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 ^<?Aavaaii-^^
 
 LITTLE, BROWN & CO.'S 
 
 LAW ADVERTISEE 
 
 112 -WjA.SZIZXTGTON' STRZ3Z2T, BOSTON. 
 
 MAY, 1855. 
 
 JUDGE CURTIS'S 
 
 EDITION OF THE 
 
 DECISIONS 
 
 SUPREME COURT OP THE UNITED STATE 
 
 Now in Press, and will shortly be Published, the Decisions of the 
 Supreme Court of the United States, with Notes and n Digest, by 
 Hon. Benjamin R. Curtis, one of the Associate Justices of the 
 Court. In 18 volumes octavo. Comprising the Cases reported 
 by Dallas, 4 vols.; Cranch, 9 vols. ; Wheaton, 12 vols.; 
 Peters, 1G vols. ; Howard, 1G vols. ; in all 57 volumes. 
 
 EXTRACT FROM THE PREFACE. 
 
 "This work contains the decisions of the Supreme Court of the Unit- 
 States. The opinions of the Court are, in all cases, given as they have be 
 printed by the authorized reporters, after correcting such errors of the pr( 
 or of citation as a careful examination of the text has disclosed. 
 
 "I have endeavored to give, in the head-notes, the substance of each de 
 sion. They are designed to sliow the points decided by the Court, not t 
 dicta or reasonings of the Judges. 
 
 " The statements of the cases have been made as brief as possible. E 
 many years, it has been the habit of all the Judges of this Court to set for* 
 in their opinions the facts of the cases, as the Court viewed them in maltr 
 their decision. Such a statement, when complete, renders any other sup. 
 lluous. When not found complete, I have not attempted to restate the -whc 
 case, but have supplied, in the report, such facts or documents as seemed 
 me to be wanting.
 
 "In some cases, turning upon questions, or complicated states of fact, and 
 not involving any matter of law, I have not thought it necessary to encum- 
 ber the work with detailed statements of evidence which no one would find 
 it useful to recur to. These instances, however, are few. 
 
 " To each case is appended a note referring to all subsequent decisions in 
 which the case in the te.^■t ^^^ been mentioned. It Avill thus be easy to as- 
 certain whether a decision has been overruled, doubted, qualified, explained, 
 or affirmed • and to see what other applications have been made of the same 
 or analogous princl])les. 
 
 " The paging of the authorized reporters has been preserved at the head 
 of each case, and in the margin of each page, for convenience of reference; 
 the reporters being designated by their initials, — D. for Dallas, C. for 
 Cranch, W. for AVheaton, P. for Peters, II. for Howard. 
 
 " It is expected that all the decisions of the Court, down to the close 
 of the December Terra, 1854, will be embraced in eighteen volumes. To 
 these will be added a Dicrest of all the decisions." 
 
 We ask attention to the following approval by the Members of the Su- 
 preme Court of the United States : — 
 
 " We approve the plan of Mr. Justice Curtis's ' Decisions of the Supreme 
 Court of the United States,' and believe that its execution by him will be of 
 much utility to the legal profession, and to our country." 
 
 Roger B. Taney, Chief Justice. Petek V. Daniel, Associate Justice. 
 
 John McLean, Associate Justice. Samuel Nelson, Associate Justice. 
 
 James M. Wayne, Associate Justice. Robeut C. Grier, Associate Justice. 
 
 John Catron, Associate Justice. J. A. Campbell, Associate Justice. 
 
 The Old Series of these Reports are in 57 volume, the Catalogue price of 
 which is S21 7.50. This Edition, in 18 volumes, will be offered to Subscribers 
 at the low price of S3 a volume, or 854 the set; thus bringing them within 
 the means of all. The volumes will be delivered as fast as issued, and It Is 
 intended that the whole work shall be completed within six months from the 
 present date. Vols. I. II. III. are nearly ready for publication. Those wish- 
 ing to subscribe will please send in their names to the Publishers as early as 
 possible. 
 
 REPUBLICATION OF THE 
 
 ENGLISH HEPOETS, IN FULL. 
 
 BY LITTLE, BROWN & CO. 
 
 Containing Reports of all the Cases before the House of Lords, Privy 
 Council, the Lord Chancellor, the High Court of Appeal in Chan- 
 cery, all the Common-Law Courts, the Court of Criminal Aj^peal, 
 and the Admiralty and Ecclesiastical Courts. 
 
 The Publishers of this Series of the English Law and Equity Reports in- 
 vite the attention of the Profession to the following statements, showing the 
 advantages Avhich they possess over all others : — 
 
 I. Tlit'y are the only reprints which furnish all the cases decided in their 
 respective oonrts. Tlic third volume of Ellis and Blackburn, issued from
 
 the Philadelphia press, professes to give the decisions of the Queen's Bench 
 in Hilary, Easter, and Trinity Terms, 1854; but it contains only eighty- 
 six cases out of OXE hundred and twenty-one, all ofichich ivill be found 
 in the Law and Equity Eepoi-ts. Many of the cases omitted are among the 
 most important decided in that period. The Philadelphia reprint of the 14th 
 Common Bench, purport.'! to contain the cases from Michaelmas Term, 1853, 
 to Easter Term, 1854, inclusive; but is gives only sixty cases out of eighty- 
 three. For the remaininrj cases, the America7i lawyer must look to the Law 
 and Equity Reports. The Exchequer Reports, in like manner, will be found 
 incomplete. And this incompleteness of the Philadelphia series increases 
 from year to year ; for the proportion of cases omitted is much greater in 
 the recent volumes than in the previous ones. 
 
 II. The character of the Law and Equity Reports will bear the most rigid 
 comparison with the Philadelphia series. They have a much larger circula- 
 tion in England, and are as freely and confidently cited. The Law Journal 
 and Jurist are cited 833 times in " Shelford on Railways;" while Meeson 
 and AVelsley, the Queen's Bench, Common Bench, and Exchequer Reports 
 are collectively cited but 455 times. In "Hill on Trustees," the Law Joun- 
 nal. Jurist, and Law and Equity Reports are cited 846 times. In " Saun- 
 ders's Pleading and Evidence," the Law Journal and Jurist are cited 1871 
 times ; while the Queen's Bench, Common Bench, and Exchequer Reports 
 are collectively cited but 1444 times. And an examination of any recent 
 Enylish law-book icill show the same high appreciation of the p)Mi.cations from 
 ivhich the Law and Equity Reports are printed. 
 
 III. In these Reports, the decisions are generally given several months 
 in advance of the Philadelphia reprints. Even in the volumes lohich are 
 announced as in advance of our reports, it ivill be found that a large propor- 
 tion of the cases had become familiar to the profession, through the Law and 
 Equity Reports, before their publication at Philadelphia. But by the reduc- 
 tion of matter which the omission of the Chancery cases in the inferior courts 
 will cause, we shall be able hereafter to publish the common-law cases seve- 
 ral months earlier than heretofore. The 28th volume, containing the cases 
 in Michaelmas Term, 1854, and a part of Hilary Term, 1855, will be pub- 
 lished in July next, embracing the cases of the first part of 4th Ellis and 
 Blackbnrn ; Part Second of 15 Common Bench, and Part Third of 10th Ex- 
 chequer Reports, and being nearly a year in advance of their publication in 
 the Philadelphia series. Thereafter, ice intend to publish the cases of each 
 term within four months from the rising of the courts. 
 
 IV. In addition to the complete reports of the Common Law Courts, this 
 series will furnish the cases before the House of Lords, the Privy Couyicil, 
 the Lord Chancellor, the High Court of Appeal in Chancery, the Admiralty, 
 and Ecclesiastical Courts; making the amount of matter more than double 
 that furnished in the Philadelphia series. 
 
 V. The Law and Ecjuity Reports are sold at $2 per volume, which will 
 amount to $8 per year hereafter. Considering the amount of matter lohich 
 they contain their cost is less than one half that of the Philadelphia series. 
 
 These Reports are now regularly digested in our Annual United States 
 Digest, which thus embracesan Annual Digest of the whole English and 
 American Law. We shall, upon the completion of Volume XXX., publish 
 a separate Digest of these Reports up to that time. 
 
 For the greater convenience of the profession, we shall also hereafter 
 publish a table of all the cases in these Reports, with a reference to the 
 volume and page of every other series where the same case may be found. 
 
 Vols. I. to XXVI., now ready for delivery, at S2 per volume, to perma- 
 nent subscribers.
 
 WnxkB txtuniii] ^chililisjith 
 
 3I31Iijraton's Kntcntational 2lato» 
 
 ELEMENTS OF INTERNATIONAL LAW. By the late Hon. 
 Henry Wiieatox, LL. D. Sixth Edition, revised, annotated, 
 and brought down to the present time, with a Biographical Notice 
 of Mr. Wheaton, and an Account of the Diplomatic Transactions 
 in which he was concerned. By Hon. Wm. Beach Lawrence, 
 formerly Charge d'AfFaires at London. In one volume. 8vo. 
 
 ^ttfleU on Sltmitations. 
 
 TREATISE ON THE LIMITATIONS of Actions at Law 
 and Suits in Equity and Admiralty, with an Appendix containing 
 the American and English Statutes of Limitations, and embracing 
 the latest Acts on the subject. By Joseph K. Angell, Esq. 
 Third Edition, revised and greatly enlarged. By John Wilder 
 May, Esq. 1 vol. 8vo. $5.00. 
 
 Judge Lipscomb, in giving the opinion of the Supreme Court of Texas, in 1854, 
 (11 Texas Kep. 524,) pronounced this work the "standard work on Limitations." 
 
 " There is high authority for saying that this is mucli the best treatise on the 
 very important subject to whicli it relates; Lord Brougliam having pronounced 
 that opinion of the first edition, which has subsequently been much enlarged and 
 improved. All the learning scattered through the English and American reports 
 in regard to the construction and effect of the various statutes of limitations appears 
 to have been diligently compiled and systematically arranged. The labors of Mr. 
 May have considerably increased the value of the work, and will cause this edi- 
 tion to supersede the previous ones." — JV. Y. Times. 
 
 " The merits of this treatise, in its original form, are well known. L^pon its first 
 appearance it took rank among our standard ti'eatises, and has never been super- 
 seded — as too many very carefully written law books are — by other works cm- 
 bodying later views and doctrines. 
 
 " The improvements in the third edition consist in Mr. May's annotations and 
 references to the latest authorities. The original text of Angell stands, we be- 
 lieve, unaltered; but in notes appended to it Mr. May has performed the useful 
 service of refcn-ing, under the proper heads, the new cases decided since the ori- 
 ginal publication ; often quoting them at length. The work is thus enriched by 
 the addition of upwards of seven hundred cases, the annotations enlarging the 
 work about one third, the number of pages being now about eight hundred. 
 
 "In the Appendix, which contains the statutes of limitations of the various 
 States, we note the addition of the statutes of Cahfornia, Florida, Iowa, and Texas, 
 not embraced in the previous editions." — N'. Y. Commercial Advertiser. 
 
 American Hailtoajj (tantn. 
 
 CASES RELATING TO THE LAW OF RAILWAYS, decided 
 in the Supreme Court of the United States, and in the Courts 
 of the several States, with Notes. By Chauncey Smith and 
 Samuel W. Bates, Esqrs., Counsellors at Law. Vol. I. 8vo. 
 $4.50.
 
 CASES RELATING TO RAILWAYS AND CANALS, argued 
 and adjudged in the Courts of Law and Equity, from 1835 to 
 1852. Edited by Samuel W. Bates and Chauncey Smith, 
 Esquires. 6 vols. 8vo. $24.00. 
 
 " The present edition of the ' English Railway Cases ' embodies a collection of 
 all decisions upon that subject since 1835. An appendix to the first volume con- 
 tains all the cases prior to that date which bear upon American Railway Law. 
 Editorial notes give the information requisite to enable American readers to enter 
 into the bearings of each case. The 'American Railway Cases' contains the 
 entire body of decisions upon the subject, in this country. The two works include 
 nearly one thousand cases ; and thus form a very complete library upon their im- 
 portant topic. 
 
 " We need say nothing of the value of these works to the lawyer -whose clients 
 are directors of companies ; or stockholders in them ; or travel on their roads or 
 .send freight by them; or have their lots cut through by new routes; or are liable 
 in any way to" have dealings with railroad interests. We leave such a lawyer to 
 look at the books themselves, while we respectfully inquire whether such a col- 
 lection of cases would not be a suitable addition to the library of the Board Rooms 
 of some of our companies." — N. Y. Times. 
 
 Parsons on OTonttacts* 
 
 TREATISE on the Law of Contracts. By Hon. Theophilus 
 Parsons, Professor in Dane Law College, Cambridge, Mass. 
 Vol. L 8vo. $5.50. 
 
 pijillips on Knsiivante. 
 
 A TREATISE ON THE LAW OF INSURANCE. By Hon. 
 WiLLARD Phillips. Fourth Edition, enlarged. 2 vols. 8vo. 
 $10.00. 
 
 ?l^otoactr'si a^tports, 
 
 REPORTS OF CASES argued and determined in the Supreme 
 Court of the United States. By Benjamin C. Howard. Vol. 
 XVL 8vo. $5.50. 
 
 " Next to the reports of the Courts of his own State, those of the United States 
 Supreme Court are, in many respects, the most important and valuable to the 
 practising lawyer. If the decisions of that Court do not, perhaps, embrace so wide 
 a range of questions, yet their authority in our State courts is of course higher 
 than those of any other tribunals. The value of these Reports is increased by the 
 thorough manner in which they are prepared." — N. Y. Times. 
 
 " These official reports of the decisions of the highest Court known to our law, 
 need no commendation from critic or reviewer. The bar knows their value, and 
 the world has learned to respect the learning, the integrity, and the sagacity of 
 our federal judiciary." — N. Y. Commercial Advertiser. 
 
 mx^tW on iFite antr 2Ltfc Knsurancr. 
 
 A TREATISE on the Law of Fire and Life Insurance. With an 
 Appendix, containing Forms, Tables, &c. By Joseph K. An- 
 GELL, Esq. 1 vol. 8vo. $5.00.
 
 6 
 Btaltc on ^ttacfjmritt* 
 
 A TREATISE ON THE LAW OF SUITS BY ATTACHMENT 
 
 in the United States. By Charles D. Drake, Esq., of St. 
 Louis. 1 vol. 8vo. $4.50. 
 
 " It is now about six weeks since I had tlie pleasure to receive tlie copy you 
 ■were kind enough to send me of your work on the Law of Suits by Attachment, 
 but it is only within the last few days that I have found time to examine it with 
 sufficient care to enable me to acquaint myself with its characteristics. I expected 
 to find the several topics embraced by the general subject logically arranged, and 
 treated with ability, perspicuity, and learning, and it affords me sincere pleasure 
 to assure you that this expectation has not been disappointed. It is very clear 
 that such a work was needed, and while it cannot fail to prove eminently useful 
 to your professional brethren throughout the Union, I trust it will bring to its 
 author the rewards to which it appears to me justly to entitle him." — Letter from 
 Bon. A. ConhUng, late U. S. Judr/efor the Northern District of New Yoi-k. 
 
 "I am much pleased with your Avork on the Law of Attachments. It is very 
 creditable to you, and will be found a valuable acquisition to the profession. You 
 have treated the subject with clearness and ability, and by your references you 
 have sustained your views by the highest authorities." — Letter from Hon. John 
 McLean, Associate Justice of the Siq)reme Court of the United States. 
 
 MoWu 31)atent abases* 
 
 A COLLECTION OF PATENT CASES decided in the Supreme 
 and Circuit Courts of the United States, from their organization 
 to the year 1850, with Notes, Index, &;c. By James B. Robe, 
 Esq. 2 vols. 8vo. $10.00. 
 
 " Mr. Robb's book is a most welcome addition to the libraries of inventors and 
 the owners of American patents. The collection is much more complete than 
 any similar reports which Ave have in this branch of the law in England." — Prac- 
 ticed Mechanics' Journal. 
 
 mniit'n states Session Haius, 1854-55. 
 
 THE STATUTES AT LARGE and Treaties of the U. S. of 
 
 America. Commencing with the Second Session of the Thirty- 
 third Congress, 1854 - 55 — carefully collated with the originals 
 at Washington. Published by authority of Congress. Edited 
 by George Mixot, Esq. Royal 8vo., stitched $1.00. 
 
 AND PREPARING FOR PUBLICATION. 
 
 PARSONS ON COMMERCIAL, LAW. 
 
 THE PRINCIPLES OF COMMERCIAL LAW. By Hon. 
 Theophilus Parsoxs, LL. D., Dane Professor in the Law 
 School of Harvard University, in Cambridge. 2 vols. 8vo. 
 
 The principal topics of the first volume wiil be the Origin and History 
 of the Law Merchant ; the Law of Partnership ; of Sales ; of Agency ; 
 of Bills and Notes; and of Marine Insurance. The second volume will 
 contain the Law of Shipping, and the Law and Practice of Admiralty.
 
 BISHOP ON CRIMINAL, LAW. 
 
 COMMENTARIES ON CRIMINAL LAW. By Joel Pren- 
 tiss Bishop, Esq., Author of'" Commentaries on the Law of Mar- 
 riage and Divorce." The first volume to be a complete elementary 
 Treatise of itself. 
 
 This work is intended to embrace the entire field of En(i;lish and 
 American Criminal Jurisprudence, traversed by neio patlnf. It will be 
 both elementary and practical ; adapted alike to the use of the student, 
 the magistrate, and the practising lawyer ; and on important points, will 
 contain citations of all the English and American cases. 
 
 AMERICAN RAILROAD CASES. 
 
 A COMPLETE COLLECTION OF THE AMERICAN CASES 
 relating to the Rights, Duties, and Liabilities of Railroads, with 
 Notes and References to the English and American Railway, 
 Canal, and Turnpike Cases. By Chauncey Smith and S. W. 
 Bates, Esquires. 2 vols. 8vo. Vol. I. now ready. 
 
 PARSONS ON CONTRACTS. 
 
 A TREATISE ON THE LAW OF CONTRACTS. By Hon. 
 Theophilus Parsons, Professor in Dane Law College, Cam- 
 bridge, Mass. In 2 vols. 8vo. Vol. I. now ready. Vol. II. 
 will be ready in June. 
 
 THE LAW OF ADMIRALTY. 
 
 LEADING CASES IN ADMIRALTY AND SHIPPING, with 
 Notes and Commentaries. By a Member of the Suffolk Bar. 
 1 vol. 8vo. 
 
 BLACKBURN ON THE CONTRACT OF SALE. 
 
 A TREATISE ON THE LAW OF SALES. By C. Black- 
 burn. With Additions, Notes, and References. By William 
 P. Wells, Esq. 1 vol. 8vo. 
 
 FRAUDS. 
 
 A TREATISE ON THE CONSTRUCTION OF THE STA- 
 TUTE OF FRAUDS. By Causten Browne, Esq., of the 
 Suffolk Bar. 1 vol. 8vo. 
 
 ARBITRATION. 
 
 ARBITRATION, at Common Law, in Equity, and under the Sta- 
 tutes of the States of the United States. By Edward G. Lor- 
 ING, Esq., of the Suffolk Bar. 
 
 VENDORS AND PURCHASERS. 
 
 THE LAW OF VENDORS AND PURCHASERS OF REAL 
 PROPERTY. By Francis Hilliard, Esq. 2 vols. 8vo.
 
 8 
 
 HUSBAND AND WIFE. 
 
 THE PRINCIPLE AND RULES OF LAW regulating the Pro- 
 perty of Husband and Wife ; and Civil Actions tlierefoi*. By 
 Edward G. Lorixg, Esq. 
 
 PRECEDENTS OF INDICTMENTS. 
 
 PRECEDENTS OF INDICTMENTS, Special Pleas, &c., adapted 
 to American Practice, with Notes, containing the LaAV of Crimi- 
 nal Pleading. By Charles R. Train, and F. F. Heard, Esqrs., 
 of the Middlesex Bar. 1 vol. 8vo. Nearly ready. 
 
 HIGHWAYS. 
 
 A TREATISE ON THE LAW OF HIGHWAYS, Dedication 
 of. Travellers, Travelling, &c. By Joseph K. Angell, Esq. 
 1 vol. 8vo. 
 
 ENGLISH REPORTS. 
 
 LAW AND EQUITY REPORTS. The Common Law, Equity, 
 Criminal, Admiralty, and Ecclesiastical Reports combined. Edited 
 by Ed:muxd H. Bexnett and Chauncet Smith, Esqrs. Vol. 
 XXVII. 
 
 GRAY'S REPORTS. 
 
 REPORTS OF CASES argued and determined in the Supreme 
 Judicial Court of Massachusetts. By Horace Gray, Jr. 1 vol. 
 8vo. 
 
 CRIMINAL LAW. 
 
 A COLLECTION OF LEADING CASES in various branches of 
 the Criminal Law, with Notes. By B. F. Butler and F. F. 
 Heard, Esquires. 2 vols. 8vo. 
 
 T^^ALKER'S INTRODUCTION. 
 
 INTRODUCTION TO COMMON LAW. By Hon. Timothy 
 Walker, of Cincinnati. Third edition, revised. 1 vol. 8vo. 
 
 REAL PROPERTY. 
 
 LEADING CASES in the Law relating to Real Property, Con- 
 veyancing, and the Construction of Wills. By Oavex D. Tudor, 
 Esq., of the Middle Temple. With Notes, by a Member of the 
 Suflfolk Bar. 1 vol. 8vo. 
 
 HOWARD'S REPORTS. 
 
 REPORTS OF CASES argued and determined in the Supreme 
 Court of the United States. By Benjamin C. Howard. Vol. 
 XVII.
 
 CONFLICT OF LAWS.
 
 COMMENTARIES 
 
 ON THE 
 
 CONFLICT OF LAWS, 
 
 FOREIGN AND DOMESTIC, 
 
 IN REGARD TO 
 
 CONTRACTS, RIGHTS, AND REMEDIES, 
 
 AND ESPECIALLY IN REGARD TO 
 
 MARRIAGES, DIVORCES, WILLS, SUCCESSIONS, AND JUDGMENTS. 
 
 By JOSEPH STORY, ll.d. 
 
 m 
 
 DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY. 
 
 '' II r^gnera done toujours entre les nations vine contrariety perp6tuell3 de loix ; 
 peutetre r(?gnera-t-elle perp^tuellement entre nous sur bien des objets. Dela la 
 necessit(5 de s'instruire des regies, et des principes, qni peuvent nou^ conduire 
 dans la decision des guestions, que cette variety pent faire uaitre." — Boullenols, 
 Traits de la Personalite, <^c. des Loix, Preface. 
 
 FOURTH EDITION. 
 
 REVISED, CORRECTED, AND GREATLY ENLARGED. 
 
 BOSTON: 
 LITTLE, BROWN AND COMPANY. 
 
 1852.
 
 Entered according to Act of Congress, in the year 1852. 
 
 By William W. Stort, 
 
 in tlie Clerk's office of the District Court of the District of Massachusetts. 
 
 T 
 
 RIVERSIDE, CAJI BRIDGE: 
 rillXTED BY II. O. IIOUGIITOX AND COMPANY.
 
 ADVERTISEMENT TO THE FOURTH EDITI6N. 
 
 In the preparation of this Edition the late English and Ameri- 
 can cases have been examined, and such additions made to the 
 text, as the recent decisions seemed to require. The new mat- 
 ter is always included in brackets. 
 
 Edmund H. Bennett. 
 
 Boston, September, 1852. 
 
 75G55G
 
 ADVERTISEMENT TO THE THIRD EDITION. 
 
 The present edition of the Commentaries on the Conflict 
 OP Laws contains the last revisions and emendations made by 
 the late Author. As no material alteration from the text of the 
 last edition "was contemplated by him, the Editor has not deem- 
 ed it to be within his province to make any changes except such 
 as were made by the Author in his manuscript copy, or any ad- 
 dition beyond the citation of the late cases. 
 
 W. W. Stoey. 
 
 Boston, July 1, 1846.
 
 ADVERTISEMENT TO THE SECOND EDITION. 
 
 The former edition of this work- being exhausted, I have 
 availed myself, in the preparation of the present edition, of 
 the opportunity of revising, correcting, and amending the text 
 and notes throughout, and of adding such new materials as 
 have been furnished by the recent authorities at the common 
 law, as well as by more diligent researches into foreign juris- 
 prudence. For the opinions of some foreign jurists, I was 
 obliged, in the former edition, (as the reader was informed in 
 the notes,) to rely upon the citations from their works, which 
 I found in other authors, not having access to the originals. 
 With one or two unimportant exceptions, the originals of these 
 foreign jurists are now in my possession, and have been con- 
 sulted by me ; so that I have been enabled to correct some 
 errors in those citations, and also to furnish more complete and 
 perfect statements of their respective opinions. Perhaps it may 
 not be useless here to add, that in every case, where any author- 
 ity for any position is cited afc the bottom of the page, the reader 
 may rest assured, that the very citation has been perused and 
 diligently compared by me with the original. 
 
 As the works of foreign jurists, especially of those, who 
 lived before the middle of the eighteenth century, are rarely 
 to be found in American Libraries, either public or private, 
 and are becoming daily more scarce and difficult to be pur- 
 chased abroad, I have made my extracts therefrom more co- 
 pious, and often cited the words of the original, so that the
 
 X ADVERTISEMENT. 
 
 reader might be spared the necessity of farther researches 
 into the originals, and also might possess the means of ascer- 
 taining the accuracy of the expositions in the text. 
 
 These explanations may account for the fact, that the work, 
 unexpectedly to myself, has swelled to double its former size ; 
 a fact, which (as the pages and sections of the former edition 
 are still preserved) might not readily occur to those, who are 
 not accustomed to examine the signatures at the bottom of the 
 different sheets. 
 
 Since the publication of the former edition, Mr. Burge has 
 pubhshed his very able and comprehensive Commentaries on 
 Colonial and Foreign Law, mainly, as applicable to the colonies 
 of Great Britain, in which he has devoted a number of chap- 
 ters to the consideration of many of the topics embraced in 
 the present work. The plan of his Work, however, essen- 
 tially differs from my own in its leading objects. It exhibits 
 great learning and research ; and as its merits are not as yet 
 generally known to the profession on this side of the Atlantic, 
 I have made many references to it, and occasional quotations 
 from it, with the view of enabling the profession to obtain 
 many more illustrations of the doctrines, than my own brief 
 text would suggest, and also fully to appreciate his learned la- 
 bors. Monsieur Foelix, also, the accomplished editor of the 
 Bevue Etrangere et Francaise, (a highly useful and meritorious 
 periodical, published at Paris,) has, in the volume of the year 
 1840, discussed, in a series of articles, many topics of the Con- 
 flict of Laws, and given the opinions of the leading foreign 
 jurists on the subject. I have gladly referred to his very in- 
 teresting and lucid expositions, that my own countrymen may 
 more readily understand their great value and importance. 
 
 It is not probable, that, in the course of my own life, this 
 work will undergo any essential change from its present form. 
 Other avocations and other pressing duties, judicial as well as 
 professorial, will necessarily occupy all the time and attention,
 
 ADVERTISEMENT. XI 
 
 ■which I may hereafter be permitted to command for any juridi- 
 cal pursuits. I must therefore, dismiss these Commentaries 
 to the indulgent consideration of the reader, not as a work, 
 which has surveyed the whole subject, or exhausted the ma- 
 terials ; but as an essay towards opening the leading doctrines 
 and inquiries belonging to private international jurisprudence, 
 which the genius and learning, and labors of more gifted 
 minds may hereafter mould, and polish, and expand into an 
 enduring system of public law. My own wishes will be fully 
 satisfied, if (to use the language of my Lord Coke, in the close 
 of his first Institute) any thing shall be found herein, which 
 " may either open some windows of the law, to let in more 
 light to the student, by diligent search to see the secrets of 
 the law, or to move him to doubt, and withal to enable him to 
 inquire, and learn of the sages, what the law, together with the 
 true reason thereof, in these cases is," 
 
 Joseph Story. 
 
 January, 1841.
 
 Hon. JAMES KENT, ll. d. 
 
 Sir, 
 
 It affords me very sincere satisfaction to have the opportu- 
 nity of dedicating this Work to you. It belongs to a branch 
 of international jurisprudence, which has been long famihar 
 to your studies, and in -which you have the honor of having 
 been the guide and instructor of the American youth. I can 
 trace back to your early labors in expounding the civil and 
 the foreign law the motive and encouragement of my own far 
 more limited researches. I wish the present work to be con- 
 sidered as a tribute of respect to a distinguished Master from 
 his grateful pupil. 
 
 It is now about thirty-six years since you began your judi- 
 cial career on the Bench of the Supreme Court of the State 
 of New York. In the intervening period between that time 
 and the present, you have successively occupied the offices of 
 Chief Justice and of Chancellor of the same State. I speak 
 but the common voice of the Profession and the public, when 
 I say, that in each of these stations you have brought to its 
 duties a maturity of judgment, a depth of learning, a fidelity 
 of purpose, and an enthusiasm for justice, which have laid the 
 solid foundations of an imperishable fame. In the full vigor 
 of your intellectual powers, you left the Bench only to en- 
 gage in a new task, which of itself seemed to demand by its 
 extent and magnitude a whole life of strenuous diligence. 
 That task has been accomplished. The " Commentaries on 
 American Law " have already acquired the reputation of a 
 
 CONFL. b
 
 XIV DEDICATIOX. 
 
 juridical Classic, and have placed their author in the first 
 rank of the benefactors of the Profession. You have done 
 for America, what Mr. Justice Blackstone in his invaluable 
 Commentaries has done for England. You have embodied 
 the principles of our law in pages as attractive by the per- 
 suasive elegance of their style, as they are instructive by the 
 fulness and accuracy of their learning. 
 
 You have earned the fairest title to the repose, which you 
 now seek, and which at last seems within your reach. It is, 
 in the noblest sense, Otium cum dignitate. May you live 
 many years to enjoy it ! The consciousness of a life, like 
 yours, in which have been blended at every step public spirit 
 and private virtue, the affections, which cheer, and the taste, 
 which adorns the domestic circle, cannot but make the recol- 
 lections of the past, sweet, and the hopes of the future, ani- 
 mating. 
 
 I am, with the highest respect. 
 
 Your obliged friend, 
 
 JOSEPH STORY. 
 
 Cambridge, Massachusetts, 
 Januaiy 1, 1834.
 
 PREFACE. 
 
 I NOW submit to the indulgent consideration of the profes- 
 sion and the public another portion of the labors appertaining 
 to the Dane Professorship of Law in Harvard Universitj. 
 The subject is one of great importance and interest ; and 
 from the increasing intercourse between foreign States, as 
 well as between the different States of the American Union, 
 it is daily brought home more and more to the ordinary 
 business and pursuits of human life. The difficulty of treat- 
 ing such a subject in a manner suited to its importance and 
 interest can scarcely be exaggerated. The materials are loose 
 and scattered, and are to be gathered from many sources, 
 not only uninviting, but absolutely repulsive, to the mere 
 Student of the Common Law. There exists no treatise upon 
 it in the English language ; and not the slightest effort has 
 been made, except by Mr. Chancellor Kent, to arrange in any 
 general order even the more familiar maxims of the Common 
 Law in regard to it. Until a comparatively recent period, 
 neither the English Lawyers, nor the English Judges seem 
 to have had their attention drawn towards it, as a great 
 branch of international jurisprudence, which they were required 
 to administer. And, as far as their researches appear as yet 
 to .have gone, they are less profound and satisfactory, than 
 their admirable expositions of municipal law. 
 
 The subject has been discussed with much more fulness, 
 learning, and ability by the foreign jurists of continental 
 Europe. But even among them there exists no systematical 
 Treatise embracing all the general topics. For the most
 
 XVI PKEFACE. 
 
 part, they have discussed it only with reference to some few 
 branches of jurisprudence, peculiar to the civil law, or to 
 the customary law (almost infinitely varied) of the neigh- 
 boring States of Europe, or the different Provinces of the 
 same Empire. And it must be confessed, that their Avritings 
 are often of so controversial a character, and abound with 
 so many nice distinctions, (not very intelligible to Jurists of 
 the school of the Common Law,) and with so many theories 
 of doubtful utility, that it is not always easy to extract from 
 them such principles, as may afibrd safe guides to the judg- 
 ment. Rodenburg, Boullenois, Bouhier, and Froland have 
 written upon it with the most clearness, comprehensiveness, 
 and acuteness. But they rather stimulate than satisfy inquiry ; 
 and they are far more elaborate in detecting the errors of 
 others, than in widening and deepening the foundations of 
 the practical doctrines of international jurisprudence. I am 
 not aware, that the works of these eminent Jurists have been 
 cited at the English Bar ; and I should draw the conclusion, 
 that they are in a great measure, if not altogether, unknown 
 to the studies of AYestminster Hall. How it should happen, 
 that, in this age, English Lawyers should be so utterly indiffer- 
 ent to all foreign jurisprudence, it is not easy to conceive. 
 Many occasions are constantly occurring, in which they would 
 derive essential assistance from it, to illustrate the questions, 
 which are brought into contestation in all their Courts. 
 
 In consulting the foreign Jurists, I have felt great embar- 
 rassment, as well from my own imperfect knowledge of the 
 jurisprudence, which they profess to discuss, as from the 
 remote analogies, which it sometimes bears to the rights, 
 titles, and remedies recognized in the Common Law. To 
 give their opinions at large upon many topics would fill 
 volumes ; to omit all statements whatever of their opinions 
 would be to withhold from the reader many most important 
 lights, to guide his own studies, and instruct his own judg-
 
 PREFACE. XVll 
 
 ment. I have adopted an intermediate course ; and have 
 laid before the reader such portions of the opinions and rea- 
 sonings of foreign Jurists, as seemed to me most useful to 
 enable him to understand their doctrines and principles, and 
 to assist him with the means of making more ample researches, 
 if his leisure or his curiosity should invite him to the pursuit. 
 Humble as this task may appear to many minds, it has been 
 attended with a labor truly discouraging and exhausting. I 
 dare not even now indulge the belief, that my success has been 
 at all proportionate to my wishes or my efforts. I feel, how- 
 ever, cheered by the reflection (is it a vain illusion ?) that 
 other minds, of more ability, leisure, and learning, may be 
 excited to explore the paths, which I have ventured only to 
 point out. I beg, in conclusion, to address to the candor of 
 the Profession my own apology in the language of Strykius ; — 
 " Crescit disputatio nostra sub manibus ; unum enim si absol- 
 veris jus, plura se offerunt consideranda. At nos temporis, 
 quod nimis breve nobis fit, rationem habentes, accuratius ilia 
 inquirere baud possumus. Hinc sufficerit, in presens sparsisse 
 qusedam saltem adhuc jura, quidque de iis statuamus, vel obiter 
 dixisse." * 
 
 JOSEPH STORY. 
 
 Cambridge, Massachusetts. 
 January 1, 1834. 
 
 * Strykii Disputatio 1, ch. 2, § 92, Tom. ii. p. 24.
 
 CONTENTS. 
 
 List of Authors cited : . xxi-xxiv 
 
 Index to cases cited. xxv-xxxviii 
 
 CHAPTER I. 
 
 Sections 
 Introductory Remarks. v . 1-16 
 
 CHAPTER II. 
 General Maxims of InternationalJurisprudence. . . 17-38 
 
 CHAPTER HI. 
 National Domicil 39-49 
 
 CHAPTER IV. 
 Capacity of Persons. 50 - 106 
 
 CHAPTER V. 
 Marriage 107-124 
 
 CHAPTER VI. 
 Marriage — Incidents to 125-199 
 
 CHAPTER VII. 
 Foreign Divorces 200-230^. 
 
 CHAPTER Vm. 
 Foreign Contracts 231-373 
 
 CHAPTER IX. 
 Personal Property 374-423 A.
 
 XX CONTENTS. 
 
 Sections 
 
 CHAPTER X. 
 
 Real Property. 424- 463 o. 
 
 CHAPTER XL 
 Wills and Testaments. ...... 464 - 479 n. 
 
 CHAPTER XH. 
 Succession and Distribution. 480-491 
 
 CHAPTER Xni. 
 Foreign Guardianships and Administrations. . . . 492-529 
 
 CHAPTER XIV. 
 Jurisdiction and Remedies. 530-583 
 
 CHAPTER XV. 
 Foreign Judgments 584-618 
 
 CHAPTER XVI. 
 Penal Laws and Offences 619-628 
 
 CHAPTER XVH. 
 Evidence and Proofs. 629 - 645
 
 LIST OF AUTHORS CITED. 
 
 The following list of some of the more important Authors, whose works 
 have been cited, may assist the student in his researches. 
 
 D'Aguesseau, Henry Francis, Chancellor of France, born at Lim- 
 oges, 1668, and died 1751. His works are collected and published 
 in 13 vols. 4to. 
 
 Alexander ab Alexandro, a Neapolitan lawyer, born 1461, and died 
 at Rome about the age of 62. 
 
 D'Argentre, Bertrand, President of the Presidial of Kennes, born 
 in 1519, and died in 1590. His works are entitled " Commentarii 
 in Fatrias Britonum Leges, seu Consuetadines generales Ducatus 
 Britanice." 
 
 Baldus, Ubaldus, born about 1324, died 1400. His works are com- 
 prised in 4 vols. fol. 
 
 Bartolo, or Bartholus, born at Sasse Ferrato, in the March of Ancona, 
 1313, and died in his 46th year. He was called " the star and 
 luminary of lawyers, the master of truth, the lantern of equity, 
 the guide of the blind," &c. His works were printed at Venice, 
 1499, in 4 vols, fol., according to Camus, in 1599, in 10 or 11 vols, 
 fol., according to Watt. 
 
 BouHiER, J., President of the Parliament of Dijon, born at that place, 
 1673, and died 1746, His works, relating to the present subject, 
 are published in two vols, fol., and entitled, " Les Coutumes du 
 Duch6 de Bourgogne avec les Observations du President Bouhier." 
 
 BouLLENois, Louis, advocate in the Parliament of Paris, born at Paris 
 1680, and died 1762. There are two works by him, on the present 
 subject: " Trait6 et de la Personalite et de la R6alite des Lois, Cou- 
 tumes, Statuts, par forme d'Observations," in 2 two vols. 4to., and 
 " Dissertations sur des Questions, qui naissent de la Contrari6t6 des 
 Loix et des Coutumes." 4to. This last was published first, and 
 is the original outline of the larger work, which afterwards appeared. 
 
 Bretonnier Bartholemew Joseph, advocate of the Parliament of 
 Paris, born at Montrotier, near Lyons, 1656, and died, 1727. He 
 is the author of a work in 2 vols. 12mo., entitled " Recueil des 
 principales Questions de Droit qui se jugent diversement dans 
 les differens Tribunaux du Royaume, avec des Reflexions pour
 
 XXll LIST OF AUTHORS CITED. 
 
 concilier la Diversite de la Jurisprudence." He also edited the 
 
 works of Henrys. 
 BuRGE, William, Commentaries on Colonial and Foreign Laws gene- 
 rally and in their conflict with each other. 4 vols. 8vo. London, 
 
 1838. 
 BuRGUNDUs, BuRGUNDius, or BouRGOiGNE, NicoLAUs, jurisconsult, born 
 
 at Enghien in Hainault, 1586. He is the author of a work, entitled, 
 
 " Tractatus Controversiarum ad Consuetudinem Flandrise." 
 Bynkershoek, Cornelius van, born at Middlebourg, 1673, and died 
 
 173. His works are well known. 
 Casaregis, Joseph Laurentius de, born at Genoa, 1670, and died 
 
 1737. His works are entitled, " Discursus legales de Commercio," 
 
 and are published in 2, 3, and 4 vols. fol. 
 CHRiSTiNiEus, Paulus, bom at Malines, 1533, and died 1638. His 
 
 works are, " Practicarum Quaistionum Rerumque in Supremis 
 
 Belgarum Curiis actarum et observationum Decisiones : " and " Com- 
 
 mentarii in Leges Municipales Mechlinienses." 
 Cochin, Henry, advocate in Parliament, born at Paris, 1687, and died 
 
 1747. His works are collected in 6 vols. 4to. 
 CoQUiLLE, Gui, advocate of the Parliament of Paris, born at Decise in 
 
 Nivernois, 1523, and died 1603. There is a work by him, " Des 
 
 Coutumes des Nivernois." 
 CujAS, James, born at Thoulouse, 1520, and died 1590. His voluminous 
 
 works need not be particularly mentioned, 
 Denisart, J. B., jurisconsult, born 1712, and died 1765. He published 
 
 " Collections de D6cisions nouvelles relatives a la Jurisprudence." 
 DoMAT, John, born at Clermont in Auvergne, 1625, and died 1696. 
 
 His Civil Law in its natural order is well known through the trans- 
 lation of Dr. Strahan. 
 DuMouLiN, (in Latin MoLiNiEus,) Chakles, born 1500, and died 1560. 
 
 What he has written upon the present subject is to be found in his 
 
 Commentary on the first book of the Code, verb. Conclusiones de 
 
 Statutis, in his 53d Consilium, and in his notes on Alexander, De- 
 
 cius, and Chasseneuz. 
 Duranton, a.. Professor of Law at Paris. His works are, " Cours de 
 
 Droit Francais, suivant le Code Civil," in 20 vols. 8vo. 
 Emerigon, Baltazard Marie, advocate of the Parliament of Aix, born 
 
 about 1725, and died 1784. His"Traite des Assurances," 2 vols. 
 
 4to. is referred to in the present Commentaries. 
 Erskine, John, Professor of Law at Edinburgh. His principal work is 
 
 entitled " Institutes of the Laws of Scotland." 
 Everiiard Nicholas, born in the island of Walcheren, 1462, and died 
 
 1532. His works are " Topica Juris, sivc Loci Argumentorum 
 
 Legales" ; and " Consilia, sivc Responsa Juris." 
 FoELix M., Editor of the " Review Etrangere et Francaise," a learned 
 
 periodical published at Paris, beginning in 1833 and still (1840) con- 
 tinued.
 
 LIST OF AUTHORS CITED. XXIU 
 
 Froland, Louis, advocate of the Parliament of Rouen, died 1764. 
 His works relating to the present subject, in two 4to vols, are en- 
 tilled, " Memoire concernantla Nature et la Qualite des Statuts." 
 
 Gaill, Andrew, born at Cologne, 1525, and died 1587. He was called 
 the Papinian of Germany. 
 
 Grotius, Hugo, born at Delft, 1583, and died 1645. His works are 
 well known. 
 
 Heineccius, Johannes Gotleie, Professor of Philosophy and Law at 
 Halle, born at Eisenburg, 1681, and died 1741. His works need 
 not be particularly mentioned. 
 
 Henrys, Claude, juris,consult, born at Montbrison, 1615, and died 1682. 
 His works are collected in four vols. fol. 
 
 Hkrtius, Johannes Nicolaus, born near Giessen, 1651, and died 1710. 
 His treatise "Collisione Legum" is to be found in his select works 
 in two vols. 4to. 
 
 HuBERUs, Uleicus, a lawyer, historian, and philologer, born at Dockum 
 in the Dutch territories, 1635, and died 1694. His treatise " De 
 Conflictu Legum " is to be found in his " Preelectiones Juris Civilis," 
 
 3 vols. 4to. 
 
 Kaims Lord, (Henry Home,) born at Kaims, in Berwickshire, 1696, and 
 died 1782. The reader is referred to his " Principles of Equity." 
 
 Le Brun Denis, advocate, died 1708, before the publication of his prin- 
 cipal work, " Trait6 de Communaut6s." 
 
 Leeowen, Simon van, born at Leyden, 1625, and died 1682. His work 
 referred to, in the present Commentaries, is translated into English, 
 with the title of " Commentaries on the Roman-Dutch Law." 
 
 Livermore, Samuel, of New Orleans, died, 1833. He is the author of 
 " Dissertations on the Contrariety of Laws." 
 
 Mascardus Josephus, an ecclesiastic and Italian jurisconsult, born at 
 Sarzana towards the end of the 16th century, and died about 1630. 
 He is the author of an extensive work, entitled, " De Probationibus 
 Conclusiones." 
 
 Merlin, M. (de Doual.) His voluminous works are entitled, " Reper- 
 toire Universel et Raisonn6 de Jurisprudence ; " and " Questions de 
 Droit." 
 
 MoRNAC, Antoine, bom near Tours, first appeared before the Parlia- 
 ment of Paris in 1580, and died 1620, His works are comprised in 
 
 4 vols. fol. 
 
 Pardesseus, J. M., " Cours de Droit Commercial," 5 vols. 8vo. Paris. 
 
 1831. 
 Pothier, Robert Joseph, born at Orleans, 1699, and died 1772, His 
 
 works need not be particularly mentioned. 
 Peck, Peter, born at Zirckzee, in Zealand, 1529, and died 1589. His 
 
 works are collected in one vol. fol. 
 Puffendorf, Samuel, born in Upper Saxony, 1632, and died 1694. 
 
 His works are well known.
 
 XXIV LIST OF AUTHORS CITED. 
 
 RoDENBURG was a judge of the Supreme Court of Utrecht, and flourished 
 about the middle of the 17th century. His treatise, " De Jure quod 
 oritur ex Statutorum vel Consuetudinum Diversitate," is to be 
 found at the end of Boullenois's " Trait6 de la Personality et de la 
 R^alite Des Loix." 
 
 Stockmans, Peter, born at Antwerp, 1608, and died 1671. His works 
 are comprised in one vol. 4to. \ 
 
 Strykius, Samuel, born 1640, and died 1710. His son John Samuel, 
 was born 1668, and died 1715. Their works, with those of Rhe- 
 Tius, are collected in 14 vols. fol. 
 
 VoET, Paul, (the father,) born at Heusden, in Brabant, 1619, and died 
 1677. His work on the present subject is entitled, " De Statutis et 
 eorum Concursu." 
 
 VoET, John, son of Paul, born at Utrecht, 1647, and died 1714. His 
 Commentary on the Pandects contains a short chapter, " De Sta- 
 tutis."
 
 INDEX TO CASES CITED. 
 
 Tlie figures refer to the Sections. 
 
 Abell V. Douglass, 435 
 
 Abington v. N. Bridgewater 45 a. 
 Abraham v. Plestoro 415, 419 
 
 Acebal v. Levy, 262 a, 285, 319 
 Ackworth, Bain v. 319 
 
 Adams z;. Cordis 314 a. 
 
 Fox V. 416 
 
 V. People 625 6. 
 
 Whittemore v. 571 
 
 Adeline, The Ship 423 A. 
 
 Agnew V. Piatt 341 
 
 Aiclien, Hitchcock v. 608 
 
 Albion F. & L. Ins. Co. v. Mills 285 
 Aldrich v. Kenney 608, 609 
 
 Alivon V. Furnival 399, 420, 565, 
 566, 603, 607 
 Allan, Phillips v. 338, 339, 342 
 Allen, Buttrickf. 547,608 
 
 James v. 339 
 
 Alnutt, Scott V. 364, 367, 398 
 
 Alpuente, Barrera v. 77 
 
 Alves V. Hodgson 243, 260, 262 
 Amedie, The 96 
 
 Amedon, Ward v. 545 
 
 Amory, Orr v. 420, 565 
 
 Anderson u. Caunter 513,514 6. 
 Andrews v. Herriott 558, 567, 637, 
 
 644 
 
 V. His Creditors 75, 102, 
 
 241, 259 a. 
 
 V. Pond 242, 244, 280, 
 
 291, 293 «, 304 a, 558 
 
 Anonymous (9 Mod. 66) 528, 643 
 
 Anstruther v. Adair 143, 171 a, 
 
 276 a. 
 
 V.Chalmers 479 c, 491 
 
 Antelope, The 96 
 
 Applcton V. Campbell 258 
 
 V. Lord Braybrook 635 c, 
 
 643 
 
 Archbald, Harvey v. 292 
 
 Arell, Warder v. 332 
 
 Arglasse v. Muschamp 454 
 
 c 
 
 Armroyd, Williams v. 592 
 
 Armstrong v. Lear 468, 513 
 
 V. Toler 245, 246, 247, 
 
 249, 250 
 
 Arndt v. Arndt 609 a. 
 
 Arnott V. Redfern 291, 603, 607 
 
 Atkyns v. Smith 515 
 
 Attor. General v. Bonwers 383, 513, 
 
 514 6, 523 
 
 V. Cockerell 573 
 
 V. Dimond 383 574, 
 
 515 a. 
 
 V. Dunn 472, 481 a. 
 
 V. Hope 383, 514 6. 
 
 V. Mill 446 
 
 Atwater v. Townsend 335, 571, 572 
 
 Bartsch v. 331, 332 
 
 Augusta (Bank of) v. Earle 38, 99 
 
 Ins. Co. V. Morton 428 
 
 Austin, Trecothick v. 513, 515 
 
 B. 
 
 Babcock v. Weston 348 
 
 Bain v. Ackworth 319 
 
 V.Whitehaven & Furness 
 
 Junction R.Co. 634 a, 635c. 
 
 Bailey u. McDowell 641a. 
 
 Baker v. Wheaton 335, 340 
 
 Baldwin v. Gray 75, 78 
 
 Willis V. 258 
 
 Balfour v. Scott 465 
 
 Ballantine v. Golding 335, 339 
 
 Ballingalls v. Gloster 360 
 
 Ballister u. Hamilton 284 6,287 
 
 Bank of Augusta v. Earle 38, 99 
 
 Bank of England, De la Chau- 
 
 mette v. 346, 353, 356 
 
 Bank of United States v. Donal- 
 
 ]y 242, 272, 558, 567, 577 
 
 Bank of Washington v. Triplett 361 
 
 Rochester v. Gray 643 
 
 Galliopolis v. Trimble 575 
 
 Australia i'. Harding 606 
 
 V. Nias 606
 
 XXVI 
 
 INDEX TO CASES CITED. 
 
 Banks, Peacock v. 291 
 
 Barber, Cockerel) v. 308, 312 
 
 V. Root 228, 229 
 
 Barker, Lanusse v. 199, 287 
 
 Barney v. Patterson 608, 609 
 
 Barrera v. Alpuente 77 
 
 Barrett, Hancock v. 609 
 
 V. Barrett 359, 517 
 
 Barrows v. West 592 
 
 Bartsch v. Atwater 331, 332 
 
 Baltelle, Lincoln v. 577, 581, 582 
 
 641 
 Bayle V. Zacharie 287,341 
 
 Bayley v. Edwards 605, 610 a. 
 
 Bayson v. Vavasseur 263 
 
 Bearcroft, Crompton v. 123 a. 
 
 Beazely v. Beazely 88, 106, 117, 
 
 124 
 Conway v. 81, 86, 336 
 
 Beckford v. Wade 582 
 
 Becquet v. McCarthy 547, 548, 605 
 Belisario, Linclo v. 108 
 
 Bell, Tyler I?. 513,514 6. 
 
 Eeliamont, Conner v. 287 a, 293, 305 
 Bellows V. Ingraham 608, 609 
 
 Bempde v. Johnstone 46, 48, 465, 
 
 469 
 
 Bender, Grimshaw^ v. 319 
 
 Bent V. Lauve 272 
 
 Benton v. Burgot 609 
 
 Bernes, Stanley v. 46, 465, 467 
 
 Berquier, Desesbats i'. 38, 468, 473 
 
 Bevan, Scott r. 308,313 
 
 Biggs V. Lawrence 251, 255, 257 
 
 Bingham, Ommaney v. 48, 465 
 
 Bircham, Currie Adm'r v. 514 i, 
 
 515 a, 518 
 
 Bird V. Caritat 565, 571 
 
 V. Pierpont 565 
 
 Pawling r. 230, 549, 608 
 
 Birmingham v. Wallis 258 
 
 Birthwhislle v. Vardill 81, 87, 93 o, 
 
 336, 380, 428, 434, 463 481, 483 
 
 Bissell V. Briggs 523, 547, 549, 
 
 550, 586, 608, 609 
 
 Black V. Lord Braybrook 635 c, 643 
 
 Blackmore r. Brider 115 
 
 Blad V. Bamfield 592, 593 
 
 Blades ex parte 543 
 
 Blake, Hull r. 592 6. 
 
 V. Williams 329, 380, 396, 
 
 399, 409, 410, 414, 415, 417, 420, 
 
 428 
 
 Blakely, Newly v. 582 
 
 Blakes ex parte 407 
 
 Blanchard v. Russell 22, 35, 38, 
 
 244, 261, 278, 317, 335, 337, 340, 
 
 346, 348, 349, 362 
 
 Bland, Robinson v. 38, 123, a, 199, 
 
 243, 258, 281, 291, 296, 304 a, 
 
 305, 340, 364, 383, 
 
 554, 558, 571 
 
 Bligh, Obicini v. 607 
 
 Bliss V. Houghton 575 
 
 Bohlen v. Cleveland 386, 395, 396 
 
 Bollord V. Spencer 516 
 
 Bonham II. Badgley 114 a. 
 
 Borden v. Borden 513 
 
 V. Fitch 230, 547, 608 
 
 Boston (Selectmen of) v. Boyls- 
 
 ton 513,514 5. 
 
 Boston Type Foundry v. Wal- 
 
 lack 339 
 
 Boucher v. Lawson 245, 257, 260, 
 595, 598, 604 
 Boulanger, Talleyrand v. 369 
 
 Boucier v. Lanusse 143, 178 
 
 Bourke v. Ricketts 313 
 
 Bourne, Watson v. 335, 340 
 
 Bowaman v. Reeve 528 
 
 Bowles V. Orr 697 
 
 Bowrey v. Bennett 258 
 
 Bowne v. Joy 610 a. 
 
 Boyce v. Edwards 286, 296, 305, 
 
 319 
 Boyden v. Taylor 631 
 
 Boylston, Dawes v. 513, 518 
 
 Boynton, James v. 565 
 
 Brack i'. Johnston 436 
 
 Brackett v. Norton 242, 637, 638 
 Bradford v. Farrand 342 
 
 V. Harvard 283 
 
 Bradshaw v. Heath 230 
 
 Braynard v. Marshall 317, 340, 343 
 Bradstreet v. The Neptune Insur. 
 
 Co. 529 
 Breadalbane ?;. Chandos 276 a. 
 
 Brent v. Chapman 582 
 
 Brice, Canaan v. 247, 250, 254 
 Brickwood v. Miller 422 
 
 Bristow V. Secquevilie 642 
 
 British Linen Co. v. Drummond 272, 
 
 581 
 
 Brodie v. Barry 428, 463, 465, 469, 
 
 485, 488, 489 
 
 Bros V. Jenkins 581 
 
 Brooks's Syndics, Dumford v. 386 
 
 Brown v. Brown 479 c, 484, 490 
 
 V. Duncan 251 
 
 Gordon v. 490 
 
 Hicks V. 315, 335 
 
 Potter V. 315, 326, 332, 335, 
 
 380, 481 
 
 V. Richardson 268 
 
 V. Stone 577 
 
 V. Thornton 260, 635
 
 INDEX TO CASES CITED. 
 
 XXVll 
 
 Brown V. United States 334 
 
 Bruce v. Bruce 44, 46, 362, 380, 
 
 390 
 
 Bruncan v. Bruncan's Keirs 176 
 
 Brush V. Curtis 565 
 
 V. Wilkins 642 
 
 Bryan v. McGee 514 6. 
 
 Buchanan v. Deshon 430 
 
 V. Rucker 547, 586 
 
 Smith V. 342, 348, 408, 
 
 564 
 
 Budge, Montgomery v, 281 
 
 Bulger V. Roche 577 
 
 Bull, Rex w. 627,628 
 
 Bump V. Smith 46 
 
 Burn V. Cole 513 
 
 Burgess v. Burgess 1 14 a. 
 
 Burnham, Stearns v. 358, 513 
 
 V. Webster 598, 599 a. 
 
 Burrows v. Jemino 243, 333, 598 
 
 Burton v. Fisher 43 
 
 Bush, Mather v. 339 
 
 Butler V. Delaplaine 96 
 
 ' V. Gastrin 114, 115 
 
 Harper v. 359 
 
 V. Hopper 96 
 
 Buttrick v. Allen 547, 608 
 
 Burton ex parte 339 
 
 Burwell, Harrison v. 114, 115, 116 
 
 Byrne v. Walker 565 
 
 Calbraith, Seabright v. 332 
 
 Caldwell v. Van Vlissengen 541 
 
 Calt V. Patridge 610 a. 
 
 Cambioso v. Moffat 246, 252, 255 
 
 Campbell, Appleton v. 258 
 
 East India Co, v. 627 
 
 Hall V. 18, 390 
 
 V. Tousey 513, 514, 
 
 514 6. 
 
 Canaan v. Brice 247, 250, 254 
 
 Canfield, Scoville v. 621 
 
 White V. 339 
 
 Caritat, Bird v. 565, 571 
 
 Carleton, Winthrop v. 296 
 
 Carnegie v. Morrison, 298, 304 a, 
 
 642 
 Carr v, Shaw 353 
 
 Carrol v. McDonough 610 a. 
 
 Carroll, Guinness v. 606 
 
 V. Waters 322 
 
 Carter v. Carter 228 
 
 Casey u. Harrison 610 a. 
 
 Cash i;. Kennion 291,309 
 
 Cassin, Touro v. 243 
 
 Catesby's case 270 
 
 Caiherwood, James v. 260, 262, 
 
 318 
 Catlin V. Bell 254 
 
 Catterall v. Catterall 79 a. 
 
 Cavan v. Stuart 547, 586 
 
 Chalmers, Anstruther v. 479 c. 
 
 491 
 Champant, Ranlagh y. 287 a. 291, 
 
 296 
 
 Champlin v. Tilley 513 
 
 Chandler, Fisk v. 386 
 
 Chanoine v. Fowler 641 a. 
 
 Chapel, Taimadge v. 522 
 
 Chapman, Brent v. 582 
 
 V. Robertson 270, 272, 
 
 287 a. 293, 424, 427, 428, 447 
 
 Charters v, Cairnes 242, 332 
 
 Chewning v. Johnson 399 a, 400 a. 
 
 Chick «. Ramsdale 115 
 
 Church V. Hubbart 637, G39, 640 
 
 641, 641 a, 642, 643 
 
 Clarke v. Cochran 260 
 
 V. Graham 428 
 
 Clark's Ex'ors v. Cochran 635 d. 
 
 Clegg V. Levy 260, 262, 318 
 
 Clement, Yrissari u. 291 
 
 Cleveland, Bohlen v. 386, 395 
 
 396 
 
 Clugas V. Penaluna 251, 255, 257 
 
 Cobb, Dix V. 396 
 
 Cochrane, Forbes v. 96 a, 259 
 
 Cockell V. Gray 270 
 
 Cockerell, Attorney-General v. 573 
 
 V. Barber 308, 312 
 
 Cogswell V. Dolliver 635 
 
 Coit V. Millikin 643 
 
 Commonwealth v. Aves 96, 259 
 
 V. Deacon 628 
 
 V. De Long- 
 
 . champs 628 
 
 V. Green 82, 620, 621, 
 
 628 
 
 V. Griffith 516 
 
 V. Holloway 96 
 
 V. Ferryman 115 
 
 Comparet v. Jernegan 641 a. 
 
 Conner v. Bellamont 287 a, 293, 
 
 305 
 Consequa, Fanning v. 281,291, 
 
 296 
 
 V. Fanning 291, 297 
 
 r. Willing 242,291, 
 
 307, 671, 637 
 
 Conway v. Beazely 81, 86, 336
 
 XXVlll 
 
 INDEX TO CASES CITED. 
 
 Conway, Stapleton v. 288, 293, 
 305, 313 
 Coolidge V. Poor 283 
 
 V. Ingle 259 
 
 Coppin V. Coppin 428, 435, 474 
 Cotlingham, ISeal v. 407 
 
 Courtois V. Carpenter 272, 309,571 
 Cowper, Wills v. 365, 428, 435, 
 474, 483 a. 
 Cox & Dix V. U. S. 281, 2D0 
 
 Craigie r. Craigie 47 
 
 Crandall, Robinson v. 517 
 
 Cranston v. Johnston 514, 547 
 
 Crompton v. Bearcroft 123 a. 
 
 Crosby, U. States v. 428,435, 474, 
 483 a. 
 Croudson v. Leonard 592 
 
 Crowninshield, Sturgis v. 335, 580 
 Le Roy v. 263, 
 
 267, 342, 577, 580, 582 
 Cruger, M'Candish v. 319 
 
 Cummings v. Banks 609 
 
 Curling v. Thornton 465 
 
 Currie, adm'ru. Birchani 514 b, 
 515 a, 518 
 Curtis, Brush r. 565 
 
 Greenwood r. 38, 98, 114, 
 116,244,252, 258, 259 
 V. Hutton 424, 428, 474, 
 479 a. 
 Cuthbert, Royal Bank of Scot- 
 land V. 408, 423 
 Cutter V. Davenport 305, 428, 435, 
 483 a, 523 
 Cutts V. Haskins 46, 506 
 
 D. 
 
 Dallison, Wiggles worth v. 270 
 
 Dalrymple v. Dalrynnple 76, 81, 82, 
 
 108, 113,209, 274, 642 
 
 Danforth v. Penny 565, 592 a. 
 
 Dangerfield v. Thurston . 513 
 
 Danville v. Putney 47 
 
 Darby v. Mayer 428, 435, 483 a. 
 
 D'Arcy v. Ketchum 609 
 
 Davenport, Cutler v. 365, 428, 435, 
 
 483 a, 523 
 
 Davis, Selkrig v. 159, 186, 364, 
 
 395, 398, 400,408, 423, 428, 543 
 
 V. Estey 513, 514 b, 524 
 
 Gale V. 178 
 
 V. Jaquith 390 
 
 V. Peckars 608 
 
 V. Smith 609 
 
 Dawes r. Boylston 513,518 
 
 i'. Head 513,514/^,524 
 
 Day, ScholfieJd v. 291, 305, 311 a. 
 
 Deacon, Commonweallh V. 628 
 
 De Bernales, National Bank of 
 
 St. Charles v. 565 
 
 De Bonneval v. De Bonneval 472, 
 
 481 a. 
 
 De Caix, McCarthy v. 106, 117, 
 
 218, 225 
 
 De Couche v. Savatier 88, 89, 145 a, 
 
 152, 178, 276, 481, 577, 581, 
 
 582 a. 
 
 De la Chaumette r. the Bank of 
 
 England 346, 353, 356 
 
 Delafield v. Hurd 643 
 
 De la Vega v. Vienna 272, 550, 
 571, 577, 582 a. 
 Delegal v. Naylor 308, 313 
 
 De Longchamps, Coreimon'th 17. 628 
 Delvalle v. Plomer 263 
 
 Depeau v. Humphreys 260, 298, 
 304 a, 305, 314 
 De Rottenham, Murray v. 348 
 
 Descadillas v. Harris 332 
 
 Desesbats v. Berquier 38, 468, 473 
 Deshon, Buchanan v. 430 
 
 De Sobry v. De Laistre 242, 380, 
 468, 481, 524, 636, 643 
 Dewar v. Span 287 a, 293, 305 
 
 De VVeitz v. Hendricks 259 
 
 Dewitt V. Burnett 539, 547 
 
 De Wolf t). Johnson 287 a, 291. 
 293, 305 
 Dickey, Morrill v. 499, 504 a, 514 
 Dickinson's Adm'rs v. McCravv 513 
 Dimick v. Brooks 609 
 
 Dix V. Cobb 396 
 
 Dixon's Exo'rs v. Ramsay's 
 
 Exo'rs 468, 518 
 
 Dixon V. Ramsay 358 
 
 Dobrey ejc parte 408 
 
 Doe dem. Lewis v. McFarland 509 
 
 Doe dem. Birthwistle v. Vardill 81, 
 
 87, 93 0, 336, 380, 428, 434, 481, 
 
 483 
 
 Dolliver, Cogswell v. 635 
 
 Don V. Lippman 278, 280, 282, 317, 
 
 329, 548, 548 a, 550, 557, 558, 
 
 574 c, 577, 579,581,582,582 0, 
 
 5S6, 603, 635 J. 
 
 Doolittle V. Lewis 513, 514 ^i, 523 
 
 Dormay, In re 642 
 
 Dorsey v. Dorsey 205, 230 a. 
 
 V. Maury 609 
 
 Dos Santos (Jose Ferreira) 628 
 
 Douglas V. Forrest 548, 607 
 
 Doulson V. Mathews 554 
 
 Dowdale's Case 514 a, 514 b. 
 
 Drake, Saunders v. 313, 479 b. 
 
 Drummond V. Drummond 266 a, 
 
 487, 529
 
 INDEX TO CASES CITED. 
 
 xxii^ 
 
 Drummond, British Linen Co, v. 272 
 
 581 
 Dudley v. Warde 582 
 
 Duke of Brunswick v. King of 
 
 Hanover 542 a, 
 
 Dumford v. Brook's Syndics 386 
 Dunbar v. Dunbar 483 a. 
 
 Duncan v. United States 290 
 
 Dundas v. Bowler 315, 435 
 
 V. Dundas 435 
 
 Dungannon v. Hackett 311 
 
 Dunlap, Innes v. 354, 565 
 
 Duntze v. Levett 217 
 
 Durand, Attorney-General v. 316 
 Durant, Lamb v. 394 
 
 Durgee, Mills v. 547 
 
 Dutch, Richards v. 513 
 
 Dutch W. L Co. V. Moses 565 
 Dwight, Pearsall v. 38, 242, 243, 558 
 Dyer v. Hunt 242, 243, 335 
 
 V. Smith 640 
 
 E. 
 
 East India Co. r. Campbell 627 
 
 Edmanstone et al. 98, 221 
 
 V. Lockhart 217 
 
 Edwards, Boyce v. 286, 296, 305, 
 
 319 
 
 Van Schaick v. 243, 
 
 287 a, 298 
 
 Ekins V. East India Co. 291, 296, 
 
 307, 311 
 
 Elliot V. Lord Minto 266 a, 366, 
 
 424, 428, 484 
 
 Ellicotw. Early 333,342,348 
 
 Ellfesson, Imley v. 571 
 
 Elmendorf u. Taylor 277 
 
 Embree v. Collins 610 a. 
 
 Estey, Davis v. 513, 514 i, 524 
 
 Eustace, Kildare v. 544 
 
 Evans v. Grey 334 
 
 V. Tarleton 609 
 
 V. Tatera 514 a, 514 b. 
 
 Eve, Hannay V. 246 
 
 Morris v. 272, 338, 339 
 
 Everhart, Thrasher v. 242, 244, 
 
 558, 566, 631, 637 
 
 Ewer t'. Coffin 549 
 
 Ewin,irtre 379,380 
 
 Exeter v. Brighton 43 
 
 F. 
 
 Fabrigas, Mostyn v. 
 
 Fairlie, Logan v. 
 c* 
 
 276, 554, 
 
 637, 642 
 
 513, 514 i. 
 
 Fairlie, Lowe v. 513 
 
 Fales, Musson v. 259 
 
 Fanning u. Consequa 281,291, 
 
 296 
 Consequav. 291,297 
 Farmers & Mechanics Bank 
 
 i;. Haight 643 
 
 Farrant, Bradford v. 342 
 
 Faubert v. Trust 143, 145 a, 276 
 Fftiwick V. Sears 513, 558 
 
 Ferguson v. Flower 322 
 
 V. Mahon 547, 603 
 
 Field V. Gibbs 608 
 
 Fisk V. Chandler 386 
 
 Fitch, Borden v. 230, 547, 608 
 
 Fitz James, Melan v. 267, 568, 570 
 Flack V. Holm 569 
 
 Fletcher, Lever v. 257 
 
 Planche v. 245, 257 
 
 Foden v. Sharp 296, 320 
 
 Folliott V. Ogden 550, 565, 566, 
 
 620 
 Forbes v. Cochran 96 a, 259 
 
 Odwin V. 84 
 
 Forrest, Douglas v. 548, 607 
 
 Ford's Curators v. Ford 195, 198 
 Foster v. S inkier 396 
 
 V. Wassail 544 
 
 V. Hall 43 
 
 Flower, Tourton «. 513 
 
 Fox V. Adams 416 
 
 Foxes V. Johnes 258 
 
 France, In re 96 
 
 Frances, (The) 48 
 
 Fraser, Sinclair v. 603, 605 
 
 Frazier v. Warfield 280, 320 
 
 Frey v. Kirk 342 
 
 Freundschaft, (The) 48 
 
 Fry, Yeaton v. 643 
 
 G. 
 
 Galbraith v. Neville 605, 606 
 
 Gale V. Davis 178 
 
 Gale, Lang v. 270 
 
 Gambler v. Gambler 463 a. 
 
 Garcia del Rio, Jones v. 259 
 
 Garlick, Tenton v. 547 
 
 Garnier v. Poydras 66 a. 
 
 Garvan, Roach v. 595, 604 
 
 Gastrin, Butler u. 114, 115 
 
 Gaylord, Stevens v. 513, 514 b, 
 
 520 
 
 Gelston, Hoytu. 592 
 
 V. Hoyt 593 
 
 Geyer, Ingraham v. 416, 420, 465 
 
 Gibbs V. Howard 575
 
 XXX 
 
 INDEX TO CASES CITED. 
 
 Gibbs, Field v. 
 Oilman v. Brown 
 Girolamo (The Ship) 
 Glass, McNiel v. 
 Gleason v. Dodd 
 Glenn v. Smith 
 
 608 
 322 b, 401 
 423 h. 
 389 
 609 
 513 
 
 Gloster, Ballingalls v. 360 
 
 Goldincf, Ballantine v. 335, 339 
 Good, Hall 1^ 115 
 
 Goodwin v. Jones 380, 404, 409, 
 420, 428,513, 514 J, 523, 565 
 Gordon v. Brown 484, 490 
 
 V. Pye 98, 217 
 
 Gore, Harvard College v. 45, 47 
 Grace (The Slave) case of 59, 96, 
 
 96 a. 
 
 Graham, Milne v. 356 
 
 Clarke v. ' 428 
 
 Grant V. Dalliber 47 
 
 r. Healy 284 a, 287, 297, 
 
 311a. 
 
 V. McLachlin 592 
 
 Gratton v. Appleton 468 
 
 Gravillon v. Richards, Ex'or. 513 
 
 Gray, Baldwin r. 75,78 
 
 Evans w. 334 
 
 Cockell V. 270 
 
 Shelby v. 582 
 
 Green v. Sarmiento 335, 342, 348, 
 
 608 
 
 Commonwealth v. 92, 620, 
 
 621,628 
 
 V. Windham, 43 
 
 Greenwade v. Greenwade 292 
 
 Greenwood v. Curtis 38, 98, 114, 
 
 116, 244, 252, 258, 259 
 
 Griffith, Commonwealth v. 516 
 
 Grimshaw v. Bender 319 
 
 Griswold v. Pitcairn 598, 643 
 
 V. Waddington 259 
 
 Guestier, Hudson v. 592 
 
 Guier v. O'Daniel 46, 380, 506 
 
 Guinness v. Carroll 006 
 
 H. 
 
