the bodies of the parties are liable to an arrest for a breach of the contract, ought not to extend to the like acts of the same persons done in other countries.1 For, although it may be urged, that it is a personal law, which follows the person everywhere, as in the case of a minor, or of a married woman under the marital power, and every person is bound to know the state and condition of the person, with whom he contracts; yet, he contends, that the rule ought not to be applied, except to the universal state of the person, such as that of a minor or a major, or of a woman subject to, or free from, the marital power. For, he adds, all nations agreed in fixing the capacity to contract to a certain age, and in placing women in dependence upon their husbands.2 Every one will at once perceive how exceedingly loose the distinction is, for which Pardessus contends, and how unsatisfactory his reasoning, by which this exception is attempted to be maintained. The objection to the reasoning is, that if well founded, the argument from inconvenience would carry it much further; and persons dealing with others may require proof of their majority, or of their special authority to contract, if they are minors, or whether they are married or not; and in both cases may guard against false statements, by requiring a guaranty. On the contrary, these special prohibitions, on account of a certain quality or dignity, are more arbitrary. They are founded less in general public utility, and ought not, therefore, to be invoked in aid of the party. At least, the exception ought not to be admitted, except between subjects of the same state, or unless the incapacity of the person, and the nullity of the obligation by the law, were known at the time of the contract by the other party.3

§ 75. Now, it so happens, that, what Pardessus (and many other jurists are certainly of the same opinion) supposed to be very clear doctrine, has been directly overturned, and the contrary doctrine has been held by the Supreme Court of Louisiana. That court, in a very learned opinion, have said: "The writers of this subject, with scarcely any exception, agree, that the laws or statutes, which regulate minority and majority, and those, which fix the state or condition of man, are personal statutes, and follow, and govern

1 Pardessus, de Droit. Comm. Vol. 5, art. 1483, p. 250.

2 Pardessus, Vol. 5, P. 6, tit. 7, ch. 2, § 1, art. 1483, p. 250; Henry on Foreign Law, App. 222.

3 Ibid.

him, in every country. Now, supposing the case of our law, fixing the age of majority at twenty-five, and the country, in which a man was born and lived previous to his coming here, placing it at twenty-one; no objection could perhaps be made to the rule just stated. And it may be, and, we believe, would be true that a contract, made here at any time between the two periods already mentioned, would bind him. But, reverse the facts of the case; and suppose, as is the truth, that our law placed the age of majority at twenty-one; that twenty-five was the period, at which a man ceased to be a minor in the country where he resided; and that, at the age of twenty-four, he came into this state, and entered into contracts; would it be permitted that he should in our courts, and to the demand of one of our citizens plead, as to protection against his engagements, the laws of a foreign country, of which the people of Louisiana had no knowledge? And would we tell them, that ignorance of foreign laws, in relation to a contract, made here, was to prevent him from enforcing it, though the agreement was binding by those of their own state? Most assuredly we would not.1

§ 76. The case first put seems founded upon a principle entirely repugnant to that, upon which the second rests. In the former case, the law of the place of the domicil of the party is allowed to prevail, in respect to a contract made in another country; in the latter case, the law of the place where the contract is made, is allowed to govern, without any reference whatsoever to the law of the domicil of the party. Such a course of decision certainly may be adopted by a government, if it shall so choose. But, then, it would seem to stand upon mere arbitrary legislation and positive law, and not upon principle. The difficulty is in seeing, hów a court, without any such positive legislation, could arrive at both conclusions. General reasoning would lead us to the opinion, that

1 Saul v. His Creditors, 17 Martin, R. 596 to 598. The opinion of the court was delivered by Mr. Justice Porter. See also, Andrews v. His Creditors, 11 Louis. R. 464, 476. A like doctrine was held by the same court in another case. The court on that occasion said: "A foreigner coming into Louisiana, who was twenty-three years old, could not escape from a contract with one of our citizens, by averring, that according to the laws of the country he left, he was not a major until he reached the age of twenty-five." Baldwin v. Gray, 16 Martin, R. 192, 193. See also, Fergusson on Divorce, App'x, p. 276 to p. 363; post, § 82. Hertius, De Collisione, Tom. 1, § 4, n. 5, p. 120, 121; Id. p. 173, 174, edit. 1716. Grotius seems to have been of opinion, that the lex loci contractus ought to govern in cases of minority. Grotius, B. 2, ch. 11, § 5.

