans-
fers in England, it would seem reasonable to follow it. But the

1 Trimbey v. Vignier, 1 Bing. N. Cas. 151, 159, 160; post, § 565, 566.

* See 2 Black. Comm. 442; Jeffrey v. McTaggart, 6 Maule & Selw. 126 ; Inne
v. Dunlop, 8 T. R. 595; post, § 565, 566.
478 CONFLICT OF LAWS. [cH. VIL

difficulty is in applying it to transfers made in a foreign country,
by whose laws the instrument is negotiable, and capable of being
transferred, so as to vest the property and right in the assignee.
In such a case it would seem that the more correct rule would be,
*that the lex loci contractés ought to govern; because the holder
under the indorsement has an immediate and absolute right in the
contract vested in him, as much as he would have in goods trans-
ferred to him. Under such circumstances to deny the legal effect
of the indorsement is to construe the obligation, force, and effect
of a contract, made in one place by the law of another place. The
indorsement in the place where it is made creates a direct contract
between the maker and the first indorsee ; and if so, that contract
ought to be enforced between them everywhere. It is not a ques-
tion as to the form of the remedy, but as to the right.?

§ 855. The same view of the doctrine seems to have been taken
in another case in England, much stronger in its circumstances
than the case of a foreign negotiable note, which may be thought
to stand in some measure upon the custom of merchants. A suit
was brought by the assignee of an Irish judgment against the judg-
ment debtor in England, the judgment being made expressly as-
signable by Irish statutes; and the objection was taken that no
action could be maintained by the assignee, because it would con-
travene the general principle of the English law, that choses in
action were not assignable. But the court intimated a strong
opinion against this ground of argument; and the cause finally
was disposed of upon another point; but in such a manner as left
the opinion in full force. It is matter of surprise, that in some of

* the more recent discussions in England upon the negotiations of
notes in foreign countries, this doctrine has not been distinctly in-'
sisted on. For, even in England, negotiable notes are not treated
as mere choses in action; but they are deemed to have a closer
resemblance to personal chattels on account of their transferability ;
so that the legal property in them passes upon the transfer, as it
does in the case of chattels.2 If so, no one could doubt that a title
of transfer of personal property, in a foreign country, good by the
laws of the country where it is made, ought to be held equally
good everywhere. 7

? See Trimbey v. Vignier, 1 Bing. New Cases, 159, 160, 161; ante, § 358,
where the same reasoning seems to have applied ; post, § 565, 566.

* O'Callaghan v. Thomond, 3 Taunt. R. 82; post, § 565, 566.
® McNeilage v. Holloway, 1 Barn. & Ald. R. 218. * Ante, § 353 a,
§ 854 -357.] FOREIGN CONTRACTS. - 479

§ 356. In the next place, let us suppose the case of a negotiable
note, made in a country by whose laws it is negotiable, is actually
indorsed in another, by whose laws a transfer of notes by indorse-
ment is not allowed. Could an action be maintained by the in-
dorsee against the maker, in the courts of either country? If it
could be maintained in the country whose laws do not allow such
a transfer, it must be upon the ground that the original negotia-
bility by the lex loci contractiis, is permitted to avail, in contradic-
tion to the lex fori. On the other hand, if the suit should be
brought in the country where the note was originally made, the
same objection might arise, that the transfer was not allowed by
the law of the place where the indorsement took place. But, at
the same time, it may be truly said, that the transfer is entirely in
conformity to the intent of the parties, and to the law of the origi-
nal contract.

'§ 357. We may_suppose the case of a note, not negotiable
by the law of the place, where it is made, but negotiable by the
law of the place, where it is indorsed; could an action be main-
tained, in either country, by the indorsee against the maker? It
would seem, that in the country, where the note was made, it
could not; because it would be inconsistent with its own laws.
But the same difficulty would not arise in the country, where the
indorsement was made; and, therefore, if the maker used terms of
negotiability in his contract, capable of binding him to the indorsee, °
there would not seem to be any solid objection to giving the con-
tract its full effect there. And so it has been accordingly adjudged
in the case of a note made in Connecticut, payable to A., or order,
but by the laws of that state, not negotiable there, and indorsed in
New York, where it was negotiable. In a suit, in New York, by
the indorsee against the maker, the exception was taken and over-
ruled. The court, on that occasion, said, that personal contracts,
just in themselves, and lawful in the place where they are made,
are to be fully enforced, according to the law of the place, and the
intent of the parties, is a principle, which ought to be universally
received and supported. But this admission of the /ex loci con-

* See Chitty on Bills, ch. 6, p. 218, 219, 8th London edit. See Kames on
Equity, B. 8, ch. 8, § 4; ante, § 353, 354.— In the cases of Milne ». Graham, 1
Barn.'& Cresw. 192; De la Chaumette v. Bank of England, 2 Barn. & Adolph.
385, and Trimbey v. Vignier, 1 Bing. N. Cas. 151, the promissory notes were

negotiable in both countries, as well where the note was made, as where it was
transferred.
480 CONFLICT OF LAWS. ° [cH. vm.

tractés can have reference only to the nature and construction of
the contract, and its legal effect, and not to the mode of enforcing
it. And the court ultimately put the case expressly upon the
ground, that the note was payable to the payee, or order; and,
therefore, the remedy might well be pursued according to the law
of New York against a party, who had contracted to pay to the
indorsee.! But, if the words, “‘or order,’ had been omitted in
the note, so that it had not appeared, that the contract between the
parties originally contemplated negotiability, as annexed to it, a
different question might have arisen, which would more properly
come under discussion in another place ; since it seems to concern
the interpretation and obligation of contracts, although it has some-
times been treated as belonging to remedies.”

§ 858. Another case may be put, which has actually passed into
judgment. A negotiable note was given by a debtor, resident in
Maine, to his creditor, resident in Massachusetts. After the death
of the creditor, his executrix, appointed in Massachusetts, indorsed
the same note in that state to an indorsee, who brought a suit,
as indorsee, against the maker in the state court of Maine. The
question was, whether the note was, under the circumstances, sua-
ble by the indorsee; and the court held, that it was not; for the
court said, that the executrix could not herself have sued upon
the note, without taking out letters of administration in Maine;
and, therefore, she could not, by her indorsement, transfer the
right to her indorsee.8

§ 359. It does not appear, by the report, whether the note was
made in Massachusetts or in Maine. It is not, perhaps, in the
particular case material, as, according to the law of both states,
the note was negotiable by indorsement, whether made in the one
or in the other state. If it had been different, it might have

* Lodge v. Phelps, 1 Johns. Cases, 139; S. C. 2 Caines, Cas. in Error, 321.
See Kames on Equity, B. 3, ch. 8, § 4.

* See Chitty on Bills, ch, 6, 218, 219, 8th Lond. edit.; 8 Kent, Comm. Lect.
44, p. 77, 3d edit. ; ante, § 253 a.

® Stearns v. Burnham, 5 Greenl. R. 261; S. P. Thomson ». Wilson, 2 N.
Hamp. R. 291. But see Huthwaite v. Phaire, 1 Mann. & Grang. R. 159, 164;
and Rand v. Hubbard, 4 Metc. R. 252, 258, 259; post, § 516,517. See Dixon
wu Ramsay, 3 Cranch, 319; Pond »v. Makepeace, 2 Mete. 114 ; Harper v Butler,
2 Peters, 239.

* [In the second edition of Greenleaf’s Reports, by Bennett, in 1852, it ap-
pears that this note was made and indorsed in Massachusetts. ]
§ 857 -859.] FOREIGN CONTRACTS. 481

given rise to a different inquiry. But in either state, the creditor
might certainly, in his lifetime, by his indorsement, have trans-
ferred the property in the note to the indorsee ; and as clearly his
executrix could do the same ; for it is entirely well settled, that
an executor or administrator can so transfer any negotiable secu-
rity by his indorsement thereof.t If, then, by the transfer in Mas-
sachusetts, the property passed to the indorsee, it is difficult to
perceive, why that transfer was not as effectual in Maine as in
Massachusetts ; and, by the law of both states, an indorsee may
sue on negotiable instruments in his own name. [And this doc-
trine was acted upon by the same court, in a case later than that,
just alluded to. An administrator appointed in New Hampshire
and residing there, held in his official capacity, a negotiable note
against a citizen of Maine, payable to the intestate, also a resident
of New Hampshire. The note had been indorsed in blank by the
payee during his lifetime, and while still a citizen of the latter
state. The administrator was allowed to sue in the courts of
Maine, as an indorsee, subject, however, to any defence open be-
tween the original parties.2] In truth, such instruments are
treated, not as mere choses in action, but rathér as chattels per-
sonal. Choses in action are not assignable by law; and actions
must be brought thereon in the name of the original parties. But
negotiable notes are transferable by indorsement ; and when trans-
ferred, the indorsee may sue in his own name. Upon the reason-
ing in the above case, the note would cease to be negotiable after
the death of the payee ; which is certainly not an admissible doc-
trine.t The decision, in a recent case, in the Supreme Court of
the United States, is founded upon the doctrine, that an assign-
ment by an executor of a chose in action in the state where he is
appointed, and which is good by its laws, will enable the assignee
to sue in his own name in any other state, by whose laws the in-

1 See Rawlinson v. Stone, 8 Wilson, R. 1; S. C. 2 Str. R. 1260.
* Barrett v. Barrett, 8 Greenl. R. (Bennett’s ed.) 353.
" McNeilage v. Holloway, 1 Barn. & Ald. 218. But see Richards v. Richards,
2 Barn. & Adolph. 447, 452, 453; ante, § 355.
* Rawlinson v. Stone, 3 Wilson, R. 1;8.C. 2 Str. R. 1260; Bayley on Bills, ch.
5, p. 78, 5th edit. — The effect of assignments of debts and ilies personal proper-
ty will come more fully under review in the succeeding chapter, when we enter
upon the subject of the law, which regulates the transfer of personal property.
Post, § 395 to 400.
CONFL,. 41
482 CONFLICT OF LAWS. [cH. vi.

strument would be assignable, so as to pass the note to the as-
signee, and enable him to sue thereon.!

§ 860. As to bills of exchange, it is generally required, in order
to fix the responsibility of other parties, that, upon their dishonor,
they should be duly protested by the holder, and due notice
thereof given to such parties. And the first question which nat-
urally arises, is, whether the protest and notice should be in the
manner, and according to the forms of the place in which the bill
is drawn, or according to the forms of the place in which it is pay-
able. By the common law, the protest is to be made, at the time,
in the manner, and by the persons prescribed in the place where
the bill is payable.2 But, as to the necessity of making a demand
and protest, and the circumstances under which notice may be re-
quired or dispensed with, these are incidents of the original con-
tract, which are governed by the law of the place where the bill is
drawn.2 They constitute implied conditions, upon which the lia-
bility of the drawer is to attach, according to the lez loci contrac-
tis; and, if the bill is negotiated, the like responsibility attaches
upon each successive indorser, according to the law of the place
of his indorsement ; for each indorser is treated as a new drawer.!
The same doctrine, according to Pardessus, prevails in France.

1 3 Kent, Comm. § 44, p. 88, 4th edit. ; Rand v. Hubbard, 4 Metc. R. 252, 258,
259; Harper v. Butler, 2 Peters, Sup. Court R. 239; Trecothick v. Austin, 4
Mason, 16.— The case of Trimbey v. Vignier, 1 Bing. N. Cases, 151, (ante,
353 a,) seems to inculcate the doctrine as general, that a transfer of property,
good by the lex loci of the transfer, will, at least in cases of negotiable instru-
ments, be held good everywhere, so as to enable the indorsee to sue in his own
name.

2 Chitty on Bills, p. 193, 490, 506, 507, 508, 8th Lond. edit. 1833 ; Post, § 631.
See Rothschild v. Currie, 1 Adolph. & Ell. 43; Shanklin v. Cooper, 8 Blackford,
41; Pothier, De Change, n.155; S. P. Pardessus, Droit Comm. Tom. 6, art.
1489, 1497, n. 155, states the same point.

® Ibid. See Aymar v. Sheldon, 12 Wend. R. 439; Chitty on Bills, p. 490, 506,
507, 508, 8th Lond. edit. 1833; 1 Boullenois, Observ. 28, p. 531, 582~ Pardes-
sus, Tom. 5, art. 1489, 1498. Savary, Le Parfait, Negotiant, Tom. 1, Part 8,
Lib. 1, ch. 14, p. 851.

* See Rothschild v. Currie, 1 Adolph. & Ell. 48; Pothier, De Change, n. 155 ;
Bayley on Bills, ch. A. p. 78 to p. 86, 5th edit. 1836, by Phillips & Sewall ; Chitty
on Bills, ch. 6, p. 266, 267, 870, 8th London edit.; Ballingalls v. Gloster, 8 East,
R. 481; ante, § 314 to § 317,

° Pardessus, Droit Comm. art. 1485, 1495, 1496 to 1499; Henry on Foreign
Law, 58, Appx. p. 239 to p. 248. Ante, § 314 to 347. Boullenois admits, that
the protest ought to be according to the law of the place where the bill is paya-
§ 359 - 362.] FOREIGN CONTRACTS. 483

§ 361. Upon negotiable instruments, it is the custom of most
commercial nations to allow some time for payment beyond the
period fixed by the terms of the instrument. This period is dif-
ferent in different nations ; in some, it is limited to three days ;
in others, it extends as far as eleven days.! The period of indul-
gence is commonly called the days of grace; as to which, the rule
is, that the usage of the place on which the bill is drawn, and
where payment of a bill or note is to be made, governs as to the
number of the days of grace to be allowed thereon.?

§ 862. This head, respecting contracts in general, may be con-
cluded by remarking that contracts respecting personal property
and debts, are now universally treated as having no situs or locality ;
and they follow the person of the owner in point of right; (mobilia
inherent ossibus domini ;)® although the remedy on them must be
according to the law of the place where they are sought to be en-
forced. The common language is: mobilia non habent sequelam;
mobilia ossibus inherent ; actor sequitur forum rei; debita sequun-
tur personam debitoris.*| That is to say, they are deemed to be

ble. But, in case of a foreign bill, indorsed by several indorsements in different
countries, he contends that the time, within which notice or recourse is to be had
upon the dishonor, is to be governed by a different rule. Thus, he supposes, a
bill drawn in England on Paris in favor of a French payee, who indorses it to a
Spaniard (in Spain), and he to a Portuguese (in Portugal), and he to the holder;
and then says, that the holder is entitled to have recourse against the Portuguese,
within the time prescribed by the law of France, because the holder is there to
receive payment; the Portuguese is to give notice to the Spaniard within the
time prescribed by the law of Portugal, because that is the only law with which
he is presumed to be acquainted, &c.; and so in regard to every other indorser,
he is to have recourse within the period prescribed by the law of the place where
the indorsement was made, and not of the domicil of the party indorsing. 1 Boul-
lenois, Observ. 20, p. 370, 871, 372; Id. Observ. 23, p. 531,532,

1 Bayley on Bills, 5th Amer. edit. by Phillips & Sewall, p. 234, 235; Chitty on
Bills, p. 407, 8th London edit. ; Id. p. 193.

? Ibid.; Bank of Washington v. Triplett, 2 Peters, Sup. C. R. 30, 34; ante,
§ 316 to 347; Pardessus, Tom. S. P. Chitty on Bills, p. 407, 8th London edit. ;
Id. p. 193; S. P. 2 Boullenois, Observ. 23, p. 531, 532, and Mascard. Conclus, 7,
n. 72, there cited.

® Thorne v. Watkins, 2 Ves. 35; 1 Boullenois, Observ. 20, p. 848; Liverm.
Diss. § 251, p. 162, 163; P. Voet, de Statut. ch. 2, § 4, n. 8, p. 126, edit. 1715 ;
Id. p. 189, edit. 1661; post, § 377, 378.

‘ Kames on Equity, B. 3, ch. 8, § 3, 4; Dwarris on Statutes, Pt. 2, p. 650;
Liverm. Diss. § 251, 252, 254, p. 162, 168,167; Feelix, Conflit des Lois, Revue
Etrang. et Franc. Tom. 7, 1840, § 32, p. 221 to p. 226; Id. § 33, p. 227, 228;
Christineeus, ad Cod. Lib. 1, tit. 1, Decis. 5, n. 1, 2, 8, p. 7; 3 Burge, Comm. on
Col. and For. Law, Pt. 2, ch. 20, p. 777; post, § 376 to 385, 395 to 400.
484 » CONFLICT OF LAWS. (ca. Vil

in the place, and are disposed of by the law of the domicil of the
owner, wherever in point of fact they may be situate. Quin ta-
men ratione mobilium, (says Paul Voet, a strenuous opposer of the
general doctrine of the extra-territorial operation of statutes,)
ubicunque sitorum, domicilium seu personam domini sequamur3
Burgundus says: Sed tamen, ut existimem, bona moventia, et mo-
bilia, ita comitari personam, ut extra domicilium ejus censeantur
existere, adduci sane non possum.? Rodenburg says the same.
Dizimus, mobilia situm habere intelligi, ubi dominus instruxertt
domicilium, nec aliter mutare eundem, quam und cum domicilio 3
He goes on to assign the reasons, founded upon the perpetually:
changeable location of movables. Pothier is equally expressive
on the same point. Indeed, the doctrine is so firmly established,
that it would be a waste of time to go over the authorities ;* and

-1 P, Voet, De Statut. § 4, ch. 2, n. 8, p. 126; Id. p. 139, 140, edit. 1661.

* Burgundus, Tract. 2, n. 20, p. 71.

8 Rodenburg, De Diver. Statut. tit. 2, ch. 1, n.1; 2 Boullenois, Appx. p. 14,
15. G

* Post, § 381.

6 See Bouhier, Coutum. De Bourg. ch. 21, § 172, p. 408; Id. ch. 22, § 79, p.
429; Td. ch. 25, § 5, 6, p. 490; Pothier, Des Choses, Tom. 8, P. 2, § 3, p. 109,
110; Id. Coutum. d’Orléans, Tom. 10, n. 24, p. 7; 2 Bell, Comm. 684, 685, 4th
edit.; Bruce v. Bruce, 2 Bos. & Pull. 230; Sill v. Worswick, 1 H. Bl. 690, 691;
In Re, Ewing, 1 Tyrwhitt, R. 91; Thorne v. Watkins, 2 Ves. R. 35; 4 Cowen,
R. 517, note; Blanchard v. Russell, 18 Mass. R. 6; Liverm. Diss. 163, 164 to
171; Felix, Conflit des Lois, Revue Etrang. et Franc. Tom. 7, 1840, § 31, p,
220, § 32, p. 221 to § 36, p. 229. — There are some few jurists, who seem to dis-
sent from the doctrine, either in a qualified or absolute manner, who are cited by
Mr. Felix. He enumerates Tittman, Mublenbruch, and Eichhorn. Id. p. 228,
224, John Voet has expounded this whole doctrine very fully. Atque ita (says
he) evictum hactenus existimo, in omnibus statutis, realibus, personalibus, mixtis,
aut qudcunque alia sive denominatione sive divisione concipiendis, verissimam
esse regulam, perdere omnino officium suum statuta extra-territorium statuentis;
neque judicem alterius regionis, quantum ad res in suo territorio sitas, ex necessi-
tate quidam juris obstrictum esse, ut sequatur probetve leges non suas. In e0
tamen forte scrupulus heserit; si scilicet hac ita sint, qui ergo fiat, quod vulgo
reperitur traditum, in successionibus, testandi facultate, contractibus, aliisque,
mobilia ubicunque sita regi debere domicilii jure, non vero legibus loci illius,
in quo naturaliter sunt constituta; videri enim hac saltem ratione jurisdictionem
judicis domicilii non raro ultra statuentis fines operari in res dispersas per varia
aliorum magistratuum, etiam remotissimis ad orientem occiduumque solem regioni-
bus inperitantium, territoria. Sed considerandum, quadam ficitione juris, seu
malis, preesumptione, hane de mobilibus determinationem conseptam niti: cum
enim certo stabilique heec situ careant, nec certo sint alligata loco ; sed ad arbi-
§ 362, 862 a.] FOREIGN CONTRACTS. 485

especially as the same subject will occur, in a more general form,
in the succeeding chapter.!

§ 362 a. Debts, in the yocabulary of the civil law, are often
known by the title of Nomina debitorum ;? and they also follow
the person of the owner, or as Jason says: Nomina infixa sunt ejus
ossibus2 Burgundus also says: Nomina et actiones loco non cir-
cumscribuntur, quia sunt incorporales ; tamen et ibi per fictionem
esse intelliguntur, ubi creditor habet domicilium. Nam, quod qui-
dam.ossibus creditoris, esse affiza putant, non magis movet, quam

trium domini undiquaque in domicilii locum revocari facile ac reduci possint, et
maximum domino plerumque commodum adferre soleant, cum ei sunt presentia ;
visum fuit, hanc inde conjecturam surgere, quod dominus velle censeatur, ut illic
omnia sua sint mobilia, aut saltem esse intelligantur, ubi fortunarum suarum larem
summamque constituit, id est, in loco domicilii. Proinde si quid domicilii judex
constituerit, id ad mobilia ubicunque sita non alia pertinebit ratione, quam quia
illa in ipso domicilii loco esse concipiuntur. Si tamen has juris fictiones quis &
ratione naturali, in hisce solum consideranda, alienas putet, quippe desiderantes
unum communem legislatorem, lege sud fictiones tales introducentem ac stabilien-
tem; non equidem repugnaverim, atque adeo tunc hoc ipsum comitati, quam gens
genti prestat, magis, quam rigori juris, et summez potestati, quam quisque magis-
tratus in mobilia, suo in territorio constituta, habet, adscribendum putem. Pre-
sertim ¢um considero, subinde per magistratus loci, in quo mobilia vere existunt,
de illis ea constitui sancirique, que domicilii judici displicere possent, Quid enim,
si domicilii judex frumenta importari jubeat, penuria frugum vexata regione; in-
cola spe lucri majoris frumenta sua, in alid regione horreis recondita inferre
desiderit ; regioni vero isti imperans omnem vetuerit frugum exportationem,
jure suo in sui territorii- frumentis usus? Quis hic obsecro negare sustineat,
mobilia regi lege loci, in quo vere sunt, non in quo ob domicilium domini esse
finguntur. Nec minus id in rerum publicationibus ex delicto apparet, in quan-
tum fisco loci, in quo reus condemnatus est, non sunt cessura bona omnia mobilia
ubicunque sita, sed ea sola, que in loco condemnantis inveniuntur ; nisi aliud ex
comitate alicubi servetur. Nec dicam, variare de rebus quibusdam locorum pluri-
morum statuta, utrum mobilibus illze, an immobilibus accensende sint ; nec novum
esse, ut que una in regione mobilia habentur, immobilium catalogo alibi adscripta
inveniantur ; annui, verbi gratia, reditus 4 Provincia debiti, in Hollandia mobiles,
immobiles Trajecti: arbores grandiores solo herentes passim immobiles, mobiles
tamen in Flandria habite. Quo posito, necesse fuerit, ut, qua in domicilii loco
mobilia habentur, immobilia vero illic ubi sunt, regantur lege loci in quo vere
sunt, magistratu ne ex comitate quidem permissuro, ut quasi mobilia domicilii
‘dominici sequerentur jura, J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, § 11, p. 44, 45;
post, § 481, 482. ;

1 Post, § 874 to § 401.

“ Ersk. Inst. B. 3, tit. 9, § 4; Cujaccii, Opera, Tom. 7, p. 491, edit. 1758; Dig.
Lib. 10, tit. 2, 1. 2, § 6; Vicat. Vocab. Voce, Nomen.

* 1 Boullenois, Observ. 20, p. 348.

41*
486 CONFLICT OF LAWS. [cH. vu.

si dicamus, dominium fundi esse in proprietario ; cum alioquin, si
quis strictius interpretetur, aliud est fundus, aliud dominium ; sicuti
aliud est obligatio, aliud creditum. Dumoulin is equally explicit.
Nomina et jura, et quecumque incorporalia, non circumscribantur
loco; et sic non opus est accedere ad certum locum. Tum si hec
jura alicubi esse censerentur, non reputarentur esse in re pro illis
hypothecata, nec in debitoris persona, sed magis in persona credi-
toris, in quo active resident, et ejus ossibus inherent?

§ 362 b. The language of Hertius is: Mobilibus interdum etiam
kat avadoyiav (nam proprie neque mobiles sunt, nec immobiles,)
accensentur res incorporales.2 Huberus holds them to fall under
the class of movables.* Paul Voet says: Verum, quid de nominibus
et actionibus statuendum erit ?”. Respondeo, quia proprie loquendo,
nec mobiliam nec immobiliam veniunt, appellatione; Etiam vere
non sunt in loco, quia incorporalia. Ideo non sine distinctione res
temperari poterit. Aut igitur realis erit actio, tendens ad immo-
bilia, et spectabitur statutum loct situs immobilium. Aut erit actio
realis spectans mobilia, et idem servandum erit, quod de mobilibus
dictum est. Aut erit actio personalis sive ad mobilia sive ad im-
mobilia pertinens, que cum inhereat ossibus persone, statutum loci
creditorum estimari debebit®

§ 363. But a question of a very different character may arise,
as to executory contracts respecting real estate or immovables.
Are they governed by the law of the place where the contract is
made? Or by the law of the place where the property is situate?
Take, for instance, the case of a contract for the purchase or sale
of lands in England or in America, arising under the statute of
frauds by which all contracts respecting real estate, or any inter-
est therein, are required to be in writing; and otherwise they are
void. Ifsuch a contract is made in France by parol, or otherwise,
in a manner not conformable to the law rei site, for the purchase
or sale of lands situate in England or in America, and the contract

1 Burgundas, Tract. 2, n. 33, p. 73.

® Dumoulin, Comm. de Consuetud. Paris. Tom. 1, De Fiefs, tit. 1, gloss. 4, n. 9,
p- 56, 57; Liverm. Dissert. § 251, p. 162, 163; 3 Burge, Comm. on Col. and For.
Law, Pt. 2, ch. 20, p. 777; post, § 392 to § 400.

® Hertii, Opera, De Collis. Leg. § 4, n. 6, p- 122, 128, edit. 1737; Id. p. 174,
edit. 1716.

* Thid.

® P. Voet, D. Statut. § 9, ch. 1, n. 11, p. 256, edit, 1715, p. 312, 318, edit.
1661.
§ 362 a - 864.] FOREIGN CONTRACTS. 487

is conformable to the law of France on the same subject; is the
contract valid in both countries? Is it valid in the country where
the land lies, so as to be enforced there? If not, is it valid in the
country where the contract was made ?1

§ 364. If this question were to be decided exclusively by the
law of England, it might be stated, that, by the law of England,
such a contract would be utterly void; and it would be so held in
a suit brought to enforce it in that realm, upon the ground, that
all real contracts must be governed by the lex rei site. Lord
Mansfield took occasion, in a celebrated case, to examine and state
the principle. “There is a distinction” (said he) “ between local
and personal statutes. Local ones regard such things as are really
upon the spot in England ; as the statute of frauds, which respects
lands situate in this kingdom. So stockjobbing contracts, and the
statutes thereupon, have a reference to our local funds. And so
the statutes for restraining insurances upon the exportation of wool
respect our own ports and shores. Personal statutes respect tran-
sitory contracts, as common loans and insurances.”? And in an-
other report of the same case, after a second argument, he said:
“Tn every disposition or contract, where the subject-matter relates
locally to England, the law of England must govern; and must
have been intended to govern. .Thus, a conveyance or will of
land, a mortgage, a contract concerning stocks, must all be sued
upon in England; and the local nature of the thing requires them
to be carried into execution according to the law here.” #

1 Ante, § 262; post, § 485, 436 to 445. See 2 Burge, Comm. on Col. and
For. Law, Pt. 2, ch. 9, p. 840 to p. 871; 4 Burge, ori Pt. 2, ch. 5, § 11, p.
217.

2 See 2 Dwarris on Statut. 648; Warrender v. Warrender, 9 Bligh. R. 127,
128; ante, § 351 d.

* Robinson v. Bland, 1 W. Black. R. 334, 346; post, § 383, and note.

* Robinson v. Bland, 2 Burr. R. 1079; S. P.1 W. Black. R. 259. See also
Ersk. Inst. B. 8, tit. 9,§ 4; Henry on For. Law, p. 12 to 15; Scott v. Alnut, 2
Dow & Clarke, 404. See also Selkrig v. Davis, 2 Dow, R. 230, 250; post, § 283,
435.— Mr. Burge, speaking on this subject, says: “ There is an entire concur-
rence amongst them (jurists) in considering, that the title to moyables, or the
validity of any disposition of them, is not governed by the law of their actual
situs. This, which may be regarded as a general rule, is subject to this qualifica-
tion, that the law of the country in which the movable may be actually situated,
has not prescribed some particular mode by which alone the movable can be
transferred. Thus, property in the public funds or stocks, shares in companies,
joint-stocks, &c., is a speciés of personal property, which, as it is created, so it is
regulated by the law of the country in which it exists. Certain forms are pre-
488 CONFLICT OF LAWS. [oa. vim.

§ 865. The same doctrine has been laid down in equally em-
phatic terms in the Scottish courts. Lord Robertson in a highly
interesting case said: “‘ Although the rule as to the lex loci con-
tractés, is of very general application, particularly as to the consti-
tution and validity of personal contracts and obligations, it is not
universal. In the first place, it does not apply to contracts or ob-
ligations relative to real estates.” 1 Lord Bannatyne, on the same
occasion, affirmed the like principle.2 And it has received an un-

scribed, by which alone the holder of any share or interest can transfer it. Here
the transfer is so far subject to the law of the place where the property is situated,
that the legal title to it is not acquired unless those forms are observed. But al-
though the contract may, in consequence of a non-compliance with those forms,
fail in conferring the legal title on the disponee, yet it will give him a right to
compel the disponer, by action or suit, to make a transfer in the manner required
by the local law. To this limited extent the lex loci rei site affects and controls
the transfer by acts inter vivos of certain movables. But unless the local law
gives to them the quality of immovable or real, as it may do, and has done in
many instances, they still, as subjects of succession, are governed by the law of
the owner’s domicil. The rule is, that the title to movable property is governed
by the law of the place of the owner’s domicil; and this rule is uniformly ap-
plied in deciding on the title to movable property as a subject of succession.
The law of the owner’s domicil is not that which exclusively decides on the title
to movable property as a subject of transfer and acquisition by acts inter vivos.
When contracts of purchase and sale, mortgage or pledge, are complete in a
place which is not the domicil of the owner, the validity of such contracts and
the rights and obligatious which they confer, are governed by the law of the
country in which they are completed. ‘Semper in stipulationibus, et in ceteris
contractibus id sequimur, quod actum est; aut si non pareat, quid actum est, erit
consequens, ut id sequamur, quod in regione, in qua actum est, frequentatur.’
‘Generaliter enim in omnibus, que ad formam ejusque perfectionem pertinent,
spectanda est consuetudo regionis, ubi sit negotiatio, quia consuetudo influit in
contractus, et videtur ad eos respicere, et voluntatem suam eis accommodare.’”
3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 751, 752; 2 Burge, Comm.
Pt. 2, ch. 9, p. 863 to p. 870. See post, § 434,

? Fergusson on Marr. and Div. p. 395; Id. 397. See Ersk. Inst. B. 3, tit. 2,,
§ 40, p. 515; post, § 436, and note.

: Fergusson on Marr. and Div. p. 401; 2 Kaims on Equity, B. 3, ch. 2, § 2.—
Erskine, in his Institutes, seems to assert a more modified doctrine. He says:
“ All personal obligations or contracts entered into according to the law of the
place where they are signed, or as it is expressed in the Roman. Law, secumdem
legem domicilii, vel loci contractus, are deemed effectual when they come to re-
ceive execution in Scotland, as if they had been perfected in the Scotch form.;
And this holds éven in such obligations as bind the grantor to convey subjects’
within Scotland ; for where one becomes bound by a lawful obligation, he cannot
cease to be bound by changing places.” Yet Erskine afterwards adds, that if an
actual conveyance of the property had been made, not according to the Scotch
§865 - 866.] FOREIGN CONTRACTS. 489

équivocal sanction in America ; where it has been broadly declared
to be a well-settled rule, that any title or interest in land, or in
other real estate, can only be acquired or lost agreeably to the law
of the place where the same is situate.}

§ 865 a. Paul Voet has expressed the same opinion. Quid si
itaque contentio de aliquo jure in re, seu ex ipsa se descendente ?
Vel ex contractu, vel actione personali, sed in rem scripta? An
spectabitur loci statutum, ubi dominus habet domicilium, an statu-
tum ret site? Respondeo? Statutum rei site. Ut tamen actio
etiam intentari possit, ubi Reus habet domicilium. Idque obtinet,
sive forensis sit ille, de cujus re controversia est, sive incola loci,
ubi res est sita.?

§ 866. This doctrine may be further illustrated by the case of
Scotch heritable bonds. By heritable bonds in that law are meant
bonds for the payment of money, which are secured by a convey-
ance or charge upon real estate. Such bonds usually contain not
only a charge upon real estate, but a personal obligation to pay the
debt. In general, by the Scotch law, mere personal bonds and
other debts, on the decease of the creditor, pass to his personal
representative ; but heritable bonds belong to the heir; because
the charge on the real estate, being jus nobilius, draws to it the
personal right to the debt. According to the Scotch law, no con-
tract or other act, disposing of an heritable bond, will be good,
unless it is according to the law of Scotland; and no contract, in-
tended to create such a heritable bond, will be valid, as such,
unless it be made with the solemnities of the Scotch law.? There
are other collateral consequences growing out of the same doctrine.
Thus, if a Scotch heir should seek to be exonerated from a herit-
forms, the courts of Scotland would not compel the party to convey, nor treat it
as an obligation of the grantor to execute a more perfect conveyance. Ersk. Inst.
B. 3, tit. 83, § 40, 41, p. 515. See post, § 436. ;

1 Cutter v. Davenport, 1 Pick. R. 81; Hosford v. Nichols, 1 Paige, R. 220;
Wills v. Cowper, 2 Hamm. R. 124; post, § 424, 427, 435.

* P. Voet, de Statut. § 9, ch. 1, n. 2, p. 250, edit. 1715; Id. p. 305, edit. 1661 ;
post, 426, 442. d

* Ersk. Inst. B, 2, ch. 2, § 9 to 20, p. 198 to p. 204; Id. B. 3, tit. 2, § 39, 40,
41, p. 514, 515; Jerningham v, Herbert, 1 Tamlyn, R. 103; 2 Bell, Comm. § 668,

_p. 7, 8; Id. § 1266,,p. 690, 4th edit.; Id. p. 687, 5th edit.; post, § 485 to 489. —

Yet Mr. Erskine, in his Institutes, seems to admit, that obligations to convey
things in Scotland, although not perfected in the Scottish form, yet if perfected
according to the lex domicilii of the parties, are binding in Scotland, not as con-
veyances, but as contracts, under some circumstances. Ante, § 365, note 2.
490 CONFLICT OF LAWS. _ [en vm

able bond by the application of the personal assets in England,
his right would depend upon the law of Scotland, that is, the law
of the place where the real estate was situate ; and would not de-
pend upon the law of the place where the personal estate happened:
locally to be.t

§ 867. The same reasoning seems to have governed in the House
of Lords in a recent case, where certain entailed estates in Scot-
land were sold for the redemption of the land-tax, and the surplus
money of the proceeds of the sale was vested, according to a stat-
ute on the subject, in trustees, who were required to pay the in-
terest of it to the heir of entail in possession, until the money
should be reinvested.in land. The heir of entail next entitled sold
his reversionary and contingent right to the interest of this fund
by a deed in the English form, and executed in England, where
the parties were domiciled, but without the solemnities required by
the law of Scotland. It was admitted, that the fund was to go to
the heirs in entail, and that the principal thereof was consequently
heritable, and could only be passed according to the solemnities
of the law of Scotland. But the House of Lords adjudged the
intermediate interest of the surplus, before the investment in
lands, to be movable property, and alienable by the proprietor, as
such; and, therefore, they held the assignment of it according to
the English law good?

§ 368. From what has been already stated in the preceding dis-
cussions, it will be seen, that foreign jurists are by no means agreed
in admitting the general doctrine. On the contrary some of them
maintain that the validity of a contract is, in all cases, to be gov-
erned by the law of the place, where it is made, whether it regards
movables or immovables.* Thus, in respect to the capacity of per-
sons to contract, their doctrine is, that, if they are of age to contract

* Elliott v. Lord Minto, 6 Madd. R. 16; Earl of Winchelsea v. Garetty, 2 Keen,
R. 293, 309, 310; ante, § 266 a. See'also 4 Burge, Comm. on Col. and For. Law,
ch, 15, § 4, p. 722 et seg.

* Scott v. Alnutt, 2 Dow & Clark, 404, 412.

* Ante, § 260 to 263. See also ante, § 82, 325 to $27; post, §.369 to 373,
§ 474 to 479. See 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 840
to p. 871.

* Ante, § 52, 53, 60, 61, 62; post, § 485 to 445. See also Feelix, Conflit des
Lois, Revue Etrang. et Franc. Tom. 7, 1840, § 37, p- 807 to p. 811; Id. p. 352
to 360; post, § 371 f, note. — Mr. Burge has made a large collection of the vari-

ous opinions of foreign jurists on this subject. 2 Burge, Comm. on Col. and For.
Law, Pt, 2, ch. 9, p. 840 to p, 871.
§ 366 - 368.] FOREIGN CONTRACTS. 491

in the.place of their domicil, but are not in the place where their
immovable property is situate, the contract to sell or alienate the
latter will be valid everywhere ; and so, vice versd.1 Others hold
a different opinion, and insist, that, whatever may be the law of
the domicil, as to capacity, and although it governs the person

nnnerat) yet it does not apply to immovable property in another .
country.”

} Ante,-§ 51 to 54, 58 to 63; post, § 430 to 435; Rodenburg, tit. 1, ch.
3; Id. tit. 2, ch. 3; Liverm. Diss. § 44,45, 46, p. 48, 49; Id. § 55, 56, p.56; Id.
§ 58, 59, p. 58; 1 Boullenois, Observ. 2, p. 27; Id. p. 145; Id. Observ. 9, p. 152,
158, 154; Id. Observ. 12, p. 175 to p.177; Id. Observ, 23, p. 456 to p. 460; 1
Froland, Mém. 156,160. See on this point Felix, Conflit des Lois, Revue Rinaig,
et Franc. Tom. 7, 1840, § 27 to 33, p. 216 to p, 228; 2 Burge, Comm. and For.
Law, Pt. 2, ch. 9, p. 840 to p- 870.

* Ante, § 54 to 62; post, § 430, 431, 482, 435 to 445; Liverm. Diss. § 44,
p-48, 49; Id. § 46 to 53, p. 49 to 58; Id. § 59, p. 58. See 1 Boullenois, Ob-
serv. 6, p. 127 to 30,135; Id. Observ. 9, p. 150 to 156; J. Voet, ad Pand. Lib.
1, tit. 4, § 7, p. 40; 2 Froland, Mém. des Stat. 821.— There are some nice’ dis-
tinetions put by different authors upon this subject, which are stated with great
clearness and force by Mr. Livermore, (Dissert. § 58, p. 58 to 62,) and upon
which we may have occasion to comment more fully hereafter. At present it is
only necessary to say, that Boullenois, Bouhier, and others hold, that, while the
law of the domicil, as to general capacity, governs as to contracts and property
everywhere, the law of the situs of immovable property governs, as to the quanti-
ty, which the party, having full capacity, may sell, convey, or dispose ‘of. See
Livermore, Diss. § 58 to 63, p. 58; 1 Boullenois, Prin. Gén. 8, p. 7; Id. Observ.
6, p. 127 to 1383; Id. Observ. 12, p. 172, 175 to 178; Id. Observ. 18, p- 177, 183,
184, 188, 189 ; + Bowker: Cout. de Bourg. ch. 21, § 68 to 70; Id. § 81 to 84. See
also 1 Boullenois Observ. 5, p. 101, 102, 107, 111, 112; 2 tors) Ciuvres, Lib.
4,.ch. 6, Quest. 105. Rodenburg seems to admit, that a contract respecting real
property, which is entered into according to the forms of the lex loci contractis
may be good to bind the party personally, although it is not according to the forms
prescribed by the lex rei site. Rodenburg, tit. 2, ch. 3; 1 Boullenois, 414, 415,
- 416; 2 Boullenois, Appx. p. 19. Mr. Feelix has enumerated many of the jurists
on each side of this question in his dissertation on the Conflict of Law. Felix,
Conflit des Lois, Revue Etrang. et Franc. 1840, Tom. 7, §,27 to 32, p. 216 to
p- 221; 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 840 to p. 870.
Muhlenbruch, who is a very modern author, and is cited by Mr. Feelix, has a sin-
gle passage on the subject, which, from its generality, may serve to show how dif
ficult it is to obtain any certainty as to the exact opinion of foreign jurists on the
various questions which may arise from the conflict of laws as to personal capaci-
ty, contracts, and rights to property. He lays down the following rules on the
subject: (1.) Jura atque officia ejusmodi, que hominum personis inherent, et quasi
sunt infixa, ex hisque apte pendentia, tum etiam ea, que ad universitatem patrimo-
nii pertinent, ex legibus judicanda sunt, que in civitate valent, ubi is, de quo que-
ritur, larem rerumque ac fortunarum suarum summam constituit, scilicet non ad-
versante exterarum civitatum jure publico. Enimvero mutato domicilio jura quo-
492 CONFLICT OF LAWS. [cH. vin.

§ 869. So, in respect to express nuptial contracts we have seen,
that many foreign jurists hold them obligatory upon all property,
whether movable, or immovable, belonging to the parties in other
countries, if they are valid by the law of the place of the nuptial
contract.!. And in respect to implied nuptial contracts, all those
jurists, who maintain, that the law of the domicil furnishes, in the
absence of any express contract, the rule to ascertain the rights
and intentions of the parties, by way of tacit contract, necessarily
give to the doctrine the same universal operation?

que hujusmodi mutantur, sic tamen, ut ne cui jus ex pristina ratione quesitum, cer-
tisque suis terminis jam definitum eripiatur. (2.) Jura, que proxime rebus sunt
scripta, velut que ad dominii causam spectant, vel ad vectigalium tributorumque
onus, vel ad pignorum in judicati exsecutionem et capiendorum, et distrahendorum,
tum etiam rerum apud judicem petendarum persequendarumve rationem, et que
sunt reliqua ex hoc genere, zstimantur ex legibus ejus civitatis, ubi sitze sunt, res,
de quibus agitur, atque collocate, nullo rerum immobilium atque mobilium habito
discrimine. (3.) Negotiorum rationem quod attinet, de forma quidem, quatenus non
nisi ad fidem auctoritatemque negotio conciliandam valeat, nec in aliarum legum
fraudem actum sit, non est, quod dubitemus, quin accommodate ad ejus loci insti-
tuta, ubi geritur res, dirigenda sit atque estimanda. Nec est, quod non idem
statuamus aut de personis, scilicet possintne omnino jure suo et velut arbitrio ne-
gotia instituere ? Aut de negotiorum materia, atque vi et potestate, que iis cum
per se insit, tum vero quoad agendi excipiendique facultatem, hac tamen itidem
adscripta exceptione, ut ne quid in aliena civitate fiat contra ejusdem civitatis
mores, leges, instituta, ad quz immutanda prorsus nihil valet privatorum arbi-
trium. Quid? quod omnino sese, qui negotium aliquod instituerunt, tacite ac-
commodasse videri possunt ad ejus regionis leges consuetudinesve, in qua ut exi-
tum habeat res, de qua agitur, aut legum decreto, aut privatorum auctoritate certo
constitutum est. (4.) Judex igitur, qui rem apud exteros natam judicabit, ea
certe, qu ad formam modumque litium instituendarum pertinent, adjurium nor-
mas institutaque, quibus ipse paret, dirigat necesse est. In reliquis vero, quatenus
aut idem illud servet jus domesticum, aut jus exteris scriptum, tamquam privato-
rum voluntate constitutum, in judicando sequatur, id ex principiis modo propositis
quisque facile intelliget. Quibus etiam hac esse consentanea videntur, ut prae-
scriptio quidem acquisitiva, quam vocant, ex juribus rei site, extinctiva vero ex
judicii accepti legibus estimanda sit, preeterquam quod nihil hac quoque ratione
juris detrahatur actori, si forte ingratiis suis loco haud condicto convenire reum
cogatur ; ut actiones, que vel ad rescindenda negotia, vel ad damna resarcienda
comparate sunt, secundum legis loci, ubi res acta est, judicentur, nisi si ut alio
loco fiat solutio, inter partes convenerit. Ceterum que de negotiorum alibi con-
tractorum in alieno territorio vi diximus atque potestate, eadem sententiis quoque
decretisque a judice prolatis aut convenient. Muhlenbruch, Doctrina Pandecta-
rum, Tom. 1, p. 166 to 170. See also P. Voet, de Statut. § 4, ch. 2, n. 15, p.
127; Id. p. 142, edit. 1661.

1 Ante, § 143 to 160, ;

* Ante, § 57, 143 to 171; Boullenois, Observ. 5, p. 120, 121; Id. p.'673,
674; Id. Observ. 29, p. 757 to p. 767.
§369-371.] FOREIGN CONTRACTS. 493

§ 369 a. Dumoulin is most emphatic upon this matter. Primo,
in sano intellectu, (says he,) nullum habet dubium, quin societas
(he is speaking of cases of marriage) semel contracta, complecta-
tur bona ubicunque sita, sine ulla differentia territorii, quam ad
modum quilibet contractus, sive tacitus, sive expressus, ligat per-
sonam, et res disponentis ubique. Non obstat, quod hujusmodi so-
cietas non est expressa, sed tacita, nec oritur ex contractu expresso
partium, sed ex tactto, vel presumpto contractu a consuetudine lo-
cali introducto.!

§ 870. Merlin seems to think, that, although in general the
French law must govern in all cases of immovables in France,
even when the owners are foreigners; yet that there are excep-
tions to the rule. As, for instance, if the foreign law, in the coun-
try where a contract is made respecting immovables, has been
adopted by the contracting parties, and converted by them into an
express contract; in such a case, he holds that the contract is
binding, because the foreign law, as such, does not act upon the
immovables in France, but it acts solely by way of contract.2. And
he applies the same principle to cases where there is no express
adoption of the foreign law, but where it arises by way of tacit
contract from the place of the contract.

§ 871. On the other hand, Pothier treats as real property, not
only lands and houses and inheritable property, but also all rights
in them, and growing out of them; such as ground-rents, or other
rents annexed to lands and inheritances, which fall under the de-
nomination of jus in re; and also all rights to inheritances which
fall under the denomination of jus ad rem, such as contracts or
debts (créances) respecting the sale and delivery of immovable
property, which are deemed to have the same situation as the
things which are the object of them. Les choses, qui ont une sit-
uation véritable, sont les héritages, c’est a dire, les fonds de terre,
les maisons, et tout ce, qui en fait partie. Les droits réels, que
nous avons dans un héritage, qwon appelle Jus in re, tels qu’on
droit de rente fonciére, de champart, Sc. sont censés avoir le meme

situation, que cet héritage. Pareilment, les droits, que nous avons
& un héritage, qu’on appelle Jus ad rem, c’est @ dire, les créances,
que nous avons contre quelquw’un, qui c’est obligé d@ nous donner un

1 Dumoulin, Consil. 58, Tom. 2, § 2, p. 964, edit. 1681; 2 Burge, Comm. Pt. 2,
ch, 9, p. 864, 865; ante, § 260.

* Merlin, Répert. Lois, § 6, n. 2, 3. * Ibid.

CONFL. 42
494 CONFLICT OF .LAWS. [cH. VIM.

certain héritage, sont censés avoir la meme situation, que Chéritage,
qui en est Vobjet And he asserts the general principle, that all
things which have a real or fictitious situation, are subject to the
law of the place where they are situate, or are supposed to be sit-
‘uate. Toutes ces choses, qui ont ume situation réelle, ou feinte,
sont sujettes @ la loi ow coutume du lieu, ou elles sont situées, ou
censées détre2 This also is the doctrine maintained by Roden-
burg and Boullenois.? Merlin, in a general view, assents to it.!
Pothier further states in relation to debts, which are but jus ad
rem, that they follow the nature of the thing which is the object
of the contract, according to the maxim: Actio mobilis est mobi-
lis ; actio ad immobile est immobilis. Hence, a debt due for money,
_or for any movable thing, belongs to the class of movable property.
So, also, does a contract to do, or not to do, any particular thing.
He admits that the same rule applies, even when it is accompanied
by an hypothecation of immovable property therefor. So that,
when a debt is executed and an hypothecation is made of immova-
ble property, as collateral security, the debt is still to be deemed a
movable debt, although the hypothecation might, per se, be an im-
movable debt; because the debt is the principal, and the hypothe-
cation the accessory ; and, accessorium sequitur naturam principa-
lis.6 But he insists, that contracts which have for their objects
any inheritable property, or other immovable, are to be deemed
‘immovable property ; such as, for instance, in the case of a con-
1 Pothier, Coutum. d’Orléans, ch. 1, § 2, n. 23, 24; Id. ch. 8, n. 51; Id. Traité,
des Choses, § 8; post, § 382.
2 Pothier, Coutum. d’Orléans, ch. 1, § 2, n. 24; Id. ch. 3, n. 51; Id. Traité des
_ Choses, § 3.
® 1 Boullenois, Prin. Gén. 34, 35, 36, p. 8,9; Id. Obs. 5, p. 121, 129; Id. p.
_ 223, 224, 295 ; Id. Obs. 20, p. 374, 381, 488; 2 Boullenois, Obs. 46, p. 472; Ro-
“denburg, De Div. Stat. tit. 2, ch. 2, mn. 2, p. 15; Henry on Foreign Law, 14,
note; Id. 15.— Cochin lays down the following doctrine: “ Les formalites, dont
un acte doit étre revétu, se réglent par la loi, qui exerce son empire dans le lieu,
.ou l’acte a été passé ; mais, quand il s’agit d’appliquer les clauses, qu’il renferme,
aux biens des parties contractantes, c’est le lieu de la situation de ses biens, qui
doit seule étre consultée.” And he illustrates by reference to a donation, in Paris,
_ of property situate in places where donations: inter vivos are prohibited, holding
-that such donations, although clothed with all the proper Parisian formalities, are
nullities. He then adds, “ Ce n’est donc pas la loi du lieu, ou Vacte a été passé,
qui en détermine Veffet.” Cochin, uvres, Tom. 5, p. 697. See also 1 Boulle-
nois, Prin. Gén. 31, p. 8.
* Merlin, Répertoire, Meubles, § 5; Id. Biens, § 2, n. 2; Id. Loi. § 6, n. 3.
® Pothier, Coutum. d’Orléans, ch. 1, § 2, n. 24; Id. n. 50.
4871-3871 ¢.] FOREIGN CONTRACTS. 495

tract for the purchase of real estate, the right of the vendee
against the vendor for the delivery of the same.?

_ $3714. D’Argentré says: Whenever the question respects im-
movables or inheritances, situate in different places, where there
are different modes of acquiring, transferring, and asserting own-
ership, and the question is, by what law they are to be governed,
the most certain rule in use is, that the law of the place where the
property is situate is for the most part to be observed, and its laws,
statutes, and customs to be observed. He adds, that this rule pre-
vails in contracts, in testaments, and in commercial matters. Cum
de rebus soli, id est immobilibus agitur, (quils appellent dhéritage,)
et diversa diversarum possessionum loca et situs proponuntur, in
acquirendis, transferendis, aut asserendis dominiis, et in controver-
sia est, quo jure regantur, certissima usu observatio est, id jus de
‘pluribus spectart, quod loci est, et suas cuigue loco leges, statuta,
et consuetudines servandas, et qui cuigue mores de rebus, territorio,
et potestatis finibus sint recepti, sic ut de talibus nulla cujusquam
potestas sit preter territori legem. Sic in contractibus, sic in tes-
tamentis, sic in commerctis omnibus, et locis conveniendi constitu-
tum ; ne contra situs legem in immobilibus, quidquam decerm pri-
vato consensu, et par est sic judiciart.*

§ 871 6. Christinzeus adopts the very language of D’Argentré
with seeming approbation ;° although there are other passages, in
-which he seems to admit that a different rule prevails in respect
to the acts which are done by a party, which are to be governed
by the lex loci actés. At least he cites without disapprobation the
doctrine of Baldus, (who certainly contradicts himself in the pas-
sages cited,) that in the solemnities of testaments, the law of the
place where the testament is made, is to govern, even although the
property is situate elsewhere. However, he admits that in Bel-
_gium, by an express edict, the law of the situs in such cases pre-
vails.5

§ 871. John Voet has expressed a very different opinion. He

’ Pothier, Coutum. d’Orléans, ch. 3, art. 2, n. 50, n, 51; Id. Traité des Choses,
.§2. See Merlin, Répertoire, Biens, § 1, n. 13,§ 2, n.1; Id. Meubles, § 2, 3;
“Liverm. Diss. p. 162, 163.

* D’Argent. ad Boit. Leg. Les. Donat. Art. 218, Gloss. 6, n. 3, 1 vol. p. 637;
post, § 438.

® Christineus, Tom. 2, Decis. 3, n. 1, 2; Id. Decis. 4, n. 1, 4, 5, 6, p. 4, 5, 6.

* Id. Decis. n. 7.

* Id. Decis. 4, n. 1, 2, 8, p. 6.
496 CONFLICT OF LAWS. [cH. VUE.

holds that it is sufficient in all cases, whether the contract respects
movable property or immovable property, to follow the law of the
place where the contract is made, and the act done, whether it be
a contract or a will. Neque minus de statutis mixtus, actus cujus-
que solemnia respicientibus, percrebuit, insuper habitis de summo
cujusque jure ac potestate ratiocintis, ad validitatem actus cujus-
que adhibitionem solemnitatum, quas lex loci, in quo actus geritur,
prescripserit observandas ; sic ut quod ita gestum fuerit, sese por-

rigat ad bona mobilia et immobilia, ubicunque sita aliis in terri-
tortis, quorum leges longé alium, longeque pleniorem requirunt
solemnium interventum.. He assigns as the principal reason, that
otherwise, from ignorance or want of skill, it would be almost im-
possible for a man who possessed real property, to make a valid
disposition thereof by an act inter vivos, or by testament.? He adds,
that this rule prevails in Belgium, in Spain, in Germany, and in
France.?

1 J. Voet, ad Pand. Lib. 1, tit. 4, P*. 2, § 13, p. 45.

® Thid.

8 Thid. citing authorities. His language is: “ Quod ita. placuisse videtur, tum,
ne in infinitum prope multiplicarentur et testamenta et contractus, pro numero
regiongim, diverso jure ¢irca solemnia utentium ; atque ita summis implicarentur
molestiis, ambagibus, ac difficultatibus, quotquot actum, res plures pluribus in locis
sitas concernentem, expedire voluerint: tum etiam, ne plurima bond fide gesta
nimis facile ac prope sine culpa gerentis conturbarentur. ‘Tum quia ne ipsis qui-
dem in juris praxi versatissimis, multoque minus aliis simplicitate desidiaque labo-
rantibus, ac juris scientiam haud professis, satis compertum est, ac vix per indus-
triam exquisitissimam esse potest, quz in unoquoque loco requisita sint actuum
solennia, quid indies in hac vel illa regione novis legibus circa solemnium obser-
vantiam mutetur: ut proinde, que ratio de militari testamento obtinuet Quiritium
jure, milites nempe solemnibus paganorum non fuisse adstringendos, dum in
castris et expeditione occupati erant, quia et juris imperiti erant, et peritiores
consulere in castris non poterant, etiam nunc suadeat, illum, qui actum gerit, ad
alterius loci, quam in quo gerit, solemnia non esse obligandum ; quia et proba-
biliter aliorum locorum solennia ignorare potest, et in loco, in quo actum gerit,
peritiores morum alienz regionis non satis consulere: dum ita fere comparatum
est, ut pragmatici, quibus auctoribus contractus celebrantur, aut conduntur testa-
menta, vesati quidem plerumque satis sint in jure patrio, non item locorum omnium
et universi orbis jure ; atque ipsuper non raro more ad inquisitionem anxiam ad-
hibendam impatiens est, quod geritur negotium. Quamvis ergo in Frisia septem
testes in testamento requiri constet, alibi fere tabellionis testiumque duorum pra-
sentia ac fides sufficiat, aut saltem in universum longe minor solemnitas desidere-
tur; tamen xquitate rei motus Frisie Senatus ratam habuit de bonis Frisicis
dispositionem, Sylvaeduecis coram parocho duobusque testibus declaratum, juxta
Sylva ducensis regionis usum. Et ita in praxi hee Belgis, Germanis, Hispanis,
Gallis, aliisque, placuisse, auctores cujusque gentis testantur.”
§ 871 ¢- 372.] FOREIGN CONTRACTS. 497

’ §871 d. Paul Voet holds a similar opinion; and puts several
cases to illustrate it. If a testator in:the place of his domicil
makes a will according to the law of the place rei site, but not
according to the law of the place of his domicil, he asks the ques-
tion, whether such a will is good, as to property situate elsewhere ;
and he answers in the negative. He next puts the case of a tes-
tator, who makes his will according to the law of his place of
domicil, as for example, before a notary and two witnesses; and
asks, whether the will has effect upon property situate in another
country, where more and other solemnities are required; and he
answers in the affirmative. He then asks, if a foreigner makes
his will according to the law of the place, where he is merely lodg-
ing or cormorant, whether the will is valid elsewhere, where he
either has immovable property, or he has his domicil; and he an-
swers in the affirmative. The only exception he makes is, where
the testator, in order to evade the law, or in fraud of the law of
his own domicil, goes into another country, and there makes his
will.

§ 871 e. Hertius, as we have seen,? lays down the rule, that as
to the forms and solemnities of acts and contracts, they are to be
governed altogether by the law of the place where the acts are
done, and contracts made, aud not by the law of the domicil of
the party, or the law of the situs rei. Si lex actut formam dat, in-
spiciendum est locus actus, non domicilii, non rei site ; id est, si de
solennibus queratur, si de loco, de tempore, de modo actus, ejus
loci habenda est ratio, ubi actus vel negotium celebratur® He
adds: Regula hec apud omnes, quantum quidem sciam, est indubt-
tata; and then says: Valet etiamsi bona in alio territorio sint sita.*

§ 872. Burgundus apparently admits, that generally the law of
the place of the contract ought in all cases to prevail, so far as re-
spects its form, its ceremonies, and its obligation. The passage
already cited 5 is to this effect. In scriptura instrumenti, in solem-
nitatibus, et ceremoniis, et generaliter in omnibus, que ad formam
ejusque perfectionem pertinent, spectanda est consuetudo regionis,

1 P. Voet, de Statut. § 9, ch. 2, n. 1, 2, 8, 4, p. 261, 262, edit. 1715; Id. p. 317,
818, 319, edit. 1661. _

* Ante, § 260.

® Hertii, Opera, De Collis. Leg. § 4, n. 10, p. 126, edit. 1737; ia. p: 179, 180;
ante, § 238.

* Thid.

5 Ante, § 300 a.
42 *
498 CONFLICT OF LAWS. [cH. vin.

ubi fit negotiatio. Igitur, ut paucis absolvam, quoties de vinculo
obligationis vel de ejus interpretatione vel interpretatione queritur,
veluti quos, et in quantum obliget, quid sententie stipulationem in-
esse, quid abesse credi oporteat, &c., ut id sequamur, quod in re-
gione, in qua actum est, frequentatur.. But he immediately adds,
that if we would know whether the contract was valid or not in
respect to the subject-matter thereof, we must look to the law of
‘the situs. Caterum, ut sciamus, contractus ex parte matert@ utilis
sit vel inutilis, ad leges, que rebus, de quibus tractatur, impresse
sunt, hoc est, ad consuetudinem situs respiciemus.2 He also ex-
presses surprise, that authors, in considering contracts, should
have excluded altogether the nature of the thing contracted for,
and generally to have interpreted contracts according to the law
of the place where they are made; for in sales, and also in letting
to hire, and in other contracts, it becomes us to look to the usage
touching the subject-matter. Quippe non solum in emptione obti-
net, ut ad consuetudinem ret spectare deceat, sed in locatione prete-
rea, en conductione, ceterisque contractibus.’ It must be confessed,
that on this subject the distinctions and doctrines of Burgundus
are open to much question.

§ 872 a. Dumoulin says, that it is the general opinion of jurists,
that, wherever the custom or law of a place prescribes the solem-
nities or form of an act, it binds foreigners, who there do the act ;
and the act is valid and efficacious even in respect to immovable
property, beyond the territory of the custom or law. Et est om-
‘nium Doctorum sententia, ubicunque consuetudo, vel statutum locale,
disponet de solemnitate, vel forma actus, ligari. etiam exteros, ibi
actum illum gerentes, et gestum esse validum, et efficacem, ubique
etiam super bonis solis extra-territorium consuetudinis vel statuti.!
-Gaill adopts an equally broad conclusion. Contractus enim, cele-
-bratus cum solemnitate requisita in loco contractus, extendit se ad
‘omnia bona, licet in loco bonorum major solemnibus requiretur®

§ 872 b. Rodenburg, as we shall presently see, goes the full
“length of this doctrine, and applies even to the cases of wills and
testaments, which, he says, if made according to the law of the

1 Burgundus, Tract. 4, n. 7, 8, p. 104.

* Burgundus, Tract. 4, n. 8, 9, p. 107, 108; 2 Boullenois, Observ. 46, p. 450 to
p- 454. See J. Voet, ad Pand. Lib. 1, tit. 4, Ps 2, § 12, 13, p- 45; post, § 433.

® Burgundus, Tract. 4,n. 9; Id. n. 7; ante, § 502; post, § 483 to 438.

* Dumoulin, Consil, 53, Tom. 2, § 9, p. 9653 post, 441.

5 Gaill, Prac. Observ. 123, n. 2, p. 548.
§ 872-372 b.] FOREIGN CONTRACTS. 499

place where they are executed, are valid even upon property situ-
ate elsewhere.1 There are many other jurists who maintain the
same opinion both as to contracts and other instruments, and as to
wills and testaments.”

1 Rodenburg, de Div. Statut. tit. 2, ch. 3, n. 1; 2 Boullenois, Appx. p. 19;
post, § 475.

* Many of them are enumerated in 1 Boullenois, Observ. 23, p. 491 to p. 516;
ante, § 301. Mr. Feelix has also given us a long list of jurists who holfl the doc-
trine. Indeed, he thinks the doctrine firmly and generally established. His
language is: “ Un principe aujourd’hui généralement adopté par lusage des
nations, c’est que ‘la forme des actes est réglée par les lois du lieu dans lequel
‘ils sont faits ou passés.’ C’est-a-dire que, pour la validité de tout acte, il suffit
d’observer les formalités prescrites par la loi du lieu ou cet acte a été dressé ou
rédigé; Vacte ainsi passé exerce ses effets sur les biens meubles et immeubles
situés dans un autre territoire, dont les lois établissent des formalitds différentes
et plus étendues (Locus regit actum). En d’autres termes, les lois, qui réglent
la forme des actes, étendent leur autorité tant sur les nationaux que sur les
étrangers, qui contractent ou disposent dans le pays, et elles participent ainsi de
la nature des lois réelles. Le droit Romain ne contient aucune disposition qui
consacrat le principe: locus regit actum. Dans lesquelles on a prétendu trouver
cette régle, ne parlent point de la forme, mais de la matitre des contrats. Des
‘le temps des glossateurs, la question s'est presentte par rapport aux testaments,
Bartole a adopté l’affirmative: Albert de Rosate s’est prononeé pour la négative,
sur le motif que la loi n’oblige que les subjets, et ‘que ceux-ci, seuls ont le droit
@employer une forme prescrite. Plus tard, Cujas a soutenu, qu’il faut suivre la
‘loi du domicile du testateur: Fachinée exigeait l’accomplissement des formalités
prescrites dans le lieu de la situation des biens: Burgundus, tout en admettant la
régle relativement aux contrats, la rejette quant aux testaments; il regarde
comme affectant la chose et comme lois réelles les solennités prescrites pour les
testaments, en invoquant I’édit de 1611 (pour les Pays-Bas), art. 12. Choppin,
‘au contraire, soutient que le testament fait en pays étranger, d’aprés les formes
prescrites dans le lieu de la confection, doit sortir ses effets, méme & l’égard des
immeubles situés dans un autre lieu, et il rapporte un arrét du parlement de
Paris, rendu en ce sens. Dumoulin, Mynsinger, et Gaill, professent la méme
doctrine. Ces deux derniers auteurs attestant la jurisprudence constante de la
chambre impériale (Reichskammergericht) en ce sens. Mevius, en admettant
aussi la régle générale, fait remarquer que la coutume de Lubeck ne la reconnait
que sous les trois conditions suivantes: 1° maladie qui met le testateur en danger
de mortt ; 2° décés réel en pays étranger; 3° absence de toute intention de préju-
dicier aux héritiers naturels. Rodenburg et Voet, en adoptant la régle par rap-
‘portaux contrats comme aux testaments, la motivent sur les raisons suivantes: 1°:
nécessité d’éviter aux individus possédant des biens dans differents pays, l’embar-
ras et la difficulté de rédiger autant de testaments ou de contrats qu’il y a d’im-
meubles situés sous ’empire de lois différentes, ou de remplir dans un méme
testament ou contrat toutes les solennites prescrites dans les divers lieux de la
situation des biens; 2° impossibilité dans laquelle Vindividu supris & l’étranger par

/ une maladie mortelle peut se trover de remplir les solennités prescrites dans le
500 CONFLICT OF LAWS. [cH. vu.

§ 872 c. Boullenois seems to have labored under no small em-
barrassment as to the question, whether a contract.was obligatory

pays de son domicile ou de la situation de ses biens; 3° nécessité d’empécher que
les actes faits de bonne foi soient annullés trop facilement sans la faute de la
partie; 4° impossibilité pour la majeure partie des hommes de connaitre les formes
prescrites dans chaque localité; 5° enfin, Voet ajoute, qu’il faut applicuer ici
les motifs, qui, chez les Romains, ont fait introduire la forme simple du testament
militaire. @ En terminant, cet auteur cite presque tous ses devanciers indiques ci-
dessus, en déclarant que l’opinion professée par lui a été reconnue par la jurispru-
dence dans les Pays-Bas, en Allemagne, en Espagne, et en France. Tel est
aussi le sentiment de Zoesius, Grotius, Christin, Paul Voet, Vinnius, Jean de
Sande, Vander Kessel, Vasquez, Perez, Cochin, Boullenois, Menochius, Carpzov,
Huber, Hert, Hommel, Gluck, Thibaut, Dauz, Weber, Mansord, Muhlenbruch,
Mittermaier, Tittman, Merlin, Meier, Pardessus, Story, Rocco, Hattogh, et
Burge.” Feelix, Conflit des Lois Revue Etrang. et Franc. 1840, Tom. 7, § 40 to
§ 42, p. 346 to 350. Mr. Feelix has, however, subsequently qualified the general
doctrine here stated by the following exceptions. ‘“ L’acte fait d’aprés les formes
prescrites par la loi du lieu de sa rédaction est, valable, non seulement par rapport
aux biens meubles appartenant & l’individu et qui se trouvent au lieu de son domi-
cile, mais encore par rapport aux immeubles, en quelque endroit qu’ils fussent
situés. Cette derniére proposition, selon la nature des choses, admet une excep-
tion, dans le cas ou la Joi du lieu de la situation prescrit, 4 ’égard des actes trans-
latifs de la propriété des immeubles, ou qui y affectent des charges réelles, des
formes particuliéres, qui ne peuvent étre remplies ailleurs que dans ce méme
lieu: telles sont la rédaction des actes par un notaire du méme territoire, la-
transcription ou l’inscription aux registres tenus dans ce territoire, des actes d’ali-
énation, d’hypothéque, etc. L’acte fait dans un pays étranger suivant les formes
qui y sont prescrites, ne perd pas sa force, quant a sa forme, par le retour de
Vindividu au lieu de son domicile; aucune raison de droit de milite en faveur de
Yopinion contraire. La régle, locus regit actum, ne droit pas étre étendu au
del& des limites, que nous lui avons tracées aun? 40; elle ne s’applique qu’a la
forme extérieure, et non pas 4 la matiére ou substance des actes, ainsi que nous
Yexpliquerons encore au § suivant. , Ainsi, dans un testament, la capacité de la
personne et la disponibilité des biens ne se réglent point par la loi du lieu de Ja
rédaction. Dans les dispositions entre vifs, soit & titre oné-reux, soit & titre gratuit,
la loi du lieu de la rédaction peut avoir influé, soit sur ’ensemble de Lacte, soit
sur les termes employés par les parties; et, sous ce double titre, cette loi peut
étre consultée par les juges comme moyen d’interprétation ; mais elle ne forme
pas la loi décisive, & moins que les parties ne s’y soient soumoises expressément.”
He afterwards adds: “La régle d’aprés laquelle la loi du lieu de la rédaction
régit la forme de l’acte, admet differentes exceptions, dont voici les principales:
1° Lorsque les contractants ou individu dont émane une disposition se sont ren-
dus en pays étranger dans V’intention d’éluder une ‘prohibition portée par la4oi
de leur domicile ; car la fraude fait exception & toutes les régles; 2° Lorsque la
loi de la patrie défend expressément de contracter ou de disposer hors du terri-
toire et avec des formes autres que celles prescrites par cette méme loi; car alors
Vidée d’un consentement tacite de cette nation se trouve formellement exclue.
§372¢.] FOREIGN CONTRACTS. 501

or not, merely by pursuing forms or solemnities prescribed by the
law of the place where it is made.. He puts the case of two per-

Cette exception est la méme que celle indiquée par M. Eichhorn, sous le n° 2;
3° En cas d’opposition expresse du statut réel Voy. supra, n° 43; Lorsque la loi
du lieu de la rédaction attache & la forme qu’elle prescrit un effet, qui se trouve ©
en opposition avec le droit public du pays ou l’acte est destiné & recevoir son exé-
cution; 5° Par rapport aux ambassadeurs ou ministres publics et a leur suite. Ces
personnes ne sont pas soumises aux lois de la nation prés de laquelle elles exer-
cent leur mission diplomatique.” And he finally sums up thus: “Une autre
question est celle de savoir, si le contractant ou disposant, que se trouve en pays
étranger, peut se borner & employer les formes prescrites par la loi du lieu de la
situation de ses immeubles, au lieu de suivre celle du lieu de la rédaction. Nous
tenons pour l’affirmative, par une raison analogue 4 celle donnée sur la question
précédente. Le statut réel régit les immeubles; c’est un principe résultant: de la
nature des choses ; la permission d’user des formes établies par la loi du lieu de la
rédaction de l’acte n’est qu’une exception introduite en faveur du propriétaire, et
a laquelle il lui est loisible de renoncer. Tel est aussi le sentiment de Roden-
burg, de Jean Voet, et de Vander Kessel; Coccii soutient méme que la forme des
actes entre vifs ou testamentaires est régie exclusivement par la loi de la situation
des-beins. Fachinée et Burgundus (V. supra, n°. 41) partageaient cet avis, mais
par rapport aux testaments seulement. En Belgique, l’edit perpétuel de 1611,
art. 13, ordonnait, qu’en cas de diversité de coutume au lieu de la résidence du
testateur et au lieu de la situation de ses biens, on suivrait par rapport & la forme
et ala solennité, la coutume de la situation. Paul Voet, Huber, Hert, Hommel
et auteur de l’ancien répertoire de jurisprudence, se prononcent pour la nullité;
ce dernier invoque Vautorité de Paul de Castres, au passage rapporté au n°
précédent, et le principe que la loi lie tous les individus, qui vivent dans son
ressort, ne fut-ce que momentanément. Nous renvoyons a.ce sujet aux observa-
tions présentées sur la question précédente. Mevius distingue entre le citoyen
faisant partie de la nation dans le territoire de laquelle les biens sont situés, et
entre I’étranger ; il n’accorde qu’au premier la faculté de tester ou de contracter
partout d’aprés les formes prescrites au lieu de la situation. L’auteur ne donne
pas de motif de cette distinction, et nous ne pouvons la trouver fondée.” Feelix,
Conflit des Lois, Revue Etrang. et Franc. Tom. 7, 1840, p. 852 to p. 860. See
also the opinions of foreign jurists on the subject, 2 Burge, Comm. on Col. and
For. Law, Pt. 2, ch. 9, p. 840 to 871. In respect to some of these he has certainly
been led into an error; and some speak so indeterminately, that it is difficult to
gather what their opinion is. It is certain that Mr. Felix has misunderstood the
opinion of Mr. Story in his Conflict of Laws (see § 364) ; and also the opinion of
Mr. Burge. See 1 Burge, Comm. on Col. and For Law, Pt. 1, ch. 1, p. 21 to p.
24. His language is: “In examining all contracts, instruments, or dispositions,
whether they are made inter vivos, or are testamentary, our attention may be
directed to four subjects; the first is, the capacity of him who makes it; the
second is, the property which is the subject or occasion of the contract or instru-
ment; the third regards the formalities or ceremonies with which it is made; and
the fourth is the judicial process by which the rights, which it confers, are to be
enforced. The capacity of the party to make the instrument is ascertained by
consulting the law of the place of his domicil; because it is that law, and that
502 CONFLICT OF LAWS. [cH. vil.

sons contracting, who are domiciled in one place, and contract
in another, and the thing, respecting which the contract is made,

law alone, which affects‘the person, and which gives or denies him the capacity
or power to make the instrument. With respect to the property, the subject of
the contract, disposition, instrument, or testament, recourse is had to the real law,
being that, which prevails in the place in which the property, if immovable, is
actually situated; or in which, if it be movable or personal, it is presumed to be
situated; that is,in the place of the possessor’s domicil. When, however, it is
necessary to ascertain whether the contract be valid, what is its true construction
and effect, and whether the instrument in which it is expressed, or whether a
testament be duly and formally made, recourse is had to the law of the place in
which the contract is entered into, or the instrument or testament was made; be-
cause, if it be made according to the forms prescribed by that law, it is valid
everywhere. ‘Aut statutum loquitur de his, quz concernunt nudam ordinationem
vel solemnitatem actus, et semper inspicitur statutem, vel consuetudo loci, ubi
actus celebratur, sive in contractibus, sive in judiciis, sive in testamentis, sive
in instrumentis aut allis conficiendis, ita quod testamentum, factum coram duo-
bus testibus in locis, ubi non requiritur major solemnitas, valet ubique.” A
distinction, however, must be observed between such solemnities as are purely
formal, and those which are of the substance and essence of the disposition or
instrument. There are some solemnities which intrinsically affect the dispo-
sition itself, so as to render their observance essential to its validity, whilst
there are others which only extrinsically regard them, An example of the former
description of solemnities is given by Stockman, in the case of a law which pro-
hibits the husband and wife from instituting the one the heir of the other, unless
by a will executed before two notaries. If the party made a will in the common
form, in a place where no such law prevailed, it would be invalid in respect of
property situated in the place where it did prevail. Similar examples are afford-
ed by the English Statute of Frauds, which denies the capacity to devise real
property, otherwise than by a will attested by three or more credible witnesses;
and by the law of Jamaica, which enables a married woman to convey her real
estate, and a tenant in tail to bar the remainder, and acquire the fee by a simple
conveyance ; but it requires at the same time, that the married woman should be
examined apart from her husband, and that the conveyance should be acknowl-
edged and recorded. The following example of that species of solemnity, which
is extrinsic to the disposition, is given by Stockmans, in the case which has been
cited: ‘Si quis incola ditionis regi# testetur in urbe Leodiensi, ubi testatoris sub-
scriptio in testamentis necessaria non est, sed sufficit communis ritus, qui in aliis
publicis instrumentis requiritur.’ There may be said to be three species of solem-
nities; first, those which are requisite to enable the person, as for instance, the
authority from the husband to the wife, essential, by the law of some countries,
to the validity of her act. These are derived from and must be examined with
reference to the law of the domicil, or the lex loci rei rita. Secondly, those
which form a part of, and are essential to the act, such as the delivery of the
subject-matter of a gift. The third species of solemnities consists of those which
are designed to establish the truth or authenticity of the instrument, such as the
proof by two or more notaries, or one notary and two witnesses, or the number,
age, and quality of witnesses required for the validity of a will.”
§872c, 372 d.] FOREIGN CONTRACTS. 503

being situate in another, and asks what ought to be the form and
solemnities necessary to make it valid, if in each place they are
different. If it is clear that the forms appertain to the solemni-
ties of the act, he thinks that there is no difficulty in affirming,
that the law of the place of the contract ought to govern. If the
forms relate to the capacity of the person, then the law of the place
of his domicil ought to govern. But if, on the contrary, they apper-
tain either to the substantials of the contract, or its nature, or its ac-
cidents, or its fulfilment, (sive ad substantialia contractus, sive ad
naturalia, sive ad accidentalia, aut complementaria,) there is great
difficulty ; and if any general rule is established, either to follow
the law of the place of the contract, or that of the situs of the
thing, or that of the domicil of the contracting parties, a false
principle will be introduced ; for sometimes the formalities belong
to the quality of the person, sometimes to the contract, and some-
times to other things. He, therefore, arrives at the conclusion,
that no universal rule can be laid down applicable to all classes of
cases! In another place Boullenois remarks, that’ the French au-
thors (nos auteurs) are generally of opinion, that the law of the
-place of the contract is to govern. Locus contractis regit actum.?
And he then proceeds to lay down certain rules on the subject,
which have been already cited, as the guiding principles. And
among them is the very important rule, applicable to the subject
before us, that where the law requires certain formalities which
are attached to the things themselves, the law of the situs or situ-
-ation is to govern.4
» § 872d. Mr. Burge, after suggesting, that there are three species
of solemnities, which he enumerates, adds: “‘ A further distinction
may be made between those solemnities, which relate to contracts
and instruments for the transfer of real property, and those, by
which it is actually transferred. With respect to the first, those
are to be followed, which prevail in the place, where those contracts
-are made, or those instruments executed; but with regard to the
actual transfer of such property, those are to be observed, which
are prescribed by the law of the place, where it is situated. Thus,
a contract to sell or mortgage real property will be valid, if the
‘1 1 Boullenois, Observ. 23, p. 464, 465, 466 ; 2 Boullenois, Observ. 46, p. 445.
1 2 Boullenois, Observ. 46, 456.
_* Ante, § 240.
* 2 Boullenois, Observ. 46, p. 467; ante, § 240.
504 CONFLICT OF LAWS. [cH. vin.

solemnities are observed, which are required by the law of the
place, where the contract is made, and will be the foundation of a
personal action against the party to that contract, to compel the
transport or mortgage of such property, but no transport or mort-
gage will be complete, nor will the dominium in the property
have been transferred or acquired, unless those solemnities are ob-
served, which are required by the law of the place, where it is sit-
uated.” 1 Again he adds in another place: “In considering the
law, by which the transfer of immovable property is governed, a
distinction should be made between the contract to transfer, and
. the actual transfer of the dominium. There may be cases, in which
the law of the domicil, or that of the place of the contract, will
prevail, notwithstanding it may be opposed to that of the situs,
whilst, in other cases, the law of the situs will prevent the contract
taking effect. Thus, instances are cited by jurists, where the law
of the domicil incapacitates the party from contracting; but the
law of the situs authorizes the alienation of his immovables. Thus,
by the law of Ghent, persons were minors until they had attained
the age of twenty-five years; but in Hainault, a person of the age
of twenty might alienate his fief situated in that country. An in-
habitant of Ghent contracts to sell a fief in Hainault, of which he
was the owner. The contract, in the opinion of Burgundus, would
create no obligation on him to complete this alienation. Ut puta,
civis Gandensis etate minor, tamen vigesimum egressus annum,
Hamnonica feuda sine auctoritate tutoris vendidit ; procul dubio in
ejusmodi actu nihil agi existimandum est, et inutilem omnino con-
trahi obligationem; quia Gandavi, qui aliter emancipati non sunt,
ante vigesimum quintum annum rebus suis intervenire prohibentur.
But, if the alienation were actually made, the same jurist con-
siders, that it would be valid: Si tamen ejusmodi feudi mancipa-
tionem fecerit venditor, tutum esse emptorem, et quod actum erit
valere quotidiand accipimus experientid, quando hec sit @etas et
competens, que in Hannonicorum feudorum alienatione requiritur.
Nec enim consuetudo Gandensis potest tollere libertatem mancipa-
tionis, quia res alienas legibus suis alligare non potest; hoc enim
jus dicere extra territorium. A decision is reported by Stockman,
in which the same doctrine was held. T. being of the age of
twenty, and married, was according to the law of his domicil so

* 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 1, p- 24; 2 Burge, Comm. ,
on Col. and For. Law, Pt. 2, ch. 9, p. 844, 845.
§ 872d, 372 ¢.] FOREIGN CONTRACTS. ‘ 505

far emancipated, as to be capable of administering, but not of alien-
ating his estate. He alienated a property situated in Louvain,
where the effect of his marriage gave him the full capacity of
majority. An action was brought by his heir to recover back the
purchase-money, on the ground, that T. was incompetent by the
law of his domicil to alienate his property, and that this law ex-
tended to, and prevented the disposition by him of his property in
Louvain. But the purchaser insisted, and the court held, that
the validity of the alienation must be decided according to the law
of Louvain, artd dismissed the action. It follows from this doc-
trine, that if the person, competent by the law of his domicil,
should contract to make an alienation of property situated in a
country, where he was incompetent to make it, his contract could
not be enforced, although he might be answerable in damages to
the person with whom he had contracted. On the other hand, if
he were incompetent by the law of his domicil to contract, but
competent to alienate by the lex loci rei site, and an alienation
was actually made by him, it would not be rescinded on the ground
that he was incompetent by the law of his domicil to contract. In
the cases put by Burgundus, and reported by Stockman, it will be
perceived, that the alienation was complete. It does not follow,
that if the vendor had refused to perform his contract, the forum
of the rei site would have enforced it. The doctrine of Rodenburg
is, that the contract is a nullity, and that effect cannot be given to
it‘in any court to compel its performance by the delivery of the
‘property. Wesel, who concurs with Rodenburg, treats the de-
livery or mancipatio as the simplex implementum of the contract ;
and, as it is required for the validity of a sale, that there should
have been a preceding contract, he urges: Cum ergo totus vendi-
tionis, contractus ob defectum etatis sit irritus, nec sit quod manct-
patione solemni impleri possit, utique nuda simplexque fundi man-
cipatio omnino nihil operatur, cessante causé ad mancipandum

“idoned.” 1
- § 872 e. And, again, he says: “So, if those solemnities, which
the lex loci contractés requires, have been observed, and the con-
tract according to that law is valid and obligatory, it will be valid
‘verywhere else. But the latter proposition is subject to the quali-
fication, that it does not affect immovable property, subject to a
* 3 Burge, Comm. on Col. and Foreign Law, Pt. 2, ch. 20, p. 844 to 846; Id.

Pp. 867 to 870.
CONFL. 43
506 CONFLICT OF LAWS. (cH. vurt.

law in the country of its situs, which annuls a contract, because it
has not been entered into with the solemnities which it requires,
If the disposition of the law does not annul the contract on ac-
count of its non-observance of the solemnities, which are prescribed,
but gives to it a degree of authenticity or credit, which it will want,
if they are not observed, or if, in other words, its effect is either to
dispense with a more formal proof of the instrument, if it bears on
it evidence of their observance, or if in consequence of the non-
observance it attaches a presumption against the execution of the
instrument, and therefore requires from the parties*a greater bur-
den of proof, such solemnities are to be classed amongst the proofs
in the cause, which are governed neither by the lex loci contractis,
nor by that of the situs, but by that of the forum. This question,
in the opinion of Paul Voet, regards non tam de solemnibus, quam
probandi efficacid ; que licet in uno loco sufficiens, non tamen

-ubique locorum ; quod judex unius territorit nequeat vires tribuere:
instrumento, ut alibi quid operetur.”’+ There are other jurists who
maintain the same distinction?

* 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 867, 868. See also 3
Burge, Comm. Pt. 2, ch. 20, p. 751, 752.

* P. Voet, ad Statut. § 4, ch. 2, n. 15, 16, p. 142, edit. 1661; Ersk. Inst. B. 3,
tit. 2, § 40. — Mr. Burge adds on this point: “ When the question regards the
property which the law allows to be alienated, or the persons to whom, or the
purposes for which its alienation may be made, it can be determined only by the
law of the situs. The Statutes of Mortmain, the law of death-bed, the restriction
of gifts inter conjuges, are strictly real laws to which the parties to the contract
must conform, although no such laws exist in the place of their domicil, or in that
of the contract. In these instances the law of the situs is prohibitory, and im-
presses on the property a quality excluding it from the alienation. A contract,
therefore, to make such an alienation as would, in any of these respects, contra-
vene the law of the situs, would. be wholly ineffectual. But when the contract
does not expressly, nor by necessary implication, contravene it, but on the con-
trary, may be carried into effect consistently with, or by means of its provisions,
although the contract itself may not give a title, yet it will be the foundation of
an action by the one to compel the other to complete it in that manner, which the
law of the situs requires in order to give him that title. The observation of Du
Moulin, in commenting on an article of the Coutume of Auvergne, illustrates this
distinction. By that article all contracts or conventions respecting the succession
had the effect of vesting the seizin in the person, in whose favor they were made.
This great jurist, whilst he thus limits its operation, de pradiis sitis sub hic con-
suetudine, et non extra ejus territorium, at the same time adds, Valet quidem
pactio ubique, sed translatio possessionis, que sit in vim consuetudinis, non valet
nisi intra ejus territorium. The deed, by which parties in England convey an
estate in British Guiana, has no effect as a transport of it, but it operates as a
§ 872e-3878.] FOREIGN CONTRACTS. 507

'§ 372 f. That there may be some ground for such a distinction
as is above stated, may well be admitted. But that the rule gen-
erally prevails in all nations may well be doubted. Thus, it seems
very clear that a contract, made in a foreign country, for the sale
of lands situate in England, Scotland or America, would not be
held a binding contract in either of those countries, to be enforced
in their courts in personam, or in rem, unless the contract was in
conformity to the forms prescribed by those countries! At the
same time, it is quite possible, that the same contract might be en-
forced in the country where it was made, if it should conform to
the law of that country touching real property.2 But, after all,
looking to the great diversity of views of foreign jurists, there is
much reason to be satisfied with the general rule of the common
law on this whole subject, that is to say, that in respect to mov-
ables, the law of the place where the contract is made, will, with
few exceptions, be allowed to govern the forms and solemnities
thereof ;° but as to immovables, no contract is obligatory or bind-
ing unless the contract is made with the forms and solemnities re-

"quired by the local law where they are contracted (lex sitiés).*

§ 373. But, whatever may be the true rule in casés where the
law of the situs does not prohibit the contract, as, for instance, a
contract for the sale of land, it is very clear that, if prohibited
there, it is everywhere invalid to all intents and purposes. So the
doctrine is laid down by Rodenburg. After remarking that if a

contract of transport, and enables the purchaser to compel the vendor to com-
plete the transport in the manner prescribed by the law of that settlement.
Erskine has thus stated the doctrine of the law of Scotland on this subject. All
personal obligations or contracts entered into according to the law of the place,
where they are signed, or secundum legem domicilii, vel loci contractus, are
deemed as effectual, when they come to receive execution in Scotland, as if they
had been perfected in the Scottish form. And this holds even in such obligations
as bind the grantor to convey subjects within Scotland; for where one becomes
bound by a lawful obligation, he cannot cease to be bound by changing places.
An English deed, if so executed in point of form as validly to carry Scots heri-
tage, will be given effect to, in regard to such heritage, agreeably to the law of
Scotland, notwithstanding the same deed would, by the English law, under
similar circumstances, be unavailable in respect of heritage situate in England.”
2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 846 to p. 848; Id. p. 864,
865.

1 Ante, § 363, 364, 365.

4 Ante, § 76.

® Ante, § 362, 364; post, § 379, 383, 384.

* Ante, § 364 to 367, § 382, 383.
508 CONFLICT OF LAWS. [cH. VL

contract is made, that the dotal rights shall be according to the
custom of another place than that of the domicil of the husband,
it will be good, if there is no local law of either place which pro-
hibits it; he adds, that the contrary, if the contract is opposed to
the local law, is true red site. Contra, si per leges loci, ubi bona
constituta sunt, limitetur illud rerum immobilium doarium, &e.;
eo quod nemini liceat privaté cautione refragari legit publice nega-
tive aut prohibitorig.. Boullenois also lays down the same rule
among his general maxims: Une convention, toute légitime qu'elle
soit en elle-meme, n'a pas son exécution sur les biens, lorsqw’tls sont
situés en coutumes prohibitives de la convention.2. Mr. Burge also
lays down among his general principles the following rule. “In
a conflict between a personal law of the domicil and a real law,
either of the domicil or of any other place, the real law prevails
over the personal law. Thus, a person who has attained his ma-
jority, has, as an incident to that status, the power of disposing by
donation inter vivos of everything he possessed, may, by the real

statute of the place in which his property is situated, be restrained ‘~

from giving the whole, or from giving it, except to particular per-
sons.”’

[* § 873 a. In a very late case* questions affecting the title of
property, with reference to the laws of different countries, are very
extensively discussed by a very learned and experienced judge,
Vice-Chancellor Wood. The able judgment here pronounced em-
braced the following propositions: (1.) It is established as a gen-
eral principle, that a legal title duly acquired in any one country,
is a good title all the world over. Duly to acquire a legal title to

* Rodenburg, De Div. Stat. tit. 8, ch. 4, n. 1, 2; 2 Boullenois, Observ. 42, p.
401, 402; Id. Appx. p. 79, 80. , ;

* 1 Boullenois, Prine. Gén. 41, p. 9,103; ante, § 262.

° 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 1, p. 28, § 20; Id. p. 26,
§ 8,9. It may be remarked, that some of the general principles laid down by:
Mr. Burge in the chapter here cited, which he says “ may be adopted,” admit of’
grave question, and are not supported by thé common law.

[** Simpson v. Fogo, 9 Jur. N.S. 403 (1868). The same rule is fully confirmed
in Cammell v. Sewell, 5 H. & N. 728; S.C. 6 Jur. N.S. 918. This was a sale by
the master of a ship according to the law of the place where made, but not ac-
cording to the law of the country where the cargo, which was the subject of sale,
was owned, the ship having been crowded into the ports of the country where
the sale was made, by stress of weather; the master having by the law of that
place power to make a valid sale, but not by the law of England to which the
cargo was consigned.
§873 - 878 c.] FOREIGN CONTRACTS. 509

real estate, such title must be according to the lex loci rei site.
The due acquisition of a legal title to movables may give rise to
the question whether the lex loci contractdés, or the law of the
country wherein the parties may be domiciled, or even the lex loci
rei site, shall prevail. But where all these circumstances are com-
bined in the acquisition of a title to movables, such title is beyond
doubt good, all the world over. (2.) The precise point in judg-
ment is thus stated. A ship, the property of British subjects, was
duly mortgaged in Great Britain to other British subjects, and
being in the mortgagor’s possession proceeded to New Orleans.
While there it was attached by creditors of the mortgagors, resi-
dent in New Orleans, and after due intervention and hearing of
the mortgagees, before the courts of Louisiana, sold under process
of the court to satisfy the attaching creditors, to a British subject,
who had notice of the mortgagees intervention. In a bill by the
mortgagees against the purchaser, it was held that the sale was
subject to the right of the mortgagees.

§ 873 b. In a recent case before Sir John Romilly at the Rolls,
it was held, that a contract negotiated by way of correspondence,
between shee Englishmen, two of whom were resident in England
and the third residing in Chili, but not having acquired a domicil
there, concerning real estate in that country, is governed by
English law, and is therefore cognizable by the courts of that coun-
try, although it has been adjudicated by the courts of Chili1 It
would seem that the doctrines here advanced in regard to the judg-
ments in foreign courts upon contracts affecting real estate there
are scarcely maintainable upon the present recognized rules of law
in regard to the binding force and effect of such judgments.”

§ 878 c. In the late case of Scott v. Pilkington,’ it was deter-
mined that where the defendant, domiciled in England and having
his place of business there, gave a letter of credit to parties in New
York, authorizing them to draw bills of exchange on his house in
Liverpool, such letter being delivered to the defendant in New
York and intended to be exhibited to purchasers of such bills,
as authority for drawing the same, the claim of a drawee of such
bills upon the defendant for non-acceptance of the same, was a
contract subject to the law of New York as to its validity, force,

’ Cood v. Cood, 9 Jur. N. 8S. 1835.

* Post, tit. Foreign Judgments, § 618 a, et. seq.

* 8 Jur. N. S, 557.
43 *
510 CONFLICT OF LAWS. [cu. vim.

and construction, and not to be judged by the law of England, in
any respect.

§ 373 d. And where in such case an action had been brought.in
the courts of New York-and the defendants appearing by attorney,
it had been adjudged, that by the law of that state the defendant
was liable, and judgment had been rendered thereon against him,
such judgment was. conclusive as to the matter, although if the
contract had been subject to the English law and the New York
court had mistaken it, the judgment would not have concluded an
English court.

§ 373 e. But in order to have a foreign judgment operate con-
clusively upon any question, it should appear that it has that oper-
ation in the country where the same is.rendered.! This will, no
doubt, ordinarily be presumed, unless the contrary appear. But
where the same is pleaded, presumptions and intendments being
taken rather against, than in favor of the averments of the plea, it
is required that it should be specially alleged that its effect is con-
clusive, by the law of the place where rendered, in order to give
it that effect, in an English court.

§ 373 f. The rule that foreign laws, which are repugnant to the
fundamental principles of the lex fori, or to religion, or morality,
cannot claim adoption under the general comity of nations, in the
administration of private international jurisprudence, has lately
received formal recognition in the House of Lords.2 It is here
said, that if the adoption of the law of the domicil would occasion
a prejudice to the rights of other states and their citizens, or if it
would contravene a prohibitory enactment, the. comity of nations
would not require its adoption.

§ 873 g. Some rather interesting questions have lately arisen in
the English courts, in regard to the effect of the laws of one coun-
try in controlling the rights and duties of foreign shipmasters and
owners within the waters of such country, and their effect also
upon foreign ships, and those who control them, after leaving the
waters of the particular country, and coming upon the common
highway of the ocean. It was held that the provisions of the Eng-
lish Merchant Shipping Act of 1854,3 limiting the liability of the

’ Frayes v. Worms, 10 C. B. N. S. 149,

* Fenton v. Livingstone, 3 Macq. H. Lds. Cas. 497,

° 17 & 18 Vict. Ch. 104. In Cope v. Doherty, it was decided that this statute

does not apply to a collision on the high seas between foreign ships, the owners
of which are foreigners. 2 De Gex & J. 614; 4 Jur. N.S. 699..
§ 878 c- 3873 h.] FOREIGN CONTRACTS. 511

owners of sea-going ships, apply in the case of damage done by a
British ship to a foreign vessel, when such damage occurs within
three miles of the coast of that country. But it would seem that
such provisions would not apply, in the case of damage done by a
British ship to a foreign vessel, where such damage occurred on
the high seas, beyond the jurisdictional limit.1 The statute in
question limits the liability of the owner of a sea-going ship, where
it causes damage-to another ship, to the value of the ship‘so caus-
ing damage, and is general in its provisions. It is natural and
right that it should have its full operation in all cases occurring
within the limits of the binding obligation of the statute, and that
is throughout the island of Great Britain, which includes three
miles of the surrounding sea-coast, which is regarded as much
within the range of the kingdom as the land itself. But beyond
that limit, anywhere upon the high seas, British statutes can have
no legitimate operation ; except under peculiar circumstances, their
general force and operation ceasing at that limit.

§ 3783 h. But the laws of all countries are operative on board
their own ships, while on the high seas as much as in their own
waters, or while moored at the dock. It was accordingly held
where the Chilian government had passed sentence of banishment
upon certain of its subjects, although it might be entirely legal for
‘the agents of the government, in Chilian ships, to transport such
convicts to any place beyond their gwa jurisdiction and within the
jurisdictional limits of any other country, it was not competent for
the master of an English merchant-vessel being.in the territorial
waters of Chili, near Valparaiso, to contract with the Chilian gov-
ernment, to transport such banished persons to Liverpool in Eng-
land. And that where, in pursuance of such a contract, the de-
fendant took such convicts on board his ship and transported them
to Liverpool, that he could not justify his acts.after.he passed the
limits of Chilian waters, and came upon the high seas, but that in
respect of such portion of the transportation he was liable to indict-
ment and conviction for false imprisonment.? The language of the
Lord Chief Justice Erle of the Common Pleas, in giving judgment
was: “As the contract of the defendant was to receive the prosecu-

1 General Iron Screw Collier Company v. Schurmanns, 1 Johnson & H. 180;
8. C. 6 Jur. N.S. 883.

2 Reg v. Lesley, 6 Jur. N. S. 202; 1 Bell C. C. 220; 8 Cox C. C. 269, before
the Court of Criminal Appeal, in Crown Cases Reserved.]
512 CONFLICT OF LAWS. [cu. Ix.

‘tor and the others as prisoners on board his ship, and to take them,
without their consent, over the seas to England, although he was
justified in first receiving them in Chili, yet that justification ceased
when he passed the line of Chilian jurisdiction, and after that it
was a wrong, which was intentionally planned and executed, in

pursuance of the contract, amounting in law toa false imprison-

ment. It may be that transportation to England is lawful by the

law of Chili, and that a Chilian ship might so lawfully transport

Chilian subjects; but for an English ship the laws of Chili out of
the state are powerless, and the lawfulness of the act must be tried

by English law.’ This seems to us a manly and wise discrimin-

ation, as to the limits within which the subjects of free countries

may be allowed to aid in the execution of the arbitrary decrees of
despotic states; and one which will do credit to the British name,

and to the English courts, throughout the world, and in all future

time, so long as good law and sound sense shall be recognized and

respected. ]

CHAPTER IX.

PERSONAL PROPERTY.

[*§ 374. The chapter embraces persoffal or movable property.
§ 375. Definitions of the civil and continental law.
§ 376. The disposition of movables governed by law of domicil of owner.
§ 377-878 a. Different writers explain this on different grounds.
§ 879. It is a rule of policy and convenience mainly.
— § 380, The English and American courts maintain the rule with great uniformity.
§ 881. The foreign jurists, generally, adopt the same rule.
~~ § 3882. This rule does not extend to fixtures which have become attached to the realty.
§ 383. Contracts affecting public and local stocks governed by local law.
§ 883 a. Mortgage transfers governed by law where made.
§ 383 b. Negotiable bonds governed by law where become operative.
“~~ § 384. Transfers, inter vivos, according to the law ret site, good.
§ 385. But are they good if not so made?
§ 386. Matters affecting local policy must be complied with.
§ 887-389. Discussion of principles involved in this last inquiry.
§ 390. Queries as to extent of the exception just stated.
~  § 891. Does not operate upon ships at sea.
§ 392. In equal right the law of red site prevails.
§ 393. Further illustration of the point.
§ 394. Still further illustrated by the case of a bill of lading.
§ 395-397, Effect of assignments of choses in action without notice to the debtor.
§ 398. The English law regards it as valid,
§ 8734 -3875.] PERSONAL PROPERTY. | 513

_ $899. Assignments, according to the law of creditor’s domicil, good.
_§ 399 a, The subject further illustrated by supposing difficult cases.
Ԥ400. Where the attachment is first in time it will prevail.
§ 400 a. There are some exceptions to this rule.
.§400 &. Foreign assignment good against local attachment.
§401. Special liens exist by the law of some states upon goods sold, &e.
4 402. Such liens generally recognized in other states.
§ 402 a. This questioned by some writers, except as to maritime liens.
§-403. The operation of bankrupt and insolvent laws of foreign states.
§ 404, 405. It would seem, such assignments should operate upon all personal property.
$406. This rule generally accepted in commercial states.
'§ 407. The rule has obtained extensive countenance in the English courts.
§ 408. So decided in the House of Lords. :
§ 410. The American rule seems to be the other way. How vindicated.
$411. It is there admitted voluntary assignments operate everywhere.
§ 412. Assignees in bankruptcy must pursue the local law.
'§ 413. Implied assent of bankrupt only extends to state where assignment made.
$414. Involuntary transfers, by operation of law, should only operate within the state.
§ 415. This was the English rule at the date of our Revolution.
.§ 416. General assignments void by state law will be void wherever made.
“4417. The result of the English and continental doctrine.
4418. The effect of the voluntary assignment of the debtor in confirmation of the
legal assignment.
§419. The effect of an assignment in bankruptcy as against the bankrupt.
§ 420. Such an assignment would seem good against him.
§ 421. Chief Justice Marshall’s intimation on the point.
§ 422. Such assignments do not operate upon foreign partnerships.
§ 423. Marriage operates on assignment of the personalty of the wife.
§423 a, The application oftforegoing rules to personal and real estate.
§ 423 6. Priorities generally governed by the law of the forum.
§ 423 c. Hypothecations by law of domicil and of ret site.
§ 428 d. Vendor’s lien governed by lex loci contractus.
§ 423 e. The doctrines of Bell’s Commentaries at length, on the point.
§423 7. The effect of such assignments in states requiring different rules.
§ 4289. Collisions of ships of different countries where laws differ.
§ 423 h. Torts committed where no law prevails.]

,

§ 874. We next come to the consideration of the operation of
foreign law in relation to personal, real, and mixed property, ac-
cording to the known divisions of the common law, or to movable
and immovable property, according to the known divisions of the
civil law and continental jurisprudence. For all the purposes of
the present commentaries it will be sufficient to treat the subject
under the heads of personal or movable property, and real or im-
movable property, since the class of mixed property appertains to
the latter.

§ 875. We have already had occasion to state, that in the civil

* See on the subject of this chapter, 3 Burge, Comm. on Col. and For. Law,
Pt, 2, ch. 20, p. 749 to p. 780.
514 CONFLICT OF LAWS. [cH. Ix.

law the term bona includes all sorts of property, movable and im-
movable; as the corresponding word biens, in French, also does.!
But there are many cases in which a broad distinction is taken by
foreign jurists between movable property and immovable property,
as to the operation of foreign law. We have also had occasion to
explain the general distinction between personal and real laws re-
spectively, and mixed laws, in the sense in which the terms are
used in continental jurisprudence; personal being those which
have principally persons for their objects, and only treating of
property incidentally ; real, being those which have principally
property for their object, and speaking of persons only in relation

to property ; and mixed, being those which concern both persons’ °

and property.?

§ 876. According to this distribution, all laws respecting prop-
erty, whether it be movable or immovable, would fall under the
denomination of real laws; and, of course, upon the principles of
the leading foreign jurists, would seem to be limited in their opera-
tion to the territory where the property is situate. This, how-
ever, is a conclusion which, upon a larger examination, will be
found to be erroneous, the general doctrine held by nearly all for-
eign jurists being, that the right and disposition of movables is to
be governed by the law of the domicil of the owner, and not by the
law of their local situation.‘ f

§ 877. The grounds upon which this doctrine, as to movables,
is supported, are differently stated by different jurists, but the dif-

? See Liverm. Dissert. p. 81, § 106; 1 Boullenois, Observ. 2, p. 28; Id. Observ.
6, p. 127; Rodenburg, De Divers. Stat. tit. 1, ch. 2; 2 Boullenois, Appx. p. 6;
Merlin, Répert. Biens, § 1.

* Ante, §12 to 16; 1 Boullenois, Prine. Gén. p. 4 top. 9; Id. Observ. 2, p.
29; Ib. Observ. 6, p. 122 t0 127; P. Voet, De Statut. § 4, ch. 2, n. 2, p. 117,
edit. 1715; Id. p. 130, 131, edit. 1661.

* Thus Muhlenbruch (Doctrina Pandectarum, Vol. 1, lib. 1, § 72, p- 167) lays
down the following rule. Jura, que proxime rebus sunt scripta, velut que ad
dominii causam spectant, vel ad vectigalium tributorumque onus, vel ad pignorum
in judicati executionem et capiendorum et distrahendorum, tum etiam rerum apud
judicem petendarum persequendarumve rationem, et que sunt reliqua ex hoc
genere, zstimantur ex legibus ejus civitatis, ubi site sunt res, de quibus agitur, at-
que collocatz, nullo rerum immobilium atque mobilium habito discrimine.

* See ante, § 362; post, § 877 to 380. See Felix, Conflit des Lois, Revue
Etrang. et Frang. Tom. 7, 1840, p. 216, 217,218, 221 to 227. See Cockerell ».
Dickens, 3 Moore, Priv. Coun. R. 98, 182; Thomson v. Her Majesty’s Advocate
Gen, 13 Sim. R. 153, 160: In re Bruce, 2 Cromp. & Jerv. 436.
§ 875 -877.] PERSONAL PROPERTY. 515
ferences are more nominal than real. Some of them are of opinion
that all laws which regard movables are real; but at the same
time they maintain that, by a fiction of law, all movables are sup-
posed to be in the place of the domicil of the owner, a quo legem
situmque accipiunt. Others are of opinion that such laws are per-
sonal, because movables have, in contemplation of law no situs,
and are attached to the person of the owner, wherever he is; and,

being so adherent to his person, they are governed by the same
laws which govern his person; that is, by the law of the place of
his domicil.1 The former opinion is maintained by Paul Voet,
Rodenburg, and Boullenois; and the latter by D’Argentré, Bur-
gundus, Hertius, and Bouhier.2 Paul Voet says: Verum mobdilia
ibi censeantur esse, secundum juris intellectum, ubi is, cujus ea
sunt, sedem atque larem suarum fortunarum collocavit2 So Roden-
burg: Mobilia quippe illa non ideo subjacent statuto (reali,) quod
personale illud sit; sed quod mobilia, certo ac fixo situ carentia, ibi
quemque situm velle habere, ac existere intelligimus, ubi larem ac
fortunarum fixit summam, &c. In domicilii loco mobilia intelligan-
tur existere.* Again, in another place he says: Et guidem, de mo-
bilibus si queratur, cum semper ibi esse existimentur, ubi creditor
Soret domicilium, cujus ossibus vage he res intelliguntur adherere®

* «Mobilia” (says John Voet) “ vero ex lege domicilii ipsius defuncti, vel quia
semper domino presentia esse finguntur, vel ex comitate passim usu inter gentes
recepta.” J. Voet, ad Pand. Lib. 38, tit. 17, § 34, P 596. And in another place
he adds: “Sed considerandum, quadam. fictione juris, seu malis, preesumptione, °
hane de mobilibus determinationem Conceptam niti; cum enim certo stabilique
hee (mobilia) situ careant, nec certo sint alligata loco; sed ad arbitrium domini
undiquaque in domicilii locum revocari facile ac reduci possint, et maximum dom-
ino plerumque commodum adferre soleant, cum ei sunt preesentia ; visum fuit
hance inde conjecturam surgere, quod dominus velle censeatur, ut illuc omnia sua
sint mobilia, aut saltem esse intelligantur, ubi fortunarum suarum larem summam-
que constituit ; id est, in loco domicilii.” J. Voet. ad Pand. Lib. 1, tit. 4, Pt. 2,
§ 11, p.44. Hertius says: “ Nam mobiles ex conditione persone legem accipiunt,
nec loco continentur.” 1 Hertii, Opera, De Collis. Leg. § 4, n. 6, p. 122, 128,
edit. 1737; Id. p. 174, edit. 1716; Felix, Conflit des Lois, Revue Etrang. et
Frang. 1840, Tom. 7, p. 221, 222; ante, § 362.

* Liverm. Dissert. p. 128, 129; 1 Boullenois, Observ. 19, p. 338 to 340; 1
Hertii, Opera, De Collis. Leg. § 4, ch. 2, n. 6, p. 122, 128, edit. 1737; Id. p.174,
edit. 1716,

* P, Voet, de Stat. § 4, ch. 2, n. 2, p. 118, edit. 1715; Id. § 9, ch. 1, § 8, p.
255 ; Id. p. 132, 309, edit. 1661.

- Bodenbars De Divers. Stat. tit. 1, ch. 2, sub finem; 2 Boullenois, Appx. p.
‘6; 1 Boullenois, Observ. 2, p. 25, 28; Id. Observ. 6, p. 140.

* Rodenburg, De Divers. Stat. tit. 2, ch. 5, § 16; 2 Boullenois, Appx. 48.
516 CONFLICT OF LAWS. [H. Ix.

Boullenois affirms the same doctrine; and gives this reason for it,
that, as movables have no such fixed and perpetual situs, as lands
have, it is necessary that their situs should depend upon the pleas-
ure of the owner, and that they have the very sitws which he wishes,
when they have that of his own domicil.?

§ 878. On the other hand, D’Argentré says : De mobilibus alia
censura est; quoniam per omnia ex conditione personarum legem
accipiunt, et situm habere negantur, nisi affixa et coherentia, nec
loco contineri dicuntur propter habilitatem motionis et translationis.
Quare statutum de bonis mobilibus vere personale est, et loco domi-
cilit judicium sumit ; et quodcumque judex domicilii de eo statutt,
ubique locum obtinet. Observatio indubita est, mobilia personam
sequi, nec situ judicari, aut a locis judiciwm accipere.? Bouhier is
quite as explicit. As movables (says he) have'no fixed situs, and
are easily transported from one place to another, according to the
pleasure of the owner, therefore it is supposed, by a sort of fiction,
that they adhere to his person ; and from hence comes the maxim
in our customary law, that movables follow the body or person of
the owner; meubles suivent le corps, ou la personne, — mobilia se-
quuntur personam?

§ 878 a. Burgundus puts the doctrine in the strongest form.
Puto equidem (says he) mobilia sequi conditionem persone, id est,
si persona fuerit servituti obnoxia, bona quoque ejus mobilia libera
esse desinere, cum apud nos servitus majis sit bonorum, quam per-
sone. Ut puta, si quis natus in simili regione territorii Alostensis,
inde postea alio migraverit, atque decesserit, bona ejus mobilia
quocumque loco reperta, cedunt natalis soli Domino. Quia perinde
haberi debent, ac si per eventum nativitatis, aliene se potestati, ac
dominio defunctus subjecisset. Non aliter qudm mobilia clerict,
que et conditionem ejus sequuntur. Sed tamem, ut existimen, bona
moventia, et mobilia ita comitari personam, ut extra domicilium ejus

? Boullenois, Observ. 16, p. 223, 224; Id. Observ. 19, p. 338; Id. Prin. Gén.
33, p. 8; 3 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 20, p. 750, 751.

* D’Argentré, De Leg, Brit. Tom. 1, Des Donations, art. 218, Gloss, 6, n. 30,
p- 654; Liverm. Diss. § 213, p, 128, 129, 130; 1 Boullenojs, Observ. 19, p. 339.

* Bouhier, Cout. de Bourg. ch. 25, § 2, p.490; 1 Boullenois, Observ. 19, p-
338. — Les meubles (says Cochin) quelque sorte qu’ils soient, suivent le domicile.
Cochin, Guvres, Tom. 5, p. 85, 4to edit. ; 2 Henrys, @uvres, Lib. 4, ch. 6, Quest.
105, p. 612; Id. 720; ante, § 362; 3 Burge, Comm. on Col. and For. Law, Pt. 2,
ch. 20, p. 750, 751; Felix, Conflit des Lois, Revue Etrang. et Frang. Tom. 7,
§ 32, p. 221, 222.
§ 877+3879.] PERSONAL PROPERTY. 517

censeantur existere, adduct sane non possum. Quod neque rationi,
neque jurt scripto congruat, sicuti nec doctorum opinionibus, aut
forensi usu firmatur. Credo ego, mobilia comitari personam quam-
diu domicilium non habet. Quod utique procedere poterit, si quis
domictlio relicto naviget, vel iter faciat, querens quo se conferat,
atque ubi domicilium constituat.1 Hertius says: Nam mobiles ex
sonditione persone legem accipiunt, nec loco continentur?

§ 879. But, whether the one opinion or the other is adopted, it
has been truly remarked by Boullenois, that the same conclusion
is equally true, that movables follow the person.? The probability
is, that the doctrine itself had not its origin in any distinction be-
tween real laws, or personal laws, or in any fictitious annexation of
them to the person of the owner, or in their incapacity to have a
fixed situs; but in an enlarged policy, growing out of their transi-
tory nature and the general convenience of nations. If the law ret
site were generally to prevail in regard to movables, it would be
utterly impossible for the owner, in many cases, to know in what
mariner to dispose of them during his life, or te distribute them at
his death ; not only from the uncertainty of their situation in the
transit to and from different places, but from the impracticability
of knowing, with mitiute accuracy, the law of transfers inter vivos,
or of testamentary dispositions and successions in the different
countries in which they might happen to be. Any change of place
ata future time might defeat the best-considered will; and any
sale or donation might be rendered inoperative, from the ignorance
of the parties of the law of the actual situs at the time of their acts.
These would be serious evils, pervading the whole community, and
equally affecting the subjects and the interests of all civilized na-
tions. But in maritime nations, depending upon commerce for
their revenues, their power, ‘and their glory, the mischief would be
incalculable. A sense of general utility, therefore, must have first

- Suggested the doctrine ; and as soon as it was promulgated, it could

* Burgundus, Tract. 2, n. 20, p. 71, 72.

* 1 Hertii, Opera, De Collis. Leg. § 4, n. 6, p. 122, 128, edit. 1787; Id. p. 174,
edit. 1716; ante, § 362. See J. Voet, Coram, ad Pand. Vol. 2, Lib. 88, tit. 17,
n. 34, p. 596.

8] Boullenois, Observ. 19, p. 339. See also J. Voet, ad Pand. Lib. 38, tit. 17,
§ 34, p. 596; Holmes v. Remsen, 4 Jobns. Ch. R. 487; 1 Burge, Comm. on Col.
and For, Lani Pt. 1, ch. 1, p- 28, 29; Feelix, Conflit dea Lois, Revue Hiang: et
Frang. Tom. 7, 1840, p. 204, 205, 206.

CONFL, 44
518 CONFLICT OF LAWS. [CH. Ix.

not fail to recommend itself to all nations by its simplicity, its
convenience, and its enlarged policy.?
§ 880. But, be the origin of the doctrine what it may, it has

so general a sanction among all civilized nations, that it may now

be treated as a part of the jus gentium. Lord Loughborough has
stated it with great clearness and force in one of his most elaborate
judgments. “Itis a clear proposition,” (said he,) “ not only of
the law of England, but of every country in the world, where law
has the semblance of science, that personal property has no local-
ity. The meaning of that is, not that personal property has no
visible locality ; but that it is subject to that law which governs
the person of the owner; both with respect to the disposition of it,
and with respect to the transmission of it, either by succession, or
by the act of the party. It follows the law of the person. The
owner in any country may dispose of his personal property. If he
dies, it is not the law of the country, in which the property is, but
the law of the country of which he was a subject, that will regu-

» See Harvey v. Ricltards, 1 Mason, R. 412; ante, § 372a. Mr. Justice Bay-
ley, in delivering his opinion in the case of In re Ewin, 1 Cromp. & Jerv. 156,
said: “ Now what is the rule with respect to it? It is clear, from the authority
of Bruce v. Bruce, and the case of Somerville v. Somerville, that the rule is, that
personal property follows the person, and it is not, in any respect, to be regulated
by the situs; and if in any instance the situs has been adopted as the rule by
which the property is to be governed, and the lex loci rei sitee resorted to, it has
been improperly done. Wherever the domicil of the proprietor is, there the
property is to be considered as situate ; and, in the case of Somerville v. Somer-
ville, which was a case in which there was stock in ‘the funds of this country,
which were at least as far local as any of the stocks mentioned in this case are -
local, there was a question, whether the succession to that property should be
regulated by the English, or by the Scotch rules of succession. The Master of
the Rolls was of opinion, that the proper domicil of the party was in Scotland.
And having ascertained that, the conclusion which he drew was, that the prop-
erty in the English funds was to be regulated by the Scotch mode of succession ;
and if the executor had, as he no doubt would have, the power of reducing the
property into his own possession, and putting the amount into his own pocket, it
would be distributed by the law of the country in which the party was domiciled.
Personal property is always liable to be transferred, wherever it may happen to
be, by the act of the party to whom that property belongs; and there are au-
thorities that ascertain this point, which bears by analogy on this case, namely,
that if a trader in England becomes bankrupt, having that which is personal
property, debts, or other personal property, due to him abroad, the assignment
under the commission of bankruptcy operates upon the property and effectually

transfers it, at least against all those persons who owe obedience to these bank-
rupt laws, the subjects of this country.”
§ 879 -381.] PERSONAL PROPERTY. 519

late the succession.” 1 The same doctrine was recognized by Lord
Chief Justice Abbott on another important occasion. “+ Personal
property” (said he) ‘has no loéality. And even with respect to
that, it is not correct to say, that the law of England gives way to
the law of the foreign country; but, that it is part of the law of
England, that personal property should be distributed according
to the jus domicilii.”* The same doctrine has been constantly
maintained, both in England and America, with unbroken confi-
dence and general unanimity.3

§ 381. Foreign jurists are not less expressive in its favor.
Constat inter omnes (says Bretonnier) que les meubles suivent les
personnes, et se réglent suivant la coutume du domicile. And he
speaks but the common language of the continental jurists.5 Po-
thier, after remarking that movables have no locality, adds: “ All
things which have no locality, follow the person of the owner, and
are consequently governed by the law or the custom which governs
his person, that is to say, by that of the place of his domicil.” ®
Merlin adopts language equally general and exact. ‘ Movables”
(says he) “are governed by the law of the domicil of the owner,

7 Sill v. Worswick, 1 H. Black. 690 ; Hoffman v. Carow, 22 Wend. R. 285, 323.
See Thomson v. Advocate-General, 12 Clark & Finn. 1.

' * Doe d. Birtwhistle v. Vardill, 5 Barn. & Cresw. 438, 451, 452; S.C. 6 Bligh.
R. 32 to 88; 2 Clark & Finn. R. 571.

* The authorities on this point are very numerous. See Henry on Foreign
Law, p. 18, 14, 15; 4 Cowen, R. 517, note; 2 Kent, Comm. Lect. 36, p. 428, &c.,
3d edit. ; Id. p. 405; Kames on Equity, B. 3, ch. 8, § 3, 4; Ersk. Inst. B. 3, tit. 2,
§ 40, p. 515; Dwarris on Statutes, 649, 650; In re Ewing, 1 Tyrwhitt, R. 91; 1
Rose, Bank. Cas. 478; 5 Barn. and Cresw. 451, 452; 2 Bell, Comm. p. 2 to p. 10,
4th and 5th edit.; Pipon v. Pipon, Ambler, R. 25; Potter v. Brown, 5 East, R.
130; Holmes v. Remsen, 4 Johns. Ch. R. 460; Guier ». O’Daniel, 2 Binney, R.
349, note; Bruce v. Bruce, 2 Bos. & Pull. 229, note; Liverm. Diss. p. 128 to p.
132; De Sobrey v. De Laistre, 2 Harr. & Johns. R. 191, 224 ; Hunter v. Potts, 4
T. R. 182, 192; Phillips v. Hunter, 2 H. Black. 402, 405; Goodwin v. Jones, 3
Mass. R. 514, 517; Blake v. Williams, 6 Pick. R. 286, 314; 3 Burge, Comm. on
Col. and For. Law, Pt. 2, ch. 20, p. 749 to p. 753; French v. Hall, 9 N. Hamp.
R. 1373; Cockerell v. Dickens, 3 Moore, Priv. Coun. R. 98, 131, 132.

* 2 Henrys, Giuvrés, Lib. 4, Quest. 127, p. 720.

5 See 1 Boullenois, Observ. 18, p. 328; Observ. 19, p. 339, 340; Bouhier, ch.
22, p. 429, § 79, ch. 25, p.490, § 2; 5 Cochin, CEuvres, 85; Liverm. Diss. § 212 to
216, p. 129, 1830; Huberus, De Confl. Leg. Lib. 1, tit. 3, § 15. . See Felix, Con-
flit des Lois, Revue Etrang. et Frang. Tom. 7, 1840, § 82 to 35, p. 221 to p. 229,

* Pothier, Coutume d’Orléans, ch. 1, § 2, Tom. 10, p. 7, 4to edit. ; Id. Traité
des Choses, § 3, Tom. 8, p. 109, 4to edit.

a
520 CONFLICT OF LAWS. _[on. 1x,

wherever they may be situate; and this law of course changes
with his change of domicil.”} Bynkershoek asserts the principle
to be so well established that no one has dared to question it:
Adeo recepta hodie sententia est, ut nemo ausit contra hiscere?
Huberus says: Verwm in mobilibus nihil esse cause, cur aliud,
quam jus domicilii sequamur ; quia res mobiles non habent affec-
tionem versus territorium, sed ad personam patrisfamilias duntazat,
qui aliud, quam quod in loco domicilii obtinebat, voluisse obtinere
non potest So that there seems a general, although not an en-
tire harmony on this point between foreign jurists and domestic
jurists.‘ .

1 Merlin, Répert. Biens, § 1, n. 12; Id. Meubles, § 1; Id. Loi, § 6, n. 3.

* 2 Kent, Comm. Lect. 37, p. 429, 3d edit. ; Bynkershoek, Quest. Priv. Juris.
Lib. 1, cap. 16, p. 179, 180, edit, 1744. Bynkershoek, in the passage here referred
to, is speaking of the right of succession ; but his language has been thought : sus-
ceptible of a broader interpretation. See post, § 483.

% Huberus, P. 1, Lib. 83, Tom. 1, De Success. ab Intest. n. 21 (s).

4 See Felix, Conflit des Lois, Revue Etrang. et Franc. Tom. 7, 1840, § 32 to
§ 35, p. 221 to p. 229, See also Mublenbruch, Doctr. Pand. Tom. 1, Lib. 1, § 72,
78, p. 166 to p. 170, who seems ta make the law rei situs govern, in many cases,
as well with respect to movables as immovables. Jura, que proxime rebus sunt
scripta, vel quae ad dominii causam spectant, &c. &c., estimantur ex legibus ejus
Civitatis, ubi site res, de quibus agitur, atque walionatss, nullo rerum immobilium
atque nobilium habito discrimine. Id. § 72. Mr. Felix says on this subject:
“ Par la nature des choses, les meubles, soit, corporels, soit incorporels, n’ont pas,
& V’égal des immeubles, une assiette fixe dans l’endroit ou ils se trouvent de fait :
ils dépendent nécessairement de la personne de l’individu, & qui ils appartiennent,
et ils subissent la destination, qu'il leur donne. Chaque individu étant légalement
censé avoir réuni sa fortune au lieu de son domicile, c’est-& dire au siége principal
de ses affaires, on a toujours regardé en droit les meubles comme se trouvent au
lieu du domicile de celui, & qui ils appartiennent ; peu importe si, de fait, ils se
trouvent ou non au dit lieu. Par une fiction légale, on les considére comme sui-
vant la personne, et comme étant soumis 4 la méme loi, qui régit I’état et la capa-
cité de cette personne; et nous avons vu (supra n° 21) que cette loi est celle du
domicile (mobilia sequuntur personam; mobilia ossibus inherent.) En d’autres
termes, le statut personnel gouverné les meubles corporels ou incorporels. Ce
statut est a leur égard réel par suite de la fiction, qui les répute se trouver au
lieu régi par ce méme statut. Tel a toujours été le sentiment presque unanime
des auteurs et des cours de justice. Témoins Dumoulin, Chopin, Bretonnier,
D’Argentré, Brodeau, Lebrun, Poullain du Pare, Burgundus, Rodenburg, Abra-
ham 4 Wesel, Paul Voet, John Voet, Sandé, Christin, Gaill, Carpzov, Wernher,
Mevius, Franzke, Boullenois, Pothier, Struve, Leyser, Huber, Hert, Homel, Dana,
Gluck, Thibaut, Merlin, MM. Mittermaier, Hauss, Meier, Favard, Duranton,
Story, Wheaton, Rocea, « et Burge. Trois auteurs seulement, ne sont pas entidre-
ment d’aecord, en cette’ matiére, avec ceux que nous venons de citer’: ce sont
§ 381, 382.] PERSONAL PROPERTY. 521

»»§ 882. When, however, we speak of movables, as following the
person of the owner, and as governed by the law of his domicil;
we are to limit the doctrine to the cases in which they may be
properly said to retain their original and natural character. For
movables may become annexed to immovables, either by incorpo-
ration, or as incidents; and then they take the character of the
latter Thus in the language of the common law, movables, an-
nexed to the freehold, are deemed a part of the latter. Such are
the common cases of fixtures of personal property in houses, in
mills, and in other hereditaments, whether for use or for orna-
ment. In the law of foreign countries a similar distinction is rec-
ognized ; and wherever movables become thus fixed by operation
of law, or by the express determination of the owner, they are
deemed a part of the immovable property.2. John Voet ranks
them among immovables. Idemque statuendum in mobilibus, per
patrisfamilias destinationem perpetui usis gralid ad certum locum,
domum puta, vel fundum, delatis, ita ut perpetuo illic istius usts
causé mansura sint, etiamsi vel nunquam immobdilibus naturaliter
jungenda sint, vel ex destinatione jungenda, necdum tamen ince-
perint immobilibus juncta esse, modo ad ipsas edes JSundosve, qui-
bus jungenda sunt, delata fuerint2 Among the class of immova-
bles are also ranked (as we have seen) heritable bonds by the
Tittman, M. Muhlenbruch, et M. Eichhorn. Le premier, en soumettant leg
meubles & la méme loi, qui régit les immeubles, ne s’attache qu’s l'un des cas
exceptionnels, dont nous parlerons au n° 33 ci-aprés, sans examiner la régle elle-
méme. ~M. Muhlenbruch repousse toute distinction entre les meubles et les im-.
meubles par rapport & la loi, qui les régit, par le seul motif, que l’opinion contraire
établirait une différence entre la succession dans les immeubles et celle dans les
meubles du méme individu; nous démonterons au n° ci-aprés la nécessité de re-
connaitre cette différence. M. Hichhorn, en rejetant Papplication de la loi de la
situation des meubles, n’admet cependant la régle, qu’avec la modification, que,
selon les circonstances, il faudra appliquer la loi du lieu ou la cause se plaidera.:
il cite eomme exemple le cas ou le défendeur en revendication invoque la maxime,
qu’en fait de meubles possession vaux titre.” Felix, Conflit des Lois, Revue
Etrang. et Frang. 1840, Tom. 7, § 32, p. 222 to p. 224.

7 Ante, § 371; post, § 447.

* Pothier, Traité des Choses, § 1; Id. Coutume d’Orléans, ch. 3, art. 46, 47,
48; Merlin, Répert. Biens. § 1, n. 13, § 2, n.1; Id. Meubles, § 2, 3; 1 Bell,
Chen § 660, p. 648 to p. 652, 4th edit.; 2 Bell, Comm. p. 2, 3, 4, 4th edit. ; 1
Bell, Comm. p. 752 to p. 755, and 2 Bell, Comm. p. 1 to p. 10; 1 Boullenois,

Observ. 19, p. 340, 341; 1 Kames on Equity, B. 3, ch. 8, § 3; Ersk, Inst. B. 3,
tit. 9, § 4,

: J. Voet, ad Pand. Lib. 1, tit. 8, n. 14, p. 67.
44%
522 CONFLICT OF LAWS. [cH. 1x.

Scottish law, and ground-rents, and other rents charged on
lands.

§ 383. It follows, as a natural consequence of the tule which
we have been considering, that the laws of the owner’s domicil
should in all cases determine the validity of every transfer, aliena-
tion, or disposition made by the owner, whether it be inter vivos,
or be post mortem2 And this is regularly true, unless there is
some positive or customary law of the country where they are sit-
uate, providing for special cases, (as is sometimes done,) or from
the nature of the particular property, it has a necessarily implied
locality.2 Lord Mansfield has mentioned, as among the latter
class, contracts respecting the public funds or stocks, the local na-
ture of which requires them to be carried into execution according
to the local law. The same rule may properly apply to all other
local stock or funds, although of a personal nature, or so made by
the local Jaw, such as bank stock, insurance stock, turnpike, canal,
and bridge shares, and other incorporeal property, owing its. exist-
ence to, or regulated by, peculiar local laws.® No positive transfer

11 Bell, Comm. § 660, p. 648 to p. 652; 2 Bell, Comm. p. 2, 3, 4, 4th edit. ;
Ersk. Inst. B. 2, ch. 2, § 9 to 20; Pothier, Traité des. Choses, § 3; ante, § 366,
367, and note ; post, § 447.

* Livermore, Diss. § 215 to § 220, p.130 to p. 137; French v, Hall, 9 N. Hamp.
R. 137; Sessions v. Little, 9 N: Hamp. R. 271; Rue High, Appellant, 2 Doug.
Mich. 522.

3 Mr. Chief Justice Tilghman on one occasion said: ‘“ The proposition ” (that
personal property has no locality, but is transferred according to the law of the
country in which the owner is domiciled) “is true in general, but not to its ut-
most extent, nor without several exceptions. In one sense personal property has
locality, that is to say, if tangible, it has a place in which it is situated, and if in-
visible, (consisting of debts,) it may be said to be in the place where the debtor
resides ; and of these circumstances the most liberal nations have taken advantage,
by making such property subject to regulations which suit their own convenience.”
“ Every conntry has a right of regulating the transfer of all personal property
within its territory ; but when no positive regulation exists, the owner transfers it
at his pleasure.” Moreton v. Milne, 6 Binn. R. 361; 8 Burge, Comm. on Col, and
For. Law, Pt. 2, ch. 20, p. 751, 752; ante, § 364, and note.

4 Robinson v. Bland, 2 Burr. R. 1079; S. C. 1 W. Black. R. 247 ;, ante,
§ 364.

5 2 Bell, Comm. p. 4, 5, 4th edit. ; Id. p. 1 to p. 10, 5th edit.; 1 Bell, Comm.
p. 65, 67, 68, 4th edit.; Id. p. 105 to p. 108, 5th edit.; 3 Burge, Comm. on Col.
and For. Law, Pt. 2, ch. 20, p. 750, 751, 752. — Mr. Burge says, that although
stocks of this nature can only be transferred according to the forms of the lex rei
site, so as to confer a legal title on the purchaser ; yet it will give the purchaser
a right of action to compel the vendor to make a transfer in the manner required
§382 383 5.] PERSONAL PROPERTY. 523

can be made of such property, except in the manner prescribed by
the local regulations! But, nevertheless, contracts to transfer
such property would be valid, if made according to the lea domi-
eilit of the owner, or the lea loci contractés, unless such contracts
were specially prohibited by the lex rei site; and’ the property
would be treated as personal, or as real, in the course of adminis-
tration, according to the local law.?

[* 3883 a. Where a canal and banking corporation in the State
of New Jersey owned a mortgage seeurity which they sold and
transferred in the State of New York to a bond fide purchaser for
value, it. was held that such purchaser acquired perfect title to the
same, notwithstanding by the law of New Jersey, where such cor-
poration. was ereated and had its situs, such transfer was inopera-
tive as to creditors.?