 Hackett, Dungannon v. 311 
 
 Haile, Mason v. 339, 340 
 
 Ilallowell V. Saco 44 
 
 Hall V. Campbell 18, 390 
 
 V. Good 115 
 
 V. Odber 599 a, 603, 606 
 
 V. Williams 586, 608, 609 
 
 White V. 545 
 
 V. Board man 335 
 
 Hancock v. Barrett 609 
 
 Hannay V. Eve 246,251 
 
 Hapgood, Jennison i;. 47,481a, 
 
 513 
 
 Harding v. Allen 46 
 
 Harford v. Higgins ' 79 
 
 V. Morris 123 a. 
 
 Harmony, (The) 45 
 
 Harper v. Butler 358, 359 
 
 V. Hampton 428 
 
 V. Stanborough' 473 a. 
 
 Harris r. Hicks 115 
 
 Harrison v. Burwell 114, 115, 116 
 
 V. Nixon 468, 474 
 
 V. Sterry 263, 272, 323, 
 
 416, 422, 524 
 
 V. Edwards 575 
 
 Hart V. Granger 610 a. 
 
 Harteau v. Harteau 46, 224 a. 
 
 Harvard, Bradford v. 283 
 
 Harvard College v. Gore 45, 47 
 
 Harvey v. Archbald 292 
 
 V. Richards 379, 468, 
 
 481, 513, 518, 524 
 
 Haskins, Cutts v. 46, 506 
 
 Hazlehurst v. Kean 307 
 
 Head, Dawes V. 513, 514 ^», 524 
 
 Healy v. Gorman 291 
 
 Hempstead v. Reed 335, 6ll 
 
 Hendricks, De Weitz v. 259 
 
 Henry v. Adey 643 
 
 V. Sargent 625 o. 
 
 Herber v. Cook 605 
 
 Herbert u. Herbert 79, 113 
 
 Jerningham v. 366 
 
 Herriot, Andrews v. 558, 567, 
 
 637, 644 
 
 Hicks V. Brown 315, 335 
 
 Higgins, Lacon v. 79, 113 
 
 Hill, Packard v. 641 
 
 Himeley, Rose v, 590, 592 
 
 Hinckley v. Morean 339, 570, 571 
 
 Hinsdale, Meredith v. 567 
 
 Hitchcock V. Aicken 608 
 
 Hobart, Titus v. 339, 571, 572 
 
 Hodgson V. Temple 254 
 
 Alves V. 243, 260, 262 
 
 Hogg, Lashley v. 143, 171. 187, 
 
 465 
 Holbeck v. Leeds 47 
 
 Holloway, McNeilage v. 359 
 
 Holm, Flack u. 569 
 
 Holman v. Johnson 38, 246, 251, 
 
 257 
 
 638 
 
 554, 307 
 
 V. Holmes 272 
 
 V. Jennison 628 
 
 V. Remsen 38, 348, 379, 
 
 380, 395, 396, 399, 405, 406, 
 
 V. King 
 Holmes v. Barclay
 
 INDEX TO CASES CITED. 
 
 XXXI 
 
 Holmes v. Remsen, continued. 
 
 408, 409, 414, 415, 417, 418, 
 
 420, 428, 468, 474, 513, 524, 
 
 565, 592 a. 
 
 Holvoke V. Haskins 46, 506 
 
 Hooker v. Olmstead 513, 515, 523 
 
 Hooper, Lacon r. 270 
 
 Hopkins v. Hopkins 528 
 
 MedUury v. 242, 577 
 
 Sherrill v. 340, 346 
 
 Hopper, Butler v. 96 
 
 Hosford t'. Nichols 287 «, 291, 
 
 365, 428, 435, 483 a, 642 
 
 Houc^hton V. Page 242, 243, 291, 
 
 335 
 
 Houlditch V. Donegal 603 
 
 Howard, Gibbs v. 575 
 
 Hoxie V. Wright 608, G09 
 
 Hoyt, Gelston v. 592 
 
 V. Gelston 593, 602 
 
 Hozier, Peck v. 339, 558, 571 
 
 Hubbart, Church v. 637, 639, 640, 
 
 641, 642, 643 
 
 Huber «. Steiner . 577,581,582 
 
 Hudson V. Guestier 592 
 
 Hughes, Langton v. 254 
 
 McDaniel v. 592 a. 
 
 Hull V. Blake 542 a. 
 
 Humphreys, Depeau v. 260, 298, 
 
 304 a, 305, 314 
 
 Hunt, Dyer v. 242, 243, 335 
 
 Hunter, Phillips v. 380, 390, 404, 
 
 405, 406, 428, 592 a, 599, 
 
 605 
 
 r. Potts 335, 337, 380, 
 
 390, 398, 404, 406, 407, 
 
 428, 481 
 
 Hard, Delafield v. 643 
 
 Hutchinson, Rex v. 627 
 
 Huthvvaite v. Phaire 358, 515, 518 
 
 Hyle V. Goodnow 558 
 
 Hylton V, Brown 43 
 
 Ilderlon r. Ilderton 113 
 
 Imley v. Elfessen 571 
 
 Indian Chief, (The) 47, 48 
 
 Inglee, Coolidge v. 259 
 
 Inglis V. Underwood 403 
 
 Ingraham, Bellows v. 608, 009 
 
 V. Geyer 416, 420, 565 
 Inhabitants of Brampton , King v. 1 18 
 of Hanover v. Turner 
 
 228 
 Innes v. Dunlop 351, 565 
 
 Irby V. Wilson 46 
 
 Isabella v. Pecot 639, 642 
 
 J. 
 
 Jacks V. Nicholls 279 
 
 V, Petrie 545 
 
 V. Wynne 260, 202, 318 
 
 Jamerin, Middleton v. 81, n. 113 
 
 James v. Allen 339 
 
 V. Boynton 565 
 
 V. Catherwood 260, 262, 318 
 
 Jacfues I'. Withy 246 
 
 Jaquin, Davis v. 390 
 
 Jauncey v. Seeley 518 
 
 Jefferson, Livingston v. 554 
 
 V. Washington 43 
 
 Jeffrey v. McTaggart 354, 565 
 
 Jemino, Burrows v. 243, 333, 598 
 
 Jennings v. Throgmorton 258 
 
 Jennison v. Hapgood 47, 481 a, 513 
 
 J erningham V. Herbert 366 
 
 Johnnes, Foxes v. 258 
 
 Johns, United .States u. 643 
 
 Johnson, DeWolf v. 287 a, 291, 
 
 293, 305 
 
 Holman v. 38, 246, 251, 
 
 257 
 
 1). Hudson 254 
 
 Lloyd V. 258 
 
 Raymond v. 565 
 
 Johnston, Cranston v. 544, 547 
 
 Johnstone, Bempde v. 46, 48, 465, 
 
 469 
 
 Jones V. Garcia del Rio 259 
 
 Goodwin V. 380, 404, 409, 
 
 420,428, 513,514 6,523, 565 
 
 V. Hook's Administrator 558 
 
 V. Randall 258 
 
 Robinson v. 593 
 
 Josephine, (The) 48 
 
 Judd V. Porter 339 
 
 K. 
 
 Kane, Van Reimsdyk v. 243, 263, 
 281, 335, 558, 577 
 Kay, Mure v. 627 
 
 Kean, Hazlehurst v. 307 
 
 Kearney v. King 272 a, 313, 317 
 Kennedy v. Earl of Cassilis 595, 604 
 Kenney, Aldrich v. 608, 609 
 
 Kennion, Cash I'. 291,309 
 
 Kenny v. Clarkson 642 
 
 Kentucky v. Bassford 244, 258 a. 
 Kerr v. Moon 428, 435, 483 a, 513 
 Ketcham, Thompson v. 82, 241, 
 281, 291, 332 
 Kibblewhite v. Rowland 217 
 
 Kildare v. Eustace 544
 
 XXXll 
 
 INDEX TO CASES CITED. 
 
 Kimburley, Rex v. 627 
 
 King V. Harman's Heirs 267 a. 
 v. Inhabitants of Brampton 118 
 King of Spain v. Machado 277 
 
 King of Two Sicilies v. Willcox 621 
 Kirk, Frey v. 342 
 
 Knight, Tiie State v. 621 
 
 Kohn V. Schooner 257 
 
 Koster v. Sapte 481 a. 
 
 Kraft V. Wickey 499, 504 a. 
 
 Lacon v. Higgins 79, 113 
 
 V. Hooper 270 
 
 La Jeune Eug6nie (The Ship) 243 
 
 Lamb v. Durant 392 
 
 Lambe v. Smythe 43 
 
 Lanfear v. Sumner 386, 389, 392 
 
 Lang V. Gale 270 
 
 V. Whitlaw 436 
 
 Langdon v. Potter 513 
 
 Langton v. Hughes 254 
 
 Lansdowne v. Lansdowne 272, 288, 
 
 479 wj. 
 
 Lanusse v. Barker 199, 287 
 
 Boueier v. 143, 178 
 
 Lapice v. Smith 291 
 
 Lashley v. Hogg 143, 171, 187, 
 
 465 
 
 Latour t). Teesdale 118,120 
 
 Lawrence, Biggs v. 251, 255, 257 
 
 V. Lawrence 513 
 
 V. Smith 258 
 
 Lawson, Boucher v. 245, 257, 260, 
 
 595, 598, 604 
 
 Lear, Armstrong v. 468, 513 
 
 Le Breton v. Nouchet 78, 178, 180, 
 
 182, 198 
 
 Le Chevalier v. Lynch 337, 610 a. 
 
 Lee V. Moore 513 
 
 V. Wilcocks 308 
 
 Leeds v. Freeport 46 
 
 Leeman, Talbot v. 640 
 
 Leffingwell v. White 270 
 
 Legg V. Legg 637 
 
 Leonard, Croudson v. 592 
 
 Le Roy v. Crowninshield 263, 267, 
 
 342, 577, 580, 582 
 
 V. Beard 567 
 
 Lever v. Fletcher 257 
 
 Levett, Duntze v. 217 
 
 Levy, Cleggu. 260,262,318 
 
 Lewis, Doolittle v. 513, 514/*, 523 
 
 V. Mew 610 a. 
 
 V. Owen 319, 333, 342 
 
 V. Wallis 395, 398 
 
 V. Wilder 606 
 
 Lexington, W. Cambridge v. 89, 
 113, 123 5. 
 Lickbarrow v. Mason 394 
 
 Linclo V. Belisario 108 
 
 Lightfoot V. Bickley 522 
 
 V. Tenant 251,253,257 
 Lincoln v. Battelle 577, 581, 582, 
 
 641 
 
 Lindsay, Tovey v. '88, 106, 117, 
 
 218, 225 
 
 Livingston v. Jefferson 554 
 
 Lloyd V. Johnson 258 
 
 V. Scott 287 a. 
 
 Lockhart, Edmonstone v. 217 
 
 Lodge V. Phelps 357, 558 
 
 Logan t). Fairlie 513,514 6, 
 
 Lolley's Case 86, 88, 106, 117, 
 
 124, 218, 225 
 
 Lord Baltimore, Penn v. 544 
 
 Louis V. Cabarrus 96 
 
 Louisville R. R. Co. v. Letson 580 
 
 Lowe V. Fairlie 513 
 
 Ludlow V. Van Rensselaer 257, 
 
 260, 281 
 
 Lundy's Case 627 
 
 Lunsford v. Coquillon 96 
 
 Lynch, Powers v. 281, 314, 315 
 
 Warren v. 567 
 
 M. 
 
 Machado, King of Spain v. 277 
 Magoun v. N. England Ins. Co. 592 
 Maguire v. Maguire 205, 230 a. 
 Mahorner u. Hooe 472 a. 
 
 Maine Ins. Co., Richardson v. 259 
 Malcolm v. Martin 479 b. 
 
 Male V. Roberts 82, 89, 241, 332, 
 
 637 
 Malpica v. McKown, 285, 286 b, 
 286 c. 
 Maltass v. Maltass 43 
 
 Marlow, Wadham v. 404 
 
 Marshall, Braynard v. 317, 340, 343 
 Martin v. Franklin 311 a. 
 
 V. Nicholls 606, 607 
 
 Mary (The Ship) 592 
 
 Mason v. Haile 339, 340 
 
 r. Mason 630 a. 
 
 Lickbarrow v. 394 
 
 Massie v. Watts 545 
 
 Mather v. Bush 339 
 
 Mathews, Uoulson v. 554 
 
 Mauie V. Murray 610 a. 
 
 Mawdesley v. Park 412 
 
 Mayer, Darby v. 428, 435, 483 a. 
 McCaiih, Becquet r. 547, 548, 605 
 McCandish i>. Cruger 319
 
 INDEX TO CASES CITED. 
 
 XXXlll 
 
 McCarthy v. De Caix 106, 117, 
 218, 225 
 McCormick v. SuUivant 428, 435, 
 474, 483 a. 
 McCraw, Dickinson's Adminis- 
 trators V. 513 
 McDaniel r. Hughes 592 a. 
 McEImoyle v. Cohen 524, 582 a, 609 
 I\IcFarland, Doe dem. Lewis v. 509 
 Mclntyre v. Parks 251, 287 
 McLachlan, Grant v. 592 
 McMenomy v. Murray 335, 339, 348 
 McNeilage v. Holloway 359 
 McNeil V. Glass 389 
 McQueen v. Middletown Man. 
 
 Co. 565 
 
 McRae's Adm'rs v. McRae 514 b. 
 McRay v. Mattoon 566 
 
 McTaggart, Jeffrey v. 354, 565 
 
 McVicker v. Beedy 549, 599a, 609 a. 
 Mead v. Merriit 545 
 
 Peck V. 523 
 
 Smith V. 242, 279, 296 
 
 Medbury v. Hopkins 242, 577 
 
 Medrazo v. Willes 96 a, 259 
 
 Medwayu. NeedhamllS, 116, 123i. 
 Meeker v. Wilson 386 
 
 Meigs, Penniman v. 348 
 
 Melan v. Fitz James 267, 568, 570 
 Merchants Bank v. Bank of U. 
 
 States 399 a, 400 a. 
 
 Meredith v. Hinsdale 567 
 
 Merrick, Springfield Bank v. 246 
 
 Middlesex Bank v. Putnam 586, 
 
 599 a. 
 
 Middleton v. Janverin 81, 113 
 
 Mill, Attorney-General v. 446 
 
 Miller's Estate, Case of 513, 524 
 
 Milles, Brickwood v. 422 
 
 Mills V. Durgee 547 
 
 Patterson v. 259, 285 
 
 Milne v. Graham 356 
 
 V. Moreton 283,410,411, 
 
 414, 415, 420, 428, 524, 565 
 
 Mingay, Snaith v. 289 
 
 Mitchel V. Bunch 545 
 
 Moffat, Cambioso v. 246, 252, 255 
 
 Moley V. Shattuck 593 
 
 Montgomery v. Budge 291 
 
 Moon, Kerr t'. 428, 435, 483 a, 513 
 
 Moore v. Budd 465, 468, 481 
 
 V. Davell 467 
 
 Lee V. 513 
 
 V. Wilkins 43 
 
 Morean, Hinkley v. 339, 570, 570 a. 
 
 Moreton v. Milne 399 
 
 Morgan v. McGhee 113 
 
 Price V. 391 
 
 Morrell v. Dickey 
 Morris v. Eves 
 
 Harford v. 
 Morrison, Quelin v. 
 Morrison's Case 
 Mostyn v. Fabrigas 
 
 Muller V. Morris 
 Mumford, Norris v. 
 Munroe v. Douglas 
 V. Munro 
 V. Saunders 
 
 499, 504 a, 514 
 
 272, 338, 339 
 
 123 a, 
 
 408 
 
 399 
 
 276, 554, 637, 
 
 642 
 
 291 
 
 386 
 
 481, 592, 603 
 
 43, 472 
 
 87 a, 93 rf, 
 
 105 a, 113 
 
 Mure V. Kaye 
 
 Murphy v. Murphy 
 
 Murray v. De Rottenham 
 V. Murray 
 Starbuck v. 
 
 Muschamp, Arglasse v. 
 
 Musson V. Fales 
 
 N. 
 
 Nash V. Tupper 
 Nat V. Coon 
 Naylor, Delegal v. 
 Neale v. Coitingham 
 Needham, Med way v. 
 
 Neville, Galbraith v. 
 Newby v. Blakely 
 Newell V. Newton, 
 Niblett V. Scott 
 Nichols, Hosford v. 287 a, 
 428,4 
 Martin v. 
 Niles, Wilson v. 
 Norris v. Mumford 
 Norton, Brackett v. 242 
 Nouchet, Le Breton v. 78 
 
 Nourse, Walsh v. 
 Novelli V. Rossi 
 Noyes v. Butler, 
 
 O. 
 
 14- 
 
 627 
 178 
 348 
 565 
 608 
 544 
 259 
 
 558 
 
 479^. 
 
 308, 313 
 
 407 
 
 113, 116, 
 
 123 b. 
 
 605, 606 
 582 
 
 610 a. 
 
 609 
 
 ,291,365, 
 
 35, 483 a. 
 
 606, 607 
 609 
 386 
 
 , 637, 638 
 178, 180, 
 182, 198 
 335, 339 
 269, 607 
 586, 609 
 
 Obicini v. Bligh 607 
 
 O'Callagan v. Thomond 355, 566 
 Ocean Ins. Co. v. Portsmouth 
 
 Marine Railway Co. 592 a. 
 
 O'Daniel, Guier v. 
 Odwin V. Forbes 
 Ogden, Folliott v. 
 
 46, 380, 506 
 
 84 
 
 550, 556, 566, 
 
 620 
 
 V. Saunders 266, 323, 335, 
 
 340,341,343,346,398,416, 
 
 421, 570
 
 XXXIV 
 
 INDEX TO CASES CITED. 
 
 Ohio Insur. Co. v. Edmondson 244, 
 
 327 a, 558, 568 
 
 O'Keefe, Quin r. 335, 339 
 
 Olivier v. Townes 386, 388, 410, 
 
 416, 481, 524 
 Olmstead, Hooker v. 513, 515, 523 
 Ommaney v. Bingham 48, 465 
 
 Orcutt V. Ormes 521 
 
 Ordronaux v. Rey 160, 184 
 
 Orr V. Amory 420, 565 
 
 Ory r. Winter 317, 332, 340, 346 
 Otto, Lewis ex parte 89 
 
 Owen, Lewis v. 319, 333, 342 
 
 Owings V. Hall, 9 Peters, 627. See 
 
 Agency. 
 Oxholm, Wolff V. 334, 348, 350, 
 
 565, 566, 620 
 
 P. 
 
 Packard r. Hill 641 
 
 Page, Houghton v. 242, 243, 291, 
 
 335 
 Paradise v. Farmers and Me- 
 chanics Bank of Memphis 400 a. 
 Parish v. Seton 409 
 
 Park, Madesley v. 412 
 
 Patrick, Shedden v. 87 a. 
 
 Patterson, Barney v. 608 
 
 V. Gaines 113 
 
 Wallis V. 415, 416 
 
 Pattison v. Mills 259, 285 
 
 Pawling V. Bird's Ex'ors 230, 549, 
 
 608 
 Peacock u. Banks 291 
 
 Pearsall v. Dwight 38, 242, 243, 
 
 558 
 
 Peck V. Hozier 339, 558, 571 
 
 V. Mead 523 
 
 Peckars, Davis v. 608 
 
 Peckham v. North Parish in 
 
 Haverhill 565 
 
 Pellicat V. Angell 251, 254 
 
 Penaluna, Clugas v. 250, 255, 257 
 
 Penn v. Lord Baltimore 544 
 
 Penniman v. Meigs 348 
 
 Percival v. Hickey 423 h. 
 
 Perkins, W^alker v. 258 
 
 Perlreis v. Tondear 119 
 
 Peters v. Warren Ins. Co. 592, 593 
 
 Petrie, Jackson v. 545 
 
 Phelps V. Holker 549 
 
 V. Kent 292 
 
 Lodge V. 357, 558 
 
 Taylor v. 549, 598 
 
 Phillips V. Allan 338, 339, 342 
 
 V. Gregg 113 
 
 V. Hunter 380, 390, 404, 
 
 Phillips V. Hunter, continued. 
 
 405, 406, 428, 592 a, 599, 605 
 V. Kingfield 43 
 
 Phipps V. Earl of Anglesea 288 
 Pickering v. Fiske 625 a, 634 a. 
 ViC({\xe\, ex parte 513 
 
 V. Swan 539, 547 
 
 Pierpont, Bird u. 565 
 
 Piers V. Piers 108 
 
 Pierson v. Garnet 779 b. 
 
 Pilkington v. Commissioners of 
 
 Claims 313 a. 
 
 Piper V. Piper 380, 481 
 
 Pitcairn, Griswold v. 598, 643 
 
 Planche v. Fletcher 245, 257 
 
 Plestoro, Abraham V. 415,419 
 
 Plomer, Delvalle ii. 263 
 
 Plumraer, Webb v. 270 
 
 V. Woodburne 547, 548, 
 599 a. 
 Pomeroy, Slacura v. 307, 314, 317, 
 
 346 
 
 Pond V. Makepiece 358 
 
 Poor, Coolidge v. 283 
 
 Tappan v. 337, 339 
 
 Pope V. Nickerson 272, 286 cc. 
 
 Potlinger v. Wightman 46, 506 
 
 Potter V. Brown 315, 326, 332, 
 
 335, 380, 481 
 
 Langdon v. 513 
 
 V. Titcomb 424 
 
 Potts, Hunter u. 335,337,380,390, 
 
 398, 404, 406, 407, 428, 481 
 
 Powers V. Lynch 281, 314, 315 
 
 Powles, Thompson v. 259, 291, 
 
 305 
 
 Pratt V. Adams 292 
 
 Prentiss v. Savage 270, 281, 314, 
 
 335, 345, 351 
 
 Price V. Dewhurst 465, 481, 603 
 
 V. Morgan 391 
 
 Pulver, Shultz r. 481,515 
 
 Putnam v. Johnson 43 
 
 V. Putnam 89, 113, 123 i. 
 
 Pye, Gordon v. 98, 217 
 
 Q. 
 
 Quelin v. Moisson 
 Quin V. O'Keefe 
 
 R. 
 
 408 
 335, 339 
 
 Ralph V. Brown 610 a. 
 
 Ramsay v. Stevenson 386, 392 
 
 Ramsay's Ex'ors, Dixon's Ex- 
 ecutors V. 468, 513 
 Randall, Jones v. 258
 
 INDEX TO CASES CITED. 
 
 XXXV 
 
 Ranelagh v. Cliampant 287 a, 291, 
 
 296, 313 
 
 Rathbone v. Terry 608 
 
 Raugeley v. Webster 549, 598 
 
 Rawlinslon v. Stone 359 
 
 Ray V. Sherwood 115 
 
 Raymond v. Johnson 565 
 
 Redfern, Arnott v. 291, 603, 607 
 
 Reed, Waynell v. 251, 255 
 
 Reeve, Bowaman v. 528 
 
 Regina w. Chad wick 114 a, 115 
 
 V. Wye 114 a. 
 
 Remsen, Holmes v. 38, 348, 379, 
 
 380, 395, 396, 399, 405, 406, 
 
 408, 409, 414,415,417,418, ' 
 
 420,428,468,474, 513,524, 
 
 565, 592 a. 
 
 Rex «. Bull 627,628 
 
 V. Hutchinson 627 
 
 V. Kimburley 627 
 
 v. Lolley 86,88,106,117, 
 
 124, 218, 225 
 
 Richards v. Dutch 513 
 
 Richards, Harvey v. 379, 468, 481, 
 
 513, 578, 524 
 
 V. Richards 359 
 
 Richardson, Brown v. 268 
 
 V. Leavitt 399 a, 400 a. 
 
 V. Maine Ins. Co. 259 
 
 Ricketts, Bourke v. 313 
 
 Riley v. Riley 513 
 
 Ripple V. Ripple 603 
 
 Ritchie v. Smith 254 
 
 Roach V. Garvan 595, 604 
 
 Roberdeau v. Rous 545 
 
 Roberts, Male v. 82, 89, 241, 332, 
 
 637 
 
 Robinson v. Bland 38, 123 a, 199, 
 
 243, 258, 281,291,296, 
 
 304 a, 305, 340, 364, 
 
 383, 554, 558, 571 
 
 V. Campbell 566 
 
 V. Crandall 517 
 
 V. Danchy 637, 638 
 
 V. Jones 593 
 
 V. Ward's Ex'ors 549 
 
 Root, Barber v. 228, 229 
 
 Rose V. Himely 590, 592 
 
 V. Ross 93 s. 
 
 V. McLeod 342 
 
 Ross, Solomon v. 398, 407 
 
 Rossi, Novelli v. 269, 607 
 
 Rowland, Kibblewhite v. 217 
 
 Rucker, Buchanan v. 547, 586 
 
 Ruding V. Smith 18, 62, 79, 90 
 
 Rue High, Appellant 43 
 
 Rundle v. Delaware & Raritan 
 
 Canal 554 
 
 Russell, Blanchard v. 22, 35, 38, 
 
 244,261,278, 317, 335, 337, 
 
 340, 346, 348, 349. 362 
 
 V. Field 610 a. 
 
 Ryan v. Ryan 79, 113 
 
 Salmon v. Woodon 610 a. 
 
 Santa Cruz (The Ship) 423 h. 
 
 Sarmiento, Green v. 335, 342, 348, 
 
 608 
 
 Saul V. His Creditors 13, 14, 28, 
 
 33, 38, 51, 75, 78, 89, 96, 153, 
 
 157, 170, 173, 177, 178, 190, 
 
 277, 326 
 
 Saunders v. Drake 113, 118, 119 
 
 313, 479 ^.. 
 
 V. Williams 416 
 
 Ogden V. 266, 323, 335, 
 
 340, 341, 343, 346, 398, 
 
 416, 421, 570 
 
 Savage, Prentiss v. 270, 281, 
 
 314, 335, 345, 351 
 
 Savatier, De Couche v. 88, 89, 
 
 145 a, 152, 178, 276,481,577, 
 
 581, 582 a. 
 
 Sawyer v. Shuter 171 a. 
 
 School Directors v. James 46 
 
 Scolfield V. Day 291, 305, 311 a. 
 
 Scotland, Royal Bank o( v. 
 
 Cuthbert 408, 423 
 
 Scott V. Alnutt 364, 367, 398 
 
 Balfour v. 465 
 
 V. Bevan 308, 313 
 
 Scoville V. Canfield 621 
 
 Scrimshire v. Scrimshire 44. 46, 
 
 80,80 a, 113, 121, 122, 122 a, 
 
 514 i, 596 
 
 Seabright v. Calbrailh 332 
 
 Sears, Fen wick v. 513, 558 
 
 Selkrig v. Davis 159, 186, 364, 
 
 395,398,400,408, 423, 428, 
 
 543 
 
 Seton, Parish v. 409 
 
 Shanklin v. Cooper 314, 347 
 
 Sharp, Foden v. 296, 320 
 
 Shattuck, Moley v. 593 
 
 Shaw, Carr n. 353 
 
 Shedden v. Patrick 87 a 
 
 Shelby v. Grey 582 
 
 Sherrill v. Hopkins 340, 346 
 
 Shipman v. Thompson 516 
 
 Shuhzi). Pulver 481, 515 
 
 Shumway V. Slillman 586,608,009 
 
 Sill V. Worswick 362, 380, 390, 
 
 395, 398, 404, 406, 408, 428, 
 
 481
 
 XXXVl 
 
 INDEX TO CASES CITED. 
 
 Silver v. Stein 
 Simmons, ex parte 
 Sinclair v. Fraser 
 V. Sinclair 
 Sinlder, Foster v. 
 Slack V. Walcott 
 Slacum V. Pomeroy 
 
 513 
 
 96 
 
 603, 605 
 
 596 
 
 396 
 
 516 
 
 307, 314, 
 
 317, 346 
 
 Slyhoof V. Flitcraft 610 a. 
 
 Smith, Atkins v. 515 
 
 V. Buchanan 342, 348, 408, 
 
 564 
 
 Glenn v. 513 
 
 V. Healy 571, 572 
 
 Lawrence v. 228 
 
 V. Mclver 610 a. 
 
 V. Mead 242, 279, 296 
 
 V. Nicolls 522 
 
 V. Ruding 18, 62, 79, 90, 
 
 113, 118, 119 
 
 V. Shaw 311a. 
 
 V. Smith 335, 342, 348 
 
 V. SpinoUa 558, 571 
 
 V. Stotesbury 253 
 
 V. Webb 513 
 
 Smith's Adm'r v. Union Bank 
 
 of Georgetown 513, 524 
 
 Snaith v. Mingay 289 
 
 Solomons v. Ross 398, 407 
 
 Somerset's Case 27, 96, 259 
 
 Somerville v. Somerville 45, 46, 
 47, 465, 469 
 Southey v. Sherwood 558 
 
 Southward, Wyman v. 571 
 
 Span, Dewar v. 287 a, 293, 305 
 Spencer, Bollard v. 516 
 
 Spratt IK Harris 5\ib 
 
 Springfield Bank v. Merrick 246 
 Sproule V. Legge 272 a, 313, 317 
 Stanley v. Barnes 4G, 4G5, 467 
 
 Stapleton v. Conway 288, 293, 305, 
 
 313 
 
 Starbiick v. Murray 608 
 
 State (The) v. Knight 621 
 
 V. Patterson 113 
 
 u. Twilty 641a. 
 
 Stearns v. Burnhain 358, 513 
 
 Steele V. Braddell 123 a, 124 
 
 Stein's Case 186, 304, 408, 428 
 
 Sterry, Harrison v. 263, 323, 416, 
 
 422, 524 
 
 Stevens v. Gaylord 513, 514 b, 520 
 
 Stevenson, Ramsay v. 386, 392 
 
 Stewart v. Ellice 291 
 
 Thompson v. 643 
 
 St. Louis (The) 96 
 
 Stodder, Whiston v. 242, 244, 285 
 
 StoDe, Rawlinson v. 359 
 
 Strathmore v. Bowes 93 s. 
 
 Strathmore Peerage Case 87 a. 
 
 Stuart, Cavan v. 547, 586 
 
 Sturgis V. Crowninshield 335, 580 
 Suarez v. Mayor &c. of New 
 
 York 481 
 
 Sullivant, McCormick v. 428, 435, 
 
 474, 483 a, 
 
 Sumner, Lanfear v. 386, 389, 392 
 
 Sutton V. Warren 113, 114, 114 a, 
 
 116 
 Suydam v. Broadnax 572 
 
 Swan, Picquet v. 539, 547 
 
 Swearingen's Ex'rs v. Pendle- 
 ton's Ex'ors 514 b. 
 Symonds v. Union Ins. Co. 571 
 
 Talbot V. Leeman 640 
 
 Talleyrand v. Boulanger 569 
 
 Talmadge v. Chapel 522 
 
 Tanner v. King 43 
 
 Tappan v. Poor 337, 339 
 
 Tarleton, Evans V. 609 
 
 V. Tarleton 593, 598, 606 
 
 Taylor v. Bryden 609 
 
 Elmendorf v. Til 
 
 V. Phelps 549, 598 
 
 V. Royal 610 a. 
 
 Teesdale, Latour v. 118, 120 
 
 Temple, Hodgson v. 254 
 
 Teuton v. Garlick 547 
 
 Terasson, Van Cleff v. 333 
 
 Territt v. Woodruff 637 
 
 Tewsch, Utterton i-. 216, 217 
 
 Thomond, O'Callagan v. 355, 566 
 
 Thompson v. Advocate 380 
 
 V. Ketcham 82, 241, 
 
 281, 291, 332 
 
 V. Powles 259, 291, 305 
 
 Shipman v, 516 
 
 V. Stewart 643 
 
 Vidal V. 262, 301, 302, 
 
 318 
 
 V. Wilson 358,513,517 
 
 Thorn v. Watkins 362, 481, 484, 
 
 513, 515 
 
 Thorndike v. City of Boston 45 a. 
 
 Thornton, Curling v. 465 
 
 Thuret v. Jenkins 392, 393 
 
 Thurston, Dangerfield v. 513 
 
 Ticknor v. Roberts 260 a. 
 
 Tilley, Chaplin v. 513 
 
 Titus V. Hobart 339, 571, 572 
 
 Toler, Armstrong v. 245, 246, 247, 
 
 249, 250 
 
 Tondear, Pertreis v. 119
 
 INDEX TO CASES CITED. 
 
 XXXV 11 
 
 Touro V. Cassin 213 
 
 Tourlon v. Fowler 513 
 
 Tousey, Campbell r. 513, 514, 514 6 
 Tovey v. Lindsay 88, 106, 117, 
 218, 225 
 Townes, Olivier v. 386, 388, 410, 
 416, 481, 524 
 Townsend, Atwater v. 335, 571, 
 
 572 
 V. Jennison 582 a 
 
 Trasher v. Everhart 242, 244, 558, 
 506, 631, 637 
 Trecothick v. Austin 359,513, 515 
 Tremere, Wood v. 586 
 
 Trimbey v. Vio-nier 242, 267, 272, 
 314, 316 flf, 353 a, 356, 359, 
 558, 566 
 Triplett, Bank of Washing- 
 ton V. 361 
 Trotter v. Trotter 479 a 
 Tupper, Nashr. 558 
 Turner, Inhabitants of Hano- 
 ver V. 228 
 Turst, Feaubert v. 143, 145 a, 276 
 Tyler v. Bell 513,514 6 
 V. Trabue 281, 637 
 
 U. 
 
 U. Insur. Co., Vanderheuvel v. 593 
 
 Underwood, Englis v. 402 
 
 United States, Brown v. 334 
 
 V. Crosby 428, 435, 
 
 474, 483 a 
 
 Cox & Dickw. 281, 
 
 290 
 
 V. Davis 628 
 
 Duncan v. 290 
 
 V. Johns 643 
 
 Union Bank of Georgetown, 
 
 Smith Adm'r v. 513, 524 
 
 Union Insur. Co., Symonds v. 571 
 Utterton v. Tewsch 216, 217 
 
 Van Cleff v. Terasson 333 
 
 Vanderdonckt v. Thellusson 642 
 Vanderheuvel v. U. Insur. Co. 593 
 Van Raugh v. Van Arsdaln 341, 
 
 348 
 Van Rensselaer, Ludlow v. 257, 
 
 200, 281 
 
 Van Reimsdyk v. Kane 243, 263, 
 
 281, 335, 558, 577 
 
 Van Schaick v. Edwards 243, 287 a, 
 
 293, 304 
 
 d 
 
 Vardill, Doe dem. Birthwhistle v. 
 81, 87, 93 a, 336, 386, 428,434, 
 
 481, 483 
 Vassall, Foster v. 544 
 
 Vavasseur, Bayon v. 203 
 
 Venus (The) 48 
 
 Very v. McHenry 335, 341, 348, 
 
 351,410 
 Vermilya w. Beatty 513 
 
 Vianna, De la Vega v. 272, 550, 
 571, 577, 582 a 
 Vickery, Kraft v. 499, 504 a 
 
 Vidal V. Thompson 262, 301, 302, 
 
 318 
 Virginie, La 47 
 
 W. 
 
 Waddington, Griswold v. 259 
 
 Wade, Beckford v. 582 
 
 Wadham v. Marlovv 404 
 
 Wadleigh u. Veazie 610 a 
 
 Walcott V. Walker 258 
 
 Walcot, Slack v. 516 
 
 Walk V. Bank of Circleville 45 a 
 
 Walker, Byrne v. 565 
 
 V. Perkins 258 
 
 V. Witter 603, 604 
 
 Wallis, Birmington v. 258 
 
 V. Brightwell 479 5 
 
 Lewis V. 395 
 
 V. Patterson 415, 416 
 
 Walsh V. Durkin 610 a 
 
 V. Nourse 335, 339 
 
 Ward V. Amedon 545 
 
 V. Day 79 a 
 
 Warde, Dudley v. 582 
 
 Warder v. Arell 332 
 
 Ward's Ex'ors, Robinson v, 549 
 
 Warren v. Lynch 567 
 
 Warrender v. Warrender 46, 88, 
 
 106, 114, 124, 205, 218, 226 a, 
 
 230 6,2596, 268 rt, 322 6, 351c, 
 
 351 d, 364, 620, 625 
 
 Washburn (In the matter of) 627, 
 
 628 
 Waters, Carrol v. 322 
 
 Watson V. Bourne 335, 340 
 
 Watts 1). Kinney 554 
 
 Massie v. 545 
 
 V. Waddle 543 
 
 Wayne v. Greene 44 
 
 Waynell v. Reed 252, 255 
 
 Webb V. Plummer 270 
 
 Welsh V. Sykes 608 
 
 West Cambridge r. Lexington 
 
 89, 113, 123 6
 
 XXXVlll 
 
 INDEX TO CASES CITED. 
 
 West Lyndic v. McConnell 610 a 
 Weston, Babcock v. 348 
 
 Wetherell v. Jones 254 
 
 Wheaton, Baker v. 335, 340 
 
 Whiston V. Stodder 242, 244, 285, 
 
 322 J 
 
 White V. Canfield 339 
 
 V. Hall 545 
 
 Leffin swell v. 270 
 
 Whitney v. Walsh 592 
 
 Whiitemore v. Adams 571 
 
 Wigglesworth v. Dallison 270 
 
 Wightman, Pottinger v. 46, 506 
 
 V. Wightman 114, 116 
 
 Wilcox V. Hunt 242, 272, 558, 
 
 631, 635 c? 
 
 Wilcocks, Lee v. 308 
 
 Wilkins, Brush v. 642 
 
 Willes, Madrazo v. 96 a, 259 
 
 Williams v. Armroyd 592 
 
 Blake v. 329, 380, 396, 
 
 399, 409, 410, 414, 
 
 415, 417, 420, 428 
 
 Hall V. 586, 608, 609 
 
 Saunders v. 416 
 
 V. Wade 316 J 
 
 Willing, Consequa v. 242, 291, 307, 
 
 571, 637 
 
 Willis V. Baldwin 258 
 
 Wills V. Cowper 365, 428, 435, 
 
 474, 483 a 
 
 Wilson In re 395, 398, 404 
 
 Meeker v. 386 
 
 V. Niles 609 
 
 Wilson, Thompson u. 358,513,517 
 Winchelsea (Earl of) v. Ga- 
 
 retty 266 a, 366 
 
 Winter, Ory v. 317, 332, 340, 346 
 
 Wiiithrop V. Carleton 296 
 
 Withy, Jaques v. 246 
 
 Wolfl' V. Oxholm 334, 348, 350, 
 
 565, 566, 620 
 
 Wood V. Patridge 396 
 
 V. Tremere 586 
 
 V. Waikinson 608, 609 
 
 Woodbridge v. Wright 571, 572 
 
 Woodstock V. Hartland 47 
 
 Worsvvick, Sill v. 362, 380, 390, 
 
 395, 398, 404, 406, 408, 428, 481 
 
 Wrigby e:^ parte 47 
 
 Wright, Hoxie v. 608, 609 
 
 V. Paton 339 
 
 Wyman v. Southward 571 
 
 Wynne v. Jackson 260, 262, 318 
 
 Y. 
 
 Yates V. Thompson 260, 479 g, 
 481, 491, 634 a, 635^,635 c 
 
 Yeaton v. Fry 643 
 
 Young V. Crossgrove 577 
 
 V. Templeton 182, 642 
 
 Yrissarii v. Clement 291 
 
 Z. 
 
 Zacharie, Bayle v. 
 
 287, 341
 
 COMMENTARIES 
 
 ON THE 
 
 CONFLICT 
 BETWEEN FOUEIGN AND DOMESTIC LAWS. 
 
 CHAPTER I. 
 
 INTRODUCTORY REMARKS. 
 
 § 1. The Earth has long since been divided into dis- 
 tinct Nations, inhabiting different regions, speaking 
 different languages, engaged in different pursuits, and 
 attached to different forms of government.^ It is 
 natural, that, under such circumstances, there should 
 be many variances in their institutions, customs, laws, 
 and polity ; and that these variances should result 
 sometimes from accident, and sometimes from design, 
 sometimes from superior skill and knowledge of local 
 interests, and sometimes from a choice founded in igno- 
 rance, and supported by the prejudices of imperfect 
 civilization. Climate, and geographical position, and 
 the physical adaptations springing from them, must at 
 all times have had a powerful influence in the organiza- 
 
 1 Upon the subject of this chapter the learned reader is referred to 
 Surge's Commentaries upon Colonial and Foreign Law, Vol. I. Pt. 1, 
 eh. 1, p. 1 to 32. 
 
 CONFIi. 1
 
 2 CONFLICT OF LAWS. [CH. I. 
 
 tion of each society, and have given a peculiar com- 
 plexion and character to many of its arrangements. 
 The hold, intrepid, and hardy natives of the North of 
 Europe, -whether civilized or barbarous, would scarcely 
 desire, or tolerate, the indolent inactivity and luxurious 
 indulgences of the Asiatics. Nations, inhabiting the 
 borders of the ocean, and accustomed to maritime inter- 
 course with other nations, would naturally require insti- 
 tutions and laws, adapted to their pursuits and enter- 
 prises, which would be wholly unfit for those, who 
 should be placed in the interior of a continent, and 
 should maintain very different relations with their 
 neighbors, both in peace and war. Accordingly we find, 
 that, from the earliest records of authentic history, 
 there has been (as far at least as we can trace them) 
 little uniformity in the laws, usages, policy, and insti- 
 tutions, either of contiguous or of distant nations. 
 The Egyptians, the Modes, the Persians, the Greeks, 
 and the Romans, differed not more in theu' characters 
 and employments from each other, than in their insti- 
 tutions and laws. They had little desire to learn, or to 
 borrow, from each other j and indifference, if not con- 
 tempt, was the habitual state of almost every ancient 
 nation in regard to the internal polity of all others. 
 
 § 2. Yet even under such circumstances, from their 
 mutual intercourse with each other, questions must 
 sometimes have arisen, as to the operation of the laws 
 of one nation upon the rights and remedies of parties 
 in the domestic tribunals, especially when they were in 
 any measure dependent upon, or connected with, foreign 
 transactions. How these questions were disposed of, 
 we do not know. But it is most probable, that they 
 were left to be decided by the analogies of the muni- 
 cipal code, or were abandoned to their fate, as belong-
 
 CH. I.] INTRODUCTORY REMARKS. 3 
 
 ing to that large class of imperfect rights, which rests 
 wholly on personal confidence, and is left without 
 any appeal to remedial justice. It is certain, that the 
 nations of antiquity did not recognize the existence of 
 any general, or universal rights and obligations, such 
 as among the moderns constitute, what is now empha- 
 tically called, the Law of Nations. Even among the 
 Romans, whose jurisprudence has come down to us in a 
 far more perfect an^ comprehensive shape, than that of 
 any other nation, there cannot be traced out any dis- 
 tinct system of principles, applicable to international 
 cases of mixed rights. This has been in some measure 
 accounted for by Huberus ^ upon the supposition, that 
 at the time to which the Roman jurisprudence relates, 
 the Roman dominion extended over so great a portion 
 of the habitable world, that frequent cases of contra- 
 riety or conflict of laws could scarcely occur.^ But 
 this is a very inadequate account of the matter ; since 
 the antecedent jurisprudence of Rome must have em- 
 braced many such cases at earlier periods ; and if there 
 had been any rules, even traditionally known, to govern 
 them, they could scarcely have failed of being incorpo- 
 rated into the Civil Codes of Justinian. In many of 
 the nations, over which the Romans extended their 
 dominion, the inhabitants were left in possession of 
 their local institutions, usages, and laws, to a large 
 extent ; and commercial as well as political intercourse 
 must have brought many diversities of laws and usages 
 
 1 2 Hub. lib. 1, tit. 3, p. 538. 
 
 3 The language of Huberus is, "Injure Romano non est mirum nihil 
 hac de re extare, cum populi Romani per omnes orbis partes diffusum, 
 et aequabili jure gubernatum imperium, conflictui diversarura legum non 
 ffique potuerit esse subjectum." — Hub. lib. 2, tit. 3, sect. 1.
 
 4 CONFLICT OF LAWS. [CH. I. 
 
 in judgment before the tribunals of justice.^ We have 
 the most abundant evidence on this head, in relation to 
 the Jews, after they had submitted to the Roman yoke, 
 who were still permitted to follow their own laws in the 
 times of our Saviour, and down to the destruction of 
 Jerusalem.^ 
 
 ^ 2 a. When the Northern nations by their irrup- 
 tions finally succeeded in establishing themselves in 
 the Roman empire, and the dependent nations subjected 
 to its sway, they seem to have adopted, either by de- 
 sign, or from accident, or necessity, the policy of allow- 
 ing the different races to live together, and to be go- 
 verned by and to preserve their own separate manners, 
 laws, and institutions in their mutual intercourse. 
 While the conquerors, the Goths, Burgundians, Franks, 
 and Lombards, maintained their own laws and usages 
 and customs over their own race, they silently or 
 expressly allowed each of the races, over whom they 
 had obtained an absolute sovereignty, to regulate their 
 own private rights and aifairs according to their own 
 municipal jurisprudence. It has accordingly been re- 
 marked, by a most learned and eminent jurist, that 
 from this state of society arose that condition of civil 
 rights denominated personal rights, or personal laws, 
 in opposition to territorial laws.^ 
 
 1 See 1 Hertii, Opera, § 4, de Collis. leg. p. 119, ^ 2 ; Id. p. 169, edit. 
 1716. 
 
 2 There are traces to be found in the Digest of the existence and opera- 
 tion of the Lex Loci. See Dig. lib. 50, tit. 1, 1. 21, § 7 ; Id. lib. 50, tit. 
 6, I. 5, ^ 1 ; Id. tit. 4, 1. 18, § 27 ; Id. tit. 3, 1. 1 ; Livermore, Dissert, 
 p. 1, n. a. 
 
 3 Savigny's History of the Roman Law in the Middle Ages. The 
 whole passage is exceedingly interesting and curious ; and therefore I 
 quote it at large from Mr. Calhcart's Translation, Vol. I. ch. 3, p, 99 to 
 104. — W^hen the Goths, Burgundians, Franks, and Lombards, founded
 
 CH. I.] 
 
 INTRODUCTORY REMARKS. 
 
 § 2 J. Still, however, this was but a mere arrange- 
 ment in the domestic polity of each particular nation ; 
 
 kingdoms in the countries, formerly subject to the power of Rome, there 
 were two different modes of treating the conquered race. They might be 
 extirpated, by destroying or enslaving the freemen ; or, the conquering 
 nations, for the sake of increasing their own numbers, might transform the 
 Romans into Germans, by forcing on them their manners, constitution, and 
 laws. Neither mode, however, was followed ; for, although many Ro- 
 mans were slain, expatriated, or enslaved, this was only the lot of indi- 
 viduals, and not the systematic treatment of the nation. Both races, on 
 the 'contrary, lived together, and preserved their separate manners and 
 laws. From this state of society arose that condition of civil rights, de- 
 nominated Personal rights, or Personal laws, in opposition to territorial 
 laws. The moderns always assume, that the law, to which the individual 
 owes obedience, is that of the country, where he lives ; and that the 
 property and contracts of every resident are regulated by the law of his 
 domicil. In this theory, the distinction between native and foreigner is 
 overlooked, and national descent is entirely disregarded. Not so, how- 
 ever, in the middle ages ; where, in the same country, and often indeed 
 in the same city, the Lombard lived under the Lombardic, and the Ro- 
 man under the Roman law. The same distinction of laws was also 
 applicable to the different races of Germans. The Frank, Burgundian, 
 and Goth, resided in the same place, each under his own law : as is 
 forcibly stated by the Bishop Agobardus, in an Epistle to Louis le Debon 
 naire. ' It often happens,' says he, ' that five men, each under a different 
 law, may be found walking or sitting together.' 
 
 "In the East-Gothic kingdom alone, this custom was not originally fol- 
 lowed. There, an artificial and systematic plan was adopted, which 
 belongs to the particular history of that nation, and cannot be brought 
 within the general inquiry. All the other States followed the system of 
 Personal laws; and, this universal practice could not have arisen from 
 accidental reasons, but from common views,'principlcs, and wants. These 
 may be appropriately illustrated at present. 
 
 "According to the general opinion, the system of personal laws pre- 
 vailed among all the German nations, from the earliest times ; and it is 
 customary to explain this circumstance by the love of freedom, so peculiar 
 to these races. In the first place, however, it is difficult to perceive, how 
 such an institution could arise merely from regard to liberty. Such an 
 attachment might, indeed, create a wish among nations, or individuals to 
 preserve their own laws, in a foreign country, or under a foreign yoke ; 
 but the question is, how were the predominant people induced to grant 
 them this privilege"? The benevolent and hospitable disposition of the 
 victorious may have been partly the cause ; but, their mere love of freedom 
 1*
 
 6 CONFLICT OF LAWS. [CH. L 
 
 and even then, it must often have involved serious 
 embarrassments, whenever questions arose in regard to 
 
 affords no satisfactory explanation. This humane treatment of foreigners 
 was not deeply seated in the character of the old Germans. It is probable, 
 that among them every foreigner was, at first, a Wildfang, and belonged 
 to the class of the Biesterfreien ; — denied the advantages, arising from 
 service in the national army, or from the obligations of fealty, and living 
 as an alien, unprotected by any power, except the weak hand of the 
 general government; who, while they excluded him from the rights of 
 marriage, inherited his property, and exacted his composition, if slain. 
 Further, the want of such an institution, as the Personal Laws, could 
 never have been felt, in a country without trade, and where few foreigners 
 resided. In these circumstances, its introduction was impossible. If only 
 a single Goth lived in the Burgundian Empire, none of his countrymen 
 could be found to administer Gothic Law, and the Burgundians thenaselves 
 were entirely ignorant of it. 
 
 "The truth is, that the want of such an institution, and the possibility 
 of introducing it, could occur only, after the nations were blended together 
 in considerable masses. The internal condition of each kingdom would 
 then produce what could never have been brought about by mere benevo- 
 lence toward individual foreigners. According to this account of the 
 origin of the system of Personal laws, it prevailed in all the German 
 States, settled in countries formerly subject to Rome. At first, the vali- 
 dity of two Laws only was admitted : e. g. the law of the victorious race, 
 and of the vanquished Romans. Individuals belonging to other German 
 nations, did not at first enjoy the right of living under their own laws ; 
 but when our supposed kingdom had extended its conquests, and spread 
 but its dominion over other German tribes, then the laws of the con- 
 quered German races were acknowledged, in the same manner as the 
 Roman formerly had been. Thus, also, every foreign law, prevailing in 
 the empire of the conqueror, was admitted and considered as valid among 
 all the vanquished. This practice ought to have produced the following 
 results. At first, in the northern parts of France, the Frank and Roman 
 laws must have been exclusively received ; and, under the Carlovingian 
 dynasty, it would become necessary to admit likevi'ise the laws of the 
 West Goths, Burgundians, Alemans, Bavarians, and Saxons ; because 
 these, as nations belonged to the empire. Italy, however, did not form 
 a Province under the Franks, and there could not consequently be the 
 same reason for admitting the validity of Lombardic Law within the 
 Frank empire. In Italy, also, under the Lombardic Kings, only Lom- 
 bardic and Roman law could have prevailed to the exclusion of every 
 other; but, after its conquest by the Franks, all the multifarious foreign 
 laws, existing in the territory of the conquerors, must have been intro-
 
 CH. I.] INTRODUCTORY REMARKS. 7 
 
 conflicting rights, and claims, and remedies, growing 
 out of dealings, and acts, and contracts between indi- 
 viduals belonging to different races. But when the 
 question assumed a more comprehensive character, and 
 the point to be decided was, what rule should prevail, 
 where there was a conflict of laws between different 
 sovereignties, wholly independent of each other ; and 
 there were rights to be established of a private nature 
 between some, of the subjects of each sovereignty ; 
 there was no recognized principle or practice, which 
 was promulgated by all, or submitted to by all. Such 
 rights were probably left without any remedy, and 
 became either the subject of private adjustment, or 
 were silently disregarded. 
 
 § 3. The truth is, that the Law of Nations, strictly so 
 called, was in a great measure unknown to antiquity, 
 and is the slow growth of modern times, under the 
 combined influence of Christianity and Commerce.^ It 
 is well known, that when the Roman Empire was de- 
 stroyed, the Christian world was divided into many 
 independent sovereignties, acknowledging no common 
 head, and connected by no uniform civil polity. The 
 invasions of the Barbarians of the North, the establish- 
 ment of the feudal system in the middle ages, and the 
 military spirit and enterprise cherished by the Crusades, 
 struck down all regular commerce, and surrendered all 
 
 duced. Now, these anticipated results are supported by history ; and 
 this accordance is a strong practical confirmation of that account of the 
 origin of Personal Laws, already established by general reasoning." — 
 The same passage will be found in Mr. Guenoux's French translation of 
 the same work, Vol. 1, ch. 3, p. 84 to 88, edit. 1830 ; Id. ch. 3, ^ 30, 
 edit. 1839. 
 
 1 See 1 Ward, Law of Nations, ch. 6. p. 171 to 200 ; Id. ch. 3, p. 120 
 to 130.
 
 8 CONFLICT OF LAWS. [CH. I. 
 
 private rights and contracts to mere despotic power. 
 It was not until the revival of Commerce on the shores 
 of the Mediterranean, and the revival of Letters and the 
 study of the Civil Law by the discovery of the Pandects, 
 had given an increased enterprise to maritime naviga- 
 tion, and a consequent importance to maritime contracts, 
 that any thing like a system of international justice 
 began to be developed. It first assumed the modest 
 form of commercial usages; it was ne:sji promulgated 
 under the more imposing authority of royal ordinances ; 
 and it finally became by silent adoption a generally 
 connected system, founded in the natural convenience, 
 and asserted by the general comity of the commercial 
 nations of Europe. The system, thus introduced for the 
 purposes of commerce, has gradually extended itself to 
 other objects, as the intercourse of nations has become 
 more free and frequent. New rules, resting on the 
 basis of general convenience, and an enlarged sense of 
 national duty, have, from time to time, been promul- 
 gated by jurists, and supported by courts of justice, by 
 a course of juridical reasoning, which has commanded 
 almost universal confidence, respect, and obedience, with- 
 out the aid, either of municipal statutes, or of royal 
 ordinances, or of international treaties. 
 
 § 4. Indeed, in the present times, without some gene- 
 ral rules of right and obligation, recognized by civilized 
 nations to govern their intercourse with each other, the 
 most serious mischiefs and most injurious conflicts would 
 arise. Commerce is now so absolutely universal among 
 all countries ; the inhabitants of all have such a free in- 
 tercourse with each other; contracts, sales, marriages, 
 nuptial settlements, wills, and successions, are so com- 
 mon among persons, whose domicils are in different 
 countries, having different and even opposite laws on
 
 CH. I.] INTRODUCTORY REMARKS. 9 
 
 the same subjects; that, without some common prin- 
 ciples adopted by all nations in this regard, there would 
 be an utter confusion of all rights and remedies ; and 
 intolerable grievances would grow up to weaken all the 
 domestic relations, as well as to destroy the sanctity of 
 contracts and the security of property.^ 
 
 § 5. A few simple cases will sufficiently illustrate 
 the importance of some international principles in mat- 
 ters of mere private right and duty. Suppose a contract, 
 valid by the laws of the country, where it is made, is 
 sought to be enforced in another country, where such a 
 contract is positively prohibited by its laws; or, vice 
 versa, suppose a contract invalid by the laws of the coun- 
 try, where it is made, but valid by that of the country, 
 where it is sought to be enforced ; it is plain, that un- 
 less some uniform rules are adopted to govern such 
 cases, (which are not uncommon,) the grossest ine- 
 qualities will arise in the administration of justice 
 between the subjects of the different countries in regard 
 to such contracts. Again ; by the laws of some coun- 
 tries marriage cannot be contracted until the parties 
 arrive at twenty-one years of age ; in other countries 
 not until they arrive at the age of twenty-five years. 
 Suppose a marriage to be contracted between two per- 
 sons in the same country, both of whom are over twenty- 
 one years but less than twenty-five, and one of them is 
 a subject of the latter country. Is such a marriage 
 
 1 BouUenois, inr his Preface, (1 vol. p. 18,) says, " II regnera done 
 toujours entre les nations une contrariety perpetuelle de loix; peut-dtre 
 regnera-t-elle perpetuellement entre nous sur bien des objects. Deli la 
 necessite de s'instruire des regies et" des principes qui peuvent nous 
 conduire dans la decision des questions, que cette vari6ie peut faire 
 naitre."
 
 10 CONFLICT OF LAWS. [CH. L 
 
 valid, or not ? If valid in the country, where it is cele- 
 brated, is it valid also in the other country ? Or, the 
 question may be propounded in a still more general 
 form ; is a marriage, valid between the parties in the 
 place where it is solemnized, equally valid in all other 
 countries ? Or, is it obligatory only as a local regu- 
 lation, and to be treated everywhere else as a mere 
 nullity ? 
 
 § 6. Questions of this sort must be of frequent occur- 
 rence, not only in different countries, wholly independent 
 of each other; but also in provinces of the same empire, 
 which are governed by different laws, as was the case 
 in France before the Revolution ; and also in countries 
 acknowledging a common sovereign, but yet organized 
 as distinct communities, as is still the case in regard to 
 the communities composing the British Empire, the 
 Germanic Confederacy, the States of Holland, and the 
 Dominions of Austria and Russia.* Innumerable suits 
 must be litigated in the judicial forums of these coun- 
 tries, and provinces, and 'communities, in which the 
 decision must depend upon the point, whether the na- 
 ture of a contract should be determined by the law of 
 the place, where it is litigated ; or by the law of 
 the domicil of one or of both of the parties ; or by the 
 law of the place, where the contract is made ; whether 
 the capacity to make a testament should be regulated 
 by the law of the testator's domicil, or that of the loca- 
 tion {situs) of his property ; whether the form of his 
 testament should be prescribed by the law of the place 
 of his domicil, or by that of the location of his property, 
 or by that of the place, where the testament is made ; 
 
 1 See 1 Froland, M6moires sur les Statuts, P. 1, ch. 1, § 5 to 10.
 
 CH. I.] INTRODUCTORY REMARKS. 11 
 
 and in like manner, whether the law of the domicil, or 
 what other law should govern in cases of succession to 
 intestate estates.-' 
 
 § 7. It is plain, that the laws of one country can 
 have no intrinsic ioYce, jyroprio vigorc, except within the 
 territorial limits and jurisdiction of that country. They 
 can bind only its own subjects, and others, who are 
 within its jurisdictional limits ; and the latter only, 
 while they remain therein. No other nation, or its sub- 
 jects, are bound to yield the slightest obedience to those 
 laws. Whatever extra-territorial force they are to have, 
 is the result, not of any original power to extend them 
 abroad, but of that respect, which from motives of pub- 
 lic policy other nations are disposed to yield to them, 
 giving them effect, as the phrase is, siib miituce vicissiki- 
 dinis oUentii, with a wise and liberal regard to common 
 convenience and mutual benefits and necessities. Boul- 
 lenois has laid down the same exposition as a part of his 
 fundamental maxims. " Of strict right/' (says he,) ^^ all 
 the laws made by a sovereign have no force or authority, 
 except within the limits of his domains. But the neces- 
 sity of the public and general welfare has introduced 
 some exceptions in regard to civil commerce." De droit 
 Hroit, toiites les lois, que fait im souverain, rHont force et 
 aidorite que dans Vetendiie de sa domination; mais la ne- 
 cessite du Men public et general des nations a admis quelques 
 exceptions dans ce qui regarde le commerce civil? 
 
 § 8. This is the natural principle flowing from the 
 equality and independence of nations. For it is an 
 essential attribute of every sovereignty, that it has no 
 
 ' Livremore, Dissert. 3,4; Merlin, Rupert. Statut. 
 2 1 BouUenois, Prin. G6n. 6, p. 4.
 
 12 CONFLICT OF LAWS. [CH. I. 
 
 admitted superior, and that it gives the supreme law 
 within its own dominions on all subjects appertaining to 
 its sovereignty. What it yields, it is its own choice to 
 yield; and it cannot he commanded by another to 
 yield it as matter of right. And, accordingly, it is laid 
 down by all publicists and jurists, as an incontestable 
 rule of public law, that one may with impunity dis- 
 regard the law pronounced by a magistrate beyond his 
 own territory. Extra territorium jus dicenti imjnine non 
 paretiir, is the doctrine of the Digest ; ^ and it is equally 
 as true in relation to nations, as the Roman law held 
 it to be in relation to magistrates. The other part of 
 the rule is equally applicable ; Idem est, et si supra jiiris- 
 dictionem siiam velitjiis dicere ; for he exceeds his proper 
 jurisdiction, when he seeks to make it operate extra- 
 territorially as a matter of power.^ Vattel has deduced 
 a similar conclusion from the general independence and 
 equality of nations, very properly holding, that relative 
 strength or weakness cannot produce any difference in 
 regard to public rights and duties; that whatever is 
 lawful for one nation, is equally lawful for another ; and 
 whatever is unjustifiable in one, is equally so in another.^ 
 And he affirms in the most positive manner, (what 
 indeed cannot well be denied,) that sovereignty, united 
 with domain, establishes the exclusive jurisdiction of a 
 nation within its own territories, as to controversies, to 
 crimes, and to rights arising therein."* 
 
 § 9. The jurisprudence, then, arising from the con- 
 
 1 Dig. lib. 2, tit. 1, 1. 20 ; Pothier, Pand. lib. 2, tit. 1, n. 7. 
 
 2 Dig. lib. 2, tit. 1, 1. 20 ; Pothier, Pand. lib. 2, tit. 1, n. 7. 
 
 3 Vattel, Prelim. ^ 15 to 20 ; Id. B. 2, ch. 3, § 35, 36 ; The St. Louis, 
 2 Dodson, R. 210. 
 
 * Vattel, B. 2, ch. 7, ^84,85.
 
 CH. I.] INTRODUCTORY REMARKS. 13 
 
 flict of the laws of difTerent nations, in their actual 
 application to modern commerce and intercourse, is a 
 most interesting and important branch of public law. 
 To no part of the world is it of more interest and im- 
 portance than to the United States, since the union of 
 a national government with already that of twenty-six 
 distinct states, and in some respects independent states, 
 necessarily creates very complicated private relations 
 and rights between the citizens of those states, which 
 call for the constant administration of extra-municipal 
 principles. This branch of public law may, therefore, 
 be fitly denominated private international law, since it 
 is chiefly seen and felt in its application to the com- 
 mon business of private persons, and rarely rises to the 
 dignity of national negotiations, or of national contro- 
 versies.^ 
 
 § 10. The subject has never been systematically 
 treated by writers on the common law of England ; 
 and, indeed, seems to be of very modern growth in that 
 kingdom; and can hardly, as yet, be deemed to be 
 there cultivated, as a science, built up and defined with 
 entire accuracy and precision of principles. More has 
 been done to give it form and symmetry within the 
 last fifty years, than in all preceding time. But much 
 yet remains to be done, to make it, what it ought to 
 be, in a country of such vast extent in its commerce, 
 and such universal reach in its intercourse and polity.^ 
 
 1 The civilians are accustomed to call the questions arising from the 
 conflict of foreign and domestic laws mixed questions, questions mixtcs. 
 1 Froland, M6moires des Statuts, ch. 1, ^ 9, p. 13 ; Id. ch. 7, ^ 1, 
 p. 155. 
 
 2 Mr. Chancellor Kent has remarked, that these topics of international 
 law were almost unknown in the English courts, prior to the time of Lord 
 Hardwicke and Lord Mansfield ; and that the English lawyers seem gene- 
 
 CONFL. 2
 
 14 CONFLICT OF LAWS. [CH. I. 
 
 § 11. The civilians of continental Europe have ex- 
 amined the subject in many of its bearings with a 
 much more comprehensive philosophy, if not with a 
 more enlightened spirit. Their works, however, abound 
 with theoretical distinctions, which serve little other 
 purpose than to provoke idle discussions, and with 
 metaphysical subtilties, which perplex, if they do not 
 confound, the inquirer. They are also mainly addressed 
 to questions intimately connected with their own pro- 
 vincial or municipal laws and customs, some of which 
 are of a purely local, and others of a technical and 
 peculiar character ; and they do not always separate 
 those considerations and doctrines, which belong to the 
 elements of the general science, from those, which maj^ 
 be deemed founded in particular national interests and 
 local ordinances. Precedents, too, have not, either in 
 the courts of continental Europe, or in the juridical 
 discussions of its eminent jurists, the same force and 
 authority, which we, who live under the influence of 
 the common law, are accustomed to attribute to them ; 
 and it is unavoidable, that many differences of opinion 
 should exist among them, even in relation to leading 
 principles. But the strong sense and critical learning 
 of the best minds among foreign jurists have generally 
 maintained those doctrines which at the present day 
 are deemed entirely persuasive and satisfactory with 
 us, who live under the common law, as well for the 
 solid grounds, on which they rest, as for the universal 
 approbation, with which they are entertained by courts 
 of justice.^ 
 
 rally to have been strangers to the discussions on foreign law by the cele- 
 brated jurists of continental Europe. 2 Kent, Comm. Lect. 39, p. 455, 
 3d edit. 
 1 The late Mr. Livermore, (whose lamented death occurred in July,
 
 CH. I.] INTRODUCTORY REMARKS. 15 
 
 § 12. In their discussions upon this subject the civi- 
 lians have divided statutes into three classes, personal, 
 real, and mixed. By statutes, they mean, not the posi- 
 tive legislation, which in England and America is 
 known by the same name, viz. the acts of Parliament 
 and of other legislative bodies, as contradistinguished 
 from the common law ; but the whole municipal law of 
 the particular state, from whatever source arising.^ 
 Sometimes the word is used by them in contradistinc- 
 tion to the imperial Homan law, which they are accus- 
 tomed to style, by way of eminence, the common law, 
 since it constitutes the general basis of the jurispru- 
 dence of all continental Europe, modified and restrained 
 by local customs and usages, and positive legislation." 
 Paul Voet says ; Seqiiitiir jus 'particiilare, sen non com- 
 mune, quod lino vocahilo iisitatissimo Statutum dicitur, 
 quasi statum piibliciim tiiens? Appellatur etiam jus muni- 
 
 1833,) in his learned Dissertations on the Contrariety of Laws, printed at 
 New Orleans in 1828, has enumerated the principal continental writers, 
 who have discussed this subject at large. I gladly refer the reader to 
 these Dissertations, as very able and clear. There is also a catalogue of 
 the principal writers in Boullenois, Trait6 des Statuts, Preface, Vol. 1, 
 p. 29, note (1.) ; in Dupin's edition of Cannus, Profession d'Avocat, 
 Vol. 2, tit. 7, § 5, art. 1561 to 1566 ; in Froland, M6moires concernans 
 les Qualit6s des Statuts, Vol. 1, P. 1, ch. 2, p. 15 ; in Bouhier, Coutum. 
 de Bourg. Vol. 1, ch. 23, p. 450 ; and in Mr. Burge's recent Commenta- 
 ries on Colonial and Foreign Law, Pt. 1, ch. 1, p. 6 to 32. In the prepa- 
 ration of these Commentaries I have availed myself chiefly of the writings 
 ofRodenburg, the Voets (father and son,) Burgundus, Du Moulin (Moli- 
 naeus,) Froland, Boullenois, Bouhier, and Huberus, as embracing the 
 most satisfactory illustrations of the leading doctrines. My object has not 
 been to engage in any critical examination of the comparative merits or 
 mistakes of the different commentators ; but rather to gather from each of 
 them what seemed most entitled to respect and confidence. 
 
 1 Bouhier, Coutum. de Bourg. Vol. I, p. 173 to 179, i5>9 to 32 ; 1 Hertii 
 Opera. De Collisione Legum, ^ 4, art. 5, p. 121 ; Id. p. 172, edit. 1716. 
 
 2 Bouhier, Coutum. de Bourg. Vol. 1, p. 175, 178, ^ 16, 28, 29. 
 
 3 P. Voet, de Statut. ^ 4, ch. 1, ^ 1 ; Id. p. 123, edit. 1661.
 
 16 CONFLICT OF LAWS. [CH. I. 
 
 cipale. Etiam injure nostro dicta lex, sen lex municipii, 
 qiiemadmodum in genere signal jus commune} And he 
 defines it thus ; Est jus particidare ah alio legislators 
 quam Imperatore constitutum} Dico, jus particulare, in 
 quantum opponitur juri communiy non prout est gentium 
 et naturale, sed prout est jus civile Romanorum, populo 
 Romano commune, et omnibus, qui illo populo parehant? 
 Additur, ah alio legislatore, cum qui statuta condit, recte 
 et suo modo legislator appelletur, id ipsa statuta leges 
 dicuntur municipioru7n. Et qiddem, ab alio, quia regula- 
 riter statuta non condit Imperator ; excipe, nisi municipibus 
 jura det, statuta prcescribat, secundum quce ipsi sua regant 
 municipia.'^ Denique adjicitur, quam imperatore, quod 
 licet Imperator solummodo dicatiir legislator, id tamen, non 
 alio sensu obtineat, quam quod sids legibus non hunc ant 
 ilium popidum, verum omnes constringat, quos suce clemen- 
 ' tice regit imperium? Merlin says ; " This term statute, 
 is generally applied to all sorts of laws and regulations. 
 Every provision of law is a statute, which permits, 
 ordains, or prohibits any thing." Ce terme, (statut,) 
 s'applique en general a toutes sortes ch his et de reglemens. 
 Chaque disposition d'une loi est un statut, qui permet, 
 ordonne, on defend quelque chose} 
 
 § 13. The civilians have variously defined the differ- 
 ent classes of statutes or laws. The definitions of 
 Merlin are sufficiently clear and explicit for all the 
 
 1 p. Voet, de Statut. § 4, ch. 1, ^ 1 ; Id. p. 123, edit. 1661. 
 
 2 P. Voet, de Statut. M, ch. 1,^2; Id. p. 124, edit. 1661. 
 
 3 Ibid. 
 
 'i P. Voet, de Statut. ^ 4, ch. 1, ^ ; Id. p. 125, edit. 1661. 
 
 5 P. Voet, de Statut. § 4, ch. 1, § 2 ; Id. p. 125, edit. 1661 ; Id. § 1, 
 ch. 4 ; Id. p. 35, edit. 1661 ; Liverm. Dissert. II, p. 21, note (b,) edit. 
 1828. 
 
