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 interest 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 creates very complicated private relations and rights between the citizens of those States, which call for the constant administration of extra-municipal principles. This branch of public law may, therefore, be fitly denominated private international law, since it is chiefly seen and felt in its application to the common business of private persons, and rarely rises to the dignity of national negotiations, or of national controversies.1 § 10. The subject has never been systematically treated by writers 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.2 § 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 metaphysical 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 mixtes. 1 Froland, Mémoires des Statuts, ch. 1, § 9, p. 13; Id. ch. 7, § 1, p. 155. 2 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. 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 doctrines 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 approbation, with which they are entertained by courts of justice.1 § 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 parliament 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 COMMON 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, Profession d'Avocat, Vol. 2, tit. 7, § 5, art. 1561 to 1566; in Froland, Mémoires concernans 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 leading 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, Opera, De Collisione Legum, § 4, art. 5, p. 121; Id. p. 172, edit. 1716. 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.3 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 dicuntur municipiorum. Et quidem, ab alio, quia regulariter statuta non condit Imperator; excipe, nisi municipibus jura det, statuta prœscribat, secundum quæ ipsi sua regant municipia. Denique adjicitur, quam imperatore, quod licet Imperator solummodo dicatur legislator, id tamen, non alio sensu obtineat, quam quod suis legibus non hunc aut illum populum, verum omnes constringat, quos suæ clementiæ regit imperium.7 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 à toutes sortes de lois et de règlemens. Chaque disposition d'une loi est un statut, qui permet, ordonne, ou défend quelque chose.8 § 13. 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. 123, edit. 1661. 3 Ibid. 4 P. Voet, de Statut. § 4, ch. 1, § 2; Id. p. 124, edit. 1661. Ibid. • 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; Id. 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. but real statutes are held to have no extra-territorial force or obligation.1 "Personal statutes," (says Merlin,) "are those, which have principally for their object the person, and treat only of property (biens) 2 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.3 Real statutes are those, which have principally for their object property (bien), and which do not speak of persons, except in relation to property; such are those which concern 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 classification 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 determined. But this distribution into three classes is usually adopted, precisely as it is stated by Rodenburg: - Aut enim statutum simpliciter disponit de personis; aut solummodo de rebus; aut conjunctim 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. * The term "biens,” in the sense of the civilians and continental jurists, comprehends not merely goods and chattels, as in the common law, but real estate. But the distinction between movable and immovable property, is nevertheless recognized 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. 4 See Pothier, Coutum. d'Orléans, ch. 1, § 2, art. 21. • Merlin, Répertoire, Statut.; Id. Autorisation Maritale, § 10. • Ibid. ' Rodenburg, De Statut. Diversitate, ch. 2, p. 4; Le Brun. Traité de la Communauté, Liv. 2, ch. 3, § 20 to § 48; Bouhier, Coutum. de Bourg. ch. 21 to ch. 37; 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 simplement des personnes; ou il dispose simplement des choses; ou il dispose tout à la fois des personnes et des choses." 1 Boullenois, Traité des Statuts réels et personnels, tit. 1, ch. 2, obs. 2, p. 25; Id. Princ. Gén. p. 4, 6. Mr. Henry, in his the following manner. plicatiùs: Aut universus personæ status, aut conditio in dispositione statuti vertitur, citra ullam rerum adjectionem, adeoque de personis agitur in abstracto, absque ullâ consideratione rerum; ut, verbi gratiâ, quoto quis ætatis anno fui Juris sit, quando exeat parentum potestate; de quibus et consimilibus exemplis mox fusiùs. Aut in solas nudasque res statuti dispositio dirigitur, ut nullum intervenire necesse sit actum hominis, aut aliquam concurrere persona operam; cujusmodi sunt, quibus rerum successionibus ab intestato Jus ponitur; ut bona materna cedant maternis, paterna paternis, nothi succedant matribus, non succedant patribus; quando succedatur in stirpes, quando in capita; quæ Jura successionum ab intestato appellaveris. Aut permittit denique, vetat, aut ordinat, actum a personis circa res peragendum, ex utriusque complexu constructum Statutum, contra quod, ut queat committi quippiam, personæ actum intervenire necesse est. Quo pertinet. Sine indulto Principis derebus suis nemo testator; conjuges sibi invicem non leganto; vir citra consensum uxorium res soli non alienato.1 Quæ ita constrictim dicta sic habentur ex §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 persons, 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 distribution, 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 also Livermore's Dissert. 2, § 65 to § 162, p. 62 to 106; Id. § 168, p. 109. Mr. Justice Porter, in delivering the opinion of the Supreme 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 follows, 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. 1 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 |