383 b. The question of the locality of contracts, in the form of
negotiable bonds issued by a. banking, or loan and trust. company,
and transferred in the market of foreign states, the interest being
made payable at the place of transfer, is extensively and learnedly
discussed, in a somewhat recent case by the New York Court of

by the local law. Thid. ; ante, § 364, note. Erskine, in his Institutes, (B. 3, tit.
9, §4,) puts the like exceptions. “ We must except,” says he, “from this general
tule, as civilians have. done, certain movables, which by the destination of the
deceased are. considered as. immovables.' Among these may be reckoned the
shares of the trading companies, or of the public stocks of any country, for ex-
ample, the Banks of Scotland, England, and Holland, the South Sea Company,
&c., which are, without doubt, descendible, according ‘to the law of the state
where such stocks are fixed. But the bonds.or notes of such companies make no
exception from the general rule. They are accounted part of the movable estate
of the deceased.” Ante, § 364, 365; Post, § 398;, Robertson on Successions, p.
94,95. See Attorney-General v. Dimond, 1 Cromp. & Jerv. 356, 370, 371; At-
torney-General v. Hope, 1 Cromp. Mees. & Rosc. 538; 8. C. 8 Bligh, R. 44;
8. C. 2 Clark & Finnel. R. 84; Attorney-General v. Bouwens, 4 Mees. & Welsb.
171, 191, 192, 193; post, § 432.

* Though stock abroad may be, as to its transfer, affected. by the local laws, it
is not.to be treated, as.of course, as partaking of the character of real estate and
descendible as such. On the contrary, if it be by the local law personal estate,
it may be disposed of by an administration, as such; and: the title passes,.if it be
made in the forms prescribed by the foreign law. See Attorney-General v.
Dimond, 1 Tyrwhitt, R. 243. In the matter of Ewing, 1 Tyrwhitt, R. 91; Ersk.
Inst. B. 3, tit. 9, §.4; 1 Bell, Comm. p. 65; 2 Bell,.Comm. p. 4,:5, 4th and 5th
edit.; ante, 364, 365.

* Abbott on Shipp. Pt. 1, ch. 2, §.10; 1 Chitty on Comm. and Manuf. 556, 558,
569, &.; 2 Kent, Comm. Lect. 45, p. 145, 146, 3d edit.

[* ® Hoyt v. Thompson, 19 New York R. 207.
524 CONFLICT OF LAWS. [cH mx °°

Appeals,! It is here held that such contracts are to be governed
by the law of the place where they are transferred, and first be-
come operative. ]

§ 384. Subject to exceptions of this and the like nature, (such
as the statutable transfer of ships, and of goods in the warehouses,
or inthe docks of a government, which would fall within the same
predicament,) the general rule is, that a transfer of personal prop-
erty, good by the law of the owner’s domicil, is. valid, wherever
else the property may be situate.2_ But it does not follow, that a
transfer made by the owner, according to the law of the place of
its actual situs, would not as completely divest his title ; nor even
that transfer by him in any other foreign country, which would be
good according to the law of that country, would not be equally
effectual, although he might not have his domicil there. For pur-
poses of this sort, his personal property may in many cases be
deemed subject to his disposal, wherever he may happen to be at
the time of the alienation. Thus, a merchant, domiciled in Amer-
ica, may doubtless transfer his personal property according to the
law of his domicil, wherever the property may be. But, if he
should direct a sale.of it, or make a sale of it in a foreign country,
where it is situate at the time, according to the laws thereof, either
in person or by an agent, the validity of such a sale would scarcely
be doubted. Ifa merchant is temporarily abroad, he is under-
stood to possess a general authority to transfer such personal prop-
erty as accompanies. his person wherever he may be; so always
that he does not violate the law of the country where the act is
done. The general convenience and freedom of commerce re-
quire this enlargement of the rule; for otherwise the sale of per-
sonal property actually situate in a foreign country, and made
according to the forms prescribed by its laws, might be declared
null and void in the country of the domicil of the owner. In the
ordinary course of trade with foreign countries, no one thinks of
transferring personal property according to the forms of his own

* Curtis v. Leavitt, 15 New York R. 9.] sit

* 1 Kames on Equity, B. 3, ch. 8, § 3.—In the case of a movable subject
(says Erskine) lying in Scotland, the deed of transmission, if perfected according
to the lex domicilii, is effectual to carry the property, for movables have no per-
manent situation. Ersk. Inst. B. 3, tit. 2, § 40, p. 515; 3 Burge, Comm. on Col.
and For. Law, Pt. 2, ch. 20, p. 750, 751, 7523 ante, § 364, note.

5 See 1 Kames on Equity, B. 3, ch. 8, § 3,
§.388 b - 886.] PERSONAL PROPERTY. 525

domicil ; but it is transferred according to the forms prescribed by
the law of the place where the sale takes place.

§ 885. A question, involving other considerations, may be pre-
sented; and that is, whether a transfer of personal property is
good, which is made according to the law of the owner’s domicil,
but not in conformity to the law of the place where it is situate ?
And whether there is any difference in such a case between the
transfer being made by the owner in his place of domicil, or its
being made in the place rei site? For instance, let us suppose
that, by the law of the domicil of the owner, a sale of goods is
complete and perfect to pass the title without any delivery; and
that, by the law of the place of their situs the sale is not complete
until delivery. In such a case, if the transfer of the goods is
made in the domicil of the owner, would it be valid without any
delivery thereof, so as to pass the title against third persons?
If it would, in such a case, what would be the effect if the transfer
was made in the place where the goods were situate, without any
such delivery ?

§ 886. The former question has been much discussed in the
courts of Louisiana, from a supposed difference between the rule
of the common law and that of the civil law on this subject. By
the common law a sale of goods is, or may be, complete without de-
livery! But by the law of Louisiana, delivery is necessary to com-
plete the transfer, according to the well-known rule of the civil law:
Traditionibus et usucapionibus dominia rerum non nudis pactis,
transferuntur2 Upon the fullest examination, and after repeated
arguments, the Supreme Court of Louisiana have held the doc-
trine, that the transfer of personal property in that state is not

1 The common law deems a sale, as between the parties, complete without de-
livery ; but not as to third persons. If, therefore, a sale is made, the purchaser,
in order to complete his: title against creditors and other purchasers, must take
possession within a reasonable time. Where the property is at sea at the time,
and is incapable of delivery, there the title is complete without delivery. But it
may be lost by an omission to take possession within a reasonable time after its
arrival in port. See Meeker v. Wilson, 1 Gall. R. 419; 1 Black. Comm. 446,
448; 2 Kent, Comm. 492, 493, 498; Id. p. 515 to p. 522; Bohlen v. Cleaveland,
5 Mason, R. 174; 3 Chitty on (eee and Manuf. ch. 5, § 2, p. 272, &c. ; Lanfear
v. Sumner, 17 ‘Mea R. 110; Bigelow’s Digest, Sale, A. B.; post, § 389. See
also Long on Sales, by Rand, edit. 1839; ch. 7, p. 259 to p. 307.

? Cod. Lib. 2, tit. 3, 1. 20; Olivier v. Townes, 14 Martin, R. 93, 102; Norris v.

Mumford, 4 Martin, R. 20; Durnford v. Brooks’s Syndics, 3 Martin, R. 222,
225, e
.

526 CONFLICT OF LAWS. [cH. Ix.

complete, so as to pass the title against creditors, unless a delivery
is made in conformity to the laws of that state, although the trans-
fer is made by the owner in his foreign domicil, and would be good
without delivery by the laws of that domicil.*

§ 887. The reasoning by which this doctrine is maintained, is
most fully developed in a case in which a transfer of a part of a
ship was made in Virginia, the ship at the time of the sale being
locally at New Orleans ; and, before any delivery thereof, she was
attached by the creditors of the vendor.’ It was, therefore, a case
of conflict of rights between the creditor and the purchaser. The
learned judge who delivered the opinion of the court on that oc-
casion, said: “ The position assumed in the present case is, that
by the°laws of all civilized countries, the alienation of movable
property. must be determined according to the laws, rules, and reg-
ulations in force, where the owner’s domicil is situated. Hence,
it is insisted, that, as by the law existing in the state where the.
vendor lived, no delivery was necessary to complete the sale, it
must be considered as complete here ; and, that it is a violation
of the principle just referred to, to apply to the contract rules,
which are peculiar to our jurisprudence, and different from those.
contemplated by the parties to the contract.”

§ 888. “We readily yield an assent tg the general doctrine for
which the appellee contends. He has supported it by a variety of
authorities drawn from different systems of jurisprudence. But
some of those very books furnish also the exception on which we
think this case must be decided, namely, that ‘ when those laws
clash with, and interfere with the rights of the citizens of the
countries where the parties to the contract seek to enforce it, as
one or other of them must give way, those prevailing, where the
relief is sought, must have the preference.’ Such is the language
of the English books to which we have been referred ; and Hu-
berus, whose authority is more frequently resorted to on this sub-

1 The point appears to have been first decided in Norris v. Mumford, 4 Martin,
R. 20; and it has been repeatedly since adjudged in other cases, and particularly
in Ramsay v. Stevenson, 5 Martin, R. 23; Fisk v. Chandler, 7 Martin, R. 24;
and Olivier v. Townes, 14 Martin, R. 98. Mr. Livermore has contested the doc-
trine asserted in these decisions with great earnestness and ability. Liverm.
Diss. § 220 to § 223, p. 137 to p. 140. See Taylor v. Boardman, 25 Verm. 589;
Wait v. Hill, 12 Barbour, 635. See also ante, § 325 7.

2 Olivier v. Townes, 14 Martin, R. 93, 102.

* Mr. Justice Porter.
§ 386 -389.] PERSONAL PROPERTY. 527

ject than that of any other writer, because he has treated it more
extensively and with greater ability, is his treatise De Conflictu
Legum, (n. 11,) tells us, effecta contractuum, certo loco initorum,
pro jure loci illius alibi quoque observantur, si nullum inde civibus
alienis creetur prejudicium, in jure sibi quesito. The effects of a
contract entered into at any place, will be allowed, according to
the law of that place in other countries, if no inconvenience will
result therefrom, to the citizens of that other country, with respect
to the right which they demand. This distinction appears to us
founded on the soundest reasons. The municipal laws of a coun-
try have no force beyond its territorial limits; and when another
government permits these to be carried into effect within her juris-
diction, she does so upon a principle of comity. In doing! so care
must be taken that no injury is inflicted on her own citizems ; oth-
erwise justice would be sacrificed to courtesy. Nor can the for-
eigner or stranger complain of this. If he sends his propérty
within @ jurisdiction different from that where he resides, he im-
pliedly submits it to the rules and regulations in force in the coun-
try where he places it. What the law protects, it has a right to
regulate. A strong evidence of this is furnished by the doctrine
in regard to successions. The general principle is, that the per-
sonal property must be distributed according to the law of the
state where the testator dies; but, so far as it concerns creditors,
it is governed by the law of the country where the property is sit-
uated. If an Englishman or a Frenchman dies abroad and leaves
effects here, we regulate the order in which his debts are paid by
our jurisprudence, not by that of his domicil.” 4

§ 389. ‘We proceed to examine, whether giving effect to the law
of Virginia, on the contract now set up, would be working an in-
jury to this state, or its citizens. In doing this, we must look to
the general doctrine, and the effect it would have on our ordinary
transactions, as well as its operation in this particular case. If we
held here, that this sale can defeat the attachment, we should, on
the same principle, be obliged to decide, that the claimant would
hold the object sold in preference to a second purchaser, to whom
it was delivered ; the rule being, that, when the debtor can sell,
and give to the buyer a good title, the creditor can seize ; or, in
other words, where the first sale is not complete as to third per-
sons, the creditor may attach and acquire a lien.? In relation to

* Post, § 524. 2 McNeil v. Glass, 13 Martin, R. 261.
528 CONFLICT OF LAWS. [cu. 1x.

movable property, our law has provided, that delivery is essential
to complete the contract of sale, as to third parties. This valua-
ble provision, by which all our citizens are bound in their dealings,
protects them from the frauds, to which they would be daily sub-
jects, were they liable to be affected by previous contracts, not fol-
lowed by the giving of possession. The exemption contended for
here, in behalf of the residents of another state, would deprive
them of that protection, wherever their rights, as purchasers, came
in contact with strangers ; a protection which, it may be remarked,
it is of the utmost importance, owing to our peculiar position, that
we should carefully maintain. This city is becoming a vast store-
house for merchandise sent from: abroad, owned by non-residents,
and déposited here for sale ; and our most important commercial
transacsions are in relation to property so situated. If the pur-
chasers of it should be affected by all the previous contracts made
at the owner’s domicil, although unaccompanied by delivery, it is
easy to see, to what impositions such a doctrine would lead; to
what inconvenience it would expose us; and how severely it
would check and embarrass our dealings. However anxious we
may be to extend courtesy, and afford protection to the people of
other countries, who come ‘themselves, or send their property,
within our jurisdiction, we cannot indulge our feelings so far, as
to give a decision, that would let in such consequences as we have
just spoken of. It would be giving to the foreign purchaser an
advantage which the resident has not ; and that, frequently, at the
expense of the latter. This, in the language of the law, we think,
would be.a great inconvenience to the citizens of this state; and,
therefore, we cannot sanction it.” 1

1 Olivier v. Townes, 14 Martin, R. 97 to 108. [See also Moye v. Way, 8 Ire-
dell, Eq. R.131.] But see 1 Kames on Equity, B. 3, ch. 8, § 3. — The doctrine
of this case seems supported by that of Lanfear v. Sumner, (17 Mass. R. 110,)
although in the latter case the Court do not found their judgment upon any sup-
posed conflict between foreign and domestic laws. There can be little doubt
that the sale and assignment in Philadelphia in that case was a complete transfer
by the lex loci contractiis; and there was certainly legal diligence in endeavor
ing to obtain possession after the sale. The court, however, thought’ that delivery
was essential to perfect the transfer by the law of Massachusetts; and, as there
had been no delivery until the property was attached by the attaching creditor
in Massachusetts, they decided in favor of the title of the latter against the vendee.
The court also said, that, where each of the parties claimed the: same ‘goods by a
legal title, he who first obtained possession would hold against the other; and for
this principle they relied on Lamb v. Durant, 12 Mass. R. 54; and Caldwell vw
$389 -391.J PERSONAL PROPERTY. 529

. 4390. There is certainly great force in this reasoning upon gen-
eral principles. And no one can seriously doubt, that it is compe-
tent for any state to adopt such a rule in its own legislation, since
it has perfect jurisdietion over all property, personal as well as
real, within its own territorial limits.1 Nor can such a rule, made
for the benefit of innocent purchasers and creditors, be deemed
justly open to the reproach of being founded in a narrow or a self-
ish policy. But, how far any court of justice ought, upon its own
general authority, to interpose such a limitation, independently of
positive legislation, has been thought to admit of more serious
question ; since the doctrine, which it unfolds, aims a direct blow
at the soundness of the policy, on which the general rule, that
personal property has no locality, is itself founded.? It jis not,
indeed, very easy to reconcile it with the doctrine maintained by
Lord Loughborough, (which has been already cited,)®? or with
other eases to the same effect. Nor is it easy to say, to what ex-
tent it may be pressed. in subversion of the general rule; since
every country has so many minute regulations in regard to the
transfers of personal property incorporated into its municipal code,
each of which may be properly deemed beneficial to its own gov-
ernment, or to the interests of its citizens.*

§:391. Another case, illustrative of the doctrine, may be stated.

Ball, 1 T. R. 205. The former case is certainly in point. But in the latter the
decision was in favor of the party who first had acquired a legal title by the prior
indorsement of the bills of lading to him. ‘* Whoever,” said Ashhurst, J., “ was
first in possession (not of the goods, but) of either of these bills of lading, had
the legal title vested.in him.” Buller, J., said: “Both parties claim under T. ;
but F. & Co. have the first legal right, for two bills of lading were first indorsed
to them.” But see Conrad v. Atlantic Insurance Co., 1 Peters, Sup. C. R.
386, 445; Nathan v. Giles, 5 Taunt. R. 558; Boblen v. Cleveland, 5 Mason,
R, 174. .

1 See Liverm. Diss. § 221, p. 137, 138; Id. § 249, p. 159 to p. 162; Hall v.
Campbell, Cowp. R. 208; Hunter v. Potts, 4 T. R. 182, 192; Phillips v. Hunter,
2 H. Bl. 402, 405; Sill v. Worswick, 1 H. Bl. R. 673, 690, 691; Davis v. Jaquin,
5 Harr. & Johns. R. 100.

* See Liverm. Diss. § 221 to 223, p. 137 to p. 140.

® Ante, § 380; Sill », Worswick, 1 H. Bl. 690. See also 1 Kames on Equity,
B. 3, ech. 8, § 3; Ersk. Inst. B. 3, tit. 2, § 40; Bruce v. Bruce, 2 Bos. & Pull.
229, note: 231; Hunter v. Potts, 4 T. R. 182,192; Phillips v. Hunter, 2 I. Bl.
402, 405:

‘ Mr. Burge manifestly deems the decision untenable. 3 Burge, Comm. on
Col. and For. Law, Pt. 2, ch. 20, p. 763, 764.

CONFL, a AB
530 : CONFLICT OF LAWS. [cH. Ix.

A ship belonging to New York, and owned there, was transferred,
while at sea, according to the law of the owner’s domicil; and the
ship subsequently arrived at New Orleans, and was attached by
creditors, before any delivery thereof to the vendee. The ques-
tion was, whether the attachment overreached the title by the trans-
fer. The Supreme Court of Louisiana held that it did not; and
that the transfer was valid to all intents and purposes. The court
took the distinction, that the transfer was complete before the
Louisiana laws could locally attach upon it. “In the present
case”’ (said the court) “the ship, the subject of the sale, was a
New York ship, and the vendor and vendee resident in New York.
If, therefore, according to the lex loci contractis, that of the dom-
icil of both parties, the sale transfers the property without a de-
livery, it did eo instanti, or not at all. In transferring it, it did
not work any injury to the rights of the people of another coun-
try; it did not transfer the property of a thing within the juris-
diction of another government. If two persons in any country
choose to bargain, as to the property which one of them has in a
chattel not within the jurisdiction of the place, they cannot ex-
pect, that the rights of persons in the country, in which the chat-
tel is, will be permitted to be affected by their contract. But,
if the chattel be at sea, or in any other place, if any there be, in
which the law of no particular country prevails, the bargain will
have its full effect, eo instanti, as to the whole world. And the
circumstance of the chattel being afterwards brought into a coun-
try, according to the laws of which the sale would be invalid,
would not affect it.’! But if the ship had been, at the time of
the sale, in New Orleans, and she had been attached before an
actual delivery to the vendee, the title of the attaching creditor
would have prevailed?

§ 892. But, let us suppose two persons, each claiming as pur-
chaser, under different transfers of the same personal property, one
by a transfer from a partner in the place where the property is
locally situate, and another by a transfer made by the other partner
in the domicil of the firm ; and by the law of the latter place, de-
livery is not essential to complete the transfer; but by the law of
the former it is; which title is to prevail ? According to the doc-
trine held in Louisiana, the title of the purchaser in the place ret

? Thuret v. Jenkins, 7 Martin, 318, 353, 354.

2 Price v. Morgan, 7 Martin, R. 707; ante, § 325 s, 386 to 389.
§ 391-394.] PERSONAL PROPERTY. 531

site ought to prevail. And that doctrine seems confirmed by the
reasoning in certain decisions of the Supreme Court of Massachu-
setts, although the precise point as to thé conflict of laws was not
litigated, and the law of Massachusetts was supposed to require a
delivery to complete the title.?

' § 898. A case somewhat different has been put by the Supreme
Court of Louisiana. “If (say the court) A. and B. be partners in
New Orleans, and C. purchases from A. a quantity of cotton in the
warehouse of the firm; will his right thereto, if he take instant
possession of it, be affected by a sale made a few days before by B.
in Natchez or Mobile? Will not C. be listened to in his own state,
when he shows, that by the lex fori, by the lex loci contractis, by
that of the domicil of his vendors, and of his own, the sale and de-
livery vested the property??? The case is certainly very strongly
put. But, after all, it must entirely depend upon the point,
whether the prior transfer at Natchez or Mobile conveyed a per-
fect title by the law of those places, without delivery; and if so,
whether the lex rei site ought to prevail against it? If no de-
livery were required by the law of Louisiana to perfect the title,
the Natchez or Mobile purchaser would prevail, even in the courts
of Louisiana, against the purchaser in New Orleans, whatever
might be the apparent hardship of the case under all the circum-
stances.

§ 894. On the other hand, let us take the case of a shipment of
goods from England to New Orleans, on account and risk of a
merchant domiciled in England, who owes debts in New Orleans;
and a subsequent transfer of the bill of lading in England to a pur-
chaser, after their arrival at New Orleans, but before the unlading
thereof. Could a creditor of the shipper at New Orleans in such
a case, by an attachment, oust the title of the purchaser, because
there had been no delivery to the purchaser under the bill of lad-
ing? By the law of England,‘ and, indeed, by that of many other
commercial states, the legal title of the goods passes by the mere
indorsement and delivery of the bill of lading, without any actual

? Ramsay v. Stevenson, 5 Martin, R. 23, 77, 78; Thuret v. Jenkins, 7 Martin,
R, 353,

? See Lamb v. Durant, 12 Mass. R. 54; Lanfear v. Sumner, 17 Mass. R. 110;
ante, § 386, 389, note.

* Thuret v. Jenkins, 7 Martin, R. 353.

* Lickbarrow v. Mason, 2 T. R. 63; Abbott on Shipp. Pt. 3, ch. 9, § 16.
532 CONFLICT OF LAWS. [cn. 1x.

possession of the goods by the purchaser. Would such a title so
acquired be devested by the want of a delivery according to the
laws of Louisiana? If.so, it would most materially impair the
confidence which the commercial world have hitherto reposed. in
the universal validity of the title acquired under a bill of lading.
No opinion is intended to be here expressed on the point by the
author; but it is presented, in order to show, that the doctrine is
not without its embarrassments.

§ 895. If, however, the doctrine of the law rei site is to prevail
over that of the law of the place of the transfer in some cases, even
in respect to movables, what is to be said in relation to assignments
of choses in action or debts due by debtors, resident in a fopeign
country? Would an attachment before notice defeat such assign-
ments in favor of the attaching creditor, although notice of the
assignment should be afterwards given to him within a reasonable
time ?? By the law of some countries, an assignment of a debt is
good without any notice to the debtor, and takes effect instanter ;
by the Jaw of other countries, notice is necessary to perfect the
title? Would an assignment of a debt in the creditor’s domicil,
where it would be good without any such notice, be ineffectual, if
the debtor resided in a country where such notice would be neces-
sary ? Suppose an attachment made by a creditor, in the interven-
ing period between the time of the assignment and the notice;
would the assignment or the attachment be entitled to a prefer-
ence?* By the Scottish law a creditor may assign his debt to an-
other person; but the transfer is not complete, so as to vest the
title absolutely in the assignee, until notice of the assignment, or,
(as the Scotch phrase is,) until an intimation of the assignment is
given to the debtor.’ If, therefore, an assignment is made, a cred-

* By the old French law, bills of lading were not negotiable, so as to pass a
title in the property to the assignee, but only gave him a right of action subor
dinate to the rights of third persons. 1 Emérig. Assur, ch. 11, § 3. By the Code
of Commerce, (art. 281,) bills of lading are now negotiable, so as to pass the prop-
erty to the indorsee. See 3 Pardessus, Pt. 3, tit. 4, ch. 3, art. 727.

* See Sill v. Worswick, 1. H. BI. 691, 692; Bohlen v. Cleveland, 5 Mason, R.
174, See Holmes v. Remsen, 4 Johns. Ch. R. 460; Lewis v. Wallis, Sir Thomas
Jones, R, 223; 1 Kames, Equity, B. 3, ch. 8, § 3, p. 844.

* 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 777, 778,

* See In re Wilson, cited 1 H. Bl. 691, 692; Post, § 399 a.

* See In re Wilson, cited 1 H. Bl. 691, 692; Post, § 399 a; Selkrig v. Davis,
2 Rose, Bank. Cases, 315; Stein’s Case, 1 Rose, Bank. Cases, 481; 2 Bell, Comm.
p. 21, 22, 23, 4th edit.; Id. p. 16 to p. 23, 5th edit.; 3 Burge, Comm. on Col. and
§394, 895.] PERSONAL PROPERTY. 5838

itor of,,the original creditor may, before such intimation, arrest or
attach the debt in the hands of the debtor, and will thereby ac-

For. Law, Pt. 2, ch. 20, p. 777, 778. But see In re Wilson, cited 1 H. Bl. 691,
692. —I have stated the law of Scotland, as [ understand it to be stated in the
opinion of Lord Eldon, in Selkrig v. Davis, (2 Rose, Bank. Cas. 315; 2 Dow. R,
230, 250,) though it would seem to be exactly like the Massachusetts law stated
in-the next section ($ 396). And so it was understood by Lord Hardwicke and
Lord Loughborough. The following passage from the judgment of the latter, in
Sill ». Worswick, (1 H. Black. R. 691, 692,) gives a very exact view of their
opinions. “ A question of this nature came before Lord Hardwicke very largely
in the bankruptcy of Captain Wilson. With the little explanation I am enabled
to give of that case, in which the Court of Sessions entirely concurred with Lord
Hardwicke, the distinctions will be apparent. There were three different sets of
creditors, who claimed, subject to the determination of the court, on the ground
that Wilson had considerable debts due to him in Scotland. By the law of Scot-
land, debts are assignable, and an assignment of a debt notified to the debtor,
which is technically called an intimation, makes a specific lien quoad that debt.
An assignment of a debt not intimated to the debtor, gives a right to the assignee
to demand that debt ; but it is a right inferior to that of the creditor who has ob-
tained his assignment and intimated it. By the law of Scotland also, there is a
process for the recovery of debts, which is called an arrestment. Some of Wil-
son’s creditors had assignments of specific debts intimated to the debtors and
completed by that intimation, prior to the act of bankruptcy. Others had assign-
ments of debts not intimated before the bankruptcy. Others had arrested the
debts due to him subsequent to the bankruptcy, and were proceeding under those
arrestments,to recover payment of those debts. The determination of Lord Hard-
wicke, and that of the Court of Sessions, entirely concurred. The first class I
have mentioned, namely, the creditors who had specific assignments of specific
debts, intimated to the debtors prior to the bankruptcy, were holden by Lord
Hardwicke to stand in the same situation as creditors claiming by mortgage an-
tecedent to the bankruptcy. All, therefore, he would do with respect to them
was, that if they recovered under that decree, they could not come in under the
commission without accounting to the other creditors for what they had taken
under their specific security. With respect to the next class of creditors, Lord
Hardwicke was of opinion, and the Court of Sessions were of the same opin-
ion, that their title, being a title by assignment, was preferable to the title by
arrestment ; and they likewise held, that the arrestments, being subsequent to
the bankruptcy, were of no avail, the property being by assignment vested in
the assignees under the commission. It is in this sense that an expression has
been used by Lord Mansfield, in one or two cases, in which his language, rather
than his decision, has been quoted with respect to the law of Scotland, namely,
that the effect of the assignment under a commission of bankruptcy was the same
as a voluntary assignment. For so the law of Scotland treats it, in contradistinc-
tion to the assignment perfected by intimation, and to an assignment which the
party might be compelled to make. But it does not follow thai it is an assign-
ment without consideration. On the contrary, it is for a just consideration ; not,
indeed, for money actually paid, nor for a consideration immediately preceding
45*
534 CONFLICT OF LAWS. [ou. rx.

quire a preference over the assignee. That doctrine, it would
seem, has been actually applied in Scotland to debts due by Scot-
tish debtors to foreign creditors, and assigned in the domicil of the
latter.

§ 896. According to our law, a different doctrine would pre-
vail; for an assignment operates, per se, as an equitable transfer
of the debt.2. Notice is, indeed, indispensable to charge the debtor
with the duty of payment to the assignee; so that, if, without no-
tice, he pays the debt to the assignor, or it is recovered by process
against him, he will be discharged from the debt.? But an arrest
or attachment of the debt in his hands by any creditor of the as-
signor, will not entitle such creditor to a priority of right, if the
debtor receives notice of the assignment, pendente lite, and in time
to avail himself of it in discharge of the suit against him.+

§ 397. In such case of conflict of laws, the difficulty of applying
any other.than the general principle, that movables are transfer.
able according to the law of the domicil of the owner, is apparent.
Let us take the case of a Massachusetts creditor, assigning in that
state a debt contracted there, and due to him by a person then
domiciled in Scotland. The transfer isin equity complete in the
place where it is made, without notice ; but in the place where the
debt is due, it is not complete without notice. To give effect, in
such a case, to the law of Scotland, in opposition to that*of Massa-
chusetis, would be to give a locality to the debt, and, to subject it
to the exclusive operation of the law of the debtor’s domicil. And
it might involve this most serious difficulty, that if the debtor were
afterwards found in Massachusetts, or in any other country than

the assignment. In that respect, therefore, it is a voluntary assignment. But
taking it to be so, it excludes, and is preferable to all others, attaching ; it is

preferable to all the arresters; it is preferable to all creditors who stand under

the same class; and to all who have not taken the steps to acquire a specific lien
till after the act of bankruptcy committed.”

1 Thid.

* See ante, § 395, and note; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch.
20, p. 777, 778.

2 Foster v. Sinkler, 4 Mass. R, 450; Blake v. Williams, 13 Mass. R. 286, 307,
308, 314; Wood »v. Partridge, 11 Maz R. 488; Dix ». Cobb, 4 Mass. R. 508;
Bohlen v, Cleveland, 5 Mason, R. 174; Holmes v. Remsen, 4 Johns, Ch, R. 460,
486. See 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 777, 7783
Muir v. Schenck, 3 Hill, N. Y. R. 228. But see Story on Equity Jurisp. § 421 a,
§ 1035 a.

* Thid.
§ 395 - 399.] PERSONAL PROPERTY. 585

Scotland, he might be compelled to pay the debt to the assignee,
although it might have been recovered from him in Scotland by a
creditor, in a proceeding by attachment of the debt in his hands,
he having had notice of the assignment, pendente lite.

§ 398. The reasoning of Lord Kenyon, in a celebrated case,}
would certainly lead to the conclusion that an assignment of per-
sonal property, whether if were of goods or debts, according to the
law of the owner’s domicil, would pass the title in whatever coun-
try it might be, unless there were some prohibitory law in that
country. His language is: “‘Hvery person having property in a
foreign country, may dispose of it in this; though, indeed, if
there be a law in that country, directing a particular mode of con-
yeyance, that ought to be adopted. But in this case no law of
that kind is stated; and we cannot conjecture that it is not com-
petent to the bankrupt himself, prior to his bankruptcy, to have
disposed of his property as he pleased.”” The same doctrine is
maintained by Lord Hardwicke and Lord Loughborough. And
all these learned judges apply it equally to the cases of assign-
ments of ‘goods and debts, to voluntary assignments by the party,
and also (as we shall more fully see hereafter) to assignments by
operation of law, as in cases of bankruptcy. The question of prior
notice, or intimation, does not seem to have been thought by them
material ; for they*treat the transfer as complete, from the time of
the assignmept ; and; if that has priority in point of time, over an
arrest or attachment of the property, it is to prevail. The law of
England would certainly give effect to such an assignment of any
goods or debts in England, which were assigned by the owner in a
foreign country.?

§ 399. Lord Kames, in commenting on the subject, says :
“ That, considering a debt as a subject belonging to the creditor,
the natural fiction would be (if any were admissible) to place it
with the creditor, as in his possession, upon the maxim, mobilia
1 Hunter v. Potts, 4 T. R. 182,192. See Liverm. Diss. p. 140 to p. 159; Id.
p- 159, § 249. See ante, § 383.

* See Solomons v. Ross, and other cases cited, 1 H. Bl. 131, 182, note; Sill v.
Worswick, 1 H. Bl. 665, 690, 691; Jn re Wilson, cited ibid. p. 691, 692, 693 ;
Lewis v. Wallis, T. Jones, R. 223. See also Selkrig v. Davis, 2 Rose, Bank.
Cas. 97; S. C. Id. 291, 315, 316, 317; Kames on Equity, B. 3, ch. 8, § 4; Scott
v. Allnutt, 2 Dow & Clark, R. 404, 412; Liverm. Diss. p. 159; Ogden v. Saun-

ders, 12 Wheat. R. 364, 365. See also Merlin, Répert. Faillité, p. 412, 414,
415.
536 CONFLICT OF LAWS. [cH. 1x.

non habent sequelam.' Others. are more disposed to place it with
the debtor.” ! But, in fact, a debt is not a corpus capable of local
position, but purely a jus incorporale2 And, therefore, where the
debtor and creditor live in different countries, and are subjected
to different laws, Lord Kames thinks the law of the domicil of the
creditor ought to prevail. He then adds: “ When the creditor
makes a voluntary conveyance, it is to be expected, that he should
speak in the style and form of his own country ; and, consequent-
ly, that the rule of his own country should be the rule here. In
a word, the will of a proprietor, or of a creditor, is good title jure:
gentium, that ought to be effectual everywhere. Thus, an assign+
ment made by a creditor in Scotland, according to our forms, of a
debt due to him by a person in a foreign country, ought to be sus-

1 Kames on Equity, B. 3, ch. 8,§ 4. See Morrison’s Case, 4 T. R. 185; 1 H.
Bl. 677; ante, § 362; Roilenburg, De Divers. Stat. tit. 2, ch. 5, § 16; 2 Boulle-
_ nois, Rae: p. 47, 48, 49; ante, § 377.
2 See ante, § 862, 376, 384; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch.
20, p. 777, 778, 779.
® On this point I cannot do better than insert a passage from Mr. Livermore’s
Dissertations (p. 162, § 251), illustrative of the same principles. “It was formerly
doubted by some, whether personal actions should be considered as movables, and
whether they should not be considered to have a location in the domicil of the
debtor. But the common opinion seems to be well settled, that, considered ac-
tively, and with respect to the interest of the creditor aid his representatives,
they must be considered as attached to the person of the creditgr; and this, al-
though the payment of the debt is secured by an hypothecation upon an immov-
able property. Such is the doctrine of Dumoulin. Nomina et jura, et quecumque
incorporalia, non circumscribantur loco, et sic non opus est accedere ad certum
locum. Tum si hee jura alicubi esse censerentur, non reputarentur esse in re
pro illis hypothecata, nec in debitoris persona, sed magis in persona creditoris, in
quo activé resident, et ejus ossibus inherent. Molin. Oper. Comm. ad Consuet,
Paris. Tit. 1, De fiefs. § 1, n. 9, p. 56, 57. So also Casaregis, after saying that
movables are attached to the person of the owner, and, at his death, will be dis-
tributed according to the laws of his domicil, proceeds to consider, what will be
the rule with respect to debts, and determines, that they follow the person of the
creditor. An ita dicendum de nominibus debitorum, actionibus, ac juribus, que
bona neque, dicuntur mobilia, neque immobilia, sed tertiam speciem bonorum
componunt, et dicuntur incorporalia ? Et respondeo affirmativé ; nam statutum
bené comprehendit nomina debitorum, licét forensium, quia eorum obligationes
non circumscribuntur locis, ideoque attenditur statutum, cui subjectus est testa-
tor. Et hee -verior est sententia; nam debitorum nomina, tanquam persone
coherentia, debent regulari secundum statuta loci, cui creditor es subjectus.”
Casaregis, In Rubr. Stat. Civ. Genuze de Success. ab Intest. ‘n. 64, 65, Tom. 4,
p. 42, 43.
§:899, 899 a.] PERSONAL PROPERTY. 587

tained in that country, as a good title for demanding payment ;
and a foreign assignment of a debt due here, regular according to
the law of the country, ought to be sustained by our judges.” ?
In another place he adds: “An equitable title, in opposition to
one that is legal, can never found a real action (actio in rem).
It cannot have a stronger effect than to found an action against
the proprietor to grant a more formal right, or, in his default,
that the court shall grant it. But in the case of a debt, where the
question is not about property, but payment, an equitable title co-
incides, in a good measure, with a legal title. An assignment
made by a foreign creditor, according to the formalites of his
country, will be sustained here, as a good title for demanding pay-
ment from the debtor ; and it will be sustained, though informal,
provided it be good jure gentium ; that is, provided that the cred-
itor really granted the assignment. Such effect hath an equitable
title ; and a legal title can, have no stronger effect.”? This is in
perfect coincidence with the law of England and America.?

§ 399 a. Questions may arise upon the conflict of laws, where
‘an assignment is validly made of personal property in one coun-
try by the owner thereof, and the property is at the time of the
assignment locally in another country, by whose laws it is liable to
be attached by a trustee process or garnishment; and an attach-
ment is actually made by a creditor of the assignor before notice
of the assignment. In such a case, (as we have seen,)* if notice
thereof is given before judgment in the suit, the assignee will be
entitled to maintain his priority of title. But, suppose the lex
fori enforces a different rule, and will in no such a case entitle the

? Kames on Equity, B. 3, ch. 8, § 4.

* Kames on Equity, B. 3, ch. 8, § 4, sub finem. See also Huberus, De Conf.
Leg. Lib. 1, tit. 8, § 9.

* See Holmes v. Remsen, 4 Johns. Ch. R. 460, 486; S. P. 20 Johns, R. 229,
267; Moreton v. Milne, 6 Binn. R. 353, 361, 369; Blake v. Williams, 6 Pick, R.
286, 307, 314. — It is a very different question, when an assignment of a debt is
lawfully made, whether the assignee can sue the debtor in his own name; or must
sue in the name of the assignor. That point has been sometimes thought to belong
to the mode of remedy, rather than the right, and of course is to be governed by
the lex fori. See 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 777,
7783; and see also Wolff v. Oxholm, 6 Maule & Selw. 92, 93. But see Alivon v.
Furnival, 1 Cromp. Mees. & Rose. 277, 296 ; post, § 420, 566.

1 Ante, § 396. See also Richardson v. Leavitt, 1 Louis. Ann. R. 430; Mer-

chants’ Bank v. Bank of United States, 2 Id. 659; Chewning v. Johnson, 5 Id.
678,
538 CONFLICT OF LAWS. [ CH. Ix.

creditor to a priority of right, and a judgment against the prop-
erty ; will that judgment conclude the assignee, if the property is
afterwards found in the country, where the assignment is made,
by whose laws the maxim prevails, gui prior est in tempore, potior
est in jure? Suppose the property to be found in a different for-
eign country, and the assignee should sue for the ‘same in the
courts thereof; what law ought to be regarded in ascertaining the
title ; the law of the place of the assignment, or that of the judg-
ment? Will it make any difference, whether the assignee might
or might not have intervened for his right in the first suit before
judgment? Or, that he happened to be in the country, where
the judgment was rendered at the time of the rendition there-
of?. These are questions more easily put than answered; and
will well deserve the attention of courts of justice, when they
are called upon to enforce the rights of creditors in the local
tribunals, against the prior claims of title of assignees under as-
signments of debts, or other personal property, made in a foreign
country.t

§ 400. But where an attachment or garnishment has been made
by a creditor according to the local law rez site, before any assign-
ment by the party, or by operation of law in invitum, there is room
for a distinction ; and it may well be held, that in such a case, the
attaching creditor is entitled to a priority over the assignee. For,
in such case, the rule may justly prevail, gui prior est in tempore,
potior est in jure; and the creditor is equitably entitled to the
benefits of his diligence. A case to this effect is reported by Cas-
aregis, and reasoned out with great force upon general principles.
The doctrine does not, indeed, seem in its nature susceptible of
any well-founded doubt; and it is in entire conformity to the
principles on the same subject recognized both in England and in
America.”

[*§ 400 a. And where by the law of the place of the domicil
of the payee of a chose in action, and where the same is made, or
is made payable, either in express terms, or by construction of
law, the same is not attachable by process of foreign attachment,
or where by such law the same has been duly assigned, and such

1 Ante, § 325 s, 395, 396.

* Mr. Livermore, in his Dissertations, (p. 159 to p. 162,) has given the case, and
the reasoning of Casaregis at large. See Selkrig v. Davis, 2 Rose, Bank. Cases,
291, 310; Casaregis, Il Cambista Instruito, cap. 7, Tom. 8, p. 64.
§ 399 a-400c.] PERSONAL PROPERTY. 539

assignment perfected by notice in conformity to the law of the
place of the domicil of the payor, such chose in action cannot be
holden upon the debt of the payee under process of foreign attach-
ment.! But an assignment of such chose in action, good by the law
of the place of the domicil of the payee, but which is not perfected
according to the law of the place of the domicil of the payor by
notice to him of such assignment, will not defeat a valid attach-
ment of the same by such process.?, And the same is true when
a chose in action is made payable in the state of the domicil of
the debtor, although not attachable by the law of the state where
the payee resides.?

§ 400 6. And in regard to the transfer of negotiable securities,
in payment of, or as collateral security for, an existing debt of the
assignor, where the law of the place of the domicil of the assignor
saved all equities to the real owner of such securities, but where
the law of the place of the assignment gave the assignee perfect
title under such assignment, it was held that the effect of the as-
signment, and the title acquired under it, must be determined by
the law of the place where the same was made.*]

»[§ 400 c. The courts of Louisiana have discussed very frequent-
ly, of late, the question of the validity of foreign assignments. In
one case it was determined, that an assignment of personal prop-
erty for the preference of certain creditors, if valid by the law of
the place where made, and where all the parties to the assignment
resided, would protect the property, if afterwards found in Louis-
iana, from the subsequent attachment of a creditor residing in the
state of the assignment. And this was confirmed in a later case,®
where it was also held that the same rule applied to real estate
situated in Louisiana, and which had been assigned by the owner
living in a foreign state. So, where property situated in one state,
is there made the subject of an order of court having jurisdiction,
and is afterwards forcibly or fraudulently withdrawn and removed
into another state, the courts of the latter state will not enforce an

[** Baylies v. Houghton and Trustee, 15 Vermont, R. 626.

_* Emerson v. Partridge and Trustees, 27 Vermont, R.8; Ward v. Morrison and
Trustees, 25 Vermont R. 593.

3 Tid.

* Culver v. Benedict, 13 Gray, 7.]

5 Richardson v. Leavitt, 1 Louis. Ann. R. 430.

® Merchants’ Bank v. Bank of United States, 2 Louis. Ann. R. 659. And see
Chewning v. Johnson, 5 Louis. Ann. R, 678.
540 CONFLICT OF LAWS. [ou. rx.

attachment against such property in favor of third persons, but
will order a prompt restitution, or make such decree as will pre-
vent the acquisition of any rights by the attaching creditor."]

§ 401. There are some other matters connected with this sub-
ject, which deserve attention. Upon the sale of goods on credit,
by the law of some commercial countries, a right is reserved. to
the vendor to retake them, or he has a lien upon them for the
price, if unpaid ; and, in other countries, he possesses a right of
stoppage in transitu only in cases of insolvency of the véndee?
The Roman law did not generally consider the transfer of prop-
erty to be complete by sale and delivery alone, without payment
or security given for the price, unless the vendor agreed to give a
general credit to the purchaser ; but it allowed the vendor to re-
claim the goods out of the possession of the purchaser, as being
still his own property. Quod vendidi (say the Pandects) non ali-
ter fit accipientis, quam si aut pretium nobis solutum sit, aut satis
eo nomine datum, vel etiam fidem habuerimus emptori sine ulld
satisfactione.2 The present code of France gives a privilege, or
right of revendication, against the purchaser for the price of goods
sold, so long as they remain in the possession of the debtor’ In
respect.to ships, a privilege is given by the same code to certain
elasses of creditors (such as vendors, builders, repairers, mariners,
é&c.) upon the ship, which takes effect even against subsequent
purchasers, until the ship has made a voyage after the purchase.’
And, by the general maritime law, acknowledged in most, if not
in all, commercial countries, hypothecations and liens are recog-
nized to exist for seamen’s wages, and for repairs. of foreign: ships,
and for salvage.® :

¥ Paradise v. Farmers’ and Merchants’ Bank of Memphis, 5 Louis. Ann. R. 710.
[* Ante, § 325-p.]

* Abbott on Shipp. Pt. 1, ch. 1, § 6; Id. Pt. 3, ch. 9, § 2; 1 Domat, Civil Law,
B. 1, tit. 2, § 3, n. 1, 2; Id. § 12, n. 18; Id. B. 8, tit, 1, § 5, u. 3, 4, note; Merlin,
Répert. Revendication, § 1, n. 8; Code Civil, art. 2102; 4 Pardessus, Droit,
Comm. art. 939, 940, 1204; 2 Kent, Comm. Lect. 39, p. 540, 3d edit.; ante,
§ 822 to 328; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 770,

® Digest, Lib. 18, tit. 1, 1.19; Id. Lib. 14, tit. 4, 1. 5, n. 18. — As to liens for
unpaid purchase-money on lands, see ante, § 322 b, and Gilman v. Brown, 1
Mason, R. 219, 220, 221. i

* Code Civil, art. 2102, n. 4. ;

° Code of Commerce, art. 192, 193; 3 Pardessus, Droit Comm. art. 942, 950.
See also 1 Valin, Comm. 340; Abbott on Shipp. Pt. 1, ch. 1, §.6.

* See ante, § 322 a, 323; Conflit des Lois, Revue Etrang. et Frang. Tom. 6,
1840, § 33, p. 227, 228,

*
§ 400 c-402.] PERSONAL PROPERTY. 541

§ 402. The question, then, naturally arises, whether, if such
privileges, hypothecations, or liens, are recognized in the country,
where the contracts, or acts, which give rise to them, are made,
they are to be deemed obligatory in every other place, where the
property may be found, even against innocent purchasers, or
against creditors who would otherwise, by the law of rei site, have
a preference of right? Would an attachment, for instance, of for-
eign creditors prevail against them in the tribunals of the domicil
of such creditors? Upon the general principles, already stated,
as to the operation of contracts, and the rule that movables have
no locality, it would seem that these privileges, hypothecations,
and liens, ought to prevail over the rights of subsequent purcha-
sers and creditors in every other country. That having once .
attached rightfully ix rem, they ought not to be oe by the
mere change of local situation of the property. This doctrine
was in some measure recognized in an important case in England,
where the right of stoppage in transitu was supposed to depend
upon doctrines of foreign law, materially different from the law of
England. The right conferred by the foreign law was upheld
against the claims of English creditors, under circumstances of
that case, which were somewhat peculiar, the lien having been
given by the foreign law, and enforced in the foreign country, so
far as to, compel the master, who was in possession of the goods,
to recognize it, and to agree to hold the property subject to it.?

1 See Livermore, Dissert. p. 159, § 249; ante, § 322.

2 Inglis v. Underwood, 1 East, R. 515; Abbott on Shipp. Pt. 3, ch. 9,§ 3. On
that occasion, Lord Kenyon said: “ The decision in this case will not at all trench
upon the general rule of law, respecting the right of stopping goods in transitu ;
but giving the plaintiffs the full benefit of the argument, that the delivery of the
goods on board a chartered ship was a delivery to the bankrupt, still the circum-
stance of the Russian ordinance, set forth in the case, varies it very importantly,
and takes it out of the general rule. By that law, the consignors, under the cir-
cumstances stated, had a right to repossess themselves of their goods; and they
did so in effect ; not indeed by actually taking them out of the ship on board of
which they were laden, or by instituting legal process for the recovery of them ;
but having a right so to do, which it became unnecessary to exert, because it was
in the first instance acknowledged and submitted to by the captain, in whose pos-
session the property was, they imposed terms upon him, that he should. sign bills
of lading to their order, upon his compliance with which they suffered the cargo
to proceed to the place of its destination, disposable there as events might turn
out. The goods are therefore sent with the condition attached to them. The
law of Russia in this respect is a very equitable Jaw; and I have often lamented

that our own code'was defective in the same particular. For every man con-
CONFL. 46
542 CONFLICT OF LAWS. [(cH. IX.

§ 402 a. Nevertheless, as we have already seen, there is no in-
considerable conflict of opinion among foreign jurists, and even
among domestic jurists, as to the extent, to which the right of
privilege or priority ought to be allowed in cases, where such privi-
lege or priority has arisen under foreign laws, against subsequent
purchasers, or against creditors in the country, where the prop-
erty is subsequently found. Whether an exception would be al-
lowed generally in favor of maritime liens and privileges, and pri-
orities, founded upon the public policy of giving them full effect as
matters of public convenience and interest, founded upon the ne-
cessities and exigencies of commerce and naval intercourse, may
admit of question. It is highly probable, however, that most, if
not all, commmercial nations will adopt such an exception, upon
the principle of comity sub mutue vicissitudinis obtentu. Indeed
upon any other system, bottomry bonds, respondentia bonds, and
other maritime hypothecations, would constitute so unsafe a secu-
rity, that no merchant abroad would venture to lend his money
upon so fragile a title, which might be undermined or destroyed,
by a local law, wholly unknown and unsuspected by him.

§ 403. Hitherto we have been considering cases of voluntary
transfers inter vivos; and we are now naturally led to the consid-
eration of involuntary transfers by operation of law in the domicil
of the owner, such as are statutable transfers under the bankrupt.’
or insolvent laws of the country of his domicil. The great ques-
tion here is, whether an assignment under such laws has a univer-
sal operation, so as to transfer the movable property of the bank-
rupt or insolvent in all other countries, to the same extent as a
voluntary transfer made by him would, and thus to withdraw it
from the process of the local foreign laws, by way of arrest, attach-

tracting to supply another with goods acts on the presumption, that that other is
in a condition to pay for them ; and therefore when the condition of the consignee
is altered at the time of the delivery, and he is insolvent, and no longer capable
of performing his part of the contract, honesty and good faith require that the
contract should be rescinded. However, the contrary has been settled to be law,
unless the consignor stop the goods in transitu before they get into the consignee’s
possession. But this being a transaction into a foreign country, where a more
equitable law in this respect prevails, I am far from being desirous of limiting ‘its
operation ; and for the reasons before given, I think that the consignors have sub-
stantially availed themselves of it; and that the defendant, by delivering the goods.
to their order, has done no more than he was bound to do.” ee
1 Ante, § 822 to § 328; post, § 424 to $528.
§402a-404.] "PERSONAL PROPERTY. 548

ment, or otherwise, issued in favor of the foreign creditors in the
country where the movable property is situate. This question has
been very gravely discussed both at home and abroad; and the
courts of England and the courts of America have arrived at oppo-
site conclusions respecting it. The courts of the former country
uniformly maintain the doctrine of the universal operation of such
an assignment upon all movable property, wherever it may be
locally situate at the time of the assignment. Many (but not all)
of the courts of the latter country confine the operation of such an
-assignment to the territory where the party is declared bankrupt
or insolvent. The question is worthy of a very full examination,
and a summary of the reasoning on each side of the question, will, °
therefore, be here brought under review.

-§404. Those who maintain that assignments under bankrupt
or insolvent laws are, and ought to be, of universal operation to
transfer movable property, in whatever country it may be locally
situate, adopt reasoning to this effect.1 The general principle
certainly is, that personal property has no locality ; but, that, as to
its disposition, it is subject to the law which governs the person of
the owner, that is to say, it is subject to the law of his domicil.?
There can be no doubt, that the owner may, by a voluntary assign-
ment or sale, made according to the law of his domicil, transfer the
title to any person, wherever the property may be locally situate.®
Now, an assignment under the bankrupt laws of his domicil is, by
operation of law, a valid transfer of all the bankrupt’s property, as
valid as if made personally by him.* The law upon his bankruptcy

1 Mr. Bell has examined this subject with his usual ability and accuracy, and
vindicated at large the propriety of the rule, giving universal effect to assign-
ments in Bankruptcy. See 2 Bell, Comm. B. 8, ch. 2, § 1266, p. 684 to p. 690,
4th edit. ; Id. p. 680 to p. 691, 5th edit.

® Sill v. Worswick, 1 H. Black. 690, 691; Hunter v. Potts, 4 T. R. 182.

4 In re Wilson, cited 1 H. Black. 691, 692.

* Sill vu. Worswick, 1 H. Black. 691, 692; Hunter v. Potts, 4 T. R. 182, 192;
Phillips ». Hunter, 2 H. Black. 402, 406 ; Goodin v. Jones, 8 Mass. R. 517. —
“Ttisa proposition,” said the court, in Phillips v. Hunter, 2 H. Black. 402, 403,
“not to be disputed, that previous to the bankruptcy the bankrupts themselves
might have transferred or assigned this property, though abroad, as absolutely as
if it had been in their own tangible possession in this country ; and it seems, that
the assignees under their commission were entitled, by operation of law, to do
with it after the bankruptcy, what the bankrupts themselves might have done.”
In Potts v. Hunter, (4 T. R. 182, 192,) the court said: ‘‘ The only question here
is, whether or not the property in that island (Rhode Island) passed by the as-
544 CONFLICT OF LAWS. [cH. Ix.

transfers his whole property to the assignees, who thus become
lege loci, the lawful owners of it, and entitled to administer it for
the benefit of all his creditors. The mode of transfer is wholly
immaterial. The only proper question is, whether it is good ac-
cording to the law of his domicil.!_ This rule is admitted and ap-
plied in all cases of the succession to movable property in cases of
intestacy, where the property passes by mere operation of law, in
the same manner, and to the same extent, as where it passes by
the voluntary act or transfer inter vivos of the owner, or where it
passes by his last will or testament.?

§ 405. The same principle applies with equal force and general
convenience to the disposition of the effects of bankrupts; for the
just and equal distribution of all the funds of that class of debtors
becomes the common concern of the whole commercial world. In
cases of intestacy, it is presumed to be the intent of the intestate,
that his movables, which by fiction of law have no locality, inde-
pendent of his person, should be brought home, and distributed
according to the law of his domicil. It is equally to be presumed,
as the understanding of the commercial world, that the bankrupt’s
effects should follow his person, and be distributed in the place of
his domicil, where the credit was bestowed, or.the payment ex-
pected according to the laws thereof. An assignment under the
bankrupt laws ought to be deemed in all respects of equal force

signment, in the same manner as if the owner (the bankrupt) had assigned it by
his voluntary act. And that it does so pass cannot be doubted, unless there were
some positive law of that country to prevent it.” “On the general reason of
the thing, if there be no positive decision to the contrary, no doubt could be
entertained, but that by the laws of this country, uncontradicted by the laws
of any other country, where personal property may happen to be, the commis-
sioners of a bankrupt may dispose of the personal property of a bankrupt here,
though such property be in a foreign country.” In Goodwin v. Jones, (3 Mass.
R. 517,) Mr. Chief Justice Parsons said: “ The assignment of a bankrupt’s effects
may be considered as his own act, as it is in the execution of laws by which he is
bound, he himself being competent to make such an assignment, and voluntarily.
committing the act which authorized the making of it.” See also Livermore's
Dissert. p. 159, § 249, 250. The same doctrine was affirmed by Lord Mansfield
in Wadham v. Marlow, cited 1 H. Black. 437, 488, 439, note; S. S. and S. P.8
East, R. 814, 316, note z.

1 Ante, § 399, 420, 566.

* Sill v. Worswick, 1 H. Black. 690, 691. ;

* Holmes v. Remsen, 4 Johns. Ch. R. 460, 470; Hunter v. Potts, 4 T. Rx 182).
192.
§404-406.] ~—s BRERSONAL PROPERTY. 545

and validity with a voluntary assignment of the party ; for, by im-
plication of law, he consents to all transfers made of his property
according to the law of his domicil. Great inconveniences would
follow from a different proceeding. Different commissions might
issue in different countries, and have concurrent operation simul
et semel in different countries. And, thus, it would be in the
power of the bankrupt to throw his property under either commis-
sion at pleasure, and to give local preferences to different creditors,
decording to his own partialities or prejudices. Such a state of
things, and such conflicting systems, would lead to great public
inconvenience and confusion, and be the.source of much fraud and.
injustice, and disturb the equality and equity of any bankrupt
system in any country.}

4406. There is great wisdom, therefore, in adopting the rule,
that an assignment in bankruptcy shall operate as a complete and
valid transfer of all his movable property abroad, as well as at
home ; and it has accordingly received a very general sanction. It
is true, that any nation may adopt, if it pleases, a different system,
and prefer an attaching domestic creditor to a foreign assignee or to
foreign creditors. But such a course of legislation can hardly be
deemed consistent with the general comity of nations, and could
scarcely fail to bring on a retaliatory system of preferences in every
other nation injured thereby. But, until such a legislation is posi-
tively made, and interposes a direct obstruction, the true rule is,
to follow out the lead of the general principle, that makes the law
of the owner’s domicil conclusive upon the disposition of his per-
sonal property.2 This reasoning applies in an especial manner to

1 Holmes v. Remsen, 4 Johns. Ch. R. 171; Phillips v. Hunter, 2 H. Black. 402,
—In Phillips v. Hunter, (2 H. Black. 402, 403,) the court said: “ The great
principle of the bankrupt laws is justice founded on equality. This being the
principle of those laws, it seems to follow, that the whole property of the bank-
rupt must be under their (the assignees’) control, without regard to the locality
of that property, except in cases which directly militate against the particular
laws of the country, in which it happens to be situated.” If the bankrupt laws
were circumscribed by the local situation of the property, a door would be open
to all the partiality and undue preferences, which they were framed to prevent;
it being easy to foresee, how frequently property would be sent abroad with that
unjust view immediately previous to and in contemplation of bankruptcy.”

3 Holmes v. Remsen, 4 Johns. R. 471, 472; Hunter v. Potts, 4 T. R. 182, 192;
Sill v. Worswick, 1 H. Black. 691, 693. —In Phillips v. Hunter, (2 H. Black.
402, 405,) the court said: “It is true that the laws of the country, where the
property is situated, have the immediate control over it, in respect to its locality,

46 *
546 CONFLICT, OF LAWS. [cH. Ix,

contracts made in the very country, where the party is declared
bankrupt.'

§ 407. There are many authorities in favor of this doctrine,
As early as 1723, Lord Talbot, then at the bar, gave an opinion,
that the statutes of bankruptcy of England, did not extend to the
plantations ; yet that the personal property of an English bank-
rupt in the plantations passed to the assignees. Lord Hardwicke,
in a case in judgment before him, adopted and acted upon the
doctrine, that an assignment in bankruptcy in England conveyed
the personal property of the bankrupt in foreign countries; and
that their title would overreach that of an attaching creditor after
the assignment, although at that time it was not made known to
the debtor.2 In another case in the Court of Chancery, in Eng-
land, in 1704, where the property of the owner, who was domiciled
in Holland, was taken under a commission of bankruptcy, and,
according to the laws of Holland, the administration thereof given
to, and vested in persons, who are called Curators of Desolate
Estates, it was decided, that the curators had immediately upon
their appointment a title to'recover the debts due to the bankrupt
in England, in preference to the diligence of particular creditors
seeking to attach those debts.”* In another case, in 1769, the

and the immediate protection afforded to it; yet the country, where the proprie-
tor resides, in respect to another species of protection afforded to him and his
property, has a right to regulate his contract relating to that property.” And in
Hunter wv. Potts, (4 T. R. 182,) the court said: “ Every person having property
in a foreign country may dispose of it in this; though, indeed, if there be a law
in that country, directing a particular mode of conveyance, that must be adopted.”
“Jf” said Lord Loughborough “the bankrupt happens to have property, which lies
out of the jurisdiction of the law of England; if the country, in which it lies, pro-
ceeds according to the principles of well-regulated justice, there is no doubt, that
it will give effect to the title of the assignees.” “ But if the law of that country
preferred him (a creditor) to the assignees, though I must suppose that deter-
mination wrong, yet I do not think, that my holding a contrary opinion would
revoke the determination of that country, however I might disapprove ‘of the
principle on which that law so decided.” Sill v. Worswick, 1 H. Black. 691,
693.

1 Sill v. Worswick, 1 H. BL. 691, 693, 694; Phillips v. Hunter, 2 H. Bl. 404,

405; Hunter v. Potts, 4 Term R. 182.

* Livermore, Diss. 140; Beames, Lex. Mercatoria, p. 5, 6, 6th edit.

8 In Wilson’s Case, cited in 1 H. Bl. 691, 692, and probably decided between
1752 and 1756. See also S. C. cited in Hunter v. Potts, 4 T. R. 186, 187.

* Solomons v. Ross, 1 H. Bl. 181, note; Id. 691; S. C. Cooke’s Bank. Laws,
806, 4th edit.
§ 406 - 408.] PERSONAL PROPERTY. 547

same point was decided.1_ These are cases, in which the rule was
asserted in favor of foreign assignees.2 A like decision in favor of
English assignees was made in the Court of Chancery in Ireland
in 1768.3 Lord Thurlow gave it the sanction of his own great
name in a case decided by him in 1787.4

§ 408. The question was most elaborately considered in Eng-
land in two cases decided in 1791, in which it was solemnly held,
that the operation of the bankrupt laws is to vest in the assignees.
all the personal property of the bankrupt, wherever it may be situ-
ate ; and that whenever that property shall be brought into Eng-
land, by any person who has obtained it, the assignees will have a
‘right to recover it of him, for the benefit of all the creditors ; and,
consequently, that an attachment and recovery of such property,
made by a creditor in a foreign country after such assignment, will
be held inoperative; upon the principle, that the title, which is
prior in point of time, ought to obtain preference in point of right
and law.> Upon a writ of error the general doctrine maintained
-in these cases was affirmed; but in its actual application it was
restricted to attachments made by British creditors against British
debtors. In this state the doctrine remained until a very recent
period, when in the case of the bankruptcy of an English partner
in a Scotch partnership, it was discussed anew. A commission of
bankruptcy was issued in England ; and subsequently an arrest,
attachment, or sequestration, was made, by a creditor, of debts
due to the bankrupt in Scotland. The question then arose,
whether the assignees, or the attaching creditor, was entitled to
priority ; and this depended on the question, whether an English
commission of bankruptcy passed to the assignees the title to prop-
erty, or debts locally situate, or due in Scotland. The Court of
Session in Scotland held, that it did ;® and upon appeal, this judg-
ment was affirmed by the House of Lords. ‘One thing” (said
«1 Jollett v. Deponthieu, 1 H. Bl. 132, note; Id. 691.

2 Ibid.

* Neale v. Cottingham, 1 H. Bl. R. 132, note; S.C. cited in Hunter v. Potts,
4 T.R. 194, and Cooke’s Bank. Laws, p. 303, 4th edit., 1799, See. also Quelin
v. Moisson, 1 Knapp, Appeal R. 265, note.

* Ex parte Blakes, 1 Cox, R. 398.

5 Sill v. Worswick, 1 H. Bl. 665, 690, 691, 694; Hunter v. Potts, 4, T. R. 192;
8. C. in Err. 2 H, BL 402.
~ © The' Court of Sessions, in Scotland, gave very elaborate opinions on this sub-
ject, in the Royal Bank of Scotland v. Cuthbert, commonly cited as Stein’s Case,
548 CONFLICT OF LAWS. [ cH. Ix.

Lord Eldon) “is quite clear, that there is not in any book any
dictum or authority that would authorize me to deny, at least in
this place, that an English commission passes, as with respect to
the bankrupt and his creditors in England, the personal property
he has in Scotland or in any foreign country.” ?

1 Rose, Bank. Cases, Appx. 472; 2 Rose, Bank. Cases, 78, 91. See also Smith
y. Buchanan, 1 East, R. 6; 2 Bell, Comm. 684 to 687, 4th edit.; Id. p. 680 to p.
691, 5th edit. :

1 Selkrig v. Davis, 2 Rose, Bank. Cases, 291, 314; §. C. 2 Dow, R. 230, 250;
2 Rose, Bank. Cases, 97. See also ex parte, by Dobrey, 8 Ves. 82; 2 Bell, Comm.
684 to 687, 4th edit.; Holmes v. Remsen, 4 Johns. Ch. R. 460; 8S. C. 20 Johns.
R. 229.— The judgment of Lord Eldon, which was affirmed apparently with
entire unanimity, contains many striking remarks upon the difficulties attendant
upon any other system of international jurisprudence. The following extracts are
particularly valuable to be submitted to the consideration of the American courts:
“In whatever way a Scottish sequestration may be enforced, the distribution of a
bankrupt’s effects under it is perfectly different from what it is under an English
commission of bankruptcy. The Scottish law cuts down all securities that have
been made or given within a certain number of days prior to the issuing of the
sequestration, whether they have been given bond fide, or given, as we should say,
in contemplation of bankruptcy. On the other hand, in our law, though the apr
proximation of the security to the date of the commission may be evidence that
it was given in contemplation of bankruptcy, yet it is but evidence; and the
security may be perfectly good. Again, in England, a man cannot become a
bankrupt without committing an act of bankruptcy. The commission must be
founded on that act of bankruptcy ; and there are various other differences ap-
plying to the property of a bankrupt, as administered under an English commis-
sion, or, vice versd, as distributed by the rules, and according to the forms of a
Scottish sequestration. If, my Lords, you attempt to obviate these inconveniences
by a coexisting sequestration and commission, the difficulty is tenfold greater,
unless the one should be used merely as the means of assisting the distribution
of the funds on the other. What personal property shall belong to the one pro-
ceeding, and what to the other proceeding, is no ordinary difficulty. The counsel
for the appellant say there is no difficulty. — That a debt owing to the house in
Scotland, wherever the debtor lives, ought to go to the Scotch sequestration ; and,
in like manner, that the debt owing to the house in England, wherever the debtor
lives, should go to the commission. But the house may be constituted of persons,
of whom it may be difficult to say, whether a man is a Scotchman or an English-
man. It may happen, that a house is composed of persons, some of whom reside
in Scotland and some in England. I should wish to know, not only, how the
joint debts due to one firm, and the joint debts due to the other, are to be dis-
tributed ; but where separate debts are due to each, whether the separate debts
are to be a fund of distribution under the English commission, or under the Scot-
tish sequestration, or what is to become of them. All these difficulties certainly
belong to this case. But, notwithstanding that, one thing is quite clear ; there is
not in any book, any dictum or authority that would authorize me to deny, at
$408, 409.] PERSONAL PROPERTY. 549

-§409. This is now, accordingly, the settled law of England, in
which the following propositions are firmly established ; first, that an
‘assignment under the bankrupt law of a foreign country passes all
the personal property: of the bankrupt locally situate, and debts
owing in England ; secondly, that an attachment of such property:
by an English creditor, after such bankruptcy, with or without no-
tice to him, is invalid to overreach the assignment; thirdly, that
in England the same doctrine holds under assignments by her own
bankrupt laws, as to personal property and debts of the bankrupt
in foreign countries; fourthly, that, upon principle, all attach-
ments made by foreign creditors, after such assignment in a for-
eign country, ought to be held invalid ; sixthly, that at all events,
a British creditor will not be permitted to hold the property ac-
quired by a judgment under any attachment made in a foreign
country after such assignment; and seventhly, that a foreign cred-
itor, not subjected to British laws, will be permitted'to retain any
such property acquired under any such judgment, if the local laws
(however incorrectly upon principle) confer on him an absolute
title! There is no inconsiderable weiglit of American authority

least in this place, that an English commission passes, as with respect to the bank-
rupt and his creditors in England, the personal property he has in Scotland or in
any foreign country. It is admitted, that the assignment under the English com-
mission, as between the bankrupt and the English and Scotch proprietors, passes
the Scotch property, and vests in the assignees, when the Scotch creditors have
not used legal diligence. I think the case was put at the bar thus: That the-
commission of bankruptcy operated so as to bring into the fund the Scotch per-
sonal property, provided that such personal property was not arrested by legal
diligence i in Scotland, prior to the intimation of the assignment in Scotland. It
was therefore argued, that this was to be put on the same footing as the case of
the assignation of a particular debt to a particular individual. Now, your lord-
ships need “not be told that, by the law of Scotland, if B. assign a debt, which is
- due from C. to B., a creditor of B. may arrest that debt in | the hands’ of the debtor,
notwithstanding the assignment, unless the assignee has given an intimation for-
mally to the person by whom the debt is owing. That must be admitted. Upon
that it has been insisted here, that no intimation has been given, and ‘that this
subsequent arrestment in 1798 ought to have the Preference of the title of the
assignees, under the commission, that was sued out in the year 1782.” 2 Rose,
Bank. Cases, 314 to 316. He afterwards proceeded to decide, that no intimation
was necessary; and if necessary, it was given. Id. 318, 319, See Quelin v.
Moisson, 1 Knapp, Rep. 265.
1 2 Bell, Comm. § 1266, p. 687 to p. 690, 4th edit. ; Id. p. 680 to 690, 5th edit. ;
Holmes v. Remsen, 4 Johns. Ch. R. 460; 8. C. 20 rbhins, R. 229; Dwarris on
Statutes, 650, 651.
550 CONFLICT OF LAWS. (cH. Ix.

on the same side; but it must be admitted, that the preponder-
ating authority is certainly now the other way.?

§ 410. The reasoning, which is urged in support of what may
be deemed the American doctrine, is to the following effect.2 It
is admitted, that the general rule is, that personal property, in-
cluding debts, has no locality, but follows, as to its disposition and
transfer, the law of the domicil of the owner. But every country
may by positive law regulate, as it pleases, the disposition of per-
sonal property found within it; and may prefer its own attaching
creditors to any foreign assignee ; and no other country has any
right to question the determination. When there is no positive
law, the general rule is to govern, with the exception of such cases
as fall within the known principle of Huberus, that it is not preju-
dicial to the state, or to the just rights of its citizens. And this
exception is the very ground upon which the objection to the ubiq-
uity of operation of the bankrupt laws of a country, as respects
the personal estate of the bankrupt, is to be rested.’

[* §410 a. The question of title to choses in action belonging
to an insolvent debtor in the State of Massachusetts, who had there
gone into insolvency, in conformity with the statutes of that state,
the debtor residing in the State of Connecticut, and the debt hav-
ing been there attached by process of foreign attachment, by cred-

1 Mr. Chief Justice Parsons certainly held this opinion in Goodwin v. Jones, 3-
Mass. R. 517. And Mr. Chancellor Kent has sustained it in one of his most eTab-
orate judgments, which will well reward a diligent perusal. Holmes v. Remsen,
4 Johns. Ch. R. 460. This is also, as we shall see, the law in France and Hol-
land. Post, § 417. See Parish v. Seton, Cooper’s Bank. Law, 27; Holmes v.
Remsen, 4 Johns. Ch. R. 484; S. P. 20 Johns, R. 258; Blake v. Williams, 6 Pick.
R. 312, 313; Merlin, Répertoire, Faillité et Banqueroute, Art. 10. Mr. Chan-
cellor Kent, in his Commentaries (2 Kent, Comm. Lect. 37, p. 404 to p. 408, 3d
edit.) has with great candor admitted, that the American doctrine is now estab-
lished the other way by a preponderance of authority ; although he has an undis-
guised distrust of the validity of its foundation. There are not a few jurists in
America, each of whom may be disposed to use on this occasion the language of
a great orator of antiquity, “ Ego assentior Scevole.” See Livermore’s Diss.
§ 223 to 248, p. 140 to p. 158. There are in Mr. Henry's Appendix to his work
on Foreign Law, p. 251 to p. 258, some curious opinions given by counsel in
1715, as to the effect of an attachment after a foreign bankruptcy. See also
Devisme v. Martin, Wyeth’s Virg. R. 183.

* See Betton v. Valentine,1 Curtis, C. C. 168; Booth v. Clark, 17 How. 322,
where the subject is examined at some length.

* Blake v. Williams, 6 Pick. 286 ; Olivier v. Townes, 14 Martin, R. 93, 97 to—
100; Milne v. Moreton, 6 Binn. 853; Very v. McHenry, 29 Maine, 208.
§409-412.] PERSONAL PROPERTY. 551

itors residing in Massachusetts, was considerably discussed before
the Court of Errors in Connecticut, upon a bill in equity} brought
by the assignee in Massachusetts. It was here decided that for-
eign assignees could not sue in the courts of that state; that -the
attachments being prior to the proceedings in insolvency could not
be divested by such proceedings, and that the discharge of the in-
solvent, if a bar to a personal judgment against the insolvent, pre-
sented no obstacle to a qualified judgment for the purpose of the
application of the property attached. This decision is placed upon
the ground of the common law of Connecticut, as shown by the
decisions of the highest courts from an early day.]

§ 411. There is a marked distinction between a voluntary con-
veyance of property by the owner, and a conveyance by mere oper-
ation of law in cases, of bankruptcy, in invitum. Laws cannot force
the will, nor compel any man to make a conveyance. In place of
a voluntary conveyance of the owner, all that the legislature of a
country can do, when justice requires it, is to assume the dispo-
sition of his property in invitum. But a statutable conveyance,
made under the authority of any legislature, cannot operate upon
any property, except that which is within its own territory. This
makes a solid distinction between a voluntary conveyance of the
owner and an involuntary legal conveyance by the mere authority
of law. The former has no relation to place; the latter, on the
contrary, has the strictest relation to place. This distinction is
insisted on with great force by Lord Kames.2 It is, therefore, ad-
mitted, that a voluntary assignment by a party, according to the
law of his domicil, will pass his personal estate, whatever may be
its locality, abroad as well as at home. But it by no means fol-
lows, that the same rule should govern in cases of assignments by
operation of law.

§412. The true rule in such cases is to hold, that the assignees
are in the same situation, as the bankrupt himself, in regard to
foreign debts. They take the property under the assignment, sub-
ject to every equity belonging to foreign creditors, and subject to
the remedies provided by the laws of the foreign country, where
the debt is due; and when they are permitted to sue in a foreign

[*? Upton v. Hubbard, 28 Conn. R. 274.]

* Kames on Equity, B. 3, ch. 8, § 6; Remsen v. Holmes, 20 Johns. R. 258, 259;
Moreton v. Milne, 6 Binn. 353, 369; ante, § 351 4.

* Speed v. May, 5 Harris, 91; Law v. Mills, 6 Harris, 185.
t

552 CONFLICT OF LAWS. [ cH. rx.

country, it is not as assignees, having an interest, but as the rep-
resentatives of the bankrupt. They stand upon the footing of.ad-
ministrators only, with a right to sue for the benefit of all the
creditors. But our local law will not regard the choses in action
of the debtor, as exclusively appropriated to the use of such as-
signees ; and a preference can be gained by them only by pursuing
the remedies which our local laws afford. This was formerly the
rule in England.?

§ 413. Nor can it be truly said, that an assignment by the
bankrupt laws is with the consent of the bankrupt, because he as-
sents by implication to such laws. This is a very unsafe and dan-
gerous principle, on which to risk the doctrine; for in the same
way it may be said, that a man, committing a crime, for which his
estate is forfeited, voluntarily consents to its transfer. But the’
principle, whether correct or not, ¢éan only apply to cases, where
the debtor and creditor belong to the same country. (It is wholly

‘inapplicable to foreign creditors.

§ 414. Besides; national comity requires us to give effect to
such assignments only so far as may be done without impairing
the remedies, or lessening the securities, which our laws have
provided for our own citizens. The rule is: Quatenus sine pre-
judicio indulgentium fieri potest.2 And after all, this is mere
comity, and not international law. All comity of this sort must
be built up in a great measure upon the doctrine of reciprocity ;
and this is extremely difficult from the known diversities in the
jurisprudence of different nations.? It would prejudice the rights
and remedies of our citizens in our own courts, to suffer the as-
signments under foreign bankrupt laws to prevail over their own
diligence, in seeking remedies against their debtors in our own
courts. If there is in such cases a conflict between our own laws
and foreign laws, as to the rights of our citizens, and one of them
must give way, our own laws ought to prevail. The most con-
venient and practical rule is, that statutable assignments, as to
creditors, shall operate intra-territorially only. If our citizens con-
duct themselves according to our laws in regard to the property of

1 See Mawdesley v. Park, cited 1 H. Black. R. 680.

2 Huberus, Lib. 1, tit. 3, De Conflict. Leg. § 2.

* Blake v. Williams, 6 Pick. R. 286, 813, 314, 315; Milne v. Moreton, 6 Binn.
353, 375 ; Remsen v. Holmes, 20 Johns. R. 229, 263, 264,

* Potter v. Brown, 5 East, R. 121; ante, § 326.
§ 412-416.] PERSONAL PROPERTY. 553

their debtors, found within our jurisdiction, it is reasonable that
they should reap the fruits of their diligence, and not be sent to a
foreign country to receive such a dividend of their debtor’s effects,
as the foreign laws allow. If each government in cases of insol-
vency should sequester, and distribute the funds within its own
jurisdiction, the general result will be favorable to the interest of
ereditors, and to the harmony of nations. This is the rule adopted
in all cases of administration of the property of deceased persons ;
and there is no real difference between the principle of those cases,
and of cases of bankruptcy.?

§ 415. Down to the time of the American Revolution, this may
be fairly deemed to have been the English doctrine. It has since
been changed. Even in England the principle has not as yet been
applied in favor of any foreign countries, except such as have bank-

_tupt laws in form or substance ; and we have none in our country.?

It can make no difference in the case, whether the debt of the
attaching creditor accrued here, or in foreign countries; for in
either case the question is not as to the validity of the contract,
but as to a collateral matter, that is to say, the effect to be given
to it, in a conflict between rights growing out of our own laws, and
those of a foreign country.®

§ 416. Neither is it true, that even the voluntary conveyances
of parties in all cases are to be held valid, where they are preju-
dicial to the rights and remedies of our own citizens. In Massa-
chusetts, for instance, it has been held, that a voluntary assignment
by a debtor of all his property, made in Pennsylvania for the
benefit of creditors generally, shall not prevail over a subsequent’
attachment of the funds of the debtor made after the assignment ;
because such an assignment would be void by the laws of Massa-
chusetts, if made in that state, as being in fraud of creditors; and
it is unjust and unequal in its effects, and prejudicial to the citizens .
of the state. In such a case, therefore, the party: who shall by
process first attach the debt or seize the property, ought to prevail,
whether creditor or assignee.*

? Remsen v. Holmes, 20 Johns. R, 229, 265; Milne v. Moreton, 6 Binn. R.
358, 361; Blake v. Williams, 6 Pick. R. 286.

* Remsen v. Holmes, 20 Johns. R. 229; Blake v. Williams, 6 Pick. R. 286 ;
Milne v. Moreton, 6 Binn. R. 353; Wallace v. Patterson, 2 Har. & McHen. R.
463; Abraham v. Plestero, 3 Wendell, R. 538, 549, 550.

* Milne v. Moreton, 6 Binn. 360,

“ Ingraham v. Geyer, 18 Mass. R. 146; S. C. cited 6*Pick. R. 307, See also
CONFL, 47
554 CONFLICT OF LAWS. [ou. mx.

§ 417. It is admitted, in the reasoning in the American cases,
that the old law of France and Holland is in coincidence with the
British doctrine. The modern law of those countries is equally
decisive in its support; and very recent cases have given it a com-
plete confirmation in their tribunals. The principal grounds of
their decisions may be summed up in the following propositions.
(1.) That the law of the domicil may rightfully devest the debtor
of the administrator of his property, and place it under the admin-
istration of assignees or syndics. (2.) That laws, whose effects
are to regulate the capacity and incapacity of persons, their per-
sonal actions, and their movables, everywhere belong to the cate-
gory of personal statutes. (8.) That it is a matter of universal
jurisprudence, and especially of that of France and the Nether-
lands, that the debts, actively considered, of an inhabitant against
a foreigner, are deemed a part of his movable property, and have.
their locality in the place of domicil of the creditor.2 At the same
time, it is admitted, that a purchaser from the bankrupt, in a for-
eign country, of property there locally situate, would be entitled to
hold it against the assignees, if, at the time, he had no knowledge
of any bankruptcy, or of any intent to defraud creditors.’

§ 418. The American doctrine has been followed out to another
result. Suppose (as was the fact in one case) after a commission
and assignment in bankruptcy in England, the bankrupt should
voluntarily make a confirmatory conveyance in aid of the commis-

Olivier v. Townes, 6 Pick. R. 97 to 101.. But see Caskie v. Webster, 2 Wallace,
Jr., R. 131. This summary of the American reasoning is principally extracted from
the three leading cases of Milne v. Moreton, 6 Binn. R. 353, Remsen v. Holmes,
20 Johns. R. 229, and Blake v. Williams, 6 Pick. R. 286, where the subject is very
elaborately discussed. The same doctrine will be found supported in other Ameri-
can cases, cited in 2 Kent, Comm. Lect. 37, p. 406 to 408, 3d edit. See also
Olivier v. Townes, 14 Martin, R. 93, 99; Harrison v. Sterry, 5 Cranch, R. 289;
Ogden v. Saunders, 12 Wheaton, R. 213; Id. 360 to 369; Saunders v. Williams,
5 New Hamp. R. 213; Plestoro v. Abraham, 1 Paige, R. 237; 8. C. 3 Wendell,
R. 538; Fox v. Adams, 5 Greenl. R. 245; Wallace v. Paterson, 2 Harr. & Me-
Hen. R. 463; Ogden v. Saunders, 12 Wheat. R. 218, 359, 360, 361, 362; ante,
§ 399 to 401. mn

* Holmes v. Remsen, 4 Johns. Ch. R. 484; Remsen v. Holmes, 20 Johns. R.
258; Blake v. Williams, 6 Pick. R. 312, 313; ante, § 409, note ; Henry on For-
eign Law, p. 127 to 135; Id. p. 153 to 160; Id. p. 248 to 250. .

* Merlin, Répertoire, Faillité and Banqueroute, § 2, 3, art. 10, p. 412; Henry
on Foreign Law, p. 127 to 185; Id. 175.

” Merlin, Id. p. 415, 416.
§ 417 -419.] PERSONAL PROPERTY. * 555

sion ; the question is, whether it will have the effect of a voluntary
assignment, so as to defeat a subsequent attachment in America ?
It has been held, by a learned judge in New York, that it will not;
because, by the law of England, the commission devests the title
of the bankrupt in all his property throughout the world ; and he
no longer has any capacity to convey it; but in regard to that
property, he is to be treated as civiliter mortuus.1 There is great
difficulty in maintaining this doctrine. For if the statutable assign-
ment does, per se, transfer the personal property of the bankrupt in
foreign countries to the assignees, and devest all his title to it, then
it would seem to follow, that a subsequent attachment of it must
be wholly inoperative, because he has no longer any attachable in-
terest in it. We are not at liberty to treat the property as still in
him for one purpose, and out of him for another. The doctrine
of Mr. Chancellor Kent is certainly here far more satisfactory,
giving to such a voluntary assignment a full confirmatory effect.”
§ 419. There are some other questions, arising from the opera-
tion of foreign bankrupt laws, and other analogous systems of pro-
ceeding for the benefit of creditors generally, in invitum, which
have come under judicial cognizance, and deserve attention. In
the first place, suppose a British subject is declared bankrupt,
while he is on a voyage in ¢ransitu from England to America; and
he has a large shipment of property with him; is he entitled to
hold it when it arrives in America? Or, can his assignees main-
tain a suit against him, or against other persons, holding it for his
use, not:being creditors? It has been held, by a learned Chancel-
lor of New York, (Walworth,) that the assignees are entitled to
recover, upon the ground that the assignment operates as a good
conveyance to them against the bankrupt, and those holding for
his use. On that occasion, the learned judge stated the distinction
between that case, and the preceding cases. ‘In those cases,”
said he, “the contest was between foreign assignees and domestic
creditors, claiming under the laws of the country where the prop-
erty was situate, and where the suits were brought. The ques-
tion in those cases was, whether the personal property of the
debtor was to be considered as having locality, for the purpose of
giving a remedy to the creditors residing in the country, where the
property was in fact situated at the time of the foreign attach-

‘ Mr. Justice Platt, in Remsen v. Holmes, 20 Johns. R. 267.
* Holmes v. Remsen, 4 Johns. Ch. R- 489.
556 - CONFLICT OF LAWS. [CH. Ix.

ment. In this case, the controversy is between the bankrupt and
his assignees and creditors, all residing in the country under
whose laws the assignment was made. Liven the property itself at
the time of assignment was constructively within the jurisdiction
of that country, being on the high seas, in the actual possession of
a British subject. Under such circumstances the assignment had
the effect to change the property, and devest the title of the bank-
rupt, as if the same had been sold in England under an execution
against him, or he had voluntarily conveyed the same to the as-
signees for the benefit of his creditors.” 1 Upon an appeal, how-
ever, this doctrine was not in terms confirmed by the appellate
court; and some of the judges dissented from the doctrine of
the chancellor. But the case was ultimately reversed on another
point.?

§ 420. It is obvious, that the great question involved in this
case was, whether an assignment under a foreign bankrupt law
operates as a transfer of personal property in this country. It
matters not, in respect to the bankrupt himself, or others claiming
under him, not being creditors or purchasers, whether it operates
as a legal or as an equitable transfer. In either way it will devest
him of his beneficial interest. Upon this point, it is impossible
not to feel, that the general current of American authority is in
perfect coincidence with that of England, in favor of the title of
the assignees. In most of the cases in which assignments under
foreign bankrupt laws have been denied to give a title against at-

_ taching creditors, it has been distinctly admitted, that the assignees
might maintain suits in our courts under such assignments for the

) Plestoro v. Abraham, 1 Paige, R. 236; S. C. 3 Wend. R. 538.

* Abraham v. Plestoro, 8 Wend. 538. — It is difficult to perceive, how the doc-
trine of the,chancellor, as to the operation of the British bankrupt laws upon

British subjects and their property in transitu, can be answered. The transfer |. , .

must be admitted to be operative to devest the bankrupt’s title to the extent of
an estoppel, as to his own personal claim in opposition to it ; for the law of Amer-
ica, be it what it may, had not then operated upon it. It was not locally within
our jurisdiction. No one could doubt the right of the assignee to personal prop-
erty locally in England at the time of the assignment. In what respect does
such a case differ from a case where it has not passed into another jurisdic-
tion? Is there any substantial difference between its being on board of a British
vessel and its being on board of an American vessel on the high seas? See ante,
$391,

* See 1 H. Black. 691; 6 Maule & Selw. 126; 1 East, R. 6; Cooke’s Bank.
Laws, (4th edit.) 304; Doug. R. 161, 170; ante, § 403 to § 410,

\
§ 419-421] PERSONAL PROPERTY. 557

property of the bankrupt.’ This is avowed in the most unequivo-
cal manner in the leading cases in Pennsylvania and New York,
already cited, and it is silently admitted in those in Massachusetts.?
And unless the admission can be overthrown, it surrenders the
principle ; for no one will contend, that the assignees can sue
either in law or in equity in our courts, unless they possess some
title under the assignment. The point has hitherto been a strug-
gle for priority and preference between parties, claiming against
the bankrupt under opposing titles; the assignees claiming for the
general creditors, and the attaching creditors for their separate
rights.

§ 421. It is true, that Mr. Chief Justice Marshall, in delivering
the opinion of the court in Harrison v. Sterry,? used the following
language :.“‘ As the bankrupt law of a foreign country is incapable
of operating a legal transfer of property in the United States, the
remaining two thirds of the funds are liable to the attaching cred-
itors, according to the legal preference obtained by their attach-
ments.” But the very terms of this statement show, that the
court were examining the point, only as between the conflicting
rights of the assignees and those of the attaching creditors, and
not in relation to the bankrupt himself. And this is manifestly
the light in which the doctrine was contemplated by the majority
of the court in a subsequent case.* -

*In Alivon v. Furnival, 1 Cromp. Mees. & Rose. 296, it was held, that if by
the law of the foreign country the assignees or syndics of a foreign bankrupt
may suesthere, the same right to sue in England will be allowed by the comity of
nations; and that if there are three assignees or syndics appointed under the for-
eign fe that two may by that law sue without joining the third, the same right
to sue by two will be acknowledged and enforced by the same comity in England.
Upon that occasion Mr. Baron Parke, in delivering the opinion of the court, said :
«This is a peculiar right of action created by the law of the country, and we
think it may by the comity of nations be enforced in this, as much as the right of
foreion assignees or curators, or foreign corporations appointed or created ina
differant way from that which the law of this country requires.” See ante, § 355,
399, 400 ; post, § 565, 566.

2 Holuies 4. Remsen, 4 Johns. Ch. R. 485; S.C. 20 Johns. R. 262, 263; Milne
v. Moreton, 6 Binn. 363, 374 ;. Livermore’s Diss, 142, 152; Blake »v. Williams, 6
Pick. R. 305; Ingraham v. Gover, 13 Mass. R. 146, 147; Goodwin v. Jones, 8
Mass. R. 517. But see contra, Orr v. Amory, 11 Mass. R. 25; Caskie v. Webster,
2 Wallace, Jr., 131. See ante, § 399, note; post, § 566.

* 5 Cranch, R. 289, 302. See also Ogden v. Saunders, 12 Wheaton,’ R. 61, 362,
363, 364,

* Ogden v. Saunders, 12 Wheaton, R. 359 to 365.
47% ;
558 CONFLICT OF LAWS. [cH. rx.

§ 422. In cases of partnership, where there are different firms
in different countries, or some of the partners reside in one, and
some in another country, there are still more embarrassing diffi-
culties attendant upon questions of foreign bankrupt assignments.
If one partner is declared a bankrupt under a foreign commission,
his share and interest only in the funds there can pass to his
assignees, as against thé partners in another country. And of
course they must take, subject to an account between all the part-
ners, and stand precisely as the bankrupt does, on a settlement of
all claims as between debtor and creditor.! Let us suppose the
case of a partnership in the British West Indies, and in England ;
and one of the partners resides in England and becomes bank-
rupt ; and an assignment is made; and afterwards a British West
India creditor of the firm, attaches a debt, due to the firm in the
West Indies, and procures a judgment and satisfaction there.
Can he be compelled to refund the same upon a suit brought by
the assignees against him in England? Sir William Grant, in a
case of this sort, decided in the negative; and on that occasion
seemed to have great difficulty in reconciling his mind to the de-
cisions upon the more general questions of satisfaction obtained
abroad by a creditor in case of a sole bankruptcy. He held, that
the bankruptcy of the partner resident in England could not affect
the partners remaining in the West Indies, in a country not sub-
ject to the bankrupt law, so as to devest them of the management
of the partnership concerns, or of the disposition of the partner-
ship property. If they applied the partnership assets in the pay-
ment of the partnership debts; or if, in a legal course of proceed-
ings against them, the debts were recovered according to the law
of the country, no jurisdiction could exist in England to force the
partnership, or the creditor to refund what he had so received or
so recovered. Under such circumstances the foreign partners and
foreign creditors must be left to their general rights and reme-
dies? The same doctrine seems to be acknowledged in other
nations where there are partnerships and partners resident in dif-
ferent countries.

§ 423. But, whatever may be the rule in relation to foreign
voluntary assignments or foreign bankrupt assignments, for the

1 Harrison v. Sterry, 5 Cranch, R. 289, 302.

* Brickwood v. Miller, 3 Merivale, R. 279.

* See Merlin, Répertoire, Faillité, et Banqueroute, § 2, art. 10, page 414.
iN

§ 422-428 a.] PERSONAL PROPERTY. 559

benefit of creditors generally, there is no doubt that there are
some assignments, which take effect by mere operation of law in
foreign countries, and are admitted to have universal validity and
. effect upon personal property, without respect to its locality.
Such is the case of a transfer of personal property arising from
marriage. . Thus, a marriage, contracted by citizens of Massachu-
setts, is a gift in law to the husband of all the personal, tangible
property of the wife, and operates as a transfer of it to him, wher-
ever it may be situate, at home or abroad. And the right, thus
acquired by the law of the matrimonial domicil, will be held of
perfect force and validity in every other country, nothwithstanding
the like rule would not arise in regard to domestic marriages by
its own municipal code. This doctrine was adverted to by Lord
Meadowbank, in a very important case already referred to, as per-
fectly clear and established. “In the ordinary case,”’ says he, “ of
a transference by contract of marriage, when a lady of fortune,
having a great deal of money in Scotland, or stock in the banks,
or public companies there, marries in London, the whole property
is, ipso jure, her husband’s. It is assigned to him. The legal as-
signment of a marriage operates without regard to territory, all
the world over.” 2 Lord Eldon, on several occasions, has given
this doctrine the fullest sanction of his own judgment, averring,
that notice was not even necessary to give full effect to such a
title? The same doctrine was fully admitted in Remsen v.
Holmes ;‘ and it is treated by elementary writers as beyond con-
troversy.5, We have already seen that foreign jurists press the
doctrine to its fullest extent.® |

§ 423 a. It is principally in cases of voluntary, assignments,
made by a debtor for the benefit of creditors, or of involuntary as-
signments under the bankrupt laws of a state against a debtor in
invitum, that questions arise respecting the conflicting rights of
creditors, (concursus creditorwm,) as to the priorities and privileges
in the distribution and marshalling of the assets, when they are

* See ante, § 398.

2 Ante, § 59, note; Royal Bank of Scotland v, Cuthbert, 1 Rose, Bank. Cas.
Appx. 481. See ante, § 396, 397, 398.

* Selkrig v. Davis, 2 Rose, Bank. Cas. 97, 99; Id. S. C. 291, 317.

* 20 Johns. R. 267. .

* 2 Bell, Comm. § 1266, p. 696, 697, 4th edit. ; Id. p. 680, 685, 686, 5th edit. ;
Liverm. Diss. 140, § 223.

® Ante, § 145, 146, 417.
560 CONFLICT OF LAWS. [cH. Ix.

insufficient to pay all the debts of the party. We have already
had occasion to take notice, that generally in cases of movable
property the priorities and privileges are to be adjusted, and the
distribution is to be made, according to the law of the domicil of
the debtor,' founded upon the notion, that there all his movable
property is in contemplation of law concentrated, although a part
of it may be locally situated elsewhere, according to the maxim:
Mobilia non habent sequelam ; mobilia tamquam ossibus affixca per-
sone.2 And in relation to immovable property, the distribution is
to be made according to the lex rei site. Lxceptions may doubt-
less exist, where the law of the country, in which either movable
or immovable property is situate, prescribes a different rule, which
must then be obeyed.? Similar rules will govern in cases of vol-
untary assignments by debtors, and of involuntary assignments
under the bankrupt laws of a state. In each. case the lex loci of
the assignment or the bankruptcy will ordinarily form the basis
of the priorities and privileges attaching to his movable property,
and will regulate the distribution thereof among his creditors, at
least if that is the place of his domicil, and of the situs of the
property. If the property is immovable, or is situate elsewhere,
the lea loci rei site will, or at least may govern the same.®

§ 423 6. Priorities’and privileges are, indeed, generally treated
as belonging to the form and order of proceedings, and are there-
fore properly governed by the lex fori; and they are not treated
as belonging to the merits and matters of the decision. Roden-
burg says: Primum utamur vulgata D. D. distinctione, qué sepa-
rantur ea, que litis formam concernunt ac ordinationem, separan-
tur ab tis, qe decisionem aut materiam. Lis ordinanda secundum
morem loci, in quo, ventilatur. Ut si judicati exequendi causd bona
debitoris distrahantur, qui solvendo sit, executio peragatur eo loci,
ubi bona sita sunt, aut in causam judicati capiuntur. Sin cesserit
foro debitor, aut propalam desierit esse solvendo, ut isti mobilium
capioni, aut ulli omnino executioni non sit ultra locus, facta jam
omnium creditorum conditione pari, disputatio de privilegiis, aut

+ Ante, § 328 to 328.

* Ante, § 362, 877, 878.

5 Ante, § 322 to 328 ; post, § 428.

* See Rodenburg, De Divers. Statut. tit, 2, ch. 5, § 5,6; 2 Boullenois, p. 37,
88; post, § 550.

5 Ante, § 322, 828, 385 to 400, 402 to 422.
§ 423 a-428 c.] PERSONAL PROPERTY. 561

concurs creditorum, veniat instituenda, ubi debitor habuerit domi-
cilium.4

§ 423 c. Matthasus (whose opinions have been already in .part
cited in another place”) holds, that hypothecations of movables
are to be governed by the law of the domicil of the debtor; and
hypothecations of immovables by the lex loci rei site. In respect
to priorities and privileges between hypothecary creditors upon
movables, the law of the domicil of the debtor is to govern ; and
in respect to such priorities and privileges between hypothecary
creditors upon immovables, the law of the situs rei, unless indeed
the contest solely concerns their rights, in the domicil of the
debtor. Quantum ad leges, secundum quas in disputatione de pro-
topraxia judicandum, distinctio adhibenda est. Si bona mobilia
debitoris in diversis provincits sint, spectande sunt leges ejus loci, .
ubi debitor domicilium habet. Est enim vulgatum apud doctores,
mobilia sequi personam, et idcirco censeri eo jure, quod obtinet, ubt
domicilium persona habet. Itaque si in loco domicilii valet pignus
ret mobilis nudo pacto constitutum, manente possessione penes debi-
torem, potior erit in pignore is, cut ante res obligata est, licet non
sit translata in eum possessio. Et si creditor aliquis in loco domi-
cit debitoris privilegium inter personales habeat, gaudebit eodem
privilegio in ea civitate, in qua debitor tabernam habuit et merces.
Contra, si in loco domicilii mobilia non habeant sequelam, nec cre-
ditor privilegium, frustra volet uti jure alterius civitatis, in qua
utrumque contrario modo se habere perspicit. Quantum vero ad
predia attinet, separanda videtur hypotheca ab eo privilegio, quod
quis inter hypothecarios exercet. In estimanda hypotheca spec-
tanda sunt ejus territorii jura, ubi predium situm est. Itaque si in
loco domicilii debitoris predia obligari possint citra judicis aucto-
ritatem, predia vero sita sint in eq provincia, ubi oppigneratio
judicialis desideratur, frustra obtendes locum domicilii, ad exclu-
dendum secundum creditorem, cui coram judice loci predium
pignori nexum ést. Quod, si utrique fundus rité oppigneratus sit,
disputetur autem solummodo de privilegio, quod alter inter hypo-
thecarios in loco domicilii debitoris habere se dicit, tum locus domt-
ciliit spectandus videtur : quia privilegium illud personam concernit,
Jundum autem pigneratum non affcit

: Roedenburg, De Divers. Statut. tit, 2, ch. 5, § 16; 2 Boullenois, Appx. p. 46,
47; ante, § 325 ¢ to 325 f, and note. * Ante, § 325 i, 325 k.

* Matthaus, de Auctionibus, Lib. 1, cap. 21, § 10, n. 35, p. 294, 295; Id. n. 41,
p. 298, 299.
562 CONFLICT OF LAWS. [(CH. Ix.

§ 423 d. Mr. Burge maintains a similar opinion, taking a dis-
tinction between ordinary liens and the priorities between credi-
tors. ‘The vendor’s lien,” says he, “on the movables sold, and
the right to stop them in transitu for the payment of the price, are
privileges which attach to the subject sold, and are governed by
the lex loci contracts. They are distinguished from the prefer.
ences which a creditor may claim on the estate of a debtor, when
it is distributed under an execution sale, or general concursus of
his creditors. The latter depend not on the lex loci contractis,
but.on that of the place where the movable estate is fictione juris
considered to be situated, namely, in the domicil of its owner. The
lex loci contractés, although it is properly invoked as between the
parties to the contract, yet it is considered unjust to give it effect

_against third parties, the creditors.” }

§ 423 e. Mr. Bell adopts the doctrine in its fullest extent, that
an assignment in bankruptcy conveys all the movable property of
the bankrupt, wherever it may be, and it is to be distributed ac-
cording to the law of the place where the debtor has his domicil,
and the proceedings in bankruptcy are had. But in relation to
immovable property, that it is to be distributed and administered
according to the territorial law. His language is: “The great
rule on which the whole of the doctrine relative to the interna-
tional effect of bankruptcy depends, has been completely fixed in
all the three kingdoms upon a general principle of the law of na-
tions ; namely, that the personal estate is held as situate in that
country where the bankrupt has his domicil: and that it is to be
administered in bankruptcy according to the rules of the law of
that country, just as if locally placed within it. The consequence
of fixing this rule is, that a commission of bankruptcy in England
or in Ireland, and the assignment following on it, or a sequestra-
tion in Scotland, and the conveyance to the trustee, have the effect
of transferring to the trustee or assignees the whole personal estate
of the bankrupt; that this transference defeats all preferences at-
tempted to be obtained by the diligence of the law of the country
where such estate happens to be placed, or by any voluntary con-
veyance of the bankrupt, after. the period when the effect of the
procecdings under the bankruptcy attaches to the funds.”2 And

* 3 Burge, Comm, on Col. and For. Law, Pt. 2, ch. 20, p- 770; Id. p. 778, 779;
ante, § 327, note.

* 2 Bell, Comm. § 1266, p. 684, 685, 4th edit. ; Id. p. 681, 682, 5th edit. .
§428 d, 423 e.] PERSONAL PROPERTY. 563

again: “‘ Another great point in this doctrine is, what effect shall
be allowed in Scotland to a different decision in any foreign coun-
try from that which has been adopted in- these islands? Let it be
supposed, for example, that effects of the bankrupt are in a coun-
try, in which the sequestration and the conveyance to the trustee
are held to be of no force, and where preference is given to the
diligence of the country in which the effects are situate ; —Is the
creditor, who recovers payment under such local rule, obliged to
pay over to fhe trustee in this country, for general distribution, the
money he has received? And this, again, resolves into two ques-
tions, — (1.) Whether the creditor can claim for any balance with-
out having communicated what he has received ? and, (2.) Whether
he is liable to an action for restitution? In England, where there
is no provision by statute for regulating this matter, it is held, —
(1.) That an English creditor, who, having notice of the bank-
ruptcy, makes affidavit in England, in order to proceed abroad,
cannot retain against the assignees what he recovers. (2.) That
a creditor in the foreign country would not, if preferred by the laws
of that country, be obliged to refund in England ; and, (3.) That,
at all events, such a creditor cannot take advantage of the bank-
rupt laws in England, without communicating the benefit of his
foreign proceedings. In Scotland, there is an express provision in
the statute relative to payments and preferences abroad, the policy
of which it is proper to explain. As the jurisdiction of the Court
of Session does not reach foreign countries, wherever the principle
of the law of nations does not operate, or has been evaded, it is
provided, — 1.) That the creditor, who, after the first deliverance
on the petition for sequestration, shall obtain payment or prefer-
ence abroad, shall be obliged to communicate, and assign the same
to the trustee for behoof of the creditors, before he can draw any
dividend out of the funds in the hands of the trustee; and, (2.)
That, in all events, whether he claims under the sequestration or
not, he shall be liable to an action before the Court of Session, at
the instance of the trustee, to communicate the said security or
payment, in so far as the jurisdiction of the court can reach him.
It may, however, as already observed, be doubted, whether this
enactment, in so far as it exposes a creditor to a challenge, even
where he does not claim under the sequestration, might be held to
include foreign creditors, not apprised of the bankruptcy and pro-
ceedings in this country, but who, having recovered, in the usual
564 CONFLICT OF LAWS. [ou. rx.

way, the property of their debtor abroad, should have come after-
wards to Scotland. Recently the question occurred under these
enactments, whether a local statute in one of our colonies abroad,
which was said to proceed on views of local utility, did not so far
qualify the sequestration statute of this country, that the foreign
creditors should be entitled to retain the preference they had ob-
tained ? But the court held, that the preference could not be sup-
ported. As to real estate, the estate in land, or connected with
land, there is a difference of principle very remarkable. The real
estate is, not like the personal, regulated by the law of the domicil
but by the territorial law. Areal estate in England is not.held to
be under the disposition of the bankrupt laws of Scotland, if the
proprietor be a trader there. Nor is an heritable estate in Scot-
land affected by the commission of the English law. And yet the
spirit and policy of the laws, considered internationally, should
open to the creditors of a bankrupt in either country the power of
attaching his real estates.” +

§ 423 f. In regard to voluntary assignments for the benefit of
creditors with certain preferences, they must, (as has been already
stated,”) as to their validity and operation, be governed by the lez
loci contractds. If they are valid there, full operation will ordi-
narily be given to them in every other country where the matter
may come into litigation and discussion. But it is a very differ-
ent question, whether they shall be permitted to operate upon
property locally situated in another country, whether movable or
immovable, by whose laws such a conveyance would be treated as
a fraud upon the unpreferred creditors. That question was dis-
cussed in the case already alluded to, where an assignment, made
in Alabama, giving preferences to certain oreditors, came collater-
ally under discussion in Louisiana, by whose laws such an assign-
ment would be treated as a fraud. On that occasion the court
said: ‘¢ We find no difficulty in assenting to the proposition, that
contracts entered into in other states, as it relates to their validity
and the capacity of the contracting parties, are to be tested here by
the lex loci celebrati contractus. This court has often recognized
that doctrine, as well settled. When a contract is entered into in
Alabama, in conformity to the local law, to have its effects and

1 2 Bell, Comm. § 1266, p. 689, 690, 4th edit.; Id. p- 685, 686, 5th-edit. See

Lord Eldon’s remarks in Selkrig v. Davis, 2 Rose, R. 311.
2 Ante, § 259 a.

e
§ 423 e - 428 g.] PERSONAL PROPERTY. 565

execution there, it is clear the courts of this state cannot ‘declare
its nullity on the ground, that such a contract would not be valid
according to our system of jurisprudence. Such would be the
case, even if one of the contracting parties, or both, were not citi-
zens of Alabama. If Andrews, for example, had been a citizen of
Louisiana, having creditors and effects both here and in Alabama,
had gone over to that state, and transferred a portion of his prop-
erty there to certain preferred creditors, such a transaction, as to
its legality, would depend upon the law of Alabama. But if such
a citizen of Louisiana should immediately afterwards seek to avail
himself of the benefit of our insolvent laws, a different question
would present itself. Although our courts might not be author-
ized to annul such contracts, as to their effects between the par-
ties ; yet they might well inquire, whether it was not the intention
of the legislature to afford the protection of the insolvent laws to
such only as shall have abstained from giving an undue preference
to certain creditors, in derogation of that vital principle of our sys-
tem, that the property of the debtor forms the common pledge of
his creditors, and although such preferences may be tolerated by
the lex loci. If the legislature has thought proper to declare such
a condition as one upon which shall depend the right to claim the
benefit of the insolvent laws, which it is not denied they had an
unquestionable right to do, then there is an end to the argument,
unless it can be shown, that the mere residence of the party in an--
other state, dispenses him from a compliance with the creditor.” +

§ 423 g. These are by no means the only cases of a conflict of
laws, or of rights growing thereout, touching personal or movable:
property ; and which ought to admonish us of the danger and dif-
ficulty of attempting to lay down universal rules on such compli-
cated subjects. By the laws of many of the nations of continental
Europe, in cases of collision of ships by accident, without any fault
on either side, the loss is to be sustained by a contribution. by.
both ships.2 By the law of England in such a case, there is no-
contribution whatsoever ; but each party is to bear his own loss..
Res perit domino2 Now, let us suppose, that such a collision.
takes place upon the high seas, beyond any territorial jurisdiction,

1 Andrews v. His Creditors, 11 Louis. R. 476, 477. See also 2 Bell, Comm.
§ 1266, p. 684, 685, 686, 4th edit. ; Id. p. 681, 682, 683, 5th edit.

® Story on Bailm. § 608; Peters v. Warren Ins. Comp’y, 14 Peters, R. 99,

* Story on Bailm, § 608, 610.
CONFL. 48
566 CONFLICT OF LAWS. [cu. Ix.

between an English ship and a foreign continental ship, whose
laws divide the loss, and both or either of the ships is injured
thereby. How is the loss to be borne? Will it make any differ-
ence, whether the proceeding against the ship or owners for re-
dress is in England, or in the proper continental court? If the
right depends upon the law of the place where the proceedings are
had against the ship or the owner, then there will be no reciproci-
ty in the operation of the rule. In a case so confessedly novel in
its presentation, it will be found very difficult to affirm any ground
of principle, upon which the law of the one country, rather than
that of the other, ought to prevail.

§ 423 h. Considerations of an analogous nature may be pre-
sented in cases of torts, committed on the high seas, and in other
extra-territorial places, by the subjects of one nation upon vessels,
or other movable property, belonging to the subjects of another
nation, where the laws of these nations are different, touching
either the nature and character and consequences of the tort, or
the rule of damages applicable thereto. It is not easy to say, in
such cases, what laws ought to govern. The most that can with
any probability be stated, is that, in the absence of any general
doctrine to the contrary, either each nation would, in respect to
the case when pending in its own tribunals, follow its own laws ;?
or would apply the rule of reciprocity, granting or refusing dam-
ages, according as the law of the foreign country, to which the
injured ship belonged, would grant or withhold them in the case
of an injured ship belonging to the other nation.2 The rule of
reciprocity is often applied in cases of the recapture of ships from
the hands of a public enemy.

1 The very question was recently presented at Havre, in France, in the case of
the steamer ship James Watt, an English ship which was seized in France for
having by collision run down a French ship, at sea. The court of Rouen, it is
said, decided against the right to seize and detain her. But the ground of the de-
cision is not stated. See also Abbott on Shipp. by Shee, p. 184, note z, the case
of the Maria, there stated. See, also, 3 Hage. Adm. R. 169; Id. 184; Id. Baron
Holberg, 244. See, also, The General Steam Navigation Co. v. Guillen, 11 Mees.
& Wels. 877.

2 See Percival v. Hickey, 18 Johns. R. 257.

8 The Girolamo, 3 Hagg. Adm. R. 169.

* The Santa Cruz, 1 Rob. R. 50; 2 Wheat. R. Appx. 44, 45; The Adeline, 9
Cranch, R. 244. In the case of the Vernon, 1 W. Robinson, New Adm. R. 816,
which was a case of collision between a British ship, having on board a licensed
pilot, and a foreign ship, the British ship’s pilot being. in fault, Dr. Lushington
§ 423 ¢ — 424.] REAL PROPERTY. 567

CHAPTER X.

REAL PROPERTY.

[* § 424. The disposition of real estate must be according to law rei site.

4.425. Distinctions between laws personal and real.

$426. Discussion of the operation of these laws.

§ 426 a. Opinions of the foreign jurists in regard to it.

§ 426 6. Further discussion of principles involved.

§ 427, Other writers maintain the same view.

§ 428. This the universal rule in England and America.

§ 429. Classification of the subject.

§430. Capacity to take or transfer real estate.

§431. This must exist according to the law rei site.

§ 432. This opinion is opposed by many continental jurists.

§ 433-434. But it is opposed ‘by others, who adopt the common law view.

§ 435. The formalities of passing title to realty must be according to the law rei site.

§ 436. The same rule prevails in Scotland.

§ 436 a. Reasons for retaining the following sections.

§ 437-444 b, Exposition of the various and conflicting opinions of the foreign jurists,

§445. The extent of dominion over realty always governed by law rei site.

§446. This illustrated by laws against mortmain.

§447. The lex ret site always determines what is real estate.

4418. Estates by operation of law governed by the lex rei site.

§ 449. By what law are matrimonial rights to real property governed ?

§ 450-453. Consideration of the opinions of foreign jurists.

§ 454. By the common law such rights are controlled by the lex rei site.

§-455. By the Roman law the father owned the acquisitions of his children.

4 456. Does this right extend to real estate in other countries 4

§ 457-462. Opinions of the foreign jurists.

§ 463, 463 a. The common law restricts this paternal power and right as to realty to
the law rei site.]

§ 424. We are next led to the consideration of the operation of
foreign law in regard to real or immovable property. And, here,
the general principle of the common law is, that the laws of the
place where such property is situate, exclusively govern in respect
to the rights of the parties, the modes of transfer, and the solem-
nities which should accompany them.! The title, therefore, to real

held the owners of the British ship not responsible for the damage, upon the

ground that the foreign ship seeking the remedy, must take it according to the law

of the country where the suit is brought. Quere, if this was a case within the

_meaning of the rule, did the statute apply to foreign ships or only to British ships ?
Ante, § 373g.

' See, on the subject of this chapter, 2 Burge, Comm. on Col. and For. Law, Pt.

2, ch. 9, p. 840 to p. 870; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 4, § 5,
568 CONFLICT OF LAWS. [cH. x

property, can be acquired, passed, and lost only according to the
lex rei site. This is generally, although (as we shall presently
see) not universally, admitted by courts and by jurists, foreign as
well as domestic. Paul Voet states the rule in a brief but clear
manner: Ut immobilia statutis loci regantur, ubi site. He adds,
in another place, quid si itague contentio de aliquo jure in re, seu
ex ipsa re descendente, vel ex contractu, vel actione personalt, sed
in rem scripté? An spectabitur loci statutum, ubi dominus habet
domicilium, an statutum rei site? Respondeo: Statutum rei site?
Sir William Grant lays down the rule in very expressive terms.
“ The validity of every disposition of real estate,” says he, “ must
depend upon the law of the country in which that estate is situ-
ated.” The same rule would also seem equally to apply to ex-
press liens and to implied liens upon immovable estate.*

§ 425. And here it may be proper to advert a little more par-
ticularly to some of the definitions of foreign jurists, in regard to
personal laws and to real laws. We have already seen, that laws
purely personal are those which solely affect the person, without
any reference to property. Laws purely real, directly and indi-
rectly regulate property, and the rights of property, without inter-
meddling with, or changing the state of the person.6 There are

p- 150, &c.; Id. ch. 5, n. 11, p. 171, 217; Id. ch. 12, p. 576; Feelix, Conflit des
Lois, Revue Etrang. et Frang. Tom. 7, 1740, § 27 to § 37, p. 216 to p. 230; Id. p.
307 to 312. *

1 P. Voet, De Stat. § 9, ch. 1, n. 3, p. 258, edit. 1715; Id. p. 307, edit. 1661.
Yet we shall see, that Paul Voet adopts some strange notions as to the forms and
solemnities of instruments of transfer of real estate, whether inter vivos or testa-
mentary, holding, that the lex loci actus, and not the lex loci rei sits, ought to
govern. Post, § 442.

* P. Voet, de Statut. § 9, ch. 1, n. 2, p. 258, edit. 1715; Id. p. 305, edit, 1661.

* Curtis v. Hutton, 14 Ves. jr. 537, 541; S. P. Chapman v. Robertson, 6 Paige,
R. 627, 630; Elliot v. Lord Minto, 6 Madd. R.16; Birtwhistle v. Vardill, 5 Barn.
& Cresw. 438; S.C. 9 Bligh, R. 32 to 88; Potter v. Titeomb, 22 Maine, 300;
post, § 428 to § 444.

* See 1 Boullenois, p. 683 et seg. 689, 818; Rodenburg, De Divers. Stat. tit. 2,
ch. 5, § 16; 2 Boullenois, Appx. 47; 1 Hertii, Opera, De Collis. Leg, § 4, n. 64,
p. 150; P. Voet, De Stat. § 9, ch. 1, n. 2, p. 253, edit. 1715; Id. p. 807, edit.
1661; ante, § 322 to § 328; Id. § 363 to § 374; 1 Burge, Comm. on Col. and For.
Law, Pt. 1, ch. 1, p. 25, 26; Curtis v. Hutton, 14 Ves, jr. 587, 5413 Elliot v. Lord
Minto, 6 Madd. R. 16.

° 1 Boullenois, Prin. Gén. 10, p. 4.

° 1 Boullenois, Prin. Gén, 22, p. 6; Id. Pr. Gén. 21, p. 7. See P. Voet, De
Stat. § 4, ch. 2, n. 4, p. 184, 185, edit. 1661.
§424 -426.] REAL PROPERTY. 569

other laws, again, which are deemed both personal and real, con-
taining @ mixed operation upon persons and property, and which
are therefore called mixed.1 Thus, a particular law, which shall
authorize a minor or other person, ordinarily incapacitated, to dis-
pose of property under particular circumstances, would be deemed
a mixed law; because, so far as it affects the particular capacity
of a person, it is personal, and so far as it enables him to do a par-
ticular act respecting property, it is real.2 In illustration of these
distinctions, Boullenois considers the law, known as the senatis-
consultum Valleianum, prohibiting married women from making
contracts, as purely personal; a law declaring that no person of
full age shall devise more than a third or fourth part of his prop-
erty, as purely real ; and a law allowing a minor, (otherwise inca-
-pacitated,) when married, to make a testament or donation in
favor of his wife, as mixed. These distinctions are very impor-
tant in examining the doctrines of foreign jurists, as they often
enter very deeply into the elements of their particular opinions.*

§ 426. Now, in regard to laws purely real, Boullenois lays down
the rule in the broadest terms, that they govern all real property
within the territory, but have no extension beyond it. Les lois
réeles wont point d’extension directe ne indirecte hors la jurisdic-
tion et la domination du législateur.» In regard to mixed laws he
lays down the rule expressly, that of right they act only upon real

-property within the territory to which the persons are subject;

* 1 Boullenois, Prin. Gén. 15, 16, p. 5.

4 Thid.

* 1 Boullenois, Pr. Gén. 14, 15, 26, p. 5, 6, 7; Id. Observ. 2, p. 25 to 28; Id.
Observ. 16, p. 206, Observ. 23, p. 456, 457, 477, 488; 2 Boullenois, Observ. 32,
p- 11.— This definition of mixed laws is given by Boullenois, who has drawn it
from Rodenburg. But it is very different (as he informs us) from the sense in
which D’Argentré, Burgundus, and Voet use the same phrase. 1 Boullencis,
Prin. Gén. 16, p. 5; Id. Observ. 5, p. 122 to 140; Rodenburg, De Div. Stat. tit.
J, ch. 23.1 Bernilieias Observ. 2, p. 25 to p. 29; Id. Observ. 3, p. 29 to 48. See,
ial, 1 Froland, Mém. ch. 6, p. 114.

* J. Voet has devoted a shale title to the subject of personal, real, and mixed
laws, which will reward the diligence of the student in a thorough perusal. J.
Voet, ad Pand. Tom. 1, Lib. 1, tit. 4, p. 2, p. 38, ef seg. The same subject is
ae discussed by Froland. 1 Froland, Mém. ch. 4, p. 49, ch. 5, p. 31, ch.
6, p. 114,

® 1 Boullenois, Pr. Gén- 27, p. 7; Id. 230. — Froland lays down the rule in
even more brief terms. Le statut. reel ne sort point de son territoire. 1 Froland,
Mém. 156. And he applies the same rule to mixed statutes. Id. 157.

48%
570 CONFLICT OF LAWS. [cH. x.

but that sometimes they act upon real property situate elsewhere ;
and then it is only, because the laws are conformable to each other,
and by a sort of kindred title only, (@ titre de paternité seule-
ment.)! Rodenburg lays down a like rule in regard to real laws
(dismissing as unnecessary the class of mixed laws): Statuta re-
alia inter et personalia hoc interest, quod illa, in res scripta, terri-
torit sui concludantur metis, hec extra eas vim et effectum proten-
dant2 Paul Voet contends, that no personal laws can regularly
extend to immovable property situate in a foreign country: Non
tamen statutum personale sese regulariter extendet ad bona immo-
bilia alibi sita ;? and he treats it as utterly unimportant, whether
it assume to do so directly or indirectly, openly or consequentially.
Neque hic distinguam, cum lex non distinguat, an sese extendut
statutum directé ad bona extra-territorium statuentium sita, an in-
directé, an propalam, an per consequentiam. Cum non sint indi-
recté, in fraudem legis aut statuti permittenda, que directé sunt
prohibita.*

§ 426 a. John Voet resolutely maintains the same opinion.
D’Argentré holds the following language. Que realia, aut mixta
sunt, haud dubie locorum et rerum situm sic spectant, ut aliis legi-
bus, quam territorii, judicari non possint.6 Huberus, after re-
marking, that the foundation of the general doctrine is the sub-
jection of every man to the laws of a country, so long as he
continues to act there, which makes his act there valid or in-.
valid, according as those declare it, proceeds to say, that this
reasoning does not apply to immovable property, which does not.
depend upon the mere will of the owner; but so far as certain
characters are impressed upon it by the law of the country, where
it is situate, these characters remain indelible in that country,
whatever dispositions the laws of other countries, or the acts of
private persons, may ordain otherwise or contrary thereto. Nor
would it be without great confusion and prejudice to the country

} 1 Boullenois, Prin. Gén. 20, 21, p. 6; 1 Boullenois, Observ. 16, p. 223, 224.

* Rodenburg, De Div. Statut. tit. 1, ch. 83; 2 Boullenois, Appx. p. 7; 1 Boul-
' Jenois, 145; Id. Observ. 9, p. 152; Id. 230.

3 P. Voet, ad Stat. § 4, ch. 2, n. 6, p. 1283 edit. 1715; Id. p- 188, edit. 1661.
* P. Voet, De Stat. § 4, ch. 2, 6, 7, p. 123, 124, edit. 1715; post, § 442.

5 J. Voet, ad Pand. Tom. 1, Lib, 1, tit. 4, § 7, p. 40; ante, § 54 a; post,

§ 483 a.

* D’Argentr. De Briton. Leg. Art. 218, Gloss. 6, n. 8, Tom. p. 650; post, § 439;
Livermore’s Dissert. § 97, p. 77.
§ 426 - 426 b.] REAL PROPERTY. 571

where the immovable property is situate, that its own laws respect-
ing it should be changed by such dispositions. Fundamentum uni-
verse hujus doctrine diximus esse, et tenemus, subjectionem homi-
num infra leges cujusque territorit, quamdiu illic agunt, que facit,
‘ut actus ab initio validus aut nullus, alibi quoque valere aut non
valere non nequeat. Sed hec ratio non convenit rebus immobili-
bus, quando ille spectantur, non ut dependentes a libera disposi-
tione cujusque patrisfamilias, verum quatenus certe note lege cu-
‘gusque reip, ubi sita sunt, willis impresse reperiuntur; he note
manent indelebiles in ista Republica, quicquid aliarum civitatum
- leges, aut privatorum dispositiones, secus aut contra statuant ; nec
emm sine magna confusione prajudicioque reip, ubi site sunt res
soli, leges, de illis late, dispositionibus istis mutari possent.1 He
adds, in another ‘place: communis et recta sententia est, in rebus
immobilibus servandum est jus loci, in quo bona sunt sita.?

§ 426 b. Christineus takes the common distinction in various
places between movable property and immovable property, alleg-
ing, that it is observed, as a general rule, that movable property is
governed by the law of the domicil, and. real property by the law
of the situs ret. Ubi pro regula generali servatum fuit, quod bona
mobilia sequi et regulari debent secundum statuti loci domicilii ejus,
ad quem pertinent vel spectant, immobilia vero juxta statuta loco-
rum, ubi illa sunt sita, ut communiter tenent interpretes, licet dicta
regula non semper locum habeat2

1 Huberus, De Conflict. Leg. Lib. 1, tit. 8, § 155; post, § 413.

2 Huberus, Tom. 1, P. 1, Lib. 3, tit. 13, 21, s. De Success. ab Intes. p. 278. See
post, § 448, 448 a, 476.

® Christineus, Tom. 2, Decis. 5, n. 1, 2, 3,4, p. 7.— Mr. Feelix on this subject:
says: “Cette loi réelle régit les biens sities dans |’étendue du territoire, pour
lequel elle a été rendue, en excluant Vapplication de la loi personnelle du pro-
priétaire, ou de celle du lieu ou V’acte a été passé ; (Nous parlerons plus bas de
Yapplication de cette derniére loi) ; mais aussi les effets de cette loi ne s’étendent
jamais au dela des limites du territoire. Telle est la régle reconnue par toutes
les nations et professée par les auteurs. Nous citerons Burgundus, (Tract. 1, n™
4,11, 12, et 14,) Rodenburg, (Tit. 1, chap. 2,) Paul Voet, (De Statutis, sect. 4,
cap. 2, n® 4, et 6,) Jean Voet, (Ad ff. Tit. de stat. n° 3,) Abraham & Wessel,
(Art. 16, n° 19,) Christin. (Decisiones, vol. 2, tit. 1, dec. 3, n° 2,) Boullenois,
‘(Aux endroits citées au n° 24 ci-dessus, et t. 1, p. 107,) Hert. (Sect. 4, § 9,) Huber.
(Ne 15,) Cramer, (Observationes Juris Universi, tom. V. obs. 1462,) Pothier, (Sur

~ la coutume d’Orléans, chap. 1, § 2, n° 22, 23, et 24; ch. 3, n° 51,) Vattel, (Liv. 2,
* chap. 8, § 103 et 110,) Gluck, (Commentaire, § 76, Droit Privé, § 17 et 18,) Danz,
(Manuel, t. 1, § 58, n° 1,) Portalis, pére, (Exposé des motifs du Code Civil, Loeré,
t. 1, p. 581; V. aussi le discours du tribun Faure, ibid, p. 618,) Meier, (P. 17,)
572 CONFLICT OF LAWS. [cH. x.

§ 427. But it is wholly unnecessary to repeat at length the
opinions of foreign jurists, since in the main proposition they gen-
erally, although not universally, concur, (for some of them insist
upon certain exceptions, to which we may hereafter allude,) that
the law of the situs exclusively governs as to immovable property.!

MM. Mittermaier, (§ 32,) Eichhorn, (§ 36,) Tittman, (Chap. 5,) Muhlenbruch,
(§ 72, n° 2,) Brinkmann, (p. 10 et 11,) Story, (§ 874, 424, et suiv., et surtout
§ 428,) Wheaton, (Chap. 2, § 5, t. 1, p. 136,) Rocca, (P. 104, 110, 118 et 122,)
et Burge, (Régle 6, t. 1, p. 25; t. 2, p. 14, 26, 78, et 840.)” Feoelix, (Conflit des
Lois, Revue Etrang. et Frang. Tom. 7, § 27, p. 217, 218).

1 The learned reader may consult Livermore’s Dissert. § 9 to § 162, p. 28 to p.
106; Hertii, Opera, Tom. 1, De Collis. Leg. § 4, 0. 9, p. 125, edit. 1737; Id. p.
177, edit. 1716; Ersk, Inst. B. 3, tit. 2, § 40, p. 515; Boubier, Cout. de Bourg.
ch. 23, § 36, 87 to § 63, p. 456, 457; 2 Bell, Comm. § 1266, p. 690, 4th edit. ; Id.
p. 687, 688, 5th edit.; Fergusson on Marr. and Div. 395; Le Brun, de la Com-
munauté, Lib. 1, ch. 5, p. 9, 10; D’Aguesseau, Giuvres, Tom. 4, p. 660, 4to edit. ;
Cochin, Euvres, Tom. 1, p. 545, 4to edit.; Id. Tom. p. 555; Henry on Foreign
Law, p. 12, 14, 15; Id. App. p. 196; J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, § 3,
5, 6, p. 39, 40; 1 Froland, Mém. ch. 4, p. 49, ch. 7, p. 155; 2 Kames on Equity,
B. 3, ch. 8,§ 2. Mr. Burge on this subject says: “ The summary given in the
preceding chapters exhibits a great diversity amongst the laws which regulate
the modification and creation of estates and interests in real property, and the
transfer and acquisition of it. The law of the place, where the act making the
modification or alienation is passed, frequently differs either from that of the
place in which the party to the act was domiciled, or from that of the place in
which the property is situated. It becomes necessary to inquire, which of these
conflicting laws is selected, and what are the principles on which the selection is
made. There exists a difference of opinion amongst jurists as to the law, which
ought to govern the decisions of some of the subjects comprehended under the
titles which have been just mentioned, when one of the conflicting laws affects
persons as well as things, or where it applies to the form and solemnity of the
acte, by which the modification or alienation of property is passed, as well as to
things. The primary or principal object of the law, or the comparative degree
in which, in the one case, it affects persons or things, and in the other, the form
of the act or thing, affords the ground on which some jurists consider the law as
real or personal, and accordingly adopt the lex loci rei site, or the law of the
domicil, or that of the place in which the act is passed. In the opinion of other
jurists, if the law of the situs be prohibitive, it must be preferred to the jurists, if
the law of the situs be prohibitive, it must be preferred to the personal law of the
domicil, without regard to the object of that law, or its immediate effect upon the
status of the person. There is, however, no difference of opinion among them in
adopting the lex loci rei site in all questions regarding the modification or crea-
tion of estates or interests in immovable property. This subject does not involve
any of the considerations, which, in other cases, produced that difference of opin-
ion. The law primarily and principally affects things. It is wholly independent
_ of the status of persons, and is strictly a real law. There is the concurrence,
§.427.] REAL PROPERTY. 573

Pothier has laid down the rule in the most general form, declar-
ing, that real laws have an exclusive dominion over all things sub-

therefore, not only of those jurists who give the greatest effect to the lex loci rei
site ; but even of those who are disposed to give such an effect to laws affecting
the general status of persons, as would greatly control the operation of the lex
loci rei site. Thus, according to the definition of Rodenburg, ‘In solas nudasque
res statuti dispositio dirigitur, ut nullum intervenire necesse sit actum hominis aut
aliquam concurrere persone operam.’ It.is comprised in the rule laid down by
Burgundus: ‘ Statuta realia sunt, que de jure, et conditione, seu qualitate rei
disponunt. Statuto reali propositum est dirigere res ipsas, certisque qualitatibus’
dominia afficere.’ The doctrine of D’Argentré is to the same effect: ‘ Realia sunt,
ut que de modo dividendarum hereditatum constituuntur, in capita, in stirpes, aut
talia. Item de modo rerum donandarum, et quota donationum.’ —‘ Item illud,
ne in testamento legari posset viro ab uxore, quod quidem de immobilibus constituit
et rebus soli, etsi mixtam habeat de personis considerationem, quando impotentia
agnatis applicatur rei soli: Nam si de mobilibus solum quzreretur, posset videri
in totum esse personale.’ The doctrine of Dumoulin is, ‘In his, que concernunt
rem, vel onus rei, debet inspici consuetudo loci ubi sita res est.’ Boullenois also
concurs in treating those laws as real: ‘Qui affecte directement les biens en fixant
leur sort, et leur destination par une disposition particuliére et indépendante de
Pétat personnel, dont ’homme est affecté pour les actes du commerce civil, encore
que quelquefois ce statut ait égard & |’état personnel, que nous avons ci-Gevant
appellé pur politique et distinctif.? Merlin maintains the same doctrine: ‘ Si
Yobjet principal, diret, immédiat de la loi, est de régler la qualite, la nature des
biens, la manitre d’en disposer,’ it is a real law, and that, ‘ les effets par rapport
aux personnes ne sont plus, que des conséquences éloignées de la réalité.’ The
estate or interest, which the law permits or prohibits to be created in immovable
property, whether it be by substitution, entail, executory devise, condition, or any
other species of limitation, may be considered as a quality impressed on, and in-
herent in the property. So also are the rules and limits, under which the permis-
sion is given. According to the doctrine of those jurists who are the most disposed
to allow personal laws, affecting the general status, to control those of the situs,
the law, which confers on immovable property its qualities, is strictly real, and
prevails over the personal law. Thus, Hertius defines the law to be real, when it
impresses any certain quality on immovable property : ‘Rebus fertur lex, cum
certam iisdem qualitatem imprimit, vel in alienando, e. g. ut ne bona avita possint
alienari, vel in acquirendo, e. g. ut domini rei immobilium vendite non aliter ac-
quiratur, nisi facta fuerit judicialis resignatio.’ The same rule is laid down by
Mestertius and Burgundus, and is followed by Boullenois. These jurists, in treat-
ing of the solemnities which the law requires should accompany certain acts, dis-
tinguish those which are ‘tanquam qualitates rebus impresse.’ The existence
and nature of those qualities must be determined by the law of the situs. It is
conceived, therefore, to be indisputable, that the law of the situs must be adopted
in all questions respecting the ‘power of alienating immovable property, or the
restrictions under which that power may be exercised. Hence, also, it follows,
that the law of the situs must prevail, when the question regards the existence or
validity of any substitution, the degrees to which it may be limited, the manner of
574 CONFLICT OF LAWS. [cH. x.

mitted to their authority, whether the persons owning them live
within the territory, or without the territory.1 And Vattel has
laid it down, as a principle of international law, that immovables
are to be disposed of according to the laws of the country where
they are situate.?