 6 Merlin, Repertoire, art. Statut. Vol. 31, edit. 1828, Bruxelles ; Saul 
 V. His Creditors, 17 Martin, R. 569, 589.
 
 CH. I.] INTRODUCTORY REMARKS. 17 
 
 purposes of the present work, and will therefore be 
 here cited. The distinctions between the different 
 classes are very important to be observed in consulting 
 foreign Jurists, since they have been adopted by them 
 from a very early period, and pervade all their discus- 
 sions. Personal statutes are held by them to be of 
 general obligation and force everywhere ; but real sta- 
 tutes are held to have no extra-territorial force or 
 obligation.^ " Personal statutes," (says Merlin.) " are 
 those, which have principally for their object the per- 
 son, and treat only of property {hiens)~ incidentally 
 {accessoirement) ; such are those, which regard birth, 
 legitimacy, freedom, the right of instituting suits, ma- 
 jority as to age, incapacity to contract, to make a will, 
 to plead in proper person, &c.^ Real statutes are 
 those, which have principally for their object property 
 (Mens), and which do not speak of persons, except in 
 relation to property ; such are those, which concern 
 the disposition, which one may make of his property, 
 either while he is living, or by testament.'' Mixed 
 statutes are those, which concern at once persons and 
 property." But Merlin adds, " that in this sense almost 
 all statutes are mixed, there being scarcely any law 
 relative to persons, which does not at the same time 
 
 1 Rodenburg, De Statut. Divers, c. 3, p. 7 ; 1 Froland, M6mories des 
 Statuts. ch. 7, § 1, 2. 
 
 2 The term " biens," in the sense of the civilians and continental 
 jurists, comprehends not merely goods and chattels, as in the common 
 law, but real estate. But the distinction between movable and immovable 
 property, is nevertheless recognized by them, and gives rise in the civil 
 law, as well as in the common law, to many important distinctions as to 
 rights and remedies, 
 
 3 See Pothier, Coutum. d'0rl6ans, ch. 1, § 1, art. 6. 
 
 4 See Pothier, Coutum. d'0rl6ans, ch. 1, ^ 2, art. 21. 
 
 2*
 
 18 . CONFLICT OF LAWS. [CH. I. 
 
 relate to things." ^ He, therefore, deems the last classi- 
 fication unnecessary, and holds, that every statute 
 ought to receive its denomination according to its 
 principal object. As that object is real, or personal, 
 so ought the quality of the statute to be determined.^ 
 But this distribution into three classes is usually adopted, 
 precisely as it is stated by Rodenburg ; — Atit enim 
 statidiim smpliciter disponit de personis ; ant soliimmodo 
 de rehis ; aiit conjiinctim de utrisqiie? And he proceeds 
 to explain this division in the following manner. Qiice 
 ita constridim dicta sic habentur explicaUiis : Aiit universus 
 personam status, aid conditio in disposiiione statidi vertitur, 
 citra ullam rerimi adjectionem, adeoqiie de personis agitiir 
 
 1 Merlin, Repertoire, Statut. ; Id. Autorisation Maritale, ^ 10, 
 
 2 Ibid. 
 
 3 Rodenburg, De Statut. Diversitate, ch. 2, p. 4 ; Le Brun, Traite de 
 la Communaute, Liv. 2, ch. 3, ^ 20 to § 48 ; Bouhier, Centum, de Bourg. 
 ch. 21 to ch. 37 ; Voet, de Statut. ^ 4, ch. 2, p. 116 to p. 124 ; Id. p. 129 
 to p. 143, edit. 1661 ; Livermore, Dissert. ^ 65 to ^ 162 ; 1 Froland, 
 M^moires, Qualit6 des Statuts, P. 1, ch. 3, p. 25 ; Id. ch. 4, p. 49, ch. 5, 
 p. 81, ch. 6, p. 114 ; BouUenois, Trait6 des Statuts, vol. 1, preface, p. 22; 
 Polhier, Coutum. d'Orl^ans, ch. 1, ^ 1, art. 6, 7, 8. — BouUenois distri- 
 butes all statutes into three classes: "Ou le statut dispose simplement 
 des personnes ; ou il dispose sinaplement des choses ; ou il dispose tout a 
 la fois des personnes et des choses." 1 BouUenois, Traite des Statuts 
 reels et personnels, tit. 1, ch. 2, obs. 2, p. 25 ; Id. Princ. G6n. p. 4, 6. 
 Mr. Henry, in his Dissertation on Personal, Real, and Mixed Statutes, 
 has adopted the like distribution, without any acknowledgment of the 
 source, (BouUenois,) from which he has drawn all his materials. See 
 Henry on Personal and Real Statutes, ch. 1, ^ 2 to ch. 3, ^ 1, p. 2 to 33. 
 See also Livermore's Dissert. 2, §> 65 to ^ 162, p. 62 to 106 ; Id. ^ 168, 
 p. 109. Mr. Justice Porter, in delivering the opinion of the Supreme 
 Court of Louisiana, in the case of Saul v. His Creditors, (17 Martin, R. 
 569, 590,) said, that foreign jurists, by a personal statute, mean that, 
 which follows, and governs the party subject to it, wherever he goes ; and 
 a real statute is that, which controls things, and does not extend beyond 
 the limits of the country, from which it derives its authority. Is not this 
 a description of the effect of such statutes, rather than a definition of their 
 nature? See Id. 593.
 
 en. I.] INTRODUCTORY REMARKS. 19 
 
 in ahstrado, absque iilld consideraiione rcriim ; lit, verhi 
 gratia, quote quis oetatis anno fui Juris sit, quando exeat 
 parentum potestate ; de quihus ^ consimilihiis exemplis 
 mox fusius. Aid in solas nudasqiie res statidi disposiiio 
 dirigitur, id nidlum intervenire necesse sit actum hominis, 
 aut aliquam concurrere personw operam ; cujusmodi sunt, 
 qidhus rcrum successionihus ah intestato Jus ponitiir ; id 
 bona materna cedant maternis, paterna paternis, notJd suc- 
 cedant matribus, non succedant patrihus ; quando succedatur 
 in stirpes, quando in capita ; qiice Jura successionum ab 
 intestato appellaveris. Aid permittit denique, vetat, aut 
 ordinat, actum a personis circa res peragendum, ex idriusqiie 
 complexn constructnm Staiidum, contra quod, id queat com- 
 mitti quippiam, personce actum intervenire necesse est. Quo 
 pertinet. Sine indulto Principis derebus suis nemo testator ; 
 conjuges sibi invicem non leganto ; vir citra consensum 
 iixorium res soli non alienato} 
 
 § 14. In the application of tliis classification to par- 
 ticular cases, there has been no inconsiderable diversity 
 of opinion among the civilians. What particular sta- 
 tutes are to be deemed personal, and ■what real ; when 
 they may be said principally to regard persons, and 
 when principally to regard things ; these have been 
 vexed questions, upon which much subtilty of discus- 
 sion, and much heat of controversy, have been displayed. 
 The subject is in itself full of intrinsic difficulties ; but 
 it has been rendered more perplexed by metaphysical 
 niceties, and over-curious learning.^ Hertius admits, 
 
 ^ Rodenburg, De Statut. Divers, ch. 2, p. 4, (2 Boullenois, Appendix, 
 P 4.) 
 
 ~ See 1 Boullenois, tit. 1, ch. 1, Observ. 2, p. IG, &c. ; Id. ch. 2, Obs. 5, 
 p. 114 to 122 ; 1 Froland, Mem. des Slat. ch. 2, p. 15 ; 2 Kent, Comm. 
 Lect. 39, p. 453 to 457, (3d edit.) ; Saul v. His Creditors, 17 Martin, R.
 
 20 CONFLICT OF LAWS. [CH. L 
 
 that these subtilties have so perplexed the subject, that 
 it is difficult to venture even upon an explanation. 
 His language is ; De collisii Icgiim anceps, difficilis, et 
 Me diffusa est disimtatio, quam nescio, an qidsqiiam expli- 
 eare totam aggressus fiierit} And in another place, he 
 adds ; Cceterum Juniorihis plerisque placidt distinctio inter 
 statiita, realia, personalia, et mixta. Verum in iis definien- 
 dis mirum est, quam sudant Doctores? Bartolus has 
 
 569 to 596 ; Henry on 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 cf 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, of 
 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, 
 CEuvres, 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. 
 
 2 1 Hertii Opera, § 4, n. 3, p. 120 ; Id. p. 170, edit, 1716. See also 
 1 Froland, M6m. Qualite des Statut. ch. 3 to ch. 7 ; Bouhier, Coutum. de 
 Bourcr. 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.
 
 CH. I.] INTRODUCTORY REMARKS. 21 
 
 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 verha statidi seu consuetudinis, 
 sunt diligcnter ininenda. Aid ilia disponiint circa res ; id 
 per licec verha, " Bona decedentis, id veniaid in Primogeni- 
 tiini ; " et tunc de omnibus horn's jndicaho secundum nsum 
 et statutum, nhi res sunt siiuatw, quia Jus affecit res ipsas, 
 sive possideaniur a cive, sive ad alvena. Aut verla staiidi 
 seu consueindinis disponiint circa personas ; id per hccc 
 verba ; " Priomgenitus succedat " ; et tunc, aut ille talis 
 decedens non erat de Anglid, sed ihi lidberet possessiones ; 
 et tunc tale statutum ad eum et ejus Jilios non porrigitiir, 
 quia dispositio circa personas non porrigitur ad forenses} 
 Aid talis decedens erat Anglicus, et tunc filius primogenitus 
 succederet in bonis, quce sunt in Anglid, et in aliis succedcret 
 de jure communi. So that, according to Bartolus, if a 
 statute declares in words, that " The estate of the intes- 
 tate shall descend to the eldest son," {Bona decedentis id 
 verdant in primogenitu7n,) it is a real statute ; if it says 
 in words " The eldest son shall succeed to the estate," 
 {Primogenitus succedat,) it is a personal statute.^ This 
 
 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. 
 
 1 Bartolus, ad Cod. Lib. 1, tit. 1, De Sum. Trinit. 1. 1, Cunctos populus, 
 n. 42 ; Liverm. Dissert. ^ G8, 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. 
 
 3 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
 
 22 CONFLICT OF LAWS. [CH. I. 
 
 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.^ 
 
 V. His Creditors, 17 Martin, R. 569, 590, to 595 ; Burgundus, Tract. 1, 
 ^ 4, p. 16 ; Stockman, Decis. 125, § 8, p. 263. 
 
 I Ibid. p. 19 ; Liverm. Dissert. 2, § 67, 68 ; Id. § 69 to 77 ; 1 Froland, 
 Mem. 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 for- 
 mer, 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 confusion 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, 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'Argentr^, 
 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 slates to be one, which 
 concerns both persons and things. D'Argentre, Comm. ad Leg. Brit, des 
 Donat. art. 228, n. 5 to n. 9 ; tom. 1, p. 648. This definition of D'Argentr6
 
 CH. I.] INTRODUCTORY REMARKS. 23 
 
 § 15. Le Bmn says, that in order to ascertain, whether 
 a statute is personal or not, it is necessary to examine, 
 
 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 M6moires concernans la Qualit6 des Statuts, among 
 which are found Burgundus, Rodenburg, Stockmans, Voet, and Dumouliti. 
 (Froland, M^moires concernans la Qualit6 de Statuts, ch. 5, No. 1.) 13ut 
 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'Argentr6, 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 per- 
 sonal universal ; personal particular he subdivides again into pure per- 
 sonal, and personal real. (Boullenois, Traile de la Personality et de la 
 Realit6 des lois, tit. 1, cap. 2, Obs. 4, p. 44 to p. 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 defini- 
 tion 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 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 viduit^,) 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,
 
 24 CONFLICT OF LAWS. [CH. I. 
 
 whether it universally 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. 
 
 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, legi- 
 timate 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'Argentr6 ; " Cum sta- 
 tutum non simpliciter inhabilitat, sed ratione fundi aut juris realis alteram 
 respicientis extra personas contrahentes, totas banc inhabilitatem non egredi 
 locum statuti." ' (CEuvres, D'Aguesseau, vol. 4, 660, cinquante-quatrieme 
 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 has been susceptible of clear and positive rules,- we may 
 safely believe this illustrious man would not have left it in doubt ; for if 
 any thing be more remarkable in him than his genius and his knowledge, 
 it is the extraordinary fulness and clearness, with which he expresses him- 
 self 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 foi^otten, that they wrote on a question, which touched 
 the comity of nations, and that, that comity is, and ever must be, uncer- 
 tain ; 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 on 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 pre- 
 vail, and that, whenever that doubt does exist, the court, which decides, 
 will prefer the laws of its own country to that of the stranger."
 
 CH. l] introductory remarks. 25 
 
 -ffliicli prohibits married persons from making dona- 
 tions to each other, is purely real and local ; because 
 it regulates a particular act only. And a statute, to be 
 personal, must regulate the state of the person without 
 speaking of property, (Mens.) 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 daugh- 
 ter, who is endowed, from the succession, is real and 
 local ; for all these statutes speak of property. For the 
 same reason, he holds the Senattis-consultum Velleianiim, 
 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 juris- 
 prudence 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.^ Other 
 jurists of distinguished reputation (among whom is 
 Boullenois) have denied this to be a sound distinction ; 
 and have specially held the Senatm-consultum Velleianwn 
 to be a personal statute.* 
 
 § IG. It is not my design to engage in the contro- 
 versy, as to what constitutes the true distinction between 
 personal statutes and real statutes, or to examine the 
 
 1 Dig. lib. 16, tit. 1,1. 1; Id. 1. 16, ^ 1. 
 
 2 Le Brun, Traiie de la Comraunaute, Liv, 2, ch. 3, ^ 5, n. 20 to 48, 
 p. 310 to 319. 
 
 3 Ibid. 
 
 4 1 Boullenois, Princ. Gen. 5 ; Id. Obser. 3, p. 40 ; Id. Obser. 4, p. 43, 
 49 ; Id. Obser. 5, p. 78, 79, 82, 101, 103, 105, 106, 118 ; Henry on Foreign 
 Law, 31, 50. 
 
 CONFL. 3
 
 26 CONFLICT OF LAWS. [CH. L 
 
 merits of the various systems propounded by foreign 
 jurists on this subject. It would carry me too far from 
 the immediate 3)urpose of these commentaries, even 
 if I felt myself possessed (which I certainly do not) 
 of that critical skill and learning, which such an ex- 
 amination 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 im- 
 portant 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, 
 [l^ersonalite des statuts,) and the reality of laws, (realite 
 des statuts,) let it not be attributed to a spirit of innova- 
 tion upon the received usages of our language ; but 
 rather to a desire to familiarize expressions, which in 
 this peculiar sense have already found their way into 
 or juridical discussions, and are becoming daily more 
 and more important to be understood by American 
 lawyers, since they are incorporated into the ver}^ sub- 
 stance of the jurisprudence of some of the States in the 
 Union.^ By the personality of laws foreign jurists 
 generally mean all laws, which concern the condition, 
 state, and capacity of persons ; by the reality of laws, 
 all laws, which concern property or things ; qiiw ad rem 
 spedantr Whenever they wish to express, that the 
 
 1 See note to 2 Kent, Comm. Lect. 39, p. 456, 3d edit, 
 
 2 1 Boullenois, Observ. 3, p. 41, 42. — Mr. Livermore, in his Disserta- 
 tions, used llie words, ■personality and reality; Mr. Henry, in his work, the 
 words personalty and really. I have preferred the former, as least likely 
 to lead to mistakes, as " personalty " is in our law confined to personal 
 estate, and '* realty " to real estate.
 
 CH. I.] INTRODUCTORY REMARKS. 27 
 
 operation of a law is universal, they compendiously 
 announce, that it is a personal statute ; and whenever, 
 on the other hand, they wish to express, that its opera- 
 tion is confined to the country of its origin, they simply 
 declare it to be a real statute.
 
 28 CONFLICT OF LAWS. [CH. IL 
 
 CHAPTEH II. 
 
 GENERAL MAXIMS OF INTERNATIONAL JURISPRUDENCE. 
 
 § 17. Before entering upon any examination of the 
 various heads, which a treatise upon the Conflict of Laws 
 will naturally embrace, it seems necessary to advert to 
 a few general maxims or axioms, which constitute the 
 basis, upon which all reasonings on the subject must 
 necessarily rest ; and without the express or tacit ad- 
 mission of which, it will be found impossible to arrive 
 at any principles, to govern the conduct of nations, or 
 to regulate the due administration of justice. 
 
 § 18. I. The first and most general maxim or propo- 
 sition is that, which has been already adverted to, that 
 every nation possesses an exclusive sovereignty and 
 jurisdiction within its own territory. The direct con- 
 sequence of this rule is, that the laws of every state 
 affect, and bind directly all property, whether real or 
 personal, within its territory ; and all persons, who are 
 resident within it, whether natural born subjects, or 
 aliens ; and also all contracts made and acts done within 
 it.^ A state may, therefore, regulate the manner and 
 circumstances, under which property, whether real, or 
 personal, or in action, within it, shall be held, transmit- 
 ted, bequeathed, transferred, or enforced ; the condition, 
 capacity, and state, of all persons within it -, the validity 
 
 1 Henry on Foreign Law, P. 1, ch. 1, ^ 1, p. 1 ; Huberus, Lib. 1, tit. 3, 
 § 2 ; Hall v. Campbell, Cowp. R. 208 ; Ruding v. Smith, 2 Hagg. Consist. 
 R. 383.
 
 CII. II.] GENERAL MAXIMS. 29 
 
 of contracts, and other acts, done within it ; the resulting 
 rights and duties growing out of these contracts and 
 acts; and the remedies, and modes of administering 
 justice in all cases calling for the interposition of its 
 tribunals to protect, and vindicate, and secure the whole- 
 some agency of its own laws within its own domains. 
 
 § 19- Accordingly, Boullenois has laid down the fol- 
 lowing among his general principles, [Principcs gene- 
 raiix.) He says, (1.) He, or those, who have the sove- 
 reign authority, have the sole right to make laws ; and 
 these laws ought to be executed in all places within 
 the sovereignty, where they are known, in the pre- 
 scribed manner. (2.) The sovereign has power and 
 authority over his subjects, and over the property, 
 which they possess within his dominions. (3.) The 
 sovereign has also authority to regulate the forms and 
 solemnities of contracts which his subjects make within 
 the territories under his dominions; and to prescribe 
 the rules for the administration of justice. (4.) The 
 sovereign has also a right to make laws, to govern 
 foreigners in many cases ; for example, in relation to 
 property, which they possess within the reach of his 
 sovereignty ; in relation to the formalities of contracts, 
 which they make within his territories ; and in relation 
 to judiciary proceedings, if they institute suits before 
 his tribunals. (5.) The sovereign may in like manner 
 make laws for foreigners, who even pass through his 
 territories ; but these are commonly simple laws of 
 police, made for the preservation of order within his 
 dominions; and these laws are either permanent, or 
 they are made only for certain particular occurrences.' 
 
 1 I Boullenois, Traite des Statuts, p. 2, 3, 4. 
 3 *
 
 30 CONFLICT OF LAWS. [CH. 11. 
 
 The same doctrine is, either tacitly or expressly, con- 
 ceded by every other jurist, who has discussed the 
 subject at large, whether he has written upon municipal 
 law, or upon public law.^ 
 
 § 20. 11. Another maxim, or proposition, is, that no 
 state or nation can, by its laws, directly affect, or bind 
 property out of its own territory, or bind persons not 
 resident therein, whether they are natural born subjects 
 or others. This is a natural consequence of the first 
 proposition ; for it would be wholly incompatible with 
 the equality and exclusiveness of the sovereignty of all 
 nations, that any one nation should be at liberty to 
 regulate either persons or things not within its own 
 territory. It would be equivalent to a declaration, that 
 the sovereignty over a territory was never exclusive in 
 any nation, but only concurrent with that of all nations ; 
 that each could legislate for all, and none for itself; 
 and that all might establish rules, which none were 
 bound to obey. The absurd results of such a state of 
 things need not be dwelt upon. Accordingly Roden- 
 burg has significantly said, that no sovereign has a 
 right to give the law beyond his own dominions ; and 
 if he attempts it, he may be lawfully refused obedience ; 
 for wherever the foundation of laws fails, there their 
 force and jurisdiction fail also. Constat igitiir extra 
 territoriiim legem dicer e licere nemini, idqiie si feccrit qiiis, 
 impiine ei non pareri ; quippe iibi cesset stcdntorwn funda- 
 mentmn, roiur, et Jitrisdiciio.^ P. Voet speaks to the 
 same efiect: Nidlimi statutum sive in rem, sive in perso- 
 nam, si de raiione juris civilis scrmo institiiatur, sese exten- 
 
 1 Vattel, B. 2, ch. 7, ^ 84, 85. 
 
 2 Rodenburg, de Stat. ch. 3, ^ 1, p. 7.
 
 CH. II.] GENERAL MAXDIS. 31 
 
 dit ultra statiieiitis territomim} BouUenois (as we have 
 seen) annoimces the same rule : De droU Stroit, toides 
 les loix, que fait un souverain, ifont force et autorite que 
 dans r etcndue de sa domination ; ^ and, indeed, it is the 
 common hinguage of jurists.^ Mr. Chief Justice Parker 
 has recognized the doctrine in the fullest manner. 
 "That the laws " (says he) " of any state cannot by any 
 inherent authority be entitled to respect extra-territo- 
 rially, or beyond the jurisdiction of the state, which 
 enacts them, is the necessary result of the independence 
 of distinct sovereignties." "* 
 
 § 21. Upon this rule there is often ingrafted an 
 exception, of some importance to be rightly understood. 
 It is, that although the laws of a nation have no direct, 
 binding force, or effect, except upon persons within its 
 own territories ; yet that every nation has a right to 
 bind its own subjects by its own laws in every other 
 place.^ In one sense, this exception may be admitted 
 to be correct, and well founded in the practice of na- 
 tions ; in another sense it is incorrect, or, at least, it 
 requires qualification. Every nation has hitherto 
 assumed it as clear, that it possesses the right to regu- 
 late and govern its own native born subjects every- 
 where ; and consequently, that its laws extend to, and 
 bind such subjects at all times, and in all places. This 
 is commonly adduced as a consequence of what is called 
 
 * Voet, de Stat. ^ 4, ch. 2, n. 7, p. 124 ; Id. 138, 139, edit. 1661. 
 
 2 1 BouUenois, des Statut. Princip. Gen. 6, p. 4 ; Id. ch. 3, Observ. 
 10, p. 152. 
 
 •' Idem. 
 
 1 Blanchard v. Russell, 13 Mass. R. 4. — The same doctrine is reasoned 
 out with great ability in the opinion of Mr. Chief Justice Taney in the 
 case of the Bank of Augusta v. Earle, 13 Peters, R. 584 to 591. 
 
 5 Henry on Real and Personal Statutes, P. 1, ch. 1, p. 1.
 
 32 CONFLICT OF LAWS. [CH. IT. 
 
 natural allegiance, that is, of allegiance to the govern- 
 ment of the territory of a man's birth. Thus, Mr. Jus- 
 tice Blackstone says ; " Natural allegiance is such as is 
 due from all men, born within the king's dominions, 
 immediately upon their birth." "Natural allegiance 
 is, therefore, a debt of gratitude, which cannot be for- 
 feited, cancelled, or altered, by any change of time, 
 place or circumstance. An Englishman, who removes 
 to France, or to China, owes the same allegiance to the 
 king of England there as at home, and twenty years 
 hence as well as now." ^ And he proceeds to distinguish 
 it from local allegiance, which is such as is due from 
 an alien, or stranger born, for so long a time as he con- 
 tinues within the dominions of a foreign prince. The 
 former is universal and perpetual ; the latter ceases the 
 instant the stranger transfers himself to another coun- 
 try ; ^ and it is, therefore, local and temporary. Vattel, 
 on the other hand, seems to admit the right of alle- 
 giance not to be perpetual even in natives ; and that 
 they have a right to expatriate themselves, and, under 
 some circumstances, to dissolve their connection with 
 the parent country.^ 
 
 § 22. Without entering upon this subject, (which 
 properly belongs to a general treatise upon public law,) 
 it may be truly said, that no nation is bound to respect 
 the laws of another nation, made in regard to the sub- 
 jects of the latter, who are non-residents. The obliga- 
 tory force of such laws of any nation cannot extend 
 beyond its own territories. And if such laws are in- 
 compatible with the laws of the country, where such 
 
 1 1 Black. Coram. 369, 370 ; Foster, C. L. 184. 
 
 2 Ibid. 
 
 3 Vatlel, B. 1, ch. 19, ^ 220 to 228.
 
 CH. II.] GENERAL MAXIMS. 33 
 
 subjects reside, or interfere with the duties which they 
 owe to the country where they reside, they will be 
 disregarded by the latter. Whatever may be the 
 intrinsic or obligatory force of such laws upon such 
 persons, if they should return to their native country, 
 they can have none in other nations wherein they 
 reside. Such laws may give rise to personal relations 
 between the sovereign and subjects, to be enforced in 
 his own domains ; but they do not rightfully extend to 
 other nations. Statuta suo claudiintur territorio, ncc 
 ultra territormn disponunt. Nor, indeed, is there, strictly 
 speaking, any difference in this respect, whether such 
 laws concern the persons, or concern the property of 
 native subjects. A state has just as much intrinsic 
 right, and no more, to give to its own laws an extra- 
 territorial force as to the property of its subjects situ- 
 ated abroad, as it has in relation to the persons of its 
 subjects domiciled abroad. That is, as sovereign laws, 
 they have no obligation on either the person or the 
 property. When, therefore, we speak of the right of a 
 state to bind its own native subjects everywhere, we 
 speak only of its own claim and exercise of sovereignty 
 over them when they return within its own territorial 
 jurisdiction, and not of its right to compel or require 
 obedience to such laws on the part of other nations 
 within their own territorial sovereignty. On the con- 
 trary, every nation has an exclusive right to regulate 
 persons and things within its own territory according 
 to its own sovereign will and public policy. 
 
 § 23. III. From these two maxims or propositions, 
 there flows a third, and that is, that whatever force and 
 obligation the laws of one country have in another, 
 depend solely upon the laws and municipal regulations 
 of the latter, that is to say, upon its own proper juris-
 
 84 CONFLICT OF LAWS. [CH. IL 
 
 prudence and polity, and upon its own express or tacit 
 consent.^ A state may prohibit the operation of all 
 foreign laws, and the rights growing out of them, 
 within its own territories. It may prohibit some foreign 
 laws, and it may admit the operation of others. It may 
 recognize, and modify, and qualify some foreign laws ; 
 it may enlarge, or give universal effect to others. It 
 may interdict the administration of some foreign laws ; 
 it may favor the introduction of others. When its own 
 code speaks positively on the subject, it must be 
 obeyed by all persons who are within the reach of its 
 sovereignty. When its customary, unwritten, or com- 
 mon law speaks directly on the subject, it is equally to 
 be obeyed ; for it has an equal obligation with its posi- 
 tive code. When both are silent, then, and then only, 
 can the question properly arise, what law is to govern 
 in the absence of any clear declaration of the sovereign 
 will. Is the rule to be promulgated by a legislative 
 act of the sovereign power ? Or is to be promulgated 
 by courts of law, according to the analogies which are 
 furnished in the municipal jurisprudence ? This ques- 
 tion does not admit of any universal answer ; or rather, 
 it will be answered diiferently in different communities, 
 according to the organization of the departments of each 
 particular government.^ 
 
 § 24. Upon the continent of Europe some of the 
 principal states have silently suffered their courts to 
 draw this portion of their jurisprudence from the ana- 
 logies furnished by the civil law, or by their own cus- 
 tomary or positive code. France, for instance, com- 
 posed, as it formerly was, of a great number of pro- 
 
 1 Huberus, Lib. 1, lit. 3, § 2. 2 See Post, ^ 38.
 
 CH. II.] GENERAL MAXIMS. 35 
 
 viuces, governed by different laws and customs, was 
 early obliged to sanction such exertions of authority 
 by its courts, in order to provide for the constantly 
 occurring claims of its own subjects, living and owning 
 property in different provinces, in a conflict between 
 the different provincial laws. In England and America 
 the courts of justice have hitherto exercised the same 
 authority in the most ample manner ; and the legisla- 
 tures have in no instance (it is believed) in either 
 country interfered to provide any positive regulations. 
 The common law of both countries has been expanded- 
 to meet the exigencies of the times, as ^they have 
 arisen; and so far as the practice of nations, or the jus 
 gentium imvcdmn, has been supposed to furnish any 
 general principle, it has been followed out with a wise 
 and manly liberality. 
 
 § 25. The real difficulty is to ascertain, what princi- 
 ples in point of public convenience ought to regulate 
 the conduct of nations on this subject in regard to each 
 other, and in what manner they can be best applied to 
 the infinite variety of cases, arising from the compli- 
 cated concerns of human society in modern times. No 
 nation can be justly required to yield up its own funda- 
 mental policy and institutions, in favor of those of 
 another nation. Much less can any nation be required 
 to sacrifice its own interests in favor of another ; or to 
 enforce doctrines, which, in a moral or political view, 
 are incompatible with its own safety, or happiness, or 
 conscientious regard to justice and duty. In the end- 
 less diversities of human jurisprudence many laws 
 must exist in one country, which are the result of local 
 or accidental circumstances, and are wholly unfit to be 
 ingrafted upon the institutions and habits of another. 
 Many laws, well enough adapted to the notions of
 
 36 CONFLICT OF LAWS. [CH. IL 
 
 heathen nations, would be totally repugnant to the 
 feelings, as well as to the justice of those which em- 
 brace Christianity. A heathen nation might justify 
 polygamy, or incest, contracts of moral turpitude, or 
 exercises of despotic cruelty over persons, which would 
 be repugnant to the first principles of Christian duty. 
 The laws of one nation may be founded upon a narrow 
 selfishness, exclusively adapted to promote its own 
 peculiar policy, or the personal or proprietary interests 
 of its own subjects, to the injury or even the ruin of 
 those of the subjects of all other countries. A particu- 
 lar nation may refuse all reciprocity of commerce, 
 rights, and* remedies to others. It may assume a supe- 
 riority of powers and prerogatives, for the very pur- 
 pose of crushing those of its neighbors, who are less 
 fortunate or less powerful. In these, and in many 
 other cases, which may easily be put, without any 
 extravagance of supposition, there would be extreme 
 difficulty in saying, that other nations were bound to 
 enforce laws, institutions, or customis, of that nation, 
 which were subversive of their own morals, justice, or 
 polity. Who, for instance, (not to multiply cases,) 
 who would contend, that any nation in Christendom 
 ought to carry into effect, to its utmost range, the 
 paternal power of the ancient Homans in their early 
 jurisprudence, extending to power over the life and 
 death of their children ? ^ Or, who would now contend 
 for that terrible power (if it ever really existed) under 
 the law of the Twelve Tables, which enabled creditors 
 
 1 Laws of the Twelve Tables, Table 4, ch. 1 ; 1 Pothier, Pandects, 
 and Id. ^ 1, 2, (8vo. edit. Paris, 1818, p. 386, 387) ; 1 Black. Comm. 452 ; 
 Fergusson on Marriage and Divorce, 411 ; Grotius, B. 2, ch. 5, ^ 7.
 
 CH. II.] GENERAL MAXIMS. 37 
 
 to cut their debtor's body into pieces, and divide it 
 among them ? ^ 
 
 § 26. The jurists of continental Europe have with 
 uncommon skill and acuteness endeavored to collect 
 principles, which ought to regulate this subject among 
 all nations. But it is very questionable, whether their 
 success has been at all proportionate to their labor ; 
 and whether their principles, if universally adopted, 
 would be found either convenient, or desirable, or 
 even just, under all circumstances. Their systems, 
 indeed, have had mainly in view the juridical polity, 
 fit for the different provinces and states of a common 
 empire, although they are by no means limited to such 
 cases. It is easy to see, that, in a nation, like France 
 before the revolution, governed by different laws in its 
 various provinces, some uniform rules might be adopted, 
 which would not be equally fit for the adoption of inde- 
 pendent nations, possessing no such common interests, 
 or such a common basis of jurisprudence. The leading 
 positions maintained by many of the French jurists are, 
 that the laws of a country, which concern persons, who 
 reside within, and are subject to the territorial jurisdic- 
 tion, ought to be deemed of universal obligation in* all 
 other countries ; that the laws, which concern the pro- 
 perty of such persons, ought to be deemed purely local, 
 and the laws of a mixed character, concerning such per- 
 sons and property, ought to be deemed local, or univer- 
 sal, according to their predominant character. Thus, 
 Boullenois lays down these rules in pointed. terms : Les 
 loix piires 2^crsonellcs, soit personclles universellcs, soit per- 
 soncUes particulwres, se portent partout; c'cst a dire, que 
 
 1 Table 3, ch. 4 ; 1 Pothier, Pandects, and Id. Coram. § 2, (8vo. edit. 
 Paris, 1818, p. 373, 380, 381) ; 2 Black. Coram. 472, 473. 
 
 CONFL. 4
 
 38 CONFLICT OF LAWS. [CH. II. 
 
 Vhomme est paHoiit de Vetat, salt universel, soit 'paiiiculier, 
 doiTt sa persomie est affectee,par la hi de son domicil. Les 
 loix reelles n'ont jjoint d' extension directe, ni indirecte, hors la 
 jmisdiction et la domination du legislateur. Le siijet et le 
 mateiiel dominant direct et immediat du statut en determine 
 la nature et qualite ; c'est a dire, que le sujet et le materiel 
 - lefont Ure reel, on 'personnel} 
 
 S 27. Independent of the almost insurmountable diffi- 
 cultieSj in which the continental jurists admit them- 
 selves to be involved, in the attempt to settle the true 
 character of these mixed cases of international jurispru- 
 dence, and about which they have been engaged in end- 
 less controversies with each other, there are certain 
 exceptions to these rules, generally admitted, which 
 shake the very foundation, on which they rest, and ad- 
 monish us, that it is far easier to give simplicity to 
 systems, than to reconcile them with the true duties and 
 interests of all nations in all cases. Take, for example, 
 two neighboring states, one of which admits, and the 
 other of which prohibits the existence of slavery, and 
 the rights of property growing out of it ; what help 
 would it be to either, in ascertaining its own duties and 
 interests in regard to the other, to say, that their laws, 
 so far as they regard the persons of the slaves, were of 
 universal obligation ; and, so far as they regard the pro- 
 perty in slaves, they were real, and of no obligation 
 beyond the territory of the lawgiver ? ^ 
 
 § 28. There is, indeed, great truth in the remarks, 
 which have been judicially promulgated on this subject 
 by a learned court. " When so many men of great ta- 
 lents and learning are thus found to fail in fixing certain 
 
 1 1 BouUenois, Traits des Statutes, Prin. G6n. 18, 23, 27, p. 6, 7. 
 
 2 See Somerset's case, and Hargrave's note to Co. Lit. 79, J, note 44.
 
 CHAP. Il] general MAXIMS. 39 
 
 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 princi- 
 ples. They have attempted to go too far, to define and 
 fix that, which cannot, in the nature of things, be de- 
 fined and fixed. They seem to have forgotten, that they 
 wrote on a question, which touched the comity of na- 
 tions, and that that comity is, and ever must be, uncertain. 
 That it must necessarily depend on a variety of circum- 
 stances, which cannot be reduced to any certain rule. 
 That no nation will suffer the laws of another to inter- 
 fere with her own to the injury of her citizens. That, 
 whether they do or not, must depend on the condition 
 of the country, in which the foreign law is sought to be 
 enforced ; the particular nature of her legislation, her 
 policy, and the character of her institutions. That in 
 the conflict of laws, it must often be a matter of doubt, 
 which should prevail ; and that whenever a doubt does 
 exist, the court, which decides, will prefer the laws of 
 its own country to that of the stranger." ^ 
 
 § 29. Huberus has laid down three axioms, which he 
 deems sufficient to solve all the intricacies of the sub- 
 ject. The first is, that the laws of every empire have 
 force only within the limits of its own government, and 
 bind all, who are subjects thereof; but not beyond those 
 limits.^ The second is, that all persons, who are found 
 within the limits of a government, whether their resi- 
 dence is permanent or temporary, are to be deemed sub- 
 jects thereof.^ The third is, that the rulers of every 
 
 1 Mr. Justice Porter, in delivering the opinion of the Court in the case 
 of Saul V. His Creditors, 17 Martin, R, 569, 595, 596. 
 
 2 Huberus, Lib. 1, tit. 3, de Conflictu Legum, § 2, p. 538. 
 
 3 Ibid.
 
 40 CONFLICT OF LAWS. [CH. IL 
 
 empire from comity admit, that the laws of every peo- 
 ple, in force within its own limits, ought to have the 
 same force everywhere, so far as they do not prejudice 
 the powers or rights of other governments, or of their 
 citizens/ " From this," he adds, " it appears, that this 
 matter is to he determined, not simply by the civil laws, 
 but by the convenience and tacit consent of different 
 people ; for since the laws of one people cannot have 
 any direct force among another people, so nothing could 
 be more inconvenient in the commerce and general in- 
 tercourse of nations, than that what is valid by the 
 laws of one place should become without effect by the 
 diversity of laws of another ; and that this is the true 
 reason of the last axiom, of which no one hitherto seems 
 to have entertained any doubt." ^ 
 
 § 30. Hertius seems to have been dissatisfied with 
 these rules ; and especially with the last ; and he doubts 
 exceedingly, whether this comity of nations, founded 
 upon the notion of mutual convenience and utility, can 
 furnish any sufficiently solid basis of a system. Ob re- 
 cvprocam enim utilitatem, in disciplinam juris gentium abiise, 
 lit civitas alteriiis civitatis leges apiid se valere patiatury ade- 
 oqiie exemplmn hoc, ut evidentissimi argiimenti ad proban- 
 dum, quod jus gentium reverd a jure naturae distinctum sit, 
 vuU observari. Verum enim nos valde dubitamus, man res 
 
 1 Huberus, Lib. 1, lit. 3, de Conflictu Legum, § 2, p. 538, 
 
 2 Ibid. — These axioms of Huberus are so often cited, that it may be 
 well to give them in his own words. " (1) Leges cujusque imperii vim 
 habent intra terminos ejusdem reipublicse, omnesque ei subjectos obligant, 
 nee ultra. (2) Pro subjectis imperio habendi sunt omnes, qui intra termi- 
 nos ejusdem reperiuntur, sive in perpetuum, sive ad tempus ibi commo- 
 rentur. (3) Rectores imperiorum id comitur agunt, ut jura cujusque 
 populi intra terminos ejus exercita teneant ubique suam vim, quatenus 
 nihil potestati aut juri alterius imperantis ejusque civium praejudicetur." 
 2 Hub. Lib. 1, tit. 3 ; De Conflictu Legum, ^ 2.
 
 CH. II.] GENERAL MAXIMS. 41 
 
 hcec ex jure gentiimiy sive midiid earim indiilgentid, possit 
 definiri, preseHim cum in und eddemque civitate coUisio see- 
 pissime fiat. Norunt ctiam periti ex solis excmpUs jus gen- 
 tium adstnicre, quam sit fallax ; turn si sold populorimi conni- 
 vcntid id niti dicamus, quce juris erit efficacia ? ^ He adds , that 
 he is disposed to search deeper into the matter ; Nobis 
 paullo altius Met repetere ; ^ and he proceeds to enunciate 
 his own views under the known distinctions of personal 
 statutes and real statutes, and then lays down the fol- 
 lowing rules. (l.)"When a law is directed, or has 
 regard, to the person, we are to look to (be governed 
 by) the laws of the country, to which he is personally 
 subject." Quando lex in personam dirigitur, resjjiciendum 
 est ad leges ilUus civitatis, quce perso7iam hahet suljecta7n? 
 (2.) "If a law bears directly upon things, it is local, in 
 whatever place and by whomsoever the act is done." 
 Si lex dirccto rei imponitur, ea locum hahet, ubicunque etiam 
 locorum ct a_ quocunque actus celehretur.'^ (3.) " If a law 
 gives the form (prescribes the form) to the act, then the 
 place of the act, and not of the domicil of the party, or 
 of the situation of the thing, is to be regarded." Si lex 
 actui formam dat, inspiciendus est locus actus, non domicilii, 
 nan rei sUce.^ Now, after the admission of Hertius him- 
 self, that the usage of nations must furnish a very fal- 
 lacious guide on such a subject, it is not a little diffi- 
 cult to perceive, what superior authority or value his 
 
 1 Herlii Opera, De Collis. Leg. § 4, n. 3, 4, p. 120 ; Id. p. 170, 171, 
 edit. 1716. 
 
 2 Ibid. 
 
 3 1 Hertii Opera, De Collis. ^ 4, art. 8, p. 123 ; Id. p. 175, edit. 1716 ; 
 post, ^ 238. 
 
 4 Id. ^ 4, ait. 9, p. 123 ; Id. p. 177, edit. 1716 ; post, ^ 238. 
 
 y 1 Hertii Opera, De Collis. Leg. ^ 4, art. 10, p. 126 ; Id. p. 179, edit. 
 1716 ; post, ^ 238 
 
 4*
 
 42 CONFLICT OF LAWS. [CH. IL 
 
 own rules have over those of Huberus. The latter has 
 at least this satisfactory foundation for his most import- 
 ant rule, that he is mainly guided in it by the practice 
 of nations ; and he thus aimed, as Grotius had doue be- 
 fore him, to avail himself of the practice of nations, as a 
 solid proof of the acknowledged law of nations.^ 
 
 § 31. Some attempts have been made, but without 
 success, to undervalue the authority of Huberus. It is 
 certainly true, that he is not often spoken of, except by 
 jurists belonging to the Dutch School. Boullenois, 
 however, has quoted his third and last axiom with ma- 
 nifest approbation.^ But it will require very little aid 
 of authority to countenance his works, if his maxims 
 are well founded ; and if they are not, no approbation 
 founded on foreign recognitions of them, can disguise 
 their defects. It is not, however, a slight recommenda- 
 tion of his works, that hitherto he has possessed an un- 
 disputed preference on this subject over other conti- 
 nental jurists, as well in England as in America. In- 
 deed, his two first maxims will in the present day 
 scarcely be disputed by any one ; and the last seems 
 irresistibly to flow from the right and duty of every 
 nation to protect its own subjects against injuries, re- 
 sulting from the unjust and prejudicial influence of fo- 
 reign laws ; and to refuse its aid to carry into effect any 
 foreign laws, which are repugnant to its own interests 
 and polity. 
 
 § 32. It is difiicult to conceive, upon what ground a 
 claim can be rested, to give to any municipal laws an 
 
 1 The Scottish courts seem constantly to have held the doctrine of Hu- 
 berus in his third axiom to be entirely correct. See Fergusson on Marr. 
 and Div. 395, 396, 410. 
 
 2 1 IJoullenois, Trait6 des Statuts, ch. 3, Obser, 10, p. 155.
 
 CH. II.] GENERAL MAXIMS. 43 
 
 extra-territorial effect, when those laws are prejudicial 
 to the rights of other nations, or to those of their sub- 
 jects. It would at once annihilate the sovereignty and 
 equality of every nation, which should be called upon 
 to recognize and enforce them ; or compel it to desert 
 its own proper interest and duty to its own subjects in 
 favor of strangers, who were regardless of both. A claim, 
 so naked of any principle or just authority to support 
 it, is wholly inadmissible. 
 
 § 33. It has been thought by some jurists, that the 
 term, "comity," is not sufficiently expressive of the 
 obligation of nations to give effect to foreign laws, when 
 they are not prejudicial to their own rights and inter- 
 ests. And it has been suggested, that the doctrine 
 rests on a deeper foundation -, that it is not so much a 
 matter of comity, or courtesy, as a matter of paramount 
 moral duty.^ Now, assuming, that such a moral duty 
 does exist, it is clearly one of imperfect obligation, like 
 that of beneficence, humanity, and charity. Every 
 nation must be the final judge for itself, not only of the 
 nature and extent of the duty, but of the occasions, on 
 which its exercise may be justly demanded. And, cer- 
 tainly, there can be no pretence to say, that any foreign 
 nation has a right to require the full recognition and 
 execution of its own laws in other territories, when 
 those laws are deemed oppressive or injurious to the 
 rights or interests of the inhabitants of the latter, or 
 when their moral character is questionable, or their pro- 
 visions are impolitic or unjust.^ Even in other cases, 
 it is difficult to perceive a clear foundation in morals, 
 
 1 Liverm. Dissert, p. 26 to p. 30. 
 
 2 See Mr. Justice Porter, in the case of Saul v. His Creditors, 17 Mar- 
 tin, R. 5G9, 596 to 599.
 
 44 CONFLICT OF LAWS. [CH. U. 
 
 or in natural law, for declaring, that any nation has a 
 right (all others being equal in sovereignty) to insist 
 that its own positive laws shall be of superior obliga- 
 tion in a foreign realm to the domestic laws of the lat- 
 ter, of an equally positive character. What intrinsic 
 right has one nation to declare, that no contract shall 
 be binding, which is made by any of its subjects in a 
 foreign country, unless they are twenty-five years of 
 age, any more than another nation, where the contract 
 is made, has a right to declare, that such contract shall 
 be binding, if made by any person of twenty-one years 
 of age ? One should suppose, that if there be any thing 
 clearly within the scope of national sovereignty, it is 
 the right to fix, what shall be the rule to govern con- 
 tracts made within its own territories.^ 
 
 § 34. That a nation ought not to make its own juris- 
 prudence an instrument of injustice to other nations, or 
 to their subjects, may be admitted. But in a vast vari- 
 ety of cases, which may be put, the rejection of the 
 laws of a foreign nation may work less injustice, than 
 the enforcement of them will remedy. And, here again, 
 every nation must judge for itself, w^hat is its true duty 
 in the administration of justice in its domestic tribunals. 
 It is not to be taken for granted, that the rule of the 
 foreign nation, which complains of a grievance, is right, 
 and that its own rule is wrong. 
 
 § 35. The true foundation, on which the administra- 
 tion of international law must rest, is, that the rules 
 which are to govern are those which arise from mutual 
 interest and utility, from a sense of the inconveniences 
 
 1 See post, § 75 ; and Mr. Justice Porter's opinion in Saul v. His Cre- 
 ditors, 17 Martin, R. 569, 596, 597, 598.
 
 CH. il] general maxims. 45 
 
 which would result from a contrary doctrine, and from 
 a sort of moral necessity to do justice, in order that 
 justice may be done to us in return.^ This is the 
 ground upon which Rodenburg puts it. Quid, igitur 
 (says he) rei in causct est, quod personalia statida territo- 
 rium egrediantiir ? Uniciim Jioc ipsa rei natura ac neces- 
 siias invexit, id cum de statu et conditione hominwn qiiceri- 
 tiir, iini solummodo jiidici, et qiddeni domicilii, universiim in 
 Hid jus sit attrihidum ; cum enim db una certoque loco 
 staium hominis legem accipcre necesse est, quod ahsurdtim, 
 eariimque reriim natiiraliter inter se piigna foret, id in quot 
 loca qids iter faciens, aid navigans, delatiis fiierit, toiidem 
 Hie statum midaret aiit conditionctn ; id mio eodemque tem- 
 pore hie sui juris, illic alieni fidurus sit ; uxor simul in 
 potestate viri, et extra eandem sit ; alio loco Tiaheatur quis 
 prodigiis, alio frugi? President Bouhier expounds the 
 ground with still more distinctness. Mais avant toides 
 clioses il faid se souvenir, qiH encore que le regie etroite soil 
 pour la reseriction des coidumes dans lews limites, V exten- 
 sion en a neamnoins He admise en faveur de Vidilite puh- 
 lique, et souvent meme par une espi^ce de necessite, SfC. 
 Ainsi, quand les peu'ples voisins ont souffert cette extension, 
 ce n^est point qu'ils se soient vus soumis a un statid Stranger. 
 C'est seulement, parce quHls y ont trouve leur interU particu- 
 lier en ce, qiCen pareil cas leurs coidumes ont le mime avant- 
 age dans les provinces voisines. On pent done dire, que 
 cette extension est sur une espece de droit des gens, et 
 de Ueiiseance, en virtu duquel les differens peuples sont 
 tacitement demeures d''accord, de souffrir cette extension de 
 coutume cl coidume, toides les fois que Vequite et Vutilite 
 
 1 Liverm. Dissert, p. 28 ; Blanchard v. Russell, 13 Mass. R. 4. 
 
 2 Rodenb. de Stat. Diversit. tit. 1, c. 3, § 4 ; 2 BouUenois, App. p. 8.
 
 46 CONFLICT OF LAWS. [CH. IL 
 
 commune le demanderoient ; a moins que celle, ou V ex- 
 tension seroit demandee, ne contint en ce cas line disposition 
 prohibitive} 
 
 § 36. But of the nature, and extent, and utility of 
 this recognition of foreign laws, respecting the state 
 and condition of persons, every nation must- judge for 
 itself, and certainly is not bound to recognize them, 
 when they would be prejudicial to its own interests. 
 The very terms, in which the doctrine is commonly 
 enunciated, carry along with them this necessary quali- 
 fication and limitation of it. Mutual utility presupposes, 
 that the interest of all nations is consulted, and not that 
 of one only. Now, this demonstrates, that the doctrine 
 owes its origin and authority to the voluntary adoption 
 and consent of nations. It is, therefore, in the strictest 
 sense, a matter of the comity of nations, and not of any 
 absolute paramount obligation, superseding all discre- 
 tion on the subject.^ 
 
 § 37. Vattel has with great propriety said ; " That 
 it belongs exclusively to each nation to form its own 
 judgment of what its conscience prescribes to it ; of 
 what it can, or cannot do ; of what is proper, or im- 
 proper for it to do. And of course it rests solely with 
 it to examine and determine, whether it can perform 
 any office for another nation, without neglecting the 
 duty which it owes to itself." ^ Lord Stowell has pointed 
 out the same principle in his usual felicitous manner. 
 Speaking with reference to the validity of a Scotch mar- 
 riage, in controversy before him, he remarked ; " Being 
 entertained in an English court, it (the cause) must be 
 
 • Bouhier, Cout. de Bourg. ch. 23, ^ 62, 63, p. 467. 
 
 2 Kent, Comm. Lect. 39, p. 457, 458, 3d edit. 
 
 3 Valtel, Prelim. Disc. p. 61, 62, ^ 14, 16.
 
 CH. II.] GENERAL MAXIMS. 47 
 
 adjudicated according the principles of English law, 
 applicable to such a case. But the only principle, 
 applicable to such a case, by the law of England is, 
 that the validity of the marriage rights must be tried 
 by reference to the law of the country, where, if they 
 exist at all, they had their origin. Having furnished 
 this principle, the law of England withdraws altogether, 
 and leaves the legal question to the exclusive judg- 
 ment of the law of Scotland." ^ 
 
 § 38. There is, then, not only no impropriety in the 
 use of the phrase, " comity of nations," but it is the 
 most appropriate phrase to express the true foundation 
 and extent of the obligation of the laws of one nation 
 within the territories of another.^ It is derived alto- 
 gether from the voluntary consent of the latter ; and is 
 inadmissible, when it is contrary to its known policy, 
 or prejudicial to its interests. In the silence of any 
 positive rule, affirming, or denying, or restraining the 
 operation of foreign laws, courts of justice presume 
 the tacit adoption of them by their own government, 
 unless they are repugnant to its policy, or prejudicial 
 to its interests. It is not comity of the courts, but the 
 comity of the nation, which is administered, and ascer- 
 tained in the same way, and guided by the same 
 reasoning, by which all other principles of the muni- 
 cipal law are ascertained and guided. ^ The doctrine 
 
 1 Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 59, See Scrimshire v. 
 Scrimshire, Id. 407, 416. 
 
 2 See Robinson v. Bland, 2 Burr. R. 1077, 1079 ; Blanchard v. Rus- 
 sell, 13 Mass. R. 4. 
 
 3 See this doctrine expressly recognized by the Supreme Court of the 
 United Slates, in Bank of Augusta v. Earle, 13 Peters, R. 519, 589. 
 Mr. Chief Justice Taney, in delivering the opinion of the Court, said ; 
 " It is needless to enumerate here the instances, in which, by the general
 
 48 CONFLICT OF LAWS. [CH. IL 
 
 of Huberus would seenij therefore, to stand upon just 
 principles; and though, from its generality, it leaves 
 behind many grave questions as to its application, it 
 has much to commend it, in point of truth, as well as 
 of simplicity. It has accordingly been sanctioned both 
 in England and America by a judicial approbation, as 
 direct and universal as can fairly be desired for the 
 purpose of giving sanction to it, as authority, or as 
 reasoning.^ 
 
 practice of civilized countries, the laws of the one will, by the comity of 
 nations be recognized and executed in another, where the rights of indi- 
 viduals are concerned. The cases of contracts made in a foreign country 
 are familiar examples ; and Courts of justice have always expounded and 
 executed them, according to the laws of the place in which they were 
 made ; provided that law was not repugnant to the laws or policy of their 
 own country. The comity thus extended to other nations is no impeach- 
 ment of sovereignty. It is the voluntary act of the nation, by which it is 
 offered ; and is inadmissible, when contrary to its policy, or prejudicial to 
 its interests. But it contributes so largely to promote justice between 
 individuals, and to produce a friendly intercourse between the sovereign- 
 ties to which they belong, that Courts of justice have continually acted 
 upon it, as a part of the voluntary law of nations. It is truly said, in 
 Story's Conflict of Laws, 37, that, ' In the silence of any positive rule, 
 aflirming, or denying, or restraining the operation of foreign laws, Courts 
 of justice presume the tacit adoption of them by their own government ; 
 unless they are repugnant to its policy, or prejudicial to its interests. It 
 is not the comity of the Courts, but the comity of the nation which is 
 administered, and ascertained in the same way, and guided by the same 
 reasoning, by which all other principles of municipal law are ascertained 
 and guided.' " 
 
 1 Out of the great variety of authorities in which the rules of Huberus 
 are directly or indirectly approved, the reader is referred to the follow- 
 ing : — Co. Lit. 79, b, Hargrave's note, 44 ; Robinson v. Bland, 2 Burr. R. 
 1077, 1078 ; Holman v. Johnson, Cowper, 341 ; 2 Kent, Coram. Lect, 39, 
 p. 453 to p. 463 (3d edit.) ; Pearsall v. Dwight, 2 Mass. R. 84, 90 ; De- 
 sesbats v. Berquier, 1 Binn. R. 336 ; Holmes v. Remsen, 4 Johns. Ch. R. 
 469; Mr. Cowen's note to 4 Cowen, R, 410; Saul v. His Creditors, 
 17 Martin, R. 569, 596, 597, 598 ; Greenwood v. Curtis, 6 Mass. R. 358 ; 
 Bank of Augusta v. Earle, 13 Peters, R. 519, 588 to 591.
 
 CH. 111.] NATIONAL DOMICIL. 49 
 
 CHAPTER HI. 
 
 NATIONAL DOMICIL. 
 
 § 39. Having disposed of these preliminary consider- 
 ations, it is proposed, in the further progress of these 
 Commentaries, to examine the operation and effect of 
 laws ; first, in relation to persons, their capacity, state, 
 and condition ; secondly, in relation to contracts ; 
 thirdly, in relation to property, personal, mixed, and 
 real ; fourthly, in relation to wills, successions, and dis- 
 tributions ; fifthly, in relation to persons acting in mitre 
 droit, such as guardians, executors, and administrators ; 
 sixthly, in relation to remedies and judicial sentences ; 
 seventhly, in relation to penal laws and offences ; and 
 eighthly, in relation to evidence and proofs. 
 
 § 40. As, however, in all the discussions upon this 
 subject, perpetual reference will be made to the domicil 
 of the party, it may be proper to ascertain, what is the 
 true meaning of the term ^'domicil;" or rather, what 
 constitutes the national or local domicil of a party, 
 according to the understanding of publicists and ju- 
 rists/ 
 
 § 41. By the term "domicil," in its ordinary accepta- 
 tion, is meant the place, where a person lives or has his 
 home. In this sense the place, where a person has his 
 actual residence, inhabitancy, or commorancy, is some- 
 
 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. 2, p. 32 to 
 p. 57. 
 
 CONFL. 5
 
 60 CONFLICT OF LAWS. [CH. III. 
 
 times called his domicil. In a strict and legal sense, 
 that is properly the domicil of a person, where he has 
 his true, fixed, permanent home, and principal esta- 
 blishment, and to which, whenever he is absent, he has 
 the intention of returning (animus revertendi)} 
 
 § 42. In the Roman law it is said : " There is no 
 doubt, that every person has his domicil in that place, 
 which he makes his family residence and principal 
 place of his business ; from which he is not about to 
 depart, unless some business requires ; when he leaves it 
 he deems himself a wanderer ; and when he returns to 
 it, he deems himself no longer abroad." In eodem loco 
 singidos Jmhere domicUium, non amhigitiu; nU qins larcm 
 renimque ac fortunanim summam constitidt ; wide riirsus 
 non sit discessurus, si nihil avocet ; wide cum profectus est, 
 peregrinan videtur : quod si rediit, peregrinari jam destitit? 
 And in another place it is said : " If any one always 
 carries on his business, not in a colony, but in a muni- 
 cipality, or city, where he buys, sells, and contracts ; 
 where he makes use of, and attends the forum, the pub- 
 lic baths, and public shows ; where he celebrates the 
 holidays, and enjoys all municipal privileges, and none in 
 colony ; he is deemed there to have his domicil, rather 
 than in the place (colony), in which he sojourns for pur- 
 poses of agriculture." Si quis ncgotia sua non in colonid, 
 sed in municijno, semjycr agit ; in illo vendit, emit, contrahit ; 
 eo inforo, halneo^spectaculis iititur ; ihifcstos dies celehrat ; 
 omnibus denique miinicijyii commodis, mdlis coloniarum, frui- 
 tur ; ibi magis habere domiciliuin, quam nbi colendi causa 
 
 1 Dr. Lieber's Encyc. Americ. art. Domicil. 
 
 2 Cod. Lib. 10, tit. 39, 1. 7 ; Pothier, Pand. Lib. 50, n. 15 ; 1 Voet, ad 
 Pand. Lib. 5, tit. 1, n. 92, p. 314 ; Id. n. 94, p. 345.
 
 CH. III.] NATIONAL DOMICIL. 51 
 
 diversatur} And again ; " He is deemed an inhabitant, 
 who has his domicile in any place, and whom the Greeks 
 call TTciooixor, that is to say, a neighbor, or person inha- 
 biting near to a village. For those are not alone to be 
 deemed inhabitants, who dwell in a town ; but those 
 also, who cultivate grounds near its limits, so that they 
 conduct themselves, as if their place of abode were 
 there." Incola est, qui aliqiid regione domicUkim suum con- 
 tuUt ; qucm Grceci nCtQoixov, {id est, juxta habitantem) 
 appellant. Nee tantum hi, qui in oppido morantur, incolce 
 sunt ; sed etiam, cqui alicujus oppidi finihus itci agrmn ha- 
 hent, lit in euni se quasi ifi aliqiimn sedem, recipiant? Some, 
 at least, of these, are more properly descriptions, than 
 definitions of domicil. Pothier has generalized them 
 in his own introduction, to this title of the Pandects, 
 and says ; The seat of the fortune or property, which 
 any person possesses in any place, constitutes his chief 
 domicil. DomicUlrnn facit poti.ssimum scdes fortunarmn 
 siiarum, quas qids in aliquo loco hahct? Voet says ; Pro- 
 prie dictum DomiciUum est, quod qiiis sihi constituet animo 
 inde non dccedcndi, si nan aliud avocet} 
 
 § 43. The French jurists have defined domicil to be 
 the place, where a person has his principal establish- 
 ment. Thus Denizart says ; " The domicil of a person 
 is the place, where a person enjoys his rights, and esta- 
 blishes his abode, and makes the seat of his property." 
 Le domicile est le lieu, oil une personne, joidssant de ses 
 
 1 Dig. Lib. 50, tit. 1, 1. 27 ; Pothier, Pand. Lib. 50, tit. 1, n. 18 ; 2 
 Domat, Public Law, B. 1, tit. 16, ^ 3, art. 4. 
 
 2 Dig. Lib. 50, tit. 16, L 239, ^ 2 ; Id. 1. 203 ; Pothier, Pand. Lib. 50, 
 n. 16. 
 
 3 Pothier, Pand. Lib. 50, tit. 1, Introd. art. 2, n. 18. 
 * Voet, ad Pand. Lib. 5, tit, 1, n. 94.
 
 52 CONFLICT OF LAWS. [CH. HI. 
 
 droits, etahlit sa demeure d le siege de sa fortune} The 
 Encyclopedists say ; " That it is, properly speaking, 
 the place where one has fixed the centre of his busi- 
 ness." C'cst, a jorojyrement imrler, Vendroit, oil Von a place 
 le centre de ses affaires?- Pothier says ; " It is the place, 
 where a person has established the principal seat of his 
 residence and of his business." C'est le lieu, ou line 
 personne a etaUi le siege principal de sa demeure et de ses 
 affaires? And the modern French Code declares, that 
 the domicil of every Frenchman, as to the exercise of 
 civil rights, is the place, where he has his principal 
 establishment ; (Ust le lieu, ou il a son principal etahlisse- 
 ment.y Vattel has defined domicil to be a fixed resi- 
 dence in any place, with an intention of always stay- 
 ing there.^ But this is not an accurate statement. It 
 would be more correct to say, that that place is properly 
 the domicil of a person, in which his habitation is 
 fixed, without any present intention of removing there- 
 from.^ [The definition of the word domicil is, however, 
 not without difficulty, and in a late case it was observed 
 by Dr. Lushington, that although so many powerful 
 minds had been applied to this question, there is no 
 universally agreed definition ; no agreed enumeration 
 of the ingredients which constitute domicil j the gra- 
 dation from residence to domicil consists both of circum- 
 stances and intention.'] 
 
 1 Denizart, art. Domicil. 
 
 2 Encyclop. Moderne, art. Domicil. 
 
 3 Pothier, Introd. G6n. Cout. d'Orltans, ch. 1, ^ 1, art. 8. 
 
 4 Cod. Civ. art. 102. See also Merlin, R6pert. art. Domicil. 
 
 5 Vattel, B. l,ch. 19, §22. 
 
 6 Dr. Lieber's Encyc. Amer. Domicil ; Putnam v. Johnson, 10 Mass. 
 R. 488 ; Tanner v. King, 11 Louisiana Rep. 175. [Rue High, appellant, 
 2 Dougl. 523 ; Greene v. Windham, 13 Maine, 225.] 
 
 [" Maltass v. Maltass, 1 Roberts. 74. And see Moore v. Budd, 4 Hagg.
 
 CH. III.] NATIONAL DOMICIL. 53 
 
 § 44. Two things, then, must concur to constitute 
 domicil ; first, residence ; and secondly, the intention 
 of making it the home of the party. There must he 
 the fact, and the intent ; for, as Pothier has truly ob- 
 served, a person cannot establish a domicil in a place, 
 except it be animo et facto} Voet emphatically says ; 
 lUud certum est, neque solo animo atque destinatione patris 
 famiUas, aut contestatione sold, sine re et pacto, domicilium 
 constitui ; neque sold domus comjKimtione in aliqua regione ; 
 neque sold hahitatione, sine proposito illlc perpetuo morandi? 
 So D'Argentre says ; Quamohrem, qui figendi ejus ani- 
 mum non hahent, scd usus, necessitatis, aut ncgotiationis causa 
 alicuhi sint, ^^rofww^s a ncgotio discessuri, domicilium nullo 
 tempo)-is spatio constituent ; cum neque animus sine facto, 
 neque factum sine animo ad id suffieiat.^ However ; in 
 many cases actual residence is not indispensable to re- 
 tain a domicil, after it is once acquired ; but it is 
 retained, animo solo, by the mere intention not to change 
 it, or to adopt another. If, therefore, a person leaves 
 
 R. 352 ; Burton v. Fisher, 1 Milw. R. 187 ; Phillimore on Domicil, p. 
 13 ; Munroe v. Munroe, 7 Clark & Finn. 842. For the difference between 
 residence and domicil, see Foster v. Hall, 4 Humph. 346 ; m re Thompson, 
 1 Wend. 43. In Harvard College v. Gore, 5 Pick. R. 370, and Lyman 
 V. Fiske, 17 Pick. R. 231, it was intimated that there might be a differ- 
 ence between hahilalion and domicil. See also in re Wrigley, 4 Wend. 
 r>02 ; S. C. 8 Wend. 134 ; Exeter v. Brighton, 15 Maine, 58 ; Jefferson v. 
 Washington, 19 Maine, 293. So, between the words domicil and "set- 
 tlement " under the pauper laws of a country. Phillips v. Kingfield, 19 
 Maine, 375. But these words are often used as exactly synonymous with 
 domicil, as generally understood. See Hylton v. Brown, 1 Wash. C. C. 
 299 ; Moore v. Wilkins, 10 New Hamp. 452 ; Lamb v. Smythe, 15 
 Mces. & Welsh. 433 ; Blanchard v. Stearns, 5 Met. 298.] 
 
 1 Pothier, Cout. d'0rl6ans, ch. 1,^1, art. 9. See Scrimshire v. Scrim- 
 shire, 2 Hagg. Ecc. R. 405, 406. [See Hallowell v. Saco, 5 Greenl. R. 
 143, (Bennett's Ed.) and note; Greene u. Windham, 13 Maine, 225; 
 Wayne v. Greene, 21 Maine, 357 ; Leach v. Pillsbury, 15 N. H. R. 137.] 
 
 2 1 Voet, ad Pand. Lib. 5, tit. 1, n. 98, p. 346. 
 
 3 D'Argentre, ad Leg. Britonum, art. 9, n. 4, p. 26. 
 
 5*
 
 54 CONFLICT OF LAWS. [CH. III. 
 
 Ms home for temporary purposes, but with an intention 
 to return to it, this change of place is not in law a 
 change of domicil. Thus, if a person should go on a 
 voyage to sea, or to a foreign country, for health, or for 
 pleasure, or for business of a temporary nature, with 
 an intention to return, such a transitory residence would 
 not constitute a new domicil, or amount to an abandon- 
 ment of the old one -, for it is not the mere act of inhabit- 
 ancy in a place, which makes it the domicil ; but it is the 
 fact, coupled with the intention of remaining there, 
 anmo manendi} 
 
 § 45. It is sometimes a matter of no small difficulty 
 to decide, in what place a person has his true or proper 
 domicil. His residence is often of a very equivocal 
 nature ; and his intention as to that residence is often 
 still more obscure.^ Both are sometimes to be gathered 
 from slight circumstances of mere presumption, and 
 from equivocal and conflicting acts. An intention of 
 permanent residence may often be ingrafted upon an 
 inhabitancy originally taken for a special or fugitive 
 purpose.3 And, on the other hand, an intention to 
 change the domicil may be fully announced, and yet no 
 correspondent change of inhabitancy may be actually 
 made.'* DomiciUiun re ct facto trangfertiu', non nudd con- 
 testatione.^ The Roman lawyers were themselves greatly 
 
 1 Pothier, Cout. d'Orleans, ch. 1, ^ 1, art. 9 ; Encyclop. Amer. art, 
 Domicil; Burton v. Fisher,! Milvv. Cons. R. 188. Cochin, CEuvres, 
 tarn. 5, p. 4, 5, 6, 4to. edit. 
 
 2 Pothier, Cout. d'Orleans, ch. 1, art. 20 ; Merlin, Repert. Domicil, 
 ^ 2, 6 ; Bouhier, Cout. de Bourg. ch.22, § 196 to ^ 206. 
 
 3 The Harmony, 2 Robinson, R. 332, 324 ; Pothier, Cout. d'Orleans, 
 ch. 1, art. 15. 
 
 4 See Harvard College v. Gore, 5 Pick. R. 370. [Hallowell v. Saco, 
 5 Greenl. R. (Bennett's Ed.) 143 ; Greene u. Windham, 13 Maine, 225.] 
 
 5 Dig. Lib. 50, tit. 1, 1. 20 ; Pothier, Pand. Lib. 50, tit. 1, n. 26.
 
 CH. III.] NATIONAL DOMICIL. 55 
 
 puzzled upon this subject by cases of an equivocal 
 nature ; and TJlpian, and Labeo, and others, held differ- 
 ent opinions respecting them.^ Thus, to the question, 
 "where a person had his domicil, who did his business 
 equally in two places, Labeo answered, that he had no 
 domicil in either place.^ But other jurists, and among 
 them was Ulpian, were of opinion, that a man might in 
 such a case have two domicils, one in each place.^ Cel- 
 sus seems to have thought, that, in such a case, which 
 place was the domicil of the party depended upon his 
 own choice and intention/ And Julian doubted, whe- 
 ther, if he had no fixed choice and intention, he could 
 have two domicils.^ 
 
 [§ 45, a. The question of domicil, and the possibility 
 of the existence of two domicils, was much discussed 
 in a late case in Massachusetts, and Chief Justice Shaw 
 there said, that in determining such an inquiry, two 
 important considerations must be kept steadily in 
 view ; First, that every person must have a domicil 
 somewhere ; Second, that a person can have only one 
 domicil for one purpose, at one and the same time.'^] 
 
 1 Dig. Lib. 50, tit. 1, 1. 5 ; Id. 1. 27, ^ 1, 2, 3 ; Pothier, Pand. Lib. 
 50, tit. 1, n. IG ; Id. n. 18, 21, 22. 
 
 2 Dig. Lib. 50, tit. 1, 1. 5 ; Pothier, Pand. Lib. 50, tit. 1, n. 18 ; Post, 
 §47. 
 
 3 Dig. Lib. 50, tit. 1, L 6, § 2 ; Pothier, Pand. Lib. 50, tit. 1, n. 18. 
 
 4 Dig. Lib. 50, tit. 1, 1. 27, § 2 ; Pothier, Pand. Lib. 50, tit. 1, n. 18. 
 
 5 Dig. Lib. 50, tit. 1, L 27, ^ 2 ; Pothier, Pand. Lib. 50, tit. 1, n. 1« ; 
 Somerville v. Soraerville, 5 Vesey, 750, 786, 790 ; 2 Domat, Public Law, 
 B. 1, tit. 16, § 3, p. 462 ; Id. art. 6 ; Post, § 47. 
 
 [6 Abington v. North Bridgewater, 23 Pick. R. 170, 177. In this case 
 the learned Chief Justice said in giving judgment : " Every one has a 
 domicil of origin, which he retains until he acquires another ; and the 
 one thus acquired, is in like manner retained. The supposition, that a 
 man can have two domicils, would lead to the absurdcst consequences. If
 
 56 CONFLICT OP LAWS. [CH. III. 
 
 § 46. Without speculating upon all the various cases, 
 which may be started upon this subject, it may be use- 
 ful to collect together some of the more important rules, 
 
 he had two domicils within the limits of distant sovereign States, in case 
 of war, what would be an act of imperative duty to one, would make him 
 a traitor to the other. As not only sovereigns, but all their subjects, col- 
 lectively and individually, are put into a state of hostility by war, he 
 would become an enemy to himself, and bound to commit hostilities and 
 afford protection, to the same persons and property at the same time. But 
 without such an extravagant supposition, suppose he were domiciled with- 
 in two military districts of the same State, he might be bound to do per- 
 sonal service at two places, at the same time ; or in two counties, he 
 would be compellable, on peril of attachment, to serve on juries at two 
 remote shire towns ; or in two towns, to do watch and ward in two dif- 
 ferent places. Or, to apply an illustration from the present case. By the 
 provincial laws cited, a man was liable to be removed by a warrant, to the 
 place of his settlement, habitancy, or residence, for all these terms are 
 used. If it were possible, that he could have a settlement or habitancy, in 
 two different towns at the same time, it would follow that two sets of civil 
 officers, each acting under a legal warrant, would be bound to remove him 
 by force, the one to one town, and the other to another. These proposi- 
 tions, therefore, that every person must have some domicil, and can have 
 but one at one time, for the same purpose, are rather to be regarded as 
 fostulata, than as propositions to be proved. Yet we think they go far, 
 in furnishing a test, by which the question may be tried in each particular 
 case. It depends not upon proving particular facts, but whether all the 
 facts and circumstances taken together, tending to show that a man has 
 his home or domicil in one place, overbalance all the like proofs, tending 
 to establish it in another ; such an inquiry, therefore, involves a compari- 
 son of proofs, and in making that comparison, there are some facts, which 
 the law deems decisive, unless controlled and counteracted by others still 
 more stringent. The place of a man's dwelling-house is first regarded, 
 in contradistinction to any place of business, trade, or occupation. If he 
 has more than one dwelling-house, that in which he sleeps or passes his 
 nights, if it can be distinguished, will govern. And we think it settled 
 by authority, that if the dwelling-house is partly in one place and partly 
 in another, the occupant must be deemed to dwell in that town, in which 
 he habitually sleeps, if it can be ascertained." And see Walke v. Bank 
 of Circleville, 15 Ohio, 288 ; Thorndike v. City of Boston, 1 Mete. 242. 
 For some purposes it has been said a person may have two domicils, at 
 the same time. Greener. Greene, 11 Pick. R. 410 ; Putnam t;. John- 
 son, 10 Mass. 488 ; Somerville v. Somerville, 5 Ves. 750.]
 
