Hertius admits, that these subtilties have so perplexed the subject, that it is difficult to venture even upon an explanation. His language is: De collisu legum anceps, difficilis, et late diffusa est disputatio, quam nescio, an quisquam explicare totam aggressus fuerit. And in another place, he adds: Cæterum Junioribus plerisque placuit distinctio inter statuta, realia, personalia, et mixta. Verum in iis definiendis mirum est, quam sudant Doctores.2 Bartolus 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 consuetudinis, 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 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 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 second, it is personal." Cited in 17 Martin, R. p. 594; D'Aguesseau, Œuvres, tom. 4, p. 660, 4to edit. How unsatisfactory is this description, when applied in practice. 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. 3, p. 120; Id. p. 170, edit. 1716. See alsó 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 foreign 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. ut per hæc verba," Bona decedentis, ut veniant in Primogenitum"; et tunc de omnibus bonis judicabo secundum usum et statutum, ubi res sunt situatæ, quia jus affecit res ipsas, sive possideantur à cive, sive ad abvena. Aut verba statuti seu consuetudinis disponent circa personas; ut per hæc verba; " Primogenitus succedat"; et tunc, aut ille talis decedens non erat de Anglia, sed ibi haberet possessiones; et tunc tale statutum ad eum et ejus filios non porrigitur, quia dispositio circa personas non porrigitur ad forenses.1 Aut talis decedens erat Anglicus, et tunc filius primogenitus succederet in bonis, quæ sunt in Angliâ, 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 estate," (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 objects, would otherwise decide its character.3 1 Bartolus, ad Cod. Lib. 1, tit. 1, De Sum. Trinit. 1. 1, Cunctos populus, n. 42; Liverm. Dissert. § 68, 69, p. 63, 64; 1 Boullenois, Observ. 2, p. 16, 17.— The text 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, 23; 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. 263. Ibid. 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. "According 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 writers, 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, statute § 15. Le Brun says, that in order to ascertain whether is personal or not, it is necessary to examine whether it universally established as a rule, that, whenever the statute commenced by treating of persons, 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 jurisprudence; 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 personam 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 to n. 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 Burgundus, Rodenburg, Stockmans, Voet, and Dumoulin. (Froland, Mémoires concernans 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, however, 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 follow these authors through all their refinements. President Bouhier, who wrote about the same time as Boullenois, and who has treated the subject as extensively 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 remain 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 effect 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 governs the state of the person, independent of property. If it does not universally govern the state of the person, but only particular 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 statutes which relate to the paternal power, the right of wardship, the tenancy by courtesy, (droit de viduité,) the prohibition of married persons to confer advantages 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 interest 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 respicientis extra personas contrahentes, totas hanc inhabilitatem non egredi locum statuti." (Euvres, D'Aguesseau, Vol. 4, 660, cinquante-quatrième plaidoyer.) This definition is, we think, better than any of the rest; though even in the application of it to some cases, difficulty would exist. If the subject had been susceptible 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, therefore, 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 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 within 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 upon the condition of the country, in which the foreign law is sought to be enforced, the particular 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, which 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." act only. And a statute to be personal, must regulate the state of the person without speaking of property, (biens). Thus, a statute 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 Senatûs-consultum Velleianum, by which a married woman was prohibited from binding herself for the debt of another person,' (and which was borrowed 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 statute. In one word, a statute is real which regulates a particular act of the person, or which speaks of property.3 Other jurists of distinguished reputation (among whom is Boullenois) have denied this to be a sound distinction; and have specially held the Senatûs-consultum Velleianum to be a personal statute.1 § 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 propounded 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 important 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 1 Dig. lib. 16, tit. 1, l. 1; Id. l. 16, § 1. * Le Brun, Traité de la Communauté, Liv. 2, ch. 3, § 5, n. 20 to 48, p. 310 to 319. * Ibid. * 1 Boullenois, Princ. Gen. 5; Id. Obser. 3, p. 40; Id. Obser. 5, p. 78, 79, 82, 101, 103, 105, 106, 118; 31, 50. Id. Obser. 4, p. 43, 49; |