§ 428. The consent of the tribunals, acting under the common
law, both in England and America, is, in a practical sense, abso-
lutely uniform on the same subject. All the authorities, in both
countries, so far as they go, recognize the principle in its fullest
import, that real estate, or immovable property, is exclusively sub-
ject to the laws of the government within whose territory it is sit-
uate. So that we may here fully adopt the language of John

computing those degrees, or the extent to which the power of alienation may be
restrained, and generally the condition to which the persons substituted may
be subjected. Upon the same principles it will decide, if the question regard
the acts which are essential to render the substitution or entail valid, or the re-
spective rights and liabilities of the fiduciary, fidei commissary, or tenant in tail.”
2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 840 to p. 844. Again,
alluding to the same subject in another place, he says: “ In treating of the alien-
ations of real property by act inter vivos, it has been stated as a conclusion, sanc-
tioned by the authority of jurists and of judicial decisions, and most consistent
with admitted principles, that the capacity to make and to take under the aliena-
tion was governed by the law of the actual situs of the property, if it were im-
movable, and by that of the domicil, if it were movable. It is admitted by all
jurists, that the transfer of, and title to real property, must be regulated by the
lex loci rei site; that a law, which prohibits its alienation, is a real law, and must,
in whatever place the alienation is attempted, prevent the acquisition of any title,
It necessarily follows from that admission, that the character and effect of the
law must be the same, whether its prohibition has relation to the quality of the
property itself, or to the person of the owner; or whether the prohibition be
general and absolute, or partial and qualified, or existing only sub modo. Itisa
quality impressed on the property, no less when the property is prohibited to be
alienated under particular cirumstances, than when it is prohibited to be alienated
under any circumstances, or when it is prohibited to be alienated by and to per-
sons standing in certain relations to each other, or by persons who are under a
certain age, or who are in any situation, which by the law precludes them from
making or taking under the alienation.” 4 Burge, Comm. on Col. and For. Law,
Pt. 2, ch. 12, p. 577; Id. p. 550 to p. 596.

* Pothier, Coutume, d’Orléans, ch. 1, § 2, n. 22, 23, 24, ch. 8, n. 51.
* Vattel, B. 2, ch. 8, § 110; Id. § 103; Chapman v. Robertson, 6 Paige, R.
627, aon

* The authorities are very numerous, in which-it has been decided, or taken for
granted; and among them in England, are Sill v. Worswick, 1 H. Black. 6653
Hunter v. Potts, 4 T. R. 182; Phillips v. Hunter, 2 H. Black. 402; Selkrig ».
Davis, 2 Rose, Bank. Cas. p, 291; 2 Dow, R. 230; Coppin v. Coppin, 2 P. Will
§ 427 -430.] REAL PROPERTY. 575

Voet: De realibus quidem, cum plerorumque consensus sit, id plu-
ribus docere supervacuum fuerit.1 Indeed, so firmly is this princi-
ple established, that in cases of bankruptcy the real estate of the
bankrupt, situate in foreign countries, is universally admitted not
to pass under the assignment, although, as we have seen, there are
great diversities of opinion as to movables.2. And Lord Eldon has
gone so far as to declare, that there exists no legal or equitable
obligation (although there is a moral obligation) in the bankrupt
to make a conveyance thereof to his assignees; and that the cred-
itors are without redress, unless by way of remedy in rem, where
the real estate is situate, or by withholding a certificate of dis-
charge until the bankrupt executes such a conveyance.?
_ §.429. Considering, however, the diversity of opinion on this
subject among foreign jurists, it may be of some utility to examine
into the application of the general rule in some of its more impor-
tant aspects. We shall, therefore, consider it, first, in relation to
the capacity of persons to take or to transfer real estate ; secondly,
in relation to the forms and solemnities necessary to transfer it ;
thirdly, in relation to the extent of interest to be taken or trans-
ferred,in it; and fourthly, in relation to the subject-matter itself,
or what are properly to be deemed immovables.

§ 430. First, in relation to the capacity of persons to take or
transfer real estate. It may be laid down, as a general principle

290, 293; Brodie v. Barry, 2 Ves. & Beames, R. 130; Birthwhistle v. Vardill, 5
B. & Cres. 488; 2 Bell, Comm. 690, 4th edit.; Id. p. 687, 5th edit.; and in
‘America are, United States v. Crosby, 7 Cranch, 115; Clarke v. Graham, 6
Wheaton, R. 577; Kerr v. Mason, 9 Wheaton, R. 566; Harper v. Hampton,
1 Harr. & Johns. R. 687; Goodwin v. Jones, 3 Mass. R. 514, 518; Cutter v. Da-
venport, 1 Pick. R. 81, 86; Holmes v. Remsen, 4 Johns. Ch. R. 460; S. C. 20
Johns. R, 254; Nicholson v. Leavitt, 4 Sandf. 276; Hosford v. Nichols, 1 Paige,
R. 220; Blake v. Williams, 6 Pick. 286; Milne v. Moreton, 6 Binn. R. 359. See,
also, 4 Cowen, R. 510, 527, note; Dwarris on Stat. 620, 649; Wiles v. Cowper,
Wilcox’s Ohio Rep. 279; S. C. 2 Hammond, R. 124; Henry on Foreign Law, 8,
9; McCormick v. Sullivant, 10 Wheaton, R. 192; Darby-v. Mayer, 10 Wheaton,
R. 465; Curtis v. Hutton, 14 Ves. 537, 541; Elliott v. Lord Minto, 6 Madd. R.
16; Chapman v. Robertson, 6 Paige, R. 627, 630; Cockerell v. Dickens, 3 Moore,
Priv. Coun. R. 98, 131, 182; Tulloch v. Hartley, 1 Y. & Coll. New R. 114 ; post,
§.484; ante, § 424; Augusta Ins. Co. v. Morton, 3 Louis. Ann. R. 418.

1 J. Voet, ad Pand. Lib. 1, tit. 5, P. 2, § 6, p. 40.

* Selkrig v. Davis, 2 Rose, Bank. Cas. 97; Id. 191; 2 Dow, R. 230, 250; 2 Bell,
Comm. 690, 4th edit.; Id. p. 687, 5th edit, ; ante, § 403 to 422, 423 u.

® Selkrig v. Davis, 2 Rose, Bank. Cas. 97; Id. 281; 8. C. 2 Dow, 230, 250. But
see Stein’s Case, 1 Rase, Bank. Cas. 462; ante, § 423 a.
576 CONFLICT OF LAWS. [cH xX.

of the common law, that a party must have a capacity to take ac-
cording to the law of the situs, otherwise he will be excluded from
all ownership. Thus, if the laws of a country exclude aliens from
holding lands, either by succession or by purchase, or by devise,
such a title becomes wholly inoperative as to them, whatever may
be the law of the place of their domicil.1_ On the other hand, if, by
the local law, aliens may take and hold lands, it is wholly imma-
terial, what may be the law of their own domicil, either of origin, —
or of choice.

§ 431. So, if a person is incapable, from any other circumstance,
of transferring his immovable property by the law of the situs, his
transfer will be held invalid, although, by the law of his domicil,
no such personal incapacity exists. On the other hand, if he has
capacity to transfer by the law of the situs, he may make a valid
title, notwithstanding an incapacity may attach to him by the law
of his domicil. This is the silent but irresistible result of the prin-
ciple adopted by the common law, which has no admitted excep-
tion. We may illustrate the principle by an application to cases
of common occurrence under the dominion of the common law.
By that law a person is deemed a minor, and is incapable of con-
veying real estate, until he has arrived at twenty-one years of age.
But by the law of some foreign countries minority continues until
twenty-five or even until thirty years of age. Let us, then, sup-
pose a foreigner, owning lands in England or America, (where the
common law prevails,) who is by the law of his domicil in his mi-
nority, but who is over twenty-one years of age. It is clear, that he
may convey his real estate in England or America, notwithstand-
ing such domestic incapacity ; for he is of the age required by the
local law.? On the other hand, let us suppose a married woman,
who is domiciled in a foreign country, and by the law of that coun-
try is capable of alienating her real estate without the consent of
her husband, owning real estate in England or in America, where
she is incapable of alienating it without such consent; she cannot
alienate it without the consent of her husband; and her separate
act will be held ipso facto void by the law of the situs.

§ 432. But, however clear this may seem, according to the prin-
ciples of the common law on this subject, a very different doctrine

* See Buchanan v. Deshon, 1 Har. & Gill, R. 280; Sewall v. Lee, 9 Mass. R.

363.
* See Saul v. His Creditors, 17 Martin, R. 569, 597,
§ 480 —482.] “REAL PROPERTY. 577

is, as we have already seen, maintained by many-foreign jurists on
this very point.1 They contend, that the capacity or incapacity of
persons to transfer property, or to do any other act, depends alto-
gether upon the law of the place of their domicil. If they have a .
capacity or incapacity there, it governs all their property elsewhere,
whether movable or immovable. Thus, Boullenois maintains, that
if'a man has immovable property in a place where majority is at-
tained at twenty-five, and by the law of his domicil he is of age at
twenty, he may at twenty sell or alienate such immovable prop-
erty. And, on the other hand, if by the law of the situs of the
immovable property, he is of age at twenty, but by the law of his
domicil, not until twenty-five, he cannot sell or alieriate such prop-
erty until the age of twenty-five. Rodenburg adopts the same
doctrine, and maintains it with abundance of zeal. After having
remarked, that among. personal statutes are to be reckoned all
laws which affect the state or condition of the person, such as
laws respecting majority, the paternal power over children, the

1 Ante, § 51, 52 to 61, 65; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 1,
p. 21, 22, 23.

-# Ante, § 52, 71.— There is a curious. distinction maintained by many jurists
on this subject, which deserves notice. — They say, that, if the local law fixes the
age of majority at a particular period, and declares, that, until the party has ar-
rived at that period, he shall not alienate immovable property, — in that case the
local law governs; for it does not turn upon the mere fact of being a major or
not. But if the local law only says, that no person who is not a major, shall alien-
ate, then, if the party is a major by the law of his domicil, though not by that of
the rei site, he may alienate the property, because the only point is majority or
not, and that must be ascertained by the lex domicilii; for the state or capacity
of a person by the law of his domicil extends everywhere. Boullenois dwells
much on this distinction, and it has received the support of Merlin. 1 Boullenois,
Observ. 4, p. 57; Id. Observ. 5, p. 102; Id. Observ. 12, p. 175; Id. Observ. 13,
p. 183; Id. Observ. 23, p. 499; Id. Observ. 28, p. 700, 705, 720; Boullenocis,
Quest, Mixt. p. 19; 2 Merlin, Répertoire, Testament, § 1, 6, art. 3, p. 318, art.
2, p. 317, 818; Id. art. 3; 2 Foland, Mém. des Stat. p. 824, 825; Livermore,
-Diss. §44, p.48; Id. §47, 48, p. 50; Id. § 59 to § 62, p. 58, 59, 60. [* The above
distinction is not more refined than, and is in fact analogous to, many which have
heen maintained, in regard to the construction of statutes sometimes; but this
species of verbal criticism has not commonly obtained in the exposition of unwrit-
ten law ; and this is one ground of the superiority of the latter over the former.]

* Rodenburg, De Div. Stat. tit. 2, ch. 1; 2 Boullenois, Appx. p. 10; 1 Boulle-
nois, 77,79, 154, 155, 194, 295; 1 Hertii, Opera, De Collis. Leg. § 4, n. 23, p.
188, edit. 1737; Id. p. 175, edit. 1716 ; Livermore, Dissert. § 31, p. 40; Id. § 44,
p. 48; Id. § 45, 46, p. 49; Bouhier, Gout de Bourg. ch. 24, gat to § 108, p. 476,
477, 478 ; ante, 51, 51 a, § 52, 524, 53.

CONFL, 49
578 CONFLICT OF LAWS. ~ [cn. x.

marital power over. the wife, and cases of prodigals, he adds: De
quibus et similibus id juris est, ut quocumque transtulertt persona
statuto loci domicilii ita affecta, habilitatem aut inhabilitatem
ademptam domi, circumferat ubique, ut in universa territoria suum
statutum exerceat effectum.1 Yet Rodenburg himself deserts this
doctrine, in regard to the capacity and incapacity to make a will
or testament, which he holds must be according to the lex ret stta2
There are many others who adhere to the same opinion.? The

1 Rodenburg, De Divers. Stat. tit. 2, ch. 1; 2 Boullenois, Appx. p. 11; ante,
§ 51.

* Rodenburg, De Divers. Statut. tit. 2, ch. 5, n. 7; 2 Boullenois, Appx. p. 38,
39. His language is: Sed, ut id, quod instat, agamus: quid si nostras testetur
anno etatis decimo quarto, sortieturne effectum dispositio in rebus, que alterius
regionis solo inhzreant, in qua major ad testandum desideratur ztas? Sit dubi-
tanda ratio, quod de personarum ztate ac capacitate lata lex in personam concep-
ta esse -videatur, adeoque .ad quecunque producenda terfitoria. Verum contra
reale Statutum esse inde dixeris, quod in statutum ac conditionem person non
sit scriptum, sed expressim directum in rerum alienationes aut alterationes, et qui-
dem per solam testamenti speciem, adeoque circumscripitve ad istum alienationis
actum ; cujusmodi Statuta realia esse traditum sepius; et vel inde in proposito
conspicere est, quod immoto persone statu, que nulla ex parte tutele subducitur,
auctoritate tutoris non spectante minoris testationes, tribuatur nostratibus hee tes-
tamenti factio, adeoque cum status non turbetur, lex personalis dici nequeat. See
also 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12, p. 578,579. On this
subject, Mr. Burge has well remarked: “ The difficulty of adopting such a dis-
tinction arises from the consequences to which it leads, for it seems to import, that
if the law of the situs prohibits the alienation by a minor, the question, whether
he is a minor, or in other words, whether he is competent to make a testament, is
to be determined, not by that law, but by the law of his domicil. But if the law
had prohibited an alienation by a person who had not attained the age of twenty-
one or twenty-five years, or any other age, which was prescribed by the law as
the age of majority, the law of this situs would prevail, and the competence of the
person would depend on his having attained that age. But without further pur-
suing the inquiry, which has already been made in the former volume, it may be
considered, that the opinions of Dumoulin, Burgundus, Peckius, John and Paul
Voet, and the decision reported by Stockmans, #ford authority sufficient to justi-
fy the conclusion, that the capacity to alienate by testament is that which is es-
tablished by the law of the country in which the immovable property is situated,
and by that of the domicil, when the testamentary disposition regards movable
property.” Ibid. See also 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 1, p.
21, 22, 23; post, § 433 a.

* Ante, § 51, 52, 53, 54, 60; 1 Froland, Mém. des Statuts, 65, 66; Liverm.
Diss, 47, p. 54, § 55, 56; 2 Froland, Mém. des Stat. p- 1576 to p. 1594; Merlin,
Répertoire, Testament, § 1, 5, art. 2, p. 517, 518; 1 Boullenois, Observ. 6, p. 127
to p. 140; 1 Boullenois, Observ. 28, p. 705 to p. 731. — This is manifestly the
opinion of Mr. Livermore, (Diss. p. 40 to.p. 42; Id. p- 48 to p. 57). So of Mer-
§ 489, 483.] REAL PROPERTY. 579

groundwork of their argument is, that the capacity and incapacity
of the person must be uniformly the same everywhere; that the
law of the domicil ought to regulate it; and that it would be ut-
terly incongruous to make a minor in one place a major in
another, thus investing him with opposite personal qualities.

- § 483. This notion is combated with great vigor and ability by
other foreign jurists, whose opinions have been already alluded

lin, (Répertoire, Majorité, § 5 ; Autorisation Maritale, § 10, art. 2; Id. Puissance
Paternelle, § 7, p. 142 to 146); of Froland,-(1 Froland, Mém. des Stat. p. 156,
171; 2 Froland, Mém. des Stat. p. 1595) ; of Bouhier, (Bouhier, Cout. de Bourg.
ch. 23, § 90 to $96, p.461; Id. ch. 24, $91, &c. p.476; Id. 1 Boullenois, Observ.
28, p. 724); of Pothier, (Pothier, Cout. d’Orleans, ch. 1, § 4, n. 7, p. 2); of Hu-
berus, (Huberus, Lib. 1, tit. 3, § 12; ante, § 60) ; and of Hertius, (Hertii, Opera,
Tom. 1, De Collis. § 4, u. 8, p. 128, 124, edit. 1737; Id. p. 175, edit. 1716). Mer-
lin in another place admits, that a law which prohibits a prodigal from making a
testament, is personal ; but at the same time it will not prevent the prodigal from
making a valid will of immovable property in a foreign country, which allows it
(as in Bourbourg) ; for which he gives two reasons; first, that a law is real, which
permits one act to be done by a person, who is otherwise incapable ; and second-
ly, because a real law always prevails when it comes in conflict with a personal
law. He applies the same rule to an unemancipated son, who cannot by the law
of his domicil make a testament, but yet may alienate any of his property acquired
in Hainault ; for its laws form an exception to the general incapacity of the son,
and therefore they are real. Merlin, Répertoire, Testament, § 1, n. 5, art. 1, p.
310. This opinion seems to coincide with that of Hertius, (1 Hertii, Opera, De
Collis. Leg. 4, n. 22, p. 138, edit. 1737; Id. p. 188, edit. 1716). It seems also
supported by Rodenburg, (Rodenburg, De Div. Stat. P. 1, tit. 1, ch. 2; 2 Boulle-
nois, Appx. p. 4, 5, 6, cited by Merlin, ubi supra). — But Merlin says, that, if by
the laws of the country of his domicil an wnemancipated son cannot make a tes-
tament, and by the laws of another country he has a general capacity ; in such a
case such laws are personal and in conflict, and therefore the law of the domicil
isto govern. Merlin, Id. p.311. See also 1 Boullenois, Observ. 5, p. 77, 78. Boul-
lenois lays down some rules upon this subject, which seem also to have received
the approbation of Bouhier. (1.) When the personal statute of the domicil is in
conflict with the personal statute of another place, the law of the domicil is to pre-
vail. (2.) When the personal statute of the domicil is in conflict with the real
statute of the same or another place, it yields to the real statute. (3.) When the
real statute of the domicil is in conflict with the real statute of the situs of the
property, each one has its own authority in its own territory. 1 Boullenois, Pra
Gén. 29, 30, 81; Id. Observ. 5, p. 181, 182; Bouhier, Cout. de Bourg. ch. 23,
§ 90, 96, p. 461; Id. ch. 24, § 91, &c. p. 476; Livermore, Diss. § 59, p. 58, 59.
See the opinion of Grotius, cited, post, § 479.

' Mr. Henry says, that the personal statutes of one place may act indirectly
and by comity on immovable property situate in another ; as a decree of lunacy
may by its effects deprive a party of a power to alienate his foreign property ;
and so of the disability created by bankruptcy. Henry on Foreign Law, 15.
This seems inadmissible as a doctrine of the common law.
580 CONFLICT OF LAWS. [cu. x.

to.1 Burgundus admits, that personal laws as to capacity or in-
capacity, govern all personal acts, such as personal contracts.
Nam, (ut Imola et Castrensis scripsere,) qui inhabilis est in uno
loco, etiam in alio censetur inhabilis ; quod utique accipiendum est
de habilitate, vel inhabilitate, que @ statuto personali procedit, et ad
actus personales dirigitur2 But in regard to immovable prop-
erty, he says, that it is sufficient that a person be of the age re-
quired by the law of the situs, to authorize him to make a valid
transfer, although he may be incapable by the law of his domicil.
His language is: Quippe (sicut Bartolus existimat) habilitas per-
sone ad actus personales non trahit effectum ad res sitas extra ter-
ritorium. Proinde, si peragendum est aliquid circa rem, jam non
respiciemus persone statum, quem foris assumpsit ; sed an manci-
- pens in ed sit conditione quam bonorum situs ipse requirit® And
again: Et quidem eodem modo, quoties de jure, vel-servitute, aut
libertate persone queritur, item de facultate ad res personales con-
stituta, respondendum erit secundum conditionem persone, quam
indutt in loco domicilii. Et contra, ergo si de jure ac facultate,
que are ipsd proficiscitur, item de ejus servitute, atque libertate,
plane ad leges situs spectare oportet. Cum enim unicuique provin-
ci@ sue propria sint leges, possessionibus injuncte atque indicte,
sane incapacitas foris adepta in considerationem venire non potest ;
sed omnis, sive qualitas, sive persone habilitas, quoad eadem bona
pertinet, a loco sités proficisciturs Bartolus affirms the same doc-
trine. Cum est, quod de aliquo jure descendente ex re ipsa servuri
consuetudo vel statutum loci, ubi est res. Boullenois, after some
fluctuations of opinion, comes to the result, that the capacity to
make a testament, so far as it regards the person, is personal ; but-
so far as it regards immovables, is real, and governed by the law
of the situs of the property.®

1 Ante, 52, 53, 54, 54a.

* Burgundus, Tract. 1, n. 7, 8, p. 19. See, also, Rodenburg, De Div. Stat. tit.
2, ch. 1; 2 Boullenois, Appx. p. 11, 12; 1 Boullenois, Observ. 6, p. 127 to 181}.
Id. p. 199, 201, 202; Liverm. Diss. § 47, 48, 49, p. 50, 51, 52; Bouhier, Cout, de
Bourg. ch. 24, § 91, 94 to § 107, p. 476, 477, 478.

* Burgundus, Tract. 1, n. 8, p.19; ante, §54; Liverm. Diss. § 47, 48, p. 51,52

* Burgundus, Tract. 1, n. 8, p. 19, 20. See also, 1 Boullenois, Observ. 6, Pp
129, 180; Id. Observ. 9, p. 150; ante, § 872.

® Bartol. ad Cod. Lib. 1, tit. 1, n. 27; Bartol. Oper. Tom. 7, p. 5.

* 1 Boullenois, Observ. 28, p. 718, 719, 720. See Id. Observ. 5, p. 81, 82, 83,

84,101, 102. See alsé Merlin, Répert. Testament, § 1, n. 8, art. 1, p. 810; Co
chin, Hiuvres, Tom. 4, p. 555, 4to edit,
, 483, 433 a.] REAL PROPERTY. 581

§ 438 a. Stockmans, Dumoulin, Bouhier, Paul Voet, and John
Voet maintain the same opinion.!. Dumoulin says: Aut statutum
agit in rem, et quacumque verborum formula utatur, semper inspi-
citur locus ubi res est.2 Si statutum dicat, quod minor 25 annis
non possit testart de immobilibus, tunc enim non respicit personam,
nec agit in personam principaliter, nec in solemnitatem actus, sed
agit in certas res, ad finem conservandi patrimonit, et sic est reale.
Quia idem est, ac si dictum esset, immobilia non possint alienari in
testamento per minores. Unde statutum loci inspicietur, sive per-
sona subdita sit, sive non.2 Stockmans says: Jampridem Pragma-
ticorum consensa et usu fori invaluit, ut ubicumque agitur de rerum
soli alienatione, mancipatione, investura, successione, aliisque trans-
lationis et acquisitionis modis, inspiciuntur leges loci, ubi res site
sunt, sive questio sit de etate, vel alia qualitate, habilitate, vel in-
habilitate persone sive agatur de statuto verbis in rem, sive in per-
sonam, directé concepto; cum effectus ipse, potius quam verba,
atlendendus sit, qui prorsus realis est, quoties de rebus soli trans-
ferendis et mancipandis queritur; atque proinde ab hoc effectu
statutum omne, quod huc respicit, vel eo rem deducit, pro reali ha-
bendum judicandumque sit. Paul Voet adds, that personal laws
do not regularly extend, so as to affect immovable property in a
foreign country, either directly or consequentially.6 John Voet

1 Liverm. Diss. § 49 to § 52, p. 52, 53, 54; 1 Froland, Mém. des Stat. p. 65, 66;
2 Froland, des Stat. p. 819 to 823; 4 Burge, Comm. on Col. and For. Law, Pt.
2, ch. 12, p. 579; ante, 432, note.

2 Molin. Comm. ad Cod. Lib. 1, tit. 1, lL 1, Conclusiones de Statut. Tom. 3, p.
556; Liverm. Diss. § 81, p.69. |

3 Molin. Comm. ad Cod. Lib. 1, tit. 1, 1. 1, Conclus. de Statut. Tom. 3, p. 556 ;
post, § 475; Bouhier, Cout. de Bourg. ch. 24, § 91 to § 102, p. 476, 477, 478; 1
Froland, Mém. des Stat. p. 65. « *

* Stockmans, Decis. 125, n. 9, p. 263; ante, § 54; Liverm. Diss. § 50, p. 52,
53; 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 863, 864.
#* P. Voet, de Stat. § 4, ch. 2, u. 6, p. 124, edit. 1715; Id. p. 138, edit. 1661 ;
ante, § 54, note. — Paul Voet admits, that personal laws accompany the person
everywhere, as to property, within the territory of the government of which he is
& subject; but not as to any property elsewhere. Statutum personale ubique
locorum personam comitatur, in ordine ad bona infra territorium statuentis, ubi
persona affecta domicilium habet. Non tamen statutum personale sese extendit
ad bona immobilia alibi sita. P. Voet, De Stat. § 4, ch. 2, n. 6, p. 123, edit. 1715 ;
Id. p. 188, edit. 1661. In another place he says: Immobilia statutis loci regun-
tur, ubi sita. P. Voet, De Statut. § 9, ch. 1, n. 4, p. 252, 258, edit. 1715; Id. p.
306, 807, edit. 1661; ante, § 54, note; post, § 475, 483 b ; ante, § 52, 52a; 8. P.
J.'Voet, ad Pand. Lib. 1, tit. 4, § 2, 9, p. 43.

49*
582 CONFLICT OF LAWS. [cu. x.

has gone into an elaborate consideration of the subject, and posi-
tively denies that personal laws can operate out of the territory.
Nullé tamen ratione (says he) sufficiente, cum hec nitantur, nec a
legibus Romanis huic sententie patrocinium accedere possit; ve-
rius est personalia, non magis quam realia, territorium statuentis
posse excedere, sive directo, sive per consequentiam. And he pro-
ceeds to put very pointed inquiries, whether any foreign country
will permit its own territorial laws to be overthrown by the laws
_of another country, on the subject of prodigals, infamous persons,
minors, illegitimacy, or legitimacy and heirship.

§ 438 6. Christinzus adopts the same opinion. Quod cum de
rebus soli, hoc est immobilibus, agitur, et diversa diversarum pos-
sessionum loca, et situs proponuntur, in acquirendis, transferendis,
et asserendis, dominiis, et in controversia quo jure reguntur, certis-
simam in usu observationem esse noti satis juris, est, id jus de plu-
ribus spectari, quod loci,est vel situs, et suas quoque leges, statuta
et consuetudines servandos fore; sic quod de talibus nulla cujus-
quam potestas sit preter territorii legem2 Peckius is equally di-
rect. Etenim natura statuti est, ut non extendatur ad bona in alio
territorio sita, ubi contraria stat juris dispositio.® Bona autem di-
cuntur esse in ejus jurisdictione, in cujus territorio sunt.4 And
again: Quod sive statutum loquatur in rem sive in personam, ha-
beat locum in bonis positis in territorium statuentium, et non in
aliis5

§ 434. The opinion of these latter jurists is in coincidence with
that of the common law, as already stated ; and it has been fully
recognized in England, in a recent case, of which we have had oc-
casion to take notice in another place.6 Upon that occasion Lord
Chief Justice Abbott said: “The rule as to the law of domicil
has never been extended to real property ; nor have I found, in

1 J. Voet, ad Pand. Lib. 1, tit. 4, § 7, Pars 2, De Stat. p. 40, cited at larg
ante, § 54 a.— There are some jurists who adopt an intermediate opinion, nail.
ing, that, in order to transfer real property, the party must have capacity accord-
ing to the lex domicilii and the lex rei site. Thus, if in the country rei site the
age to convey is twenty-one years, and in the country of the domicil the age is
twenty-five years, a party cannot convey, although he is twenty-one years of age,
nor unless he is twenty-five. Ante, § 432, note, § 388.

2 Christin. Decis. 3, Vol. 2, p. 4; 1 Boullenois, Observ. 6, p. 127 to p. 140.

® Peck. Oper. De Testam. Conjug. Lib. 4, ch. 8, n. 5, p. 619, edit. 1666.

* Idem.

5 Id. n. 6, 7, p. 620. ® Ante, § 87.
§ 483.a-435.] REAL PROPERTY. 583

the decisions of Westminster Hall, any doctrine giving a counte-
nance to the idea, that it ought to be so extended. There being
no authority for saying, that the right of inheritance follows the
law of the domicil of the parties, I think it must follow that of the
country where the land lies.”” The same doctrine was concurred

in by the other judges.

§ 435. Secondly, in relation to the forms and solemnities of
passing the title to real estate.2, We have already had occasion to
examine the point; whether executory contracts respecting real
estate must not be in the form prescribed by the local law, in
order to have validity ; as, for instance, a contract for the sale of
land in England to be in writing according to the statute of frauds.®
The result of that examination was, that in countries acting under
the common law, the affirmative is admitted; although foreign
jurists are divided on the point. It would seem clear, also, ac-

1 Doe dem. Birthwhistle v. Vardill, 5 Barn. & Cres. 438. But see S.C. 2
Clark & Finnell. 571; 9 Bligh, R. 32 to 88.

2 See 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 840 to 870; Id.
Vol. 1, Pt. 1, ch. 1, p. 21, 22, 23.

3 Ante, § 263 to § 373. See, also, 2 Burge, Comm. on Col. and For. Law, Pt. 2,
ch. 9, p. 867, 868, 869.

‘ Ante, § 337, 363 to § 373. — Mr. Felix, speaking on this subject, says: “ Un
principe aujourd’hui généralement adopté par l’usage des nations, c’est que ‘la
forme des actes est réglée par les lois du lieu dans lequel ils sont faits ou passés.’
C’est-a-dire, que, pour la validité de tout acte, il suffit d’observer, les formalités
prescrites par la loi du lieu ou cet acte a été dressé ou rédigé: l’acte ainsi passé
exerce ses effets sur les biens meubles et immeubles situés dans un autre territoire,
dont les lois établissement des formalités différentés et plus étendues (Locus regit
actum). En d’autres termes, les lois, qui réglent la forme des actes, étendent
leur autorité tant sur les nationaux que sur les étrangers qui, contractent ou dis-
posent dans le pays, et elles participent ainsi de la nature des lois réelles.” Fee-
lix, Conflit des Lois, Revue Etrang. et Franc., Tom. 7, 1840, § 40, p. 346, 347.
And again: “ Parmi les écrivains modernes, nous en comptons trois, qui n’adop-
tent point | la maxime, que la forme des actes est réglée par Ja loi du lieu dans le-
quel ils sont faits ou passés. Suivant M. Eichhorn, les actes d’une personne, qui
affectent sa fortune, doivent, en regle générale, étre conformés aux lois de son
domicile, quant 4 la forme et quant & leur substance, lorsqu’on se propose de les
mettre & exécution dans ce domicile: la raison en est, dit l’auteur, dans le prin-
cipe de la souveraineté des nations et dans, la loi 21 ff. de obl. et act. (Contrax-
isse unusquisque in eo loco intelligitur, in quo ut solveret, se obligavit.) Cette
régle, continue l’auteur, admet des exceptions; 1° lorsque l’acte a été-fait sans
fraude dans un pays étranger, ou il y a eu impossibilité de remplir les formes pre-
scrites au lieu du domicile de la personne, qui contracte ou qui dispose ; 2° lorsque
Paete a été fait dans un pays étranger dont les lois ne protégent les actes et con-
trats qu’autant qu’on y ,a suivi une certaine forme ; 3° lorsque le statut réel exige,
584 CONFLICT OF LAWS. [cH. x.

cording to the common: law, that no conveyance or transfer of
land can be made, either testamentary or inter vivos, except
according to the formalities prescribed by the local law. Thus, in
England, no instrument not under seal can operate as a convey-
ance of land, so as to give a perfect title thereto. An instrument,
therefore, not under seal, executed in a foreign country, where
no seal is required to pass the title to lands, would be held invalid

pour V’acquisition ou Paliénation d’un immeuble, un acte qui précéde, la forme et
le contenu de cet acte doivent se régler par ce statut réel. — Par application de
la régle profesée par M. Eichhorn, cet auteur soutient que le testament fait en
pays étranger, d’aprés les formes qui y sont établies, n’aura ses effets, dans la pa-
trie du testateur, quant 4 la forme, qu’autant que les lois de cette patrie reconna-
issent la méme forme, & moins que le testateur ne soit également décédé dans le
pays de la confection du testament: dans ce dernier cas seulement, le dit testa-
ment sortirait ses effects danssa patrie. La proposition enseignée par Eichhorn
peut étre vraie en droit étroit; mais elle est contraire 4 l’usage des nations, at-
testé par le sentiment général des auteurs cités plus haut: on ne doit donc pas
s’arréter 4 Popinion isolée de M. Eichhorn. D ailleurs, les exceptions admises par
cet auteur, surtout la premiere, ramenent son systeme & celui que nous avons
exposé au n° 41: en effet, notre systeme a précisément sa base principale
dans l’impossibilité ou du moins dans la difficulté de remplir 4 ]’étranger les
formalités prescrites au lieu du domicile de Vindividu. Du reste, notre sys-
téme admet aussi les deux exceptions énoncées par M. Eichhorn sous les n™ 2 et
8, ainsi que nous l’expliquerons au n° suivant. M. Muhlenbruch, en parlant des
testaments, revient sur l’opinion par lui émise dans sa doctrina pandectarum; il
se range de l’avis de M. Eichhorn. Le troisigme auteur qui repousse l’application
de la régle locus regit actum, en ce qui concerne la forme des actes, c’est Haus,
Il regarde cette régle comme vague et inutile, et il n’en admet l’application que
dans deux cas: le premier, lorsqu’il s’agit d’actes de procédure (si de processu
ordinando queritur) ; le second, lorsque les parties, en vertu de leur autonomie,
se sont soumises aux lois du pays dans lequel elles ont passé un acte. L’opinion
de cet auteur a sa base dans une confusion d’idées: il a cherché a appliquer la
régle locus regit actum non seulement & la forme des actes, mais encore 4 leur
substance ; n’ayant pu parvenir A justifier cette opinion, ila rejeté entigrement la
dite régle, et il a cru trouver uniquement dans la volonté expresse ou tacite des
parties, la base de l'application des lois du lieu, quant A la forme et quant a la
matiére de V’acte. . L’acte fait d’aprés les formes prescrites par la loi du lieu de sa+
rédaction est valable, non seulement par rapport aux biens meubles appartenant
a l'individa et qui se trouvent au lieu de son domicile, mais encore par rapport
aux immeubles, en quelque endroit qu’ils fussent situés. Cette derniére proposi-
tion, selon la nature des choses, admet une exception, dans le cas ou la loi du lieu
de la situation prescrit, & l’égard des actes translatifs de la propriété des immeu-
bles ou qui y affectent des charges réelles, des formes particulitres qui ne peuvent
étre remplies alleurs que dans ce méme lieu: telles sont la rédaction des actes
par un notaire du méme territoire, la transcription ou Vinscription aux re-
gistres tenus dans ce territoire, des actes daliénation, d’hy pothéque,, etc.
§ 435, 436.] _ REAL PROPERTY. 585

to pass land in England.1_ The same rule is established in Amer-
ica, where it is held, that the title to land can be acquired and
lost only in the manner prescribed by the law of the place where
the property is ‘situate? [But the assignment of a mortgage of
real estate, which is mere personalty, is to be governed by the law
of the state where made, and not of the state where the land is.°]
§ 436. Erskine, in his Institutes, states this to be the law of
Scotland. “In the conveyance,” says he, ‘‘ of an immovable sub-
ject, or of any right affecting heritage, the grantor must follow the
solemnities established by the law, not of the country where he
signs the deed, but of the state in which the heritage lies, and from
which it is impossible to remove it. For though he be subject with

Lacte fait dans un pays étranger suivant lés formes qui y sont prescrites, ne perd
pas sa force, quant 4 sa forme, par le retour de l’individu au lieu de son domicile ;
aucune raison de droit ne milite en faveur de l’opinion contraire. La régle locus
regit actum ne droit pas étre étendue au dela des limites que nous lui avons tra-
cées au n° 40; ne s’applique qu’a la forme extérieure, et non pas a la matiére ou
substance des actes, ainsi que nous l’expliquerons encore au § suivant. Ainsi,
dans un testament, la capacité, de la personne et la disponibilité des biens ne se
réglent point par la loi du lieu de la rédaction. Dans les dispositions entre-vifs,
soit & titre onéreux, soit a titre gratuit, la loi du lieu de la rédaction peut avoir
influé, soit sur ’ensemblé de V’acte, soit sur les termes employés par les parties;
et, sous ce double titre, cette loi peut étre consultée par les juges comme moyen
d'interprétation ; mais elle ne forme pas la loi décisive, 4 moins que les parties ne
s’y soient soumises expressément. La régle indiquée au n° 40 ne s’applique pas
seulement aux actes publics ou solennels, mais aussi aux actes sous signature pri-
vée, comme, par exemple, les testaments olographes. Feu M. Merlin fait remar-
quer que ‘la régle locus regit actum est générale, et il faudrait, pour la restreindre
aux testaments recus par personnes publiques, une exception, autorisée par une
loi expresse.’ Nous ajouterons que les raisons exposées au n° 41 s’appliquent aux
actes sous seing-privé comme aux actes publics. Nous regardons comme une er-
reur lopinion contraire professée par M. Duranton. Nous empruntons 4 M. Par-
dessus une observation importante. C’est que, dans tous les cas ou l'une des par-
ties invoque un acte passé hors du royaume, il faut avant tout s’assurer que l’acte
a été passé dans le lieu régi par les lois auxquelles on veut le soumettre.” Id.
§ 42 to § 47, p. 850 to 354,

1 Ante, § 368, 364. See Dundas v. Dundas, 2 Dow and Clark, 349; Abell v.
Douglass, 4 Denio, 305; Coppin v. Coppin, 2 P. Will. 291, 293; 2 Fonbl. Equity,
B. 5, ch, 1, § 6, note, p. 444, 445.

? Ante, § 427, 428; United States v. Crosby, 7 Cranch, 115; Cutter v. Da-
venport, 1 Pick. R. 81, 86; Hosford v. Nichols, 1 Paige, R. 220; Wills v. Cow-
per, 2 Hamm. R. 124; S. ©. Wileox’s Rep. 278; Kerr v. Moon, 9 Wheaton, R.
566; McCormick v. Sullivant, 10 Wheaton, R. 192; Darby v. Mayer, 11 Wheat-
on, R. 465.

* Dundas v. Bowler, 3 McLean, 397.
586 CONFLICT OF LAWS. [ou x.

respect to ‘his person to the lex domicilii, that law can have no
authority over property which hath its fixed domicil in another
territory, and which cannot be tried, but before the courts, and
according to the laws of that state where it is situated. And this
rule is so strictly adhered to in practice, that a disposition of an
heritable jurisdiction in Scotland, executed in England after the
English form, was not sustained, even as an obligation to compel
the grantor to execute a more formal conveyance.”! He is well
borne out in his doctrine by other authorities.?

[* § 436 a. The consideration of the following sections, exhibit-
ing the various and conflicting opinions of the foreign jurists; in
regard to the necessity of executing all instruments for the con-
veyance of real estate, according to the law of the place where the
same is situated ; and whether they will or will not become equally
operative, if executed according to the law of the place where
made, or according to the law of the place of the domicil of the
maker, is of but slight practical importance to the English or
American student, since the law is there firmly established that, as
to personalty, such instruments should be made according to the

1 Ersk. Inst. B. 3, tit. 8, § 40, p. 515; Id. § 41; 2 Kames on Equity, B. 3, ch.
8, § 2, p. 328. —- But Erskine, in the same section, makes a distinction between
contracts to convey real estate situate in Scotland, and actual transfers, holding,
that if the contract to convey is good by the lex loci contractus, it will be enforced
in Scotland; but an actual transfer will not. “But,” says he, “though obligations
to convey, if they be perfected secundum legem domicilii, are binding here; yet
conveyances themselves, if of subjects within Scotland, are not always effectual,
if they are not executed according to the solemnities of our law.” The other part
of the section has been already cited in a note, ante, § 365. The common law,
as we have seen, with masculine vigor, and upon principle, rejects such niceties ;
and indeed it seems repudiated by many of the learned judges of Scotland. Ante,
§ 365. See Lang v. Whitlaw, 2 Shaw, Appx. Cases, p. 13; 8. C. 5 Wils. & Shaw,
p. 66, 67, note; Brack v. Johnston, 5 Wils. & Shaw, p. 61.

* Ante, § 365, 366, 367; Jerningham v. Herbert, 1 Tamlyn, R. 103; Fergus
son on Marriage and Div. p- 895, 397. Mr. Burge, speaking- on this subject,
says: “ There is a perfect uniformity in all systems of jurisprudence in the adop-
tion of this rule. Thus a contract in England for the sale to A of immovable
property situated in England, or in those noloiies which are governed by the law
of England, would transfer the dominion in equity, and A would become the
owner; but if the property were situated in British Guiana, it would not transfer
the dominion. On the other hand, a contract in British Guiana for the sale of
immovable property situated in England, or in those colonies, would transfer the
dominium on that property, but it would not transfer the dominium of property
et in British Guiana. 2 Burge, Comm. on Col. & For. Law, Pt. 2, chap. 9
p. 865. ak
§ 486 - 487.] REAL PROPERTY. 587

law of the place of the domicil of the maker, and as to realty, that
they must be made according to the law of the place where the
property is situated. These sections are, however, of interest to
the general legal inquirer, and to such as desire to compare dif-
ferent systems of jurisprudence, and study the gradual develop-
ment and advance of juridical knowledge and truth. ]

.§ 437. Boullenois admits, that, when an incapacity to do an act,
or to make a conveyance of a thing, except by certain formalities,
if created by the lex rei site, that law must be observed in regard
to that thing, although the party be otherwise capable by the law
of his domicil.1_ He adds, in another place, that if these formali-

1 1 Boullenois, Observ. 23, p. 476, 477, 488, 492, 498, 499, 500 ; ante, § 240.
Boullenois, speaking on this subject, says: “ Ces formes distinctives des contrats
font, pour la plupart, dictées par le Droit commun ; mais comme M* Ch. Du Mo-
lin observe que chacune.des Villes ayant Jurisdiction, peut prescrire une forme
particulitre & chaque espéce de contrat, il pourroit arriver que ces formes, ou for-
malités varieroient & l’infini; que dans lel ieu du contrat, il y.en auroit une; que
dans le lieu ou domicile, il y en auroit une autre ; et que dans le lieu de la situation,.
ily en auroit encore une autre. Dans ces cas, si ceux qui contractent, sont do-
miciliés dans un lieu, qu’ils contractent dans un autre, et que la chose dont ils
contractent, soit encore dans un autre quelle forme les contractants donneront-
ils 8 Vacte, eu égard & toutes ces formalités variées et multipliés? S’il étoit clair
que ces formes appartenoient & la solemnité, il n’y auroit pas de difficulté qu’il
faudroit suivre ce que la Loi du lieu ou l’acte se passeroit, prescriroit & cet égard.
Si ces formalités étoient habilitantes la personne, il faudroit suivre la Loi du domi-
cile de la personne habilitée. Si au contraire elles appartenoient, sive ad sub-
stantialia contractus, sive ad naturalia, sive ad accidentalia aut complimentaria,
cest 18 ou se rencontreroit la véritable difficulté ; et si vous donnez pour principe
général et indéfini, qu’il faut toujours suivre la loi du lieu ou. se passe le contrat,
ou bien qu'il faut toujours suivre la loi de la situation, ou bien qu’il faut toujours
suivre la loi du domicile des contractants, il est certain que vous donnerez un
faux principe ; parce que, comme on le verra ci-aprés, tantot ces formalités ap-
partierinent au contrat, tantot elles appartiennent et dépendent de la qualité de
la personne.” 1 Boullenois, Observ. 23, p. 465. Boullenois, in another place,
says: “ Quelque variété qu'il y ait dans ce nombre considéré de differentes forma-
lités ou solennités, et quelque différence qu'il y ait méme dans nos Auteurs pour
le langage, ils conviennent unanimement, que pour qu’un acte soit parfait, ex
omni parte, il y a des choses requises, pour habiliter et rendre capables les per-,
sonnes qui contractent, et elles sont attachées & la personne, et dépendent du do-
micile ; qu’il y en a de requises pour la preuve et l’authenticité, et elles dépend-
ent du lieu ot se passe le contrat; qu'il y en a attaché aux choses, et elles
dépendent de la loi de la situation; qu’il y en a qui sont de Vessence et de la
substance intérieure et viscérale des actes, et ces choses sont, selon la nature de
chaque acte, conimunément et assez universellement les mémes partout ; quil y
en a qui fluent de la nature et espéce dont sont les contrats, soit qu’elles provi-
588 CONFLICT OF LAWS. [on. x.

ties are attached to things and not to persons, then the laws which
prescribe them are real; and, consequently, the law of the place
of their situation must govern.! Accordingly, he lays it down as

a fundamental rule: Quand la loi exige certaines formalités, les..

quelles sont attachées awx choses mémes, il faut suivze la loi de la
situation” Yet, strangely enough, he departs from this general
doctrine in relation to testaments, upon some subtile distinctions
which he takes, between extrinsic and intrinste forms, between
the solemnities required to the perfection and authenticity of an
act, and those which relate to the capacity to do it, or to dispose

of the thing which is the subject of it.?
" § 487 a. Sandius (John & Sandé) has given us some quite as
subtile distinctions, insisting that there is a wide distinction be-
tween the solemnities of an alienation and the thing of which the
alienation is the subject: Quod multum intersit inter solennitates
dispositionis et rem, de qué sit dispositio. The solemnities respect
but the form of the disposition or alienation, and the things dis-
posed of or alienated constitute the substantial matter thereof; so
that what respects the solemnities, affects only the form of the act,
and not the things. Solennitates sunt forma; res est subjectum
dispositionis ; quare tale statutum magis efficere videtur dispositia-
nem ipsam, quam rem.* Accordingly, Sandius holds, that, if a
foreigner makes his will according to the forms and solemnities of
ennent de la propre nature de ces contrats, soit qu’elles y soient liées et attachées
par un usage bien constant, et une Coutume invétérée, et ce sont ces choses qui
peuvent faire naitre le plus de contestation ; qu’il y en a qui ne servent que de
complément aux actes déja formés, et elles dépendent des différentes Loix; et
qu'il y en a encore qui ne sont que de pure discipline, et d’autres dont l’accom-
plissement plus ou moins prompt dépend de la volonté des parties, et celles-ci n’en-
trainent pas de grandes difficultées. Mais la véritable difficulté en cette mati-
ére, est de savoir bien discerner toutes ces formalités,'et les ranger chacune dans
la classe qui leur appartient, afin de ne pas appliquer & une formalité d’une cer-
taine classe, des principes et des decisions qui ne convenient qu’A une formalité
d’une autre classe. Plusieurs exemples vont faire sentir cette difficulté.” 1 Boul-
lenois, Observ. 23, p. 456, 457; Id. p. 488, 492, 498, 499. See Merlin, Répert.
Testament, § 1, 5, art. 1, 2, 3.

11 Boullenois, Obs. 23, p. 467; Id. p- 499, 500. See Livermore, Diss. p. 58 to
60; Henry on Foreign Law, p. 50.

2 2 Boullenois, Observ. 46, LE 467, Rule 4; ante, § 240. See 1 Boullenois,
Observ. 9, p. 151.

? 1 Boullenois, Observ. 21, p. 422 to 426.

* 1 Boullenois, Observ. 21, p. 422, 423; Sand. Decis. Frisic. Lib. 4, tit. Defin.
14, p. 142, 143.
§ 487-438.) REAL PROPERTY. 589

the law of the place where it is made, it will be valid even as to
immovables in another country, where different forms and solem-
nities are required. He assigns the following reason: Ratio hu-
jus sententi@a est, quod statutum vel consuetudo, prescribens  solen-
nitates testamenti, non afficiat res Testatoris, neque ejus personam,
sed ipsam dispositionem, que fit in loco statuti vel consuetudinis.
At in cujusvis actus solennitate inspicitur consuetudo loci, ubi is
celebratur, eoque in tis que spectant ad formam et solennitates tes-
tamentt, inspicitur consuetudo loci, ubi illud factum est, licet testa-
tor ibi larem fixum non habeat’ And again: Deindé hec senten-
tia non facilé ad praxin transferri potest, uli incommoda testari
volentibus, qui si habeant bona sita in diversis regionibus, qua,
quod ad testamenti solennitates attinet, diversis moribus reguntur,
non possunt secundim hanc sententiam uno testamento defungi, sed
sinolint pro parte intestati decedere, coguntur contra juris ratio-
nem plura testamenta exarare ; singula scilicet juxtd consuetudinem
cujusque regionis, vel in uno testamento sequi consuetudines plu-
rium locorum, et actum per se individuum huic, et illi loco diversi-
mode impartiri.?

§ 438. D’Argentré and Burgundus maintain with great clear-
ness the general doctrine, that the law ret site must govern as
to the solemnities of alienation, infer vivos and testamentary.®
D’Argentré’s opinion has been already in part stated. He adds,
in another place: Cum de rebus soli, id est immobilibus, agitur,
(qwils appellent d’héritage,) et diversa diversarum possessionem
loca, et situs proponuntur in acquirendis, transferendis, aut asse-
rendis, dominiis, et in controversia est, quo jure regantur, certis-
sima usu observatio est, id jus de pluribus spectari, quod loci est,
st suos cuique loco, leges, statuta, et consuetudines servandos ; et
qui cut mores de rebus, territorio, et potestatibus finibus sint recep-
ti, sic ut de talibus nulla cujusquam potestas sit preter territorti
legem. Sic in contractibus, sic in lestamentis, sic in commercit
omnibus, et locis conveniendi constitutum ; ne contra situs legem in
immobilibus quidguam decerni possit privato consensu; et par est

» Sand. Decis. Lib. 4, tit. 1, Defin. 14, p. 142, 143,

4 Td. p. 123.

* 1 Boullenois, Observ. 6, p. 129; Id. Observ. 9, p. 151; Id. Observ. 22, p.
422, 425; Cujaccii, Opera. Tom. 3, Observat. Lib. 14, ch. 12, p. 899, edit. 1758 ;
2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 866.

* Ante, § 426.

CONFL, 50
590 CONFLICT OF LAWS. [cn x.

sic judicari} Burgundus, in addition to what has been already
cited,? says in another place: Siquidem solemnitates testamenti ad
jura personalia non pertinent; quia sunt quedam qualitas bonis
ipsis impressa, ad quam tenetur respicere quisquis in bonis aliquid
alterat. Nam, ut jura realia non porrigunt effectum extra territo-
rium ; ita et hanc pre se virtutem ferunt, quod nec alieni territorti
leges in, se recipiant.2 This is also the opinion of other distin-
guished jurists.*

§ 439. Froland treats, as clearly real, all laws which respect
the alienation of immovable property, ard consequently that it is.
governed by the lex ret site. He lays down, as a fundamental
rule: La premiére (chose,) que le Statut Réel ne sort point de son
territoire. Et de ld vient, que dans le cas, ou il s’agit de succes-
sions, §-c. @ alienation @immeubles, dc. il faut s’attacher aux cou-
tumes des lieu, od les fonds sont situes.5 Cochin lays down the
rule, that, though the formalities of an instrument (acte) may be,
and indeed ought to be, according to the law of the place of the
instrument ; yet, when the clauses or contents of such an instru-
ment are to be applied to property in another country, the law
rei site must govern. Les formalités, dont un acte doit étre reve-
tu, se réglent par la loi, qui exerce son empire dans le lieu, od
Vacte a été passé; mais quand il s’agit d’appliquer les clauses qwil
renferme, aux biens des parties contractantes, c’est la loi de la situ
ation de ces biens, qui doit seule étre consultée®

§ 440. But there are many other jurists who maintain the

? D’Argent. de Briton. Leg. Art. 218, n. 2, p. 647; ante, § 871 a.

* Ante, § 372, 433, 438; post, § 477.

* Burgundus, Tract. 6, u. 2, 8, p. 128,129; post, § 477; Rodenburg, De Di-
vers. Stat. tit. 2, ch. 3,§ 1, 2; 2 Boullenois, Appx. p. 19, 20, 21; 1 Boullenois,
Observ. 6, p. 129, 130 ;- Id. Observ. 9, p. 151; Id. Observ. 21, p- 422, 423, 425;
ante, § 433. a; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12, p. 581 to
585; post, § 477.

* Ante, § 363 to §373, See 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch.
9, p. 865, 866; 1 Boullenois, Observ. 21, p. 423, 424; Sand. Decis. Frisic. Lib. 4,
tit. 1, Defin. 14, p. 142, where many opinions of jurists are cited.

5 1 Froland, Mém. 156; Id. 65.

* Cochin, Géuvres, Tom. 5, p. 697, 4to. edit. — There is some difficulty in rec-
onciling this passage with another cited in the note to § 440. Perhaps Cochin
only means here to say, that the solemnities of the place, where the act is done,
are to be observed ; but that the interpretation of the clauses or provisions of the
instrument are to be according to the law of the situs. See also 2 Burge, Comm.
on Col. and For. Law, Pt. 2, ch. 9, p. 866.
§.438 - 440.] REAL PROPERTY. 591

same opinion as Cochin, holding, that, if the act or instrument
have the formalities which are prescribed by the law of the place
where it is made, it ought to have a universal operation ;} and
they apply it especially to the case of testamentary dispositions of
real property.2, They found themselves upon the extreme incon-
venience, which would otherwise result from requiring a party to
make different testaments for their property lying in different
countries, and the almost utter impossibility, in many cases, of
ascertaining at a critical moment what are the peculiar solemni-
ties prescribed by the laws of each of these countries.2 They
seem wholly to have overlooked, on the other side, the inconven-
ience of any nation suffering property, locally and permanently
situate within its own territory, to be subject to be transferred by
any other laws than its own; and thus introducing into the bosom
of its own jurisprudence all the innumerable diversities of foreign
laws, to regulate its own titles to such property, many of which
laws can be but imperfectly ascertained, and many of which may
become matters of subtile controversy.4 Some of these jurists

* P. Voet, de Statut. § 4, ch. 2, § 6, p. 123, § 7, p. 124, edit. 1715; Id. p. tie
edit. 1661; J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, § 5, 6, p. 39, § 10, p. 43, 44;
Bnallansii Observ. 21, p. 426 to p. 433.— Mr. Livermore, in his anc
sums up the opinions of different jurists. Liverm. Diss. § 78 to § 214, p. 69 to p.
130. So does Mr. Burge. 4 Burge, Comm, Pt. 2, ch. 12, p. 581 to p. 585. San-
dius, or Sandé, has also brought together the opinions of different jurists on this

“ subject, Sand. Decis. Frisic. Lib. 4, tit. 1, Defin. 14, p. 142, 143.

* See Rodenburg, De Div. Stat. tit. 2, ch. 3; 2 Boullenois, Appx. p. 19; 1

Boullenois, p. 414 to 421; Id. Observ. 21, p. 422 to 433; 1 Hertii, Opera, § 4, n.
_ 10, p. 125, edit. 1737; Id. p. 179, edit. 1716; J. Voet, ad Pand. Lib. 1, tit. 4, p.
2,13, p. 48; Bouhier, Cout. de Bourg. ch, 23, § 81 to § 89, p. 460; Vinnius ad
Thstit. Lib. 2, tit. 10, § 14,-n. 5; 1 Boullenois, Observ. 21, p. 426, 427; Merlin,
Répert. Loi, § 6, art. 6, 7.

* Rodenburg, De Div. Stat. tit. 2, ch. 3; 2 Boullenois, Appx. p. 19; 1 Boulle-
nois, p. 414 to 417; Vinnius, ad Instit. Lib. 2, tit. 10, § 14, n.5; 1 Boullenois,
Observ. 21, p. 426, 427; Hertii, Opera, De Collis. Leg. § 4, n. 10, p. 126, edit.
1787; Id. p. 179, edit, 1716; Id. n. 23, p. 183, edit. 1737; Id. p. 189, edit. 1716 ;
Felix, Conflit des Lois, Revue Etrang. et Frang. Tom. 7, 1840, § 41, p. 347, 348.
John Voet has given the reasoning on this side of the question. J. Voet and
Pand. Tom. 1, Lib. 1, tit. 4, P* 2, § 13, 15, p. 45,46. See also 4 Burge, Comm.
on Col. and For. Law, Pt. 2, ch. 12, p. 590; post, 444 a.

* Cochin says, it is one of the most uniform principles, that the form of acts de-
pends upon the law of the place where they are passed ; so that, if a man is domi-
ciled at Paris, and there has all his property, (biens,) but he makes his testament
in another province under a different law, the law of the latter is alone to be re-
garded in its form, though the succession to the testator, either of heirship or tes-
592 CONFLICT. OF LAWS. : [CH. x.

press their doctrine so far, as to doubt whether a transfer, made
according to the solemnities of the place where the property is
locally situate, would be good, if not, also executed anne to
the law of the place where the act is done."

§ 441. The opinion of these jurists is supported by Danaaie
His language is: Et est omnium doctorum sententia, ubicunque |
consuetudo, vel statutum locale disponit de solemnitate, vel forma
actis, igari etiam exteros, ibi actum illum gerentes, et ‘gestum esse
validum, et efficacem ubique, etiam super bonis solis extra territo-
rium consuetudinis vel statuti2 In another place he says: Aut
statutum loquitur de his, que concernunt nudam ordinationem vel
solemnitatem actis, et semper inspicitur statutum vel consuetudo
loci, ubi actus celebratur, sive in contractibus, sive in judiciis, sive
in testamentis, sive in instrumentis, aut altis conficiendis. Ita quod

tamentary, may be regulated by the law of Paris. Cochin, GXuvres, Tom. 2, p.
72, 4to edit. See ante, § 439. D’Aguesseau treats with some sarcasm those whe
venture to suggest a doubt on the point. “We leave such discussions,” says he,
“to the ultramontane Doctors. We say with D’Argentré, that these questions
are not worthy to occupy a moment’s attention. No one can doubt, that the for-
malities of a testament ought to be governed by the law of the place where the
act is done.” D’Aguesseau, (Zuvres, Tom. p. 637, 4to edit.

1 Rodenburg, De Div. Stat. tit. 2, ch. 8; 2 Boullenois, Appx. p. 12; 1 Boulle-
nois, 417; Id. Observ. 21, p. 428, 429, 430. Grotius appears to have held the
same vptnfos, and to have applied it to the case of wills and testaments. See post,
§ 479, where his opinion is cited.

3 Molin. Opera, Tom. 2, edit. 1681, Consil. 53, § 9, p. 965; ante, § 260, note,
§ 274 a, 372a; 1 Boullenois, Observ. 21, p. 423, 429. Mr. Livermore manifest-
ly entertained the opinion, that it was sufficient for a testament of immovable
property to have the formalities prescribed by the law of the testator’s domicil.
After adverting to Dumoulin’s division of statutes into those which relate to the
solemnities and forms of acts, (nudam ordinationem vel solemnitatem actus,) and
those which concern the merits and decisions of causes, (que meritum cause vel
decisionem concernunt,) he added: “ The statutes of the first class I do not con-
sider to be either personal, real, or mixed. They do not act directly upon per-
sons nor upon property, but upon the act for the purpose of determining its au-
thenticity. The laws of some countries require, that a testament shall be made
in presence of seven witnesses. In other countries the law requires only the pres-
ence of a notary and two witnesses. These laws dispose of the solemnities of all
testaments made within their jurisdiction ; but they neither affect the capacity’ of
the testator, nor do they dispose of his property. The law of the testator’s domi-
cil determines his capacity to make a testament; the law of the place where his
immovable property is situated, determines aieiber it may be disposed of by tes
tament or not; the will of the testator disposes of his property ; and the sole pur-
pose and effect of the statute, which requires a certain number of witnesses to a
testament, is to show whether that will has been expressed or not.”
440 ~ 442] REAL PROPERTY. 593

testamentum, factum coram duobus testibus in locis, ubi non requi-
ritur major solemnitas, valet ubique. Idem in omni alio actu.
And yet Dumoulin in another place uses language not very con-
sistent with the foregoing, unless indeed he is there to be under-
stood as speaking, not of the forms and solemnities of testaments,
but of the operation and interpretation thereof. Sed emerget inci-
dens questio, cujus loci inspiciatur, an loci testamenti, contractus,
vel loci dominantis, an vero loci servientis? Et omnino dicendum
inspiciendam consuetudinem loci servientis, seu rei, que nee
tur?

-§441 a. Bouhier maintains, that in general the forms and so-
lemnities of all acts done, (which of course include testaments,)
should be according to the law of the place where the acts are
done, even when the property is situated elsewhere ; at least if the
custom of the situs is not in opposition to.it.2 He lays it down in
another place among his general rules. Tout statut, qui concerne
les formalites extrinséques des actes et leur authenticité, est per-
sonnel; en sorte que, quand Vacte est passé dans les formes usitées
au lieu, ov il est rédigé, il a par tout son execution ; and he then
applies the rule expressly to testaments.*

§ 442. Paul Voet holds the opinion, that the solemnities of con-
tracts and other instruments respecting the transfer of immovable
property are to be according to the laws of the place where the act
is done, and not of the rei site; for he holds laws respecting so-
lemnities not to be either real or personal, but of a mixed nature.
‘Statutum quippe circa solemnia, nec est in rem, nec in personam,
.sed mizti generis.6 He therefore insists, that, if a testament is
made according to the solemnities of the place rei site, but not
according to that of the testator’s domicil, it will not be valid as
to property situate elsewhere. Verum (says he) quid de solemnibus,

1 Molin. Opera, Tom. 3, ad Cod. Lib. 1, tit. 1,1. 1, Conclus. des Statutis, p. 554,
edit. 1681; ante, § 260 ; post, §479 4; 4 Burge, Comm. on Col. and For. Law, Pt.
2, ch. 12, p. 5833.1 Boullenois, Observ. 21, p. 423, 424; ante, 365 a,

* Molin. Opera, Tom. 1, De Fiefs, § 33, n. 86, Tom. ‘1, p, 410, edit. 1681; 1
Boullenois, Observ. 21, p. 423, 424, 425 ; Burgundus, Tract. 6, n. 2, p. 128 ; Bou-
hier, Cout. de Bourg. ch. 23, § 39 to § 44, p. 454, 455.

* Bouhier, Cout. de Bourg. ch. 28, § 10, p. 550.

“4 Bouhier, Cout. de Bourg. ch. 23, § 81, 82, p. 460; Id. ch, 28, § 10 to § 20,
p. 550, 551; Id. ch, 21, § 219, p. 417.

SP, Vout, De Statut. § 9, ch. 2, n. 8, p: 263, edit. 1715; Id. p. 318, 319, edit.
1661.

50*
594 CONFLICT OF LAWS. [cH. x:

in negotiis adhibendis, statuendum erit, si locorum statuta disere-
pent? Finge, quempiam testari in loco domicilii, adhibitis solemni-
bus ret site, non sui domicilii; valebitne testamentum ratione bo-
norum alibi sitorum? Respondeo, quod non. Neque enim aliter
testamentum valere potest, quam si ea servetur solemnitas, quam
requirit locus gestionis He further holds, that if a testament is
made by a person in his own country (sui loci) according to the
forms and solemnities required by the laws thereof, it will be valid
in respect to his immovable property in other countries, where differ-
ent forms and solemnities are required. And this without any dis:
tinction, whether such person has retained his original domicil, or
whether he is settled in another country. Quid, si quispiam testetur
secundum solemnia sui loci, puta coram notarto et duobus testibus,
an vires capiet testamentum ratione bonorum extra territorium stat-
uentis jacentium, puta in Frisidé, ubi plures solemnitates requiriunn
tur? Aff. (affirmo). Idque procedit, sive testator domiciliwm
prius retinuerit, sive alio transtulerit2 And he adds, that if a for-
eigner makes his testament according to the law of the place where
he is only temporarily abiding, it will still be valid as to his im-
movable property elsewhere, even in his domicil. Quid, si floren-

- sis secundum loci statutum testamentum condat, ubi tantum hospi-
tatur, an valebit alibi, ubi vel immobilia, vel domicilium habet?
Respondeo, quod ita. Cum enim agatur de actus solemnitate que
quoscunque obligat, in loco negotium aliquod gerentes, etiam oblir
gat forensem ibi disponentem, si suam dispositionem vel suum actum
velit utilem, licet non precisé liget eundem. He makes an excep-
tion, indeed, of a party’s making a testament in a foreign country,
with a view to a fraudulent evasion of the law of his own country,
Si tamen quispiam, ut evitaret solemnitatem loci sui domicilii, in
fraudem talis statuti, extra territorium se conferat, ejus testamem
tum non valere existumarem.4 ;

1 P. Voet, De Statut. § 2, ch. 2, n. 1, p. 262, edit. 1715; Id. p- 817, edit. 1661,

* P. Voet, De Stat. § 2, ch. 2, n. 2, p. 262, edit, 1715; Id. p. 817, 318, edit,
1661. :

5 P. Voet, De Stat. § 9, ch. 3, n. 8, § 262, 263, edit. 1715; Id. p. 318, 319, edit,
1661; post, § 475.

* P. Voet, De Stat. §9, ch. 2, n. 4, p. 264, edit, 1715; Id. p. 818, 319, edit.
1661. — In 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12, p- 590. Mr.
Burge supposes that Paul Voet holds a somewhat differently modified opinion,
like that of Rodenburg, that the testament will be good if made either according
to the law of the place where it is made, or according to that where he has his
§.442 443 a.]- REAL PROPERTY. 595

§ 443. Huberus supports the same opinion. ‘In Holland,”
says he, “a testament may be made before a notary and two wit-
nesses. In Friesland it is not valid unless established by seven
witnesses. A Batavian made a testament in Holland, according
to the local law, under which property situate in eland } is de-
manded. The question is, whether the judges in Friesland ought
to sustain the demand under that testament. The laws of Hol-
land cannot bind the Frisians ; and, therefore, by the first axiom,
the testament would not be valid in Friesland; but by the third
axiom it would be valid ; and, according to that, judgment should
be pronounced in favor of the testament. But a Frisian goes into
Holland, and there makes a testament according to the local law
(more loci), contrary to the Frisian law, and returns into Fries-
land, and dies there. Is the testament valid? It is valid by the
second axiom; because while he was in Holland, alfhough tempo-
rarily, he was bound by the local law; and an act, valid in its ori-
gin, ought to be valid everywhere by the third axiom; and this
without any discrimination of movable or of immovable property.
So the law is, and is practised.1 On the other hand, a Frisian
makes his will in his own country before a notary and two wit-
nesses ; and it is carried into Holland, and property situate there °
is demanded. It will not be allowed ; because the testament was
from the beginning a nullity, it being made contrary to the local
law. The same law will govern if a Batavian should make a tes-
tament in Friesland, although it would be'valid if made in Hol-
land; for, in truth, such an instrument would from the beginning
be a nullity, for the reasons just stated.” ?

§ 443 a. What Huberus here says may seem not very consistent,
with what he has said in another passage, already cited ;° but he
has endeavored to reconcile the passages by the following remarks.
But it may be asked, (says he,) whether what we have already
said does not give rise to an objection, that if a testament is made,
Which is valid by the law of the place, it ought to have the same
effect even in respect to property situate elsewhere, where it is

domicil. Post, § 444. See also ante, § 365. I do not see anything in the pas-
sage of Paul Voet, referred to by Mr. Burge, that leads to such a conclusion, The
text contains all the cases put by Paul Voet on this point, in his Work De Statut.
§ 9, ch. 2.
1 The axioms here referred to by Huberus are those already stated in § 29,
. # Huberus, Lib. 1, tit. 8, § 4, 15.
~* Ante, § 426,
596 CONFLICT OF LAWS. . [cu. x.

lawful to dispose thereof by will? There is no such objection;
because the diversity of laws of that sort does not affect the im-
movable property, neither does it speak concerning the same, but
only directs the act of making a testament; which, when rightly
executed, the law of the country does not prohibit that act from
being valid in respect to immovable property, so far as no charac-
ter, impressed upon that property by the law of the place, is
injured or diminished. This observation has a place also in con-
tracts. Thus, if certain things or rights of the soil of Friesland
are sold to persons in Holland, in a mode prohibited in Friesland,
though valid where the sale takes place, the things are understood
to be well sold. The same is true as to things not, indeed, im-
mmovable, but annexed to the soil. But if corn’ growing on the-
soil of Friesland should be sold in Holland, according to the lasts,
as it is called, the sale is void, although the law of Holland does
not speak on the point ; because it is prohibited in Friesland, and
it adheres to the soil, and is part thereof. Sed an hoc non obstat
ei, quod antea dizimus, si factum sit testamentum jure loci vali-
dum, id effectum habere etiam in bonis alibi sitis, ubi de illis testari
licet? Non obstat; quia legum diversitas in alla specie non affictt
res soli, neque de illis loquitur, sed ordinat actum testandi; quo
recte celebrato, Lex Reipubl. non vetat illum actum valere in im-
mobilibus, quatenus nullus character illis ipsis a lege loci impressus
leditur aut imminuitur. Hec observatio locum etiam in contracti-
bus habet; quibus in Hollandia vendite -res soli Frisici, modo in
Frisia prohibito, licet, ubi gestus est, valido, recte vendite intelli-
guntur ; idemque in rebus non quidem tmmobilibus, aut solo cohe-
rentibus ; uti st frumentum soli Frisici in Hollandia secundum
lastas, ita dictas, sit venditum, non valet venditio, nec quidem in
Hollandia secundum eam jus dicetur, etsi tale frumentum ibi non
sit vendi prohibitum ; quia in Frisia interdictum est: et solo cohe-
ret ejusque pars est.

§ 444. Rodenburg seems at first to consider, that laws, which
regulate the forms and solemnities of acts touching property, are
neither strictly personal laws, nor real laws; but a third sort.
Subsequitur tertium et ultimum genus, eorum nimirum statutorum,
quibus lex prefigitur actui, qui d persona peragendus, eundum ac-

1 Huberus, De Conflict. Leg. Lib. 1, tit. 3, § 15.— Whether this distinction
is satisfactory or not, will be for the learned reader to decide. See post, § 476.
§ 448 a, 444.) REAL PROPERTY. 597

tum vel vetando, vel certo etiam modo circumscribendo He after-
wards proceeds to state, that the opinion commonly entertained by
jurists is, that as to such acts, the law of the place where the act
is done is alone to be regarded, although it respects immovable
property. Si de solemnibus queratur, ea jampridem in foro ac
pulpito prevaluit opinio, ut spectande sint loci cujusque leges, ubt
actus conficitur.2 Quare sicubi ex more loci solemnite, ordinatum
fuerit testamentum, valiturum illud, ubicunque oportuerit exequi.®
He then remarks, that Cujaccius and Burgundus had attacked
this doctrine; holding, that testators are bound to observe the
forms and solemnities of the res site. He distinguishes cases of
this sort from cases of contract, which bind only the person: Cu
jus ossibus ubique inheret, semel ex forma loci contracte obliga-
tionis, nexus. De re vero alibi constituta disponendi, aut ejus in
alium transcribende formam hec non concernunt. Realium nam-
que jurium eorumve actuum, quibus fit mancipatio, aut dominium
transfertur, aliam esse rationem, vel quotidiana praxis edocet, et
recte disputat Burgundus. Jus in re, ut nascatur, quod hic ex
’ causa testamenti contingit, non posse id prestare alterius regionis
consuetudinem, ut forma illé ac solemnibus circumdaret alienorum
fundorum alterationes, adeoque omnino jus diceret extra territo-
rium.4 He then proceeds to examine the reasoning upon which
the opinion is maintained, that the law of the place of the making
a testament should govern: as to the forms and solemnities thereof,
and not the law rei site. He admits his own view to be, that a
testament made according to the forms and solemnities of the
place where it is made, ought to be held valid; and also, that a
testament, made in such place, according to the forms of the law
ret site, ought equally to be held valid. The former he treats as
an indulgence, founded in general convenience ; the latter, as cor-
rect in point of strict right. Ego potiis utrobique pro testamento
respondendum duxerim, quippe persone qualitas ad summam ret
non facit, tum factura, si Statuta illa, in solemnitates scripta, per-
sonalia forent, ut subditus iis gauderet, non gauderet exterus: sed
contra constat ea mere realia esse. Quicunque enim fuerit, sive
incola, sive exterus, qui rem alienare intendit, necesse habet respt-
cere ad solemnitatem territorii, cui bona sunt obnoxia. Quare di-
cendum est decidende questionis rationem in modo prolatis positam

' Rodenburg, De Divers. Stat. tit. 2, ch. 3, § 1; 2 Boullenois, Appx. p. 19.
* Ibid. ® Thid. * Ibid.
598 CONFLICT OF LAWS. [cu. x

esse: necessitatis nimirum rationem, summumque favorem, qui pro
testamentis facit, impetrasse, ut, quamvis illa mancipent aque atqué,
alienationes inter vivos, ideoque consimiliter componenda forent ad
normam loci, ubi res site sunt, suffecerit tamen ordindsse, secun-
dim'leges loci, ubi actus conficitur. Proinde si quis eo, quod ad
testandum expeditius sud causd comparatum est, noluerit uti, quod
ei forte promptius sit componere suprema ad loci leges, cui bona
subjaceant, quo minds testamentum ejus valiturum sit, non video:
nulla enim Juris ratio, aut equitatis benignitas patitur, ut que sa-
lubriter pro utilitate hominum introducuntur, ea nos duriore inter-
pretatione contra ipsorum commodum producamus ad severitatem ;
‘nec cum superaddatur alia testandi forma, adimitur prior, quod
nove solemnitatis adjectionem potius dedisse DD. quam priorem
ac ordinarium permutdsse videantur. Unde consequens est dicere,
ne disputem sine speciet appositione, Amersfurti, ubi coram trinis
testibus und cum Notario ultima conduntur elogia, viribus subsis-
tere celebrata, coram binis testibus sipra Notariwm, de bonis in
Hollandia, aut in alia Provincia nostre parte sitis It is hardly

1 Rodenburg, De Div. Stat. tit. 2, ch. 3, n. 1, 2; 2 Boullenois, Appx. p. 21, 22;
1 Boullenois, p. 414 to 418; Id. Obs. 21, p. 422, 423. See also 2 Burge, Comm.
on Col. and For. Law, Pt. 2, ch. 9, p. 865 to 868. — Mr. Burge says: “ In select-
ing the law by which it is to be determined whether the acts or instruments of
alienation have been made with the necessary solemnities to render the alienation
valid, the distinction must be made between those which are required for the
proof or authentication of the act, and those which are required to be observed
as the condition on which alone the law either authorizes the alienation, or gives
to it an effect which it withholds if they are not observed. The former are called
sometimes solemnia probantia, and the latter solemnia habilitantia. Thus, with
respect to the former, if the lex loci contractus treats as null and void every con-
tract, the subject-matter of which exceeds in value a certain sum, if it be not re-
duced to writing and proved before notaries, &c., when the notarial proof is not
that which is prescribed, the contract will be void in whatever place it is enforced.
So if those solemnities which the lex loci contractus requires, have been observed,
and the contract according to that law is valid and obligatory, it will be valid
everywhere else, But the latter proposition is subject to the qualification, that
it does not affect immovable property, subject to a law in the country of its situs,
which annuls a contract because it has not been entered into with the solemni-
ties which it requires. If the disposition of the law does not annul the contract
on account of the non-observance of the solemnities which are prescribed, but
gives to it a degree of authenticity or credit which it will want if they are not
observed, or if, in other words, its effect is either to dispense with a more formal
proof of the instrument, if it bears on it evidence of their observance, or if in
consequence of the noh-observance it attaches a presumption against the execu-
tion of the instrument, and therefore requires from the parties a greater burden
§444.] REAL PROPERTY. 599:

possible to conceive a stronger illustration of the difficulty of un-
dertaking to build up systems of jurisprudence upon mere theory

of. proof, such solemnities are to be classed amongst the proofs in the cause, which
are governed neither by the lex loci contractug, nor by that of the situs, but by
that of the forum. This question, in the opinion of Paul Voet, regards ‘ Non
tam de solemnibus, quim probandi efficacia ; que licet in uno loco sufficiens, non
tamen ubique locorum ; quod judex unius territorii nequeat vires tribuere instru-
thento, ut alibi quid operetur.’ The solemnities, which are called habilitantia, and
éonstitute the mode by which alone the alienation of immovable property is per-
mitted to be made, or by which alone that alienation can give to the grantee or
purchaser certain rights, are those which are prescribed by the lex loci rei site.
As that law may impose restrictions, which may wholly or partially withhold the
power of alienating immovable property situated within its territory, to which all
persons owning that property are subject, it may prescribe the conditions on
which such alienation may be made. Thus the law of Scotland does not permit
a destination of heritage by a testamentary disposition, neither does it permit
certain deeds to be made in lecto. One of the conditions may be the form or
manner in which it shall be made. This solemnitas dispositionis is tanquam
quedam qualitas rebus impressa, and the validity of the alienation must depend
on its compliance with the prescribed solemnity. Amongst the instances illus-
trating the species of solemnities prescribed by the lex loci rei site, and to which
effect 1 must be given in all questions respecting the validity of the alienation, may
be mentioned the Statute of Frauds in England. Unless there be such an
agreement in writing as is required by it, or as is sanctioned by the judicial con-
structions which it has received, no estate or interest in immovable property situ-
ated in England will pass, although, according to the law of the place where the
agreement was made, it might be sufficient if it were by parol. The lex rei site
must be invoked if the question regard the insinuation or registration of donations
or other instruments, or the effects, which are induced by the neglect of it. Du-
moulin seems to treat it as a solemnity which is of the substance of the contract,
and to be governed by the lex loci rei site. ‘Insinuatio et transcriptio in regis-
tris ordinarie curie loci semper omnibus his casibus est de forma et substantia :
quemadmodum insinuatio donationis apud magistrum census erat de substantia, si
excedebat quingentos aureos.’ Boullenois considers that if the registration does
not take place when it is proscribed by the lex loci rei sitz, the alienation is
void: ‘Que si le donateur est domicilée dans un royaume, et les biens situés
dans un autre, et que ces deux endroits requierent une insinuation, je dis dans ce
cas contre Thésaurus, que si elle n’est pas insinuée dans les deux endroits, mais dans
le seul domicile, donatio insinuatur virtute legis municipalis, non porrigit effectum
suum ad bona sita extra territorium, parce: que si la donation n’est pas insinuée
dans le lieu de la situation, elle n’est pas revétue de la formalité réelle qu’exige la
Ipi de la situation” ” Vattel affirms, “ that the validity of a testarfent, as to its
form, can only be decided by the domestic judge, whose sentence, delivered in
form, ought to be everywhere acknowledged.” But at the same time he admits,
that the validity of the bequests may be disputed, as not being according to the
lex rei site. Vattel, B. 2; ch. 7, § 85; Id. § 111. Mr. Feelix seems to hold a
similar opinion. He says: “ Une autre question est celle de savoir, si le contract-
600 CONFLICT OF LAWS. {om x

and private notions of general convenience. The common law has
wisely adhered to the doctrine, that the title to real property van
pass only in the manner, and by the forms, and to the extent al.
lowed by the local law. It has thus cut off innumerable disputes,
and given simplicity, as well as uniformity, to its operations.

§ 444 a. John Voet maintains, in substance, the same opinion
as Rodenburg; and insists, that it is sufficient, for the validity of
testaments of immovable property, that the forms and solemnities
thereof should be either according to the law of the place where
the testament is made, or according to the law of the place rei
site. His language is: Neque minus de statutis miztis, actus cu
jusque solennia respicientibus, percrebuit, insuper habitis de summo
cujusque jure ac potestate ratiociniis, ad validitatem actus cujus-
que sufficere adhibitionem solennitatum, quas lex loci, in quo actus
geritur, prescripserit observandas ; sic, et quod ita gestum fuerity
sese porrigat ad bona mobilia et immobilia ubicunque sita aliis in
territoriis, quorum leges longe alium, longeque pleniorem requirunt
solennium interventum ; quod ita placuisse videtur, tum, ne in inji-

ant ou disposant, qui se trouve en pays étranger, peut se borner & employer les
formes prescrites par Ja loi du lieu de la situation de ses immeubles, au lieu de
suivre celle du lieu de la rédaction? Nous tenons pour l’affirmative, par une
raison analogue 3 celle donnée sur la question précédente. Le Statut réel régit
les immeubles ; c’est un principe résultant de la nature des choses ; la permission
d’user des formes établies par la loi du lieu de la rédaction de V’acte n’est, qu’une
exception introduite en faveur du propriétaire, et & laquelle il lui est loisible de
renoncer. Tel est aussi le sentiment de Rodenburg, de Jean Voet, et de Vander
Kessel ; Cocceji soutient méme, que la forme des actes entre vifs ou testament
aires est réglé exclusivement par la loi de la situation des biens. Fachinée et
Burgundus partageaient cet avis, mais par rapport aux testaments seulement,
En Belgique, l’édit perpetuel de 1611, art. 18, ordonnait, qu’en cas de diversité
de coutume au lieu de la résidence du testateur et au lieu de la situation de seg
biens, on suivrait, par rapport 4 la forme et & la solemnité, la coutume de la situ-
ation. Paul Voet, Huber, Hert, Hommel, et l’auteur de lancien répertoire de
jurisprudence, se prononcent pour la nullité. Ce dernier invoque l’autorité de
Paul de Castres, au passage rapporté au n° précédent, et le principe, que la loi
lie tous les individus, qui vivent dans son ressort, ne fut-ce que momentanément;_
Nous renvoyons & ce sujet aux observations présentées sur la question précéden ae
Mevius distingue entre le citoyen faisant partie de la nation dans le territoire de
laquelle les biens sont situés, et entre l’étranger; il n’accorde qu’au premierila
faculté de tester ou de contracter partout d’aprés les formes prescrites au liew'de
la situation. L’auteur ne donne pas de motif de cette distinction, et nous ne
pouvons la trouver fondée.” Frelix, Des Conflit des Lois, Revue Etrang. et
Frang. Tom. 7, 1840, § 50, p. 359, 860. See also 4 Burge, Comm, on Col. and
For. Law, Pt. 2, ch. 12, p. 581 to p. 587; Id. p- 590.
(r4d4+ 444 d.] REAL PROPERTY. 601

nitum prope multiplicarentur et testamenta et contractus, pro nu-
mero regionum, diverso jure circa solennia utentium ; atque ita
summis implicarentur molestiis, ambagibus, ac difficultatibus ; quot-
quot actum, res plures pluribus in locis sitas. concernentem,, expe-
dire voluerint : tum etiam, ne plurima bond fide gesta nimis facile
ac propre sine culpé gerentis conturbarentur. We afterwards
adds: Posito vero hoc generali circa solennium adhibitionem jure,
executiendum superest, quid statuendum sit, si quis, in loco aliquo
actum gerens, neglectis loci istius solennibus, adhibuerit ea, que vel
domicilii vel ret site statuta requirunt, sive diversa illa sint, sive
pauctora? Mynsingerus quidem et Michaél Grassus actus ita
gestos nullius fore momenti pronunciant, sive actum gerens extra
domicilii locum servaverit solennia domicilii, sive ea, que require-
bantur in loco ret immobilis site. Cum enim ante dictum sit, ali-
quem et ratione domicilii, et ratione bonorum immobilium, subditum
esse magistratibus locorum, in quibus vel domicilium fixit, vel bona
immobilia possidet ; ac quisque magistratus secundum jus summum
(de quo superius disputatum, quodque hic usum invenit) sui statuti
vires non male tueatur, qua usque potest, iniquus sane esset in sibi
subjectum ratione domicilit aut bonorum, sit non respectu bonorum
in suo territorio jacentium, ratam haberet ultimam voluntatem aut
contractum ejus, &@ quo sua statuta solennium intuitu servanda
videt; maxime, cum hdc ratione defendens sui statuti potestatem
non conturbet aut subvertat alibi bene gesta, atque _adeo nequa-
quam alterius territorii magistratibus ullam videri possit injuriam
facere)
' §444 6. Cujaccius seems to hold, that the law of the place of
the domicil of the testator ought to be regarded as to the forms
and solemnities of making wills and testaments, without reference
to the place, where the will is made, or the property is situated.
Queri hodie sepenumero solet, cujus regionis aut civitatis leges
moresve serviri oporteat in ordinando testamento; nam quot sunt
civitates, tot fere sunt ordinandi testamenti leges et mores ; et soleo
dicere, patriam testatoris solam spectari oportere, §-c. Jus igitur
patria »spectatur, potius quam jus commune Populi Romani, &c.
Sue igitur patrie et civitatis legibus aut moribus quisquis testari
debet, &c. Denique non spectari locum volo, in quo bona sunt, sed
patriam testatoris, §c. Et domicilii potius quam originis spectart
1 J. Voet, ad Pand. Lib. 1, tit. 4, P". 2, § 18, 15, p. 45, 46; 4 Burge, Comm. on

Col. and For, Law, Pt. 2, ch. 12, p. 590; ante, § 440 to § 443.
CONFL, 51
602 : CONFLICT OF LAWS. [cH.’x,

patriam.. Possit autem quis quo loco habet bona, ejus neque origi-
nalis esse, neque incola.! Nec ejus loci ulla habebitur ratio in
faciendo Testamento. This might seem sufficiently explicit. On
another occasion he says: Intelligimus, inquam, in faciendo testa-
mento, privilegium et morem patrie Testatoris, spectari oportere,
non situm bonorum. Nam sola possessio bonorum non creat mihi
patriam. Si possideo predium in hac urbe, hec urbs non est ideo
mea, nisi in ea posui domicilium. Solam possessionem nec civem
facere, nec incolam. Ergo in servandis solemnibus testamenti non
-spectabo situm bonorum, ut pro vario situ bonorum etiam varia so-
lemnia observentur, vartiqgue mores in exequenda defuncti volun-
tate ; sed spectabo tantum morem et privilegium patrie testatoris.?

1 Cujacii, Opera, Tom. 3, Observ. Lib. 14, cap. 12, p. 399, edit. 1758 ; 4 Burge,
Comm. on Col. and For. Law, Pt. 2, ch. 12, p. 582.

2 Cujac. Opera, Tom. 9, Comm. ad Cod. Lib. 6, tit. 28, p. 709, edit. 1768;
Bouhier, Cout. de Bourg. ch. 28, § 8, p. 549; 1 Boullenois, Observ. 21, p. 423
2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 866; 4 Burge, Comm.
Pt. 2, ch. 12, p. 582; Sand. Decis. Frisic. Lib. 4, tit. 8, Defin. 7, p. 194. Vinnius
holds a similar opinion. He says: Quesitum est, an testamentum juxta alicujus
loci consuetudinem, aut Statutum factum, etiam vim habet extra illum locum;
exempli gratia testator ibi testamentum fecit, ubi coram duobus testibus et Notario
testari licet, ut in hac nostra Batavia; queritur, an valeat etiam in iis locis, ubi
septem testes requiruntur, uti in Frisia, ubi sequuntur jus civile, Affirmant comm.
DD. in L. 1, C. C. de summ. Trinit. et secundum hance Sententiam sepissime
judicatum. Sunt tamen qui in contrarium eant, et in quzstione proposita sic
distinguendum arbitrantur, ut circa res quidem mobiles, et nomina, admittenda
sit communis interpret. sententia. At circa res soli, spectandum jus ejus loci in
quo sitee sunt, &c. Mihi prior sententia videtur probabilior, multumque referre
utrum Statutum disponat circa solemnitatem alicujus actus, an circa rem, puta
fundum, locumve ; que Statuta in rem concipiuntur. Qualia sunt, que de suc-
cessione ab intestato disponunt, rem ipsam haud dubie aflficiunt, ut ubicumque, sit
ejus loci ubi est, legibus obstringatur. Idemque habendum de Statutis, que circa
habilitatem personarum, dispensando aliquid, disponunt. Gaill, Coras. Gomes.
Que autum Statuta disponunt circa actus solemnitatem duntaxat, cum neque
rem affiviant, neque personam actum celebrantis, sed ipsam solummodo disposi-
tionem, que, fit in loco Statuti, vel consuetudinis, rationi, et juri consentaneum
est, ut ea vim suam exerant etiam ad bona alibi sita; quoniam actuum solemnia
ad eorum spectant Jurisdictionem, in quorum territorio celebrantur; et alias contra
rationem juris, testato decedere volenti, plura testamenta essent contenda, aut quod
absurdum est, plurium locorum consuetudines in uno testamento exquirere oporteret,
actumque unum, atque individuum, qualis est testamenti, secundum diversa loca
‘adjudicari. Ubi contraria scite expedit, et prudenter temperat, novam quandam
distinctionem Fachinei adde, que nos, lib. 2, Select. Quest. C. 19. Plane si Lex
expresse testatores sequi jubeat jus loci, in quo bona sita sunt, aliud dicendum est.
Talis est-constitutio Principum Brabantiz, emissa anno 1611, cujus meminerunt
rit

§ 4446, 445.] REAL PROPERTY. : 603

§ 445. Thirdly; in relation to the extent of the interest to be
taken or transferred. And, here, there seems a perfect coinci-
dence between the doctrine of the common law, and that main-
tained by foreign jurists. Jt is universally agreed, that the law
rei site is to prevail in relation to all dispositions of immovable
property, and the nature and extent of the interest to be alien-
ated. If the local law, therefore, prescribes, that no person shall
dispose, by deed or by will, of more than half, or a third, or a
quarter of his immovable property ; or, that he shall dispose only
of a life-estate in such property ; such laws are of universal obli-
gation, and no other or further alienation thereof can be made.!
It follows that, if the local law prohibits the alienation of certain
kinds of immovable property, or takes from the owner the power
of charging them with liens, or with mortgages, that law will ex-
clusively govern in every such case. D’Aguesseau fully assents
to this doctrine, and says, that no one can be ignorant, that, when
the question is, what portion of immovable property may be de-
vised, it is necessary invariably to follow the law of the place,
ee the property is locally situate.?

Butgundus, &e. Vinn. ad Inst. Lib. 2, tit. 10, $14, n. 5; 1 Boullenois, Observ.
21, p. 426, 427. Gaill is equally explicit. Alibi statutum est, ut testamentum
coram Notario et quobus testibus factum valeat. Quesitum, utrum tale testa-
mentum ubique vires habeat, etiam extra territorium statuentium, ubi forte major
solennitas requiritur, vel jus Civile observantur. Conclusum’ quod sic; quia ex
communi Doctor. opinione, statutum disponens citra solennitates testamenti, ex-
tendit se etiam extra territorium, ita ut heres succedere possit in omnibus bonis,
ubicunque sitis, et in universum jus-testatoris ; quia quoad solennitates attenditur
consuetudo loci, in quo actus celebratur. Gaill, Pract. Observ. Lib. 2, Observ. 123,
p- 548, See Peckius, De Testam. Conjug. ch. 28, n. 9, p. 620, who holds a simi-
lar opinion. Feelix, Conflit des Lois, Revue Etrang. et Frang. Tom. 7, 1840, § 37,
p- 307 to 312; ante, § 426 to 428.

* 1 Boullenois, Prin, Gén. 30, p.'8; Id. Observ. 16, p. 205; and 1 Froland,
Mém. 156; Rodenburg, De Div. Stat. tit. 2, ch. 2, § 1; 2 Boullenois, Appx. p. 14;
post, § 479,
 * D’Aguesseau, (Euvres, Tom. 4, p. 637, 638, 4to edit. — Mr. Burge, on this
subject, says: “In a former part of this work it has been seen, that the power to
alienate immovable property by contract was a quality i impr essed on the property ;
that the law from which it was derived or by which it was regulated, was a real
law; and that the existence of this power and the validity of its exercise must
be decided by the law of the country in which that property was situated. ‘ Re-
bus fertur lex, cum certam iisdem qualitatem imprimit, vel in alienado, v. g. ut
ne bona avita possint alienari, vel in acquirendo, v. g. ut dominium rei immobilis
vendite non aliter acquiratur, nisi facta fuerit judicialis regisnatio” The power
of making the alienation by testament is no less qualitas rebus impressa, ‘than that
604 CONFLICT OF LAWS. x [cn. x.

§ 446. An illustration of the doctrine may be borrowed from the
English jurisprudence, prohibiting alienations and devises of real

of making the alienation by contract. When, therefore, the question arises,
whether the immovable property may be disposed of by testament, recourse
must be had to the lex loci rei site. That law must also decide, whether the
full and unlimited power of disposition is enjoyed, or whether it is given under
restriction. The validity of the testamentary disposition depends in the latter
case on its conformity to that restriction, whether the restriction consists in limit-
ing the extent or description of property, over which the power of disposition
may be exercised, or the persons in whose favor the disposition is made, or in re-
quiring that the testator should have survived a certain number of days after the
execution of the act, by which the disposition was made. The total or partial
defect of the will on the ground, that it did not institute heirs, or that it omitted
to name the heirs, the disherison of the heirs, the grounds on which the disherison
may be justified are essentially connected with the power of disposing of immov-
able property by testament, and are therefore dependent on the law of its situs.
Many of the restrictions on the power of disposing by testament have been con-
sidered by jurists expressly with reference to the operation of the law by which
they were created. Rodenburg states the rule, ‘ Unde certissima usa ac observa-
tione regula est, cum de rebus soli agitur, et diversa sunt diversarum possessionum
loca et situs, spectari semper cujusque loci leges ac jura, ubi bona sita esse pro-
ponuntur, sic ut de talibus nulla cujasquum potestas sit, preter territorii leges.’
He illustrates it by referring to a statute which prohibits a disposition of allodial
property by testament. He considers such a statute a real law, which renders in-
operative any testamentary disposition of the property in whatever place the
testament is made. Ferriere has stated this doctrine: ‘ Si je legue un heritage
propre situé en coutume, qué en défende la disposition, tel legs est nul, et ne peut
étre parfourni sur les biens situés en cette coutume, quoi qu’acquest, parce qu’a
V’égard des choses, dont on peut disposer par derniére volonté, on considere la
coutume ou elles sont situées. Celui, quia son domicile en cette coutume peut
instituer sa femme dans les biens, qu’il a dans le pais de droit écrit, comme il aété
jugé par arrét du 14 Aoust, 1754 rapporté par Marion au de ses plaidoyers, ce qui
doit étre sans difficulté.’ A testament made in a foreign country bequeathing
heritable subjects situated in Scotland, is not sustained in that kingdom, though
by the law of the country where the testament was made, heritage might have
been settled by testament, because by the law of Scotland no heritable subject
can be disposed of in that form. On this principle a Scot’s personal bond taken
to heirs and assignees, but ‘ secluding executors,’ cannot be bequeathed by a for-
eign testament. But in all questions touching heritable subjects situate abroad,
the foreign testament will be given effect to according to the lex loci. Dumoulin
lays down the same doctrine respecting the restriction on the testamentary power
over biens propres. ‘ Unde statutum loci inspicietur, sive persona sit subdita, sive
non; itam si dicat, heredia proventa ab und linea, redeant ad heredes etiam remo-
tiores lines, vel heredes lines succedant in herediis ab illa linea proventis. Vel
quod illi de linea non possunt testari de illis in totum, vel nisi ad certam partem.
Hac enim omnia et similia spectant ad caput statuti agentis in rem, et praeceden;
tei conclusionem.’ Again; the statute which prohibits a disposition to particular
§ 446, 446 @.] REAL PROPERTY. 605

estate in mortmain, or for charitable purposes. If an American
citizen, owning lands in England, or a Scotchman owning lands in
England, should alienate, or devise such lands in violation of the
mortmain acts, the instrument, whether inter vivos, or testament-
ary, would be held void. And the same principle would apply to
a trust created in personal property, to be invested in lands in
England for the like purposes.

[* § 446 a. So where the law rei site imposes any restrictions
upon the transfer of real estate, those restrictions. will be oper-
ative without regard to the place of making such contract of trans-
fer, and no such contract can be carried into effect against the
foreign law. So, too, the question of the extent of right to, and
the mode of disposition of, the avails of the sale of real estate
made in a foreign country where the estate lies, will depend upon
the lex rei site.2 But where such avails have been carried into
another jurisdiction, the courts there will not feel bound by any
provision of the lex rei site which the laws there rendered inca-
pable of performance.] _

persons, or (which involves the same consequence) requires the disposition to be
made in favor of persons, and therefore excludes atl others, is a real law. ‘ Di-
‘recté enim in rerum alienationem scripta hac lex realis omnino dicenda est: nec
enim statutum reale sit, an personale metiri oportet & ratione, que a conjugali
forsan qualitate fuerit ducta, sed abips re, que in prohibitione statuti ceciderit.’
So, also, it has been held, that the law which requires that the testator should
have survived the execution of his testament, will control the disposition of prop-
erty,.situated in the country where that law prevails, although the testament is
made, or the testator domiciled in a place where no such law exists. If a testator,
whose domicil and real estate were both in Normandy, made a will in some other
place, in which he had occasion to be present, but where the law did not require,
that the testator should survive forty days, it was held, that the survivorship was
essential to the validity of the testament, so far as it related to the real property
in Normandy. If these questions arise on the power to dispose of movable prop-
erty by testament, the'law by which they are decided is that of the domicil ‘pour
les meubles, ils suivent la loi du domicile, et il ne sauroit jamais y avoir de choc
entre différentes coutumes, en sorte qu’il est assez inutile, quant aux meubles,
Wagiter'si le statut, qui permet de tester, ou qui le défend, est personnel, ou s'il
est réel,? The rule is stated by Grotius, ‘Ubi de forma sive solemnitate testa-
menti agitur, respici locum conditi testamenti; ubi de persona antestari possit,
jus domicilii; ubi de rebus que testamento relinqui possunt, vel non, respici locum
Momicilii in mabilbtis in rebus soli situm loci.’” 4 Burge, Comm. on Col. and For.
Law, Pt. 2, ch. 5, p. 217 to 220.
1 Attor.-Gen. v. Mill, 3 Russell, R. 328; S. C. 2 Dow & Clark, 393.
[*? Waterhouse v. Stausfield, 12° L. & Eq. R. 206; S, C, 13 id. 465.]
51* a
606 CONFLICT OF LAWS. [cH. x.

§ 447. Fourthly; in relation to the subject-matter, or what are
to be deemed immovables. Here, as we have already seen, not
only lands and houses, but servitudes and easements, and other
charges, on lands, as mortgages and rents, and trust estates, are
deemed to be, in the sense of law, immovables, and governed by
the lex rei site.1 But in addition to these, which may be deemed
universally to partake of the nature of immovables, or (as the
common law plirase is) to savor of the realty, all other things,
though movable in their nature, which by the local law are deemed
immovables, are, in like manner, governed by the local law. For
every nation, having authority to prescribe rules for the diposition
and arrangement of all the property within its own territory, may
impress upon it any character which it shall choose ; and no other
nation can impugn or vary that character. So, that the question, in
all these cases, is not so much, what are, or ought to be deemed, ex
sud naturdé, movables, or not; as what are deemed so by the law
of the place, where they are situated. If they are there deemed
part of the land, or annexed (as the common law would say) to

1 Ante, § 382; Poth. Cout. d’Orléans, ch. 1, § 2. — P. Voet puts on this point
the very sensible distinction, that whether rents are to be deemed personal, or
real, depends upon the question, whether they are charged on real property or
not. “Vel enim talium redituum nomine sunt affecta immobilia, id est, super
immobilibus sunt constituti, et immobilibus erunt adscribendi, adeoque statutum
loci spectabitur ; vel immobilia affecta non sunt illis reditibus, tumque mobilibus
poterunt accenseri; atque adeo statutum loci persona, cujus illi sunt reditus, in-
spici debebit. P. Voet, De-Stat. § 9, ch. 1, n. 13, p. 259, edit. 1715; Id. p. 313,
edit. 1661. And he includes among immovables all movables, lich are inten-
tionally annexed permanently to the freehold. ‘ Nisi tamen perpetui usus gratia
ex destinatione patris-familias in uno loco manere debeant ; quo casu immobilibus
comparabuntur” Id. n. 8, p. 255, edit. 1715; Id. p- 309, edit. 1661. Rodenburg,
speaking on this point, says: De reditibus peculiaris esto consideratio. Et illi
quidem, qui & re prestantur, vel cujus nomine constituta hypotheca est, collocan-
tur 4 Doctoribus in immobilium numero, ita tamen, si perpetui sunt, secus si tem-
porales, qua distinctione et Burgundus utitur. Sed vix est ut non utrobique
idem sit dicendum ; cum enim ob id ipsum annumerentur immobilibus, quod rei
immobili per lynathebs constitutionem innitantur, ponendi aliquin, vel si per-
pétui sint, in mobilium classe ; nec hypothece immutetur natura, temporis aliqua
ad redimendum prestitutione, nihilque ad summam rei intersit, certum an incer-
tum luitionis sit tempus, consequens est dicere constitutos ad tempus reditus, aque
atque perpetuos, immobilium nomine venire, maxime cum per hypothecse consti-
tutionem, res ad summam debiti habeatur quasi alienata, que persolutionem re-
dimitur. Rodenburg, De Div. Stat. tit. 2, ch. 2,§ 2; 2 Boullenois, Appx. p. 15.
See, also, Burgundus, Tract. 2, n. 29, 80, p. 77, 78, 79.
4

§ 447 -449.]. REAL PROPERTY. ‘ 607

the soil or freehold, they must be so treated in every place, in
which any controversy shall arise respecting their nature and char-
acter. In other words, in order to ascertain what is immovable
or real property, or not, we must resort to the lex loci rei?

§ 448. Hitherto we have spoken of alienations and acquisitions
made by the acts of the parties themselves. The question next
arises, whether the same principles apply to estates and rights ac-
quired by operation of law. It may be affirmed, without hesita-
tion, that, independent of any contract, express or implied,’ no
estate can be acquired by operation of law in any other manner,
or to any other extent, or by any other means, than those pre-
scribed by the dex ret site. Thus no estate in dowry, or tenancy
by the curtesy, or inheritable estate, or interest in immovable
property, can be acquired, except, by such persons, and under such
circumstances, as the local law prescribes. Thus, if the law of a
state, where a man is domiciled at his death, should confer a title
of dower on his wife, though she were an alien, that would not
prevail in any other state, where an alien is not dowable, and
where the intestate owned real estate.

§449. Many questions upon this subject. have arisen in the
course of the discussions upon the, matrimonial rights, conferred
by the lea domicilii over immovable property, situate in foreign
countries. In the different Italian states, and formerly in some
of the provinces of France, which were governed by the Roman
law, there existed various regulations with regard to dowry or
dotal property, Jucrum dotis. By the laws and customs of some
places, the husband gained by survivorship the whole of the dotal
effects ;. by others a third, by others a fourth, and by others noth-
ing. One of the questions, which has been most elaborately dis-
cussed among foreign jurists, is, whether, in such a case, the law
of the matrimonial domicil ought to govern the rights of the par-
ties, as to immovable property in foreign countries, as it does in
the matrimonial domicil.6 It seems agreed on all sides, that,
where there is in the country rei site a prohibitory law against
any such dotal rights, and against any contract to create them, the
--? See Ersk. Institutes, B. 3, tit. 9, § 4; ante, § 382.

* Chapman v. Robertson, 6 Paige, R. 630.

* See Livermore, Diss. § 88, 89, p. 72, 73.

* Livermore, Diss. § 86, p. 71; 1 Domat, B. 1, tit. 9, § 1; Code Civil of France,
art. 1540 to art. 1573 ; 2 Boullenois, 89, 90.

* 1 Boullenois, Obs, 29, p. 732 to p. 818.
608 CONFLICT OF LAWS. ' [en. xX:

law of the matrimonial domicil cannot prevail, if a different rule
exists there.! But the question has been made, whether in the
absence of any such prohibitory law, or any express contract, the
law of the matrimonial domicil ought not to prevail, so as to give

the same dotal rights in every other place.?

§ 450. Baldus held, that, in such cases, the law or custom of
the matrimonial domicil ought to govern, as to property “every-
where. Consuetudines et statuta, (said he,) vigentia in domicilio
mariti, non curo, ubt res sint posite, que in dotem date sunt
Dumoulin asserted the same doctrine, upon his favorite theory,
that in all cases the law of the matrimonial domicil constituted a
tacit contract between the parties. There are many jurists who
maintain the same opinion.®

§ 451. Boullenois, as we have.seen,® does not admit the exist-
ence of any such tacit contracts, as Dumoulin contends for ; but
he deems all laws real, which respect property, making, however,
a distinction in cases of laws, which respect the rights of married
persons in each other’s property, which he treats as laws respect-
ing the state or condition of the person.? But he contends, that,
even if:there be such a tacit contract, it does not render the laws

? Livermore, Diss. § 85 to 91, p. 71 to 75; 2 Boullenois, 89, 90, 91, 92; ante,
§ 176 to 180, 184, 188; P. Voet, De Stat. § 4, ch. 3, § 9, p. 134, 185, edit. 1715;
1 Froland, Mém. 62, 63, 64.

* Even Paul Voet, who is a strong advocate for the reality of statutes, admits,
that cases of express contract may govern, as to property locally situate in a for-
eign country. “Si statuto in uno territorio contractus accesserit, seu partium
conventio, etiam si in rem sit conceptum, sese extendit ad bona extra jurisdic-
tionem statuentium sita; non ut afficiat immediaté ipsa bona, quam ipsam perso-
nam, quoad illa.” P. Voet, De Stat. § 4, ch. 2,§ 15, p. 127, edit. 1715.

® Livermore, Diss. § 87, p. 71, 72; 1 Froland, Mém. 62.

* Livermore, Diss. § 87, p. 73, 74; 1 Froland, Mém, 61, 62, 63. — Dumoulin,
in treating of the question, what law ought to prevail in fixing the rights of the
husband, in regard to the dotal effects of his wife, in case of a change of domicil
before the dissolution of the marriage, ultimately decides in favor of the law of
the matrimonial domicil. His language is: “ Hine infertur ad queestionem quo-
tidianam de contractu dotis et matrimonii, qui censetur fieri, non in loco, in quo
contrahitur, sed in loco domicilii viri ; et intelligitur, non de domicilio originis, sed
de domicilio habitationis ipsius viri, de quo nemo dubitat, sed omnes consentiunt.”
Molin. Oper. Tom. 8, edit. 1681, Comm. ad Cod. Lib, 1, tit. 1, 1. 1, Conclus. de
Statut. p. 555; 1 Froland, Mém. 61; Id. 62; ante, § 147.

§ Ante, § 145 to 156.

® Ante, § 155; 1 Boullenois, Observ. 29, p 737 to 741.

" Ante, 155; 1 Boullenois, Observ. 5, p. 121; Id. Observ. 29, p. 737, 788.
§449-452.] REAL PROPERTY. 609

of the place in regard to dowry personal ; for, if that were so (he
adds,) then the dowry of persons contracting at Paris would be
the same in all other provinces in‘ the realm as it is in Paris,
which no one has ever yet contended for.! Rodenburg seems to
-hold, that, where there is no matrimonial contract to govern the
case, the law of the situs is to govern in respect to dowry, approv-.
ing the doctrine of D’Argentré and Burgundus on this point.2
D’Argentré says: Cum cautum est virum, uxore premortua, dotem,
dotisve partem lucrari; cujus loci statutum spectamus, viri, an ux-
oris, quod olim fuit, an quod nunc est? Nos rerum lucrandarum
Situm spectandum dicimus ; et quid ea de re statuta singularia per-
mittant, quid abnuant respiciendum® Burgundus boldly asserts
the opinion, that the law rei site must govern in all such cases as
toimmovable property. Nam si dotalitium rei immobilis in contro-
versiam veniat, ea antiquitus obtinerit sententia, ut ad locum situs
respicere oporteat; que cum usque ad nostra tempora, apud omnes,
qui moribus reguntur, inviolabilis duret, non est committendum, ut
illam dubiam faciam defensionis solicitudine.© Many jurists. con-
cur with them in opinion.®

§ 452. Similar questions have arisen in relation to the rights of
community, and of mutual donations between husband and. wife,
whether they extended to immovable property situate elsewhere
than in the matrimonial domicil, or not; and the general result
of the reasoning among foreign jurists turns very much upon the
same considerations, which have been mentioned in relation to

1 1 Boullenois, Observ. 5, p. 121; 2 Boullenois, p. 88 to 92. See ante, § 155.

* Rodenburg, De Divers. Statut. Pt. 2, tit. 2, ch. 4, §5; 2 Boullenois, Appx.
p. 67.

*.D’Argent. ad Briton. Leg. Des Donations, art. 218, gloss. 6, n. 46, Tom. 1, p.
664; Liverm. Dissert. § 92 to § 99, p. 75 to 78.

‘ 1. Boullenois, Observ. 5, p- 121.

* Burgundus, Tract. 2, n. 10, p. 63, 64; Liverm. Diss, § 104 to 114, p. 80 to
87. : <

* Ante, § 142, 148, 152, 153, 167, 168; 1 Froland, Mém. 66, 67, 156; Id. 316
to 828, 328, 341; 2 Froland, Mém. 816. — Froland expresses himself in the fol-
lowing terms: “ ‘Cs premiére (Régle), que le statut réel ne sort point de son ter-
Titoire. Et dela vient que dans le cas, ou il s’agit de successions, de la maniére
de les partager, de,la quotité des biens, dont il peut disposer entre vifs ou par
testament, daliénation @immeubles, de donaire de femme ou d’enfans, de légitime,
retrait lignager, féodal ou conventionnel, de droit de puissance paternelle, de droit
de viduité, et autres choses semblables, il faut s’attacher aux coutumes des lieux,
ou les fonds sont situés, 1 Froland, Mém. 156; Id. 49, 60 to 81.
610 CONFLICT OF LAWS. : [cH x.

dowry. But this subject has been already discussed in anablist
place, and it need not be here again examined."

§ 453. Similar questions have also arisen in considering the
effect of mutual donations by married couples, when they are ad-
mitted by the law of the matrimonial domicil, but are unknown
to, or prohibited by, the law of the place rei site.? But they pro-
ceed upon the same general principles.? Cochin says, that it is
not the law of the place, where an act is done, which determines
its effect. If (says he) property is situate in a place whose laws
prohibit donations inter vivos, or reduce them to a particular por-
tion, no one supposes the donation to be less a nullity, or less sub:
ject to a reduction, because the act is done in a place, where no
such prohibition exists.*

§ 454. The doctrine of the common law seems uniformly to be,
that in all cases of this sort, touching rights in immovable prop-
erty, the law of the place rei site is to govern.6 Hence, if per-
sons, who are married in Louisiana, where the law of community
exists, own immovable property in Massachusetts, where such
community is unknown; upon the death of the husband, the wife
would take her dower only in the immovable property of her
husband, and the husband, upon the death of the wife, would
take, as tenant by the curtesy only, in the immovable property of
his wife.

§ 455. Another class of cases, illustrating this subject, may be
derived from the known rights of fathers over the property of their
children according to the provisions of the Roman law, and the
customary law of countries, deriving their jurisprudence from the
Roman law.§ By the ancient Roman law all the sons were in sub-

1 See ante, § 143 to 158, § 160 to 170, 174, 175, 176, 177; 1 Froland, Mém.
66, 67, 68, 69; Id. 177, Pt. 2, ch. 1, per tot.; Cochin, @uvres, Tom. 5, p. 80,
4to. edit.; Merlin, Répertoire, Testament, § 1, n. 5, art. 1, p. 309, 810. We
have already seen Boullenois’s view of this subject, ante, § 155. See, also, ante,
§ 451.

2 Ante, § 148 to § 159.

*" Liverm. Diss. § 181, 182, p. 114, 115; 1 Voet, ad Pand. Lib. 1, tit. 4, n. 3,
p. 39; 2 Froland, Mém,. ch. 18, p. 840, &c., ch. 19, p. 904; Rodenburg, De Div.
Stat. tit. 2, ch. 5; 2 Boullenoix, Appx. p. 33, 834; 1 Boullenois, 660, 661, 663;
Id. Observ. 29, p. 767; 2 Boullenois, Observ. 44, p. 480, 481, 432;-ante, § 148
to 159.

* Cochin, Guvres, Tom. 5, p. 797, 4to edit.

§ Ante, § 157, 158, 159, 174 to 179, 186, 187.

® Ante, § 139,
§ 452 -457.] REAL PROPERTY. 611

jection to the authority of the father, until they were emancipated
by the father, or by some other mode known to that law. During
such subjection they were incapable-of acquiring any property for
themselves by succession, or donation, or purchase, or otherwise ;
and whatever they thus acquired belonged of right to their father,
saving only what was called the son’s peculium, which consisted of
property acquired by his service in the army, or by his skill at the
bar, or in the exercise of some public employment.! This sort of
property was, therefore, known by the name of peculium castrense,
when it was acquired in war, and of peculium quasi castrense
when it was acquired in any other manner.? In the time of Jus-
tinian the law was altered, and the father was no longer entitled
to the property acquired by his unemancipated son; but he was
entitled to the usufruct or profits thereof during his life. The
tule thus modified, has found its way sometimes with, and some-
times without modifications, into the jurisprudence of many prov-
inces-and states of continental Europe.®

-§ 456. Under this aspect of the law with regard to the paternal
difficulty, the question has often been discussed among foreign
jurists, whether the laws respecting the paternal power, are per-
sonal or real; or, in other. words, whether the rights of the father,
allowed and secured by the law of the place of his domicil, extend
to the immovable property of his sons, situate in other countries,
whose jurisprudence confers no such paternal rights.*

_§ 457. Bretonnier holds the doctrine, that all laws respecting
the paternal power are personal, and consequently have effect upon
all real property of their children, wherever it is situate, and espe-
cially as to the profits and usufruct of it; because the latter
partake of the nature of movables. After stating the question,
whether fathers, domiciled in.a country using the Roman law
(dans le pays de droit ecrit), whose sons have real property in

' 1 Domat, Civ. Law, Prelim. B. 2, tit. 2, § 2, p. 24, note; Id. B. 2, tit. 2, § 2,
p- 667 to 669, 670, n. 1, 2, 3; Bouhier, Cout. de Bourg. ch. 16, § 8 to 12, p. 295;
1 Brown, Civ. Law, p. 122, 123; 2 Froland, Mém. 806 to 813; 2 Henrys,
Cuvres, par Bretonnier, Lib. 4, Quest. 127, p. 772, &e., 717 ; < Msclie, Répertoire,
Puissance Paternelle, § 7, p. 142.

7 1 Domat, B. 2, § 2, p. 668.

* 1 Domat, B. 2, § 2, p. 668; Civil Code of France, art. 384 to 387; ‘1 Fro-
land, Mém. 69; 2 Froland, Mém. Ch. 17, p. 789; Bouhier, Cout. de Bourg. ch.
16, p. 294,

* 2 Froland, Mém. 808, 813 to 829.
612 CONFLICT OF LAWS. [cH. x:

another country, having a different customary law, are entitled to.
the profits of the latter, that is to say, whether the paternal power
extends everywhere, he proceeds to say: Cette question ne me
semble pas susceptible d’une grande difficulté ; parceque la puis-
sance paternelle est un droit personnel, et par conséquence il ne
peut étre borné par aucun territoire ; car c’est une maxime cer-
taine méme dans les pays de coutume, que les statuts personnels
sont universels, et produisent leur effet partout. D’ailleurs,, les
fruits sont des choses mobiliaires. Or, constat inter omnes, que
les meubles suivent les personnes, et se réglent suivant la coutume
du domicile.

§ 458. Hertius seems to hold a like doctrine, as to the person-
ality of such laws; and puts a question, whether a daughter, who
is emancipated by marriage, may afterwards make a testament of
property situate elsewhere ; and whether the father would have a
right to the usufruct of her property, situate in a place where she
would be deemed unemancipated. He answers: Questio hec du-
plex est; verum ex eodum principio decidenda. Jus nempe datum
est persone, quod etiam per consequentiam in bona alterius civita-
tis, licet immobilia, operatur2 Yet Hertius, in another place,
holds, that an unemancipated son (jilius-familias), who by the
law of his domicil may make a testament, cannot make a. -testa-
tament-of property situate in a foreign country. Nam statutum
est in rem conceptum, et conditio filii-familie non est in disposi-
tione.® Hinc juata regulam Puduensis filius-familias de bonis
alibi sitis testart non poterit.t The ground of this opinion prob-
ably is, that the general incapacity is admitted to exist by the law
of the domicil, and the special exception is local and real.6 In
this opinion Hertius admits, that he differs from Huberus, whom
he asserts to hold the opinion, that if a Batavian, who is an une
mancipated son, but has authority to make a testament in Holland,
makes a testament in Holland of immovable property situate in
Friesland, that testament will be valid in Friesland, although in

Henrys, Giuvres, par Bretonnier, Tom. 2, p. 720. See 2 Boullenois, Observ.
32, p. 46, 47.

* 1 Hertii, Opera, De Collis, Leg. § 4, n. 17, p. 180, edit. 1737; Id. p. 185,
edit. 1716.

* 1 Hertii, Opera, De Collis. Leg. § 4, u. 22, p. 183, edit. 1737; Id. p. 188,
edit. 1716,

4 Ibid.
* Merlin, Répertoire, Testament, § 1, n. 5, art. 1, p. 810.
§ 457 - 461] REAL PROPERTY. * 618

Friesland the son, however rich and of whatever age, cannot make
any testament of his property.!

~ § 459. Bouhier maintains with earnestness and ability, that the
paternal power is altogether personal, and that it extends to the
jmmovable property of the unemancipated child, situate in a for-
eign country, where the like law, as to the paternal authority, does
not exist.2 And he is supported by the opinion of Le Brun, D’Ar-
gentré, and others.®

§ 460. On the other hand, Froland maintains, that the paternal
power in regard to the immovable property of a child is purely
real. Ce statut est constamment réel; il ne s’étend point sur les
biens situés dans une coutume, qui n’a pas disposition pareille.*
Boullenois, while he admits that the laws, which give the paternal
power, are personal, so far as they respect the state or condition
of the parties, contends, at the same time, that, so far as those
laws gave rights over immovable property, they are real, and are
to'be governed by the law of the place where the property is situ-
ate And he proceeds to vindicate his opinion in a most elaborate
manner.®

§ 461. D’Aguesseau says: “That which characterizes a real
statute, and distinguishes it essentially from a personal statute, is
not, that it selates to certain personal qualities, or to certain per-
sonal circumstances, or to certain personal events; otherwise we
should be compelled to say, that all laws, wltich concern the pater-
nal power, the right of guardianship, the right of widowhood (le
droit de viduité), and the prohibition of donations between mar-
ried persons, are all personal laws. And accordingly it is beyond
doubt, that in our jurisprudence all these laws are real, which are
to be governed, not according to the law of the domicil, but ac-
cording to that of the place, where the property is situate.” 7
i Hertii, Opera, De Collis. Leg. § 4, n. 22, p. 188, edit. 1737; Id. p. 188, edit.
1716.

® Bouhier, Cout. de Bourg. ch. 24, § 87 to 87, p. 468 to 475.

* Bouhier, Cout. de Bourg. ch. 24, § 41, p. 468; Le Brun, De la Communauté,
Lib: 1, ch. 5, n. 8; D’Argent. De Briton. Leg. Des Donations, art. 218, Gloss. 6,
n. 7, Tom. 1, p. 648,

* 1 Froland, Mém. 69; Id. 39, 60,156; 2 Froland, Mém. ch. 17, p. 789 to 819.

* 1 Boullenois, Observ. 4, p. 68; 2 Boullenois, Observ. 32, p. 80 to 33; Id.
Pp 39 to 47; Boullenois, Quest. Mixtes, Quest. 20, p. 406.

* Thid.

* D’Aguesseau, CEuvres, Tom. 4, p. 660, 4to edit.

CONFL. 52
614 CONFLICT OF LAWS. / [ox

§ 462. Merlin has examined the same subject in a formal dis-
cussion ; and he endeavors to hold a middle course between the
opinions of Bouhier and Boullenois, agreeing with the latter, that
the usufruct arising under the paternal power is a real right, and
governed by the dex rei site, and at the same time, holding with
Bouhier, that the father cannot possess the right, unless by the
law of the place of his domicil, the paternal power is recognized.
He then lays down three principles, which he supposes will remove
all the difficulties upon this thorny subject. (1.) The law, which
subjects the son to the power of his father, has no need of the
aid (ministére) of man for its execution ; and it is therefore per-
sonal from the very nature of its object. (2.) The law, which
declares an unemancipated son (un fils de famille) incapable of
alienating his immovable property without the authority of his
father, is personal, although its object is real ; because it deter-
mines the state of the person in regard to what he can, and cannot
do. (8.) The law, which gives to a father the usufruct of the
property of his son, ought to be real; because its object is real,
and it makes no regulation concerning the capacity or incapacity
of the unemancipated son to do anything.

* Merlin, Répertoire, Puissance Paternelle, § 7, p. 142, 144, edit. 1827. — The
reasoning of Merlin on this subject is marked with uncommon clearness and force
of statement ; and I have therefore thought, that an extract from it might not be
unacceptable to the reader. “Or, que trouvons nous dans la puissance pater-
nelle? ‘Trois choses. Premiérement, elle détermine l’état des enfans; et A cet
égard, elle forme un statut personnel, qui suit les enfans partout. Ainsi, une
mere, domiciliée en Hainault, conserve sous sa puissance les enfans, qu’elle a eu
dans cette province, lors méme que le hasard ou certaines circonstances les ont
fait passer dans une autre coutume, qui n’accorde pas les mémes droits aux fem-
mes qu’aux hommes sur la personne de. leurs enfans. En second lieu, la puis-
sance paternelle imprime dans les enfans, qui y sont assujetis, une incapacité de
faire certains actes: comme cette incapacité est la suite de leur état, elle les suit
également partout et influe sur tous leurs biens, quelle qu’en soit la situation.
Ainsi, un fils de famille, né dans une coutume, ou il ne peut pas contracter sans
Vautorité de son pére, ne peut vendre de lui-méme les biens, qu'il posséde dans
une autre coutume, qui n’admet pas la puissance paternelle; et réciproquement
un fils de famille domicilié dans une coutume, qui_n’admet pas la puissance pater-
nelle, peut, sans l’autorisation de son Pere, aliéner les biens qu’il posséde dans les
pays de droit écrit. Par la méme raison, un fils né a Senlis, ou la coutume pro-
scrit formellement tout puissance paternelle, quoique nourri et entretenu par son
pere, peut acquérir pour lui-méme en Hainault et dans les pays de droit écrit.
Et neCrpregueMtees, yn fils de famille, né en Hainault, ou dans un pays de droit
écrit, ne peut s’approprier les biens, qu’il acquiérit dans la coutume de Senlis,
lorsque ses acquisitions ne réunissent pas toutes les circonstances réquises pour
§462.] REAL PROPERTY. 615

In another place he holds that a law, which prohibits,an une-
mancipated son to make a testament, is personal; but he at the
same time asserts, that this will not prevent him from making a
testament of movable property in other countries, where if is per-
mitted ; because this case is a mere exception from his general in-
capacity, and also falls within the rule, that, in a conflict of real
and personal laws, the latter must yield.

qu’elles tombent dans le pécule castrense, quasi-castrense, ou adventice. Troisi-
émement, la puissance paternelle donne au pére, dans les pays de droit écrit et
dans quelques coutumes, la jouissance des biens de ses enfans. Cette jouissance
est, 4 la vérité, un_accessoire de la puissance paternelle; mais elle ne forme dans
les enfans ni capacité ni incapacité: le statut, qui la défeére, n’a pas besoin, pour
son exécution, du ministére de l'homme; il agit seul; "homme n’a rien & faire.
On ne peut donce pas appliquer ici les raisons, qui ont déterminé Pespéce de con-
cordat tacite, dont nous avons parlé. Quel inconvénience y a-t-il a restreindre
cette Jouissance au territoire des lois ou coutumes, qui Vaccordent ? Quoi! par-
cequ’un pére jouira des biens, que ses enfans ont dans une province, et qu’il ne
jouira pas de ceux, qu’ils ont dans une autre, l’ordre public serait troublé, le com-
merce serait dérangé. Non. Il n’y a pas en cela plus de trouble ni plus de con-
fusion, qu & succéder & un défunt dans une coutume, et de ne pas lui succéder
dans une autre. II est donc constant que le systeme du président Bouhier ne
peut pas se soutenir, et que le statut, qui donne & un pere l’usufruit des biens des
enfans, qu’il a sous sa puissance, n’est pas personnel. Mais est-il purement réel,
comme le prétend Boullenois, ou bien est-il personnel réel, c’est-a-dire, faut-il,
pour qu’il produise son effet, que le pere soit domicilié dans une coutume, qui ad-
met la puissance paternelle ? C'est la difficulté, qui nous reste 4 résoudre. Le
principal peut subsister sans les accessoires: mais les accessoires ne peuvent ja-
mais subsister sans le principal. Ce principe est aussi clair, qu’indubitable, et il
nous conduit droit 4 la décision de notre question. Ainsi, la puissance paternelle
peut avoir lieu sans l’usufruit dont nous parlons ici. La coutume de Douai nous
en fournit un example, puisqu’elle admet l'une, chap. 7, art. 2, et qu'elle exclut
Yautre par son silence, comme .’a décidé le parlement de Flandre, par un arrét
du 27 Janvier 1739, rendu au rapport de M. de Casteele de la Briarde, en faveur
du Marquis de Sin, contre les Sieurs et Demoiselles d’Aoust. Mais Vusufruit ne
peut avoir lieu sans la puissance paternelle, dont il n’est Vaccessoire. Un pére
ne peut donc en jouir, s'il n’a ses enfans sous sa puissance, et par conséquence s'il
n’est domicilié dans une coutume, qui admet la puissance paternelle. Un pére,
qui émanciperait son fils au moment méme de sa naissance, n’aurait certainement
aucun droit & Vusufruit des biens, que cet enfant acquerrait ensuite, soit dans la
coutume du domicile qu’il avait alors, soit dans toute autre province. Or, ce que
ce pere est supposé faire, la loi le fait elle-méme dans les, coutumes qui n’admet-
tent pas la puissance paternelle ; elle émancipe cet enfant des qu'il voit'le jour,
et conséquemment elle soustrait les biens, qu’il aura dans la suite, 4 V'usufruit que
son pére en aurait eu sans cette émancipation.” Merlin, Répertoire, Puissance
Paternelle, § 7, p. 145, 146, edit. 1827.
’ Merlin, Répertoire, Testament, § 1, n. 5, art. 1, p. 310.
616 CONFLICT OF LAWS. [ou. x.

§ 463, Without going further into an examint&tion of the opin-
ions of foreign jurists upon this subject, it is sufficiently obvious,
what difficulties they are compelled to encounter at almost every
step, in order to carry into effect their favorite system of the division
of laws into real and personal. The common law has avoided all
these difficulties by a simple and uniform test. It declares, that
the law of the situs shall exclusively govern in regard to all rights,
interests, and titles, in and to immovable property. Of-course it
cuts down all attempts to introduce all foreign laws, whether they
respect persons or things, or give or withhold the capacity to ac-
quire or to dispose of immovable property.

§ 463 a. This subject of the nature and extent of the paternal
power and rights, came recently under consideration in England,
in a case somewhat complicated in its circumstances, and touching
personal estate only. It may be briefly stated as follows. A mar-
riage took place in Holland between the parties. At the time of
the marriage, a marriage contract was there executed in the Dutch
form, making certain provisions, and among other things, provis-
ion for the distribution of the wife’s property in the event of her
husband surviving her. They afterwards removed to and became
domiciled in England, and had children born there. The wife
died; and by her death the children became entitled, under a
compromise in Holland, to one fourth of certain property of the
wife in the public funds. By the French Code, which is the law
of Holland also, when children are under the age of eighteen
years, their surviving parent has the enjoyment of their property,
until they attain that age; and the father insisted, that as the
children were under that age, and the marriage contract and com-
promise, under which they took one fourth, were both made in
Holland, the children must take it, subject to his paternal rights
by the law of Holland. The Vice-Chancellor held, that the father
was not so entitled. On that occasion the learned judge said:
“* By the Code Napoleon, which is the law of Holland, as well as
of France, when children are under the age of eighteen, their sur-
viving parent has the enjoyment of their property until they attain
that age. But that is nothing more than a mere local right, given
to the surviving parent, by the law of a particular country, so long
as the children remain subject to that law: and, as soon as the

' See Brodie v. Barry, 2 Ves. & Beames, R, 127; Birthwhistle v. Vardill, 7
Clark & Finn, 911. - °
§ 463, 468 a.] WILLS AND TESTAMENTS. 617

children are in a country where that law is not in force, their
rights must be determined by the law of the country where they
happen to be. These children were never subject to the law of
Holland: they were both born in this country, and have resided
there ever since. The consequence is, that this judicial decree
has adjudged certain property to belong to two British-born sub-
jects domiciled in this country ; and so long as they are domiciled
in this country, their personal property must be administered ac-
cording to the law of this country. The claim of their father does
not arise by virtue of the contract, but, solely, by the local law of
the country where he was residing at the time of his marriage ;
and, therefore, this property must be considered just as if it had
been an English legacy given to the children: and all that the
father is entitled to, is the usual reference to the master to inquire,
what allowance ought to be made to him for the past and future
maintenance of his children.” 1

CHAPTER XI.

WILLS AND TESTAMENTS.

[*§ 464. The rights of testamentary disposition and succession.

§ 465. Wills of personalty must be executed according to law of domicil.

§ 466. Sir John Nicholl doubted the application of the rule to a native Englishman
domiciled abroad.

§ 467. But the Court of Delegates held that it did.

§ 468. The same rule prevails in America.

§ 469. So also in Scotland, although formerly otherwise.

§ 470. Foreign jurists generally agree in this rule.

§ 471, Vattel speaks more doubtfully of its-application to all cases.

§472. The rule does not override special prohibitions.

§.473. Will valid, when made, becomes invalid by assuming a domicil where law is
different.

4473 a. Will in execution of power valid, if made by same law creating power.

§ 473 b. Will may fail of execution on account of special obstacle.

§ 474. As to immovables the will must conform to the law rei site.

§ 475-477. The opinions of the foreign jurists coincide in this rule with limitations
before stated.

§ 478. Scottish law conforms to same rule.

§ 479. So also do the opinions of Vattel and others.

§479 a. The construction of a will is governed by the law of domicil.

1 Gambier v. Gambier, 7 Sim. R. 268, 270.
52*
618 ; CONFLICT OF LAWS. [cH. XL

§.479 b. This extends to trusts and currency. -

§ 479 c. So also as to the nature of the estate given, &.

§.479 d. Acts of mortmain extend to foreign charities.
-§ 479 e. The import of terms is determined by the law of domicil.

§ 479 f. The actual domicil at death fixes the construction of wills.