 CH. III.] NATIONAL DOMICIL. 57 
 
 which have been generally adopted, as guides in the 
 cases, which are of most familiar occurrence. First, the 
 place of birth of a person is considered as his domicil, 
 if it is at the time of his birth the domicil of his parents. 
 Patris oric/mcm iinusquisqiie scquatiir} This is usually de- 
 nominated the domicil of birth or nativity, domiciliwn 
 oriyinis. But, if the parents are then on a visit, or on 
 a journey, {in itinere.) the home of the parents (at least 
 if it is in the same country) will be deemed the domicil 
 of birth or nativity.- If he is an illegitimate child, he 
 follows the domicil of his mother. Ejus, qidjiistwn pa- 
 trem non hcibet, pima origo a matre? Secondly, the 
 domicil of birth of minors continues, until they have 
 obtained a new domicil. Thirdly, minors are generally 
 deemed incapable, iwoprio marte, of changing their do- 
 micil during their minority ; and, therefore, they retain 
 the domicil of their parents ; and if the parents change 
 their domicO, that of the infant children follows it ; and 
 if the father dies, his last domicil is that of the infant 
 children."* Placet etiam filium-famiUas domieiliimi habere 
 posse ; non iitique iM, iibi pater hahuit,scdiibicimque ipse con- 
 stitidt.^ Fourthly, a married woman follows the domi- 
 
 1 Cod. Lib. 10, tit. 31, 1. 36 ; 2 Domat, Public Law, B. 1, tit. 16, § 3, 
 art. 10 ; 1 Boullenois, Observ. 4, p. 53 ; Voet, ad Pand. Lib. 5, tit. 1, n. 
 91, 92, 100. See Scrimshire v. Scrimshire, 2 Hagg. Ecd. R. 405, 406 ; Co- 
 chin, CEuvres, Tom. 5, p. 5, 6 ; Id. 698, 4to. edit. 
 
 2 Dr. Lieber's Encyc. Amer. art. Domicil ; Pothier, Cout. d'0rl6ans, 
 ch. 1, art. 10, 12 ; Somerville v. Soraerville, 5 Vesey, 750, 787 ; 1 Boul- 
 lenois, Observ. 4, p. 53. 
 
 3 Dig. Lib. 50, tit. 1, 1. 9 ; Pothier, Pand. Lib. 50, tit. 1, n. 3. 
 
 ^ Id. ; Pothier, Cout. d'Orleans, ch. 1, art. 12, 16; 2 Domat, Public 
 Law, B. 16, tit. 16 ; § 3, art. 10 ; Guier v. O'Daniel, 1 Binn. R. 349, 
 351 ; Voet, ad Pand. Lib. 5, tit. 1, n. 91, 92, 100. 
 
 5 Dig. Lib. 50, tit. 1,1. 1, 3, 4 ; Pothier, Pand. Lib. 50, tit. 1, n. 25. 
 Whether a father or guardian can change the domicil of a minor, or idiot, 
 or insane person, under his charge, has been matter of doubt, upon which
 
 58 CONFLICT OF LAWS. [CH. IIL 
 
 oil of her husband.^ This results from the general prin- 
 ciple, that a person, who is under the power and autho- 
 rity of another, possesses no right to choose a domicil.^ 
 3IuUeremy qimmdm nujjta est, ineolam ejusdem civitatis vi- 
 dcri, cvjus maritus ejus est? Fifthly, a widow retains 
 the domicil of her deceased husband, until she obtains 
 another domicil. Vidua midier amissi mariti domicilmm 
 retinet} Sixthly, 2y^i^nd facie, the place, where a person 
 lives, is taken to be his domicil, until other facts esta- 
 blish the contrary.^ Seventhly, every person of full age, 
 having a right to change his domicil, it follows, that if 
 he removes to another place, with an intention to make 
 it his permanent residence (animo manendi), it becomes 
 
 different opinions have been expressed by jurists. In the affirmative there 
 may be found among others, Bynkershoeck, Boullenois, Bretannier. In 
 the negative, Pothier and Mornac. See Pothier, Cout. d'Orl^ans, ch. 1, 
 art. 17; Bynker. Quaest. Privat. Juris. Lib. 1, ch. 16 ; Merlin, Pv6pert. 
 Domicil, § 5, art. 2, 3 ; Boullenois, Quest, de la Coutrari6t6 des Lois, 
 Quest. 2, p. 40, edit. 1732. See also Guier v. O'Daniel, 1 Binn. R. 349, 
 note ; Somerville v. Somerville, 5 Ves. 750, 787 ; School Directors v. 
 James, 2 Watts & Serg. 568 ; Potinger v. Wightman, 3 Merivale, R. 67 ; 
 Cutts V. Haskins, 9 Mass. R. 543 ; Holyoke v. Haskins, 5 Pick. R. 20; 
 [Leeds v. Freeport, 10 Maine, 356.] 
 
 1 Voet, ad Pand. Lib. 5, tit. 1, n. 101 ; Warrender v. Warrender, 9 
 Bligh, R. 89, 103, 104 ; [Greene v. Greene, 11 Pick. R. 411. If, how- 
 ever, the relations between husband and wife become adverse, her domicil 
 may become different from his, at least to allow her to file a bill for divorce. 
 See Harding v. Alden, 9 Greenl. R. 140 ; Harteau v. Harteau, 14 Pick. 
 R. 187 ; Irby v. Wilson, 1 Dev. & Batt. Eq. R. 568.] 
 
 2 Dr. Lieber's Encyc. Amer. Domicil; Pothier, Cout. d'Orleans, ch. 1, 
 art. 10 ; 2 Domat, Public Law, B. 1, tit. 16, ^ 3, art. 11, 13; Merlin, 
 Repert. Domicil, ^ 5. 
 
 3 Dig. Lib. 50, tit. 1, 1. 38, ^ 3 ; Id. Lib. 5, tit. 1, 1. 65 ; Pothier, Pand. 
 Lib. 50, tit. 1, n. 24; 2 Domat, Public Law, B. 1, tit. 16, ^ 3, art. 12; 
 Voet, ad Pand. Lib. 5, tit. 1, n. 101. 
 
 4 Dig. Lib. 50, tit. 1, 1. 22, § 1 ; Pothier, Pand. Lib. 50, tit. 1, n. 28. 
 
 5 Bruce v. Bruce, 2 Bos. & Pull. 228, note; Id. 230 ; Bempde v. 
 Johnstone, 3 Ves. 198, 201 ; Stanley v. Bernes, 3 Hagg. Eccles. R. 374, 
 437.
 
 en. III.] NATIONAL DOMICIL. 59 
 
 instantaneously his place of clomicil.^ Eighthly, if a 
 person has actually removed to another place, with an 
 intention of remaining there for an indefinite time, and 
 as a place of fixed present domicil, it is to be deemed 
 his place of domicil, notwithstanding he may entertain 
 a floating intention to return at some future period." 
 Ninthly, the place, where a married man's family re- 
 sides, is generally to be deemed his domicil.^ But the 
 presumption from this circumstance may be controlled 
 by other circumstances ; for if it is a place of temporary 
 establishment only for his family, or for transient objects, 
 it will not be deemed his domicil.'' Tenthly, if a mar- 
 ried man has his family fixed in one place, and he does 
 his business in another, the former is considered the 
 place of his domicil.^ 
 
 § 47. Eleventhly, if a married man has two places of 
 residence at different times of the year, that will be es- 
 teemed his domicil, which he himself selects, or describes, 
 or deems, to be his home, or which appears to be the 
 centre of his afljxirs, or where he votes, or exercises the 
 rights and duties of a citizen.^ Twelfthly, if a man is 
 unmarried, that is generally deemed the place of his 
 domicil, where he transacts his business, exercises his 
 
 1 Pothier, Cout. d'Orl^ans, ch. 1, art. 13. 
 
 2 Bruce v. Bruce, 2 Bos. & Pull. 228, note ; Id. 230; Stanley v. 
 Bernes, 3 Hagg. Eccles. R. 374. [See the important case of Sears v. 
 City of Boston, 1 Mete. 250. Also, Thorndike v. City of Boston, 1 Mete. 
 242 ; Greene v. Windham, 13 Maine, 225.] 
 
 3 Pothier, Cout. d'Orieans, ch. 1, art. 20 ; Bempde v. Johnstone, 3 Ves. 
 198, 201. [See Bump v. Smith, 11 New Hamp. R. 48.] 
 
 4 Pothier, Cout. d'0rl6ans, ch. 1, art. 15. 
 f> Ante, ^ 42, 43, 44. 
 
 6 Potliier, Cout. d'Orleans, ch. 1, art. 20; Somerville v. Somerville, 
 5 Ves. 750, 788, 789, 790 ; Harvard College v. Gore, 5 Pick. R. 370 ; 
 Cochin, (Euvres, Tom. 3, p. 702, 4to. edit.
 
 60 CONFLICT OF LAWS. [CH. IIL 
 
 profession, or assumes and exercises municipal duties 
 or privileges.-^ But this rule is of course subject to 
 some qualifications in its application.^ Thirteenthly, 
 residence in a j^lace, to produce a change of domicil, 
 must be voluntary. If, therefore, it be by constraint, 
 or involuntary, as by banishment, arrest, or imprison- 
 ment, the antecedent domicil of the party remains.^ 
 Fourteenthly, the mere intention to acquire a new do- 
 micil, without the fact of an actual removal, avails 
 nothing ; neither does the fact of removal without the 
 intention.^ Fifteenthly, presumptions from mere cir- 
 cumstances will not prevail against positive facts, which 
 fix, or determine the domicil.^ Sixteenthly, a domicil 
 once acquired remains, until a new one is acquired.*^ It 
 is sometimes laid down, that a person may be without 
 any domicil ; as if he quits a place with an intent to fix 
 in another place, it has been said, that while he is in 
 transitu, he has no domicil. Julian, in the Roman law, 
 has so affirmed. >S'/ qiiis domicilio relido naviget, vel iter 
 faciat, qiicerens quo se conferat, atque uU constituat ; hunc 
 fido sine domicilio esse? But the more correct principle 
 would seem to be, that the original domicil is not gone. 
 
 1 Somerville v. Somerville, 5 Ves. 750, 788, 789. 
 
 2 Idem. 
 
 3 2 Domat, Public Law, B. 1, tit. 16, § 3, art. 14 ; Merlin, Repertoire, 
 Domicil, ^ 4, art. 3; Bempde v. Johnstone, 3 Ves. 198, 202. [Grants. 
 Dalliber, 11 Conn. R. 234; Holbeck v. Leeds, 2 Eng. Rep. 245 ; Dan- 
 ville v. Putney, 6 Vermont, 512 ; Woodstock V. Hartland, 21 Vermont, 
 563.J 
 
 4 Ante, § 44. 
 
 5 Dr. Lieber, Encyc. Amer. Domicil ; Ante, § 42, 43, 44. 
 
 C Somerville v. Somerville, 5 Ves. 750, 787 ; Merlin, Repertoire, Dowz- 
 cil, ^ 2 ; Harvard College v. Gore, 5 Pick. R. 370 ; Cochin, (Euvres, Tom. 
 5, p. 5, 6, 4to. edit. 
 
 7 Dig. Lib. 50, tit. 1, 1. 27, ijy 2 ; Pothier, Pand. Lib. 30, tit. 1, n. 18 ; 
 2 Domat, Public Law, B. 1, tit. 16, ^ 3, art. 9 ; Ante, § 45.
 
 CH. III.] NATIONAL DOMICIL. 61 
 
 until a new one has been actually acquired, /«(?/<? et ani- 
 mo} Seventeenthly, if a man has acquired a new domi- 
 cil, different from that of his birth, and he removes from 
 it with an intention to resume his native domicil,^ the 
 latter is reacquired, even while he is on his way, in 
 itincrCy for it reverts from the moment the other is given 
 
 § 48. The foregoing rules principally relate to changes 
 of domicil from one place to another within the same 
 country, or territorial sovereignty, although many of 
 them are applicable to residence in different countries 
 or sovereignties. In respect to the latter there are cer- 
 tain principles, which have been generally recognized 
 by tribunals administering public law, or the law of 
 nations, as of unquestionable authority. First ; Per- 
 sons, who are born in a country, are generally deemed 
 to be citizens and subjects of that country.^ A reasona- 
 ble qualification of the rule would seem to be, that it 
 should not apply to the children of parents, who were 
 in itinere in the country, or who were abiding there for 
 temporary purposes, as for health, or curiosity, or occa- 
 sional business. It would be difficult, however, to assert, 
 that in the present state of public law such a qualifica- 
 
 1 See Jennison v. Hapgood, 10 Pick. R. 77 ; Bruce v. Bruce, 2 Bos. & 
 Pull. 228 ; [Moore v. VV^ilkins, 10 New Hamp. R. 452] ; Cochin, GEuvres, 
 Tom. 5, p. 5, G, 4to. edit. ; Ante, § 44. 
 
 2 The acquired domicil must be finally and totally abandoned, before 
 the domicil of origin revives. Craigie v. Craigie, 3 Curteis, 435. 
 
 3 The Indian Chief, 3 Rob. 12 ; La Virginie, 5 Rob. 98 ; [The Venus, 
 8 Cranch, 253; State v. Hallett, 8 Ala. R. 159 ; The Ship Ann Green, 
 1 Gallis. 275 ; Catlin v. Gladding, 4 Mason, 308.] On the subject of Do- 
 micil the learned reader is referred to Fergusson on Marriage and Divorce, 
 Appendix, p. 277 to 362 ; and Henry on Foreign Law, Appendix A. p. 
 181, &c; Cochin, (Euvres, Tom. 5, p. 4, 5, 6, 4to. edit.; Ex parte 
 Wrigby, 8 Wend. R. 134. 
 
 4 1 Black. Comm. 366, 369. 
 
 CONFIi. 6
 
 62 CONFLICT OF LAWS. [CH. IIL 
 
 tion is universally established. Secondly ; Foreigners, 
 wlio reside in a country for permanent or indefinite pur- 
 poses, animo manendi, are treated universally as inhabit- 
 ants of that country.-^ Thirdly ; A national character, 
 acquired in a foreign country by residence, changes 
 when the party has left the country animo non rever- 
 tendi, and is on his return to the country, where he had 
 his antecedent domicil. And especially, if he be in 
 itinere to his native country with that intent, his native 
 domicil revives, while he is yet in tiwisitu ; for the 
 native domicil easily reverts.^ The moment a foreign 
 domicil is abandoned, the native domicil is reacquired. 
 But a mere return to his native country, without an 
 intent to abandon his foreign domicil, does not work 
 any change of his domicil.^ Fourthly; Ambassadors 
 and other foreign ministers retain their domicil in the 
 country, which they represent, and to which they be- 
 long.^ But a different rule generally applies to Con- 
 suls, and to other commercial agents, who are presumed 
 to remain in a country for purposes of trade, and who 
 therefore acquire a domicil, where they reside.^ Fifthly ; 
 Children born upon the sea are deemed to belong, and 
 to have their domicil in the country, to which their 
 parents belong.^ 
 
 § 49. From these considerations and rules the gene- 
 
 1 Vattel, Lib. 1, ch. 19, § 213. 
 
 2 The Venus, 8 Cranch, 278, 281 ; The Frances, 8 Cranch, 335 ; The 
 Indian Chief, 3 Rob. 12 ; Bempde v. Johnstone, 3 Ves. 198, 202 ; The 
 Friendschaft, 3 Wheaton, R. 14 ; Ommany v. Bingham, cited 5 Ves. jr. 
 756, 757, 765. 
 
 3 Ibid. 
 
 4 Vattel, B. 1, ch. 19, ^ 217 ; The Indian; Chief, 3 Rob. 13, 27 ; The 
 Josephine, 4 Rob. 20. 
 
 5 Ibid. 
 
 6 Vattel, B. 1, ch. 19, ^ 218 ; Dr. Leiber's Encyc. Araer. art. Domicil.
 
 CH. ni.] NATIONAL DOMICIL. 63 
 
 ral conclusion may be deduced, that domicil is of three 
 sorts ; domicil by birth, domicil by choice, and domicil 
 by operation of law. The first is the common case of 
 the place of birth, domieilium originis ; the second is 
 that, which is voluntarily acquired by a party, proprio 
 marie. The last is consequential, as that of the wife 
 arising from marriage.^ 
 
 1 Pothier, Cout. d'Orlfians, ch. 1, art. 12. — Whoever wishes to make 
 more extensive researches upon this subject, may consult Denizart's Dic- 
 tionary, art. Domicil; Encyclop6die Moderne, Tom. 10, art. Domicil; 
 Merlin, Repertoire, Domicil; 2 Domat (by Strahan,) p. 484 ; Lib. 1, tit. 
 16, ^ 3, of Public Law ; Dig. Lib. 50, tit. 1, per tot. ; Cod. Lib. 10, tit. 
 30, 1. 2, to 1. 7 ; Voet. ad Pandect. Lib. 5, tit. 1, ^ 90 to § 92 ; Bynker- 
 shoek, Qusest. Priv. Juris. Lib. 1, ch. 11, and the authorities cited in 
 Dr. Lieber's Encyclopedia Americana, Domicil; Henry on Foreign Law, 
 Appendix A, on Domicil, p. 181, &c. to p. 209.
 
 64 CONFLICT OF LAWS. [cH. IV. 
 
 CHAPTER IV. 
 
 CAPACITY OF PERSONS. 
 
 § 50. We now come to the consideration of the ope- 
 ration and effect of foreign laws, in relation to persons, 
 and their capacity, state, and condition.^ 
 
 § 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.^ They are by them divided into two 
 
 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. 
 jEtatem, 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, 296. — 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, 
 R6pert. Statut. Pothier enumerates among personal laws, those respect- 
 ing the paternal power, the guardianship of minors, and their emancipa- 
 tion, the age required to make a will, and the marital authority. Pothier, 
 Cout. d'0rl6ans, introd. ch. 1, art. 6. See, also, Rodenburg, De Div. 
 Stat. tit. 2, ch. 5, ^ 10; 2 Boullenois, App. 48. Le Brun enumerates 
 among personal statutes those respecting majority, legitimacy, guardian- 
 ship, and the paternal power. Le Brun, Traite de la Communaute, 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.
 
 CH. IV.] CAPACITY OF PERSONS. 65 
 
 sorts ; those wMch are universal, and those which are 
 special. The former (universal laws) regulate univer- 
 sally the capacity, state, and condition of persons, such 
 as their minority, majority, emancipation, and power of 
 administration of their own affairs. The latter (special 
 laws) 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 foreign jurists to be 
 of absolute obligation everywhere, when they have 
 once attached upon the person by the law of his do- 
 micile 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 per- 
 sonal, whether universal or particular, extend them- 
 selves everywhere ; that is to say, a man is everywhere 
 deemed in the same state, whether universal or parti- 
 cular, by which he is affected by the law of his domicil. 
 Ces loix ijersonelles affectent la iiersonne cViine qualite, qui 
 lid est inherente, et la personne est telle partoiit? And 
 
 1 See Henry on Foreign Law, 2, 3 ; 1 Froland, Mem. ch. 5, p. 81. 
 
 2 How extensively this rule may operate, may be readily understood by 
 simply referring to the different ages at which majority is attained in dif- 
 ferent countries. By the civil law full age was not attained until twenty- 
 four. By the old law of France ihe 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 stiir twenty-five. 1 Burge, Comm. on 
 Col, and For. Law, P. 1, ch. 4, p. 113, 114, 115 ; post, ^ 66, note, ^ 90. 
 
 3 1 Boullenois, Prin. G6n. p. 4. 
 
 6*
 
 66 CONFLICT OF LAWS. [CH. IV. 
 
 again, — Les loix piires persojtnelies, soit personnelks imi- 
 verselles, soit personnelles jpatiiculwres, se portent par tout ; 
 c^est a dire, que Vhomme est partotit de Vetat, soit universel, 
 soit payiiciilier, dont sa personne est affectee par la hi de 
 son domicil} JOetat personnel du domicil se forte partout. 
 Hdbilis vel inhaUUs in loco domicilii, est kahilis vel inhahilis 
 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 condi- 
 tione Jiominwii quceritiir, uno solummodo judid, et quidem 
 domicilii, universum in Hid jus sit attnbutum? 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. Ilinc status et qualitas persona 
 regittir a legihus loci, cui ipsa sese per domiciliiim suhjecit.^ 
 Quando lex in personam dirigitur, respiciendum est ad leges 
 illius civitatis, qim personam Jidbet siibjectam.^ 
 
 § 51 a. Froland, Bouhier, Rodenburg, Paul Voet, Po- 
 thier, and others, lay down a similar rule.^ Froland 
 
 1 1 Boullenois, Prin. Gen. 10, 18, p. 4, 6 ; Observ. 4, 10, 12, 14, 46. 
 8 Boullenois, Dissert, sur Quest, de Contrariety des Loix, edit. 1732, 
 Disc. Prel. p. 20, Regie, 10. 
 
 3 Rodenburg, De Div. Stat. tit. 1, ch. 3, § 4 to § 10 ; 1 Boullenois, 
 p. 145, 146 ; Id. Obs. 14, p. 196 ; 2 Boull. App. p. 789. 
 
 4 Hertius, De CoUis. Leg. ^ 4, n. 5, p. 122 ; Id. p. 173, 174, edit. 
 1716. 
 
 5 Id. ; Id. n. 8, p. 123 ; Id. n. 12, p. 128 ; Id. p. 175 ; Id. p. 182, edit. 
 1716. 
 
 C 1 Froland, M6m. 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. 0, p. 137, 138 ; Henry on For. Law, ch. 4, p. 34 ; Pothier,
 
 CH. IV.] CAPACITY OF PERSONS. 67 
 
 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 ; hut its provisions 
 follow the party, and accompany his person, in every 
 place, where he goes to contract ; and it extends over 
 all his property (Mens) under whatever customs it may 
 be situated ; M qiHelle infliie siir tons ses Mens sons qiiel- 
 ques coutumes, qiCUs soient assis} Bouhier adopts the very 
 rule of BouUenois ; Qiiand le statiit ijcrsonml du domicil 
 est en cmiciirrence avee le statiit personnel de la situcdion des 
 Mens celid du domicil dont Vemporter sur celid de la situation 
 des liens? 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 be- 
 come 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 faiit done tenir pour con- 
 stant, que la capacite on Vincapacite, que la loi du domicil 
 a imprimee sur la p)ersonne la suit en tons lieux. En sorte 
 que ce seroit inutilement, cque etant incapaUe au lieu de sa 
 residence, elk voiidroit alter contraeter dans nn endroit, ou 
 il auroit ete capalle, si elle y avoit ete domieiliee? Abra- 
 ham a, Wesel uses language equally strong ; Quoties- 
 
 Introd. Gen. Cout. d'0rI6ans, 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 Foe- 
 lix, Revue Etrang^re etFrancaise, &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 1 Froland, Mem. ch. 7, ^ 2, p. 156 ; Id. ch. 5, ^ 4, p. 89 ; Tost, ^ 84. 
 
 2 Bouh. Cout. de Bourg. ch. 23, ^ 91 to 96, p. 461 ; Id. ch. 22, ^ 4 to 
 14, ^ 19. 
 
 3 Bouhier, Cout, de Bourg. ch. 24, ^ 11, p. 463.
 
 68 CONFLICT OF LAWS. [CH. IV. 
 
 cunqiie mini de hdbilitate atque inhabilitate personam qiiceri- 
 tur, toties domicilii leges et statida siKctanda, ut qiiocumqiie 
 persona alecd, id jus sit, quod judex domicilii stcduerit ; ^ 
 and he applies the rule equally to movable and immov- 
 able property.^ Pothier says, that personal statutes 
 exert their power upon the persons in relation to their 
 property (Mens) wherever it may be situated ; Au reste, 
 ces stcdids inrsonmls exercent leiir empire sur les jjcrsonnes 
 par rappoH a tons lair hieiis, qiielqiie part, qu'ils soient 
 sitiies,^ Rodenburg says ; Quociimqiie modo se casus 
 hahierit, contrahentium erit respicere ad sumn cujusque 
 domicilii locum, impressam ibidem personce qiialitatem, aid 
 adeptam domi conditionem cujus ignanis non sit oportet, 
 qui cum alio void conirahere. Quare HoUandice, incola ma- 
 jor Ultrajecti, minor apud suos, contraUt apud nostrates 
 invalid^. Contra JJltraj ectinus lege domicilii major contra- 
 Ut in HollandicB efficaciter ; ut maxime ex more regionis 
 istius rerum suanmi necdum hahentur compos."^ Stock- 
 mannus holds equally strong language; JJnde recte, 
 eum, qui inhaUlis est in uno loco, ctiam in alio inhaUlem 
 cemeri ; et si cditer statuamus, incertus et variiis erit per- 
 sonarum status ; cum tamen idi personam idique candem, 
 ita qualitatem personce inha^rentem, velut ejus accidem, 
 uhique uniformem esse convenicd? Merlin has expressed 
 it in equally comprehensive terms/ saying, that the 
 
 1 Wesel, Com. ad Novell. Constit. Ultraj. art. 18, ^ 23, p. 169, 170. 
 
 2 Id. § 25, 27, p. 170, 173 ; Liverm. Diss. ^55, p. 56. 
 
 3 Pothier, Introd. G6n. aux Cout. d'Orleans, ch. 1, art. 7 ; Post, § 69. 
 '1 Rodenburg, De Diversit. Statut. tit. 2, ch. 1, § 2 ; 2 Boullenois, App. 
 
 p. 11. 
 
 5 Stockmann. Decis. 125, ^ 6, p. 262, cited also 1 Boullenois, Observ. 
 6, p. 131 ; Liverm. Dissert. ^ 22, p. 35. See also Abraham a Wesel, 
 Comment, ad Nov. Constit. Ultraject art. 13, n. 24, 25, p. 170 to p. 172; 
 Liverm, Dissert. § 55, p. 56. 
 
 6 Merlin, Repert. Stat. ; Id. Majorite, ^ 5 ; Id. Autorisation Maritale,
 
 II. IV.] CAPACITY OF PERSONS. 69 
 
 law of the clomicil, as to majority or minority, governs 
 in respect even to property (Mens) situate in another 
 territory.^ 
 
 § 51, 1}. Paul Yoet, on the other hand, speaks in far 
 more qualified language, and lays down several rules 
 on the subject. (1.) That a personal statute only 
 affects the subjects of the state or territory wherein it is 
 promulgated, and not foreigners, although doing some 
 business there. Stakdiim ^^ersoncUe tantwn afficit siihditos 
 territorii, uU staMum conditmn est ; non aidem foremes, 
 lied ihidem cdiqidd agentesr (2.) That as a personal 
 statute does not affect a person out of the territory, it 
 cannot therefore be reputed to be the same without the 
 territory, as it is within. SMidimi personale non afficit 
 persotiam extra territoriimi ; sic id pro tali non repidetur 
 extra territoriim, qiialis erat intra? (3.) That a personal 
 quality cannot be added out of the territory to a person 
 not a subject. Personalis qiialitas non potest extra tcrri- 
 torimn addi personce non siibJectcB.^ (4.) A personal sta- 
 tute accompanies the person everywhere, in respect to 
 property {Mens) situate within the territory of the state, 
 where the person affected by it has his domicil. Statu- 
 timi personate uhique hconmi personam comitatiir, in ordine 
 ad hona intra territoriimi statuentis sita, uU persona qfccta 
 domiciliwn lialet? We shall also presently see, that he 
 distinguishes between the effect of a personal statute 
 upon movable, and its effect upon immovable property.^ 
 
 ^10. — The like rule is maintained by Burgundus, Stockmans, and 
 D'Argentr6, as to personal property and covenants. See Liverm. Diss, 
 p. 34, 35,50 ; Merlin, R6pert. Majorite, ^ 5 ; Id. Autorisation Maritale, 
 § 10. 
 
 1 Merlin, R6peit. Majority, ^ 5, edit. Brux. 1827, p. 189. 
 
 2 Voet, de Stat. ^ 4, ch. 2, p. 137, edit. 1661. 
 
 3 Ibid. 4 Id. p. 138. 
 5 Id. p. 138. 6 Post, ^ 52.
 
 70 CONFLICT OF LAWS. [CH. IV. 
 
 § 52. The result of the doctrine maintained by the 
 jurists above named, except Paul Voet, is, that a per- 
 son, who has attained the age of majority by the law 
 of his native domicil, is to be deemed everywhere the 
 same, of age ; and, on the other hand, that a person 
 who is in his minority by the law of his native domicil, 
 is to be deemed everywhere in the same state or condi- 
 tion.^ Thus, for example, if by the law of the place 
 of his original domicil a person cannot make a will of 
 his property, before he is twenty-one years of age, he 
 cannot, if under that age, make a valid will, even of 
 such property as is situate in a place, where the law 
 allows persons of the age of fourteen years to make a 
 will of the like property.^ So, if by the law of her 
 original domicil a married woman cannot dispose of her 
 property, except with the consent of her husband, she 
 is equally prohibited from disposing of her property 
 situate in another place, where no such consent is requi- 
 site.^ Many jurists apply this doctrine indiscriminately 
 to movable, as well as to immovable property. Thus, 
 BouUenois says ; " If a man has immovable property, 
 situate in a place, where the age of majority is fixed 
 at twenty-five, and by the law of his own domicil he is 
 of age at twenty, he may at twenty sell or alienate 
 such immovable property. On the other hand, if by 
 the law of the place, where the immovable property is 
 
 1 1 Boullenois, p. 103, &c. ; 1 Burge, Comment, on Col. and For. 
 Law, P. 1, ch. 4, p. 113 to p. 135. 
 
 2 Pothier, Cout. d'Orleans, ch. 1, art. 7 ; 1 Boullenois, Prin. Gen- 19, 
 p. 7 ; Id. Observ. 16, p. 205 ; 1 Froland, M6m. ch. 7, p. 156 ; Bouhier, 
 Cout. de Bourg. ch. 22, ^ 5 to ^ 11 ; ch. 24, ^ 7 to ^ 13 ; Merlin, R6pert. 
 Majorite, ^ 5 ; Id. Autorisation Maritale, ^ 10 ; Rodenburg, De Divers- 
 Statut. tit. 2, ch. 1, § 1 ; 2 Boullenois, App. p. 11. 
 
 3 Ibid. ; Henry on Foreign Law, ^ 1, p. 31.
 
 CH. IV.] CAPACITY OF PERSONS. , 71 
 
 situate, he is of age at twenty, but Iby the law of his 
 domicil not until twenty-five, he cannot sell or alienate 
 such property, until the age of twenty-five." ^ But 
 other jurists distinguish between movable and immova- 
 ble property, applying the law of situs to the latter, 
 and the law of the domicil to the former.^ Paul Voet 
 insists throughout upon this distinction ; and holds, 
 that no personal statute extends to immovable property 
 situate elsewhere. JVon tamen statutum ijersonale sese 
 rcgiilariter extendet ad hona immoUlia, aliU sita? But he 
 admits, that such a statute will apply to movable pro- 
 perty, upon the ground, that, wherever it may be situ- 
 ate, it follows the domicil of the owner. Qiiin tamcn 
 ratione moUlium, iibicunqiie sitonmi, domicilium seu perso- 
 nam domini seqiiajmir, ut tamen spectentitr hca, quo desti- 
 nata, nullus iverit inficias ; idqiie pyropter expressos textus 
 juris civilis, qiiihis moUlia certo loco non alligantur, verimi 
 secundum juris iniellectmn personam comitari, eique adhcerere 
 judicantur ; id quod etiam mores uUque loconim sequimtitrJ^ 
 Burgundus holds the same opinion ; Conseqiienter ca, 
 qucB sunt personalia, una cum 'persona circumferuntur, quo- 
 ciimque loco se transtulerit, et per universa territoria, vires- 
 que et effectum porrigunt. Realia situm rerum sic spectant, 
 ut territorii limites non excedant ; quia relus ipsis sunt 
 affixaP Many other jurists maintain the same distinc- 
 
 1 Boullenois, Dissert, des Quest, do la Contrar. des Loix, Quest. P= p. 
 19, 20 ; Basnage, Coutum. de Normand. torn. 2, art. 431, p. 243. See 
 also Merlin, R6pert. Majority, ^ 4, 5. 
 
 2 Voet, Burgundus, Stockmans, and Peckius, cited in Merlin, Repert. 
 Majority, ^ 5, p. 189, edit. 1827 ; Ante, ^ 52 a. 
 
 3 P. Voet, ad Statut. ^ 4, ch. 2, n. 6, p. 138, edit. 1661 ; Id. ch. 3, 
 n. 4, p. 148. 
 
 4 P. Voet, ad Statut. § 4, ch. 2, n. 9, p. 139, 140, edit. 1661. 
 
 5 Burgundus, Tract. 1, ^ 3, p. 15.
 
 72 . CONFLICT OF LAWS. [CH. IV. 
 
 tion ; ^ but it needs not be here further insisted on, as 
 it will hereafter come more fully under our considera- 
 tion. 
 
 § 53. The doctrine, as to the nature and operation of 
 personal statutes, thus asserted by foreign jurists, even 
 with the distinction in its application between movable 
 property and immovable property, is found attended 
 with many difficulties ; and many of these jurists are 
 compelled to make exceptions in its application, which 
 go far to limit, if not to impair, its real force and effi- 
 ciency.^ Indeed, the language held by some of them 
 on this subject has not always such a precision, as to 
 its actual extent and operation, as to free the mind 
 from all doubt in regard to the true meaning. Merlin 
 says ; ^ " The law of the domicil governs the state of 
 the person and his personal capacity or incapacity. It 
 also governs personal actions, movables, and movable 
 effects, in whatever place they may in fact be situated. 
 The power of the law of the domicil extends ever}^- 
 where, to every thing within its reach or jurisdiction ; 
 so that he, who is of a majority by the law of his domi- 
 cil, is of the age of majority everywhere. The law of 
 the place where the property (Mens) is situate, regulates 
 the quality and disposition of it. When the law of 
 the domicil, and that of the situation, (situs) are in 
 conflict with each other, if the question is respecting 
 the state and condition of the person, the law of the 
 domicil ought to prevail ; if it is respecting the dispo- 
 
 ' See J. Voet, Stockmannus, and Peckius, cited Post, ^ 54, and ] 
 Boullenois, Ohserv. 4, p. 57 ; Id. Obs. G, p. 131 ; Sandius, Lib. 4, tit. 
 8, Definit.7, p. 104. 
 
 2 See Livermore, Diss. p. 62 to 106. 
 
 3 Merlin, R6pert. Statut. See also Id. Majority, ^ 5 ; Id. Autorisation, 
 Maritale, «^ 10.
 
 CH. IV.] CAPACITY OF PERSONS. 73 
 
 sition of property, (hiens,) the law of the place, where 
 they are situate, is to be followed." ^ "If several real 
 statutes are found in conflict with each other, each one 
 has its own effect upon the property {hiens) which it 
 governs." ^ Now, this language of Merlin is in some 
 parts sufiiciently broad to cover movable property, as 
 well as immovable property ; and yet it is very clear, 
 that the disposition of movable property, and the capa- 
 city to dispose of it, are by many foreign jurists, and 
 by Merlin himself, held to be governed by the law of 
 the domicil of the owner, according to the maxim, that 
 movables follow the person; Mobilia seqiiimtiir perso- 
 nam? What, perhaps. Merlin intends here to assert, 
 may be, that where a person is incapable by the law of 
 his domicil, he cannot dispose of any of his property 
 situate elsewhere, the incapacity extending even to 
 places where he is not domiciled, and where, by the 
 local law, he would otherwise have capacity to dispose 
 of it. But that, where a person is capable by the law 
 of his domicil, and the question does not respect his 
 personal capacity to dispose of property, but only the 
 extent to which it may be exercised by persons who 
 are capable, there the law of the place, where it is 
 situate, will govern.^ Yet he would seem also to inti- 
 mate, that there is or may be some distinction between 
 personal property and real property, (between movables 
 
 1 Merlin, Repert. Statut. See also Id. Majority, § 5 ; Id. Autorisation, 
 Maritale, ^10. 
 
 2 Ibid. 3 Ibid. 
 
 4 Pothier, Cout. d'Orl«ians, ch. 1, art. 7; 1 Boullenois, Prin. Gen. 16, 
 p. 7 ; Id. Observ. 19, p. 338, &c. ; Rodenburg, ch. 3, ^ 4, 9, 10, p. 7 to 
 9 ; Id. ch. 2, p. 6 ; Voet, de Stat. ^ 7, ch. 2, p. 125, ^ 8 ; Pothier, De 
 Choses, P. 2, § 3 ; Livermore, Dissert. 82. 
 
 CONFL. 7
 
 74 CONFLICT OF LAWS. [CH. IV. 
 
 and immovables,) as to the effect of the operation of the 
 lex domicilii} 
 
 § 54. In another place, Merlin lays down the rule, 
 that a law, which declares a person a major or a minor, 
 who is born within its reach of jurisdiction, is personal, 
 and extends to property (hiens) situate out of the terri- 
 tory ; or, in other words, that a statute respecting major- 
 ity, full and entire, is personal and extends to property 
 ihiens) situate out of the territory. Le statiit de la majo- 
 rite pleine ct entiere est personnely et ietend aux Mens siiues 
 hors de son ierritoire?' Thus, if by the law of the place, 
 where a person has his domicil, he is of majority at the 
 age of twenty, and has the faculty of disposing of his 
 property, situate there, the same faculty will extend to 
 his property, situate in another country, where he 
 would not be capable of alienating until he was twenty- 
 five years of age. And he applies this doctrine equally 
 to movables and immovables.^ He admits, that the 
 Voets, Burgundus, Stockmans, and Peckius, while they 
 deem such a law to be personal, insist, that it does not 
 extend to the disposal of immovables, situate in a 
 foreign country, where a different rule, as to capacity 
 or majority prevails.'* Merlin in another place says j 
 
 1 See Merlin, Repert. Majoiit6, \ 5, p. 188, 189, edit. Brux. 1827. 
 
 2 Ibid. 3 Ibid. 
 
 4 See Merlin, Rupert. Majority, ^ 5, edit. Brux. 1827, p. 188 ; Id. Au- 
 torisation Maritale, ^ 10. I do not find the citations from some of these 
 authors accurately given by Merlin. But I believe, that the following 
 will be found to verify his statement. J. Voet, ad Pandect, Lib. 4, tit. 4, 
 n. 8, Lib. 23, lit. 2, n. 60, n. 136 ; P. Voet, ad Statut. % 4, ch. 3, n. 10, 
 p. 153 ; Burgundus, Tract 1, n. 5, 6, 7, 8 ; Peck. De Testam. Conjug. 
 Lib. 4, ch. 28, Introd. n. 5, 6, 7 ; Stockmans, Decis. 125, ^ 6, 9, p. 262, 
 263 ; Christin. Tom. 2, Decis. 56, § 12 ; Livermore, Dissert. § 47 to 52, 
 p. 50 to 54. Immobilia (says P. Voet) statutis loci, ubi sita ; mobilia loci 
 slatutis, ubi testator habuit domicilium. P. Voet de Statut. ^ 4, ch. 3, n.
 
 CH. IV.] CAPACITY OF PERSONS. 75 
 
 "If the law of the domicil declares a person incapable 
 to sell, aliene, contract, or to bind himself in any manner 
 to another, it is impossible, that his immovables, in 
 whatever country they may be situated, can be aliened, 
 bound, or hypothecated by him. Who has ever doubt- 
 ed, that the interdiction pronounced against a prodigal, 
 or a madman, by the judge of his domicil, was an obstacle 
 to the alienation of his property (Mens) which is situate 
 within the reach of another jurisdiction ? Who has ever 
 doubted, that the tutor, (guardian,) named by the judge 
 of the domicil, has the right to administer the property 
 (Mens) which is within the territory of another judge?" ^ 
 This is very bold and uncompromising language ; but 
 it will be very difficult to sustain it without many quali- 
 fications. It may be added, that the modern Civil Code 
 of France expressly declares, that the laws concerning 
 the condition and capacity of persons govern French- 
 men, even if residing in a foreign country.^ In the 
 progress of our inquiries, it will be found, that many 
 exceptions are admitted to exist, as to the operation of 
 personal laws, and that the practice of nations by no 
 means justifies the doctrine in the extent to which it is 
 ordinarily laid down by many foreign jurists. 
 
 § 54 a. John Voet, on the other hand, is one of the 
 few jurists, who insist, that personal statutes of aU 
 sorts, respecting capacity or incapacity, majority or 
 minority, legitimacy or illegitimacy, have no extra- 
 territorial operation, either directly or consequentially. 
 
 10, p. 153, edit. 1661. Again he adds; Quid circa successionem. Spec- 
 tabitur loci statuta ubi immobilium sita, non ubi testator moritur. Id. § 9, 
 ch. 1, n. 3, p. 305. See 1 Burge's Comment, on Col. and For. Law, 
 P. l,ch. 3, ^ 3, p. 118 to 129. 
 
 1 Merlin, R6pert. Autorisation Maritale, ^ 10, art. 2. 
 
 2 Code Civil of France, art. 3 ; Post, ^ 68.
 
 76 CONFLICT OF LAWS. [CH. IV. 
 
 Verlus est (says he) personalia non magis quam realia 
 territorimn statuentis posse excedere, sive diredo, sive per 
 conseqiientiam} And he goes on to add : Ita ncc ratio 
 idla est, cur magis qiialitas et haUlitas privato per statutiim 
 data vel denegata, vires extenderet per ea loca, in qidhus 
 diversimi qidd aid contrarium circa personariim qiialitatem 
 lege caidiim est. Quod, si hcec cidquam minus videantur 
 siifflcere, is velim mild rationem modumve expediat, per 
 quern legislator personam, domicilii intuitu siU supijositam, 
 liahilem inhaUlenive ad actus gerendos declarans, aUerius 
 loci legislatorem, potestate parem cogeret, id is alienis decre- 
 tis statidisve pareret, aid rata irritave haleret, quce judex 
 domicilii talia essejussit in persona domiciliwn,illic fovente ; 
 maxime, si fateatur {id fateri necesse est) pari in parem 
 mdlam competere cogendi potestatem. Exj^onat, ohsecro, 
 prodigo declarato, vel in/amid notato, vel legitimato, vel in 
 ipso pidjertatis tempore Jiahili ad testamentmn condendum 
 declarato per magistratum Hollandum, ac JJltrajectmn se 
 conferente vel immohilia possidente ; exponat inqiiam, qua 
 juris via magistratus. Ultrajectinus adstringi posset, id 
 istum rations honorum, in TJltraj ectino solo sitorum,pro tali 
 agnosceret ; adeoqiie contractus prodigi Hollandici haleret 
 irritos ; dignitates Hollando infamato denegaret ; succes- 
 sionem in bona Trajectina ad spuriwn Hollandum Icgitima- 
 tum pertinentia, tanquam in legitime nati patrimonium, 
 pateretur proximis dcferri ; testamentmn masculi, ante an- 
 num cetaiis octavum decimentum conditum, jideret ratimi 
 esse.^ 
 
 § 55. Hitherto we have been considering cases of 
 the capacity or incapacity of persons, arising from the 
 domicil of origin, where there has been no subsequent 
 
 ' Voet. ad Pand. Lib. 1, tit. 4, ^ 7, p. 40. 2 Ibid.
 
 CH. IV.] CAPACITY OF PERSONS. 77 
 
 change of domicil ; as to which, as we have seen, the 
 doctrine of foreign jurists is, that the law of the original 
 domicil is to prevail, as to such capacity or incapacity ; 
 some of them holding, that it applies to all personal 
 acts whatever, and to all alienation of property, whether 
 movable or immovable ; and others apply it only to 
 personal acts and movable property, where there is a 
 conflict of personal laws. But, suppose, that a person 
 has had different domicils, a domicil by birth, and a 
 subsequent domicil by choice, when he is sui juris, 
 which is to prevail, as to his capacity or incapacity ? ^ 
 Hertius does not hesitate to say, that the law of the 
 new domicil is to prevail. Hinc status ct qiialitas per- 
 sonce regitur a legibus loci, (says he,) ciii ipsa sese per 
 domicilium siibjecit. Atqtie inde etiam fit, lit quis major hie, 
 alibi, mutato scilicet domicilio, incipiat fieri minor? The 
 like opinion appears to be held both by Paul Voet and 
 by John Voet.^ The former says ; Nullum statiitiim, sive 
 in rem, sive in personam, si de ratione juris civilis sermo 
 instituatur, sese extendit idtra statuentis territoriiim.^ The 
 latter holds, that the change of domicil of a person 
 gives him the capacity or incapacity of his new domicil ; 
 so that, if he is of majority by the law of the place of 
 his birth, and he removes to another country, by whose 
 laws he would, according to his age, be a minor, he 
 
 1 See on this subject, 1 Burge, Comment, on Col. and For. Law, P. 1, 
 ch. 3, ^ 3, p. 102 to p. 106 ; Id. ch. 4, p. 113 to p. 125. 
 
 2 1 Hertii Opera, \ 4, n. 5, p. 122 ; Id. n. 8, p. 123 ; Id. p. 173, 175, 
 edit. 1716. 
 
 3 2 Boullenois, App. p. 57; Merlin, Repert. Majority, § 4, edit. Brux. 
 1827, p. 186 ; Merlin, Rep. Retroactif, ^ 3, art. 9, n. 3 ; P. Voet, de 
 Stat. ^ 4, ch. 2, n. 6, p. 137, 138 ; Rodenburg, De Div. Stat. p. 2, ch. 1, 
 § 5, 6 ; J. Voet, ad Pand. Lib. 4, tit. 4, n. 10 ; 1 Boullenois, Observ. 4, 
 p. 58. 
 
 4 P. Voet, ad Statut. ^ 4, ch. 2, n. 7, p. 138, edit. 1661. 
 
 7*
 
 78 CONFLICT OF LAWS. [CH. IV. 
 
 will acquire the character of his new domicil. Si qids 
 ex lege domicilii derelicti anno forte vicesimo completo major 
 f actus fuerit, translato domicilio ad locum ilium, ubi non nisi 
 ahsohdo viginti qiiinque annorum cv.rricido quisqiie major 
 liabetur, non dulitem quin ex novi domicilii jura incipiat 
 iteruni minorennis esse? 
 
 § 55 a. Froland thinks this question cannot be an- 
 swered universally; and he puts a distinction. "If" 
 (says he) " the question is purely as to the state of the 
 person, abstracted from all consideration of property, or 
 subject-matter, (abstracts ah omni materia reali^ in this 
 case the law, which first commenced to fix his condi- 
 tion, (that is, the law of the domicil of his birth,) will 
 preserve its force and authority, and follow him wher- 
 ever he may go. Thus, if by the law of the domicil of 
 his origin a person attains his majority at twenty years, 
 and he goes to reside in another place, where the age 
 of majority is twenty-five years, he is held to be of the 
 age of majority everywhere ; and, notwithstanding he 
 is under twenty-five years, he may in his new domicil 
 sell, aliene, hypothecate, and contract, as he pleases, and 
 vice versa." ^ " But " (he adds) " when the question is 
 as to the ability or disability of a person, who has 
 changed his domicil, to do a certain thing, [a /aire line 
 certain chose,) then that, which had governed his power, 
 (that is, the law of his original domicil,) falls, and fails 
 entirely in this respect, and yields its authority to the 
 law of his new domicil. Thus, if a married woman, by 
 the law of the country of her birth, is not allowed to 
 
 1 1 J. Voet, ad Pand. Lib. 4, tit. 4, n. 10 ; Id. Lib. 5, tit. 1, n. 101. 
 
 2 Froland, M6m. ch. 7, ^ 13, 14, p. 171 ; Post, ^ 138, note. See 2 Boul- 
 lenois, Obs, 32, p. 7 to p. 11; Bouhier, Cout de Bourg. ch. 22, ^ 4 to 
 § 10.
 
 CH. IV.] CAPACITY OF PERSONS. 79 
 
 pass property by will, without the consent of her hus- 
 band, and she acquires a new domicil in another coun- 
 try, where no such restriction exists, she has full liberty 
 to dispose of her property in the latter country by will, 
 without the consent of her husband ; and vice versa} 
 This is a very nice, if it be not in many cases an evan- 
 escent, distinction ; and Froland admits, that a different 
 doctrine is held by many jurists.^ But he is not singu- 
 lar in his opinion of the value and importance of this 
 distinction.^ BouUenois has given to it a qualified sanc- 
 tion.^ Bouhier also cites the same distinction with ap- 
 probation, declaring it to be judicious j and he insists, 
 that in case of a transfer of the domicil, the law of the 
 original domicil ought in all cases to regulate the per- 
 sonal capacity ; and he enlarges on the subject with 
 much ability.^ 
 
 § 56. On the other hand, Burgundus does not hesi- 
 tate to hold, that the law of the new or actual domicil 
 ought to prevail. After citing the opinion of Baldus 
 and Gail and Imbertus, that the state of the person is 
 to be decided by the place of his domicil ; Ideo, si sta- 
 tus personce inspici deheat, diimtaxat rationem haheri Baldus 
 existimat, cujus opinionem Andreas Gail et Imlertus am- 
 
 1 1 Froland, M6m. ch. 7, ^ 15, p. 172 ; Post, § 138, note. 
 
 2 Ibid. BouUenois remarks on this distinction of Froland, that it con- 
 tains some truth mixed up with much obscurity, and embarrassed with 
 ideas, liable to contradiction, without being answered. 2 BouUenois, Ob- 
 serv. 32, p. 8, 9. 
 
 3 See Rodenburg, De Div. Stat. tit. 2, ch. 1, 2, 3, 4, tit. 3, ch. 1, 2, 3, 
 4, tit. 4, ch. 1, 2, 3, 4 ; 2 BouUenois, App. p. 1 to p. 33 ; Id. p. 71 to 
 p. 79 ; Id. p. 84 to p. 95 ; 2 BouUenois, ch. 1, Obs. 32, p. 1 to p. 53 ; Mer- 
 lin, Rupert. Effet Retroactif, ^ 3, p. 2, art. 5, n. 3, edit. Brux. 1827, 
 p. 18 to p. 15 ; Id. Majority, \ 4, p. 186, 187. 
 
 4 2 BouUenois, Observ. 32, p. 7 to p. 11. 
 
 5 Bouhier, Cout. de Bourg. ch. 22, § 4 to § 10; Id. § 22, cited Merlin, 
 Rupert. Autorisation Maritale, § 10, art. 4, edit. Brux. 1827, p. 243.
 
 80 CONFLICT OF LAWS. [CH. IV. 
 
 plediintiir ; adeo ego, (he adds,) nid ex privilegio vel longk- 
 mio usu aliud sit introductum Proinde ut sciamus uxor in 
 potestate sit mariti necne, qua estate minor contraliere posset, 
 et ejusmodi, respicere oportet ad legem cujiisque domicilii, 
 Hwc enini imprimit qualitatem personce, atque adeo naturam 
 ejus afficit, ut quocumque terrarum sit transitura, incapaci- 
 tatem domi adeptam non aliter qiiam cicatricam in corpore 
 foras circumferat. Consequenter dicemus ; si inutaverit do- 
 micilium persona, novi domicilii conditionem induere.^ Ro- 
 denburg is of the same opinion, upon the ground, that 
 the state and condition of the person is wholly govern- 
 ed by the law of his actual domicil ; and when that is 
 changed, his state and condition change with it ; Perso- 
 nce enim status et conditio cum tola regatur a legihus loci, 
 cui ilia sese per domiciliim suhdiderit, utique mutato domici- 
 lio, mutari et necesse est personce conditionem.^ And he ap- 
 plies the rule indiscriminately to the case of minors and 
 to the case of married women.^ D'Argentre is also of the 
 same opinion, and says ; Quotiescunque de haUlitate ant in 
 habilitate personam quwratitr, toties domicilii leges et statuta 
 spectanda. Ratio est, quia He dbstractu de haUlitate 'per- 
 sona, et universali ejus statu quceratur, ideoque personce a 
 foro domicillii afficiatur. Nam originis locus nusquam in 
 foro co?isiderationem hahet, cum aliud domicilium prohoniturJ^ 
 
 1 Burgundus, Tract 2, n. 5, 6, 7 ; post, ^ 140 a. Cited also in Merlin, 
 R6pert. Effet Rectroactif, ^ 3, p. 2, art. 5, p. 14, Brux. edit. 1827. 
 
 2 Rodenburg, De Div. Stat. tit. 2, P. 2, ch. 1, n. 3 ; 2 Boullenois, Ob- 
 serv. 32, p. 2, 5, 7 ; Id. Appx. p. 56, 57 ; post, ^ 71. 
 
 3 Rodenburg, De Div. Stat. tit. 2, P. 2, ch. 1 ; Id. n. 5, 6 ; 2 Boulle- 
 nois, Observ. 32, p. 2, 5, 7, 8 ; Id. Appx, p. 56, 57 ; post, ^ 71. 
 
 < D'Argentr6, De Leg. Briton, art. 218, n. 47, 49 ; 1 Boullenois, Obs. 
 4, p. 53 ; post, ^ 84. Yet, though the language of D'Argentr6 is thus 
 explicit, Bouhier seems to suppose, that he aided his own opinion, because 
 he has added in another place : Affecta quocunqe modo persona domicilii 
 lege, aut jure, eo perpetuo sic tenetur, ut ne ulla mutations loci sese pos-
 
 CH. IV.] CAPACITY OF PERSONS. 81 
 
 § 57. Boullenois (whose opinions will" be stated more 
 fully hereafter) ^ admits the general principle to be, as 
 Rodenburg states it, and asserts, that the whole world 
 acknowledges, that the state of the person depends on 
 his actual domicil, and that the natural consequence is, 
 that if a person changes his domicil, and the law of the 
 new domicil is contrary to that of the old one, the state 
 and condition of the person change accordingly.^ But 
 then he insists, that it is necessary to make a distinc- 
 tion between the states and conditions of persons, which 
 arise from laws {droits) founded in public reasons, admit- 
 ted by all nations, and which have a cause absolutely 
 unconnected with domicil, so that the moment a man is 
 affected with these states and conditions, the original 
 domicil not having any influence upon them, the new 
 domicil ought not to have any, but merely the public 
 reasons, superior to those of domicil, to which all na- 
 tions pay respect J and other subordinate states and 
 conditions, which are in truth founded in public laws, 
 {droits publics,) but for one nation only, or for certain 
 provinces of that nation.^ Among the former class he 
 enumerates interdiction, or prohibition to do acts, by 
 reason of insanity, or of prodigality, emancipation by 
 royal authority, legitimacy of birth, nobility, infamy, 
 &c. These, he contends, are never altered by any 
 change of domicil ; but that having at first fixed the 
 condition of the person, the change of domicil does not 
 
 sit exercere. Bouhier, Cout. de Bourg. ch. 22, § 9. But it is plain, that 
 D'Argentr6 is here speaking of a mere change of place, without a change 
 of domicil. D'Argentr6, de Leg. Briton, art. 218, § 13, p. G03. 
 
 1 Post, § 71. 
 
 2 2 Boullenois, Observ. 32, p. 10, 13. 
 
 3 2 Boullenois, Observ. 32, p. 10, 11, 13, 19 ; post, ^ 71.
 
 82 CONFLICT OP LAWS. [CH. IV. 
 
 cause them to cease.^ Among the latter class he enu- 
 merates the community of property between husband 
 and wife ; the state of the husband, as to the marital 
 power ; the state of the father, as to real rights of the 
 paternal power, and other subordinate states. These, 
 he contends, sometimes are affected by a change of do- 
 micil, and sometimes are not.^ Some of this last class 
 (he adds) affect the person at least in vim conventionis 
 tacitce ; and this, according to the opinion of a great 
 number of jurists, is the case in respect to the law of 
 the community of property between husband and wife.^ 
 Others of the same class affect the person in vim soUus 
 Ugis ; such is the statute or law, Sencdus consiiltum Vel- 
 Idanum, which prohibits married women from making 
 obligatory personal contracts with others.^ Boullenois 
 himself holds, that the capacity of married women is 
 governed by the law of the actual or new domicil ; ^ 
 but that the capacity of minors is governed by the law 
 of their domicil of birth.^ He also holds, that the pa- 
 ternal power is regulated by the domicil of birth.'' But, 
 here, again, he distinguishes between movable property 
 and immovable property j holding that the law of the 
 
 1 2 Boullenois, Observ. 32, p. 11 ; post, § 71 ; 1 Boullenois, Observ. 4, 
 p. 50, 64. 
 
 2 2 Boullenois, Observ. 32, p. 11, 12, 13 ; post, ^ 71. 
 
 3 2 Boullenois, Observ. 32, p. 11 ; post, § 143 to ^ 171. 
 
 4 2 Boullenois, Observ. 32, p. 11, 13 ; ante, ^ 15 ; post, ^ 71, ^ 425. 
 
 5 2 Boullenois, Observ. 32, p. 13 to p. 19 ; 1 BouU. Obs. 4, p. 61 ; post, 
 §71. 
 
 6 2 Boullenois, Observ. 32, p. 19, 20 to p. 31 ; 1 BouU. Obs. 4, p, 53, 
 54 ; Id. Dissert. Mixtes, Quest. 2, p. 40 to p. 62 ; Id. Quest. 20, p. 406 
 to p. 447. 
 
 7 2 Boullenois, Observ. 32, p. 31 to p. 53 ; 1 Boull.Obs. 32, p. 68 ; 
 post, § 71.
 
 CH. IV.] CAPACITY OF PERSONS. 83 
 
 domicil of birth governs as to the former, and the law 
 of the situation {situs) as to the latter.-"^ 
 
 § 58. Merlin, after citing the opinions of other ju- 
 rists, formerly came to the conclusion, that the law of 
 the place of birth, and not that of the new domicil, 
 ought to govern equally in all these cases, of minority, 
 of paternal power, and of marital power after marriage ; 
 and he expressed surprise, and not without reason, that 
 Boullenois should have attempted to distinguish be- 
 tween them.2 It is certainly not for me to interfere in 
 such grave controversies between these learned jurists, 
 differing from each other, sometimes in leading princi- 
 ples, and sometimes in deductions and distinctions, ap- 
 plicable to principles, in which they agree. Non nos- 
 trum inter vos tantas componere lites. Yet Merlin himself, 
 after having advocated this doctrine, as best founded in 
 principle, although involving some inconveniences, still 
 insisted, that upon such a removal to a new domicil, the 
 capacity of a person to dispose of his movable property 
 by a testament is to be governed by the law of the new 
 domicil; because the state of a person has no influence, 
 as to the distribution of his movable property after his 
 death ; and the capacity to make a will, resulting from 
 age, has nothing in common with what is properly call- 
 ed the state of the person ; which is so true, that his 
 state is governed by the domicil, and the situation de- 
 cides solely concerning the age, at which a person 
 may dispose of movable property upon his death.^ It 
 
 1 1 Boullenois, Obs. 32, p. 32, 33, to p. 53 ; Id. Dissert. Mixtes, Quest. 
 20, p. 406 to p. 447. 
 
 2 Merlin, Repert. Autorisation Maritale, § 10, art. 4, edit. Brux.. 1827, 
 p. 243, 244; post, ^ 139. 
 
 3 Merlin, Repert. Majorite, ^ 4 ; Id. Effet Retroactif, § 3, n. 2, art. 5, 
 n. 3 ; Id. Autorisation Maritale, § 10, art. 4, edit. Brux. 1827.
 
 84 CONFLICT OF LAWS. [CH. IV. 
 
 seems, however, that Merlin has since, upon further 
 reflection, come to a different conclusion ; and he may 
 be now numbered among those, who support the doc- 
 trine, that the law of the new domicil ought to govern 
 in all cases, whether they respect capacity, or minority, 
 or the paternal power, or the marital power after mar- 
 riage.^ 
 
 § 59. Pothier holds the doctrine in the most unqua- 
 lified terms, that the law of the new or actual domicil 
 ought in all cases to govern ; and that the change of 
 domicil discharges the party from the law of his former 
 domicil, and subjects him to that of his new domicil. 
 Le changement de domicile delivre les personnes de V Em- 
 pire dcs Lois du lieu dii domicile, qiCelles qiiittent, et les 
 assvjettit a celles du lieu du noveau domicile, quelles 
 acquierent? Whatever doubts may be suggested of 
 the correctness of his opinion in a juridical sense, it 
 must be admitted to possess the strong recommenda- 
 tion of general convenience and certainty of applica- 
 tion.^ 
 
 § 60. Huberus, instead of relying upon the mere 
 quality of laws, as personal, or real, or mixed, lays 
 down the following doctrine. Personal qualities, im- 
 
 1 See Merlin, Repert. Effet Betroactif, ^ 3, n. 2, art. 5, p. 13, &c., 
 edit. Brux. 1827 ; Id. Autorisation Maritale, ^ 10, art. 4, p. 243, 244 ; Id. 
 Majorite, ^ 4, p. 1S7, 188. See also Id. Testament, § 1, n. 5, art. 1, art. 
 2, p. 309 to p. 324 ; post, ^ 139. 
 
 2 Pothier, Cout. d'0rl6ans, ch. 1, art. 1, n. 13. — We shall presently 
 see, that Lord Stowell holds the opinion, that a change of domicil may 
 change the state and condition of the party ; as, for example, if he be a 
 slave.. See The Slave Grace, 2 Hagg. Adm. R. 94, 113 ; post, ^ 96, 
 96 a. 
 
 3 See 1 Burge, Comment on Col. and For. Law, P. l,ch. 3, §3, p. 118, 
 
 119.
 
 CH. IV.] CAPACITY OF PERSONS. 85 
 
 pressed by the laws of any place, surround and accom- 
 pany the person, wherever he goes, with this effect, 
 that in every place he enjoys, and is subject to the 
 same law, which such persons elsewhere enjoy, or are 
 subject to. Qualitates loersonalcs certo loco alicui jure 
 impi'essas, libique circumfcrri et personam comitari, cum 
 hoc effeciu, id uUqiie locoriim eo jure, quo tales personce 
 aliU gaiident vel suljecti sunt, fruantur et subjiciantur} 
 Therefore, (he adds,) those, who with us are under 
 tutelage or guardianship, such as minors, prodi- 
 gals, and married women, are everywhere deemed to 
 be persons subject to such guardianship ; and possess, 
 and enjoy the rights, which the law of the place attri- 
 butes to persons under guardianship.^ Hence, he, who 
 in Friesland has obtained the privilege of age (veniam 
 cetatis,) contracting in Holland, will not there be enti- 
 tled to restitution in integrum, as if he were a minor. 
 In other words, he, who in Friesland has obtained the 
 privilege of an exemption from the disabilities of his 
 minority, will not, if he afterwards contracts in Hol- 
 land, be deemed entitled to the privilege of being there 
 
 1 Huberus, De Conflict. Leg. Lib. 1, tit. 3, ^ 12. 
 
 2 Ibid. 
 
 3 Ibid. Under the Roman Law the Prastor by his Edict declared, that 
 he would grant redress in regard to transactions with minors under twenty- 
 five years of age. Quod cum minora quam viginti-quinque annos natu, 
 gestum esse dicetur ; uti quaque res erit, animadvertam. Dig. Lib. 4, 
 tit. 4, 1. I ; Pothier, Pand. Lib. 4, tit. 4, n. 1. But those persons, who 
 had obtained the privilege of age, were not entitled to any such relief. 
 Eos, qui veniam aetatis a principali dementia impetraverunt, etiamsi mi- 
 nus idonee rem suam administrare videantur, in integrum restitutionis 
 auxilium impetrare non posse, manifestissimum est ; ne hi, qui cum eis 
 contrahunt, principali authoritate circumscripti esse videantur. Cod. Lib. 
 2, tit. 45, 1. 1 ; Pothier, Pand. Lib. 4, tit. 4, n. 4. The action thus given 
 to minors was often called Restitutio in integrum. Vicat. Vocab. Voce, 
 Restitutio. 
 
 CONFL. 8
 
 86 CONFLICT OF LAWS. [CH. IV. 
 
 held a minor, so as to exempt him from liability on his 
 contract, {lU non restituitur in integrum.^ He, who is 
 declared a prodigal here, cannot enter into a valid con- 
 tract or be sued in another place. Hinc qui apiid nos in 
 Meld eiirdve sunt, lit adolescentes, filii-familias, prodigi, 
 midieres miptce, uUqiie pro personis, curce suhjectis hahen- 
 tur, et jure, quod cura singiUis in locis trihuit, iituntur, [e^] 
 fruiintiir. Hinc, qui in Frisid veniam cetatis iinpetravit, in 
 HoUandid contrahens, ili non restituitur in integrum. Qui 
 prodigus heic est declaratus,ali'bi contrahens valide non ohli- 
 gatur, neque convenitur? Again, in some provinces, 
 those, who are over twenty-one years of age, are deemed 
 of majority, and may alienate their immovable proper- 
 ty, and exercise other rights less important even in 
 those places, where no one is deemed of majority, until 
 he has attained twenty-five years ; because all other 
 governments give effect by comity to the laws and ad- 
 judications of other cities in regard to their subjects, 
 so, always, that there be no prejudice to their own sub- 
 jects, or their own law.^ 
 
 § 61. He goes on to remark ; " There are some per- 
 sons, who thus interpret the effect of laws respecting 
 the quality of persons, that he, who in a certain place 
 is a major, or a minor, in puberty, or beyond it, a son 
 subject to paternal power, or a father of a family, un- 
 der or out of guardianship, everywhere enjoys, and is 
 
 1 The Veniam ^tatis is a privilege granted by the Prince or Sove- 
 reign, whereby the party is entitled to act, and to have all the pov?ers to 
 act sui juris, as if he were of full age. See Vicat. Vocabul. Voce, " Ve- 
 niam iEtatis." Calvinus, Lex. Jurid. ch. v. ; Cod. Lib. 2, tit. 45, I. 1 ; 
 Rodenburg, De Diversit. Statut. tit. 1, ch. 3, § 9 ; 2 Boullenois, App. 9 ; 
 1 Burge, Comment, on Col. and Foreign Law, P. 1, ch. 3, ^ 3, p. 116. 
 
 2 Huberus, De Conflict. Leg. Lib. 1, tit. 3, § 12. 
 
 3 Huberus, Lib. 1, tit. 3, § 12 ; ante, ^ 29 ; post, § 139, 145.
 
 CH. IV.] CAPACITY OF PERSONS. 87 
 
 subject to the same law, which he enjoys, and to which 
 he is subject, in that place, where he first becomes, or is 
 deemed such. So that whatever he could do, or could 
 not do in his own country, the same is allowed, and 
 prohibited to him to do.^ This seems to me unreason- 
 able, and would occasion too great a confusion of laws, 
 and a burden upon neighboring nations, arising from 
 the laws of others.^ The importance of this thing will 
 be made plain by a few examples. Thus, an uneman- 
 cipated son {^fillu^ familids,) who cannot in Friesland 
 make a testament, goes into Holland, and there makes 
 a testament ; it is asked, whether it has any validity ? 
 I suppose it is valid in Holland, according to my first 
 and second rule j ^ because the laws bind all those who 
 are within any territory ; neither is it proper {civile sit,) 
 that Hollanders, in respect to business done among 
 themselves, should, neglecting their own laws, be go- 
 verned by foreign laws."* But it is true, that this testa- 
 ment would not have effect in Friesland, according to 
 the third rule ; ^ because in that way nothing would be 
 more easy than for our citizens to elude our laws, as 
 they might be evaded every day.*^ But such a testa- 
 ment would be of validity elsewhere, even where an 
 unemancipated son could not make a will ; for, there, 
 the reason of evading the laws of a country by its own 
 citizens ceases ; for in such a case the fact (of evasion) 
 would not be committed." ' 
 
 § 62. This doctrine of Huberus is not in its full ex- 
 tent maintainable, and especially in relation to immov- 
 
 1 Huberus, Lib. 1, tit. 3, ^ 12. 2 ibid. 
 
 3 Ante, ^ 29. 4 Huberus, Lib. 1, tit. 3. §13. 
 
 5 Ante, i 29. 6 Huberus, Lib. 1, tit. 3, § 13. 
 ^ Ibid.
 
 88 CONFLICT OP LAWS. [CH. IV. 
 
 able property, it is universally repudiated by the com- 
 mon law, and in many cases is also denied by foreign 
 jurists.' Lord Stowell has expressly said, that he does 
 not mean to affirm, that Huberus is correct in laying 
 down, as universally true, that being of age in one 
 country, a man is of age in every other country, be the 
 law of majority of the latter what it may.^ 
 
 § 63. Without venturing further into the particular 
 opinions maintained by foreign jurists on this subject, 
 under all its various aspects, (a task, considering the 
 great diversity of judgment among them, which would 
 be almost endless,) it may perhaps be useful to place 
 before the reader some of the doctrines, maintained by 
 foreign jurists, which appear best established, or, at 
 least, which seem to have the sanction of such author- 
 ity, as has given them a superior weight and recom- 
 mendation in the jurisprudence of continental Eu- 
 rope.^ 
 
 § 64. In the first place the acts of a person, done in 
 the place of his domicil, in regard to property situated 
 therein, are to be judged of by the laws of that place, 
 and will not be permitted to have any other legal effect 
 elsewhere, than they have in that place.* There are 
 exceptions to this rule ; but they result from some 
 direct or implied provisions of law in the customary or 
 
 ' See the authors cited by Merlin, R6pert. Majority, ^ 5 ; post, ^ 363 
 to § 373, ^ 474 to 479. 
 
 2 Ruding V. Smith, 2 Hagg. Ecc. Rep. 391, 392. 
 
 3 See I Burge, Comment, on Col. and For. Law, P. 1, ch. 3, § 3, 
 p. 118, to p. 129. 
 
 4 " Stalutum personale," (says Paul Voet,) " ubiquelocorum personam 
 comitatur, in ordine ad bona intra territorium statuentis sita, ubi persona 
 affecta domicilium habet." P. Voet, De Statut. ^ 4, ch. 2, ^ 6, p. 138, 
 edit. 1661. See 1 Burge, Comment, on Col. and For. Law, P. 1, ch. 4, 
 p. 113.
 
 CH. IV.] CAPACITY OF PERSONS. 89 
 
 positive code of the country, in which the act comes in 
 judgment, applying to the very case ; for it is compe- 
 tent for a country, if it pleases, to prescribe its own 
 rule for all cases, arising out of transactions in foreign 
 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 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 his domicil, with- 
 out the consent of his guardian, if valid by the law of 
 the place of his domicil, where it is done, will be recog- 
 nized 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 na- 
 tions, in the absence of any positive or implied munici- 
 pal regulations to the contrary ; according to the max- 
 im quando lex in personam dirigitiir, resjnciendiini est ad 
 leges illiiis civitatis, quce personam hahet siibjectam? 
 
