sequenter dicemus, si mutaverit domicilium persona, novi domicilii conditionem induere.1 So Rodenburg: Persona enim status et conditio cum tota regatur a legibus loci, cui illa sese per domicilium subdiderit, utique mutato domicilio mutari et necesse est personæ conditionem.2 Froland, indeed, (as we have already seen,) mentions 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.1 §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 obligation 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 distinguish 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, p. 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 53; Merlin, Répertoire, Majorité, § 5; Autorisation Maritale, § 10; Effet Retroactif, § 2, 3, art. 5; ante, § 55, 55 a, 56. * Code Civil of France, art. 3. See also, Cochin Euvres, 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. 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 interdiction or incapacity from insanity or from prodigality, emancipation 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."1 And he adds: "But there are states and conditions more subordinate, and which in truth arise from public laws, (que sont, a la veritè 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."2 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. 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 necessity of not injuring the rights of parties requires that it should be departed from. (3.) Thirdly; not to impair these principles, when otherwise the law furnishes the means of remedying any wrong, which the change of domicil might cause.5 Or, in other words, he affirms: first, that the law of the domicil ought gen 1 2 Boullenois, Observ. 32, p. 10, 11, 19. 2 Ibid. p. 11. 4 Ibid. P: 12. 3 Ibid. 5 Ibid. p. 12, 13. 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 majority, 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.3 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, notwithstanding his removal. He deduces the former from the injustice, which he supposes would follow from reducing a person 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.5 This, however, is but changing the postures of the case. For Boullenois 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 Rodenburg are against him. Perhaps a better illustration of the intrinsic difficulties of laying down any general rules for all cases 1 Boullenois, Observ. 32, p. 11, 12, 13, 19; ante, § 57. * Ibid. p. 12. 2 Ibid. * 2 Boullenois, Observ. 32, p. 13; ante, § 57. Ibid. p. 12, 19, 20. 5 Ibid. ' Ibid. p. 19, 20. 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.1 § 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 confusion and mischief, which would arise from the same person being considered as capable to contract in one place, and incapable in another; so that he might change his civil character and capacity with every change of his domicil.2 There may, perhaps, be a solid ground of argument in favor of giving a universal 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 personal 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.3 § 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 gcneral 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 foreigners, to prevail within its own territory, as does prevail in the place 1 1 Boullenois, Princ. Gén. 8, 10, 11, 17, 18; Id. Obs. 4, p. 51, 52. Henry on For. Law, p. 5, 6; Rodenb. tit. 1, ch. 3, n. 4; 2 Boull. App. p. 8. See 1 Burge, Comment. on Col. and For. Law, P. 1, ch. 4, p. 129 to p. 134. 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 condition of its own subjects, wherever they may reside, at home, or 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 property either of foreigners, or of its own subjects within its own territory. It may adopt the more general doctrine, and allow the rule 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. Probably 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 property out of the country of the birth of the party (domicilium originis). 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, wherever 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 remarks in the actual jurisprudence of many countries. Thus, (as we have seen,) 2 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 1 See 1 Burge, Comment. on Col. and For. Law, P. 1, ch. 4, p. 129 to p. 134. * Ante, § 68. |