§ 479 9. Will this rule apply in case of change of domicil after the execution of the

will ? ‘

§ 479 h. The import of the terms “ heir,” “next of kin,” fixed by law of domicil.
§479 1-479 1. The foreign jurists refer this, sometimes, to attending circumstances,
§ 479 m. The import of ambiguous terms naturally refers to place of domicil.

§ 479 n. Courts of equity do not enforce foreign wills until proved here.

§ 479 0. The same rule obtains in the American courts.]

§ 464. Havine taken these general views of the operation of
foreign law in regard to movable property, and immovable prop-
erty, and ascertained, that the general principle, at least in the
common law, adopted in relation to the former is, that it is gow
erned by the law of the domicil of the owner, and in relation to
the latter, that it is governed by the law of the place where it is
locally situate ; we now come to make a more immediate applica-
tion of these principles to two of the most important classes of.
cases arising, constantly and uniformly, in all civilized human so-
cieties. One is, the right of a person, by an act or instrument, to
dispose of his property after his death; the other is the right of
succession to the same property, in case no suchspostmortuary dis-
position is made of it by the owner. The former involves the
right to make last wills and testaments; and the latter the title of
descent and the distribution of property ab intestato. We shall
accordingly in this and the succeeding chapter exclusively discuss
the subject of foreign law, in relation to testaments, and to suc-
cessions, and distributions of movable and immovable property.

§ 465. And first, in relation to testaments of movable property.!
So far as respects the capacity or incapacity of a testator, to make
a will of personal or movable property, we have already had occa-
sion to consider the subject in’. another place. The result of that
examination was, that the law of the actual domicil of the party,
at the time of the making of his will or testament, was to govern
as to that capacity or incapacity.2, We may therefore proceed
to the consideration of the forms and solemnities, by which wills

* See 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12, p. 579, 580, 5813,
post, § 466, 467.

? Ante, § 52 to § 62, § 64 to § 78, § 101 to § 106, § 868, § 430 to $ 484, See
also 2 Boullenois, Appx. p. 88; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch.
12, p. 577, 578, 579; Larreuge v. Kittridge, 21 Conn. 582,
$464, 465.] WILLS AND TESTAMENTS. ' 619

of personal estates are to be governed. And here it may be stated
now to be a well-settled principle in the English law, that a will of
personal or movable property, regularly made according to the
forms and solemnities required by the law of the testator’s domi-
cil, is sufficient to pass his personal or movable property in every
other country, in which it is situated. But this doctrine, although
now very firmly established, was for a great length of time much
agitated and discussed in Westminster Hall. On one occasion
Lord Loughborough laid down the doctrine, that with respect to
the disposition of movable property, and with respect to the trans-
mission of it, either by succession, or by the act of the party, it
follows the law of the person.2 The owner in any country may
dispose of his personal property. ‘On another occasion Lord Thur-
low asserted the same doctrine as to succession to personal prop-
erty, and by implication as to wills.2 Lord Ellenborough put it as
clear in his day. He observed: “It is every day’s experience to
recognize the law of foreign. countries, as binding on personal
property ; as in the sale of ships, condemned as prize by the sen-
tences of foreign courts, the succession to personal property by
will or intestacy of the subjects of foreign countries.”* But an-
tecedently to this period many learned doubts and discussions had
existed on the subject. In the Duchess of Kingston’s case, a will
of personal property executed in France, but not in conformity to
the laws of that country, was admitted to probate in the ecclesias-
tical courts of England in 1791, it being duly executed according
to the English forms, although she was domiciled in France at the
time of making the will, and also at the time of her death.®
1 See Brodie v. Barry, 2 Ves. & Beames, R. 127, 131; Bempde v. Johnstone,
3 Ves. R. 198, 200; Price v. Dewhurst, 8 Sim, R. 279, 299, 300; Moore v. Budd,
4 Hagg. Eccles, R. 346, 352; Robertson on Successions, p. 99, 191, 214, 215, 285, ©
- 290, 297;. The case of the Goods of Marshall Bennett, before Sir H. Jenner Fust,
July, 1840, London Monthly Law Magazine, Sept. 1840, p. 264.
' * Sill v. Worswick, 1 H. Black, 690. See also Ommaney v. Bingham, cited 5
“Ves, 757; 3 Hagg. Eccles. R. 414, note; Stanley v. Barnes, 3 Hagg. Eccles. R.
373; Hogg v. Lashley, 3 Hagg. Eccles. R. 415, note.
* Bruce v. Bruce, 2 Bos. & Pull. 229, note.
* Potter v- Brown, 5 East, R. 180; Ferraris v. Marquis of Hertford, The Eng-
lish Jurist, April 1, 1843, p. 262; 8 Curteis, R. 468.
5 See Bempde v. Johnstone, 3 Ves. 198, 200; Somerville v. Somerville, 5 Ves.
750; Balfour v. Scott, 6 Brown, Parl. Cases, 550, Tomlin’s edit.; 2 Addams, Ec-
‘eles, R. 15, note.
* See Curling v. Thornton’, 2 Addams, Eccles. R. 21. See 4 Burge, Comm. on
Col. and For. Law, Pt. 2, ch. 12, p. 588, 589, 590.
620 CONFLICT OF LAWS. [cH. x1.

§ 466. Even at so late a period as 1823, Sir John Nicholl doubt-
ed, whether a will of personal property made abroad by an Eng-
lish subject domiciled abroad, ought to be held valid, unless it was
executed in conformity to the forms prescribed by the English law.
The ground of his doubt was, whether an English subject was en-
titled to throw off his country (exuere patriam) so far as to select
a foreign domicil in complete derogation of his native domicil, and
thus to render his property in England distributable by succession
or testament according to the foreign law. He took a distinction
between testacy and intestacy, (assuming, for the sake of argu-
ment, that in the latter case the foreign law might prevail,) think-
ing, that cases of testacy might be governed by very different
considerations from those of intestacy. Even if a will, executed
according to the law of the place of the testator’s domicil, would
in such a case be valid, he contended, that it by no means followed
universally, and upon principle, that a will, to be valid, must
strictly conform to that law, which would have regulated the suc-
cession to the testator’s property, if he had died intestate. And,
therefore, he held, that a will of personal property, made by a
British subject in France, according to the forms of the English
law, was good as to such property situate in England. He admit-
ted, that as to British subjects domiciled in any part of the United
Kingdom, the law of their domicil must govern in regard to suc-
cessions and wills; and so, the like law must govern in regard to
successions and wills of foreigners resident abroad. The restric-
tion, which he sought to establish was, that a British subject could
not, by a foreign domicil, defeat the operation of the law of his
own country, as to personal property situate in the latter.2

§ 467. To this opinion the same learned judge firmly adhered
in a still later case. But upon an appeal, the decision was over-
turned by the High Court of Delegates, and the doctrine fully
established, that the law of the actual foreign domicil of a British
subject, is exclusively to govern in relation to his testament of per-
sonal property ; as it would in the case of a mere foreigner.? This
case is the stronger; because it was the case of a will, and several

* Curling v. Thornton, 2 Addams, Eccles. R. p. 6, 10 to 25; 8 Sim. R. p. 310,
811.

? Stanley v. Barnes, 8 Hagg. Eccles. R. p. 873 to 465; Moore v. Darell, 4
Hagg. Eccles, R. 346, 852; Price v. Dewhurst, 4 Mylne & Craig, 76, 80, 82;
Ferraris v. Marquis of Hertford, The English Jurist, April 1, 1843, p. 262; 3
Curteis, R. 468.
§.466 -468.] WILLS AND TESTAMENTS. 621

codicils, made according to the law of Portugal, and also of seyv-
eral codicils made, not according to the law of Portugal where the
testator was domiciled. The will and codicils executed according
to the Portuguese law were held valid; the others were held in-
valid. And this doctrine necessarily goes to the extent of estab-
lishing, not only whether there be an instrument called a will;
but whether it constitutes a will in the sense of the Jex loci. The
doctrine also applies, whether the personal property be locally sit-
uate in the domicil of the testator, or in a foreign country.!

§ 468. The same doctrine is now as firmly established in Amer-
ica, The earliest case, in which it was directly in judgment, was
argued in the Supreme Court of Pennsylvania in 1808 ;? and this
case may have been truly said to have led the way to the positive ad-
judication of this important and difficult doctrine. There, a foreign
testator, domiciled abroad, had made a will of his personal estate,-
invalid according to the law of his domicil, but valid according to
the law of Pennsylvania; and the question was, whether it was
competent and valid to pass personal property situate in Pennsyl-
vania. ‘The court decided, that it was not; and asserted the gen-
eral doctrine, that a will of personal estate must, in order to pass
the property, be executed according to the law of the place of the
testator’s domicil at the time of his death. If void by that law, it
isa nullity everywhere, although it is executed with the formalities
required by the law of the place, where the personal property is
locally situate. The court asserted, that, in this respect there was
no difference between cases of succession by testament, and by in-
testacy.2 The same doctrine has been since repeatedly recognized
by other American courts, and may now be deemed as of universal
authority here. [Upon the same principle a will of personal
property executed by a testator in a foreign state, but who has not
lost his domicil in his native state, is valid if executed according

1 Ibid. Countess of Ferraris v. Marquis of Hertford, The English J urist, April
J, 1843, p. 262; 3 Curteis, R. 468.

* Desesbats v. Berquiers, 1 Binney, R. 336,

* Thid ; Moore v. Budd, 4 Hagg. Eccles, R. 346, 352; Grattan v. Appleton, 3
Story, R.755.

* See Holmes v. Remsen, 4 Johns. Ch. R. 460, 469; Harvey v. Richards, 1
Mason, R. 381, and cases cited, p. 408, note ; Dixon’s Ex’ors v. Ramsay’s Ex’ors,
3 Cranch, R. 819; De Sobry v. De Laistre, 2 Harr. & Johns, R. 193, 224; Arm-
strong v, Lear, 12 Wheat. R. 169; Rue High, Appx. 2 Doug, 522; Harrison v.
Nixon, 9 Peters, R. 483, 504, 505. | .
622 CONFLICT OF LAWS. [cH. x1.

to the laws of his domicil, although not in accordance with the law
of the place of its execution."]

§ 469. In Scotland the doctrine was formerly involved in many
doubts. By the law of Scotland, illegitimate persons are not
deemed capable of making a will; and hence a will of movables
in Scotland, made by such a person, domiciled in England, was
formerly held in Scotland to be invalid.2 In like manner a nun-
cupative will, being in Scotland invalid, was formerly held invalid
to pass movables in Scotland, although the will was made in Eng-
land (where such a will is valid) by a person domiciled there.®
But the general doctrine is now the same in Scotland as in Eng-
land. The law of the domicil universally prevails as to succes-
sions and wills of movables in other countries.*

§ 470. Foreign jurists are generally agreed, as to the doctrine
in regard to movables, upon the ground, maintained by all of
them, that mobilia sequuntur personam.6 John Voet lays down
the rule in the following terms. In successionibus, testandi facul-
tate, contractibus, aliisque, mobilia, ubicunque sita, regi debere
domicilii jure, non vero legibus loci illius, in quo naturaliter sunt
constituta.6 He adds: Ibigue D. D. (Doctores) mobilium tamen
ratione in dispositionibus testamentartis, dum queritur, an ille in
universum permittende sint, nec ng, uti et ab intestato successio-
nibus, donationibus inter conjuges vetitis permissisve, et aliis simili-
bus, de juris rigore communi quasi gentium omnium consensu
laxatum est; sic ut ex comitate profecta regula praxi universali
invaluerit, mobilia in dubio regi lege ‘loci, in quo eorum dominus
domicilium fovet, ubicunque illa vere exstiterint.’

* Rue High, App. 2 Doug. 515.

* Ersk. Inst. B. 3, tit. 2, § 41, p. 515; 3 Kames, Equity, B. 3, ch. 8; § 3.

® 2 Kames, Equity, B. 8, ch. 8, § 8, p. 845.

* See Bempde v. Johnstone, 3 Ves, 198, 201; Somerville v. Somerville, 5 Ves.
R. 757; Brodie v. Barry, 2 Ves. & Beames, 127, 181, and the cases cited, ante,
§ 495; Ersk. Inst. B. 3, tit. 2, § 40, 41; 2 Kames, Equity, ch. 8, § 6.

* See 1 Boullenois, Obser. 28, p. 696 to 721; Cochin, (Euvres, Tom. 5, p. 85,
Ato. edit.; ante, § 362, § 362 a, § 399; 4 Burge, Comm. on Col. and For. Law,
Pt. 2, ch. 12, p. 579, 580; Foelix, Conflit des Lois, Revue Etrang. et Frang. Tom.
7, 1840, § 40 to § 50, p. 346 to 360; post, § 481.

° J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, § 11, p. 44,

* J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, § 12, p. 45. See, also, J. Voet, ad Pand.
Lib. 28, tit. 1, n. 13, 15, 44; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12,
_p. 579, 580, 590; P. Voet, de Statut. § 9, ch. 1, n. 8, p. 255, edit. 1215; Id. p. 309,
edit. 1661; Burgundas, Tract. 1, n. 36; Id. Tract. 6, n. 1, 2,33; Foelix, Conflit
§ 468-471.] WILLS AND TESTAMENTS. 623

§ 471. Vattel has spoken in terms, admitting of more question,
as to the extent of their meaning. After observing, that a for-
eigner in a foreign country has by natural right the liberty of
making a will, he remarks: “As to the forms or solemnities ap-
pointed to sails the validity of a will, it appears, that the testator
ought to observe those which are established in the country where
he makes it, unless it be otherwise ordained by the laws of the
state of which he isa member; in which case he will be obliged
to observe the forms which they prescribe, if he would validly dis-
pose of the property which he possesses in his own country. The
foreign testator cannot dispose of his property, movable or im-
movable, which he possesses in his own country, otherwise than in
a manner conformable to the laws of that country. But as to
movable property, specie, and other effects, which he possesses
elsewhere, which he has with him, or which follow his person, we
ought to distinguish between the local laws, whose effect cannot
extend beyond the territory, and those laws, which peculiarly
affect the character of citizens. The foreigner, remaining a citi-
zen of his own country, is still bound by, those last-mentioned
laws, wherever he happens to be, and is obliged to conform to
them in the disposal of his personal property, and all his movables
whatsoever. The laws of this kind, made in the country where
he resides at the time, but of which he is not a citizen, are not ob-
ligatory with respect to him. Thus, a man who makes his will,
and dies. in a foreign country, cannot deprive his widow of the
part of his movable effects, assigned to that widow by the laws of
his own country. A Genevan, obliged by the laws of his country
to leave a portion of his personal property to his brothers or cous-
ins, if they are his next heirs, cannot deprive them of it by mak-
ing his will in a foreign country, while he continues a citizen of
Geneva. But a foreigner, dying at Geneva, is not obliged in this
respect to conform to the laws of the republic: The case is quite
otherwise in respect to local laws. They regulate what may be
done in the territory, and do not extend beyond it. The testator
is no longer subject to them when he is out of the territory ; and .
they do not affect that part of his property which is also out of it.

-des Lois, Revue Etrang. et Franc. Tom. 7, 1840, § 24 to § 27, p. 204 to p. 216;
Id. § 82, 33, p. 221 to p. 227; ante, § 381, note, § 444 a; 4 Burge, Comm. on Col.’
and For. Law, Pt. 2, ch. 5, p. 217, 218; Id. ch. 12, p. 576 to 580; post, § 479;
Sand. Decis, Frisic. Lib. 4, tit. 1, Defin. 14, p. 142, 143.
624 CONFLICT OF LAWS. [cH. Xt,

The foreigner is obliged to observe those laws in the country
where he makes his will, with respect to the goods he possesses
there.”’}

§ 472. Vattel is in this passage principally considering the effect
of the law of a foreign country upon a foreigner, who is resident
there. And there can be no doubt that every country may by its
laws prescribe whatever rules it may please, as to the disposition
of the movable property of its citizens, either inter vivos or testa-
mentary. But it is equally.clear, that such rules are of no obli-
gation as to movable property in any other country, and can be in
force there only by the comity of nations. So that a will of such
movable property, made in a foreign country where he is domi-
ciled, and according to its laws, will be held valid, whatever may
be the validity of such a will in the country to which the testator
owes his allegiance by birth. But the discussion, in-which we are
engaged, does not respect the effect of any local prohibitory laws
over movable property within the particular territory, but the gen-
eral principles which regulate the disposition of it when no such
prohibitory laws exist. And here, by the general consent of for-
eign jurists, the law of the domicil of the testator governs as to
transfers inter vivos and testamentary.?

[§ 472 a. A pertinent illustration of the exception alluded to
in the last section as to the effect of a will abroad, when its provis-
ions conflict with the prohibitory laws of another state, recently
occurred in America. In that case a person domiciled in Virginia,
by his will made and executed in that state, directed that certain
of his slaves, then being in Mississippi, should be emancipated,
and sent to Africa. By the law of Virginia such a disposition was
valid; by the law of Mississippi it was not. The courts of the
latter state held the will inoperative as to the slaves in that state,

1 Vattel, B. 2, ch. 8,§ 111. See post, § 479.

2 See ante, § 465; Hertii, Opera, De Collis. Leg. § 4, n. 6, p, 112, edit. 1737;
Id. p. 174, edit. 1710; Pothier, Cout. d’Orléans, ch. 1, § 2, n. 24. J. Veet, ail
Pand. Tom. 2, Lib. 38, tit. 17, § 34; ante, § 470.— Very difficult questions, how-
ever, may still arise, and to what is to be deemed the real domicil of a party, who
is a native of one country, and who has yet been long resident in another. The
quo animo, with which such residence has been originally taken, or subsequently
upheld, often becomes a very important clement in the decision. See ante, § 44,
§ 49; Attor. Gen. v. Dutin, 6 Mees. & Welsb. 511; De Bonneval v. De Bonneval,
1 Curteis, Eccl. R. 856 ; post, § 481, note; Munro v. Munro, 1 Rob. R. (House
of Lords) p. 493.
§471-473.] WILLS AND TESTAMENTS. 625

because it contravened the public policy of the state, as declared
by an express statute, and was not embraced in the gener al rule of
comity regulating the law of the domicil.1]

, § 478. But it may be asked, What will be the effect of a change
of domicil after a will or testament is made of personal or movable.
property, if it is valid by the law of the place where the party was
domiciled when it was made, and not valid by the law of his dom-
icil at the time of his death? The terms, in which the general
rule is laid down, would seem sufficiently to establish the princi-
ple, that in such a case the Will or testament is void ; for it is the
law of his actual domicil at the time of his death, and not the law
of his domicil at the time of making his will or testament of per-
sonal property, which is to govern.2 This doctrine is very fully
recognized and laid down by John Voet. Tamen, si quis habitans
in loco, in quo minor annorum numerus in testatore requiritur, ve-
luti in Hollandid, ibidem anno decimo quinto testamentum fecerit,
deinde vera domicilium alio transtulerit, ubi necdum per etatem
testari licet, veluti Ultrajectum, ubi plena pubertas in masculo tes-—
tatore exigitur, testamentum ejus quantum ad mobilia per talem mi-
grationem irritum efficitur. Idemque eveniet, si Hollandus uxorem
haredem instituerit, (quod ibi licitum,) deinde vero ad aliam mi-
gret regionem, ibique domicilium figat, ubi gratificatio inter con-
juges ne supremo quidem elogio permissa est ; nam et hoc in casu
mobilium intuitu in irritum deducitur voluntas ejus; cum mobilia
in successione testatd vel intestatéd regantur ex lege domicilit de-
functi, adeoque res devenerit in hisce ad eum casum, @ quo propter
qualitatem testatoris, vel honorati, initium habere nequit. Neque
enim sufficit in honorato, quod tempore facti testamenti capazx sit,
sed et tempore mortis testatoris eum capacem esse, necesse est3
Again he adds: Quod si is, cujus testamentum migratione ex Hol-
landid ad regionem Ultrajectinam irritum factum fuerat, ibidem
etatem expleverit in testatore requisitam, de novo quidem repetere
solenniter potest priorem voluntatem, atque ita de novo testari; sed
si id non fecerit, testamentum, antea anno etatis decimo quinto in

* Mahorner v. Hooe, 9 Smedes & Marshall, 247, where this subject is examined
at great length,

2 See Desesbats v. Berquiers, 1 Binn. R. 336; Potinger v. Wightman, 3 Meriv.
R. 68; Henry on Foreign Law, Appx. p. 196 ; 2 Boullenois, ch. 1, p. 2, &c.; Id.
Pp. 7, &e.; Id. p. 54; Id. p. 57; ante, § 55 to 74; 4 Burge, Comm. on Col. and
For. Law, Pt. 2, ch. 12, p. 580, 581.

* J. Voet, ad Pand. Lib. 38, tit. 8, Tom. 2, § 12, p. 292.
CONFL. 53
626 CONFLICT OF LAWS. [cH. x1.

Hollandié conditum, ipso jure quantum ad mobilia vel immobilia
Ultrajectina nequaquam convalescit; non magis, quam jure civilt
aut pretorio testamentum ab impubere conditum, si is pubes factus
in fata concedat. If, however, he should afterwards return and
resume his domicil, where his first will or testament was made,
its original validity will revive also. Ditversum esset, si testator
talis iterum postea mutaté mente in Hollandid rerum ac fortuna
rum suarum sedem reponat; tunc enim voluntas illa, que migra-
tione in irritum deducta fuerat, quasi recuperatd pristind ad tes-
tandum habilitate redintegratur ex equitate ; eo modo, quo susti-
netur jure pretorio testamentum, a patrefamilias conditum, quod
per arrogationem irritum factum fuerat, st is iterum postea sut
juris factus in eddem perstiterit voluntate?

§ 473 a. Another question may arise under this head. Sup-
pose a power of appointment to be given to a party enabling him
to dispose by will of personal estate situate in one country, and he
has his domicil in another country and he executes the power and
complies with all the requisites of the power, making a will accord-
ing to the law of the country, where the power was created, and
the personal estate is situated ; but the will is not made according
to the requisites prescribed by the law of the place of his domicil ;
the question would then arise, whether the power of appointment
was well executed, and the will entitled to probate as a will in the
country where the personal property is situate. It has been held
that it is. f

[§ 473 6. Another question on this subject has recently arisen.
A testator, having his domicil in the State of Mississippi, died pos-
sessed of slaves there, and directed in his will that if either of his
two sons, to whom he bequeathed his property, should die “ with-
out a lawful heir,” his part, real and personal, should go to the
survivor. Each son received his portion, and one removed with
his slaves into Louisiana, and died without a “lawful heir.” It
was determined that although by the law of the testator’s domicil
the survivor might have had a title to such slaves, yet as by the
law of Louisiana, testamentary substitutions were prohibited, the.
survivor’s claim could not be enforced in the latter state.*]

1 J. Voet, ad Pand. Lib. 38, tit. 3, Tom. 2, § 13, p. 293.

2 J. Voet, ad Pand. Lib. 28, tit. 8, Tom. 2, § 13, p. 298; 4 Burge, Comm. on
Col. and For. Law, Pt. 2, ch. 12, p. 580, 591; Robinson on Succession, p. 95.

® Tatnall v. Hankey, 2 Moore, Priv. Con. Rep. 342.

* Harper v. Stanbrough, 2 Louis. Ann. R. 377; Harper v. Lee, Id. 382.
§ 473 - 474.] WILLS AND TESTAMENTS. 627

§ 474, We next pass to the consideration of wills made of im-
movable property." And here the doctrine is clearly established at
the common law, that the law of the place where the property is
locally situate, is to govern as to the capacity or incapacity of the
testator, to the extent of his power to dispose of the property, and
the forms and solemnities to give the will or testament its due at-
testation and effect.?

1 See 4 Burge on Col. and For. Law, Pt. 2, ch. 12, p. 586, 596; Foelix, Con-
fit des Lois, Revue Etrang. et Frang. Tom. 7, 1840, § 40 to § 51, p. 346 to
360.

* Coppin v. Coppin, 2 P. Will. 291, 293; Curtis v. Hutton, 14 Ves. 537, 5415
Birthwhistle v. Vardill, 1 Fonb. Eq. p. 444, 445, note; U. States v. Crosby, 7
Cranch, 115 ; Holmes v. Remsen, 4 Johns. Ch. R. 460; 8. C. 20 Johns. R. 229;
McCormick v. Sullivant, 10 Wheaton, R. 192, 202; Willis v. Cowper, 2 Hamm.
R. 124; Henry on Foreign Law, p. 13, 15; ante, § 428, 434; 4 Burge, Comm.
on Col. and For. Law, Pt. 2, ch. 12, p. 576 to 580; Id. Pt. 2, ch. 4, § 5, p. 169, 170;
Id. Pt. 2, ch. 5, p. 217. Mr. Burge, speaking on this point, (Id. p. 217, 218,)
says: “The power of making the alienation by testament is no less qualitas rebus
impressa, than that of making the alienation by contract. When, therefore, the
question arises, whether the immovable property may be disposed of by testament,
recourse must be had to the lex loci rei site. That law must also decide, whether
the full and unlimited power of disposition is enjoyed, or whether it is given under
restriction. The validity of the testamentary disposition depends in the latter
case on its conformity to that restriction, whether the restriction consists in limit-
ing the extent or description of property, over which the power of disposition
may be exercised, or the persons in whose favor the disposition is made, or in re-
quiring that the testator should have survived a certain number of days after the
execution of the act by which the disposition was made. The total or partial de-
fect of the will on the ground, that it did not institute heirs, or that it omitted to
name the heirs, the disherison of the heirs, the grounds on which the disherison
may be justified, are essentially connected with the power of disposing of im-
movable property by testament, and are therefore dependent on the law of its
situs.” Again, Mr. Burge says: “ By the jurisprudence of England and the
United States, a will devising lands in England or the States, if the so-
lemnities prescribed by the Statute of Frauds have not been observed, would be
ineffectual to pass those lands. This doctrine is fully warranted by the qualifica-
tion which has been given by jurists to the rule, lex loci regit actum. The Stat-
ute of Frauds, as regards real property situated in England and in the States of
America, ‘est lex, que express? testatores jubet jus loci sequi, in quo bona sita
sunt’ It may be said, that the jurisprudence which allows a testament executed
according to the solemnities prescribed by the lex loci actus to affect real prop-
erty situate in the country where that jurisprudence prevails, does not depart
from the general principle, that the lex loci rei sit must determine, whether the
instrument is sufficient to dispose of real property. The difference between that
jurisprudence and the doctrine of England and the United States is, that the
effect of the latter is to.require a particular form for the execution, whether it be
628 CONFLICT OF LAWS. [cH. XL

§ 475. The doctrine of foreign jurists does not, as we have seen,
entirely accord with that of the common law; but even among

made in England or in any other country, that is, it makes no provision for a will
made in a foreign country, but the terms of its enactment are so comprehensive
as to include all wills, in whatever country they are made, if they affect real
property in England. In the other systems of jurisprudence, it is a part of the
lex loci rei site, that its immovable property should pass by a testament executed
with certain formalities, if it be made in the country where the property is situ-
ated, but that if it be made in another country, it may be executed with other
solemnities, that is, with the solemnities required by the law of that country. The
jurists, whose opinions have been cited in support of the rule, that the testament
is valid, if the testator has complied with the forms and solemnities prescribed by
the law of the place in which it was made, apply it to a testament of movable, as
well as immovable property. The decisions of the courts of England on the va-
lidity of testaments of personal estate made abroad are few. The two most im-
portant are on the testaments of the Duchess of Kingston and of Bernes. The
former was resident in Paris: she obtained letters patent from the King of France,
which gave her the same power of devising, as she would have had in England.
Although she died in France, she had not relinquished her English domicil. She
made her testament in Paris. It was clearly null under the Coutume. But she
had observed the forms required by the Statute of Frauds, and the will was valid
according to the law of England. It was the opinion of M. Turgot, an advocate
of France, and his opinion was confirmed by the Court of Probate, that the testa-
ment, although made in Paris, was valid. This opinion proceeds on a principle
which is admitted by jurists, that although a will made with the solemnities of the
lex loci actus may be valid, yet if it were made with the solemnities of the locus
rei site in respect of immovables, and the locus domicilii in respect of movable
property, it would also be valid. In Bernes’s will it appeared, that, although an
Irishmaw by birth, he had acquired a domicil in Madeira. He made a will and
several codicils in that island, some of which were not executed with the solemni-
ties required by the law of Portugal, but with those formalities which would satisfy
the law of England. The decision given by Sir John Nicholl, that the latter
codicils were valid, and that it was competent to have executed them in the man-
ner which would be consonant to the law of England, was reversed by the dele-
gates, and they were deemed invalid. Bernes, in this case, had no longer a
domicil in Ireland. His domicil was in Portugal. Jt was necessary to establish
that fact to distinguish the case from that of the Duchess of Kingston. If he had
still retained his domicil in Ireland, the codicils would, upon the principles referred.
to, and which will be presently more fully stated, have been valid. In neither of
these cases did the question arise on a testament made with the solemnities re-
quired by the lex loci actus, although deficient in those required by the law of
the domicil. In another case the testator was an Englishman by birth, and
although he had been for many years residing in France, it did not appear that
he had abandoned his English domicil. He came to England, and during his
residence there made his will, which was a valid testamentary disposition in res-
pect of forms and solemnities according to the law of England. It was contended
that it ought not to be admitted to probate, because it was not made in the man-
§ 475.] WILLS AND TESTAMENTS. 629

them there is great weight of authority in favor of the general
principle! We have already had occasion to consider the opin-
ions of foreign jurists as to the capacity and incapacity of the tes-
tator to make a testament of immovable property, whether it is to
be governed by the law of his domicil, or by the law rei site2 We
have also had occasion to consider their opinions as to the law
which ought to govern in respect to the forms and solemnities of
testaments of immovable property, whether it is the law rei site,
ot that of the domicil of the testator, or that of the place where
the will was made. Putting out of view these questions, as to the
forms and solemnities of acts, and the capacity and incapacity of
the testator; (upon which we have sufficiently commented,) there
seems to be a general coincidence of opinion among foreign jurists,
that the lex rei site must in other respects govern as to wills and
testaments of immovable property.’ Thus, John Voet says, bona
defuncti immobilia, et que juris interpretatione pro talibus haben-
tur, deferri secundum leges loci, in quo sita sunt. Dumoulin’s
opinion is to the same effect. His language is: Aut statutum agit

ner required by the law of France. Here the court adopted the lex loci actus,
but from the report of the case, the learned judge dwells so much on circum-
stances founded on the testator’s domicil of origin, that it would be perhaps not
correct to describe the decision as warrdnting the conclusion, that, if the testator
had not been an Englishman, his will made in England would have been valid.
In Nasmyth’s case, the testator was domiciled in Scotland, and his will was made
and found there. He died in England in transitu. The Court of Probate in
England held itself bound to defer to the law of Scotland. In giving effect to a
testament made with the solemnities preseribed by the lex loci actus, jurists do
not deny it to a testament made according to the forms required by the lex loci
rei site, if it be immovable, or the lex loci domicilii, if it be personal property,
Phich is the subject of the disposition : “ Proinde, si quis eo, quod ad testandum
expeditius sua causa comparatum est, noluerit uti, quod ei forté promptius sit com-
ponere suprema ad loci leges, cui bona subjaceant, quo minus testamentum ejus
valiturum sit, non video.” Paul Voet and John Voet adopt this opinion. 4
Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12, p. 586 to 590; Robertson
on Succession, p. 95. See, also, Harrison v. Nixon, 9 Peters, R. 505; post,
419 g.

* See ante, § 52 to § 62, § 430 to § 435.

* Thid. “

* See ante, § 363 to § 373, § 485 to § 446; 1 Burge, Comm. on Col. and Hei
Law, Pt. 1, ch. 1, p. 21, 22, 23; 4 Burge, Coman, on Col. and For. Law, Pt. 2,
ch. 12, p. 576 to p. 586; Id. ain 5, p. 217 to 221. See also Feelix, Conflit des
Lois, Revue Etrang. et Frang. Tom. 7, 1840, § 40 to § 50, p. 346 to 360; peach
Decis. Frisic. Lib. 4, tit. 1, Defin. 14, p. 142, 143.

* J. Voet, ad Pand. Lib. 38, tit. 17, § 34, p. 596; ante, § 424.

53 *
630 CONFLICT OF LAWS. [cH. x1.

in rem, et quacunque verborum formula utatur, semper inspicttur
locus, ubi res sita est. And again: Quoties ergo statutum princi-
paliter agit in personam et in ejus consequentiam, agit in res im-
mobiles, non extenditur ad res sitas in locis, ubi jus commune vel
statutum loci diversum est. Hertius is even more direct. Si lex
directo rei imponitur, ea locum habet, ubicunque etiam locorum et a
quocunque actus celebretur.2 He adds in another place: Rebus
fertur Lex, cum certam tisdem qualitatem imprimit, vel in aliendo,
v. g. ut ne bona avito possint alienari, vel in acquirendo, e. g. ut
dominium rei immobilis vendite non aliter acquiritur, nisi facta
fuerit judicialis resignatio.2 D’Aguesseau deems it a mere waste
of time to do more than to state the general rule.t- Paul Voet
has stated the doctrine in an expressive manner: Von tamen sta-
tutum personale sese regulariter extendit ad bona immobilia alibi
sita.5 In another place he says, immobilia statutis loci, ubi sita,
mobilia loci statutis, ubi testator habuit domicilium.® In another
place he says, quid, si itaque contentio de aliquo jure in re, seu
ex ipsa re descendente ; vel ex contractu, vel actione personali, sed
ad rem scriptd; an spectabitur loci statutum ubi dominus habet do-
micilium, an statutum rei site? Respondeo; statutum rei site.’
Boullenois cites another jurist as holding similar language: Sive
in rem, sive in personam, loquatur statutum, ad bona extra territo-
rum non extenditur. Consideratur namque bonorum dominus, ut
duplex homo; quoad bona nempe sita in uno territorio est unus

1 Molin. Oper. Comm. ad Cod. Lib. J, tit. 1, 1.1, De Conclus. Statut. Tom. 3,
p. 556, edit. 1681; ante, § 443; 1 Froland, Mém. 65; Id. Vol. 2, p. 779.

* 1 Hertii, Oper. De Collis. Leg. § 4, n. 9, p. 125, edit. 1737; Id. p. 177, edit,
1716. -

* 1 Hertii, Opera, De Collis. Leg. § 4, n. 6, p. 122, edit. 1737; Id. p. 174, edit.
1716; 2 Burge, Comm. p. 843; 4 Burge, Comm, p. 217.

* D’Aguesseau, Gauvres, Tom. 4, p. 636, 637. See Cochin, CEuvres, Tom. 4,
p. 555, Ato. edit.

* P. Voet, De Stat. § 4, ch. 2, n. 6, p. 128, edit. 1715; Id. p. 188, edit. 1661.

° Id. ch. 3, n. 10, p. 135, edit. 1715; Id. p. 158, edit. 1661; ante, § 442.

7 Id. § 9, ch. 1, n. 2, p. 252, edit. 1715; Id. p. 305, edit. 1661.— We are not to
confound the opinion of Paul Voet, as here expressed, with what he has said in
another place, (ante, § 442,) that testaments are to be executed according to the
forms and solemnities of the place where they are made, and not by those of the
situs of the immovable property. He takes a distinction between the forms and
solemnities of testaments, and their operation on this point. Whether there be
any solid foundation for such a distinction, it is for the learned reader to decide.
Ante, § 442.
§ 475 -476.] WILLS AND TESTAMENTS. 631

homo; et quoad alterius territorii bona est alius homo Again:
Idem quod inferendum, quoad successionem testamentarium ; finge
enim testamentum hic fieri permissum esse, in Geldria non ita?
Hinc si quispiam hic fecerit testamentum, non capiet vires, ratione
bonorum, in Geldria jacentium. Tale quippe statutum spectat ipsa
-bona, adeoque erit reale, non exserens vires ultra statuentis terri-
torium2 Again he adds: Quid, si testamento bona immobilia
relicta, diversis subjacent statutis? Idem dicendum; nihil enim
interest, testatus quis, an intestatus decedat, ut locus sit regula.
Extra territorium jus dicenti impune non paretur.2 This is cer-
tainly the doctrine of the common law; for a man may have the
capacity to take real estate in one country, when he is totally dis-
abled to take it in another. Boullenois (as we have seen) lays it
down among his general principles, that, when the personal laws
of the domicil are in conflict with the real laws of the same coun-
try, or of a foreign country, the personal laws are to yield; and
that, when the real laws of the domicil are in conflict with the
real laws of\another country, both have effect within their own
respective territories, according to the laws thereof.*

§ 475 a. Rodenburg admits, that, where the law rez site pro-
hibits married persons to devise their immovable estate by will
or testament to each other; or where the law ret site prohibits
certain kinds of immovable property from being devised by will or
testament, in such cases the rei site is to govern, notwithstanding
the parties are domiciled, or make their will or testament in a
‘place where no such prohibition prevails ; because these are real
laws. Unde certissima usu ac observatione regula est, cum de
rebus soli agitur, et diversa sunt diversarum possessionum loca et
situs, spectari semper cujusque loci leges ac jura, ubi bona sita
esse preponuntur, sic ut de talibus nulla cujusquam potestas pre-
ter territorii leges.§

§ 476, Huberus has expounded the subject at large. We

* Id. ibid. ; 1 Boullenois, Observ. 10, p. 154.

* P. Voet, De Stat.§ 4, ch.3, n. 11, p. 185, edit. 1715 ; Id. p, 158, edit. 1661.

* P. Voet, De Stat. § 9, ch. 1, n. 4, p. 253, edit. 1715; Id. p. 306, 307, edit.
1661.

* 1 Boullenois, Pr. Gén. 30, 31, p. 8.

5 Rodenburg, De Div. Stat. tit. 2, ch. 5, § 1, 2, 3, 4,5; 2 Boullenois, Appx. p.
35, 36, 87, 38. :

* Rodenburg, De Div. Stat. tit. 2, ch. 5, §1; 2 Boullenois, Appx. p. 35; 4 Burge,
Com. on Col. and For. Law, Pt. 2, ch. 5, p. 218; Id. ch. 12, p. 582, 583. See,
also, Burgundus, Tract. 1, n. 40, 41, p. 41, 42. ;
-

632 CONFLICT OF LAWS. [cu. xt

have already had occasion to cite his remarks on the subject,
so far as respects the forms and solemnities of testaments, which
he insists are valid if made according to the forms and solemnities
of the place where the testament is made, although not made ac-
cording to the forms and solemnities required by the law of the
situs of the property... But he takes a distinction between the
forms and solemnities of testaments, and the right to dispose of
immovable property by testament. “The foundation (says he)
of the whole of this doctrine, which we have been speaking of,
and hold, is the subjection of all persons to the laws of any terri-
tory, as long as they act there, which settles it, that an act valid
or invalid from the beginning, will be accordingly valid or invalid
‘everywhere else. But this reasoning does not apply to immoyv-
able property, when this is considered, not as depending upon the
free disposition of the family, (paterfamilias,) but as having cer-
tain marks impressed upon it by the laws of every commonwealth
in which it is situate, which marks remain indelible therein, what-
ever the laws of other governments, or whatever the dispositions
of private persons may establish to the contrary. For it would
cause great confusion and prejudice to the commonwealth, where
immovable property is situate, that the laws, promulgated con-
cerning it, should be changed by any other acts. Hence, a
Frisian, having lands and houses in the province of Groningen,
cannot make a will thereof, because the laws there prohibit
any will to be made of such real estate; and the Frisian laws
cannot affect real estate which constitutes an integral part of a
foreign territory.” * Fundamentum universe hujus doctrine dizi-
mus esse, et tenemus, subjectionem hominum infra Leges cujusque
territorit, quamdiu illic agunt, que facit, ut actus ab initio validus
aut nullus, alibi quoque valere aut non valere non nequeat. Sed
hec ratio non convenit rebus immobilibus, quando ille spectantur,
non ut dependentes a libera dipositione cujusque patris Samilias
verum quatenus certe note lege cujusque Reip. ubi sita sunt, illis
impresse reperiuntur ; he note manent indelebiles inista Republ.,
quicquid aliarum Civitatum Leges aut privatorum dispositiones,
secus aut contra statuant; nec enim sine magna confusione pre-
judicioque Reip. ubi site sunt res soli, Leges de illis late, dispo-
sttionibus istis mutari possent. Hinc Frisius habens agros et
domos in provincia Groningensi, now protest de illis testart, quia.

1 Ante, § 443, 443 a. * Huberus, Lib. 1, tit, 8, § 15.
§ 476, 477.] WILLS AND TESTAMENTS. 633

Lege prohibitum est ibi de bonis immobilibus testari, non valente
Jure Frisico adficere bona, que partes alieni territorit integrantes
constituunt. And yet, with this clear principle in view, he pro-
ceeds to declare, that this does not contradict the rule which he
had already laid down, that if a will is valid by the law of the
place where it is made, it ought to have effect even in regard to
real property, situate in foreign countries, by whose laws such
property may be passed by a will; because (says he) the diver-
sity of laws in that respect does not affect the soil, neither speaks
of it, but simply directs the manner of making the will, which
being rightly done, the law of the commonwealth does not pro-
hibit the instrument to have validity in regard to immovables,
inasmuch as no characteristic or incident, impressed by the laws
of the country, is injured or diminished.1

§ 477. Burgundus lays down the doctrine in general terms,
that in everything which regards land and other real inheri-
tances, it is the law of the situation which is to decide? He
takes the distinction between movable and immovable property,
and between real and personal statutes. Proinde, in quantum
(statutum) est reale, et immobilia dirigit, finis territoit non egre-
ditur® And again: Quando hoc unum generaliter obtineat, ut
in immobilibus situs semper spectandus veniat ; in mobilibus autem
locus domicilii4 And (as we have seen) he applies the rule
specially to wills. Si quidem solemnitates testamenti ad jura per-
sonalia non pertinent; quia sunt quedam qualitas bonis ipsis im-
pressa, ad quam tenetur respicere, quisquis in bonis aliquid
alterat® Quare etiam mihi videtur consequens, juris civilis ra-
tionem exigere in testamentis exarandis adhibitionem solemnitatis,
quam prescripserit consuetudo cujusque possessionis. Nam si ex
solemni testamento nascitur jus in ipsa re, quomodo id potest
prestare alterius regionis consuetudo, que alienis Sundis altera-
tionis necessitatem imponere non potest? Hoc enim esset jus
dicere extra territorium cui impune non paretur® There is a

1 Huberus, Lib. 1, tit. 8, § 15. ‘The original is cited, ante, § 443 a.

* Ante, § 433.

* Burgundus, Tract. 1, n. 26, p. 38, 39.

* Burgundus, Tract. 1, n. 41, p. 43.

* Burgundus, Tract. 6, n. 3, p. 128; ante, § 372, 438.

* Burgundus, Tract. 6, n. 1, 2. 8, p. 129; Id. Tract. 1, n. 36, p. 38, 39; ante,
§ 372, 433, 488; 1 Boullenois, Observ. 9, p. 151. See also Henry on Foreign
Law, p. 97, 98.
634 CONFLICT OF LAWS. [cH. XI

great deal of solid sense in these remarks ; and they form a satis-
factory answer to the distinction propounded by Huberus.!

§ 478. The Scottish law is in perfect coincidence with the
common law on this subject. Erskine, in the passage already
cited, has stated, that in the conveyance of an immovable subject,
or of any right affecting heritage, the owner must follow the
solemnities established by the law, not of the country, where he
signs the instrument, but of the state in which the heritage lies.
And even if all due solemnities are observed, still no estate will
pass unless in conformity with the local law. Hence, (he adds,)
a foreign testament bequeathing heritable subjects, situate in
Scotland, is not sustained in Scotland, although by the law of the
country, where the testament was made, a heritage might have
been actually settled; because by the Scottish law no heritable
subject can be disposed of in that form.®

§.479. Vattel adopts the same rule, as a general one of the
jus gentium.t As to bequests, he asserts in the most positive
terms, that, when they respect immovables, they must be con-
formable to. the law of the country where they are situated.5 He
adds: In the same manner the validity of a testament, as to its
form, can only be decided by the judge of the domicil, whose
sentence, delivered in form, ought to be everywhere acknowl-
edged. But without affecting the validity of the testament itself,
the bequest contained in it may be disputed before the judge of
the place, where the effects are situated; because those effects
can only be disposed of conformably to the laws of the country.®
Grotius makes a distinction between the personal capacity of mak-
ing wills and testaments and the forms and solemnities thereof,
and the right and power to dispose of property, whether movable
or immovable, holding, that the forms and solemnities are gov
erned by the law of the place where the will or testament is
made; the capacity of the person is governed by the law of his
domicil; and the right to dispose of property is governed in the
case of movables by the law of the domicil, and. in the case of

* Ante, § 476. See also 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12,
p. 582 to 586. :

4 Ante, § 436.

5 Ersk. Inst. B. 3, tit. 2, § 41, P. 515, 516; 2 Kames, Equity, B. 8, ch. 8, § 3.
* Ante, § 471, 472.

5 Vattel, B. 2, ch. 7, § 85, ch. 8, § 108, 110, 111,

* Vattel, B. 2, ch. 7, § 85. So also, Id. ch. 8, § 110, ‘1; ; ante, § 471.
Ԥ4IT-479] * WILLS AND TESTAMENTS. 635

immovables, by the law of the situs rei. Ubi de. formd sive
solemnitate testamenti agitur, respict locum. conditi testamenti;
ubi de persona antestari jus domicilii; ubi de rebus, que testa-
mento relingui possunt, vel non, respici locum domicilii, in mobili-
bus, in rebus soli situm loci.' If it were necessary, the opinions
of many other foreign jurists might be cited to the same effect;

but it would encumber these pages to give them a more extended
review.?

1 Grotius, Epist. 467, cited 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch.
5, p. 220.

? See 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 5, p. 217, 218; Id. ch.
12, p..576 to p. 585. — Mr. Burge (in 4 Burge, Comm. p. 218, 219, 220; Id. p.
581 to 585) states the opinions of many foreign jurists; and among others he says.
(p. 218 to 220): “ Ferriere has stated this doctrine: ‘Si je legue un heritage
propre situé en coutume, qui en défende la disposition, tel legs est nul, et ne peut
étre parfourni sur les biens situes en cette coutume, quoi qu’acquest, parce qu’é
Yégard des choses, dont on peut disposer par derniére volonté, on considere la
coutume ou elles sont situées. Celui qui a son domicile en cette coutume peut
instituer sa femme dans les biens, qu’il a dans le pais de droit écrit, comme il a
été jugé par arrét du 14 Aout, 1754, rapporté par Marion au de ses plaidoyers,
ce qui doit étre sans difficulté.’ A testament made in a foreign country, bequeath-
ing heritable subjects situated in Scotland, is not sustained in that kingdom, though
by the law of the country, where the testament was made, heritage might have
been settled by testament; because by the law of Scotland no heritable subject
ean be disposed of in that form. On this principle a Scot’s personal bond taken
to heirs and assignees, but ‘ secluding executors,’ cannot be bequeathed by a for-
eign testament. But in-all questions touching heritable subjects situate abroad,
the foreign testament will be given effect to according to the lex loci. Dumoulin
lays down the same doctrine respecting the restriction on the testamentary power:
over biens propres. ‘ Unde statutum loci inspicietur, sive persona sit subdita, sive
non; itam si dicat, heeredia, proventa ab una lined, redeant ad heredes etiam re-
motiores linew, vel heredes line succedant in herediis ab illa linea proventis.
Vel quod illi de linea non possunt testari de illis in totum, vel nisi ad certam par-
tem. He enim omnia et similia spectant ad caput statuti, agentis in rem, et
precedentem conclusionem.’ Again; the statute which prohibits a disposition to
particular persons, or (which involves the same consequence) requires the dispo-
sition to be made in favor of certain persons, and therefore excludes all others, is
areal law. ‘Direct? enim in rerum alienationem scripta hee lex realis omnino
dicenda est : nec enim statutum reale sit, an personale:metiri oportet a ratione,
que a conjugali forsan qualitate fuerit ducta, sed ab ipsd re, que in prohibitione:
statuti ceciderit.’ So also it has been held, that the law which requires that the
testator should have survived the execution of his testament will control the dis-
position of property situated in the country where that law prevails, although the
testament is made, or the testator domiciled in a place where no such law exists.
Ifa testator, whose domicil and real estate were both in Normandy, made a will
in some other place, ih which he had occasion to be present, but where the law
636 CONFLICT OF LAWS. ~ : [cH. x1:

§ 479 a. Passing from these considerations as to the law,.by
which the forms and solemnities of wills and testaments of mov-

did not require that the testator should survive forty days, it was held, that the
survivorship was essential to the validity of the testament, so far as it related
to the real property in Normandy. If these questions arise on the power to dis-
pose of movable property by testament, the law by which they are decided is that
of the domicil: ‘ Pour les meubles, ils suivent la lot du domicile, et il ne sauroit
jamais y avoir de choc entre différentes coutumes, en sorte qu’il est assez inutile,
quant aux meubles, d’agiter si le statut, qui permet de tester, ou qui le défend,
est personnel, ou s‘il est réel.’ See also Felix, Conflit des Lois, Revue Etrang. et
Frang. Tom. 7, 1840, § 37, p. 307 top. 312. The latter author says in this place :
‘Le second cas, ou le statut personnel semble devoir prédominer sur le statut réel,
est celui de la succession & toute la fortune d’un individu, soit ab intestat, soit par
testament. Voici les arguments invoqués par les auteurs qui, dans ces deux hy-
pothéses, prétendent faire régir la succession par la loi personnelle du défunt.
Lorsque, par la mort d’un individu, il s’agit de succéder & tous ses droits actifs et
passifs, & toute sa fortune (universum patrimonium), on regarde en droit cette
fortune comme un ensemble (universitas juris), sans égard aux objets particuliers
qui la composent ; et cette universalité représente de droit le défunt, méme avant
Vappréhension faite par Vheritier. L’heritier succéde ensuite dans cette univer-
salité, et c’est alors seulement, qu’il représente la personne du défunt. L’univer-
salité des biens du défunt forment ainsi la continuation de la personne de ce der-
nier, on doit, pour tout ce qui concerne la succession & cette universalité, suivre
la loi de son domicile, c’est 4 dire son statut personnel ; tous les objets compris
dans la succession sont soumis 4 ce statut personnel. Ainsi la succession d’un
Frangais est régie par le Code civil, méme & |’égard des immeubles appartenant
au défunt et situés en Autriche, et on ne suit pas l’ordre des successions établi par
le Code Autrichien. Cette doctrine a été professée par un grand nombre d’au-
teurs distingués ; elle l’a été d’abord par Cujas, relativement & la succession tes-
tamentaire; ensuite la méme opinion a été adoptée, quant & la succession ab in-
testat, par Puffendorf, Bachov. J. H. Boehmer, G. L. Boehmer, Helfeld, Gluck,.
Hamm, Meier, par. MM. Mittermaier, Eichhorn, Muhlenbruch, et Grundler.
Toutefois, quatre des auteurs, cités Puffendorff, Hert, Gluck, et Hamm n’admet-
tent le principe qu’avec deux restrictions ; il ne sera pas applicable, lorsqu’l ex-
iste un loi prohibitive au lieu de Ja situation des immeubles, ou Jorsqu’une qualité
spéciale se trouve imprimée aux biens; par exemple, s’ils sont féodaux, stemma-
tiques ou frappés d’un fidéicommis. En faveur de cette opinion on invoque, ou-
tre le principe que la succession represente le défunt, plusieurs considérations ac-
cessoires. D’aprés opinion commune des auteurs, la succession ab intestat repose
sur la volonté présumée du défunt; le défunt n’ayant connu, en régle générale,
d’autre loi que celle du lieu de son domicile, on doit admettre qu’il a étendu faire
passer ses immeubles aux parents appelés par cette loi: si telle n’avait pas été
son intention, il en aurait disposé par testament. On fait remarquer que toutes
les nations admettent chez elles ’exécution des testaments consentis par un étran-
ger dans sa patrie et dans les formes qui y sont prescrites. Ces testaments ne sont
autre chose que l’expression formelle de la volonté du défunt, sanctionée par la
loi civile de sa patrie : & plus forte raison devra-t-on accorder un effet semblable
§479.a.] WILLS AND TESTAMENTS. 637

able property and of immovable property are to be regulated, in
order to give them validity, let us proceed, in the next place, to
the consideration of the rules, by which such wills and testaments
are to be interpreted. And, in the first. place, in regard to wills
and testaments of personal property. In such cases, where the
will or testament is made in the place of the domicil of the tes-
tator, the general rule of the common law is, that it is to be con-
strued according to the law of the place of his domicil, in which
it is made.1 A will, therefore, made of personal estate in Eng-
land, is to be construed according to the meaning of the terms
used by the law of England; and this rule equally applies,
whether the judicial inquiry, as to its meaning and interpreta-
tion, arises in England, or in any other country.2. Thus, for

4 cette loi civile lorsque, sans un acte du défunt, elle prononce seule. On cite
_encore les inconvénients résultant de la division des patrimoines en différentes
successions particuliéres, au préjudice des héritiers et des créanciers; enfin on
fait observer que la chose publique est sans intérét dans la question, parce que
les prohibitions, les charges et impositions pesant sur l’immeuble peuvent néan-
moins produire leur effet, et que, du reste, peu importe a I’état quelle est la per-
sonne, qui hérite de tel immeuble. D’autres non moins respectables n’admettent
Yapplication du statut personnel en matiére de succession, qu’en ce qui concerne
les meubles, et ils la rejettent par rapport aux immeubles; ils appliquent 4 ceux-
ci la loi de la situation, sans distinguer s'il s’agit de succéder & un immeuble par-
ticulier au & l’universalité de la fortune d’un individu. Ils admettent autant de
succéssions particuliéres qu'il y a de territoires ou sont situés les immeubles pro-
venant du défunt (Quot sunt bona diversis territoriis obnoxia, totidem patrimonia
intelliguntur). Nous citerons Burgundus, Rodenburg, Paul Voet, Jean Veet,
Abraham a Wesel, Christin, Sandé, Gail, Carpzov, Wernher, Mevius, Struve,
Leyser, Huber, Hommel, Berger, Lauterbach, Vattel, Tittmann, Danz, Hauss,
MM. Thibaut, Story, et Burge. Aucune legislation positive ne s’est expliquée sur
la question de savoir, si c’est la loi réelle ou la loi personnelle, qui doit régir la suc-
cession ab intestat. Nous pensons qu’il faut appliquer le statut de la situation des
immeubles. Le premier principe, en matiére de conflit des lois, c’est que les lois
de chaque état régissent les biens situés dans le territoire; il n’est nullement
établi qu’une convention tacite s’est formée entre les nations pour l’application de
la loi personnelle au cas de succession dans l’universalité des meubles et immeubles
d'un individu: témoin la divergence des sentiments des auteurs. Les arguments
invoquées en faveur de cette application sont fondés en partie dans le droit civil,
en partie dans ’avantage commun des nations; mais on ne voit pas que l’usage
des nations ait consacré cette opinion.” See also Foelix, Id. § 27, p. 216, 217,
218; ante, § 429 to § 444.
' Yates v. Thomson, 3 Clark & Finnell. R. 544,570; Robertson on Succes-
sions, p. 69, 100, 191 to 197, 214, 255; post, § 490, 491.
“* Trotter v. Trotter, 4 Bligh, (N. S.) 502; S.C. 3 Wils. & Shaw, R. 407. —
In this case the testator, a Scotchman, domiciled in the dominions of England in
CONFL, 54
638 CONFLICT OF LAWS. [cH. XI.

example, if the question should arise, whether the terms of a
will include a bequest of real estate, or show on the part of the

India, made his will there ; he being possessed of Scotch heritable bonds as well
as of personal property there. The will was ineffectual to carry a Scotch heritage
according to the law of Scotland; and ‘the question arose, whether his heir in Scot-
land, who claimed the heritable bonds as heir, was also entitled to share in the
movables, as a legatee under the will, without bringing in the heritable bonds, or
being put to his election. It was held, that the will as to its terms must be inter-
preted according to the law of England; and that by the law of England the
terms used were not such as to import an intention to convey real estate by the
testator ; and, therefore, that the heir was entitled to the whole heritable bonds,
and also to his share of the movable property under the will. On that occasion
the Lord Chancellor (Lord Lyndhurst) said: “ It was stated at the bar, and I see
by the papers it was also argued below, that in cases of this description, it is not
unreasonable, that when any technical points arise in the eonstruction of a will of
this description, the Court of Session should resort to the opinion of lawyers of the
country, where the will or instrument was executed, but that this applies only to
technical expressions ; that where a will is expressed in ordinary language, the
judges of the court of Scotland are as competent to put a proper construction
upon it as judges or lawyers of the country where the will was executed. But the
judges below were not of that opinion ; and it is impossible, as it appears to me,
that such an opinion can be reasonably entertained. A will must be interpreted
according to the law of the country where it is made, and where the party mak-
ing the will has his domicil. There are certain rules of construction adopted in
the courts, and the expressions which are made use of in a will, and the language
of a will, have frequently reference to those rules of construction ; and it would be
productive, therefore, of the most mischievous consequences, and, in many instan-
ces defeat the intention of the testator, if those rules were to be altogether disre-
garded, and the judges of a foreign court, (which it may be considered in rela-
tion to the will,) without reference to that knowledge which it is desirable to
obtain of the law of the country in which the will was made, were to interpret the
will according to their own.rules of construction. That would also be productive
of another inconvenience, namely, that the will might have a construction put
upon it in the English courts different from that which might be put upon it in the
foreign country. It appears to me, that there is no solid ground for the objec-
tion; but that where a willis executed in a foreign country by a person having
his domicil in that country, with respect to that person’s property, tlte will must
be interpreted according to the law of the country where it is made. It mut, if
it comes into question in any proceeding, have the same interpretation put upon
it as would be put upon it in any tribunal of the country where it was made. It
appears to me, therefore, that the judges were perfectly right in directing the
opinion to be taken of English lawyers of eminence, with respect to the import
and construction of this will according to the law of England. The main question
that was ultimately put to the learned persons, to whom I have referred, is this:
‘ Whether, on the supposition of the question having arisen for trial in England,
the heir would have been put to bis election ifthe had claimed money secured by
heritable bond in Scotland, as well as his share of the personal estate under the
§ 479 4.] WILLS AND TESTAMENTS. 639

testator an intention to bequeathe real estate, as well as personal
estate, the question must be decided according to the law of the
place of his domicil, and where the will was made; and the same
interpretation must be put upon those terms in every other
country, which would be put upon them by the-law of that
domicil.! So, what is to be deemed “ real estate” in the sense
of a will, devising real estate to certain persons, must be decided
by the law of the domicil of the testator. Thus, where a testator
was domiciled in Jamaica, in which place he made his will, and
the devise was in these words: “I give, devise, and bequeathe
one’ moiety of the rents, issues, and profits of my estate named
Islington and Cove’s Penn, in the parish of St. Mary, to be di-
vided equally amongst my grandchildren. The other moiety of
the rents, issues, and profits of my said estate and Penn I give,
devise, and bequeathe to my son,” &c. According to the import

will’ The answer is in these terms: ‘ Corisidering heritable bonds in Scotland
as real estates to which the heir at law is entitled, unless they are conveyed away
with due solemnity by his ancestor, we think the heir at law would be entitled in
this case to claim them without being put'to his election, if the question had arisen
in a court of justice in England.’ When that opinion was communicated to the
court in Scotland, the court, immediately affirming that opinion, decided in favor of
the heir at law. The heir at law was undoubtedly entitled to take the real estate,
— that is, the heritable bond ; and the sole question was, whether, when he came in
to claim under the will his proportion of the personal estate, it was required by
law, that he should be put to his election, that is, whether he should take the one
or the other; whether he should allow the real estate to be connected with the
personal, so as to form one mass of the property, and the whole divided, or should
take the real estate, and give up the personal estate? Whether he was obliged
or not to do this, depended entirely on this consideration, whether upon the face
of the will there was sufficient to manifest a clear intention, that the testator de-
signed by his will to dispose of his real estate ; because if he intended to dispose
of his real estate, although he had not carried that intention effectually into ex-
ecution, the party taking under, that will would not be entitled to have the ben-
efit of the will, and at the same time to defeat the intention of the testator. The
question was, therefore, simply a question of construction. Does it appear upon
the face of the will, that it was the intention of the testator to dispose of his real
. estate, that is, of those heritable bonds? Now, the rule of law in England with
respect to subjects of this kind is well ascertained and well defined, and it is this,
—that you are not to proceed by probability or by conjecture, but that there
must be a clear and manifest expression of the intention on the face of the will
to include that property which is not properly devised, before the heir can be put
to his election.” Ibid. See also Price v. Dewhurst, 8 Sim. R. 279, 299, 300;
post, § 489; Robertson on Successions, p. 189 to 197.
' Trotter-v. Trotter, 4 Bligh, R. (N. 8.) p. 502; 3 wills Shaw, p. 407.
640 CONFLICT OF LAWS. [cH. x1

of the words “my estate,” as they are understood and used in
Jamaica, not only the land, but the works, buildings, utensils,
slaves, cattle and stock on the plantation would be included.
The court put this construction on the devise.1

§ 479 b. In like manner, whether the words of a will give a
legacy, or create a trust, in favor of a party, where the expres-
sions used import a wish or desire, or other language of a similar
sort is used, must be decided by the law of the place, where the
will is made, and the testator has his domicil.2, So, where a
legacy is given in terms expressive of a currency in use in
different countries, but of different values therein, the same rule
will apply. Thus, for example, a will made in Ireland by a tes-
tator domiciled there, giving a legacy of £1,000, will be inter-
preted to be a legacy of £1,000 Irish currency, and payable
accordingly, and not a £1,000 English sterling currency.2 So
legacies are deemed payable according to the law of the country,
and in the currency of the country, where the will is made and
the testator is domiciled.t

§ 479 c. In like manner the question, whether a legatee by the
terms of a foreign will or testament takes an estate for life, or in
fee, is to be decided by the law of the place where the will is
made, and the testator is domiciled, and not by the law of the
place where the controversy arises, or the testator was born®
So, if the question arises, whether it is competent to make a
particular bequest of property, the validity of it must be decided
by the law of the place where the will or testament is made, and
the testator is domiciled.® So, if a legacy is given by a will or
testament to a party who dies in the lifetime of the testator, the
question whether it is an ademption of the legacy, or whether

? Stewart v. Garnett, 3 Sim. R. 298; 4 Burge, Comm. on Col. and For. Law,
Pt. 2, ch. 12, p. 591.

* Pierson v. Garnett, 2 Bro. Ch. R. 38; 2 Story on Eq. Jurisp. § 1068 to
§ 1074,

3 Id. p. 47.

* Ibid. ; Saunders v. Drake, 2 Atk. 465; Pierson v. Garnett, 2 Bro. Ch. R. 39,
47; Malcolm-v. Martin, 3 Bro. Ch. R. 50; Wallis v. Brightwell, 2 P. Will. 88;
Lansdowne v, Lansdowne, 2 Bligh, R. 60, 88, 89,95; 4 Burge, Comm. on Col.
and For. Law, Pt. 2, ch. 12, p. 595, 596; ante, § 259, 310 to 313.

* Brown v. Brown, 4 Wils. & Shaw, 28, 37; post, § 490.

° Price v. Dewhurst, 8 Simons, R. 279, 299, 300, 301; 2 Boullenois, Observ.
46, p. 505 to p. 508, W

«
§479 a-479 d] WILLS AND TESTAMENTS. 641

the legacy goes to his personal representatives, is to be decided by
the law where the will or testament is made, and he is domiciled.2
Ԥ479 d. Another illustration may arise under a will which
purports to direct the testator’s real estate. to be sold, and the
proceeds to be applied to foreign charities, which devise is good:
by the law of the foreign country, but is prohibited by the law of
the testator’s domicil. In such a case the devise will be void, be-
cause it is against the law of his domicil. This was held in a
ease, where a testator in England by his will directed his real
estate to be sold, and the produce to be laid out in lands, or in
the funds, for the maintenance of a charity in Scotland. On that
occasion the Master of the Rolls (Sir William Grant) said: ‘The
statute (9 Geo. 2, ch. 86) contains no express words prohibiting
a bequest of money, to be produced by the sale of land, to chari-
table purposes; but it is settled by construction, that such a be-
quest is within the spirit and meaning of the law; and it is clear,
that no charity in England, not within the exception of the stat-
ute, could have derived any benefit from the produce of the real:
estate. The question, then, is, whether such produce may be
given to what, in contemplation of the English law, is for a chari-
table purpose, when that purpose is to be carried into: execution
in another country. The validity of every disposition of real
estate must depend upon the law of the country in which that
estate is situated. The subject of this statute is real estate in
England. The owners of such property are disabled from dispos-
ing of it to any charitable use, except by deed, executed twelve.
months before the death of the owner, &c., to take effect from the
execution. The words are perfectly general, ‘ any charitable use
whatsoever’; and the object could not be to treat English chari-
ties less favorably than charities to take effect for the: benefit of
other countries. It would be somewhat incongruous to refuse to
permit such a disposition for the most laudable and meritorious
charitable institution in England ; but if the party chose to carry
his benevolent intention beyond England, to permit him to do so,
to the effect of disinheriting his heir in his last moments. The
disinheriting of the lawful heirs by languishing or dying persons,
which is treated by the statute as a mischief, cannot be less so,
when the effect is to carry the property out of England. There-

1 Anstruther v. Chalmer, 2 Sim. R. 1; Thornton v. Curling, 8 Sim. R. 310; 2

- Addams, Eccles. R. 6,10 to 25; post, § 491.
54%*
642 CONFLICT OF LAWS. (cH. x1.

fore, neither the words of this statute, nor the presumable inten-
tion, warrant me in declaring, that it is to be confined to chari-
table purposes to be carried into execution in England. The
statute not containing an exception in favor of the universities of
Scotland, as it does with regard to the universities of England, I
must consider this as a charitable disposition, by which nothing
that is the produce of the testator’s real estate can pass.”}

§ 479 e. The same rule will apply to the ascertainment of the
persons, who are to take under a will or testament, when it is
made by words designating a particular class or description of
persons. Who are the proper persons entitled to take under the
designatio personarum, is a point to be ascertained by the law of
the place where the will is made, and the testator is domiciled.
Thus, for example, if a testator should bequeathe his personal es-
tate to his “heir at law,” who is the person entitled to take under
that description, will depend upon the law of his domicil. If
domiciled in England, it will be the eldest son; if domiciled in
most of the states of America, it will be all his children.? So,

1 Curtis v. Hutton, 14 Ves. 537, 541. See, also, 3 Peters, R. Appx. p. 501 to 508.

2 Harrison v. Nixon, 9 Peters, R. 483, 504. — On this occasion the c&urt said:
“No one can doubt, if a testator, born and domiciled in England during his whole
life, should, by his will, give his personal estate to his heir at law, that the descrip-
tio personz would have reference to and be governed by the importef the terms
in the sense of the laws of England. The import of them might be very different,
if the testator were born and domiciled in France, in Louisiana, in Pennsylvania,
or in Massachusetts. In short, a will of personalty speaks according to the laws
of the testator’s domicil, where there are no other circumstances to control their
application ; and to raise the question, what the testator means, we must first as-
certain, what was his domicil, and whether he had reference to the laws of that
place, or to the laws of any foreign country. Now, the very gist of the present
controversy turns upon the point, who were the person, or persons, intended to
be designated by the testator, under the appellation of ‘heir at law.’ If, at the
time of making his will, and at his death, he was domiciled in England, and had
a reference to its laws, the designation might indicate a very different person, or
persons, from what might be tha case, (we do not say, what is the case,) if, at the
time of making his will, and of his death, he was domiciled in Pennsylvania. In
order to raise the question of the true interpretation and designation, it seems to
us indispensable that the country, by whose laws his will is to be interpreted,
should be first ascertained ; and then the inquiry is naturally presented, what the
provisions of those laws are.” Mr. Burge has put a number of cases from the
foreign law on the same subject. He says: “ The legal effect of the expression,
‘lawful heirs,’ will not be controlled by words, which import an equality of dis-
tribution amongst the heirs; but those words will be understood as referring to
the equality, which is consistent with, and recognized by that law, which the testa-
§ 479 d, 479 e.] WILLS AND TESTAMENTS. 643

if a person domiciled ih Holland should bequeathe his property to
the “male children” of certain persons, and the question should

tor is presumed to have invoked. The institution of heirs was thus expressed :
‘*Fratrum et sororum filios ac nepotes heredes legitimos ex equis partibus.’
(Voet, lib. 28, tit. 5, n. 17.) If the whole inheritance were to be divided
amongst those heirs in equal parts, the qualification of legitimus heres would
be disregarded, because according to the order of succession established by law,
the grandsons of one brother succeeding with the sons of another do not take per
capita, but per stirpes. The equality therefore, to be observed in the distribu-
tion, and which must-be presumed to-have been that contemplated by the testator,
is that, which the law admits, namely, an equality between the stirpes, and not
between the individuals. Neostad, Decis. 33.) A case arose in the court at
Brabant, of a father domiciled in Brabant, who had, in the institution of his son,
desired him to allow that, which he had: left him, to go to his lawful children. It
was decided, that the grandfather's estate would devolve on those children only,
who would take according to the law of Brabant in the case of intestacy, namely,
the children of the first, to the exclusion of those of a second marriage. (Stock-
mans, Curia Brab. Decis. 27.) Under an institution by the description of
‘brothers,’ brothers of the whole blood only will take, if according to the law in
the place of the lex loci domicilii, the children of the father’s or mother’s side
only are excluded from the succession. (Christin ad Leg. Mech. tit. 16, art. 7,
n. 5,6; Voet, lib. 28, tit. 5, n. 18; Rodenb. de Jure, Quod Ori, de Stat. Divers,
tit. 3, c. 2, n. 6, p. 135; Someren de Repres.c. 5,n. 4.) If a testator institute
as his heirs those whom he calls proximi, without using any expression pointing
to those who would by law succeed to him in case of intestacy, and he leaves no
children, it is doubtful who are entitled to the succession, whether those who
would take according to the law of the place of his domicil, or those who were
really and naturally the nearest to the testator in blood, although according to
that law they could not be his heirs. Thus, if the testator were domiciled in a
country where the relations of the deceased mother succeed in preference to the
surviving father, the latter is the nearest in blood to the deceased, although he is
not nearest in the order of succession. It seems that the term proximus would
receive its natural signification, and consequently the father as the nearest in
blood would succeed, and not the descendant in the maternal line. (Voet, lib. 28,
tit. 5, n. 19, and lib. 36, tit. 1, n. 25; Someren, de Repres. c. 6.) But it is said,
that this construction is made to depend on the degree in which the law of suc-
cession deviates from the natural sense of the word proximus. And where in
cases of intestacy some of the nearest are admitted to the succession with some
more remote in blood, the construction would be according to the legal sense. If
therefore a testator, instituting his wife as his heir, should direct, that the inheri-
tance after his death should revert to the nearest, then according to the jus Sca-
binicum, [Sen-Cons-Trebellianicum,] the father would be entitled to one half,
and all the‘ brothers to the other half. (Ib. Sandé, Decis. Fris. lib. 4, tit. 5, def.
6.) If the testator has called to the succession those who are nearest to him in
case of intestacy, recourse must be had, not to the laws of the different countries,
in which his immovable property is situated, to decide, who are the persons enti-
tled to succeed, but to the lex loci domicilii. And then it may happen, that those
644 CONFLICT OF LAWS. [cu. x1.

arise, as well it might, whether by “male children” be meant
male descendants, that is, descendants claiming through males
only, the question would be decided by the interpretation. put:
upon those words by the law of Holland.

§ 479 f. But the question may be asked in these and the like
cases, what is to be the rule of construction, if the will or testa-
ment is made by the party in the place of his domicil; but he is
in fact a native of another country ; or if the will or testament is
made in a country, of which the party is a native, and according
to the forms of law in that country, and yet at the time his actual
domicil is in another country, by whose laws the will or testament
so made is equally good. The answer to both questions is the
same. The law of the place of his actual domicil. Thus, for ex-
ample, where a native of Scotland domiciled in England, having
personal property only, executed during a visit to Scotland, and
deposited a will there, prepared in the Seotch form, and died in
England ; it was held, that the will was to be construed according,
to the English law.!

would succeed, who will not be the nearest in blood. (Sand. Decis. Fris. lib. 4, tit,
5, def. 6, 8; Voet, lib. 36, tit. 1, n. 25, lib. 28, tit. 5, n. 20; Mantica, de Conj. ult,
Volunt. lib. 8, tit. 14, n. 10; Van Leeuwen, Cens. For. part 1, lib. 3, c. 7, n. 19;
Neostad, decis. 35; Jul. Clarus. § Testam. queest. 76, n. 13; Someren, de Repres.
c. 5,n.16; ante, Vol. 2, p. 856.) In a bequest of a pecuniary legacy, where the
will affords no direct evidence of the currency, in which the testator intended it
to be paid, his greater familiarity with the currency of the country, in which he
is domiciled, than with that of any other place, justifies the presumption, that he
has in view that currency, when he expresses no other currency, in which his
bequest is to be paid. The father of a family, who was domiciled in a, village
in Peyrouse, in Italy, was on a visit to Ancona on business. He made his will in
the latter place, and gave a legacy to one of his daughters of five hundred florins.
Florins were of less value at Ancona than at -Peyrouse, and the question raised
was, whether the legacy should be paid according to the value of the florins at
Ancona, or at Peyrouse ; and it was determined it ought to be paid according
to the value at Peyrouse, the place of the testator’s domicil. Where a legacy
consists of a certain number of modii of corn, Hertius says, that the modii ought
to be according to the measure of the place of the testator’s domicil, and not ac-
cording to that of the place where the testament was made. So, if a testator,
having lands in different places, devise a thousand acres without any other ex-
pression, such a devise must be understood according to the measurement pre-
vailing in the place of his domicil.” 4 Burge, Comm. on Col. and For. Law,
Pt. 2, ch. 12, p. 591 to 594. See, also, 2 Burge, Comm. Pt. 2, ch. 9, p. 855 to
860; ante, § 271, 271 a, note; post, § 484; Sand. Decis. Frisic. Lib. 4, tit. 8,
defin. 7, p. 194,

+ Anstruther v. Chalmer, 5 Sim. R. 1; Harrison v. Nixon, 9 Peters, R. 483,
§479e-479g.] WILLS AND TESTAMENTS. 645

§ 479 g. Another question may also be propounded. Suppose
at the time of the making of a will or testament, the testator is
domiciled in the place where it is made, and- he afterwards re-
moves to another place, where he is domiciled at his death; does
such removal change the rule of construction, so that, if there is
a difference between the law of the original domicil and that of
the new domicil, as to the interpretation of the terms, the law of |
the new domicil is to prevail? Or, does the interpretation re-
main, as it was by the law of the original domicil ? This question
does not seem to have undergone any absolute and positive deci-
sion in the courts acting under the common law. [It has been
held, however, in such case, that unless the will was executed ac-
cording to the law of the person’s last domicil, and the place of

"504, 505, note. — Mr. Burge on this subject says: “ The law of the place of dom-
icil in many cases affords the rule of construction, when the testator has used ex-
pressions, which are either ambiguous or of different significations in different
countries. Thus, if a testator does not institute his heirs by name, but by the
description of those who would succeed to his estate in case he had died intestate,
and the rules of succession, where his real or immovable property is situated, are
different from those which prevail in the place of his domicil, or in that in which
he made his will, or in that where the judicial tribunal is, which adjudicates on
the will, the laws of succession, which prevail in the place of his domicil, are
those which would be adopted. And the more general opinion is that even with
respect to the succession to real or immovable property, the laws of succession in
the place of domicil, and not those in loco reisite prevail. The ground, on which
this rule rests, is that, as it becomes necessary to ascertain the sense, in which the
testator has used the expression, and what laws of succession he contemplated, it
is presumed, that they were those of the country in which he was domiciled, be-
cause it must be supposed he was familiar with those laws, There are grounds
for presuming he was acquainted with them; but there exist no grounds for pre-
saming him to be acquainted with any other laws of succession. In affixing the
sense, in which he has used certain words, terms, or phrases, he is presumed to
have adopted that, which prevailed in the place of his domicil. It has been
sometimes said, that they ought to be understood in the sense in which they are
accustomed to be used in the place where the will or contract was made. But it
would be impossible to consider this as a general rule; for the residence of the
party in the place may have been for so short a time as to negative the presump-
tion, that he was even acquainted with that sense.” 4 Burge, Comm. on Col. and
For. Law, Pt. 2, ch. 12, p. 590, 591. See, also, 2 Burge, Comm. on Col. and For.
Law, Pt. 2, ch. 9, p. 855, 856, 857.

' ' Tt was alluded to, and reserved for consideration in Harrison v. Nixon, 9
Peters, R. 488, 502. See ante, § 473; 4 Burge, Comm. on Col. and For. Law,
Pt. 2, ch. 4, § 5, p. 169; Yates v. Thomson, 3 Clark & Finnell, 544, 583 to
589,
646 CONFLICT OF LAWS. [cH. Xt.

his death, it would not be valid although made according to the
laws of the testator’s domicil at the time it was made.]

§ 479 h. The same rules of construction will generally apply to
wills and testaments of immovable property ; unless, indeed, it can
be clearly gathered from the terms used in the will, that the tes-
tator had in view the law of the place of the situs, or used other
language, which necessarily referred to the usages and customs
or language, appropriate only to that situs.2 “ Thus,” (to bor-
row an illustration from Mr. Burge,) “in case the limitation of a
deed or will were made in England, in favor of the heir of A.,
a person who had no children, and the settler or testator has
property in England, Jamaica, and British Guiana, if the con-
struction of the term, heir, was to be in conformity with the law
of England, the father of A. would take; if according to the lawe
of Jamaica, the elder brother; and if according to the law of
British Guiana, his father, brothers, and sisters, would take his
immovable property. It is not to be presumed, that he used the
expression in three different senses, or that he adopted the legal
import given to it by the law of the one place, rather than that

‘given to it by the law of either of the other two places. But if
his domicil were in England, there is the presumption, that he.
was acquainted with the sense attached to it by the law of Eng-
land, and that he used it in this sense.”? So if a testator should
devise his real. property to his next of kin, who would be entitled,
would depend upon the construction given to the words by the
law of his domicil.*

§ 479 i. Foreign jurists have discussed this subject on various
occasions.® Boullenois says: When the question is respecting the
interpretation of clauses expressed in a contract, or a testament,
it is ordinarily the circumstances of the case, which are to decide
it. In effect, if we sometimes find clauses or dispositions in con-
tracts or testaments, which, from not being sufficiently developed,
leave some uncertainty of knowing, whether they are to be un-
derstood according to the law of the place where the acts are ex-
ecuted, or according to the law of the place where the goods are

1 Nat v. Coon, 10 Missouri, R. 543.

* Trotter v. Trotter, 3 Wils. & Shaw, 407; 4 Bligh, R. (N. 8.) 502,505; 2
Burge, Comm. on Col. and For. Law, Pt. 2, ch, 9, p. 857, 858.

89 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p- 858.
* Thid. =

° See Sand. Decis. Frisic. Lib. 4, tit. 8, Defin. 7, p. 194.
if

§ 479 g—479i.] WILLS AND TESTAMENTS. 647

situated, or according to the law of the domicil of one or other of
the contracting parties, or finally according to some other law.
After citing the opinions of other jurists, he declares his own
opinion to be, that the law of the place, where the act is executed,
does not always furnish the proper rule of interpretation in all
cases ;} but that the only rule, which can be prescribed, is that of
determining, according to the different circumstances belonging
to each case. These circumstances will sometimes compel us to
follow the law of the place of the contract, or testament, some-
times that of the situs rei, sometimes that of the domicil of the
party, and sometimes the place, where the payment or perform-
ance is to be. He adds, that he finds no doctrine more reasona-
ble than that, which Dumoulin has laid down upon this subject.”

+ 12 Boullenois, Observ. 46, p. 489, 490.

* 2 Boullenois, Observ. 46, p. 494, 503 to 518; Id. p. 587, 588, — Mr. Burge
has cited from 2 Boullenois, Observ, 46, p. 584 et seq., a passage illustrating Boul-
lenois’s opinion. ‘ The terms,” (says Mr. Burge,) “in which the contract is ex-
pressed, may receive a construction, according to the law or usage of the place
where the contract is made, different from that which is given to them by the law
of the situs, If, by adopting the one sense, the contract would be brought within
the prohibition of the law of the situs, that construction ought to be rejected.
But if this would not be the consequence, and the adoption of either meaning
would not afford a ground to prevent the contract from being completed by the
law of the’ situs, it has been. a question, whether the construction given by the
law or usage of the situs, or that given by the law of the place where the con-
tract was made, ought to prevail. Thus, in some countries the limitation by gift
or devise to a person, and ‘si sine liberis discesserit ’ to another, operates as a sub-
stitution. The children, ‘ positi in conditione,’ are also considered as ‘ positi in
dispositione,’ and are entitled to take. Such was the law of Toulouse. But un-
der the coutume of Paris the expression, ‘si sine liberis,’ imported only a condi-
tion, and consequently, if there were no failure of children, there was no substi-
tution. The following case occurred, on which N. Boullenois gave his opinion :
The Comte de R., domiciled in Languedoc, made a settlement on the marriage of
his son,-who had resided in Paris many years, and the lady with whom he married
was a native of and domiciled in Paris. The Comte executed a general power
of attorney to the Bishop of —— to arrange the marriage settlement. By this
settlement he gave to his son a moiety of all his estate, movable and immovable,
then belonging to him, or, which should belong to him on the day of his death.
‘Sous la condition que, si le futur époux décede sans enfans miles, nés de ce
mariage, la moitié des biens & lui présentement donnés, retournera & Vainé de ses
freres, ou A Painé des enfants males dudit aine ; apres tourtes fois que les conven-
tions de la dite Demoiselle future épouse auront été payées et acquittées, et que
déduction aura été faite de la légitime des filles.’ There were issue of the mar-
riage a son and daughter. The real property was situated in Toulouse. The.
son claimed it, insisting that his father had created a substitution, and that he
648 CONFLICT OF LAWS. [cH. x2

479 k. We have already had occasion in part, to refer to the
opinions of Dumoulin on this subject.1. He reproves the doctrine
maintained by many jurists, that the law and custom of the place,
where a contract is made, are to govern the contract in all cases.
Et advertendum, quod Doctores pessime intelligunt, L. si fundus
de evicti; Quia putant ruditur et indistincte, quod debeat ibi in-
spici locus et consuetudo, ubi fit contractus, et sic jus in loco con-
tractus. Quod est falsum; quinimo jus est in tacita et verisimt-

took as a substitute. The daughter contended that no substitution was created,
that the condition had failed, and, that consequently, the father having died with-
out making any disposition, she was entitled with her brother as one of the heirs
ab intestato. The opinion given by M. Boullenois, was, that the import of the
expression, given by the law of Paris, where the contract was made, and where
two of the parties to it were domiciled, and the donor was present by his attorney,
must prevail. This opinion was confirmed by sentence des Requétes du Palais of
the 21st of August, 1734, in favor of the daughter. But this sentence was re-
versed on appeal, and the decision was given in favor of the son. There is great
force in the arguments, by which this learned jurist maintains his opinion. The
principal ground, on which the decision proceeded, was, that the domicil of the
father the donor, was in Toulouse, and that it must be presumed he contemplated
the law, with which he was acquainted, rather than that of Paris, with which he
might be unacquainted, and, that in donations the intention of the donor is prin-
cipally to be considered, since the part of the donee is confined to the acceptance
of the donation. But, in the present case, this consideration loses much of the
weight, to which it might otherwise be entitled, because the donor had granted a
general power of attorney to a person resident in Paris to arrange the settle-
ment, and had not prescribed the terms or conditions it should contain. It was
not in this case insisted, nor is it the doctrine of jurists, that the situs of the prop-
erty requires the application of its law to determine the legal import of any ex-
pression in the contract. The text of the civil law is, that ‘In stipulationibus, et
in ceteris contractibus, id sequimur, quod actum est; et si non pateat quod actum
est, erit consequens, ut id sequamur, quod in regione in qua actum estsfrequen-
tatur’” It has been justly considered, that this rule is too general ; for that if it
were universally followed, the intentions of the contracting parties must be fre-
quently defeated. It has been seen in the passage already cited, that it was con-
demned by Dumoulin. In his opinion, and he is followed by Boullenois, the
interpretation of expressions in a contract must depend, not on the place, where
it is made, but on those other circumstances, from which the will or intention of
the parties may be inferred. Generally, the interpretation which it would receive
in the place of their domicil, is that which, it is most probable, will be conform-
able to their intention.” 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p.
855 to 857; 2 Boullenois, Observ. 46, p. 518 to 533; ante, § 275. Boullenois
gives other illustrations of his doctrine. 2 Boullenois, Observ. 46, p.495 to p. 518.
Bouhier seems to hold a similar opinion. Bouhier, Cout. de Bourg. ch. 21, n. 220,
221, 222.
1 Ante, § 274, 441.
§ 479k, 479 1.] WILLS AND TESTAMENTS. 649

iter mente contrahentium. And he explains himself thus: Aut
statutum loquitur de his, que concernunt, nudam ordinationem vel
solemnitatem actus, et semper inspicitur statutum vel consuetudo,
ubi actus celebratur, sive in contractibus, sive in judictis, sive in
testamentis, sive in instrumentis, aut aliis conficiendis.1 Aut statu-
tum loquitur de his, que meritum scilicet cause vel decisionem con-
cernunt; et tune aut in his, que pendent ¢ voluntate partium, vel
per eas immutari possunt, et tune inspiciuntur, circumstantie vo-
luntatis quarum, una est statutum loci, in quo contrahitur, et domi-
cilit contrahentium antiqui vel recentis, et similes circumstantie?

§ 479 i. Hertius lays down the rule, that the words of a testa-
tor are to be especially interpreted according to the custom of the
place, where the testator had his origin or domicil. Hine juris-
consulti verba testatoris precipué interpretantur secundum loci con-
suetudinem, ubi testator originem vel domicilium habeat.3 And he
illustrates it by the case of a bequest of so many measures of
wheat, or so many acres of land, where the question arises as to
the quantity of the measures or of the acres, whether to be under-
stood according to the lex loci of the testament, or the lex domicilii
of the testator. The like doctrine is adopted by Joli Voet, by
Stockmans, by Christineus, by Rodenburg, and by Sandius.
Stockmans uses the following language: Non exigua vis est com-
munis regula, que dictat, testatorem in dubio censeri dispositionem
suam aptare jure illius loci, ubi agit et testamentum condit, et con-
suetudinem ac leges municipales loci tacité influere, ac temperare
generales testantium locutiones et dispositiones.© Paul Voet says:
In specie autem consuetudo legis verba ambigua interpretatur : et st
non appareat, quid actum sit inter contrahentes, ad eam, tanquam
rerum ac verborum dominam, recurritur. Quam etiam in perscru-
tandé testatoris voluntate.”

* Molin. Opera, Tom. 3, Comm. in Cod. Lib. 1, tit. 1, p. 554, edit. 1681; ante,
§ 260, 274, 441; 2 Boullenois, Observ. 46, p. 495.
, 2 Ibid. ;

* Hertii, Op. De Collis. Leg. § 6, n. 3, p. 222, edit. 1716; Id. p. 158, edit. 1737;
2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 859, 860.

* Ibid. Molin. Opera, Tom. 1, De Fiefs, § 33, n. 86, p. 410, edit. 1661.

5 See ante, § 479 e, note; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12,
p- 591 to 594, where the opinions of these jurists are cited.

* Stockm. Decis, 27, n. 1, p. 27.

™P, Voet, de Statut. § 3, ch. 1, n. 2, p. 100, edit. 1715; Id. p. 111, edit.
1661.

CONFL, 55 :
650 CONFLICT OF LAWS. [cH. x1.

§ 479 m. Indeed, it may be laid down as a general rule, that
wherever words of an ambiguous signification, or different sig-
nifications in different countries, are used in a will, they are to
be interpreted in the sense in which they are used in the law of
his domicil, with which he may be presumed either tobe most
familiar, or to have adopted. Sandius says: In ambigua hac tes-
tatoris voluntate spectandum esse consuetudinem regionis, in qua
testator versatus est.1 The same rule has been recognized in Eng-
land, or rather, it has been generalized ; for it has in effect been
held, that in the construction of ambiguous instruments or con-
tracts, the place of executing them, the domicil of the parties, the
place appointed for its execution, and other circumstances are to
be taken into consideration.”

§ 479 n. In respect to another point, whether a court of equity
can,enforce a foreign will, of which there has been no probate ob-
tained from our own courts, the principle seems clear, that it can-
not. A court of equity can know nothing of a will of personalty
in England, unless it has first been adjudged a will in the proper
probate or ecclesiastical court. A fortiori the rule must apply
to a foreign will.®

[*§ 479 0. This rule seems to have been acted upon satnewlinl
extensively in the American States. It was early held in Massa-
chusetts,* that a court of equity having jurisdiction of testamen-
tary trusts, could not take cognizance of such as arose under 4
will executed in South Carolina, where the testator was domiciled,
and which had been duly proved in that state, but no copy of such
probate having been filed in Massachusetts, in conformity with the
statute of that state, making such copy of the same force as an
original probate. And it is here said in conformity with the well
settled rule of law in the American States, that such an executor
could not be recognized, as such, in Massachusetts until he had
filed a copy of the probate in South Carolina and received letters of
administration there, in conformity with the statute of that state.
The same doctrine is reaffirmed in a late case in Massachusetts.5]

? Sand. Decis. Frisic. Lib. 4, tit. 8, Defin. 7, p. 195.

* Lansdowne v. Lansdowne, 2 Bligh, R. 60, 87; 4 Burge, Comm. on Col. and
For. Law, Pt. 2, ch. 12, p. 590,591. See Bunbury v. Bunbury, 2 Jurist, (Eng-
lish,) 1839, (before Lord Cottenham,) p. 104, 111 to 114.

* Price v. Dewhurst, 4 M. & Craig. 76, 80.

[* * Campbell v. Sheldon, 13 Pick. R. 8.
* Campbell v. Wallace, 10 Gray, 162.]

@bbre
§ 479 m —- 481] SUCCESSION AND DISTRIBUTION. 651

CHAPTER XII.

SUCCESSION AND DISTRIBUTION.

[*§ 480. The right of succession next considered.

§ 481. This must be, as to personalty, by the ler domicilii.

§ 481 a. The same law decides the persons entitled.

§4816-482a, The foreign jurists concur in this view.

§ 483. By the common law, succession to immovables is determined by ler rei site.

§ 483 @-483d. The foreign jurists generally concur in this view.

§ 484. The persons who are to take realty ascertained by lex rei site.

§ 484. The foreign jurists concur in this view.

485-489. The combination of real and personal estate in the same will often pre-

sent embarrassing questions. ; :

§ 489 a. Other difficult questions arise in regard to charges on real estate, portions of
which are situate in different states.

§ 489 b. Questions of embarrassment also arise as to remedies against heirs.

§ 489 c. Nice questions often arise between heirs and devisees.

§490. The construction of a will referred to the law of the place where made.

§491.:The law of the actual domicil of testator at death fixes the construction of
the will.

§ 491 a. Successions governed by the law of the domicil of the intestate.

§ 491 b. The construction of wills determined by law of domicil.

§ 491 c. Whether a person dies intestate must be referred to the law of his domicil at
death.

§ 491d. Questions of legitimacy as affecting the construction of wills.

§ 480. Havine considered the operation of foreign law, in re-
gard to testaments of movable property, and of immovable prop-
erty, we next proceed to the right of succession in cases of intes-
tacy, or, as the phrase is, of succession ab intestato. And, here,
the preceding discussions have left little more to be done, than to
state the general principles applicable to each species of property.

§ 481. First, in relation to movable property. The universal
doctrine, now recognized by the common law, although formerly
much contested, is, that the succession to personal property is gov-
erned exclusively by the law of the actual domicil of the intestate
at the time of his death.! It is of no consequence, what is the

? Suarez v. Mayor, &c., of New York, 2 Sandf. Ch. R. 173. Many of the au-
thorities, to, sustain this point, have been already cited, ante, § 380 to 385, § 465
“ #0474, But some others may be here reférred to. Pipon v. Pipon, Ambler, R.
25; Thorne v. Watkins, 2 Ves. R. 35; 1 Chitty on Comm. and Manuf. 661; Sill
»v. Worswick, 1 H. Black. 690, 691; Bruce v. Bruce, 2 Bos. & Pull. 229, note;
Hunter v. Potts, 4 T. R. 182; Potter v. Brown, 5 East, R. 130; Doe d. Birth-
‘

652 CONFLICT OF LAWS. [cH. XIL

country of the birth of the intestate, or of his former domicil, or. .

what is the actual situs of the personal property at the time of his
death ; it devolves upon those, who are entitled to take it, as heirs
or distributees, according to the law of his actual domicil at the
time of his death. Hence, if a Frenchman dies intestate in Amer-
ica, all his personal property, whether it be in America, or in
France, is distributable according to the statute of distribution of
the state where he then resided, notwithstanding it may differ es-
sentially from the distribution prescribed by the law of France.

§ 481 a. So, the like rule prevails in the ascertainment of the
person who is entitled to take as heir or distributee. The law of
the domicil, therefore, is to decide, whether primogeniture gives a
right of preference, or an exclusive right to the succession, ahd
whether a person is legitimate, or not, to take the succession. So,
whether persons are to take per capita, or per stirpes; and the
nature and extent of the right of presentation. Thus, for exam-
ple, in England, and in some of the American States, there is no
right of representation beyond that of brothers’ and sisters’ chil-
dren, as to the right of distribution, in cases of intestacy of immova-
ble property. If, therefore, a man should die, leaving a brother and

whistle v. Vardill, 5 Barn. & Cresw. 488, 450 to 455; S. C. 9 Bligh, R. 32 to 88;
2 Clark & Finnell. R. 671; Ennis v. Smith, 14 How. 400; Lawrence v. Kitte-
ridge, 21 Conn. 577; Holcomb v, Phelps, 16 Conn. 127; Yates v. Thomson, 3
Clark & Finnell. R, 554; Robertson on Succession, ch. 6, p. 104 to 117; Id. ch.
8, p. 118 to 201; Thornton v. Curling, 8 Sim. R. 310; Price v. Dewhurst, 8 Sim.
R. 279, 299; Moore v. Budd, 4 Hagg. Eccles. R. 846, 352; 4 Burge, Comm. on
Col. and For. Law, Pt. 2, ch. 4, § 5, p. 156 to 170; ante, § 362, 367, 378. Fora
long time the law of Scotland was unsettled on this point; but it now coincides
with that of England. Robertson on Succession, ubi supra; 4 Burge, Comm.
ubi supra; Stairs, Instit. B. 3, tit. 8, § 35; Ersk. Instit. B. 3, tit. 9,§ 43 Liver
more, Dissert. 162, 163 ; Olivier v. Townes, 14 Martin, R. 99; Shultz »v. Pulver,
3 Paige, R. 182; De Sobry v. De Laistre, 2 Harr. & Johns. R. 1938, 224, 228;
Holmes v. Remsen, 4 Johns. Ch. R. 460; S. C. 20 Johns, R. 229; De Couche v.
Savatier, 3 Johns. Ch. R. 190; Erskine, Inst. B. 3, tit. 2,§ 40,41; Id. B. 3, tit,
9,§4; 2 Kames, Equity, B. 3, ch. 8, § 3, 4, p. 388, 845; 1 Boullenois, Observ.
20, p. 8358; 2 Boullenois, 54; Id. 57; Fergusson on Marr. and Div. 346, 361;
Vattel, B. 2, § 85, 103, 110, 111; 1 Hertii, Opera, De Collis. Leg. § 4, n. 26, p.
135, edit. 1787; Id. p. 192, edit. 1716; Huberus, De Confl. Leg. Lib. 1, tit. 3,
§ 15; Henry on Foreign Law, p. 13, 14,15; Id. p. 46, 196; J. Voet, ad Pand.
Lib. 38, tit. 17, § 34, p. 596; Harvey v. Richards, 1 Mason, R 418; 2 Froland,
Mém. 1294; 2 Dwarris on Statut, 649; Price ». Dewhurst, 8 M. & Craig, 76,82;
Preston v. Melville, 8 Clark & Finnell. 1, 12.
1 Tbid.
§481-4815.] | SUCCESSION AND DISTRIBUTION. 658

sister, and the grandchildren of a deceased brother, the latter
would not take anything in virtue of a representation of the de-
ceased brother.!

§ 481 b. This same doctrine is maintained with equal broad-
ness by foreign jurists. It is founded in a great measure upon
the doctrine, that movables have no situs, and accompany the per-
son of the owner ; so that in fictione juris they are always deemed
to be in the place of his domicil. Mobilia sequuntur personam, et
ejus ossibus adherent.2 Thus Rodenburg, referring to the effect
of a change of domicil on succession, takes the very distinction
between movable property and immovable property, founded upon
its nature and character. Jus-rebus succedendi immobilibus, sem-
per a loco rei site metiendum, huc non pertinet ; succedendi mobil-
ibus pertinet ; quod ea certo loco non circumseripta, comitentur
personam a domicilio ejus accipientia leges.2 Boullenois fully

1 4 Burge, Comm. on Col, and For. Law, Pt. 2, ch. 4, § 5, p. 156 to 160. As
in cases of movable property, the law of the domicil is thus held to regulate the
succession and distribution thereof; the question may often become important,
what is the actual domicil. As to this, see ante, § 44 to 50. Upon this subject
many difficult questions may arise. See, for example, De Bonneval v. De Bon-
‘neval, 1 Curteis, R. 856; Attor. Gen. v. Dunn, 6 Mees. & Welsb. R. 511. But
the rule itself may require some modification, where the law of the domicil of the
intestate is intended to take away the rights of persons, who might otherwise suc-
ceed to movable property in another country, by a sort of hostile perversity.
Thus, it has been said, that, under the Berlin and Milan decrees passed by Napo-
leon, Englishmen were rendered incapable of succeeding to the personal estates
of intestates dying in Italy. Such a law might require England to disallow the
operation of the general rule, as to personal property of the same intestate situate
in England. See Koster v. Sapte, 1 Curteis, Eccl. R. 691; ante, § 472, note.
Suppose a person should die in transitu from his acquired domicil, the question
might then arise, whether the law of his native domicil, or of his acquired domi-
cil, or of-his intended domicil, was to govern. It seems clear, that a domicil,
whether native or acquired, is not lost by a mere abandonment. It is not defeat-
ed animo merely ; ‘but animo et facto, and necessarily remains until a subsequent
domicil is acquired, at least unless the party dies in transitu to his intended dom-
icil. This last qualification of the doctrine, though stated by a learned judge,
may be exactly the point of a doubt, whether it varies the rule. Munroe v. Doug-
lass, 5 Madd. R. 379, See also 2 Boullenois, Appx. p. 59, 60 ; Jennison v. Hap-
good, 10 Pick. R. 77,99,

? See ante, § 362, 377, 378; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch.
4,§5, p.157; Feelix, Conflit des Lois, Revue Etrang. et Frang. Tom. 7, 1840,
§ 32, p. 227, 292.

* Rodenburg, de Div. Stat. tit. 2, Pt. 2, ch. 2,§1; 2 Boullenois, Appx. p. 59 ;
2 Boullenois, ch. 2, p. 54.

55 *
654 CONFLICT OF LAWS. [CH. XI,

»

concurs in this opinion. Burgundus holds the same opinion?
Perhaps it might, with quite as much accuracy, be said, that the
doctrine is founded in a great public policy, observed, ex comitate,
by all nations, from a sense of its general convenience and utility,
and its tendency to avoid endless embarrassments and conflicts,
where personal property has often changed places; which is the
view entertained by John Voet.®

§ 482. Paul Voet has put the principle in a compendious man-
ner. Idem ne inferendum de statutis, que spectant successiones ab
intestato? Respondeo, quod ita; rem enim afficiunt, non perso-
nam, ut legibus loci, ubi bona sita sunt, vel esse inteliguntur, regi
debeant. Immobilia statutis loci, ubi sita; mobilia loci statutis,
ubi testator habuit domicilium.4 And again: Verum an, quod de
immobilibus dictum, idem de mobilibus stutuendum erit? \ Respon-
deo, quod non. Quia illorum bonorum nomine nemo censetur semet
loci legibus subjecisse. Ut que res certum locum non habent, quia
facile de loco in locum transferuntur ; adeoque secundum loci sta-
tuta regulantur, ubi domicilium habuit defunctus.5

§ 482 a. Sandius, in speaking of successions, takes the like dis-
tinction between movables and immovables. Aliud judicium est
de mobilibus, que ex conditione personarum legem accipiunt, nec
loco continere dicuntur, sed personam sequuntur, et ab ea depen-
dent ; et ideo omnia ubicunque mobilia legibus domicilit subjiciun-
tur.6 Strykius affirms the same doctrine ; as do Gaill, and Chris-
tinzus, and John Voet.’ The latter says: Cetersm occasione
variantium in successionem intestatam statutorum, generaliter ob-
servandum est, bona defuncti immobilia, et que juris interpreta-
tione pro talibus habentur, deferri secundum leges loci, in quo sita

1 2 Boullenois, Observ. 33, p. 57, 68, 64.

® Burgundus, Tract. 2, n. 20, 21; Id. Tract. 1, n. 26.

® J. Voet, ad Pand. Lib. 88, tit. 17, n. 34, Tom. 2, p. 596; post, § 482 a, note.

* P. Voet, § 4, ch. 3, n. 10, p. 135, edit. 1716; Id. p. 153, edit. 1661; ante,
§ 475.

5 P. Voet, De Stat. § 9, ch. 1, n. 8, p. 255, edit. 1715; Id. p. 309, edit, 1661.
See also to the same point, John Voet ad Pand. Tom. 1, Lib. 1, tit. 4, Ps. 2, n.
11, p. 44; ante, § 362, n. 3.

® Sand. Decis. Frisic. Lib. 4, tit. 8, Defin. 7, p. 194,

" Strykius, de Success. Diss. 1, ch. 4, n. 8; Gaill, Pract, Observ. Lib. 2, Ob-
serv. 124, n. 18, p. 552; Christin. Deis. Cur. Belg, Vol. 2, Decis. 3,.n. 2, 3, p. 4}
J. Voet, ad Pand. Lib. 38, tit. 17, De Success. ab Intestate, a. 34, Tom. 2, p. 596;
Felix, Conflit des Lois, Revue Etrang. et Frang. Tom. 7, 1840, § 37, p. 807 to
3811; 4 Burg. Comm. on Col. and For. Law, Pt. 2, ch. 4, § 5, p. 156 to 158.

°
§481b-—483 a.] | SUCCESSION AND DISTRIBUTION. 655

sunt ; adeo, ut tot censeri debeant diversa patrimonia, ac tot here-
ditates, quot locis, diverso jure utentibus, immobilia existunt.
Mobilia vero ex lege domicilii ipsius defuncti, vel quia semper
domino presentia esse finguntur, aut (ut exposui,) ex comitate,
passim usu.’ Bynkershoek is ‘equally positive. Ommnino igitur
interest scire non tam, ubi quis decessit, quam ubi decedens domi-
cilium habuit; nam si hoc sciamus, secundum leges domicilit he-
‘geditas intestati defertur, sive major, sive minor decesserit quod ad -
mobilia nempe, et que pro mobilibus habentur.?

- § 488. Secondly, in relation to immovable property. . And here
avery different principle prevails at the common law. The de-
scent and heirship of real estate are exclusively governed by the
law of the country, within which it is actually situate. No per-
son can take, except those, who are recognized as legitimate heirs
by the laws of that country ; and they take in the proportions, and
the order, which those laws prescribe. This is the indisputable
doctrine of the common law.®

§ 483 a. Foreign jurists are not, indeed, universally agreed,
-even as to this point, although ‘certainly they differ less than in
most other cases. It may truly be said, that the generality of
them, (having a great weight of authority,) unequivocally admit,
‘that the descent and distribution of real estate are, and ought to
be, governed by the lex rei sitte.4 On this head it might seem al-

1 J. Voet, Comm. ad Pand. Lib. 38, tit. 17, n. 84, Tom. 2, p. 596.

* Bynkers. Quest. Privat. Jur. Lib. 1, ch. 16, p. 179, 180.

? 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 4, § 5, p. 151, 152; Doed.
Birthwhistle v. Vardill, 5 Barn. & Cres. p. 451, 452; S. C. 6 Bligh, R. 479, note ; 9
Bligh, R. 32 to 88; 1 Rob. R. (House of Lords) p. 627 ; ante, § 364 to 366, § 426
to 429; post, § 483 a, note; S. P. Bunbury v. Bunbury, 1 Jurist, (English,) 1839,

. 104.
: * The authorities to this point also have been already cited, ante, § 424 to 448.
See Doe dem. Birthwhistle v. Vardill, 5 Barn. & Cres. 438; United States v.
Crosby, 7 Cranch, R. 115; Kerr v. Moon, 9 Wheaton, R. 556, 570; McCormick
v. Sullivant, 10 Wheaton, R. 192; Dunbar v. Dunbar, 5 Louis. Ann. R. 159;
Darby v. Mayer, 10 Wheaton, R. 469 ; Hosford v. Nichols, 1 Paige, R. 220; Cut-
ter v. Davenport, 1 Pick. R. 81; Wills v. Cowper, 2 Hamm. R. 124; 1 Hertii,
Opera, De Collis. Leg. § 4, n. 26, p. 185; 1 Boullenois, 25, 223, &c.; 1 Froland,
Mém. 60, 61, 65; P. Voet, De Stat. § 4, ch. 2, n. 6, p.123; J. Voet, ad Pand.
* Lib. 1, tit. 4, Pt. 2, § 8, p. 39; Ersk. Inst. B. 3, tit. 2, § 40, 41, p. 515; D’Agues-
seau, Huvres, Tom. 4, p. 637; Huberus, Lib. 1, tit. 3, § 155 2 Dwarris on Statut.
p- 649; Rodenburg, Pt. 2, tit. 2, ch. 2; 2 Boullenois, Appx. p. 59, 63; 2 Boulle-
nois, 54, 57, 383; 2 Froland, Mém. ch. 7, p. 1288; Feelix, Conflit des Lois, Re-
vue Etrang. et Franc. Tom. 7, 1840, § 37, p. 307 to 312; 4 Burge, Comm. on
656 CONFLICT OF LAWS. « [CH. Xn.

most sufficient to adopt the language of John Voet, in his classi-
fication of real and personal statutes. He reduces to the class of
real statutes whatever regards inheritances. Quo pertinet jura sue-
cessionum ab intestato ; quonan ordine ad bona queque ab intestato,
quisque in capita, vel stirpes, vel lineas, vel jura primogeniture
admittendus sit ; qué ratione legitimi aut illegitimi, agnati, cognati
vocentur ; queque his sunt similia plura.1_ Rodenburg is equally
decisive. Jus rebus succedendi immobilibus semper a loco rei site
metiendum. Froland gives the rule in the most concise but en-
ergetic terms, attributing the language to Dumoulin: Mobdilia
sequuntur personam; immobilia situm2 Dumoulin says: Aut sta-
tutum datur in rem; puta, bona decendentis veniant ad primo
genitum; et tunc attenditur statutum loct, in quo sita sunt bonas
Bynkershoek in his bold and uncompromising manner asserts,
that the rule is so well established, that no one dares to open his
mouth against it. Immobilia enim deferri ex jure, quod obtinet in
loco rei site, adeo recepta hodie sententia est, ut nemo ausit contra
hiscere.® ‘

§ 483 b. Paul Voet says: Quid si circa successionem ab intestato,
statutorum sit difformitas? Spectabitur loci statutum, ubi immo-
bilia sita, non ubi testator moritur.6 Rodenburg speaking of laws,

Col. and For. Law, Pt. 2, ch. 4, § 5, p. 151 to 156.— Since the preceding sheets
were worked off, I have ascertained, that the case of Doe d. Birthwhistle v. Var-
dill, above cited, has been affirmed in the House of Lords. 1 Rob. R. (House of
Lords) p. 627. The ground was, that by the law of England, no person could in-
herit lands as heir, who was not born after the marriage of his parents.

* J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, § 3, Tom. 1, p. 39; Id. Lib. 38, tit. 17,
n. 34, Tom. 2, p. 596.

* Rodenburg, De Div. Stat. P. 2, tit. 2, ch. 2, p. 59; 2 Boullenois, Appx. p.
54,57. See also Henrys, Qiuvres, Tom. 2, Lib. 4, ch. 6, Quest. 105, Observ.
Bretonnier, p. 613, 614, edit. 1771.

* 2 Froland, Mém. 1289. — I cannot find any such expressive language used by
Dumoulin in the passage cited by Froland ; and therefore conclude that it is his
own concise statement of Dumoulin’s opinion, in which he is certainly correct.
The passage cited Molin. Opera, Tom. 2, p. 701, edit. 1681, Coutumes de Senlis,
art, 140; Id. 747, Coutumes d'Auvergne, art. 4; Id. Consil. 53, p- 964; Id. Tom.
8, p. 554, Conclus. de Statut.

* Molin. Oper. Com. in Col. Lib. 1, tit. 1, 1. 1, Conclus, de Statut. p- 556, edit.
1681.

° Bynkers. Quest. Privat. Jur. Lib, 1, ch. 16, p- 180; ante, § 381.

° P. Voet, de Statut. § 9, ch. 1, n. 3, 4, p. 252, 253, edit. 1715; Id. p. 305, 306,
807, edit. 1661; ante, § 438, 475. — Paul Voet gives a long list of authorities,
supporting the doctrine, ut immobilia statutis loci regantur, ubi sita. P. Voet, § 9,
ch. 1, n. 4, ubi supra,
§483 a-483d.] SUCCESSION AND DISTRIBUTION. 657

which are purely real, (que quidem*jure precipui meré realia
sunt,) says: Cujusmodi appellamus ea, que de modo dividendarum
ab intestato hereditatum tractant, territorium non egredientia ; con-
spirant enim eo vota fere omnium, bona ut dijudicentur sud lege
loci, in quo sita sunt vel esse intelliguntur4 Burgundus, after
remarking that there is a diversity of opinion upon this subject
among jurists, some holding that the law of the situs of the prop-
erty is to govern, some, that the law of the domicil of the intes-
tate, and some few, thdt the law of the place, where the intestate
happened to die, then asserts his own opinion. Bonorum due
sunt species; alia enim mobilia sunt, alia immobilia; illa a per-
sond, hec a situ cujusque provincie legem accipiunt ; videlicet, ut
nulla habita ratione originis, aut mortis, aut domicilii, tam here-
dum, quam ipsius defuncti, dividantur secundum consuetudines lo-
corum, ubi bona vel sunt, vel sita esse intelliguntur?

§ 483 c. Boullenois treats the subject as so entirely free from
doubt, as to require no comment or explanation.2 D’Argentré,
as we have seen, resolutely maintains the same opinion.* San-
dius says: Contra tamen vulgo a doctoribus receptum est, statuta
de bonis et successione intestati disponentia esse realia, nec egredt
jines territorii. Atque ita fieri, ut secundum diversitatem statuto-
rum diversimodé succedatur, non aliter, quam si per fictionem
unius hominis diversa sunt patrimonia. Et immobilia sunt sub
jurisdictione loci, in quo jacent. Statutum igitur Hollandie non
extendit se ad res immobiles in Frisia situs; sed iste subjacent
dispositione juris communis quod in Frisia obtinet.®

§ 483 d. And not to dwell upon a point, which, although not
Without controversy among foreign jurists, is generally established,
we may quote the opinion of Huberus. His language is: Non
potest heic omitti Questio frequens in foris hodiernis, a juris

' Romani tamen aliena terminis: Quia se@pe sit, ut diversum jus
succedendi ab intestato in locis, ubi defunctus habuit domicilium,
atque in iis locis, ubi bona sita sunt, obtineat, dubitatur, secundum
utrius loci leges successio regenda sit. Communis et recta senten-
tia est, in rebus immobilibus servandum esse jus loci, in quo bona
tt 2 Rodenburg, De Divers. Statut. tit. 2, ch. 2,§1,n.15 2 Boullenois, Appx.
p. 14; Id. p. 74. .

* Burgundus, Tract. 1, n. 36, p. 38.

* 1 Boullenois, Observ. 20, p. 358; 2 Boullenois, Observ. 41, p. 383.

* Ante, § 438.

* Sand. Decis. Lib. 4, tit. 8, Defin. 7, p. 194-
658 CONFLICT OF LAWS. [cH. xn

sunt sita; quia cum partem ejusdem territorii faciant, diverse-
jurisdictionis legibus adfici non possunt. Verum in mobilibus nihil
esse cause, cur aliud quam jus domicilii sequamur; quia res
mobiles non habent affectionem versus territorium, sed ad per-
sonam patrisfamilias duntaxat; qui aliud quam, quod in loco
domicilii obtinebat, voluisse videri non potest.

§ 484. We have already had occasion to state, that in the
interpretation of wills of immovable property, and of movable
property, if the description of persons, who are to take, be by
some general designation, such as “heirs,” or “next of kin,”
“issue,” or “children,” the rule of the common law is, that they
are to be ascertained by the lez domicilii, both in regard to im-
movable property, and to movable property, unless the context
furnishes some clear guide for a different interpretation.2 The

‘same rule will apply in cases of the descent and distribution of
movable property ab intestato, for the reason already suggested ;
that it is deemed by fiction of law to be in the place of his domi-
cil, and therefore to be distributable according to the lex domicilii;
and consequently, who are the “issue,” or “‘ children,”’ or “ heirs,”
or “next of kin,” is a matter to be ascertained by that law. But
in regard to immovable property a different rule prevails, founded
upon the actual situs; and as the succession is to be according to
the lex loci situs, the persons, who are to take by succession, can
be ascertained only by reference to the same law.

§ 484 a. Foreign jurists generally, although not universally,
maintain the same doctrine ; and accordingly hold that in cases
of succession ab intestato we are to ascertain the persons who are
to take the inheritance by the lex loci rei site, whether the ques-
tion respects legitimacy, or primogeniture, or right of representa-

* Huberus, Vol. 1, Lib. 3, De Success. n. (s), p. 278. See, also, 4 Burge, Comm.
on Col. and For. Law, Pt. 2, ch. 4, § 5, p- 150, 151, 152, 154, 155.

? Ante, § 479 a, 479 m, 479 n; 2 Burge, Comm. on Col. and For. Law, Pt. 2,
ch. 9, p. 855 to 858. ,

® See Thorne v. Watkins, 2 Ves. 35; Brown v. Brown, or Gordon v. Brown,
3 Hagg. Eccl. R. 455, note; S. C. 4 Wilson & Shaw, 28; P. Voet, De Statut.
§ 8, ch. 1, n. 2, p. 100, edit. 1715; Id. p. 111, edit. 1661; Elliott ». Lord Minto,
6 Madd. R. 16; Earl of Winchelsea v. Garety, 2 Keen, R. 298, 309, 310; ante,
479 €; post, § 490, § 529,

* Doe d. Birthwhistle v. Vardill, 5 Barn. & Cresw. 438; S.C. 9 Bligh. R. 32;
ante, § 364 to § 366, § 426 to § 429, § 488; 4 Burge, Comm. on Col. and For. Law,
ch. 4, § 5, p. 150 to p. 156; Id. ch. 15, § 4, p. 722 to p. 734; Elliott v. Lord
Minto, 6 Madd. R. 16; Earl of Winchelsea v. Garety, 2 Keen, R. 293, 809, 310;
post, § 529. :
§ 483 d-486.] | SUCCESSION AND DISTRIBUTION. 659

tion, or proximity of blood, or next of kin. John Voet is very
full and explicit on this subject. He says: Positéd ergo varietate,
si queras, cujus loci leges in representatione observande sint ?
respondendum videtur eodem modo, quo supra in principali ques-
tione de successione ; puta, mobilium intuitu spectandas esse leges
domicilii defuncti, immobilium respectu leges cujusque loci, in quo
illa sita sunt: eo quod jus representationis omnino ad jus succes-
sionis intestate pertinet, imo successorem facit eum tanquam ex
fictiohe legis proximum, qui vere atque naturaliter defuncto proxi-
mus non est.

§ 485. But these general principles still leave behind them,
even in the common law, some very embarrassing difficulties ;
and in the complex systems of foreign law the difficulties are
greatly multiplied. Sir William Grant adverted to this subject
in an important case, and said: “‘ Where land and personal prop-
erty are situated in different countries, and governed by different
laws, and a question arises upon the combined effect of those
laws, it is often very difficult to determine what portion of each
law is to enter into the decision of the question. It is not easy to
say, how much is to be considered as depending on the law of real
property, which must be taken from the country, where the land
lies, and how much upon the law of personal property, which
must be taken from the law of the domicil, and to blend both
together, so as to form a rule applicable to the mixed question,
which neither law separately furnishes sufficient materials to
decide.” 2

§ 486. Two cases of a curious nature were on the same occa-
sion mentioned ‘by Sir William Grant, as illustrative of his re-
marks, which cannot be better stated than in his own language.
“T have argued, (said he,) in the House of Lords, cases, in which
difficulties of that kind occurred. Two of the most remarkable
were those of Balfour v. Scott, and Drummond v. Drummond.’

1 J. Voet, ad Pand. Tom. 2, Lib. 38, tit. 17, n. 35, p. 597, See Id. Lib. 38, tit.
18, n. 84, p. 639, where he adds: Denique pretermittendum non est, in eo, an
jus primoggnituree admittendum sit, necne ; immobilium quidem intuitu spectan-
dam esse legem loci, in quo sita sunt; mobilium vero respectu consuetudinem
domicilii defuncti.

* Brodie v. Barry, 2 Ves. & Beames, R. 130, 131.

? See Robertson on Successions, p. 202 to 207; 4 Burge, Comm. on Col. and
For. Law, Pt. 2, ch. 15, § 4, p. 731; 6 Brown, Parl. R. 601, by Tomlins.

* 6 Brown, Parl. R. (Tomlin’s edit.) p. 601; 4 Burge, Comm. on Col. and For.
Law, Pt. 2, ch. 15, § 4, p. 729.
660 CONFLICT OF LAWS. [cH. xm.

In the former, a person domiciled in England died intestate, leay-
ing real estate in Scotland. The heir was one of the next of kin;
and claimed a share of the personal estate. To this claim, it was
objected that, by the law of Scotland, the heir cannot share in the
personal property with the other next of kin, except on condition
of collating the real estate; that is, bringing it into a mass with
the personal estate, to form one common subject of division. It
was determined, however, that he was entitled to take his share
without complying with that obligation. There the Englislt law
decided the question.” !

§ 487. He then added: “In Drummond v. Drummond, a per-
son, domiciled in England, had real estate in Scotland; upon
which he granted a heritable bond, to secure a debt contracted in
England. He died intestate ; and the question was, by which of
the estates this debt was to be borne. It was clear, that by the
English law the personal estate was the primary fund for the
payment of debts. It was equally clear, that by the law of Scot-
land the real estate was the primary fund for the payment of the
heritable bond. Here was a direct conflictus lezwm. It was said
for the heir, that the personal estate must be distributed accord-
ing to the law of England, and must bear all the burdens, to
which it is by that law subject. On the other hand, it was said,
that the real estate must go according to the law of Scotland; and
bear all the burdens to which it is by that law subject. It was
determined, that the law of Scotland should prevail ; and that the
real estate must bear the burden.” 2

§ 488. In conclusion he said: “In the first case, the disability
of the heir did not follow him to England ; and the personal estate
was distributed, as if both the domicil and the real estate had been
in England. In the second, the disability to claim exoneration
out of the personalty did follow him into England ; and the per-
sonal estate was distributed, as if both the domicil and the real
estate had been in Scotland.” 8

§ 489. Another illustration is furnished by the very case then
in judgment before Sir William Grant, which turned upon the

? Brodie v. Barry, 2 Ves. & Beam. 180,131. *

* Brodie v. Barry, 2 Ves. & Beam. 130, 131. See, also, Drummond v. Drum-
mond, 6 Brown, Parl. R. (Tomlin’s edit.) p. 601; post, § 529; Robertson on Suc-

cessions, p. 209, 214; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 15, § 4,
p- 722 to p, 734.

* Brodie v. Barry, 2 Ves. & Beam. p. 132; ante, § 266 } post, § 529.
§486-4894a.] SUCCESSION AND DISTRIBUTION. 661

question, whether an heir at law of heritable property in Scotland,
being a legatee of personal property, which was in England, under
a will of the testator, which intended to dispose of all his real
property in England and Scotland, but which will, not being con-
formable to the law of Scotland, was not capable of passing real
estate there, should be put to his election to take the legacy under
the will, or to surrender to the purposes of the will the Scotch
heritable property. - Sir William Grant decided in the affirmative ; :
and said: “ Now, what law is to determine, whether an instru-
ment of any given nature or form is to be read against an heir at
law for the purpose of putting him to an election, by which the
real estate may be affected? According to Lord Hardwicke, and
the judges who have followed him, that is a question belonging to
the law of real property ; for they have decided it by a statute,
which regulates devises of land. Upon that principle, if the dom-
icil were in Scotland, and the real estate in England, an English
will, imperfectly executed, ought not to be read in Scotland for
the purpose of putting the heir to an election; and, upon the
same principle, if, by the law of Scotland, no will could be read
against the heir, it would follow, that a will of land, situated in
Scotland, ought not to be read in England, to put the Scotch heir
to an election. Doubting much the soundness of that principle, I
am glad, that the case of Cunningham v. Gayner,! relieves me
from the necessity of deciding the question ; as, whichever law is
applied to the decision of the present case, the result will be the
same, &c. If the law of Scotland is resorted to, the case alluded
to determines, that the English will may be read against the Scotch
heir, for the purpose of putting him to an election.” ?

§ 489 a. Other questions of a very difficult and embarrassing
nature may arise, as to the nature and extent of the liability of
the heirs to the payment of debts and other charges of the intes-
tate, chargeable on his real estate, situate in different countries,
where different rules prevail as to the nature and extent of the lia-
bility of the heirs in respect to such real estate, and the real estate
descends to different persons, and in a different manner in the
respective countries. The question may respect the exclusive or
primary applicability of one or more of the real estates to the dis-

*1 Bligh, R. 27, note; Robertson on Successions, p. 219, 220.

* 1 Brodie v. Barry, 2 Ves. & Beames, R. 127, 133; ante, § 479 a, note; Robert-

son on Successions, p. 217, 218.
CONFL. 56
662 CONFLICT, OF LAWS. . [on. xi.

charge of such debts or other charges ; or the liability of the heirs
in solido, or pro portione hereditarid ; or the right of the heirs-or
devisees of the real estates in one country, to contribution or in-
demnity from the heirs or devisees of the real estate in another
country; or the right of the creditors to proceed against them all
in solido, or pro portione hereditaria.1

§ 489 b. Many cases of this sort have been discussed by foreign
jurists, and decided by foreign tribunals. -Thus, for example,
where one part of the succession has been situate in a country, by
whose laws the creditors are permitted to proceed against each
heir in solido, and another part in the country of the domicil of
the intestate, by whose laws the creditors are entitled to proceed
against each heir pro portione hereditarid; there has been no
small diversity of judgment as to the rule, which ought to be
applied in favor of the creditors; whether the rule of the law rei
site, or of the law of the domicil, as to the nature and extent of
the liability of the heirs.? Perhaps, in such a case, the right of
the creditors against the heirs respectively may most properly be
deemed to be governed by the lex rei site ; and the mode of pro-
ceeding against them be regulated by the law of the place, where
he seeks his remedy. If he seeks to enforce his rights in the place
of the domicil of the intestate, he must recover against each heir
pro portione hereditarid. If he seeks to enforce them in the other
country, then the heirs are there liable to him in solido. But this
opinion is far from having the assent of several distinguished ju-
rists. They hold, that the creditors are entitled to proceed against
the heirs in either country, according to the law of the domicil of
the intestate ; because it is there, that they suppose the heirs to
have contracted the debt to the creditors. Of this opinion are
Paul de Castro, Christinzeus, and Bouhier, as well as the judges of
several foreign tribunals. On the other hand, other jurists hold,

* See 1 Boullenois, Observ. 17, p. 277 to p. 288, where the subject is much
discussed. Bouhier, Cout. de Bourg. ch. 21, § 218, 214, p- 416.

* 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 15, § 4, p. 722, 728, 724,
who cites several authorities upon the subject. Among them are Christin.
Tom. 1, Decis. 283, n. 15, 16; J. Voet, Lib. 29, tit. 2, n. 31; Merlin, Répert.
tit. Dette, § 4; 1 Boullenois, Observ. 17, p. 278; Bouhier, Cout. de Bourg. ch. 21,
n. 213.

* 1 Boullenois, Observ. 17, p. 277, 278; Bouhier, Cout. de Bourg. ch. 31,
n. 218, p. 416; Christin. Decis. Tom. 1, Decjs. 283, n. 15, 16, p. 358. See,
also, J. Voet, ad Pand. Lib. 29, n. 31, 32, Tom. 2, p. 876; Merlin, Répert.
Dette, § 4.
§489a-489c.] | SYCCESSION AND DISTRIBUTION. 663

that in each country respectively, the heirs contract with the cred-
itors according to the law of the place, where the succession is
devolved upon, and is assumed by the heir, that is, the lex rei site.
Of this latter opinion are many distinguished jurists! Merlin in-
clines strongly to this latter opinion.? Boullenois leaves the ques-
tion without any expression of his own views, saying that it is a
point full of difficulty.®

-§ 489 c. A question of another sort may arise between the heirs
or devisees of the deceased party, who, as between themselves, in
cases of successions or wills of immovable property in different
countries, governed by different laws, is ultimately to bear the
debts of creditors, or other charges, for which such property is
liable, and which some of the heirs have been compelled to pay.
Tn such cases the question must first arise, which fund is primarily
liable for the payment or discharge thereof inter sese; for it should
seem, that, as between themselves, the fund primarily liable should
ultimately be held chargeable therewith in exoneration of all the
other funds. If there is no such priority of liability, but all the
funds are equally liable pari passu, then it should seem reason-
able, that each fund, wherever it is actually situate, should con-
tribute pro ratd, according to its value in the hands of each heir
respectively, to the discharge of the common burden. If part of
the funds are exempted from contribution, they should still pos-
sess that privilege ; and the residue contribute. It will, however,
be found difficult to affirm, that foreign jurists and tribunals have
given any uniform support to these doctrines.*

? Bouhier, Cout. de Bourg. ch. 21, n, 218, 214, p. 416.

* Merlin, Répertoire, Dette, § 4.

* 1 Boullenois, Observ. 17, p. 279. (

* Pothier appears to hold this doctrine. Pothier, des Successions, ch. 5, § 1, p.
223, 4to edit. He there cites a case, of which Mr. Burge has given the substance
as follows: “ An inhabitant of Blois; where the coutume burdened the heir to the
movable estate with all the movable debts, left in his succession biens propres sit-
uated in Blois, and others situated in Orleans. The-coutume of the latter place
makes all the different heirs subject to all the debts. He left an heir to his mov-
able estate, and another heir to his biens propres, situated in Orleans and Blois.
In this case Pothier says, that the heir to the biens propres must, conformably to
the coutume of Orleans, where he had succeeded to that part of the succession,
bear his part of all the debts of the succession, even those which are movable, re-
gard being had to the value, which the real estate at Orleans would bear to the
whole succession. By this apportionment effect is given to the coutume of Or-
leans as well as to that of Blois, for the heir to the real estate contributes only to
664 CONFLICT OF LAWS. [cH. XIL

*.

§ 490. Other illustrations of the difficulties, attendant upon the
administration of this branch of law, are to be found in the appli-
cation of local rules to the interpretation of wills, whether arising
from the lex domicilii or the lex rei site, as the case may regard
movable property, or immovable property. We have already had
occasion to discuss this subject in another place. But it may not
be without use to state one or two cases a little more fully than
has been already done. A question of this sort was recently dis-
‘cussed in the House of Lords upon a will made in Virginia, by
which the testator bequeathed to his sister, Mary Brown, “ the re-
maining one fourth share of the balance of his estate, at her
death to be equally divided among her children, if she should
have any.” The question was, what estate Mary Brown took
under the will, whether a life-estate, or an absolute property.
And, it appearing, that the courts of Virginia had construed the
bequest to give her an absolute estate, upon the footing of that

the debts in respect to that part of the estate which is situated in Orleans, and
he does not contribute in respect of that part which is situated in Blois.” 4 Burge,
Comm. on Col. and For. Law, Pt. 2, ch. 15, § 4, p. 724, 725. The same subject
is discussed at large, in 2 Froland, Mém. des Statut. ch. 92, p. 1547 to 1573, and
he cites several adjudications, and among others one stated by Basnage, Coutume
de Normand. Tom. 2, art. 408, p. 141. See also 1 Boullenois, Observ. 17, p. 284,
who cites Mornac, Comm. on Dig. Lib. 5, tit. 1,1. 50, 1, De Judiciis. Mr. Burge
has expressed his own opinion in the following words: “It may, perhaps, be stat-
ed as the correct rule, that where an obligation or an exemption is annexed to the
personal estate, but no similar obligation or exemption is annexed to the real es-
tate, the lex loci domicilii will prevail in whatever country the rights or liabilities
of the heir became the subject of adjudication. But if similar obligations or ex-
emptions are annexed to the personal and real estate by the respective laws, to
which the succession to these two species of property is subject, and the effect of
adopting the one law rather than the other would be to throw on the one estate
a burden, or confer on it an exemption not annexed to it by the law of the coun-
try which governed the succession to it, it would be the more just and correct
rule to adopt the lex loci rei site, rather than the lex loci domicilii. The case of
Drummond and Drummond would seem to warrant the adoption of such a rule,
nor is the decision in the Bishop of Metz’s Succession at variance with it. The
lex domicilii had alone annexed to the personal estate an exclusive liability to pay
the debts, and no such liability was annexed to the real estate by the loci rei
site. The only liability which was annexed to the real estate by that law, was an
obligation to contribute with the personal estate ; but such a contribution could
not take place, because the personal estate was subject to a law, which made it
exclusively applicable, and therefore the liability to contribute could only exist,
when the personal estate was subject to the same law as the real estate.” 4 a
Comm. on Col. and For. Law, Pt. 1, ch. 15, p. 782, 783.
1 Ante, § 479 a to 479 n,
§490-491 6.] SUCCESSION AND DISTRIBUTION. 665

decree, the House of Lords, deeming it a question of American
law, established the same construction.!

§ 491. In another case, the same principle was adopted; and
the court laid down the rule, that in the construction of a will;
the lex domicilit must govern, unless there is sufficient on its face
to show a different intention in the testator. The facts were
these. A lady, a native of Scotland, was domiciled in England.
On avisit to Edinburgh she made a will entirely in the Scotch
form, and it was deposited with the writer at Edinburgh. She
had personalty in England only, and died in England. Scotland,
then, was the domicilium originis et forum contractus ; but, on the
other hand, England was the forum domicilit and the locus ret
site. The question was, whether by the legatee’s death in the
lifetime of the testatrix the legacy lapsed according to the law of
England, or survived to the legatee’s representatives according to
the law of Scotland. The court decided, that being domiciled in
England, it was to be presumed, that she intended the law of Eng-
land to be applied ; and, that there was not enough in the will to
repel that presumption.”