 1 1 BouUenois, Prin. Gen. 6 ; 1 Froland, M6m. des Statuts. ch. 7, 
 p. 156. 
 
 2 1 Hertii Opera, De CoUis. 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 BouUenois, Prin. Gen. 10, 
 12, 16, 17 ; Id. Observ. 8, tit. 1, ch. 3, p. 145, &c. ; 2 BouUenois, Ob- 
 
 8*
 
 90 CONFLICT OF LAWS. [CH. IV. 
 
 § 65. In the next place, another rule, directly con- 
 nected 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, (qttalitas personam, siciit iimhra sequikir,) so long 
 as his domicil remains unchanged, even in relation to 
 transactions in any foreign country, where they might 
 otherwise he obligatory.^ Thus, a minor, a married 
 woman, a prodigal, or a spendthrift, a person non com- 
 pos mentis^ or any other person, who is deemed incapa- 
 
 serv. 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. H> 8, p. 123, edit. 1737 ; Id. p. 175, edit. 1716 ; Froland, 
 M6m. des Statuts, P. 1, ch. 5, 7 ; Id. P. 2, ch. 33 ; Bouhier, Cout. de 
 Bourg. ch. 22, 23, 24. 
 
 1 " Ergo conditio personae a causa domicilii tota regitur. Nam ut con- 
 sentiunt Doctores, idem sunt forum sortiri et statulis subjici ; et unusquis- 
 que talis esse praesumitur, qualis est dispositio statuti suae patriae. Pro- 
 inde, ut sciamus, uxor in potestate sit mariti necne, qua sstate minor con- 
 trahere possit, et ejusmodi respicere oportet ad legem cujusque domicilii." 
 Burgundus, Tract. 2, n. 6 ; 1 Boullenois, Observ. 4, p. 53. " C'est ainsi, 
 (says Boullenois,) que la majorite et la minority du domici! ont lieu par- 
 tout, meme pour les biens situ^s aillours ; " 1 Boullenois, Prin. G^n. 
 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 reside, est 
 majeur partout, et peut comme tel, aliener, hypotequer, vendre ses biens, 
 sans consid6rer, si suivant la loi de leur situation il seroit mineur." 1 Fro- 
 land, M^m. des Statuts, ch. 7, p. 156. Rodenburg holds the same doc- 
 trine. Rodenburg, De Divers. Stat. tit. 2, ch. 1. So D'Argentr^ ; " Quo- 
 tiescunque de habilitate aut de inhabilitate personarura quaeratur, toties 
 domicilii leges et statuta spectanda." D'Argentr6, 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 
 quaestione, an quis minor vel majorennis sit, obtinuit, id dijudicandum esse 
 ex lege domicilii ; sit ut in loco domicilii miiiorennis, ubique terrarura pro 
 tali habendus sit, et contra." J. Voet, ad Pand. lib. 4, tit. 1, § 29. See 
 also Foelix, Conflict des Lois-Revue Etrang. et Fran. Tom. 7, 1840, p. 
 200 to p. 216.
 
 CH. IV.] CAPACITY OF PERSONS. 91 
 
 ble of transacting business {siii juris) in the place of 
 his or her doraicil, will be deemed incapable every- 
 where, not only as to transactions in the place of his 
 or her domicil, but as to transactions in every other 
 
 place.^ 
 
 § G6. 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 never- 
 theless be obligatory upon him.^ 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 per- 
 sonal 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 situate.^ 
 
 1 1 Boullenois, Princ. G6n. 10, 19, et Observ. 4, 12, 16, p. 5 ; 1 Fro 
 land, M6m. des Stat. ch. 7, p. 155, 156 ; Rodenburg, de Divers. Stat. tit. 
 2, ch. 1 ; 2 Boullenois, Appx. p. 10. 
 
 2 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 Diversit. Statul. tit. 2, ch. 1 ; 2 BouUe- 
 noix, Appx. p. 10. 
 
 3 Huberus, De Conflictu Legum, Lib. 1, tit. 3, ^ 12. 
 
 4 1 Froland, des Stat. M6m. ch. 7, p. 157, 158 ; 1 Boullenois, Trine. 
 Gen. 6, 19; Id. Observ. 4, 12; Rodenburg, De Divers. Stat. tit. 2,ch. 1; 
 2 Boullenois, Appx, p. 10.
 
 92 CONFLICT OF LAWS. [CH. IV. 
 
 There are exceptions also made to this rule ; hut they 
 stand upon peculiar grounds, as expounded by foreign 
 jurists. 
 
 § 66 6f. 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.^ 
 
 § 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 2^ersonalia statuta territommi egrediantur ? Unicum 
 hoc ipsa rei natura ac necessitas invexit, ut, cum de statu 
 ac conditione hominum qucerUiir, uni soliimmodo Judici, et 
 quidem domicilii, iiniversiim in ilia Jus sit attrihutum : cum 
 enim ah uno certoquc loco statiim hominis legem accipere 
 necesse esset, quod ahsurdum, earumque rerum naturaliter 
 inter se pugna foret, ut in quot hca quis ita faciem, aut 
 navigans delatiis fuerit, totidem iUe statum midaret aut con- 
 ditionem ; id uno eodemque tempore hie sui Juris, illic alieni 
 
 ^ Gamier v. Poydras, 13 Louis. R. 177. 
 
 2 Rodenburg, de Divers. Stat, tit. 1, ch. 3, n. 4 ; 2 Boullenois, App. 
 p. 8. See also 1 Boullenois, Observ. 4, p. 48, 49.
 
 CH. IV.] CAPACITY OF PERSONS. 93 
 
 fidurus sit ; uxor sinml in potestate viri, et extra eandem 
 sit ; alio loco haheatur qiiis prodigiis, alio fnigi; ac pra- 
 terea quod persona certo loco non affigeretm\ cum res soli 
 hco fix(E citra incommodimi ejusdem legihiis siibjaceant, 
 siimmd providentid constitutmn est, ut a loco domicilii, ciii 
 quis larem fovendo se subdiderit, statum ac conditionem 
 induat : illis Legislatoribus, pro soli sid genio, optime om- 
 nium compertum hahentihis, qua judicii maturitate pollcant 
 sid)diti, ut possint constituere, qui eorum, ac qiiando ad sua 
 tuenda ncgotia indigeant auctoritate. Hcbc igitur peisonarum 
 qualitus an cmrditio, riM veno.rif, applicand.a ad res aiit actus 
 alterius territorii, jam indirecte, ac per conseqiientiam vis 
 illiiis personalis Statuti extra statuentis, pertinget locum : 
 ciim et alias non insolitum sit multa indirecte permitti et per 
 conseqiientiam, qu(Z directe et expressim non valerent. Nee 
 est, quod quemquam turlet, quod et ilia Statida extra terri- 
 torii limites diximus excurrere, quihiis nominatim status liomi- 
 num in universum non discutitur, quce in incertos personates 
 actus a persona exercendos, prohihendo cos aid permittendo, 
 concepta sunt} 
 
 § 68. The modem law of France, as it is laid down 
 by Pardessn.s, is to the same effect.^ "No act, whatso- 
 ever 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, 
 
 1 2 Boullenois, Appx. p. 8 ; Foelix Conflict des Lois-Revue Etrang. et 
 Fran. Tom. 7, 1840, p. 200 to p. 216. * 
 
 2 Pardessus, De Droit Commercial, Vol. 5, art. 1482, p. 248.
 
 94 CONFLICT OF LAWS. [CH. IV. 
 
 as well in regard to the acts, whicli 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 inca- 
 pacity 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 juris- 
 diction, from the laws which regulate his capacity, and 
 to which he is bound by his allegiance, wherever he 
 may inhabit. Without this, the government would 
 expose its own subject to be treated with a like injus- 
 tice by what is denominated the right of retaliation or 
 reprisals.' So also a foreigner, born under a legisla- 
 tion, which does not require certain formalities, like 
 
 1 5 Pardessus, P. 6, tit. 7, ch. 2, ^ 1, art. 1482 ; Henry on Foreign 
 Law, Appendix, p. 221, 222. *See Cochin, (Eavres, Tom. 1, p. 154, 
 4to edit.
 
 CH. IV.] CAPACITY OF PERSONS. 95 
 
 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 regu- 
 lates the capacity of the foreigner, regulates it every- 
 where. It would be unjust, that he should derive from 
 our legislation, to which he is not subjected, an advan- 
 tage, 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 ^ 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 concern- 
 ant Vetatet la capacite des personnes regissent les Francois 
 mi?ne residant en pais Stranger? 
 
 § 69. In the third place, another rule is, that, upon a 
 change of domicil, the capacity or incapacity of the per- 
 son is regulated by the law of the new domicil.^ Po- 
 thier lays down this rule as we have seen, in emphatic 
 terms. " The change of domicil " (says he) " delivers 
 
 1 Pardessus, de Droit Comraerc. Vol. 5, art. 1483, p. 250 ; post, § 74. 
 
 2 Code Civil of France, art. 3 ; ante, ^ 54. 
 
 3 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 author- 
 ities are collected.
 
 96 CONFLICT OF LAWS. [CH. IV. 
 
 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 ehange- 
 ment de domicile delivre les personnes de V empire, des lois 
 du lieu du domicile, qiHelles quittent, et les assiijettit a celles 
 du lieu de nouveau domicile, qu'elles acqiiidrent} Burgun- 
 dus adopts the same rule : Consequenter dicemus, si mida- 
 verit domicilium persona, novi domicilii conditionem induere.^ 
 So Rodenburg ; Personce enim status et conditio cum tota 
 regcdur a legibus loci, cid ilia sese per domicilium subdiderit, 
 utique mutato domicilio miitari et necesse est personce condi- 
 tionem? 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.^ 
 
 § 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 
 
 1 Pothier, Coutum. d'0rl6ans, eh. 1, art. 1, n. 13 ; ante, § 51. 
 
 2 1 Boullenois, Obs. 4, p. 53; ante, ^ 51, a, ^ 56 ; Burgundus, Tract. 
 2, n. 7, p. 61. 
 
 3 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. 
 
 4 1 Froland, M6m. 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, Appen- 
 dix A, p. 196. See 2 Boullenois, p. 1 to 53 ; Merlin, Repertoire, Ma- 
 jorit6, ^ 5 ; Autorisation Maritale, ^ 10 ; Effet Retroactif, ^ 2, 3, art. 5 ; 
 ante, ^ 55, 55 a, 56. 
 
 5 Code Civil of France, art. 3. See also Cochin CEuvres, Tom. 1. 
 p. 154, 4to. edit. ; ante, ^ 51 a. 68.
 
 CH. IV.] CAPACITY OF PERSONS. 97 
 
 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 diffi- 
 culty, 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 circumstances 
 of this sort, that the third axiom of Huberus may be 
 presumed to have a material influence, viz. that a nation 
 is not under any obligation to recognize rights, con- 
 tracts, or acts, which are to its own prejudice, or in op- 
 position to its own settled policy.^ 
 
 § 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 con- 
 ditions of persons which 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 aflected with these states or condi- 
 tions, 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 pa- 
 ternal 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, 
 
 1 See on this subject, 1 Burge, Comment, on Col. and For. Law, P. 1, 
 oh. 3, ^ 3, p, 129 to p. 134. 
 
 2 Ante, ^ 57 ; 2 Boullenois, Observ. 32, p. 10, 11, 13, 19. 
 
 CONFL. 9
 
 98 CONFLICT OF LAWS. [CH. IV. 
 
 that, having at first fixed the condition of the person, 
 the change of domicil does not put an end to them." ^ 
 And he adds ; " But there are states and conditions 
 more subordinate, and which in truth arise from public 
 laws, {que sont, a la verite des droits publics,) but are for 
 one nation only, or for some provinces of the same na- 
 tion. Such are the state of community or noncommu- 
 nity (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 al- 
 most infinitely various." ^ 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 oc- 
 currence of so great a number of laws, (having enume- 
 rated 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 b}^ the state and condition, which his domicil 
 gives him. (2.) Secondly ; not to derogate from these 
 principles, except when the spirit of justice and neces- 
 sity 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 
 
 1 2 Boullenois, Obser. 32, p. 10, 11, 19. 
 
 2 Ibid. p. 11. 
 
 3 Ibid. 
 
 4 Ibid. p. 12.
 
 CH. IV.] CAPACITY OF PERSONS. 99 
 
 domicil might cause.^ Or, in other words, he affirms ; 
 first, that the law of the domicil ought generally 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 (domicilmm originis), has arrived at 
 the age of majority, and he afterwards removes to an- 
 other place, where, at the same years he would still be 
 a minor, the law of the domicil of his birth ought to 
 prevail.3 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 ex- 
 tends to twenty-five years, he does not lose his major- 
 ity, and become a minor in his new domicil.* 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, notwith- 
 standing his removal.^ He deduces the former from the 
 injustice, which he supposes would follow from re- 
 ducing 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 con- 
 tract, or to sell, or to alienate propert}^ The latter he 
 
 1 2 Boullenois, Observ. 32, p. 12, 13. 
 
 2 2 Boullenois, Observ. 32, p. 11, 12, 13, 19 ; ante, ^ 57. 
 
 3 2 Boullenois, Observ. 32, p. 12. 
 
 4 2 Boullenois, Observ. 32, p. 12, 19, 20. 5 Ibid.
 
 100 CONFLICT OF LAWS. [CH. IV. 
 
 seems to ground upon a like inconvenience of allowing 
 a man thus to escape from the disabilities of a minor- 
 ity in the place of his birth, by a mere change of domi- 
 cile 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 con- 
 dition 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 lay- 
 ing down any general rules for all cases 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.^ 
 
 § 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 mo- 
 rally or civilly perfect for the purposes of society. And 
 
 1 2 Boullenois, Observ. 33, p. 12, 19, 20. 
 
 2 2 Boullenois, Observ. 32, p. 13 ; ante, \ 57. 
 
 3 2 Boullenois, Observ. 32, p. 19, 20. 
 
 4 1 Boullenois, Princ. G6n. 8, 10, 11, 17, 18; Id. Obs. 4, p. 51, 52.
 
 OH. IV.] CAPACITY OF PERSONS. 101 
 
 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 mis- 
 chief, which would arise from the same person being 
 considered as capable to contract in one place, and in- 
 capable in another -, so that he might change his civil 
 character and capacity with every change of his domi- 
 cile There may, perhaps, be a solid ground of argu- 
 ment in favor of giving a universal operation in all 
 other countries to certain classes of personal incapaci- 
 ties, 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 per- 
 sonal 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 argu- 
 ment from inconvenience is not equally strong on the 
 other side.^ 
 
 § 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 general doctrine, as it 
 deems most convenient, and most in harmony with its 
 own institutions and interests, and policy. It may suf- 
 fer the same rule, as to the capacity, state, and condi- 
 tion, of foreigners, to prevail within its own territory, as 
 
 1 Henry on For. Law, p. 5, 6 ; Rodenb. lit. 1, ch. 3, n. 4; 2 Boull. 
 App. p. 8. 
 
 2 See 1 Burge, Comment, on Col. and For. Law, P. 1, ch. 3, § 3, p. 
 129 to p. 134. 
 
 9*
 
 102 CONFLICT OF LAWS. [CH. IV. 
 
 does prevail in the place 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 con- 
 dition of its own subjects, wherever they may reside, at 
 home, or abroad. It may adopt a more limited doc- 
 trine, and recognize the law of the domicil both as to 
 foreigners and as to its own subjects, in respect to trans- 
 actions 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 mat- 
 ters. 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 [domiciUum hahitationis) will be 
 found in most cases to furnish the most safe, convenient, 
 and least prejudicial rule, at least in regard to transac- 
 tions 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 
 
 ^ See 1 Burge, Comment, on Col. and For. Law, P. I, ch. 3, ^ 3, p. 
 129 to p. 134.
 
 Oil. IV.] CAPACITY OF PERSONS. 103 
 
 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,) ^ Pardessus, while 
 he contends, that the law of France, as to personal ca- 
 pacity 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 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.^ 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 are agreed in 
 fixing the capacity to contract to a certain age, and in 
 placing women in dependence upon their husbands.^ 
 
 1 Ante, ^ 68. 
 
 2 Pardessus, de Droit. Comm. Vol. 5, art. 1483, p. 250. 
 
 3 Pardessus, Vol. 5, P. 6, tit. 7, ch. 2, § 1, art. 1483, p. 250 ; Henry 
 on Foreign Law, App. 222.
 
 104 CONFLICT OF LAWS. [CH. IV. 
 
 Every one will at once perceive how exceedingly loose 
 the distinction is, for which Pardessus contends, and 
 how unsatisfactory his reasoning, by which this excep- 
 tion 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 spe- 
 cial 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.^ 
 § 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 on this sub- 
 ject, with scarcely an exception, agree, that the laws or 
 statutes, which regulate minority and majority, and 
 those, which fix the state or condition of man, are per- 
 sonal statutes, and follow, and govern him, in every 
 country. Now, supposing the case of our law, fixing 
 the age of majority at twenty-five, and the country, in 
 
 1 Ibid.
 
 CH. IV.] CAPACITY OF PERSONS. 105 
 
 which a man was born and lived previous to his coming 
 here, placing it at twenty-one ; no objection could per- 
 haps 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 mi- 
 nor in the country, where he resided ; and that, at the 
 age of twenty-four, he came into this State, and en- 
 tered 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." ^ 
 
 § 76. The case first put seems founded upon a prin- 
 ciple entirely repugnant to that, upon which the second 
 rests. In the former case, the law of the place of the 
 
 1 Saul V. His Creditors, 17 Martin, R. 596 to 598, Tiie 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 363 ; Post, § 82. Hertius, De 
 Collisione, Tom. 1, ^ 4, n. 5, p. 120, 121 ; Id. p. 173, 174, edit. 1716. Gro- 
 tius seems to have been of opinion, that the lex loci contractus ought to 
 govern in cases of minority. Grotius, B. 2, ch, 11, ^ 5.
 
 106 CONFLICT OF LAWS. [CH. IV. 
 
 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, 
 how a court, without any such positive legislation, could 
 arrive at both conclusions. General reasoning would 
 lead us to the opinion, that both cases ought to be de- 
 cided 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 ; ' some the lat- 
 
 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 doc- 
 trine, 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'Argentre, Bartolus, 
 Rodenburg, Jason, and Paulo de Castro. Liverra. Dissert. § 21, p. 34. 
 D'A.rgentr6 Comm. Leg. Briton, art. 218, Gloss. 6, n. 47, 48) says ; 
 Quotiescunque de habilitate aut inhabilitate personarura quaeratur, toties 
 domicilii leges et statuta spectanda. Nam de omni personali negotio, Ju- 
 dicis 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, nee circa ipsam perso- 
 nam aliquid disponere. Bartolus, Ad. Cod. Lib. 1, tit. 1, 1. 1, n. 25, 26. 
 Dc Castro (as cited in D'Argentr6 ubi supra) says, that a statute of Mo- 
 dena, 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 hie abstract^ de habilitate personam, et universali ejus statu
 
 CH. IV.] CAPACITY OF PERSONS. 107 
 
 ter.^ Perhaps it is not very easy to 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 ; 
 
 quEcratur, ideoque persona a statute domicilii efficiatur. Liverrn. Diss. 
 <^ 21, p. 34, 35, ^ 25, p. 37. Burgundus, Christinaeus, 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. 
 
 1 Mr. Livermore says, that Huberus alone is in favor of the latter opi- 
 nion. I draw the conclusion, that P. Voet (Voet, de Statut. 6 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 ju- 
 rists, 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 \di.\v 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 major- 
 ity until his twenty-fifth year, should at the age of twenty-three, enter 
 into a contract in England, or any other place, where his 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 coun- 
 try, 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.
 
 108 CONfLICT OF LAWS. [CH. IV. 
 
 Qui cum alio contrahit, vel est, vcl esse debet, non ignarus 
 conditionis ejus} 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 coun- 
 try 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 pre- 
 sumed to have better means of knowledge ? On the 
 other hand, it may be said with great force, that con- 
 tracts ought to be governed by the law of the country 
 where they are made, as to the competence of the par- 
 ties to make them, and as to their validity ; because 
 the parties may well be presumed to contract with refer- 
 ence 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, there- 
 fore, 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 exer- 
 cised in all civilized countries, that a man who con- 
 
 1 Dig. Lib. 50, tit. 17, 1. 19. See Livermore, Diss. p. 38.
 
 CH. IV.] CAPACITY OF PERSONS. 109 
 
 tracts 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 resulting from such ignorance 
 upon himself ; and not attempt to throw them upon the 
 other party, who has engaged under a proper know- 
 ledge and sense of the obligation, which the law would 
 impose upon him by virtue of that engagement." ^ 
 
 § 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 Louis- 
 iana 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 main- 
 tain 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 
 
 1 Lord Stowell, in Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 61 ; 
 Ante, ^ 75 ; Post, § 82. 
 
 CONFL. 10
 
 110 CONFLICT OF LAWS. [CH. IV. 
 
 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 domieil of origin 
 govern the state and condition of the minor, into what- 
 ever 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 plead- 
 ing the minority assumed the affirmative, it was her 
 duty to establish the fact on which the exception could 
 be sustained." ^ The question, therefore, did not here 
 arise, as to the effect of any contract, made in Louisiana, 
 (as in the preceding case,) but the simple question of 
 the state of minority or majority, or the competency of 
 the party to maintain a suit in her own name, as being 
 siii juris. The Court seem to have acted upon the 
 general doctrine that the capacity of the party did not 
 depend upon her actual domieil ; but upon the law of 
 her domieil of origin. But it is difficult to perceive, 
 why the same rule should not apply to a case of con- 
 tract, arising under the like circumstances ; since the 
 capacity or incapacity to contract would depend upon 
 the very point, whether the law of the actual domieil. 
 
 1 Barrera v. Alpuente, 18 Martin, R. 69.
 
 CHAP. IV.] CAPACITY OF PERSONS. Ill 
 
 or that of the domicil of origin, or that of the place of 
 the contract, ought to govern in respect to capacity or 
 incapacity. And if the same rule would apply, it is 
 not easy to reconcile this with the preceding doctrine, 
 unless upon the ground, that the courts of the native 
 domicil ought to follow their own law, as to minority 
 and majority, in all cases, in preference to any other. 
 
 § 78. There is an earlier case in the same court, in 
 which it seems to have been incidentally stated, that, 
 according to the law of nations, " personal incapacities, 
 communicated by the laws of any particular place, 
 accompany the person wherever he goes. Thus, he. 
 who is excused from the consequences of contracts for 
 want of age in his country, cannot make binding con- 
 tracts in another." ^ This doctrine is certainly at vari- 
 ance with that maintained by the same court at other 
 and later periods.^ It is somewhat curious, that it was 
 avowed in the case of what is called a runaway mar- 
 riage, celebrated at Natchez in Mississippi, between a 
 young man and a young woman, a minor of thirteen 
 years of age, both of them being at the time domiciled 
 in Louisiana, without the consent of her parents ; and 
 which marriage would seem to have been void, without 
 such consent, by the law of Louisiana, if celebrated in 
 that State. It was not, however, the main point in the 
 case ; and the decision itself was placed, (as we shall 
 hereafter see,) upon a far broader foundation.^ 
 
 § 79. In respect to contracts of marriage, the English 
 decisions have established the rule that a foreign mar- 
 
 1 Le Breton v. Fouchet, 3 Martin, R. 60, 70 ; S. C. post, ^ 180. 
 ~ Saul r. His Creditors, 17 Martin, R. 597, 598 ; Baldwin v. Gray, 
 16 Martin, R. 192, 193. 
 3 Post, ^ 180.
 
 112 CONFLICT OF LAWS. [CH. IV 
 
 riage, valid according to the law of the place, where 
 celebrated, is good everywhere else.^ But these deci- 
 sions have not, e converso, established, that marriages of 
 British subjects, not good according to the law of the 
 place, where celebrated, are universally, and under all 
 possible circumstances, to be regarded as invalid in 
 England.^ On the contrary. Lord Stowell has decided 
 that a marriage had, under peculiar circumstances, at 
 the Cape of Good Hope, during British occupation, was 
 valid, although not in conformity to the Dutch law, 
 which was then in force there.^ In that case the 
 husband (an Englishman) was a person entitled by the 
 laws of his own country to marry without the consent 
 of parents or guardians, he being of the age of twenty- 
 one ; but by the Dutch law he could not marry without 
 such consent until he was thirty years of age. The 
 lady (an Englishwoman) was under the age of nine- 
 teen, her father was dead, her mother had married a 
 second husband, and she had no guardian. Upon that 
 occasion Lord Stowell said ; " Suppose, the Dutch law 
 had thought fit to fix the age of majority at a still 
 more advanced period than thirty, at which it then 
 stood, at forty, it might surely be a question in an 
 English court, whether a Dutch marriage of two British 
 subjects, not absolutely domiciled in Holland, should 
 be invalidated in England on that account; or, in other 
 words, whether a protection, intended for the rights of 
 
 1 Ryan v. Ryan, 2 Phill. Ecc. R. 332 ; Herbert v. Herbert, 3 Phill. 
 Ecc. R. 58 ; S. C. 2 Hagg. Ecc. R. 263, 271 ; Lacon v. Higgins, 
 3 Starkie, R. 178 ; S. C. 1 Dovvl. & Ryl. N. P. R. 38. See Ryan & 
 Mood. R. 80. 
 
 2 Ruding V. Smith, 2 Hagg. Consist. R. 390, 391 ; Harford u. Higgins, 
 Hagg. Const. R. 432 ; Post, ^ 79, note 1 ; Post, ^ 118, 119. 
 
 3 Ibid.
 
 CH. IV.] CAPACITY OF PERSONS. 113 
 
 Dutch parents, given to them by Dutch law, should 
 operate to the annulling a marriage of British subjects 
 upon the ground of protecting rights, which do not 
 belong in any such extent to parents living in England, 
 and of which the law of England could take no notice, 
 but for the severe purpose of this disqualification. The 
 Dutch jurists (as represented in this libel) would have 
 no doubt whatever, that this law would clearly govern 
 a British court. But a British court might think that 
 a question, not unworthy of further consideration, be- 
 fore it adopted such a rule for the subjects of this 
 country." "In deciding for Great Britain upon the 
 marriage of British subjects, they (the Dutch jurists) 
 are certainly the best and only authority upon the 
 question, whether the marriage is conformable to the 
 general Dutch law of Holland ; and they can decide 
 that question definitely for themselves and for other 
 countries. But questions of a wider extent may lie 
 beyond this ; whe.ther the marriage be not good in 
 England, although not conformable to the general 
 Dutch law ; and whether there are not principles lead- 
 ing to such a conclusion. Of this question, and of 
 those principles, they are not the authorized judges ; 
 for this question and those principles belong either to 
 the law of England, of which they are not the author- 
 ized expositors at all, or to the jus gentium, upon which 
 the courts of this country may be supposed as compe- 
 tent as themselves ; and certainly, in the case of British 
 subjects, much more appropriate judges."^ 
 
 1 Ruding V. Smith, 2 Hagg. Consist. R. 389, 390 ; Post, ^ 118, 119.— 
 
 That there are other cases excepted from the operation of foreign law, 
 
 seems to have been directly held by Sir George Hay, in Harford v. Hig- 
 
 gins, 2 Hagg. Consist. R. 423. He there said; " I do not mean, that 
 
 10*
 
 114 CONFLICT OF LAWS. [CH. IV. 
 
 [79 a. So in a very recent case/ a marriage in 
 New South Wales, between two persons, neither of 
 whom were Presbyterians, before a minister of that 
 persuasion, contrary to the provisions of a local act, 
 (which did not, however, declare such marriage a 
 nullity,) was held valid in England ; sufficient at 
 least to found a decree of divorce in the English 
 Courts. And in a still later case,^ a marriage in 
 one of the British Provinces, according to the rites of 
 the Church of England, solemnized by a priest in orders, 
 in the parish church of which he was the minister, in 
 pursuance of a proper license, was held good in Eng- 
 land, without examining the point of its validity, ac- 
 cording to the Lex Loci, for it was the duty of the op- 
 posing party, to plead and prove that such marriage 
 was invalid.] 
 
 § 80. In another case, where two British subjects, 
 being minors, and in France, solely for purposes of edu- 
 cation, intermarried, it was held by the court, that the 
 marriage, being void by the law of France, was a mere 
 nullity.^ The Court (Sir Edward Simpson) said ; " The 
 question before me is not, whether English subjects are 
 to be bound by the law of France ; for undoubtedly 
 no law or statute in France can bind subjects of Eng- 
 
 every domicil is to give jurisdiction to a foreign country, so that the laws 
 of that country are necessarily to obtain and attach upon a marriage solem- 
 nized there. For, what would become of our factories abroad, at Leghorn, 
 or elsewhere, where the marriage is only by the law of England, and 
 might be void by the law of that country 1 Nothing will be admitted in 
 this court to affect such marriages, so celebrated, even where the parties 
 are so domiciled." Id. 432. 
 
 1 Catterall v. Catterall, 1 Roberts. 580 ; 11 Jurist, 914 ; S. C. 9 Jurist, 
 951 ; 1 Roberts. 304. 
 
 2 Ward V. Dey, 1 Roberts. 759. 
 
 3 Scrimshire v. Scrimshire, 2 Hagg. Consist. R. 395.
 
 CH. IV.] CAPACITY OF PERSONS. 115 
 
 land, who are not under its authority. Nor is the con- 
 sequence of pronouncing for or against the marriage 
 with respect to civil rights in England to be considered 
 in determining this case. The only question before me 
 is, whether this be a good or bad marriage by the law 
 of England. On this point I apprehend, that it is the 
 law of this country to take notice of the laws of France, 
 or of any foreign country in determining upon mar- 
 riages of this kind ; and I am inclined to think it is not 
 good. The question being in substance, whether by 
 the law of this country marriage contracts are not to 
 be deemed good or bad according to the laws of the 
 country, in which they are formed ; and whether they 
 are not to be construed by that law. If such be the 
 law of this country, the rights of English subjects can- 
 not be said to be determined by the laws of France, 
 but by those of their own country, which sanction and 
 adopt this rule of decision. By the general law, all 
 parties contracting gain a forum in the place, where 
 the contract is entered into. All our books lay this 
 down for law ; " It is needless at present to mention 
 more than one. Gay 11, (Lib. 2, obs. 123,) says ; In con- 
 tradihus locus contractus considerandus sit. Quoties enim 
 statiittim 2^f'i^icipciliter halilitat, vet inhahilitat contractum, 
 quoad solemnitates, semper attenditiir locus, in quo talis con- 
 tractus celehratur, et ohligat etiam non siihditum" And 
 again, (Lib. 2, obs. 36.) Qiiis forum in loco contractus 
 sortitur, si ihi loci, ubi contraxit, reperiatur ; non tamen 
 ratione contractus, aut raiione rei, quis subditus dicitur illius 
 loci, uhi contraxit, aut res sita est ; quia aliud est forum 
 sortiri, et aliud suhditum esse. Constat unumquemque svh- 
 jici jurisdictioni judicis, in eo loco in quo contraxit. This 
 is according to the text law, and the opinion of Donel- 
 lus and other commentators. There can be no doubt,
 
 116 CONFLICT OF LAWS. [CH. IV. 
 
 then, that botli the parties in this case obtained a fo- 
 rum, by virtue of the contract in France. By entering 
 into the marriage there, they subjected themselves to 
 have the validity of it determined by the laws of that 
 country." ^ And he afterwards proceeded to add ; 
 " This doctrine of trying contracts, especially those of 
 marriage, according to the laws of the country, where 
 they were made, is conformable to what is laid down in 
 our books, and what is practised in all civilized coun- 
 tries, and what is agreeable to the law of nations, which 
 is the law of every particular country, and taken no- 
 tice of as such." ^ 
 
 § 80 a. The learned judge proceeded to cite the 
 opinions of civilians to the same precise effect ; and he 
 afterwards concluded with these remarks ; " Why may 
 not this Court then take notice of foreign laws, there 
 being nothing illegal in doing it ? Erom the doctrine 
 laid down in our books — the practice of nations — and 
 the mischief and confusion, that would arise to the sub- 
 jects of every country, from a contrary doctrine, I may 
 infer, that it is the consent of all nations, that it is the 
 jus gentium, that the solemnities of the different nations 
 with respect to marriages should be observed, and that 
 contracts of this kind are to be determined by the laws 
 of the country, where they are made. If that princi- 
 ple is not to govern such cases, what is to be the rule, 
 where one party is domiciled, and the other not? The 
 jus gentium is the law of every country, and is obliga- 
 tory on the subjects of every country. Every country 
 takes notice of it ; and this Court, observing that law 
 
 1 Scrimshire v. Scrimshire, 2 Hagg. Consist. R. p. 407, 408. See 
 Kent V. Burgess, 11 Simons, R. 361. 
 
 2 Scrimshire v. Scrimshire, 2 Hagg. Consist. R. 412.
 
 CH. IV.] CAPACITY OF PERSONS. 117 
 
 in determining upon this case, cannot be said to deter- 
 mine English rights by the laws of France, but by the 
 law of England, ot which the fits gentium is part.^ All 
 nations allow marriage contracts. They are juris gen- 
 tium ; and the subjects of all nations are concerned in 
 them ; and from the infinite mischief and confusion, 
 that must necessarily arise to the subjects of all na- 
 tions with respect to legitimacy, successions, and other 
 rights, if the respective laws of different countries were 
 only to be observed, as to marriages contracted by the 
 subjects of those countries abroad, all nations have con- 
 sented, or must be presumed to consent, for the com- 
 mon benefit and advantage, that such marriages should 
 be good or not, according to the laws of the country 
 where they are made. It is of equal consequence to 
 all, that one rule in all these cases should be observed 
 by all countries ; that is, the law of the countries 
 where the contract is made. By observing this law no 
 inconvenience can arise ; but infinite mischief will 
 ensue, if it is not." ^ Again — " If countries do not 
 take notice of the laws of each other with respect to 
 marriages, what would be the consequence, if two Eng- 
 lish persons should marry clandestinely in England, 
 and that should not be deemed a marriage in France ? 
 Might not either of them, or both, go into France and 
 marry again, because by the French law such a mar- 
 riage is not good ? And what would be the conclusion 
 in such a case ? Or again ; suppose two French sub- 
 jects, not domiciled here, should clandestinely marry, 
 and there should be a sentence for the marriage ; un- 
 
 1 Scrimshire v. Scrimshire, 2 Hagg. Consist. R. p. 41G, 417. 
 
 2 1(1.416,417,418.
 
 118 CONFLICT OF LAWS. [CH. IV. 
 
 doubteclly the wife, though French, would be entitled 
 to all the rights of a wife by our law. But if no faith 
 should be given to that sentence in France, and the 
 marriage should be declared null, because the man was 
 not domiciled ; he might take a second wife in France, 
 and that wife would be entitled to legal rights there, 
 and the children would be bastards in one country, and 
 lesitimate in the other." So that, in cases of this kind, 
 the matter of domicil makes no sort of difference in 
 determining them ; because the inconvenience to soci- 
 ety and the public in general is the same, whether the 
 parties contracting are domiciled or not. Neither does 
 it make any difference, whether the cause be that of 
 contract or marriage ; for if both countries do not ob- 
 serve the same law, the inconveniences to society must 
 be the same in both cases. And as it is of consequence 
 to the subjects of both countries, and to all nations, 
 that there should be one rule of determining in all na- 
 tions on contracts of this kind, it is to be presumed, 
 that all nations do consent to determine on these con- 
 tracts, by the laws of the country, where they are 
 made ; as such a rule would prevent all the inconven- 
 iences that must necessarily arise from judging by dif- 
 ferent laws, and is attended by no manner of inconven- 
 ience, but is for the advantage of the subjects of all 
 nations." ^ 
 
 § 81. Here, then, we have a doctrine laid down as 
 the rule of the Jus gentium, at least, as it is understood 
 and recognized in England, in regard to contracts 
 generally, and especially in regard to contracts of 
 
 1 Scrimshire v. Scrimshire, 2 Hagg. Consist. R. 418, 419. See Lord 
 Meadovvbank's Opinion, Fergusson on INIarr. and Divorce, Appendix, 
 p. 3G1, 362.
 
 CH. IV.] CAPACITY OF PERSONS. 119 
 
 marriage, very different from the rule, which we have 
 seen laid down by many foreign jurists, that the law 
 of the domicil of origin, or the law of the actual domicil, 
 is of universal obligation as to the capacity, state, and 
 condition of persons.^ The same doctrine has been 
 formally promulgated upon other occasions by the 
 English Courts.^ In a grave case of extraordinary in- 
 terest,^ which turned upon the validity of a Scotch 
 marriage, where one of the parties was an English 
 minor, Lord Stowell said ; " Being entertained in an 
 English court, it (the case then before him) must be 
 adjudicated according to the principles of English law 
 applicable to such a case. But the only principle 
 applicable to such a case by the law of England is, 
 that the validity of the marriage rites must be tried by 
 reference to the law of the country, where, if they exist 
 at all, they had their origin." ^ • 
 
 § 82. In regard to other contracts made by minors, a 
 similar rule has prevailed. In a case, where money 
 had been advanced for a minor during his stay in 
 Scotland (who seems to have had his general domicil in 
 England,) it was held by Lord Eldon, that the question, 
 whether in an English court a recovery could be had 
 for the money so advanced, depended upon the law of 
 Scotland ; for the general rule was that the law of the 
 place, where the contract is made, must govern the 
 
 J Ante, (5> 51 to 68. 
 
 2 Doe d. Birthwhistle v. Vardill, 5 B. and Cresw. 438, 452, 453 ; 
 S. C. 7 Clark & Finn. 895. 
 
 3 Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 54. 
 
 4 Id. 58, 59; S. P. Kent v. Burgess, II Simons, R. 361. See also 
 Conway v. Beasley, SHagg. Ecc. R. 639 ; Middleton v. Janverin, 2 Hagg. 
 Consist. R. 437, 446.
 
 120 CONFLICT OF LAWS. [CH. IV. 
 
 contract.' This also seems to be a just inference from 
 the doctrine maintained by Lord Stowell, in the case 
 of a contract of marriage.^ 
 
 § 82 a. Upon this point there is a diversity of 
 opinion among foreign jurists.^ Some of them are 
 strongly inclined to act upon the doctrine of the Ro- 
 man law, as applicable to this subject. Aid si non 
 appareat, quid actum est, erit conseqiiens, lit id seqiiamiir, 
 quod in regione in qua actum est frequentatur^ Dumoulin 
 is supposed to have adopted this doctrine ; but it is far 
 from being certain, that he intended by his language 
 to embrace this case. In concernentihus contractibvs et 
 emergentihus tempore contractus inspici debet locus, in quo 
 contrahitur.^ Paul Voet puts the doctrine thus. Quid, 
 si de contractihus proprie dictis, et quidem eoriini solemnihus 
 contcniio ; quis locus spectaUtur ? An domicilii contra- 
 hentis, an loci, ubi quis contraJiit. Respondeo affirmate. 
 Posterius. Quia censetur quis semet contraliendo, legihiis 
 istius loci, iiU contrahit, etiam ratione solemnium subjicere 
 voluisse. Ut quemadmodimi loci consuetudo subintrat con- 
 
 1 Male V. Roberts, 3 Esp, N. P. R. 163. See also Thompson v. 
 Ketcham, 8 Johns. R. 189 ; Grotius, Lib. 2, ch. 11, ^ 5. See also Dal- 
 rymple v. Dalrymple, 2 Hag;^. Consist. R. 60, 01 ; ante, ^ 21, 25, p. 34, 
 ^ 75, note (1) 37. 
 
 2 Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 61 ; ante, ^ 80. 
 
 3 Post, ^ 368. 
 
 4 Dig. Lib. 50, tit. 17, 1. 34 ; post, § 270. 
 
 5 Molin. Tom. 1, Tit. 1, De feud. ^ 12, gloss. 7, ^ 37. — In another 
 place Dumoulin says, after adverting to the fact, that personal laws affect 
 subjects and not foreigners ; Quamvis is, qui datus est tutor vel curator a 
 suo competenti judice sit inhabilitatus propter tutelam et coram, ubique 
 locorum pro bonis ubicumque sitis. Quia non est in vim statuti solius, 
 sedin vim juris communis, et per passivam interpretationem legis, qua? 
 locum habet ubique. Molin. In Cod. Lib. 1, tit. 1, torn. 3, p. 556. See 
 1 Burge, Comment, on Col. and For. Law, P. 1, ch. 3, ^ 3, p. 129, 130 ; 
 post, ^ 294 ; 1 BouUenois, Observ. 23, p. 463, 461.
 
 CH. IV.] CAPACITY OF PERSONS. 121 
 
 tr actum, ej usque est dedarativa ; it a etiam loci statutum} 
 From the other known doctrine of Paul Voet, that per- 
 sonal laws have no extra-territorial operation, we see at 
 once that he meant to apply his statement to laws of 
 personal capacity and incapacity.^ It has been sup- 
 posed, that Christinaeus and Bartolus entertain a simi- 
 lar opinion. But their language does not necessarily 
 lead to that conclusion, since the place of the contract, 
 spoken of by them, may mean the place also of the 
 domicil of origin of the minor.^ Grotius, however, is 
 more explicit to the purpose. Leges civiles (says he) 
 justa ratione motce, quasdam promissiones piipillorum ac 
 minonim irritas pronimciant. JSed hi effectus sunt proprii 
 legis civilis, ac proinde cum jure naturce ac gentium nihil 
 hahent commune ; nisi quod quihiis locis oltinent, ibi eas 
 servare nattirale est. Qiice etiam si peregrinus cum cive 
 paciscatur, tenelitur illis legihus ; quia qui in loco aliqiio 
 contrahit, tanquam suhditus temporarius legihus loci suhji- 
 citur^ 
 
 § 83. On the other hand, many foreign jurists, (as 
 we have seen,) entertain a very different opinion on 
 this very point of the capacity of a person to contract 
 in another country, when he is disabled, as a minor, by 
 the law of his own country and domicil.^ Thus, it has 
 been said by Di Castro, and approved by D'Argentre, 
 that where the law of Modena enabled a minor of four- 
 
 1 P. Voet, de Statut. ^ 9, ch. 2, n. 9, p. 323, edit. 1661 ; post, ^ 261. 
 
 2 P. Voet, de Statut. ^ 4, ch. 2, n. 6, p. 137, edit. 1661. 
 
 3 See the passages cited from these authors in 1 Burge, Comment. 
 P. l,ch. 4, p. 130; Christin. Decis. Vol. 1, Decis. 183, p. 155; Bartolus, 
 ad Cod. Lib. 1, tit. 1, 1. 1, n. 13, 20 ; 2 Boull. Observ. 46, p. 455, 456 ; 
 post, ^ 299, 
 
 4 Grotius, De Jure Belli. Lib. 2, ch. 11,^5. 
 
 5 Ante, ^ 51 to 68. 
 
 CONFL. 11
 
 122 CONFLICT OF LAWS. [CH. IV. 
 
 teen years of age to contract, that would not enable a 
 minor of Bologna of the same age to make a valid con- 
 tract at Modena.^ And Rodenburg asserts the same 
 doctrine in the most emphatic terms ; in which he is 
 followed by Boullenois.^ 
 
 § 84. Bouhier (as we have seen^) holds to the doc- 
 
 1 D'Argentr6, Comm. ad Leg^es Britonum, art. 218, gloss. 6, n. 47, 48, 
 cited ante, ^ 76, note, and also in Liverm. Dissert, p. 42, ^ 33 to 56 ; 
 1 Froland, M6m. des Statuts. 112, 156, 159. 
 
 2 Rodenburg. De Div, Stat. tit. 2, ch. 1, § 1 ; 2 BouU. App. p. 11 ; 
 
 1 Boullenois, Obs. 16, p. 200, 201, 204, 205 ; Bouhier, ch. 23, n. 92 ; 
 1 Froland, Mem. p. 112, 159 ; 2 Froland, M6m. p. 1576 to p. 1582. — 
 The language of Rodenburg is ; De quibus et consimilibus id Juris est, ut 
 quocunque se transtulerit persona statuto loci domicilii ita affecta, habilita- 
 tem aut inhabilitatem ademptam domi, circuraferat ubique, ut in universa 
 territoria suum Statutum exerceat effectum. Apertius rem intuebimur in 
 exemplis. TJltrajecti sui juris efficiuntur qui vigesimum aetatis annum 
 impleverint, apud Hollandos contra, ante Tigesimum quintum rebus suis 
 nemo intervenit. Apud utrumque populorum nupta citra viri consensum 
 a rebus gerendis arcetur. In Regionibus, quae Jure Romanorum hie 
 utuntur, commerciis gaudet uxor liberrime, potestati virili non supposita. 
 Fac autem Ultrajectinum, qui vigesimum quintum aetatis annum necdum 
 habuerit, contrahere in Hollandia : aut e contra Hollandiae incolam viges- 
 imum jam annum egressum, TJltrajecti: aut nuptam nostratem contrahere 
 in regione Juris scripti, aut e contra. Quocumque modo se casus habuerit, 
 contrahentium erit respicere ad suum cujusque domicilii locum, impres- 
 samque ibidem personse qualitatem, aut ademptam domiconiiitionem, cujus 
 ignarus non sit oportet, qui cum alio volet contrahere. Quare Hollandiae 
 incola major TJltrajecti, minor apud suos, contrahit apud nostrates invalide. 
 Contra, Ultrajectinus lege domicilii major contrahit in Hollandia efficaci- 
 ter, ut maxime ex more regionis istius rerum suarum necdum haberetur 
 compos. TJxores domi sub maritorum potestate ita constituta;, ut sine iis 
 nee alienent nee contrahant, nuUibi locorum hanc incapacitatem exuunt. 
 Cum mulieris contra Juri scripto obnoxiee contractus, apud nos celebratus, 
 consistat omnimodo. Et quidem si ad personales actus, contractus puta, 
 personse applicetur habilitas, Argentrei, Burgundique, (quos Jure praecipui 
 hie semper nomino,) caeterorumqu6 scribentium placita sat consentiunt. 
 See ante, § 51. See also Liverm. Dissert. ^ 21, p. 34 to § 34, p. 43 ; 
 
 2 BouU. App. 11. See also Foelix, Conflict, des Lois Revue Etrangere 
 et FranQaise, Tom. 7, § 24, p. 204 to § 26, p. 216. 
 
 3 Ante, ^ 57 a.
 
 OH. IV.] CAPACITY OF PERSONS. 123 
 
 trine, that the capacity and incapacity by the law of 
 the domicil extends to every other place ; ^ hut yet he 
 is manifestly startled, when it is applied to the case of 
 marriages. He admits, that in such cases it is com- 
 monly held, that the law of the place, where the mar- 
 riage is celebrated, ought to prevail.^ But he insists, 
 that such a rule ought not to be adopted in regard to 
 persons, who are both subjects of the same country, 
 who designedly go to a foreign country and contract 
 marriage there, in order to evade the law of the coun- 
 try of their own domicil.^ He applies also similar con- 
 siderations to the case of an unemancipated son or 
 minor belonging to one country, who, finding a woman 
 of his own country in a foreign country, marries her 
 there, without the knowledge of his parents, holding, 
 that, under such circumstances, the marriage ought not 
 to be held valid.* But he propounds as a case of more 
 difficulty, where such a person, going into a foreign 
 country, without any intention of marrying, finds there 
 a woman of his own country to his liking, whom he 
 seeks in marriage and espouses. For, if such a mar- 
 riage is celebrated according to the usual formalities in 
 that country, he deems it valid, as being done in good 
 faith, and affirms, that the parties are not bound to follow 
 the laws of their own country.^ D'Argentre states the 
 general doctrine in the following manner. " When the 
 question is, as to the right or capacity of any person to 
 
 1 Bouhier, Cout. de Bourg. ch. 24, i^ 11, p. 463 ; post, § 123. 
 
 2 Bouhier, Cout. de Bourg. ch. 28, ^ 50, 60, p. 556, 557. 
 
 3 Bouhier, Cout. de Bourg. ch. 28, ^ 61, p. 557. 
 
 4 Bouhier, Cout. de Bourg. ch. 28, § 62, p. 557. 
 
 5 Bouhier, Cout. de Bourg. ch. 38, § 59 to 67, p. 556, 557 ; Id. ch. 24, 
 Hl>P-463.
 
 124 CONFLICT OF LAWS. [CH. IV. 
 
 do civil acts generally, it is to be referred to the 
 judge, who exercises judicial functions in the place of 
 his domicil ; that is to say, to whom his person is sub- 
 ject, and who has authority so to pronounce respecting 
 him, so that whatever he shall promulgate, adjudge, or 
 ordain respecting the rights of persons, ought to obtain, 
 and be of force, in every place, to which he may trans- 
 fer himself, on account of this authority over the per- 
 son." Qiiare cum de personce jure aid haUlitate quceritur 
 ad actus civiles, in imiversum eajudicis ejus potestas est, qui 
 domicilio judicat, id est, cui persona subjicitur, qui sic de eo 
 statuere potest, ut quod edixent, judicdrit ordindrit de person- 
 arum jure, ubicumque oUineat, quocumque se persona contide- 
 rit, propter afficentium personm} Froland asserts the same 
 doctrine and expressly extends it to cases of contract. 
 Le statut personnel iHexerce pas seulement son autorite dans 
 h lieu dii domicile de la personne, qui sa dispensation la suit, 
 et Vaccompagne en quelque lieu qiielle aille contracter ; et 
 qvlelle injlue sur tons les Mens sous quelques coutumes, quits 
 soient assis.^ Mr. Henry, in his judicial capacity, has 
 given the doctrine a like extent in the English colony 
 of Demarara ; for he declares, that in the cases of pro- 
 digals, minors, idiots, and lunatics, the law of the domi- 
 cil accompanies the party everywhere.^ Cochin lays 
 down the doctrine with great boldness, that a marriage 
 contracted in a foreign country by French subjects, 
 although contracted in the form prescribed by the fo- 
 
 1 D'Argentre, de Leg. Briton, art. 218, gloss. 6, n, 4, p. 647 ; ante, 
 ^ 56 ; 1 Froland, M6m. des Statuts. 112 ; Liverm. Dissert. ^ 21, p. 34. 
 
 2 1 Froland, Mem. des Statuts. 156 to 160 ; Id. 112; ante, § 51a. See 
 also 1 Hertii Opera, ^ 4, n. 8, p. 123 ; Id. n. 5, p. 122, edit. 1737 ; Id. p. 
 171, 172, edit. 1715. 
 
 3 Henry on Foreign Law, p. 38, 39; Odwin v. Forbes, Id. p. 95, 96, 
 97.
 
 CH. IV.] CAPACITY OF PERSONS. 125 
 
 reign law, is void, if it violates the laws of France.^ The 
 subjects of the King of France (says he) are always his 
 subjects. And the parties contracting at a place in 
 Brabant, have only that capacity to contract, which is 
 given by the laws of their own country. It is a per- 
 sonal statute, which follows them everywhere.^ 
 
 § 85. Huberus seems in some places to affirm a doc- 
 trine, in some respects quite as extensive, although it is 
 liable to be modified in some measure by the local law ; 
 while in other places he deems it too broad and indis- 
 criminate, and introduces several exceptions. Thus, as 
 we have seen, he lays it down as a general rule ; Qiial- 
 itates personales ccrto loco alicid jure mpressas, ubiqtie cir- 
 cumferri et personam comitari, cum Jioc effectu, ut itbivis lo- 
 corim eo jure, quo tales persona alibi gaudeni vel suljecti 
 sunt, fruiintiir, et suhjiciantur? So, that, according to 
 Huberus, the state or condition of the party, as to capa- 
 city or incapacity in the place of his original domicil, 
 accompanies him everywhere, so, far, and so far only, 
 that the law of the place, where he happens to be, at- 
 taches to him, so far as it touches rights or powers 
 growing out of such capacity or incapacity. A minor, 
 for example, in his own country, is subject in every 
 other country to the laws of minority of the latter coun- 
 try. In regard to the contract of matrimony he holds, 
 that it is to be governed by the law of the place, where 
 the marriage is celebrated, with the exception, however, 
 of cases of incest. "If" (says he) "the marriage is 
 lawful in the place, where it is contracted and cele- 
 
 1 Cochin, (Euvres, Tom. 1, Cause ^ xii, p. 153, 154, 4to, edit. ; Id. 
 Tom. 3, Cause xii. p. 136, 8vo. edit. 1821. 
 
 2 Ibid. 
 
 3 Huberus, De Conflictu Legum, Lib. 1 tit. 3, ^ 12, 13. 
 
 11*
 
 126 CONFLICT OF LAWS. [CH. IV. 
 
 brated, it will be beld valid and have eJDfect everywhere, 
 with this exception, that it does not create a prejudice 
 to others. To which it may be added, if it is not of an 
 evil example ; as if it should be a case of incest, within 
 the second degree according to the law of nations." >S'/ 
 Ucitmn est eo hco, ubi contradum et celebratiim est, iibiqiie 
 validiim erit, affectumque habelit siib eddem exceptione, ^re- 
 judicii edits non creandi. Cid licet addere, si exemijli nimis 
 sit abominandi, id si incestum Juris gentium in secundo gradu 
 contingeret, alicuU esse permissum ; quod vix est, id iisu 
 venire possit} Huberus also puts another exception, 
 where persons belonging to one country go into another 
 to be married, merely to evade the law of their own 
 country, in which case he holds the marriage to be void, 
 although it is good by the law of the place, where it is 
 celebrated.^ Scepe fit, ut adolescentes std) curatorihiis 
 agentes,furtivos mnores miptiis conglutinare cupientes, abeant 
 in Frisiani Orientalem, aliave loca, in quibus curatorum con- 
 sensus admatrimoniumnonreqidretur,juxta leges Romanos, 
 qiice apiid nos hac parte cessant. Celebrant ibi matrimoni- 
 um, et max redeant in Patriam. Ego ita existimo, ham 
 rem manifesto j)ertinere ad eversionem juris nostri ; et ideo 
 mn esse Magistratus lieic obligatos, ^jure Gentium, ejusmo- 
 di nuptias agnoscere et ratas habere. MuUoque magis sta- 
 iuendum est, cos contra Jus Gentium facere videri, qui civi- 
 bus alieni imp)eni sua facilitate, jus patriis Legibus contra- 
 rium, scientes, volentes, impertiurdur? 
 
 § 86. This latter doctrine has, upon the most solemn 
 consideration, been overturned in England, as we shall 
 hereafter see ;'' and such a marriage in evasion of the 
 
 1 Huberus, Lib. I, tit. 3, § 8 ; post, ^ 122. 
 
 2 Ibid. 
 
 3 Ibid. ; post, ^ 123. 
 
 4 See 2 Kent. Coram. Lect. 26, p, 91, 92, 3d edit. ; post, ^ 123, 124.
 
 CH. IV.] CAPACITY OF PERSONS. 127 
 
 domestic laws has been held valid. But we are not, 
 therefore, to conclude that every marriage by and be- 
 tween British subjects in foreign countries will be held 
 valid, because it is celebrated according to the laws of 
 such countries. On the contrary, where the laws of 
 England create a personal incapacity to contract mar- 
 riage, that incapacity has, in some cases, been held to 
 have a universal operation, so as to make a subsequent 
 marriage in a foreign country a mere nullity, when liti- 
 gated in a British court.^ 
 
 § 87. Indeed, the general principle adopted in Eng- 
 land in regard to cases of this sort appears to be, that 
 the Lex loci contractus shall be permitted to prevail, un- 
 less when it works some manifest injustice, or is co7itra 
 bonos mores, or is repugnant to the settled principles 
 and policy of its own laws. An illustration of the gene- 
 ral principle, and of the exception, may be found in 
 the known difference between the Scottish law and the 
 English law, on the subject of the legitimation of ante- 
 nuptial offspring. By the law of Scotland illegitimate 
 children become by the subsequent marriage of the pa- 
 rents, legitimate, and may inherit as heirs. But the 
 law of England is otherwise ; and a subsequent mar- 
 riage between the parents will not take away the cha- 
 racter of illegitimacy. Upon a recent occasion the ques- 
 tion arose in an English court (the Court of King's 
 Bench,) whether a person, born in Scotland of Scottish 
 parents, who afterwards intermarried there, and thereby 
 
 1 Conway v. Beasley, 3 Hagg. Ecc. R. 639, 647, 652 ; Lolley's Case, 
 1 Russell & Ryan, Cr. Cas. 236. It will probably be found very difficult 
 to maintain the doctrine in Lolley's case, and in subsequent discussions its 
 authority has certainly been a good deal shaken. See Warrender v. War- 
 render, 9 Bligh, R, 89 ; and post. ^ 117, 124, 221 to 231.
 
 128 CONFLICT OF LAWS. [CH. IV. 
 
 became legitimate in Scotland, could inherit real estate 
 as a legitimate heir in England. It was held by the 
 Court that he could not.^ On that occasion it was ad- 
 mitted by the Court, that a foreign marriage, however 
 solemnized, if good by the foreign local law, ought to 
 be held valid everywhere ; but that it did not follow 
 from this, that all the consequences of such a marriage 
 by such foreign local law were to be adopted. On the 
 other hand, that it was sufficient, that all such conse- 
 quences, as follow from a lawful marriage solemnized in 
 England, were admitted to govern in such cases." One 
 of the learned judges on that occasion said ; " The very 
 rule, that a personal status accompanies a man every- 
 where, is admitted to have this qualification, that it 
 does not militate against the law of the country, where 
 the consequences of that status are sought to be en- 
 forced.^ 
 
 § 87 a. Yet the law of foreign countries as to legiti- 
 macy is so far respected in England, that a person, 
 illegitimate by the law of his domicil of birth, will be 
 held illegitimate in England.'' Thus, it has been decid- 
 
 1 Doe d. Birthwhistle v. Vardell, 5 Barn. & Cress. 438 ; S. C. 
 9 Bligh, R. 32 to 88 ; 7 Clark & Finn. 895. 
 
 2 Doe d. Birthwhistle v. Vardell, 5 Barn & Cress. 438 ; S. C. 9 Bligh, 
 R. 32 to 88. This case was carried to the House of Lords by a Writ of 
 Error ; and there the question was propounded to the judges, who re- 
 turned an answer affirming the decision of the King's Bench. But the 
 question has since been reargued, and the case has not as yet been finally 
 decided by the House of Lords. [It has since been decided, and is reported 
 in 7 Clark & Finn. 895.] See post, § 93. 
 
 3 Per Littledale, J., 5 Barn. & Cress. 455. 
 
 4 See Munro v. Saunders, 6 Bligh, R. 468 ; Shedden v. Patrick, and 
 The Strathmore Peerage, cited in Barn. & Cress. 444 ; in 3 Hagg. Ecc. 
 R. 652 ; in 6 Bligh, R. 474, 475, 487 ; and in 9 Bligh, R. 51, 52, 75, 76, 
 80, and reported in 4 Wils. «fc Shaw, R. App. 89 to 95.
 
 CH. IV.] CAPACITY OF PERSONS. 129 
 
 ed by the House of Lords, as a general doctrine, that 
 the courts of the country where the lands lie, in a 
 question respecting the heirship to these lands, ought 
 to govern themselves as to the question of legitimacy 
 not by the law of the country, where the lands lie, but 
 by that of the country, where the marriage of the pa- 
 rents was contracted, and the child born ; and if he is 
 not the legitimate heir by that foreign law, his claim to 
 the inheritance ought to be rejected.i The natural 
 conclusion from this doctrine would seem to be, that, if 
 he was the legitimate heir by that foreign law, his claim 
 to the inheritance ought to be firmly established. Yet 
 this conclusion has been pointedly repelled by the 
 learned judges in the case already alluded to,^ and 
 which we shall have occasion to consider more fully 
 hereafter.^ 
 
 § 88. Another illustration, touching the capacity of 
 persons to contract marriage, may be stated from Eng- 
 lish jurisprudence. By the law of England marriage 
 is an indissoluble contract, except by the transcendent 
 power of Parliament. Hence it has been held, that a 
 marriage once celebrated between British subjects in an 
 English domicil, cannot be dissolved by a divorce ob- 
 tained under the laws of a foreign country, to which 
 the parties may temporarily remove.^ Thus, for exam- 
 
 1 See Shedden v. Patrick, and the case of The Strathmore Peerage, as 
 cited in 9 Bligh, R. 51, 52, 75, 76, 80, 81. 
 
 2 Birthwhistle v. Vardell, 9 Bligh, R. 52, 53. — I confess myself wholly 
 unable to reconcile these latter decisions with the former. The attempt 
 to reconcile them seems to me more ingenious than satisfactory. Lord 
 Brougham's comments on the subject, in Birthwhistle v. Vardell, 9 Bligh, 
 R. 75, 80, 81, appear to me exceedingly forcible and difficult to be an- 
 swered. Post, ^ 93. 
 
 3 Post, 93, 94. 
 
 4 Lolley's Case, 1 Russ. & Ryan's Cases, 236. But see Warrender v. 
 Warrender, 9 Bligh, R. 89 ; post, § 219 a.
 
 130 CONFLICT OF LAWS. [CH. IV. 
 
 pie, that an English marriage cannot be dissolved, un- 
 der such circumstances, by a Scotch divorce, regularly- 
 obtained according to the law of Scotland, by persons 
 going thither for that purpose, who have their domicil 
 in England.^ And a second marriage in Scotland after 
 such divorce will be held unlawful, and will subject the 
 parties to the charge of bigamy.^ This doctrine, how- 
 ever, seems open to much controversy ; and can scarcely 
 now be held firmly established, if indeed it has not 
 been overthrown by recent adjudications.^ Perhaps it 
 yet remains an undecided question in the English law, 
 (as we shall hereafter see,) whether a lond fide change 
 of domicil, and a divorce subsequently obtained, would 
 change the legal predicament of the parties in an Eng- 
 lish tribunal.'' But it has been directly decided, that 
 the mere fact, that the marriage takes place in England 
 between British subjects, will not, if the husband at 
 that time has his domicil in Scotland, take away the 
 right of the courts in Scotland to entertain jurisdiction 
 to decree a divorce founded on such domicil.^ But 
 this subject will presently come more fully under con- 
 sideration.^ 
 
 § 89. In the American courts the doctrine, as to ca- 
 pacity or incapacity to marry, has been held to depend 
 generally on the law of the place, where the marriage 
 is celebrated, and not on that of the place of domicil of 
 the parties. An exception would doubtless be applied 
 
 1 See Rex v. Lolley, 1 Russ. and Ryan, C. 236 ; Tovey v. Lindsay, 1 
 Dow, R. 124 ; Beazley v. Beazley, 3 Hagg. Ecc. R. 639. See also Fer- 
 gusson on Marr. and Div. Appendix, 269 ; Warrender v. Warrender, 9 
 Bligh, R. 89 ; post, ^ 219 a. 
 
 2 Ibid. See Warrender v. Warrender, 9 Bligh, R. 89 ; post, § 219 a. 
 
 3 Ibid. 4 Ibid. 5 Ibid. 
 6 Post, ch. 7, from ^ 200 to 231.
 
 GH. IV.] CAPACITY OF PERSONS. 131 
 
 to cases of incest and polygamy.^ But, in aflQrmance 
 of the general principle, it has been held, that if a per- 
 son, divorced from his first wife, is rendered by the law 
 of the place of the divorce incapable of contracting a 
 second marriage, still, if he contracts marriage in ano- 
 ther state, where the same disability does not exist, 
 the marriage will be held valid.^ And a marriage, cele- 
 brated in a foreign state, to evade the law of the place 
 of domicil, is on the same account held valid.^ Mr. 
 Chancellor Kent formerly laid down the doctrine in re- 
 gard to contracts generally in terms, which might admit 
 of a different interpretation. He said ; " The personal 
 incompetency of individuals to contract, as in the case 
 of infancy, and the general capacity of parties to con- 
 tract, depend, as a general rule, upon the law of the 
 domicil." ^ But he was then to be understood as refer- 
 ring to the law of the domicil, only when it is the place, 
 where the contract is made ; for in the same paragraph 
 he stated, that the Lex loci contractus governs in relation 
 to the validity of contracts ; and he applied it espe- 
 cially to nuptial contracts.^ 
 
 1 Post, ^113, 114. 
 
 2 2 Kent, Comm. 91 to 93, 3d edit. ; Id. 458, 459 ; Putnam v. Putnam, 
 8 Pick. 433 ; West Cambridge v. Lexington, 1 Pick. R. 504 ; De Couche 
 V. Savatier, 3 Johns. Ch. R. 190 ; Conway v. Beazley, 3 Hagg. 639 ; 
 Dickson v. Dickson, 1 Yerger, 10 ; post, § 123. 
 
 3 Ibid. 
 
 4 2 Kent, Comm. Lect. 39, p. 458, 2d edition ; post, § 123. 
 
 5 2 Kent, Comm. Lect. 39, p. 458, 2d edition, and De Couche v. Sava- 
 tier, 3 Johns. Ch. R. 190. — The English authorities, cited by Mr. Chan- 
 cellor Kent, justify this conclusion. One is, Male v. Roberts, in 3 Esp. 
 R. 163, which was a case of a contract by a minor in Scotland, during his 
 temporary residence there, and it was held to be governed by the law of 
 Scotland. Another is, Ex parte Otto Lewis, 1 Ves. R. 298, where a 
 lunatic heir of a mortgagee, who had been declared a non compos in Ham-
 
 132 CONFLICT OF LAWS. [CH. IV. 
 
 § 90. The difficulty of applying any other rule, as to 
 the capacity and incapacity of the person, in respect to 
 the class of nuptial contracts, will become still more 
 clear by attending to the great extent of the parental 
 power, recognized by the continental nations of Europe, 
 and derived by them from the civil law. Parental 
 restraints upon the marriage of minors exist to a very 
 great extent in Germany, Holland, France, and other 
 civil law countries ; to so great an extent, indeed, that 
 the marriage of minors, without the consent of their 
 parents, or at least of their father, is absolutely void ; 
 and the disability of minority is in these countries car- 
 ried to a much greater age than it is by ■ the common 
 law.' In some of these countries majority is not at- 
 tained until thirty j and until a very recent period, 
 even in France, the age of a majority of males was 
 fixed at twenty-five and of females at twenty-one. It 
 
 burg, and no commission of lunacy had been taken out in England, was 
 ordered to convey the estate in payment of the mortgage in Hamburg, 
 under Statute 4 Geo. ch. 10. Here, Lord Hardwicke manifestly acted 
 upon the ground, that the mortgage-money was personal property, and, 
 the lunatic being domiciled in Hamburg, the court would take notice of his 
 disability to convey there, by the law of that place. The remaining au- 
 thority is Pardessus. His doctrine is certainly more broad. But it could 
 not have been intended by Mr. Chancellor Kent to overrule the English 
 doctrine, and his own prior statement, upon the authority of a foreign ju- 
 rist. The ambiguity is corrected in the third edition ; and the words " the 
 law of the place of contract" are substituted for the words "the law of 
 the domicil." 2 Kent, Comment. Lect. 39, p. 458, 3d edition. Pardes- 
 sus is an authority in favor of the limited doctrine, that a person incapaci- 
 tated by the law of his domicil cannot contract with validity there ; but he 
 carries his doctrine much farther. The cases of Saul v. His Creditors 
 17 Martin, R. 596, 598, and Baldwin u. Gray, 16 Martin, R. 192, 193, 
 already cited, establish a like limited doctrine, and decide, that a contract 
 by a minor is to be governed by the Lex loci contractus ; ante, § 75. 
 
 1 2 Kent, Comm. Lect. 26, p. 86, 3d edition ; I Black. Coram. 437 ; 
 Ruding V. Smith, 2 Hagg. Consist. R. 372, 389 ; Id. 395. 1 Brown, Civ. 
 and Adm. Law, 59.
 
 CPI. IV.] CAPACITY OF PERSONS. 133 
 
 is now fixed at twenty-one in all other cases, except 
 for the purpose of contracting marriage ; and a mar- 
 riage cannot even now be contracted in France by a 
 man until twenty-five years of age, and by a woman 
 until twenty-one, without the consent of their parents, 
 or at least of their fathers, if the parents differ in 
 opinion/ Yet France has ventured upon the bold doc- 
 trine that the marriages of Frenchmen in foreign 
 countries shall not be deemed valid, if the parties are 
 not by its own law competent to contract by reason of 
 their being under the parental power.^ There can be 
 little doubt, that foreign countries, where such mar- 
 riages are celebrated, will follow their own law, and 
 disregard that of France.^ 
 
 § 91. If we pass from cases of minority to other disabi- 
 lities, enforced by the law of the native domicil, or that of 
 an after acquired domicil, there will be still more reason 
 to doubt, whether any rule of such law, respecting per- 
 sonal capacity and incapacity, ought to be declared to be 
 of universal obligation and efficacy. Let us take the 
 case of a person declared infamous by the law of 
 the place of his domicil. It is said that under such 
 circumstances he ought to be deemed everywhere in- 
 famous. Hinc (says Hertius) in uno loco infamis, iibique 
 infamis habetiir. Surely, it will not be contended, that, 
 if a Protestant should be declared a heretic in a Catholic 
 country, and there rendered infamous, and inhabilitated 
 thereby, he is to be deemed under the like infamy and 
 disability in all Protestant countries. That surely 
 
 1 Code Civil of France, art. 148, 488. 
 
 2 2 Kent, Comna. Lect. 26, p. 93, note, 3d edit. ; Code Civil of France, 
 art. 170 ; Id. art. 148 ; 1 Toullier, Droit Civil, art. 576, 577. 
 
 3 See post, § 123, 124. 
 CONFI.. 12
 
 134 CONFLICT OF LAWS. . [CH. IV. 
 
 would be pressing the doctrine to a wanton extra- 
 vagance.^ Yet certainly many foreign jurists do press 
 it to that extent.^ 
 
 § 92. In like manner, let us consider the civil disa- 
 bilities imposed by the English laws, in cases of out- 
 lawry, excommunication, civil death, and popish recu- 
 sancy.^ It would be difficult to maintain, that these 
 accompanied the person to America, where no like 
 disabilities exist, and where they are foreign to the 
 whole genius of our institutions. Yet many foreign 
 jurists strenuously maintain the doctrine.'* We have 
 no positive laws declaring that such foreign disabilities 
 shall not be recognized. But an American court would 
 deem them purely local, and incapable of being enforced 
 here. Even the conviction of a crime in a foreign 
 country, which makes the party infamous there, and 
 incapable of being a witness in their courts, has been 
 held not to produce a like effect here.^ The capacity 
 or incapacity of any persons, to do acts in their own 
 country, would undoubtedly under such circumstances 
 be judged by their own laws ; but not their capacity or 
 incapacity to do the like acts in any foreign territory, 
 where different laws prevail. 
 
 § 93. Foreign jurists, also, generally, although not 
 universally, maintain, that the question of legitimacy or 
 illegitimacy is to be decided exclusively by the law of 
 
 1 See 1 Hertii Opera, § 4, n. 8, p. 124, edit. 1737; Id. 178, edit. 1716; 
 Liverm. Diss. p. 30, 31. 
 
 2 See Henry on Foreign Law, p, 30 ; I Boullenois, Observ. 4, p. 52 to 
 67 ; 1 Voet, ad Pand. Lib. 1, tit. 4, n. 7, p. 40. 
 