both cases ought to be decided in the same way; that is, either by the law of the domicil of the party, or by that of the place, where the contract is actually made. Many foreign jurists maintain the former opinion;1 some the latter.2 Perhaps it is not very easy to

1 See Livermore, Dissert. § 17, p. 32 to § 56, p. 57. Mr. Livermore denies this doctrine of the Supreme Court of Louisiana to be correct, and has collected in the place cited the leading authorities in favor of the doctrine, which he contends is the true one, that the law of the domicil of the person ought universally to prevail, as to his personal capacity or incapacity. Among the authorities in its favor, he enumerates D'Argentré, Bartolus, Rodenburg, Jason, and Paulo de Castro. Liverm. Dissert. § 21, p. 34. D'Argentré, Comm. Leg. Briton. art. 218 (Gloss. 6, n. 47, 48), says: Quotiescunque de habilitate aut inhabilitate personarum quæratur, toties domicilii leges et statuta spectanda. Nam de omni personali negotio, Judicis ejus cognitionem esse, cui persona subsit, ut quocunque persona abeat, ad jus sit, quod ille statuerit. Bartolus puts the case, whether, if a filius familias (an unemancipated son) is allowed by the local law to make a testament, a foreign filius familias can in the same place make a valid testament; and he answers in the negative. Dico quod non ; quia statuta non possunt legitimare personam sibi non subditam, nec circa ipsam personam aliquid disponere. Bartolus, Ad. Cod. Lib. 1, tit. 1, l. 1, n. 25, 26. De Castro (as cited in D'Argentré ubi supra) says, that a statute of Modena, permitting minors to contract at fourteen years of age, will not make valid a contract at Modena by a minor of that age belonging to Bologna. Ratio est, quia hic abstractè de habilitate personæ, et universali ejus statu quæratur, ideoque persona a statuto domicilii efficiatur. Biverm. Diss. § 21, p. 34, 35, § 25, p. 37. Burgundus, Christinæus, Grotius, and De Wesel, appear to hold the same opinion. See Voet, ad Pand. Lib. 1, tit. 4, p. 2, n. 7; Burgundus, Tract. 1, n. 8, 34. Rodenburg is still more full to the same point. Rodenb. de Diversit. Statut. tit. 2, ch. 1, n. 1; 2 Boullenois, App. p. 11, cited also Liverm. Diss. § 31, p. 40, 41. See also, Hertii, Opera, Tom. 1, De Collis. § 4, n. 8.

2 Mr Livermore says, that Huberus alone is in favor of the latter opinion. I draw the conclusion, that P. Voet (Voet, de Statut. § 4, ch. 2, n. 6, p. 137, 138, edit. 1661) and J. Voet (Voet, ad Pand. Lib. 1, tit. 4, p. 2, n. 7) entertain the same opinion. There are probably many other jurists, who are on the same side. It is very certain, that the rule, that either the law of the domicil of origin, or the law of the actual domicil, or even the law of the lex loci contractus, is to govern in all cases, has never been adopted in the English courts. The rule of the actual domicil, or the place of the contract, has been admitted generally; but does not (as we shall presently see) universally govern. Mr. Burge has propounded the same doctrine as the Supreme Court of Louisiana, and said: “In a conflict between the personal law of the domicil and the personal law of another place at variance with it, that of the domicil prevails. But the preceding rule admits of some qualification. It is not to be applied, when it would enable a person to avoid a contract, which he was competent to make by the personal law of the place in which he made it, although he was incompetent by the personal law of his domicil. Thus, if a person, whose domicil of origin was in Spain, where he does not attain his majority until his twenty-fifth year, should, at the age of twenty-three, enter into a contract in England, or any other place, where his