[*491 a. It has lately been decided in the English court of
Probate and Matrimonial Causes,’ that the right of succession to
personal estate, and who is the person entitled, must be determined
by the law of the place of domicil of the intestate; and that the
decisions of the courts of that place are decisive upon these ques-
tions. Thus where one domiciled through life in Portugal, and who
died without ever having been married, leaving one natural son,
left personal estate in England, it was held, that this son having
instituted a suit in Portugal and obtained a decree by the supreme
court of Lisbon; by which he was declared entitled to the whole
movable and immovable property of the deceased father, the Eng-
lish courts would regard that decision, being made upon full hear-
ing of all the parties interested, as conclusive of the right of suc-
cession to such personal estate in England.

§ 491 5. So where one deceased in Connecticut domiciled there,
leaving a will duly executed according to the law of that state,
and where his principal property was; also left personal estate

? Gordon v. Brown, or Brown v. Brown, 3 Hagg. Eccl. R. 455, note; S. C.
Wils. & Shaw, p. 28; ante, § 479 ¢.

” Anstruther y. Chalmers, 2 Simons, R. 1; 3 Hagg. Eccl. R. 455; Yates v.
Thomson, 3 Clark & Finnell. R. 544, 570; ante, § 479 c.

[*® Crispin . Daglioni, 9 Jur. N. S. 653.

56 ¥

a
666 CONFLICT OF LAWS. (cH. xu.

in New York, which rendered it necessary to take administration
there ; after the funds within the latter state had been collected,
some of the legatees who had come to reside in that state after the
testator’s death, claimed that such funds should be there distrib-
uted, there being a difference of opinion between the surrogate
there and the courts in Connecticut, as to the construction of the
will; it was held by the court of appeals in New York, that the
surrogate should have remitted the funds in that state to the
courts of Connecticut for distribution.

§ 491 c. And in another case in the same court? it was held,
that whether a deceased person died intestate or not, must be
determined by the law of the place where he was domiciled at the
~time of his death. That is the law which prescribes the requisites
to the valid execution of+a will of personal estate. Accordingly,
where a citizen of South Carolina executed his will, in such a
manner as to create a valid bequest of personal estate, by the
law of that state, but not according to the law of New York, into
which state he subsequently removed and died, having his domicil
in that state, it was held that he died intestate as to personal es-
tate within that jurisdiction.

§ 491 d. The language of an English will is held so completely
subject to the constraction of the English law, as before stated, that
a bequest contained in such a will to the child of A. who resided
and was domiciled in France and had there a natural child, which
which was, by the law of that country, rendered legitimate by the
subsequent marriage of the parents, cannot be claimed by such
child, who is, according to the English law, still illegitimate and
jilius nullius® So also, a bequest to the children of one who co-
habited with a woman in England and had children by her in Eng-
land, and subsequently removed to Holland, where they continued
to cohabit, and had children both before and after their marriage,
which took place while they were domiciled in Holland, by which
all the children became legitimate by the law of that country, will
not carry anything to the children born in England, whose illegit-
imacy is irretrievably fixed by the law of the place of birth.4]

1 Parsons v. Lyman, 20 N. Y. Court of App. 103.

* Moultrie v. Hunt, 23 N. Y. Court of App. 394.

* Boyes v. Bedale, 12 Weekly Reporter, 232, before Vice-Chancellor Wood.

* Goodman v. Goodman, 3 Giff. 643. This case, to be strictly consistent with
the preceding one, should have excluded all the children born before marriage.
But it admitted all the children born in Holland. Ante, § 93 w.]
CH. XU] FOREIGN GUARDIANSHIPS. 667

CHAPTER XIII.

FOREIGN GUARDIANSHIPS AND ADMINISTRATIONS.

[*§ 492. Foreign guardians and administrations.
§ 498, English guardians perform the duty of tutors and curators.
§ 494. Does the authority of guardians extend beyond the place of appointment ?
§ 495-497. Many foreign jurists claim that it extends everywhere, as to the person
of the ward.
‘4.498. Others deny that it extends beyond the jurisdiction appointing.
§ 499. In England the question seems doubtful ; in America the authority of guar-
dians is strictly local.
§ 500-502a. The foreign jurists generally claim that the power of guardians over
personalty extends everywhere; but as to the realty, that it is local.
§ 503. In Scotland it is claimed to be the same.
§ 504. By the common law the authority of guardians as to realty is local.
§504a@. The same rule both in England and America extends to personalty.
§505-505c. The question is debated among foreign jurists, how far the domicil of
the minor follows that of the guardian.
§ 506. In England and America, minors have the same domicil as the father, and after
‘his death the same as the mother.
* §507. Definitions affecting succession in the Roman law.
§ 508. Executors and administrators administer only the personalty.
§ 509. As to realty the heir must be such according to the law rei site.
4510. The extent of title to personalty by the civil law.
§ 511. Some writers distinguish between the power of executors and administrators.
§512. Their power is limited, strictly, to the place of grant.
§513, The funds must be administered by the local courts.
§513a. The English ecclesiastical courts claim jurisdiction over all personalty.
§514. But strictly an executor or administrator has no such power.
§514@, And they are not responsible beyond their jurisdiction.
§ 514. Not even when they carry the funds of the estate abroad.
§ 515, 515a. Doubted if payment to a foreign administrator is good.
§ 516. The administrator after reducing property to possession has perfect title, and
so of a specific legatee.
§ 517. How far the administrator may transfer negotiable paper.
§517a. Distribution among legatees may be made in foreign countries.
§ 518. Primary and ancillary administrations and their relations.
§ 519. Property in transitu, to what jurisdiction belongs.
§ 520. Such property coming into place of domicil, rightfully administered.
§ 521. Property in mail stages in different states and in transitu.
§ 522. Judgments in favor of administrators personal.
§ 528. Real assets only disposable in loco rei site.
§ 524. Assets marshalled according to the law of the place of administration.
§ 525. Preferences are local ; each state will, therefore, prefer the rule of its own law.
§ 526, 527. The foreign jurists claim they should be allowed by the lex domicilit.
§ 528. Charges on real estate how marshalled in different states.
§ 529. The rule of the.Scottish law on the subject.
§ 5290, The rights of foreign administrators have been discussed in America.
668 CONFLICT OF LAWS. [cH. xuL

§ 5295. Principal administrator cannot be held to account for goods received in
foreign jurisdiction. ;
§ 529 c. Judgments in one jurisdiction not conclusive against the estate in another.
§ 529d. The true relations of primary and ancillary administrations.
. §529e. The local administrator solely responsible for effects within his jurisdiction,
§ 529 Each state administration independent of all others. ;
§ 5299. The jurisdiction of the national tribunals in the settlement of estates.
§ 529. Creditors may pursue their claims to judgment in that court.
,§ 5292. Such judgments not barred by not being brought before commissioners.
May be enforced in equity.
§ 529k. One who sues in his own right need not have administration.
§ 529/. This rule will not apply to choses in action belonging to the estate.
§ 529 m. Comparative authority of state and national courts.]

§ 492. Tue order of our subject next leads us to the consider-
ation of the operation of foreign laws in relation to persons act-
ing in autre droit, such as guardians, tutors, and curators inter
vivos, and executors and administrators post mortem.

§ 493. And first, in relation to guardians.1 By the Roman
law guardianship was of two sorts, (1.) Tutela, and (2.) Oura,
The first lasted in males, until they arrived at fourteen years of
age, and in females, until they arrived at twelve years of age,
which was called the age of puberty of the sexes respectively,
From the time of puberty, until they were twenty-five years of
age, which was their full majority, they were deemed minors, and
subject to curatorship. During the first period of tutelage, their
guardian was called tutor, and they were called pupils; during
the second period, their guardian was called curator, and they
were called minors.? In England the guardian performs the offi-
ces both of a tutor and a curator under the Roman law. In
France, the tutorship lasts until the full age of majority .*

§ 494. In treating of guardianship, two questions naturally
arise ; (1.) Whether the authority of a guardian over the person
of his ward is local, and confined to the place of his domicil, or
extends everywhere? (2.) Whether the authority of the guar-
dian over the property of his ward is local, or extends every-
where ?

* See 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, § 5, p- 1001 to 1014.

* 1 Domat, Civil Law, B. 2, tit. 1, p. 260; Halifax, Analysis of Civil Law, ch.
9, p. 15, 17, 18; 1 Brown, Civil Law, B. 1, ch. 5, p. 129,180. See also Ersk.
Inst. B. 1, tit. 6, § 1, p. 128.

* Halifax, Analysis of Civil Law, ch. 9, p. 15, 17, 18; 1 Brown, Civil Law, B.
1, ch. 5, p. 129, 180.

* 1 Domat, Civil Law, B. 2, tit. 1, p. 261.
§492-497.] FOREIGN GUARDIANSHIPS. 669

§ 495. In regard to the first point, (the authority of the guar-
dian over the person of his ward,) Boullenois maintains, that the
laws, which regulate it, are strictly personal; and therefore that
the authority extends to the ward in foreign countries, as well as
at home ; and is of equal validity and right, according to the law
of the domicil, in every other place. ‘Je mets (says he) au
nombre des statuts personnels, ceux qui mettent les enfants sous la
puissance de leur pére, ou de leur tuteur.”1 From this, it would
seem to follow, that the tutor is to be recognized, as fully entitled
to assert any claims over the movable property of his ward, and
to sue for the debts due to his ward in foreign countries, without
having any confirmation of the guardianship by the local authori-_
ties.

§ 496. Merlin expressly holds the same doctrine, asserting that
the foreign guardian, in such a case, is competent to maintain
any suit for the debts due to his ward in France and in the
Netherlands, without any interposition of the local authorities,
to confirm the guardianship.? “ JJ est (says he) de principe, que
les procurations revétues de la forme requise par la loi du lieu, ov
elles se passent, ont leur effet partout. Aussi ne s’est-on jamais
avisé de prétendre, que le tuteur nommé @ un mineur, ou a un
interdit, par le juge de son domicil, ne pit agir dans un pays
étranger contre les débiteurs d’un ou de l'autre, qu aprés avoir fait
déclarer le jugement de sa nomination exécutoire dans ce pays.” *

§ 497. Vattel lays down a similar doctrine in more compre-
hensive terms. “It belongs, (says he,) to the domestic judge to
nominate tutors and guardians for minors and idiots. The law
of nations, which has an eye to the common advantage and the
good harmony of nations, requires, therefore, that such nomina-
tion of a tutor or guardian be valid and acknowledged in all
countries, where the pupil may have any concerns.”® This is
also the opinion of Huberus, as we have already seen ;° and it is
stoutly maintained by Hertius. After having stated the rule, he

? 1 Boullenois, Observ. 4, p. 51; Id. p. 68; ante, 57; (2 Boullenois, Observ.
39, p. 320, 880, 2

* 8 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, § 5, p. 1002, 1003.

* Merlin, Répertoire, Absens. ch. 3, art. 8, p. 37; Id. Faillite, § 2, n. 2, art. 9,
10, § 2, p. 412. See also Id. Autorisation Maritale, § 10, art. 2; ante, § 53, 54,

* Merlin, Répertoire, Faillite, § 2, n. 2, art. 10, p. 414; ante, § 53, 54.

® Vattel, B. 2, ch. 9, § 85.

* Ante, § 60.
670 CONFLICT OF LAWS. , [cH. xm

adds: Ratio hujus regule est evidens. Persona enim subditi qué
talis nemini alii est subjecta, quam summo imperanti, cui se sub-
misit. Unde fit, ut leges, que persone qualitatem sive characte.
rem impuniunt comitari personam soleant, ubicunque etiam locorum
versetur, tametst in aliam civitatem migraverit, veluti st quis,
magis infamis, vel prodigus declaretur.. Hinc tutor, (says he,)
datus in loco domicilii, etiam bona alibi sita administrat. He
applies this rule, however, solely to personal rights and personal
incapacities, rights of property and power over movables. For
in respect to immovables, he adds this important qualification :
Quoniam ipsi fatemur, si externa civitas circa bona immobilia
aliquid directe disposuit, eam legem servari oportere* Stock-
mans holds a broader opinion. Twtor etiam pupilli a Pretore
authoritatem et administrationem swam extra territoriam Pre-
toris, et in bona ubicunque locorum sita exercet.2 Indeed, this
same doctrine is commonly asserted by all those foreign jurists,
who give to personal laws an ubiquity of operation.*

§ 498. On the other hand there are jurists, who maintain a
different opinion. Paul Voet denies, that laws respecting either

1 1 Hertii, Opera, De Collis. Leg..§ 4, n. 8, p. 123, 124, edit. 1737; Id. p. 175,
edit. 1716; ante, § 51.

° Thid.

§ Stockman. Decis. 125, n. 6, p. 262. Dumoulin is thought to hold the same
opinion; but it may well be doubted, if it admits of that interpretation. Post,
§ 502a; Molin. Opera, Tom. 3, Comm. ad Cod. Lib. 1, tit. 1, 1. 1, Conclus. de
Stat. p. 556, edit. 1681. Matthzeus, who has also been cited on the same side, cer-
tainly does not hold the opinion. His language is: Sed etsi silentio suo quodam-
modo approbare videatur curatorem a judice domicilii datum, vix tamen est, ut
curator illa predia alibi sita proscribere ac vendere possit, sine speciali permissy
ejus judiciis, in cujus territoria sita sunt, Sic enim et Tutor hodie a judice domi-
cilii datur; nec tamen universorum negotiorum et bonorum administrationem
consequitur, nisi cesset judex ejus territorii, in quo pradia sita sunt. Matthzus,
de Auctionibus, Lib. 1, ch. 7, n. 10, p. 39. See also 8 Burge, Comm. on Col. and
For. Law, Pt. 2, ch. 28, § 5, p. 1002, 1003. He says: “ The appointment of tu-
tor or guardian, committees or curators, so fat as it confers the care and custody
of the person of the minor or lunatic, could not consistently with the principles of
international jurisprudence be made by any other judicial tribunal but that of the
country, to which the minor or lunatic was: by his residence subject. According
to the opinion of foreign jurists, every judicial tribunal is bound to recognize this
appointment. They consider, that the law, which places the minor or lunatic sub
tutela or sub cura is a personal law, affecting the status of the person, and that
the relation of tutor and ward, which it has constituted, continues to exist not-
withstanding the persons may have resorted to any other country.”

* 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, § 5, p. 1004, 1005.
§ 497 -499.] FOREIGN GUARDIANSHIPS. 671

persons or property, have in the sense of the civil jurisprudence,
any extra-territorial authority, and lays down among others the
following rules: (1.) that a personal statute does not affect the
person beyond the territory of his domicil, so that he is not to be
reputed such without the territory, as he was within; (2.) that a
personal statute accompanies the person everywhere, in regard to
property within the territory of the government, where the per-
son has his domicil, and to which he is subjected.! He adds, that
he makes no distinction in this respect, whether the statute be in
rem or in personam; or, whether it purports to extend to property
situate in a foreign territory or not, directly or indirectly ; for the
same rule applies in each case. Quia nullum statutum, sive in
rem sive in personam, si de ratione juris civilis sermo instituatur
sese extendit ultra statuentis territorium.2 He qualifies his doc-
trine, however, by admitting, that movables are always deemed to
be in the place of the domicil of the party, and are therefore
governed by the laws thereof? John Voet, as we have seen,
maintains a similar opinion in the broadest and most unqualified
terms.*

§ 499. It would seem from Morrison’s case,° that the House of
Lords deemed the authority of an English guardian sufficient to
institute a suit for the personal property of his ward in Scotland,
upon the ground, that the administration of his personal estate,
granted by the usual authority, where he resided, must be taken
to be everywhere of equal force with a voluntary assignment by
himself. The courts of Scotland had unequivocally decided the
other way. Whether this decision has since been acted upon in
England does not distinctly appear. It has certainly not received
any sanction in America, in the states acting under the jurispru-
dence of the common law. The rights and powers of guardians’
are considered as strictly local ; and not as entitling them to exer-
cise any authority over the person or personal property of their
wards in other states, upon the same general reasoning and

1 P. Voet, De Stat. § 4, ch. 2, n. 6, p. 128, edit. 1716; Id. p. 137, edit. 1661.

1 Id. n. 7, p. 124, edit. 1716; Id. p. 138, edit. 1661 ; ante, § 51 b, § 52.
~% Ante, § 52, 377.

* Ante, § 54 a.

5 Cited in 4 T. R. 140, and 1 H. Black. 677, 682.

* See Beattie v. Johnstone, 1 Phillips, Ch. R. 17; 10 Clark & Finnell. R. 42,
where the point is ruled the other way.
672 CONFLICT OF LAWS. [cH. xm.

policy which have circumscribed the rights and authorities of
executors and administrators.
§ 500. In regard to the other point, whether guardians unui
ed in foreign countries have any authority over the property of
their wards, situate in other countries, foreign jurists are gener-
ally, although not universally,.of opinion? in respect to movable
property, that since it is deemed to be in the domicil of the owner,
the law of the domicil is to govern, and the rights and powers of
the guardian, tutor, or curator over it, ought to be admitted to
prevail everywhere to the same extent as they are acknowledged
by the law of the domicil.? But in respect to immovable property,
foreign jurists as generally, although not universally, maintain the
doctrine, (whatever may be the rule, as to movable property,) that
the rights and authority of guardians are circumscribed by the
laws of the territory of their appointment, and do not extend to
other countries where the immovable property is situated. In
other words, the laws ret site are to govern; and a guardian in
one country can claim nothing in another, except in the form and
manner, and under the regulations prescribed by the local law.
Burgundus states the doctrine with great clearness. Speaking of
the capacity and incapacity of minors, he says: Proinde confiten-
dum est, si aliquid circa rem alterare minor velit, ut puta, alienandi
vel. hypothecandi facultatem exigere, ibi sane veniam impetrari de-
bere, ubi bona sunt sita.t Nam et Constitutio Diocletiani in aliena-
tione manifesté requirit decretum Presidis ejus provincie, in quo
predium minoris est situm. He then adds: Nec immerito Felinus
scripsit, st facienda est dispensatio respectu ret, non ejus episcopi
esse erit, cui persona subjecta est, sed ad eum spectare cut res sup-
ponitur. He says, that a different reason is given by others. Cu-
jus rei rationem alii tradunt, quia per ejusmodi dispensationem
alteratur, et reinstatur natura ipsius beneficia et non persona® He
then states a qualification of the doctrine in cases, where the venia
@tatis is obtained, saying: Ergo, e contra, si venia etatis in hoc
. duntaxat impetretur, ut actus personales minor celebrare et pera-
* Morrell v. Dickey, 1 Johns. Ch. R. 153; Kraft v. Wickey, 4 Gill & Johns. R.
332,
* See Mublenbruch, Doctr. Pand. Lib. 1, P..1, § 72, p. 167, 168.
® Ante, § 495 to § 498; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 28,
§5,p.1010, 1011.’

* Burgundus, Tract. 1, n. 12, p, 23.
§ Ibid. n. 13.
§ 499 - 500 a.] FOREIGN GUARDIANSHIPS. 673

gere possit, veluti bonorum suorum administrationem consequi,
contractus et obligationes inire, sane hoc casu postulare debebit a
judice domicilit, cui in personas plenum jus est attributum. But
whether it exists or not is immaterial, as Burgundus in another
passage speaks directly on the present point. Unde feré obtinuit,
ut Judex domicilii, ubi et mobilia, rationesque et instrumenta repe-
riuntur, tutelam solus deferat. Sed non aliter universorum bono-
rum administrationem consequitur, quam-si supersedente judice
situs, solus tlle constituatur.2 This, however, is a qualification by
no means generally conceded or admissible.

§ 500 a. We have already seen, that Hertius, and Mattheus,
-and Paul Voet, and John Voet, hold the opinion, that the guar-
dian has not, by virtue of his appointment in the place of the
domicil of his ward, any rights or authorities over the immovable
property of his ward in a foreign country. Paul Voet in another
place adds: Verum @ contractibus proprie sic dictis, me conferam
ad quasi contractus, et quidem tutela, vel curatele. Ubi sequentia
‘ecaminanda. Quid si pupillo dandus sit tutor, illene dabit, ubi
pupillus domicilium habet, an ubi bona pupilli immobilia sita sunt ?
Respondeo; Quamvis regulariter ab illo Magistratu detur tutor,
ubt pupillus domicilium habet, ubi parentes habitarunt; etiam qui
dat tutorem, eum primario persone, non ret dedisse, censeatur ;
adeoque is, qui simpliciter datus est, ad res omnes etiam in diver-
- sis Provinctis sitas, datus intelligatur ; Id quod plerunque jure
Romano obtinebat, quo diversarum Provinciarum Magistratus, uni
suberant Imperatori. Ne tamen videatur Judex domicilii nike ex-
tra territorium fecisse, non prejudicabit Judici loci, ubi nonnulla
‘pupillaria bona sita, quin et tutorem pupillo ratione illorum bono-
rum, scilicet immobilium, ibidem recte dederit. Unde etiam si de
prediis minorum alienandis contentio; si quidem in alia sita sint
Provincia, titius egerit tutor, qui datus est in loco domicilit, si de-
cretum ab utroque, Judice curet interponi, et domicilii pupilli, et
ret site. Even those jurists who contend, that permission ought
to be given by the local judge to such a guardian to administer
‘such foreign immovable property, at the same time concede, that

* Ibid. n. 14, p. 24; 1 Boullenois, Observ. 9, p. 150; Id. Observ. 6. p. 129.
© Bangundos Tract. 2, n. 18, p. 69.
® Ante, § 497, 498,
* P. Voet, de Statut. § 9, ch. 2,n.17; Id. n. 19, p. 270, 271, edit, 1715; Id.
Pp: 329 to 331, edit. 1661.
CONFL. 57
674 CONFLICT OF LAWS. [cn. xm.

without such permission the guardian cannot exercise any rights
or authorities over it John Voet says: Non autem in loco origi-
nis vel situs rerum pupillarium, sed tantum in loco domicilii pupil-
laris tutores @ loci illius camerd pupillari aut magistratu creari,
moris est ; gut hoc ipso dati intelliguntur universo pupilli patrimo-
nio, ubicunque existenti. Quod tamen ex comitate magis, quam
juris rigore sustinetur ; cum in casu, quo pupillus immobilia habet
sita in eo loeo, qui non subest eidem magistratui supremo, cui pu-
pillus subest ratione domicilii, magistratus loci, in quo sita immo-
bilia, rebus in suo territorio existentibus peculiarem posset tutorem
dare?

§ 501. Boullenois, after stating, that in France the principal
object of guardianship is not so much the custody of the person,
as of property, adds, that it has in view the administration and
direction of property (biens), and that the rights, which it grants,
are all real rights. La garde consiste, ou en droits de propriété,
ou en droits d’usufruit ; et il ny a rien de plus réel, que ces sortes
de droits. Par conséquent elle ne peut étre régie, que par la loi
de la situation. C'est cette Loi, qui donne, ou ne donne pas; qui
appelle certaines personnes, ou qui ne les appelle pas. De la il
semble, qwil faudroit nécessairement en conclure, que chaque cou-
tume, qui admet la garde, et av il y a des biens, a seule le droit de
déférer la garde, a@ qui bon lwi semble; et qwil ny a que ceux, &
qui elle la défére, qui puissent étre gardiens, quelque domicile
@ ailleurs, qu’aient ceux, qui tombent en garde, et ceux, qui sont
appelés @ la garde® We admits, that there are jurists who assert
the contrary.* ;

§ 502. Hertius, as we have seen, asserts the same doctrine as
to immovable property. Froland arranges himself on the side
of those who assert the reality of the laws which respect guardian-
ship, distinguishing, however, as to the quality of persons entitled,

1 3 Burge, on Col. and For. Law, Pt. 2, ch. 23, p. 1004 to 1007. '

2 J. Voet, ad Pand. Lib. 26, tit. 5, § 5, Tom. 2, p. 188; Id. Lib. 1, tit. 4, Pt. 2,
§ 8, 7, Tom. 1, p. 89, 40. See, also, other foreign jurists cited, 3 Burge, Comm.
on Col. and For. Law, ch. 23, p. 1005, 1006, 1007.

8 2 Boullenois, Observ. 29, p. 320, 821, 322, 339, 340; 8 Burge, Comm. on Col.
and For. Law, Pt. 2, ch. 23, p. 1001, 1002.

* Thid.

5 Ante, § 497; 1 Hertii, Opera, De Collis. Leg, 4, n. 8, p. 128, 124, edit. 1787;
Id. p. 175, edit, 1716.
§ 500 a=503.] _ FOREIGN GUARDIANSHIPS. 675

the right of possessing the property, a the formalities accompa-
nying it.

§502 a. Dumoulin holds the opinion, that the lex rei site
is to govern in all such cases; and explains himself with un-
usual fulness on the point. Aut statulum agit in personam, et
tune non includit exteros, sive habiliter, sive inhabiliter per-
sonam, unde st statuto hujus urbis cavetur, quod contractus facti
per minorem 25, annis non valeant sine consensu suorum pro-
pinquorum, et authoritate Judicis, non intelligitur, nisi de sub-
ditis sue jurisdictioni per text. 1. 1, in fin. ff. de curat. et tutor.
dat. ab his. Unde minor dicti loci non poterit etiam extra locum
predia, in eo territorio sita, locare sine dicta solemnitate: Sed
bene extra locum predia alibi sita. Quia in quantum agit in
personam, restringitur ad suos subditos; et in quantum agit in
res, restringitur ad sitas intra suum territorium. Exterus autem
minor annis poterit etiam de sitis intra locum dicti statuti etiam
inter locum illum disponere: Quamvis is, qui datus est tutor vel
curator @ suo competenti judice, sit inhabilitatus propter tutelam,
et curam ubique locorum pro bonis ubicumque situs. Quia non
est in vim statuti solius, sed in vim juris communis, et per passt-
vam interpretationem legis, que locum habet ubique.2 Kverhar-
dus holds the same opinion. Ubi ratione diversarum jurisdic-
tionum et territoriorum diversi judices dant tutores, et unus non
intromittat se de territorio alterius; semper enim inspicienda est
consuetudo loci, ubi res sunt site, maxime quoad immobilia?

§ 503. Lord Kames lays down the Scottish doctrine to be, that
it is of no importance in what place curators of minors are chosen ;
and accordingly, a choice made in England of curators, whether
English or Scotch, will be held effectual in Scotland. He admits, ©
that the powers of a guardian of a lunatic in England, are limited,
extending only to his person, and not to his estate ; or rather, that
different guardians are, or may be, appointed by the Court of
Chancery for each. But the authority of any guardian or cura-
_ tor, however appointed, in a,foreign country, is not understood
' by him to extend fo any real estate in Scotland.‘

1 Froland, Mém. ch. 16, p. 717, 749, 750, 752.

* Molin. Opera, Tom. 3, ad Cod. Lib. 1, tit. 1, L. 1, Conclus. de Statut. p. 556,
edit. 1681; ante, § 497, note. See, also, Rodenburg, De Divers. Statut. tit. 2,
ch. 5, n. 16 ; 2 Boullenois, Appx. p. 47 to 51.

* Everhard. Consil. 185, u. 3, p. 406.
* 2 Kames, Equity, B. 3, ch. 8, § 1, p. 825; Id. § 4, p. 348.
676 CONFLICT OF LAWS. [cH. XIIL

§ 504. There is no question whatsoever, that, according to the
doetrine of common law, the rights of foreign guardians are not
admitted over immovable property, situate in other countries.
Those rights are deemed to be strictly territorial; and are not
recognized as having any influence upon such property in other
countries whose systems of jurisprudence embrace different regu-
lations, and require different duties and arrangements.’ No one
has ever supposed that a guardian, appointed in any one state of
this Union, had any right to receive the profits, or to assume the
possession, of the real estate of his ward in any other state, with-
out having received a due appointment from the proper tribunals
of the state, where it is situate. The case falls within the well-
known principle that rights to real property can be acquired,
changed, and lost only according to the law rei site?

§ 504 a. The same rule is applied by the common law to mov-
able property, and has been fully recognized both in England and
in America. No foreign guardian can virtute officti exercise any
rights, or powers, or functions over the movable property of his
ward, which is situated in a different state or country from that,
in which he has obtained his letters of guardianship. But he
must obtain new letters of guardianship from the local tribunals,
authorized to grant the same, before he can exercise any rights,
powers, or functions over the same. Few decisions upon the
point are to be found in the English or American authorities,
probably because the principle has always been taken to be un-
questionable, founded upon the close analogy of the case of for-
eign executors and administrators.®

§ 505. Whether a guardian has authority to change the domi-
cil of his ward from one country to another, seeing that it may
have a most important operation, as to the succession to his mov-
able property, in case of his death, is a matter which has been
much discussed. In favor of the affirmative there are some dis-

e

* See 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 28, § 5, p. 1009, 1010,
1011.

* Ante, § 424; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 28, § 5, p.
1005, 1006, 1009, 1010.

* 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 28, § 5, p. 10113 Id. p. 1010}
ante, § 499; Morrell v. Dickey, 1 Johns. Ch. R. 153; Kraft v. Wickey, 4 Gill &
Johns. R. 322, 340, 341; 4 Cowen, R. 529, note; post, § 512, 513. But Mr. Ch.
Walworth seems to have thought otherwise in McNamara v. Dwyer, 7 Paige, R.
239, 241.
§504 -505.] FOREIGN GUARDIANSHIPS. 677

tinguished foreign jurists, among whom we may enumerate Byn-
kershoek, Bretonnier, Rodenburg, and John Voet. Bynkershoek
says: Posse tutorem pupilli sui domicilium mutare, perinde ut
potest parens superstes, nescio quisquam serio dubitaverit, si suc-
cessionis legitime causa non versetur; nam si hec versetur, multa
disputatio est. Sed an hec quoque valebunt, si superstes parens
vel tutor domicilium minoris transferat, ut ejus, intestati mortui
alia sit successio quam ante fuit? He proceeds then to discuss
the question, and comes to the conclusion, that he may. Sie
puto. Scio impuberem, vel minorem proprio marte non recte
domicilium suum mutare; sed quid ni non posset, qui eum re-
presentat, et quid ni non posset cum omni effectu, nisi qua lex
sit, que impediat?1 Rodenburg says: Queramus et illud quod
frequentioris est incursionis; Hollandus major viginti, minor
viginti quinque annis transfert domicilium Ultrajectum, ubi vige-
simo anno tutela vel cura finitur. Quid dicemus perventurum
illum suam in tutelam? Respondi ex facto consultus minori
hodie constituendi domicilii, facultatem non esse, tutori esse; quit
ut contrahere, ita et domicilium potest constituere, quod collocetur
illud per contractum, de quo mox latits.. Proinde in proposita
mihi specie, cum mater, que tutriz esset, mutato &@ morte viri
domicilio, Ultrajectum concessisset, ibique infans adolevisset: dixi
ex Ultrajectinis legibus estimandos perfecte etatis annos ; dum-
modo fraus absit, aut prejudicium tertiit, extra quod, vix est ut
non dixeris tutori, maximé matri locum ad habitandum, pupillum-
que educandum, elegendi Jus esse, illudque ipsum dubti veriti Ba-
tavi Jurisconsulti tutori agnato auctores fuerunt, ut stipularetur @&
.matre illa, cum cogitaret ex Hollandia concedere Trajectum, ne ea
res infantis adspectu ullo. modo domicilii mutationem induceret ;
quamquam fateor, si quid hoe'ad rem pertinet, positd hdc senten-
lid, in potestate tutoris fore, tuteld semet ocits exuere, nisi tum
potiis super fraude querendum foret2 John Voet says: Plane,
si etiamnum minorennis sit, patre vel matre vidud domicilium
mutante, filium etiam videri mutasse, si et ipse translatus sit,
nec ex prioris sed novi, domicilii, @ patre matreve recenter con-
stituti, jure censert in dubio debere, rationis est. Utut enim
haud dificulter admittendum sit, minorennem non mags posse
domicilium mutare, quam contrahendo se obligare: tamen quem-
' Bynkers. Quest. Privat. Juris. Lib. 1, ch. 16, p. 174 to p. 186, edit. 1744,

* Rodenburg, De Div. Stat. tit. 2, ch. 1, § 6; 2 Boullenois, Appx. p. 57, 58.
57 *
678 CONFLICT OF LAWS. (cH. xm.

admodum contrahere auctore:-tutore permissum et est, ita et domi-
cilium cum patre matreve, tanquam tutele ejus aut saltem educa-
tioni prepositd, tutoribus ceteris non contradicentibus, mutare
nihil vetat: nisi ex circumstantiis manifestum esset, talem domi-
cilii pupillaris translationem in fraudem proximorum, spem suc-
cessionis ex prioris domicilit lege habentium, factam esse.

§ 505 a. Bynkershoek thinks it impracticable to make any
such exception of cases of fraud from the intrinsic difficulty of
ascertaining, what circumstances shall constitute evidence of a
fraudulent change of domicil.2~ Burgundus seems to hold with
Bartolus, that the domicil of the guardian is also the domicil of
the minor. Pupilli tpsi sibi constituere domicilium non possunt.
Bartolus autem ibi sensit habere domicilium, ubi cum tutoribus,
sive aliter habitaverint. Que sententia ita demum mihi vera
videtur, nisi in academiam studiorum causa, vel alio profecti,
remanendi animo ibi non Steterint. Qui veniam etatis impetravit,
ef proprie negotiationt commodisque subservit, ipse sibt minor
domicilium instruere potest. Uxor ibi censetur habere domicilium,
ubi maritus habitat. Legitimd tort separatione factd, ipsa sibi
domicilium instruet3

§ 505 6. Boullenois has spoken with so little clearness and pre-
cision on this subject, that it is not very easy to say with entire
exactness, what is his opinion. From the best examination,
which I have been able to make of his various discussions of this
subject in his different works, he seems to, have thought, (1.)
That the law of the actual domicil of the parents of a minor con-
stituted the rule to regulate the succession to the minor if he died
during his minority, although it was not the domicil of his birth,.
but was acquired by his parents afterwards. (2.) That the like
rule did not apply to the case of a minor under tutelage ; and that
his guardian could not by a change of domicil change the succes-
sion to the property of the minor. (8.) That, hence, if a minor,
following the change of domicil of his parents, should die, his
movable estate would be governed by the law of succession of the
new domicil, if there was no fraud in the removal. (4.) But
that there was no reason, why a minor might not be reputed dom-
iciled in the domicil of his guardian, so far as the law of that dom-

1 J. Voet, ad Pand. Lib. 5, tit. 1, § 100, Tom. 1, p. 347.

2 Bynkers, Quest. Jur. Priv. Lib. 1, ch. 16, p- 182, 183, edit, 1744.
5 Burgundus, Tract. 2, n. 84, p. 80, 81.
§505 - 505 5.) FOREIGN GUARDIANSHIPS. 679

icil would confer on him particular faculties or privileges; and
that, therefore, if the law of the domicil of the guardian would
give him the power of making a testament of his movables, he
might make one conformable to that law; for it is but just, that,
in such a case, a person domiciled there, even although a minor,
should be held subject to the real laws, or laws in rem, of the
place, where he is domiciled without fraud.1

1 Boullenois, Dissert. sur Quest. de la Contrar. des Lois, Quest. 2, p. 59 to 62;

2 Boullenois, Observ. 32, p. 49 to 58. — It may not be unacceptable to give some

extracts from Boullenois in this place. He says‘in his Dissertations: En effet, il

y a plusieurs raisons, pour lesquelles le dernier domicile du pére doit régler la

succession mobiliare du fils, lorsqu’ il décede en minorité. La premiere est, que

le fils mineur tombant sous la puissance d’autrui, on n’a pas voulu qu'il put dé-

pendre d’un Tuteur de changer l’orde de succeder au mineur en lui faisant

changer de domicile ; en sorte qu’on n’a pas cru qu’un Tuteur dut avoir la liberté

de donner ou d’éter aux héritiers présomptifs. La seconde est, qu’un mineur

raison de sa minorité est toujours présumé grevé et chargé de fidei-commis envers les

héritiers de celui de qui il a recu les biens qui doivent composer sa succession, et

un Tuteur ne doit pas avoir le pouvoir de déroger & cette espéce de fidei-commis.

Again he says: Sur le. changement de domicile d’un mineur en ce qui touche ses

biens, it semble qu'il y auroit quelque consideration a faire. II paroitroit assez

convenable que la succession d’un mineur au-dessus de la pleine puberté fut

reglée par le domicile de ses pére et mére. Que dés qu'il est pourvu par ma-

Tiage, il puisse se choisir tel domicile que bon lui semblera, et que sa succession

‘mobiliare soit régie par ce domicile. Que le fils mineur en suivant le domicile
du pére, ou de la mere survivante, sa succession mobiliare soit pareillement assu-
jettie aux Loix de ce nouveau domicile, pourvu que d’ailleurs il n’y ait point de
fraude: Que peut faire de mieux un mineur que de continuer de vivre sous l’édu-

cation de celui de ses pére et mére que Dieu lui‘a conservé, et dés qu’il y a pru-

dence et justice dans cette conduite, ce nouveau domicile devient une demeure
juste et Iégitime pour le mineur, dont la succession mobiliare doit suivre le sort.
‘Que le fils mineur qui fait trafic de Merchandises, et qui pour ce, s’est choisi un
domicile soit pareillement en ce qui touche ses biens mobiliers, assujetti & la Loi

du lieu qui a été le centre de sa fortune, et cela paroit indispensable quand le

bien du mineur est un bien d’industrie. II n’y a pas d’inconvenient qu’un mineur

soit reputé domicilié au domicile de son Tuteur, quant aux facultés particulitres

que la Loi de ce domicile peut lui donner ; ¢’est pour quoi si par Ja Loi du domi-

cile de son Tuteur il a faculté de tester de ses meubles, il pourra tester conformé-
ment A cette Loi. Il est juste dans ce cas gu’un domicilié, méme mineur, subisse

les Loix pures réelles du lien ou il est domicilié sans fraude. Mais quant & son

état de majeur, ou de mineur, on ne sgauroit le faire dépendre que de la Loi de

Son origine, par les raisons qui ont été cydevant alleguées. Boullenois, Diss. de la
Contrar. des Lois, Quest. 2, p. 59, 61,62. In his larger Treatise, he says: Au

surplus, ce que nous disons ici pour le cas de la succession mobiliare ab intestat,

doit-il avoir lieu pour le cas d’un testament ? S'il s’agissoit, par exemple, de sa-

voir si'le mineur incapable de tester par la Loi de son domicile de droit, le pour-
680 CONFLICT OF LAWS: (cH. Xu.

. @ 7
§ 505 c. On the other hand, Mornac, Christinzeus, Bouhier, and
Pothier, maintain the opinion in unequivocal terms, that the dom-
icil of a minor, so far as it regards his succession to his estate, can-

roit en vertu de la Loi de son domicile de fait. L’Auteur des Observations sur
Henrys, observe loco citato, que si des enfants mineurs sont mis sous la tutelle d’un
Lyonnois ils pourront faire un testament, lorsqu’ils seront parvenus a la puberté,
parce que les mineurs suivent, & cet égard, le domicile de leur tuteur. Il dit qu’il
Va ainsi décidé en consultation, avec M. Severt, pour le testament du Servieres,
fait 4 l’age de dix-huit ans. Son pére s’étoit marié et établi & Paris: aprés son
décés et celui de sa femme, ses enfants, qui étoient en bas age, furent mis sous la
tutelle de Charles Groflier, leur oncle paternal, domicilié en Lyonnois. Le sieur

de Servieres fils, avant que de partir pour l’armée, ou il fut tué, fit son testament =

au profit d’une de ses sceurs : il fut contesté par une autre seur, et la décision sut
~ pour le testament. M. le P. Bouhier, ch. 21, n. 4, n’adopte pas cette décision, et
javoue qu’elle n’est pas sans difficulté. En effet, puisque la Loi determine le
domicile du mineur, par le domicile du pére, je parle d’un mineur non établi,
pour quoi lui donner deux domiciles, ’'un pour régler sa succession mobiliare, et
Vautre pour régler sa capacité personnelle de tester? Tl n’y a, comme nous
venons de le dire, que le domicile de la personne qui puisse rendre capable celui
qui est incapable ; et puisque le domicile du mineur est fixé au domicile du pére,
comment celui de fait, qu’il peut avoir partout ailleurs, peut-il affecter sa personne,
préférablement 4 son domicile de droit qui est nécessairement, selon la Loi, son
vrai domicile? D’ailleurs un testament apporte toujours un changement dans la
succession légale du testateur, et la‘Loi du domicile de droit qu’a le mineur, ne
lui permet pas de disposer, de ses biens, et de changer rien dans sa succession.
Mais pour le soutien de la décision de MM. Severt et Bretonnier, deux savants
Consultants, ne peut-on pas répondre que le mineur est dans son devoir, quand il
demeure avec son tuteur qui est chargé de son education, qu’il y demeure néces-
,Sairement et sans fraude? A la bonne heure que le domicile de son pere régle
sa succession ab intestat; c’est i’interét des héritiers qui I’a voulu ainsi, et c’est
pour cela qu'il retient le domicile de son pére. Mais si le marriage, si l’émanci-
pation permettent & un mineur de changer de domicile, comme en convient M.
Bouhier lui-méme, et que dans ce cas, le mineur puisse tester conformément & la
Loi du domicile qu’il s’est. choisi, pourquoi ne veut-on pas pareille chose dans le
cas ou le mineur passe, par nécessité, et sans fraude, dans le domicile de son
tuteur ? I] est vrai que dans le cas du marriage et de l’émancipation, la succes-
sion mobiliare de ce mineur se réglera par la Loi de son domicile de choix, et que
je n’en dirai pas de méme par rapport & un mineur qui n’est ni marié, ni éman-
cipé ; mais ce que je ne dirai pas pour le cas de la succession ab intestat, parce
quill y a une Jurisprudence formée & cet égard, je puis le dire pour le cas du
testament, parce que la Loi n’a rien décidé 1a-dessus, et qu’il semble juste de
laisser 4 un mineur, que la mort prévient, une capacité que lui donne la Loi ou il
demeure actuellement, sans fraude. Néanmoins le premier avis me paroit le meil-
leur; un mineur hors le domicile de son pare, avec son tuteur, habite avec lui;
mais il n’est pas proprement domicilié avec lui; il séjourne en attendant sa ma-
jorité ; c’est un plaideur qui attend 1a que le temps lui fasse gagner son proces.”
2 Boullenois, Observ. 32, p. 51 to 53; ante, § 44, note 2, p. 44,
§ 505 c.] FOREIGN GUARDIANSHIPS. 681

not be changed by his guardian. Mornac says: Quesitum est,
mortuo tmpubere, de cujus bonis mobilibus agitur, quod spectari
debeat illius domicilium, utrum patris et matris, an tutoris, apud
quem defunctus est; atque id, quia locus domicilii parentum, et
locus domicilit tutoris contrarias, quoad successiones mobilium, di-
versasque consuetudines ferant. Videbatur nonnullis constituen-
dum domicilium in edibus tutoris, ut qui patrem referret. Pre-
valuit vero eorum sententia, qui domicilium minoris presertim eo
casu in loco originis, id est, in edibus paternis ac maternis collo-
candum dicerent. Cum enim domicilium quatuor modis contrahi
soleat, natura, ac origine, item voluntate, ac concilio, deinde con-
~ventione, aut ex necessitate muneris. Solum ex his naturale dom-
icilium minort superest, locus scilicet, in quo ipse creverit, paren-
lesque defecerint; absurdumque aliud fuerit affingere minori in
ceteris, quod ipse per etatem non habeat illigendi nempe domiclit
consilium. Imo et prestaretur ansa interdum tutoribus fraudandi
veros mobilium minoris intereuntis heredes, transferentibus scili-
cet domicilium in loca, quibus successura sibi viderent ex patriis
moribus, intereunte valetudinario minore desideria.| Christinwus
adopts the very language of Mornac on this subject.2. Bouhier is
equally direct and positive ; holding, that the minor retains the
domicil of his parents, and that it cannot be changed by his guar-
dian. He says that the inviolable rule of the law in Burgundy is,
that the domicil of minors in respect to the succession to their prop-
erty, cannot be changed by their guardians during their minority ;
and he reasons out the doctrine at large.? Pothier takes a dis-
tinction between the case of the domicil of a parent from the
change of domicil of a guardian; and holds, that in the former
case, if a change is made without fraud, the minor follows the
domicil of his parents and of the survivor. But in the case of a
guardian no such effect follows; for the minor is no part of the
family of the guardian, but is like a stranger there, and only for
atime (ad tempus.) *

1 Mornacci, Observ. ad Cod. Lib. 8, tit. 20, Tom. 3, p. 558, edit. 1721.

* Christin. Decis. 176, Tom. 2, p. 204.

* Bouhier, Cout. de Bourg. ch. 21, § 3, p. 383; Id. ch. 23, § 160 to § 167,
p. 441, 452.

* Bouhier, Coutume d’Orleans, Introd. n. 17. He uses there the following lan-
guage. “Il nous suffit de dire, que les mineurs ne composent pas la famille de
leur tuteur, comme les enfans composent la famille de leur pére: ils sont dans
la maison de leur tuteur comme dans une maison étrangére ; ils y ont ad tempus,
682 CONFLICT OF LAWS. [cH. XI.

§ 506. The same question has occurred in England ; and it was
on that occasion held, that a guardian may change the domicil of
his ward, so as to affect the right of succession, if it is done bond
fide and without fraud. In that case the father, a native of Eng-
land, died .intestate, domiciled in Guernsey, leaving a widow and
infant children by her, and also by a former wife. The widow,
after his death, was appointed guardian of her own children, and
in conjunction with the guardian of the children of the first mar-
riage, sold their estate in Guernsey, and invested the amount in
the English funds, and afterwards removed to England with the
children. On the death of some of the children under age, the
question arose, whether their shares were distributable by the law
of England, or by that of Guernsey ; and it was decided by the
Master of the Rolls (Sir William Grant), that it was to be by the
law of England. On that occasion the learned judge said : ‘* Here
the ‘question is, whether, after the death of the father, children,
remaining under the care of the mother, follow the domicil which
she may acquire, or retain that which their father had at his death,.
until they are capable of gaining one by acts of their own. The
weight of authority is certainly in favor of the former proposition.
Tt has the sanction both of Voet and Bynkershoek; the former,
however, qualifying it by a condition, that the domicil shall not

pour le temps que doit durer la tutelle; par conséquent le domicile de leur tuteur
n’est pas leur vrai domicile, et ils ne peuvent étre censés en avoir d’autre que le
domicile paternel, jusqu’’ ce qu’ils soient devenus en fge de s’en établir un eux-
mémes par leur propre choix, et qu’ils l’aient effectivement établi. J] n’en est
pas de méme de la mére: la puissance paternelle étant, dans notre Droit, différent
en cela du Droit Romain, commune au pére et & la mére, la mére, apres la mort
de son mari, succede au droits et & la qualité de chef de la famille, qu’avoit son
mari vis-&-vis de leurs enfans: son domicile, quelque part qu’elle juge de le trans-
férer sans fraude, doit donc étre celui de ses enfans, jusqu’a ce qu’ils aient pu s’en
choisir un, qui leur soit propre. II y auroit fraude, s'il ne paroissoit aucune raison
de sa translation de domicile, que celle de se procurer des avantages dans les suc-
cessions mobiliares de ses enfans. Les enfans suivent le domicile, que leur mére
s’établit sans fraude, lorsque ce domicile lui est propre, et que, demeurant en vi-
duité, elle conserve la qualité de chef de famille: mais lorsqu’elle se remarie,
quoiqu’elle acquérie le domicile de son second mari en la famille duquel elle
passe, ce domicile de son second mari ne sera pas celui de ses enfans, qui ne pas-
sent pas comme elle en la famille de leur beau-pére; C’est pourquoi ils sont censés
continuer @avoir leur domicile au lieu ou l’avoit leur mére avant que de se re-
marier, comme ils séroient censés le conserver, si elle étoit morte.”
* Potinger v. Wightman, 3 Meriv. R. 67; Robertson: on Personal Succession,

197 to 202.
§ 506.] FOREIGN GUARDIANSHIPS. 683

have been changed for the fraudulent purpose of obtaining an ad-
vantage by altering the rule of succession. Pothier, whose au-
thority is equal to that of either, maintains the proposition, as
thus qualified. There is an introductory chapter to his treatise
on the Custom of Orleans, in which he considers several points,
that are common to all the customs of France, and, among others,
the law of domicil. He holds, in opposition to the opinion of
some jurists, that a tutor cannot change the domicil of his pupil ;
but he considers it as clear, that the domicil of the surviving
mother is also the -domicil of the children, provided it be not with
a fraudulent view to their succession, that she shifts the place of
her abode. And he says, that such fraud would be presumed, if
no reasonable motive could be assigned for the change. There
never was a case, in which there could be less suspicion of fraud
than the present. The father and mother were both natives of
England. They had no long residence in Guernsey; and after
the father’s death, there was an end of the only tie which con-
nected the family with that iskand. That the mother should re-
turn to this country, and bring her children with her, was so
much a matter of course, that the fact of her doing so can excite
no suspicion of an improper motive. I think, therefore, the mas-
ter has rightly found the deceased children to have been domi-
ciled in England. It is consequently by the law of this country
that the succession to their personal property must be regu-
lated.” This doctrine has also been recognized as the true doc-
trine in America?

1 Potinger v. Wightman, 3 Meriv. R. 79, 80.— Mr. Burge on this subject re-
marks: “The domicil of choice being that which the person himself establishes,
it can only be acquired by him who is sui juris. It cannot, therefore, be acquired
by a lunatic or minor. The domicil of the father, or of the mother, being a widow,
is that of the child, and a change by either of those parents of their former dom-
icil, would necessarily operate as a change of the child’s domicil. It is, however,
only during the mother’s widowhood, that she could change the domicil of her
infant. The domicil, which she acquired on her second marriage, would not be-
come that of the infant; but his domicil would continue to be that, which the
mother possessed previously to her second marriage. The power which the
parent thus possesses, of changing the domicil of his child, is assimilated to that
which the guardian of an infant possesses, of binding him by contracts, entered
into by him on behalf of the infant. But this power, it is said, must be exercised

* Guier v. O’Daniel, 1 Binn. R. 349, note; Cutts »v. Haskins, 9 Mass. 548 ;
Holyoke v. Haskins, 5 Pick. R. 20.
684 CONFLICT OF LAWS. [cH. Xm.

§ 507. Secondly; in relation to executors and administrators.
According to the Roman law, which made no distinction in this
respect between movable and immovable property, the title “ heir,”
was indiscriminately applied to every person, who was called to
the succession, whether he was so called by the act of the party,
or by operation of law. Thus, the person, who was created uni-
versal successor by a will, was called the testamentary heir (heres
factus), and the next of kin by blood, in cases of intestacy, was
called the heir at law (heres natus), or heir by intestacy. The
heir, whether consisting of one or more persons, and whether tes-
tamentary or by intestacy, was entitled by succession to all the
estate of the deceased, whether it was real or personal; and he
was chargeable with all the burdens and debts due from him.)

by the parent bona fide. If he changed the domicil of the child, who was sick,
with no other apparent objection than that of removing him from a place in which,
according to the law of succession there prevailing, the parent would not succeed
to the child’s estate, to another place, which admitted the parent to such succes-
sion, the removal would be deemed a fraud on the rights of those who would have
succeeded, if no such removal had taken place, and would not be allowed to pre-
vail, But if the health of the child was such, as to afford no expectation of his
death, or if there was any reasonable motive for the removal, or, indeed, if the
child had attained an age when, by the law of the place of his domicil, he had
the power of making a testament, in which latter case there could be no ground
for presuming any interested motive on the part of the parent in changing his
domicil, the removal could not be impeached.” 1 Burge, Comm. on Col. and
For. Law, Pt. 1, ch. 2, p. 88, 89. Notwithstanding this weight of authority,
which, however, with one exception, is applied solely to the case of parents, or a
surviving parent, there is much reason to question the principle on which the de-
cision is founded, when it is obviously connected with a change of a succession
to the property of the child. In the case of a change of domicil by a mere
guardian, not being a parent, it is extremely difficult to find any reasonable
principle on which it can be maintained, that he can, by any change of domicil,
change the right of succession to the minor’s property. The reasoning of Bynker-
shoek upon the point is very unsatisfactory, while that of Mornac, Bouhier, and
Pothier, has solid reason and justice to sustain it. See Robertson on Succession,
p. 196 to 203,

* 1 Domat, B. 1, tit. 1, p. 557; Id. § 1, n. 1, 2, p. 558.— Domat says, that in
France, in the Provinces which are governed by the testamentary law, and not
by the Roman Law (Droit écrit), the title of heirs is given only to the heirs by
blood, or heirs at law, and that the testamentary heirs are called universal lega-
taries. But this distinction is merely nominal, and the same rules are applied to
the universal legataries, as to the heirs by blood. 1 Domat, B. 1, tit. 1, p. 557,
558. Erskine, in his Institutes, B. 2, tit. 2, § 3, p- 192, says, that in Scotland,
“ Heritable subjects are those (immovables), which on the death of the proprietor
descend to the heir; and movables, those which go to executors, who are on that
§ 507 -509.] FOREIGN GUARDIANSHIPS. 685

But inasmuch as the succession in either case might be onerous,
as well as profitable, the law allowed the heir, whether he were
so by testament, or by intestacy, to renounce the inheritance if
he pleased ; or he miglit accept it with the benefit of an inventory,
the effect of which was to exonerate the heir from any further
liability, than the amount of the assets, or property inventoried.2
These explanations are important in order fully to understand
the reasonings of foreign jurists, and to apply them to the present
subject ; for the civil-law distinctions everywhere pervade the juris-
prudence of continental Europe.

§ 508. Jt will be at once seen, that the executor under the com-
mon law in many respects corresponds with the testamentary heir
of the civil law; and that the administrator in many respects cor-
responds with the heir by intestacy. The principal distinction
between them, which is here important to be considered, is, that
executors and administrators have no right except to the personal
estate of the deceased ; whereas the Roman heir was entitled to
administer both the real estate and personal estate ; and all the
assets were treated as of the same nature, without any distinction
of equitable assets, or of legal assets.”

§ 509. From what has already been said, the heir, whether tes-
tamentary, or by intestacy, of immovable property, can take only
according to the lex loci rei; or, in other words, he is not admis-
sible as heir, so as to administer the estate in any foreign country,
unless he is duly qualified according to the principles, rules, and
forms of the local law.? In this respect, he does not differ, either
in regard to rights, or to responsibilities, from an heir or devisee,
chargeable at the common law, or by statute, with the bond debts
of his ancestor or testator. It is for the same reason, that a power
to sell immovable property, given to an executor, cannot be exe-

account sometimes styled heredes in mobilibus. It may be also observed, that
those who undertake to gather in and distribute among such as are interested in
the succession the movable estate of a person deceased, in virtue of a nomination,
either by the testator, or by the judge, frequently get the name of executors,
because it is their office to execute the last will of the deceased.” See Id. B. 3,
tit. 9, § 1, 2, 26.

1 1 Domat, B. 1, tit. 1, § 4, n. 3, 4, p. 593.

* 1 Brown, Civil and Adm. Law, § 344, note.

* See 2 Kames, Eq. B. 3, ch. 8, § 3, p. 332; Vattel, B. 2, ch. 8, § 109, 110,
111; 1 Boullenois, Observ. 17, p. 242; Id. Pr. Gén. 37, p. 9; ; Doe dem. Lewis
v McFarland, 9 Cranch, 151.

CONFL. 58
G86 CONFLICT OF LAWS. [cH. xm.

cuted, unless upon due probate of the will in the place where the
property is situate, and showing that it may be lawfully done by
the lex loci rei site And if the party claims, not under a power,
put as a devisee, in trust to sell it for the payment of debts, it is
also necessary, to have a like probate of the will. But it is not
necessary, in the latter case, to take out letters of administration,
although the devise be in trust to the party by the description of
executor ; for in such case he takes as devisee and not as execu-
tor; and, his title is under the will, and not under the letters tes- —
tamentary.”

§ 510. But in regard to movable estate a like rule does not ne-
cessarily prevail in foreign countries, governed by a jurisprudence
which is drawn from, or modelled upon, the civil law; for mova-
bles being treated as having no situs, and to be governed by the
law of the domicil of the testator or intestate, the title of the heir,
taking its effect directly from that law, is, or at least may, consist-
ently, be held to carry the right to such property, wherever it
may be locally situated, in the same manner as the title would, or
might pass, by an assignment by the owner by an act inter vivos.3

§ 511. Lord Kames seems to take a distinction between the
case of a testamentary heir and that of an heir by intestacy, as-
serting that the nomination of an executor (heres de mobilibus, or
heres fiduciarius*) by the testator in his testament, as to his
movables, is effectual all the world over, jure gentium, and will be
sustained in Scotland ; whereas letters of administration in a for-
eign country are strictly territorial, and, when granted in a foreign
country, are not recognized in Scotland, unless they are confirmed
there by a proper judicial proceeding.® It may beso; but Erskine
lays it down as clear law, that in Scotland neither executors nor
administrators, foreign or domestic, are entitled to administer the
estate of the deceased, until they. have been duly confirmed by the
competent judge. What, perhaps, Lord Kames meant to say,
was, that the title of executor was a good title, jure gentium, and

‘ Wells v. Cowper, 2 Hamm. R. 124.

2 Doe dem, Lewis v. McFarland, 9 Cranch, 151.

5 2 Kames, Equity, B. 3, ch. 8, § 4,

4 Ersk. Inst. B. 8, tit. 9, § 2, 26.

5 2 Kames, Equity, B. 3, ch. 8, § 3; Id. § 4, p. 347, 348,

° Ersk. Inst. B. 1, tit. 9, § 27,29. See Robertson on Succession, p. 263 to
p- 273. e
§ 509 -513.] FOREIGN ADMINISTRATIONS. 687

when it was established in the manner, and by the process pre-
scribed by the law of the place where it was sought to be exercised,
it ought to be held of universal obligation. And so it probably is
in all civilized nations, except such, (if any such there now are,)
as adopt the Drott d’aubaine, and confiscate the movable property
of all foreigners dying, and leaving such property within their ter-
ritories.

§ 512. In regard to the title of executors and administrators,
derived from a grant of administration in the country of the dom-
icil of the deceased, it is to be considered that that title cannot,
de jure, extend, as a matter of right, beyond the territory of the
government which grants it, and the movable property therein.
As to movable property, situated in foreign countries, the title, if
acknowledged at all, is acknowledged ex comitate ; and of course
it is subject to be controlled or modified, as every nation may
think proper, with reference to its own institutions, and its own
policy, and the rights of its own subjects. And here the rule,
to which reference has been so often made, applies with great
strength, that no nation is under any obligation to enforce foreign
laws, prejudicial to its own rights, or to those of its own subjects.
Persons, domiciled and dying in one country, are often deeply in-
debted to foreign creditors, living in other countries, where there
are personal assets of the deceased. In such cases it would be a
great hardship upon such creditors to allow the original executor
or administrator to withdraw those funds from the foreign coun-
try, without the payment of such debts, and thus to leave the
creditors to seek their remedy in the domicil of the original exec-
utor or administrator, and perhaps there to meet with obstructions
and inequalities in the enforcement of their own rights from the
peculiarities of the local law.

§ 513. It has hence become a general doctrine of the common
law, recognized both in England and America, that no suit can
be brought or maintained by any executor or administrator, or
against any executor or administrator, in his official capacity, in
the courts of any other country, except that from which he de-
tives his authority to act in virtue of the probate and letters of
administration there granted to him.1 But if he desires to main-
tain any suit in any foreign country, he must obtain new letters

1 Bond v. Graham, 1 Hare, R. 482; Silver v. Stein, 9 Eng. Law and Eq. R.
216; Vermilya v. Beatty, 6 Barb. 431; Smith v. Webb, 1 Barb. 231.
688 CONFLICT OF LAWS. [cH. XIII

of administration, and give new security according to the general
rules of law prescribed in that country, before the suit is brought.

1 Preston v. Ld. Melville, 8 Clark & Finn. 1,12; Whyte v. Rose, 3 Adolph. &
Ell. New R. 498, 507; Spratt v. Harris, 4 Hagg. Eccles. Rep. 405 ; Price v. Dew-
hurst, 4 Mylne & Craig, 76. The authorities to this point are now exceedingly
numerous and entirely conclusive. See Lee v. Moore, Palmer, R. 163; Tourton
v. Flower, 3 P. Will. 869, 370; Lawrence v. Lawrence, 3 Barb. Ch. R. 71;
Thorne v. Watkins, 2 Ves. 35; Atty. Gen. v. Cockerell, 1 Price, R. 179; Burn v.
Cole, Ambler, R. 416; Lowe v. Fairlie, 2 Madd. R. 101; 1 Hagg. Eccles. R. 93,
239; Mitford’s Plead. 177 (4th edit.); Fenwick v. Sears, 1 Cranch, 259; Dix-
on’s Executors v. Ramsay’s Executors, 3 Cranch, 319, 323; Kerr v. Moon, 9
Wheaton, R. 565; Armstrong v. Lear, 12 Wheaton, R. 169; Thompson v. Wil-
son, 2 N. Hamp. R. 291; Dickinson’s Administrator v. McCraw, 4 Randolph, R,
158; Glenn v. Smith, 2 Gill & Johns. R. 493; Stearns v. Burnham, 5 Greenleaf,
R. 261; Goodwin v. Jones, 3 Mass. R. 514; Borden v. Borden, 5 Mass. R. 67;
Stevens v. Gaylord, 11 Mass. R. 256; Langdon v. Potter, 11 Mass. R. 313; Dan-
gerfield v. Thurston, 20 Martin, R. 232; Riley v. Riley, 3 Day, Conn. Cas. 74;
Champlin »v. Tilley, Id. 303; Trecothick v. Austin, 4 Mason, R. 16, 32; Ex parte
Picquet, 5 Pick. 65; Holmes v. Remsen, 20 Johns. R, 229, 265; Smith, Admin-
istrator, v. The Union Bank of Georgetown, 5 Peters, R. 518; Campbell v. Tou-
sey, 7 Cowen, R. 64; Logan »v. Fairlie, 2 Sim. & Stu. 285; Atty v. Bouwens, 4
Mees. & Welsb, 171, 192,193; Tyler v. Bell, 1 Keen, R. 826, 829; 2 Mylne &
Craig, 89,109. On this occasion Lord Cottenham said: “ That an estate cannot
be administered in the absence of a personal representative, and that such per-
sonal representative must obtain his right to represent the estate from the eccle-
siastical court in this country, has, I believe, never before been doubted. The
cases of Tourton v. Flower, (3 P. Wms. 369); Atkins v. Smith, (2 Atk. 63);
Swift v. Swift, (1 Ball & B. 326) ; Attorney-General v. Cockerill, (1 Price, 165);
Lowe v. Fairlie, (2 Madd. 101); Logan », Fairlie, (2 Sim. & Stu. 284) ; all pro-
ceed upon this, that the courts in this country, for the security of property, will
‘ not administer the property of a person deceased, in the absence of a person au-
thorized to represent the estate; and that they look only to the judgment of the
ecclesiastical courts in this country, in granting probate or letters of administra-
tion, to ascertain, who are so authorized ; and i is immaterial what ecclesiastical
court in this country has granted probate, or letters of administration, provided
the state of the property was such as to give it jurisdiction.” But see Anderson
v. Caunter, 2 Mylne & K. 763, which seems not a sound authority. Lord Cotten-
ham, in Tyler v. Bell, 2 Mylne & Craig, 110, manifestly disapproved of it. 3
Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, § 5, p. 1010, 1011, 1012. Mr.
Ch. Walworth, in McNamara v. Dwyer, 7 Paige, 236, 241, held, that although a
foreign administrator could not sue, he might be sued in another state, for an ac-
count of the assets received under the foreign administration. Can such a distine-
tion be maintained ? — The Supreme Court of the United States, in Vaughan v.
Northup, 15 Peters, decided against it. — S. P. Bond v. Graham, 1 Hare, R. 482;
. Price v. Dewhurst, 4 Mylne & Craig, 76, 80. See Preston v. Lord Melville, 8
Clark & Finnell. 12, 14; Vermilya v. Beatty, 6 Barb. 432.
§513.] FOREIGN ADMINISTRATIONS. 689

So, on the other hand, if a creditor wishes a suit to be brought in
any foreign country, in order to reach the effects of a deceased
testator or intestate, situated therein, it will be necessary, that
letters of administration. should be there taken out in due form
according to the local law, before the suit can be maintained ; for
the executor or administrator appointed in another country is not
suable there, and has no positive right to or authority over those
assets, neither is he responsible therefor. The right of a foreign
executor or administrator to take out such new administration is
usually admitted, as a matter of course, unless some special reason
intervene to vary or control it; and the new administration is
treated as merely ancillary or auxiliary to the original foreign
administration, so far as regards the collection of the effects and
the proper distribution of them. Still, however, the new admin-
istration is made subservient to the rights of creditors, legatees,
and distributees, who are resident within the country where it is
granted; and the residuum is transmissible to the foreign coun-
try only, when a final account has been settled in the proper tri-
bunal where the new administration is granted, upon the equi-
table principles adopted by its own law, in the application and
distribution of the assests found there.”

1 Harvey v. Richards, 1 Mason, R. 381; Stevens v. Gaylord, 11 Mass, R. 256 ;
Case of Miller’s Estate, 8 Rawle, R. 312.

* Preston v. Lord Melville, 8 Clark & Finnell. 12, 14. — See Harvey v. Rich-
ards, 1 Mason, R. 381; Dawes v. Boylston, 9 Mass. R. 337; Selectmen of Boston
v. Boylston, 2 Mass. R. 384; Richards v. Dutch, 8 Mass. R. 506 ; Dawes v. Head,
8 Pick. R. 128; Hooker v. Olmstead, 6 Pick. R. 481; Davis v. Estey, 8 Pick. R.
475; Jennison v. Hapgood, 10 Pick. R. 77 ; "Stevens v. Gaylord, 11 Mass. R. 256 ;
Case of Miller’s Estate, 3 Rawle, 312; Gravillon v. Richards, Ex’or, 13 Louis. R.
293. Many complicated questions may grow out of original and ancillary admin-
istrations, some of which have been stated in the cases of Harvey v. Richards, 1
Mason, RB. 381, and Dawes v. Head, 3 Pick. R. 128. The following extract, from
the opinion of Mr. Chief Justice Parker, in the latter case, deserves an attentive
perusal. The question there arose, how assets under an ancillary administration
were to be disposed of in cases of insolvency, and of debts due to creditors belong-
ing to the same country as the deceased debtor. The Chief Justice, after dispos-
ing of these particulars, said: “‘ Thus this action is determined without touching
the questions upon which it was supposed it would turn, which are of a novel and
delicate nature, and though often glanced at, do not appear to have been decid-
ed, either in this or any other state of the Union. We wish to avoid anything
which may be construed into a conclusive adjudication, and yet are of opinion
that it will be useful to throw out for consideration the results of our reasonings
upon this subject. If-the technical difficulties, upon which this cause has been de-

58 *

’
690 CONFLICT OF LAWS. [cH.. XIII.

§ 513 a. In England “ it is well established that, in the case of
a British subject dying intestate in the coloniés or in foreign

cided, had not occurred, but the estate had been rendered insolvent here, and a
decree of distribution for a proportion had been issued, or if the debt of Lenox
and Sheafe had been ascertained by a judgment, and the pleadings to a suit on
the bond had been the same in that case as now, the question would be, whether
the funds collected here by an ancillary administration, should be appropriated
to the payment of such debts, as might be regularly proved here, notwithstanding
it was made to appear, that the whole estate was insufficient to pay all the debts,
and that the effects here were wanted by the executor abroad, to enable him duly
to administer the estate. It has been contended, that this should be done, be-
cause the administrator has given bond here in the same manner as if this were
the original administration, and because the statute, which authorizes this admin-
istration, requires, that the Judge of Probate shall settle the estate in the same
way and manner as he would, if the original will had been proved here. With
respect to the bond, it will be saved by a faithful administration of the estate ac-
cording to law ; and with respect to the settlement by the Judge of Probate, this
must be understood to authorize him to require the administrator to account, and
that the due course of proceedings in the probate office shall be observed. It
certainly cannot be construed to mean, that in all cases a final settlement of the
estate shall take place here ; if it did, then, if there were no debts here, and none
to claim as legatees or next of kin, it would be necessary for all such to prove
their right and receive their distributive shares here, notwithstanding the settle-
ment must in such case be made according to the laws of the country where the
deceased had his domicil, But we think in such case it would be very clear, that
the assets collected here should be remitted to the foreign executor or administra-
tor ; for it seems to be a well-settled principle, that the distribution is to be made
according to the laws of the country where the deceased was domiciled ; and if
any part is to be retained for distribution here, it will be only by virtue of some
exception to this general rule, or because the parties interested seek their remedy
here ; in which case it might be within the legal discretion of the court here to
cause distribution, or to remit, according to the circumstances and condition of the
estate. An exception to the general rule grows out of the duty of every govern-
ment and its courts to protect its own citizens in the enjoyment of their property
and the recovery of their debts, so far as this may be done without violating the
equal rights of creditors living in a foreign country. In relation to the effects
found within our jurisdiction and collected by the aid of our laws, a regard to the
rights and interests of our citizens requires, that those effects should be made an-
swerable for debts due to them, in a just proportion to the whole estate of the de-
ceased, and all the claims upon it, whatever they may be. In the several cases
which have come before this court, where the legal character and effects of an an-
cillary administration have been considered, the intimations have been strong,
that the administrator here shall be held to pay the debts due to our citizens,
The cases, Richards v. Dutch ; Dawes, Judge, &c. v. Boylston ; Selectmen of Bos-
ton v. Boylston ; and Stevens v. Gaylord, are of this character. In all these cases,
however, we must suppose the court had reference to a solvent estate, and in such
case there seems to be no question of the correctness of the principle ; for it would
§ 518 a.] FOREIGN ADMINISTRATIONS. 691

countries, a prerogative administration extends to all the per-
sonal property of the intestate, wherever situate at the time of

be but an idle show of courtesy to order the proceeds of an estate to be sent to a
foreign country, the province of Bengal, for instance, and oblige our citizens to go
or send there for their debts, when no possible prejudice could arise to the estate,
or those interested in it, by causing them to be paid here; and possibly the same
remark may be applicable to legacies payable to legatees living here, unless the
circumstances of the estate should require the funds to be sent abroad. Whether
citizens of other states claiming payment of their debts of the administrator here,
are to be put upon the same footing with citizens of Massachusetts, by virtue of
the privileges and immunities secured to them by the Constitution of the United
States, is a point which we do not now decide. But without doubt the courts of
the United States, having full equity powers, would enforce payment upon the
principles above stated, where there is no suggestion of insolvency of the estate.
There would be no doubt, we think, that payment of debts by the administrator
here, after sufficient proof, that they were due, and an allowance of his account
therefor by the Probate Court with proper notice, would be faithful administra-
tion according to the condition of his bond, and would be a proper way of ac-
counting to the principal administrator abroad. In regard to effects thus collect-
ed within our jurisdiction, belonging to an insolvent estate of a deceased person
having his domicil abroad, the question may be more difficult. We cannot think,

however, that in any civilized country, advantage ought to be taken of the acci-
dental circumstance of property being found within its territory, which may be
reduced to possession by the aid of its courts and laws, to sequester the whole for
the use of its own subjects or citizens, where it shall be known, that all the estate
and effects of the deceased are sufficient to pay his just debts. Such a doctrine
would be derogatory to the character of any government. Under the English
bankrupt system, foreigners as well as subjects may prove their debts, and share
in the distribution. Without doubt, in other foreign countries, where there
is a cessio bonorum, or other process relating to bankrupt’s estates, the same
just principle is adopted. Jt was so under our bankrupt law, while that was in
force, and no reason can be suggested why so honest and just a principle should
not be applied in the case of insolvent estates of deceased persons. It is always
practised upon in regard to persons dying within our jurisdiction, having had their
domicil here ; that is, creditors of all countries have the same rights as our own
citizens, to file their claims and share in the distribution. There cannot be, then,
aright in any one or more of our citizens, who may -happen to be creditors, to
seize the whole of the effects which may be found here, or claim an appropriation
of them to the payment of their debts, in exclusion of foreign creditors. It is said
this is no more than what may be done by virtue of our attachment law, in regard
to the property of a living debtor who is insolvent. But the justness of that law
is very questionable, and its application ought not to be extended to cases, by an-
alogy, which do not come within its express provisions. What, then, is to be done
With the effects collected here belonging to an insolvent estate in a foreign coun-
try? Shall they be sent home in order to be appropriated according to the laws
of that country ? This would often work great injustice, and always great incon-
venience, to our own citizens, whose debts might not be large enough to bear the
692 CONFLICT OF LAWS. [cH. XIIL

his death, whether in Great Britain, or in the colonies, or in
any country abroad: and, indeed, from the late case of Scarth v.

expense of proving and collecting them abroad ; and in countries where there is
no provision for an equal distribution, the pursuit of them might be wholly fruit-
less. As in Great Britain, our citizens, whose debts would generally be upon
simple contract, such as bills of exchange, promissory notes, accounts, &c., would
be postponed to creditors by judgment, bond, &c., and even to other debts upon

simple contract which might be preferred by the executor or administrator. It

would seem too great a stretch of courtesy to require the effects to be sent home,
and our citizens to pursue them under such disadvantages. What, then, shall be
done to avoid, on the one hand, the injustice of taking the whole funds for the use
of our citizens to the prejudice of foreigners, when the estate is insolvent, and-on

- the other, the equal injustice and greater inconvenience of compelling our own -

citizens to seek satisfaction of their debts in distant countries? The proper
course would undoubtedly be, to retain the funds here for a pro rat distribution,
according to the laws of our state, among the citizens thereof, having regard to
all the assets, either in the hands of the principal administrator, or of the admin-
istrator here, and having regard also to the whole of the debts, which by the laws
of either country are payable out of those assets, disregarding any fanciful pref-
erence which may be given to one species of debt over another, considering the
funds here as applicable to the payment of the just proportion due to our own
citizens ; and, if there be any residue, it should be remitted to the principal ad-
ministrator, to be dealt with according to the laws of his own country, the sub-
jects of that country, if there be any injustice or inequality in the payment or
distribution, being bound to submit to its laws. The only objection which can be
made to this mode of adjusting an ancillary administration upon an insolvent es-
tate, is the difficulty and delay of executing it. The difficulty would not be great-
er than in settling many other complicated affairs, where many persons have in-
terests of different kinds in the same funds. The powers of a Court of Chancery
are competent to embrace and settle all cases of that nature, even if the powers
of the Court of Probate are not sufficiently extensive; which, however, is not
certain. The administrator here should be held to show the condition of the es-
tate abroad, the amount of property subject to debts, and the amount of debts,
and a distribution could be made upon perfectly fair and equitable principles.
The delay would undoubtedly be considerable, but this would not be so preat an
evil as either sending our citizens abroad upon a forlorn hope to see the fragments
of an insolvent estate, or paying the whole of their debts out of the property with-
out regard to the claims of foreign creditors. And if the Probate Court has not
sufficient power to make such an equitable adjustment, a bill in equity, in which
the administrator here should be the principal respondent, would probably pro-
duce the desired result, and then time and opportunity could be given to make
known the whole condition of the estate, and all persons interested might be beard
before any final decree ; in the mean time the administrator could be restrained
from remitting the funds until such decree should be passed.” Dawes v. Head, 3
Pick. R. 143 to 148.

The following extracts are made from the opinion of the court in Harvey ».
Richards. “One objection urged against the exercise of the authority of the

 
§ 518 a.] FOREIGN ADMINISTRATIONS. 693

Bishop of London, it appears that, where the intestate dies abroad,
not having goods in divers dioceses in England, but only in the

court is, that, as national comity requires the distribution of the property accord-
ing to the law of the domicil, the same comity requires that the distribution should
be made in the same place. This consequence, however, is not admitted ; and it
has no necessary connection with the preceding proposition. The rule, that dis-
tribution shall be according to the law of the domicil of the deceased, is not
founded merely upon the notion, that movables have no situs, and therefore fol-
low the person of the proprietor, even interpreting that maxim in its true sense,
that personal property is subject to that law which governs the person of the
owner. Nor is it, perhaps, founded upon the presumed intention of the deceased,
that all his property should be distributed according to the law of the place of his
-domicil, with which he is supposed to be best acquainted and satisfied; for the
rule will prevail even against the express intention of the deceased, unless the
mode in which that intention is expressed would give it legal validity as a will.
It seems, indeed, to have had its origin in a more enlarged policy, founded upon
the general convenience and necessities of mankind ; and in this view the maxim *
above stated flows from, rather than guides the application of that policy. The
only reason, why any nation gives effect to foreign laws within its own territory,
is the endless embarrassment which would otherwise be introduced in its own
intercourse with foreign nations. The rights of its own citizens would be mate-
rially impaired, and, in many instances, totally extinguished, by a refusal to recog-
nize and sustain the doctrines of foreign law. The case now under consideration
is an illustration of the perfect justice and wisdom of this general practice of na-
tions. A person may have movable property and debts in various countries, each
of which may have a different system of succession. If the law rei site were
generally to prevail, it would be utterly impossible for any such person to know
in what manner his property would be distributed at his death, not only from the
uncertainty of its situation, from its own transitory nature, but from the imprac-
ticability of knowing with minute accuracy, the law of succession of every coun-
try, in which it might then happen to be. He would be under the same embar-
rassment, if he attempted to dispose of his property by a testament; for he could
never foresee, where it would be at his death. Nay, more, it would be in the
power of his debtor, by a mere change of his own domicil, to destroy the best
digested will; and the accident of a moment might destroy all the anxious pro-
visions of an excellent parent for his whole family.. Nor is this all. The nation
itself, to which the deceased belonged, might be seriously affected by the loss of
his wealth, from a momentary absence, although his true home was in the centre
of its own territory. These are great and serious evils, pervading every class of
the community, and equally affecting every civilized nation. But in a mari-
time nation, depending upon its commerce for its glory and its revenue, the mis-
chief would be incalculable. The common and spontaneous consent of nations,
therefore, established this rule from the noblest policy, the promotion of general
convenience and happiness, and the avoiding of distressing difficulties, equally
subversive of the public safety and private entérprise of all. It flowed from the
same spirit, that dictated judicial obedience to the foreign commissions of the
admiralty. Sub mutue vicissitudinis obtentu, damus petimusque vicissim, is the
694 CONFLICT OF LAWS. — (cH. xm.

diocese of London, administration granted to such intestate by the
Consistory Court of the Bishop of London will be equally effec-

language of the civilized world on this subject. There can be no pretence, that
the same general inconvenience or embarrassment attends the distribution of for-
eign effects according to the foreign law by the tribunals of the country, where
they are situate. Cases have been already stated, in which great inconvenience
would attend the establishment of any rule, excluding such distribution. It may
be admitted also, that there are cases, in which it would be highly convenient to
decline the jurisdiction and remit the parties to the forum domicilii. Where there
are no creditors here, and no heirs or legatees here, but all are resident abroad,
there can be no doubt, that a court of equity would direct the remittance of the
‘property upon the application of any competent party. The correct result of
these considerations upon principle would seem to be, that whether the court
‘here ought to decree distribution or remit the property abroad, is a matter, not
of jurisdiction, but of judicial discretion, depending upon the particular circum-
stances of each case ; that there ought to be no universal rule upon this subject;
but that every nation is bound to lend the aid of its own tribunals for the purpose
of enforcing the rights of all persons, having a title to the fund, when such inter-
ference will not be productive of injustice or inconvenience, or conflicting equi-
ties. It is further objected, that a rule, which is to depend for its application upon
the particular circumstances of each case, is too uncertain to be considered a safe
guide for general practice. But this objection affords no solid ground for declin-
ing the jurisdiction, since there is an infinite variety of cases, in which no gen-
eral rule has been or can be laid down, as to legal or equitable relief, in the
ordinary controversies before judicial tribunals. In many of these, the difficulty
is intrinsic in the subject-matter ; and where a general rule cannot easily be ex-
tracted, each case must, and indeed ought to, rest on its own particular circum-
stances. The uncertainty, therefore, is neither more nor less than belongs to
many other complicated transactions of human life, where the law administers
relief ex que et bono. Another objection, addressed more pointedly to a class
of cases like the present, is the difficulty of settling the accounts of the estate,
ascertaining the assets, what debts are separate, what desperate, and, finally ascer-
taining what is the residue to be distributed, and who are the next of kin entitled
to share. And to add to our embarrassment, we are told, that we cannot compel
the foreign executor to render any accounts in our courts. I agree at once, that
this cannot be done, if he is not here ; but I utterly deny, that the administrator
here cannot be compelled to account to any competent court for all the assets,
which he has.received under the authority of our laws. And if the foreign exe-
cutor chooses to.lie by, and refuses to render any account of the foreign funds
in his hands so far as to enable the court here to ascertain whether the funds are’
wanted abroad for the payment of debts or legacies, or not, he has no right to »
complain, if the court refuses to remit the assets, and distributes them among
those who may legally claim them. And as to ‘settling the estate, or ascer-
taining who are the distributees, there is no more difficulty than often falls to our
lot in many cases, arising under the ordinary probate proceedings. All these ob-
Jections are, in fact, reasons for declining to exercise the jurisdiction in particular
cases, rather than reasons against the existence of the jurisdiction itself. It seems,
§ 518 a, 514.] FOREIGN ADMINISTRATIONS. , 695

tual.” ? How far this doctrine is intened to be carried is not per-

haps very clearly defined; and certainly, if carried fully out, it
may materially impair the general doctrine as to the necessity of
local administrations, as well as trench upon the rights of foreign
creditors and foreign governments. Is it meant to be said, that if
personal property is in a foreign country at the death of the in-
testate, it may be removed from thence, and administered under
a prerogative administration in England, or administered in Eng-
land without such a removal, and in either case be obligatory.
upon the foreign aca ao and pass a perfect title to the
Pen ?

§514. But although an executor or administrator, appointed
in one state, is not in virtue of such appointment entitled to sue,
nor is he liable to be sued, in his official capacity in any other
state or country ; yet there are many other questions, which may

indeed, admitted by the learned counsel for the defendant, that, if there be no
foreign administration, it would be the duty of the court to grant relief upon an
administration taken here. Yet every objection, already urged, would apply with
as much force in that, as in the present case. The property would be to be dis-
tributed according to the foreign law of the deceased’s domicil, The same diffi-
culty would exist, as to ascertaining the debts and legacies, and the assets and
distributees entitled to share. But it is said in the case now put, the administra-
tion here ‘would be the principal administration, whereas in the case at bar, it is
only an auxiliary or ancillary administration. I have no objection to the use of
the terms principal and auxiliary, as indicating a distinction in fact as to the ob-
jects of the different administrations; but we should guard ourselves against the
conclusion, that therefore there is a distinction in law as ta the rights of parties.
There is no magic in words. Each of these administrations may be properly con-
sidered ‘as a principal one, with reference to the limits of its exclusive authority ;
and each might, under circumstances, justly be deemed an auxiliary administra-
tion, If the bulk of the property, and all the heirs and legatees and creditors
were here, and the foreign administration were only to recover a few inconsider-
‘able claims, that would most correctly be denominated a mere auxiliary adminis-
tration for the beneficial use of the parties here, although the domicil of the tes-
tator were abroad. The ‘converse case would of course produce an opposite
result, But I am yet to learn, what possible difference it can make in the rights
,of parties before the court, whether the administration be a principal or an
‘auxiliary administration. They must stand upon the authority of the law to
administer or deny relief, under all the circumstances of their case, and not
upon a mere technical distinction of very recent origin.” Harvey v. Rich-
ards, 1 Mason, R. 381. See, also, Granvilon v. Richards’ Executor, 13 Louis,
R. 293,

* Whyte v. Rose, 3 Adolph. & Ell. (New Series), 498, 507; Scarth v. Bishop
of London, 1 Hagg. Eccles. R. 625.
696 CONFLICT OF LAWS. [CH. XII.

require consideration, and in. which a conflict of laws may arise in
- different countries. In the. first place let us suppose, that an
executor or administrator should go into a foreign country, and,
without there taking out new letters of administration, should
there collect property, effects, and debts of his testator or intes-
tate, found or due there; the question might arise, whether he
would not thereby, to the extent of his receipt and collection of
such assests, be liable to be sued in the courts of that country by
any creditor there. Upon general principles it would seem, that
he would so be liable; and, upon the principles of the common
law, he would be liable as an executor de son tort, or person in-
termeddling with such assests without any rightful authority,
derived from the local authorities under a new grant of adminis-
tration there. For it would not lie in his mouth to deny, that he
had rightfully received such assets; and he could not rightfully
receive them except as executor.! It would be quite a different
question, whether the payment of any such debts, or the delivery
of any such property or effects to him by the debtors, or by other
persons, owing or possessing the same, would be a valid payment
or discharge of such persons therefrom, or would confer any title
to the same upon such executor or administrator, at least against
any executor or administrator, subsequently appointed in such
foreign state or country, and contesting the right or title? Upon
that question there is much room for discussion and doubt, not-
withstanding what has been asserted in some of the tribunals act-
ing under the common law.’ For it is exceedingly clear, that the
probate grant of letters testamentary, or of letters of administra-
tion, in one country, give authority to collect the assets of the
testator or intestate only in that country, and do not extend to
the collection of. assets in foreign countries; for that would be to
assume an extra-territorial jurisdiction or authority, and to usurp
the functions of the foreign local tribunals in those matters.4 It

1 Campbell v. Tousey, 7 Cowen, R. 64.

* Preston v. Lord Melville, 8 Clark & Fin. 1, 12, 14.

® Doolittle v. Lewis, 7 Johns. Ch. R. 45, 49; post, § 515.

* See Pond, Administrator, v. Makepeace, 2 Metc. R. 114; Preston v. Lord
Melville, 8 Clark & Finnell. 1, 12, 14. See Attorney-General v. Bouwens, 4
Mees. & Welsb. 171, 190, 191,192. On this occagion Lord Abinger said: “ What-
ever may have been the origin of the jurisdiction of the ordinary to grant pro-

bate, it is clear, that it is a limited jurisdiction, and can be exercised in respect
of those effects only which he would have had himself to administer in case of
§514.] FOREIGN ADMINISTRATIONS. 697

is no answer to the objection to say, that the effects of the testator
or intestate are assets, wherever they are situated, whether at

intestacy, and which must therefore have been so-situated as that he could have
disposed of them in pios usus. As to the locality of many descriptions of effects,
household and movable goods, for instance, there never could be any dispute.
But to prevent conflicting jurisdictions between different ordinaries, with respect
to choses in action and titles to property, it was established as law, that judgment
debts were assets, for the purposes of jurisdiction, where the judgment is recorded;
leases, where the land lies ; specialty debts, where the instrument happens to be;
and simple contract debts where the debtor resides at the time of the testator’s
death: and it was also decided, that as bills of exchange and promissory notes do
not alter the nature of the simple contract debts, but are merely evidences of
title, the debts due on these instruments were assets, where the debtor lived, and
not where the instrument was found. In truth, with respect to simple contract
debts, the only act of administration, that could be performed by the ordinary,
would be to recover or to receive payment of the debt, and that would be done
by him, within whose jurisdiction the debtor happened to be. These distinctions
being well established, it seems to follow, that no ordinary in England could per-
form any act of administration within his diocese, with respect to debts due from
persons resident abroad, or with respect to shares, or interest in foreign funds pay-
able abroad, and incapable of being transferred here; and therefore no duty
would be payable on the probate or letters of sdienicteteation { in respect of such
effects. But, on the other hand, it is clear, that the ordinary could administer all
chattels within his jurisdiction ; and if an instrument is created of a chattel nature,
capable of being transferred by acts done here, and sold for money here, there
is no reason why the ordinary or his appointee should not administer that species
of property. Such an instrument is in effect a salable chattel, and follows the
nature of other chattels as to the jurisdiction to grant probate. In this case, as-
suming that the foreign governments are liable to be sued by the legal holder,
there is no conflict of authorities; for there governments are not locally within
the jurisdiction, nor can be sued here; and no act of administration can be per-
formed in this vountry, except in the diocese where the instruments are, which
may be dealt with, and the money received by their sale in this country. Let
us suppose the case of a person dying abroad, all whose property in England con-
sists of foreign bills of exchange, payable to order, which bills of exchange are
well known to be the subject of commerce, and to be usually sold on the Royal
Exchange. The only act of administration, which his administrator could per-
form here, would be to sell the bills and apply the money to the payment of his
.debts. In order to make titles to the bills tp the vendee, he must have letters of
administration ; in order to sue in trover for them, if they are improperly withheld
from him, he wust have letters of administration, (for even if there were a for-
eign administration, it is an established rule, that an administration is necessary
in the country where the suit is instituted); and that these letters of administra-
tion must be stamped with a duty according to the salable value of the bills; the
case of Hunt v. Stevens is an express authority.” See, also, Doolittle v. Lewis,
‘T Johns. Ch. R. 45, 46, 47; Morrell v. Dickey, 1 Johns. Ch. R. 153.
CONFL, 59
698 CONFLICT OF LAWS. [ cH. Xm.

home or abroad; and that such effects as are in a foreign coun-
try at the time of the death of the testator or intestate, although .
they remain and are wholly administered there by the executor,
are equally assets. Doubtless this is true; but the question is
not, whether they are assets or not; but who is clothed with
authority to administer them; and this must be decided by the
local jurisdiction where they are situated ; for the original admin-
istration has no extra-territorial operation.’

§ 514 a. In the next place, let us suppose, that an executor or
administrator appointed in the state where his testator or intestate
died, should go into a foreign country, and should, without taking
out new letters of administration, collect assets in such foreign
country, and bring them home to the state, from which he had
received his original letters testamentary, or letters of administra-
tion ; the question might arise, whether, in such a case, he would
be liable to account in the courts of the latter state for all the as-
sets which he had so received in the foreign country, in the same
way and under the like circumstances, as he would be liable to
account for them if he had received them in the home state. In
other words, whether they would constitute a part of the home
assets which he is bound to administer, and for which he is liable
to account under the domestic administration according to the do-
mestic laws. It has been said, that the assets so received and col- ~
lected, are to be so administered and accounted for, as home assets,
by such executor or administrator. And the doctrine laid down
in an ancient case is relied on for this purpose ; where it is assert-
ed to have been held by the court, that “if the executor have
goods of the testator in any part of the world, théy shall be
charged in respect of them; for many merchants and other men,
who have stocks and goods to a great value beyond sea, are in-
debted here in England ; and God forbid, that those goods should
not be liable to their debts ; ; for-otherwise, there would be a great
defect in our law.”? Now this language in its broad import’is
certainly unmaintainable in our day ; for it goes to the extent‘df
making a domestic executor or administrator liable for all assets
of the testator or intestate, which are locally situate abroad ; al-
though, as we have seen, he has not in virtue of the domestic let-
ters of administration any authority to collect them, or to compel:

1 Attor.-Gen. v. Dimond, 1 Cromp. & Jerv. 356, 370; ante, § 513,

4 Dowdale’s Case, 6 Co. R. 47,48; S. C. Cro. Jac. 55; cited and approved
also in Evans v. Tatem, 9 Serg. & R. 252, 259.
§514-514 6.) FOREIGN ADMINISTRATIONS. 699

payment or delivery thereof to himself! But the circumstances
of the case called for no such doctrine. The case was of a testa-
tor who died in Ireland, and the defendant, who was his executor,
collected and administered in Ireland certain property of the de-
ceased. Afterwards he came to England, and was’sued there by
a creditor as executor; and the question arose, whether he was
liable to the creditor in such suit for the assets collected and re-
ceived by him in Ireland under the administration there. With
reference, therefore, to the actual facts of the case, the more gen-
eral question did arise. But according to the doctrine maintained
in England in modern times, he was not at all liable to be sued
in England, as executor, under letters testamentary taken out in
Ireland; and @ fortiori not for the assets received and adminis-
| tered in Ireland under that appointment.2, The authority of the
- case may therefore well be doubted in both of its aspects.

§ 514 b. Some of the American courts have gone the length of
recognizing, to its full extent, the doctrine asserted in this case ;
and have held, that a foreign executor or administrator, coming
here, having received assets in the foreign country, is liable to be
-sued here, and to account for such assets, notwithstanding he has
taken out no new letters of administration here, nor has the estate
been positively settled in the foreign state.! The doctrine asserted
in these courts is, that such a foreign executor or administrator is
chargeable here, as executor, for all the assets which he still re-
.tains in his hands, or which he has expended or disposed of here,
unless expended or disposed of here in the due course of adminis-

iy? Ante, § 314. 2 Ante, § 314; post, § 515.

* “Tf after such administration shall have been completed, any surplus should
Temain, and it shall appear that there are trusts to be performed in Scotland, to
which it was devoted by Sir Robert Preston, it will be for the Court of Chancery
to consider whether such surplus ought or ought not to be paid to the pursuers,
‘for the purpose of being applied in the performance of such trusts; and in con-
‘sidering that’ question every attention ought to be paid to the authority under
which the pursuers have been appointed trustees, and the consent which led to
such appointment. It is premature to decide that point, it being at present un-
ascertained whether there will be any surplus of the personal estate in this coun-
try, or what will be the amount of it, and no declaration of right by the Court of
Session would be binding upon the Court of Chancery, under whose jurisdiction
the property in England is placed by the suits which have been instituted.” Pres-
ton v. Lord Melville, 8 Clark & Finn. 14.

* Swearingen’s Ex’ors v. Pendleton’s Ex’ors, 4 Serg. & R. 389, 392; Evans v.
Tatem, 9 Serg. & Rawle, 252, 259; Bryan v. McGee, 2 Wash. Cir. R. 337; Camp-
bell v. Tousey, 7-Cowen, R. 64.
700 CONFLICT OF LAWS. (cH. xu.

tration, whether they were received here or in the foreign country,
although he has not taken out any new letters of administration
here.! There is very great difficulty in supporting these decisions
to the extent of making the foreign executor or administrator liable
here for assets received by him abroad in his representative charac-
ter, and brought here by him. Ifa foreign executor or administra-
tor cannot sue in his representative character in another state for
the assets of the deceased situate there, without new letters of ad-

ministration ; because he derives his authority solely from a foreign ....

government, which has no authority to confgg any right upon him,
except to collect and receive the assets, found within its own ter-
ritorial jurisdiction, and to which, therefore, he is properly and
directly responsible for the due administration of the assets, actu-
ally collected and received in such foreign country under its ex-
clusive appointment, it is not easy to perceive how he can be suable
in such state for such assets in his hands, received abroad by him
under the sanction of the foreign administration, and by the au-
thority of the foreign government, to which he is thus accountable
for all such assets. One of the learned courts, however, which
decided the point, seems to have taken it for granted, that a for-
eign executor or administrator was of course suable here for all
assets found in his hands. “If a foreign executor,” said the
court, “is liable to be sued here, of which we apprehend there
can be no question, he must, from the very nature of the case,
primé facie, be responsible for the assets which are shown to have
been in his possession within this state’? With great deference,
that was the very point to be established by some just reasoning,
founded upon the principles of international jurisprudence gener-
ally recognized by foreign jurists, or by the uniform established
‘doctrine of the common law on this subject in modern times. It
will be found exceedingly difficult to cite any modern authorities
at the common law in support of such a doctrine,? since no au-
thority could be shown which supported it. On the other hand,
there are other American authorities which indicate a very differ-

? Swearingen’s Ex’ors v. Pendleton’s Ex’ors, 4 Serg. & R. 889, 392; Evans v.

Tatem, 9 Serg. & Rawle, 252, 259; Bryan ». McGee, 2 Wash. Cir. R. 337; Camp-
bell v. Tousey, 7 Cowen, R. 64.

* In the cases of Swearingen’s Ex’ors vy. Pendleton’s Ex’ors, 4 Serg. & Rawle,
389, 392, and Evans v. Tatem, 9 Serg. & Rawle, 252, 259, the Supreme Court of
Pennsylvania contented itself with merely affirming the doctrine in Dowdale’s
Case, (6 Co. R. 47,) without any general reasoning on the subject.
‘4 5145.] FOREIGN ADMINISTRATIONS. 701

ent doctrine. The modern English authorities are to the same
effect. They fully establish the doctrine, that, if a foreign execu-

1 The very recent case of Fay v. Haven, 3 Metcalf, 109, is directly in point.
See Selectmen of Boston v, Boylston, 2 Mass. R. 384; Goodwin v. Jones, 3 Mass.
R. 514; Davis v. Estey, 8 Pick. R. 475; Dawes v. Head, 3 Pick. R. 128; Doo-
little v. Lewis, 7 Johns, Ch. R. 45, 47; McRae’s Administrators v. McRae, 11
Louis. R. 571. — In the case of the Selectmen of Boston v. Boylston, 2 Mass. R.
384, 391, Mr. Justice Sedgwick, in delivering the opinion of the court, after ad-
verting to the fact, that the testator died in England, and that administration was
there granted of his estate to the defendant cum testamento annexo, and that the
defendant took out ancillary letters of administration in Massachusetts, where the
suit was brought, and in respect whereof he was called upon to account with the
plaintiffs for the assets both in England and America, said: “ The Judge of Pro-
bate has, in this case, proceeded, and in all similar cases must proceed, according
to the powers, which are delegated to him by this statute. He can exercise no
other powers. He has granted to the respondent administration on the estate of .
Thomas Boylston, lying in this government, with the will annexed. All the au-
thority, then, given to the administrator, is over the estate lying in this govern-
ment. The judge is to settle the said estate. What estate? Clearly, I think,
the estate lying in this government. And it will neither consist with the inten-
tion of the legislature, nor the purposes of justice, because the administrator, with
the will annexed, is here, to proceed upon the fiction, that by his relation to the
testator, in the same capacity, in England, we ought to consider all the assets pos-
sessed by him there, as the estate of the testator lying in this government; be-
cause the estate by the statute subjected to the control of the Court of Probate,
and to be settled by it, was that which was lying here before granting the letters
of administration. To that, and to jthat only, do the words, and, as I think, the
meaning of the legislature extend. The argument from the inconveniences of
admitting the construction, for which the counsel for the appellants have contend-
ed, is strong and irresistible. It may reasonably be presumed, that the largest
part of the testator’s estate lies in the country, where the original administration
is granted; and that there also is the greatest portion of claims upon it. For
what purpose of utility is the property to be transported to a distant region, and
those to whom it belongs compelled to follow it, for the satisfaction of their de-
mands? The expense and trouble of such a procedure, while wholly unnecessa-
ry, could not fail to be considerable. Suppose an English merchant of great prop-
erty and extensive dealings to have been the testator: suppose this property to
be principally in England, but portions of it to be left in several foreign countries,
and that the administrator appointed there goes to collect it, and seeks the aid of
the foreign governments for that purpose ; and they, under pretence of giving this
aid, claim an authority of drawing within their jurisdiction all the personal prop-
erty of the testator, and all those who have demands upon it, or are.interested in it.
All these governments are independent of each other; and what is to establish a
tight of precedence? The commencement of a prosecution? How is this to be
known? How are the other authorities to be controlled? If this is to be the
construction, who will become bound for the administrator? By what means can
the liability of the administrator and his sureties be known? In terms they only

59 *
702 CONFLICT OF LAWS. [cH. XI.

tor or administrator brings or transmits property here, which he
has received under the administration abrogd, or if he is person-

guarantee the settlement of the estate lying within the commonwealth ; but in
effect, if this construction be admitted, estate lying in every part of the globe. It
is, in our opinion, impossible, that: such could have been the intention of the. leg-
islature. There are innumerable other inconveniences, which might be, but which
it is unnecessary should be pointed out.” In Goodwin v. Jones, 3 Mass. R. 514,
519, 520, Mr. Chief Justice Parsons in delivering the opinion of the court, said :
‘When any person, an inhabitant of another state, shall die intestate, but leav-
_ ing real estate within this commonwealth, if administration should not be
granted by some Judge of Probate of a county, in which the estate lies, there
would be no legal remedy for the creditors of the deceased to avail themselves of
his real estate for the payment of the debts due them. Therefore, to prevent a
failure of justice, administration in such case must be granted by some Probate
Court here ; and the administrator so appointed will, by virtue of his letters of
administpation and of the laws, also have the administration of all the goods, chat-
tels, rights, and credits of the intestate, which were within the state. And if a
foreign administrator of that intestate should also have the administration of his
personal estate here, there would exist two administrators of the same goods of
the same intestate, independent of each other, and deriving their authority from
different states, a consequence which cannot be admitted. But the granting of
administration here cannot divest the foreign administrator of any rights already
vested in him; and the necessary inference is, that whether administration be, or
be not, granted in this state, an administrator appointed in another state cannot
legally claim any interest in the goods of his intestate, which are subject to an ad-
ministration granted in this state. And it is no objection to this reasoning, that
debts due to the intestate on simple contract are to be considered as goods situate
where he dies. For if the position be admitted, contrary to the authority of
Wentworth, in his Executor (page 46,) where it is supposed, that such debts are
bona notabilia where the debtor lives; yet the administrator, if he recover judg-
ment on such confract in this state, may satisfy it by an extent on lands, which
certainly in their disposition are exclusively subject to the control of the laws of
the commonwealth. We have no particular statute relating to foreign adminis-
trators; but the manner, in which an executor of a will proved without the state
may execute his trust within, is regulated by the statute of 1785, June 19, ¢. 12.
The executor, or any person interested in any will proved without the state, may
produce a copy of it, and of the probate under the seal of the foreign court, which
proved it, before the Judge of Probate of any county where the testator had real
or personal estate, whereon the will may operate, and request to have the same
filed and recorded, which the judge, after notice and hearing all parties, may or-
der to be done: and he may then take bonds of the executor, or may grant ad-
ministration cum testamento annexo of the testator’s estate lying in this govern-
ment not administered, and may settle the estate, as in cases where the will has
‘been proved before him. This statute needs no explanation. The executor of a
will proved without the state cannot intermeddle with the effects of the testator
in the state, but with the assent of a Judge of Probate, to whom he must
first give bond. Neither can an administrator with the will annexed intermed-
95140, 515.) FOREIGN ADMINISTRATIONS. 703

ally present, he is not either personally or in his representative
capacity, liable to a suit here ; nor is such property liable here to
creditors; but they must resort for satisfaction to the forum of the
original administration.! So, where property is remitted by a for-
eign executor to this country to pay legacies, no suit can be main-
tained for it, if there is no specific appropriation of it, without an
administration taken out here.?

§.515. But although an executor or administrator is not en-
titled to maintain a suit in a foreign court, in virtue of his origi-
nal: letters of administration ; yet, it has been said, that, if a
debtor chooses voluntarily there to pay him a debt which he may
lawfully receive under that administration, the debtor will be
discharged. This proposition is, or at least may be true to the

dle, unless he is appointed by some judge within the state, who has authority to
settle the whole estate within his jurisdiction. And it would be inconsistent with
the manifest intent of the statute to allow an administrator of an intestate, not an
inhabitant or resident within the state at his death, an authority derived from a
foreign administration, which he could not have under the foreign probate of a
will; of which he was the executor.” In Doolittle v. Lewis, 7 Johns. Ch. R. 45,
47, Mr. Chancellor Kent said: ‘It is well settled, that a party cannot sue or de-
fend in our courts, as executor or administrator, under the authority of a foreign’
court of probates. Our courts take no notice of a foreign administration ; and
before we can recognize the personal representative of the deceased, in his rep-
resentative character, he must be clothed with authority derived from our law.
Administration only extends to the assets of ‘the intestate within the state where
it was granted ; if it were otherwise, the assets might be drawn out of the state,
to the great inconvenience of the domestic creditors, and be distributed, perhaps,
on very different terms, according to the laws of another jurisdiction. The au-
thorities on this subject were cited by me in the case of Morrell v. Dickey, (1
Johns. Rep. 154,) and I presume there is no dispute about the general rule; and
the only difficulty lies in the application of it to this particular case.”

1 Currie, Administrator, v. Bircham, 1 Dowl. & Ryl. R. 35; Davis v. Estey, 8
Pick, R. 475; Attor.-Gen. v. Bouwens, 4 Mees. & Wels. R. 171, 191; Tyler v.
Bell, 1 Keen, R. 826, 829; S. C. 2 Mylne & Craig, 89, 109, 110;° Attor.-Gen. v.
Dimond, 1 Cromp. & Jerv. R. 356, 371; Attor.-Gen. v. Hope, 2 Clark & Fin-
nell. R. 84,°90, 92; S. C. 8 Bligh, R. 44; 1 Cromp. Mees, & Rose. 538. But see
Dowdale’s Case, 6 Co. R. 47, and Anderson v. Caunter, 2 Mylne & Keen, 763;
Spratt v. Harris, 4 Hagg. Eccl. R. 405, 408; ante, § 513, 514a. In Scrimshire
». Scrimshire, (2 Hagg. Consist. R. 420,) Sir Edward Simson said : “Tf an Eng-
lishman makes a will abroad, and makes a foreigner executor, and has no effects
in England, and the executor proves the will lawfully abroad, that probate, or
sentence of the proper court, establishing the will, as to effects there, of a man
domiciled there, would be a bar to a discovery in chancery of effects abroad.”

® Logan v. Fairlie, 2 Sim. & Stu. R. 284.

* The proposition is thus guardedly laid down, in Stevens v. Gaylord, 11 Mass.
704 CONFLICT OF LAWS. [cH. XII.

extent, in which it is thus ouaniedly laid down and limited..
For if an administration should be taken out on a creditor’s es-
tate in the country, where both the creditor and debtor resided
at the time of his death, there, inasmuch as a debt is properly due
in that country, and properly falls within that administration, it
may be paid voluntarily by the debtor in another country, if he
should afterwards change his domicil to that country, or if he
should be found there; and the discharge of the administrator
will be held a good discharge everywhere else, although no new
administration be taken out ; because the right to receive it pri-
marily attached, where the original administration was granted.
Thus, for example, if an intestate should die in Ireland, leaving
a bond debt there due by a debtor, residing there at the time of
his death, that bond debt would be bona notabilia ;there, and a
payment afterwards by the debtor made in England to such ad-
ministrator would or might be a good discharge, notwithstanding
no administration were taken out in England.1

§ 515 a. There is, however, (as has been already stated,”)
much reason to doubt, whether the doctrine be maintainable to
the extent, which the proposition has been sometimes understood
to justify ; that is to say, so as to apply it to a debt due by a debt-
or, who at the death of the creditor is actually domiciled in, and
owes the debt in the foreign country, where no administration is
taken out. Suppose an administration should afterwards be
R. 256. But the question may also arise, whether the voluntary payment of a
debt by a domestic debtor in a foreign country to a foreign administrator, when
there is no domestic administrator appointed, will be a good discharge of the
debtor. Debts are due not only in the domicil of the debtor, but in the domicil
of the creditor; and indeed, unless a particular place of payment is appointed,
they are due and may be demanded anywhere. If a debtor be found in the for-
eign country, where the creditor died, and where an administrator is appointed,
he would certainly be suable there, and could not protect himself by a plea, that
he was liable to pay only to the administrator appointed in the place of his
(the debtor’s) domicil. Lord Hardwicke, in Thorne v. Watkins, (2 V&s. 35,) said,
that all debts follow the person, not of the debtor in respect of the right or prop-
erty, but of the creditor to whom due. In Doolittle v. Lewis, (7 Johns. Ch. R.
49,) Mr. Chancellor Kent, held, that a voluntary payment to a foreign executor
or an administrator was a good discharge of the debt. See Shultz v. Pulver, 3
Paige, R. 182; Hooker v. Olmstead, 6 Pick. R. 481; Atkyns v. Smith, 2 Atk. R.
63; Trecothick v. Austin, 4 Mason, R. 16, 33.

? Huthwaite v. Phaire, 1 Mann. & Grang. 159, and particularly what is said by
Lord Chief Justice Tindal in page 162.

* Ante, § 514. See Preston v. Lord Melville, 8 Clark & Finnell, 1, 14.
-§515-516.] FOREIGN ADMINISTRATIONS. 705

granted in a foreign country; would it be any bar to an action
‘brought by the foreign administrator, against the debtor for the
same debt, that the debtor. had already paid it to another admin-
istrator, who had no right to demand it in virtue of his original
administration, and’ who, therefore, might properly be deemed a
stranger to the debt-? Suppose a contest to arise between the
original administrator and the foreign administrator in relation
to the administration of the debts, so received as assets of the de-
ceased, could the original administrator retain it against the will
of the foreign administrator ; or thereby subject it to a different
application in the course of administration and marshalling assets
from that, which would otherwise exist? It seems difficult to
answer these questions in the affirmative, without shaking some
of the best-established principles of international law on this sub-
ject.

~§ 516. And here it may be necessary to attend to a distinction,
-important in its nature and consequences. If a foreign admin-
istrator has, in virtue of his administration, reduced the personal
property of the deceased, there situated, into his own possession,
so that he has acquired the legal title thereto, according to the
laws of that country ; if that property should afterwards be found
in another country, or be carried away and converted there against
his will, he may maintain a suit for it there in his own name and
right personally, without taking out new letters of administration ;
for he is, to all intents and purposes, the legal owner thereof, al-
though he is so in the character of trustee for other persons. In
like manner, if a specific legacy of personal property is bequeathed
in a foreign country, and the legatee has, under an administra-
tion there, been admitted to the full possession and ownership by
the administrator, he may afterwards sue in his own name for any
injury or conversion of such property in another country, where
the property or wrongdoer may be found, without any probate of
the will there.2. The plain reason in each of these cases is, that

’ See Currie v. Bircham, 1 Dowl. & Ryl. R. 35; Tyler v. Bell, 1 Keen, R. 836;
2 Mylne & Craig. 89, 109, 110; Attor.-Gen. v. Dimond, 1 Cromp. & Jerv. 356,
870; Contra Anderson v. Caunter, 2 Mylne & Keen, R. 763. But the latter case
seems overruled. Ante, § 513; post, § 518, 519, 520, 521, 525; Huthwaite v.
Phaire, 1 Mann. & Grang. 159, 164, 165.

* See Commonwealth v. Griffith, 2 Pick. R. 11; Bollard v. Spencer, 7 T.R.

858; Shipman v. Thompson, Willes, R. 103; Slack v. Wolcott, 3 Mason, R. 508,
513,
706 CONFLICT OF LAWS. (cH. XII.

the executor and the legatee have, each in his own right, become
full and perfect legal owners of the property by the local law ; and
a title to personal property, duly acquired by the lex loci ret site,
will be deemed valid, and be respected as a lawful and perfect
title in every other country.

§ 517. The like principle will apply, where an executor or ad-
ministrator, in virtue of an administration abroad, becomes there
possessed of negotiable notes belonging to the deceased, which
are payable to bearer; for then he becomes the legal owner and
bearer by virtue of his administration, and may sue thereon in his
own name; and he need not take out letters of administration in
the state, where the debtor resides, in order to-maintain a suit
against him.' And for a like reason, it would seem, that negoti-
able paper of the deceased, payable to order, actually held and in-
dorsed by a foreign executor or administrator in the foreign coun-
try, who is capable there of passing the legal title by such indorse-
ment, would confer a complete legal title on the indorsee, so that
he ought to be treated in every other country, as the legal indor-
see, and allowed to sue thereon accordingly, in the same manner
that he would be if it were a transfer of any personal goods or
merchandise of the deceased, situate in such foreign country.”

§ 517 a. And when an executor appointed abroad has remitted
to another country, (as for example, to England,) that fund to be
distributed between legatees there domiciled ; the distribution may
be made either voluntarily by the remittee, or enforced by a court
of equity in such country, without any administration being taken
there, or making the legal representative of the testator a party to
the suit.?

§ 518. Where there are different administrations, granted in
different countries, that is deemed the principal or primary ad-
ministration, which is granted in the country of the domicil of
the deceased party ; for the final distribution of his effects among
his heirs or distributees is to be decided by the law of his domicil.
Hence, any other administration, which is granted in any other
country, is treated as in its nature ancillary merely, and is, as we

? Robinson v. Crandall, 9 Wendell, R. 425; and see Barrett v. Barrett, 8 Green-
leaf, R. 353. But see Stearns v. Burnham, 5 Greenleaf, R. 361; Thompson ».
Wilson, 2 New Hamp. R. 291; McNeilage v. Holloway, 1 Barn, & Ald. 218;
ante, § 354, 358, 359.

2 Ib. and ante, § 858, 859.
* Authur v, Hughes, 4 Beavan, R. 506.
§516-519.] FOREIGN ADMINISTRATIONS. 707

have seen, generally held subordinate to the original administra-
tion! But each administration is, nevertheless, deemed so far in-
dependent of the others, that property received under one cannot
be sued for under another, although it may at the moment be
locally situate within the jurisdiction of the latter. Thus, if prop-
erty is received by a foreign executor or administrator abroad,
and it is afterwards remitted here, an executor or administrator
appointed here could not assert a claim to it here, either against
the-person in whose hands it might happen to be, or against the
foreign executor or administrator.2. The only mode of reaching
it, if necessary for the purposes of due administration in the for-
eign country, would be to require its transmission or distribution,
after all the claims against the foreign administration had been
duly ascertained and settled.®
§519. But suppose a case, where the personal estate of the
deceased has not, at the time of his decease, any positive locality
in the place of his domicil, or in any foreign territory ; but it is
strictly in transitu to a foreign country, and afterwards arrives in
the country of its destination. It may be asked, in such case, to
whom would the administration of such property rightfully be-
, long? Would it belong to the administrator in the place of the
domicil of the deceased, or to the administrator appointed in the
place, where it had arrived? And if (as may well happen in the
case of a ship and cargo sent abroad) the property, or its pro-
ceeds, «should afterwards return to the domicil of the original
owner, would the administrator, there appointed be entitled to
take it, and bound to account for it, in the due course of admin-
istration? Practically speaking, no doubt is entertained on this
Subject ; and the property, whenever it returns to the country of
the domicil of the owner, whether by remittance or otherwise, is
Understood to be under the administration of the administrator
appointed there. Nor has there been a doubt hitherto judically
expressed, that property, so sent abroad, and returned, might and

1 Ante, § 514. :

‘1 Currie, Administrator, v. Bircham; 1 Dowl. & Ryl. R. 35. See Jauncey v.
Seeley, 1 Vern. R. 397; ante, § 513, 515, 515 a. See Huthwaite v. Phaire,
1 Mann. & Grang. 159.

.* See Dawes v. Head, 3 Pick. R. 128 to 148; Harvey v. Richards, 1 Mason,

*R, 381; ante, § 513, and note, § 514; Selectmen of Boston v. Dawes, 2 Mass.

R. 384; Goodwin v. Jones, 3 Mass. R. 514; Dawes v. Boylston, 9 Mass. R.
337,
'

708 CONFLICT OF LAWS. [cH. xm.

should be so administered, and that all parties would be protected
by their doings in regard to it.

§ 520. Indeed, according to the common course of commercial
business, ships and cargoes, and the proceeds thereof, locally
situate in a foreign country at the time of the death of the owner,
always proceed on their voyages, and return to the home port,
without any suspicion, that all the parties concerned are not
legally entitled so to act; and they are taken possession of, and
administered by the administrator of the forum domicilii, with the
constant persuasion, that he may not only rightfully do so, but
that he is bound to administer them, as part of the funds appro-
priately in his hands. A different course of adjudication would
be attended with almost inextricable difficulties, and would in-
volve this extraordinary result, that all the personal property of
the deceased must be deemed to have a fixed situs, where it was
at the moment of his death; and, if removed from it, must be
returned thither for the purpose of a due administration. Nay,
debts due in’a foreign country would be absolutely required to be
retained there, until a local administration was obtained; and
could not without peril be voluntarily remitted to the creditor’s
domicil. And if the debtor should, in the mean time, remove
to another country, it might become matter of extreme doubt
whether a payment to a local administrator there would discharge
him from the debt.}

But it may, perhaps, after all, be doubtful whether, with a
strict regard to the principles of international law, the personal
property of the deceased testator or intestate, whether it consisted
of goods or of debts, situate at the time of his death in a for-
eign country, could be lawfully disposed of, except under an
administration granted in that country, although they had since
been removed, or transmitted to the domicil of the deceased, and
had been received by his administrator appointed there.?

§ 521. A case, illustrative of these remarks, has recently oc-
curred. The personal estate of an intestate consisted in a con-
siderable degree of stage-coaches and stage-horses, belonging to a
daily line, running from one state to another; and letters of
administration were taken out by the same person in both states,
one being that of the intestate’s domicil. A question arose, under

* See Stevens v. Gaylord, 11 Mass. R. 256; ante, § 515, § 515 a.
4 See ante, § 513 to § 518; post, § 525.
§ 519-523.) FOREIGN ADMINISTRATIONS. 709

which administration the property was to be accounted for, part
of it being in one state and part in the other, and part in transitu
from one to the other, at the moment of the intestate’s death.
The learned Chancellor of New York said, that, if administration
had been granted to different individuals in the two states, the
property must have been considered as belonging to that admin-
istrator, who first reduced it to possession within the limits
of his own state. But that in the case before him, as both ad-
ministrations were granted. to the same persons, if an account of
administration were to be taken, it would be necessary to settle
that by ascertaining what had been inventoried and accounted for
by him under the administration in the other state.
§ 522. Where administrations aré granted to different persons

in different states, they are so far deemed independent of each
other, that a judgment obtained against one will furnish no right
of action against the other, to affect assets received by the latter
in virtue of his own administration ; for, in contemplation of law,
there is no privity between him and the other administrator. It
might be different, if the same person were administrator in both
states. On the other hand, a judgment, recovered by a foreign
‘administrator against the debtor of his intestate, will not form the
foundation of an action against the debtor by an ancillary admin-
istrator appointed in another state.+ But the foreign adminis-
trator himself might in such a case maintain a personal suit
against the debtor in any other state; because the judgment
would, as to him, merge the original debt, and make it personally
due to him in his own right, he being responsible therefor to the
estate.

' §528. So strict is the principle, that a foreign administrator
cannot do any act, as administrator, in another state, that, where
the local laws convert real securities in the hands of an adminis-
trator into personal assets, which he may sell or assign, he cannot
dispose of such real securities, until he has taken out letters’ of
administration in the place rei site.6 Thus, mortgages are de-

? Orcutt v. Orms, 3 Paige, R. 459.

* Lightfoot v. Bickley, 2 Rawle, R. 431. * Thid.’

* Talmage v. Chapel, 16 Mass. R. 71.

* Thid. But see Smith v. Nicholls, 5 Bing. New Cas. p. 208; post, 607.

* Goodwin v. Jones, 8 Mass. R. 514, 519. See Bissell v. Briggs, 9 Mass. R. 467,

468. But see Doolittle v. Lewis, 7 Johns. Ch. R, 45, 47; Attor.-Gen. v. Bouwens,

4 Mees. & Welsb. 171, 191, 192.
CONFL, 60
710 CONFLICT OF ‘LAWS. (oH. xm.

clared by the laws of Massachusetts to be personal assets in the
hands of administrators; and disposable by them accordingly.
But the authority cannot be exercised by any, except adminis-
trators, who have been duly appointed within the state.1 On the
other hand, if an administrator sells real estate for the payment of
debts, pursuant to the authority given him under the local laws
rei site, he is not responsible for the proceeds as assets in any
other state; but they are to be disposed of, and accounted for,
solely in the place and in the manner pointed out in the local
laws.”

§ 524. In relation to the mode of administering assets by ex-
ecutors and administrators, there are in different countries very
different regulations. The priority of debts, the order of pay-
ments, the marshalling of assets for this purpose, and, in cases of
insolvency, the mode of proof, as well as the mode of distribution,
differ in different countries.2 In some countries, all debts stand
in an equal rank and order; and, in cases of insolvency, the
creditors are to be paid pari passu. In others, there are certain
classes of debts entitled to a priority of payment; and they are
therefore deemed privileged debts. Thus, in England, bond
debts and judgment debts possess this privilege; and the like:
law exists in some of the states of this Union.* Similar provis-
ions may be found in the law of France in favor of particular
classes of creditors.6 On the other hand, in Massachusetts, and
in many other states of the Union, all debts, except those due to
the government, possess an equal rank, and are payable pari
passu. Let us suppose, then, that a debtor dies domiciled in a
country where such priority of right and privilege exists; and he
has personal assets situate in a state where all debts-stand in an
equal rank, and administration is duly taken out in the place of
his domicil, and also in the place of the situs of the assets. What
rule is to govern in the marshalling of the assets? The law of
the domicil? Or the law of the situs? The established rule
now is, that in regard to creditors the administration of assets of,

1 Cutter v. Davenport, 1 Pick. R. 81. But see Doolittle »v. Lewis, 7 Johns. Ch.
R. 45, 47.

° Peck v. Mead, 2 Wendell, R. 471; Hooker v. Olmstead, 6 Pick. R. 481, 483;
Goodwin v. Jones, 3 Mass. R. 514, 519, 520.

8 Harvey v. Richards, 1 Mason, R. 421; ante, § 323 to 328, § 401 to 403.

4 Smith, Administrator, v. Union Bank of Georgetown, 5 Peters, R. 518.

5 Merlin, Répertoire, Privilége ; Civil Code of France, art. 2092 to 2106.
§ 523 - 526.] FOREIGN ADMINISTRATIONS. TAL

deceased persons is to be governed altogether by the law of the
country where the executor or administrator acts, and from which
he derives his authority to collect them; and not by that of
the domicil of the deceased. The rule has been laid down with
great clearness and force on many occasions.!

§ 525. The ground, upon which this doctrine has been estab-
lished, seems entirely satisfactory. Every nation, having a right
to dispose of all the property actually situated within it, has (as
has often been said) a right to protect itself and its citizens against
the inequalities of foreign laws, which are injurious to their inter-
ests. The rule of a preference, or of an equality in the payment
of debts, whether the one or the other course is adopted, is purely
local in its nature, and can have no just claim to be admitted by
any other nation, which in its own domestic arrangement pursues
an opposite policy. And in a conflict. between our own and for-
eign laws, the doctrine avowed by Huberus is highly reasonable,
that we should prefer our own. In tali conflictu magis est, ut jus
nostrum, quam jus alienum, servemus. —

§ 526. It seems, that many foreign jurists, but certainly not
all,? maintain a different opinion, holding, that in every case the
‘privileges of debts and theerank and order of payment thereof, are
to be governed by the law of the domicil of the debtor at the time
of his contract, or of his death. They found themselves upon the
general rule, that the creditor must pursue his remedy in the dom-
icil of the debtor, and that debts follow his person, and not that
-of the creditor. This rule was acknowledged in matters of juris-

1 See Harrison v. Sterry, 5 Cranch, 299; Milne v. Moreton, 6 Binn, R. 353,
361; Olivier v. Townes, 14 Martin, R. 93, 99; ante, § 388; De Sobry v. De
Laistre,.2 Harr. & Johns. R. 193, 224; Smith, Administrator, v. Union Bank of
Georgetown, 5 Peters, R. 518, 523; Dawes v. Head, 3 Pick. R. 128; Holmes v.
Remsen, 20 Johns. R. 265; Case of Miller’s Estate, 3 Rawle, R. 312; McElmoyle
v. Cohen, 13 Peters, R. 312. Where there are administrations and assets in dif
fesent states, and the estate is insolvent, the general principle adopted by the
courts of Massachusetts is, to place creditors there, as to the assets in the state,
upon a footing of equality with other creditors in the state, where the party had
his domicil at his death. Davis v. Estey, 8 Pick. R. 475.

* Huberus, De Confl. Leg. Lib. 1, tit. 3, § 11. See, also, Smith, Administrator,
v. Union Bank of Georgetown, 5 Peters, R. 518; ante, § 322 to 327.

® See ante, § 325 a, to 325 0, and 1 Boullenois, p. 684 to 690; Rodenburg,
Diversit. Statut. tit. 2, ch. 5, 16; 2 Boullenois, Appx. p. 47 to 50.

* Livermore, Diss. p. 164 to 171; ante, § 323 to 328. See, also, § 401 to 403.
— Mr. Livermore has, in his Dissertations, (p. 164 to 171,) controverted the cor-
712 CONFLICT OF LAWS. [ou. XII.

diction in the Roman law, in which it is said: Juris ordinem con-
verti postulas, ut non actor rei forum, sed reus actoris sequatur.
Nam, ubi domicilium reus habet, vel tempore contractis habuit, licet
hoc postea transtulerit, ibi tantum eum conveniri oportet.' But it
by no means follows, that, because this was the rule in the muni-
cipal jurisprudence of Rome, therefore it ought to be adopted, as
a portion of modern international law. Nor does it necessarily
follow, even if the rule were admitted to govern, as to the forum
where the suit should be brought against the debtor in his life-
time, that upon his death, in a conflict of the rights and privileges
of creditors (concursus creditorum) of different countries, the mu-
nicipal law of the country of the debtor should overrule the juris-
prudence of the situs of the effects?

§ 527. This, however, seems to be the doctrine of Coquille,
Mevius, Carpzovius, Burgundus, Rodenburg, Mattheus, and
Gaill.2 But it is manifest, from the language used by them, that

rectness of the American doctrine; and he holds, that the law of the debtor’s
domicil, at the time when the debt was contracted, furnishes the true rule. Mr.
Henry lays down the rule, that when the law of the domicil of the creditor and
debtor differ, as to classing debts and rights of action among personal or real
property, the law of the domicil of the debtor must prevail in suits on them.
Henry on Foreign Law, 34, 35. Mr. Dwarris states the same rule, and quotes
the maxims: “ Acter sequitur forum rei,” and “ Debita sequuntur personam debi-
toris.” He admits, indeed, that debts and rights of action attend upon the person
of the creditor, “Inherent ossibus creditoris”; but, to recover them, one must
follow the forum rei, and person of the debtor. If the question regard the dis-
tribution of the creditor’s estate, the law of his domicil is to be observed. If the
question is, in what degree or proportion the representatives of the debtor should
be charged with payment from his effects, then it is of a passive nature, and the
law of the domicil of the debtor should be followed. Dwarris on Statut. 650. It
would be difficult to point out in the English law any authority in support of this
doctrine. See, also, Dumoulin’s and Casaregis’s opinions cited in Livermore’s
Diss. 162, 163; Molin, Opera, Tom. 1. In consuetud. Paris. De fiefs. tit. 1, § 1,
Gloss. 4, n. 9, p. 56, 57, edit. 1681; Casaregis in Rubr. Stat. Civ. Genuz de Suc-
cess. ab Intest. n. 64, Tom. 4, p. 42, 43; ante, § 322 to 328.

' Cod. Lib, 3, tit. 13, 1. 2.

® Ante, § 332 to § 337.

* Livermore, Diss. § 254 to § 257, p. 166 to 171; Rodenburg, De Div. Stat.
tit. 2, ch. 5, § 16; 2 Boullenois, Appx. p. 47;, ante, § 324 to 325 0; 1 Boullenois,
p- 686 to p. 687; Id. Observ. 80, p. 818 to p. 834; Bouhier, Cout. de Bourg. ch.
21, § 204, ch. 22, § 151; Mavius, Comm. in Jus. Lubesence, Lib, 3, tit. 1, art. 11,
u, 24 to n. 27, p. 39,40; Id. art. 10, n. 51, p. 33; Mattheeus, de Auction. Lib. 1,
ch. 21, § 35, u. 10, p. 294, 295; Gaill, Observ. Pract. Lib. 2, Observ. 130, n. 12,
13, 14, p. 563; Burgundus, Tract. 2, n. 21, p. 72, edit. 1621; ante, § 324 to § 827,
§ 526, 527.) FOREIGN ADMINISTRATIONS. 718

itis a matter of no small difficulty ; and a diversity of laws and
opinions may well be presumed to exist in regard to it. Boulle-
nois holds the same doctrine. Hertius seems in one passage to
affirm it, saying: St de re immobili agitur, spectandas esse leges
situs ret indubium est, etiamsi privilegium in ea propter qualitatem
persone tribuatur. At in rebus mobilibus, st.ex contractu vel quasi
agatur, locus contractus inspiciendus esset. Enimvero, quia ante-
latio ex jure singulari vel privilegio competit, non debet in praju-
dicium illius civitatis, sub qua debitor degit, et res ejus mobiles
continert censeatur, extendi. Ad jura igitur domicilii debitoris,
ubi fit concursus creditorum, et quo omnes cujuscunque generis
lites adversus illum debitorem propter connexitatem cause trahun-
tur, regulariter respiciendum erit.2, Yet he afterwards admits that
cases may exist, where undue preferences, given by.the local laws
of one state in favor of its own subjects, may be met with a just
retaliation by others. He cites a passage from Huberus,* which
would seem to show, that the latter was of a different opinion. A
creditor (says Huberus) upon a bill of exchange, exercising his
right in a reasonable time, has a preference in Holland over all
other creditors upon the movable property of his debtor. He has
property of the like kind in Friesland, where no such law exists.
Will such a creditor be there preferred to other creditors? By no
means; since those creditors, by the laws there received, have al-
ready acquired a right. Creditor ex causd cambit, jus swum in
tempore exercens, prefertur apud Batavos omnibus aliis debitori-
bus [ereditoribus ?] in bona mobilia debitoris. Hic habet ejusmodi
res in Frisid, ubi hoc jus non obtinet. An ibi creditor etiam pre-
feretur aliis creditoribus ? Nullo modo; quoniam heic creditoribus,
vi legum hic receptarum jus pridem quesitum est. Upon this

—Not having access to the works of Carpzovius and Coquille, I am obliged to
. rely on the citations, which I find in Livermore’s Dissertations-of Coquille’s opin-
ion, and upon Rodenburg, Mevius, (ubi supra,) and Hertius for the citations from
Carpzovius. The other authors I have examined, and the citations are correct.
Ante, § 324 to § 827; post, § 782.
1 1 Boullenois, p. 818; Id. Observ. 80, p. ‘834,
* 1 Hertii, Opera, De ‘Bolla Leg. § 4, n. 64, p. 150, edit. 1737; Id. p. 211, edit.
1716; ante, § 325 5.
' § Ibid’
* Huberus, J. P. Univers. ch. 10, § 44.
5 I quote the passage as I find it in Hertius, not having access to the work of
Huberus here referred to. Huberus, J. P. Univers. ch. 10, § 44; 1 Hertii, Opera,
60*
T14 CONFLICT OF LAWS. [(cH. XIIL

Hertius remarks. Mimirum recté disceret in sect. antec. non tenert
Potestates sequi jus alienum in fraudem sui juris, et civium suo-
rum. Hinc in quibusdam Germanie regionibus cives et incole in
concursu creditorum antehabentur exteris, et pro consuetudine, que
Biberaci est, ut cives chirographiarii preferantur extraneis foren-
sibus, anteriorem hypothecam habentibus, pronunciatum in Camera
Imperiali1 Now, this seems a virtual surrender of the main
ground in all cases where there is a conflict of laws, as to the pri-
orities and preferences of creditors, between the law of the domicil.
of the debtor, or of the contract, and that of the situs of the
movables.