 3 See 3 Black. Coram. 101, 102, 283 ; 1 Black. Coram. 132 ; 4 Black. 
 Coram. 54, 319, 320. 
 
 ■» 1 Boullenois, Observ. p. 59 to p. 67 ; 2 Boullenois, p. 9, 10, 19. But 
 see contra, J. Voet, De Statut. ^ 4, ch. 3, n. 17, 18, p. 130, edit. 1737. 
 5 Commonwealth v. Green, 17 Mass. R. 515, 540, 541.
 
 CH. IV.] CAPACITY OF PERSONS. 135 
 
 the domicil of origin. They assert the general maxim 
 to be of universal obligation, Pater est, qiiem justce nup- 
 ticc demonstrant, applying it in its broadest sense.^ 
 They therefore hold, that if by the law of a country 
 (as, for example, of Scotland,) a man, born a bastard, 
 becomes legitimate by a subsequent marriage of his 
 parents there, he ought to be deemed legitimate every- 
 where. And so, on the contrary, if a man would, by 
 the law of the country of his birth, be deemed illegiti- 
 mate (as, for example, in England,) he ought to be 
 deemed illegitimate everywhere, even in another coun- 
 try, where he would by its law otherwise be deemed 
 legitimate.^ 
 
 § 93 a. It has been above stated, that foreign jurists 
 generally, although not universally, hold this opinion ; 
 for there is some diversity of opinion among them, if 
 not as to the application of the rule ex dlrecto to the 
 persons, at least as to its application to property situate 
 in a foreign country. Considering, therefore, the im- 
 portance of the subject, and that it has already under- 
 gone a most elaborate discussion in England, in the 
 case already adverted to, and which we shall have 
 occasion to consider more fully hereafter,^ it is desira- 
 
 1 Post, ^ 93 a to § 93 m. 
 
 2 1 BouU. Obs. 4, p. 62 to 64. But see Voet, de Statut. § 4, ch. 3, n. 
 15, p. 138, edit. 1712 ; 1 Hertii Opera, ^ 4, n. 14, 15, p. 129, edit. 1737. 
 — Legitimation by a subsequent marriage is admitted with different modi- 
 fications by the law of Scotland, France, Spain, Portugal, Germany, and 
 most of the continental nations of Europe. The rule was imported into 
 their jurisprudence from the Roman Law. 1 Burge, Comment. P. l,ch. 3, 
 ^ 2, p. 92, 93 ; Cod. Lib. 5, tit. 27, 1. 5 ; Novell. 78, ch. 4 ; Id. 89, ch. 8. 
 In some of the American States the same rule prevails. 1 Burge, Com- 
 ment, on Col. and For. Law, ch. 3, ^ 3, p. 101 ; Griffith's Law Register. 
 
 3 Birthwhistle v. Vardell, 5 Barn. & Cresw. 438 ; S. C. 9 Bligh, R. 
 82 ; ante, ^ 81 ; 7 Clark & Finn. 895.
 
 136 CONFLICT OF LAWS. [CH. IV. 
 
 ble, that doctrines maintained by foreign jurists, as well 
 as the reasoning of the English courts on the subject, 
 should be here brought under review. 
 
 § 93 h. It seems then generally admitted by foreign 
 jurists, that, as the validity of the marriage must de- 
 pend upon the law of the country where it is cele- 
 brated, the status^ or state, or condition, of their offspring, 
 as to legitimacy or illegitimacy, ought to depend upon 
 the same law. So that, if by the law of the place of 
 the marriage, (at all events, if the parents were then 
 domiciled there,) the offspring, although born before 
 the marriage, would be legitimated, they ought to be 
 deemed legitimate in every other country, for all pur- 
 poses whatsoever, including heirship of immovable pro- 
 perty.-^ 
 
 § 93 c. This is certainly the doctrine maintained by 
 many, perhaps by a large majority of foreign jurists.^ 
 Vinnius says ; Item, jus ijersonce hie esse, quod statwn el 
 eonditionem personcs seqidtiir. Nam status ijjse est personce 
 conditio, aid qualitas, qua efficit, ut hoe vel illo jure utatur, 
 ut esse liherwn, esse servum, esse ingemium, esse lihertinum, 
 esse alieni, esse sui juris? Huberus also extends the rule 
 not only to the marriage itself, but also to all rights and 
 effects flowing therefrom. Porro, non tantum ipsi con- 
 tractus ipsceque nuptice, certis locis ritd cekbratcB, ubique 
 pro jusiis et validis hdbentur, sed etiam jure et effecta con- 
 tractuum et nuptiaru7n, in iis locis recepta, ubique vim suam 
 obtinebunt^ Stockmannus says ; Statuta, in personas di- 
 
 1 See 1 Burge, Coram, on Col. and For. Law, P. 1, ch. 3, p. 101 to p. 
 106. 
 
 2 See 1 Burge, Comment on Col. and For. Law, P. 1, ch. 3, ^ 3, p. 101 
 to p. 106. 
 
 3 Vinnius, ad Inst. Lib. 1, tit. 3, Introd. 
 
 ^ Huberus, De Conn. Leg. Lib. 1, tit. 3, ^ 9.
 
 CH. IV.] CAPACITY OP PERSONS. 137 
 
 recia, quce, certam us qiialitatem affigunt, transeimt qiiidem 
 cum per^onis extra territorkmi statuentim, tit personoi iili- 
 qiie sit imiformis, ejusque iiniis status} 
 
 § 93 d. Bouliier adopts the doctrine in its fullest ex- 
 tent, and applies it to the very case of legitimacy. He 
 says, that the state of the child, whether legitimate or 
 illegitimate, must be decided by the law of the domicil 
 of his parents ; and that this is an inviolable rule upon 
 every question of his state or condition. And, hence, 
 he holds, that if he is at his birth illegitimate, and he is 
 legitimated by a subsequent marriage in the same coun- 
 try between his parents, he is in all respects to be 
 treated as legitimate everywhere.^ Hertius holds a 
 similar opinion.^ Froland is of the same opinion.^ 
 Boullenois is very full on the same point. He holds 
 that the general rule is. Pater est, quern jiistm niqjtcE dc- 
 monstrant ; and that if a person is legitimate or illegi- 
 timate, by the law of the place of the marriage, he is to 
 be held of the same state and condition, wherever he 
 may go, and whatever change of domicil may take 
 place.^ Hence he declares, that if by the law of a 
 country a man born a bastard is legitimated by the sub- 
 sequent marriage of his parents, or e contra, if by the 
 
 1 Stockman. Decis. 125, ^ 6, p. 262 ; also cited 1 Boullenois, Obser. 6, 
 p. 131 ; Livermore, Dissert. ^ 50, p. 52. — John Voet, in the most ex- 
 plicit terms, admits, that this rule is held to apply to questions of legiti- 
 macy by many jurists, and especially by D'Argentr6, by Grotius, by 
 Christinaeus, and by Rodenburg. J. Voet, Comm. ad Pand. Lib. 1, tit. 4, 
 n. 7, p. 40. 
 
 2 Bouhier, Cout. de Bourg. ch. 24, ^ 122, 123, p. 481. 
 
 3 Hertii, de Collis, Leg. Tom. 1, \ 4, n. 15, p. 184, edit. 1716 ; Id. 
 p. 129, edit. 1737. 
 
 ■* 1 Froland, Mem. ch. 5, § 4, p. 89 ; Id. ch. 7, §"2, p. 156, edit. 1716; 
 ante, § 51 a. 
 5 1 Boullenois, Observ. 4, p. 62, 63 ; post, ^ 93 i. 
 12*
 
 138 CONFLICT OF LAWS. [CH. IV. 
 
 law of the country such subsequent marriage does not 
 legitimate him, he is in every other country affected by 
 his original state or condition ; that is to say, if legiti- 
 mated by the subsequent marriage, he is legitimate 
 everywhere ; if not so legitimated, he is held illegiti- 
 mate everywhere.^ Even Burgundus, and Stockman- 
 nus, and Christinseus, whose systems are founded upon 
 a different theory, viz., that personal statutes have no 
 extra-territorial effect, admit that so far as the person is 
 concerned, though not as to immovable property, (as we 
 shall presently see,^) the original state or condition 
 ought to govern everywhere.^ The opinion of Paul 
 Voet and John Yoet on the same subject is far more 
 limited and qualified, and will come under our review 
 hereafter.^ 
 
 § 93 ^. The same general doctrine is avowedly adopt- 
 ed by the Courts of England. Lord Stowell on one 
 occasion in effect maintained, that by the law of Eng- 
 land the status or condition of a claimant must be tried 
 by reference to the law of the country, where that status 
 originated.^ The same doctrine was adopted by the 
 judges of England, in giving their opinion to the House 
 of Lords. They admitted, in the most solemn form, 
 that the legitimacy or illegitimacy of a person must be 
 decided by the law of the place where the marriage 
 was celebrated ; and that if by the law of that place 
 
 1 Ibid. 2 Post, ^ 93 k. 
 
 3 Ante, § 52 ; Burgundus, Tract. 1, ^ 3, p. 15 ; Christinaeus, Tom. 2, 
 Decis. 3, § 3, p. 4 ; Id. Decis. 56, ^ 12, p. 55 ; Stockmann. Decis. 125, 
 ^ 6, 9, p. 262, 263 ; 1 Boullenois, Observ. 4, p. 130, 131. 
 
 4 Post, § 93 1. 
 
 5 Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 54, 59 ; S. C. 9 Bligh, 
 R. 45, 46.
 
 CH. IV.] CAPACITY OF PERSONS. 139 
 
 (for example Scotland) a son, born before the marriage 
 of his parents, would by a subsequent marriage between 
 them, be legitimated, that status of legitimacy must be 
 deemed ecjually true and valid everywhere else, where 
 the question might arise.^ 
 
 § 93/. Still, however, although the general doctrine 
 is thus extensively admitted, there is some diversity of 
 opinion, as to the true nature and extent of its appli- 
 cation in regard to different kinds of property, and 
 also in regard to the circumstances of particular cases." 
 Thus, for example, although its positive application in 
 regard to movable property is generally admitted ; yet, 
 in regard to immovable property in a foreign country 
 there has been some contrariety of judgment. The cir- 
 cumstances, also, under which the question of legiti- 
 macy or illegitimacy may arise, may be very various, and 
 admit of important distinctions in the application of the 
 general doctrine. The birth may be in one country, 
 the marriage be in another, and the domicil of the pa- 
 rents be in a third.^ 
 
 § 93 y. Several cases may easily be put to illustrate 
 this suggestion. The question of legitimacy or illegiti- 
 macy may arise among others in the following cases. 
 (1.) Where a child is born before marriage in the domi- 
 cil of his parents, who afterwards intermarry there, and 
 by the law of that domicil the child is thereby legiti- 
 mated. (2.) Where a child is born before marriage in 
 
 1 Birthwhistle v. Vardill, 9 Bligh, R. 45, 46, 48 ; Id. 71 ; post, (J 93 n, 
 §93o. 
 
 2 See 1 Burge, Comment, on Col. and For. Law, P. 1, ch. 3, § 3, 
 p. 105, 106, 109, 110. 
 
 3 See Lord Brougham's Remarks in Birthwhistle v. Vardill, 9 Bligh, 
 R. 78.
 
 140 CONFLICT OF LAWS. [CH. IV. 
 
 the domicil of his parents, and by the law thereof, a 
 subsequent marriage would legitimate the child, and 
 the parents are afterwards married in another country, 
 by whose law no such legitimation would follow. (3.) 
 Where a child is born before marriage in the domicil of 
 his parents, by whose law no legitimation would follow 
 on their subsequent marriage, and they remove to a new 
 domicil, where the law would, upon such marriage, le- 
 gitimate the child, and they are there married. (4.) 
 Where the child is born before marriage in the domicil 
 of his parents, by whose law no legitimation would fol- 
 low from a subsequent marriage, and they are there 
 married,, and subsequently remove to a new domicil, by 
 the law whereof such subsequent marriage would legi- 
 timate the child. It is plain that these several cases 
 may admit of, if they do not absolutely require, the 
 application of different principles to resolve them ; and 
 different questions may be put in respect to them. 
 Ought the law of the place of birth, or that of the place 
 of the marriage, or that of the actual domicil of the 
 parents, or that of the actual domicil of the child, to 
 govern ? ^ 
 
 § 93 li. The most simple case, and that which has 
 most frequently arisen for discussion, is the first stated ; 
 where the birth, domicil, and marriage of the parties 
 
 1 A case still more complicated is said to be now pending before the 
 House of Lords, on an appeal from Scotland. In effect it is this. A., a 
 Scotchman, domiciled in Scotland, had an illicit connection with B., an 
 English woman, domiciled in England, by whom he had a son born in 
 England. The parents afterwards intermarried ia England, the father 
 retaining his Scotch domicil. They then returned to Scotland ; and the 
 question before the Court was, whether, under these circumstances, the 
 son was legitimated by the subsequent marriage. The Court of Sessions 
 of Scotland held, that he was. From this decision appeal is taken.
 
 CH. IV.] CAPACITY OF PERSONS. 141 
 
 took place in a country, by the laws whereof a subse- 
 quent marriage would legitimate the child. Suppose, 
 then, the question to arise, whether in such a case the 
 child, so legitimated by such marriage, could inherit 
 lands in another country, by the laws whereof no such 
 legitimation would follow upon such marriage. Or, in 
 other words, let us put the very case, as it actually oc- 
 curred in the courts of England, in the case above 
 alluded to,^ the case of an illegitimate son born in Scot- 
 land, whose parents afterwards intermarried there, and 
 dying, held lands in England ; would such son be en- 
 titled to inherit the land, as lawful heir, under the law 
 of England ? We have already seen, how this ques- 
 tion has been decided by the English courts ; ^ but, as 
 the question is still supposed to be unsettled there, and 
 is also of very general applicatiDn and importance, it 
 may be well to give it a fuller consideration. 
 
 93 i. It is plain, from what has been already stated, 
 and indeed is directly established by their positive de- 
 clarations, that those of the foreign jurists already 
 mentioned, who affirm the general doctrine of the uni- 
 versality of the rule, that capacity and incapacity de- 
 pend upon the law of the domicil of birth, and that it 
 equally applies to movable property and immovable pro- 
 perty, situate in foreign countries, would hold the same 
 rule applicable to the question of legitimacy and illegiti- 
 macy, in regard to the inheritance of real property in all 
 foreign countries. This is certainly maintained by Vinni- 
 us,Huberus,Wesel,Froland,Ilodenburg,Bouhier,Boulle- 
 nois, Pothier, and Merlin,^ and probably by Baldus and 
 
 1 Birthvvhistle v. Vardill, 5 Barn. & Aid. 438 ; S. C. 9 Bligh, R. 51, 
 52 ; ante, ^ 93 a, § 93 e ; post, 93 n. 
 
 2 Ante, ^ 87. 
 
 3 Ante, ^ 51 a, 52, 53, 54, 93, 93 d.
 
 142 CONFLICT OP LAWS. [CH. IV. 
 
 Grotius.^ Hertius puts the converse case ; An Jilius, 
 quern pater ante legitimimi conmibimn in Anglid geniierat, 
 succedere possit ]jatri hide naturali in bonis ex Anglid sitis ? 
 And he holds, that he could not ; because the son, be- 
 ing illegitimate in England, would be held illegitimate 
 everywhere.^ And this naturally flows from one of 
 his rules ; Quando lex in personam dirigitur, respiciendum 
 est ad leges illins civitatis, qiKZ personam liabet siibjeetam? 
 Bouhier states this as the universal rule (as we have 
 seen ; ^) but he admits, that if the law of a particular 
 nation should allow the inheritance only to a child born 
 in lawful matrimony, (only in loyal marriage,) then as 
 to land there situate, it ought to prevail, upon the ground 
 that the law, in such a case, designated the condition 
 of heirship. And this seems to have been also Dumou- 
 lin's opinion.^ Boulleilois (as we have seen ^) holds the 
 doctrine without any qualification whatever. He presses 
 the doctrine further, and insists, that if a child is 
 born before marriage in England, and his parents are 
 afterwards naturalized in France, and subsequently in- 
 termarry there, the child becomes legitimate to all in- 
 tents and purposes.'' He adds, that if a child is so born 
 illegitimately in England, and his parents marry there, 
 and then die, and he then takes up his domicil in 
 
 1 J. Voet, ad Pand. Lib. 1, tit. 4, n. 7, p. 40 ; Liverm. Dissert. § 56, 
 p. 57, ^ 109 to 114, p. 84 to p. 87. 
 
 2 1 Hertii, Opera. Do Collis. Leg. ^ 4, n. 15, p. 183, edit. 1716 ; Id. 
 p. 129, edit. 1737. 
 
 3 Id. ^ 4, n. 8, p. 175 ; Id. p. 123, edit. 1837. 
 
 4 Ante, ^ 93 d. 
 
 5 Bouhier, Cout. de Bourg. ch. 24, ^ 124, p. 481. 
 
 6 Ante, ^ 93 d ; 1 Boullenois, Observ. 4, p. 62, 63 ; Id. Obs. 6, p. 129, 
 130, 134 to 137. 
 
 1 1 Boullenois, Observ. 4, p. 62, 63. Ante, ^ 93 d.
 
 CH. IV.] CAPACITY OF PERSONS. 143 
 
 France, and is naturalized there, he will be entitled to 
 succeed to their property in France, to the exclusion of 
 collaterals.^ 
 
 § 93 1:. Burgundus, Christinoeus, and Stockmanuus 
 may be thought to hold the contrary doctrine, upon the 
 general foundation of their system, that personal laws 
 have no operation as to immovable property situate 
 elsewhere.^ But I am not aware, that they have ever 
 directly discussed this question. And it may be, that 
 while they hold that immovable property must, as to 
 heirship, be decided by the Lex loci status, they may 
 deem the capacity of legitimacy, as to that heirship, as 
 conclusively established by the law of the birth and 
 domicil of the party. The one doctrine is certainly not 
 necessarily inconsistent with the other.^ 
 
 § 93 ^. Paul Voet and John Voet, are, as far as my re- 
 searches have gone, the only jurists, who contend, that 
 the law of legitimacy of the domicil of the party, 
 although a personal statute, is exclusively, like all other 
 personal statutes, confined to the territory, and has no 
 operation directly or indirectly beyond it. Veriiis est 
 (says John Voet) jyersonalla, non magis qiiam realm, ter- 
 ritoniim statiientis posse excedere, sive directo, she per con- 
 sequentiam ; and he goes on (as we have seen'*) to deny, 
 that a bastard, who is legitimated by the law of his do- 
 
 1 1 BouUenois, Obs. 4, p. 63. 
 
 2 See Burgundus, Tract. 1, n. 8, 10, 25, 26 ; Christineeus, Vol. 2, Lib. 
 1, Decis. 56 ; Stockmann. Decis. 125, n. 10; Livermore, Dissert, t^* 47, 
 p. 50 ; Id. ^ 106, p. 81 ; ante, ^ 93 d. 
 
 3 John Voet seems to have understood, that those jurists, who hold, 
 that legitimacy by the law of domicil extended the same capacity every- 
 where, gave the effect to it here supposed. J. Voet, ad Pand. Lib. 1, tit. 
 4, n. 7, p. 40. 
 
 4 Ante, § 54 a ; Liverm. Dissert. ^ 51, 52, p. 54.
 
 144 CONFLICT OF LAWS. [CH. IV. 
 
 micil, can inherit by succession property situate in 
 another country, where no such legitimation would take 
 place. Paul Yoet holds the same opinion. Quid aiitem 
 statiiendum erit de legUimato in irno territorio ; censelitiir, ne, 
 ratione lononim alihijacenUiim, iibi legitimatus, mn erat sta- 
 tiitiim vires siios excerere ; vel, an ilia qualitas sen Jialilitas, 
 ewn iibique locorum comitahitur, quoad efectimi conseqiien- 
 dce dignitatis, vel siiccedendi al) intestato ? Respondeo, etsi 
 per legitimationem JiaUUtetur persona, ut velint D. D., quali- 
 totem earn comitari ubique locorum, etiam ex comitate id ser- 
 vari possit ; qida tamen p)otissimiim ilia legitimatio fit ad ef- 
 fectiim vel honoris vel hereditatis conseqiiendce ; in qiiam ni- 
 Jiil juris hahet is, qida hi siio territorio legitimavit ; existima- 
 rem ilium legitimationem ad lionores subeundos et hereditatem' 
 extra territorium capiendam non sufficere> 
 
 § 93 m. The weight of foreign authority would, there- 
 fore, on the whole, seem decidedly to preponderate in 
 favor of the rule, that an illegitimate person, who by 
 the subsequent marriage of his parents becomes legiti- 
 mated, as heir by the law of his domicil, ought to be 
 deemed such as to the inheritance of land in all other 
 countries, at least, where it is not expressly prohibited 
 by the terms of the local law, that such a person, born 
 before marriage, should inherit.^ Indeed, the opinion 
 of the Voets is perhaps less fairly maintainable, because 
 it proceeds upon the ground, tliat the status or condition 
 of the person by the law of his domicil has no operation 
 beyond the territory, either directly or consequentially. 
 To this extent the doctrine has certainly never been 
 carried in Eno;land.^ 
 
 1 Paul Voet, De Statut. § 4, ch. 3, ^ 15, p. 156, edit. 1661 ; Liverm. 
 Dissert. ^ 51, 52, p. 54. 
 
 2 Liverm. Dissert. § 57 to 59, p. 58, 59. 
 
 3 Ante, § 93 e.
 
 CII. IV.] CAPACITY OF PERSONS. 145 
 
 § 93 n. In the case already alluded to in the English 
 courts, where the question was, w^hether a son, born of 
 Scottish parents in Scotland before marriage, but who 
 afterwards intermarried there, could inherit lands in 
 England, as heir, there was much learned discussion on 
 the point. The Court of King's Bench decided in the 
 negative, and that opinion was afterwards, upon a writ 
 of error to the House of Lords, held by all the Judges 
 of England to be correct. But it not being satisfactory, 
 the case has since been ordered to be reargued, and is 
 still pending.^ Lord Brougham upon this occasion ex- 
 pressed an opinion directly opposed to that of the learned 
 judges. It may, therefore, be well to present a summary 
 of the reasoning on each side of the question, and thus 
 to exhibit the grounds of difference. 
 
 § 93 0. It was conceded, on all sides, that the right to 
 inherit lauds in England must depend upon the laws of 
 England ; in other words, that the right of inheritance 
 follows the law of the rei sitce, and not that of the do- 
 micil of the parties. In every case, therefore, in which 
 an inheritance is sought in England, the question is, 
 whether the claimant is the heritable heir according to 
 the law of England. The learned Chief Baron Alexan- 
 der, who delivered the opinion of the Judges against 
 the Scottish claimant, (though legitimate in Scotland,) 
 reasoned to this effect. He admitted, that the status or 
 condition of the claimant must be tried by the law of 
 Scotland, where that status originated ; that by the law 
 of Scotland the claimant was clearly legitimate, and 
 must be held so everywhere. But he insisted, that the 
 
 [1 It has since been elaborately reargued, and the decision of the King's 
 Bench unanimously affirmed ; the question, therefore, may now be consi- 
 dered as at rest. See Birthvvhistle v. Vardill, 7 Clark & Finn. 895] 
 
 CONFL. 13
 
 146 CONFLICT OF LAWS. [CH. lY. 
 
 question was not^ whether the claimant was legitimate 
 or not ; but whether he was heir in England ; that he 
 might be legitimate, and yet might not be heir. By 
 the law of England no person could inherit lands there, 
 unless he was born within lawful wedlock. This was 
 so expressly affirmed by the Statute of Merton, which 
 declared, that " he is a bastard, that is born before the 
 marriage of his parents." In order, therefore, to see, 
 whether the claimant was entitled, it was not sufficient 
 to ascertain, whether he was legitimate ; but also to as- 
 certain, whether he was born in lawful wedlock ; for 
 that circumstance is essential to heirship in England. 
 Lord Coke has, indeed, said ; Hceres, in the legal un- 
 derstanding of the common law, implieth, that he is ex 
 justis miptiis procreatus ; for. Hares legitimus est, qiiem 
 miptice demonstrantr But his expression would have 
 been more accurate if, instead of saying ex justis nvptiis 
 p7'ocreatus, he had said, ex justis nuptiis natiis. As to 
 the argument used for the claimant, that he is deemed 
 born in lawful wedlock, because by a presumption of 
 the Scottish law, a presumption juris et de jure, there was 
 a marriage anterior to the procreation, it is a mere fic- 
 tion of that law ; and cannot govern in England, where 
 the actual fact of birth after marriage decides the right. 
 The cases alluded to, where illegitimacy in the place of 
 birth settled the question against the heirship,^ are per- 
 fectly consistent with this doctrine ; for both facts must 
 concur to establish heirship in England, legitimacy, and 
 birth after marriage. In these cases the first fact was 
 entirely wanting, and in the first step, therefore, in the 
 claimant's title, the ground sunk under him.^ 
 
 • Ante, § 87. 
 
 2 His Lordship's opinion deserves here to be cited at large. " As to the 
 first of these questions, I believe I express the opinion of the Judges,
 
 CH. IV.] CAPACITY OF PERSONS. 147 
 
 § 93 ji;. On the ottier hand, the reasoning of Lord 
 Brougham was to this effect. The reasoning of the 
 
 when I say, in the well-considered language of Lord Stowell, in the 
 case of Dalrymple v. Dalrymple, ' The cause, being entertained in an 
 English court, must be adjudicated according to the principle of the 
 English law, applicable to such a case ; but the only principle, applicable 
 to such a case by the law of England is, that the status or condition of 
 the claimant must be tried by reference to the law of the country, where 
 the status originated ; having furnished this principle, the law of England 
 withdraws altogether, and leaves the question of status in the case 
 put to the law of Scotland.' Such is the sentiment of that great Judge, 
 and such is his language, varied only so far as to apply to a question of 
 legitimacy, what was said of a question respecting the validity of mar- 
 riage. When the question of personal status has been settled upon 
 these principles, when it has been ascertained what the claimant's cha- 
 racter and situatioa are, it becomes then necessary to inquire, what are 
 the rules and maxims of inheritance, which the law of that country, 
 where the inheritance is placed, and whose tribunals are to decide upon 
 it, has stamped and impressed upon the land in debate. In order the 
 more distinctly to explain what is meant, I will suppose a case in many 
 circumstances resembling the present. In addition to the circumstances 
 stated in the question, let it be further supposed, that the father and 
 mother of the claimant had, after their marriage, one or more sons born 
 to them. Suppose then the present claim to be made. The first inquiry 
 having been satisfied, and it being upon that inquiry perfectly ascer- 
 tained, that the claimant is the eldest legitimate son of his deceased 
 parent for the purpose of taking land, and for every other purpose, by 
 the law of Scotland, it will next be requisite to inquire, what are the 
 rules and maxims of inheritance, which the law of England has im- 
 pressed upon that land, which is the subject of the claim. Let it further 
 be supposed, that upon this inquiry it shall turn out, that the land claimed 
 is of that description which is ealled Borough English. This being 
 proved, we think it clear, that the claimant's legitimacy by the law of 
 Scotland, his right to inherit by that law, will give the claimant no 
 right whatever to the land in England held in Borough English. The 
 comity between nations is conclusive to give to the claimant the cha- 
 racter of the eldest legitimate son of his father, and to give him all the 
 rights, which are necessarily consequent upon that character ; but what 
 these rights are respecting English land must be left to the law of 
 England, and the comity is totally ineffectual to alter, in the slightest 
 degree, the rules of inheritance and descent, which the law of England has 
 attached to this English land. It would, unquestionably, descend upon the 
 youngest son. I am anxious to mark clearly the distinction, which I have
 
 148 CONFLICT OF LAWS. [cil. IV. 
 
 judges admitted the validity of tTie marriage, and the 
 status of legitimacy of the claimant. But it was said, 
 
 pointed out, because it is upon that distinction that our opinion turns. I 
 will, therefore, illustrate it by another example. Take the case of Ilderton 
 V. Ilderton (2 H. Black. 145) ; that is the case of a claim to dower by a 
 foreign widow ; whether she is a widow or not, that is, whether she was the 
 lawful wife of the man, who was, during the coverture, seized of the land, 
 is a question, which the law of England permits, upon a claim to English 
 land, to be determined by the foreign law, the law of the country, where the 
 contract of marriage was made ; there the comity stops. When her charac- 
 ter of widow shall have been fixed according to these foreign rules, the law of 
 England comes into action ; and, proceeding inexorably by its own provi- 
 sions and regulations, decides what are the interests in the English land, 
 which her character of widow has conferred upon her. It inquires, what 
 are the rules, which attach upon the particular land in favor of a widow. 
 If, upon that inquiry, it appears, that the land is subject to the common 
 law, it will give her a third ; if it appears to be gavelkind, one half, 
 while she remains casta et sola. If the land be customary land of any 
 manor, the custom must be looked into ; and she can have only what that 
 custom shall bestow, however strange and capricious that custom may be. 
 The distinction, to which I am directing your Lordship's attention, is very 
 familiar to foreign jurists, and is noticed by them as the difference be- 
 tween real and personal status ; the last being those which respect the 
 person, and follow it everywhere ; the first being those which are con- 
 nected with the land, and adhere to it, and are as immovable as the sub- 
 ject to which they are applied. My lords, it appears to us, that the an- 
 swer to the question, which your Lordships have put, must be founded 
 upon this distinction ; — while we assume that B. is the eldest legitimate 
 son of his father, in England as well as in Scotland, we think that we 
 have also to consider, whether that status, that character, entitles him to 
 the land in dispute, as the heir of that father; and we think that this ques- 
 tion, inasmuch as it regards real property situated in England, must be 
 decided according to those rules which govern the descent of real pro- 
 perty in that country, without the least regard to the rules which govern 
 the descent of real property in Scotland. We have therefore considered, 
 whether, by the law of England, a man is the heir of English land, 
 merely because he is the eldest legitimate son of his father. We are of 
 opinion, that these circumstances are not sufficient of themselves, but 
 that we must look further, and ascertain whether he was born within the 
 state of lawful matrimony ; because, by the law of England, that circum- 
 stance is essential to heirship ; and that is a rule not of a personal 
 nature, but of that class, which, if I may use the expression, is sown in 
 the land, springs out of it, and cannot, according to the law of England,
 
 CH. IV.] CAPACITY OF PERSONS. 149 
 
 that the question was of heirship. That was true. 
 But, then, who was the heir ? Why, according to the 
 
 be abrogated or destroyed by any foreign rule or law whatsoever. It is 
 this circumstance, which, in my judgment, dictates the answer we must 
 give to your Lordship's question, namely, that in selecting the heir for 
 English inheritance, we must inquire only who is that heir by the local 
 law. It has appeared to us, that the vice of the appellant's argument 
 consists in treating the question of who shall be heir to English land, as a 
 question of personal status. So it is, no doubt, up to a certain point, but 
 beyond that point becomes a question to be decided entirely by the local 
 rules, relating to real property in the realm of England. That the rule of the 
 English law is what I have represented, can hardly require proof. If the 
 argument from the comity of nations be shaken off, no man will doubt 
 that a person legitimated per subsequens matrimonium is not the heir of 
 English land. What my Lord Coke says, in page 7 of the first Institute, 
 affoids the rule : — ' Haeres, in the legal understanding of the common law, 
 implieth that he is ex justis nuptiis procreatus, for Heeres legitimus est, 
 quem nuptiae demonstrant.' Perhaps my Lord Coke's expression would 
 have been more precise and accurate, if, instead of saying ' ex justis nup- 
 tiis procreatus,' he had said, ' ex justis nuptiis natus.' But this is what 
 is meant, as all experience shows. It would be useless to follow this 
 further ; but it will be material to recollect, that this maxim, which per- 
 vades all our books, and which is confirmed by all our practice, though it 
 is, in form, a description of the person, who shall be heir, is, in substance, 
 in our opinion, a maxim regarding the land, describes one of its most im- 
 portant qualities, traces out the course in which it shall descend, and is no 
 more liable to be broken in upon by any foreign constitution, than are the 
 degree of interest, which the heir shall take in the land, the conditions, on 
 which he shall hold it, the proportion, which a woman shall obtain as a 
 widow, or the limitations and conditions attached to her estate. I have 
 endeavored to state the principles and to show the course of reasoning, 
 which has conducted my learned brothers and myself to the conclusion, 
 that B., the person designated by your Lordships is not entitled to the 
 property in question as the heir of A. Before I finish I will notice two 
 arguments used on behalf of the appellant, which merit particular atten- 
 tion. It is said, for the appellant, that according to the rule we adopt, if 
 he is born in lawful wedlock, he fulfils every condition required of him. 
 Now they say he is born in lawful wedlock, because, by a presumption of 
 the Scottish law, a presumption juris et de jure, there was a marriage 
 anterior to his procreation. It is by force of this presumption, that he is 
 legitimate : by this fiction he is born within the pale of lawful matrimony. 
 We know, that this fiction is, by many respectable writers on the Scottish 
 law, represented as accompanying the legitimation per subsequens matri- 
 13*
 
 150 CONFLICT OF LAWS. [CH. IV. 
 
 law of England, the eldest legitimate son. Now, the 
 claimant answered to this very character. He was 
 
 monium. But we do not concede the consequence, deduced from it, as 
 applicable to the present question. The question is, what the law of Eng- 
 land requires ; and, as we are advised, the law of England requires that 
 the claimant should actually, and in fact, be born within the pale of law- 
 ful matrimony ; we cannot agree that the presumption of a foreign juris- 
 prudence, contrary to the acknowledged fact, should abrogate the law of 
 England, and that by such a fiction a principle should be introduced 
 which, upon a great and memorable occasion, the legislature of the king- 
 dom distinctly rejected : your Lordships will perceive that I allude to the 
 statute of Merton. It would seem strange to introduce indirectly, and 
 from comity to a foreign nation, a rule of inheritance, which may affect 
 every honor and all the real property of the realm ; which rule, when pro- 
 posed directly and positively to the legislature, they directly and positively 
 negatived and refused : a refusal, that, in England, has obtained the ap- 
 probation of every succeeding age. Again, my Lords, it is said that two 
 cases have been decided in this House, which are nearly in point, and will 
 prove that the claim of B. should be supported. These cases are the 
 cases of Shedden v. Patrick, and the case of Lord Strathmore. These 
 two cases are alike in principle, and establish the same proposition. In 
 the one case the parents lived in a state of concubinage in America, and 
 in the other, in England. In both, children were born to them. After- 
 wards, the parties married in their respective countries ; by force of their 
 marriages the American issue claimed Scottish land, and the English 
 issue claimed Scottish honors : in both, your Lordships decided against 
 the claimants. Now, it is said, these authorities are exactly the converse 
 of the present case. They establish the principle, that the courts of the 
 country, where the lands lie, in a question respecting the heirship to these 
 lands or honors, inform themselves, whether the claimant is heir, not by 
 the law of the country where the lands lie, but in the country of the 
 domicil where the marriage of the parents was contracted ; and if he is 
 not heir by that foreign law, his claim is rejected ; from which they de- 
 duce this consequence, that if he is heir, his claim should be sustained. 
 This argument presents itself in a very plausible shape, and was pressed 
 at the bar, as it seemed to me, with striking ingenuity and force. But if 
 I have the good fortune sufficiently to explain the principles, which have 
 conducted my learned brothers and myself to the opinion I have stated, 
 you will soon perceive, that these principles afford a conclusive answer to 
 it. The first step to be taken in every case of this kind, as I have already 
 explained, is to inquire into the status of the claimant. The status, it is 
 argued, is to be determined by the law of the foreign country ; with this
 
 CH. IV.] CAPACITY OF PERSONS. 151 
 
 the eldest son, and lie was legitimate. In truth, legiti- 
 mate son means lawful son, and the rule of inheritance 
 is, that the eldest lawful son shall succeed the father. 
 But lawful, or not, depends upon the law, which is to 
 govern ; and no other definition can be given of what 
 is lawful, than this, that he is the lawful son, whom the 
 law declares such. "What law ? There are two, it is 
 said, in this case : the law of the place of the party's 
 birth and of his parents' marriage, and the law of the 
 place where the land lies. Then, which law is to pre- 
 vail ? The law of the birthplace. Any other rule 
 would involve great inconvenience, and be inconsistent 
 with principle ; for then a man would be legitimate in 
 
 the lex rei sitee does not intermeddle, and intermeddles no more, when that 
 foreign law establishes the claimant's bastardy, than when it proves his 
 legitimacy. In both the cases the claimants were bastards ; the laws of 
 their own country, the laws of their domicil, the laws of the spot, where 
 the matrimonial contract was entered into, declared them to be illegiti- 
 mate : the law which, by the acknowledged principles, ascertained their 
 personal status, fixed upon these persons a character of illegitimacy, fatal 
 to their claims : on the first step the ground sunk under them, and it be- 
 came impossible for them to advance. It is obvious, that if, in the cases 
 to which I am now referring, the claimants had been declared heirs by the 
 Scottish law, the Scottish law admitting of no heirship without legitimacy, 
 must have been called in aid to bestow upon them that personal character 
 of legitimacy refused to them by their own law ; in other words, a law 
 foreign to their birth, to their domicil, and to the marriage of their parents 
 would have been held to bestow upon them their personal status and cha- 
 racter — a decision certainly contrary to the acknowledged principles upon 
 this subject. The character of illegitimacy, attached to the persons of the 
 English and American claimants by their own law, accompanied them 
 everywhere, and would prevent their being received as heirs anywhere 
 within the limits of the Christian world. This view, in our judgment, 
 renders these decisions entirely consistent with the principles I have un- 
 folded, and prevents our considering them as objections to the opinion I 
 entertain, that B. is not entitled to the property in question, as the heir of 
 A." Birthwhistle v. Vardill, 9 Bligh, R. 45 to 53. [See 7 Clark & 
 Finn. 895.]
 
 152 CONFLICT OF LAWS. [CH. IV. 
 
 one place, and illegitimate in another ; legitimate as 
 to personal property, and illegitimate as to real pro- 
 perty in the same country. And this would not only 
 affect him, but all persons, who after his death should 
 claim through him ; even purchasers claiming from him 
 or them. 
 
 § 93 q. Then as to the argument, that heir means he, 
 who is born in lawful wedlock, ex justis nuptiis. It 
 is true. But what is lawful wedlock ? It is that, 
 which is so by the law of the place of marriage ; and 
 there is no greater reason for being bound by that law 
 as to marriage, than there is as to legitimacy, as con- 
 sequent upon the marriage. Why may not the Court 
 look behind the marriage, and ascertain, whether the 
 parties were competent to marry by the law of Eng- 
 land ? It is not correct to say, that the law of the 
 place of marriage governs as to that alone, it must 
 govern as to all the effects consequent thereon. So it 
 was held by Huberus. So it was held in the cases of 
 Crawford v. Patrick, and Strathmore v. Bowes, already 
 alluded to.^ In Scotland the child, born before the 
 marriage ceremony has been performed, is legitimate, 
 not because of the subsequent act of his parents ; but 
 because he is considered as born in lawful wedlock. 
 The marriage is held to have preceded his birth, and so 
 he is deemed non legitimatiis, sed legitimus ah initio. This 
 is not a mere refinement or fiction ; because in Scotland 
 marriage is a consentient contract ; and such consent 
 and marriage before the birth are deemed to be evi- 
 denced by the subsequent open ceremony and celebra- 
 tion of the marriage. This is no more a fiction, than 
 
 ' Ante, ^ 87.
 
 CH. IV.] CAPACITY OF PERSONS. 153 
 
 the English law as to this very point. If in England a 
 child is born the day after the marriage, he is deemed 
 legitimate, although procreated long before. The law 
 will not inquire into the fact. 
 
 § 93 r. As to the statute of Morton, it has no bearing 
 on the subject. That statute applies only to children 
 born in England. * It is no authority for saying, that he 
 only can inherit English lands, whom that statute declares 
 legitimate. That statute can in no just sense apply to 
 persons born out of England. Their status, as to legiti- 
 macy, depends not on that statute ; but on the laws of 
 the country of their birth. He is legitimate, whom the 
 law of his birth declares to be so. He is lawful heir, 
 whom the law of his birth declares to be born in lawful 
 wedlock. We are necessarily driven to this conclu- 
 sion ; and we must resort to the foreign law to solve 
 all such questions. If it is said, that he is the lawful 
 heir in England, who is the eldest son born within law- 
 ful wedlock, it is but changing the position of the point ; 
 for we may just as well say, that he, who is the eldest 
 son born in lawful wedlock, (and so the claimant is,) is 
 the lawful heir in England. The real point of difficulty 
 was not met nor considered by the learned Judges. 
 The very question was, whether the law of England did 
 not take the rule, as to legitimacy, the eldest son born 
 within lawful wedlock, from the very status as to these 
 points recognized and held by the law of Scotland. The 
 whole constituted his personal status ; and that personal 
 status travelled with him into England.^ 
 
 1 It may be far more satisfactory to the learned reader to have his Lord- 
 ship's reasoning at large in his »wn words. " In approaching this ques- 
 tion, there are some things not disputed. It is admitted, that the validity 
 of a marriage must depend on the law of the country, where it is had,
 
 154 CONFLICT OF LAWS. [CH. IV. 
 
 § 93 s. Another question also has arisen in England, 
 whether a child born before marriage in one country, of 
 
 and that consequently the parents of this party were validly married. It 
 seems also to be agreed, that, generally speaking, legitimacy is a status, 
 and must be determined by the law of the country to which the party 
 belongs. But it is said by those, who support thie judgment, that whether 
 the party here is legitimate or not, is no question before us ; the only 
 question being, it is alleged, whether or not he is the heir to an English 
 real estate. This distinction, I confess, appears to me founded on an 
 inaccurate view of the subject. It is true, that the question here arises 
 upon the claim of an heir as such, and that therefore the only question 
 may be said to be, whether he is heir or not. But it is also very possible, 
 that this question may turn wholly upon another, namely, whether or not 
 the claimant is eldest legitimate son of his father, the person last seized 1 
 Nor do I well see how legitimacy can ever come in question in any 
 other way, than as connected with the claim to succession, either real or 
 personal, in England, or in Scotland either, unless in the single case of a 
 declarator of bastardy or of legitimacy, — a proceeding unknown in the 
 English law. It is therefore by no means sufficient for deciding this 
 case to say, that the question touches not legitimacy, but inheritance ; not 
 the ptjisonal status of the party, hut hie right to real property. It may 
 touch both these matters, and the latter may wholly depend upon the 
 former. In truth, legitimate son means lawful son ; and the rule of 
 inheritance is, that the eldest lawful son shall succeed to the father : but 
 * lawful ' or ' not ' depends upon the law, which is to govern ; and no 
 other definition can be given of what is lawful than this, that he is lawful 
 son, whom the law declares to be such. What law ? There are two, it 
 is said, in this case — the law of the place of the party's birth, and of his 
 parents' marriage, and the law of the place where the land lies. Then 
 which of these two laws shall prevail 1 The whole inclination of every 
 one's mind must be towards that law, which prevails, where each person 
 is born, and where his parents were married, supposing the countries to be 
 one and the same ; and if they differ, 1 should then say certainly the law 
 of the birthplace. Nor can any thing be more inconvenient or more in- 
 consistent with principle, than the inevitable consequence of taking the 
 lex loci rei sitae for the rule ; because this makes a man legitimate or ille- 
 gitimate, according to the place where his property lies, or rights come in 
 question ; legitimate, when he sues for distribution of personal estate ; a 
 bastard, when he sues for succession to real ; nay, legitimate in one 
 country, where part of his land may lie ; and a bastard in some other, 
 where he has the residue. So, in like in^nner, all, who claim through 
 him, must have their rights determined by the same vague and uncertain 
 canon ; a circumstance, which I nowhere find adverted to below. All the
 
 CH. IV.] CAPACITY OF PERSONS. 155 
 
 parents domiciled in that country, by -whose laws a sub- 
 sequent marriage would not legitimate him, would by a 
 
 learned Judges proceed upon the case being one of an inheritance claimed 
 by the party himself. But what if he were dead years ago, and another 
 claimed an estate in England, to which he (the alleged bastard) never had 
 been, and never could have been entitled, an estate, for example, descend- 
 ing from a collateral, who took it by purchase after the death of the al- 
 leged bastard 1 Then the pedigree of the claimant must be made out 
 through legitimate persons ; and the question of legitimacy is raised as to 
 one, who is not himself claiming any land ; who never did or could claim 
 any land ; and it is not raised in respect of any right in him to inherit ; 
 any right to be called the heir to any land. I apprehend this shows 
 strongly the necessity of taking another view, than the learned Judges 
 seemed to have deemed sufficient for getting over the difficulty of the case ; 
 and of admitting, that there is a status of legitimacy, which is personal, 
 and, travelling about with the individual, must be determined by the law 
 of his country. In the argument for the judgment below, it is thought 
 enough to say, that heir means he who is born in lawful wedlock — ex 
 justis nuptiis. Then what is lawful wedlock? Is there any greater rea- 
 son for being bound by the law of the country where the marriage con- 
 tract was made, in deciding, whether or not the wedlock was lawful, than 
 there is for being governed in ascertaining the legitimacy of the issue of 
 the marriage by the law of the country where that issue was born, more 
 especially when it was also the country where the marriage was had ? 
 But can the Court stop short, according to its own principle, at the mere 
 fact of the marriage being according to the lex loci contractus ? Do not 
 the principles, on which their decision proceeds, demand this further in- 
 quiry, — Were the parties able to marry by the lex loci rei sitas 1 and thus 
 a door is opened to the further examination of how far a preceding divorce 
 of one of the parties was sufficient to dissolve a previous English mar- 
 riage. All such difficulties are got rid of by holding the lex loci contrac- 
 tus and nativitatis as governing the validity of the contract and legitimacy 
 of its issue ; but they are not to be got over in this way by any argument 
 which does not with equal force apply to holding that the legitimacy of 
 the issue is a question equally to be governed by the lex loci contractus 
 and the law of the birthplace. Nor is it correct to say, as the Judges 
 below assumed, that the lex loci only influences the validity of the con- 
 tract, and extends not to its effiects. The highest authorities have held 
 expressly the reverse. Huber, in the Treatise De Conflictu Legum, which 
 forms part of his larger work, end is constantly cited as the greatest au- 
 thority on this question, says, ' Non solum ipsi contractus ipsajque nuptise 
 certis locis rite celebratjc ubique pro justis et validis habentur, sed etiam
 
 156 CONFLICT OF LAWS. [CH. IV. 
 
 marriage of his parents in another country, by whose 
 laws such subsequent marriage would legitimate him, 
 
 jura et effectus contractutn nuptiarumque in iis loeis recepta ubique vim 
 suam oblinebunt.' I. 3, 9. It would be difficult to state any thing more 
 clearly and properly the effect of the matrimonial contract, than the legiti- 
 macy of the issue ; it is, in fact, the main object, and therefore the princi- 
 pal effect of that contract. But to remove all doubt on this subject, and 
 to extend the same rule also to the lex loci nativitatis ; he adds, ' Quali- 
 tates personales certo loco alicui impressas ubique circumferri et personam 
 comiiari, cum hoc effectu ut ubivis locorum eo jure quo tales personee alibi 
 gaudent vel subjecti sunt, gaudeantur et subjiciantur.' This principle was 
 adopted and acted on in two very remarkable cases by your Lordships then 
 proceeding under the advice of Lord Eldon ; I mean Crawford v. Patrick, 
 and Strathmore v. Bowes. In the former, a child having been born before 
 marriage in America, where the English law prevails, claimed a Scotch 
 estate in respect of the subsequent marriage of his parents there, of whom 
 the father was Scotch. He contended^ that the question having arisen 
 upon a real estate in Scotland, the Court of Session was bound to admi- 
 nister the law loci rei sitas, and that law declared him legitimate. But the 
 Court below^ and your Lordships held, that legitimacy is a status to be 
 determined by the law of the party's birthplace, or at any rate, by that 
 of the country, vihere the marriage of his parents was had, as well as 
 himself born ; and they held him bastard in Scotland, where the land lay, 
 because he was bastard in America, where his birth and his parents' mar- 
 riage took place. In Strathmore v. Bowes, a marriage, had in London 
 after the birth of the child, was held not to legitimate the issue either as 
 to Scotch honors, or estate on the same grounds ; and in both these cases 
 one of the points made for the judgment was the absurdity of holding the 
 same person to be bastard in one country and legitimate in another. It is 
 plain that legitimacy has but one meaning, namely, born in lawful wed- 
 lock. Now in Scotland the child born before the marriage ceremony has 
 been performed is legitimate, not because of a subsequent act of his pa- 
 rents, but because he is considered as born in lawful wedlock. The mar- 
 riage is held to have preceded his birth, and according to the doctrine and 
 language of the civil law, from which Scotland and other countries have 
 borrowed this principle, he is considered as non legitimatus, sed legitimus 
 ab initio,. Nor is this a mere fiction of law and a technical refinement. 
 Marriage in Scotland is a consensual contract, and perfected by consent 
 alone. But this may be given, and the contract made in two ways, either 
 per verba de praesenti, or by a promise subsequente copula. Now in the 
 latter case, the copula makes the previous promise a consent ; it turns the 
 promise concerning the future into a present consent. A child then, born 
 in the interval between the promise and the copula, would be legitimate,
 
 CH. IV.] CAPACITY OF PERSONS. 157 
 
 become legitimate, so as to inherit lands in the latter 
 country. It has been held by the House of Lords, that 
 
 for the copula would show that consent, and therefo're a marriage, had 
 preceded his birth. But so does a marriage after the birth, for that raises 
 the legal presumption, that there was a consent before the birth and at the 
 cohabitation. The cohabitation is held to have been a consent and a mar- 
 riage ; the ceremony is only held as evidence of that previous consent and 
 contract. So much is this the case, that if either party was married to 
 another at the time of the child's birth, or during the interval between 
 that birth and the ceremony, no legitimation takes place, because no room 
 exists for the presumption of law, that the consent or marriage took place 
 before the birth. All this is certain and clear, but the learned Judges in 
 the Court below appear not to have taken it into their consideration. The 
 judgment is rested entirely upon the statute of Merton, and it is contended 
 that, by that famous Act, he is declared a bastard, who is born before the 
 marriage of his parents : no doubt so he is in England ; and no doubt 
 bastardy, the status of bastardy, is*what the English law is there dealing 
 with. But is this an authority for saying that he only shall inherit Eng- 
 lish lands, whom that statute declares legitimate ? It is said, that the lex 
 loci rei sitaj must govern the succession to real estate ; undoubtedly it 
 must ; and if that law gives it in Kent to all the sons, and in Brentford to 
 the youngest, and elsewhere to the eldest, the several sons are the heirs 
 in those several places. But when it is said the lawful issue shall take, I 
 agree ; I too say only the legitimate son or sons shall inherit ; but to find 
 who are the legitimate sons, 1 must ask the law of the birth-place, which 
 fixes the status of legitimacy ; of the personal quality, according to Huber, 
 that travels round everywhere with the party. But the argument assumes a- 
 narrower and apparently closer form still, for it is said that the statute de- 
 clares those only inheritable, who are born in marriage, and that Lord 
 Coke accordingly defines the heir to be him, who is ex justis nuptiis pro- 
 creatus. There is in this, however, a great fallacy : ' Born in marriao-e ' 
 or not ; ' ex justis nuptiis procreatus ' or not ; is to be determined by some 
 law or other ; it is not a question that answers itself and in one way only. 
 Then what law shall determine 1 Certainly either the law of the coun- 
 try where the party was born, or where the marriage was had ; the law 
 either of the country, where the nuptias were had, or where the procrea- 
 tio took place. A question might arise, where the events happened in 
 different countries ; it might then be doubted which law should govern ; 
 which should be resorted to for an answer to the question. But where 
 both events happened in the same country, as here, there seems no doubt 
 at all in the matter. Now the law of the country, where both the marriage 
 and the birth took place, declares that the party was born in lawful wed- 
 lock ; that he was ex justis nuptiis procreatus ; and wholly denies, that 
 CONFL. 14
 
 158 CONFLICT OF LAWS. [CH. IV. 
 
 the mere fact of marriage in sucli country, where there 
 ^Yas no change of the domicil of the parents, would not 
 
 he was born before marriage, or out of wedlock. But it is said, that this 
 is a fiction, and that our law cannot import the fictions of a foreign sys- 
 tem, though its principles we are allowed to import. This distinction I 
 do not profess to comprehend ; what is a fiction, but a principle? It is 
 only one particular view, which the law takes, and one doctrine which it 
 lays down. Suppose a Scotch Court v,ere to deny the legitimacy of a 
 child, who was born on the day after his parents married in England, 
 should we not say, that a gross absurdity was committed ? Should we 
 not say, the child was born in lawful wedlock, and hold the doctrine ab- 
 surd, which should question his being lawfully begotten 1 Nay, suppose 
 a gift, in the usual terms, to the heirs of the body lawfully begotten ; we 
 should let the child born the day after marriage take under such gift, al- 
 though it was clearly not lawfully begotten in point of fact. This is a 
 fiction exactly analogous to the Scotchiiction. The Scotch law- presumes, 
 against the fact, the marriage to have been had before the birth of the 
 child ; our law presumes, against the fact, the marriage to have been had 
 before the cohabitation of the parents. The fiction, or rather presump- 
 tion, is parcel of the legal principle in both, and there can be no reason 
 for importing the residue of the doctrine, and rejecting the presumption ; 
 there can be no reason for importing the English law presumption into 
 Scotland, which does not justify and require us to import the Scotch law 
 presumption into England. It must be recollected, too, that the special 
 verdict finds as a fact the legitimacy of the party, and not his legitima- 
 tion ; it finds as a fact, that he is legitimate ; that is to say, lawfully born. 
 Now we know this to mean by the Scotch law, born in lawful wedlock ; 
 but the finding in the verdict is sufficient ; for legitimate, as contradistin- 
 guished from legitimated, means born in lawful wedlock, and can mean 
 nothing else. So in the civil law, from whence this doctrine is wholly 
 taken, both in Scotland and Holland and other countries, the child is legi- 
 timus, not legitimatus, as in the same system of jurisprudence, liber is a 
 free man, libertinus, one of the condition of a freed man, ingenuus, one 
 free born. If any person were found to be ingenuus by an inquisition, we 
 should contend, that he never had been a slave, though a finding of liber 
 might leave it equivocal. In like manner, and by parity of reason, a per- 
 son being found legitimate, or legitimus, and not legitimated or legitima- 
 tus, excludes the supposition of his ever having been a bastard, and shows 
 him to be lawfully born and begotten. Suppose a Scotch estate devolved 
 to one born before marriage, as it might by devise (or rather Scotch con- 
 veyance in the nature of devise) to the first son of A., I apprehend, that 
 A. marrying the mother the day after the devisor's death, the estate would
 
 CH. IV.] CAPACITY OF PERSONS. 159 
 
 give him such a capacity to inherit land, and that the 
 stain of illegitimacy by his birth was not wiped away 
 
 be vested in the son, because he would become legitimate, though born 
 before the death. But it is unnecessary to argue this, though it illustrates 
 the principle ; the fact found is, that the lessor of the plaintiff was born in 
 Scotland legitimate, or in lawful wedlock. The cases of Crawford v. 
 Patrick, and Strathmore v. Bowes, have been already referred to, but 
 they require another remark. They were decided in this House, by ap- 
 peal, it is true, from Scotland, and respecting the Scotch real estate, but 
 still by this House, and upon general principles of law. Those cases 
 were the precise converse of this : they decided the bastardy of parties, 
 and on the distinct ground, that, as Lord Redesdale said, they were ' bas- 
 tard by the law of their birth-place, and therefore bastard in Scotland, 
 where the rights claimed respected real estate.' It is not more the rule of 
 the English law, that children born out of wedlock shall not inherit, though 
 their parents intermarry, than it is, the rule of the Scotch law that such 
 children shall inherit, if their parents do intermarry. It is not more alien 
 to the English law to adopt the fiction that such children are born in 
 wedlock, than it is alien to the Scotch law to exclude this principle. The 
 English rule being statutory can make no difference. A fixed and known 
 principle of common law has exactly the same force with statutory pro- 
 vision. How then can the opposite principle be adopted in two cases 
 identically the same ? The Court below says, that the English law gives 
 not an estate to the bastard eigne, and that it treats him as bastard, although 
 by the law of his birth-place he was legitimate. The Scotch law gives 
 the estate to the bastard eigne, regarding him as legitimate, and this 
 House adjudged, that he should not take that estate, only because he was 
 illegitimate by the law of his birth-place. Your Lordships decided, that 
 the lex loci rei sitae should not be regarded, when it differed from the lex 
 loci contractus et nativitatis ; you decided that when the former law de- 
 clared for legitimacy, it should yield to the latter, which declared for bas- 
 tardy. How can you be called upon here to decide that the lex loci rei 
 sitae shall not overrule the other law, and that again in favor of bastardy l 
 I profess my inability to understand how these two decisions of the same 
 question can in any way stand together ; nor am I able to perceive, that 
 the least attention was paid by the Court below to those important deci- 
 sions of your Lordships. I perceive that the whole argument in that Court 
 turned upon a question not in dispute here. The learned Judges suppose, 
 that they decide the question, when they prove that the English law is to 
 govern the case, because the question relates to real property situated in 
 England. Now undeniably the English law is to govern the case in one 
 sense ; the eldest lawful son is to succeed ; but who that son is must be
 
 160 CONFLICT OF LAWS. [CH. IV. 
 
 by such a marriage.-^ And it was intimated, that, un- 
 der the like circumstances in other respects, the change 
 
 determined by the law of his birth-place, and by the fact found that, under 
 that law, the lessor of the plaintiff is eldest lawful son. Nay, even if we 
 take the English law to be, that lawful son or heir is he, who was born in 
 wedlock, then we have here the fact found, and found as a fact, that in 
 the country where he was born, the party was born in wedlock. No one, 
 it must be always borne in mind, pretends to say, that the English law 
 can in any way dispose of the whole question. Admitting that the rule 
 cited from Lord Coke in reference to the statute of Merton is to govern 
 us, haeres, qui ex justis nuptiis procreatus est, no one contends, that the 
 question, what are justa nuptiae, can be determined otherwise than by a 
 reference to the lex loci contractus, or it may be, loci nativitatis. To 
 that foreign law, then, we must resort ; and the only question is, at what 
 period of our inquiry this recourse shall be had. No more needs be said 
 to show how very far from decisive of the present question that position 
 is, which alone is argued or defended by the learned Judges, namely, that 
 the law of England must govern. It does govern, but with the aid, 
 through the ministry of the foreign law. The reference made to the dic- 
 tum of the Master of the Rolls, in Brodie v. Barry, (2 Ves. and Bea. p. 
 127,) does not touch the case. All that his Honor there said was, that 
 questions on real rights must follow the law of the country, where the 
 land lies. This is not denied ; nor was it denied by this House, when it 
 refused to consider W. Sheddon or J. Bowes, as legitimate in respect to 
 Scotch estates, although the law of Scotland, where those estates lay, 
 held them both to be so ; or rather would so have held, had they been 
 born in Scotland. But while this House and the Court of Session admit- 
 ted, that the Scotch law must decide, they also held, that the Scotch law 
 refused estate to bastards, and that it regarded one as a bastard, who was 
 so by the law of his birthplace. That was the same case in principle 
 with this, in every material respect. It is not easy in such a question, 
 a question raised on the conflictus legum, to omit all considerations 
 of convenience ; inasmuch as it is principally on views of convenience, 
 that the whole doctrine of what is generally called comitas turns. One 
 should say, that nothing can be more pregnant with inconvenience, nay, 
 that nothing can lead to consequences more strange in statement, than a 
 doctrine, which sets out with assuming legitimacy to be not a personal 
 status, but a relation to the several countries, in which rights are claimed, 
 and indeed to the nature of different rights. That a man may be bastard 
 
 1 Munro v. Saunders, Bligh,R. 4G8 ; Rose v. Ross, 4 Wils. & Shaw, 
 289. See Id. App. p. 33 to p. 89, where the opinions of the Scotch 
 Judges are also given at large.
 
 CH. IV.] CAPACITY OF PERSONS. 161 
 
 of domicil of the parents to the country, where the 
 marriage was celebrated, w^ould not have given any 
 
 in one country, and legitimate in another, seems of itself a strong position 
 to affirm ; but more staggering when it is followed up by this other, that 
 in one and the same country he is to be regarded as bastard, when he 
 comes into one court to claim an estate in land, and legitimate, when he 
 resorts to another to obtain personal succession ; nay, that the same Court 
 of Equity (when the real estate happens to be impressed with a trust) 
 must view him as both bastard and legitimate, in respect of a succession 
 to the same intestate. Further still, should he happen to be next of kin 
 to his uncle, who ha3 a mortgage upon the estate, he must be denied his 
 succession to the land of the mortgagor in his quality of bastard, and be 
 allowed to come in as an incumbrancer upon the self-same estate in his 
 capacity of legitimate son to the same mortgagor. All this is assumed to 
 be the law by the learned Judges, who have decided below, and advised 
 your Lordships here. They have not assumed, what however they 
 cannot deny, that it is another consequence of their doctrine, to enable a 
 descendant of this same bastard to claim through him, as if he were legi- 
 timate, while the alleged force of the statute of Merton , and of Lord Coke's 
 commentary thereupon, excludes him from taking to himself. In the same 
 country, in the same Courts, in respect to the same land, he is both bas- 
 tard and legitimate ; bastard for the purpose of his own succession, legiti- 
 mate when the succession of others is concerned. May I be permitted 
 most respectfully to express a doubt, whether or not this question has re- 
 ceived all the consideration, which it deserves at the hands of those learn- 
 ed Judges T I know not, that it carries the argument much further ; but 
 there is a proceeding, well known to your Lordships sitting here as a 
 Court of general jurisdiction over the whole United Kingdom, though un- 
 known to the Courts of England ; the process of declarator. Suppose a 
 declarator of legitimacy had been brought in the Scotch Courts by the 
 lessor of this plaintiff, the judgment would have been, and quite as a 
 matter of course, that he was lawful son of Wm. Birthwhistle ; and the 
 present defendant being made a party to this suit, the judgment could be 
 given in evidence before the Court, where the ejectment now before us 
 was brought. I agree, that such a judgment does not conclusively bind ; 
 yet it would place the conflict of the (.wo laws in a somewhat stronger 
 light, if the English Court should pronounce him bastard, whom the 
 Scotch Court, sitting in the country of his birth, had pronounced lawful 
 son. But if both judgments were brought here by appeal and writ of 
 error, as might easily happen, your Lordships would be compelled to 
 affirm the sentence of the Scotch Court, and yet you are now asked to 
 affirm the opposite judgment of the King's Bench. Let it be observed, 
 too, that all this anomaly is in England ; it begins and ends here ; for 
 14*
 
 162 CONFLICT OF LAWS. [CH. IV. 
 
 better title to inherit, as the stain of the illegitimacy 
 would be indelible.^ The converse case has been decid- 
 ed in France, where it has been held, that, if a child is 
 born in a country (France) where he would become le- 
 gitimate by a subsequent marriage, he will become 
 legitimate by such subsequent marriage, although the 
 marriage should take place in a country (England) 
 where a different law prevails, and where a subsequent 
 marriage would not have the effect of rendering him 
 legitimate.^ The result of these two cases seems to be, 
 
 the Scotch Judges have decided in such cases with perfect consistency, as 
 well as entire uniformity. Those learned persons, whose familiarity with 
 leg-al principle, in its enlarged sense, is derived from a deep study of the 
 feudal and of the civil law, as well as of the modern jurisprudence of 
 Scotland, have been guided in all their determinations of such questions 
 by simple, rational, and intelligible principles. If a declarator of legiti- 
 macy were brought before them by one born in England before marriage, 
 and whose parents afterwards intermarried, their sentence would be, that 
 he was illegitimate ; and even were he to claim a Scotch estate the law 
 would be the same. This has been ruled in Scotland in the cases more 
 than once referred to, and affirmed upon appeal here. But you are now 
 advised to take a different course, when the same question arises in ano- 
 ther part of the United Kingdom. It may be observed, that, in referring 
 to those Scotch cases, the learned Chief Justice says, without discussing 
 them, that it is satisfactory to him, that the form of the proceeding (a 
 special verdict) was such as to carry the question before the same tribunal 
 which pronounced those decisions. In the advice, however, which has 
 been given to this tribunal by the same learned Judges, I do not find that 
 those decisions have been much considered." Birthwhistle v. Vardill, 9 
 Bligh, R. 71 to 86. 
 
 1 Munro V. Saunders, 6 Bligh. R. 468 ; Rose v. Ross, 4 Wils. & Shaw, 
 289 ; Id. App. p. 33 to p. 89. See 1 Burge, Comment, on Col. and For. 
 Law, P. 1, ch. 3, § 2, p. 108, 109, 110. 
 
 2 The case of De Conty, 1668, cited by Lord Brougham in Munro v. 
 Saunders, 6 Bligh, R. 478, and in Rose v. Ross, 4 Wils. and Shaw, R. 
 299. The same case is reported in Merlin, Quest, de Droit, art. Legiti- 
 mation, ^ 2, note (1), p. 151, 4to. edit., Paris, 1828, who corrects the er- 
 ror into which Boullenois had fallen in stating the facts of the same case. 
 See also 1 Burge, Comment, on Col. and For. Law, P. 1, ch. § 2,
 
 CH. IV.] CAPACITY OF PERSONS. 163 
 
 that the law of the pLace of birth of the child, and not 
 the law of the place of the marriage of the parents, is 
 to decide, whether a subsequent marriage will legiti- 
 mate the child or not.^ 
 
 § 93 f. We have already seen, that the same doctrine 
 upon these very points is maintained by Hertius, by 
 Bouhier, and by Boullenois." The latter puts the very 
 case of a child born in England in concubinage, and 
 whose parents afterwards become residents in France, 
 and there intermarry without being naturalized, and 
 says, that the child is not legitimated by such subse- 
 quent marriage, but remains illegitimate, as he was by 
 the law of the country of his birth. The converse case 
 of a child born in France, and the parents subsequently 
 intermarrying in England, he holds equally clear, and 
 that thereby the child will become legitimate.=^ Boulle- 
 nois has, as we have also seen, pushed his doctrine 
 much farther; farther, indeed, than seems consistent 
 with any just principle, especially in giving a retro- 
 active effect to a subsequent naturalization in another 
 
 country.^ 
 
 § 93 u. Merlin supports the same general doctrine, 
 holding, that it is impossible to consider as legitimate 
 in France a natural child, born in England of English 
 
 p. 102, 106, 107. May there not be room for a distinction in such a 
 case, as to'the state of the party or property in the country of his birth, 
 and that of the party or the property in the country of the marriage, each 
 country adhering to its own laws in regard to the property situate there ? 
 
 1 But see the elaborate opinions of the Scottish Judges on the same 
 questions, in Rose v. Ross, 4 Wils. & Shaw, App. p. 33 to p. 89. The 
 House of Lords reversed their judgment. 
 
 2 Ante, ^ 93 d, ^ 93 i. 
 
 3 Ante, ^ 93 d, ^ 93 i ; 1 BouUenois, Observ. 4, p. 62, 63. 
 
 4 Ibid. ; Merlin, in his Quest, de Droit, art. Legitimalion, ^ 2, n. 1, 
 combats this doctrine of BouUenois.
 
 164 CONFLICT OF LAWS. [CH. IV. 
 
 parents, who afterwards intermarry in England.^ But, 
 that a natural child born in France of French parents, 
 who should afterwards remove to England, and there 
 intermarry, without being naturalized, would by such 
 subsequent marriage be made legitimate.^ In each 
 case he holds, that the law of the place of the birth of 
 the child gives the rule, as to legitimacy by a subse- 
 quent marriage. 
 
 § 93 V. Merlin supposes, that Hertius holds a differ- 
 ent doctrine, and affirms, that the law of the place of 
 marriage gives the rule as to legitimacy, and not that 
 of the place of the birth of the child. I do not so under- 
 stand Hertius. To me it seems clear, that Hertius was 
 only contemplating the case of a marriage and birth 
 both in England. In Anglia (says he) legitimaiioni per 
 siibseqiiens matrimonium locus non est. Quwstio est igiiiir ; 
 An films, quem pater ante legitinmni conniibium in Anglia 
 genuerat, siiccedere possit patri hide naturali in bonis extra 
 Anglia sitis? Affirmatiim hoc in Auditorio Parisiensi? 
 Reetius negatiir, nisi lex alteriiis popidi etiam illegitimos ad 
 successionem admittat ; neque enim lex ilia Anglormn pug- 
 nat cum cequitate naturali.^ It is highly probable, that 
 Hertius understood the case referred to, as Boullenois 
 had, by mistake, as a case, where the child was born in 
 England ; whereas he was born in France.^ 
 
 § 94. These cases may suffice in relation to the ques- 
 tion of legitimacy or illegitimacy. We may now pass 
 
 1 Merlin, Quest, de Droit, art. Legitimalion, ^ i, n. \. 
 
 2 Ibid. ^ 2, n. 1, 2. 
 
 3 Ante, ^ 39 s. The case of De Conty, in 1668. 
 
 4 Hertii Opera, De CoUis. l^eg. ^ 4, n. 15, p. 129 ; Id. p. 183, 184, edit. 
 1716. 
 
 5 Merlin, Quest, de Droit, ^ 2, n. 2, p. 151, 4to. edit., Paris, 1828; 
 ante, § 93 s, note 2.
 
 CH. IV.] CAPACITY OF PERSONS. 165 
 
 to another class of disabilities imposed by foreign laws, 
 in order to illustrate the difiiciilty of maintaining the 
 doctrine, as a universal rule, obligatory upon all coun- 
 tries, under all circumstances, that the capacity or inca- 
 pacity of a person is to be governed solely by the laws 
 of his birth and domicil ; and that is the class of per- 
 sons, whose marriages are void or voidable by reason of 
 their profession. Thus, by the law of England, until 
 after the reformation, monks and nuns were deemed in- 
 capable of contracting marriage,' (as they still are in 
 many parts of the continent of Europe,) and their con- 
 tracts for this purpose w^re held nullities. The mar- 
 riages of priests are also in some countries voidable in 
 law, as contrary to their office, at any time during their 
 lives.^ And to this very day in Catholic countries, mar- 
 riages are prohibited to the priesthood, and to persons 
 in monastic orders. Yet it would be extremely difficult 
 to maintain, that the marriage of a nun, or a monk, or 
 a priest, celebrated in America, where no such prohibi- 
 tion exists, ought, causa profcssionis, to be held a mere 
 nullity on account of such foreign prohibitions, especial- 
 ly where the other party is at the time of the marriage 
 domiciled here, and as such is entitled to the protection 
 of our laws. 
 
 § 95. By the laws of some countries the subjects 
 thereof are prohibited from intermarrying with foreign- 
 ers, or with persons of another religious sect -, and some 
 civilians have held, that such laws are of universal ob- 
 ligation, and accompany the person everywhere.^ But 
 
 1 2 Inst. 686, 687 ; Com. Dig. Baron and Feme, B. 2 ; 1 Woodes. 
 Lect. 16, p. 422. 
 