decide, which rule would, on the whole, be most convenient for any nation to adopt. It may be said, that he, who contracts with another, ought not to be ignorant of his condition: Qui cum alio çontrahit, vel est, vel esse debet, non ignarus conditionis ejus.1 But this rule, however reasonable in its application to the condition of a person, as fixed by the law of the country, where he is domiciled, is not so clear in point of convenience or equity, when applied to the condition of a person, as fixed by the law of a foreign country. How are the inhabitants of any country to ascertain the condition of a stranger dwelling among them, as fixed by the law of a foreign country, where he was born, or had acquired a new domicil? Even courts of justice do not assume to know, what the laws of a foreign country are; but require them to be proved. How then shall private persons be presumed to have better means of knowledge? On the other hand, it may be said with great force, that contracts ought to be governed by the law of the country where they are made, as to the competence of the parties to make them, and as to their validity; because the parties may well be presumed to contract with reference to the laws of the place, where the contract is made, and is to be executed. Such a rule has certainty and simplicity in its application. It ought not, therefore, to be matter of surprise, if the country of the party's birth should hold such a contract valid or void, according to its own law, and that, nevertheless the country where it is made and to be executed, should hold it valid or void, according to its own law. It has been well observed by an eminent judge, that "with respect to any ignorance arising from foreign birth and education, it is an indispensable rule of law, as exercised in all civilized countries, that a man who contracts in a country, engages for a competent knowledge of the law of contracts of that country. If he rashly presumes to contract without such knowledge, he must take the inconveniences minority ceases at twenty-one, he would not be permitted to avoid his contract by alleging that he was a minor, and incompetent to contract, according to the law of Spain. The maxim, that every man is bound to know the laws of a country, in which he enters into a contract, is of universal application, and is perfectly just and reasonable; because it is in his power to obtain that knowledge; but the maxim, "Qui cum alio contrahit, vel est, vel debet esse non ignarus conditionis ejus," cannot be applied to those cases, in which the condition depends on facts and law, to which he is a perfect stranger. 1 Burge, Comm. on Col. and For. Law, R. 41. ch. 1, p. 27, 28. See post, § 79 to § 82.

resulting from such ignorance upon himself; and not attempt to throw them upon the other party, who has engaged under a proper knowledge and sense of the obligation, which the law would impose upon him by virtue of that engagement." 1

§ 77. In another case, decided at an earlier period, the Supreme Court of Louisiana adopted the doctrine, that the laws of the domicil of origin ought to govern the state and condition of the party, whether as major or as minor, into whatever country the party removes. But the decision may, perhaps, be thought to rest on its own peculiar circumstances. The case was this. The plaintiff in the suit (a female) was born in Louisiana in 1802, and the laws of the State at that time fixed the age of majority at twenty-five years. In the year 1808, the period of majority in the State was altered to twenty-one years. The plaintiff in 1827 (when the suit was brought) was, and for several years before had been, a Spanish subject, and a resident in Spain, where minority does not cease until twenty-five years. The suit having been brought by her to recover her share in the succession to her grandmother, in the courts of Louisiana, before she was twenty-five, the question arose, whether she was competent to maintain the suit; and that turned upon another question, whether she was to be deemed a minor, or not. The court upon that occasion decided, that she was to be deemed a major, as she was then over twenty-one years of age, although not twenty-five. Mr. Justice Porter in delivering the opinion of the court, said: "The general rule is, that the laws of the domicil of origin govern the state and condition of the minor, into whatever country he removes. The laws of Louisiana, therefore, must determine at what period the plaintiff became of age; and by them she was a major at twenty-five. Admitting that her removal into another country, before the alteration of our law, would exempt her from its operation, and that her state and condition were fixed by the rules prevailing in the place where she was born at the time she left it, a point by no means free from difficulty, no proof has been given, that the plaintiff was taken out of Louisiana before the change made in 1808. And as the defendant by pleading the minority assumed the affirmative, it was her duty to establish the fact on which the exception could be sustained.' 12 The question, therefore, did not here arise, as to the

1 Lord Stowell, in Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 61; ante, § 75; post, § 82.

Barrera v. Alpuente, 18 Martin, R. 69.