§ 528. In the course of administration, also, in different coun-
tries, questions often arise as to particular debts, whether they are
properly and ultimately payable out of the personal estate, or are
chargeable upon the real estate of the deceased. In all such
cases, the law of the domicil of the deceased will govern in cases
of intestacy ; and, in cases of testacy, the intention of the testator.
A case, illustrating this doctrine, occurred in England many years
ago. <A testator who lived in Holland, and was seized of real
estate there, and of considerable personal estate in England, de-
vised all his real estate to one person, and all his personal estate
to another, whom he made his executor. At the time of his
death, he owed some debts by specialty, and some by simple con-
tract in Holland, and he had no assets there to satisfy those debts ;.
‘but his real estate was by the laws of Holland made liable for the
payment of simple contract debts, as well as specialty debts, if
there were not personal assets to answer the same. The creditors

-in Holland sued the devisee, and obtained a decree there for the
sale of the lands devised for the payment of their debts. And
then the devisee brought a suit in England against the executor
(the legatee of the personalty) for reimbursement out of the per-
sonal estate. The court decided in his favor, upon the ground,
that in Holland, as in England, the personal estate was the pri-
mary fund for the payment of debts, and that it should come in
aid of the real estate, and be in the first place charged.?

De Collis. Leg. § 4, n. 64, p. 150, edit. 1787; Id. p- 211, edit. 1716. See ante,
§ 325 a. Should not debitoribus be ereditoribus ? :

+ 1 Hertii, Opera, De Collis, Leg. § 4, n. 64, p. 150, edit. 1737 ; Id. p- 211, 212,
edit. 1716; ante, § 325 8.

* Anonymous, 9 Mod. R. 66; Bowaman v. Reeve, Preced. Ch, 577,

X
§ 527-529 a.] FOREIGN ADMINISTRATIONS. 715

§ 529. In the Scottish law the same doctrine is recognized,
that is to say, that the fund which is primarily chargeable with
the debt, shall ultimately bear it in exonération of all other funds.
But, in its application under the local law to particular cases, an
opposite result may be produced from that in the case just men-
tioned ; for the personal estate is, in such cases, exonerated, and
the real estate made to bear the debt. Thus, for example, in
Scotland heritable bonds are primarily payable out of the real
estate; and, as we have seen, the personal estate of a person
domiciled, and dying in England, is held exonerated from the
charge of such a heritable bond, made by him upon real estate in
Scotland, to secure a debt contracted in England; and the Scot-
tish estate is compellable to bear the burden.t On the other
hand, by the law of Scotland, movable debts (in contradistinction
to heritable bonds) are primarily and properly chargeable upon
the personal estate. The creditor may indeed enforce payment
against the real estate in the hands of the heir; but if he does so,
the heir is entitled to relief against the executor out of the per-
sonal estate. In other words, according to the law of Scotland,
the real estate, though subject to the payment of movable debts,
is only a subsidary fund for the purpose of payment. Payment,
therefore, by the heir, does not extinguish the debt in his hands,
but vests in. him a right to recover the amount against the per-
sonal estate.2. The question has arisen, whether under such cir-
eumstances, the heir is entitled to enforce a payment out of the
personal estate of his ancestor, not only in Scotland, but in Eng-
land (where he died domiciled), according to whose laws the
personal estate is also the primary fund for the payment of debts ;
and it has been held, that he is so entitled, upon the ground, that
as between the heir and the persons entitled to the distribution
of the personal estate, the primary fund must in all cases ulti-
mately bear the burden.®

{* 529 a Many of the questions discussed in the preceding
sections, in regard to the powers of executors and administrators,

1 Ante, §.486, 487, 488 ; Drummond v. Drummond, 6 Brown, Parl. Cases, 601
(Tomlin’s edit. 1803); cited 2 Ves. & Beames, 131; Winchelsea v. Garetty, 2
Keen, R. 293, 310; Robertson on Succession, 209, 214; 4 Burge, Comm. on Col.
and For. Law, Pt. 2, ch. 15, § 4, p. 722 to p. 784; ante, § 266 a, 366, 486, 487.

* Earl of Winchelsea v. Garetty, 2 Keen, R. 293, 308,

® Earl of Winchelsea v. Garetty, 2 Keen, R. 293, 310, 311, 312. See Lord
Langdale’s opixiion cited at large, ante, § 266 ae
716 CONFLICT OF LAWS. [cH. XL.

representing the same testator, or intestate, in different countries,
or jurisdictions, have been determined by the different American
courts, state and national ; and it may not be unacceptable to the
profession to give here a brief summary of the more important
principles, of general application, which have been thus settled.

§ 529 b. In Aspden v. Nixon,! it was determined that a foreign
administrator, or executor, who was also the administrator or
executor of the same estate in one of the American states, duly
appointed, could not be held liable to account in the place of the
principal foreign administration for any of the effects belonging to
the estate, and which he had received under the American ad-
ministration ; and that consequently a decree of the High Court of
Chancery in England, where the principal administration was,
exonerating such administrator, or executor, from all responsi-
bility to account for any effects of the estate in his hands, was no
bar to a similar proceeding in this country, against the same person,
claiming to charge him with effects of the estate received here, and
which were in his hands at the time of the adjudication in Eng-
land. This decision goes, necessarily, upon the ground that a
person who is administrator of the same estate, in different states,
and who has received assets under both administrations, cannot be
compelled to account for any such effects except in the place
where received.

§ 529 c. The same doctrine has been since repeatedly re-
affirmed by the same court. Thus it was held,? that there was
such a complete want of priority between different administrators
in different states, that an action of debt will not lie in one
state against an administrator on a judgment recovered agaist a
different administrator of the same intestate appointed under the
authority of another state. And the subject is further discussed
very much at length by Mr. Justice Wayne, with similar conclu-
sions, in a more recent case. And by the same court it was held,
that the record of a debt against an administrator in one state is
not sufficient evidence of the debt against an administrator in °
another state.* So also must be regarded allowanges by commis-
sions of insolvency in the different states, if the decision last

 [*1 4 How. U. S. Rep. 467.
* Stacey v. Thrasher, 6 How. U. S. Rep. 44.
* Hill v. Tucker, 18 How. U. S. Rep. 458.
* Hill v. Meek, 18 How. U. S. Rep. 16.
§ 529 a-529 e.] FOREIGN ADMINISTRATIONS. T1T

stated is to be followed, those allowances being merely for the
purpose of reaching the estate within that particular jurisdiction.

§ 529 d. The subject came again under consideration before
the samé court in Mackey v. Cox,! when it was decided that an
administrator appointed in the Cherokee Territory may receive
payment of a debt in the District of Columbia, and his discharge,
or that of his authorized attorney, will be ‘valid, But this is
upon the ground that by the act of Congress he might sue in
the courts of that district. He did, however, out of abundant
caution, take new letters of administration in that district. The
true law in regard to ancillary administrations is here stated by
Nelson and Curtis, JJ. That this being an ancillary administration
it depended upon the discretion of the Orphans’ Court, which
granted it, whether the money remaining in the hands of the
ancillary administrator, after the satisfaction of all claims in this
jurisdiction, should be distributed here, by the ancillary adminis-
trator, or remitted to the principal administrators for distribu-
tion, and until that direction shall be executed, and the ancil-
lary administrator directed which course to pursue, he is in no
default.

§ 529 e. We apprehend that the law thus stated will be found,
in one form and another, to meet all the exigencies resulting from
this perplexing subject. Thus it will be seen, that a foreign ad-
ministrator could have no absolute authority to receive payment
of debts due the intestate here, and so vice versa where the debtor
resided in a foreign jurisdiction. And the cases which have main-
tained the affirmative of that proposition must rest upon the
assumption, that the principal administration is the place where
final distribution of the effects of the estate are to be made, unless
for special reasons, the ancillary administrations should other-
wise direct, which in their discretion they may always do. And
after such an order is made, the ancillary administrator is bound
to account for all the effects belonging to the estate, within his
jurisdiction, and which have come, or ought to have come, to his
hands. And among such effects will be reckoned all debts due
and owing by debtors to the estate resident within the jurisdic-
tion. It must then follow, that after such order of distribution
within the ancillary administration, any payment made by debtors
to the principal administrator will become unavailing. The case

1 18 How, U.S. Rep. 100.
718 CONFLICT OF LAWS. (cH. XUL

of Vaughn v. Barret,! was decided at an early day upon this
ground.

529 f. There is a very elaborate note of the American cases
upon this general subject in the later editions of Kent’s Commen-
taries,? in which it is very clearly shown, that the law of this coun-
try recognizes no privity between the different administrations in
different states, but that each is sovereign within its own limits,
and none have any authority beyond that extent. To this point
may be cited numerous leading cases from different states, where
the subject is extensively discussed.

§ 529 g. The subject of remedies, in regard to the distribution
of the estates of deceased persons, in the national tribunals, where
the parties in interest reside in different states, has been consid-
erably discussed in the Supreme Court of the United States. It
is there settled that a creditor cannot have an execution in a court
of the United States, so as to levy upon the property of an estate
reported as insolvent, and which is in the course of settlement as
such. Whether it is competent for state authority to compel for-
eign creditors, in all cases, to seek their remedies in the state
courts against the estates of decedents, to the exclusion of the
jurisdiction of the United States courts, seems not to have been
fully determined.6 But, upon principle, it would not seem com-
petent for the several states to exclude the jurisdiction of the
national tribunals, in matters of this kind, any more than in com-
mon law actions. But the mode of enforcing remedies in the

1 5 Vert. R. 333.

2 Vol. 2, p. 434, 435.

® Goodall v. Marshall, 11 N. H. R. 88; Dawes v. Boylston, 9 Mass. R. 337;
Stevens v. Gaylord, 11 id. 256; Porter v. Heydock, 6 Vt. R. 374; Bullock v.
Rogers, 16 id. 294; Abbott v. Coburn, 28 Vt. R. 663; Fay v. Haven, 3 Met. R.
109; Gravillon v. Richards, 138 Louis. R. 298; Mothland v. Wireman, 3 Penn.
St. R. 185. It was held in an early case in Vermont, Hunt v. Fay, 7 Vt. R. 170,
that where the principal administration was in one state, and a creditor having
his domicil there, failed to present his claim before commissioners, by which he
was barred from any recovery of the same in that state, that having removed
into another state where there was an ancillary administration, he could not pre-
sent it there, his neglect to present it in the first instance having extinguished his
debt. But according to present views, the debt was only barred as a ein upon
the estate so long as he remained within that jurisdiction.

* Williams v. Benedict, 8 How. 107; Peale v. Phipps, 14 id. 368; Bank of
Tennessee v. Horn, 17 How. 157.

5 Ante, n. 1; Green’s Adm’x v. Creighton, 23 How. 90, 107.
§ 529 e-5294.] FOREIGN ADMINISTRATIONS. 719

_United States courts will undoubtedly be attended with some em-
barrassments. And where the state laws provide that suits pend-
ing at the decease of a debtor whose estate is represented insol-
vent shall be discontinued and brought before the commissioners
of insolvency, we do not see but this, if binding at all, must ex-
tend to the national courts, the same as a statutory bar.

§529h. It would seem to be the established rule, however, in the
national tribunals, to allow a foreign creditor to pursue his claim to
judgment there, without regard to state laws, conferring exclusive
jurisdiction, in the settlement of estates, upon particular state
courts. But such judgments must be brought into the Probate
Court before any distribution is’ there decreed, or else it would
seem impracticable to entitle them to an equal share in the distri-
bution, where the assets proved insufficient to pay all the creditors.

§ 529 i. But in a case where all the creditors had been paid,
and the administrators still held assets in their hands, the cred-
itor having recovered judgment in the courts of the United States,
was held entitled to maintain a bill in equity in those courts to
enforce the payment of his judgment before any distribution to
the heirs, notwithstanding such judgment had not been presented
before the commissioners of insolvency appointed to audit all
claims against the estate, and the provision in the state statutes
that‘ all claims not presented to such commissioners should be for-
ever barred after a.certain time, which in this case had already
expired.}

§529k. The question of the right of those claiming title
through deceased parties, to maintain an action in a foreign fo-
tum to enforce those rights, without having taken letters of ad-
ministration there, was extensively discussed, in a recent case,
before the Court of Common Pleas; where it was held, that the
widow of a French subject, who became donee of the universality
of the real and personal estates of the succession of her husband,
and in whom, as such, all his rights, by the law of France, vested,
and who was entitled to enforce the same in her own name, and
who also became liable for all-her husband’s liabilities; and who
was compelled to pay the amount of certain bills of exchange, of
which her husband was drawer and the defendant acceptor, and
who had recovered judgment thereon in France against the de-
fendant; was not bound to take out letters of administration in

1 The Union Bank of Tennessee v. Jolly’s Adm’r, 18 How. 503; Green’s Adm’x

v. Creighton, 23 How. 90.
720 CONFLICT OF LAWS. [cH. XIII.

England in order to entitle her to maintain an action upon such
judgment.?

§ 529 1. The last case seems to go upon the ground, that the
plaintiff claimed in her own right, and not in the right of the de-
ceased. This might have been placed upon the mere ground of
judgment recovered in the name of the plaintiff. But the court
place the case mainly upon the ground, that the plaintiff by pay-
ing the debts of her husband had become the owner, in her own
right, of all the effects belonging to his estate, and might enforce
those rights in her own name. This may be true of personal es-
tate in the hands of a foreign executor and which is afterwards
converted in a foreign state? but is more questionable in regard
to choses in action, which can only be sued by some personal rep-
resentative of the deceased appointed by the probate courts in
the forum where the action is brought.3

§ 529 m. A question has arisen in regard to the comparative
authority of the state and national tribunals, in declaring the law
of a particular state or district, in which those courts hold concur-
rent jurisdiction. And in a matter of general jurisprudence the
national court of last resort had presumed to disregard the au-
thority of the state courts® in such cases,® and had virtually over-
ruled the decision of the state court, after the principle had been ac-
quiesced in for more than thirty years, and the very case for nearly
twenty years, and when it was only collaterally before them. The
decision in the national court was dissented from by three judges,
and was so manifestly a departure from its usual course, and so
much a usurpation of authority over the state courts, that it was
not and could not be followed by the state courts, without a vir-
tual surrender of their independent action. While it is probable
enough that the decision of the national court may be just and
equitable as to the private rights involved in the particular case,
it seems quite certain that the principle involved, or claimed to
be involved, of disregarding the authority of the court of last re-
sort in the state, as to what the law of the state is, cannot fairly
be maintained. ]

? Vanquelin v. Bouard, 10 Jur. N. S. 566.

? Bullock v. Rogers, 16 Vt. R. 294.

® Whyte v. Rose, 3 Q. B. Rep. 493.

* Towle v. Forney, 14 N. Y. Ct. App. 423.

® Clarke v. Van Surlay, 15 Wendell, 436; S. C. 20 Wendell, 365; S. P.

Matter of Bostwick, 4 Johns. Ch. 100.]
* Williamson v. Berry, 8 How. 495.
CH. XIV.] JURISDICTION AND REMEDIES. 721

CHAPTER XIV.

JURISDICTION AND REMEDIES.

[* § 580. Classification of remedies.
§ 531. Questions of jurisdiction, both inter partes and inter gentes.
§ 532, By the Roman Code, jurisdiction was in the domicil of defendant, or rei site.
§ 533-535. The civil law writers generally agree in this point.
§ 536. The place where the contract was made, or any act done, gave jurisdiction.
§ 537. These three forms of giving jurisdiction exist in continental countries.
§ 538, At common law, actions on personal, real, and mixed.
§ 539. Internationally, either the person or thing must be within the jurisdiction, or
any decree is void.
§ 540. How far the fact of presence gives jurisdiction over foreigners.
§ 541. Residence would seem to give jurisdiction.
§ 542. In England and America, controversies between foreigners are entertained.
§ 542 a. But will assume no jurisdiction of foreign sovereigns.
§ 543. Decrees against foreigners only bind the person.
§ 544. Courts of equity make decrees in personam affecting property abroad.
§ 545. But will make no decree directly affecting title.
§ 546. Decrees, without the presence of defendant, ee void.
§ 547. Further illustration of the point.
§548. The effect of former residence and allegiance.
§ 548 a. Serving process on public officer may give jurisdiction.
§ 549, Proceedings by attachment of property only bind the property.
§ 550. Personal estate, choses in action, &c., may be thus bound.
§551. Foreign property, and especially real estate, cannot be thus affected.
§ 552. Distinctions of actions, real, personal, and mixed, considered.
§553. The doctrine of Vattel.
§ 554, Personal actions transitory, real and mixed actions, local.
§ 555. This distinction indispensable to national sovereignty.
§ 556. Remedies governed exclusively by lex fort.
§ 557. Such a course indispensable to good order and self-respect.
§ 558. As to merits and forms of proceedings, what law governs.
§ 559-562. Discussion of these points by foreign jurists.
§ 563, Questions often arise as to what concerns the remedy.
§ 564. Classification of this topic.
§ 565. Who may sue? Rights of assignees.
§ 566. Further discussion of the rights of assignees.
4 567. Effect of a seal upon remedies.
§ 568. Process must be conformable to lex fori.
§ 569. But contracts, not importing personal liability, give none anywhere.
§ 570. This will not affect contracts in countries where no such remedy exists.
§ 571. If the contract imports personal obligation where made, the remedy must be,
in all other countries, according to ler fori.
§572, The forms of judgment and execution governed by the lex fort.
§ 572 a. In some cases such judgments cannot be enforced elsewhere.
§ 578-574 a. The opinions of foreign jurists on the point.
§ 574 6-574 d. The right to arrest the person of the debtor further discussed.
CONFL. % 61
722 CONFLICT OF LAWS. [cH. XIV.

§ 575. The right of set-off pertains to law of the forum.

§575 a. Admissibility of equitable defences.

§ 576. Statutes of limitation concern the remedy exclusively.

§ 577. The course of decision is everywhere the same on this point.

§ 578. This rule rests upon the most unquestionable policy and justice.
§ 579. Foreign jurists sometimes question it.

§ 580. Prescription limits the remedy, not the right.

§ 581. Speculations of the foreign jurists upon the point.

§ 582. Where the right is extinguished it is a perpetual bar.

§ 582 a. The local statute bars actions upon foreign judgments.

§ 582 b. Extinguished rights do not revive by the removal of parties.
§ 582 c. What concerns the remedy and what the right.

§ 583. Subject further discussed.

§ 530. We are next led to the consideration of the subject of
remedies, or the modes of redress for the violation of the rights of
other persons by proceedings in courts of justice. And, in the
nature of things, these may well be classed into three sorts ; first,
those remedies which purely regard property, movable and im-
movable; secondly, those which purely regard persons; and,
thirdly, those which regard both persons and property. The Ro-
man jurisprudence took notice of this distinction, and accordingly
divided all remedies, as to their subject, into three kinds: (1.) Real
actions, otherwise called Vindications, which were those in which a
man demanded something that was his own, and which were found-
ed on dominion, or jus inre; (2.) Personal actions, denominated
also Condictions, which were those in which a man demanded what
was barely due to him, and which were founded on some obliga-
tion, or jus ad rem; (8.) Mixed actions, which were those in
which some specific thing was demanded, and where also some
personal obligations were claimed to be performed! The real ac-
tions of the Roman law were not, like the real actions of the com-
mon law, confined to real estate; but they included personal as
well as real property. But the same distinction, as to classes of
remedies and actions, equally pervades the common law, as it does
the civil law. Thus, we have in the common law the distinct
classes of real actions, personal actions, and mixed actions; the
first embracing those which concern real estate, where the proceed-
ing is purely in rem; the next, embracing all suits in personam

1 Halifax on the Roman Law, B. 8, ch. 1, § 4, 5, p. 25, 28 ; 1 Brown, Civil and
Adm. Law, p. 439, 440. — In Pothier’s work on the Customs of Orléans, there
will be found a correspondent division of actions into the same classes. Pothier,
Coutumes d’ Orléans, Introd. Gén. ch. 4, art. 109 to 122.
§ 580 - 583. ] JURISDICTION AND REMEDIES. 723

for contracts and torts ; and ‘the last, embracing those mixed suits ,
where the person is liable by reason of, and in connection with,
property.

§ 581. In considering the nature of actions, we are necessarily
led to the consideration of the proper tribunal in which they should
be brought ; or, in other words, what tribunal is competent to en-
‘tertain them in point of jurisdiction. And, here, the subject nat-
urally divides itself into the consideration of matters of jurisdiction
in regard to the administration of mere municipal and domestic
justice ; and matters of jurisdiction in regard to the administra-
tion of justice inter gentes, founded upon principles of public law.

§ 582. In the Roman jurisprudence, and among those nations
which have derived their jurisprudence from the civil law, many
embarrassing questions, as to jurisdiction, seem to have arisen.?
The general rule of the Roman Code is, that the plaintiff must
bring his suit or action in the place where the defendant has his
domicil, or where he had it at the time of the contract. Juris ordi-
nem (said the Emperor Diocletian) converti postulas ; ut non actor
ret forum, sed reus actoris sequatur. Nam ubi domicilium reus
habet, vel tempore contractés Mubuit, licet hoc postea transtulerit,
ibi tantum eum conveniri oportet.2 But it is not to be understood,
that this rule applied to all cases where the party defendant was’
found, without any regard to the situation of the thing sought, as
if its object were to show more favor to the party defendant than
to the plaintiff. Its sole object was, that the adjudication might
be made where it could be enforced. Thus, we find the doctrine
laid down in the Code, that, although the’ general rule is, that the
plaintiff must bring his suit in the domicil of the defendant; yet
this was dispensed with in certain suits in rem; which might be
brought in the place rei site. Actor Rei forum, sive in rem, sive
in personam sit actio, sequitur. Sed et in locis, in quibus res,
propter quas contenditur, constitute sunt, pubemes in rem actionem

adversus possidentem moveri.*

§ 538. Huberus thus explains the doctrine. Cuwjus ratio non

* 3 Black. Comm. 294; Comyns, Dig. Action, N.

2 See 1 J./Voet, ad Pand. Lib. 5, tit. 1, § 303; Id. 64, 66, 74, 91, 92; Hube-
rus, Lib. 5, tit. 1, De Foro Compet, Tom. 2, § 38 to § 52, p. 722 to 730; Stry-
kius, Tom, 6, 11, p. 1, 8, Tom. 7, 1, p.5; 1 Hollen Observ. 25, p. 601, 618,
619, 635. :

* Cod. Lib. 3, tit. 13, 1. 2; ante, § 526.
* Cod. Lib. 3, tit. 19, 1. 8; 1 Boullenois, Observ. 25, p. 618, 619; post, esi
724 CONFLICT OF LAWS. ' [CH. XIV.

tam est,-quod reus sit actore favorabilior, etsi verissima ; sed quod
necessitatis vocandi et cogendi alium ad jus equum, non nist a supe-
riore proficisci queat: superior autem cujusque non est alienus, sed
proprius rector. Vocandi, inquam, et cogendi; quandoquidem sine
coactione judicia forent elusoria; nec alibi forum lege stabilitur,
quam ubi illa cogendi facultas adhiberi potest ; non tamen, ut ubi-
cunque illa valet, sit forum, sed ubi res et @quitas patitur. Vis
illa compellendi partes ad aquum jus, imprimis est in loco domi-
cilii, est etiam in loco rei site, et rei geste, st Reus illic haberi
possit, alias secus. Hine tria sunt loca fori in jure nostro, Domi-
cilii, Rei site, Rei geste ‘And, hence he thinks, that the rule of
the civil law rei site applies, not only to immovables, but to mova-
bles, although many jurists confine it to the former.? Sed heic
aliam potius rationem sequimur ; quod in foro stabiliendo maxime
consideretur, an in promptu sit effectum dare citationi, in cogendis
partibus ad obsequium jurisdictionis; que facultas eque locum
habet in mobilibus, ubi detinentur, quam in immobilibus, ubi site
sunt.§

§ 5384. But he admits, that, as the forum domicilii was of uni-
versal operation, actions in rem might be brought in the forum
domicilii, as well as in the forum ret site. Videlicet, hoc semper
tenendum, domicilit forum esse generale, quod in cunctis actiont-
bus, adeoque etiam in actionibus in rem, obtinere, sciendum est, ut*
de dd. legibus constat.4 Again he says: Summa igitur hec esto.
Domicilium in omnibus rebus et actionibus prebet forum. Res
sita preterea in actionibus in rem singularibus, non excluso domi-
cilio5 And he supposes the same rule to apply in modern times
in the civil law countries. Hec ego de foro domicilit, reique site
alterné conjuncto, moribus hodiernis eodem modo putem obtinere,
quemadmodum jure Cesaris. prescriptum est; ut maxime in rem
agatur, ubi res sita est; possit tamen omnino etiam, ubi Reus ha-
bitat.6

 Huberus, Lib, 5, tit. 1; De Foro Compet. § 38, Tom. 2, p. 722. See also 1
Boullenois, Observ. 25, p. 618, 619; post, § 551. ,

* The subject is a good deal controverted among the civilians ; but the present
work does not require me to engage in the task of discussing the various opinions
which are held by them. The learned reader will find many of them referred to
in J. Voet, ad Pandect, Tom, 1, Lib. 5, § 77, &c., p. 387.

5 Huberus, Tom. 2, Lib. 5, tit. 1, § 48, p. 727.

4 Id. § 49, p. 728.

5 Id. § 50, p. 728.

° Huberus, Tom, 2, Lib. 5, tit. 1, § 50.
§ 583 - 587.] JURISDICTION AND REMEDIES. 725

§ 5385. In regard to mixed actions, although there is no text of
the Roman law directly in point, Huberus thinks, that they may
be brought, either in the place of domicil of the defendant, or of
the rei site. De mixtis actionibus, excepté hereditatis petitione,
‘que partim in rem, partim in personam, esse dicuntur, non sunt
textus speciales, ubi sint instituende. Ideoque id ex earum proprt-
etate colligunt Interpretes, cum partim imitentur naturam persona-
lium, partim in rem actiones, illas et apud domicilium et apud rem
sitam esse movendas, §-c. Proinde sic est statuendum. Posse qui-
dem illas actiones utroque loco, domicilii, sitésque, movert; verum,
si faciende sunt adjudicationes manuque divisio regenda sit, partes
ad judicem loci remittendas esse, res ipsa loquitur.1

§ 586. The civil law contemplated another place of jurisdiction,
to wit, the place where a contract was made, or was to be fulfilled,
or where any other act was done, if the defendant or his property
could be found there, although it was not the place of his domicil.
Iilud sciendum est, eum, qui ita fuit obligatus, ut in Italid solveret,
si in provincia habuit domiciliunt, utrobique posse conveniri, et hic,
icf ibit.2 Huberus explains this thus. Sequitur causa fori tertia,
quam Rem Gestam esse diximus, eamque vel ex contractu vel ex
delicto admisso, &c. Sed contractus ita forum tribuit, si contra-
hens in eodem loco reperiatur; quod convenit, requisito communi
inde ab initio collocato, nullam esse fori causam, nist cum facul-
tate cogendi conjunctam + qualis non est ex historié contractis, st
vel Reus ibi non inveniatur, vel bona duntaxat sita non habeat, in
que missio fieri possit, quando Reus se in loco contractis non sis-
tit.2 These distinctions of the Roman law have found their way
into the jurisprudence of most, if not all, of the continental na-
tions of modern Europe. ,

§ 587. Accordingly we find it laid down by foréign jurists gen-
erally, that there are, properly speaking, three places of jurisdic-
tion ; first the place of domicil of the party defendant, commonly
called the forum domicilit ; secondly, the place where the thing in
controversy is situate, commonly called the forum rei site; and
thirdly, the place where the contract is made, or other acts done,
commonly called forum rei geste, or forum contractis. Vis illa

1 Td. § 51, p. 729.
* Dig. Lib. 5, tit. 1, 1.19, § 4. See also as to all these distinctions, Pothier,
Pand. Lib. 5, tit. 1, n. 29 to 44; Cod. Lib. 3, tit. 18, 1. 1.
* Huberus, Tom. 2, Lib. 5, tit. 1, § 53, 54, p. 729, 730.
61*

‘
726 CONFLICT OF LAWS. [cH. XIV.

compellandi partes ad equum jus (says Huberus) imprimis est in
loco domicilii ; est etiam in loco ret site; et ret geste, si reus illic
habert posse; alias secus. The same distinctions are fully laid
down by John Voet, in Boullenois, to whom we may generally
refer for more copious information.? They are also recognized in
the Scottish law. They have been here brought into view, be-
cause they constitute the basis of the reasoning of many of the
foreign jurists, in discussing the great doctrines respecting the
competency of tribunals to hold jurisdiction of causes; and the
proper operation of judgments and decrees (rei judicate). They
are also known as fundamental elements in the actual jurispru-
dence of many of the modern nations of continental Europe.*

§ 538. In the corresponding distribution of actions by the com-
mon law into personal actions, and real actions, and mixed ac-
tions,® the two latter are, in point of jurisdiction, confined to the
place rei site; and the former are generally capable of being
brought wherever the party can be found. Or, as the judicial
phrase is, in the common law, real actions'and mixed actions
are local; and personal actions are transitory.§

* Huberus, Tom. 2, Lib. 5, tit. 1, De Foro Compet. § 38, p. 722.

2 J. Voet, ad Pand. Lib. 5, tit. 1, De Judiciis, p. 303, §°64 to § 149; 1 Boulle-
nois, Observ. 25, p. 601; Id. p. 618, 619; Id. p. 685; Henry on Foreign Law,
ch. 8, p. 54, ch. 9, p. 63.

5 Erskine, Inst. B. 1, tit. 2, § 16 to 22, p. 29 to 39.

* See Code de Procédure Civile of France, B. 1, tit. 1, art. 1 to 4; Henry on
Foreign Law, ch. 8, p. 54, ch. 9, p. 63, ch. 10, p. 71; Pardessus, Droit Comm.
Tom. 5, art. 1353; 1 Boullengis, Observ. 25, p. 601, 618, 619; Id. 6385. In
France, sarstinton: would seem generally to belong either to the place of domi-
cil, or to the place rei site. Jurisdiction in the place of the contract, or of the
other act done, does not seem to have been recognized under the old jurisprudence,
and it does not exist in the modern Code. Code de Procédure Civile, art. 1, 2.
“ Le lieu (says Boullenois) ou se passent les actes, celui ou les parties s’obligent de
payer, et leur soumission, ne déterminent pas la justice ou elles doivent plaider.”
1 Boullenois, Observ. 80, p, 829, 830, 831, 832; 2 Boullenois, p. 455, 456, 457.
Dumoulin says: “ Ceeterum ex eo solo, quod quis promisit solvere certo loco, licet
jbi conveniri possit de jure, sicut si ibi contraxisset ; tamen hoc non observatur in
hoc regno ; quia in hoc regno non sortitur quis icon ratione contractus, etiam
vere et realiter facti in luco.” Molin. Opera, Comm. in Decii, Tom. 3, p. 837, edit.
1681; 1 Boullenois, Obsery. 30, p.829. See also Pothier, Traité de la Procédure
Civile, ch. 1.

5 g Black. Comm. 117, 118.

* 3 Black. Comm. 294; Comm. Dig. Action, N.; 1 Chitty on Comm, and
Manuf. p. 647, 648, 649.
§ 587 -540.] JURISDICTION AND REMEDIES. 727

§ 589. Considered in an international point of view, jurisdic-
tion, to be rightfully exercised, must be founded either upon the
person being within the territory, or upon the thing being within
the territory ; for, otherwise, there can be no sovereignty exerted
upon the known maxim: Extra territorium jus dicenti impune
non paretur Boullenois puts this rule among his general prin-
ciples. The laws of a sovereign rightfully extend over persons:
who are domiciled within his territory, and over property which
is there Situate.2 Vattel lays down the true doctrine, in clear
terms. “The sovereignty, (says he,) united to domain, estab-
lishes the jurisdiction of the nation in its territories, or the coun-
try, which belongs to it. It is its province, or that of its sov-
ereign, to exercise justice in all places under its jurisdiction, to
take cognizance of the crimes committed, and the differences that
arise in the country.” On the other hand, no sovereignty can
extend its process beyond its own territorial limits, to subject
either persons or property to its judicial decisions. Every ex-
ertion of authority of this sort beyond this limit is a mere nullity,
and incapable of binding such persons or property in any other
tribunals. This subject, however, deserves a more exact con-
sideration. . ‘

§ 540. In the first place let us consider. the subject of jurisdic-
tion a little more particularly in regard to persons. These may
be, either citizens (native or naturalized), or foreigners. In
regard to the former, while within the territory of their birth,
or of their adopted allegiance, the jurisdiction of the sovereignty
over them is complete and irresistible. It cannot be controlled ;
and it ought to be respected everywhere. But.as to citizens of a
country domiciled abroad, the extent of jurisdiction, which may
be lawfully exercised over them in personam, is not so clear upon
acknowledged principles. It is true, that nations generally assert
a claim to regulate the rights, and duties, and obligations, and
acts of their own citizens, wherever they may be domiciled. And,
so far as these rights, duties, obligations, and acts afterwards
come under the cognizance of the tribunals of the sovereign power

1 Dig. Lib. 2, tit. 1, 1. 20.

* 1 Boullenois, Pr. Gén. 1, 2, p. 2, 3.

® Vattel, B. 2, ch. 8, § 84.

* Picquet v. Swan, 5 Mason, R. 35, 42. See Russel v. Smyth, 9 Mees. &
Welsb. R. 819; De Witt v. Burnett, 3 Barb. 96.
728 CONFLICT OF LAWS. [cH. XIV.

of their own country, either for enforcement, or for protection, or
for remedy, there may be no just ground to exclude this claim.
But when such rights, duties, obligations, and acts come under
the consideration of other countries, and especially of the foreign
country where such citizens are domiciled, the duty of recogniz-
ing and enforcing such a claim of sovereignty, is neither clear,
nor generally admitted. The most that can be said, is, that it
may be admitted ex comitate gentium. But it may also be denied
ex justitid gentium, whenever it is deemed injurious té the inter-
ests of such foreign nations, or subversive of their own policy or.
institutions. No one, for instance, would imagine, that a judg-
ment of the parent country, confiscating the property, or ex-
tinguishing the personal rights or personal capacities of a native
subject, on account of such a foreign residence, would be recog-
nized in any other country. And it would be as little expected,
as a matter of right, that any other country would enforce a
judgment against such persons in the parent country, obtained
im invitum, on account of a supposed contumacy in remaining
abroad, to which suit he had never appeared, and of which he
had received no notice; however the proceedings might be in
conformity to the.local laws. This is the just result deducible
from the axioms of Huberus already quoted ; and especially, from
the first and second of these axioms.!_ Whatever authority should
be given to such judgments, must be purely ex comitate, and not
as matter of absolute or positive right on one side, and of duty on
the other.

§ 541. In regard to foreigners, resident in a country, although
some jurists deny the right of a nation generally to legislate over
them, it would seem clear, upon general principles of interna-
tional law, that such a right does exist; and the extent to which
it should be exercised, is a matter purely of municipal arrange-
ment and policy. Huberus lays down the doctrine in his second
axiom. All persons who are found within the limits of a govern-
ment, whether their residence is permanent or temporary, are to
be deemed subjects thereof? Boullenois says, that the sovereign
has a right to make laws to bind foreigners in relation to their
property. within his domains; in relation to contracts, and acts

1 Ante, § 29.

2 Td. i Huberus, Tom, 2, Lib. 1, tit. 3, § 2, p. 588; ante, § 29, note 3; Henry
on Foreign Law, ch. 8, p. 54, ch. 9, p. 68, ch. 10, p. 71. ,
§ 540-542 a.] JURISDICTION AND REMEDIES. 729

done therein; and, in relation to judicial proceedings, if they
implead before his tribunals! And, further, that he may, of
strict right, make laws for all foreigners, who merely pass through
his domains, although commonly this authority is exercised only
as to matters of police.2 Vattel asserts the same general doctrine,
and says, that foreigners are subject to the laws of a state, while
they reside in it. And, in relation to disputes which may arise
between foreigners, or between a citizen and a foreigner, he holds,
that they are to be determined by the judge of the place, and
according to the laws of the place of the defendant’s domicil.*

§ 542. There are nations, indeed, which wholly refuse to take
cognizance of controversies between foreigners, and remit them
for relief to their own domestic tribunals, or to that of the party
defendant; and, especially, as to matters originating in foreign
countries. Thus, in France, with few exceptions, the tribunals
do not entertain jurisdiction of controversies between foreigners
respecting personal rights and interests. But this is a matter of
mere municipal policy and convenience, and does not result from
any principles of international law. In England and America, on
the other hand, suits are maintainable, and are constantly main-
tained, between foreigners, where either of them is within the
territory of the state in which the suit is brought.

[§ 542 a. The question has been much discussed of late, how
far foreign princes may be made amenable in the courts of an-
other state, or whether they are exempt from its jurisdiction. In
a very recent case® in the House of Lords, it was held, that a
foreign sovereign, although a British subject, coming to England
and there exercising his rights as such subject, could not be made
responsible in the English courts for acts done in his own country
in virtue of his authority as sovereign, and not as a British sub-

1 1 Boullenois, Pr. Gén. 4, 5, p. 3.

* Td. 5, p. 3. :

* Vattel, B. 1, ch. 19, § 213; Id. B. 2, ch. 8, § 99,101,103. See Caldwell v.
Van Vlissenger, 16 English Jurist, 115; S.C. 9 Eng. Law & Eq. Rep. 51.

* Id. B. 2, ch. 8, § 103.

* See Pardessus, Droit Comm. Tom. 5, art. 1476 to 1478, p. 238; Henry on
Foreign Law, Appendix, p. 214 to 216.

® Duke of Brunswick v. King of: Hanover, 2 Clark & Finn. N. S.1. And see
De Haber v. The Queen of Portugal, and Wadsworth v. The Queen of Spain, 7
Eng. Law & Eq. Rep. 340. A foreign sovereign, it seems, has an undoubted right
to sue, either at law or in equity, in the courts of another state. “Hullett v. King
of Spain, 1 Dow. & Clark, 169.
730 CONFLICT OF LAWS. [cH. XIV.

ject; and Lord Lyndhurst observed: “It must be a very par-
ticular case indeed, even if any such case could exist, that would
justify us in.interfering with a foreign sovereign in our courts.”’]

§ 543. But, although every nation may thus rightfully exercise -
jurisdiction over all persons within its domains; yet, we are to un-
derstand, that, in regard thereto, the doctrine applies only to suits
purely personal, or to suits connected with property within the
same sovereignty. For, although the person may be within the
territorial jurisdiction ; yet, it is by no means true, that, in virtue
thereof, every sort of suit may there be maintainable against him.
A suit cannot, for instance, be maintainable against him, so as ab-
solutely to bind his property situate elsewhere ; and, @ fortiori,
not so as absolutely to bind his rights and titles to immovable
property situate elsewhere. It is true, that some nations do, in
maintaining suits in personam, attempt, indirectly, by their judg-
ments and decrees, to bind property situate in other countries ;
but it is always with the reserve, that it’ binds the person only in
their own courts in regard to such property. Aid, certainly, there
can be no pretence, that such judgments or decrees bind the prop-
erty itself, or the rights over it, which are established by the laws
of the place where it is situate. If a Court of Chancery, in Eng-
land, should compel a bankrupt by its decree, to convey his per-
sonal and real estate, situate in foreign countries, to the assignees
under the commission, (as it was at one time thought they might
do, although now the doctrine is repudiated) ;! yet such a decree
would not operate to transfer the property, so as to affect the
rights of creditors, or the regular operation of the laws of the state
ret site. So, a foreign court cannot, by its judgment or decree,
pass the title to land situate in another country ; neither can it
bind such land by a judgment or decree, that in default of the de-
‘fendants in the suit conveying it shall be conveyed by the deed of
its own officers to the plaintiffs. Such a conveyance, made by its
officers, would be treated in the country, where the land is situate,
as a mere nullity?

§ 544. The doctrine of the English Courts of Chancery, on this
head of jurisdiction, seems carried to an extent, which may, per-
haps, in some cases, not find a perfect warrant in the general prin-

1 Ex parte Blades, 1 Cox, R. 398; Selkrig v. Davies, 2 Rose, Bank. Cases, 79 ;

Id. 291; 8. C. 4 Dow, R. 231.
“* Watts v. Waddle, 6 Peters, R. 389, 400.
§542 a-544.] JURISDICTION AND REMEDIES. 731

ciples of international public law; and, therefore, it must have a
very uncertain basis, as to its recognition in foreign countries, so far
as it may be supposed to be founded in the comity of nations. That
doctrine is, that the Court of Chancery, having authority to act upon
the person (agere in personam) may indirectly act upon real estate,
situate in a foreign country, through the instrumentality of this
authority over the person; and that it may compel him to give
effect to its decree respecting such property, whether it goes to the
entire disposition of it, or only to affect it with liens or burdens.1
Lord Hardwicke asserted the jurisdiction in several cases.2 Ata
more recent period the Court of Chancery asserted the jurisdiction
over a British creditor, who had fraudulently obtained a judgment
in the British West Indies against his debtor, and had on an exe-
cution sold his debtor’s real estate there, and become the purcha-
ser thereof; and the court set aside the purchase for the fraud.
It is observable, that in this last case all the parties were British
subjects, and the original judgment was in a British island. The
Master of the Rolls, (Sir R. P.’Arden,) on that occasion said:
“Upon the whole, it comes to this; that, by a proceeding in the
island, an absentee’s estate might be brought to sale, and for what-
ever interest he has, without any particular, upon which they are
to bid; the question is, whether any court will permit the trans-
action to prevail to that extent. It is said, this court has no juris-
diction, because it is a proceeding in the West Indies. Jt has been
argued, very sensibly, that it is strange for this court to say, it is
void by the laws of the island, for want of notice. I admit, I am
bound to say, that, according to those laws, a creditor may do this.
To that law he has had recourse, and wishes to avail himself of
it; the question is, whether an English court will permit such an
use to be made of the law of that island, or any other country,
It is sold, not to satisfy the debt, but in order to get the estate,
which the law of that country never could intend, for a price
much inadequate to the real value; and to pay himself more than
the debt, for which the suit was commenced, and for which only
the sale could be holden. It was not much litigated, that the
courts of equity here have an equal right to interfere with regard

1 See 1 Eq. Abridg. C. p. 183; Arglasse v. Muschamp, 1 Vern. R. 75, 135;
Kildare v. Eustace, 1 Vern. R. 75, 135, 419.

* See Foster v. Vassal, 3 Atk. 589; Penn v. Lord Baltimore, 1 Ves. R. 444,

® Cranstown v. Johnston, 3 Ves. jr. 170; S.C. 5 Ves. jr. 277.
732 CONFLICT OF LAWS. [oH. XIV.

to judgments or mortgages upon the lands in a foreign country,
as upon lands here. Bills are often filed upon mortgages in the
West Indies. The only distinction is, that this court cannot act
upon the land directly, but acts upon the conscience of the person
living here. Archer v. Preston, Lord Arglasse v. Muschamp,
Lord Kildare v. Eustace, (1 Eq. Abr. 133; 1 Vern. 75, 135, 419).
Those cases clearly show, that with regard to any contract made,
or equity between persons in this country, respecting lands in a
foreign country, particularly in the British dominions, this court
will hold,the same jurisdiction, as if they were situated in Eng.
land. Lord Hardwicke lays down the same doctrine (8 Atk. 589).
Therefore, without affecting the jurisdiction of the courts there,
or questioning the regularity of the proceedings, as in a court of
law, or saying, that this sale would have been set aside either in
law or equity there, I have no difficulty in saying, which is all I
have to say, that this creditor has availed himself of the advantage
he got by the nature of those laws, to proceed behind the back of
the debtor upon a constructive notice, which could not operate to
the only point to which a constructive notice ought, that there
might be actual notice without wilful default ; that he has gained
an advantage; which neither the law of this, nor of any other
country would permit. I will lay down the rule as broad as this:
this court will not permit him to avail himself of the law of any
other country to do, what would be gross injustice.” }

§ 545. To the extent of this decision, perhaps there may not be
any well-founded objection ;? and the same doctrine has been re-
peatedly acted upon by the Equity courts of America. But even
in England, the Court of Chancery will not act directly upon
lands in the plantations, so as to affect the title, or the possession,
or the rents and profits thereof Nor will it entertain jurisdic-
tion over contracts with regard to lands in foreign colonies, so as
to touch the title there; or to prevent a sale thereof by an injunc-
tion ;° although it has been repeatedly held, in very general terms,
that there is no doubt of the jurisdiction of the Court of Chancery,

2 Cranstown v. Johnston, 3 Ves. R. 170; S.C. 5 Ves. 277.

2 Jackson v. Petrie, 10 Ves. 164.

> See Massie v. Watts, 6 Cranch, 148, 158; Ward v. Amedon, Hopkins, R.
213; Mead v. Merritt, 2 Paige, R. 402; Mitchell v. Bunch, 2 Paige, R. 606.

* Roberdeau v. Rous, 1 Atk. 543. See 1 Vern. R. 75, 135, 419; post, § 551.

* White v. Hall, 12 Ves. jr. 321. See Massie v. Watts, 6 Cranch, 148, 156.
§ 544 -547.] JURISDICTION AND REMEDIES. 733

as to land in the West Indies, or in other foreign places, if the
:persons are in England.}

§546. But it is not an uncommon course for a nation by its
own municipal code to provide for the institution of actions
against non-resident citizens, and against non-resident. foreign-,
ers, by a citation viis et modis, (as it is called,) or by an attach-
ment of their property, nominal or real, within the limits of its
own territorial sovereignty ; and to proceed to judgment against
the party defendant, whether he has any actual notice of the suit,
or not, or whether he ever appears to the suit, or not. In respect
to such suits im personam, by a mere personal citation, viis et
modis, such as by posting up such a citation on the Royal Ex-
change, in London, as is done in the Admiralty in England, or by
an edictal citation (as it is called) posted up at the Key in Leith,
at the market cross of Edinburgh, and the pier and shore of Leith,
-according to the practice of Scotland,? there is no pretence to say,
that such modes of proceeding can confer any legitimate jurisdic-
tion over foreigners, who are non-residents, and do not appear to
answer the suit, whether they have notice of the suit, or not. The
effects of all such proceedings are purely local; and, elsewhere,
they will be held to be mere nullities.

§ 547. Lord Ellenborough put this doctrine with great clear-
ness and force, in a case before the court, where a judgment was
obtained in the island of Tobago, against a party, stated in the
proceedings, to be “formerly of the city of Dunkirk, and now of
the city of London, merchant,” and who was cited to appear at
the ensuing court to answer the plaintiff’s action, by a summons,
which was returned served “ by nailing up a copy of the declara-
tion at the court-house door,” and on which service judgment was
afterwards given by default of the defendant to appear and de-
fend it. It was attempted to maintain the judgment, as author-
ized by the local law, in cases of persons absent from the island.

1 Jackson v. Petrie, 10 Ves. 165.

1 Ersk. Inst. B. 1, tit. 2, § 17, 18; Id. B. 4, tit. 1, § 8. — After a decree is ob-
tained in personam, in Scotland, it seems, that letters of horning, as they are
called, issue, requiring the defendant to comply with the decree, which may be
served by personal service, or, if the party cannot be found, by application at his
place of domicil, or dwelling-house ; and, if he is out of the kingdom, then he, is
charged by a copy put up at the market cross in Edinburgh, and at the pier and
shore of Leith. Ersk. Inst. B. 2, tit. 5, § 55; Id. B. 4, tit. 3,§ 9. See Douglas v.
Forrest, 4 Bing. R. 686, 690.

CONFL. 62
734 CONFLICT OF LAWS. [cH. XIV.

Lord Ellenborough, in delivering the judgment of the court, said:
“< By persons absent from the island, must necessarily be under-
stood persons, who have been present, and within the jurisdiction,
so as to have been subject to the process of the court; but it can
never be applied to a person, who, for aught appears, never was
present within, or subject to the jurisdiction. Supposing, how-
ever, that the act had said in terms, that though a person sued in
the island had never been present within the jurisdiction ; yet
that it should bind him, upon proof of nailing up the summons at
the court door; how could that be obligatory upon the subjects
of other countries? Can the Island of Tobago pass a law to bind
the rights of the whole world? Would the world submit to such
an assumed jurisdiction? The law itself, however, fairly con-
strued, does not warrant such an infergnce ; for “ absent from the
island” must be taken only to apply to persons, who had been
present there, and were subject to the jurisdiction of the court out
of which the process issued ; and, as nothing of that sort was in
proof here to show, that the defendant was subject to the juris-
diction at the time of commencing the suit, there is no foundation
for raising an assumpsit in law upon the judgment so obtained.” }
This doctrine has been fully recognized in the American courts.?

1 Buchanan v. Rucker, 9 East, R. 192, 194. See Cranstown v. Johnston, 3 Ves.
R. 170; 5 Ves. 277; Cavan v. Stewart, 1 Starkie, R. 525; Becquet v. McCar-
thy, 2 Barn. & Adolph. 951; Ferguson v. Mahon, 11 Adolph. & Ellis, 179, 182.
— In Smith v. Nicholls, 5 Bing. New Cases, 208, which was an action of trover
for a ship, the defendant, among other things, pleaded a foreign judgment and re-
covery by the plaintiff in the Vice-Admiralty Court at Sierra Leone for the same
subject-matter. To that plea there was a replication, that the defendant was not
in the Colony of Sierra Leone, or at any place within the jurisdiction of the Vice-
Admiralty Court, at the commencement of, or at any time during the proceed-
ings, or any time until after the judgment in the Colony of Sierra Leone, and had
no notice thereof, &.; and Lord Chief Justice Tindal in delivering his opinion,
adverting to this point, said: “ The effect of the plaintiff’s replication, is this, —
He shows some matters, by which at least prima facie the judgment relied on isa
void judgment ; for he says, at the time of the suit being commenced, and from
that time down to the termination of the suit, not only was the defendant in that”
action absent from the place, but that he had no person, whatever, no agent, or
.any other person, on whom any process or monition from the court could be

* Tenton v. Garlick, 8 Johns. R. 194; Borden v. Fitch, 15 Johns. R, 121; Bis-
sel v. Briggs, 9 Mass. R. 462; Mills». Dury, 7 Cranch, 481, 486; Picquet v. Swan,
5 Mason, R. 85, 43, 44; Buttrick v. Allen, 8 Mass. R. 273; De Witt v. Burnett,
8 Barb. 96.
§ 547, 548.] JURISDICTION AND REMEDIES, 735

§ 548. In a recent case, the validity of a judgment rendered in
a foreign country in a suit against persons who were non-resi-
dents, and had no actual notice of the suit, and did not appear
and answer the same, came before the Court of Common Pleas in
England, upon a Scottish judgment rendered against a Scottish
absentee, upon a due attachment of his heritable property in Scot-
land, and due proclamation, by what is technically called “ horn-

served, or who could answer for him. Till that is answered by showing, that there
was some law in the colony from which, in the situation the party was, the judg-
ment would not be a void one, we must say the plaintiff in setting up that, which,
if unanswered, shows it to be a void judgment. In Plummer v. Woodburne, the
court says, that before you set up a foreign judgment as conclusive in the nature
of an estoppel between the parties, it must appear on the record, that it is decisive
and binding between them in the colony, where the judgment is given. That does
not appear here ; and therefore on both grounds I think the plea is a bad plea, as far
as the foreign judgment is concerned.” See also Plummer v. Woodburne, 4 Barn.
& Cresw. 625. Lord Brougham, i in alluding to the same subject in Don v. Lipp-
mann, 5 Clark & Finnell. 1, 20, 21, said: “But supposing that the debt might
have been sued for in France, then comes the question, whether the French judg-
ment cannot be sued on as a substantive cause of action. It is, in fact, tendered
as one of the grounds of suit here. A foreign judgment is good here for such a
purpose, provided that it has not been obtained by fraud or collusion, or by a
practice contrary to the principles of all law. Fraser-v. Sinclair, (Morr. 4543,)
which was affirmed in this House, showed, that we regard a foreign judgment
only as primd facie evidence of a debt. Buchanan v. Rucker, (1 Camp. 63; 9
East, 192,) established, that the court, before which a foreign judgment is brought
by a proceeding of this sort, may examine, whether it has been rightly obtained
or not; and the principle of the decision cannot be confined to the case of a par-
ty not being within the jurisdiction at the time the judgment is obtained. If he
is a foreigner, and is not within the jurisdiction, but is by force kept out of it be-
fore the action, and is not sued by proper forms, his case is even stronger than
that of the defendant in Buchanan v. Rucker, and he must have the same princi-
ple applied to-it. The case of Douglas v. Forrest, (4 Bing. 686,) shows how much
the application of the rule is affected by circumstances. Ta. that case, which was an
action in an English court on a Scotch judgment of horning against a Scotchman
born, the court guards itself against a general inference from the decision. The
Chief Justice, in delivering the judgment of the court, says: (4 Bing. 703,) ‘We
confine our judgment to a case, where the party owed allegiance to the country,
in which the judgment was so given against him, and by the laws of which coun-
try his property was, at the time those judgments were given, protected.’ Beck-
ett v. McCarthy, 2 Barn. & Ad. 951,) has been supposed to g0 to the verge of the
law; but the defendant irf that case held a ‘public office in the very colony in
which he was originally sued.” , In the still more recent case of Fergusson v. Ma-
hon, 3 Perr. & Dav. RB. 143, the Court of King’s Bench in England held, in an
action on an Irish judgment, that it was a good plea jn bar, that the defendant
was never served with, nor had notice of any process in the action.
736 CONFLICT OF LAWS. [cH. XIV.

ing” in Scotland, which judgment was rendered against the de-
fendant by default for his non-appearance to answer the suit.
The question was, whether the judgment so rendered was void, or
not. It was held, that the judgment was valid. This decision
was founded partly upon the construction of the articles of union
between Scotland and England, and partly upon the recognition
of such a practice, as valid, by a British Act of Parliament, and

partly upon the fact, that the judgment was against a Scottish -
subject. On that occasion, Lord Chief Justice Best in delivering
the opinion of the court, said: “A natural-born subject of any
country, quitting that country, but leaving property under the

protection of its laws, even during his absence, owes obedience to

those laws, particularly when those laws enforce a moral obliga-

tion. The deceased, befoye he left his native country, acknowl-

edged, under his hand, that he owed the debts; he was under

a moral obligation to discharge those debts, as soon as he could.”?

And after adverting to the case of Buchanan v. Rucker, and some

others, he added : “ To be sure, if attachments, issued against any

persons, who were never within the jurisdiction of the court issu-

ing them, would be supported and confirmed in the country in

which the person attached resided, the legislature of any country

might authorize their courts to decide on the rights of parties,

who owed no allegiance to the government of such country, and

were under no obligation to attend its courts, or obey its laws.

We confine our judgment to a case, where the party, owed alle-

giance to the country in which the judgment was so given against

him, from being born in it, and by the laws of which country his

property was, at the time those judgments were given, protected.

The debts were contracted in the country in which the judgments

were given, whilst the debtor resided in it.8

§ 548 a. Another case also occurred at a later period, which

presented a similar question. An action was brought and a judg-

ment recovered in the island of Mauritius against a party, who

had been a former resident in the island, but who was absent

from the island during the whole course of the proceedings. By:

a law of the colony it was provided, that if a suit was instituted

1 Douglas v. Forrest, 4 Bing. R. 686, 702, 703.

. Ibid.

5 Douglas v. Forrest, 4 Bing. R, 686, 702, 708. See also Becquet v. McCar-
thy, 2 Barn, & Adolph. R. 951; Don v. Lippmann, 5 Clark & Finnell, 1, 21;
Plummer v. Woodburne, 4 Barn. & Cresw. R. 625.
§ 548 - 549.] JURISDICTION AND REMEDIES. 73T

against an absent party, process should be served upon the King’s
Procurator-General in the colony; but it was not expressly pro-
vided that the Procurator-General should communicate with the
absent party. It appedred ihat the process was served on the Pro-
curator-General, but it did not appear, that the absent party had
any notice thereof. The court held, that the judgment was valid.
Lord Tenterden, on that occasion, in delivering the opinion of the
court, said: “‘ Another objection, and not an unimportant one,
was, that the testator, when the proceedings were instituted against
him, was absent from the island; and it was urged, that it was
contrary to the principles of natural justice, that’ any one should
be condemned unheard, and in his absence. Proof, however, was
given, that by the law of the colony, in the case of a person for-

merly resident in the island, absenting himself, and not leaving
any attorney upon whom process in a suit might be served, the.
Procurator-General or his deputy was bound to take care of the
interest of such absent party. It was said, that the law of the
island did not provide any means, whereby the Procurator-Gen-
eral or his deputy might be required to hold communication with,
or receive directions from, an absent person. There may, per-
haps, be some deficiency in the law in that respect; but as the
law of the island is, that the process shall be served upon the pub-
lic officer, it must be presumed, that he would do whatever was
necessary in the discharge,of that public duty ; and we cannot
take upon ourselves to say, that the law is so contrary to natural
justice, as to render the judgment void in a case, where the pro-
cess was so served.” 1

§ 549. A still more common course, in many states and nations,
is, to proceed against non-residents, whether they are citizens, or
whether they are foreigners, by a seizure or attachment of their
property situate or found within the territory. Sometimes. the
seizure or attachment is purely nominal, as, for example, of a chip,
oracane, or a hat. In other cases the seizure or attachment is

* Becquet v. McCarthy, 2 Barn. & Adolph. 951, 958, 959. — It has been justly
remarked by Lord Brougham, (in Don v. Lippman, 5 Clark & Finnel. 21,) that
that case “ has been supposed to go to the verge of the law; but the defendant
in that case held a public office in the very colony, in which he was originally
sued.” Perhaps a stronger doubt of its correctness might upon principles of pub-
lic justice have been pronounced. Boullenois manifestly deems an exercise of
Jurisdiction against an absent foreigner to be unfounded in point of authority. 1

Boullenois, Observ. 25, p. 610.
62*
738 CONFLICT OF. LAWS. [cH. XIV.

bond fide of real property, or personal property, within the terri-
tory, or of debts due to the non-resident persons in the hands of
their debtors, who live within the country." In such cases, for all
the purposes of the suit, the existence of the property, so seized
or attached within the territory, constitutes a just ground of pro-
ceeding, to enforce the rights of the plaintiff to the extent of sub-
jecting such property to execution upon the decree or judgment.
But if the defendant has never appeared and contested the suit, it
is to be treated to all intents and purposes as a mere proceeding
in rem, and not, as personally binding on the party as a décree or
judgment in personam ; or, in other words, it only binds the prop-
erty seized or attached in the suit to the extent thereof; and is in
no just sense a decree or judgment, binding upon him beyond that
property. In other countries, it is uniformly so treated, and is
justly considered as having no extra-territorial force or obliga-
tion?
i 1 See Henry on Foreign Law, ch. 8, 9,10, p. 54, 63, 71; Douglas v. Forrest,
4 Bing. R. 686, 700, 701.

2 See Ewer v. Coffin, 1 Cushing, 23; Phelps v. Holker, 1 Dall. 261; Kilburn
v. Woodworth, 5 Johns. R. 37; Pawling v. Bird’s Ex’ors,-13 Johns. 192; Bissell
v. Briggs, 9 Mass. R. 462; Robinson v. Ex’ors of Ward, 8 Johns. R. 86; post,
§ 592. But see Douglas v. Forest, 4 Bing. R. 686, 702, 703; Shumway »v. Still-
man, 6 Wendell, R. 447; 1 Boullenois, Observ. 25, p. 609, 610, 619, 620, 622,
623, 624, 628; 6 Harris & Johns. R. 191; Taylor v. Phelps, 1 Har. & Gill. R.
492. — Mr. Chief Justice Parsons, in his very able opinion in Bissell v. Briggs,
(9 Mass. R. 468,) has made some pointed remarks on this subject, from which
the following extract is made. “ To illustrate this position, it may be remarked,
that a debtor, living in Massachusetts, may have goods, effects, or credits in New
Hampshire, where the creditor lives. The creditor there may lawfully attach
these, pursuant to the laws of that state, in the hands of the bailiff, factor,
trustee, or garnishee of his debtor, and, on recovering judgment, those goods,
effects, and credits, may lawfully be applied to satisfy the judgment; and the
bailiff, factor, trustee, or garnishee, if sued in this state for those goods, effects, or
credits, shall, in our courts, be protected by that judgment, the court in New
Hampshire having jurisdiction of the cause for the purpose of rendering that
judgment, and the bailiff, factor, trustee, or garnishee producing it, not to obtain
execution of it here, but for his own justification. If, however, those goods, effects,
and credits are insufficient to satisfy the judgment, and the creditor should sue an
action on that judgment in this state to obtain satisfaction, he must fail; because
the defendant was not personally amenable to the jurisdiction of the court ren-
dering the judgment. And, if the defendant, after the service of the process of
foreign attachment, should either in person have gone into the State of New
Hampshire, or constituted an attorney to defend the suit, so as to protect. his
goods, effects, or credits from the effect of the attachment, he would not thereby
§ 549, 550.] JURISDICTION AND REMEDIES. 739

§ 550. In the next place, let us consider the subject of jurisdic-
tion in regard to property. It will be unnecessary to discuss ihe

have given the court jurisdiction of his person ; since this jurisdiction must result
from the service of the foreign attachment. It would be unreasonable to oblige
any man living in one state, and having effects in another state, to make himself
amenable to the courts of the last state, that he might defend his property there
attached.” See post, § 584, 592, 598 to 618. Mr. Burge has made the following.
remarks on the same subject. “In order that it may produce the effect of res
judicata in the country, in which it is pronounced, and & fortiori in a foreign coun-
try, the sentence must be given by a competent tribunal. It must put a final ter-
mination. to the matter in litigation, and it must be certain. The want of' either
of these requisites is such a defect as to render the sentence null and void, and
this defect is called a nullity. The judicial tribunal must be competent to enter-
tain jurisdiction of the subject-matter of the suit. If, according to the constitu-
tion of the tribunal, the subject-matter of the sentence was excluded from its
cognizance, the sentence pronounced by the individuals composing it would pos-
sess the weight which belonged to an arbitrament made by those to whom the liti-
gating parties had submitted their differences, but it would not possess the authority
of res judicata. Where a limited tribunal takes upon itself to exercise a jurjsdic-
tion which does not belong to it, its decision amounts to nothing, and does not cre-
ate any necessity for an appeal. Such a defect in the sentence cannot be cured by
‘the appearance of the party. Another nullity in the sentence is, a decision given
upon that, which was not demanded or not contested, or when more has been ad-
judged than was demanded, for jn either case the judge has exceeded his juris-
diction : ‘ Ultra id, quod in judicium deductum est, potestas judicis nequaquam
potest excedere.’ The party against whom the sentence has been obtained, must
be subject to the jurisdiction of that tribunal. Such-a jurisdiction is founded
ejther in respect of the defender’s domicil in the territory of the tribunal, ratione
domicilii, or in respect of his being possessed of some estate or subject within it,
ratione rei site, or on the arrestment made by the decree of the court of the
party’s movable effects, arrestum causi fundande jurisdictionis. A jurisdiction
acquired by the arrest of the defender’s property was not known to the civil law,
but it was admitted in the jurisprudence of Holland, Spain, France, and Scotland,
in all personal actions, in which the defender is bound, ‘ad dandum, faciendun, et
prestandum, It is not allowed in order to compel the defender to appear before
any other judicial tribunal than that of the place in which the immovable prop-
erty, the subject of the suit, is situated. By the law of Scotland the jurisdiction
is founded not only on the defendant’s domicil, but on his personal residence in a
place for forty days. It admits jurisdiction ratione ref site, unless it has for its
object a question merely personal, as of status. Where a foreigner not otherwise
subject to the jurisdiction of the courts of Scotland is possessed of movable prop-
erty, there the jurisdiction is acquired by arresting his goods, and so fixing them
Within the judge’s territory, or by their being already a subject of competition
in a court of that kingdom. By the civil law the jurisdiction was acquired in
respect of the place in which the contract was entered into, or in which it was
‘to be’ performed ; but the codes founded on the civil law do not admit a jurisdic-
tion in either of these cases unless the defendant is found in that place. The
740 CONFLICT OF LAWS. [cH. xIVv.

matter at large, as to personal property, since the general doctrine
is not controverted, that, although movables are, for many pur-
poses, to be deemed to have no situs, except that of the domicil of
the owner ; yet, this being but a legal fiction, it yields, whenever
it is necessary for the purpose of justice, that the actual situs of
the thing should be examined. A nation, within whose territory
any personal property is actually situate, has as entire dominion
over it, while therein, in point of sovereignty and jurisdiction, as
it has over immovable property situate there. It may regulate its
transfer, and subject it to process and execution, and provide for
and control the uses and disposition of it to the same extent, that

citation of the defender, the vocatio in jus, juris experiendi causf vocatio, is es-
sential to the validity of the sentence, because otherwise he has not had the oppor-
tunity of defending himself against the claim of his adversary. That citation
need not have been served on him personally ; it is sufficient if it be left at his
house. When the tribunaf acquires jurisdiction either ratione rei site, or by ar-
restment in consequence of the defender having no domicil in loco fori, this cita-
tion is necessarily a merely formal act. By the Code Civil, the public minister is
specially charged with the duty of watching over the interest of those who are
presumed to be absent, and he is to be heard upon all demands which concern
them. The Code de Procedure makes provision for delivering to certain public
officers copies of the process, which may be issued against foreigners. The juris-
diction exercised by the courts of England is in general founded on the personal
service of the process on the defendant. Indeed, according to the ancient law,
the plaintiff could not proceed in an action before the defendant had actually ap-
peared in‘court to answer him ; and even if he pertinaciously neglected or refused
to appear, the only course was to issue continued process, or to distrain upon his.
goods, in order thereby, as it was expected, to induce him to appear, or to outlaw
him, by which process he incurred a qualified forfeiture of his land and goods, and
all his civil rights as a subject were suspended. But in certain cases, after actual
personal service, the plaintiff was, by the aid of certain statutes, permitted to
enter an appearance for the defendant. But if the defendant were abroad, or
avoided the service of process, and had no goods (the distraining of which was
considered nearly equivalent to actual service, because it was supposed the defend-
ant would hear of that proceeding,) then the only course was, and still is, to pro-
ceed to outlawry, which, however, does not enable the plaintiff to proceed in his
action, or to obtain judgment therein, but only causes a seizure of the lands, goods,
and property of the defendant, as forfeited to the king for the defendant’s con-
tumacy and disrespect of his process. But the plaintiff may thereupon, by ap-
lication to the Court of Exchequer or by petition, when his claim exceeds fifty
pounds, obtain satisfaction of his debt by sale of the defendant's property seized
under his outlawry, unless previously the defendant appears to the action, and
enables the plaintiff to try the merits.” See, also, Ewer v. Coffin, 1 Cush. 24;
Rangely v. Webster, 11 New Hamp. 299 ; McVicker v. Beedy, 31 Maine, 317;
8 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 24, -p. 1016, 1019.
§ 550, 551.] JURISDICTION AND REMEDIES. 741.

it may exert its authority over immovable property.1 One of the
grounds upon which, as we have seen, jurisdiction is assumed over
non-residents, is, through the instrumentality of their personal
property, as well as of their real property, within the local sover-
eignty.2. Hence it is, that, whenever personal property is taken
by arrest, attachment, or execution within a state, the title so ac-
quired under the laws of the state is held valid in every other
state; and the same rule is applied to debts due to non-residents,
which are subjected to the ae process under the local laws of
a state.*

§ 551. In respect to ce6achis property, every attempt of any
foreign tribunal to found a jurisdiction over it, must, from the
very nature of the case, be utterly nugatory, and its decree must
be forever, incapable of execution in rem. We have seen, indeed,
that by the Roman law a suit might in many cases be brought,
either where the property was situate, or where the party had his
domicil.6 This might well be done within any of the vast domains,
over which the Roman empire extended ; for the judgments of its |
tribunals would be everywhere respected and obeyed. But among
the independent ‘nations of modern times there would be insuper-
able difficulties in such a course. And hence, even in countries
acknowledging the Roman law, it has become a very general prin-
ciple, that suits in rem should be brought, where the property is-
situate ; and this principle is applied with almost universal appro-
bation in regard to immovable property. The same rule is ap-
plied to mixed actions, and to alk suits, which touch the realty.’

1 See ante, § 423 a. =

® Ante, § 549,

* Lord Kenyon expressed his opinion to the following effect, in Ogden v.
Folliott, (3 T. R. 733). “I havg always understood it.to be clear, (said he,)
that all judicial acts, done in one country over the property of the subjects
within their jurisdiction, are conclusive on the property of those parties in any
other country.”

* See Bissell v. Briggs, 9 Mass. R. 462, 468, 469. But see Folliott v. Ogden,
1H. Black. R. 123,135; 8 T. R. 726, 733. See Donn v. Lippmann, 5 Clark &
Finnell. 1, 19.

5 Ante, § 532, 545; post, § 586, 591.

* The jurisdiction as to the rights of real property is local, the subject being
fixed and immovable. Lord Chief Justice De Grey in Rafael v. Develst, 2 Wm.
Black. R. 1058.

’ Henry on Foreign Law, ch. 8, § 3, p. 59, ch. 9, § 1, p. 63; 1 Boullenois,
Observ. 25, p. 601, &c.; Id. p. 618, 619; Id. p. 635, &c.; Id. p. 619.
742 CONFLICT OF LAWS. [ou. xIVv.

§ 552. Boullenois has treated this whole subject with becoming
fulness and accuracy. He has divided actions into those which
are purely personal, those which are purely real, and those which
are mixed, and partake of the character of both, following, in
these respects, as he avows, ‘the division of Burgundus.1 The
first, (personal actions,) respect the quality, state, or condition
of persons, and pronounce against them judgments purely per-
sonal, ad dandum, vel faciendum, aut non faciendum. The next,
(veal actions,) respect things, either the proprietary right or
ownership, or the right of possession, or the right or title of a
creditor, or some other right or title. The last, (mixed actions,)
respect both persons and things either in adjudging the property
to one, or pronouncing against him a personal judgment for the
profit of the other, or adjudging the property to one, and adjudg-
ing the other to make restitution of the profits to him; so that it
is the title of the action which characterizes the action.2 Per-
sonal actions may rightfully be brought between natives in any
competent tribunal of the realm; and between foreigners also,
who have submitted to the jurisdiction, wherever the laws allow
its exercisé; and between natives and foreigners ih like manner.®
But in all these cases the domicil of-the party defendant is com-
monly supposed to be within the jurisdiction. Real actions ought
to be brought in the place rez site; and this is the rule not only,
when the property in controversy is situate in the same kingdom ;

» The language of Burgundus is: Omnium condemnationum summa divisio,
pariter in tria genera deducitur. Aut enim in rem, aut in personam, aut in
utramque concipiuntur. In rem, quoties alicui res asseritur, hoc est ejus esse
dicitur, vel jure creditoris, aut alio modo possidenda datur. In personam, si con-
demnetur ad aliquid dandum aut patiendum, faciendum aut non faciendum, vel,
si persone statum afficiat. In utramque si et res, et persone simul in condemna-
tionem veniant. Burgundus, Tract, 3, n. 1, 2, ph 84, 85.

* 1 Boullenois, Observ. 25, p. 601, 602.

* Boullenois makes a distinction in suits between natives and foreigners to this
effect. If a foreigner sues a native, then the jurisdiction is well founded against
the latter in the place of his domicil ; and the foreigner is bound by the judgment.
If the foreigner is defendant, and has submitted to the jurisdiction, then the same
result follows. If he has not submitted, or has not appeared to the suit, then the
judgment is not obligatory. 1 Boullenois, Observ. 25, p. 609, 610. He founds
himself in this opinion upon the general rule, Actor sequitur forum rei; and he
qugtes with approbation the remark of J. Gaill: Quis manens extra regnum non
tenetur in parlamento respondere super actione personali. Id. p..612.

* 1 Boullenois, Observ. 25, 601, 602, 603, 606, 609, 610. See, also, Id. Prin.
Gén. 34, p. 8, 9.
§ 552-554.) JURISDICTION AND REMEDIES. 748

“put also when the parties, being domiciled in one country, en-
gage in a litigation, as to property ‘locally situate in another
country... If, therefore, a judgment should be rendered in one
country respecting property in another, it will be of no force in
the latter. It is true, that property within a country does not
make the owner generally a subject of the sovereign, where it is
locally situate ; but it subjects him to his jurisdiction secundum
quid, et aliquo modo Mixed actions, so far as they regard the
realty, are to be brought in the place rei site; but if the per-
sonal damages or claims be separable in their nature and char-
acter, they may be sued for as personal actions. There are
many other jurists who adopt the like distinctions.‘

§ 553. Vattel explicitly avows the same doctrine. “The de-
fendant’s judge,” (that is, the competent judge,) says he, “‘is the
judge of the place where the defendant has his settled abode, or
. the judge of the place where the defendant is when any sudden
difficulty arises, provided it does not relate to an estate in land, or
to a right annexed to such an estate. In such a case, as prop-
erty of this kind is to be held according to the laws of the coun-
try, where it is situated, and as the right of granting it is vested
in the ruler of the country, controversies relating to such prop-
erty can only be decided in the state in which it depends.”’®

§ 554. It will be perceived, that in many respects the doctrine
here laid down coincides with. that of the common law. It has
been already stated, that by the common law personal actions,
being transitory, may be brought in any place where the party
defendant can be found ;¢ that real actions must be brought in the
forum rei site ; and that mixed actions are properly referable to
the same jurisdiction.’ Among the latter are actions for tres-

1 Jd. Observ. 25, p. 618, 619, 620, 622, 623; Id. Princ. Gén. 35, 37, p. 9.

"Id. Observ. 25, p. 623, 624, 625.

8 Id. Observ. 25, p. 635, 636. *

4 Id. Observ. 25, p. 601 to p. 651; 1 Hertii, Opera, De Collis. Leg. § 70, p. 132,
edit. 1737; Id. p. 215; edit. 1716; J. Voet, ad Pand. Tom. 1, Lib. 4, tit. 1, § 28,
p. 241.

® Vattel, B. 2, ch. 8, § 103.

* Personal injuries are of a transitory nature, et sequunter forum Rei. Lord
Chief Justice De Grey in Rafael v. Develst, 2 W. Black. R. 1058. See Mostyn
», Fabrigas, Cowper, R. 161, 176, 177; Robinson v. Bland, 2 Burr. R. 1077; 1 Ww.
Black. 259; ante, 364.

_ 1 Ante, § 364; 4 Cowen, R. 527, note. — Lord Mansfield in Mostyn v. Fab-
tigas, (Cowper, R. 161, 176,) said: athened is a formal and a substantial distinc-
744 . CONFLICT OF LAWS. [cH. XIV.

passes and injuries to real property, [as flowage for instance,!]
which are deemed local; so that they will not lie elsewhere than
in the place rei site. This distinction was recognized as long
ago as 1665, in a case;? where the twelve judges certified, that for
torts to the person and the personal | property done abroad, a
remedy lay in a suit in personam in England ; but that for torts
to real property or to fixtures abroad no suit lay. Lord Mans-
field and Lord Chief Justice Eyre, held ‘at one time a different
doctrine; and allowed suits to be maintained in England for in-
juries done by pulling down houses in foreign unsettled regions,
namely, in the desert coasts of Nova Scotia and Labrador.’ But
this doctrine has been since overruled as untenable according to
the actual jurisprudence of England;* however maintainable it
might be upon general principles of international law, if the suit
were for personal damages only.’ [It has been determined, how-
ever, in a late case in America, that a person residing in Penn-
sylvania, and owning real estate situated there, might maintain an
action in the Circuit Court of the United States, in the State of

tion as to the locality of trials. I state them as different things. The substantial
distinction is, where the proceeding is in rem; apd where the effect of judgment
cannot be had, if it is laid in a wrong place. That is the case of all ejectments,
&c. With regard to matters, that arise out of the-realm, there is a substantial
distinction of locality,too; for there are some cases, that arise out of the realm
which ought not to be tried anywhere but in the éountry where they arise. As
if two persons fight in France, and both happening casually to be here, one
should bring an action of assault against the other, it might be a doubt whether
such an action could be maintained here; because, though it is not a criminal
prosecution, it must be laid to be against the peace of the "King: but the breach
of the peace is merely local, though the trespass against the person is transitory.”
His Lordship here doubtless alluded to a case of a personal trespass between for-
eigners ; for in a subsequent part of the same opinion he expressly held, that, as
, between subjects, not only upon contracts, but for personal torts, an action might
“be maintained in England; and indeed that was the very point decided in the
case then in judgment.

1 Worster v. Winnepiseogee Lake Co., 5 Foster, 525.

* Skinner v. The East India Company, cited in Cowper, R. 167, 168. ‘

* Cited by Lord Mansfield in Mostyn v. Fabrigas, Cowper, R. 180, 181.

* Doulson v. Matthews, 4 T. R. 503, And see Watts v. Kinney, 6 Hill, N. Y.
R. 82; 23 Wend. 484.

* The doctrine of this last case was very fully examined and affirmed by Mr.
Chief Justice Marshall, in the case of Livingston v. Jefferson, before the Circuit
Court of Virginia, in 1811, (1 Brock. 203). It was an action quere clausum
Jregit, brought against Mr. Jefferson on account of an alleged trespass to lands
(the Batture) in New Orleans, by his order, while he was President of the United
States. The suit was dismissed for want of jurisdiction.
§ 554 -556.] JURISDICTION AND REMEDIES. 745

New Jersey, against a canal corporation chartered by the latter
state, for consequential injuries done to such real estate by the
defendant’s canal, situated also in New Jersey.!_ So, it has been
determined in Ohio, that an action on the case for diverting water
from the plaintiff’s mill, situated in Ohio, might be sustained in
the courts of that state, although act of diversion took place in
another state.?]

§ 555. The grounds upon which the exclusive jurisdiction is
maintained over immovable property are the same, upon which the
sole right to establish, regulate, and control, the transfer, descent,
and testamentary disposition of it have been admitted by all na-
tions. The inconveniences of an opposite course would be in-.
numerable, and would subject immovable. property to the most
distressing conflicts arising from opposing titles, and compel every
nation to administer almost all other laws, extept its own, in the
ordinary administration of justice.?

§ 556. Having stated these general principles in relation to ju-
risdiction, (the result of which is, that no nation can rightfully
claim to exercise it, except as to persons and property within its
own domains,) we are next led to the consideration of the ques-
tion, in what manner suits arising from foreign causes are to be
instituted; and proceedings to be had until the final judgment.
Are they to be according to the law of the place where the par-
ties, or either of them, live? Or are they to be according to the
modes of proceeding and forms of suit prescribed by the laws of
the place where the suits are brought? Fortunately, here, there
is scarcely any ground left open for controversy, either at the com-
mon law, or in the opinions of foreign jurists, or in the actual
practice of nations. It is universally admitted and established,
that the forms of remedies, and the modes of proceeding, and the
execution of judgments, are to be regulated solely and exclusively
by the laws of the place where the action is instituted ; or, as the
civilians uniformly express it, according to the lex fori.*

1 Rundle v. Delaware and Raritan Canal, 1 Wallace, jr.’s R. 275. See also
Holmes v. Barclay, 4 Louis. Ann. R. 63.

* Thayer v. Brooks, 17 Ohio R. 489. And see Worster v. Great Falls Manu-
facturing Co., Boston Law Rep. February, 1855, p. 584.

* Ante, § 364, 365. :

* See on this point, 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 1, p. 24;
Ferguson v. Fyffe, 8 Clark & Finnell. 121; General Steam Navigation Co. v,

Guillou, 11 Mees. & Wels. 877.
CONFL, 63
746 CONFLICT OF LAWS. [cH. XIV.

§ 557. The reasons for this doctrine are so obvious, that they
scarcely require any illustration. The business of the administra-
tion of justice by any nation is, in a peculiar and emphatic sense,
a part of its public right and duty. Each nation is at liberty to
adopt such forms and such a course of proceeding, as best com-
port with its convenience and interests, and the interests of its
own subjects, for whom its laws are particularly designed. The
different kinds of remedies, and the modes of proceeding, best
adapted to enforce rights and guard against wrongs in any nation,
must materially depend upon the structure of its own jurispru-
dence. What would be well adapted to the jurisprudence, either
customary or positive, of one nation, for rights which it recog-
nized, or for duties which it enforced, or for wrongs which it re-
dressed, might be wholly unfit for that of another nation, either as
having gross defects, or steering wide of the appropriate remedial
justice. A nation, acknowledging the existence of peculiar rights
and privileges, either personal or real, such as seignorial rights, or
trusts in the realty, would naturally introduce correspondent rem-
edies. While other nations, in which such rights and privileges
and trusts did not exist, might well dispense with the formalities
which they might require. The jurisprudence of one nation may
be very refined and artificial, with a multitude of intricate and
perplexed proceedings ; that of another may be rude, uninformed,
and harsh, consisting of an undigested mass of usages. It would
be absolutely impracticable to apply the process and modes of pro-
ceeding of the one nation to the other. Besides, there would be
an utter confusion in all judicial proceedings by attempting to en-
graft upon the remedies of one country those of all other coun-
tries whose subjects should be parties or be interested therein.
No tribunal on earth, however learned, could hope, by any de-
gree of diligence, to master the laws and processes and remedies
of all other nations, and the qualifications and limitations properly
belonging thereto. A whole life might be passed in obtaining
little more than a few unconnected elements ; and litigation would
thus become immeasurably complicated, if not absolutely inter-
minable. All that any nation can, therefore, be justly required
to do, is to open its own tribunals to foreigners, in the same man-
ner and to the same extent, as they are open to its own subjects ;
and to give them the same redress, as to rights and wrongs, which
§ 557, 558.] JURISDICTION AND REMEDIES. 147

it deems fit to acknowledge in its own i code for natives
and residents.1

§ 558. The doctrine of the common law i is so fully established
on this point, that it would be useless to do more than to state

* Lord Brougham, in delivering his judgment in Donn v. Lippmann, 5 Clark &
Finnell. R. 1, 13, 14, made some striking remarks on this subject. “ The law on
this point is well settled in this country, where this distinction is properly taken,
that whatever relates to the remedy to be enforced, must be determined by the
lex fori, the law of the country to the tribunals of which the appeal is made. This
rule is clearly laid down in the British Linen Co. v. Drummond, (10 Barn. &
Cres. 903); De la Vega v. Vianna, (1 Barn. & Adol. 284,) and in Huber ».
Steiner, (2 Scott, 304; 1 Hodges, 206; 2 Bing. N. C. 202; 2 Dowl. Prac. Cas.
781; and 4 Moore & Scott, 328,) though the reverse had provionsly been recog-
nized in Williams v. Jones, (13 East,. 439). Then, assuming that to be the set-
tled rule, the only question in this case would be, whether the law now to be en-
forced is the law which relates to the contract itself, or to the remedy. When
both the parties reside in the country, where the act is done, they look of course
to the law of the country, in which they reside. The contract being silent as to
the law, by which it is to be governed, nothing is more likely than that the lex
loci contractus should be considered at the time the rule ; for the parties would
not suppose, that the contract might afterwards come before the tribunals ofa for-
eign country. But it is otherwise, when the remedy actually comes to be en-
forced. The parties do not necessarily look to the remedy, when they make the
contract. They bind themselves to do, what the law they live under requires ;
_but as they bind themselves generally, it may be taken as if they had contemplate
ed the possibility of enforcing it in another country. That is the lowest ground,
on which to place the case. The inconvenience of pursuing a different course, is
manifest. Not only the principles of the law, but the known course of the courts,
renders it necessary, that the rules of precedent should be adopted, and that the
parties should take the law as they find it, when they come to enforce their con-
tract. It is true, that there may be no difficulty in knowing the law of the place
of the contract, while there may be a great difficulty in knowing that of the place
of the remedy. - But that is no answer to the rule. The distinction, which exists
as to the principle of applying the remedy, exists with even greater force as to the
practice of the courts, where the remedy is to be enforced. No one can say, that
because the contract has been made abroad, the form of action known in the for-
eign court must be pursued in the courts where the contract is to be enforced, or
the other preliminary proceedings of those courts must be adopted, or that the
rules of pleading, or the curial practice of the foreign country, must necessarily
be followed. No one will assert, that before the Jury Court in Scotland the Eng-
lish creditor of a domiciled Scotchman would have the right to call for a trial of
the case by a jury; or take the converse, that a Scotchman might refuse the in-
tervention of a jury here, and insist on having the case tried, as in Scotland, by
the judge only. No one will contend in terms, that the foreign rules of evidence
should guide us in such cases; and yet it is not so easy to avoid that principle in
practice, if you once admit, that though the remedy is to be enforced in one coun-
try, it is to be enforced according to the laws which govern another country.”

2
748 CONFLICT OF LAWS. [cH. xIv.

the universal principle, which it has promulgated ; that is to say,
that in regard to the merits and rights involved in actions, the
law of the place where they originated, is to govern: In tts, que
spectant decisoria cause, et litis decisionem, inspictuntur statuta
loci, ubi contractus fuit celebratus1 But the forms of remedies
and the order of judicial proceedings are to be according to the
law of the place where the action is instituted, without any re-
gard to the domicil of the parties, the origin of the right, or the
country of the act.? :

1 2 Boullenois, Observ. 46, p. 462; ante, § 260; Bank of United States v. Don-
nally, 8 Petérs, R. 361, 372; Andrews v. Pond, 18 Peters, R. 65 ; Wilcox v. Hunt,
18 Peters, R. 378. See also Bouhier, Coutume de Bourg. ch. 18, n. 10; ante,
§ 242, § 260 to § 273.

* The authorities are exceedingly numerous. Among them we may cite the
following. Andrews v. Herriott, 4 Cowen, R. 408; and see Id. 528, n. (10), and
authorities there cited; 2 Kent, Comm. Lect. 27, p. 118, &c., 3d edit.; Robinson
v. Bland, 2 Burr. 1084; De la Vega v. Vianna, 1 Barn. & Adolph. R. 284; Trim-
bey v. Vignier, 1 Bing. N. Cas. 159, 160, 161; Donn v. Lippmann, 5 Clark &
Fin. R. 1, 18, 19, 20; ante, § 557, note; Fenwick v. Sears, 1 Cranch, 259; Nash
v. Tupper, 1 Cain. R. 402; Pearsall v. Dwight, 2 Mass. R. 84; Smith v. Spinola,
2 Johns. R. 198; Van Reimsdyk v. Kane, 1 Gallis. R. 371; Lodge v. Phelps, 1
Johns. Cas. 139; Thrasher v. Everhart, 3 Gill. & Johns. 234; Hyde v. Goodnow,
8 Comstock, 270; Wood v. Watkinson, 17 Conn. 510; Peck v. Hozier, 14 Johns.
R. 346; Ohio Insur. Company v. Edmondson, 5 Louis. R. 295 to 300; Warren v.
Lynch, 5 Johns. R. 239; Jones v, Hook’s Administrator, 2 Rand. Virg. R. 303;
Wilcox v. Hunt, 13 Peters, R. 378, 379; French v. Hall, 9 N. Hamp. R. 137;
Bank of United States v. Donnally, 8 Peters, R. 361, 370, 371, 372, 373. — This
last case was an action brought in Virginia on a promissory note made in Ken-
tucky, not under seal, but which by the law of Kentucky was deemed a specialty.
The Statute of Limitations of Virginia was pleaded in bar ; and one question was,
whether it was a good bar or not. On that occasion the court said: “ The other
point, growing out of the Statute of Limitations, pleaded to the fourth and fifth
counts (for as to the three first counts it is conceded to be a good bar) involves
questions of a very different character, as to the operation and effect of a conflict
of laws in cases governed by the lex loci. The Statute of Limitations of Virginia
provides, that ‘all actions of debt, grounded upon any lending or contract with-
out specialty,’ shall be commenced and sued within five years next after the cause
of such action or suit, and not after. This being the language of the act, and
confessedly governing the remedy in the courts of Virginia, the bar of five years
must apply to all the cases of contract, which are without specialty, or in other
words, are not founded on some instrument acknowledged as a specialty by the
law of that state. The common law being adopted in Virginia, and the word
‘specialty’ being a term of art of that law, we are led to the consideration,
whether the present note is deemed, in the common law, to be a specialty. And
certainly it is not so deemed. It is not a sealed contract, nor does it fall under
‘

§ 558, 559.] JURISDICTION AND REMEDIES. 749

§ 559. Nor are the foreign jurists less pointed in their recog-
nition of it. Thus Bartolus, in speaking upon contracts, says:

any other description of instruments or contracts or acts known in the common
law as specialties. The argument does not deny this conclusion ; but it endeavors
to escape from its force, by affirming, that the note is a specialty according to the
laws of Kentucky ; and ifso, that this constitutes a part of its nature and obliga-
tion: and it ought, everywhere else, upon principles of international jurispru-
dence, to be deemed of the like validity and effect. The act of Kentucky of the
4th of February, 1812, provides, ‘that all writings hereafter executed without
a seal or seals, stipulating for the payment of money or property, or for the
performance of any act, duty, or duties, shall be placed upon the same footing
with sealed writings, containing the like stipulations, receiving the same consider-
ation in all courts of justice, and to all intents and purposes, having the same
force and effect, and upon which the same species of action may be founded, as if
sealed.’ Now, it is observable, that this statute does not in terms declare that
such writings shall be deemed specialties; nor does it say, that they shall be
deemed sealed instruments. All that it affirms is, that they shall be put upon the
same footing as sealed instruments, and have the same consideration, force, effect,
and remedy, as sealed instruments. So that it is perfectly consistent with the
whole scope and object of the act, to give them the same dignity and obligation
as specialties, without intending to make them such. A state legislature may
certainly provide, that the same remedy shall be had in a promissory note, as on
a bond or sealed instrument; but it will not thereby make the note a bond or

-sealed instrument. It may declare, that its obligation and force shall be the same,

as if it were sealed; but that will still leave it an unsealed contract. But what-
ever may be the legislation of a state, as to the obligation or remedy on contract,
its acts can have no binding authority beyond its own territorial jurisdiction.
Whatever authority they have in other states, depends upon principles of inter-
national comity, and a sense of justice. 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; or, as it is compendiously expressed, by the lex fori.
No one will pretend, that because an action of covenant will lie in Kentucky on
an unsealed contract made in that state; therefore, a like action will lie in an-
other state, where covenant can be brought only on a contract under seal. It is
an appropriate part of the remedy, which every state prescribes to its own tribu-
nals, in the same manner in which it prescribes the times, within which all suits
must be brought. The nature, validity, and interpretation of the contract may
be admitted to be the same in both states; but the mode, by which the remedy is
to be pursued, and the time within which it is to be brought, may essentially dif-
fer. The remedy, in Virginia, must be sought within the time, and in the mode
and according to the descriptive characters of the instrument, known to the laws
of Virginia, and not by the description and characters of it prescribed in another
state. An instrument may be negotiable in one state, which yet may be incapa-
ble of negotiability by the laws of another state ; and the remedy must be in the
courts of the latter on such‘ instrument, according to its own laws. If, then, it
63 *
750 CONFLICT OF LAWS. [cH. XIV,

Quero, quid de contractibus? Pone contractum celebratum per
aliquem forensem in hac civitate; litigium ortum est, et agitatur
lis in loco originis contrahentis. Cujus loci statuta debent servari
vel spectari? Distingue; Aut loquimur de statuto, aut de consue-
tudine, que respiciunt ipsius contractts solemnitatem, aut, litis or-
dinationem, aut de his, que pertinent ad jurisdictionem ex ipso
contractu evenientis executionis. Primo casu, inspicitur locus con-
tractis. Secundo casu, aut queris de his, que pertinent ad litis
ordinationem, et inspicitur locus judicit; aut de his que pertinent
ad ipsius litis decisionem, et tunc, aut de his, que oriuntur secun-
dum ipsius, contractés naturam tempore contractis, aut de his, que
oriuntur ex post facto, propter negligentiam vel moram ; primo
casu inspicitur locus contractis, §c.1

§ 560. Rodenburg asserts the same distinction. Primum uta-
mur vulgaté doctorum distinctione, qud separantur ea, que litis
formam concernunt ac ordinationem, ab iis, que decisionem aut
materiam. Lis ordinanda secundum morem loci, in quo ventila-
tur Boullenois affirms the same doctrine. A ?égard (says he)
du principe de décision, quantam ad litis decisoria, il se tire, ou
de la loi du contrat, ou de la loi de la situation, ou de la volonté
présumée des parties, lorsqu’elles ont contracté ensemble; en un
mot la Loi seule de la jurisdiction n’y influe point comme telle.
Diversitas fori non debet meritum cause variare. A Cégard des
formalités judiciaires, quantum ad litis ordinationem, la régle est
de suivre la procédure et les usages observés dans le leu, or lon
plaide.? Hertius states the same point in his compendious way.
Expedita est Doctorum Responsio, Jura judicit tantum in illis ob-
servanda esse, que ad ordinem processts judicialis pertinent, etsi
lis sit de bonis'immobilibus, in alio territorio sitis.4

were admitted, that the promissory note, now in controversy, were a specialty by
the laws of Kentucky, still it would not help the case, unless it were also a spe-
cialty, and recognized as such by the laws of Virginia; for the laws of the latter
must govern as to the limitation of suits in its own courts, and as to the interpre-
tation of the meaning of the words used in its own statutes.” Post, § 567.

* Bartolus, Comm. ad Cod. Lib. 1, tit. 1, L 1; Bart. Oper. Tom. 7, p. 4, edit.
1602; 2 Boullenois, Observ. 46, p. 455, 456; ante, § 301.

* Rodenburg, De Div. Stat. tit. 2, p. 5, n. 16; 2 Boullenois, Appx. p. 47; 1
Boullenois, 660; Id. 685, 818; ante, § 825 c, 825 d, 325 h, note 2.

* 1 Boullenois, Observ. 83, p. 535 to 546; Id. Prin. Gén. 49, p. 11.

* 1 Hertii, Opera, De Collis, Leg. § 4, n. 70, p. 152, 153, edit, 1737 ; Id. p. 215,
edit. 1716.
§ 559 - 562.] JURISDICTION AND REMEDIES. 751

§ 561. Strykius states it in the following language. Quoties-
cunque circa judicit ordinationem controvertitur, statuta loci judi-
cit, omnibus ceteris posthabitis, introspiciantur. In modo proce-
dendi consuetudo judicti attendenda, ubi lis agitatur. In modo
vero decidendi, seu in ipsd cause decisione, consuetudo litigan-
tium, sew ubt actus est gestus, attendendus Huberus says:
Adeoque receptum est optima ratione, ut in ordinandis judictis
loci consuetudo, ubi agitur, etsi de negotio alibi celebrato, specte-
tur2 Dumoulin says: Unde an instrumentum habeat executionem,
et quo modo debeat exequi, attenditur locus ubi agitur, vel fit
executio. Ratio, quia fides instrumenti concernit meritum, sed
virtus executoria et modus exequendi concernit processum.? Again
he adds: Quod in his, que pertinent ad processum judicii, vel ex-
ecutionem faciendam, vel ad ordinationem judicti, semper sit ob-
servanda consuetudo loci, in quo judicium agitatur.t Emérigon
says: Pour tout ce, qui concerne Vordre judiciare, on dott ,suivre
Pusage du lieu, ot lon plaide. Pour ce, qui est de la décision du
fond, on doit suivre, en régle générale, les lois du lieu; ot le con-
trat a été passé. Cette distinction est consignée dans tous nos
livres

§ 562. We may conclude this reference to the opinions of for-
eign jurists by a citation from John Voet, who states at once the
rule and the reason of it. Quia vero regionum, civitatum, vico-
rum varia, imo contraria sepe jura sunt, observandum est, quan-
twm quidem ad ordinem judicti formamque attinet, judicem nullius
alterius ‘sed sui tantum fori leges sequi. Sed in litis tpsius defini-
tione, si.de solennibus contractis, testamenti, vel negotit alterius
questio sit, validum pronunciare debet ac solenne negotium, quo-
ties adhibita invenit solennia loci, in quo illud gestum est, licet
alie, aut majores, in loco judicti ad talem actum solemnitates re-
quisite essent.§

1 Strykii, Tract. et Disp. Tom. 2, p. 27; De Jure Princ. ext. Territ. ch. 3, n.
343 ante, § 295.

. Huberus, Tom. 2, Lib. 1, tit. 3, De Confl. Leg. § 7.

* 1 Boullenois, Observ. 23, p. 523, 524; Molin. Oper. Comm. ad Cod. Lib. 1,
tit. 1, Tom. 3, p. 554, edit. 1681.

* 1 Boullenois, Observ. 23, p. 523, 524; Molin. Opera, Comm. Cod. Lib. 6, ‘tit.
32, Tom. 3, p. 735, edit. 1681.

6 1 Emérigon, Traité des Assur. ch. 4, § 8, n. 2, p. 122; Le Roy v. Crownin-
shield, 2 Mason, R. 163. See also to the same effect, P. Voet, De Stat. § 10, ch. 1
n, 1, 6, p. 281, 285, 286, edit. 1715; Id. p. 339, 340, 341, edit. 1661.

® J. Voet, ad Pand. Tom. 1, Lib. 5, tit. 1, § 51, p. 328.
TA2 CONFLICT OF LAWS. [oH. XIV.

§ 563. There are many questions, however, which may arise,
as to what are, and what are not matters properly belonging to
the remedy (ad litis ordinationem,) and what are, and what are
not, matters properly belonging to the merits, (ad litis decisionem).
Many cases of this sort may be found collected and discussed by
foreign jurists upon the peculiarities of their own jurisprudence.
But they could not be made intelligible to a lawyer under the
common law, without occupying a space in explanations, wholly
disproportionate to their importance in a treatise, like the pres-
ent.)

§ 564. It may be of more utility to introduce a few illustra-
tions of the doctrine, arising peculiarly under the common law
modes of proceeding ; first, in regard to persons, who may sue;
secondly, in regard to process and proceedings; and thirdly, in
regard to certain defences against actions, arising from matters ez
post facto, and founded on local law, or customary practice.

§ 565. In the first place, in regard to persons, who may sue.
It may be laid down as a general rule, that all foreigners, sui juris,
and not otherwise specially disabled by the law of the place where
the suit is brought, may there maintain suits to vindicate their
rights and redress their wrongs. The same doctrine applies to
foreign sovereigns and to foreign corporations.? But questions
may arise, where the party suing is not the original party to the
debt or claim ; but he takes a derivative title only from the origi-
nal party, as where he is an assignee or grantee or donee of the
debt or other claim. We have already had occasion to take no-
tice of a peculiarity of the common law, that debts and choses in
action are not, with the exception of negotiable promissory notes
and bills of exchange, assignable.? Hence, if any other debt or

? See 1 Boullenois, Observ. 23, p. 535 to 569.

* Foreign corporations may also be sued in all cases where they have property
within the jurisdiction ; Libbey v. Hodgson, 9 N. Hamp. R. 394; but quere, of
some of the doctrines in the case: See Danforth v. Penny, 3 Met. 564; Peckham
v. North Parish in Haverhill, 16 Pick. R. 274; McQueen v. Middleton Manuf. Co.
16 Johns. R. 5; Story, Eq. Plead. § 55; Hullett v. The King of Spain, 2 Bligh.
R.N.S. p. 51; 8. C. 1 Dow & Clark, R. 169; S. C.1 Clark & Finnell. R. 333 ;
Columbian Government v. Rothschild, 1 Sim. R. 94; South Carolina Bank v.
Case, 8 Barn. & Cresw. 427; City of Berne v. The Bank of England, 9 Ves.
347; Silver Lake Bank v. North, 4 Johns. Ch. R. 870; Bank of Augusta v.
Earle, 13 Peters, R. 519, 588, 589.

® Ante, § 354, 355, § 395 to 400.
§ 563 - 565.] JURISDICTION AND REMEDIES. 753
4

chose in action, such as. a bond, or a covenant, or other contract
is assigned, no action can be maintained thereon in a common law
court by the assignee in his own name.!_ The same rule has been
applied to assignments of debts or choses in action, made in for-
eign countries, although the assignee might be entitled to found
an action thereon in such foreign country in his own name, in vir-
tue of such assignment? For (it has been said) the inquiry, in
whose naine the suit is to be brought, belongs not so much to the
right and merit of the claim, ‘as to the form of the remedy. No
distinction seems to have been made in England, as to the right
to sue, between the case of an assignee by the private voluntary
act of the assignor, and an assignee by operation of law by an as-
signment in invitum under the bankrupt laws. Thus, it has been
held, that a Scotch assignee of a bankrupt could not maintain a
suit in his own name in England for a chose in action of the bank-
rupt, which was admitted to pass under the assignment.? In

1 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 777, 778; Wolff v.
Oxholme, 6 Maule & Selw. R. 99; ante, § 354, 355. _

* Wolff v. Oxholme, 6 Maule & Selw. R. 99; Folliott v. Ogden, 1 H. Black.
131; Innes v. Dunlap, 8 Term R. 595; Jeffrey v. McTaggart, 6 Maule & Selw.
R. 126,

5 Jeffrey v. McTaggart, 6 Maulé & Selw. 126, and Wolff v. Oxholme, 6 Maule
& Selw. 99. But see in Smith v. Buchanan, (1 East, 11,) the dictum of Lord
Kenyon on the contrary. In Alivon v. Furnival, (1 Cromp. Mees. & Rose. 277,)
two out of three syndics of a French bankrupt sued a debtor of the bankrupt in
their own names in England ; and the objection was taken, that they had no title
to sue. The court overruled the objection. Mr. Baron Parke in delivering the
judgment of the court, said: “ Lastly, it is said, that though two may act and
bring an action, yet they must sue in the name of all. Now, the effect of the
testimony of Colin is, that two may sue in France without a third, and the wit-
ness for the defendant does not prove the contrary, and there seems no reason
why it should not be so. The property in the effects of the bankrupt does not
appear to be absolutely transferred to these syndics in the way that those of a
bankrupt are in this country ; but it should seem, that the syndics act as manda-
tories or agents for the creditors; the whole three, or any two or one of them
having the power to sue for and recover the debts in their own names. This isa
peculiar right of action, created by the law of that country ; and we think it may
by the comity of nations be enforced in this, as much as the right of foreign as-
signees or curators, or foreign corporations, appointed or created in a different
way from that which the law of this country requires. Dutch West India 'Com-
pany v. Moses, (1 Strange, 612,) National Bank of St. Charles v. De Bernales,
(1 R. & Moody, 190,) Solomons v. Ross, (1 H. Black. 131, n.). We do not pro-
nounce an opinion, whether this objection is available on the plea of nil debet, or
ought to have been pleaded in abatement, (though we were much struck with the
\
754 CONFLICT OF LAWS. [cH. XIV.

America, contradictory decisions have been made upon the same
point, some courts affirming, and others denying, the right of the
assignee to sue in his own name; although the weight of author-
ity must now be admitted to be against the right.

§ 566. The reasoning of these decisions seems equally to apply
to the case of a foreign assignee by the voluntary act of the party,
even where he could sue in his own name in the country in which
the assigument was made, although certainly there is room for a
distinction in such a case ; and it has sometimes been recognized.
Thus, in a case where the assignee of an Irish judgment brought
a suit in his own name in England, such a judgment being assign-
able in Ireland, so as to vest a title at law in the assignee, the
Court of Common Pleas held, that he was entitled to recover ;
because (as it should seem) a legal title by the dex loci vested in
him, and the case was not to be governed by the law of England,
as the assignment was in Ireland.? The distinction, although
nice, is at the same time clear ; for the remedy is sought upon a
legal right, vested ex directo by the local law in the assignee
against the judgment debtor. There does not seem, therefore,
any solid ground upon principle, why a right confessedly legal in
the country where it originated, and passing a direct and positive
fixed title in the assignee, should not have the same remedy in
every other country, which legal fixed titles in the party are there
entitled to. It is assuming the very ground in controversy, to
assert, that it is a mere equitable title ; for the local law has ad-
judged it otherwise, and vested the original title ex directo in the
assignee. In the common case, where an executor or administra-
tor indorses negotiable paper in the country, from which he de-
rives his administrative authority, no one will doubt that the legal
title passes to the indorsee, and that he may sue thereon in any

argument of the learned counsel for the plaintiff,) as we think it is not available
at all upon the evidence in this case.” See also ante, § 419, 420.

? See ante, § 358, 359, 419, 420; Milne v. Moreton, 6 Binn, R. 374; Goodwin
v. Jones, 3 Mass. R. 514, 519; Dawes v. Boynton, 9 Mass. R. 357; Orr v. Amory,
11 Mass. R. 25; Ingraham v. Geyer, 13 Mass. R. 146, 147; Byrne v. Walker, 7
Serg. & Rawle, 483; Bird v. Caritat, 2 Johns. R. 342; Bird v. Pierpont, 1 Johns.
R. 118; Murray v. Murray, 5 Johns. Ch. R. 60; Brush v. Curtis, 4 Connect. R.
312; Raymond v. Johnson, 11 Johns. R. 488; Holmes v. Remsen, 4 Johns. Ch.
R. 460, 485.

* O'Callaghan v. Thomond, 3 Taunt. 82, 84; ante, § 355; 3 Burge, Comm. on
Col. and For. Law, Pt. 2, ch. 20, p. 777, 778,
-§ 565 - 566 a.] JURISDICTION AND REMEDIES. 755

other country in his own name; and yet such an indorsement, in
another country, by the executor or administrator, would not be
admitted to have any such validity or effect.1 However, the doc-
trine of this case has been much doubted ; and, therefore, it can
scarcely be thought to be unexceptionable in point of authority.
There are certainly dicta and decisions, which are pointedly the
other way, and in which it is said, that the suit must be brought
in the name of the assignor, if the lex fori requires it.?

[* § 566 a. Thus in Massachusetts it was held, that an assign-
ment of a promissory note payable to order, without indorsement,
in a state whose laws provide, that “ every action must be prose-
cuted in the name of the real party in interest,” did not bar an
action in that state in the name of the assignor ; the court regard-

1 Ante, § 353a@ 354, 358, 359; Trimbey, v. Vignier, 1 Bing. N. Cases, 151,
159, 160.

* The dictum of Lord Loughborough in Folliott v. Ogden, (1 H. Black. 135,)
and that of Lord Ellenborough in Wolff v. Oxholme, (6 Maule & Selw. 92, 99,)
are to this effect. But the recent case of Alivon v. Furnival, 1 Cromp. Mees. &
Rose. 277, 296, certainly, as far as it goes, upholds it. Ante, § 565, note. See
also Robinson v. Campbell, 3 Wheat. R. 212. The case of Wolff v. Oxholme, 6
Maule & Selw. 92, 99, may perhaps be distinguishable in its circumstances, as
well as in the reasoning of the court. Lord Ellenborough’s language in the last
case was as follows. ‘One of the points insisted upon in the argument for the
defendant was, that this assignment and the suit instituted upon it, were a bar to
the plaintiffs’ demand ; but we think that they cannot have that effect. The as-
signee could not sue in the courts of this country in his own name; the action
must have been brought here in the names of the original creditors, even if they
had assigned the debt for a valuable consideration; and although the assignment
gave the assignee a right to sue in his own name in Denmark, yet the defendant
does not appear to have been prejudiced by that measure even there, nor has any
material consequence resulted therefrom, And we consider the case to stand now
just as it would have done, if no assignment had been made, and if the suit in
Denmark had been brought by the plaintiffs themselves, instead of being institut-
ed by their trustees.” See ante, § 358, 359, 399, note.. See Trasher v. Ever-
hart, 3 Gill & Johns, R. 234; McRay v. Mattoon, 10 Pick. R. 52; Pearsall v.
Dwight, 2 Mass. R. 84; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p.
717,778. This subject is ably discussed on different sides in two articles in the
American Jurist, namely, in the number for January, 1833, (9 Vol. 42,) and in
the number for January, 1834, (11 Vol. 101,) to which I gladly refer, as giving a
more satisfactory view of,this subject than, with reference to the plan of the pres-
ent work, I have been able to give. It may be thought, that the case of foreign
executors and administrators, as assignees by operation of law of the deceased’s
estate, stands upon a similar ground. But it appears to me to proceed on princi-
ples materially different, applicable to rights, and not merely to remedies. Ante,
§ 399, note, § 420, 512, 513.
756 " CONFLICT OF LAWS. [om x1v.

ing the question as extending no further than the form of action,
and in whose name the contract shall be sued."]

§ 567. Another illustration may be taken from the forms of ac-
tion upon instruments under seal. Thus, in Virginia a contract
to pay money with a scrawl instead of a seal, is treated as a sealed
instrument, so that debt lies upon it in that state. But in New
York, where such a scrawl is not treated as a seal, the remedy
must be, as upon an unsealed simple contract.2, The same doc-
trine has been maintained in England upon an instrument exe-
cuted in Jamaica, where there was no seal, but a mark or scrawl
in the place where the seal is usually affixed.2 On the other hand,
a single bill is deemed in Virginia not to be a specialty : in Mary-
land it is otherwise. A remedy brought in Maryland upon such
a single bill, executed in Virginia, cannot be by an action of as-
sumpsit, as upon a simple contract, but must be by action of debt,
as upon a specialty.*

§ 568. In the next place, as to process and proceedings. There
is no controversy, that in a general sense the mode of process
constitutes a part of the remedy. But the question has arisen,
whether, upon contracts made in a foreign country, and which by
the laws of that country are precluded from being enforced by a
personal arrest or imprisonment, the like exemption applies in
suits to enforce them in another country, where such process con-
stitutes a part of the remedial justice. Such a contract existed,
or was supposed to exist, in a case where a bond given in France,
and sued in England, was understood to bind the property, and not
the person of the party in France. On that occasion Lord Chief
Justice Eyre said: “If it appears, that this contract creates no
personal obligation, and that it could not be sued, as such, by the
laws of France, (on the principle of preventing arrests so vexa-

[*? Foss v. Nutting, 14 Gray, 484.]

* Warren v. Lynch, 5 Johns. R. 239. See, also, Andrews v. Herriot, 4 Cowen,
508; Le Roy v. Beard, 8 Howard, U. S. R. 464, where the subject is examined
at length, and the authorities are collected. But see Meredith v. Hinsdale, 2
Caines, R. 362.

* Adam v. Kerr, 1 Bos. & Pull. 860. See, also, Bank of the United States v.
Donnally, 8 Peters, R. 361; ante, § 558, note.

* Trasher v. Everhart, 3 Gill. & Johns. R. 234; Bank of the United States v.
Donnally, 8 Peters, R. 361; ante, § 558, note.

* Melan v. Fitz James, 1 Bos. & Pull. 138; 3 Burge, Comm. on Col. and For.
Law, Pt. 2, ch. 20, p. 766, 767, 768. ‘
§ 566 a—570.] JURISDICTION AND REMEDIES. 157

tious as to be an abuse of the process of the court,) there seems
to be a fair ground on which the court may interpose to prevent a
proceeding so oppressive as a personal arrest in a foreign country,
at the commencement of a suit, in a case, which, as far as one can
judge at present, authorizes no proceeding against the person in
the country in which the transaction passed. If there’ could be
none in France, in my opinion there can be none here. I cannot
conceive, that what is no personal obligation in the country in
which it arises, can ever be raised into a personal obligation by the
laws of another. If it be a personal obligation there, it must be
enforced here in the mode pointed out by the law of this country.
But what the nature of the obligation is, must be determined by
the law of the country where it was entered into; and then this
eountry will apply its own law to enforce it.”1 And accordingly
the court discharged the party from the arrest.

§ 569. There does not seem the least reason to doubt the entire
eorrectness af the doctrine thus laid down. If the contract creates.
no personal obligation, but an obligation im rem only, it cannot be,
that its nature can be changed, or its obligation varied by a mere
change of domicil. That would be to contradict all the principles
maintained in all the authorities, that the validity, nature, obliga-
tion, and interpretation of a contract are to be decided by the lex
loct contractis.2 A suit in personam in England could not be
maintained, except upon some contract, which bound the person.
If it bound the property only, the proceeding should be im rem ;
and, if in express terms the party bound his property only, and
exempted himself from a personal liability, no one would doubt,
that a suit in personam would not be maintainable. The same
principle would apply, if the laws of a country should declare, that
certain classes of contracts should not bind the person at all, but
only property, or a particular species of property. Such laws do
probably exist in some countries. But it does not follow, because
a personal remedy is not given by the laws of a country, that
therefore there is no personal obligation in a contract.?

§ 570. The real difficulty lies, not in the principle itself, but in
its application. There is a great distinction between a contract,

1 Ibid. ‘See, also, Ohio Insur. Co. ». Edmondson, 5 Louis, R. 295, 300.
" ® Ante, § 263 to § 273; 3 Burge, Comm. Pt. 2, ch. 20, p. 765, 766, 776.

* Talleyrand v. Boulanger, 3 Ves. jr. R. 447; Flack v. Holm, 1 Tac, & Walk.
405.

CONFL. 64
158 CONFLICT OF LAWS. [cH. XIV.

which ex directo excludes personal liability, and a contract made
in a country, which binds the party personally, but where the
laws do not enforce the contract in personam, but only in rem.
Tn the latter case the remedy constitutes no part of the contract.
The liability is general, so far as the acts of the parties go; and
the mode of enforcing is a mere matter of municipal regulation.
It is strictly a part of the dex fori, and may be changed from time
to time, as the legislature may choose.’ “This was the view of the
matter taken by Mr. Justice Heath in the case alluded to ; for he,
in dissenting from the opinion of the court, did not deny the prin-
ciples of the decision, but held, that the contract was personal.
‘“* We all agree,” said he, “ that in construing contracts we must
be governed by the laws of the country in which they are ntade;
for all the contracts have reference to such laws. But, when we
come to remedies, it is another thing. They must be pursued by
the means which the law points out, where the party resides. The
laws of the country where the contract was made, can only have
reference to the nature of the contract, not to the mode of enforc-
ing it. Whoever comes voluntarily into a country subjects him-
self to all the laws of that country ; and therein to all the reme-
dies, directed by those laws, on his particular engagements.” 2

§ 571. The doctrine of this case has been sometimes followed in
‘America.? But the better opinion now established both in England
and America is, that it is of no consequence whether the contract
authorizes an arrest or imprisonment of the party in the country
where it was made, if there is no exemption of the party from per-
sonal liability on the contract. He is still liable to arrest or im-
prisonment in a suit upon it in a foreign country, whose laws
authorize such a mode of proceeding as a part of the local rem-
edy.* “In a recent case in England, where the plaintiff and de-
fendant were both foreigners, and the debt was contracted in a

1 See Ogden v. Saunders, 12 Wheat. R. 213.

* Melan v. Fitz James, 1 Bos. & Pull. 142; Hinkley »v. Marean, 3 Mason, R.
88; Titus v. Hobart, 5 Mason, R. 378.

5 Symonds v. Union Insur. Co. 4 Dall. 417.

_* See Imley v. Elfesson, 2 East, R. 453; Peck v. Hozier, 14 Johns. R. 346;
Robinson v. Bland, 2 Burr. 1089; Hinkley v. Marean, 8 Mason, R. 88; Titus v.
Hobart, 5 Mason, R. 378; Smith v. Spinolla, 2 Johns. RB. 198, 200; De la Vega
v. Vianna, 1 Barn. & Adolph. R. 284; 8 Burge, Comm. on Col. & For. Law, Pt.

2, ch. 20, p. 766 to 769; Atwater v, Townsend, 4 Connect. R. 47 ; Woodbridge
v. Wright, 3 Connect. R. 523, 526; Smith v. Healy, 4 Connect. R. 49.
§570-— 572.] JURISDICTION AND REMEDIES. 759

country, by whose laws the defendant would not have been liable
to arrest, an application was made to discharge the defendant
from arrest on that account; but the court refused the application.
Lord Tenterden on that occasion in delivering the opinion of the
court, said: ‘ A person suing in this country, must take the law
as he finds it. He cannot by virtue of any regulation in his own
country enjoy greater advantages than other suitors here. And
he ought not, therefore, to be deprived of any superior advantage,
which the law of this country may confer. He is to have the
same rights which all the subjects of this kingdom are entitled
to’! The same doctrine has been solemnly promulgated by the
House of Lords on a still more recent occasion.?

§ 572. The like principles apply to the form of judgments to be
rendered, and of executions to be granted in suits. They must
conform to the lex fori, although the party defendant may, in his
domestic forum, have been entitled to a judgment, exempting his
person from imprisonment, in virtue of a discharge under an in-
solvent law existing there, and of which he had there judicially
obtained the benefit.2 And it will make no difference in such
case, whether the contract sued on was made in a state granting
such discharge or not; or, whether the parties were citizens of
that state or not. The effect of such a discharge is purely local.
It is addressed solely to the courts of the state under whose au-
thority the exemption is allowed. But it has nothing to do with
the process, proceedings, or judgments of the courts of other
states, which are to be governed altogether by their own munici-
pal jurisprudence. Wherever a remedy is sought, it is to be ad-
ministered according to the ler fort; and such a judgment is to be
given as the laws of the state, where the suit is brought, author-
ize and allow, and not such a judgment as the laws of other states
authorize or require.*

" De la Vega v. Vianna, 1 Barn. & Adolph. R. 284. See also Whittemore v.
Adams, 2 Cowen, R. 626; Willings v. Consequa, 1 Peters, Cir. R. 317; Courtois
». Carpentier, 1 Wash. Cir. R. 376; Bird v. Caritat, 2 Johns: R, 345 ; Wyman v.
Southward, 10 Wheaton, R.1. See Henry on Foreign Law, p. 81 to 86.

2 Don v. Lippmann, 5 Clark & Finnell. R. 1, 13, 14,15; ante, § 557, note.

® Hinkley v. Marean, 3 Mason, R. 88 ; Titus v. Hobart, 5 Mason, R. 378; At-
water v. Townsend, 4 Connect. R. 47; Woodbridge v. Wright, 3 Connect. R. 523,
526; Smith v. Healey, 4 Connect. R. 49; 3 Burge, Comm. on Col. and For. Law,
Pt, 2. ch. 21, § 7, p. 878, 879. Ante, § 3476.

* Hinkley v. Marean, 3 Mason, R. 88; Titus v. Hobart, 5 Mason, R. 378 ; At-
760 CONFLICT OF LAWS. [CH. XIV.

.[* 572 a. And it often happens, that by reason of the form of
a judgment rendered in a foréign jurisdiction no adequate remedy
can be found, out of the particular place where rendered. Thus
in regard to bonds, with penalty, for the performance of succes-
sive, or continuing obligations, or duties ; and where upon default
the obligee has brought suit and obtained judgment for the pen-
alty, with an assessment of damages for past breaches, the, judg-
ment for the penalty remaining, as a pledge, for future perform-
ance, and upon which, by the local law, the obligee is entitled to .
bring scire facias, from time to time, as successive breaches occur,
and obtain a re-assessment of damages, and another execution for
each, no recovery upon the judgment for the penalty can be had,
the adjudication in that form not importing an absolute debt.1]

§ 573. The general doctrine is stated in ample terms by Paul
Voet. Quid, si actiones sint intentande, et quidem personales, an
sequemur, statutum domicilii debitoris, an statutum loci, ubi exigt
vel intentari poterunt? Respondeo, etsi bene multi velint tales
actiones certo loco non circumscribi, inspectdé tantum illd corporal
circumscriptione, ut tamen eas velint censeri de loco ubi agi et
exigt possunt.2 Again he adds: Sed revertar, unde fueram di-
gressus, ad concursum statutorum variantium circa judicia. Ubi
occurrunt nonnulla circa solemnia in judictis servanda, circa tem-
pora, cautiones, probationes, Causarum decisiones, executiones, et
appellationes. Hinge, enim, alia servari solemnia, in loco domi-
cilti litigatoris, alia in loco contractis, alia in loco rei site, alia in
judicti loco. Quenam spectanda solemnia? Respondeo; Spec-
tanda sunt solemnia, id est, stylus judicis fori illius, ubi litigatur.
Idque in genere verum est, sive loguamur de civibus, sive forensi-
bus ; statuta quippe circa solemnia meo sensu mizti erant generis ;
adeoque vires exserunt tam intra quam extra territorium, tam in
ordine ad incolas, quam ad exteros.2

§ 574. The same doctrine is fully confirmed by John Voet, as
a received doctrine of foreign law. Multis preterea in locis id
obtinet, ne duo ejusdem provincie seu territorit incole se invicem,
water v. Townsend, 4 Connect, R. 47 ; Smith v. Healey, Id. 49; Woodbridge v.
Wright, 3 Conn. R. 523. See, also, Suydam v. Broadnax, 14 Peters, R. 67.

[*? Dimick v. Brooks, 21 Vt. R. 569; Battey v. Holbrook, 11 Gray, 212}
post, § 609.]

* P. Voet, ad. Stat. § 10, ch. 1, n. 2, p. 281, edit. 1715; Id. p. 340, edit, 1661"

° P. Voet, de Statut. § 10, ch. 1, n. 6, p. 285, edit. 1715; Id. p. 345, 346, edit.
1661.

}
§572a+574a.] JURISDICTION AND REMEDIES. 761

aut bona, sistant in alio territorio. Sic duo Brabantini se invi-
cem non extra Brabantiam; duo Hollandi non extra Hollandum,
§e. Quod si quis, neglectd statuti- dispositione, concivem aut
bona ejus alibi stiterit, litis movende gratid, non peccabunt quidem
istius loci judices, si arrestum confirment ;. cum non ligentur alieni
territorii legibus, talem arrestationem concivium vetantibus. Sed,
qui ita detentus litigare coactus est, recté petet a suo judice, con-
demnari concivem, ut arresti vinculim, contra statuti domicilti
prohibitionem alibi impositum, remittat, litique alibi cepte cum
impensis renunciet, ac -solvat mulctam statuto dictatam.! And he
proceeds to add, that in some places the practice is in suits be-
tween two foreigners, belonging to one and the same country, to
remit the parties to their domestic forum; which, however, is
done, not as a matter of right or duty, but of comity, or from pol-
icy, to prevent injurious delays to the suits of their own citizens.
Quod tamen vel ex comitate magis, quam necessitate fit, vel magis
ad declinandam nimiam litium frequentiam judicibus molestam,
civibus, inde suaram litium protelationem patientibus, damno-
sam.2 , ;
§ 574 a. Dumoulin also affirms a similar doctrine in the pas-
sages already cited. Unde, an instrumentum habeat executionem,
et quomodo debeat exequi, attenditur locus, ubi agitur, vel fit exe-
cutio. Ratio, quia fides instrumenti concernet' meritum ; sed vir-
tus executoria et modus exequendi concernit processum.® Quod in
his,. que pertinent ad processum judicti, vel executionem facien-
dam, vel ad ordinationem judicti, semper sit observanda consuetudo
loci, in quo judicium agitatur* Burgundus is-equally expressive.
Eodem modo dicemus, in contexanda actione, fori consuetudines
observandas esse, ubi contenditur, quia et in judiciis quasi contra-
hitur. . Idem in arrestis seu manuum injectionibus tenendum est, ut
scilicet consuetudinem loci spectemus, ubi facta est manus injectio ;
quia arrestatio apud nos ingressus est judicti, et duntaxat litis
pendentiam, non executionem generet.6 This indeed seems, with

1 J. Voet, ad Pand. Lib. 2, tit. 4, § 45, p. 129; cited also 1 Barn. & Adolph.
R. 288, note; ante, § 562.

2 Ibid.

# Molin. Opera, Tom. 3, Comm. ad Cod. Lib. 1, tit. 1, 1. 1, p. 554, edit. 1681 ;
ante, § 561.

4 Td. Lib. 6, tit. 32, p. 735, [741,] edit. 1681; 1 Boullenois, Observ. 23, p. 528,
524; ante, § 561.: ;

‘ a Tract. 5, n. 1, p. 118, 119; 1 Boullenois, Observ. 23, p. 524, 526;

64*
762 CONFLICT OF LAWS. [ cH. Xrv.

few exceptions, to be the general doctrine maintained by foreign
jurists ; and Boullenois has collected their opinions at large. He
treats the question of imprisonment as purely one modus exequen-
di; and he applies the same principle to mesne process and to
process of execution.2 He accordingly puts the case, where a
Frenchman contracts a common debt in a country, byswhose laws
such a debt imparts a right to arrest the body, and says, that this
right is a mere mode of enforcing the contract, modus exequendi;
and consequently it depends upon the law of the place, where the
execution of it is sought; so that if it is sought in a place, where
no such arrest of the body is allowable, the creditor has no right
to claim any restraint by such a rigorous course.2 ~

§ 574 6. Buta distinction is taken by some foreign jurists: be-
tween a contract made in a country between a stranger and a cit-
izen thereof, or between two citizens, and a contract made in the
same country between two foreigners belonging to another coun-
try, when the law of the place where the contract is made, allows
an arrest of the person, and the law of the place where the suit is
brought, or to which the two foreigners belong, disallows such an
arrest. Thus, in Brabant, there is a law of Charles the Fourth,
which prohibits any Brabanter from arresting another Brabanter
in a foreign jurisdiction ; and Peckius puts the question, whether
in a case of this sort any Brabanter may arrest another Brabanter
in Spain, Italy, England, France, or other foreign country. And
he holds, that he may not; first, because the prohibitory law is
absolute, and comprehends subjects even in a foreign territory;
secondly, because the power of establishing a law between subjects
is not limited to the territory of the sovereign ; thirdly, because,
if the sovereign may bind his subjects everywhere, this privilege
equally binds them everywhere, as a part of the law; fourthly,
because a sentence of excommunication would bind the subjects
in a foreign territory; and a fortiori then, this privilege does bind
them ; and, fifthly, because the incapacity of the prodigal binds
him in a foreign territory, and this case of privilege is as strong
paaiee (Oona p- 488. But see Burgundus, Tract. 4, n. 27, p- 116,

? 1 Boullenois, Observ. 23, p. 523, 524, 525, 528, 529 ; Id. p. 535 to p- 548; Id.
p. 544 to p. 569. See Henry on Foreign Law, p. 81 to 85.

* Id.; Henry on Foreign Law, p. 55, 56; Id. p. 81 to 85.

* 1 Boullenois, Observ. 23, p. 525; Id. p. 528, 529; Id. Observ. 25, p. 601,
&e. .
§574a-574¢.] JURISDICTION, AND REMEDIES. 763

or stronger. Hence he concludes, that not only the person, but
the movables of the Brabanter, (which follow his person,) also
would be free from arrest. Unde sicut persona arrestari non po-
test, ita nec bona mobilia ejusdem+

§ 574 c. There is great reason to doubt both the premises and
the conclusion of Peckius in asserting this distinction; and cer-
tainly it now has no admitted recognition in the common. law.?
Peckius asserts another distinction, in which he has apparently the
support of Christingus, and Everhardus, and some other jurists,
that where the law of the place of contract allows an arrest, but
the law of the place of payment does not, (and so e contra in the
converse case,) the law of the latter is to prevail. He quotes the

‘Janguage of Everhardus on the same point with approbation.
Quod si in loco celebrati. contractus sit statutum, quod debitor pos-
sit capt et inearcerari, vel quod instrumenta notariorum habeant
executionem paratam; in loco vero destinate solutionis, non sit
simile statutum, sed servetur jus commune, attendatur, quoad hoc,
mos, observantia, statutum, aut lex, destinate solutionis. Quippe,
quod in his, que concernunt judicariam executionem, inspicitur lo-
cus destinate solutionis.2 He then adds in the converse case:
Quod et in arrestatione, si similis casus occurrat, locus destinate
solutionis et judicii spectari debeat.* Christinzeus uses similar
language. The common law of England and America, however,
does not recognize any such distinction.®

1 Peck. de Jure Sist. ch. 8, n. 1 to n. 6, Peckii, Opera, p. 753, edit. 1666.

2 Ante, § 568 to § 571.— Mr. Henry, however, thinks the distinction sound,
and deems it supported’ by the case: of Melan v. The Duke of Fitz James, 1 Bos.
& Pull. 138; ante, § 568 to § 572, Burgundus says: Affinia solutioni sunt, pree-

: scriptio, oblatio rei debitz, oe novatio, delegatio, et ejus modi. Burgun-
‘dus, Tract: 4, n. 28, p. 116.

8 Everhard. Consil. 78, n. 22, p. 208; Peck. de Jure Sist. cap. 11, p. 758, edit,
Peck. Oper. 1666.

* Peck. Oper. De Jur. Sist. cap. 11, n. 1, p. 758, 759, edit, 1666.

® Christin. Tom. 1, Decis. 283, n. 12, p. 355; 1 Boullenois, Observ. 23, p. 525;
2 Boullenois, Observ. 46, p. 488.

5 Post, § 581; Gempbell v. Steiner, 6 Dow, R. 116; Don v. Lippmann, 5 Clark
& Finnell. R. 1, 19, 20. In this latter case, Lord Heoughan said, speaking on this
point: “ All the authorities, Huber. (De Confl. Leg. in Div. Imp.) ; Voet (Dig.
Lib, 24, t. 3, 8. 12) ; and Lord Kames, (Kames’s Principles of Equity, 3, 8, 6, 1,
5, 3,) are taal in that case. Campbell v. Steiner (6 Dow, 116,) was an action
for a bill of costs for business done in this House. The court below there allowed
‘the rule of Scotch prescription. That judgment was affirmed by Lord Eldon, who,
however, said, that he moved it with regret. He said, that it had been ruled, that
764 CONFLICT OF LAWS. [cH. XIV.

§ 574 d. Peckius then puts another case, where the contract of
indebtment is made in a country where an arrest is not allowed,
and the debtor has not promised to pay in another country where
an arrest is allowed, but he is found there; whether in such a
case he may, nevertheless, be arrested there, the debt being then
due. He thinks he may; because to this extent it may be truly
said, that the law and usage of the place of the judgment ought
in this matter to be observed ; and that in those things which con-
cern the proceedings in suits, foreigners are bound by the laws of
the place where they are liable to be sued. Sed quid, st quis con-
trazit in loco, in quo illius loci homines non utuntur arresto, neque
promisit solvere in patria arresti, sed tamen illice reperitur ; utrum
nthilominus arrestari possit ? Existimo, quod sic, si vel tempus so-
lutionis elapsum vel in mora periculum sit; quia adhuc verum est
dicere, quod statutum et consuetudo loci judicii servare debet ni
istius modi; et in his, que ad ordinationem judiciorum pertinent,
forenses ligantur statutis loci, ubi conveniuntur+

§ 575. In the next place, as to defences arising from matters
ex post facto. These may be of the nature of counter claims or
set-offs to actions, analogous to compensation in the Roman and
foreign law ;2 or they may be matters of discharge, such as dis-
charges under insolvent laws, arising at a subsequent period ; or
the debtor being in Scotland, and the creditor in England, the debtor might plead
the Scotch rule of prescription ; that that was against some of the old authorities,
but was in accordance with those of later date. That case cannot be reconciled
with the principle, that the locus solutionis is to prescribe the law. It has noth-
ing to do with the case. Why is it, then, that the law of the domicil of the debtor
was there allowed to prevent the plaintiff from recovering? It was, because the
creditor must follow the debtor, and must sue him, where he resides; and by the
necessity of that case, was obliged to sue him in Scotland. In that respect, there-
fore, there was in that case no difference between the lex loci solutionis, and the
lex fori; and it must be admitted, that in such case the rules of evidence, and if
so, the rules of practice, may be varied, as they are applied in one court or the
other. But governing all these cases is the principle that the law of the country
where the contract is to be enforced, must prevail in enforcing such contract,
though it is conceded, that the lex loci contractus may be referred to, for the pur-
pose of expounding it. If, therefore, the contract is made in one country, to be
performed in a second, and is enforced in a third, the law of the last alone, and
not of the other two, will govern the case.”

