to change his national domicil, notwithstanding his correspondence 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 capacity, with an intention to return at some indefinite and uncertain period.2] 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. § 51 a. § 51 b. They go with the person wherever he goes. The distinctions maintained by some writers. § 52, 53. Writers differ as to personal disabilities extending to immovables in a foreign country. 54, 54 a. Some claim that laws affecting capacity have no extra-territorial force. § 55. The law of actual domicil governs personal capacity. § 55 a. 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. 66 a. 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. 1 Allardice v. Onslow, 10 Jur. N. S. 352. § 78. An early case in that state adopts the law of the actual domicil. § 79. "The English courts hold a foreign marriage valid sometimes, even against the local law. § 79 a. Illustration of the point from recent English decisions. § 80. Marriage of English minors void, if void where made. § 80 a. 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. 82 a. 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. 87 a. 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. 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. 936. Foreign jurists generally hold marriage and legitimacy governed by same law. 93 c. Some extend it to all the consequences of the marriage. 93 f. The application of the doctrine admits of some embarrassment. § 93 g. 93 h. 93 i. § 93 k. § 93 L. The English courts adhere pertinaciously to the English rule. 93 m. Their view has never been maintained, even in England. 93 m. The question somewhat in debate in England. § 930. Heirship there implies legitimacy, and birth after marriage. 93 p. This view examined and questioned. 93 q. Reasons urged against the English view. 93 r. Further arguments urged in same direction. 93 s. The law of the place of marriage decides its consequences. $ 93 t. Illustrations from the continental writers. § 93 u, 93 v. 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. 96 a. 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. Resume of the whole subject proper. 101. Law of domicil governs as to validity of acts done there. § 102. The validity of contracts depends on the lex loci contractus. § 102 a. § 102 6. The law of domicil will not always control this rule, even as to incapacities. § 103. 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. 105 a. 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.1 § 51. All laws, which have for their principal object the regulation of the capacity, state, and condition of persons, have been treated by foreign jurists generally as personal laws.2 They are by them divided into two sorts; those which are universal, and those which are special. The former regulate universally the capacity, 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 capacity 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 Foreign Law, Vol. 1, P. 1, ch. 3, § 1, p. 52, &c.; Id. § 2, p. 92, &c.; Id. § 3, p. 101; and to Id. ch. 4, p. 113 to 135. ·Cujacius defines the condition of a party thus: Conditio pro statu accipitur; puta, pater-familias sit, an filius-familias, servus, an liber. Ætatem, valetudinem, facultates, mores non significat. Liverm. Dissert. § 26, p. 38, cites Cujacii, Observ. Lib. 7, cap. 36. 2 See Saul v. His Creditors, 17 Martin R. 569, 596. Boullenois enumerates, as personal, all laws, which regard majority or minority, emancipation, interdiction 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 strangers, 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 emancipation, 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 statutes those respecting majority, legitimacy, guardianship, and the paternal power. Le Brun, Traité de la Communauté, Liv. 2, ch. 3, § 5, n. 25. See, also, Bouhier, 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, &c. See Henry on For. Law, 2, 3; 1 Froland, Mém. ch. 5, p. 81. foreign jurists to be of absolute obligation everywhere, when they have once attached upon the person by the law of his domicil.1 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 personne d'une qualité, qui lui est inhérente, et la personne est telle partout.2 And again,- Les loix pures personnelles, soit personnelles universelles, soit personnelles particulières, se portent par tout; c'est à dire, que l'homme est partout de l'etat, soit universel, soit particulier, dont sa personne est affectée par la loi de son domicil3 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 quæritur, uno solummodo judici, et quidem domicilii, universum in illâ jus sit attributum.5 Hence (says Hertius) 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. Hinc status et qualitas 1 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 twenty-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. 3 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, Règle, 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. personæ regitur a legibus loci, cui ipsa sese per domicilium subjecit.1 Quando lex in personam dirigitur, respiciendum est ad leges illius civitatis, quæ personam habet subjectam.2 § 51 a. Froland, Bouhier, Rodenburg, Paul Voet, Pothier, and others, lay down a similar rule.3 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 provisions 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, qu'ils soient assis.* Bouhier adopts the very rule of Boullenois: Quand le statut personnel du domicil est en concurrence avec le statut personnel de la situation des biens celui du domicil dont l'emporter sur celui de la situation des biens.5 And again, he says: It is necessary constantly 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 capacité ou l'incapacité, que la loi du domicil a imprimée sur la personne la suit en tous lieux. En sorte que ce seroit inutilement, que étant incapable au lieu de sa résidence, elle voudroit aller contracter dans un endroit, ou il auroit été capable, si elle y avoit été domiciliée. Abraham à Wesel uses language equally strong: Quotiescunque enim de habilitate atque inhabilitate personæ quæritur, toties domicilii leges et statuta spectanda, ut quocumque persona abeat, id jus 1 Hertius, De Collis. Leg. § 4, n. 5, p. 122; Id. p. 173, 174, edit. 1716. * Id.; Id. n. 8, p. 123; Id. n. 12, p. 128; Id. p. 175; Id. p. 182, edit. 1716. 1 Froland, Mém. de Statut. ch. 7, § 2, p. 156; Id. vol. 2, ch. 33, § 8, 9, 10, p. 1574; Bouhier, Cout. de Bourg. ch. 23, § 92, p. 461; Id. ch. 24, § 11, p. 463; 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. 34; 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, 173, 175, edit. 1716. See, also, Foelix, Revue Etrangère 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. * 1 Froland, Mém. ch. 7, § 2, p. 156; Id. ch. 5, § 4, p. 89; Post, § 84. 5 " Bouhier, Cout. de Bourg. ch. 23, § 91 to 96, p. 461; Id. ch. 22, § 4 to 14, § 19. 6 Bouhier, Cout. de Bourg. ch. 24, § 11, p. 463. |