countries, whenever any rights under them are brought into controversy, 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 incapacity to do any act, by the law of the place of his domicil, the act, when 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 leges illius civitatis, quæ personam habet subjectam.2

§ 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 relation to transactions in any foreign country, where they might otherwise be obligatory. Thus, a minor, a married woman, a 1 1 Boullenois, Prin. Gén. 6; 1 Froland, Mém. des Statuts, ch. 7, p. 156.

1 Hertii, Opera, De Collis. Leg. § 4, art. 8, p. 123, edit. 1737; Id. p. 175, edit. 1716. The learned reader is referred for proofs to Huberus, De Conflict. Leg. Lib. 1, tit. 3, § 12, 13, 15; 1 Boullenois, Prin. Gén. 10, 12, 16, 17; Id. Observ. 8, tit. 1, ch. 3, p. 145, &c.; 2 Boullenois, Observ. 32, tit. 2, ch. 1, p. 1 to 53; 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.

"Ergo conditio persona a causa domicilii tota regitur. Nam ut consentiunt Doctores, idem sunt forum sortiri et statutis subjici ; et unusquisque talis esse præsumitur, qualis est dispositio statuti suæ patriæ. Proinde, ut sciamus, uxor in potestate sit mariti necne, quà ætate minor contrahere possit, et ejusmodi respicere oportet ad legem cujusque domicilii." Burgundus, Tract. 2, n. 6; 1 Boullenois,

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 everywhere, not only as to transactions in the place of his or her domicil, but as to transactions in every other place.1

§ 66. Thus, according to this rule, if an American citizen, domiciled in an American State, as, for instance, in Massachusetts, where he would be of age at twenty-one years, should order a purchase 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.2 On the other hand, a person, 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. The same rule will govern in relation to the disposition of 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. 53. "C'est ainsi, (says Boullenois,) que la majorité et la minorité du domicil ont lieu partout, même pour les biens situés aillours." 1 Boullenois, Prin. Gén. art. 6; Id. Observ. 10, 12, and 46. "Celui qui est majeur (says Froland) suivant la coutume, ou il a pris naissance, et sour laquelle il réside, est majeur partout, et peut comme tel, aliener, hypotequer, vendre ses biens, sans considérer, 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 Divers. Stat. tit. 2, ch. 1. So D'Argentré: "Quotiescunque de habilitate aut de inhabilitate personarum quæratur, toties domicilii leges et statuta spectanda." D'Argentré, de Briton. Leg. des Donations, art. 218, Gloss. 7, n. 48, 49. 1 Livermore, Diss. 34. So, John Voet: "Potius domicilii leges observandas existimem; quoties in quæstione, an quis minor vel majorennis sit, obtinuit, id dijudicandum 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, Fœlix, 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 Boullenois, 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.

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.2

§ 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 fluctuation of capacity, state, and condition, upon every accidental change of place of the person, or of his movable property. The language of Rodenburg is: Quid igitur rei in causa est, quod personalia statuta territorium egrediantur? Unicum hoc ipsa rei natura ac necessitas invexit, ut, cùm de statu ac conditione hominum quæritur, uni solummodo Judici, et quidem domicilii, universum in illa Jus sit attributum: cùm enim ab uno certoque loco statum hominis 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 conditionem; 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 præterea quod persona certo loco non affigeretur, cùm res soli loco fixa citra incommodum ejusdem legibus subjaceant, summâ providentiâ constitutum est, ut à loco domicilii, cui quis larem fovendo se subdiderit, statum ac conditionem induat: illis Legislatoribus, pro soli sui genio, optime omnium compertum habentibus, quâ judicii maturitate polleant subditi, ut possint constituere, qui eorum, ac quando ad sua tuenda negotia indigeant auctoritate. Hac igitur personarum qualitus ac conditio, ubi venerit applicanda ad res aut actus alterius territorii,

1 1 Froland, des Stat. Mém. ch. 7, p. 157, 158; 1 Boullenois, Princ. Gén. 6, 19; Id. Observ. 4, 12; Rodenburg, De Divers. tit. 2, ch. 1; 2 Boullenois, Appx. p.

10.

2 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.

jam indirecte, ac per consequentiam vis illius personalis Statuti extra statuentis, pertinget locum: cùm et aliàs non insolitum sit multa indirecte permitti et per consequentiam, quæ directe et expressim non valerent. Nec est, quod quemquam turbet, quod et illa Statuta extra territorii limites diximus excurrere, quibus nominatim status hominum in universum non discutitur, quæ in incertos personales actus à persona exercendos, prohibendo eos aut permittendo, concepta sunt.1

§ 68. The modern law of France, as it is laid down by Pardessus, is to the same effect.2 "No act, whatsoever may be its nature," (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 engagements 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 husbands. 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; Fœlix 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.

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. 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 invoke 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 dignity, to sign bills of exchange, or other engagements, which carry with them a right to arrest the body, ought not to govern transactions of that sort in foreign countries. However, the modern Civil Code of France 2 lays down the general rule in the broadest terms, and declares, that the laws concerning the state and capacity of persons govern Frenchmen, even if resident in a foreign country: Les loix concernant l'état et la capacité des personnes régissent les François même résidant en pais étranger.3

§ 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. Pothier lays down this rule as we have 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 l'empire, des lois du lieu du domicile, qu'elles quittent, et les assujettit à celles du lieu de nouveau domicile, qu'elles acquièrent.5 Burgundus adopts the same rule: Con1 5 Pardessus, P. 6, tit. 7, ch. 2, § 1, art. 1482; Henry on Foreign Law, Appendix, p. 221, 222. See Cochin, Euvres, Tom. 1, p. 154, 4to edit.

2 Pardessus, de Droit Commerc. Vol. 5, art. 1483, p. 250; post, § 74.

3 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 collected.

5

Pothier, Coutum. d'Orléans, ch. 1, art. 1, n. 13; ante, § 51.