*" Peckii, Opera, De Jure Sist. cap. 11, p. 758, 759, edit, 1666. The same
point was held in Don v. Lippmann, 5 Clark & Finnell. R. 1, 20; ante, § 574 ¢,
note.

* Pothier, Oblig. n. 587, 588.
§574d=-575a.] JURISDICTION AND REMEDIES. 765

they may be laws regulating the time of instituting suits, called,
in the foreign law, statutes of prescription, and, in the common
law, statutes of limitations. The latter defence will deserve a
very exact consideration. The former may be disposed of in a few
words. The subject of discharges from the contract, either by the
act of the parties, or by operation of law, have been already suffi-
ciently considered.1_ As to set-off or compensation, it is held in
the courts of common law, that a set-off to any action, allowed by
the local law, is to be treated as a part of the remedy; and that
therefore it is admissible in claims between persons belonging to
different states or countries, although it may not be admissible by
the law of the country where the debt, which is sued, was con-
tracted? [The admissibility of the set-off is to be governed en-
tirely by the lex fori, and not by the lex loci contractus.2] The
liens, and implied hypothecations, and priorities of satisfaction,
given to creditors by the law of particular countries, and the order
of payment of their debts, are, as we have already seen,* gener-
ally treated as belonging to the proceedings in suits ad litis ordi-
nationem, and not to the merits of the claim.’

[*§ 575 a. But any defence to a contract which inheres in the
contract transaction, and does not arise out of something wholly
distinct and independent, may be urged, wherever the contract is
put in suit, and its effect must be determined by the law of the
contract, and not by the law of the forum.® In the former of
these cases, it was held that a promissory note made and nego-
tiated where equitable defences on the part of the makee are not
allowed, could not be met, by proof of payment on. his part, when
sued in a forum where such defence was admissible at the date of
such payment. ]

1 Ante, § 330 to § 352. See, also, 3 Burge, Comm. on Col. and For. Law, Pt. 2,
ch, 21, § 7, p. 874 to 886.

2 Gibbs v. Howard, 2 New Hamp. R. 296; Ruggles v. Keeler, 3 Johns. R. 263.
See Pothier on Oblig. n. 641, 642.

*Tb. Bank of Gallipolis v. Trimble, 6 B. Monroe, 601. But see Bliss* v.
‘Houghton, 18 New Hamp. R. 126 ; Harrison v. Edwards, 12 Verm. R. 648.

“t Ante, § 822 b to 328, § 428 a.

5 Rodenburg, De Div. Stat. tit. 2, ch. 5, n. 15, 16; 2 Boullenois, Appx. p. 47,
49; 1 Boullenois, Observ. 25, p. 634, 635, 639; Ta. p- 685; Id. p. 818. See,
also, P. Voet, De Stat. § 10, ch. 1, n. 2 ton. 6, p. 282 to 289, edit. 1715; Id. p.
340 to 346, edit. 1661.

[*® Harrison v. Edwards, 12 Vt. R. 648; Britton v. Bishop, 11 id. 70.]
766 CONFLICT OF LAWS. [cH. XIV.

§ 576. In regard to statutes of limitation or prescription .of
suits, and lapse of time, there is no doubt that they are strictly
questions affecting the remedy, and not questions upon the merits.
They go, ad litis ordinationem, and not ad litis decisionem, in a
just juridical sense.! The object of them is to fix certain periods
within which all suits shall be brought in the courts of a state,
whether they are brought by or against subjects, or by or against
foreigners. And there can be no just reason, and no sound pol-
icy, in allowing higher or more extensive privileges to foreigners
than are allowed to subjects. Laws, thus limiting suits, are found-
ed inthe noblest policy. They are statutes of repose, to quiet
titles, to suppress frauds, and to supply the deficiency of proofs,
arising from the ambiguity and obscurity, or the antiquity of trans-
actions. They proceed upon the presumption, that claims are ex-
tinguished, or ought to be held extinguished, whenever they are
not litigated in the proper forum, within the prescribed period.
They take away all solid grounds of complaint ; because they rest
on the negligence or daches of the party himself. They quicken
diligence, by making it in some measure equivalent to right.
They discourage ‘litigation, by burying in one common receptacle
all the accumulations of past times, which are unexplained, and
have now, from lapse of time, become inexplicable. It has been
said by John Voet with singular felicity, that controversies are
limited to a fixed period of time, lest they should be immortal,
while men are mortal: Ne autem lites immortales essent, dum liti-
gantes mortales sunt?

§ 5TT. It has accordingly become a formulary in international
jurisprudence, that all suits must be brought within the period pre-
scribed by the local law of the country where the suit is brought
(lex fori,) otherwise the suits will be barred ; and this rule is as
fully recognized in foreign jurisprudence, as it is in the common
law.? Not, indeed, that there are no diversities of opinion upon

g 1 Boullencis, Observ. 23, p. 530; Ferguson v. Fyffe, 8 Clark & Finn. 121,
140,

* J. Voet, ad Pand. Lib. 5, tit. 1, § 58, p. 328,

* The authorities in the common law are very numerous. A considerable num-
ber of them are cited in 4 Cowen, R. 528, note 10; Id. 530; Van Reimsdyk v.
Kane, 1 Gallis. R. 371 ; Le Roy v. Crowninshield, 2 Mason, R. 151; British Linen
Company v. Drummond, 10 Barn. & Cresw. 903; De La Vega v. Vianna, 1 Barn.
& Adolph. R, 284; Huber v. Steiner, 2 Bing. New Cases, 202, 209 to 212; Don
v. Lippmann, 5 Clark & Finnell. R. 1, 18, 14, 15, 16, 17; Medbury v. Hopkins, 3
§ 576, 577.] JURISDICTION AND REMEDIES. 767

this subject ; but the doctrine is established by a decisive current
of well-considered authorities.1_ Thus, Huberus lays down the
doctrine in clear terms, applying it to the very case of a prescrip-
tion ; and he assigns the reason: Ratio hec est, quod prescriptio
et executio non pertinent ad valorem contractiis, sed ad tempus et
modum actionis instituende, que per se, quasi contractum, separa-
tum negotium constituit. Adeoque receptum est optimé ratione, ut
ordinandis judictis, loci consuetudo, ubi agitur, etsi de negotio, alibi
celebrato, spectatur, ut docet Sandius, ubt tradit, etiam in execu-
tione sententia alibi late, servari jus loci, in quo fit executio, non
ubi res judicata est.2 Paul Voet says: Ubi quoad actionis inten-
tationem, occurrit illa difficultas, an si diversa sint statuta circa
actionis finitionem, seu terminum, spectandus sit terminus slatuti
debitoris, an creditoris? Respondeo; quia actor sequitur forum
rei, ideo extraneus petens & reo, quod sibi debetur, sequetur termi-
num statuli prescriptum actioni in foro ret. Et quia hoc statutum
non exsérit vires extra territorium statuentis, ideo, etiam reo alibt
convento, tale statutum objicere non poterit. Boullenois holds a
similar doctrine, asserting, that the bar of prescription is a part
of the modus procedendi.t It is in vain (he adds) to assert, that
the bar of prescription is a peremptory exception, (exceptio pe-
remptoria,) and that, according to Baldus, exceptio peremptoria
pertinet ad decisionem cause ; —That remark properly applies to
a peremptory exception, which falls upon the contract, and not to
Connect. R. 472; Woodbridge v. Wright, 3 Connect. R. 523; Bank of U. 8. v.
‘Donnally, 8 Peters, R. 361; Bulger v. Roche, 11 Pick. 36; De Couche v. Sava-
tier, 3 Johns. Ch. R. 190; Lincoln v. Battelle, 6 Wend. R..475; Brown v. Stone,
4 Louis. Ann. R, 235. And this although the contract may be dated and payable
in another state. Young v. Crossgrove, 4 Louis. Ann. R. 233.

1 See Ersk. Inst. B.°3, tit. 7, n. 49, p. 633, 634.

2 Huberus, Tom. 2, Lib. 1, tit. 8, De Conflict. Leg. § 7; 1 Hertii, Opera, De
Collis. § 4, n. 65, Pe 150, 151, edit. 1737; Id. p. 312, edit. 1716. Hertius seems
of a different opinion ; saying, that, if the prescription only of the place, where
the suit is brought, could prevail, the times of prescription would be very uncer-
tain; for a man might frequently be sued in different places. 1 Hertii, Opera,
De Collis. Leg. § 4, n. 65, p. 150, edit. 1737; Id. p. 212; edit. 1716. See also
the opinions of other jurists to the same point in 1 Boullenois, Observ. 23, p. 528,
529, 530; 2 Boullenois, Observ. 46, p. 487, 488; Erskine’s Inst. B. 3, tit. 7, § 48,
p- 633, 684; J. Voet, ad Pandect. Tom. 2, Lib. 44, tit. 3, § 10, 12; 3 Burge,
Comm. on Col. and For. Law, Pt. 2, ch. 21, § 7, p. 878, 879.

* P, Voet, de Stat. § 10, ch. 1, n. 1, p. 281, edit. 1715; Id. p. 340, edit.
1661,

‘* 1 Boullenois, Observ. 23, p. 530; post, § 579.
768 CONFLICT OF LAWS. [cH. Xv.

one, which falls only upon the action or proceedings in a suit.
Many other jurists might be cited in support of this doctrine, if it
were necessary to go at large into the subject.?, The doctrine of
the Scottish courts is in precise conformity to that of the common
law.8

§ 578. But if the question were entirely new, it would be dif
ficult upon principles of international justice or policy to establish
a different rule. Every nation must have a right to settle for it-
self the times, and modes, and circumstances, within and under
which suits shall be litigated in its own courts. There can be no
pretence to say, that foreigners are entitled to crowd the tribu-
nals of any nation with suits of their own, which are stale and
antiquated, to the exclusion of the common, administration of
justice between its own subjects. As little right can foreigners
have to insist, that the times and modes of proceeding in suits,
provided by the laws of their own country, shall supersede those
of the nation in which .they have chosen to litigate their contro-
versies, or in whose tribunals they are properly parties to any
suit.

§ 579. The reasoning sometimes insisted upon by foreign jurists,
in opposition to this plain and intelligible doctrine, is, in the first
place, that the statute of limitations or prescription really oper-
ates as a peremptory bar, and therefore does not in fact touch the
mode of proceeding, but the merits of the case: Non tangit modum
simplicem procedendi; sed tangit meritum cause;* and, in the
next place, that it subjects the party to different prescriptions in
different places, and therefore leaves his rights in uncertainty®
The latter objection may be answered by the obvious considera-
tion, that if the party chooses to reside within any particular ter-
ritory, he thereby subjects himself to the laws of that territory, as

* 1 Boullenois, Observ. 23, p. 530; post, § 579.

2 See 1 Boullenois, Observ. 23, p. 530, 550; 2 Boullenois, Observ. 46, p. 455,
456; Casaregis, Disc. 179, § 59, 60; P. Voet, De Statut. § 10, ch. 1, § 1, p. 281,
edit. 1715; Id. p. 339, 340, edit. 1661. See 3 Burge, Comm. on Col. and For.
Law, Pt. 2, ch. 10, § 5, p. 122, 128, 124; Id. ch. 21, § 7, p. 878, 879, 880; Ere
kine, Inst. B. 3, tit. 7, § 48, p. 633, 634.

® Erskine, Inst. B. 8, tit. 7, § 48, p. 683; Le Roy v. Crowninshield, 2 Mason, R.
174; Kames on Equity, B. 8, ch. 8, § 4, 6; P. Voet, De Statut. § 10, chk 1,n. I,
p. 280, 281, edit. 1715; Id. p. 339, 340, edits 1661.

41 Boullenois, Observ. 23, p. 529, 530; ante, § 577.

* 1 Hertii, Opera, De Collis. Leg. § 4, n. 65, p, 150, 151, edit. 1737; Id. p. 212,
edit. 1716.
§ 577 - 580.] JURISDICTION AND REMEDIES. 769

to all suits brought by or against him. It may be added, that, as
the law of prescription of a particular country, even in case of a
contract made in such country, forms no part of the contract
itself, but merely acts upon it ex post facto in case of a suit, it can-
not properly be deemed a right stipulated for, or included in the
contract. Even these foreign jurists do not pretend, that the pre-
scription of a country where a contract is made, constitutes a part
of the contract. What they contend for amounts at most only to
this, that the prescription of the lex loci contractés acts upon, and
appertains to, the decision of the cause. Hoc pertinet ad deci-
sionem cause, says Baldus. Prescriptio utique ad contractum et
meritum cause pertinet, non ad processum, says Gerhard Titius.!
This objection indeed is fully and satisfactorily answered by Boul-
lenois in the passage above cited?

§ 580. The other objection is well founded in its form, but it
does not shake the ground of the general doctrine. It is true as
Baldus contends, that the statute of limitations or prescription
does go to the decision of the cause: Exceptio peremptoria pertinet
ad decisionem cause. But that is not the question. The ques-
tion is, whether it is a matter of the original merits, as, for exam-
ple, a question of the original validity, or interpretation, or dis-
charge of a contract, or whether it is a matter touching the time
and mode of remedial justice, which is provided by law to redress
grievances, or to prevent wrongs, or to suppress vexatious litiga-

1 1 Boullenois, Observ. 23, p. 529, 530; Ersk. Inst. B. 3, tit. 7, § 48, p. 633, 634.
2 Ante, § 577. — Lord Brougham also in delivering his judgment in Don v.
‘Lippmann, 1 Clark & Finnell. p. 1,15, 16, met the very objection. His language
on that occasion was (it being the case of a bill of exchange accepted and payable
in France, and sued afterwards in Scotland, and the Scottish prescription set up
as a bar): “It is said, that the limitation is of the very nature of the contract.
First, it is said, that the party is bound for a given time, and for a given time
only. That i is a strained construction of the obligation. The party does not bind
* himself for & particular period at all, but merely to do something on a certain day,
or on one or other of certain days. In the case at the bar the obligation is to pay
asum certain at a certain day ; but the law does not suppose, that he is at the
moment of making the contract contemplating the period, at which he may be
freed by lapse of time from performing it. The argument, that the limitation is
of the nature of the contract, supposes, that the parties look only to the breach of
the agreement. Nothing is more contrary to good faith, than such a supposition,
that the contracting parties look only to the period, at which the Statute of Limi-
tations will begin to run. It will sanction a wrong course of’ een, and will
turn a protection against laches into a premium for evasiveness.”
CONFL. 65
770 CONFLICT OF LAWS. [cH. XIV.

tion. Suppose a nation were to declare, (as France has done in
regard to foreigners in some cases,) that no suits should be main-
tained ‘in its own courts between foreigners.! This would be a
peremptory exception. But could it be denied, that France had
aright so to regulate the jurisdiction of its own tribunals? Or
that it was an enactment touching remedies? Considered in
their true light, statutes of limitation or prescription are ordina-
rily simple regulations of suits, and not of rights. They regulate
the times in which rights may be asserted in courts of justice, and
do not purport to act upon those rights. Boullenois has truly
said: L’exception ne tombe, que sur Vaction et la procédure inten-
tée.2, Pothier very properly treats prescription, (Fin de non rece-
voir) not so much as an extinguishment of the debt or claim, as
an extinguishment of the right of action thereon.’ And this is
precisely the manner in which the subject is contemplated at the
common law as well as by many foreign jurists.*

§ 581. And here, again, upon the same mistaken foundation
already discussed, some foreign jurists® maintain the doctrine in
relation to contracts, a doctrine repudiated by the common law,®
that if they are made in one place, and to be performed or paid
in another place, the law of prescription of the latter place is to
govern. Such is the opinion of Everhardus. Aut guerimus (says
he) quis locus inspiciatur, quoad extinctionem actionis propter
prescriptionem statutoriam, vigentem in uno loco, et non in alio,
ubi statuta locorum sunt diversa. Et certum est, quod inspicitur
locus destinate solutionis.’ Bartolus, Burgundus, and Christi-
neus hold the same opinion.’ Of course, the doctrine of these

1 Ante, § 542.

* 1 Boullenois, Observ. 23, :p. 530; ante, § 577; Ersk. Inst. B. 8, tit. 7, § 48,
p- 633, 634.

* Pothier on Oblig. n. 640, 641, 642.

* Sturgis v. Crowninshiold, 4 Wheat. R. 122, 200, 207. J. Voet, ad Pand. Lib.
44, tit. 3, § 10; D’Aguesseau, (Euvres, Tom. 5, p. 374, 4to edit.; Le Roy v. Crown-
inshield, 2 Mason, R. 170, 171; Merlin, Répert. tit. Fyoeoription, Sect. I. § 3, n. 7.
— Corporations are deemed to be dostitefied in the country from which they derive
their act or charter of incorporation; and therefore the same rule applies to them
as applies to private persons in cases of prescription. 3‘Burge, Comm. on Col.
and For. Law, Pt. 2, ch. 21, § 7, p. 881, 882. See Louisville Railroad Company
v. Letson, 2 How. U. S. R. 497.

5 Ante, § 574 ¢. ® Ibid.

* Everhard. Consil. 78, p. 208; 2 Boullenois, Observ. 46, p. 488.

® 2 Boullenois, Observ. 46, p. 488. — It is surprising, that Mr. Henry should
§ 580, 581.] JURISDICTION AND REMEDIES. 771

authors must be understood to be limited to prescription in per-
sonal actions ; for, as to prescription in cases of immovable prop-
erty, it is beyond reasonable doubt, that it is and’ ought to be
governed purely by the lex loci rei site. Dumoulin has down
the distinction in broad but exact terms. Aué statutwm disponit
de prescriptione, vel usucapione rerum corporalium, sivé mobi-
lium, sivé immobilium, et tunc indistincte inspicitur locus, ubi res est.
Idem in rebus sivé Juribus incorporalibus limitatis ad res corpo-
rales, sivé quatenus ad illas res limitantur; Secus si de Juribus,
vel actionibus personalibus, sivé momentaneis, sivé annuis persone
adherentibus, id est non limitatis ad certas res’, etiamsi illis action-
ibus adhereat hypotheca generalis, vel accessoria rerum corpora-
lium? Paul Voet takes the like distinction. Quid, si itaque con-
tentio de aliquo jure in re, seu ex ipsa re descendente ? vel ex con-
tractu, vel actione personali, sed in. rem scripta? An spectabitur
loci statutum, ubi dominus habet domicilium, an statutum ret site?
Respondeo ; Statutum ret site. Ut tamen actio etiam intentari
possit, ubt reus habet domicilium. IRdque obtinet, sive forensis sit
alle, de cujus re controversia est, sive incola loci, ubi res est sita?

have cited this doctrine of foreign authors, as sound law (apparently copying it
from Boullenois) without considering that the whole course of English opinions
on this subject disclaimed it. (Henry on For. Law, ch. 8, § 1, 2, p. 54, 55.) Par-
dessus says, that, when a debtor pleads a statute of prescription, the right to use
this plea, and the time within which it should be pleaded, will be regulated by
the law of the place where he has promised to pay; or, if this place has not been
' determined, then at the domicil of the debtor, at the time when he contracted the
obligation ; because, prescription being a plea given to the debtor against the de-
mand of his creditor, it is naturally in the domicil of the debtor or of his govern-
ment that he should find this protection. Pardessus, Tom. 5, Pt. 6, tit..9, ch. 2,
§ 2, art. 1445, p. 275; Henry on For. Law, Appendix, p. 237. Pardessus goes
on to state, that these rules apply to the case where several sureties for the same
debt reside in jurisdictions, where the laws respecting prescriptions are different.
Fach, in becoming a surety, must be supposed to have intended to enjoy all the
real pleas or exceptions existing in favor of the principal debtor, without re-
nouncing the particular prescription in his own favor, to extinguish his obligation
as surety, which is regulated by the law of his domicil at the moment when he
signed the contract. Pardessus, Id. art. 1495, p. 275, 276; Henry on For. Law,
238, This is certainly pressing the doctrine to very great extent.

ae Boullenois, Observ. 20, p. 350; J. Voet, ad Pand. Lib. 44, tit. 8, § 12.
_ ® Molin. Opera, Tom. 3, Comm. ad Cod. Lib. 1, tit. 1, L,1, p. 557, , De Preseript.
edit..1681; 1 Boullenois, Observ. 20, p. 350.

* Ps Vout De Statut. § 9, ch. 1, a. 2, p. 251, edit. 1715; Id. p. 3085, edit.
1661,
772 CONFLICT OF LAWS. [cH. xiv.

John Voet maintains the same doctrine. Si prescriptioni im-
plende alia prefinita sint tempora in loco domicilit actoris, alia in
loco ubi reus domicilium fovet, spectandum videtur tempus, quod
obtinet ex statuto loci, in quo reus commoratur, nisi de immobi-
lium prescriptione questio sit; quo casu neque leges domicilit
prescribentis, neque leges domicilii ejus, in cujus prajudicium
prescriptio sit, sed magis leges loci, in quo sita immobilia, spec-
tande sunt; cum tralatitium sit, immobilia regi lege loci, in quo
sita sunt. Pothier and Merlin fully recognize the same doctrine?
The common law has firmly fixed its own doctrine, that the pre-
scription of the lex fori must prevail in all cases of personal ac-
tions. In all cases of real actions, and of actions touching things
savoring of the realty, the prescription of the law rez site is also
to prevail.2 And as by the common law, no actions of this sort
can be brought ex directo, except in the place rei site ; it follows
that the lea fori governs, as a universal rule, applicable to all
cases.4

§ 582. But although statutes of limitation or prescription of the
place where the suit is brought, may thus properly be held to
govern the rights of parties in such suit, or as the proposition is
commonly stated, the recovery must be sought, and the remedy
pursued within the times prescribed by the lex fori, without re-
gard to the lex loci contractés, or the origin or merits of the
cause; yet there is a distinction which deserves consideration,
and which has been often propounded. It is this. Suppose the
statutes of limitation or prescription of a particular country do

+ J. Voet, ad Pand. Tom. 2, Lib. 44, tit. 8, n. 12, p. 887; 3 Burge, Comm. on
Col. and For. Law, Pt. 2, ch. 10, § 5, p. 122, 125; J. Voet. ad Pand. Tom. 1,
Lib. 5, tit. 1, n. 77.

* Pothier, Traité de la Prescript. n. 247; Merlin, Répert. tit. Prescription,
Sect. I. § 3,n. 7; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 10, § 5, Pp
123, 124.

® See Cargile v. Harrison, 9 B. Monroe, 518,

* See British Linen Company v. Drummond, 10 Barn. & Cresw. 903; Huber v.
Steiner, 2 Bing. N. Cas. 202, 209 to 216; Don v. Lippmann, 5 Clark & Finnell.
R. 1, 13 to 17; Bulger v. Roche, 11 Pick. R. 86; De Couche v. Savatier, 3 Johns.
Ch. R. 190, 218, 219; De la Vega v. Vianna, 1 Barn. & Adolph. 284; Lincoln
v. Battelle, 6 Wend. R. 475; ante, § 552 to § 555; Broh v. Jenkins, 9 Martin, R.
526; 8 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 10, § 5, p. 128, 124, 125.
— The Roman law seems to have given an election to the plaintiff to bring his
action in the domicil of the defendant (reus) or of the rei site. Ante, § 532;
1 Boullenois, Observ. 25, p. 618, 619.
 

§-581; 582.] © JURISDICTION AND REMEDIES. | ~ . 378

not only extinguish the right of action, but the claim or title it-
self, ipso facto, and declare it a nullity.after the lapse of the pre
scribed period; and the parties are resident within the jurisdic-
tion during the whole of that period, so that it has actually and
fully operated upon the case ; under suchi circumstances the ques-
tion might properly arise, whether such statutes of limitation or
prescription may not afterwards be set up in any other country
to which the parties may remove, by way of extinguishment, or
transfer of the claim or title. This is a point which does not
seem to have received as much consideration in the decisions of
the common law, as it would seem to require. That there are
countries in which such regulations do exist, is unquestionable.
There are states which have declared, that all right to debts, due
more than a prescribed term of years, shall be deemed extin-
guished ; and that all titles to real and personal property, not
pursued within the prescribed time, shall be deemed forever fixed
in the adverse possessor.1 Suppose, for instance, (as has oc-
curred,) personal property is adversely held in a state for, a
period beyond that prescribed by the laws of that state, and after
that period has elapsed the possessor should remove into another
state, which has a longer period of prescription, or is without any
prescription ; could the origiial owner assert a title there against
the possessor, whose title by the local law, and the lapse of time,
had become final and conclusive before the removal? It has cer-
tainly been thought, that in such a case, the title of the possessor
cannot be impugned.? If it cannot, the next inquiry is, whether
the bar of a statute extinguishment of a debt, lege loci, ought not
equally to be held a peremptory exception in every other coun-
try? This subject may be deemed by some persons still open for
future discussion. It has, however, the direct authority of the
Supreme Court of the United States in its favor ;* and its correct-

1 See J. Voet, ad Pand. Lib. 44, tit. 3, § 5, 6,9; Ersk. Inst. B. 3, tit. 7, § 1,
2, 7,8; Beckford v. Wade, 17 Ves. 87; Lincoln v. Battelle, 6 Wend. R. 475. —
A statute of this sort, extinguishing the title to real estate after an adverse pos-
session, and transferring the title to the adverse possessor, actually exists in the
State of Rhode Island. Act of 1822, Digest of Rhode Island Laws, p. 363, 364,
edit. 1822, :

* See Beckford v. Wade, 17 Ves. 88; Newby v. Blakeley, 3 Hen. & Mun. R.
57; Brent ». Chapman, 5 Cranch, R. 358; Shelby v. Guy, 11 Wheat. R. 361,

., 871, 872. But see Lord Dudley v. Warde, Ambler, R. 113.

* Shelby v. Guy, 11 Wheat. R, 361, 371, 372.

65 *
174 : CONFLICT OF LAWS. [cH. XIV:

ness has been recently recognized by the Court of Common Pleas
in England! In the American courts other than the Supreme
Court, it does not seem hitherto to have obtained any direct ap-
proval or recognition. But in all the cases in which the question
might have been incidentally discussed in these, courts, the stat-
utes under consideration did not purport to extinguish the right,
but merely the remedy.?

§ 582 a. A question of a kindred character has been discussed
of late years, both in England and America; and that is, whether
the statute of limitations, or prescription of the country where a
suit is brought, is a good defence and bar to a suit brought there
to enforce a foreign judgment. In both countries it has been
held, that it is a good defence and bar. In America the case was
stronger than it was as‘ presented in England, for it was a judg-
ment rendered in one of the United States which was sought to be
enforced in another state of the Union; and therefore fell within
the clause of the Constitution, which declares, that full faith, and
credit, and effect, shall be given in each state to the judicial pro-
ceedings of every other. It was thought, that this clause did not
in the slightest degree vary the application of the general princi-
ple, that in all matters of proceedings in courts the lex loct was to
govern.*

} Huber v. Steiner, 2 Bing. N. Cases, 202, 211. See, also, Don v. Lippmann,
5 Clark & Finnell. 1, 16,17; 8 Burge, Comm. on Col. and For. Law, Pt. 2, ch.
10, § 5, p. 128, 124.

2 On this subject, see Decouche v. Savatier, 3 Johns. Ch. R. 190, 218, 219;
Van Reimsdyk v. Kane, 1 Gallis. R. 371; Le Roy v. Crowninshield, 2 Mason, R.
151, and the cases there cited; Lincoln v. Battelle, 6 Wend. R. 475; 1 Domat,
B. 3, § 4, art. 1, p. 464; Id. art. 10, p. 466. John Voet says in one place: “ Si
prescriptioni implendz alia prefinita sint tempora in loco domicilii actoris, alia
in loco, ubi reus domicilium fovet, spectandum videtur tempus, quod obtinet

ex statuto loci, in quo reus commoratur.” J. Voet, ad Pand. Lib. 44, tit. 8, § 12,
/p. 877.

§ Don v, Lippmann, 5 Clark & Finnell. R. 1,19, 20, 21; McElmoyle v. Cohen,
13 Peters, R. 312. *

* Townsend v. Jemison, 9 How. U. 8. R. 419; McElmoyle v. Cohen, 13 Peters,
R. 312, 327, 328. — Mr. Justice Wayne, in delivering the opinion of the court,
after adverting to the clause of the Constitution of the United States, and the
interpretation, thereof, said: “ Such being the faith, credit, and effect, to be given
to a judgment of one state in another by the Constitution and the act of Con-
gress, the point under consideration will be determined by settling, what is the
nature of a plea of the statute of limitations. Is it a plea that settles the right
of a party on a contract or judgment, or one that bars the remedy ? Whatever
diversity of opinion there may be among jurists upon this point, we think it well
§ 582 - 582 b.] JURISDICTION AND REMEDIES. 775

§ 582 6. It may be important, then, carefully to distinguish be-
tween cases, where the statute of limitations is strictly a mere bar

settled to be a plea to the remedy ; and consequently, that the lex fori ‘must pre-
vail. Higgins v. Scott, 2 Barn. & Adolph. 413; 4 Cowen, R. 528, note 10; Id.
530; Van Reimsdyk v. Kane, 1 Gallis. R. 371; Le Roy v.:Crowninshield, 2 Ma-
son, R. 151; British Linen Co. v. Drummond, 10 Barn. & Cresw. 903; De la
Vega v. Vianna, 1 Barn. & Adolph. 284; De Couche v. Savatier, 3 Johns. Ch.
R. 190; Lincoln v. Battelle, 6 Wend. R. 475; Gulick v. Lodes, 2 Green’s New
Jersey R. 572; 3 Burge, Comm. on Col. and For. Law, p. 883. The statute of
Georgia is, ‘that actions of debt on judgments obtained in courts, other than the
courts of this state, must be brought within five years after the judgment obtained.’
It-would be strange, if in the now well understood rights of nations to organize
their judicial tribunals according to their notions of policy, it should be conceded
to them in every other respect, than that of prescribing the time within which
suits shall be litigated in their courts. Prescription is a thing of policy, growing
out of the experience of its necessity ; and the time, after which suits or actions
shall be barred, has been, from a remote antiquity, fixed by every nation, in virtue
of that sovereignty, by which it exercises its legislation for all persons and prop-
erty within its jurisdiction. This being the foundation of the right to pass stat-
utes of prescription or limitation, may not our states, under our system, exercise
this right in virtue of their sovereignty ? Or is it to be conceded to them in
every other particular, than that of barring the remedy upon judgments of other
states by the lapse of time? The states use this right upon judgments rendered
in their own courts; and the-common law raises the presumption of the payment
of a judgment after the lapse of twenty years. May they not then limit the time
for remedies upon the judgments of other states, and alter the common law by
statute, fixing a less or larger time for such presumption, and altogether barring
suits upon such judgments, if they shall not be brought within the time stated in
the statute ? It certainly will not be contended, that judgment creditors of other
states shall be put upon a better footing, in regard to a state’s right to legislate
in this particular, than the judgment creditors of the state in which the. judgment
was obtained. And if this right so exists, may it not be exercised by a state’s
restraining the remedy upon the judgment of another state, leaving those of its
own courts unaffected by a.statute of limitations, but subject to the common law
presumption of payment after the lapse of twenty years. In other words, may
not the law of a state fix different times for barring the remedy in a suit upon a
judgment of another state, and for those of its own tribunals? We use this
mode of argument to show the unreasonableness of a contrary doctrine. But
the point might have been shortly dismissed with this safe declaration, that there
is no direct constitutional inhibition upon the states, nor any clause in the Consti-
tution, from which it«can be even plausibly inferred, that the states may not legis-
late upon the remedy in suits upon the judgments of other states, exclusive of all
interference with their merits. It being settled that the statute of limitations may
bar recoveries upon foreign judgments; that the effect intended to be given un-
der our Constitution to judgments is, that they are conclusive only as regards the
merits; the common law principle then applies to suits upon them, that they must
be brought within the period prescribed by the local law, the lex fori, or the suit
will be barred.”
776 CONFLICT OF LAWS. [cH. XIV.

to the remedy, and cases, where it goes directly to the extinguish-
ment of the debt, claim, or right. Where it professes to dispose
of the latter, it would seem difficult to say, that a mere removal
to another country can revive an extinguished debt, claim, or
right, or change the positive title of property acquired and per-
fected under the local law of. the place, where the parties and:
property are situated.1_ But where it professes to deny, or control,
or extinguish the remedy only, other considerations may properly
apply. It has, indeed, been decided upon a recent occasion, in
one of the American courts, that in cases falling within the latter
predicament, it will make no difference, whether both parties have
remained domiciled in the same country where the original cause
of action arose, during the whole period required by the local
statute of limitations to bar the remedy thereon, or whether they
have changed their domicil after it has begun to run.? But the
reasoning which thus repels any such distinction, is not so clear
or decisive as has been supposed. Every nation has a complete
and exclusive sovereignty to enact laws, which shall limit all
rights of action to certain prescribed periods within its own tribu-
nals; and to declare, that after that period all rights of action
shall be extinguished ; and if the parties remain domiciled within
the territorial jurisdiction during that whole period, the law ipso
facto operates on the case, and the rights of action are completely
extinguished there. But the same doctrine is not true, or rather
may not be true, where before the prescribed period has arrived,
one or both of the parties have changed their national domicil ;
for by such change they have ceased to be under the exclusive
dominion of the nation, whose statute of limitations has begun to
operate upon their rights of action, but has not as yet extinguished
them. The laws thereof can no longer operate on those rights, at
least not operate, except within the territorial limits of the nation.
Elsewhere they can be deemed as having only an inchoate and im-
perfect effect ; and the change of domicil suspends their power to
extinguish the rights of action in future, since they can have no
binding extra-territorial force. It is no answer to say, that when
once the statute of limitations begins to run, no subsequent im-.
pediment stops it from continuing to run. That. is true in the
nation, whose laws contain such provisions, or inculcate such a

* Don v. Lippmann, 5 Clark & Finnell. R. 1, 15, 16, 17,
* Bulger v. Roche, 11 Pick. R. 36.
§ 582 b.] JURISDICTION AND REMEDIES. TTT

doctrine. But no other nation is bound to give effect to such pro-
visions or to such a doctrine. They are strictly intra-territorial
regulations and interpretations of the lex fori, which other nations
are not bound to observe or keep. While the parties were domi-—
ciled there, the statute of limitations continued to run against
them; but it had not then extinguished any rights of action.
When they changed their domicil, the statute, as to them or their
rights of action, in respect to personal property, or personal claims,
was no longer operative or obligatory ; but the statutes only of
their new domicil. It would, or at least might, then, require a
very different consideration, where the local ikw had before the
ehange of domicil actually extinguished all rights of action; for
then to revive them is to create new rights, and not to enforce old
rights subsisting at the time of the removal.!

1 In Bulger v. Roche, 11 Pick. R, 36, the very case arose of a cause of ‘action
extinguished by the local law of the country, (Nova Scotia,) where both parties
resided during the whole period of the running of the statute of limitations; and
the Supreme Court of Massachusetts held, that the right of action after a change
of domicil of the defendant by a removal to Massachusetts was not thereby extin-
guished in the state tribunals; but might be pursued within the period prescribed
by the statute of limitations of Massachusetts. On that occasion Mr. Chief Jus-
tice Shaw in delivering the opinion of the court said: “ The facts, so far as they
are material, are these ; that the cause of action accrued in 1821, more than six
years before the commencement of this action, that the plain and defendant
were both domiciled at Halifax in Nova Scotia, and were subjects of the King of
Great Britain, and that by the law of that country, an action of assumpsit is
barred in six years. It is stated in the replication, and admitted by the rejoin-
der, that the plaintiff came into this commonwealth, for the first time, in 1829,
and that the action was commenced within six years from that time. That the
law of limitations of a foreign country cannot of itself be pleaded as a bar to an ac-
tion in this commignaealth: seems conceded; and is indeed too well settled by
authority to be drawn in question. Byrne v. Crowninshield, 17 Mass. R. 55. The
authorities both from the civil and the common law concur in fixing the rule, that
the nature, validity, and construction of contracts, is to be determined by the law
of the place where the contract is made ; and that all remedies for enforcing such
contracts are regulated by the law of the place, where such remedies are pursued.
Whether the law of prescription, or statute of limitation, which takes away every
legal mode of recovering a debt, shall be considered as affecting the contract, like
payment, release, or judgment, which in effect extinguish the contract, or-wheth-
er they are to be considered as affecting the remedy only by determining the
time, within which a particular mode of enforcing it shall be pursued, were it an
open question, might be one of some difficulty. It was ably discussed upon gen-
eral principles in a late case (Le Roy v. Crowninshield, 2 Mason’s R. 151) before
the Cireuit Court, in which, however, it was fully conceded by the learned judge,
upon a full consideration and review of all the authorities, that it is now consid-
778 CONFLICT OF LAWS. [cH. XIY.

[*§ 582c. The case last referred to does not seem to us to
raise the question of. the effect of a foreign law of prescription,
which formally extinguishes the right and which had its full oper-
ation while the parties continued to have a permanent domicil
there. It would seem that this should afford a good defence
everywhere. But where the prescription depends upon other

_ proof, as that the defendant, or debtor, shall make oath that the
debt is paid, it must be regarded as having reference to the rem-
edy, and cannot therefore be made available in another forum.
As where by an act of the Provincial Parliament of Lower Canada
it was declared that all suits upon promissory notes shall be brought
within five years, or the same shall be considered as paid and dis-
charged, if the debtor makes oath that the same is paid ; it was
regarded as a statute pertaining exclusively to the remedy.1]

§ 583. What has been thus far stated on this head may be con-

ered to be a settled question. A doubt was intimated in that case, whether, if
the parties had remained subjects of the foreign country until the term of limita-
tion had expired, so that the plaintiff’s remedy would have been’ extinguished
there, such a state of facts would not have presented a stronger case, and one of
more serious difficulty. Such was the case in the present instance. But we think
it sufficient to advert to a well-settled rule, in the construction of the statute of
limitations, to show that this circumstance can make no difference. The rule is
this; that where the statute has begun to run, it will continue to run notwith-
standing the intervention of any impediment, which, if it had existed, when the
cause of action accrued, would have prevented the operation of the statute. For
instance, if this action accrued in Nova Scotia in 1821, and the plaintiff or de-
fendant had left that country in 1825, within six years, in 1828, after the lapse of
six years, the action would be as effectually barred, and the remedy extinguished
there, as if both had continued to reside in Halifax down to the same period. So
that when the parties met here in 1829, so far as the laws of that country, by
taking away all legal remedy, could affect it, the debt was extinguished, and that
equally, whether they had both remained under the jurisdiction of those laws, till
the time of limitation had elapsed, or whether either or both had previously left
it. The authorities referred to, therefore, must be held applicable to a case where
both parties were subject to the jurisdiction of a foreign state, when the bar aris-
ing from its statute of limitations attached. The same conclusion results from the
reason, upon which these cases proceed, which is, that statutes of limitation affect ‘
only the time, within which a legal remedy must be pursued, and do not affect
the nature, validity, or construction of the contract. This reason, whether well
founded or not, applies equally to cases, where the term of limitation has elapsed,
when the parties leave the foreign state, as to those where it has only begun to
run before they have left the state, and elapses afterwards.” But see Don »v.
Lippmann, 5 Clark & Finnell. R. 1, 15, 16, 17.

» [*? Cartier v. Page, 8 Vt. R. 146.]
§ 582.c, 583.] JURISDICTION AND REMEDIES. 779

cluded by quoting a passage from John Voet, the correctness and
force of which, in point of principle, are submitted to the consid-
eration of the reader. Quod, si restitutio concedenda sit non ex
causd, que ipsum negotium ab initio comitabatur, (ult comitatur
metus, dolus, error) sed ex ed, que post supervenit, (qualis est
Usucapio verum, aut Prescriptio jurium et actionum, propter ab-
sentiam non interrupta) tta generaliter definiendum existimo, illius
loci leges in restitutione faciendé attendendas esse, secundum cujus
loci leges impleta summo jure fuit per absentiam Usucapio vel
Prescriptio. Quid enim, obsecro, aut justius aut equius, quam ut
ex eorundem legislatorum prescripto remedium adversus lesionem
indulgeatur, ex quorum prescripto et summo jure primitus lesio
nata fuit? Quibus consequens est, ut si immobilium rerum Usu-
capio impleta sit, serventur in restitutione faciendd jura regionis,
in qua tmmobiles res site sunt: adeoque, ut in amittendo, sic et in
recuperando dominio, regantur immobilia ex sitds sui lege, juxta
vulgatam regulam in materia statutarid. Sin mobilia usucapta
Juerint, in restitutione magis erit, ut serventur leges domicilii ejus,
qui per usucapionem dominium amiserat; ut ita mobilia, que cen-
sentur illic esse, ubi domicilium fovet dominus, ex lege domicilii
redeant, uti fuerant amissa. Sed si actiones in personam temporis
lapsu, per absentiam contigente, extincte sint; probabilius fuerit,
in illis restituendis ob justam absentia causam spectandum esse jus
loci, in quo debitor commoratur, contra quem restitulio: petitur :
cum etiam ex istius loci lege Prescriptio implenda fuerit.:

1 J. Voet, ad Pand. Lib. 4, tit. 1, § 29, p. 241; Henry on Foreign Law, p. 56,
59,
780 CONFLICT OF LAWS. [(cH. Xv.

CHAPTER XV.

FOREIGN JUDGMENTS.

[* § 584. Classification of foreign judgments.

§ 585, Vattel holds the conclusiveness of such judgments.

§ 586. Court must have jurisdiction of the cause, the thing, and the parties.

§ 587. The jurisdiction of the foreign court always examinable.

§ 588. This includes the power of the court and the presence of the thing.

§ 589, 590. The court must have jurisdiction of the subject matter.

§ 591. The local courts alone can adjudicate in regard to immovables.

§ 592. The same is true of all judgments in rem.

§ 5924, Proceedings by foreign attachment of analogous character.

§ 593. Not equally conclusive upon points incidentally decided.

§594. Decisions as to status of persons sometimes claimed to be conclusive.
-§ 595. Decrees as to marriagé and divorce stand on special grounds.

§ 596. Discussion of point by Lord Stowell.

§ 597. Decrees of divorce, where both parties domiciled, conclusive.

§ 598. Distinction between such judgments, in defence, and affirmatively.

§ 599. The foreign judgment will merge the cause of action.
.§ 599a, That is not always so regarded where the defendant has no notice.

§ 599. The question much discussed of late.

§599¢. Ex parte judgments absolutely void, as to defendant.

§ 600. Lord Kames holds judgment in favor of claim prima facie good.

§ 601. But one dismissing such claim, conclusive.

§ 602. This distinction not maintained in the common law.

§ 603. It is made a question in English cases how far the merits may be inquired

into.

§ 604. Jurisdiction conceded, it should be held conclusive.

§ 605. Irregularity, or fraud, may be shown in defence.

§ 606. The present inclination is to hold them conclusive.

§ 607. The embarassing consequences of attempting to revise such judgments.
§ 608. The American courts hold them impeachable to some extent.

§ 609. Effect of judgments of one state, as to other states.

§ 610. Of no validity without jurisdiction of the parties.

§ 6104. The effect of the pendency of a prior suit in ¢nother forum.

§ 611-614. Many foreign jurists hold such judgments conclusive.

§ 615. In France, formerly held, of no force, as to citizens and residents.

§ 616. Good as to foreigners, &c.

§ 617. They are now held prima facie good there, but re-examinable.

§ 618. In many other European countries held conclusive.

§ 618a, Foreign judgments differently regarded now than at the date of this work.
§ 618. Now held conclusive of state of foreign law. .
§ 618c. But not of the English law. In that respect examinable. *
§ 618d, 618 Conclusiveness and extent of impeachment defined.

§ 618. How far allowed to operate in rem as to title of personalty.

§ 6189. How plead in bar of cause of action.

§ 618k. Change in the law since date of this work.

§ 618 i. Essential difference between foreign and domestic judgments.
§.584, 585.] FOREIGN JUDGMENTS. 781

§ 584. Wer come in the next place to the consideration of for-
eign judgments, or of the force and effect of foreign sentences,
exceptio rei judicate. As to the effect to be given to foreign
judgments, there has been much diversity of practice, as well as
of opinion, among jurists and nations. We do not speak here of
cases, where the point was, whether the court pronouncing the
judgment, had jurisdiction, or not; but, assuming the jurisdiction
to be unquestionable, what force and effect ought to be given to
such judgment. Ought it to be held conclusive upon the parties ?
Or ought it to be open to impeachment by new evidence, or to be
reéxamined upon the original merits? The subject may be con-
sidered in two general aspects; first, in regard to judgments in
rem; and secondly, in regard to judgments in personam.: The
latter is again divisible into several heads; first, where’ the judg-
ment is set up by way of defence to a suit in a foreign tribunal;
and, secondly, where the judgment is sought to be enforced in a
foreign tribunal against the original defendant, or his property ;.
and, thirdly, where the judgment is between subjects, or between
foreigners, or between foreigners and subjects. These divisions
will, in some degree, require a separate examination.”

§ 585. Vattel has said with great foree, that it is the province
of every sovereignty to administer justice in all places within its
own territory and under its own jurisdiction, to take cognizance
of crimes committed, there, and of the controversies, that arise
within it. Other nations ought to respect this right; and, as the
administration of justice necessarily requires, that every defini-
tive sentence, regularly pronounced, be esteemed just and exe-
cuted as such ; when once a cause, in which foreigners are inter-

* Burgundus divides judgments (sententiz) into three classes: (1.) in rem;
(2.) in personam ; (3.) mixed in rem et in personam. “ Omnium condemnatio-
num summa divisio, pariter in tria genera deducitur. Aut enim in rem, aut in
personam, aut in utramque concipiuntur. In rem, quoties alicui res asseritur, hoc
est ejus esse dicitur, vel jure creditoris, aut alio modo possidenda datur. In per-
sonam, si condemnetur ad aliquid dandum aut patiendum, faciendum aut non fa-
ciendum, vel si persone statum afficiat. In utramque, si et res et personz simul
in condemnationem veniant.” Burgundus, Tract. 8, n. 1, 2, p. 84,85; 1 Boul-
lenois, Observ. 25, p. 602, See the learned opinion of Mr. Vice-Chancellor
Bruce, in Barrs v. Jackson, 1 Y. & Coll. 585, as to-what domestic judgments are
conclusive or not.

* See on this subject, 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch, 24, p.
1014 to p. 1080. See also 2 Smith, Lead. Cas. 436, note, 2d edit.

CONFL. 66
782 CONFLICT OF LAWS. [cH. xv.

ested, has been decided in form, the sovereign of the defendants
ought not to hear their complaints. To undertake to examine the
justice of a definitive sentence is an attack upon the jurisdiction
of the sovereign, who has passed it. Hence Vattel deduces the
general rule, that, in consequence of this right of jurisdiction, the
decision, made by the judge of the place within the extent of his
authority, ought to be respected, and to take effect even in for-
eign countries.”

§ 586. Reasonable as this doctrine seems to be, it is difficult to
affirm, that it has obtained the general assent of civilized nations
in modern times in their intercourse with each other. The sup-
port, which it has received from the common law, is far more ex-
tensive and uniform, than it has reeeived in the jurisprudence of
continental Europe. Inu order, however, to found a proper ground
of recognition of any foreign judgment in another country, it is
indispensable to establish, that the court pronouncing judgment
should have a lawful jurisdiction over the cause, over the thing,
and over the parties.? If the jurisdiction fails as to either, it is
treated as a mere nullity, having no obligation, and entitled to
no respect beyond the domestic tribunals. And this is equally
true, whether the proceedings be in rem or in personam, or in rem

. and also in personam.®

§ 587. This subject was a good deal considered in a celebrated
case, (a proceeding in rem,) before the Supreme Court of the
United States, where the principal point was, whether there had
been a change of the ownership of the property by the sentence
of a foreign court in a suit there pending im rem. Upon that oc-
casion Mr. Chief Justice Marshall, in delivering the 6pinion of
the Court, used the following language.’ “The power of the
[foreign] court, then, is, of necessity, examinable to a certain ex-

1 Vattel, B. 2, ch. 7, § 84.

2 Td. § 85.

® See 1 Boullenois, Observ. 25, p. 618, 619, 620. See Ferguson v. Mahon, 11
Adolph. & Ell. 179, 182, 183.

* Ante, § 539, 546,547; Buchanan v. Rucker, 9 East, R. 192; Bissell v. Briggs,
5 Mass. R. 462; Shumway v. Stillman, 6 Wend. R. 447; Don v. Lippmann, 5
‘ Clark & Finnell. 1, 20, 21; 4 Cowen, R. 524, n.; 1 Starkie on Evid. P. 2, § 68,
p. 214; Henry on Foreign Law, 18, n.; Id. 28; Id. 73; Cavan». Stuart, 1 Stark.
525; Middlesex Bank v, Butman, 29 Maine R. 19; Noyes v. Butler, 6 Barb. 613;
Hall v. Williams, 6 Pick. 232; Wood v. Tremere, 6 Pick. R. 854; 11 Adolph. &
Ellis, 179, 182, 183.

5 Tbid.
§ 585 — 590.] FOREIGN JUDGMENTS. 783

tent by that tribunal, which is compelled to decide, whether its
sentence has changed the right of property. The power, under
which it acts must be looked into, and its authority to decide
questions, which it professes to decide, must be considered.

§ 588. “But although the general power, by which a court
takes jurisdiction of causes, must be inspected, in order to deter-
mine, whether it may rightfully do, what it professes to do, it is
still a question of serious difficulty ; whether the situation of the
particular thing on which the sentence has passed, may be inquired
into for the purpose of deciding, whether that thing was in a state,
which subjected it to the jurisdiction of the court, passing the sen-
tence. For example; in every case of a foreign sentence con-
demning a vessel as prize of war, the authority of the tribunal to
act as a prize court must be examinable. Is the question, whether
the vessel condemned was in a situation to subject her to the juris-
diction of that court, also examinable? This question, in the
opinion of the court, must be answered in the affirmative.

§ 589. ‘Upon principle, it would seem, that the operation of
every judgment must depend on the power of. the court to render
that judgment; or, in other words, on its jurisdiction over the

_ subject-matter which it has determined. In some cases, that j juris-
diction unquestionably depends, as well on the state of the” thing,
as on the constitution of the court. If by any means whatever a
prize court should be induced to condemn, as prize of war, a ves-
sel, which was never captured, it could not be coutended, that this
condemnation operated a change of property. Upon principle,
then, it would seem, that, to a certain extent, the capacity of the
court to act upon the thing condemned, arising from its being
within, or without their jurisdiction, as well as the constitution of
the court, may be considered by that tribunal, which is to decide
on the effect of the sentence.

§ 590. “Passing from principle to authority, we find, that in
the courts of England, whose decisions are particularly mentioned,
because we are best acquainted with them, and because, as is be-
lieved, they give to foreign sentences as full effect as are given to
them in any part of the civilized world, the position, that the sen-
tence of a foreign court is conclusive with respect to what it pro-
fesses to decide, is uniformly qualified with the limitation, that it
has, in the given case, jurisdiction of the subject-matter.” :

1 Rose v. Himely, 4 Cranch, 269, 270.
784 CONFLICT OF LAWS. [cH. Xv.

§ 591. Let us now consider the operation of judgments in the
different classes of cases which have been already adverted to.
And first, in relation to judgments in rem. If the matter in con-
troversy is land, or other immovable property, the judgment pro-
nounced in the forum rei site is held to be of universal obligation,
as to all the matters of right and title, which it professes to decide
in relation thereto.1 This results from the very nature of the
case ; for no other court can have a competent jurisdiction to in-
quire into, or settle such right or title. By the general consent of
nations, therefore, in cases of immovables, the judgment of the
forum rei site is held absolutely conclusive.2 Immobilia ejus juris-
dictionis esse reputaniur, ubi sita sunt.2 On the other hand, a
judgment in any foreign country, touching such immovables, will
be held of no obligation. John Voet is explicit on this point.
“ Licet autem regulariter judex requisitus non cognoscat de jus-
titid sententie per alterum judicem late, nec eam ad examen pent-
tius revocet, sed pro justitid ejus ac equitate presumat. Tamen
si animadvertat, eam directo contra sui territorii statuta latam esse
circa res immobiles, in suo territorio sitas, eandem non exsequitur ;
uti nec, si alias absque prolixd cause cognitione constet, sententiam
nullam, esse.* :

§ 592. The same principle is applied to all other cases of pro-
ceedings in rem, against movable property, within the jurisdiction
of the court pronouncing the judgment.5 Whatever the court
settles as to the right or title, or whatever disposition it makes of
the property by sale, revendication, transfer, or other act, will be
held valid in every other country, where the same question comes
directly or indirectly in judgment before any other foreign tribu-
nal. This is very familiarly known in the cases of proceedings in
rem in foreign courts of admiralty, whether they are causes of
prize, or of bottomry, or of salvage, or of forfeiture, or of any, the
like nature, over which such courts have a rightful jurisdiction,
founded on the actual or constructive possession of tlfe subject-

1 Ante, § 532, 545, 551.

2 1 Boullenois, Observ. 25, p. 618, 619, 628.

* Id. p. 619; 1 Hertii, Opera, De Collis. § 4, n. 78, p. 158, 154, edit. 1737; Id.
p- 216, edit. 1716. See, also, J. Voet, ad Pand. Tom. 1, Lib. 1, tit. P* 2,0. 11,
p- 44, and ante, § 362, note 3.

* J. Voet, ad Pand. Tom. 2, Lib, 42, tit. 1, n. 41, p. 788.

° See Kames on Equity, B. 3, ch. 8, § 4; French v. Hall, 9 N. Hamp. R.
187.
§ 591-592 a.] FOREIGN JUDGMENTS. 785

e

matter (Res).1 The same rule is applied to other courts proceed-
ing.im rem, such as the Court of Exchequer in England, and to
other courts exercising a like jurisdiction im rem upon seizures.
And in cases of this sort it is wholly immaterial whether the judg-
ment be of acquittal or of condemnation. In both cases it is
equally conclusive.? But the doctrine, however, is always to be
understood with this limitation, that the judgment has been ob-
tained bond fide and without fraud ; for if fraud has intervened,
it will doubtless avoid the force and validity of the sentence. So
it must appear that there have been régular proceedings to found
the judgment or decree ; and that the parties in interest in rem
have had notice, or an opportunity to appear and defend their in-
terests, either personally or by their proper representatives, before
it was pronounced ; for the common justice of all nations requires
that no condemnation should be pronounced before the party has
an opportunity to be heard.® ‘

§ 592 a. Proceedings also by creditors against the personal prop-
erty of their debtor in the hands of third persons, or against debts
due to him by such third persons, (6ommonly called the process

1 Croudson v. Leonard, 4 Cranch, 484; Whitney v. Walsh, 1 Cush. 29; The
Mary Anne, Ware, R. 103 ; Barrow v. West, 23 Pick. 270; Monroe v. Douglass,
4 Sandf. Ch. R. 179; Williams v. Arimroyd, 7 Cranch, R. 423; Rose v. Himely,
4 Cranch, 241; Hudson v. Guestier, 4 Cranch, 293; The Mary, 9 Cranch, 126,
142 to 146; 1 Starkie on Evidence, Pt. 2, § 81, p. 238, &c.; Marshall on Insur.
B. 1, ch. 9, § 6, p. 412, 435; Cases cited in 4 Cowen, R. 520, n. 3; Grant v. Mc-
Lachlin, 4 Johns. R. 34; Peters v. The’ Warren Insur. Co. 3 Sumner, Rep. 389 ;
8. C. 1 Chand. Law Reporter, 222; Blad v. Bamfield, 3 Swanst. R. 604, 605 ;
Broadstreet v. Neptune Ins. Co. 2 Chand. Law Report. 262, 264, 265; S.C. 3
Sumner, Rep. 600; Magoun v. New England Ins. Co. 1 Story, R. 157; 8. C. 3
Chand. Law Rep. 127, 130, 131.

2 Ibid. And Starkie on Evid. p. 2, § 67, 80, 81, p. 336; Gelston v. Hoyt, 3
Wheaton, R. 246; Williams v. Armroyd, 7 Cranch, 423. ,

3 Thid.

* See post, § 597; Duchess of Kingston’s Case, 11 State Trials, p. 261, 262; S.
C. 20 Howell, State Trials, p. 355; Id. p. 538, the opinion of the Judges ; Brad-
street v. The Neptune Ins. Co. 2 Chand. Law Rep. 262, 264, 265 ; S. C. 3 Sum-
ner, R. 600; Magoun v. The N. England Insur. Co. 1 Story, R. 157; 8. C.3
Chand. Law Report, 127, 130, 131.

5 Sawyer v. Maine Fire and Marine Ins. Co. 12 Mass. R. 291; Bradstreet v.
.The Neptune Insur. Co. 3 Sumner, 600; 8. C. 2 Chand. Law Reporter, 263 ;
Monroe v. Douglass, 4 Sandf. Ch. R. 180, an important case on this subject ; Ma-

= goun v. N, England Insur. Co. 1 Story, R. 157; S. C. 3 Chand. Law Reporter,
127, 180,
66 *
786 CONFLICT OF LAWS. [cH. xv.

of foreign attachment, or garnishment, or trustee process,) are
also treated as in some sense proceedings in rem, and are deemed
entitled to the same consideration.! But in this last class of cases
we are especially to bear in mind, that to make any judgment
effectual the court must possess and exercise a rightful jurisdic-
tion over the res, and also over the person, at least so far as the
res is concerned ; otherwise it will be disregarded. And if the
jurisdiction over the res be well founded, but not over the person,
except as to the res, the judgment will not be either conclusive
or binding upon the party in personam, although it may be in
rem?

§ 593. In all these cases the same principle prevails, that the
judgment acting in rem, shall be held conclusive upon the title
and transfer and disposition of the property itself, in whatever
place the same property may afterwards be found, and by whom-
soever the latter may be questioned ; and whether it be directly or
incidentally brought in question. But it is not so universally set-
tled that the judgment is conclusive of all the points, which are

1 See cases cited, in 4 Cowen, R. 520, 521,n.; Ante, § 549; Holmes v. Rem-
sen, 20 Johns. R. 229; Hull v. Blake, 13 Mass. R. 153; McDaniel v. Hughes, 3
East, R. 367; Phillips v. Hunter, 2 H. Black, 402, 410,

* Ante, § 549, and note; Bissell v. Briggs, 9 Mass. R. 468. See Ocean Ins. Co.
v. Portsmouth Marine Railway Co. 3 Mete. 420; Danforth v. Penny, Id. 564.
See, also, 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 24, p. 1014 to 1019.
— Some very important questions may arise in cases of foreign attachment or gar-
nishment. Suppose A., a creditor of B., should bring a suit by foreign attachment
or garnishment in a foreign country against C. as garnishee of the property or
credits of B., will a judgment rendered in that suit conclude D., who claims the
same property or credit by a prior title, in another suit therefor in the same coun-
try, or in another country? Will it make any difference, that A., before obtain-
ing his judgment, had notice of D.’s claim and right? Will it make any differ-
ence, that D. might by the lex fori have intervened in the first suit to vindicate
his title, and to support it, if he was not domiciled in the country at the time, al-
though he had notice of the same suit? Another case may be put involving simi-
lar considerations. Suppose a suit is brought in a foreign country by A; against
B. to recover property there situate, to which C., who is domiciled in a foreign
country, also claims title; and by the law of the country where the suit is brought,
C. might intervene for his title; but he does not, although he has notice of the
suit. If A. obtains judgment in the suit for the property against B., will that judg-
ment bind C. in the courts of that country, in a subsequent suit brought there by
C. against A. for the same property? If it will bind him there, will it bind him
in a suit brought in the country of his own domicil, or in another foreign coun-
try ? These questions are propounded for the consideration of the learned read-
er, without any attempt to discuss or solve them.
§ 592 a—594.] FOREIGN JUDGMENTS. 187

incidentally disposed of by the judgment, or of the facts or allega-
tions, upon which it professes to be founded. In this respect dif-
ferent rules are adopted by different states, both in Europe and in
America. In England such judgments are held conclusive, not‘
only im rem, but also as to all the points and facts, which they pro-
fessedly or incidentally decide.1 In some of the American states
the same doctrine prevails. While in other American states the
judgments are held conclusive only im rem, and may be contro-
verted as to all the incidental grounds and facts on which they
profess to be founded.?

§ 594. A similar doctrine has been contended for, aia in many
eases successfully, in favor of sentences of a peculiar character ;
such as those which touch the general capacity of persons, and
those which concern marriage and divorce. Thus, foreign jurists
strongly contend, that the decree of a foreign court, declaring the
state (status) of a person, and, placing him, as an idiot, or minor,
or prodigal, under guardianship, ought to be deemed of universal
authority and obligation.2 And so it ought, and doubtless would
be deemed, in regard to all acts done, and authority exercised,
within the jurisdiction, of the sovereign, whose tribunals have pro-
nounced the sentence. But the necessity of giving it universal
effect, so as to make the guardianship operative and effectual in
all other countries, in regard to the person, and his property in

’ In Blad v. Bamfield, decided by Lord Nottingham, and reported in 3 Swanst.
R. 604, a perpetual injunction was awarded to restrain certain suits of trespass
and trover for seizing the goods of the defendant:(Bamfield) for trading in Ire-
land, contrary to certain privileges granted to the plaintiff and others. The prop-
erty was seized and condemned in the Danish courts; Lord Nottingham held the
sentence conclusive against the suits, and awarded the injunctions accordingly.

* See 4 Cowen, R. 522, n. and cases cited; Vandenheuvel v. U. Insurance Co.
2 Caines’s Cases in Err. 217; 2 Johns. Cas. 451; Robinson v. Jones, 8 Mass. R.
536; Maley v. Shattuck, 3 Cranch, 488; 2 Kent, Comm. Lect. 37, p. 120, 121,
3d edit. and cases there cited; Tarleton v. Tarleton, 4 M. & Selw. 20. See Pe-
ters v. Warren Ins. Co. 3 Sumner, R. p. 389; S. C.1 Chand. Law Reporter, 281;
Gelston v. Hoyt, 3 Wheat. R. 246.

® 1 Boullenois, Observ. 25, p. 603, Burgundus’s opinion. — Indeed, Burgundus
seems to have been ‘of opinion, that the only judgments which ought to have any
' force or operation extra-territorially, are those which respect the state and condi-
tio of persons. Sed quoniam omnis propositi nostri summa eo spectat, ut sciatur,
utrum suum sententia egrediatur territorium, executiamus itaque naturam singu-
larum. Nam mihi sola (says he) illa sententia, que de statu persone fertur, ex-
plicare vires extra territorii limites videtur. Burgundus, Tract. 3, n. 11, 12, p.
90; 1 Boullenois, Observ. 25, p. 603. .
788 : CONELICT OF LAWS. [cH. Xv.

those countries, is not so obvious. But we have already had occa-
sion to consider this subject in another place.?

§ 595. As to sentences confirming marriages, or granting di-
vorces, they may well stand upon a distinct ground. If they are
pronounced by competent tribunals in regard to persons within the
jurisdiction, there is great reason to say, that they ought to be held
of universal conclusiveness, force, and effect, in all other countries,
Lord Hardwicke is reported to have said in a case before him, in
which the validity of a marriage in France was asserted to have
been established by the sentence of a court in France, having the
proper jurisdiction thereof: “It is true, that if so, it is conclusive,
whether in a foreign court, or not, from the law of nations in such
cases ; otherwise the rights of mankind would be very precari-
ous.” 2

§ 596. On the other hand Lord Stowell, in a case before him,
in which the validity of a foreign sentence of divorce was set up,
as a bar to proceedings in the English Ecclesiastical Courts be-
tween the same parties, said: “Something has been said on the
doctrine of law regarding the respect due to foreign judgments;
and undoubtedly a sentence of separation, in a proper court, for
adultery, would be entitled to credit and attention in' this court.
But I think the conclusion is carried too far, when it is said, that
a sentence of nullity of marriage is necessarily and universally
binding on other countries. Adultery and its proofs are nearly
the same in all countries. The validity of marriage, however,
must depend, in a great degree, on the local regulations of the
country where it is celebrated. A sentence of nullity of marriage,
therefore, in the country where it was solemnized, would carry
with it great authority in this country. But I am not prepared to
say that a judgment of a third country on the validity of a mar-
riage, not’ within its territories, nor had between subjects of that
country, would be universally binding. For instance, the mar-
riage, alleged by the husband is a French marriage; a French
judgment on that marriage would have been of considerable
weight; but it does not follow, that the judgment of a court at
Brussels, on a marriage in France, would have the same auuhority,

s ‘

Ante, § 495 to 504,

* Roach v. Garvan, 1 Ves. 157. See, also, a case in the time of Charles 2d,
cited by Lord Hardwicke in Boucher v. Lawson, Cas. T. Hard. 89; and also in
Kennedy v. Earl of Cassilis,'2 Swanst. R. 326, note.

‘

Pee
§594-598.] FOREIGN JUDGMENTS. 789

much less on a marriage celebrated here in England. Had there
been a sentence against the wife for adultery in Brabant, é might
have prevented her from proceeding with any effect against her
husband here ; but no such sentence anywhere appears.” t

§ 597. This subject, however, has already been considered at
large in the preceding discussions, relative to divorces. The re-
sult of the doctrine therein stated is, that the English courts seem
not to be disposed to admit, that any valid sentence of divorce can
be pronounced in any foreign country, which shall amount to the
dissolution of a marriage, celebrated in Engand between English
subjects, at least so far as such a divorce is to have any force or
operation in England. At the same time it may be remarked,
that the doctrine, so apparently held, has undergone very elabo-
rate discussions at a very recent period; and the grounds, upon
which it rests, have been greatly shaken.? But in Scotland, and
in America, a different doctrine is maintained ; and it is firmly
held, that a sentence of divorce, pronounced between parties actu-
ally domiciled in the-country, whether natives.or foreigners, by a
competent tribunal, having jurisdiction over the case, is valid, and
ought to be held everywhere a complete dissolution of the mar-
riage, in whatever country it may have been originally celebrated?
Of course we are to understand, that the sentence is obtained bond
Jide and without fraud ; for fraud in this case, as in other cases,
will vitiate any judgment, however well founded in point of juris-
diction.*

§ 598. In the next place, as to judgments im personam. And
here a distinction is commonly taken between suits brought by a
party to enforce a foreign judgment, and suits brought against a
party who sets up a foreign judgment in bar of the suit by way of
defence. In the former case it is often urged, that no sovereign

.) Sinclair v. Sinclair, 1 Hagg. Consist. Rep. 297. See, also, Scrimshire 0.
Scrimshire, 2 Hagg. Consist. Rep. 397, 410; Connelly v. Connelly, 2 Eng. Law
& Eq. R. 570.

2 Ante, § 215, 225 to 228,

5 See ante, § 212, 215 to 230.

* See Starkie on Evid. Pt. 2, § 77, 79, 83; Duchess of Kingston's Case, 11
State Trials, 261, 262 ; S. C. 20 Howell, State als, 355, and the opinion of the
Judges; Id. p. 538, note. See, also, Mr. Hargrave’s learned argument in this
case, as to the conclusiveness of res adjudicata, especially i in cases of jactitation
of marriage and divorce, and of the effect of fraud in, procuring such sentences.
Harg. Law Tracts, 449, 479, 483. See, also, Bowles v. Orr, 1 Younge & Coll.
464,
790 CONFLICT OF LAWS. [CH. Xv.

is bound. jure gentium to execute any foreign judgment within his
dominions ; and therefore, if execution of it is sought in his do-
minions, he is at liberty to examine into the merits of the judg-
ment, and to refuse to give effect to it, if upon such examination,
it should appear unjust and unfounded. He acts in executing it
upon the principles of comity ; and has, therefore, a right to pre-
scribe the terms and limits of that comity.1 But it is otherwise,
(it is said,) where the defendant sets up a foreign judgment, as a
bar to proceedings ; for if it has been pronounced bya competent
tribunal, and carried inte effect, the losing party has no right to
institute a new suit elsewhere, and thus to bring the matter again
into controversy ; and the other party is not to lose the protection
which the foreign judgment gave him. It is then res judicata,
which ought to be received, as conclusive evidence of right; and
the exceptio rei judicate under such circumstances is entitled to
universal conclusiveness and respect.2 This distinction has been
very frequently recognized as having a just foundation in interna-
tional justice’

§ 599. Lord Chief Justice Eyre has stated it with his usual
force in an elaborate judgment. “If we had the means, (said
he,) we could not examine a judgment of a court in a foreign
state brought before us in this manner, (that is, by the defendant,
as a-bar). It is in one way only, that the sentence or judgment
of the court of a foreign state is examinable in our courts; and
that is, when the party, who claims the benefit of it, applies to our
courts to enforce it. When it is thus voluntarily submitted to our
jurisdiction, we treat it, not as obligatory perhaps in the coun-
try in which it was pronounced, nor as obligatory to the ex-
tent to which by our law sentences and judgments are obliga-
tory ; not as conclusive, but as matter in pais; as a cousider-
ation primd facie sufficient to raise a promise. We examine it,
as we do all other considerations or promises ; and for that pur-
pose we receive evidence of what the law of the foreign state is,

2 Kent, Comm. Lect. 37, p. 119, 120, 3d edit. ; and the cases there cited. See
also, 1 Boullenois, Observ. 25, p. 601; post, § 611 to 618.

2 2 Kent, Comm. Lect. 37, p- 119, 120, 3d edit.; and cases there cited.

® Td. and cases there cited ; Burrows v. Jemino, 2 Str. R. 733; S. C. cited Cas. T.
Hard. 87 ; Boucher v. Taraan, Cas. T. Hard. 80; 2 Swanst. R 326, note; Tarle-
ton v. Tarleton; 4M. & Selw. 20; Taylor v. Phelps, 1 Harr. & Gill, R. 492; Gris-

wold v. Pitcairn, 2 Conn. R. 85. See Burnham »v. Webster, 1 Wood. & Minot,
R. 174; Rangely v. Webster, 11 New Hamp. R. 299.
§ 598-599 a.] FOREIGN JUDGMENTS. 791

and whether the judgment is warranted by that law. In all other
cases, we give entire faith and credit to the sentences of foreign
courts, and consider them as conclusive upon us.”! The same
distinction is found applied in the same manner in the jurispru-
dence of Scotland?

§ 599 a. The view which was thus taken by Lord Chief Justice
Kyre, does not appear to have been acted upon to its full extent in
subsequent times. It would seem a natural result from that view,
that if a suit was brought for the same cause of action, in an Eng-
lish court, which had already been decided in favor of either party
in a foreign court of competent jurisdiction, and was final and
conclusive there, that judgment might be well pleaded in bar-of
the new suit upon the original cause of action, and would, if bond
Jide, be conclusive. It may be doubted, however, whether the
same doctrine is at present entertained in England. In a recent
case, the court seem to have thought, that if a plaintiff has recov-
ered-judgment in a foreign country upon any original cause of ac-
tion, he may, notwithstanding, sue in England upon ‘that original
cause of action, or may sue upon the judgment there obtained, at
his option ; because the original cause of action is not merged in
such a judgment.? [And the same view has recently been adopt-
ed in America, where it was also determined that an action could
not be sustained in the State of Maine, upon a judgment recovered
in the State of Illinois; but that a suit for the original cause of
action was still open to the plaintiff.4] Now, if the original cause
of action is not merged in a case where the judgment is in favor
of the plaintiff, it seems difficult to assert, that it is merged by a
judgment in the foreign court in favor of the defendant.®
“a Phillips v. Hunter, 2 H. Black. R. 410.

? Erskine, Inst. B. 4, tit. 3,.§ 4.

® Smith v. Nichols, 5 Bing. N. Cas. 208, 221 to 224. There were peculiar cir-
cumstances in the case, and therefore the point was not positively decided. The
same doctrine seems to have been asserted in Hall v. Odber, 11 East, R, 118; but
there also it was not directly decided. But see Plummer v. Woodburne, 4 Barn.
& Cressw. R. 625; ante, §-547, note; Becquet v. McCarthy, 2 Barn. & Adolph.
951; ante, § 548 a.

* McVicker v. Beedy, 31 Maine, R. 314. In this case the defendant’s proper-
ty was attached in Illinois, on the original suit, but the defendant himself was
never served with process, and never appeared to the action. See, also, Middle-
sex Bank ». Butman, 29 Maine, R. 19.

5 A foreign judgment for costs may be enforced in England. Russell v. Smyth,
9 Mees. & Wels. 810.
792 CONFLICT OF LAWS. [cH. xv.

[§ 599 b. The effect of a foreign judgment in favor of the same
plaintiff, when relied upon as a bar, by way of merger, in a suit
upon the same cause of action, in another state, has been much
discussed of late ; and the prevailing opinion seems to be, that if
the foreign court had no jurisdiction of the person of the defend-
ant, a judgment there in favor of the plaintiff, would not merge
the original cause of action, so as to defeat an action in another
state upon the same cause. So, the foreign judgment is open to
examination, to show that a portion of the claims originally sued
upon in the foreign court, were afterwards withdrawn, and were
not passed upon by the jury, and therefore were not included in
the foreign judgment.?]

[*599 c. The early decisions in the Supreme Court of the
United States and in some of the state courts, which followed
that lead, attempted to carve out some middle ground upon which
ex parte judgments obtained by attachment of the debtor’s prop-
erty, and publication of notice, after the manner of what is called
‘horning”’ in the Scottish courts, could stand, and not be regard-
ed as wholly void as to the person of the defendant.? And in the
last case referred to, it was attempted to maintain, that such a
judgment could not be held absolutely void, when urged by the
defendant, since the plaintiff was to be held estopped by an adju-
dication which he had obtained in his own favor, although without
the appearance of the defendant, so long as he was willing to be
bound by it* There may be justice in giving such ex parte judg-
ments effect to that extent. But beyond this, such adjudications
are now almost universally regarded as absolutely void, both in
the national and state courts.

§ 599 d. The question of the effect of the judgments of one of
the American states, in producing a merger of the cause of action,
so as to defeat a recovery, in any other of those states, upon the
same cause of action, although the suits were commenced in the
different states simultaneously, is very carefully examined, by Mr.

* Middlesex Bank v. Butman, 29 Maine, R. 19.

* Burnham v. Webster, 1 Woodbury & Minot, R. 172.

[** Mills ». Duryee, 7 Cranch, 481 ; Hampton v. M’Connel, 8 Wheaton, 234;
Lapham v. Briggs, 27 Vt. R. 26.

* Post, § 601; Bank of North America v. Wheeler, 28 Conn. R. 433.

6 D'Arcy v. Ketchum, 11 How. U. 8S. R. 165; Webster v. Reid, 11 id. 487;

Hall v. Williams, 6 Pick. R. 232; Kilburn v. Woodworth, 5 Johns. R. 37; Bissell
v. Briggs, 9 Mass, R. 462.
§ 5996-599 fF] FOREIGN JUDGMENTS. 793

Justice Bennett, in a late case! in Vermont, and the proposition
maintained with great clearness, that under the provision of the
United States Constitution, and the act of Congress, the effect of
such judgment, in producing a merger of the cause of action, will
depend upon the effect, force and validity of such judgment in
the state where rendered ; that as it is the acknowledged effect of
such judgments in all the American states to produce a merger
of the cause of action, and thus to operate as a bar of any after
suit upon it, such effect will be given to it there.

§ 599 e. Many of the states now hold that the record of a judg-
ment in another state is only prima facie evidence of the facts
recited therein, so far as the jurisdiction of the court is concerned.?
This rule is not countenanced by some of the earlier decisions of
the United States Supreme Court,? or even by those as late as
1850,‘ where it is distinctly held, that generally if a judgment is
“‘voidable for want of notice and a false statement on its face, as
that the defendant appeared by attorney, then it should have been
set aside by an audita querela, or on petition and motion ; such
being the familiar practice in similar cases,” and that such a judg-
ment cannot be attached collaterally, by showing want of notice
to the defendant, when the record recites that he appeared by at-
torney and submitted himself to the jurisdiction of the court.

§ 599 f. The later case of D’Arcy v. Ketchum,> where it is
held, that the provision of the United States Constitution and the
act of Congress do not apply to judgments, which are in fact ren-
dered without the court having jurisdiction of the gase and of the
person of the defendant, but that such judgments are still to be
regarded as foreign judgments, when attempted to be enforced be-
yond the limits of the state where rendered, might seem to imply
that the record when presented was liable to contradiction upon
any question affecting the jurisdiction of the court. But as no
such doctrine has yet been declared by that court, we should hesi-
tate to believe they will ever come to a result which we regard so
much at variance with well-established general principles. For in
order to admit evidence to contradict the recitals of the record, we

1 McGilvary v. Avery, 30 Vt. R. 538; Reed v. Gisty, 6 Bond. 567.

2 Carleton v. Beckford, 13 Gray, 591; Bodurtha v. Goodrich, 3 id. 508.
® Ante, § 599 c.

* Landes v. Brant, 10 How. 348.

5 11 How. 165.]

CONFL. 67
794 CONFLICT OF LAWS. [cH. Xv.

are obliged to adopt a rule of presumption precisely opposite to that
which we apply to ordinary judgments ; we have to maké every pos-
sible presumption against their conclusiveness, and virtually treat
them all as foreign judgments, until the contrary is established to
the satisfaction of a jury. If this rule is to be generally recog-
nized, there will be no judgment from any of the American states,
when attempted to be enforced in any other of those states, where it
will not be practicable, by proper pleas, to draw the validity of the
whole judgment in controversy before the jury, and thus virtually
nullify the provisions of the United States Constitution and the
act of Congress in their favor. Such a result we believe all would
deprecate. We perceive no necessity for the adoption of any such
rule of construction in regard to this class of judgments. All
that is required to protect the rights of debtors, or defendants, in
such cases, is to hold such judgments of no validity, unless acqui-
esced in by the defendant, until it appears by the record of such
_ judgment, that the court had jurisdiction both of the subject-mat-
ter and of the parties ; and then treat the record as conclusive the
same as that of any domestic judgment. ]

§ 600. Lord Kames has marked out and supported another dis-
tinction, between suits sustaining, and suits dismissing a claim.
“Tn the last place (says he) come foreign decrees; which are of
two kinds, one sustaining the claim, and one dismissing it. A for-
eign decree, sustaining the claim, is not one of those universal
titles, which ought to be made effectual everywhere. It is a title
that depends on the authority of the court whence it issued, and
therefore has no coercive authority extra territorium. And yet, as
it would be hard to oblige the person, who claims on a decree, to
bring a new action against his party in every country to which he
may retire ; therefore, common utility, as well as regard to a sister
court, has established a rule among all civilized nations, that a for-
eign decree shall be put in execution, unless some good exception
be opposed to it in law or equity ; which is making no wider step
in favor of the decree, than to presume it just, till the contrary be
proved. But this includes not a decree, decerning for a penalty ;
because no court reckons itself bound to punish, or to concur in
punishing, any delict committed extra territorium.”

§ 601. “*A foreign decree, which, by dismissing the claim, af-
fords an exceptio rei judicate against it, enjoys a more extensive
privilege. We not only presume it to be just, but will not admit
§ 599 f—-602.] FOREIGN JUDGMENTS. 795

any evidence of its being unjust. The reasons follow. A decreet-
arbitral is final by mutual consent. A judgment-condemnator
ought not to be final against the defendant, because he gave no
consent. But a decreet-absolvitor ought to be final against the
plaintiff, because the judge was chosen by himself; with respect
to him, at least, it is equivalent to a decreet-arbitral. Public util-
- ity affords another argument extremely cogent. There is nothing
more hurtful to society, than that lawsuits be perpetual. In every
lawsuit there ought to be a ne plus ultra; some step ought to be
ultimate ; and a decree dismissing a claim is in its nature ulti-
mate. Add a consideration, that regards the nature and constitu-
tion of a court of justice. A decree dismissing a claim may, it is
' true, be unjust, as well as a decree sustaining it. But they differ
widely in one capital point; in declining to give redress against a
decree dismissing a claim, the court is not guilty of authorizing in-
justice, even supposing the decree to be unjust; the utmost that
can be said, is, that the court forbears to interpose in behalf of
justice. But such forbearance, instead of being faulty, is highly
meritorious in every case, where private justice clashes with pub- ,
lic utility. The case is very different with respect to a decree of
the other kind; for to award execution upon a foreign decree,
without admitting any objection against it, would be, for aught the
court can know, to support and promote injustice. A court, as
well as an individual, may in certain circumstances have reason to
forbear acting, or executing their office ; but the doing injustice,
or the supporting it, cannot be justified in any circumstances.” 4

§ 602. It does not appear, that this distinction of Lord Kames,
between judgments sustaining suits, and judgments dismissing
them, has been recognized in the common law. And there seems
quite a8 much reason, that a defendant should be protected against
a new litigation, after there has been a final sentence in his favor,
as there is, that a plaintiff should be protected in the enjoyment
of any right which is established by a sentence in his favor. The
sentence for the defendant may, in its legal operation, as com-
pletely establish a right in him, or as completely establish the non-
existence of any right in the plaintiff, as the contrary sentence
would establish an adverse right in the plaintiff, and the non-ex-
istence of any repugnant right in the defendant.

1 2 Kames on Equity, P- 365, 3d edit. 1778.

* See the cases cited in Starkie on Evid. Pt. 2, § 80; Hoyt v. Gelston, 13
Johns, R. 561; 3 Wheat. R. 246; The Bennett, 1 Dodson, R. 175, 180.
*

796 " GONFLICT OF LAWS. [cH. xv.

§ 603. In the next place, as to judgments in personam, which:
are sought to be enforced by a suit in a foreign tribunal. There.
has certainly been no inconsiderable fluctuation of opinion in the
English courts upon this subject. It is admitted on all sides, that
in such cases, the foreign judgments are primd facie evidence to
sustain the action, and are to be deemed right until the contrary
is established ;1 and of course they may be avoided, if they are’
founded in fraud, or are pronounced by a court not having any
competent jurisdiction over the cause.2— But the question is,
whether they are to be deemed conclusive; or whether the de--
fendant is at liberty to go at large into the original merits, to
show, that the judgment ought to have been different upon the
merits, although obtained bond fide. If the latter course be the
correct one, then a still more embarrassing consideration is, to
what extent, and in what manner, the original merits can be prop-
erly inquired into.

§ 604. Lord Nottingham, in a case, where an attempt was made
to examine a foreign sentence of divorce in Savoy, in the reign of
Charles the Second, held, that it was conclusive, and its merits not
examinable. ‘ We know not (said he) the laws of Savoy. So, if
we did, we have no power to judge by them. And, therefore, it
is against the law of nations not to give credit to the sentences of
foreign countries, till they are reversed by the law, and, according
to the form, of those countries, wherein they were given. For
what right hath one kingdom to reverse the judgment of another ?
And how can we refuse to let a sentence take place, until it be
reversed? And what confusion would follow in Christendom, if
they should serve us so abroad, and give no credit to our sen-
tences.”® Lord Hardwicke manifestly held the same opinion,
saying: “That where any court, foreign or domestic, that has the

+ See Monroe v. Douglas, 4 Sandf. Ch. R. 126, — a very elaborate case on this
subject ; Walker v. Witter, Doug. R. 1, and cases there cited; Arnott v. Redfern,
3 Bing. R. 353 ; Sinclair v. Fraser, cited Doug. R. 4, 5, note ; Houlditch v. Done-
gal, 2 Clark & Finnell. R. 470; 8 Bligh, R. 301; Don v. Lippmann, 5 Clark &
Finn. 1,19, 20; Price v. Dewhurst, 8 Sim. R. 279 ; Alivon v. Furnival, 1 Cromp.

si & Rose. 277; Hall v. Odber, 11 East, R. 118; Ripple v. Ripple, 1 Rawle,
. 386,

* See Bowles v. Orr, 1 Younge & Coll. 464; ante, § 544, 545 to 550; Ferguson
v. Mahon, 8 Perry & Dav. 143; Price v. Dewhurst, 8 Simons, R. 279, 302; Don
v. Lippmann, 5 Clark & Finnell. R. 1, 19, 20, 21; Ferguson v. Mahon, 11 Adolph.
& Ellis, 179, 182.

* Kennedy v. Earl of Cassilis, 2 Swanston, R. note, 326, 327.
§ 603 - 606.] FOREIGN JUDGMENTS. 197

proper jurisdiction of the cases, makes the determination, it is
conclusive to all other courts.” }

§ 605. On the other hand, Lord Mansfield thought that foreign
judgments gave a ground of action, but that they were examina-
ble? The same doctrine was held by Lord Chief Baron Eyre,?
and Mr. Justice Buller, the latter relying upon a decision of the
House of Lords, as giving the true line of distinction between for-
eign and domestic judgments. In that case the House of Lords
reversed a décision of the Court of Session of Scotland, in which
the latter court held the plaintiff bound in a suit upon a foreign
judgment to prove before the court the general nature and extent
of the demand, on which the judgment had been obtained. The
reversal expressly declared, that the judgment ought to be re-
ceived as evidence prima facie, of the debt; and that it lay upon
the defendant to impeach the justice thereof, or to show the same
to have been irregularly, or wrongfully obtained. But it may be
remarked of this last decision, that it does not go to the extent of
establishing the doctrine, that the merits of the judgments ad
origine are, re-examinable de novo; but only that its justice may
be impeached, or its irregularity or fraud shown.®

§ 606. Lord Kenyon seems clearly to have been of a different
opinion, and expressed serious doubts, whether foreign judgments
were not binding upon the parties here.’ And Lord Ellenborough,

* Boucher v. Lawson, Cas. T. Hard. 89. See, also, Roach v. Garvan, 1 Ves.
157.

* Walker v. Witter, Doug. 1; Id. 6, note 3; Herbert v. Cooke, Willes, R. 36,
note; Hall v. Odber, 11 East, R. 118; Bayley v. Edwards, 3 Swanst. R. 703,
711,, 712.

* Phillips v. Hunter, 2 H. Black. 410; ante, § 2.

* Galbraith v. Neville, cited Doug. R. 6, note 3.

5 Sinclair v. Fraser, Doug. R. 4, 5, note 1.

® Ante, § 544 to 550, 603. —In Alivon v. Furnival, 1 Cromp. Mees. & Rose.
277, it seems to have been held, although not expressly so laid down by the |
court, that the proceedings of foreign courts must be presumed -to be consistent
with the foreign law, until the contrary is distinctly shown ; and that therefore,
the principle adopted by a foreign court in assessing damages cannot be impugned,
unless contrary to natural justice, or proved not to be conformable to the foreign
law. The same point was adjudged in Martin v. Nicolls, 3 Sim. R. 458, and Bec-
quet v. McCarthy, 2: Barn. & Adolph. 951; Ferguson v. Mahon, 11 Adolph. &
Ellis, 179, 182.

1 Galbraith v. Neville, Doug. R. 5, note 3. See, also, Guinness v. Carwell, 1
Barn. & Adolph. 459.

67*
798 CONFLICT OF LAWS. [cH. xv.

upon an occasion in which the argument was pressed before him,
that a foreign judgment was re-examinable, and that the defend-
ant might impeach the justice of it, pithily remarked, that he
thought he did not sit at Mist Prius to try a writ of error, upon
the proceedings of the court abroad. In a more recent case Sir
L. Shadwell, (the vice-chancellor,) upon a full examination of
the authorities, held the opinion, that the true doctrine was, that
foreign judgments were conclusive evidence, and not re-examina-
ble; that this was the true result of the old authorities; and
therefore in a suit brought in England to enforce a foreign judg--
ment, he held the judgment to be conclusive.2. The present ineli-
nation of the English courts seems to be to sustain the conclusive-
ness of foreign judgments ;° although certainly there yet remains
no inconsiderable diversity of opinion among the learned judges of
the different tribunals. [This question was much discussed in a
recent English case,° in the Queen’s Bench, where all the authori-
ties were examined, and it was determined that a foreign judg-
ment was only primd facie evidence in the courts of England, so
far as to show that the foreign court had jurisdiction -of the sub-
ject-matter, or of the person of the defendant, or that the judg-
ment was regularly obtained ; but ‘that it was conclusive upon the
defendant so far as to prevent him from alleging that the promises

1 Tarleton v. Tarleton, 4 Maule & Selw. 21. But see’ Hall v. Odber, 11 East,
R. 118.

* Martin v. Nicolls, 3 Simons, R. 458. But see Bank of Australasia v. Harding,
19 Law Jour. C. P. 345.

* See Guinness v. Carroll, 1 Barn. & Adolph. 459; Becquet v. McCarthy, 2
Barn. & Adolph. R. 951.

* In Houlditch v. Donegal, 8 Bligh, R. 301, 337 to 340, Lord Brougham held a
foreign judgment to be only prima facie evidence, and gave his reasons at large
for that opinion. [And the same was held in the late case of Bank of Australasia
v. Harding, 19 Law Jour. C. P. 345.] On the other hand, Sir L. Shadwell, in
Martin v. Nicolls, held the contrary opinion, that it was conclusive; and also
gave a very elaborate judgment on the point, in which he reviewed the principal
authorities. Of course the learned judge meant to except, and did except, in a
later case, Price v. Dewhurst, 8 Sim. R. 279, 802, judgments which were produced
by fraud. See, also, Don v. Lippmann, 5 Clark & Finnell. 1, 20, 21; ante, § 545
to § 550, to § 605; Alivon v. Furnival, 1 Cromp. Mees. & Rosc. 277, 284. See,
also, Ferguson v. Mahon, 11 Adolph. & Ellis, 179, 182; Henderson v. Henderson,
3 Hare, R. 100, 113, 114, 115.

* Bank of Australasia v. Nias, 16 Queen’s Bench, 717; 4 Eng. Law & Eq.
Rep. 252. See, also, Henderson v. Henderson, 6 Queen’s Bench, 288 ; Lewis v.
Wilder, 4 Louis. Ann. R. 574,
§ 606, 607.] FOREIGN JUDGMENTS. _ 799

upon which it was founded were never made, or were obtained by
fraud of the plaintiff; and that any pleas which might have been
pleaded to the original action, could not be pleaded to the action
upon the judgment.']

§ 607. It is indeed very difficult to neneatzey what could be
done, if a different doctrine were maintainable to the full extent
of opening all the evidence and merits of the cause anew, on a
suit upon the foreign judgment. Some of the witnesses may be
since dead ; some of the vouchers may be lost, or destroyed. The
merits of the cause, as formerly before the court upon the whole
evidence, may have been decidedly in favor of the judgment ;
upon a partial possession of the original evidence they may now
appear otherwise. Suppose a case purely sounding in damages,
such as an action for an assault, for slander, for conversion of
property, for a malicious prosecution, or for a criminal conversa-
tion; is the defendant to be at liberty to retry the whole merits,
and to make out, if he can, a new case upon new evidence? Or
is the court to review the former decision, like a court of appeal,
upon the old evidence? In a case of covenant, or of debt, or of
a breach of contract, are all the circumstances to be re-examined
anew? If they are, by what laws and rules of evidence and prin-
ciples of justice is the validity of the original judgment to be
tried? Is the court to open the judgment, and to proceed ez
equo et bono? Or is it to administer strict law, and stand to the
doctrines of the local administration of justice? Is it to act upon
the rules of evidence acknowledged in its own jurisprudence, or
upon those of the foreign jurisprudence? These and many more
questions might be put to show the intrinsic difficulties of the sub-
ject. Indeed, the rule, that the judgment is to be primd facie
evidence for the plaintiff, would be a mere delusion, if the defend-
ant might still question it by opening all or any of the original
merits on his side; for under such circumstances it would be
equivalent to granting a new trial. It is easy to understand, that
the defendant may be at liberty to impeach the original justice of
the judgment, by showing, that the court had no jurisdiction ; or
that he never had any rote of the suit; or that it was procured

1 See, also, Vallee v. Dumergue, 4 Exch, R. 290; Cowan v. Braidwood, 2 Scott,
N. R. 138; Cummings v. Banks, 2 Barbour, 602; Noyes v. Butler, 6 Barbour,
613; Hoalditeh v. Donegal, 8 Bligh, 337, Lord Brongham,

a Bee Alivon v. Furnival, 1 Cromp. Mees. & Rose. 277.
8 Ferguson v. Mahon, 11 Adolph. & Ellis, 179, 182.
800 CONFLICT OF LAWS. [cH. Xv.

by fraud ; or that upon its face it is founded in mistake; or that
it is ‘ raculary and -bad by the local law, fori rei judicate. To
such an extent the doctrine is intelligible and practicable. Be-
yond this, the right to impugn the judgment is in legal effect the
right to retry the merits of the original cause at large, and to put
the defendant upon proving those merits.?

§ 608. The general doctrine maintained in the American courts
in relation to foreign judgments certainly is, that they are primd
facie evidence; but that they are impeachable.? But how far, and
to what extent, this doctrine is to be carried, does not seem to be
definitely settled. It has been declared, that the jurisdiction of
the court,3 and its power over the parties and the things in contro-
versy, may be inquired into; and that the judgment may be im-
peached for fraud. Beyond this no definite lines have as yet
been drawn.

§ 609. By the Constitution of the United States it is declared,
that full faith and credit shall be given in each state to the public
acts, records, and judicial proceedings of every other state. And
congress, in pursuance of the power given them by the Constitu-
tion in a succeeding clause, have declared, that the judgments of
state courts shail have the same faith and credit in other states, as

1 See Arnott v. Redfern, 2 Carr. & Payne, 88; 3 Bing. R. 353; Novelli v.
Rossi, 2 Barn. & Adolph. 757; Douglass v. Forrest, 4 Bing. R. 686 ; Obicini v.
Bligh, 8 Bing. R. 335; Martin v. Nicolls, 3 Sim. R. 458; Alivon v. Furnival,
1 Cromp. Mees. & Rose. 277. See, also, Starkie on Evidence, Pt. 2, § 67; Phil-
lips & Amos on Evidence, (8th edit.) p. 537, 538, (1838); Buttrick v. Allen, 8
Mass, R. 273 ; Huberus, Tom. 2,° Lib, 1, tit. 3, De Conflictu, § 6.

? Many of the cases are collected; 2 Kent, Comm. Lect. 27, p. 118; &c., 3d
edit.; in 4 Cowen, R. 520, note 3; and in Mr. Metcalf’s notes to his valuable
edition of Starkie on Evidence, Pt. 2, § 67, 68, edit. 1830, p. 214 to 216. See,
also, Bissell v. Briggs, 9 Mass. R. 462; Borden v. Fitch, 15 Johns. R. 121; Green
v. Sarmiento, 1 Peters, C. C. R. 74; Field v. Gibbs, 1 Peters, C. C. R. 155; Ald-
rich v. Kinney, 4 Connect. R. 380; Shumway »v. Stillman, 6 Wend. R. 447; Hall
v. Williams, 6 Pick. 247; Starbuck v. Murray, 5 Wend. R. 148; Davis v. Peckare,
6 Wend. R. 327; Baterisk s, Allen, 8 Mass. R. 273; Pawling v; Bird’s Ex’rs, 13,
Johns. R. 192; Rathbone v. Terry, 1 Rhode Island R. 78; Eitcheoulg ‘Aipeeay
1 Cain, R. 460; Warton’s Dig. Judgment, I. ; Bigelow Dig. Judgment, H.;
Johnson’s Digest, Debt, H.; Coxe’s Digest, Tenients Hoxie v. Wright, 2 Ver.
mont R. 263; Bellows v. Thgrihany, 2 Vermont R. 575; Barney v. Patterson,
6 Harris & Jolin 182.

® See Noyes v. Butler, 6 Barb. S. C. R. 613.

* Wood v. Watkinson, 17 Conn. 500; Welch v. Sykes, 3 Gilman, 197.
§ 607 - 609 a.] FOREIGN JUDGMENTS. 801

they have in the state where they are rendered! [And the same
tule applies to judgments of the Circuit Courts of the United.
States, when relied upon in q state court.2] They are, therefore,
put upon the same footing as domestic judgments.? But this does
not prevent an inquiry into the jurisdiction of the court in which
the original judgment was rendered, to pronounce the judgment,
nor an inquiry into the right of the state to exercise authority
over the parties, or the subject-matter, nor an inquiry whether the
judgment is founded in, and impeachable for a manifest fraud.‘
The Constitution did not mean to confer any new power upon the
states; but simply to regulate the effect of their acknowledged
jurisdiction over persons and things within their territory.6 It did
not make the judgments of other states domestic judgments to all
intents and purposes ;® but only gave a general validity, faith,
and credit to them, as evidence. No execution can issue upon
such judgments without a new suit in the tribunals of other states.’
And they enjoy not the right of priority, or privilege, or lien, which
they have in the state where ‘they are pronounced, but. that only
which the lex fori gives to them by its own laws in their charac-
ter of foreign judgments.®

[§ 609 a. In the American states the effect of a judgment in

1 Constitution, Art. 3, § 4; Act of Congress of 26th May, 1790, ch. 11; 3
Story’s Comm. on Constit. ch. 29, § 1297 to 1307.

® Niblett v. Scott, 4 Louis. Ann. R. 246; Barney v. Patterson, 6 H. & J.
182.

* [Without this act judgments of each state would be regarded as foreign judg-
ments in the courts of every other state. Dorsey v. Maury, 10 Smedes & Mar-
shall, 298.]

* Taylor v. Bryden, 8 Johns. R. 173, See Cummings v. Banks, 2 Barbour,
602; Davis v. Smith, 5 Georgia R. 274; Gleason v. Dodd, 4 Mete. 333; Ewer
v. Coffin, 1 Cush, 23. . #

5 See Story’s Comment. on the Constit. ch. 29, § 1297 to 1307, and cases there
cited; Hall v. Williams, 6 Pick. R. 237; Bissell v. Briggs, 9 Mass. R. 462; Shum-
way v. Stillman, 6 Wend..R. 447; Evans v. Tatem, 9 Sergt. & R. 260; Benton
v. Burgoty 10 Sergt. & R. 240; Harrod v. Barretto, 1 Hall, Sup. Ct. R. 155; 2
Hall, Sup. Ct. R. 302; Wilson v. Niles, 2 Hall, Sup. Ct. R. 358; Hoxie v. Wright,
2 Vermont R. 263; Bellows v. Ingraham, 2 Vermont R. 575; Aldrich v. Kinney,
4 Connect. R. 380.

® See D’Arcy v. Ketchum, 11 How. U. S. R. 165. =

7 [See the sound remarks of Mr. Justice Redfield, in the late case of Dimick
v. Brooks, 21 Vermont R. 569, where this subject is ably examined. ]

® [McElmoyle v. Cohen, 13 Peters, R. 312, 328, 329; ante, § 582 a, note;
Wood v. Watkinson, 17 Conn. R. 500, an elaborate case upon this subject. ]
802 CONFLICT OF LAWS. [cH. Xv.

one state, when relied upon as a cause of action in another, has
been frequently discussed of late, and the tendency of modern de-
cisions is to restrict the force of such judgments in the courts of
another state. Thus, in a late case in Ohio, an action was brought
on a judgment rendered in Pennsylvania. The only service in
the original suit was by an attachment of the defendant’s real es-
tate situated in the latter state. The defendant himself had no
personal notice of the suit, and never appeared to the action,
either by himself, or by attorney, neither had he ever been within
the State of Pennsylvania. It was determined that such a judg-
ment was not even prima facie evidence of debt in Ohio. ‘The
same doctrine was affirmed in a still later case? in the State of
Maine, where it was also determined that no action could be main-
tained in that state, upon a judgment recovered in Illinois, unless
the court rendering the judgment had jurisdiction of the defend-
ant’s person, and that an attachment of the defendant’s property
in Illinois, and publication “of the proceedings according to the
statutes of Illinois, would not, of itself, give the courts of that
state jurisdiction of the person. ]

§ 610. In the next place, as to judgments in personam in suits
between citizens, in suits between foreigners, and in suits between
citizens and foreigners. The common law recognizes no distinc-
tion whatever, as to the effect of foreign judgments, whether they
are between citizens, or between foreigners, or between citizens
and foreigners. In all cases they are deemed of equal obligation,
whoever are the parties. The cases which have been already cited,
refer to no such distinction ; but the same rules are indiscrimi-
nately applied to all persons.

[§ 610 a. Another principle of the common law, somewhat con-

1 Arndt v. Arndt, 15 Ohio R. 33.

[? McVicker v. Beedy, 31 Maine R. 316, In this case, the original suit was in
the Supreme Court of Illinois, upon a contract made in that state, and the de-
fendant at that time residing there. Previous to the commencement of the suit,
he removéd to Maine, leaving property in the hands of a resident of Illinois,
which was attached by the trustee process, and notice of the suit was published
in the newspapers, according to the statutes of Illinois. The defendant, however,
never had actual notice of the suit, and did not appear to the process. Judgment
being obtained upon his default, and the property attached being insufficient to
satisfy the same, an action of debt on the judgment was brought in Maine, to re-
cover the balance. The objection of a want of jurisdiction in the courts of IIli-
nois was held to be well taken, but the plaintiff was allowed to amend on terms,
and to add a count for the original cause of action.]
§ 609 a-610a.] FOREIGN JUDGMENT. 803

nected with the subject of foreign judgments, here considered, is
the effect of the pendency of another suit, in a foreign ‘tribunal,
upon the same cause of action, and between the same parties.
The weight of authority is entirely in favor of the doctrine that
the pendency of such suit in a tribunal strictly foreign, is clearly
no cause of abatement to a subsequent suit; and many cases
hold that in this respect, the different American states are so far
foreign to each other, that the pendency of a prior suit for the
same cause in one state, is no cause of abatement of a second suit
in another.2- And the same has been held where the prior suit
was pending in a court of the United States, for a different district
than the state where the second cause is instituted,? and vice
versa.* On the other hand, if the prior suit is pending in a circuit
court for the district in which the state lies, when the second ac-
tion is instituted, and that court has jurisdiction of the cause, this
has been thought good cause of abatement for the second suit.®
But whatever may be the rule, where both actions are actions at
law, it is uniformly agreed that if one is at law, and the other in
equity, neither is cause of abatement to the other.® And so if the
parties are reversed, although both actions are at law.’ In like
manner, @ proceeding in one tribunal im personam, and in which
property is attached as collateral security to satisfy the judgment,
is no bar to a subsequent proceeding in rem against the same prop-
erty in a foreign tribunal, for the same cause of action.8 But
where a state court and the United States court both have juris-
diction in rem, the right to maintain the jurisdiction attaches to

1 Russell v. Field, Stuart’ss Canada R. 558; Maule v. Murray, 7 T. R. 470;
Bayley v. Edwards, 3 Swanst. 703; Ostell v. Lepage, 10 Eng. Law & Eq. R.
255; 5 De Gex & Smale, 95.

* Bowne v. Joy, 9 Johns. 221; Salmon v. Wootton, 9 Dana, 423; Mcdilton v.
Love, 13 Illinois, 486; Drake v. Brander, 8 Texas, 352., And the Supreme Court
of the United States have decided that the separate states are foreign to each
other, except so far as united for national purposes, under the Constitution.
Buckner v. Van Lear, 2 Peters, 586.

8 Walsh v. Durkin, 12 Johns. R. 99; Cook v. Litchfield, 5 Sandf. 330.

* White ». Whitman, 1 Curtis, C. C. 494.
~ 5 Smith v. Atlantic Mut. Fire Ins. Co., 2 Foster, 21.

® Colt v. Partridge, 7 Met. 570; Hatch v. Spofford, 22 Conn. 485.

7 Wadleigh v. Veasie, 3 Sumner, 165.

® Harmer v. Bell, 7 Moore, P. C. R. 268; and see Certain Logs of Mahog-
any, 2 Sumner, 589. See, however, Taylor v. The Royal Saxon, 1 Wallace,

je. 311.
804 CONFLICT OF LAWS. [cH. xv.

that tribunal which first exercises it, and takes possession of the
thing.1] *

§ 611. We have hitherto been principally considering the doc-
trines of the common law. But it cannot be affirmed, that the
same doctrines are generally maintained, either by foreign courts,
or by foreign jurists. Many foreign jurists contend for the doc-
trine of Vattel, that the judgments of a foreign competent tribu-
nal are to be held of equal validity in every other country? Thus
Huberus lays down the rule: Cuncta negotia et acta, tam in judi-
cio quam extra judicium, sive mortis causd, sive inter vivos, secun-
dum jus certi loci rite celebrata, valent, etiam ubi diversa juris
observatio vigelt, ac ubi sic inita, quemadmpdum facta sunt, non
valerunt.2 And again: Similem usum habet hee observatio in
rebus’ judicatis. Sententia in aliguo loco pronunciata, vel delicti
venia, ab e0, qui jurisdictionem illam habet, data wbique habet
effectum; nec fas est alterius Reipublice magistratibus, Reum
alibi absolutum, veniave donatum, licet absque justa causa perse-
qui, aut iterum permittere recusandum, Jc. Idem obtinet in sen-
tentits rerum civilium.4 The same doctrine seems equally well
founded in the expressive language of the Roman law. Res judi-
cata pro veritate accipitur.®

-§ 612. D’Argentré holds the like opinion. Mam de omni per-
sonali negotio, judicis ejus cognitionem esse, cui persona subsit,
sic, ut quocunque persona abeat, id jus.sit, quod ille statuerit.§
Gaill asserts, that any other rule would involve absurdity. Ab-
surdum enim fore, si post sententiam definitivam alia esset ferenda
sententia, et processum in infinitum extrahi litemque ex lite oriri
debere.” John Voet maintains a similar opinion in all suits ex-
cept those respecting immovables. Licet autem regulariter Judex
‘requisitus non cognoscat de justitid sententie per alterum Judicem

} The Ship Robert Fulton, 1 Paine, C. C. 621.

* Henry on Foreign Law, 75, 76.

* Huberus, Tom. 2, Lib. 1, tit. 3, De Conflict. Leg. § 3.

* Idem, § 6.

5 Dig. Lib. 1, tit. 5, L 25. :

° D’Argentr. Comm. ad Leg. Briton. art. 218; Gloss. 6, n. 47, p. 665, edit.
1640; Henry on Foreign Law, p. 74; 1 Boullenois, Observ. 25, p. 605.

7 Henry on Foreign Law, p. 74, 75; Gaill, Pract. Observ. Lib. 1, Observ.
113, n. 11, p. 201; 1 Boullenois, Observ. 25, p. 605, 606.— There is an error

in the reference of Boullenois to Gaill. It should be to Observ. 113, instead
of 123.
§610 a-613.] FOREIGN JUDGMENTS. 805

late, nec eam ad examen penitius revocet; sed pro justitia ejus ex
e@quitate presumat ; tamen, st animadvertat, eam directo contra sui
territorii statuta latam esse circa res immobiles in suo territorio si-
tas, eandem non exsequetur.+

§ 613. There are, however, other foreign jurists, who maintain
a very different opinion.? We have already had occasion to take
notice of the doctrines of Boullenois upon the right of jurisdic-
tion ;? and he applies them in especial manner to the authority of’
foreign judgments. In regard to judgments in rem, or partly in
rem, and partly in personam, he deems the jurisdiction to belong
exclusively to the tribunals of the place rez site, and, consequently,
that the judgment rendered there, ought to be of universal obliga-
tion. But; in regard to judgments in personal actions, he makes
the following distinctions. If the foreign judgment is in a suit
between natives of the same country in which it is pronounced,
and it is rendered by a competent tribunal, in such a case it ought
to be executed in every other country without any new inquiry
into the merits. The reason assigned is, that the judgment has
emanated from a lawful authority, and has been rendered between
persons, who are subject to that authority ; and consequently, the
judgment ought not to be submitted to examination or discussion
in any other tribunal, which for such purposes must be wholly in-
competent. Ifthe foreign judgment is rendered in a suit between
mere strangers, who are foreigners found within the territorial
authority of the court rendering it, and the jurisdiction is right-
fully exercised over the parties, in such a case the judgment is
equally conclusive, and not examinable by any other tribunal.é
But he thinks, that the jurisdiction cannot be rightfully exercised,
merely because the foreigners are there, unless they are domiciled,
and have made themselves subject to the laws, or have made some
contract there, or some contract to be executed there, which is the
subject-matter of the suit.’ Lastly, if the judgment is rendered

1 J. Voet, ad Pand. Tom. 2, Lib. 42, tit. 1, n. 41, p. 788.

2 See 1 Boullenois, Observ. 25, p. 601 to p. 650; 3 Burge, Comm. on Col.
and For. Law, Pt. 2, ch. 24, p. 1050; Id. p. 1050 to p. 1060; Id. p. 1062 to
1076,

® Ante, § 552.

* 1 Boullenois, Observ. 25, p. 618, 619, 620 to 624; Id. p. 635, 636.

"5 Ibid. p. 603, 605.
* 1 Boullenois, Observ. 25, p. 607, 609.

* Thid. p- 606 to p. 610.
CONFL. 68
806 ° CONFLICT OF LAWS. [cH. Xv.

in a suit between a native of the country where the judgment is
pronounced, and a foreigner, in such a case, if the foreigner be
the plaintiff, then the judgment ought to be conclusive, and not
examinable, whether the foreigner has been successful, or unsuc-
cessful in his claim ; for, in such a case, the suit is brought before
the proper forum, according to the maxim, actor sequitur forum
‘rei, and then standum est in judicio; and the execution of the
judgment ought to be everywhere held perfect and entire without
any new examination.' But if the foreigner be the defendant,
and he has not entered into any contract in the place, where the
suit is brought, or into any contract, which is to be performed
there, and wifich is the subject-matter of the suit; in such a case
the judgment is not conclusive against the defendant.?

§ 614. Boullenois concludes his remarks upon this subject in
the following manner. ‘ When, then, some of our authors say,
that foreign judgments are not to be executed in France, and that
it is necessary to commence a new action, that is true without any
exception in all matters touching the realty. It is also true in
personal matters, when the defendant is a Frenchman, who has
not contracted in the foreign country, nor promised to pay there,
nor submitted himself voluntarily to the foreign jurisdiction; for
in such a case a new action should be brought, saving the right to
demand a provisional execution of the foreign judgment. But,
in the other cases above mentioned, the judgment ought to be ex-
ecuted without a new action.’’3

§ 615. There was in France an ancient Ordinance, (in 1629,)
one article of which expressly declared, that judgments, rendered
in foreign countries for any cause whatever, should not be exe-
cuted within the realm, and that subjects against whom they were
rendered might contest their rights anew throughout France.

§ 616. Emérigon says, that judgments rendered in foreign
countries against Frenchmen are not of the slightest weight -in
France ; and that the causes must be there litigated anew. In
support of this statement he quotes the remark of D’Aguesseau,

? 1 Boullenois, Observ. 25, p. 609.

* Thid. p. 610, 617.

* 1 Boullenois, Observ. 25, p. 646. — Toullier has commented upon and denied
ithe distinctions of Boullenois, as not being well founded in French jurisprudence.
10 Toullier, Droit Civ. Frang. ch. 6, § 8, p. 83.

* 1 Boullenois, Observ. 25, p. 646; 2 Kent, Comm, Lect. 87, p. 121, 122, note,
8d edit. See 10 Toullier, Droit Civ. Frang. in ch. 6, § 3, n. 82, 83.
§ 613 -617.] FOREIGN JUDGMENTS. : 807

that it is an inviolable maxim, that a Frenchman can never be
transferred to a foreign court. C’est une marime inviolable, qu’un
Francais ne peut jamais etre traduit devant un juge étranger.+
Immediately afterwards Emérigon adds, that it is the same, as to
foreign judgments rendered in fayor of a foreigner against a for-
eigner domiciled in France. He then proceeds to remark, that it
is only in suits between foreigners not domiciled in France that a
foreign judgment will be executed in France. The rule equally
applies, whether the Frenchman be plaintiff or be defendant in the
cause. But, on the other hand, a Frenchman may sustain a suit
in the French courts against a foreigner, and the judgment ren-
dered by such foreigner may be executed against his property in
France. Emérigon, however, admits, that the rule is not exempt
from doubt, and has been much controverted ; for the maxim,
actor sequitur forum rei, belongs to the law of nations.2 Vattel
affirms the same maxim in explicit terms.?

§ 617. The doctrine thus promulgated by Emérigon has contin-
ued down to a very recent period.t But by the present Code of
France the Ordinance of 1629 seems to be abolished; and foreign
judgments are now deemed capable of execution in that country.6
But the merits of the judgment are examinable; and no distinc-
tion seems to be made, whether the judgment is in a suit between
foreigners, or between Frenchmen, or between a foreigner and a
Frenchman ; or whether it is in favor of one party, or of the
other; or whether it is rendered upon default, or upon confession,
or upon a full trial and contestation of the merits.6 Toullier cdn-
siders it as now the established jurisprudence of France, that no
foreign judgment can be rendered executory in France, but upon

* D’Aguesseau, (Euvres, Tom. 5, p. 87, 4to edit.

* Emérigon, Traité des Ass. Tom. 1, ch. 4,§ 8, n. 2, p. 122, 123; 2 Kent, Comm.
Lect. 37, p. 121, 122, note, 3d edit.—The same doctrine is explicitly avowed to
be the law of France in many jother authorities. See Henry on Foreign Law,
Appx. 209. ;

® Vattel, B. 2, ch. 8, § 103. ;

* Merlin, Répertoire, Jugement, § 6; Id. Etranger, § 2 to§ 5; Id. Questions
de Droit, Jugement, § 14; 2 Kent, Comm. Ject. 37, p. 121, 122, note, 3d edit. ;
10 Toullier, Droit, Civ. Frang. ch. 6, § 3, p. 76, 81, 82, 86.

. > Code de Procédure Civile, art. 546 ; Code Civil, art. 2123, 2128 ; 10 Toullier,
Droit Civ. Frang. ch. 6, § 3, n. 76, 77, 78, 84, 85, 86.

* 10 Toullier, Droit Civ. Frang. ch. 6, § 3, n. 76, 77, 78, 80, 81, 84, 85, 86;
Pardessus, Droit Comm. Tom. 5, art. 1488; 3 Burge, Comm. on Col. and For.
Law, Pt. 2, ch, 24, p. 1048, 1049.
808 CONFLICT OF LAWS. [cH. Xv.

a full cognizance of the cause before the French tribunals, in
which all the original grounds of the action are to be debated and
considered anew. And he adds, that the same principle is applied
to cases, where foreign judgments are set up by the defendant by
way of bar to a new action. The judgments are equally re-exam-
inable upon the merits.?

§ 618. It is difficult to ascertain, what the prevailing rule is in
regard to foreign judgments in some of the other nations of conti-
nental Europe ; whether they are deemed conclusive evidence, or
only primé facie evidence. Holland seems:at all times, upon the
general principle of reciprocity, to have given great weight to for-
eign judgments, and in many cases, if not in all cases, to have
given to them a weight equal to that given to domestic judgments,
wherever the like rule of reciprocity with regard to Dutch judg-
ments has been adopted by the foreign country, whose judgment
is brought under review. This is certainly a very reasonable.
rule; and may, perhaps, hereafter work itself firmly into the struc-
ture of international jurisprudence.’ .

{* § 618 a. There is no title connected with the general subject
of the conflict of laws, more embarrassing than that which we are
now considering. It has undergone considerable discussion since
the lamented decease of our author. We have, therefore, felt
compelled to state, as far as.we could, the present state of the
English law, in regard to it.

§ 618 b. Whenever it becomes important to determine what is
the law of a foreign country, the decisions of the highest judicial
tribunals of that country are held conclusive in regard to it. This
is partly upon the ground, that the question turns upon a fact, and
that fact is the true state of the law of the country, which is but
another name for the decisions of the highest legal tribunals of
the country; so that in truth, the law, and the decisions of these
tribunals, thus become identical. This is illustrated in a recent
case which we have before given. And a similar conclusion was
arrived at, in a later case.

1 Id. n. 85, 86; 2 Kent, Comm. Lect. 87, P- 121, 122, note, 3d edit.; Pardes-
sus, Droit Comm. Tom. 5, art. 1488.

2 10 Toullier, Droit Civ. Frang. ch. 6, § 8, n. 76 to 86; Merlin, Répertoire,
Jugement, § 6; Id. Questions de Droit, Jugement, § 14; Pardessus, Droit Comm.
Tom. 5, art. 1488; 2 Kent, Comm. Lect. 87, p. 118 to 121, 3d. edit.

* Henry on Foreign Law, ch. 10, § 2, p. 75, 76; Id. Appx. p. 209 to p. 214.

[** Ante, § 373 c; Scott v. Pilkington, 2 B. & S. 11, 8 Jur. N. S. 557.

® Crispin v. Daglioni, 9 Jur. N. S. 658; ante, § 491 a.
§ 617-618 e.] FOREIGN JUDGMENTS. 809

§ 618 c. But this rule does not apply, where the foreign court,
in giving judgment, and as ‘one of the elements upon which the
same was based, assumed, or decided, a question of English law,
by which the cause of action was ruled, and, in doing so, mistook
its true import. In such case the judgment of the foreign court
will be of no force or validity in an English court.) In the case
of Simpson v. Fogo the effect of foreign judgments is very exten-
sively discussed, and the. following propositions declared, which
may be regarded as embracing the present recognized principles
of English law upon the question. ,

§ 618 d. A judgment of-a foreign court is conclusive, inter par-
tes, where there is nothing on the face of the judgment which an
English court can inquire into. But the courts of England may
disregard such judgment, inter partes, if it appears on the record
to be manifestly contrary to natural justice ; or to be based on do-
mestic legislation’ not recognized in England or other foreign coun-
tries ; or is founded upon a misapprehension of what is the law of
England; or if such judgment proceeds upon a distinct refusal to
recognize the laws of the country under which the title to the sub-
ject-matter of the litigatien arose. And a somewhat similar enun-
ciation of the exceptions to.the conclusiveness of foreign judgments
is found in The Bank of Australasia v. Nias?

§ 618 e. There are some cases where foreign decrees have been
held to operate in rem, and thus to transfer an effectual and abso-
lute title to property sold under an order, or execution from the
foreign court, but where, in other cases, very similarly situated, it
has been held that only the title of the judgment debtor passed,
under the sale. The true distinction in this class of cases seems
to be, that where the court assumes to allow adverse claimants to
interpose objections to the sale, and to determine the validity of
such claims, and to pass a perfect title to the thing sold, it must be
taken as a proceeding in rem, and as having effectually foreclosed
all claim of title from any party who did in fact submit his claim
to adjudication before the court, or who had his domicil at the
time within the jurisdiction of the court, and who might therefore
have been heard there, provided proper notice appears.’

1 Scott v. Pilkington, 2B. & S. 11; 8 Jur. N. S. 557; Simpson v. Fogo, 9 Jur, -
N.S. 403. 2 Ante, § 606.

* Imrie v. Castrique, 8 C. B. N. S. 406; 7 Jur. N. S. 1076 ; Simpson v. Fogo,
supra; Woodruff v. Taylor, 20 Vt. R. 65.

68*
810 CONFLICT OF LAWS. | [oH. xv.

§ 618 f. And it will not exonerate the defendant in a foreign
judgment, that he became a party to the proceedings merely to
prevent his property being seized, and that the judgment is erro-
neous, in fact and in law, on the merits, whether the plea alleges,
that the error does or does not appear upon the face of the judg-
ment. Nor can the defendant’ plead that the enforcement of the
judgment, in England, is contrary to natural justice, on the
ground that the defendant had discovered fresh evidence, showing
that the judgment is erroneous, in fact, or in law, upon the mer-
its, or that evidence was improperly admitted.

§ 618 g. Buta plea in bar of a suit, that thé same matter has
been adjudged between the parties in a foreign court, must show
that the judgment is final and conclusive between the parties, ac-
cording to the law of the place where such judgment is pro-
nounced.2. And the judgment of the foreign court may always be
impeached by showing any facts whereby it is made to appear that
the court had not jurisdiction by the laws of the country where
rendered. But no facts can be shown by way of defence to such
judgment, which might have been urged in the foreign court.

-§ 618 h. These cases, mostly of recent»occurrence, have carried
the doctrine of the conclusive force of foreign judgments, consid-
erably beyond the point maintained by the earlier cases, and even
so late, as within the last thirty years, when it was held, by the
courts in Westminster Hall, that such judgments were merely
primé facie evidence of debt, and did not operate as an absolute
and conclusive merger of the cause of action. But it was for-
mally held, by the common consent of counsel, in the House of
Lords, as early as 1845, that a judgment of the highest judicial
tribunal of France, upon the same subject-matter, in favor of the
present defendant, amounted to res judicata, and was therefore an
effectual merger of the cause of action, “ the foreign tribunal hav-
ing jurisdiction over the matter, and both the parties having been
regularly brought before” it.6 So that now it may be regarded as
fully established in England, that the contract resulting from a for-
eign judgment is equally conclusive, in its force and operation, with
that implied by any domestic judgment.

1 Decosse Brissac v. Rathbone, C. H. & Nor. 301.

2 Frayes v. Worms, 10 C. B. N.S. 149.

® Vanquelin v. Bouard, 9 L. T. N. S. 582.

* Ante, § 599; Smith v. Nicolls, 5 Bing. N. C, 208,
5 Ricardo v. Garcias, 12 Cl. & Fin. 368.
§618f-618%.] | PENAL LAWS AND OFFENCES. 8i1

§ 618 ¢. But there is still a very essential and important distinc-
tion between the two. Domestic.judgments rest upon the conclu-
sive force of the record, which is absolutely unimpeachable. For-
eign judgments are mere matters en pais, to be proved the same
as an arbitration and award, or an account. stated ; to be estab-
lished, as matter of fact, before the jury; and by consequence
subject to any contradiction or impeachment, which might be
urged against any other matter resting upon oral proof. Hence any
fraud which entered into the concoction of the judgment itself is
proper to be adduced, as an answer to the same; but no fraud
which occurred and was known to the opposite party before the
rendition of such foreign judgment, and which might therefore
have been brought to the notice of the foreign court, can be urged
.in defence of it.

§ 618 k. It is proper to add, that while the English courts thus
recognize the general force and validity of foreign judgments, it
has been done under such limitations and qualifications, that great
latitude still remains for breaking the force, and virtually disre-
garding such foreign judgments, as proceed upon an obvious mis-
apprehension of .the principles governing the case ; or where they
are produced by partiality or favoritism, or corruption, or where
upon their face they appear to be at variance with the instinctive
principles of universal justice. .But these are the rare excep-
tions. ]

: ‘ CHAPTER XVI.
PENAL LAWS AND OFFENCES.

‘[*§ 619. Penal laws and offences. «
§ 620. The operation and effect of such laws strictly local.

§ 621-624. This rule prevails extensively in different countries.

§ 625. Some of the foreign jurists claim a different rule.

§ 625 a. But the American states adhere to the limitations stated.

§ 625 b, One who acts, through an innocent agent, considered present.
§ 625 c. So one who operates by inanimate agencies.

§ 626. Surrendering fugitives from justice matter of comity.

§ 627. Sometimes claimed as matter of duty and obligation.

§ 628. Various and conflicting opinions stated.

§ 628 a. Discussion of principles involved.]

12 Story, Eq. Ju. § 1575-1584, and cases cited. Boston India Rubber Fac-
tory v. Hoit, 14 Vt. R. 92.]
812 CONFLICT OF LAWS. [cH. XVI.

§ 619. We are next led to the consideration of the operation of
foreign laws in regard to penalties and offences. And this will
not require any expanded examination, as the topics are few, and
the doctrines maintained by foreign jurists and by tribunals acting
under the common law involve no intricate inquiries into the pe-
culiar jurisprudence of different nations.

§ 620. The common law considers crimes as altogether local,
and cognizable and punishable exclusively in the country, where
they are committed. No other nation, therefore, has any right to
punish them; or is under any obligation’ to take notice of, or to
enforce any judgment, rendered in such cases by the tribunals,
having authority to hold jurisdiction within the territory, where
they are committed.2 Hence it is, that a criminal sentence of at-
tainder in the courts of one sovereign, although it there creates a
personal disability to sue, does not carry the same disability with
the person into other countries. Foreign jurists; indeed, main-
tain on this particular point a different opinion, holding, that the
state or condition of a person in the place of his domicil accom-
panies him everywhere.? Lord Loughborough. in declaring the
opinion of the court on one occasion said: “ Penal laws of foreign
countries are strictly local, and affect nothing more than they can
reach, and can be seized by virtue of their authority. A fugitive,
who passes hither, comes with all his transitory rights. He may
recover money held for his use, and stock, obligations, aud the
like ; and cannot be affected in this country by proceedings against
him in that, which he has left beyond the limits of which such
proceedings do not extend.”* Mr. Justice Buller, in the game
case, on a writ of error, said: “It is a general principlé, that the

* “Crimes (said Lord Chief Justice De Gray, in Rafael v. Verelst, 2 Wm.
Black. R. 1058) are in their nature local, and the jurisdiction of crimes is local.”

* Rutherf. Inst, B. 2, ch. 9, § 12; Martens, Law of Nations, B. 3, ch. 8, § 22,
28, 24, 25; Merlin, Répertoire, Soéveraineté, § 5, n. 5, 6, p. 379 to 382; Com-
monwealth v. Green, 17 Mass. R. 515, 545, 546, 547, 548.

* Ante, § 91, 92; 1 Hertii, Opera, de Collis. Leg. § 4, n. 8, p. 124, edit. 1737;
Id. p. 175, edit. 1716; 1 Boullenois, Obs. 4, p. 64, 65. — Boullenois states this
doctrine in strong terms. “ A l’égard des statuts, qui prononcent une morte ci-
vile pour crimes, ou une note d’infamie, ’état de ces misérables se porte par tout,
indépendament de tout domicile ; et cela par un concert et un concours général
des nations, ces sortes de peines étant une tache, une plaie incurable, dont le con-
damné est affligé, et qui l’accompagne en tous lieux. C'est ce que dit D'Argen-
tré.” 1 Boullenois, Observ. 4, p. 64, 65.

* 2 Folliott v. Ogden,*1 H. Black. p. 135.
§ 619 - 622.] PENAL LAWS AND OFFENCES. 813.

penal laws of one country cannot be taken notice of in another.” ?
The same doctrine was affirmed by Lord Ellenborough in a sub-
sequent case.” And it has been recently promulgated by Lord
Brougham, ‘in very clear and authoritative terms. ‘The lex loci
(says he) must needs govern all criminal jurisdiction from the
nature of the thing and the purpose of the jurisdiction.” 3

§ 621. The same doctrine has been frequently recognized in
America. On one occasion, where the subject underwent a good
deal of discussion, Mr. Chief Justice Marshall, in delivering the
opinion of the Supreme Court, said: “‘The courts of no country
execute the penal laws of another.”* On another occasion, in
New York, Mr. Chief Justice Spencer said: “ We are required
to give effect to a law (of Connecticut,) which inflicts a penalty
for acquiring a right to a chose in action. The defendant cannot
take advantage of, nor expect the court to enforce, the criminal
laws of another state. The penal acts of one state can have no
operation in another state. They are strictly local, and affect
nothing more than they can reach.”5 Upon the same ground
also, the Supreme Court of Massachusetts have held, that a per-
son convicted of an infamous offence in one state, is not thereby
rendered incompetent as a witness in other states.6 [So, in a late
case in chancery,’ a foreigner in England was not allowed to with-
hold certain documents, whose production was sought by a bill of
discovery, upon the plea that their contents would render him
liable to the penal laws of his own country ; they having no such
effect in England, and the courts of the latter country having no
regard to the penal laws of a foreign state. ]

§ 622. The same doctrine is stated by Lord Kames as the doc-
trine in Scotland. ‘“ There is not (says he) the same necessity for
an extraordinary jurisdiction to punish foreign delinquencies.
The proper place for punishment is, where the crime is commit-

1 Ogden »v. Folliott, 3 T. R. 733, 734.

2 Wolff v. Oxholm, 6 M. & Selw. R. 99.

8 Warrender v. Warrender, 9 Bligh, 119, 120.

* The Antelope, 10 Wheat. R. 66, 123. °

§ Scoville v. Canfield, 14 Johns. R. 338, 340. See also The State v. Knight,
Taylor's N. C. Rep. 65.

® Commonwealth v. Green, 17 Mass. R. 515, 540, 541, 546, 547. [Contra in
North Carolina, State v. Chandler, 3 Hawks, 393; Chase v. Blodgett, 10 New
Hampshire, 22.]

* King of Two Sicilies v. Wilcox, 1 Simons, N.S. 301.
814 CONFLICT OF LAWS. [cH. XVL

ted. And no society takes concern in any crime, but what is
hurtfyl to itself.” 1

§ 623. The same doctrine is laid down by Martens, as a clear
principle of the law of nations. After remarking, that the crim-
inal power of a country is confined to the territory, he adds:
‘By the same principles, a sentence, which attacks the honor,
rights, or property of a criminal, cannot extend beyond the courts
of the territory of the sovereign who has pronounced it. So that
he, who has been declared infamous, is infamous in fact, but not
in law. And the confiscation of his property cannot affect his
property situate in a foreign country. To deprive him of his
honor and property judicially there also, would be to punish him
a second time for the same offence.” ?

§ 624. Pardessus has affirmed a similar principle. “In all the
states of christendom, (says he,) by a sort of general consent and
uniformity of practice, the prosecution and punishment of penal
offences are left to the tribunals of the country where they are
committed. The principle of the French legislation, that the
laws of police and bail are obligatory upon all, who are within
the territory, is a principle of common right in all nations.’’®
Bouhier also admits the locality, or, as he terms it,the reality of
penal laws; and of course .he limits thtir operation to the terri-
tory of the sovereignty, within which they are committed.‘

§ 625. On the other hand Hertius, and Paul Voet, seem to
maintain a different doctrine, holding, that crimes committed in
one state may, if the criminal is found in another state, be upon
demand punished there. Paul Voet says: Statutum personale

1 Kames on Equity, B. 3, ch. 8,§ 1. See also Ersk. Inst. B. 1, tit. 2, p. 28.

* Martens, Summary of the Law of Nations, B. 3, ch. 3, § 24, 25.

* Pardessus, Droit Comm. 5, art.'1467. See also Merlin, Répertoire, Souvé-
raineté, § 5, n. 5, 6, p. 379 to 382.

* Bouhier, Cout. de Bourg. ch. 34, p. 588. See also Matthei, Comm. ad Pand.
Lib. 48, tit. 20, § 17, 18, 20. — Mr. Hallam has remarked : “ The death of Serve-
tus, has, ‘perhaps, as many circumstances of aggravation, as any execution for
heresy, that ever took place. One of these, and among the most striking is, that
he was not the subject of Geneva; nor domiciled in the city, nor had the Chris-
tianissima Restitutio been published there, but at Vienne. According to our laws,
and those, I believe, of most civilized nations, he was not answerable to the tri-
bunals of the republic.” Hallam’s Introduction to the Literature of Europe, Vol.
2, (Lond. edit, 1839,) cap. 2, § 27, p. 109.