 2 See Paul Voet, De Stalut. ^ 5, ch. 2, n. 1, p. 178, 179, edit. 1661 ; 
 Vattel, B. 2, ch. 8, ^ 115.
 
 166 CONFLICT OF LAWS. [CH. IV. 
 
 it can hardly be supposed, that any other nation would 
 suffer a marriage celebrated in its own dominions, ac- 
 cording to its own laws, between such persons, and es- 
 pecially where one of them was a citizen or subject 
 thereof, to be deemed a nullity in its own courts. Such 
 a narrow prohibition would justly be deemed odious, 
 and be rejected. 
 
 § 96. Another case may be put of even a more strik- 
 ing character. Suppose a person to be a slave in his own 
 country, having no personal capacity to contract there, 
 is he, upon his removal to a foreign country, where 
 slavery is not tolerated, to be- still deemed a slave ? If 
 so, thefi a Greek or Asiatic, held in slavery in Turkey, 
 would, upon his arrival in England, or in Massachusetts, 
 be deemed a slave, and be there subject to be treated as 
 mere property, and be under the uncontrollable des- 
 potic power of his master. The same rule would exist 
 as to Africans and others, held in slavery in foreign 
 countries. But we know, that no such general effect 
 has in practice ever been attributed to the state of 
 slavery. There is a uniformity of opinion among fo- 
 reign jurists, and foreign tribunals, in giving no effect 
 to the state of slavery of a party, whatever it might 
 have been in the country of his birth, or of that, in which 
 he had been previously domiciled, unless it is also re- 
 cognized by the laws of the country of his actual domi- 
 cil, and where he is found, and it is sought to be 
 enforced. Christinreus states this as a clear rule, 
 affirmed by judicial decisions, JPropter lihertatis im'sona- 
 rmn imim Jiic per aliquot scccida continue olservatiim} 
 Groenewegen, speaking of slavery, says ; Ejiisqiie nomen 
 
 1 Christinaeus, Vol. 4, Decis. 80, p. 114, 115,n. 4 ; 1 Burge, Comment, 
 on Col. and For. Law, ch. 10, p. 739.
 
 CH. IV.] CAPACITY OF PERSONS. 167 
 
 hodie apiid nos exolcvit. Adeo qmde7n, lit servi, qui aliunde 
 hue addueimtur, siimd ac imperii nostri fines intrdnint, in- 
 vitis ipsis dominis, ad lihertatem prochmare possint. Id, 
 quod et aliorum Cliristianorum gentium morihus receptum 
 est} In Scotland the like doctrine has been solemnly 
 adjudged.^ The tribunals of France have adopted the 
 same rule, even in relation to slaves, coming from and 
 belonging to their own colonies. This is also the un- 
 disputed law of England.^ It has been solemnly 
 decided, that the law of England abhors, and will not 
 endure the existence of slavery within the nation ; and 
 consequently, as soon as a slave lands, in England, he 
 becomes ipso facto a freeman ; and discharged from the 
 state of servitude."* Independent of the provisions of 
 the Constitution of the United States, for the protection 
 of the rights of masters in regard to domestic fugitive 
 slaves, there is no doubt, that the same principle per- 
 vades the common law of the non slave-holding states 
 in America ; that is to say, foreign slaves would no 
 longer be deemed such after their removal thither.^ 
 
 ^ Groenewegen, ad Instit. Lib. 1, lit. 8, n. 3, p. 5 ; cited also in 1 Burge, 
 Comment, on Col. and For. Law, ch. 10, p. 739. Groenewegen cites 
 many authorities in support of his opinion. 
 
 2 Knight V. Wedderbern, 1778, 20 Howell, State Trials, 1 to 15, note. 
 
 3 See cases cited 20 Howell, State Trials, 12, 13, 14, note ; and Causes 
 C616bres, vol. 13, p. 492, edit. 1747; 1 Burge, Comment, on Col. and For. 
 Law, ch. 10, p. 739, 740, 
 
 ^ Somerset's Case, Lofft, R. 1 ; S. C. 11 State Trials, (Hargrave edit.) 
 .340; 20 Howell, State Trials, 1 to 79; Co. Lit. 79; Harg. note, 44 ; 
 1 Black. Comm. 424, 425, Christian's note, and Coleridge's note; Forbes 
 V. Cochrane, 2 Barn. & Cres. 448 ; The Amedie, 1 Acton, R. 240 ; S. C. 
 1 Dodson, R. 84 ; Id. 91, 95 ; The St. Louis, 2 Dodson, R. 210 ; The 
 Slave Grace, 2 Hagg. Adm. R. 94, 104, 105, 106, 107, 109, 110, 111, 118 ; 
 1 Burge, Comment, on Col. and For. Law, P. 1, ch. 10, p. 734 to p. 752. 
 
 5 See the opinion of the Court delivered by Mr. Justice Porter, in Saul 
 V. His Creditors, 17 Martin, R. 598 ; In re Francisco, 9 Amer. Jurist, 490 ;
 
 168 CONFLICT OF LAWS. [CH. IV. 
 
 § 96 a. It is quite a different question, how far rights 
 acquired, and wrongs done to slave property, or con- 
 
 Butler V. Hooper, 1 Wash. C. C. R. 499 ; Ex parte Simmons, 4 Wash. C. 
 C. R. 390. See also Butler y. Delaplaine, 7 Serg. & Rawle, R. 378 ; Com- 
 monwealth i;. Holloway, 6 Binn. R. 213 ; S. C. 2 Serg. & Rawle, R. 305; 
 Lumsford v. Coquillon, 14 Martin, R. 408 ; Louis u. Cabarrus, 7 Louis. R. 
 170, 172 ; 1 Burge, Coram, on Col. and For. Law, P. 1, ch. 10, p. 744 to 
 749; Prigg iJ, Coram, of Penn. 16 Peters, R. 541, 611, 612. Intherecent 
 case of Coraraonwealth v. Aves, 1836, [18 Pick. R. 193,] before Mr. Chief 
 Justice Shaw, in Massachusetts, it was expressly held, that a slave brought 
 into Massachusetts voluntarily by his master, from a slave state of the 
 United Stales, was free here, and could not be recovered or carried back as 
 a slave. Upon that occasion the learned Judge said : " The question now 
 before the court arises upon a return to a Habeas Corpus, originally is- 
 sued in vacation, by Mr. Justice Wilde, for the purpose of bringing up the 
 person of a colored child, naraed Med, and instituting a legal inquiry into 
 the fact of her detention, and the cause, for which she was detained. By 
 the provisions of the revised code, the practice upon habeas corpus 
 is somewhat altered. In case the party coraplaining, or in behalf of whom 
 complaint is made, on the ground of unlawful iraprisonraent, is not in the 
 custody of an officer, as of a sheriff or deputy, or corresponding officer of 
 the United States, the writ is directed to the sheriff, requiring him or his 
 deputy to take the body of the person thus coraplaining, or in behalf of 
 whom coraplaint is thus made, and have him before the court or magis- 
 trate issuing the writ, and to summon the party alleged to have or claim 
 the custody of such person, to appear at the same lime, and show the cause 
 of the detention. The person thus summoned is to make a statement un- 
 der oath, setting forth all the facts fully and particularly ; and in case he 
 claintis the custody of such parly, the grounds of such claim must be fully 
 set forth. This statement is in the nature of a return to the writ, as made 
 under the former practice, and will usually present the material facts, upon 
 which the questions arise. Such return, however, is not conclusive of the 
 facts stated in it ; but the court is to proceed and inquire into all the al- 
 leged causes of detention, and decide upon them in a summary manner. 
 But the court may, if the occasion require it, adjourn the examination, and 
 in the mean time bail the parly, or commit him to a general or special cus- 
 tody, as the age, health, sex, and other circumstances of the case may re 
 quire. It is further provided, that, when the writ is issued by one Judge 
 of the court in vacation, and in the mean time, before a final decision, the 
 court shall meet in the same county, the proceedings may be adjourned 
 into the court, and there be conducted to a final issue, in the same manner 
 as if they had been originally commenced by a writ issued from the court. 
 I have staled these provisions the more minutely, because there have been
 
 CH. IV.] CAPACITY OF PERSONS. 169 
 
 tracts made respecting such property, in countries where 
 slavery is permitted, may be allowed to be redressed, or 
 
 as yet but few proceedings under the revised statutes, and the practice is 
 yet to be established. Upon the return of this writ before Mr. Justice 
 Wilde, a statement was made by Mr. Aves, the respondent : the case was 
 then postponed. It has since been fully and very ably argued before all 
 the Judges, and is now transferred to, and entered in court, and stands 
 here for judgment, in the same manner as if the writ had been originally 
 returnable in court. The return of Mr. Aves states, that he has the body 
 of the colored child described in his custody, and produces her. It further 
 states, that Samuel Slater, a merchant, citizen and resident in the city of 
 New Orleans, and State of Louisiana, purchased the child with her mother 
 in 1833, the mother and child being then and long before slaves, by the 
 laws of Louisiana ; that they continued to be his property, in his service 
 at New Orleans, till about the first of May last, when Mary Slater, his 
 wife, the daughter of Mr. Aves, left New Orleans for Boston, for the pur- 
 pose of visiting her father, intending to return to New Orleans after an ab- 
 sence of four or five months ; that the mother of the child remained at New 
 Orleans in a state of slavery, but that Mrs. Slater brought the child with 
 her from New Orleans to Boston, having the child in her custody, as the 
 agent and representative of her husband, whose slave the child was, by 
 the laws of Louisiana. When the child was brought thence, the object, 
 intent, and purpose of the said Mary Slater being to have the said child 
 accompany her, and remain in her custody and under her care during her 
 temporary absence fronn New Orleans, and that the said child should re- 
 turn with her to New Orleans, the domicil of herself and husband ; that 
 the said child was confided to the custody and care of said Aves by Mrs. 
 Slater, during her temporary absence in the country for her health. The 
 respondent concludes by stating, that he has exercised no other restraint 
 over the liberty of this child, than such as was necessary to the health and 
 safety of the child. Notice having been given to Mr. and Mrs. Slater, an 
 appearance has been entered for them, and in this state of the case and of 
 the parties, the cause has been heard. Some evidence was given at the for- 
 mer hearing, but it does not materially vary the facts stated in the return. 
 The fact testified, which was considered most material, was the declared 
 intent of Mrs. Slater to take the child back to New Orleans. But as that 
 intent is distinctly avowed in the return — that is, to take the child back 
 to New Orleans, if it could be lawfully done, it does not essentially change 
 the case made by the return. This return is now to he considered in the 
 same aspect, as if made by Mr. Slater. It is made, in fact, by Mr. Aves, 
 claiming the custody of the slave in right of Mr. Slater, and that claim is 
 sanctioned by Mr. Slater, who appears by his attorney, to maintain and 
 enforce it. lie claims to have the child as master, and carry her back to 
 CONFL. 15
 
 170 CONFLICT OF LAWS. [CH. IV. 
 
 recognized in the judicial tribunals of governments, 
 which prohibit slavery.' And it is also a very different 
 
 New Orleans, and, whether the claim has been made in terms or not, to 
 hold and return her as a slave, that intent is manifest, and the argument 
 has very properly placed the claim upon that ground. The case presents 
 an extremely interesting question, not so much on account of any doubt or 
 difficulty attending it, as on account of its important consequences to those 
 who may be affected by it, either as masters or slaves. The precise ques- 
 tion presented by the claim of the respondent is, whether a citizen of any 
 one of the United States, where negro slavery is established by law, com- 
 ing into this State, for any temporary purpose of business or pleasure, 
 staying some time, but not acquiring a domicil here, who brings a slave 
 with him as a personal attendant, may restrain such slave of his liberty 
 during his continuance here, and convey him out of this state on his return, 
 against his consent. It is not contended, that a master can exercise here 
 any other of the rights of a slave-owner, than such as may be necessary to 
 retain the custody of the slave during his residence, and to remove him on 
 his return. Until this discussion, I had supposed, that there had been ad- 
 judged cases on this subject in this Commonwealth ; and it is believed to 
 have been a prevalent opinion among lawyers, that if a slave is brought 
 voluntarily and unnecessarily within the limits of this State, he becomes 
 free, if he chooses to avail himself of the provisions of our laws; not so 
 much, because his coming within our territorial limits, breathing our air, 
 or treading on our soil, works any alteration in his status, or condition, as 
 settled by the law of his domicil, as because by the operation of our laws, 
 there is no authority on the part of the master, either to restrain the slave 
 of his liberty, whilst here, or forcibly to take him into custody in order to 
 his removal. There seems, however, to be no decided case on the subject 
 reported. It is now to be considered as an established rule, that by the 
 constitution and laws of this Commonwealth, before the adoption of the 
 Constitution of the United States, in 1789, slavery was abolished, as being 
 contrary to the principles of justice and of nature, and repugnant to the 
 provisions of the Declaration of Rights, which is a component part of the 
 constitution of the State. It is not easy, without more time for historical 
 research, than I now have, to show the course of slavery in Massachusetts. 
 By a very early Colonial Ordinance (1641) it was ordered, that there 
 should be no bond slavery, villanage, or captivity amongst us, with the 
 exception of lawful captives taken in just wars, or those judicially sen- 
 
 1 Madrazo v. Willes, 3 B. & Aid. 353 ; Forbes v. Cochrane, 2 B. & 
 Cres. 448 ; The St. Louis, 2 Dodson, R. 210 ; The Antelope, 10 Whea- 
 ton, R. 66 ; Wharton, Digest, Servants and Slaves, A. D. See 1 Burge, 
 Coram, on Col. and For. Law, P. 1, ch. 10, p. 735 to 752.
 
 CH. IV.] CAPACITY OF PERSONS. 171 
 
 question, how far the original state of slavery might 
 reattach upon the party, if he should return to the coun- 
 
 tenced to servitude, as a punishment for crime. And by an act a few years 
 after, (1646,) manifestly alluding to some transaction then recent, the Gene- 
 ral Court, conceiving themselves bound to bear witness against the heinous 
 and crying sin of man-stealing, &c., ordered, that certain negroes be sent 
 back to their native country (Guinea) at the charge of the country, with 
 a letter from the Governor expressive of the indignation of the Court there- 
 abouts. See Ancient Charters, &c. 52, ch. 12, § 2, 3. But notwith- 
 standing these strong expressions in the acts of the Colonial Government, 
 slavery to a certain extent seems to have crept in ; not probably by force 
 of any law, for none such is found or known to exist ; but rather, it may 
 be presumed, from that universal custom, prevailing through the European 
 colonies, in the West Indies, and on the continent of America, and which 
 was fostered and encouraged by the commercial policy of the parent state. 
 That it was so established, is shortly shown by this, that by several provincial 
 acts, passed at various times, in theearly part of the last century, slavery was 
 recognized as existing in fact, and various regulations were prescribed in 
 reference to it. The act passed June, 1703, imposed certain restrictions 
 upon manumission, and subjected the master to the relief and support of 
 the slaves, notwithstanding such manumission, if the regulations were not 
 complied with. The act of October, 1705. levied a duty and imposed va- 
 rious restrictions upon the importation of negroes, and allowed a drawback 
 upon any negro, thus imported, and for whom the duty had been paid, if 
 exported within the space of twelve months, and bona fide sold in any other 
 plantation. How, or by what act particularly, slavery was abolished in 
 Massachusetts, whether by the adoption of an opinion in Somerset's case, 
 as a declaration and modification of the common law, or by the Declara- 
 tion of Independence, or by the Constitution of 1780, it is not now very 
 easy to determine, and it is rather a matter of curiosity, than of utility ; it 
 being agreed on all hands, that, if not abolished before, it was so by the 
 Declaration of Rights. In the case of Winchendon v. Hatfield, (4 Mass. 
 R. 123,) which was a case between two towns respecting the support of a 
 pauper. Chief Justice Parsons, in giving the opinion of the Court, states, 
 that at the first action, which came before the Court after the establish- 
 ment of the constitution, the judges declared, that, by virtue of the Decla- 
 ration of Rights, slavery in this State was no more. And he mentions 
 another case, Littleton v. Tuttle, (4 Mass. R. 128, note,) in which it was 
 stated, as the unanimous opinion of the Court, that a negro born within 
 the State, before the constitution, was born free, though born of a female 
 slave. The Chief Justice, however, states, that the general practice and 
 common usage have been opposed to this opinion. It has recently been 
 stated as a fact, that there were judicial decisions in this State prior to the
 
 172 CONFLICT OF LAWS. [CH. IV. 
 
 tiy, by whose laws he was declared to he, and was held 
 as a slave. Lord Stowell, in a case of this sort, held, 
 
 adoption of the present constitution, holding, that negroes, born here of 
 slave parents, were free. A fact is stated in the above opinion of Chief 
 Justice Parsons, which may account for this suggestion. He states, that 
 several negroes, born in this country, of imported slaves, had demanded 
 their freedom of their masters by suits of law, and obtained it by a judg- 
 ment of court. The defence of the master, he says, was faintly made ; for 
 such was the temper of the times, that a restless, discontented slave, was 
 worth little ; and when his fieedom was obtained in a course of legal pro- 
 ceedings, his master was not holden for his support, if he became poor. 
 It is very probable, therefore, that this surmise is correct, and that records 
 of judgments to this effect may be found ; but they would throw very lit- 
 tle light on the subject. Without pursuing this inquiry farther, it is suffi- 
 cient for the purposes of the case before us, that by the constitution 
 adopted in 1780, slavery was abolished in Massachusetts, upon the ground, 
 that it is contrary to natural right and the plain principles of justice. The 
 terms of the first article of the Declaration of Rights are plain and expli- 
 cit. ' All men are born free and equal, and have certain natural, essen- 
 tial, and unalienable rights, among which are the right of enjoying and de- 
 fending their lives and liberties, that of acquiring, possessing, and protect- 
 ing property.' It would hp rlifFif.nlt lo sp.lfirit words more precisely adapted 
 to the abolition of negro slavery. According to the lavps prevailing in all 
 the States, where slavery is upheld, the child of a slave is not deemed to 
 be born free, a slave has no right to enjoy and defend his own liberty, or 
 to acquire, possess, or protect property. That the description was broad 
 enough in its terms to embrace negroes, and that it was intended by the 
 framers of the constitution to embrace them, is proved by the earliest con- 
 temporaneous construction, by an unbroken series of judicial decisions, and 
 by a uniform practice from the adoption of the constitution to the present 
 time. The whole tenor of our policy, of our legislation and jurisprudence 
 from that time to the present, has been consistent with this construction, 
 and with no other. Such being the general rule of law, it becomes neces- 
 sary to inquire how far it is modified or controlled in its operation ; either, 
 I. By the law of other nations and states, as admitted by the comity of 
 nations to have a limited operation within a particular State ; or, 2. By 
 the constitution and laws of the United States. In considering the first, 
 we may assume, that the law of this State is analogous to the law of Eng- 
 land, in this respect ; that, while slavery is considered as unlawful and inad- 
 missible in both, and this because contrary to natural right, and to laws 
 designed for the security of personal liberty, yet in both, the existence of 
 slavery in other countries is recognized, and the claims of foreigners, grow- 
 ing out of that condition, are to a certain extent respected. Almost the
 
 CH. IV.] CAPACITY OF PERSONS. 173 
 
 that upon such a return of the slave to his original do- 
 micile the state of slavery would reattach upon him. 
 
 only reason assigned by Lord Mansfield in Somerset's case was, that 
 slavery is of such a nature, that it is incapable of being introduced on any 
 reasons moral or political, but only by positive law ; and, it is so odious, 
 that nothing can be suffered to support it but positive law. The same 
 doctrine is clearly stated in the full and able opinion of Marshall, C. J., in 
 the case of the Antelope, 10 Wheat. R. 120. He is speaking of the slave 
 trade, but the remark itself shows, that it applies to the state of slavery. 
 * That it is contrary to the law of nature will scarcely be denied. That 
 every man has a natural right to the fruits of his own labor, is generally 
 admitted, and that no other person can rightfully deprive him of those 
 fruiis, and appropriate them against his will, seems to be the necessary re- 
 sult of the admission ' But although slavery and the slave trade are 
 deemed contrary to natural right, yet it is settled by the judicial decisions 
 of this country and of England, that it is not contrary to the law of nations. 
 It has been too long and too extensively admitted, by the laws of all mo- 
 dern civilized nations, and more explicitly by those, who have had foreign 
 colonies, to warrant any one independent community to say, that it is op- 
 posed to the laws of nations. The authorities are cited in the case of the 
 Antelope, and that case is itself an authority directly in point. The con- 
 sequence is, that each independent community, in its intercourse with 
 every other, is bound to act on the principle, that such other country has a 
 full and perfect authority to make such laws for the government of its own 
 subjects, as its own judgment shall dictate, and its own conscience ap- 
 prove, provided the same are consistent with the law of nations; and no 
 independent community has any right to interfere with the acts or conduct 
 of another Slate, within the territories of such Stale, or on the high seas, 
 which each has an equal right to use and occupy ; and that each sovereign 
 Slate governed by its own laws, although competent and well authorized 
 to make such laws, as it may think most expedient, to the extent of its 
 own territorial limits, and for the government of its own subjects, yet 
 beyond those limits, and over those who are not its own subjects, has no 
 authoriiy to enforce her own laws, or treat the laws of other Stales as 
 void, although contrary to its own views of morality. This view seems 
 consistent with most of the leading cases on the subject. Somerset's case, 
 20 Howell, Stale Trials, 1, as already cited, decides that slavery, being 
 odious and against natural right, cannot exist except by force of positive 
 law. But it clearly admits, that it may exist by force of positive law. 
 And it may be remarked, that by positive law, in this connection, may be 
 as well understood, customary law, as the enactment of a statute; and 
 the word is used to designate rules established by tacit acquit'scence, or 
 by the legislative act of any Slate, and which derive their force and author- 
 15*
 
 174 CONFLICT OP LAWS. [CH. IV. 
 
 On that occasion he said ; " The entire change of the 
 legal character of individuals, produced by the change 
 
 ity from acquiescence or enactment, and not because they are the dictates 
 of natural justice, and as such of universal obligation. The Louis, 
 2 Dodson, R. 238. This was an elaborate opinion of Sir William Scott. 
 It was the case of a French vessel seized by an English vessel in time 
 of peace, whilst engaged in the slave trade. It proceeded upon the 
 ground, that a right of visitation, by the vessels of one nation, of the ves- 
 sels of another, could only be exercised in time of war, or against pirates, 
 and that the slave trade was not piracy by the laws of nations, except 
 against those, by whose government it has been so declared by law or 
 by treaty. And the vessel was delivered up. The Amedie, 1 Acton, R. 
 240. The judgment of Sir William Grant in this case, upon the point, on 
 which the case was decided, that of the burden of proof, has been 
 doubted. But upon the point now under discussion, he says, but we do 
 not lay down as a general principle, that this is a trade, which cannot, 
 abstractedly speaking, be said to have a legitimate existence. I say, 
 abstractedly speaking, because we cannot legislate for other countries ; 
 nor has this country a right to control any foreign legislature, that may 
 give permission to its subjects, to prosecute this trade. He, however, 
 held, in consequence of the principles declared by the British government, 
 that he was bound to hold prima facie, that the traffic was unlawful, and 
 threw on the claimant the burden of proof, that the traffic was permitted 
 by the law of his own country. The Diana, 1 Dodson, R. 95. This case 
 strongly corroborates the general principle, that, though the slave trade is 
 contrary to the principles of justice and humanity, it cannot with truth be 
 said, that it is contrary to the laws of all civilized nations; and that courts 
 will respect the property of persons engaged in it, under the sanction of the 
 laws of their own country. Two cases are cited from the decisions of courts 
 of common law, which throw much light upon the subject. Madrazo v. 
 Willis, 3 B. & Aid. 353. It was an action brought by a Spaniard against 
 a British subject, who had unlawfully, and without justifiable cause, cap- 
 tured a ship with three hundred slaves on board. The only question was, 
 the amount of damages. Abbott, C. J., who tried the cause, in reference 
 to the very strong language of the acts of Parliament, declaring the traffic 
 in slaves a violation of right, and contrary to the first principles of justice 
 and humanity, doubted, whether the owner could recover damages, in an 
 English court of justice, for the value of the slaves as property, and 
 directed the ship and the slaves to be separately valued. On further con- 
 sideration he and the whole court were of opinion, that the .plaintiff was 
 entitled to recover for the value of the slaves. That opinion went upon 
 the ground, that the traffic in slaves, however wrong in itself, if prose- 
 cuted by a Spaniard between Spain and the coast of Africa, and if per-
 
 CH. IV.] CAPACITY OF PERSONS. 175 
 
 of local situation, is far from being a novelty in the 
 law. A residence in a new country often introduces a 
 
 mitted by the laws of Spain, and not restrained by treaty, could not be 
 lawfully interrupted by a British subject, on the high seas, the common 
 highway of nations. And ]\Ir. Justice Bayley, in his opinion, after stating 
 the general rule, that a foreigner is entitled, in a British court of justice, 
 to compensation for a wrongful act, added, that, although the language 
 used by the statutes was very strong, yet it could only apply to British 
 subjects. It is true, he further says, that if this were a trade contrary to 
 the laws of nations, a foreigner could not maintain this action. And 
 Best, J., spoke strongly to the same effect, adding, that the statutes speak 
 in just terms of indignation of the horrible traffic in human beings, but 
 they speak only in the name of the British nation. If a ship be acting 
 contrary to the general law of nations, she is thereby subject to confisca- 
 tion ; but it is impossible to say, that the slave trade is contrary to what 
 may be called the common law of nations. Forbes v. Cochrane, 2 Barn. & 
 Cresw. 448 ; Dowl. & Ryl. 679. This case has been supposed to conflict 
 with the one last cited ; but I apprehend, in considering the principles, upon 
 which they were decided, they will be found to be perfectly reconcilable. 
 The plaintiff, a British subject, domiciled in East Florida, where slavery 
 Was established by law, was the owner of a plantation, and of certain 
 slaves, who escaped thence and got on board a British ship of war on the 
 high seas. It was held, that he could not maintain an action against the 
 master of the ship for harboring the slaves after notice and demand of 
 them. Some of the opinions given in this case are extremely instructive 
 and applicable to the present. Holroyd, J., in giving his opinion, said, 
 that the plaintiff could not found his claim to the slaves upon any general 
 right, because by the English law such a right cannot be considered as 
 warranted by the general law of nature ; that if the plaintiff could claim 
 at all, it must be in virtue of some right, which he had acquired by the 
 law of the country, where he was domiciled ; that when such rights are 
 recognized by law, they must be considered as founded not upon a law of 
 nature, but upon the particular law of that country, and must be coexten- 
 sive with the territories of that State ; that if such right were violated by 
 a British subject, within such territory, the party grieved would be entitled 
 to a remedy ; but that the law of slavery is a law in invitum ; and when a 
 party gets out of the territory, where it prevails, and under the protection 
 of another power, without any wrongful act done by the party giving that 
 protection, the right of the master, which is founded on the municipal law 
 of the place only, does not continue. So in speaking of the effect of bring- 
 ing a slave into England, he says, he ceases to be a slave in England, only 
 because there is no law which sanctions his detention in slavery. Best, J., 
 declared his opinion to the same effect. Slavery is a local law, therefore
 
 176 CONFLICT OF LAWS. [CH. IV. 
 
 change of legal condition, which imposes rights and 
 obligations totally inconsistent with the former rights 
 
 if a man wishes to preserve his slaves, let him attach them to him by 
 affection, or make fast the bars of their prison, or rivet well their chains, 
 for the instant they get beyond the limits where slavery is recognized by 
 the local law, they have broken their chains, they have escaped from their 
 prison, and are free. That slavery is a relation founded in force, not in 
 light, existing, where it does exist, by force of positive law, and not re- 
 cognized as founded in natural right, is intimated by a definition of slavery 
 in the civil law : ' Servitus est constitulio juris gentium, qua quis dominio 
 alieno contra naturam subjicitiir.' Upon a general review of the author- 
 ities, and upon an application of the well established principles upon this 
 subject, we think they fully maintain the point stated, that though slavery 
 is contrary to natural right, and to the principles of justice, humanity, and 
 sound policy, as we adopt them, and found our own laws upon them, yet 
 not being contrary to the laws of nations, if any other state or community 
 see fit to establish and continue slavery by law, so far as the legislative 
 power of that country extends, we are bound to take notice of the ex- 
 istence of those laws, and we are not at liberty to declare and hold an act 
 done within those limits unlawful and void, upon our views of morality 
 and policy, which the sovereign and legislative power of the place has 
 pronounced to be lawful. If, therefore, an unwarranted interference and 
 wrong is done by our citizens to a foreigner, acting under the sanction of 
 such laws, and within their proper limits, that is, withm the local limits 
 of the power by whom they are thus established, or on the liigh seas, 
 which each and every nation has a right in common with all others to 
 occupy, our laws would no doubt afford a remedy against the wrong done. 
 So m pursuance of a well-known maxim, that, in the construction of con- 
 tracts, the lex loci contractus shall govern, if a person having in other 
 respects a right to sue in our courts, shall bring an action agamst another, 
 liable in other respects to be sued in our courts, upon a cimtraci made 
 upon the subject of slavery in a State, where slavery is allowed by law, 
 the law here would give it effect. As if a note of hand made in New 
 Orleans were sued on here, and the defence should be, that it was a bad 
 consideration, or, without consideration, because given for the price of a 
 slave sold, it may well be admitted, that such a defence could not prevail, 
 because the contract was a legal one by the law of the place where it was 
 made.l This view of the law applicable to slavery, marks strongly the 
 distinction between the relation of master and slave, as established by the 
 local law of particular States, and in viriue of that sovereign power and 
 independent authority, which each independent State concedes to every 
 
 1 But see post, ^ 259.
 
 CH. IV.] CAPACITY OF PERSONS. 177 
 
 and obligations of the same persons. Persons, bound 
 by particular contracts, which restrain their liberty, 
 
 other, and those natural and social relations, which are everywhere and 
 by ail people recognized, and which though they may be modified and 
 regulated by municipal law, are not founded upon it, such as the relation 
 of parent and child, and husband and wife. Such also is the principle, 
 upon which the general right of property is founded, being in some form 
 universally recognized as a natural right, independently of municipal law. 
 This affords an answer to the argument drawn from the maxim, that the 
 right of personal property follows the person, and therefore, where by the 
 law of a place, a person there domiciled acquires personal property, by the 
 comity of nations, the same must be deemed his property everywhere. It 
 is obvious, that if this were true, in the extent in which the argument 
 employs it, if slavery exists anywhere, and if by the laws of any place a 
 property can be acquired in slaves, the law of slavery must extend to every 
 place, where such slaves may be carried. The maxim, therefore, and the 
 argument can apply only to those commodities, which are everywhere, 
 and by all nations, treated and deemed subjects of property. But it is not 
 speaking with strict accuracy to say, that a property can be acquired in 
 human beings by local laws. Each State may, for its own convenience, 
 declare, that slaves shall be deemed property, and that the relations and 
 laws of personal chattels shall be deemed to apply to them ; as for in- 
 stance, that they may be bought and sold, delivered, attached, levied 
 upon ; that trespass will lie for an injury done to them, or trover for con- 
 verting them. But it would be a perversion of terms to say, that such local 
 laws do in fact make them personal property generally ; they can only 
 determine, that the same rules of law shall apply to them, as are applica- 
 ble to property, and this effect will follow only so far as such laws proprio 
 vigore can operate. The same doctrine is recognized in Louisiana. In 
 the case of Lunsford v. Coquillon, 14 Martin, R. 404, it is thus stated ; — 
 The relation of owner and slave in the States of this Union, in which it 
 has a legal existence, is a creature of the municipal law. See Story, 
 Conflict of Laws, 92, 97. The same principle is declared by the Court in 
 Kentucky, in the case of Rankin v. Lydia, 2 Marshall, R. 470. They 
 say, slavery is sanctioned by the laws of this State ; but we consider this 
 as a right, existing by positive law of a municipal character, without 
 foundation in the law of nature. The conclusion, to which we come with 
 this view of the law, is this : That by the general and now well-established 
 law of this Commonwealth, bond slavery cannot exist, because it is con- 
 trary to natural right, and repugnant to numerous provisions of the con- 
 stitution and laws, designed to secure the liberty and personal rights of 
 all persons within its limits and entitled to the protection of its laws. 
 That though by the laws of a foreign State, meaning by ' foreign ' in
 
 178 CONFLICT OF LAWS. [CH. IV. 
 
 debtors, apprentices, and others, lose their character 
 and condition for the time, when they reside in another 
 
 this connection, a State governed by its own laws, and between which 
 and our own there is no dependence one upon the other ; but which in 
 this respect are as independent as foreign States ; a person may acquire a 
 property in a slave, that such acquisition, being contrary to natural right, 
 and atfected by local law, is dependent upon such local law for its existence 
 and efficacy, and being contrary to the fundamental law of the State, such 
 general right of property cannot be exercised or recognized here. That as 
 a general rule, all persons coming within the limits of a State, become 
 subject to all its municipal laws, civil and criminal, and entitled to the 
 privileges, which those laws confer, that this rules applies as well to 
 blacks, as whites, except the case of fugitives, to be afterwards consi- 
 dered ; that if such persons have been slaves, they become free, not so 
 much because any alteration is made in their status, or condition, as be- 
 cause there is no law which will warrant, but there are laws, if they 
 choose to avail themselves of them, which prohibit their forcible deten- 
 tion, or forcible removal. That the law arising from the comity of na- 
 tions cannot apply, because if it did, it would follow as a necessary 
 consequence, that all those persons, who, by force of local laws, and within 
 all foreign places, where slavery is permitted, have acquired slaves as 
 property, might bring their slaves here, and exercise over them the rights 
 and power, which an owner of property might exercise, and for any 
 length of time, short of acquiring a doraicil, that such an application of 
 the law would be wholly repugnant to our laws, entirely inconsistent with 
 our policy and our fundamental principles, and is therefore inadmissible. 
 Whether, if a slave voluntarily brought here, and with his own consent 
 returning with his master, would resume his condition as a slave, is a 
 question, which was incidentally raised in the argument, but is one on 
 which we are not called on to give an opinion in this case, and we give 
 none. From the principle above stated, on which a slave brought here 
 becomes free, to wit, that he becomes entitled to the protection of our 
 laws, and there is no law to warrant his forcible arrest and removal, it 
 would seem to follow, as a necessary conclusion, that, if the slave waives 
 the protection of those laws, and returns to the State, where he is held as 
 a slave, his condition is not changed. In the case Ex parte Grace, 2 
 Hagg. Adm. R. 94, this question was fully considered by Sir William Scott, 
 in the case of a slave brought from the West Indies to England, and after- 
 wards voluntarily returning to the West Indies ; and he held, that she 
 was reinstated in her condition of slavery. A different decision, I believe, 
 has been made of the question in some of the United States ; but for the 
 reasons already given, it is not necessary to consider it further here. The 
 question has thus far been considered as a general one, and applicable to
 
 CH. IV.] CAPACITY OF PERSONS. 179 
 
 country, and are entitled as persons totally free, although 
 they return to their original servitude and obligations, 
 
 cases of slaves brought from any foreign state or country ; and it now be- 
 comes necessary to see, how far this result differs, where the person is 
 claimed as a slave by a citizen of another Stale of this Union, that is, 
 how the question, as between citizens of different States, is affected by the 
 provisions of the Constitution and laws of the United States. In Article 
 4, Sec. 2, the Constitution declares, that no person held to service or labor 
 in one State under the laws thereof, escaping into another, shall in conse- 
 quence of any law or regulation therein, be discharged from such service 
 or labor, but shall be delivered up on claim of the party, to whom such 
 service or labor may be due. .The law of Congress made in pursuance of 
 this article, provides, that when any person held to labor in any of the 
 United States, &c., shall escape into any other of the said States or Terri- 
 tories, the person entitled, &c., is empowered to arrest the fugitive, and 
 upon proof made, that the person so seized, under the law of the State, 
 from which he or she fled, owes service, &c. Act of February 12, 1793. 
 In regard to these provisions, the Court are of opinion, that as by the 
 general law of this Commonwealth, slavery cannot exist, and the rights 
 and powers of slave owners cannot be exercised therein, the effect of this 
 provision in the Constitution and laws of the United States is to limit and 
 restrain the operation of this general rule, so far as it is done by the plain 
 meaning and obvious intent and import of the language used, and no far- 
 ther. The constitution and law manifestly refer to the case of a slave 
 escaping from a State, where he owes service or labor, into another State or 
 Territory. He is termed a fugitive from labor ; the proof to be made is, 
 that he owed service or labor, under the laws of the State or Territory from 
 which he fled, and the authority given is to remove such fugitive to the 
 State from which he fled. This language can, by no reasonable construc- 
 tion, be applied to the case of a slave, who has not fled from the State, but 
 who has been brought into this State by his master. The same conclu- 
 sion will result from a consideration of the well known circumstances, un- 
 der which this constitution was formed. Before the adoption of the con- 
 stitution, the States were, to a certain extent, sovereign and independent, 
 and were in a condition to settle the terms, upon which they would form 
 a more perfect union. It has been contended by some over zealous phi- 
 lanthropists, that such an article in the constitution could be of no binding 
 force or validity, because it was a stipulation contrary to natural right. 
 But it is diflicult to perceive the force of this objection. It has already 
 been shown, that slavery is not contrary to the laws of nations. It would 
 then be the proper subjeo* of treaties among sovereign and independent 
 powers. Suppose, instead of forming the present constitution, or any
 
 180 CONFLICT OF LAWS. [CH. IV. 
 
 upon coming back to the country they had quitted ; 
 and even in the case of slavery, slaves themselves pos- 
 
 other confederation, the several States had become in all respects sovereign 
 and independent, would it not have been competent for them to stipulate, 
 that fugitive slaves should be mutually restored, and to frame suitable 
 regulations, under which such a stipulation should be carried into effect ? 
 Such a stipulation would be highly important and necessary, to secure 
 peace and harmony between adjoining nations, and to prevent perpetual 
 collisions and border wars. It would be no encroachment on the rights of 
 the fugitive ; for no stranger has a just claim to the protection of a foreign 
 State against its will, especially where a claim to such protection would 
 be likely to involve the State in war ; and each independent State has a 
 right to determine by its own laws and treaties who may come to reside or 
 seek shelter within its limits. Now the constitution of the United States 
 partakes both of the nature of a treaty and of a form of government. It 
 regards the States, to a certain extent, as sovereign and independent com- 
 munities, with full power to make their own laws, and regulate their own 
 policy, and fixes the terms upon which their intercourse with each other 
 shall be conducted. In respect to foreign relations, it regards the people 
 of the States as one community, and constitutes a form of government for 
 them. It is well known, that, when this constitution was formed, some 
 of the States permitted slavery and the slave trade, and considered them 
 highly essential to their interests, and that some other States had abolished 
 slavery within their own limits, and, from the principles deduced and policy 
 avowed by them, might be presumed to desire to extend such abolition fur- 
 ther. It was, therefore, manifestly the intent and the object of one party to 
 this compact to enlarge, extend, and secure, as far as possible, the rights and 
 powers of the owners of slaves, within their own limits, as well as in 
 other States, and of the other party, to limit and restrain them. Under 
 these circumstances, the clause in question was agreed on, and introduced 
 into the constitution. And as it was well considered, as it was intended 
 to secure peace and harmony, and to fix, as precisely as language could 
 do it, the limit to which the rights of one party should be exercised with- 
 in the territory of the other, it is to be presumed, that they selected terms 
 intended to express their exact and their whole meaning ; and it would 
 be a departure from the purpose and spirit of the compact, to put any 
 other construction upon it, than that to be derived from the plain and na- 
 tural import of the language used. Besides ; this construction of the pro- 
 vision in the constitution gives to it a latitude, sufficient to afford effectual 
 security to the owners of slaves. The States have a plenary power to make all 
 laws necessary for the regulation of slavery and the rights of slave owners, 
 whilst the slaves remain within their territorial limits ; and it is only when 
 they escape, without the consent of their owners, into other States, that
 
 CH. IV.] CAPACITY OF PERSONS. 181 
 
 sess rights and privileges in one character, which they 
 are not entitled to in another. The domestic slave may, 
 
 they require the aid of other States to enable them to regain their domi- 
 nion over the fugitives. But this point is supported by most respectable 
 and unexceptionable authorities. In the case of Butler v. Hooper, 1 
 Wash. C. C. R. 499, it was held by Mr. Justice Washington, in terms, 
 that the provision in the constitution which we are now considering, does 
 not extend to the case of a slave, voluntarily carried by his master into 
 another State, and there leaving him under the protection of some law 
 declaring him free. In this case, however, the master claimed to hold the 
 slave in virtue of a law of Pennsylvania, which permitted members of 
 Congress and sojourners to retain their domestic slaves, and it was held, 
 that he did not bring himself within either branch of the exception, be- 
 cause he had, for two years of the period, ceased to be a member of Con- 
 gress, and so lost the privilege ; and by having become a resident, could 
 not claim as a sojourner. The case is an authority to this point, that the 
 claimant of a slave, to avail himself of the provisions of the constitution 
 and laws of the United States, must bring himself within their plain and 
 obvious meaning, and they will not be extended by construction ; and that 
 the clause in the constitution is confined to the case of a slave escaping 
 from one State and fleeing to another. But in a more recent case, the 
 point was decided by the same eminent judge. Ex parte Simmonds, 4 
 Wash. C. C. R. 396. It was an application for a certificate under ^ 3 of the 
 Act of Feb. 12, 1793. Pie held that both the constitution and the laws of 
 the United States apply only to fugitives, escaping ftom one State and 
 fleeing to another, and not to the case of a slave voluntarily brought by 
 his master. Another question was made in that case, whether the slave 
 was free by the laws of Pennsylvania, which, like our own, in effect libe- 
 rate slaves voluntarily brought within the State ; but there is an excep- 
 tion in favor of Members of Congress, Foreign Ministers and Consuls, and 
 sojourners. But this provision is qualified as to sojourners and persons 
 passing through the State in such manner, as to exclude them from the 
 benefit of the exception, if the slave was retained in the State longer than 
 six months. The slave in that case, having been detained in the State 
 more than six months, was therefore held free. This case is an authority 
 to this point ; — the general rule being, that if a slave is brought into a 
 State where the laws do not admit slavery, he will be held free, the per- 
 son who claims him as a slave under any exception or limitation of the 
 general rule, must show clearly that the case was within such exception. 
 The same principle was substantially decided by the State court of the 
 same State in the case of Commonwealth v. Holloway, 2 Serg. & Rawle 
 305. It was the case of a child of a fugitive slave, born in Pennsylvania. 
 It was held, that the constitution of the United States was not inconsist- 
 16
 
 182 CONFLICT OF LAWS. [CH. IV. 
 
 in that character, by law accompany his master or mis- 
 tress to any part of the world. But that privilege ex- 
 
 ent with the law of Pennsylvania ; that as the law and constitution of the 
 United States did not include the issue of fugitive slaves in terms, it did 
 not embrace them by construction or implication. The Court considers 
 the law as applying only to those who escape. — Yet by the operation of 
 the maxim which obtains in all the States wherein slavery is permitted by 
 law, Partus sequitur ventrem, the offspring would follow the condition of 
 the mother, if either the rule of comity contended for applied, or if the 
 law of the United Slates would be extended by construction. The same 
 decision has been made in Indiana, 3 Amer. Jurist, 404. In Louisiana, it 
 had been held, that if a person with a slave goes into a State to reside, 
 where it is declared that slavery shall not exist, for ever so short a time, 
 the slave ipso facto becomes free, and will be so adjudged and considered 
 afterwards in all other States ; and a person moving from Kentucky to 
 Ohio, to reside, his slaves thereby became free, and were so held in Lou- 
 isiana. This case also fully recognizes the authority of States to make 
 laws dissolving the relation of master and slave ; and considers the spe- 
 cial limitation of the general power by the Federal Constitution, as a forcible 
 implication in proof of the existence of such general powers. Lunsford w.Co- 
 quillon, 14 Martin, R. 465. And in the above cited case from Louisiana, it is 
 very significantly remarked, that such a construction of the constitution and 
 law of the United States can work injury to no one, for the principle acts 
 only on the willing, and Volenti non fit injuria. The same rule of construc- 
 tion is adopted in analogous cases in other countries, that is, where an 
 institution is forbidden, but where, for special reasons and to a limited ex- 
 lent, such prohibition is relaxed, the exemption is to be construed strictly ; 
 and whoever claims the exemption, must show himself clearly within it, 
 and where the facts do not bring the case within the exemption, general 
 rule has its effect. By a general law of France, all persons inhabiting 
 or being within the territorial limits of France, are free. An edict was 
 passed by Louis XIV., called ' Le Code Noir,' respecting slavery in the 
 colonies. In 1716, an edict was published by Louis XV., concerning 
 slavery in the colonies, and reciting among other things, that many of the 
 colonists were desirous of bringing their slaves into France, to have them 
 confirmed in the principles of religion, and to be instructed in various arts 
 and handicrafts, from which the colonists would derive much benefit, on 
 the return of the slaves, but that many of the colonists feared, that, their 
 slaves would pretend to be free on their arrival in France, from which 
 their owners would sustain considerable loss, and be deterred from pursu- 
 ing an object at once so pious and useful. The edict then provides a series 
 of minute regulations, to be observed both before their departure from the 
 West Indies, and on their arrival in France, and if all these regulations
 
 CH. IV.] CAPACITY OF PERSONS. 183 
 
 ists no longer than his character of domestic slave at- 
 taches to him ; for, should the owner deprive him of 
 
 are strictly complied with, the negroes so brought over to France shall 
 not thereby acquire any right to their freedonn, but shall be compellable to 
 return ; but if the owners shall neglect to comply with the prescribed regu- 
 lations, the negroes shall become free, and ihe owners shall lose all 
 property in them. 20 Howell, State Trials, 15, note. The constitution 
 and laws of the United States, then, are confined to cases of slaves escap- 
 ing from other States, and coming within the limits of this State, without 
 the consent and against the will of their masters, and cannot by any sound 
 construction extend to a case where the slave does not escape, and does 
 not come within the limits of this Slate against the will of the master, but 
 by his own act and permission. This provision is to be construed ac- 
 cording to its plain terms and import, and cannot be extended beyond this, 
 and where the case is not that of an escape, the general rule shall have its 
 effect. It is upon these grounds, we are of opinion, that an owner of a 
 slave in another State where slavery is warranted by law, voluntarily 
 bringing such slave into this State, has no authority to detain him against his 
 will, or to carry him out of the State against his consent, for the purpose 
 of being held in slavery. This opinion is not to be considered as extend- 
 ing to a case where the owner of a fugitive slave, having produced a cer- 
 tificate according to the law of the United Slates, is bona fide removing 
 such slave to his own domicil, and in so doing passes through a free State ; 
 where the law confers a right or favor, by necessary implication it gives 
 the means of executing it. Nor do we give any opinion upon the case, 
 where an owner of a slave in one State, is bona fide removing to another 
 State, where slavery is allowed, and in so doing necessarily passes through 
 a free State, or, arriving by accident or necessity, he is compelled to touch 
 or land therein, remaining no longer than necessary. Our geographical 
 position exempts us from the probable necessity of considering such a 
 case, and we give no opinion respecting it. The child, who is the sub- 
 ject of this habeas corpus, being of too tender years to have any will or 
 give any consent to be removed, and her mother being a slave, and having 
 no will of her own, and no power to act for her child, she is necessarily 
 left in the custody of the law. The respondent having claimed the cus- 
 tody of the child, in behalf of Mr. and Mrs. Slater, who claim the right 
 to carry her back to Louisiana, to be held in a state of slavery, we are of 
 opinion, that his custody is not to be deemed by the Court a proper and 
 lawful custody. Under a suggestion made in the outset of this inquiry, 
 that a probate guardian would probably be appointed, we shall for the 
 present order the child into a temporary custody, to give time for an ap- 
 plication to be made to the Judge of Probate. [See also Commonwealth
 
 184 CONFLICT OF LAWS. [CH. IV. 
 
 the character of being a domestic slave by employing 
 him as a field slave, he would be deprived of the right 
 of accompanying his master out of the colony." ^ 
 
 § 97. Struck with the inconveniences of the doctrine 
 of the ubiquity of the law of the domicil, as to the ca- 
 pacity, state, and condition of persons, as an absolute 
 and general doctrine, a learned Judge in the Scottish 
 courts^ has not hesitated to hold, that no such doctrine 
 is recognized, as of universal obligation in Scotland. 
 " Would a marriage here," (says he,) " be declared void, 
 because the parties were domiciled in England, and 
 were minors, when they married here, and of course in- 
 capable, by the law of that country, of contracting mar- 
 riage ? This category of law does not afiect the con- 
 tracting individuals, only, but the public, and that in 
 various ways. And the consequences would prove not 
 a little inconvenient, embarrassing, and probably even 
 inextricable, if the personal incapacities of individuals, 
 as of majors and minors, the competency to contract 
 marriages, and infringe matrimonial engagements, the 
 rights of domestic authority and service, and the like, 
 were to be qualified and regulated by foreign laws and 
 customs, with which the mass of the population must 
 be utterly unacquainted. Accordingly, the laws of this 
 description seem nowhere to yield to those of foreign 
 
 V. Taylor, 3 Mete. 72, where this doctrine was reaffirmed, and where it was 
 also held that the consent of a negro slave, then only eight years of age, 
 would not authorize an order for his removal to a state of slavery, and he 
 was delivered over to a guardian appointed for him by the Court of Pro- 
 bate of Massachusetts, where he then was.] 
 
 1 The Slave Grace, 2 Hagg. Adm. R. 91, 113, 114. It seems that 
 Christinaeus and Gudelin held the same opinion as Lord Stowell. See 
 Christineeus, Vol. 4, Decis. 80, n. 4, p. 115, cited also, 1 Burge, Com. 
 on Col. and For. Law, P. I, ch. 10, p. 749. 
 
 2 Lord Meadowbank ; Fergusson on Mar. and Divorce, Appx. 361, 362.
 
 CH. IV.] CAPACITY OF PERSONS. 185 
 
 countries ; and accordingly, it is believed, no nation has 
 hitherto thought of conferring powers and forms on its 
 courts of justice, adequate for enabling them to execute 
 over foreigners regular authority for enforcing the ob- 
 servance by them of the laws of their own country, 
 when expatriated. In fact, the very same principles, 
 which prescribe to nations the administration of their 
 own criminal law, appear to require a like exclusive 
 administration of law relative to the domestic relations. 
 Hence, both in England and Scotland, the most regular 
 constitution abroad of domestic slavery was held to 
 afford no claim to domestic service in this country, 
 though restrictions for only such service, and under 
 such domestic authority, as our laws recognized. The 
 whole order of society would be disjointed, were the 
 positive institutions of foreign nations concerning the 
 domestic relations, and the capacities of persons regard- 
 ing them, admitted to operate universally, and form 
 privileged castes, living each under separate laws, like 
 the barbarous nations during many centuries after their 
 settlement in the Roman empire."^ 
 
 § 98. These diversities in the practical jurisprudence 
 of different countries, as to the effect of personal ability 
 and disability, and personal capacity or incapacity, 
 abundantly establish, in the first place, that there is no 
 general rule on the subject, which is admitted by all 
 nations ; and, in the next place, that the very excep- 
 tions introduced or conceded by those who most strenu- 
 ously contend for the universal operation of the law of 
 the domicil of the party, either native or acquired, in 
 cases of this nature, as satisfactorily establish, that no 
 general rules, have been or can be established, which 
 
 iLord Meadowbank ; Fergusson on Mar. and Divorce, Appx. 361, 262. 
 16*
 
 186 CONFLICT OF LAWS. [CH. IV. 
 
 may not work serious inconvenience to the interests or 
 institutions of some particular countries, or to some par- 
 ticular classes of capacities or incapacities. The proper 
 conclusion, then, to be drawn from this review of the 
 subject is, that the rule of Huberus is correct, that no 
 nation is under any obligation to give effect to the laws 
 of any other nation, which are prejudicial to itself or to 
 its own citizens ; that in all cases every nation must 
 judge for itself, what foreign laws are so prejudicial or 
 not ; and that, in cases not so prejudicial, a spirit of co- 
 mity and a sense of mutual utility ought to induce every 
 nation to allow full force and effect to the laws of every 
 other nation. This is the doctrine asserted by Mr. Chan- 
 cellor Kent ; and it certainly has a most solid founda- 
 tion in the actual practice of nations. "There is no 
 doubt," (says he,) " of the truth of the general proposi- 
 tion, that the laws of a country have no binding force 
 beyond its own territorial limits ; and their authority is 
 admitted in other states, not ex proprio vigore, but ex 
 comitate ; or in the language of Huberus, Quatemis sine 
 prcejudicio indulgentium fieri potest. Every independent 
 community will judge for itself, how far the comitas 
 inter communitates is to be permitted to interfere with 
 its domestic interests and policy, &c. It is a maxim, 
 that Locus regit actum, unless the intention of the par- 
 ties to the contrary be clearly shown. It is, however, a 
 necessary exception to the universality of the rule, that 
 no people are bound to enforce, or hold valid in their 
 courts of justice, any contract, which is injurious to 
 their public rights, or olfends their morals, or contra- 
 venes their policy, or violates a public law." ^ 
 
 1 2 Kent, Comm. Lect. 39, p. 457, 458, (3d edit.) ; post,^ 244 to ^ 259. 
 See also Greenwood v. Curtis, 6 Mass. R. 378, 379. This subject is a
 
 CH. IV.] CAPACITY OF PERSONS. 187 
 
 § 99. In discussing this subject, our attention has 
 been more particularly drawn to the common cases of 
 incapacity, resulting from minority, and marriage, and 
 legitimacy. But the principles which apply to them 
 are not materially different from those which apply to 
 cases of idiocy, insanity, and prodigality. The extent 
 of the rights and authorities of guardians, curators, 
 parents, and masters, over persons subjected to their 
 control, or committed to their charge, may, in a general 
 sense, be said to depend, so far as they are to be recog- 
 nized or enforced by and in foreign nations, upon the 
 same common ground of international jurisprudence, 
 that is to say, upon a general comity, founded in the 
 sense of mutual interests, mutual benefits, and mutual 
 obligations to cultivate peace and harmony. It was 
 said, on a recent occasion, with great force and pro- 
 priety, by Mr. Chief Justice Taney, in delivering the 
 opinion of the Supreme Court ; " The comity thus ex- 
 tended to other nations is no impeachment of sove- 
 reignty. It is the voluntary act of the nation, by 
 which it is offered, and is inadmissible, when contrary 
 to its policy or prejudicial to its interests. But it con- 
 tributes so largely to promote justice between indi- 
 viduals, and to produce a friendly intercourse between 
 the sovereignties to which they belong, that courts of 
 justice have constantly acted upon it, as a part of the 
 voluntary law of nations.^ 
 
 good deal discussed ia the able work of Mr. Fergusson on Marriage and 
 Divorce ; and the opinions of the judges in the case of Gordon v. Pye, in 
 1815, and that of Edmonstone and others, in 1816, before the Scottish 
 courts, are particularly worthy of examination, from their comprehensive 
 learning and ability. Fergusson, Appx. p. 276 to p. 363. See also, Id. 
 p. 384 to p. 422. 
 
 1 Bank of Augusta v. Earle, 13 Peters, R. 589.
 
 188 CONFLICT OF LAWS. [CH. IV. 
 
 § 100. In concluding this discussion, as to the opera- 
 tion of foreign laws on questions relating to the capa- 
 city, state, and condition of persons, it may be useful to 
 bring together some of those rules which seem best 
 established in the jurisprudence of England and Ame- 
 rica, leaving others of a more doubtful character and 
 extent to be decided, as they may arise in the proper 
 forum. 
 
 § 101. First. The capacity, state, and condition of 
 persons according to the law of their domicil will 
 generally be regarded as to acts done, rights acquired, 
 and contracts made, in the place of their domicil, 
 touching property situate therein. If these acts, rights, 
 and contracts have validity there, they will be held 
 equally valid everywhere. If invalid there, they will 
 be held invalid everywhere.^ 
 
 § 102. Secondly. As to acts done, and rights ac- 
 quired, and contracts made in other countries, touching 
 property therein, the law of the country, where the acts 
 are done, the lights are acquired, or the contracts are 
 made, will generally govern in respect to the capacity, 
 state, and condition of persons.^. In affirmance of this 
 doctrine the Supreme Court of Louisiana, in a case, 
 where the direct question came before them, expressly 
 stated, that they had no difficulty in assenting to the 
 proposition, that contracts entered in other States, as it 
 relates to their validity, and the capacity of the con- 
 tracting parties, are to be tried in Louisiana by the 
 Lex loci celehrati contractus. And that if a contract was 
 
 1 See Male v. Roberts, 3 Esp. R. 63 ; Thompson i'. Ketcham, 8 Johns. 
 R. 189 ; ante, ^ 64 to ^ 68 ; Id. ^ 87. See Foelix, Conflict des Lois 
 Revue Etrang. et Frang. Tom. 7, 1840, ^ 38, p. 342 to p. 344. 
 
 2 Ante, ^ 69, 70 to § 74 ; Id. § 80, 81, 82, 87.
 
 CH. IV.] CAPACITY OF PERSONS. 189 
 
 entered into in another State in conformity to the local 
 law, to have its effects and execution there, the Courts 
 of Louisiana cannot declare it a nullity on the ground, 
 that it would not be valid according to the system of 
 jurisprudence of that State, even if one or both of the 
 contracting parties were not citizens of such foreign 
 State.i 
 
 § 102 (2. It has been well remarked by Mr. Burge ; 
 "This doctrine promotes, whilst that to which it is 
 opposed, is inconsistent with those principles of mutual 
 convenience, which induce the recognition of foreign 
 laws. The obstacles to commercial intercourse between 
 the subjects of foreign States would be almost insur- 
 mountable, if a party must pause to ascertain, not by 
 the means within his reach, but by recourse to the law 
 of the domicil of the person with whom he was dealing, 
 whether the latter has attained the age of majority? 
 and, consequently, whether he is competent to enter 
 into a valid and binding contract. If the country, in 
 which the contract was litigated, was also that in which 
 it had been entered into, and if the party enforcing it 
 were the subject of that country, it would be unjust, as 
 well as unreasonable, to invoke the law of a foreign 
 State for the benefit of the foreigner, and to deprive its 
 own subject of the benefit of the law of his own State." ^ 
 
 § 102 h. He adds ; " It has been hitherto assumed, 
 that, according to the law of the domicil, the person 
 was a minor, and incapable of contracting, although he 
 had attained the age, which in loco contractus consti- 
 tuted majority, and where, according to that law, he 
 
 1 Mr. Justice Bullard, in Andrews v. His Creditors, 11 Louis. R. 464 ; 
 ante, ^ 95, note 3, ^ 96 a. 
 
 2 1 Burge, Com. on Col. and For. Law, P. 1, ch. 4, p. 132.
 
 190 CONFLICT OF LAWS. [CH. IV. 
 
 was competent to contract. In such a case, it has been 
 submitted, that the Lex hci contractus ought to be fol- 
 lowed. It ought also to be followed, if the converse of 
 that case occurred, and he had attained majority ac- 
 cording to the law of his domicil, but was a minor 
 according to that which prevailed in loco contractus. It 
 is true, in the latter case, the party was subject to no 
 greater liability than he would have incurred in the 
 place of his domicil. But if the principle be correct, 
 that the Lex loci contractus ought to determine the 
 validity of a contract when that validity depends on the 
 capacity of the contracting party, it must be uniformly 
 applied, whether the law prevailing in the domicil be 
 that which capacitates or incapacitates. For it would 
 not be reasonable, that two different laws should be 
 applied to one and the same contract, and that the lia- 
 bility of one of the parties should be decided by the 
 Lex loci contractus, and that of the other by the Lex loci 
 domicilii" ^ 
 
 § 103. Thirdly. Hence we may deduce, as a corol- 
 lary, that in regard to questions of minority or majority, 
 competency or incompetency to marry, incapacities in- 
 cident to coverture, guardianship, emancipation, and 
 other personal qualities and disabilities, the law of the 
 domicil of birth, or the law of any other acquired and 
 fixed domicil, is not generally to govern, but the Lex 
 loci contractus aiit actus, the law of the place where the 
 contract is made, or the act done. Therefore, a person, 
 who is a minor, until he is of the age of twenty-five 
 years by the law of his domicil, and incapable, as such, 
 of making a valid contract there, may nevertheless in 
 another country, where he would be of age at twenty- 
 
 1 I Burge, Comm. on Col. and For. Law, P. 1, ch. 4, p. 133.
 
 CH. IV.] CAPACITY OF PERSONS. 191 
 
 one years, generally make a valid contract at that age, 
 even a contract of marriage.^ 
 
 § 104. Fourthly. Personal disqualifications, not 
 arising from the law of nature, but from the principles 
 of the customary or positive law of a foreign country, 
 and especially such as are of a penal nature, are not 
 generally regarded in other countries, where the like 
 disqualifications do not exist.^ Hence, the disqualifica- 
 tions, resulting from heresy, excommunication, Popish 
 recusancy, infamy, and other penal disabilities, are not 
 enforced in any other country, except that, in which 
 they originate. They are strictly territorial.^ So, the 
 state of slavery will not be recognized in any country 
 whose institutions and policy prohibit slavery.* 
 
 § 105. Fifthly. In questions of legitimacy, or illegi- 
 timacy, the law of the place of the marriage will gene- 
 rally govern, as to the issue subsequently born. If the 
 marriage is valid by the law of that place, it will gene- 
 rally be held valid in every other country, for the 
 purpose of ascertaining legitimacy and heirship. If 
 invalid there, it will generally (if not universally) be 
 held invalid in every other country.^ 
 
 § 105 a. Sixthly. As to issue born before the mar- 
 riage, if by the law of the country, where they are born, 
 they would be legitimated by the subsequent marriage 
 of their parents, they will be by such subsequent mar- 
 riage (perhaps in any country, but at all events) in the 
 same country, become legitimate, so that, this character 
 
 1 Ante, % 75, 79, 80, 81, 82. [See also Pearl v. Hansborough, 9 Hum- 
 phreys, R. 426.] 
 
 2 Ante, ^ 91 to ^ 96. 3 Ante, § 91, 92, 94, 95. 
 
 4 Co. Lit. 79 b., Harg, n. 44 ; ante, ^ 96. 
 
 5 Ante, ^ 79,80, 81,86.
 
 192 CONFLICT OF LAWS. [CH. IV. 
 
 of legitimacy will be recognized in every other country. 
 If illegitimate there, the same character will belong to 
 them in every other country.^ 
 
 § 106. Seventhly. No nation being under any obli- 
 gation to yield up its own laws in regard to its own 
 subjects, to the laws of other nations, it will not suffer 
 its own subjects to evade the operation of its own fun- 
 damental policy or laws, or to commit frauds in viola- 
 tion of them, by any acts or contracts made with that 
 design in a foreign country ; and it will judge for itself, 
 how far it will adopt, and how far it will reject, any 
 such acts or contracts. Hence the acts of prodigals, of 
 minors, of idiots, of lunatics, and of married women, es- 
 caping into foreign countries, are not to be deemed as, 
 of course, absolutely obligatory, even if sanctioned by 
 the foreign law, unless the laws of their own country 
 adopt such foreign law, as a rule to govern in such 
 cases.^ Hence, too, a person born before wedlock, who 
 
 1 Ante, ^ 87, ^ 87 a ; Monro v. Saunders, 6 Bligh, R. 468. 
 
 2 An apt illustration of this rule may be found in the present law of 
 France. By that law, a marriage contracted in a foreign country between 
 Frenchmen, or a Frenchman and a stranger, is valid, if celebrated accord- 
 ing to the forms used in that country, provided it is preceded by a proper 
 publication of banns, and the Frenchman does not contravene the other 
 provisions of the French law. Upon this law Toullier remarks, that 
 the conditions, required to be complied with, are those of the code re- 
 specting the contract of marriage ; for as the laws respecting the person 
 follow a Frenchman everywhere, it results, that even in a foreign country 
 he is held to conform to the French laws relative to the age of the con- 
 tracting parlies, their family, and the impediments to marriage. 1 Toul- 
 lier, Droit Civil Francois, art. 575, p. 484. So that French minors, who 
 are incapable of contracting a marriage in France, are disabled everywhere, 
 even though the marriage would be gyod by the law of the place where 
 the marriage is celebrated. The English and American Courts would 
 hold such a marriage good. Code Civil, art. 144, 148, 170 ; Merlin Ru- 
 pert, tit. Loi, § 6, n. 1. See also 2 Kent, Comm. Lect. 26, p. 93, note, 
 3d edition. The doctrine of France, in this respect, is but an illustration
 
 CH. IT.] CAPACITY OF PERSONS. 193 
 
 in the country of his birth is deemed illegitimate, may 
 not, by a subsequent marriage of his parents in another 
 country, by whose laws such a marriage would make 
 him legitimate, cease to be illegitimate in the country 
 of his birth.^ Hence, also, if a marriage is by the laws 
 of a country indissoluble, when once contracted between 
 its own subjects, they may not, by a mere removal into 
 another country, at least without a change of domicil, 
 be deemed capable of contracting a new marriage after 
 a divorce, lawful by the law of the place, to which they 
 have removed.^ In short, every nation, in these and 
 the like cases, will govern itself by such rules and prin- 
 ciples as are best adapted in its own judgment to sub- 
 serve its own substantial interests, and fixed policy, and 
 to uphold its own institutions, as well as to promote a 
 liberal intercourse, and a spirit of confidence and reci- 
 procal comity with all other nations. But this subject 
 will be more fully considered in the succeeding chapters. 
 
 of the general rule, prescribed by the Civil Code of France, (art. 3,) that 
 the laws respecting the slate and condition of Frenchmen go\'ern them, 
 even when resident in a foreign country. Ante, ^ 54. 
 
 1 Ante, ^ 79, § 87, § 87 a, § 1Q5 a. 
 
 2 See Rex v. Lolley, 1 Russ. & Ryan's Cases, 236 ; Tobey v. Lindsay, 
 1 Dow, R, 124 ; Beazley v. Beazley, 3 Hagg. Eccl. R. 639 ; McCarthy v. 
 De Caix, 1831, 2 Russ. & Myine, R. 620. But see Warrender v. War- 
 render, 9 Bligh, R. 89 ; post, ^ 215 to ^ 231. 
 
 17
 
 194 CONFLICT OF LAWS. [CH. V. 
 
 CHAPTER V. 
 
 MARRIAGE. 
 
 § 107. Having treated of the capacity and incapacity 
 of persons, as afiected by foreign law, and especially in 
 relation to their capacity or incapacity to contract mar- 
 riage in a foreign country/ we shall next proceed to 
 consider more fully the nature and effect of the rela- 
 tion of marriage contracted by and between persons, 
 who are admitted to be sui juris, and to possess compe- 
 tent capacity everywhere.^ We shall then discuss the 
 manner in which that relation may be dissolved, and 
 the effect of such dissolution. 
 
 § 108. Marriage is treated by all civilized nations as 
 a peculiar and favored contract.^ It is in its origin a 
 contract of natural law.'* It may exist between two 
 individuals of different sexes, although no third person 
 existed in the world, as happened in the case of the 
 common ancestors of mankind. It is the parent and 
 not the child of society ; Princijpium urUs et quasi semi- 
 
 1 Ante, ^ 79 to k 90. 
 
 2 On this subject consult 1 Surge, Coinm. on Col. and For. Law, P, I, 
 ch. 5, § 1, 2, 3, p. 135 to p. 201. 
 
 3 See Piers v. Piers, 2 House of Lords Cases, 331. 
 
 4 I have throughout treated marriage as a contract in the common sense 
 of the word, because this is the light in which it is ordinarily viewed by 
 Jurists, domestic as well as foreign. But it appears to me to be some- 
 thing more than a mere contract. It is rather to be deemed an institution 
 of society, founded upon the consent and contract of the parties ; and in 
 this vieiv it has some peculiarities in its nature, character, operation, and 
 extent of obligation, different from what belong to ordinary contracts.
 
 CH. v.] MARRIAGE. 195 
 
 narium repiiblicce. In civil society it becomes a civil 
 contract regulated and prescribed by law, and endowed 
 with civil consequences. In many civilized countries, 
 acting under a sense of the force of sacred obligations, 
 it has had the sanctions of religion superadded. It then 
 becomes a religious, as well as a natural and civil con- 
 tract ; for it is a great mistake to suppose, that be- 
 cause it is the one, therefore it may not likewise be the 
 other.^ The common law of England (and the like 
 law exists in America) considers marriage in no other 
 light than as a civil contract. The holiness of the ma- 
 trimonial state is left entirely to ecclesiastical and reli- 
 gious scrutiny.^ In the Catholic countries, and in some 
 of the Protestant countries, of Europe, it is treated as 
 a sacrament.^ 
 
 § 109. There are some remarks on this subject, made 
 by a distinguished Scottish judge, so striking, that 
 they deserve to be quoted at large.^ " Marriage being 
 entirely a personal, consensual contract, it may be 
 thought that the Lex loci must be resorted to in ex- 
 pounding every question, that arises relative to it. But 
 it will be observed, that marriage is a contract sui gene- 
 ris, and differing, in some respects, from all other con- 
 tracts ; so that the rules of law, which are applicable 
 in expounding and enforcing other contracts, may not 
 apply to this. The contract of marriage is the most 
 important of all human transactions. It is the very 
 basis of the whole fabric of civilized society. The 
 
 ' Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 63 ; Lindo v. Belisa- 
 rio, 1 Hajrrr. Consist. R. 231. 
 
 2 1 Black. Comm. 433. 
 
 3 Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 63 to 65. 
 
 4 Lord Robertson, in Fergusson on Marr. and Divorce, 397 to 399.
 
 196 CONFLICT OF LAWS. [CH. V. 
 
 status of marriage is ju7is gentium, and the foundation 
 of it, like that of all other contracts, rests on the con- 
 sent of parties. But it differs from other contracts in 
 this, that the rights, obligations, or duties, arising from 
 it, are not left entirely to he regulated by the agree- 
 ments of parties, but are, to a certain extent, matters 
 of municipal regulation, over which the parties have no 
 control, by any declaration of their will. It confers 
 the status of legitimacy on children born in wedlock, 
 with all the consequential rights, duties, and privileges, 
 thence arising ; it gives rise to the relations of consan- 
 guinity and affinity ; in short, it pervades the whole 
 system of civil society. Unlike other contracts, it can- 
 not, in general, amongst civilized nations, be dissolved 
 by mutual consent ; and it subsists in full force, even 
 although one of the parties should be forever rendered 
 incapable, as in the case of incurable insanity, or the 
 like, from performing his part of the mutual contract. 
 
 § 110. "No wonder, that the rights, duties, and obli- 
 gations, arising from so important a contract, should 
 not be left to the discretion or caprice of the contract- 
 ing parties, but should be regulated, in many important 
 particulars, by the laws of every civilized country. 
 And such laws must be considered as forming a most 
 essential part of the public law of the country. As to 
 the constitution of the marriage, as it is merely a per- 
 sonal, consensual contract, it must be valid everywhere, 
 if celebrated according to the Lex loci ; but, with regard 
 to the rights, duties, and obligations, thence arising, the 
 law of the ,domicil must be looked to. It must be ad- 
 mitted, that in every country, the laws relative to di- 
 vorce are considered as of the utmost importance, as 
 public laws affecting the dearest interest of society. 
 