° Hertii, Opera, De Collis. Leg. § 4, n. 18 to n. 21, p. 180 to 132, edit. 1737;
Id. p. 185 to 188, edit. 1716.
§ 622 - 625 a.] PENAL LAWS AND OFFENCES. 815

ubique locorum personam comitatur, §c., etiam in ordine ad penam
a cive petendam, si pena civibus sit imposita.”} And he, as well
as some others of the foreign jurists, enters into elaborate discus-
sions of the question, whether, if a foreign fugitive criminal is
arrested in another country, he is to be punished according to the
law of his domicil, or according to the law of the place, where the
offence was committed.? If any nation should suffer its own courts
to entertain jurisdiction of offences committed by foreigners in
foreign countries, the rule of Bartolus would seem to furnish the
true answer. Delicta puniuntur juxta mores loci commissi delicti,
et non loci, ubi de crimine cognoscitur 2

[§ 625 a. The doctrine that one state will not notice the penal
laws, or revenue laws of another state, is, however, to be under-
stood with some limitation, and cannot be extended so far as has
sometimes been supposed. Thus, in a late case in New Hamp-
shire, a citizen of that state brought. an action of trespass against
a citizen of Vermont, to recover damages for assessing the plain-
tiff with an illegal tax, and issuing a warrant against him upon
which he-was arrested. The defendant relied upon a want of
jurisdiction in the courts of New Hampshire, to inquire into the
matter. And the learned Chief Justice Parker, in pronouncing
judgment upon this point observed : “ It is said that the court will
not notice the penal laws, or the revenue laws, of another state.
But this principle is not applicable in this case, nor can it be true

1 P. Voet, de Statut. § 4, ch. 2, n. 6, p. 123, edit. 1715; Id. p. 138, edit. 1661.
See Id. § 11, ch. 1, n. 4, 5, p. 294 to 296, edit. 1715; Id. p. 355 to 360, edit.
1761.

* See 1 Hertii, Opera, De Collis. Leg. § 4, n. 19 to n. 21, p. 131, 132, edit.
1737; Id. p. 185 to 188, edit. 1716; P. Voet, de Stat. §11,ch. 1, § 1, 4, 5, p. 291
to 297, edit. 1715; Id. p. 355 to 360, edit. 1661.

® Henry on Foreign Law, p. 47.—I quote the passage as I find it in Henry.
Upon examining Bartolus in the place apparently intended to be cited by Mr.
Henry (Bartolus, Comm. ad Cod. Lib. 1, tit. 1, lib. 1, n. 20, 21; Id. n. 44; Id. n.
47, Tom. 7, p. 4, edit. 1602,) I have not been able to find any such language used
by Bartolus. Martens deems it clear, that a sovereign in whose dominions a crim-
inal has sought refuge, may, if he chooses, punish him for the offence, though
committed in a foreign country ; though he admits, that the more common usage
in modern times is to remand the cabmantall to the country, where the crime was
committed. Martens, Law of Nations, B. 3, ch. 3, § 22, 23. See also Vattel, B,
2, ch. 2, § 76; Grotius, De Jure Belli et Pac. B. 2, ch. 21, § 2, 3, 4,5; Burlema-
qui, P. 4, ch. 3, § 24, 25, 26. See Lord Brougham’s opinion in Warrender v.
Warrender, 9 Bligh, R. 118, 119, 120.
816 CONFLICT OF LAWS. [cH. XVI

to that extent.. There is no attempt to enforce the penal or reve-
nue laws of Vermont by this action. If there were, this could
not be done through the instrumentality of the courts of this
state ; as for instance, if the attempt was to collect a tax, assessed
in Vermont, by a suit here.”! It had keen previously determined
in Vermont, that the courts of that state would not take cogni-
zance of an official bond given in New Hampshire to the Treas-
urer of that state, for the faithful discharge of a certain officer’s
duties under the laws of New Hampshire, when the remedy sought
was one prescribed only by the laws of New Hampshire, and not
in accordance with the common law.?]

[§ 625 b. Although the penal laws of every country are in their
nature local, yet an offence may be committed in one sovereignty
in violation of the laws of another, and if the offender be after-
wards found in the latter state, he may be punished according
to the laws thereof, and the fact that he owes allegiance to another
sovereignty, is no bar to the indictment. Thus, in a late case in
New York,’ a citizen of Ohio had there executed a fraudulent
paper addressed to citizens of New York, which had been pre-
sented to the latter in New York, by an innocent agent, and the
fraud was there completed. The defendant being afterwards in-
dicted in New York for the offence, pleaded that he was a natural-
born citizen of Ohio, and owed allegiance to that state; that he
had never been within the state of New York, and that the fraud-
ulent paper was executed in Ohio. It was determined this was
no answer to the indictment. ]

[* §625c. There are some analogous cases, which have some-
times exercised the ingenuity of commentators on criminal law, as
to how far one may be punishable for being accessory before the
crime, but within a foreign jurisdiction. The instance put by Mr.
Justice Bronson in the case last cited, of a British subject, stand-
ing on British soil in Canada, and shoplibe a man in one of the
adjoining American states, or by other means purposely causing.
his death, is one not admitting of much question. And when one,

Henry v. Sargeant, 13 New Hamp. R. 321.

* Pickering v. Fisk, 6 Vermont R. 102, where the subject of the lex fori and
the lex loci, is ably examined by Mr. Justice Phelps. In Hunt v. Pownal, 9 Ver-
mont, 411, it was intimated that an action could not be maintained in the courts
of that state, against a town situated in a foreign state, for an injury arising from

a defective highway.
* Adams v. The People, 1 Comstock, R. 173.

»
§ 625 a-626.] PENAL LAWS AND OFFENCES. 817

while remaining in a foreign state, through some innocent volun-
tary agent, or through the mail, or any other involuntary, or un-
conscious agency, passes forged paper, or commits any other pun-
ishable offence, in another state, it has always been regarded the
same as if the guilty agent were ‘present. If it were not so, there
could be no punishment inflicted upon any one; since the inno-
cent agent could not be punished, nor could the guilty agent be
punished, except where the offence is actually consummated. But
where that is effected by a guilty party, who is alone responsible
as principal in the offence, there is more difficulty in saying, that
a mere accessory before the fact, but who never came within the
jurisdiction where the offence is committed, could be there dealt
with for his instrumentality in bringing about the commission, and
for what he did in the foreign jurisdiction. ]

§ 626. There is another point, which has been a good deal dis-
cussed of late ; and that is, whether a nation is bound to surrender
up fugitives from justice, who escape into its territories, and seek
there an asylum from punishment. The practice has, beyond
question, prevailed, as a matter of comity, and sometimes of
treaty, between some neighboring states, and sometimes, also, be-
tween distant states, having much intercourse with each other.1
Paul Voet remarks, that under the Roman Empire this right of
having a criminal remitted for trial to the proper forum criminis
was unquestionable. It resulted from the very nature of the uni-
versal dominion of the Roman laws. Jure tamen civili notandum,
. remissionibus locum fuisse de necessitate, ut reus ad locum, ubi de-
liquit, sic petente judice, fuerit mittendus, quod omnes judices uni
subessent imperatort. Et omnes provincie Romane unite essent
accessorié, non principaliter.2, But he remarks, that according to
the customs of almost all christendom, (except Saxony,) the re-
mitter of criminals, except in cases of humanity, is not admitted ;
and, when done, it is to be upon letters rogatory, so that there
may be no prejudice to the local jurisdiction. Moribus nihilomi-
nus (non tamen Saxonicis) totius fere Christianismi, nist ex hu-
manitate, non sunt admisse remissiones. Quo casu, remitlenti
magistratut cavendum per litteras reversoriales, ne actus jurisdic-
tioni remittentis ullum pariat prejudicium. Id quod etiam in nostris

* See Vattel, B. 2, ch. 6, § 76. :
2 P. Voet, De Stat. $11, ch.1, n. 6, p. 297, edit. 1714; Id. p. 358, edit.
1661.
CONFL. 69
818 CONFLICT OF LAWS. [ou. Xvi.

Provinctis Unitis. est receptum. And he adds, neque enim Pro-
vincie Federale uni supremo parent ;? a remark strictly applicable
to the American states. It is manifest, that he treats it purely as
a matter of comity and not of national duty.

§ 627. It has, however, been treatéd by other distinguished
jurists, as a strict right, and as constituting a part of the law and
usage of nations, that offenders charged with a high crime, who
have fled from the country in which the crime has been commit-
ted, should be delivered up and sent back for trial by the sov-
ereign of the country, where they are found. Vattel manifestly
contemplates the: su¥ject in this latter view, contending that it is
the duty of the government, where the criminal is, to deliver him
up, or to punish him; and if it refuses so to do, then it becomes
responsible, as in some measure an accomplice inthe crime.? This
opinion is also maintained with great vigor by Grotius, by Heinec-
cius, by Burlemaqui, and by Rutherforth.t There is no inconsid-
erable weight of common-law authority on the same side; and
Mr. Chancellor Kent has adopted the doctrine in a case which
called directly for its decision.®

§ 628. On the other hand, Pufendorf explicitly denies it as a
matter of right.6 Martens is manifestly of the same opinion, con-
tending that, with respect to crimes committed out of his territo-
ries, no sovereign is obliged to punish, the criminal who seeks
shelter in his dominions, or to execute a sentence pronounced
against his person or his property.’ Lord Coke expressly main-
tains, that the sovereign is not bound to surrender up fugitive

1 Tid.

2 Id. See also Matthzi, Comm. de Criminibus, Dig. Lib. 48, tit. 14, 1. 1, § 3.

® Vattel, B. 2, ch. 6, § 76.

* Grotius de Jure Belli et Pacis, ch. 21, § 2, 3,4,5; Heineccii Preelect. in Grot.
h. t.; Burlemaqui, Pt. 4, ch. 3, § 23 to § 29, p. 258, 259, edit, 1763 ; Rutherf. Inst.
B. 2, ch. 9, § 12. :

* In the matter of Washburn, 4 Johns. Ch. R. 106; 1 Kent, Comm. Lect. 2, p.
36, 3d edit. ; Rex v. Hutchinson, 3 Keble, 785; Rex v. Kimberley, 2 Strange, R.
848 ; East India Company v. Campbell, 1 Ves. sen. 246; Mure v, Kaye, 4 Taun-
ton, R. 34, per Heath, J.; Wynne’s Eunomus, Dialog. 3, 67; Lundy’s Case, 2
Vent. R. 314; Rex v. Bell, 1 Amer. Jurist, 287. :

® For this reference to Pufendorf’s opinion, I must rely on Burlemaqui (Pt. 4,
ch. 3, § 23, 24), not having been able to find it in his Treatise on the Law of Na-
tions. The only reference to the point, which I have met with in that work, is in
B. 8, ch. 8, § 23, 24.

7 Martens, Law of Nations, B. 3, ch. 8, § 23.
§ 626 -— 628 a.] PENAL LAWS AND OFFENCES. 819

criminals from other countries, who have sought a shelter in his
dominions.’ Mr. Chief Justice Tilghman has adhered to the same
doctrine in a very elaborate judgment.2 The reasoning of Mr.
Chief Justice Parker, in a leading case,’ leads to a similar conclu-
sion ; and it stands indireetly confirmed by the opinion of a major-
ity of the judges of the Supreme Court of the United States in a
very recent case of the deepest interest.*

[* § 628 a. The question of surrendering fugitives from justice,
from the Provinces bordering upon the different American states,
is one: that for many years, while no treaty powers existed upon
the subject, became of the greatest importance., It was at first
attempted to induce the national government to act in the matter.
But this they uniformly declined to do. It therefore became mat-
ter of mere discretion between the executives of the coterminous
states, to be settled in each particular instance according to cir-
cumstances. Jt was never supposed, until the decision in the case
of Holmes, that the general government, while ‘declining to act
themselves, and while no legislative provisions upon the subject
existed, whereby they were required to act, or could afford any
adequate redress, would presume to interpose any obstacle in the

1 3 Coke, Inst. 180.

* Commonwealth v. Deacon, 10 Serg. & R. 125; 3 Story, Comm. on Constit.
§ 1802. See, also, Merlin, Répertoire, Souvérainté, § 5, n. 5, 6, p. 879 to p.

” 382.

® Commonwealth v. Green, 17 Mass. R. 515, 540, 541, 546, 547, 548,

* Holmes v. Jennison, 14 Peters, R. 540; Holmes, ez parte, 12 Verm. R. 631.
— Mr. Justice Barbour maintained the same opinion in the case of Jose Ferreira
de Santos, 2 Brock. R. 493. Most of the reasoning on each side will be found
very fully collected in the case of The matter of Washburn, 4 Johns. Ch. R. 106;
that of Commonwealth v. Deacon, 10 Serg. & Rawle, 125; Holmes v. Jennison,
14 Peters, R. 540 to 598; and that of Rex v. Ball, 1 Amer. Jurist, 297. The
latter case is the decision of Mr. Chief Justice Reid of Canada. See In re Jo-
seph Fisher, Stuart’s Can. R. 245. See, also, 1 Amer. State Papers, 175; Com-
monwealth v. De Longehamps, 1 Dall. 111, 115; United States v. Davis, 2 Sum-
ner, R, 482, 486. The subject respecting the restitution by our government or
extradition of fugitives from justice from a foreign country, has been brought at
various times before our government. ‘The various cases, and the opinions of the
law officers, will be found collected in the Executive Documents, House of Repr.
No. 199, 26th Congress, 1st Session, 1840 ; Report of Secretary of State, of May,
1840. Mr. Wirt, in his able opinions as Attorney-General, denies the right and
duty. [As to the mode of ssid and practice upon a warrant for a fugitive
from justice, see Smith, ex parle, 8 McLean, 121. In re Metzger, 5 New York
Legal Obs. 83; 1 Barb. 248; 5 How. 176; In re Hayward, 1 Sandf. 701.]
820 CONFLICT OF LAWS. [cH. XVI

way of the states disposing of such escaped offenders, in any way
they might deem proper. But while all this was conceded by the
Supreme Court at Washington ; and also that it was entirely com-
petent for the states, under their general powers, to regulate their
own police, to “remove from their territory every description
of offenders who in the judgment of the legislature are dangerous
to the peace of the state’; it seemed to them, that the fact of ex-
pelling a murderer or robber, in such a direction, and in such a
manner, as to secure his apprehension and punishment in the
province from which he escaped, and where he had been guilty of
the offence, amounted to “entering into an agreement or compact
with a foreign power.” It is certain, that this practice, which ex-
isted for many years, by a kind of courtesy between the governors
of the coterminous provinces and states, was never supposed to
infringe this or any other provision of the United States Constitu-
tion, or to interfere, in any degree, with the international relations
of the two countries, until after the decisions in the case of Holmes.
Since that, we suppose, the question has been regarded as one ex-
clusively under the control of the national sovereignty. It seems
a matter of great regret, that the national government should not
either have provided some general, permanent mode of action
upon this point, or else have been content to leave it, where
Mr. Justice Baldwin placed it in his opinion, among the police
powers of the several states. ]
§ 628 a, 629.] EVIDENCE AND PROOFS. 821

CHAPTER XVII.

EVIDENCE AND. PROOFS.

2

*

[* § 629. The law which governs in regard to evidence and proofs.
§ 630. This question may arise in various modes.
§ 630 a. Presumptions of fact governed by lex fori.
§ 630 b. Competency of evidence governed by lex rei site, &c.
§ 631. Contracts must be executed according to lex loci contractus.
§ 632, 632 a, The formalities of a contract governed by Jex loci ; the proof of them by
lex fori.
§ 633, 634. Subject further discussed by foreign jurists.
§ 634 a. Matters of evidence strictly pertain to procedure.
§ 635. Embarrassing cases stated.
$635 a. Questions affecting the testimony of colored persons.
§ 635 6. Discussion of the subject by Lord Brougham.
§ 635 c. Notarial copies of contracts not admissible, as such, in England.
" § 635 d, 635 e.’ The kind and degree of evidence governed by lex fori.
§ 636. Wills of personalty proved actording to law of domicil.
§ 637. Foreign Jaws must be proved as facts. ,
§ 637 a. Courts will presume the existence of general principles of universal law,
but not the statute law.
§ 638, 638 a. Testimony as to foreign law addressed to the court, but where conflict-
ing, referred to jury.
§ 639. Best attainable proof required.
§ 640. Written laws proved by duly authenticated copies.
' § 641. This must be done by great seal of the state, or the oath of a witness.
§ 641 a. Authorized editions of public laws sufficient. ‘
. § 642. Unwritten law proved by experts.
§ 643. How the seal of foreign courts authenticated.
§ 644. Congress prescribes the mode of authenticating state records and other pro-
ceedings. .
§ 645. Conclusion.

§ 629. We come in the last place to the consideration of the
operation of foreign laws in relation to evidence and proofs. And,
here, independently of other more complicated questions, two of a
very general nature may arise. In the first place, what rule is to.
prevail, as to the competency or incompetency of witnesses? Is
the rule of the law of the country where the transaction to which
the suit relates, had its origin, to govern, or the law of the country
where the suit is brought? In the next place, what is the rule
which is to prevail in the proof of written instruments? In other
words, in what manner are contracts, instruments, or other acts
made or done in other countries to be proved? Is it sufficient to

69 *
822 CONFLICT OF LAWS. _  [eH. XvIL

prove them in the manner and by the solemnities and proofs which
are deemed sufficient by the law of the place where the contracts,
instruments, or other acts, were executed ? ? Or is it necessary to
prove them in the manner and according to the law of the place
where the action or other judicial proceeding is instituted ?

§ 630. Various cases may be put to illustrate these questions.
A contract or other instrument is executed and recorded before a
notary public in a foreign country, in which by law a copy of the
contract or other instrument certified by him is sufficient to estab-
lish its existence and genuineness; would that certificate be ad-
missible in the courts of common law of England or America to
establish the same facts ?} Again ; persons who are interested,
and even parties in the very suit, are in some foreign conntcieg
admissible witnesses to prove contracts, instruments, and other
acts, material to the merits of the suit; would they be admissible
as witnesses in suits brought in the courts of common law in Eng-
land and America, to prove the like facts in relation to contracts,.
instruments, or other acts, made or done in such foreign countries,
material to the suit? These are questions more easily put, than
satisfactorily answered upon principles of international jurispru-
dence.

§ 630 a. Similar considerations may arise in respect to the rules
as to presumptions de facto and de jure, which may be different
in different countries. Thus, for example, the title to movable
property may depend upon the question of survivorship of one of
two persons, who both died under the*like circumstances; as, for
example, on board a ship which foundered at sea, or was totally
lost with all her crew by shipwreck. Now, different countries
may, and probably do, adopt different presumptions, as to the sur-
vivorship in such calamitous circumstances, founded upon consid-
erations of the age, or sex, or other natural or even. artificial
grounds of belief or presumption.2 What rule, then, is to be
adopted? The law of the place of domicil of the parties, or the
law of the forum where the suit is instituted? On one occasion,
when a question of this very nature was before him, a late learned

1 See Mascardus, De Probat. Vol. 2, Conclus. 927, n. 4 to n. 8, p- 336, [455,
edit. 1731.]

2 See Fearne’s Posthum. Works, 38; The Case of Gen. Stanwix and Daugh-
ter; Code Civil of France, art. 720, 721, 722; 4 Burge, Comm. on Col. and For.
Law, Pt. 1, ch. 3,'§ 5, p. 152, 153.
§ 629 - 631.] EVIDENCE AND PROOFS. 823

judge (Sir William Grant) said: “There are many instances in
which principles of law have been adopted from the civilians by
our English courts of justice ; but none that I know of, in which
they have adopted presumptions of fact from the rules of the civil
law.” 1

§ 630 6. There are certain rules of evidence which may be af-
firmed to be generally, if not universally, recognized. Thus, in
relation to immovable property, inasmuch as the rights and titles
thereto are generally admitted to be governed-by the law of the
situs, and as suits and controversies touching the same ea directo
properly belong to the forum of the sitws, and not elsewhere, it
would seem a just and natural, if not an irresistible conclusion,
that the law of evidence of the situs touching such rights, fitles,
suits, and controversies, must and ought exclusively to govern in
all such cases.2 So, in cases relating to the ‘due execution of wills
and testaments of immovables, the proofs must and ought to be
according to the law of the situs. So in respect to the due execu-
tion of wills and testaments of movables, as they are governed by
the law of the domicil of the testator, the proofs must and ought
to be according to the law of his domicil. By the present law of
England, a will or testament of movable property, in order to be
valid, must be executed in the presence of two witnesses. If,
then, an Englishman, domiciled in England, should make his will
in England, in the presence of one witness only, that will could
not be admitted to proof in Scotland to govern movable property
situate there. The like rule would apply to a case where the will
was executed in the presence of two witnesses, both or either of
whom were incompetent by the law of England, although compe-
tent by the law of Scotland.

§631. Similar principles may well be applied to many other
cases. There are certain formalities of proof, which are required
by the laws of foreign countries in regard to contracts, instru-
ments, and other acts which are indispensable to their validi-
ty there; and these are therefore held to be of universal obli-
gation ; and must be duly proved in every foreign tribunal, in
which they are in litigation, before any right can be founded on
them. An illustration of this doctrine may be drawn from the

1 Mason v. Mason, 1 Meriv. R. 308, 312.
1 See Tulloch v. Hartley, 1 Y. & C. New Cas. in Ch. 114, 115.

* Yates v. Thomson, 3 Clark & Finnell. 544, 576, 577.
‘See Trasher v. Everhart, 3 Gill & Johns. R. 234, 242; ante, § 260 to § 263.
824 CONFLICT OF LAWS. » [OH. XVII

known rule of the common law, that a bill of exchange upon its
dishonor must be protested before a notary; and if not proved to
be so protested, no remedy can be had against the drawer or in-
dorsers.t Another illustration may be drawn from the registration
of deeds and other instruments, which cannot be given in evidence
unless proved to be duly registered according to the lex loct rei
site. Another illustration may be drawn from cases of contract
under the statute of frauds, which must be in writing, and must
state a good consideration, in order to be valid in point of legal
obligation or evidence.” Another illustration may be drawn from
the known doctrine as to stamps, by which it is held, that no in-
strument can be given in evidence unless it is properly stamped.®
In all these cases the proper proofs must doubtless be given in
conformity with the local law. And if the proofs are given in
the mode which the local law requires, there is some difficulty in
asserting that such proofs ought not to be deemed everywhere a
full authentication of the instrument.

§ 632. Boullenois divides the formalities of acts into several
classes ; those which are required before the act, que requiruntur
ante factum; those which are required at the time of the act, que
requiruntur in facto; and those which are required afterwards,
que requiruntur ex post facto. But a more important distinction
in his distribution is of the formalities at the time of the act,
which he denominates the formalities of proof, (formalites pro-
bantes) aud those which are substantial and intrinsic formalities.”
Among the former he includes those which respect the number of
witnesses who are to witness the execution of the act, their age,
and quality, and residence, and the date and place of the act.
And here he holds, that as to the formalities of proof the maxim
applies: Solemnitates testimoniales non sunt in potestate contra-
hentium, sed in potestate juris8 Solemnitates sumende sunt ex
consuetudine loci, in quo res et actus geritur9

* See Bryden v. Taylor, 2 Harr. & Johns.,396; ante, § 260 a, § 360, 361; Wil-
cox v. Hunt, 13 Peters, R. 378, .

2 Ante, § 262, 262 a.

5 Ante, § 260.

* Ante, § 260, 260 a, § 860, 361, § 368 to § 373.

5 See Ersk. Inst. B. 3, tit. 2, § 39, 40.

* 1 Boullenois, Observ. 23, p. 491.

7 Thid. p. 492, 498, 506, &c.

" Ibid. p. 492, 493; ante, § 260.

® Ibid.
§ 631 — 683.]- EVIDENCE AND PROOFS. 825

~ § 682 a. Mascardus holds a similar opinion; and says, that an
act, executed before a notary in any place, if duly executed ac-
cording to the law of that place, and valid as a notarial act, ought
to be held of the same obligation and validity in every other place.
Unde jus probationis, ortum a principio, non tollitur mutatione
loci. Paul Voet appears to entertain a different opinion ; and he
puts the case, whether, if an instrument were executed in one
place before a notary, who by the lex loci is competent for that
purpose, the validity or force of that instrument would extend to
another place, where the notary would be deemed incompetent,
so that he could not there give public authenticity to the instru-
ment. Quid si tamen in uno loco factum sit instrumentum coram
notario, qui ibidem est habijis, an extendetur vis illius instrumenti
ad alium locum, ubi censetur inhabilis, sie ut publicum ibidem ne-
queat facere instrumentum? After giving the opinions of several
jurists in the affirmative, he proceeds to give his own to this
effect ; that it is not so much a question of solemnities as of the
efficacy-of proof, which, although it-may be sufficient in one place,
may not be so everywhere ; and that the tribunal of one country
cannot give such validity and force to any instrument, as that it
shall have operation elsewhere.?

§ 633. Paul Voet, also, in another place, speaking upon the
subject of the operation of the lex fori, as to the modes of proceed-

* Mascard. De Probat. Conclus. 927, Tom. 2, p. 336, 337, [454, 455, edit. 1731,]
n.4 ton. 14; ante, § 260 a.

* P. Voet, de Stat. § 10, ch. 1, n. 11, p. 287, 288, edit. 17153; Id. p. 347, edit.
1661. ;

® P. Voet, de Stat. § 10, ch. 1, n. 11, p. 287, 288, edit. 1715; Id. p. 347, edit.
1661. His language is: Quid si tamen’ in uno loco factum sit instrumentum co-
ram notario, qui ibidem est habilis, an extendetur vis illius instrumenti, ad alium
locum, ubi censetur inhabilis, sic ut publicum ibidé nequeat facere instrumentum ?
Sunt qui id adfirmant. Quasi loci consuetudo, dans robur scripture, etiam obti-
neat extra territorium. Sunt qui id ideo adfirmant, quod non tam de habilitate
et inhabjlitate notarii laboremus, quam de solemnibus. Quod si verum foret, res
extra dubitationis aleam esset collocata. Verum, ut quod res est dicam existu- -
mem hic agi, non tam de solemnibus, quam probandi efficacia; que licet in uno
loco sufficiens, non tamen ubique locorum ; quod judex unius territorii nequeat vires
tribuere instrumento, ut alibi quid operetur. Hine etiam mandatum ad lites, co-
ram notario et testibus hic sufficienter factum, non tamen erit validum in Gelrie
partibus, ubi notarii non admittuntur, ut coram lege loci, hie confectum esse
oporteat, quo in Geldria sortiatur effectum. Quemadmodum enim personam non
subditam, non potest quis alibi inhabilitare ; ita nec personam subditam potest
alibi facere habilem. P. Voet, ubi supra.
826 CONFLICT OF LAWS. [cH. XVIL

ing in suits, uses the following language. Si de probationibus, et
quidem testibus ; sic eas adhibebit, sic examinabit hosce, prout exi-
git forum judicis, ubi producuntur. Si de instrumentis ; sic exhi-
benda, sic edenda, ut fert loci statutum, ubi exhibentur, vel eduntur+
The generality of these expressions must lead us to the conclusion,
that he was of opinion, that the modes of proof and the law of
evidence of the lex fori ought to regulate the proceedings in all
suits, whether these suits arose from foreign contracts, or instru-
ments, or other acts, or not. But perhaps he may have intended
to give them a more limited application.?

§ 634. Bouhier states a case, where a suit was brought in
France by an Englishman against another person for money sup-
posed to be lent by him to the latter ; and he offered proof thereof.
by witnesses. It was objected, that by the Ordinance of Moulins
(art. 54), such parol proof was inadmissible. But the court ad-
mitted it upon the ground, that the law of England, where the
contract was made, admitted such parol proof, and therefore it
was admissible in a controversy on the contract in France: Bou-
hier holds. the decision to be correct, if the contract was made, as
he supposes it to have been, in England.’

§ 634.4. Upon this subject it is not perhaps possible to lay down
any rules which ought to be, or even which can be applied to all
cases of evidence. Generally speaking, it seems true that neither
the lex loci contractéis nor the lex loci domicilii, is applicable to
the course of procedure; but the course of procedure ought to
be according to the law of the forum, where the suit is instituted.‘

1 P, Voet, de Stat. § 10, ch. 1, n. 9, 10, p. 287, edit. 1715; Id. p. 347, edit.
1661.
? Erskine, in his Institutes, says, that in suits in Scotland with foreigners upon
obligations made in a foreign country, they may prove payment or extinguish-
ment lege loci. If, for instance, the law of the foreign country allows the payment
of a debt constituted by writing to be proved by witnesses, that manner of proof
will also be allowed by the Scottish courts as sufficient for extinguishing such debt,
although by the Scottish law obligations, formed by writing, are not extinguisha-
ble by parol evidence. Ersk. Inst. C. 8, tit. 5, § 7. This seems a mixed case of
the law of the place governing as to the discharge of contracts, and also of the
mode of proof of the discharge.

* 1 Bouhier, Cout. de Bourg. ch. 21, § 205, p. 415. See also Strykius, Tom. 2,
Diss. 1, ch. 38, § 18 to § 25, p. 21, 27.

* See Yates v. Thomson, 3 Clark and Finnell. R. 577, 580; Don v. Lippmann,
5 Clark & Finnell. R. 1, 14, 15,16; Bain v. Whitehaven & Furness Juction R.
Co., 8 House of Lords Cases, 1, 19.
§ 633 - 634 a.] EVIDENCE AND PROOFS. 827

And perhaps it may be stated as a general truth, that the admis-
sion of evidence and the rules of evidence are rather matters of
procedure than matters attaching to the rights and titles of parties
under contracts, deeds, and other instruments; and therefore
they are to be governed by the law of the country where the court
sits. But, then, (as has been well observed by an eminent judge)
in all questions of international jurisprudence it is easy to say
how things are here and there when there is very great difference
between the points; but when we come to the confines, and when
one province runs into the other, then arises the difficulty, and
then we get inter apices juris.1 There may be cases which at

1 Lord Brougham, in Yates v. Thomson, 3 Clark & Finnell. 577, 580.— Lord
Brougham(‘on this occasion said (it being a case where a question arose in}Scotland
upon the interpretation of a will made in England): “ It is on all hands admitted,
that the whole distribution of Mr. Yates’s personal estate must be governed by the
law of England, wheré he had his domieil through life, and at the time of his de-
cease, and at the dates of all the instruments eceautad by him. Had he died in-
testate, the English statute of distributions, and not the Scotch law of succession
in movables would have regulated the whole course of the administration. His
written declarations must, therefore, be taken with respect to the English law. I
think it follows from hence, that those declarations of intention, touching that
property, must be construed as we should construe them here by our principles of
legal interpretation. Great embarrassment may no doubt arise from calling upon
a Scotch court to apply the principles of English law to such questions, many of
those principles being among the most nice and difficult known in our jurispra-
dence. The Court of Session may, for example, be required to decide, whether
an executory devise is void as being too remote, and to apply, for the purpose of
ascertaining that question, the criterion of the gift passing or not passing, what
would be an estate in the;realty, although in the language of Scotch law there is no
such expression as executory devise, and within the knowledge of Scotch lawyers
no such thing as an executory estate tail. Nevertheless, this is a difficulty, which
must of necessity be grappled with, because in no other way can the English law
be applied to personal property situated locally within the jurisdiction of the
Scottish forum ; and the rule which requires the law of the domicil to govern suc-
cession to such property could in no other way be applied and followed out. Nor
am IT aware that any distinction in this respect has ever been taken between testa-
mentary succession and succession ab intestato, or that it has been held either
here or in Scotland that the court’s right to regard the foreign law was excluded,
wherever a foreign instrument had been executed. It is, therefore, my opinion,
that in this as in other cases of the like description, the Scotch ‘court must inquire
of the foreign law as a matter of fact, and examine such evidence as will show
how in England such instruments would be dealt with as to construction. I give
this as my opinion upon principle, for I am not aware of the question ever having
received judicial determination in either country. But here I think the import-
ing of the foreign code (sometimes incorrectly called the comitas) must stop.
828 CONFLICT OF LAWS. [cCH. XVII.

once partake of the nature of the law. of evidence, and also of
the substance of the weightier matters of international jurispru-
dence.

What evidence the courts of another country would receive, and what reject, isa
question into which I cannot at all see the necessity of the courts of any one coun-
try entering. Those principles, which regulate the admission of evidence, are the
rules, by which the courts of every country guide themselves in all their inquiries.
The truth with respect to men’s actions, which form the subject-matter of their
inquiry, is to be ascertained according to a certain definite course of proceeding,
and certain rules have established, that in pursuing this investigation some things
~ shall be heard from witnesses, others not listened to; some instruments shall be
inspected by the judge, others kept from his eye. This must evidently be the
same course, and governed by the same rules, whatever be the subject-matter of
investigation. Nor can jit make any difference, whether the facts, concerning
which the discussion arises, happened at home or abroad; whether they related
toa foreigner domiciled abroad, or a native living and dying at home. As well
might it be contended, that another mode of trial should he adopted, as that an-
other law of evidence should be admitted in such cases. Who would argue, that
in a question like the present the Court of Session should try the point of fact by
a jury according to the English procedure, or should follow the course of our dis-
positions or interrogatories in courts of equity, because the testator was a domi-
ciled Englishman, and because those methods of trial would be applied to his case,
were the question raised here? The answer is, that the question arises in the
Court of Session, and must be dealt with by the rules which regulate inquiry.
there.‘ Now, the law of evidence is among the chief of these rules; nor let it be
said, that there is any inconsistency in applying the English rules of construction
and the Scotch ones of evidence to the same matter, in investigating facts by one
law and intention by another. The difference is manifest between the two inqui-
ries: for a person's meaning can only be gathered from assuming, that he intend-
ed to use words in the sense affixed to them by the law of the country he belonged
to at the time of framing his instrument. Accordingly, where the question is, what
a person intended by an instrument relating to the conveyance of real estate sit-
uated in a foreign country, and where the lex loci rei site must govern, we decide
upon his meaning by that law, and not by the law of the country where the deed
was executed, because we consider him to have had that foreign law in his con-
templation. The will of April, 1828, has not been admitted to probate here; it
has not even been offered for proof, so that there is no sentence of any court of
competent jurisdiction upon it either way. But in England it would never be
received in evidence nor seen by any court; neither would it have been seen if
it had been proved ever so formally. Our law holds the probate as the only evi-
dence of a will of personalty, or of the appointment of executors; in short, of any
disposition which a testator may make, unless it regards his real estate. Can it
be said, that the Scotch court is bound by this wile of evidence, which, though
founded upon views of convenience, and for anything I know well devised, is yet
one which must be allowed to be exceedingly technical, and which would exclude

* Ibid. And see Pickering v. Fisk, 6 Vermont R. 108, Phelps, J.
§ 684 a, 635.] EVIDENCE AND PROOFS. 829

§ 635. There are very few traces to be found in the reports of
the common law of any established doctrines on this subject. We

from the view of the court a subsequent will, clearly revoking the one admitted
to probate? The English courts would never look at this will, although proof
might be tendered, that it had come to the knowledge of the party on the eve of
the trial. A delay might be granted to enable him to obtain a revocation of the
probate of the former will. It is absurd to contend, that the Court of Session shall
admit all this technicality of procedure into itd course of judicature,.as often as a
question arises upon the succession of a person domiciled in England. | Again,
there are certain rules just as strict, and many of them not less technical, govern-
ing the admission of parol evidence with us. Can it be contended, that, as often
as an English succession comes in question before the Scotch court, witnesses are
to be admitted or rejected upon the practice of the English courts; nay, that ex-
amination and cross-examination are to proceed upon those rules of our practice,
supposing them to be (as they may possibly be) quite different from the Scotch
rules? This would be manifestly a source of such inconvenience as no court ever
could get over. Among other embarrassments equally inextricable there would
be this; that a host of English lawyers must always be in attendance on the Scotch
courts, ready to give evidence, at a moment’s notice, of what the English rules of
practice are touching the reception or refusal of testimony, and the manner of ob-
taining it; for those questions, which, by the supposition, are questions of mere
fact in the Scotch courts, must arise unexpectedly during each trial, and must be
disposed of on the spot in order that the trial may proceed. The case which I
should however put as quite decisive of this matter, comes nearer than any other
to the one at bar, and it may with equal advantage to the elucidation of the argu-
ment, be put as arising both in an English and in a Scotch court. By our Eng-
lish rules of evidence no instrument proves itself unless it be thirty years old, or
is an office copy, authorized by law to be given by the proper officer, or is the
London Gazette, or is by some special Act made evidence, or is an original record
of a court under its seal, or an exemplification under seal, which is quasi a record.
By the Scotch law all instruments prepared and witnessed according to the pro-
visions of the Act of 1681 are probative writs, and may be given in evidence with-
out any proof. Now, suppose a will of personalty or any other instrument relat-
ing to personal property, attested by two witnesses and executed in England ac-
cording to the provisions of the Scotch Act, as tendered in evidence before the
Court of Session ; it surely never will"be contended that the learned judges, on
being satisfied, that the question relates to English personal succession, ought
straightway to examine what is the English law of evidence, and to require the
attendance of one or other of the subscribing witnesses, where the instrument is
admissible by the Scotch law as probative. Of this Ican have no doubt. But
suppose the question to arise in England, and that a deed is executed in Scotland
according to the Act of 1681, by one domiciled here, would any court here receive
it as proving itself, being only a year old, without calling the attesting witnesses ;
it would have a strange effect to hear the circumstance of there being two sub-
scribing witnesses to the instrument, which makes it prove itself in the Parliament
House of Edinburgh, urged in Westminster Hall as the ground of its admission,
without any parol testimony. The court would inevitably answer, ‘ two witnesses ;
CONFL, 70
830 CONFLICT OF LAWS. (cH. xv.

have already seen in regard to witnesses generally, that their com-
petency is governed in common cases by the /ex fori... But, sup-
pose the only witness to a contract, written or verbal, was incom-
petent on account of interest by the common law, but competent
by the law of the place of the contract; in a suit in a tribunal of
the common law on the contract, ought his testimony to be re-
jected? Again, suppose that the books of account of merchants,
which (as is well known?) are by the laws of some states admis-
sible, and by those of other states inadmissible, as evidence, are
offered in the forum of the latter to establish debts contracted in
the former; ought they to be rejected ? °.

§ 635 a. Cases, vice versdé, may easily be put, which will pre-
sent questions quite as embarrassing. Thus, for example, let us
suppose the case of a crime, committed on board an American
ship on the high seas by a white man, or upon a white man, and
the principal witnesses of the offence are black men, either free
or slaves; and suppose, (as is or may be the fact,) that in the
slave-holding states black men are competent witnesses only in
cases in which black men are parties, and not in cases where white
men are parties; and in the non-slaveholding states. black men
are in all cases competent witnesses. If the offender is appre-
hended and tried for that offence before a court of the United
States in a slave-holding state, would the black men be witnesses
or not? If not there, would they be witnesses in the case, if the
trial were in a non-slaveholding state? In other words, will the

— then, because there are witnesses, it cannot be admitted, but they must, one or
other of them be called to prove it.’ The very thing that makes the instrument
prove itself in Scotland, makes it in England necessary to be proved by witnesses.
Ihave, therefore, no doubt whatever, that the rules of evidence form no part of
the foreign law, according to which you are to proceed in disposing of English
questions arising in Scotch courts.”

1 Ante, § 621 to § 623.

* See Pothier on Oblig. P. 4, ch. 1, art. 2, § 4, n. 719; Cogswell v. Dolliver, 2
Mass. R. 217; 1 Starkie on Evid. Pt. 2, § 130, 131; Strykius, Tom. 7, Diss. 1,
ch. 4, § 5.

* Upon this very point foreign jurists have delivered opposite opinions, as ap-
pears from Hertius, who, however, abstains from giving any opinion on the sub-
ject. 1 Hertii, Opera, De Collis. Leg. § 4, n. 68, p. 152, edit. 1737; Id. p. 214,
edit. 1716; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 3, § 5, p- 153.
Paul Voet thinks they are to be deemed prima facie evidence, but not con-
clusive. P. Voet, De Stat. § 5, ch. 2, n. 9, p. 160, edit, 1715; Id. p: 188, edit.

- 1661. :
§ 635 — 635 c.] EVIDENCE AND PROOFS. 881

rules of evidence in such a case, in the courts of the United
States, depend upon the rules of evidence in the state where the
trial is had? If not, then what rules of evidence are to prevail ?
The answer in the present state of our law cannot be given with
entire confidence, as to its accuracy and universality of adoption.

§ 685 b. Lord Brougham, in a recent case, where the question
was much considered, both as to the law of procedure and the
rules of evidence on foreign contracts, sued in another country,
used the following language: “ No one will contend in terms, that
the foreign rules of evidence should guide us in such cases; and
yet it is not so easy to avoid that principle in practice, if you once
admit, that though the remedy is to be enforced in one country, it
is to be enforced according to the laws which govern another
country. Look to the rules of evidence, for example. In Scot-
land some instruments are probative; in England, until after the
lapse of thirty years, they do not prove themselves. In some
countries forty years are required for such a purpose; in others
thirty are sufficient. How, then, is the law to be ascertained,
‘which is to govern the particular case? In one court there must
be a previous issue of fact; in another there need be no such
issue. In the latter, then, the case must be given up asa question
of evidence. Then come to the law. The question, whether a
parol agreement is to be given up, or can be enforced, must be
tried by the law of the country, in which the law is set in motion
.to enforce the agreement. Again, whether payment is to be pre-
sumed, or not, must depend on the law of that country; and so
inust all questions of the admissibility of evidence; and that’
clearly brings us home to the question on the statute of limita--
tions. Until the act of Lord Tenterden, a parol agreement or
promise was sufficient to take the case out of the statute of limi-
tations; but that has never been the case in Scotland. It is not
contended here, that the practice of England is applicable to Scot-
land, but these are illustrations of the inconvenience of applying
one set of rules of law to an instrument, which is to be enforced
by a law of a different kind.” +

§ 635. In many foreign countries original contracts, deeds,
conveyances, and other solemn instruments are often written in
the public books of notaries public, and executed and registered
and kept there, and are not allowed to be given out to the parties ;

1 Don v. Lippmann, 5 Clark & Finnell. p. 15; Id. p. 17. See Yates v. Thom-
son, 3 Clark & Finnell. 544. a
832 CONFLICT OF LAWS. [cH. XVII.

but certified copies only thereof are delivered to the parties, and
these copies are deemed in such countries admissible evidence in
all suits to establish and prove such original papers and documents,
The question has arisen in England, whether such copies, so cer-
tified, are admissible, either as original, or as secondary evidence
in suits pending in the English courts. It has been held, that they
are not; at least, not without proof, that they were made at the
time of entering and registering the original paper, and in the
presence of the parties, although they were admissible in the coun-
try where the originals were executed. The ground of this de-
cision seems to have been, that the rules of evidence of the foreign
country were not to be followed, but the rules of evidence of Eng-
land; and by the law of England copies of original. documents
were not admissible under such circumstances, unless proved by
some witness, who had compared them with the original, as in
common cases. So, upon the like ground, it has been held, that
copies of a judgment of the Supreme Court of Jamaica, signed by
the clerk thereof, are not admissible evidence in a suit in England,
although such copies would be admissible in Jamaica?

§ 685 d. By the old law of Louisiana, in case the party for-
mally disavowed his signature to an instrument, proof thereof was
required to be made by experts.? In a case, where a written paper
or receipt was executed in the State of Mississippi, and a suit
brought thereon in Louisiana, and the signature was disavowed ;
the question arose, whether the proof of the signature in such a
case was to be made by experts, or might be made by witnesses, as
was the law of Mississippi. The court on that occasion said: * In-
treating of this question it is proper to observe, that we believe it
to be admitted as a principle, in all tribunals, that the lex loci, or
law of the country where the contract is made, ought to govern
in suits commenced in any other country on such contracts; and
it does appear by a law of the partidas, that this principle extends
even to the proof of the contract, expressed in general terms,

1 Brown v. Thornton, 6 Ad. & Ellis, 185.

* Appleton v. Lord Braybrook, 6 Maule & Selw. 34; Black v. Lord Braybrook,
6 Maule & Selw. 89. Ina recent case Vice-Chancellor Bruce held, that a copy
of a deed of real estate in Jamaica, taken from the Registry in Jamaica, in which
it is required to be recorded, was good evidence in Chancery in England in a suit,
where it was pertinent, although it was a copy of a copy, i. e. of the registered
deed, because it would be admissible in evidence in Jamaica, Tulloch v. Hartley,

1 Y. & Coll. New Cas. Ch. 114, 115.
® Code of Louis. 1809, art. 226.
§ 635 c - 636.] EVIDENCE AND PROOFS. 833

which might perhaps be applied to the mode of proving facts, as
well as to the amount of evidence necessary to their verification.
But it is unnecessary to determine this point absolutely, in the
present case, because there is sufficient found in the determination
of the first and second questions, on which to decide against the
opinion of the judge of the District Court.”! From this lan-
guage, it would seem to have been the inclination of the court to
admit the evidence. :

[§ 635 e. This question was much discussed in a very recent
case in the House of Lords, where the rule was fully recognized
and acted upon, that the /ex fori must govern as to the admission
of evidence, and Lord Brougham observed in giving judgment:
“ As to the stipulations of a contract made abroad, our courts are
bound by foreign law, which must be to them a matter of fact.
But it is a totally different thing as to the law of evidence. The
law of evidence is the lex fori which governs the courts. Whether
a witness is competent or not; whether a certain matter requires
to be proved by writing or not; whether a certain evidence proves
a certain fact or not; that is to be determined by the law of the
country where the question arises, where the remedy is sought to
be enforced ; and where the court sits to enforce it.” ?]

§ 636. In regard to wills of personal property made in a foreign
country, it would seem to be almost a matter of necessity to admit
the same evidence to establish their validity and authenticity
abroad, as would establish them in the domicil of the testator; for
otherwise the general rule, that personal property shall pass every-
where by a will made according to the law of the place of the
testator’s domicil, might be sapped to its very foundation, if the
law of evidence in any country, where such property was situate,
was not precisely the same as in the place of his domicil. And,
therefore, parol evidence has been admitted in courts of common
law to prove the manner in which the will is made and proved in
the place of the testator’s domicil, in order to lay a suitable foun-
dation to establish the will elsewhere.®

1 Clark’s Ex’or v. Cochran, 3 Martin, R. 353, 361, 362, See, also, Wilcox v.
Hunt, 13 Peters, R. 378.
* Bain vy. Whitehaven & Furness R. Co., 3 House of Lords Cases, 1,19. And
see Yates v. Thomson, 3 Clark & Finnell. 544.
® De Sobry v. De Laistre, 2 Harr. & Johns. 191, 195. See Yates v. Thomson,
8 Clark & Finnell. 544, 574.
70 *
8384 CONFLICT OF LAWS. _ [cH. XVII

§ 637. Passing from this most embarrassing, and as yet (ina -
great measure) unsettled class of questions, let us consider in
what manner courts of justice arrive at the knowledge of foreign
laws. Are they to be judicially taken notice of? Or, are they to
be proved as matters of fact? The established doctrine now is,
that no court takes judicial notice of the laws of a foreign country,
but they must be proved as facts.1

[* § 637 a.. But it has been held ‘in some of the American states,
that the court will presume, until the contrary is proved, that the
laws of another state are the same as its own, as to contracts re-
lating to personal estate, and as to commercial matters particular-
ly; and that where the common law is known to prevail, it is
construed there as with us, whether as to lands or personal pro-
perty ; but no such presumption will be made as to statute law.
This rule, although somewhat different from the rule generally
‘prevailing upon the subject, has been considerably acted upon, in
the different American states. ]

§ 638. But it may be asked, whether they are to be proved as
facts to the jury, if the case is a trial at the common law, or as
facts to the court? It would seem as facts to the latter; for all
matters of law are properly referable to the court, and the object
of the proof of foreign laws is to enable the court to instruct the
jury, what, in point of law, is the result of the foreign law to be
applied to the matters in controversy before them. The court are,
‘therefore, to decide, what is the proper evidence of the laws of a
foreign country ; and when evidence is given of those laws, the

1? See Mostyn v. Fabrigas, Cowp. 175; Male v. Roberts, 3 Esp. R. 163; Doug-
las v. Brown, 2 Dow & Clark, R. 171; De Sobry v. De Laistre, 2 Harr. & Johns.
R. 193; Trasher v. Everhart, 3 Gill & Johns. R. 234; Brackett v. Norton, 4 Con-
nect. R. 517; Talbot v. Seeman, 1 Cranch, 38; Church v, Hubbart, 2 Cranch,
187, 236, 237; Andrews v. Herriott, 4 Cowen, R. 515, 516, note; Starkie on
Evid. Pt, 2, § 33; Id. § 92; Id. Pt. 4, p. 569; Consequa v. Willings, Peters’s *
Cir, R. 229; Legg v. Legg, 8 Mass. R. 99; Robinson v. Danchy, 3 Barb. 20;
Tyler v. Trabue, 8 B. Monroe, 306; Territt v. Woodruff, 19 Verm. R. 182; Hos-
ford v. Nichols, 1 Paige, R. 220.

[*? Wright v. Delafield, 23 Barb. 498. In Langdon ». Young, 33 Vt. R. 136,
it is said: “ In the absence of all proof, courts assume certain general principles
of law, as existing in all Christian states, as that contracts are of binding obliga-
tion, and that personal injuries are actionable, — that flagrant violations of the
fundamental principles of moral obligation, such as theft and mutder, are regarded
as crimes, and that to accuse one of these crimes, thus exposing him to prosecu-
tion, ignominy, and disgrace, is an actionable slander.”]
§ 687 - 689.] EVIDENCE AND PROOFS. ‘ 835

court are to judge of their applicability, when proved, to the case
in hand! [But the construction given to a foreign statute, in the
‘foreign country, is a question of fact for the jury.2]

[*638 a. We think the general proposition, as stated in this
section, that proof of general laws in a foreign country is addressed
exclusively to the court, will not be found to be confirmed by the
general practice in thoke countries where jury trials prevail. There
is no doubt the courts are to judge of what the law is, its force,
construction, and application to the facts. But where there is any
controversy in regard to the existence of any particular rule of
law, as there more commonly is, when it is referred to the testimony
of experts, the ultimate fact must be referred to the jury, and any
instructions, necessary to be given by the court, must be given
hypothetically. ]

§ 639. As to the manner of proof, this must vary according to
‘circumstances. The general principle is, that the best testimony
or proof shall be produced, which the nature of the thing admits
of; or, in other words, that no testimony shall be received, which
‘presupposes better testimony behind,-and attainable by the party

' De Sobry v. De Laistre, 2 Harr. & Johns. 193, 219. But see Brackett v.
Norton, 4 Connect. R. 517. In Trasher v. Everhart, (3 Gill & Johns. 234, 242)
the court said : “ It is in general true, that foreign laws are facts which are to be
found by the jury. But this general rule is not applicable to a case, in which
foreign laws are introduced for the purpose of enabling the court to determine
whether a written instrument is evidence. In such the evidence always goes in
the first instance to the court, which, if the evidence be clear and uncontradicted,
‘may, and ought to decide, what the foreign law is, and, according to its determi-
nation on that subject, admit or reject the instrument of writing as evidence to

. the jury. It is offered to the court to determine a question of law, — the admis-
sibility or inadmissibility of certain evidence to the jury.. It is true, that if, what
the foreign law is, be a matter of doubt, the court may decline deciding it, and
may inform the jury, that if they believe the foreign law, attempted to be proved,
exists, as alleged, then they ought to réceive the instrument in evidence. On
the contrary; if they should believe, that such is not the foreign law, they should
reject the instrument as evidence. Is not foreign law offered in all cases to in-
struct the court in matters of law, material to the point in issue? Can the court
properly leave it to the jury to find out what the law is, and apply it to the case ?
Lord Mansfield in Mostyn v. Fabrigas, (Cowper, R. 174,) said: ‘The way of
knowing foreign laws is by admitting them to be proved as facts ; and the court
must assist the jury in ascertaining what the law is. In the absence of other
proof, the court will treat the foreign law as being like our law as to liabilities on
contracts and interest.’” Leavenworth v. Brockway, 2 Hill, N. Y. Rep. 201;
Robinson v. Danchy, 3 Barb. 20.

* Holman v. King, 7 Mete. 384.
836 CONFLICT OF LAWS. [cH. XVII.

who offers it. This rule applies to the proof of foreign laws, as
well as of other facts. But to require proof of such laws by such
a species of testimony as the institutions and usages of the foreign
country do not admit of, would be unjust and unreasonable. In
this, as in all other cases, no testimony is required, which can be
shown to be unattainable.?

§ 640. Generally speaking, authenticated copies of the written
laws, or of other public instruments of a foreign government are,
expected to be produced. For it is not to be presumed, that any
civilized nation will refuse to give such copies duly authenticated,
which are usual and necessary for the purposes of administering
justice in other countries. It cannot be presumed, that an appli-
cation to a foreign government to authenticate its own edict or
law will be refused ; but the fact of such a refusal must, if relied
on, be proved. But if such refusal is proved, then inferior proofs
may be admissible? Where our own government has promul-
gated any foreign law or ordinance, of a public nature, as authen-
tic, that may of itself be sufficient evidence of the actual existence,
and terms of such law or ordinance.®

§ 641. In general, foreign laws are required to be verified by
the sanction of an oath, unless they can be verified by some other:
high authority, such as the law respects, not less than it respects
the oath of an individual.* The usual mode of authenticating
foreign laws (as it is of authenticating foreign judgments) is by
an exemplification of a copy under the great seal of a state; or
by a copy proved to be a true copy by a witness, who has examined
and compared it with the original; or by the certificate of an
officer properly authorized by law to give the copy; which certifi-
cate must itself also be duly authenticated.5

[§ 641 a. In many American states, by express statutory enact-
ment, printed copies of the statutes of any other state, purporting
to be published by authority, are admitted as primd facie evidence

? Church v. Hubbart, 2 Cranch, R. 237; Isabella v. Pecot, 2 Louis, Ann. R.
891.

* Church v. Hubbart, 2 Cranch, 237, 238.

* Talbot v. Seeman, 1 Cranch, R. 39.

* Church v. Hubbart, 2 Cranch, R, 287; Brackett v. Norton, 4 Conn. R. 517 ;
Hempstead v. Reed, 6 Conn. R. 480; Dyer v. Smith, 12 Conn, R. 884.

* Church v. Hubbart, 2 Cranch, R. 238; Packard v. Hill, 2 Wend. R, 411;
Lincoln v. Battelle, 6 Wend. R. 475.
§.689 - 641 a.] EVIDENCE AND PROOFS. 837

of such laws ;? and in some states this practice prevails, even
without the authority of a special statute,? while in others, it has
been held that, independent of such provision, foreign written
laws can be proved only by an exemplification properly certified,
and the printed statute-books of such state are not admissible.®
But in a recent case in the Supreme Court of the United States,*

* Maine Rev. Stat. c. 133, s.47; Conn. Rev. Stat. c. 10, s. 131; Comparet v.
Jarnegan, 5 Blackf. 375.

* Emery v. Berry, 8 Foster,,486, and cases cited; Barkman v. Hopkins, 6 Eng-
lish, 157; Lord v. Staples, 3 Foster, 468.

8 Packard v. Hill, 2 Wend. 411; Chanoine v. Fowler, 3 Wend. 173; Church
v. Hubbart, 2 Cranch, 236; State v. Twitty, 2 Hawks, 441; Bailey v. McDowell,
2 Harring. 34; Van Buskirk v. Muloch, 3 Harrison, 184; Brackett v. Norton, 4
Conn, 517; Hempstead v. Reed, 6 Conn. 480.

[* Ennis v. Smith, 14 Howard, 400. Wayne, J. said: “It is true that the ex-
istence of a foreign law, written or unwritten, cannot be judicially noticed, unless
it be proved as a fact, by appropriate evidence. The written foreign law may be
proved by a copy of the law properly authenticated. The unwritten must be
by the parol testimony of experts. As to the matter of authenticating the law,
there is no general rule, except this: that no proof shall be received, ‘ which pre-
supposes better testimony behind, and attainable by the party. They may be
verified by an oath, or by an exemplification of a copy, under the great seal of a
state, or by a copy, proved to be a true copy by a witness who has examined and
compared it with the original, or by a certificate of an-officer, properly authorized,
by law, to give the copy; which certificate must be duly proved. But such modes
of proof as have been mentioned, are not to be considered exclusive of others,
especially of codes of laws and accepted histories of the law of a country. In
Picton’s Case, Lord Ellenborough said: ‘ The best writers furnish us with their
statements of the law, and that would certainly be good evidence upon the same
principle as that which renders histories admissible. There is a case, continued
Lord Ellenborough, in which the History of the Turkish Empire, by Cantemir,
was received by the House of Lords, after some discussion. I will, therefore, re-
ceive any book that purports to be a history of the common law of Spain.’ B.
N. P. 248, 249; 30 How. St. Tr. 492; 2 Phil. Ev. 123; 1 Salk. 281; Morris v.
Harmer, 7 Pet. 554; 3 Cary, 178; 11 Clark & Fin. 114; Sussex. Peerage Cases,
8 Wend. 173. Lord Tenterden, in Lacon v. Higgins, (3 Stark. Rep. 178,) ad-
mitted a copy of the Code Civil of France, produced by the French Consul, who
stated that it was an authentic copy of the law of France, upon which he acted
in his office, and that it was printed at the office for printing the laws of France,
and would be acted upon in the French courts. In the Sussex Peerage Case,
Lord Campbell said: ‘The most authentic form of getting at foreign law, is to
have the book which lays down the law. Thus, we have had the Code Napoleon
in our courts. It is better than to examine a witness, whose memory may be de-
fective, and who may have a bias influencing his mind upon the qa The Su-
preme Court of New York has held, that an unofficial copy of the Commercial ‘
Code of France, could not be proved by the French Consul residing at New
838 : CONFLICT OF LAWS. [cH. XVI.

a copy of the civil code of France, purporting to be printed at the
royal press, Paris, and received in the course of our international

York, though he stated it to be conformable to the official publications: and that
it was an exact copy of the laws furnished by the French government to its Consul
at New York. Had it been an official copy, and sworn to be such, by the Consul,
it would have been received in evidence, as the Irish Statutes were, in Jones v.
Maffett, (5 Serg. & Rawle, 523,) where they were sworn to by an Irish barrister,
and that he received them from the King’s printer, in Ireland. In Church v.

Hubbart, (2 Cranch, 187,) this court said, that the edicts of Portugal, offered in
evidence, would have been admissible, if the copies of them had been sworn to be
true copies, by the American Consul at Lisbon, instead of his having given his
consular certificate, that they were true copies, because it was not one of the func-
tions of a Consul to authenticate foreign laws in that way. The court say, ‘ The
paper offered to the court is certified to be a copy compared with the original.
It is impossible to suppose that this copy might not have been authenticated by
the oath of the Consul, as well as by his certificate.’ It will be seen, that what
the court required, was a verification of the original, upon oath, and that then
the edicts would have been admissible in evidence. They were municipal edicts,
too, it should be remembered, and not one of those marine ordinances of a foreign
nation, on a subject of common concern to all nations, which may, according to
the manner of its promulgation, be read as law, without other proof. Talbot v.
Seeman, 1 Cranch, 1. The rule of this court has always been, since those cases
were decided, ‘ that the laws of a foreign country, designed only for the direction
of its own affairs, are not to be noticed by other countries, unless proved as
facts ; and, that the sanction of an oath is required for their establishment, unless
they can be verified by some other such high authority, that the law respected
not less than the oath of an individual.’ The question in this case is, has the
Code Civil, which was offered in evidence, a verification equivalent to the oath
of an individual ? Opinions and cases may be found in conflict with the cases
cited, but, from a perusal of many of them, we find that they have been formed
and decided without a careful discrimination between what should be the proof
of foreign written and unwritten law; and when written laws, either singly or in
statute-books, or in codes, have been offered in evidence, without a sufficient au-
thentication that they were official publications, by the government which had
legislated them ; or when written laws have been offered, properly proved to be
official, but which were equivocal in their terms, and in the judicial administra-
tion of which there have been, or may be, various interpretations, making it
necessary to call in experts, as in cases of an unwritten law, to state how the law
offered in evidence is administered in the courts of the country of which it is said
to be the law. In England, until recently, it was not doubted that a foreign writ-
ten law was admissible in evidence, when properly authenticated. But, in the
Sussex Peerage Case, 1844, (in 11 Clark & Finnelly, 115,) several of the judges
gave their opinions upon the subject. Lord Brougham, in that case, differed from
Lord Campbell, and said that the Code Napoleon ought not to be received in an
English court, and that before it could be received from the book, that an expert,
acquainted with the text and the interpretation of it, must be called. And so it was
ruled, afterwards, by Erle, Justice, in 1846, in Cocks v. Purdy, (2 C. & K. 269,)
§ 641 a.] EVIDENCE AND PROOFS. 839

exchange, with the indorsement “ Les Garde des Sceaux de France

& la Cour Supreme des Etats Unis,” was held admissible as evi-
dence of the law of France.)

in which fragments of a code were offered as evidence. But his Lordship’s opin-
ion, and the case of Clark v. Purdy, must be taken, subject to the facts upon which
the point arose. In the first, it was, whether Doctor Wiseman, who had been
called as a witness, could refer, whilst giving his evidence of the law of Rome on
the subject of marriage, to a book, whilst it was lying by him. In the other case,
fragments of laws were offered. This point had been settled by Lord Stowell, in
Dalrymple v. Dalrymple, 2 Hagg. 54. Lord Brougham again expressed the same
opinion, in his sketch of Lord Stowell, in the second series of the Statesmen of
the Time of George JII., 76. But Lord Langdale, who also sat with the other
judges, in the Sussex Peerage Case, gave the rule, with its qualifications, in the
case of the Earl of Nelson v. Lord Bridport, 8 Beav. 527. After stating the
rule, coincidently with the opinion of Lord Brougham, he says: ‘ Such I conceive
to be the general rule, but the case to which it is applicable admits of great
variety. Though a knowledge of foreign laws is not to be imputed to the judge,
you may impute to him such a knowledge of the general art of reasoning, as will
enable him, with the assistance of the bar, to discover where fallacies are prob-
ably concealed, and in what cases he ought to require testimony more or less
strict. If the utmost strictness was required, in every case, justice might often
stand still; and I am not disposed to say that there may not be cases, in which

the judge may not, without impropriety, take upon himself to construe the words
" of a foreign law, and determine their application to the case in question ; especially,
if there should be a variance or want of clearness in the testimony.’ Notwith-
standing the differences in the cases cited, we think that the true rule in respect
to the admissibility of foreign law in evidence, may be gathered from them.
Jn our view it is this, that a foreign written law may be received, when it is
found in a statute-book, with proof that the book has been officially published by
the government which made.the law. Such is the foundation of Lord Tenterden’s
ruling, in Lacon v. Higgins, 3 Starkie’s Rep. 178. The case in 5 Serg. & Rawle,
523, has the same basis. Though there are other reasons for the admission of the
laws of the states into the courts of the United States as evidence, when they are
officially published, yet they are only received when the genuineness of the pub-
lication is apparent. This court has so ruled in Hind v. Vattier, 5 Peters, 398,
and in Owings v. Hull, 9 Peters, 607-625. It is true that we are called upon,
as judges, to administer the laws of the states in the courts of the United States,
and that the states of the Union are not politically foreign to each other, but
there is no connection between them in legislation, and we only take notice of
their laws judicially, when they are found in the official statute-books of the state.
With these views, it remains for us to show that the Code Civil, offered in evi-
dence in this case by the complainants, to prove their right to the succession of
the intestate estate of General Kosciusko, is authenticated in such a way that it
may be received by the court for the purpose for which it was offered. It was
sent to the Supreme Court, in the course of our national exchanges of laws with
France. It is one of the volumes of the Bulletin des Lois 4 Paris, L’imprimerie
royalé, with this indorsement, ‘ Les Garde des Sceaux de France 4 la Cour Su-
840 CONFLICT OF LAWS. [cH. XVI.

§ 642. But foreign unwritten laws, customs, and usages, may
be proved, and indeed must ordinarily be proved, by parol evi-
dence. The usual course is to make such proof by the testimony
of competent witnesses, instructed in the laws, customs, and usages
under oath.1 [The knowledge required of the witness must, it
seems, have been acquired by actual experience and practice in
the foreign country, and not by mere theoretical instruction in a
foreign University.2] Sometimes, however, certificates of persons
in high authority have been allowed as evidence without other
proof. [And it has been thought that the peculiar relation in
which the American states stand to the common law of England
might require some modification of the rule first above laid down ;*
and in Louisiana, it has been held that the courts of that state:
would not require proof of the common law, but would gather it
from the most authentic books and treatises on that subject.°]

preme des Etats Unis.’ Congress has acknowledged it by the act, and the ap-
propriation which was given to the Supreme Court to reciprocate the donation.
We transmitted to the Minister of Justice official copies of all the laws, resolutions,
and treaties of the United States, and a complete series of the decisions of this
court. We do not doubt, whenever the question shall occur in the courts of
France, that the volumes which were sent by us will be considered sufficiently
authenticated to be used as evidence. The gift and the reciprocation of it, are the
fruits of the liberal age in which we live. We hope for a continuance of such
exchanges between France and the United States, and for a like intercourse with
all nations. Business men, jurists, and statesmen, will readily appreciate its advan-
tages. It will save much time and expense when questions occur in the courts
of different nations, involving the rights of foreigners, if the written laws of every
nation were verified in all of them, by certified official publications to the govern-
ments of each. In the now rapid transit of persons and property, out of the sov-
ereignties to which they belong, into the different parts of the world, such a
verification would often speed and save the rights of emigrants, sojourners, and
merchants. We think that the Code Civil, certified to the court as it is, is suffi-
ciently authenticated to make it evidence in this suit, and that it would be so in
any other case in which it may be offered.”]

* Church v. Hubbart, 2 Cranch, R. 237; Regina v. Povey, 14 Eng. Law & Eq.
R. 549; Dalrymple v. Dalrymple, 2 Hare, R. Appx. p. 15 to 144; Brush v. Wil-
kins, 4 Johns. Ch. R. 520; Kenny v. Clarkson, 1 Johns. 885, 394; Hosford v.
Nichols, 1 Paige, 220; Isabella v. Pecot, 2 Louis. Ann. R. 391; Baron De Bodis’s
Case, 8 Q. B. R. 208; Mostyn v, Fabrigas, Cowper, R. 174.

8 Bristow v. Secqueville, 19 Law Journ. Ex. 289. But see Vanderdonckt v.
Thellusson, Id. C. P. 2.

§ In re Dormay, 3 Hagg. Eccl. R. 767, 769; Rex v. Pictou, 20 Howell’s State
Trials, 515 to 573; The Diana, 1 Dods. R. 95, 101, 102,

4 Carnegie v. Morrison, 2 2 Mete. 404, Shaw, C. J.

5 Young v. Templeton, 4 Louis, Ann. R. 254.
§ 642 -645.] EVIDENCE AND PROOFS. 841

§ 643. It seems that the public seal' of a foreign sovereign, af-
fixed to a writing purporting to be a written edict, or law, or judg-
ment, is of itself the highest evidence of its authority; and the
courts of other countries will judicially take notice of such public
seal, which is therefore considered as proving itself.» [So, in
America, the seal-of one state affixed to an act of the legislature,
proves itself, and imports absolute verity in the courts of another
state ; but such seal must be a seal valid at common law, and not
merely an impression on paper, which in some states is made a
valid seal for some purposes.?] But the seal of a foreign court
does not prove itself; and therefore it must be established as such
by competent testimony.? There is an exception to this rule in
‘favor of courts of admiralty, which being courts of the law of na-
tions, the courts of other countries will judicially take notice of
their seal without positive proof of its authenticity.*

§ 644, The mode by which the laws, records, and judgments of
the different states composing the American Union, are to be ver-
ified, has been prescribed by Congress, pursuant to an authority
given in the Constitution of the United States. It is, therefore,
wholly unnecessary to dwell upon this subject, as these regulations
are properly a part of our own municipal law, and do not strictly
belong to a treatise on international law.®

§ 645. And here these Commentaries on this interesting branch
of public law are brought to a close. It will occur to the learned
reader, upon a general survey of the subject, that many questions
are still left in a distressing state of uncertainty, as to the true
principles which ought to regulate and decide them. Different
nations entertain different doctrines and different usages in regard

1 Lincoln v. Battelle, 6 Wend. R. 475 ; Griswold v. Pitcairn, 2 Conn. R. 85;
Church v. Hubbart, 2 Cranch, 238, 239 ; Anon. 7 Mod. R. 66; United States ov.
Johnson, 4 Dall. 416; Appleton v. Lord Braybrook, 6 Maule & Selw. 34; Black
v. Lord Braybrook, 6 Maule & Selw. 39.

2 Coit ». Millikin, 1 Denio, 376. And see Bank of Rochester v. Gray, 2 Hill,
N. Y. R. 227; Farmers’ and Manuf. Bank v. Haight, 3 Hill, N. Y. R. 493; Wat-
son & Walker, 3 Foster, 471.

8’ Starkie on Evid. Pt. 2, § 92; Delafield v. Hurd, 3 Johns. R. 310 7 De Sobry
v. De Laistre, 2 Harr. & Johns. R. 193; Henry v. Adey, 3 East, R. 221; An-
drews v. Herriott, 4 Cowen, R. 526, note.

4 See Yeaton v. Fry, 5 Cranch, 335; Thonison v. Stewart, 3 Conn. R. 171.

5 See on this subject the Act of Congress of 26th of May, 1790, ch. 11, and
the Act of Congress of the 27th of March, 1804, ch. 56; 3 Story, Con. on Const.
§ 1297 to 1307; Andrews v. Herriott, 4 Cowen, R. 526, 527, note.

CONFL. 71
842 CONFLICT OF LAWS. [cH. Xvi.

to them. The jurists of different countries hold opinions oppo-
site to each other, as to some of the fundamental principles which
ought to have a universal operation ; and the jurists of the same
nation are sometimes as ill agreed among themselves. Still, how-
ever, with all these deductions, it is manifest, that many approxi-
mations have been already made towards the establishment of a
general system of international jurisprudence, which shall elevate
the policy, subserve the interests, and promote the common con-
venience of all nations. We may thus indulge the hope, that at
no distant period, the comity of nations will be but another name
for the justice of nations; and that the noble boast of the great
Roman Orator may be in some measure realized : — Non erit alia
lex Rome, alia Athenis, alia nunc, alia posthac; sed et omnes
gentes et omni tempore una lex, et sempiterna, et tmmortalis, con-
tinebit.2

Cicero, Fragm. de Repub.
INDEX.

The figures refer to the Sections.

A.
ACCEPTANCES, of different obligation in England and Leghorn . «265
by what law governed : 3 . 317, 333, 334
ACCESSORY, to commission of crime in foreign stale 7 - «a » 652¢
ACCOUNT, BOOKS OF, when admissible evidence |. 5 ; . 635¢
ACTIONS, real, in the Roman Law, what : é ‘ ‘i é . 530
personal . ‘ je . eo . : - 530
mixed . : 7 é : - 530
where brought ‘by the ee Lae : i a - 531-5387
division of, by Boullenois ‘ j . F 3 : - 552
ACTS done, validity of, depends on ler loci. . .. - 64, 77, 97
ADMINISTRATORS AND. EXECUTORS,

who correspond to under the Roman Law : - - 508

their title good, all the world over, according to Lord
Kames_. ‘ : . 511
their title does not extend beyond dhete tervitory | 7 3 - 512

no suit can be brought by or against them, in virtue of
foreign letters. . ‘i - 513-514 b, 515

andilary, funds collected by, to wit debts appropri-
ated . 3 5 - . 518, 514 Bb
collecting debts in axpiber state, atte de sontort. . . 614

whether liable for assets received abroad and brought
into such state . . -  . 5148
foreign, voluntary payment to, whan. a valid diniineye ee oe 515
where they remit property to pay legacies. . 515, 515 4

may sue in their own names, for personal property
reduced into possession . . . . . 516
may sue in their own names upon » negotiable notes - 517
ancillary, are subordinate . : é 518

where property of the deceased is in transitu at iis death 519-521
case of stage-coaches in different on &c., belonging to

the deceased .  . zi oe ele CBD
ancillary, force of judgment aie ; : . 522
where real securities are converted into eeonal ats 3 523

what law is to govern the priority of debts and the mar-
shalling of assets» - + + se ee 52K 527
844 INDEX.

ADMINISTRATORS AND EXECUTORS, (continued.)
which estate shall be charged with debts . 485 — 489, 528, 529
consideration of the American law upon preceding questions 529 a—5297

ADMIRALTY, COURT OF, judgments of in rem ~ a s % $92

the effect of itsseal . . .« «© « 648

ADVANCES, MUTUAL, by merchants of different countries . ‘ 283
AGENT, FOREIGN, contracts made by . ‘ . . 5 is - 285
ALIEN, dowable according to the lex rei site . - ‘ . : 448
ALLEGIANCE, natural, what . . a Sy ae : is 5 - 21
local, what . : ‘ : 7 . : 22
AMBASSADORS, retain their domidal. ‘i , - 48
ANCILLARY ADMINISTRATORS, (See Aniinmeaarons)
ANTENUPTIAL OFFSPRING, their limitation by the Seotch law . 87
ARREST, when it belongs to the remedy . . F - 568-571

ASSETS, DOMESTIC, how affected by foreign agacumiatons : 513, 514
ASSIGNEE OF DEBT, when he may sue in a foreign country in
his own name, or not. . 7 . 855, 398, 399, 399 a,
410 a, 565, 566
ASSIGNEES OF BANKRUPT, whether they can sue in their own

names in a foreign country. : A : 410, 420, 566
ASSIGNMENT OF DEBTS, by what law governed - 398-400, 565 — 567
notice of, when necessary to debtor 395, 398,
399 a, 565, 566
ASSIGNMENTS, of foreign liabilities, right tosue upon . . . 355-360
of an Tish Judgment SS oss $ é 355, 566
general under Bankrupt and Tasolvent laws, effect
ae . «403-493 g

(See inwaies Laws.)
by marriage . : ‘ es 7 3 is - 423

for benefit of creditors : . _- 825 p, et seq.
operation upon property in different states. 325 g
how far delivery important . s : - 325 7, 325 s
ATTACHMENT, before notice of an eee we cee -  « 895
ATTAINDER, disability from 5 x 620

AUTHENTICATIONS of contracts raise is secoriting to ‘the tae
loci ‘ . . : : ‘ - 259 a, 630 b, 635 ¢

B.
BALANCES between merchants of different countries . : A 283
BANK STOCK, its locality... : - : ‘ : 3 ‘ . 3883
BANKRUPT LAWS, FOREIGN,

discharges under . : ; . ; : 5 5 338
assignments under . 7 . ‘ . ‘ 3 - . 403
whether they have a universal operation . . : 4038, 404
opposite opinions of English and American courts .  . . 403

reasoning of the English courts in favor of their univer-
sality is : . : . . . . - 403-408
INDEX. 845

BANKRUPT LAWS, FOREIGN, (continued.)

authorities in support of the English doctrine . . . 407, 408
opinion of Lord Eldon . : . . - 408
propositions established in the Bugis alectelirn + 6 «409

reasoning of the American courts against their univer-
sality 7 F . é «_ 410-417
contrary doctrine held i in France and Holland . - e . 417

where confirmatory conveyance by bankrupt to his as-
signees . r 418

whether they operate a teal of pecsiaal propatly 4 in
this country. ; a . : : 419-423 h
priority of domestic creditors hn ae : - 408-423 5
case of bankrupt partners resident in different countries . - 422
distinction between, and state insolvent laws = . 84la

the latter bind only residents and such as submit to the
jurisdiction . . : : . . 5 . 3474
BENEFIT OF INVENTORY, what, Bowe Ow ee OG
“ BIENS,” its meaning with the civilians . : ‘ 6 ‘ 13, 146, 375
BILL OF LADING, — contract of what place .  . +. 286
BILLS OF EXCHANGE, with blanks to be filled in a fesiggn country . 289
damages upon. 2 - 3814-320

when payable and ‘ridomed 4 in different
countries. . . - 3817

how governed as to the faeingats of pay-
ment . . . . 347, 360, 361
their protest, by what law governed . 860, 361

notice of protest, by what law governed . 360
(See NEGOTIABLE INSTRUMENTS.)

BIRTHPLACE, how it affectsdomicl . . . . « « . 46

citizenship. s , A : ‘ 48

BLOOD RELATIONS, marriage between .  .. 114, 114 a, 115

“ BONA,” its meaning with the civilians en ee ee ee ee 9)

BONDS, HERITABLE, what is Scotchlaw .  . ~ «866
whether payable out of the real or personal

estate . : . 486, 487, 488, 489, 529

BOOKS OF ACCOUNT, when admissible scikics . é P . 635¢

BOULLENOIS, Mr. Henry has borrowed from . . 14, 581, note

- his principles as to territorial jurisdiction . . . 19

capacity of persons .  . = =._-57, 58

foreign contracts ‘ : . 240

foreign judgments . 613, 614

BRIDGE SHARES, their locality . ©. - + «© + « «+ 883

C.

CANAL SHARES, their locality» - + + ee te 888

CAPACITY OF PERSONS .. » + 50-106

laws regulating, treated by the sivlionk as a personal pte 51

71*
846 INDEX.

CAPACITY OF PERSONS, (continued.)

laws regulating, of two sorts. (eg oS - «+ 51
universal, what . $ : . : 3 51
special, what .  . . 1s ‘ . 51
determined by the original domicil - . ~ «© = - 51.
disagreeing opinions of the foreign jurists . ‘ - 51a-63
as to minority and majority . . ‘ : . 51a, 55, 55a, 71
distinctions as to, between movables and immovables 52 - 54, 367,
368, 369
where a change of domicil re ee : - 55-63
opinions of Boullenois and Merlin . . . : . 57, 58
Huberus . ‘ ‘ 3 . . 5 - 60-62
best established doctrines. . - 63-99

acts done in the place of domicil ‘a be judged of by he ‘
laws there . . . : - 64

capacity of the ‘domicil is duerist fo ext sues,

the domicil being unchanged. si : é . . 65~ 68
modern law of France on this point . ; . - 68
the domicil being changed, the capacity is chetied : é 69
distinction noticed on this point . - ‘ 70, 71
reasons of the civilians on fixing the age of cieoeee : - 72, 78
no universal rules on this subject . : : : 73 - 76
opinions of the Supreme Court of Louisiana eeanitied . 15-78
English rule as to capacity to marry ‘ : ‘ - 79-81
case of British minor intermarrying in France. -  . 80-81
law of actual domicil of universal obligation . : 5 » 81
different opinion of the foreign jurists . : : 5 - 82-85
general principles in England as to capacity to marry . 85-88
in the American courts. = ‘ ‘i 89
disabilities from minority in Continental Europe . . . 90
infancy ; ‘i 3 . - 90, 91, 103
outlawry, &c., in Ruyland . i 92
from illagam ay according to the fieee sutiehs 98 - 94
causa professionis, as of monks . : 94
slavery 7 y 96, 96 a, 104
idiocy, insanity, si prodigality . : - 99-106
ubiquity of the law of domicil denied by the Scotch court . 97
rules established in England and America - : - 100-106
whether sentences touching are conclusive . A 5938, 594, 595
CATHOLICS, their views on divorces. i, of & Ty - « 210
CESSIO BONORUM, what . : : g 339
CHANCERY, its jurisdiction over fuel inde atid pertons . - 543 - 545
does not act directly upon foreign lands . - c : 545
CHARGES on lands, how to be borne , 3 ‘é 366, 367, 486 — 489 ¢
CHARITIES for foreign purposes, when valid : : 3 . 479d
CHOSES IN ACTION, not assignable by the Common Taw 353 — 360, 365
due by foreign debtors, assignment of . . eo 395, 396

assignment of, according to the law of the owner’s domicil . 397
INDEX. 847

CHOSES IN ACTION, (continued.)

how far liable to process of foreign attachment . . 400 a, 400 5
CITATIONS ViIS ET MODIS, a what law their Een is de-
termined . 2 é - 546, 547, 576
jurisdiction given by 2 2. wwe, 546, 547
CITIZENS, whoare. . . . . we
jurisdiction over . . a , . ‘ . 3 540
CIVILIANS use the term, mized pest + ee 4 ee 9, note
their discussions of the Conflict of Tawa. 3 . : . 11
their division of Statutes... . ‘ A % 3 . 12
object in using their works . . .  . on ee 16
' their systems on the Conflict of Laws ee 6. w 26
their views as to the capacity of ~persons : ‘i ‘ - 50, 51
as to fixing the age of majority . .  . 72, 73
on foreign contracts. . ‘ : - 283-240
CIVIL DEATH, disability from oy eet oe es 8 ewe 620
COIN, contracts payable in . 5 - 7 : : - 818¢
COHABITATION, illicit, foreign poobiaets for : ‘ - 258
COLLISION of ships of different nations on the high seas, omiliet rule
is to govern in a case of a conflict of laws . . . 4239,423h
COMITY OF NATIONS, its relation to questions of conflict of laws . 28
question as to the sia of this phrase. - ‘i - 83-38
a proper phrase B : ‘ ‘ : : : - 38
not the comity of courts é r te 38
attempt to explain the extent of tility, ana of sieiet ob-
ligation F : 5 ; . . 88a
as to the aatra-enittonial fore of lie . ‘ F . 83 - 38, 278
as to Bankrupt Laws : : me 8 ; - 849-3651, 414
what it allows, as to movables 3 : ‘ ‘ 5 471, 472
COMMERCIAL AGENTS, their domicil 3 . F ‘ q .. 48
COMMERCIAL CONTRACTS, their interpretation . .  . 277, 278
COMMON LAW, the Roman Law so-called. ‘ : - % - 12
COMMUNITY, LAW OF, what... x a od 130, 131
to what property spun - : - 148-159
general result. , e % ! 158, 159
whether real or personal 7 : - 172-177
does not attach to immovables under the °
Common Law : . . 7 - 454
COMPENSATION by the Roman Law... 2 we - 5M
COMPETENCY OF A WITNESS, convict of an ee crime in
another state : 620 - 623
CONFLICT OF LAWS, supposed by Huberus not to occur tbe
under the Romans . . : » l@. le . 2
traces of, in the Digest 7 ‘ ‘ - : . + 2, note
importance of rules relating to “ . 3 ‘5 » + 59
examples of questions of 6
questions of, of frequent occurrence ; : a gy By :

interesting to the United States
848 INDEX.

CONFLICT OF LAWS, (continued.)
not systematically treated by writers of the Common Law. 10

little cultivated in England . . » 4% ; jo cas 10

minutely discussed by the civilians . . + + 11
general maxims of : . 17-38
who is to determine what law shall giverti . 8 . 23, 24, 25
the power given to the courtdin France early. : ‘ 24

in England and America . » 24
difficult to ascertain the proper principles to govern cases

of : . i . ‘ . : : . 25-28

variety of aw : . i - a : . 25

system of the civilians, as is : . . : . . 26

governed much by the comity of nations. . . + °28-38

not by the comity of courts . 7 : : ‘1 38

the axioms of Huberus  . i ; . ‘ . : . 29

Hertius . : . . - . . < 30

Huberus undervalued . . «©. »  . 81

domestic laws prevail over foreign : ‘ 326, 327, 327 a, 8276
CONSANGUINITY,

same, whether through legitimate chain or not . 3 : 114 e

CONSENSUAL CONTRACT, marriage is . re . : : ; 109

CONSULS, their domicil, what ‘ . ° 5 ‘ : . 48

CONTRABAND OF WAR, contracts to cover . . . : . 259
CONTRACTS, to be governed by the law where made . . : . 76

their validity : : ‘6 ; 3 . ‘ 232
texts of the Civil Law ‘biuetiad - a‘ - . 7 - 233
these texts discussed . ‘ . ‘ : - 233 — 237
opinions of the civilians . «2. ewe 284 — 240
rules of Boullenois * é 3 : . - 240
doctrines of the Common aan 5 s > ‘ ‘ . 241

their validity governed by the lex loci . 7 - 242-248, 327
exceptions to this rule . ‘ a * ‘ 244 — 259 b, 328

where injurious to the interests of a nation . ; . 244, 245
“in evasion of the revenue laws of a foreign country . . 245, 246
growing out of illegal transactions . . . . 246, 251
suugsine ‘ 251, 253

whether affected by mere Knowledge of the illest pur-
pose . . P 7 7 . s 253, 254
foreign revenue laws nt teenie ee ar see 257
against morals or public rights . . . : : : 258
opposed to national policy 3 : ‘ . - 259
how affected by proofs required by le loot 7 260 — 263, 318, 319
requisite of stamps . ‘ + 260-318, 631
under the Statute of es thei validity abroad 262, 262 a, 6806
parol, their validity abroad : A . 262, 262 a, note, 634
their nature, obligation, and interpretation . ‘ - 262, 2624

their nature, what, and how governed. 2 ‘ - 263, 266
illustration in cases of warranty . . : . . F 264
INDEX.

CONTRACTS, (continued.)
their obligation, what, and how governed
misinterpretation of foreign laws . .
their interpretation, what, and how eee .
affected by usage .
meaning of terms month and usance
of transient persbns, how governed
of marriage and settlement, their interpretation
of commerce, their interpretation
: governed by the law of place of pétfortiaines ‘i
where mutual advances and balances
made by an agent abroad
incidents to contracts, what are, by what wile eavericl
when obligation personal .
when obligation real
with mer¢hants abroad
where loan and security are in different states

.

“6

. . . .

bills of exchange with blanks to be filled in a foreign country .

where principal and sureties are in different states :

rules as to interest (See INTEREST,)
damages ex delicto

different currencies .

case of mixed money

negotiable instruments and eatiairo thereupon

different parties should not be sub-

ject to different rule of dam-

fe

ages : . 3
payable and indorsed in. different
countries

conflicting opinions of New York and Massachusetts
their effects depend upon the lex loci |
as in the case of liens
priority of foreign liens not conceded
debts are payable everywhere
their discharge depends upon the lex loci ..
(See DiscHARGES.)
all their consequences do not accompany them
impairing the obligation of
principles as to negotiable instruments .
(See NeGoTIABLE INSTRUMENTS.)
respecting personal property have no situs
respecting real property are governed by the lex rei site
conflicting opinions of foreign jurists upon this point
how dissolved, when by lex loci contractus
when by lex rei site
jurisdiction over and remedies upon
(See JuRIsDICTION, REMEDIES. )
evidence and proofs of
(See EVIDENCE. )

. .

.

. .

.

*

849

e

266, 269

j 269
270-278 a
270

270, 271
278, 274
276, 2764
277, 278
279, 279 a
283

- 285

. 851e
351d

« 851d

- 286

» 287a
289

a 290
291 — 306
307°
808 — 314

: 314
814 -— 321
07 a-307¢
317

319, 320

- $821
3226
322-3270.
: * 329
. 830-335
‘ 336

: . 3841
852 — 361
362 — 3626
363 — 373
368 - 372 f
851 -351d
351d
531-575
629 - 638
850 INDEX.

CORPORATIONS, FOREIGN, when they may sue in our courts . 565
by what law their contracts governed . « « 285 a

COVERTURE, governed by the lex loci . » + + 102a

CREDITORS, priority of domestic, over foreign sedignees - 825 t, 420, 421
distribution of effects of debtor among, by what rules gov-

erned ‘ . ee 323 — 325 d, 423 4
CRIMES, are local and cusdenwaly suniiGable wie committed 620 - 624
different doctrine of Hertius and Paul Voet ; ‘ 625

CRIMINALS, FUGITIVE, whether a nation is bound to seenaes 2
them up . A 3 3 a a . 626-628
CURATOR? who by the Reman Law : i a Kt - 498
CURRENCIES, questions arising from different ij : 2 - 308-313
case of mixed money. 5 : . 3 . : 314

D.
DAMAGES in cases ex delicto . ; i . . ; . - 807
on negotiable instruments. ee 8 - 814-320
DAYS OF GRACE, by what law determined . «lt . - 847, 361
DEBTS, when payable everywhere F : . . i - $829, 5145
have no situs, and follow the person -  « 862, 8624, 399
are treatéd as movables .  . . . 862, 362a, 399
charged on real property are treated as s iinrmiealba ‘ . 363
assignment of, how and when valid . . . . 3895-400
are transferred by the law of the creditor’s

domicil ‘ , : 399, 399 a, 400
when discharged by payment ” tepdien administrators . 5140
upon what estate charged . 3 ‘ . . : - 528
what law determines their priority . . . . 524=528
when an extinguishment of . ‘ A . 582, 582 a, 582 b, 583

(See Limrrarions.)
DEFENCES. (See DiscHarGes.)

DELIVERY, where necessary to complete asale_ . 5 3 - - 886

foreign transfer without, invalid, when =. , 3 386 — 390
DISCHARGES AND DEFENCES, in the place of the contract,

good elsewhere 3 . 7 = - 830-335, 575 4

exception to this rule ‘ 2 & & « =» w« B84

from matters ex post facto . : ‘ is 5 ‘i : 335

from Bankrupt and Insolvent Law % : ; " . 3838

(See Banxrurt Laws.)

where extinguishment of debt F . . 338
from the Roman Cessio Bonorum . ‘ a ‘ . $39
how affected by the character of the parties 7 : 340 - 349

Constitution of the United States . . 841
in a place where the contract was not made . - 842, 348, 349
when by the lex loci contractus . 3 . 348 — 351, 63824
when by the lex rei site . ‘ . . . - 3514, 351d

of indorsers, how governed .. + 8 6. 843 ~ 347
INDEX. 851

DISCHARGES AND DEFENCES, (continued.)

limitations upon their effects . . -  . 848-8514

their dependence upon the comity of rations . : : . 850

by voluntary payment to a foreign administrator . . 5146
DISCUSSION, right of, what itis . : ot, we Ss 322 6

effect of, in a case of conflict of laws ‘ ‘ : . . 8220
DISSOLUTION OF CONTRACTS.

may be by lex loci contractus . : . * 348, 849, 351, 632a@

also by lex rei site. . oo.  «  « 851a-851d

DISTRIBUTION AND SUCCESSION. (See Succession.) . 480-491
DISTRIBUTION of effects of bankrupt in cases of conflicting

rights of creditors di 5 . 822 c— 327 b, 428 - 423 f
of personal property, by what rules

governed. , . . 481 - 482 a, 514-514 5

of real property, by what sles governed . 483 - 484.4

DIVORCES, regularly obtained, a complete dissolution of

marriage . : . : . . - 201
difficult to lay down pale toudhing: . . . ; s 202
how obtained in England. : . 7 : : - 202
Scotland. . .  . eae. 202

France ‘3 ; ‘ ‘ . . - 202

America... ue ; e 4 202

license of the CivilLaw .  . wm ewe we BOD:
embarrassing questions under this head Bhs, xe 7 2038, 204
how affected by the national character of parties . . 204, 205
presence in Scotland . . 205-207, 215-217

diversities of foreign lawsasto. . . «© «. | 208
views of Catholics eo} x & © # » 2 210
Protestants. . ‘ : . 211

not systematically treated by the eeetheagel unde -  « 212
under the French law, discussed by Merlin aH a 213
best discussed by English and Scotch courts . : , » 215
between parties not domiciled in Scotland. . . 216,217
Scotch doctrine not recognized in England . . . 218, 219
the animus manendi necessary to give jurisdiction . ‘ 219
marriage after Scotch divorce. ; % He: ee <2Ts
questions discussed by the Scotch — s $ 5 221, 222
reasoning of the Scotch courts . - - =. . 222-225
not sanctioned in England . «e285

English marriages not dissoluble in Scotland.  . - 225, 597
whether governed by the lex loci of marriage . . 220-227
how treated in Massachusetts Bn oe . e Ji - 228
regulated there by the actual domicil ee ee 228
also in New York . . we) . 230

properly grantable only where parties doasieiled at

the time the cause occurs F . - 230 b, 230¢

ex parte decrees of divorce of no free, ee obtained,
or upon whatever grounds . . . . 230d
852 INDEX.

DOMESTIC CREDITORS, their priority over foreign assignees 420, note,
421
DOMICIL, what 39 - 49
in the Roman age 42
defined by the French jurists 43
residence and intent to remain constitute . 48
rules for determining 46,47
the place of birth 46
of an illegitimate child . - 46
of minors . . . . ; : . . 46
of widows. : : ‘ . 46
where a person lives . é * 46
removal with intent to resides . ; : 46
where a married man’s faniily lives 46
of an unmarried man . om 47
residence must be voluntary . . . . . 47
mere intention, without removal, and vice versa 47
once acquired, remains. . 47
principles in respect to residence in arrovedi poptiiees 48, 49
(See Nationat Domicit.)
how it affects the capacity of persons 51, 54a@-72, 81, .82,
96 a-98
(See CAPpaciTy oF PERSONS.)
how it affects marriage. (See MarrraGE.)
the incidents of marriage.
(See MarriaGe — ITS ee
matrimonial, what =. . : : : 191-199
of owner governs personal pesparty . 376 - 382
its transfer : s : . 883, 397-400
of testator governs wills of personal property . 464 —473
(See Wits.)
of intestate governs the successions to personal
property . ; : 7 ‘ - 481, 481 a, 481 b, 482
(See Succrssion.)
of the ward limits the power of the guardian over his
person 7 495 -— 503
DOWER, determined by the ia rei site. - 26 : 448
DRAWER, according to what law liable. . . . . ° 846
E.
EFFECTS OF CONTRACTS, depend upon the lex loci . 321
ENEMY’S PROPERTY, contracts to cover : 259
EVIDENCE AND PROOFS, formalities of the lex look
required . . : ‘ ‘ . 260 — 262 a, 318, 629
of foreign instruments. . . : 630
of instruments executed before a freien nigtaiy 630

where persons interested and parties are competent
Witnesses abroad. : :

. 630
INDEX. , 853

EVIDENCE AND PROOFS, (continued)

what formalities of universal obligation . - 631

: in cases of foreign protest, registration of deeds, Statute
of Frauds, and stamps : : . A : 631
merchants’ books, when evidence or not =. 3 ‘ 634 —635¢
where parol proof is admissible or not. 2. wt 634
few traces on subject of foreign evidence in thereports . 635
of foreign wills and personal property. o- : 636
foreign laws must be proved as facts to the court - 637, 638
must be the best the nature of the case will admit. . : 639
of foreign written laws ‘ - 640, 641
of foreign unwritten laws a 642

by means of the seal of a foreign sOvERCai af a Conrt
of Admiralty, &c. . : - 643

of the laws, records, and utd petit ‘of ia iiitetent
states of the United States . . os : : 644
EXCHANGE, rate of, on foreign contracts. : ‘ . . 307 - 31la
EXCOMMUNICATION, how it affects the capacity.  . . . 92,104
EXECUTIONS, form of, belongs to the remedy . a : 2 572, 573
EXECUTORS, FOREIGN, case of note indorsed by 3 . 858, 359, 517

not recognized until after filing copy
of probate of will .  . «ww 49
(See ADMINISTRATORS.)
EXTRA-TERRITORIAL FORCE OF LAWS, . . 7, 20-23, 98, 279
depends upon comity é . 32-388, 279
on what grounds supported . é 5146
EXUERE PATRIAM, right of English subjects 8 ee 466
F.

FIXTURES, belong tothe realty ©. . . «© ». «© « « 882
FOREIGN ADMINISTRATIONS . . . . . « 507-529
(See ADMINISTRATIONS.)

FOREIGN CONTRACTS. (See Contracts.)
FOREIGN JUDGMENTS. (See JuDGMENTS.) : : - 584-618
FOREIGN LAW. (See Coyriict or Laws.)
FOREIGN LAWS, ignoranceof .- . »© + «© + «+ 16,274
misinterpretation of . . ew om we 6D
must be proved to the court as facts. , . 637, 638, 638 a
against morality and state policy: . 8 - + 33 f
FOREIGN REVENUE LAWS, contracts in evasion of . «246, 247
‘ not regarded. ° . . - 257
FOREIGNERS, jurisdiction over. ‘ . 541, 542
FORMS AND SOLEMNITIES OF INSTRUMENTS,
governed by lex loct . . a é . 260, 262, 262 a, 318
FRAUD, judgment may be impeached for. - + +597, 608

FRAUDS, STATUTE OF, contracts under, their validity abroad
262, 262 a, 435, 631, 635 b, 635 ¢
CONFL. 72
854 . INDEX.

FUGITIVES, whether nations are bound to surrender up. . 626, 627
-how dealt with in American states . . ee 628 a
G.
GARNISHMENT, writ of, when judgment on, pee on third
persons . . : . S 549
GRACE, DAYS OF, by what jase Sevemied: e- -3 ; ; . 847, 361
GUARANTEES, according to what law liable . .~ . ‘ - «267
GUARDIANS, who by the Roman Law .. » 6 493
authority over the person of a ward apneeey to the ©
place of his domicil a F - . 495-503, 594
authority does not extend to fan: immovable prop-
erty. . «502, 504
whether they may (class tie national denied of a
ward. % . : A . a . : z 505
H. ,
“HEIRS OF THE BODY,” &c., how to be construed abroad - 275, 484
HEIRS, nae the Roman Law, ih 7 . A : 507, 508
can take immovable properly only
the lex rei site . 2 é - 509
HENRY, Mr., has borrowed, without acknowledgment, font
Boul femers 2 . s 5 . : - 14, 581
HERITABLE BONDS, in Scotland, wad e  % - 6  « 866
whether payable out of the geal a or
personal estate . - : - 486-489, 529
HORNING, what by the Scotch law . , : 7 . . 546
case of judgment after, without actual notes ‘i . 547-549
HUBERUS, histhreeaxioms . . . . 2. .) .) . 89
authorities approving his axioms . .: . . . . 88
undervalued . ; : - 81
HUSBAND AND WIFE, capacities of, be what law govennd - 50-63
effect of change of domicil of . . 55,55 a, 66a
HYPOTHECATION, by what law regulated . . . . 322d-323
when it has priority or not . : - 322 a, 327 b
when it adheres to property .  . a 401, 402
when governed by lex fori. a 7 ; - 575
' (See Lien.)
I.
IDIOCY, capacity in case of oon ‘ : . 99, 106

IGNORANCE of the laws of a foreign cour, ity ponbeguendés : 76, 274
ILLEGAL CONTRACTS cannot create, ice or indirectly,
good cause of action OS i ‘ 257 a, 2576
INDEX. 855

ILLEGITIMATE CHILDREN, their domicil . »  » 46
how affected by the after marriage of their reroute: - 87-106
their disabilities according to foreign jurists. ‘ - 93,93 d
cannot make a will in Scotland - : . : , - 469
ILLICIT COHABITATION, foreign contracts for . . . . . 258
IMMOVABLES, capacity of personsasto . . . . . 52-54, 368
heritable bonds are . : : 4 ‘ ‘ . 866, 382
ground rents are. 5 - 3882
what are to be deemed, is determined s fs lex

ret site ‘ . ‘ 114 d, 381, 382, 383, 447

foreign, whether aerated by the law of the matri-
monial domicil . eo ‘i ‘ - 449
wills of, governed by the lex rei sie : 5 . “476 —479 m

(See WI11s.)

succession to, governed by the lex rei'sitee -  . 4834

(See Succession.)
authority of a foreign guardian does not extend to - 504
(See Reat Property.)

IMPRISONMENT, when it belongs toremedies . . . . 568-572
INCEST, how it affects marriage ‘ . »  « 85,114-117
by the law of tutus : 7 - 114-116
by the positivelaw .  . . + 116

what constitutes incest determined *Y the law of gash
state for itself P a : ‘ - 114¢,1146
cannot be cured by celebrating cane abroad. ws sid
INCIDENTS TO CONTRACTS, what are. » +  « 822
INDORSEE, FOREIGN, right of action in hisown name . . 353-360
- INDORSEMENT by a foreign executor . : , - i . 858, 359
INDORSERS, according to what lawliable. . . . 267, 343-347
must be charged according to lex loci : a 346 b
INFAMY, how it affects capacity . ‘ * ‘ - 91, 92, 104, 620
INFANCY, when a discharge ; gee a B82
INFANTS, their domicil, (See Minors. A. ‘ . «oe 46
when bound by contracts made in buen conntites 75, 82, 82 4
INSANITY, capacity in case of. es 08

INSTRUMENTS, forms and solemnities of by wilat jae govaniell
260, 362 a, 319

INSURANCE STOCK, its locality ° é - F 3 383
INTERNATIONAL LAW, maxims of, (See, ‘Maxnes. : - 6 + 17-88
comity of nations. : ‘ . 27-38
the axioms of Huberus : . ‘ . 29
its foundations . ; ‘ ‘i ‘ s 35

: (See Conruict or Laws.)
INTEREST, is to be according to the law of the place of perform-

ance of contract . . 5 F . 291 — 292 a, 304 b, 305
when usurious or not. 3 ‘ 3 <> lak Ys . 805
distinction as to, put by Boullenois . ‘i ‘ ‘ 295, 296

governed by the lex loct : . . : a » 296, 305
856 INDEX.

INTEREST, (continued.)

embarrassing casesasto . . +» +6 « - 297, 298
double meaning of lex loci. 5 » + 299
general rules affecting foreign contracts : 304 b, 805 a, 305 b
INTERPRETATION OF FOREIGN CONTRACTS, what and
how governed : . . ‘ - 270-279
INTERPRETATION OF FOREIGN WILLS . - 479 a—479 m, 489,
490, 491
INTESTATE, succession and distribution of his property 2. - 480-491
(See Succession.)
IN TRANSITU property, by what law governed. ‘i - 519-521
INVENTORY, BENEFIT OF, what. . hs 2 -  . 507
IRISH JUDGMENT, assignment of 5 3 4 : . 855, 566
J.
JEWS, singularity of their usages. - wees 119
JUDGMENT, IRISH, assignment of . ‘i ‘ . . ; . 855, 566
how far conclusive . i . 3878e
JUDGMENTS, FOREIGN, of what force where different siiuiiais:
trations . - ‘ : . ‘ . - 522, 523
form of, belongs to the rented : 7 : ‘ 3 . 572
various questions arising under . . . 584
of a competent tribunal valid according to Vattel aig
where 5 . . 7 - : 585, 586, 611
courts must have jarpaichons over the cause and parties 586-590
are conclusive upon immovables_ . : : - 591, 592-596
movables within their jurisdiction . 592, 593
whether conclusive upon incidental points . : : - 598
in questions of capacity . : - 594
in cases of marriage and divorce - 595-597
(See Divorce — Marrrace, )
may be impeached for fraud . s F 7 597, 608
when sought to be enforced and when set is in bar, dis-
tinction between these cases . . . 598,599
distinction of Lord Kames between aia: sustaining and
dismissing claims : : - 600-602
this distinction not reeopuiuell 3 in ihe common ite 3 : - 602
when sought to be enforced, whether conclusive . 603 — 607
held conclusive by Nottingham, Hardwicke, Kenyon, &e. 603 — 607
held examinable by Mansfield, Eyre, Buller, &c. . ‘ - 605
inclination of English courts to maintain their conclusive-
ness . . . : — & . - 606
reasoning in favor of their Eisusvenks : - 5 5 607

held examinable in America ‘i . 3 : - 608
of different states of the United States . . - 599 a, 609
no distinction in the common law whether between citi-

zens or foreigners . : * % se +e «610
doctrines of the foreign courts and jurists. "i - 611-618
INDEX. 857

JUDGMENTS, FOREIGN, (continued.)

doctrines of Boullenois . Fi 3 ‘ - 618, 614
could not formerly be enforced in France . ‘ - + 615,616
now examinable in France . * 4% ‘ ; 5 . 617
their validity in Holland . 3 ‘ . : - - 618
important changes since death of author. - +  «. 6184
decision of foreign court settles law of that place. : 6186
but not English law .  .  . ewww CB
exceptions Ce 618d
generally conclusive. ‘ se ee le 1B
how far operate in rem . . ‘ : 618 ¢
no excuse that defendant appeared io save eppiparty ‘ - 618f
plea of foreign judgment must show it conclusive when
rendered. : . 5 . . : s : 6189
merger of cause of action . . : 618 h
distinction between foreign and flomostia judgments 3 in priok 618%
grounds upon which such judgments may be disregarded . , 618%
JURISDICTION, TERRITORIAL, os tia’ a> wc 11, 18
principles of Boullenois as to 5 . 19
JURISDICTION, over parties in cases of divotse (See Drvonen.)
where actions must be brought by the Roman Law .  . 531-537
by the Common Law . . = 588
depends upon the person or thing being within the territory 539
over persons . . . : . . . . - 540-549
citizens at home ‘i ; . . . . -  « 540
citizens abroad s/w eee CO
resident foreigners . . . . . « | . B41
refused by some nations over foreigners : . 542
over foreigners within territory, ae to aulee purely
personal : 4 on. oa - 543
of chancery over foreign fans and pevione ‘ : - 5438-545
does not act directly upon foreign lands és - 545
by citations viis et modis, posting, horning, &c. : - 546
where judgment after horning and no actual notice of the
suit . : : . 547 - 548 a
where property of non fomienta is staged « . ‘ - 549
possessed by every nation over property within its territory 550, 551
“exclusive over immovable property . 7 ‘ 7 . 551-555
how treated by Boullenois_ . - ‘i ‘ é ‘ , 552
by Vattel 2. ©. «© 2© «© «© «©  « 558
by the Common Law ‘ - 554

over the cause and parties, necessary to every fuditipsit - 586-590
(See JUDGMENTS.)

K. .
KAMES, LORD, his views on the title of administrators : a . 511,
his distinction as to foreign judgments . 3 - 600-602

72%
858 INDEX.

KNOWLEDGE of the illegal purpose of a contract . 3 3 258, 254

of foreign laws 7 . a . . + 76, 274
L.

LAWS, FOREIGN, ignorance of ‘ 3 ‘ “ . - . 76, 274
misinterpretation of . : : 7 ew - 270

must be proved as facts to the court =. 637, 638

LAWS, variances of, among ‘different nations . é Pan - 1,2, 25
LAW OF NATIONS, not recognized by the nations of antiquity is 2,3
this accounted for by Huberus. oe oe OS 2

its gradual rise . . ‘ eg 2a, 20

its importance in the present dines . . A . . - 5

conflict of laws an important branch of - . . . 9
LEGACIES, how interpreted . : : - 812, 318, 313a,479-479m
in what currency payable ed - 812, 813, 3134
LEGITIMACY, determined by the lex loci of the marriage . 87, 105,105a
embarrassing questions of, discussed . * 5 93 0

LETTER OF CREDIT ABROAD, by what law governed . 878¢, 373d
LEVITICAL DEGREES, recognized by the cea Statute. » 115
LEX FORI, (See ReMeEprzs.) . : . » +  .« 566-577
LEX LOCI, traces of, in the Roman Digest 5 a . - 2 note

(See Conriict or Laws — Contracts.)

LIENS, when regulated by the lex loci. : : < . : . 822d
foreign cannot have priority . 3 : . . 322 b- 3274

when they adhere to the property é : . 7 401-4024

when regulated by the lex fori . ‘ : : 7 575
LIMITATIONS, STATUTES OF, belong to aphaaeeke 7 : : - 576
their object and policy . . 7 : 576

suits by foreigners must be brought widhia the fine pre-

scribed by them . é oP x . 577,578

objections of the foreign jurists 6 this vite ‘ : - 579-582
extinguish the right of action . ‘i 3 . x . . 580-

when they extinguish the claim . P : - 581, 582-582¢

where title to property has become final by possession,

and there is a removal to another jurisdiction, with a
longer proscription ‘ . r - 582
LIVERMORE, Mr., his Dissertations on Contrentaty of Tans : 11 note
LIVINGSTON, Dr., his Dissertation on Marriage with a wife’s sister 115 note
LOAN AND SECURITY, when in different states

. . - 2874

LOCALITY OF TRIALS, distinctions as to. 5 3 ‘ : - 554

LOCALITY OF BANK STOCK, &. . : ; ‘ _ F 5 383

LUNATICS, their capacity .  . ‘ woo + + 104,106
M.

MAJORITY, whether that of the domicil prevails 52, 54a—56, 71, 72, 75

reasons of the civilians on fixing age of . ‘ ; 72, 78
INDEX. 859

MAJORITY, (continued.)
cases in Louisiana as to. . : . 5 : . 75-78
determined by the lex loci. i - " i »  . 102
MARRIAGE, English rule as to capacity for os oe ew 19 81

of British minors in France. . . : - 80-804
principles in England as to capacity for . . . 87, 87a, 88

American courts . : ‘ : : »  . 89
of parents of illegitimatesin Scotland. . . . 87, 87a

governed by the lez loci . A -  -84, 87 a, 102, 108, 112, 225
how affected by incest . . , . . : 85, 114-117

a favored contract . . . 3 ; ‘: . ‘i - 108
a consensual contract . < : j si é : 109, 110
a matter of municipal regulation . + « 109, 112
how farand_in what countries priestly volemntiation neces-
sary... . . . . : . . » ll2a
essentials must jankunan to law of domicil. . me 1246
three exceptions to the rule that the lex loci governs + 113a—121
Ist. in cases of incest and polygamy * 5 - 118a-11l6a
between kindred prohibited : - .1138a-116a@
2d. when prohibited by positive law through policy. .  . 117

3d. when celebrated in desert or barbarous countries ac-
cording to the law of domicil . : < ‘ - 118, 119
this exception based upon necessity. . . . . . 119
atthe Capeof Good Hope. . - «ew etS~*~<~«SzD
of British subjects in foreign settlements . - 6 «© + 120
grounds of the rule that the lex loci governs . ae : 121
the rule supported by the foreign jurists. - 122, 122 a, 1226
in a foreign country, between persons of another country 123, 123 a,
’ 1236
Scotch, by parties domiciled in England . . . . . 124
after divorce in Scotland » . a 5 . es. oft 124
legislative right to dissolve eS © «© @ © # » BOL
contracts and settlements, their interpretation . . . 276
transfers personal property all the world over . § . - 423
whether sentences confirming, are universally conclusive . 594
MARRIAGE —INCIDENTS TO,. . .« «© =. «© « 125-199
diversified regulations asto .  . : . . - 126-128
mnainly discussed by Froland . . ~- «© «© «© « 126
as regulated by the French Code. . - -~ + « 130
the law of community . . « 180, 181, 150-156, 163-176
under the Englishlaw .  .. . 134, 135
_how the capacity of wife is affected by the alone - 4  « 138
how the capacity of the wife is affected by changes of domicil 138
opinions of the foreign jurists . . . » o«  « 189-142

as to the property of husband and wife ee oe TB
1st. where there is no change of domicil . 3 e - 143-159
general‘result of the reasoning » . + + + 158, 159

2d. where a change has taken place F ‘ . . - 160
860: INDEX.

MARRIAGE — INCIDENTS TO, (continued.)

; diversity of opinion . . . . . 161 - 170
no question has arisen before the English courts on this point’ =.:171
opinion of the court of Louisiana soe ee) 172 - 182

tacit contract as to matrimonial domicil . a é - 174,190
general propositions as to the incidents of marriage . 183-190
matrimonial domicil, what 7 . . ‘ - 190-199.
how far regulates rights and duties springing fen the relation 1714
cannot confer permanent rights and duties irrespective of

laws of domicil . : eo 8 . - : ° 171-6

‘exposition of the principle involved . . . ; . 17le

comments upon a case affecting the question . . . 171d

where intention of an instant removal 7 . . . 198

case of arunaway marriage. . ‘i . - 198
MARSHALLING ASSETS, by what law goversed. » oe = 524-527
MATRIMONIAL DOMICIL, what oy ni ao - +  « 190-199
whether it governs immovables abroad . : . 449, 450

MAXIMS OF INTERNATIONAL JURISPRUDENCE .  . = 17-388
1st. every nation has exclusive ee within its

own territory. 5 < . $ - : 18
principles of Boullenois nedee this maxim “. 3 - 19
2d. no nation can affect ae or persons out of i its ter-

ritory . . . . . . . - 20-22
exception to the od maxim . s oo 21
8d. the force of the laws of one asuntry in antiher de-

pends upon the laws ofthe latter . . . . 23, 106

(See Conrtict or Laws.)

where the law is silent, who is to determine in cases of the
conflict of laws . . ‘ . " : : - 23
MERCHANTS, FOREIGN, contracts sail : +, « 287, 2874
MERCHANTS’ BOOK, when evidence or not in fateien courts 635 c, 6385 d
MERGER, of cause of action by foreign judgment . . . . 618%
by judgment in different American states . - 599c¢, 599 d

MINORITY, whether that of the domicil governs universally

52, 54a—56, 71, 72, 75
reasoning of thecivilians. . . . . . . 72, 73
casesin Louisianaasto  . . . . . : »- 75-78
disabilities from, in Continental Europe . . . . .~ 90

determined by the lex loci, in what cases. ae Xe 102, 103
exceptionstothisrule . . . . .) . - + 106
MINORS, their domicil P ‘ ‘ ¥ Fi ; . 3 46
British intermarrying in France’. S . : - 80,802
who, by the Roman Law . 493

their capacity. (See CAPACITY OF Persons — — Muonrrr,)

when bound by contracts in a foreign country, or not 74, 75, 82, 824
MISINTERPRETATION OF FOREIGN LAWS, effect of . ; 269
MIXED ACTIONS, what os ose oe . 8! «580, 588, 554
MIXED LAWS, what - 4 6 4 4 4 BTA, 495, 426, 426 @
INDEX. 861

MIXED MONEY, ease respecting . . oo Fae oe os BI
MIXED QUESTIONS, a term of the siitens. 3 < s - 9, note ,

MONEY, FOREIGN, depreciation, how ee to be rill in. 808, 314

MONTH, has different meanings . . : a SS : 270

MORALS, contracts against x lee 258

MORTGAGES, are personal assets in Maceachets. a : Sat et 523

MOVABLES, capacity of persons asto .. 3 ‘ - 52-54, 368

\ Whether governed by the lex rei site . . . . 368-3873

whether laws relating to, are personal or real. F - 377, 378

follow the person of the owner . ‘ é - 878, 3784

what, when annexed to immovables . ‘ iss 382

‘not affected by foreign laws except through cots -  « 472

foreign judgments are conclusive upon, when within their
jurisdiction . , oe os A 592

(See PERSONAL PROPERTY.)
MUTUAL ADVANCES AND BALANCES, between merchants

of different countries. : +  « 288
N.
NATIONAL DOMICIL. (See Domicit.)
principles asto . + oe -  « 48,49
persons born in a country are eltieesna -  . 48
reasonable qualification of this rule oe we 48
foreigners resident for permanent purposes
are citizens. : . 48
when. foreign domicil is abandoned oie nate 48
of ambassadors and foreign ministers » 6 48
ofconsuls. : : ‘ : : 48
of children born upon hie sea. *°* . . 48
of three sorts ; z . ‘ . 49
the grounds of such dactstoas : se - 49a
illustrated by late English cases. i 496
these rules will not apply to change of donsteil
in some states 7 . - 49¢

mode of acquiring Re slo: tndlian: dente . 49d
of a ward, whether guardian may change 505, 505 a,
505 6, 505 c, 506

NATIONS, LAW OF. (See Law or Nations.) ,

NATURALIA OF CONTRACTS, what. . -  *, 263, note, 265
NATURE OF CONTRACTS, what, and how soréravll -  « +268- 265
NEGOTIABLE INSTRUMENTS, damages upon . . . 3814-320

payable and indorsed in different.countries .  . «+ 817

made payable generally ‘ : 317
conflicting opinions in New York and Mascantinuctti - 817-320
dischafges and defences upon. Ste eg 342
made and transferred in different coulteise ji a - 851-360
foreign indorsee’s right of action in his own name 351 — 360, 357
862 INDEX.

NEGOTIABLE INSTRUMENTS, (continued.)

when indorsed by foreign executor. . . . 358, 359
not mere choses in action . . . . : . - 359
daysof grace upon... eke 847, 361
foreign administrator may sue in his own name . . - $517
NEUTRALITY, contracts inconsistent with - eo. ce 2 GS 259
NON-RESIDENTS, laws asto : ‘ : 4 © « 22

jurisdiction over and judgments aoatuat 5 ‘ . 547 - 549
NOTARY PUBLIC, efficacy of his certificate in a foreign country 630, 632 a
NOTICE OF ASSIGNMENT, when necessary. . - 395
NOTICE OF PROTEST OF BILLS, by what law poyetiad “8 360
NUPTIAL CONTRACTS governed by lealoci . «© «© « 90-276

oO.
OBLIGATION OF CONTRACTS, what and how governed . 266 — 269
personal, what . : - 568-572
OFFENCES. (See Penat Laws.)
OUTLAWRY IN ENGLAND, how it affects the capacity aS 92
P.
PARAPHERNAL PROPERTY, what. . . . . «. « 198
PAROL CONTRACTS, their validity abroad. <1 cx - 262, 2624
PAROL PROOF, case of,in France. »  . 684
PARTNERSHIPS IN COMMANDITE, effect of, on contracts} in
foreign countries . : : : : - 38204
PATERNAL POWER, of the ancient nies . . : si 25, 455
laws of, whether real or personal . . 456-471
doctrines of Merlin. f - 462

how far it affects real property of children :
in foreign countries . ‘ 5 ‘ 456 —472
as to consent to marriage of children in for-

eign countries. - r 7 ; - 90
PAYMENT, how and whatisgood « . . . . . 5146
in what currency ‘ : 7 . . 308 — 313 8
when at par value . 7 A - 808-3136

PENAL DISQUALIFICATIONS, not regarded in fone coun-
tries : . . . 104, 620 - 624

PENAL LAWS AND OFFENCES,
crimes are local and exclusively punishable where com-

mitted ‘ ‘ - 619-624
different doctrine held be Fisted anid P. ‘Voet . : ‘i 625

whether a nation is bound to surrender up fugitives from

justice . . . - 626-628
competency of a witness convict ra an biraitions ean in
another state . : . . : : . : : 621

reality of penal laws 2. 624
INDEX. 863

PENALTY, judgment for, not ground of action of debt’ . . 5724, 609
PERFORMANCE, PLACE OF, when its law ii em he - 280
PERSONAL ACTIONS, what & + «  « 580, 589, 552
PERSONALTY, reasons for using this word . ay . 16
PERSONAL LAWS, how they affect the ae eo 51

what . . . . : ” 375, 425, 426

whether they can operate eileatacttartally 554, 555, 556
PERSONAL OBLIGATION OF CONTRACTS, what and how

governed ms 4 _ ‘i : 267,.568 -572
PERSONAL PROPERTY

is governed by the law of the domicil of the owner . . 876-3882

reasons and origin of thisrule . 3 a . 879, 380

when it loses its character by being fixed to the psig + + 882

may be transferred by the law of the domicil of the owner 383,

397-400

exceptions to this rule. ec « 883, 384

valid transfer of, by the law of the situs 7 e : ‘ 384

delivery necessary to complete a sale in Louisiana . - 3886

in Massachusetts. 389, 392

invalidity of foreign transfer without delivery, against
creditors =. . ee i. » « « 886-894
this doctrine questioned oy . - 890
case of transfer at sea held valid withing along 7 6  « 891
case of transfers by partners in different places . . . 3892
whether the lex rei site of the place of transfer should prevail . 392

where attachment before assignment. ew OF 400
subject to what liens, &c. . : a ae 401, 4024
assignments under bankrupt and jhualy eats laws . ‘ - 408

(See Banxrurt Laws.)
transferred by marriage all the world over . . . . 423

will of, governed by the law of the testator’s domicil . - 465-473
(See WILLS.)
succession to, governed by the law of the intestate’s
domicl . «© «© «| . es @ Jy - 481-4824

(See SuccEssron.)
the primary fund for the ee of debts in Holland and
England. ‘ 4 . 528
how, when reduced into posseasion by a freon, executor . 516
(See MovaBueEs.)

_PERSONS, jurisdiction over, (See JuRISDICTION.) - - . 540-549
POLICY, NATIONAL, contracts opposed to. - «  . 259 — 259 b
POLYGAMY, forbidden by Christianity . . -  « 114, note

makes an ae as to the validity of starrer: by lex
loci .« ‘i : . . . 114, note
POSTING, notice by, local in its effects @ Wi i “S ae oe qoube?

PRESCRIPTION. (See LrMiratTions.)
PRESENCE, gives jurisdiction to the Scotch laws i in cases of divoree 205 - 207,
217, 222 — 225
(See Divorces.) ‘
864 INDEX.

PRINCIPALS AND SURETIES, when in different states . . - 290
“PRIORITY AND PRIVILEGE of foreign liens, how and when
allowed 5 % ‘ , . . 8226-8250
of domestic creditors over feodion assignees . j : 420, 421
of creditors under administrations, by what law determined 524 ~ 527
conflict of, between foreign and domestic creditors - 823-8254
when determined by fhe} lex fort. ‘ » 575
PRIVILEGES AND PRIORITIES, what is the vile shan fe different ©
in different countries . . . . . . 821 —3270°
as to real estate or immovables_. 7 . . - 821-3276
as to personal estate or movables_. A x 5 323 — 327 b
(See Lien.)
PROCESS, belongs to remedies ee eg. so le -  . 568
(See Remepres. )
PRODIGALITY, how it affects the capacity . . . . «. 99-106

PROMISSORY NOTES.
(See NeGorrasLe INSTRUMENTS.) 3814 — 820, 353 - 360

PROOFS, FOREIGN. (See EvipENcrz.)

PROPERTY IN TRANSITU, by what law governed . : - 401, 402
PROSTITUTION, foreign contracts for ‘ 258
PROTEST OF BILLS OF EXCHANGE, how ates and siecniling

to what law. a. ee SE cats 1K 360, 631.
PROTESTANTS, their views on diveres 3 * - . , - 211
PUBERTY, age of, by the Roman Law 5 s ; ‘ ‘ - 498

PUPILS, who by the RomanLaw . . . . .  , + « 498

R.
RATE OF EXCHANGE, on foreign contracts . . . . 308-311
REAL ACTIONS, what . ‘ ee ee ‘ ‘ : - 5380-552
REAL LAWS, what .  . . 0. 4) B75, 425, 426
REAL PROPERTY, governed by the os rei site 364 — 367, 424 — 428, 463
so contracts respecting. . . - 864-373

contracts respecting, how diedlyed ‘ni axitiwiiahed
322 c, note, 351-351 d

what is real property, according to Pothier . 5 j 371
does not pass under foreign bankrupt laws : : 5 - 428
capacity to take or transfer, governed by the lex rei site 430-434
foreign jurists divided upon thig point =. ‘ 7 + 423-434
capacity, according to some, determined : the domicil of

the party . : . : . . . 482
forms of transfer determined hy the Jew rei site ‘ . 435
foreign jurists divided on this point . ee 435-444 b
testaments of, according to some, governed by the domicil

of thetestator . ‘ : 437-444 b
the extent of the interest eeatatareéd pence by the lex

rei site . ‘i : ‘ = : 3 - 445, 446

restrictions upon fuente aig ths Gah. vik 34e -  « 4664
INDEX.

REAL PROPERTY, (continued.)

865

doctrines of the Common and Civil Law alike on this point . 445

what, determined by the lex rei site

447

acquired by operation of law, only according to the tai ret aides 448
under the Common Law, not affected by the law of community 454

difficulties of the civilians on this subject . . 7
wills of, governed by the lex rei site . i :
(See WILLS.)
succession to, governed by the lex rei site . é 3
(See Successton.)
not subject to the authority of a foreign guardian . :
trespasses to, are deemed local ‘ ; f .
a different doctrine once held : . 2
jurisdiction over, exclusive 7 F
foreign judgments are conclusive upon .
(See IMMOVABLES.)

REAL SECURITIES, how administered: when converted into aes

assets ‘
REALITY, reasons for using ‘tis done 4
of penal laws. " : a :
RE-EXCHANGE, by what law ea 3 3 .

REGISTRATION, necessary to make certain instruments evidence .

REMEDIES, are part of the consequences of contracts
classed into three sorts. . ‘
by actions real, personal, and mixed in the Hoaian Lise
where actions must be brought
(See JURISDICTION.)
are governed by the lex fort . : . F
reasons of this rule 3
this rule recognized by the riviltone ; : % :
questions as to what belongs to
what persons may sue
where assignment of an Irish judement
where a scrawl has the force of a seal 2 :
the mode of process belongs to ‘ ‘
where the contract creates no personal cligatio .
when a party is liable to arrest
form of judgments and executions belongs tee
set-off, liens, priorities, &c., belong to
Statutes of Limitation belong to
REMOVAL, with intent to reside, how it affects domicl
RESIDENCE, its importance in determining domicil
must be voluntary . :
once acquired remains
principles as to, in different Boonies .
_ gives jurisdiction to the Scotch courts in cases of
divorce . : : a
(See proames
CONFL. 73

‘463
474

483 — 483d
504

» 554
B54

. 550-555

. 591

. 523
16

» 624
3038 ~ 311
631
837

» 5380
. 530

. 556, 556 a)

557, 558 |

. 559-562

568

. 565-567

566

567

. 568
569, 570
B71

572

. B75
. 576
46, 47

. 44
44, 47
47

. 48

. 215 — 225
866 INDEX.

REVENDICATION, right of, what... : . . 401
REVENUE LAWS, FOREIGN, contracts in evasion Gr A . 245, 246
not regarded : : . a . 257
ROMAN LAW, called the Common Law. ‘ ‘ . . A 12
as to domicil . 5 . : : : ; : - 42
RUNAWAY MARRIAGE, case of —. : .. we ig ; 198
8.

SCOTCH HERITABLE BONDS, what : : ‘ ; : . 3866
whether payable out of the real or personal estate 486 — 489, 529
SCOTCH MARRIAGES, by parties domiciled in England.  .. 124
SCOTCH DIVORCES of English marriages . . . 124, 215 - 225
how obtained . . : : , . : 202

- (See Divorces.)
SCRAWL, where it has the force of a seal ; : : fs . 567
SEAL ofa sovereign, Court of Admiralty, &c., its effect a A . 643
SECURITY AND LOAN, when in different states . : , , . 287a
SENATUS-CONSULTUM VELLEIANUM, what it is . - 15, 57, 425
whether it is a real or a personal statute : : 5 15, 425
SET-OFF, belongs to the remedy, (See COMPENSATION,) . . 575,575 a
SETTLEMENTS, MARRIAGE, their interpretation . : : . 276
SHIPMASTERS, how far bound by foreign law. . . -  . 87389

whether contract made with foreign power to trans-

port convicts valid .. ; : j fi 373 h
SISTER-IN-LAW, marriage with a ‘ $ , : é : 116
Dr. Livingston’s Dissertation as to . . : ; - 115, note
SLAVERY, how it affects the capacity . : 7 7 . F < 104
SLAVE-TRADE, foreign, contracts to carry on : 5 a a - 259
SMUGGLING, contracts for 3 s : és 251, 252, 253
SOVEREIGN, FOREIGN, may sue in our ont 4 ‘ é * - 565
SOVEREIGNTY ofa nation over its own subjects 5 _ - =: 21, 22, 84
within its own territory . 7 . . . - 22
SPECIAL LAWS, as to the capacity of persons, shat : : ; ‘ 51
STAMPS, how they affect foreign contracts 4 : - 260, 318, 631

STATUTE OF FRAUDS, contracts under, their salididy abroad
262, 435, 631

STATUTES, divisions of, by the civilians . s r é ‘ ‘ a dS
what - 5 é . 2 A : F 2 . 12,18
personal, what . 4 a ‘ 5 3 . : 14, 875
real, what. : i é 5 <i . 18, 875, 460, 484
mixed, what i j : : é 18, 875
distinction between perioral and vad . . - 14-16, 461
Senatus-consultum Velleianum . A : : . 15, 425
distinction between local and personal . ; ee 364

STATUTES OF LIMITATIONS. (See Limrrarrons.)

STOCK, in banks, canals, &c., its locality . . : - 883

STOPPAGE IN TRANSI TU, right of, how it adheres . property . 401
wl INDEX. 867

SUBJECTS, wherever they may 7 bound @ the laws of their
country . 7 . . - - 21-23, 84
who are . ‘ : : . : . 541
SUCCESSION AND DISTRIBUTION,
of personal property governed by the law of the dom-

icil of the intestate ‘ 4 5 . 481, 482 a, 514, 514 b
reason of this rule : . ; . 5146
of immovable property woverued be the jee ret site . 483, 484
meaning of the word “ heirs,” &c., how determined . . 484
embarrassing questions arising nnder eee. oe 485 ~491
where intestate, domiciled in England, left real estate
in Scotland . 4 . -\ 487
questions of, and of inieaiaaey governed by ‘a of
: domicil : , : . 4914-491 e
one whose title is perfect i may irae iteverywhere . 5291
SURETIES, according fo what law liable . : : 5 é . 267
SURETIES AND PRINCIPALS, when in different states ‘ : : 590
‘ T.
TENDER AND REFUSAL, when a discharge : . ‘ 5 332
TERRITORIAL JURISDICTION .... co « ww -@ 18
principles of Boullenois as to ee ee ee . 19
TERRITORY, force of the laws of a nation out of - ‘ 7, 20 — 28, 98
this force depends upon comity . 3 2 32 — 38, 278, 306
power of administrator does not extend beyond. . . 512
jurisdiction depends upon . . * : : 539
TESTAMENTARY HEIR, by the Roman Law, iho ee ee 507
TESTAMENTS. (See Wix1s.)
TITLE to personalty how acquired. i S iyo oy. ay & 373 a
by succession, without administration - ‘ : : 3 - 529m
TORTS, committed abroad, rule of damages : . 807d, 807 e
on board foreign vessels, by what law severed i in case of
a conflict of laws . : 4 » 8 ww 488K
(See Conuatons.)
TRANSFER of foreign liabilities, right tosueupon - . - ~~ 353-360

of personal property. (See Persona PRoPERTY.)
under the Bankrupt Laws. (See Banxrurr Laws.)

TRANSIENT PERSONS, contractsof.  . - + + + 2:78, 274
TRIALS, locality of, distinctions as to . 2 : 2 ; . 554
TURNPIKE SHARES, their locality ©.  . - + + + «+ 383
TUTOR, who by the Roman Law ; fo oe 3 493
U.
UNCLE AND NIECE BY BLOOD, marriage between . lida
UNIVERSAL LAWS, as to the capacity of cen what 51
USAGE, how it affects contracts a

USANCE, its meaning in different countries
868 INDEX.

Vv.
VALIDITY OF CONTRACTS, what : . : ; 232
governed by the lex loci , : 7 . 242 a, 243, 327
* (See Contracts.)
VALUE OF MONEY IN CONTRACTS, by what rule ascer-
tained, ‘ ; 4 3 i ‘i . 808, &e.
VENIA JTATITS, ante of 3 60, note
VIS ET MODIS, citations, what Tv are 546
. Ww.
WARD. (See GuaRDIANS.)
WARRANTY, affects the nature of a contract . 264
WIDOWS, their domicil 46
WILLS AND TESTAMENTS, aconitig to the law ‘of fhe is.
tator’s domicil pass personal property, wherever
situate + "464 —475
Sir J. Nicholl’s seeepiien to din rule in the case of
English subjects abroad. e. 466, 467
this rule established in America 468
Scotland 469
among the foreign jurists - 470
as laid down by Vattel « 471,472
where change of domicil after making the sill 473
interpretation of foreign . ; ‘ - 479 a-479 m, 488, 491
of immovable property governed by the lex rei site 431-443 a,
474-479
distinctions of the foreign jurists on this head 475-477
the Scotch law in coincidence with the Common Law . 478
when interrupted according to local rules . 484
of personal property, by what evidence established 636
construction governed by law of domicil 491d
WITNESS, competency of, when convict of an infamous crime in
another state 621
when competent abroad and iteampetent fiers : 629

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