 § 111. "It is said, that, in every contract the parties
 
 CH. v.] MARRIAGE. 197 
 
 bind themselves, not only to what is expressly Stipu- 
 lated, but also to what is implied in the nature of the 
 contract ; and that these stipulations, whether express 
 or implied, are not alfected by any subsequent change 
 of domicil. This may be true in the general case, but, 
 as already noticed, marriage is a contract stii generis, and 
 the rights, duties, and obligations which arise out of it, 
 are matters of so much importance to the well-being of 
 the State, that they are regulated, not by the private 
 contract, but by the public laws of the State, which are 
 imperative on all, who are domiciled within its territo- 
 ry. If a man in this country were to confine his wife 
 in an iron cage, or to beat her with a rod of the thickness 
 of the Judge's finger, would it be a justification in any 
 court, to allege that these were powers which the law 
 of England conferred on a husband, and that he was 
 entitled to the exercise of them, because his marriage 
 had been celebrated in that country ? 
 
 § 112. "In short, although a marriage, which is con- 
 tracted according to the Lex loci, will be valid all the 
 world over, and although many of the obligations inci- 
 dent to it are left to be regulated solely by the agree- 
 ment of the parties ; yet many of the rights, duties, 
 and obligations, arising from it, are so important to the 
 best interests of morality and good government, that 
 the parties have no control over them ; but they are 
 regulated and enforced by the public law, which is im- 
 perative on all, who are domiciled within its jurisdic- 
 tion, and which cannot be controlled or affected by the 
 circumstance, that the marriage was celebrated in a 
 country where the law is different. In expounding or 
 enforcing a contract entered into in a foreign coun- 
 try, and executed according to the laws of that coun- 
 try, regard will be paid to the Lex hci, as the contract 
 
 17*
 
 198 CONFLICT OF LAWS. [CH. V. 
 
 is evidence, that the parties had in view the law of the 
 country, and meant to be bound by it. But a party, 
 who is domiciled here, cannot be permitted to import 
 into this country a law peculiar to his own case, and 
 which is in opposition to those great and important 
 public laws, which our Legislature has held to be essen- 
 tially connected with the best interests of society." ^ 
 
 § 113. The general principle certainly is, (as we 
 have already seen,) that between persons, sid juris, 
 marriage is to be decided by the law of the place, 
 where it is celebrated.^ If valid there, it is valid 
 everywhere. It has a legal ubiquity of obligation. If 
 invalid there, it is equally invalid everywhere.^ The 
 grounds of this doctrine we shall have occasion pre- 
 sently to consider.'* It is only necessary here to state, 
 that it has received the most deliberate sanction of the 
 English and American Courts.^ 
 
 § 113 a. The most prominent, if not the only known 
 exceptions to the rule, are those marriages involving 
 
 1 Lord Robertson in Fergusson on Marr. and Divorce, 397 to 399. 
 
 2 Ante, ^ 80, 81. See Kent v. Burgess, 11 Simons, R. 361 ; Patter- 
 son V. Gaines, 6 How. U. S. R. 550. 
 
 3 Ryan v. Ryan, 2 Phill. Eccl. R. 332 ; Herbert v. Herbert, 3 Phill. 
 Eccl. R. 58 ; Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 54 ; Ruding 
 V. Smith, 2 Hagg. Consist. R. 390, 391 ; Scrimshire v. Scrimsliire, 
 2 Hagg. Consist. R, 395 ; Munro v. Saunders, 6 Bligh, R. 473, 474 ; 
 Ilderton u. Ilderton, 2 H. BI. 145; Middleton i'. Janverin, 2 Hagg. R. 
 437 ; Laeon v. Higgins, 3 Starkie, R. 178; 2 Kent, Coram. Lect. 26, 
 p. 91, 92, 93, 3d edit. ; Mcdway v. Needham, 16 Mass. R. 157 ; Putnam 
 V. Putnam, 8 Pick. R. 433; West Cambridge v. Lexington, 1 Pick. R. 
 506 ; I Burge, Comm. on Col. and For. Law, eh. 5, ^ 3, p. 184 to p. 201 ; 
 2 Kaims on Eq. B. 3, ch. 8, § 1 ; Kent v. Burgess, 11 Simons, R. 361. 
 
 4 Post, ^121. See also ante, ^ 80. 
 
 5 See cases cited supra, ^ 113, note 1; Sutton v. Warren, 10 Mete. 
 451 ; Phillips v. Gregg, 10 Watts, 158 ; Morgan v. McGhee, 5 Humph- 
 reys, R. 13 ; State v. Patterson, 2 Iredell, 346 ; post, ^ 122 to i^* 124.
 
 CH. v.] MARRIAGE. 199 
 
 polygamy and incest ; those positively prohibited by 
 the public law of a country, from motives of policy ; 
 and those celebrated in foreign countries by subjects, 
 entitling themselves under special circumstances to the 
 benefit of the laws of their own country.^ Cases, illus- 
 trative of each of these exceptions, have been already 
 alluded to.- 
 
 § 114. In respect to the first exception, that of mar- 
 riages, involving polygamy and incest, Christianity is 
 understood to prohibit polygamy and incest ; and there- 
 fore no Christian country would recognize polygamy, 
 or incestuous marriages.^ But when we speak of in- 
 cestuous marriages, care must be taken to confine the 
 doctrine to such cases as by the general consent of all 
 Christendom are deemed incestuous. It is difficult to 
 ascertain exactly the point at which the law of nature, 
 or the authority of Christianity ceases to prohibit mar- 
 riages between kindred ; and Christian nations are by 
 no means generally agreed on this subject.'* In most 
 of the countries of Europe, in which the canon law 
 has had any authority or influence, marriages are pro- 
 hibited between near relations by blood, or by marriage, 
 or in other words, by consanguinity, or by affinity; 
 and the canon and the common law seem to have made 
 no distinction on this point between consanguinity, or 
 relation by blood, and affinity, or relation by marriage. 
 
 1 1 Burge, Comm. on Col. and For. Law, ch. 5, ^ 3, p. 188. 
 
 2 Ante, ^ 89. 
 
 3 Paley on Moral Phil. B. 3, ch. 6 ; 2 Kent, Comm. Lect, 26, p. 81, 
 3d edit. ; 1 Bl. Comm. 43G. See Grotius, B. 2, ch. 5, § 9 ; Greenwood 
 V. Curtis, G Mass. R. 378; Sutton v. Warren, 10 Mete. 451 ; 1 Burge, 
 Comm. on Col. and For. Law, P. 1, ch. 5, ^ 3, p. 188, 189, 190 ; Hube- 
 rus, Lib. 1, tit. 3, ^ 8. See Swift v. Kelly, 3 Knapp, R. 258, 279. 
 
 4 Grolius, B. 2, ch. 5, § 12, 13, 14. See 1 Brown, Civ. Law, 61 to 
 65 ; 1 Burge, Comm. on Col. and For. Law, ch. 5, ^ 3, p. 188.
 
 200 CONFLICT OF LAWS. [CH. V. 
 
 although there certainly is a very material difference 
 in the cases.^ Marriages between relations by blood, 
 in the lineal ascending or descending line, are univer- 
 sally held by the common law, the canon law, and the 
 civil law, to be unnatural and unlawful.^ So are mar- 
 
 • 2 Kent, Cornm. Lect. 26, p. 81, 82, 3d edit. ; 1 Bl. Comm. 434. See 
 on this subject The London Quarterly Law Magazine for May, 1839, Vol. 
 21, p. 371 to p. 382, The London Monthly Law Magazine for May, 1840, 
 Vol. 7, p. 330, 332, and The London Legal Observer for January, 1840. 
 
 2 Wightman v. Wightman, 4 Johns. Ch. R. 343; 2 Kent, Comm. Lect. 
 26, p. 81 to p. 84, 3d edit. ; Harrison v. Barwell, Vaughan, R. 206; 
 S. C. 2 Vent. R. 9 ; Grotius, B. 2, ch. 5, § 12, n. 1, 2 ; Id. § 13, n.'4 ; 
 Id. § 14, n. 1 ; 2 Heinec. Elem. Juris. Natur. B. 2, ch. 2, § 40, by Turn- 
 bull ; 1 Burge, Comment, on Col. and For. Law, P. 1, ch. 5, ^ 1, p. 137, 
 146, 147; Com. Dig. Baron and Feme, (B) 4 ; 2 Inst. 693. — Lord 
 Brougham, in VVarrender v. Warrender, (9 Bligh, R. 112, 113,) speaking 
 on this subject, said : " But this rule extends, I apprehend, no farther than 
 to the ascertaining of the validity of the contract, and the meaning of the 
 parties, that is, the existence of the contract and its construction. If, in- 
 deed, there go two things under one and the same name in different coun- 
 tries ; if that which is called marriage is of a different nature in each ; 
 there may be some room for holding, that we are to consider the thing, to 
 which the parties have bound themselves, according to its legal accepta- 
 tion in the country, where the obligation was contracted. But marriage 
 is one and the same thing substantially all the Christian world over. Our 
 whole law of marriage assumes this ; and it is important to observe, that 
 we regard as wholly a different thing, a different status, from Turkish or 
 other marriages among infidel nations, because we clearly never should 
 recognize the plurality of wives, and consequent validity of second mar- 
 riages standing the first, which second marriages the laws of those coun- 
 tries authorize and validate. This cannot be put upon any rational 
 ground, except our holding the infidel marriage to be something different 
 from the Christian, and our also holding Christian marriage to be the 
 same everywhere. Therefore, all, that the Courts of one country have to 
 determine, is, whether or not the thing called marriage, that known rela- 
 tion of persons, that relation, which those courts are acquainted with, and 
 know how to deal with, has been validly contracted in the other country, 
 where the parties professed to bind themselves. If the question is an- 
 swered in the affirmative, a marriage has been had ; the relation has been 
 constituted; and those Courts will deal with the rights of the parties under 
 it, according to the principles of the municipal law which they adminis- 
 ter." See also Id. 114.
 
 CH. v.] MARRIAGE. 201 
 
 I'iages between brother and sister in the collateral line, 
 whether of the whole blood, or of the half blood ; ' and, 
 indeed, such marriages seem repugnant to the first 
 principles of social order and morality. It has been 
 well remarked by Mr. Chancellor Kent, that it will be 
 found difficult to carry the prohibition farther in the 
 collateral line than the first degree, (that is, beyond 
 brother and sister,) unless where the legislature have 
 expressly provided such a prohibition.^ Grotius has 
 
 ' 2 Kent, Comm. Lect. 26, p. 83, 84, 3d edit. See also Butler v. Gas- 
 trill, Gilb. Eq. R. 156 ; 1 Burge, Comm. on Col. and For. Law, P. 1, 
 ch. 6, ^ 1, p. 127 ; Id. ^ 3, p. 188 ; Grotius de Jure Belli, Lib. 2, ch. 5, 
 ^ 12, n. 2; Id. § 13, n. 3 to n. 7. 
 
 2 Wightman v. Wightman, 4 Johns. Ch. R. 343. — The whole remarks 
 of the learned Chancellor on this occasion deserve to be cited at large. 
 " Besides the case of lunacy, now before me, I have, hypothetically, men- 
 tioned the case of a marriage between persons in the direct lineal line of 
 consanguinity, as clearly unlawful by the law of the land, independent of 
 any church canon, or of any statute prohibition. That such a marriage is 
 criminal and void by a Law of Nature, is a point universally conceded. 
 And, by the Law of Nature, I understand, those fit and just rules of con- 
 duct which the Creator has prescribed to man, as a dependent and social 
 being ; and which are to be ascertained from the deductions of right rea- 
 son, though they may be more precisely known, and more explicitly de- 
 clared by Divine Revelation. There is one other case, in which the mar- 
 riage would be equally void, causa consanguinitatis, and that is the case 
 of brother and sister; and since it naturally arises, in the consideration of 
 this subject, I will venture to add a few incidental observations. I am 
 aware, that when we leave the lineal line and come to the relation by 
 blood or affinity in the collateral line, it is not so easy to ascertain the exact 
 point at which the Natural Law has ceased to discountenance the union. 
 Though there may be some difference in the theories of different writers 
 on the Law of Nature, in regard to this subject, yet the general current 
 of authority, and the practice of civilized nations, and certainly of the 
 whole Christian world, have condemned the connection in the second 
 case, which has been supposed, as grossly indecent, immoral, and in- 
 cestuous, and inimical to the purity and happiness of families, and as 
 forbidden by the Law of Nature." (Grotius de Jure, &c. lib. 2, ch. 5, 
 s. 13 ; Puffend. de Jure, Gent. lib. 6, c. 1, s. 34 ; Id. de Off. Horn. lib. 2, 
 c. 2, s. 8 ; Ileinecc. Oper. torn. 8, pars 2, p. 203 ; Taylor's Elem. Civ.
 
 202 CONFLICT OF LAWS. [CH. V. 
 
 expressed an equally strong opinion upon the intrinsic 
 difficulty of. the subject. De conjiigiis eoriim, qui san- 
 
 Law, 326 ; Montesq. Esp. des Loix. liv. 26, c. 14 ; Paley's Moral Philo- 
 sophy, B. 3, p. 3, c. 5.) We, accordingly, find such connections expressly 
 prohibited in different Codes. (Dig. lib. 23, lit. 2, 1. 18, lib. 23, tit. 2, 1. 14, 
 s. 2, lib. 45, tit. 1, 1. 35, s. 1 ; Just. Inst. lib. 1, tit. 10 ; De Nuptiis. Vin- 
 nius, h. t, ; Heinecc. ubi supra. Code Civile de France, n. 161, 162, 163, 
 164; Inst, of Menu, by Sir William Jones, c. 3, s. 5. Staunton' Ta- 
 Tsing-Leu-Lee, s. 107, 108 ; Sale's Coran, c. 4 ; Marsden's Sumatra, p. 
 194, 221.) And whatever may have been the practice of some ancient 
 nations, originating, as Montesquieu observes, in the madness of supersti- 
 tion, the objection to such marriages is, undoubtedly, founded in reason 
 and nature. It grows out of the institutions of families, and the rights 
 and duties, habits and affections, flowing from that relation, and which 
 may justly be considered as part of the Law of our Nature, as rational and 
 social beings. Marriages among such near relations would not only lead 
 to domestic licentiousness, but, by blending in one object duties and feel- 
 ings incompatible with each other, would perplex and confound the duties, 
 habits, and affections proceeding from the family state, impair the percep- 
 tion, and corrupt the purity of moral taste, and do violence to the moral 
 sentiments of mankind. Indeed, we might infer the sense of mankind, and 
 the dictates of reason and nature, from the language of horror and detest- 
 ation, in which such incestuous connections have been reprobated and 
 condemned in all ages. (Plato de Leg. lib. 8 ; Cic. Orat. pro Mil. 27 ; 
 Hermion. in Eurip. Androm. v. 175 ; Byblis. Ovid. Met. lib. 9 ; Tacit. 
 Ann. lib. 12, c. 4 ; Vel. Paterc. Aist. lib. 2, ch. 45 ; Corn. Nep. Excel. 
 Imp. Prefat.) The general usage of mankind is sufficient to settle the 
 question, if it were possible to have any doubt on the subject ; and it must 
 have proceeded from some strong uniform and natural principle. Prohibi- 
 tions of the Natural Law are of absolute, uniform, and universal obliga- 
 tion. They become rules of Common Law, which is founded in the com- 
 mon reason and acknowledged duty of mankind, sanctioned by immemorial 
 usage, and, as such, are clearly binding. To this extent, then, I appre- 
 hend it to be within the power and within the duty of this Court, to en- 
 force the prohibition. Such marriages should be declared void, as contra 
 bonos mores. But as to the other collateral degrees, beyond brother and 
 sister, I should incline to the intimation of the Judges in Harrison i'. Burwell, 
 (Vaugh. R. 206; S. C. 2 Vent. 9,) that as we have no statute on the 
 subject, and no train of common law decisions, independent of any statute 
 authority, the Levitical degrees are not binding, as a rule of municipal 
 obedience. Marriages out of the lineal line, and in the collateral line, 
 beyond the degree of brothers and sisters, could not well be declared void, 
 as against the first principles of society. The laws or usages of all the
 
 CH. v.] MARRIAGE. 203 
 
 guine aid affinitate satis gravis est questio, et non raro magnis 
 moiibiis agitata. Nam caiisas certas ac naturales, cur talia 
 conjiigia, ita lit legibiis aut morihus vetantiir, illicita sint, as- 
 signare, qui volucrit, experiendo discet, quam id sit difficile, 
 imo prcEstari non possit} 
 
 § 114: a. At all events, in other cases of consangui- 
 nity not in the lineal line, or in the first degree of the 
 collateral line, there is much room for diversity of opi- 
 nion and judgment among jurists, and of practice among 
 nations. Grotius has taken notice of this distinction, 
 and says ; Quw manifesta expressio ostendcre videtiir dis- 
 crimen, quod est inter Jios et alios remotiores gradus.^ Thus, 
 he says, that it is forbidden to marry an aunt on the 
 father's side ; but not the daughter of a brother, who is 
 of the same degree. JVam diicere amitam agnatamvetitum est. 
 At filiam fratris, qui par est gradus, duccrevetitum non est? 
 In England it has been declared by statute, that all persons 
 may lawfully marry, but such as are prohibited by God's 
 Law, that is, such as are within the Levitical degrees.^ 
 
 nations, to whom I have referred, do, indeed, extend the prohibition to 
 remoter degrees ; but this is stepping out of the family circle ; and I can- 
 not put the prohibition on any other ground than positive institution. 
 There is a great diversity of usage on this subject. Neque teneo, neque 
 dicta refello. The limitation must be left, until the legislature thinks pro- 
 per to make some provision in the case, to the injunctions of religion, and 
 to the control of manners and opinion." See also 2 Kent, Comm. Lect. 
 26, p. 83, 84, 3d edit. ; 1 Burge, Comment, on Col. and For. Law, P. 1, 
 eh. 5, § 1, p. 188. 
 
 1 Grotius, de Jure Belli, Lib. 2, ch. 5, § 12. 
 
 2 Grotius, de Jure Belli, B. 2, ch. 5, \ 14, n. 1. 
 
 3 Ibid. 
 
 4 Com. Dig. Baron and Feme, B. 2, B. 4 ; 1 Black. Comm. 435 ; Le- 
 viticus, ch. 18. Mr. Burge states the prohibitions in England arising 
 from the Levitical law in the following terms. " Cognatio, consanguinity, 
 or relationship by blood, and affinitas, affinity, or relationship by marriage, 
 constitute impediments to a lawful marriage. Marriages between parties
 
 204 CONFLICT OF LAWS. [CH. V. 
 
 Under this general provision, it has been held, that a 
 marriage between an uncle and a niece by blood is in- 
 cestuous, (it being in the third degree,) upon the ground 
 that it is against the law of God, and sound morals ; 
 that it would tend to endless confusion ; and that the 
 sanctity of private life would be polluted, and the proper 
 freedom of intercourse in families would be destroyed, 
 if such practices were not discouraged in the strongest 
 
 related by blood or by affinity, in the direct, ascending or descending line, in 
 infinitum, are prohibited by the civil and canon law. This prohibition 
 prevents that confusion of civil duties, which would be the necessary 
 results of such marriages. The codes of Europe concur in this pro- 
 hibition. In the collateral line, the prohibition is confined to those, who 
 stand in certain degrees of consanguinity or affinity to each other. In 
 the computation of these degrees there is a difference between the civil 
 and canon law. Thus, those, who, according to the civil law, are in the 
 second degree, are placed by the canon law in the first degree ; and those 
 who are placed by the civil law in the fourth degree, are by the canon 
 law placed in the second degree. The degrees prohibited by the Leviti- f 
 cal law are all within the fourth degree of consanguinity, according to the 
 computation of the civil law ; all collaterals, therefore, in that degree, or 
 beyond it, may marry. First cousins arc in the fourth degree by the civil 
 law, and, therefore, may marry. Nephew and great aunt, or niece and 
 great uncle, are also in the fourth degree and may intermarry ; and though 
 a man may not marry his grandmother, it is certainly true, that he may 
 marry her sister. All these fourth degrees in the civil law are second 
 degrees in the canon law. By the civil law, persons in the fourth de- 
 gree might intermarry with each other. Such is the law of England, 
 Scotland, Ireland, and the Colonies." 1 Burge, Comment, on Col. and 
 For. Law, P. 1, ch. 5, ^ 1, p. 146, 147. There seems to be a mistake of 
 the press in one part of the passage of Mr. Burge's remarks, as to the dif- 
 ference between the civil law and the canon law. The latter counted 
 the degrees only up to the common ancestor ; the former also down to the 
 Propositus. So, that the first degree in the canon law was the second in 
 the civil law, and the second in the canon law was the fourth in the civil 
 law. 2 Black. Comm. 224; Ersk. Instit. B. 1, tit. 6, ^ 8 ; 2 Burn, 
 Eccles. Law, tit. Marriage, I. See also the London Monthly Law Maga- 
 zine for Feb. 1840, Vol. 7, p. 44 to p. 46. Mr. Burge's Text reverses 
 the statement. 1 Burge, Comment, on Col. and For, Law, P. 1 , ch. 5,^1, 
 p. 147.
 
 CH. v.] MARRIAGE. 205 
 
 manner.^ Yet Grotius not only deems such a marriage 
 perfectly unexceptionable ; but adds, that there are ex- 
 amples of it among the Hebrews." [And in America, 
 such a marriage has been held not absolutely void, but 
 only voidable during the lives of the parties. After the 
 death of either, its validity cannot be called in question.^] 
 But marriages between first cousins by blood, or cou- 
 sins-german being in the fourth degree, are, according to 
 English jurisprudence, lawful ; so that the prohibitions 
 in the collateral line stop at the third degree.^ The 
 same rule, as to the marriage of first cousins, has been 
 adopted by the Protestant countries of Europe. But 
 the canon law prohibited such marriages, although a 
 dispensation might be obtained thereof.^ [The same 
 rule has been applied to the marriage of a man and 
 his mother's sister. Such a marriage is not incestuous 
 by the law of nature, nor was it void by the law of 
 England, before the statute 6th William Fourth, c. 54, 
 but only voidable by process in the Ecclesiastical Court.^] 
 Incestuous marriages by the English law are not, how- 
 ever, deemed by the common law absolutely void ; but 
 they are voidable only during the lives of the parties ; 
 and if not so avoided during their lives, they are deemed 
 valid to all intents and purposes.' 
 
 ' Burgess v. Burgess, 1 Hagg. Consist. R. 384, 386 ; 1 BI. Comm. 435 ; 
 Butler V. Gastrill, Gilb. Eq. R. 156, 158; 2 Kent, Cora. Lect. 26, p. 84, 
 3d edit. ; Com. Dig. Bm-on and Feme, B. 4. 
 
 2 Grotius, De Jure Belli, B. 2, ch. 5, § 14, n. 1. 
 
 3 Bonham v. Badgley, 2 Gilman, 622. 
 
 4 1 Black. Comm. 435 ; Burn, Eccles. Law, tit. Marriage, I. ; Harri- 
 son V. Burvvell, Vaughan, R. 219; S. C. 2 Vent. 9 ; 2 Instit. 084. 
 
 •^ Burn, Eccles. Law, tit. Marriage, L ; 1 Burge, Comm. on Col. and 
 For. Law, P. 1, ch. 5, ^ 1, p. 147, 148. 
 
 6 Sutton V. Warren, 10 Mete. 451. See Poynter on Marriage, 86, 120 ; 
 Regina v. Wye, 7 Ad. & Ell. 771. 
 
 7 1 Black. Comm. 434, 435 ; [Reginar. Wye, 7 Ad. & Ell. 761 ; S. C. 
 
 CONFL. 18
 
 206 CONFLICT OF LAWS. [CH. V. 
 
 § 115. Hitherto we have been speaking of cases of 
 relation by consanguinity, between which and cases of 
 relation by affinity, there seems to be a clear and just 
 moral difference. The English law, however, has treated 
 both classes of cases as falling within the same predica- 
 ment of prohibition by the Levitical law. Hence it has 
 been there held, that a marriage between a father-in- 
 law and the daughter of his first wife by a former mar- 
 riage is incestuous and unlawful ; i and, indeed, there 
 seems something repugnant to social feelings in such 
 marriages. The prohibition has also been extended in 
 England to the marriages between a man and the sister 
 of his former deceased wife ; but upon what ground of 
 Scriptural authority it has been thought very difficult 
 to affirm.^ [The rule is, however, fully and deliberately 
 
 3 Nev. & Per. 13 ; Sutton v. Warren, 10 Mete. 451.] By a recent Act 
 of Parliament, Act of 5th and 6th William Fourth, ch. 54, (1835,) all fu- 
 ture incestuous marriages are declared to be utterly void, and not merely 
 voidable. [And see the late case of Regina v. Chadvvick, 11 Ad. & Ell. 
 N. S. 173, S. C. 2 Cox, C. C. 381.] 
 
 1 Blackmore and Thorp v. Brider, 2 Hagg. Consist. R. 393, note; S.C. 
 2 Phil. Eccles. R. 359. 
 
 2 Burn, Eccles. Law, tit. Marriage, I. ; 1 Black. Coram. 434, 435, 
 Christian's note (2), citing Gibson's Codex, 412; Harris v. Hicks, Salk. 
 548 ; Hall v. Good, Vaughan, R. 302, 312; Faremouth v. Watson, 1 
 Phill. Eccl. R. 355; Chick v. Rawsdale, 1 Curteis, R. 34; Com. Dig. 
 Baron and Feme, B. 2, B. 4 ; 2 Inst. 683 ; Bac. Abridg. Marriage, A. 
 Lord Chief Justice Vaughan, in delivering the opinion of the Court in 
 Harrison v. Burwell, (Vaughan, R. 206 ; S. C. 2 Vent. R. 9,) says, that a 
 man is prohibited by the statute 32 Henry 8, [ch. 38,] to marry his wife's sis- 
 ter. But within the meaning of Leviticus, (ch. 18, v. 14,) and the constant 
 practice of the Commonwealth of the Jews, a man was prohibited to marry 
 his wife's sister only during her life ; after he might. So the text is. 
 A''aughan, R. 241 ; S. C. 2 Vent. 17. There seems a discrepancy be- 
 tween what is here said, and his judgment in the subsequent case of Hall 
 V. Good, Vaughan, R. 302, 312, 320. The opinion of Lord Chief Justice 
 Vaughan, in both cases, and the case of Butler v. Gastrill, Gilbert, Eq. R. 
 156, are full of learning and instruction on the subject of the canonical and
 
 CH. v.] MARRIAGE. 207 
 
 settled in that country ; and the prohibition is extend- 
 ed to an illegitimate daughter, as well as legitimate 
 daughter of the first wife's parents'.] In many, and 
 indeed in most of the American States, a different rule 
 prevails, and marriages between a man and the sister of 
 his former deceased wife are not only deemed in a civil 
 sense lawful ; but are deemed in a moral, religious, and 
 Christian sense lawful, and exceedingly praiseworthy. 
 In some few of the States the English rule is adopted. 
 Upon the continent of Europe most of the Protestant 
 countries adopt the doctrine, that such marriages are 
 lawful.^ 
 
 ecclesiastical prohibitions of marriage. Dr. John H. Livingston, of New 
 Jersey, has written an elaborate dissertation upon the subject of the mar- 
 riage of a man with his sister-in-law, (wife's sister,) which was printed at 
 New Brunswick, N. J., in 1816. It holds the doctrine, that such mar- 
 riages are scripturally incestuous. The opposite doctrine has been main- 
 tained by many able writers. See also 2 Kent, Comm. Lect. 26, p. 85, 
 3d edit. note. There are some very able articles on this subject in the 
 London Quarterly Law Magazine for May, 1839, Vol. 21, p. 371 ; in the 
 London Legal Observer for January, 1840 ; and in the London Monthly 
 Law ]\Iagazine for May, 1840. All these articles are designed to show, 
 that the most learned writers have differed upon this subject, and to esta- 
 blish, that the doctrine is ill-founded, and ought to be abolished. Grotius 
 maintains in strong terms, that there is no foundation for the prohibition. 
 Cert6, canonibus antiquissimis, qui apostolici dicunter, qui duas sorores 
 alteram post alteram duxisset aut d.ds}.<pidsv, id est, fratris aut sororis 
 filiam, tantum a clero arcetur. Grotius, De Jure Belli, B. 2, ch. 5, 
 § 14, n. 2. 
 
 1 Regina v. Chadwict, 11 Ad. & Ell. N. S. 173, where the subject is 
 examined at much length. See also 2 Cox, C. C. 381 ; Ray v. Sher- 
 wood, 1 Curt. 173 ; 1 Moore, 395. 
 
 2 This is certainly the law in all the New England States, and in New 
 York. Greenwood v. Curtis, 6 Mass. R. 378, 379. In Virginia, the 
 English rule prevails. Commonwealth v. Ferryman, 2 Leigh, R. 717 ; 
 2 Kent, Comm. Lect. 36, p. 85, note (a). Dr. Jeremy Taylor and Sir 
 William Jones both contend, that the Levitical degrees do not by any law 
 of God bind Christians to their observation. See London Quart. Law Maga- 
 zine, Vol. 21, p. 373, 374. In Prussia, Saxony, Hanover, Baden, Mech- 
 lenburgh, Hamburg, Denmark, and in most other of the Protestant States
 
 208 CONFLICT OF LAWS. [CH. V. 
 
 § 116. It would be a strong point to put, that a mar- 
 riage, perfectly valid between a man and the sister of 
 his former deceased wife in New England, should be 
 held invalid in Virginia, or in England, even though 
 the parties originally belonged to or were born in the 
 latter Country or State. But as to persons not so born 
 or belonging, it would be of the most dangerous conse- 
 quence to suppose, that the Courts of either of them 
 would assume the liberty to hold such marriages a nul- 
 lity, merely because their own jurisprudence would not, 
 in a local celebration of marriage therein, uphold it. 
 This distinction between marriages incestuous by the 
 law of nature, and such as are incestuous by the posi- 
 tive code or customary law of a State, has been fully 
 recognized by one of our most learned American Courts. 
 "If" (say the Court) "a foreign State allows of mar- 
 riages incestuous by the law of nature, as between pa- 
 rent and child, such marriage would not be allowed to 
 have any validity here. But marriages not naturally 
 unlawful, but prohibited by the law of one State and 
 not of another, if celebrated where they are not prohi- 
 bited, would be holden valid in a State where they are 
 not allowed. As in this State, a marriage between a 
 man and his deceased wife's sister is lawful ; but it is 
 not so in some States. Such a marriage celebrated 
 here would be held valid in any other State, and the 
 parties entitled to the benefits of the matrimonial con- 
 tract." ^ Indeed, in the diversity of religious opinions 
 
 of Europe, the rule prevails, that a man may lawfully marry the sister of 
 his former wife. Id. p. 376. It is otherwise in Scotland. Ersk.Inst. B. 
 I. tit. 6, § 9. 
 
 J Greenwood v. Curtis, 6 Mass. R. 378, 379 ; Medway v. Needham, 
 16 Mass. R. 157, IGl ; Sutton v. Warren, 10 Mete. 451. But see IIu- 
 berus, lib. 1, tit. 3, ^ 8 ; Wightman v. Wightman, 4 Johns. Ch. R. 343.
 
 CH. v.] MARRIAGE. • 209 
 
 in Christian countries, a large space must be allowed 
 for interpretation, as to religious duties, rights, and so- 
 lemnities.^ In the Catholic countries of continental 
 Europe, there are many prohibitions of marriage, which 
 are connected with religious canons and establishments ; 
 and in most countries there are some positive or cus- 
 tomary prohibitions, which involve peculiarities of reli- 
 gious opinion, or of conscientious doubt. It would be 
 most inconvenient to hold all marriages celebrated else- 
 where void, which are not in scrupulous accordance 
 with the local institutions of a particular country. 
 
 § 116 a. In the cases of incest hitherto discussed, it 
 has been supposed, that the parties marrying were 
 either natives of, or actually and hond fide domiciled in, 
 the country where the marriage was celebrated. But, 
 suppose the case of a marriage, incestuous by the law 
 of the country, where the parties are born, or are lonci 
 fide domiciled, and without changing their domicil, for 
 the purpose of evading that law, they go to a foreign 
 country, where a different rule prevails, and the mar- 
 riage, which would not be incestuous by its laws, is 
 there celebrated ; and the parties afterwards return to 
 their own country. Ought such a marriage to be held 
 valid in such country ? Huberus has put the very case, 
 and held, that it ought not there to be held valid. If 
 (says he) a Brabanter, who should marry within the 
 prohibited degrees, under a dispensation from the Pope, 
 should remove here (into Holland) the marriage would 
 be considered valid. Yet if a Frisian should marry 
 
 ' See on this point, 2 Kent, Comm. Lect. 26, p. 85, 3d edit. ; Harrison 
 V. Burvvell, Vaugh. R. 206 ; S. C. 2 Vent. R. 9 ; Co. Litt. 149 ; Gro- 
 tius, B. 2, ch. 5, ^ 12, 13, 14 ; Rulherf. Inst. B. 1, ch. 15, § 10 ; Wight- 
 man V. Wightman, 4 John. Ch. R. 343. 
 
 18*
 
 210 CONFLICT OF LAWS. [CH. V. 
 
 the daughter of his brother in Brabant, and celebrate 
 the nuptials there, returning here, he would not be ac- 
 knowledged as a married man, because in this way our 
 laws might be evaded by the worst examples. Bra- 
 hmitiis iixore diidd dispensatione Pontificis, in gradu pro- 
 Mhito, si Jmc migret, tolerdbitur. Attamen, si Frisiiis cum 
 fratris filid se conferat in Bi^abantiam, ihiqiie nuptias cele- 
 hret, hue reversiis non videtur tolerandus ; qida sic Jus nos- 
 trum pessimis exemplis eluderetiirJ- 
 
 § 117. In respect to the second exception, that of 
 prohibitions depending upon positive law of a particular 
 country,^ they of course can apply strictly only to the 
 subjects of that country. An illustration of this nature 
 may be found in the Civil Code of France, which annuls 
 marriages by Frenchmen, in foreign countries, who are 
 
 1 Huberus, Lib. 1, tit. 3, § 8 ; post, § 123 ; 1 Burge, Comm. on Col. 
 and For. Law, P. l,ch. 5, ^ 1, p. 147 ; Id. ^ 3, p. 188 to p. 191. — Mr. 
 Burge maintains this to be the true doctrine, and says ; " The law which 
 prohibits persons related to each other in a certain degree from intermar- 
 rying, and declares their intermarriage to be null, imposes on them a per- 
 sonal incapacity quoad that act ; and that incapacity must continue to af- 
 fect them, so long as they retain their domicil in the country in which 
 that law prevails. The resort to another country, where there was no such 
 prohibitory law, for the mere purpose of evading the law of their own 
 country, and with the intention of returning thither, when their marriage 
 had taken place, cannot be considered a change of their former domicil, or 
 the acquisition of a domicil in the country to which they had resorted. 
 They must, therefore, be regarded as still subject to the personal incapa- 
 city imposed by the law of their real domicil." See post, ^ 123, 124. 
 There are certain parts of the opinion of Sir George Hay, in Harford v. 
 Morris, 2 Hagg. Consist. R. 431, 432, 435, from which it may fairly be 
 deduced as his opinion, that the law of the place of marriage was the 
 rule, only when the parties were domiciled there ; and that if they went 
 from their own country merely to celebrate the marriage in a foreign 
 country, and immediately to return home, the law of such country would 
 not govern, but the law of the country of their domicil. Post, ^ 124, 
 note. 
 
 3 Ante, ^ 113 a.
 
 CH. v.] MAimiAGE. 211 
 
 under an incapacity by the laws of France.^ A law of 
 a similar nature may be found in the Act of 12 Geo. 3, 
 ch. 11, respecting the royal family, by which they are 
 prohibited from contracting marriage, unless under spe- 
 cial circumstances, pointed out in the act;~ and the pro- 
 visions of that act have been actually applied to the 
 case of a foreign marriage, contracted by one of the 
 royal princes. The doctrine of the English courts, al- 
 ready alluded to,^ in regard to the indissolubility of Eng- 
 lish marriages celebrated in England, notwithstanding 
 a subsequent divorce in a foreign country, affords a still 
 more striking illustration, as in its practical effects, it 
 may render the issue of a second marriage illegitimate ; 
 so that a son, the issue of the second marriage in Scot- 
 land may be legitimate there and illegitimate in Eng- 
 land ; he may be a lawful Scotch Peer, and yet lose the 
 English estates, which support his peerage.'' 
 
 § 118. In respect to the third exception, that of mar- 
 riages, contracted and celebrated in foreign countries 
 by subjects under peculiar circumstances,^ it has been 
 deemed to arise in cases of a sort of moral necessity ; 
 and it has been held to apply to persons, residing in 
 foreign factories, in conquered places, and in desert or 
 barbarous countries, or in countries of an opposite re- 
 ligion, who are therefore permitted, from necessity, to 
 contract marriage there according to the laws of their 
 
 1 2 Kent, Comm. Lect. 26, p. 93, 3d edit. ; Code Civil of France, art. 
 170 ; Merlin, R6pert, Loi, § 6, n. 1. 
 
 2 1 Black. Comm. 226. 
 
 3 Ante, ^ 88. 
 
 4 See Beazley v. Beazley, 3 Hagg. Ecc. R. 639 ; Rex v. Lolley, 1 Russ. 
 & Ryan, C. C. 236 ; Tovey v. Lindsay, 1 Dow, 724 ; McCarthy v. De 
 Caix, cited 3 Hagg. 642, note ; S. C. 2 Russ. & Mylne, R. 620. 
 
 5 Ante, ^ 113 a.
 
 212 CONFLICT OF LAWS. [CH. V. 
 
 own country. In short, wherever there is a local ne- 
 cessity from the absence of laws, or from the presence 
 of prohibitions or obstructions, in a foreign country, not 
 binding upon other countries, or from peculiarities of 
 religious opinion and conscientious scruples, or from 
 circumstances of exemption from the local jurisdiction, 
 marriages will be allowed to be valid according to the 
 law of the native or of fixed actual domicil.^ 
 
 § 119. The doctrine, upon which this exception from 
 necessity is founded, will be best explained by a quota- 
 tion from the opinion of Lord Stowell, in a case, already 
 referred to, in which the question of the validity of a 
 marriage celebrated at the Cape of Good Hope between 
 English subjects, by a chaplain of the British forces, 
 then occupying that settlement under a capitulation, 
 recently made, came before him for decision.^ After 
 citing the rule, that the law and legislative government 
 of every dominion equally affect all persons and all pro- 
 perty within the limits thereof, and remarking, that to 
 such a proposition, expressed in very general terms, 
 only general truth can be ascribed, (for it is undoubtedly 
 subject to exceptions,) he proceeded to say, that even 
 the native and resident inhabitants are not all brought 
 strictly within the pale of the general law. And, in 
 illustration of this remark, he referred to the fact, that 
 even in England, there is a numerous and respectable 
 body (referring to the Jews) distinguished by great 
 
 1 See Ruding v. Smith, 2 Hagg. Consist. R. 371, 384, 385, 386 ; ante, 
 § 79 ; Lautour v. Teesdale, 8 Taunt. R. 830 ; S. C. 2 Marshall, R. 243 ; 
 The King v. Inhab. of Brampton, 10 East, R. 282. See also Harford v. 
 Morris, 2 Hagg. Consist. R. 432, where Sir George Hay, in delivering 
 judgment, spoke of this exception of foreign English Factories. Ante, 
 ^ 79, and Id. p. 79, note 1. 
 
 2 Ante, § 79.
 
 CH. v.] MARRIAGE. 213 
 
 singularity of usages, who, thougli native subjects, un- 
 der the protection of the general law, are, in many re- 
 spects, governed by institutions of their own ; and par- 
 ticularly in their marriages. For it being the practice 
 of mankind to consecrate their marriages by religious 
 ceremonies, the differences of religion in all countries, 
 that admit residents professing religions essentially dif- 
 ferent, unavoidably introduce exceptions in that matter 
 to the universality of the rule, which makes mere do- 
 micil the constituent of an unlimited subjection to the 
 ordinary law of the country. He then added ; " What 
 is the law of marriage in all foreign establishments, set- 
 tled in countries professing a religion essentially differ- 
 ent ? In the English factories at Lisbon, Leghorn, 
 Oporto, Cadiz, and in the factories in the East, Smyrna, 
 Alleppo, and others ? In all of which (some of these 
 establishments existing by authority under treaties, 
 and others under indulgence and toleration,) marriages 
 are regulated by the law of the original country to 
 which they are still considered to belong. An English 
 resident at St. Petersburg does not look to the ritual of 
 the Greek Church, but to the rubric of the Church of 
 England, when he contracts a marriage with an English 
 woman. Nobody can suppose, that, whilst the Mogul 
 empire existed, an Englishman was bound to consult 
 the Koran for the celebration of his marriage. Even 
 where no foreign connection can be ascribed, a respect 
 is shown to the opinions and practice of a distinct peo- 
 ple. The validity of a Greek marriage in the exten- 
 sive dominions of Turkey is left to depend, I presume, 
 upon their own canons, without any reference to Ma- 
 hommedan ceremonies. There is a jus gentium upon 
 this matter, a comity, which treats with tenderness, or, 
 at least, with toleration, the opinion and usages of a dis-
 
 214 CONFLICT OF LAWS. [CH. V. 
 
 tinct people, in this transaction of marriage. It may be 
 difficult to say a priori, how far the general law should 
 circumscribe its own authority in this matter. But prac- 
 tice has established the principle in several instances ; 
 and where the practice is admitted, it is entitled to ac- 
 ceptance and respect. It has sanctioned the marriages 
 of foreign subjects in the houses of the ambassadors 
 of the foreign country to which they belong.^ I am 
 not aware of any judicial regulation upon this point. 
 But the reputation which the validity of such marriages 
 has acquired, makes such a recognition by no means 
 improbable, if such a question was brought to judg- 
 ment." ^ And again ; " It is true, indeed, that English 
 decisions have established this rule, that a foreign mar- 
 riage, valid according to the law of the place where 
 celebrated, is good everywhere else. But they have 
 not e converso established, that marriages of British sub- 
 jects, not good according to the law of the place where 
 celebrated, are universally, and under all possible cir- 
 cumstances, to be regarded as invalid in England. It 
 is, therefore, certainly to be advised, that the safest 
 course is always to be married according to the law of 
 the country ; for then no question can be stirred. But 
 if this cannot be done on account of legal or religious 
 difficulties, the law of this country does not say, that 
 its subjects shall not marry abroad." ^ And he accord- 
 ingly held the marriage valid, on the distinct British 
 character of the parties, on their independence of the 
 Dutch law in their own British transactions, on the in- 
 superable obstacles of obtaining any marriage conform- 
 
 1 See Peitreis v. Tondear, 1 Hagg. Consist. R. 136. 
 
 2 Ruding V. Smith, 2 Hagg. Consist. R. 385, 386. 
 
 3 Ibid.
 
 CH. v.] MARRIAGE. 215 
 
 able to the Dutch law, on the countenance given by 
 British authority and British administration to this 
 transaction, and upon the whole country being under 
 British dominion.' 
 
 § 120. In regard to marriages by British subjects in 
 their own foreign settlements, the general rule is, that 
 marriages, good by the laws of England, will be valid 
 there ; for they carry those laws with them into such 
 settlements, and are not to be governed by the laws or 
 customs of the natives. Thus, it has been held, that a 
 marriage between British subjects at Madras is good, if 
 conformable to the British laws, and not to the laws of 
 the natives of India.^ 
 
 § 121. The ground, however, upon which the general 
 rule of the validity of marriages, according to the 
 Lex loci contractus^ is maintained, is easily vindicated. 
 It cannot be better expressed, than in the language of 
 Sir Edward Simpson, already cited.^ All civilized na- 
 tions allow marriage contracts. They are juris gentium ; 
 and the subjects of all nations are equally concerned in 
 them. Infinite mischief and confusion must necessarily 
 arise to the subjects of all nations with respect to legi- 
 timacy, successions, and other rights, if the respective 
 laws of different countries were only to be observed, as 
 to marriages contracted by the subjects of those coun- 
 tries abroad ; and therefore all nations have consented, 
 or are presumed to consent, for the common benefit and 
 advantage, that such marriages shall be good or not, 
 according to the laws of the country where they are 
 celebrated. By observing this rule, few, if any, incon- 
 
 1 Ibid. p. 371 ; ante, ^ 79. 
 
 2 Lautour v. Teesdale, 8 Taunt. R. 830 : S. C. 2 Marsh. R. 213. 
 
 3 Ante, ^ 80 a.
 
 216 CONFLICT OF LAWS. [CH. V. 
 
 veniences can arise. By disregarding it, infinite mis- 
 chiefs must ensue.^ Suppose, for instance, a marriage 
 celebrated in France, according to the law of that coun- 
 try, should be held void in England, what would be the 
 consequences ? Each party might marry anew in the 
 other country. In one country the issue would be 
 deemed legitimate ; in the other illegitimate. The 
 French wife would in France be held the only wife, and 
 entitled as such to all the rights of property apper- 
 taining to that relation. In England, the English wife 
 would hold the same exclusive rights and character. 
 What, then, would be the confusion in regard to the 
 personal property of the parties, in its own nature tran- 
 sitory, passing alternately from one country to the 
 other ! Suppose there should be issue of both mar- 
 riages, and then all the parties should become domi- 
 ciled in England or France, what confusion of rights, 
 what embarrassments of personal and conjugal relations, 
 must necessarily be created ! ^ 
 
 § 122. Foreign jurists in general as strenuously sup- 
 port the general rule, as the tribunals sitting to admi- 
 nister the common law ; and undoubtedly from a com- 
 mon sense of the pernicious consequences which would 
 flow from a different doctrine.^ This subject is much 
 discussed by Sanchez, to the following effect. As to 
 the maxim or general rule, Ut non teneantiir peregrini 
 legihus et consuetudinibiis hci, per quern trameunt, this rule 
 has exceptions; (1.) Quoad contractimm solemnitcdcm ; 
 nam qidcimque forenses, et ])cregrini tcnenhir servare solem- 
 nitaies in contractu reqidsitas legihus et consuetuclinihiis ojo- 
 
 1 Scrimshire r. Scrimsliire, 2 Ilagg. Consist. R. 417, 418, and ante, 
 ^ 79, 80, 80 a. 
 
 2 Scrimshire v. Scrimshire,2 Hagg. Consist. R. 417, 418 ; ante, § 80 a. 
 
 3 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 5,^ 3, p. 184-188.
 
 CH. v.] MARRIAGE. 217 
 
 pidiy in quo contrahunt Ratione enim contractus qidlihet 
 forum sortUur in hco contractus ; hine est contractum abso- 
 lute initum, censeri cclehratum jiixta consiietudines et .statuta 
 loci, in quo initur. Quod ita provenit, quia contractus sequi- 
 tur consuetudines et statuta loci, in quo celehratur} And a 
 case is put, as to inhabitants of a place, where the de- 
 cree of the Council of Trent, for avoiding clandestine 
 marriages, is not received. Suppose they go from Eng- 
 land to places j96?r modum transitus, iibi ohligat decretum, 
 and marry there according to the laws of their own 
 domicil. Some think, that such marriage is good in 
 the case of strangers, as agreeable to their own laws, 
 to the law of the country in which they are domiciled, 
 though not to the law of the place where they are mar- 
 ried. But Sanchez holds, that a marriage is void, where 
 it wants the solemnities prescribed by the local law. 
 "What" (says he) "the law of the place requires, 
 where the contract is made, and what are to be followed 
 in contracts, are to be decided solely by the laws of the 
 place in which the contract is celebrated -, " Qu(2 petunt 
 leges loci, ubi contractus initur, et quoad solemnitatem adhi- 
 bendam in contractibus, solce. leges loci, in quo contractus cele- 
 bratur, inspiciimtur? Locus aidem, tibi hoc mcdrimoniiim 
 initur, non petit earn parochi et testiimi solemnitatem ad 7na- 
 trimonii valorem, cum ibi decretum Tridentini non obliget? 
 Ea solemnitas adhibenda est, quam petunt leges loci, ubi 
 contractus initur ; cum ergo locus, ubi celebratur matrimo- 
 
 1 Post, ^ 260, 
 
 2 I cite this whole passage from the case of Scrimshire v. Scrimshire, 
 2 Hagg. Consist. R, 412, 413. See also 1 Burge, Comment, on Col. and 
 For. Law, P. 1, ch. 5, § 3, p. 185, 186 ; Sanchez, De Matrim. Lib. 3, 
 Disput. 18, ^ 10, n. 26, 28. 
 
 3 Cited in Burge, Comment, ubi supra, p. 185, 186. 
 
 CONFL. 19
 
 218 CONFLICT OF LAWS. [CH. V. 
 
 Tmim, ah Ms peregrinis exegat solemnitatem Tiidentini in eo 
 vigentis ; aliter contractiim milium erit} 
 
 § 122 a. John Voet seems to affirm the same doc- 
 trine to be generally but not universally true, and lia- 
 ble to exceptions. He puts the case of the marriage 
 of an inhabitant of Holland with a female of Flanders 
 or Brabant, in Flanders or Brabant, according to the 
 laws of the latter, but not according to the laws of 
 Holland, and asks, if it would be valid in Holland. To 
 which he answers, that prima facie it should seem, that 
 such marriages ought in Holland to be held valid ; 
 "because" (says he) "it is sufficient in contracts to 
 follow the solemnities of the place in which the contract 
 is celebrated, although the solemnities are not observed 
 which are prescribed in the place of the domicil of the 
 parties, or of the situation of the property, in execut- 
 ing the act." Prima quidem specie videri posset, mipiias 
 tales etiam in ipsa Hollandid ratas hahendas esse. Eo quod 
 siifficit in contrahendo adhiheri solennia loci illius, in quo con- 
 tractus celelratur, etsinon inveniantur ohservata solennia, qua 
 in loco domicilii contralieniium, ant rci sitcB, actui gerendo 
 prescripta sunt? He adds, that there had been different 
 opinions given in Holland on this point. But he ex- 
 presses his own opinion to be, that such marriage, so 
 celebrated out of Holland, ought to be pronounced in- 
 valid in Holland, upon the very terms of the Edict of 
 Holland, by which marriages by Hollanders, without 
 proper notifications thereof, published in the place of 
 their domicil, are declared to be void. That the gene- 
 
 1 Cited ibid. 
 
 2 J. Voet, ad Pand. Lib. 23, tit. 2, ^ 4, Tom. 2, p. 20 ; cited also in 
 Scrimshire w. Scrimshire, 2 Hagg. Consist. R. 415. See also Voet, ad 
 Pand. Lib. 23, tit. 2, ^ 85, p. 55.
 
 CH. v.] MARRIAGE. 219 
 
 ral rule, that it is sufficient in negotiations and contracts 
 to follow the solemnities, required by the law of the 
 place where the business is transacted, does not apply 
 in such a case ; for that rule has its proper place, only 
 where the business is not so transacted in fraud of the 
 law, or where no statute has positively declared, that 
 the act shall be void, when done by a subject according 
 to the foreign solemnities. Sed, eo non obstante, magis 
 est, ut mcdrimonia, eo modo extra HoUandiam ah Hollando 
 celehrata, infirma per Jiidicem HoUandicum prommciari de- 
 heant, propter Edicti verha, qiiibus niiptice, per Hollandum 
 sine deminciationibiis piiblicis in domicilii hco interpositis 
 contractcE, irritce cssejusscE sunt. Nihil in contrarimn faci- 
 ente illo axiomate, quod siifficiat in negotiis contrahendis ad- 
 Mberi solennia loci, in quo actus geritur : cum ista regula 
 locum inveniat, si non in fraudem statuti quis alio se conttir 
 lerit ad actum celehrandum, aid statutum nominatim irritum 
 declaraverit actum, a suo suljecto peregrind solennitate ges- 
 tum} 
 
 § 122 h. Paul Yoet holds an opinion decidedly in 
 favor of the general rule. Quid si de contractuhis pro- 
 prie dictis, et quidem eormn solemnihiis contentio ; Quis 
 locus spectaUtur ; an domicilii contrahentis, an loci, nU quis 
 contra/lit ? Respondeo affirmanter. Posterius. Quia, cen- 
 setur quis semet contraJiendo, legihus istiiis loci, id>i contra- 
 hit, etiam ratione solemnium siihjicere voluisse.^ Huberus 
 admits, that a marriage valid by the law of the place, 
 where it is celebrated, is binding everywhere, under the 
 exception, which he generally applies, that it is not 
 prejudicial to others, or that it is not incestuous. Ilatri- 
 
 1 J. Voet, ad Pand. Lib. 23, tit. 2, § 4, p. 20. 
 
 2 Voet, De Statut. ^ 9, ch. 2, n. 9, p. 267, edit. 1715 ; Id. 323, edit. 
 1661; post, § 261.
 
 220 CONFLICT OF LAWS. [CH. V. 
 
 moniuni pertinet etiam ad has rcgiilas. JSi licitwn est eo 
 locoy iiU contradwn et celebratmn est, uUque validiim erit, 
 effedumque hahelit, sub eadem exceptione prejiidicii aliis 
 non creandi ; cid licet addere, si exempli nimis sit abomi- 
 nandi ; id si incestxim juris gentium in secundo gradii conti- 
 gerit aliciM esse permissum} Bouhier adopts the general 
 rule, hesitating as to the nature and extent of the ex- 
 ceptions.^ Hertius lays down the following axiom. If 
 the law prescribes a form for the act, the place of the 
 act, and not of the domicil of the parties, or of the situ- 
 ation of the property, is to be considered. Si Lex actiii 
 formam dat, %nsp)ide7idiis est locus actus, non domicilii, non 
 rei sitce? And he puts the following as an example. 
 A marriage contracted according to the solemnities of 
 any place where the married couple are commorant, 
 cannot be rescinded upon the pretext, that, in the 
 domicil or country of the husband, other solemnities are 
 required. 3Iatrimoniiim juxta solennitates loci alicujus, 
 libi sponsus et sponsa commorahantur, contradum non potest 
 prwtextu illo rescindi, quod in domicilio aut patria mariti 
 alice solennitates ohserventur^ He afterwards puts excep- 
 tions to this general axiom ; one of which is, that a 
 contract between foreigners, both belonging to a foreign 
 country, is to be governed by the law of their own 
 country and not by that of the Lex loci contractus.^ In 
 this exception he has to encounter many distinguished 
 adversaries.^ The French jurists seem generally to 
 
 1 Huberus, Lib. 1, tit. 3, ^ 8 ; ante, ^ 85. 
 
 2 Bouhier, Cout. de Bourg. ch. 27, ^ 59 to ^ 66. 
 
 3 Post, ^ 242, 260 ; Hertii Opera, Tom. 1, De Collis. Leg. §4, art. 10, 
 . 126, edit. 1737 ; Id. p. 179, edit. 1716. 
 
 4 1 Hertii Opera, De Collis. Leg. ^ 4, art. 10, edit. 1837, p. 126; Id. 
 . 179, edit. 1710 ; Id. art. 10, p. 128, edit. 1737 ; Id. p. 182, edit. 1716. 
 
 5 Id. p. 128, ^ 10, edit. 1737; Non Valet (6.) 
 
 6 Ibid.
 
 CH. v.] MARRIAGE. 
 
 221 
 
 support the doctrine, that marriage is to he held valid 
 or not, according to the law of the place of celebration, 
 except in cases positively prohibited by their own laws 
 to their own subjects, or where it is in fraud of those 
 laws.^ And Merlin says, that it is a contract so com- 
 pletely of natural and moral law, that when celebrated 
 by savages in places where there are no established 
 laws, it will be recognized as good in other countries.^ 
 
 § 123. A question has been much discussed, how far 
 a marriage, regularly celebrated in a foreign country, 
 between persons belonging to another country, who 
 have gone thither from their own country for that pur- 
 pose, is to be deemed valid if it is not celebrated ac- 
 cording to the law of their own country. Huberus, as 
 we have seen,^ has put the very question, and has 
 applied it as well to cases of minority as of incest ; and 
 he does not hesitate to pronounce such marriages 
 invalid, because they are an invasion, or fraud upon 
 the law of the country to which the parties belong, and 
 in which they are domiciled.^ Bouhier has advocated 
 the same opinion ; ^ and it is also maintained by Paul 
 Voet. He states it as an exception to the general rule, 
 that the law of the place of the contract ought to 
 govern. Nisi quis, quo in loco domicilii evitaret molestam 
 aliqiiam vel sumptuosam solemnitatem ; adeoqiie infraudem 
 
 ' Post, ^ 123. 
 
 2 Merlin, R6pert. Mariage, § 1, p. 343. See also 2 Boullenois, Obser. 
 46, p. 458; 1 Froland, M6m. p. 177, ch. 1 ; Pardessus, Vol. 5, P. 6, tit. 
 7, ch. 2, art. 1481 to 1495 ; Pothier, Trait6 du Mariage, n. 263 ; Journal 
 des Audiences, Tom. 1, ch. 24 ; S. C. cited Scrimshire «. Scrinashire, 
 2 HagjT. Consist. R. 413, 414. 
 
 3 Ante, ^85, § 116, a, 
 
 4 Huberus, Lib. 1, tit. 3, § 9. See ante, ^ 85, 116 a, where the pas- 
 sages are cited at large. 
 
 6 Bouhier, Cout. de Bourg. ch. 28. ^ 60, 61, 62, p. 557 ; ante, ^ 84. 
 19*
 
 222 CONFLICT OF LAWS. [CH. V. 
 
 Sid statidi niilld necessitate cogente alio proficiscatur, et mox 
 ad eoriim domicilium, gesto alihi negotio, revertatiir} Jolm 
 Voet (as we have seen) holds the same opinion.^ Po- 
 thier puts the very case in the strongest terms. He 
 says that the conditions and ceremonies, prescribed by 
 the French Laws, for the validity of marriages between 
 French subjects are obligatory, even when the marriage 
 has been celebrated between them in a foreign country, 
 whenever it appears that they have gone thither in 
 fraud of those laws, and that the marriage, under such 
 circumstances, will be a nullity.^ This doctrine turns 
 upon the general principle, that an act done designedly, 
 in fraud or evasion of the law, by a mere change of 
 locality, is utterly void. 
 
 § 123 a. In opposition to this doctrine it has, how- 
 ever, been settled, after some struggle both in England 
 and America, that such a marriage is good. The ques- 
 tion in England was first solemnly decided by the High 
 Court of Delegates in 1768 j^ and having been sub- 
 
 1 p. Voet, De Statut. ^ 9, ch. 2, p. 268, edit. 1715 ; Id. p. 323, 324, 
 edit. 1661. 
 
 2 Ante, ^ 122 a ; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 5, 
 ^ 3, p. 196. 
 
 3 Pothier, Trait6 du Mariage, n. 263. 
 
 4 Compton V. Bearcroft, cited in Bull. N. P. 114, and in Harford v. 
 Morris, 2 Hagg. Consist. R. 429, 430, 443, 444. — It has been said, that 
 this decision may be explained upon the ground, that the English Mar- 
 riage Act, under which that question arose, contained an express excep- 
 tion of marriages in Scotland ; and that the marriage of the parties in 
 that case, who were English, and had gone from England for the express 
 purpose of celebrating the marriage in Scotland, was therefore good, as it 
 was according to the law of Scotland. Admitting this to be the tree con- 
 struction of the English Marriage Act ; yet the question directly raised by 
 the libel was, whether a marriage in a foreign country by British subjects, 
 domiciled in England, and not changing their domicil, who had gone there 
 expressly to avoid and evade the laws of England, was good or not ; and 
 there is strong reason to believe, that this point was deemed a material
 
 CH. v.] MARRIAGE. 223 
 
 sequently recognized, notwithstanding the doubts of 
 Lord Mansfield, it may now be deemed settled there 
 beyond controversy.^ Lord Mansfield, on the occasion 
 alluded to, arguendo, said ; " It has been laid down at 
 the Bar, that a marriage in a foreign country must be 
 governed by the law of the country where the marriage 
 was had ; which in general is true. But the marriages 
 in Scotland of persons going from hence for that pur- 
 pose, were instanced by way of example. They may 
 come under a very different consideration, accord- 
 ing to the opinion of Huberus, and other writers."^ 
 This is manifestly no more than the expression of a 
 doubt upon a point not directly before the Court. 
 [The Lish Courts have also, after full deliberation, 
 adopted the same rule.®] 
 
 § 123 ^. In Massachusetts, upon full discussion, the 
 doctrine has been firmly established.'^ It was admitted 
 on that occasion, by the Court, that the doctrine is 
 repugnant to .the general principles of law relating to 
 contracts ; for a fraudulent evasion of, or fraud upon 
 the laws of the country, where the parties have their 
 domicil, would not, except in the contract of marriage, 
 be protected under the general principle.^ But the 
 
 ingredient in the ultimate judgment of the case. — See the case of Comp- 
 ton V. Bearcroft, as commented on in 2 Hagg. Consist. R. 443, 444, and 
 the Reporter's note in p. 444. 
 
 1 See Harford v. Morris, 2 Hagg. Consist. R. 423 ; Robinson v. Bland, 
 2 Burr. R. 1077 to 1080 ; Steel v. Braddell, 1 Milw. Consis. R. 1 ; Fer- 
 gusson on Marr. and Divorce, 63 to 65. 
 
 2 Robinson v. Bland, 2 Burr. R. 1079, 1080 ; Huber. Lib. 1, tit. 3, ^ 8. 
 
 3 Steele v. Braddell, 1 Milw. Consis. R. 1, where this subject is ably 
 examined. 
 
 4 Medway v. Needham, 16 Mass. R. 157, 161 ; Putnam v. Putnam, 
 8 Pick. R. 433. 
 
 5 Ibid. The Court put the following case. Thus, parties, intending
 
 224 CONFLICT OF LAWS. [CH. V. 
 
 exception ia fjivor of marriages is maintained upon 
 principles of public policy, with a view to prevent the 
 disastrous consequences to the issue of such a marriage, 
 which would result from the loose state in which per- 
 sons so situated would live.^ The doctrine has been 
 carried even farther, so as to admit the legitimacy of 
 the issue of a person who had been divorced a vinculo 
 for adultery, and had been declared by the local law 
 incompetent to marry again, but who had gone into a 
 neighboring state, and there contracted a new marriage, 
 and had issue by that marriage.^ The like rule has 
 been applied in flivor of the widow by such second mar- 
 riage, so as to entitle her to dower in the real estate of 
 her deceased husband, situate in Massachusetts.^ 
 
 § 124. The English doctrine, in relation to Scotch 
 marriages, by parties domiciled in England, and going 
 to Scotland to marry, though a plain violation of the 
 real object and intent, even if not of the words of the 
 English Marriage Act, seems to have proceeded mainly 
 upon the ground of public policy.'' It is the least of 
 
 to make an usurious barg-ain, cannot give validity to a contract, in which 
 more than the lawful interest of their country is secured, by passing into 
 another territory, where there may be no restriction of interest, or where 
 it is established at a higher rate, and there executing a contract before 
 agreed on. Medway v. Needham, 16 Mass. R. 160. 
 
 1 Medway 1). Needham, 16 Mass. 160, 161. 
 
 2 West Cambridge v. Lexington, 1 Pick, R. 596 ; 2 Kent, Comm. 
 Lect. 26, p. 92, 93, 3d edit. See Fergusson on Marr. and Divorce, note 
 R, p. 469 ; ante, ^ 89. 
 
 3 Putnam v. Putnam, 8 Pick. R. 433, 
 
 4 See Steele v. Braddell, 1 Milw. Consis. R, 1. Mr. Burge does not 
 deem it to be in fraud of the English laws, because the English Marriage 
 Act does not in fact prohibit such Scottish marriages. This is true in 
 terms; and if it did prohibit, tiie question of the conflict of laws in relation 
 to such marriages would never have arisen in England; for the statute 
 would have directly decided the matter. Nevertheless, the whole object
 
 CH. v.] MARRIAGE. 225 
 
 two evils, in a political sense, a civil sense, and a moral 
 sense. We have already seen, that the positive code 
 
 of the parties in this class of marriages plainly is to evade the law of their 
 own country by a marriage, valid by the law of the country, where it is 
 celebrated, without changing their own domicil, and thus getting rid of all 
 the anxious provisions of the statute against ill advised and clandestine 
 marriages. In short, all the Gretna Green marriages in Scotland (as they 
 are called) are intended by the parties to get rid of the solemnities of the 
 English law. Mr. Burge says; "The decisions of the courts in Eng- 
 land, which have declared valid a marriage contracted in Scotland by 
 English persons, who had resorted thither for the sole purpose of evading 
 the prohibitions of the English Marriage Act, are perfectly consistent with 
 the admission of this exception. Such a marriage is valid, because it is 
 not prohibited by the English Marriage Act. It is a misapplication of 
 terms to describe it as an evasion, or in fraud of the Act ; for, in fact, it is 
 not prohibited. There is an express provision, that nothing in that act 
 shall extend to marriages in Scotland, or to any marriages beyond sea. 
 The act, therefore, left English subjects at perfect liberty to resort to 
 any country for the purpose of contracting and celebrating their marriage. 
 So far from the act containing a general and absolute prohibition, and a 
 declaration of the nullity of all marriages, contracted otherwise than in 
 conformity to its provisions, it confines such prohibition anH dficlaration to 
 marriages contracted in England. These decisions, therefore, are founded 
 upon the right of the parties, consistently with the Marriage Act, to resort 
 to the foreign country for the purpose of contracting their marriage, and 
 upon the act itself containing no provision which renders void a marriage 
 so contracted. It is upon this ground, and to this extent, that the argu- 
 ment of Sanchez must be understood, when he contends that a marriage 
 is not void, because the parties have resorted to a country, in which they 
 have contracted it, for the purpose of avoiding ceremonies, which are 
 required in their own country. ' Displicet mihi hsec limitatio, et credo, 
 licet adirent eo fine, ut possent libere absque parocho et testibus contra- 
 here, esse ratum matrimonium. Nam qui jure suo utitur non potest 
 dici fraudem committere, ut ea ratione effectus impediatur.' ' Nullus 
 videturdolo facere, qui jure suo utitur.' ' Est enim fraus licita, cum con- 
 trahentes utantur jure suo : ergo cum adeuntes locum, ubi non viget 
 Trident, animo contrahendi absque parocho et testibus, utunturjure suo, 
 habet enim jus sic ibi contrahendi, erit fraus licita, nee ea ratione elTectus 
 ac valor matrimonii impedietur.' The same jurist, in a subsequent pas- 
 sage, admits the distinction between a personal incapacity imposed by the 
 law of the domicil, which would accompany the party in whatever country 
 he contracted, and a law which attached to the act only in respect of 
 its taking place in the country in which that law prevailed. 'Die
 
 226 CONFLICT OF LAWS. [CH. V. 
 
 of France has promulgated an opposite doctrine, with 
 unrelenting severity.^ The wisdom of such a course 
 
 quando inhabilitas est constituta absolute et simpliciter, sequi personam 
 quocumque euntem : secus quando est constituta per modutn legis, sicut 
 enim lex ilia non obligat in illis locis, ita inhabilitas, et annullalio actus 
 non obligat ibi, nee sequitur personam, nisi dum est in locis, in quibus ea 
 
 lex vim obligandi habet non enim ligatur lege Ecclesiastica 
 
 in loco, ubi ex voluntate ac dispositione ejusdem Ecclesiae non habet robur 
 eadem lex : ut contingit in locis, ubi aut non recepta aut non publicata 
 fuit." 1 Burge, Comm. on Col. and For. Law, P. 1, ch. 5, § 3, p. 192, 
 193. The decisions in the Supreme Court of Massachusetts, as they are 
 stated in the Commentaries on American Law, carry the doctrine much 
 further, and reject any exception founded on the purpose for which the 
 parlies resorted to the country, where they contracted the marriage. The 
 parties, in the case referred to, had left the State on purpose to evade its 
 statute law, and to marry in opposition to it, and being married, they re- 
 turned again ; yet their marriage was held valid, if it were valid accord- 
 ing to the laws of the place where it was contracted, notwithstanding the 
 parties went into the other State with an intention to evade the laws of 
 their own." (Ibid.) In these remarks Mr. Burge is mainly borne out as 
 to the effect of the English Marriage Act, by the langnage of Sir George 
 Hay, in Harford «. Morris, (2 Hagg. Consist. R. p. 426 to p. 432.) He 
 there said ; " The next question is, whether by the law of England this 
 marriage is valid 1 It is stated throughout that it is a marriage without 
 the consent of the natural mother of the party, and of the testamentary 
 Guardians, and the Lord Chancellor ; and that the parties went into a 
 foreign country to evade the laws of this realm. Whether upon that ac- 
 count, or any of the accounts already mentioned, it is void by the law of 
 England, is the first question. Parties may go out of England and marry 
 by necessity or choice ; in either way a foreign marriage is not void upon 
 that account by the laws of England. But it is said, they go in violation 
 of the order of the Chancellor, and without the consent of parents and 
 guardians. What is the law of England, that requires the consent of 
 parents and guardians ? It is the marriage act. One of the greatest ma- 
 gistrates, that ever appeared in this country, explains it, that the view of 
 that act was to restrain the abuse, that was so scandalous in this country, 
 from clandestine marriages, and to get proof of marriages, which other- 
 wise might become uncertain ; as it is, wherever you cannot have evidence 
 of the fact of the marriage being rightly performed, and legitimacy be- 
 comes uncertain. The principal view of that law was to affect such mar- 
 riages. The law does, indeed, in one respect, put a restraint, which was not 
 
 1 Ante, ^ 84, 90, 123, and note.
 
 CH. v.] 
 
 MARRIAGE. 227 
 
 remains to be established ; and it will be no matter of 
 surprise, if hereafter we shall find a Frenchman, with 
 
 known to the common law, upon the marriage of minors without the con- 
 sent of parents ; but it does not malte all the marriages of minors, even 
 in England, void. Marriages by license only are void, for want of con- 
 sent of parents and guardians. If this marriage had been in England, 
 and if, instead of going abroad, the parties had been married in any great 
 parish of this town or country by banns, would that marriage have been 
 good, or not, by the laws of England ? No law says that it shall be void. 
 It is a marriage by license only, that is void by the law of England, for 
 want of consent of the parents or guardians. It is observed also, that the 
 act makes particular exceptions, without which the purpose of the mar- 
 riage act, though an exceeding good act, might have been questioned be- 
 fore this time, if there had not been so many ways to avoid the restraint 
 put upon the marriage of minors. It is provided, that nothing in this act 
 shall extend to marriages in Scotland, nor to any marriages solemnized 
 beyond sea. Then marriages in Scotland and beyond sea by the law of 
 England, remain in the same state as if the statute had not passed. Mar- 
 riage in Scotland, if not contrary to the law of England, is good, and it 
 has been so determined. That determination passed, not on the ground, 
 that the marriage was valid in Scotland, and that therefore it was good — 
 nothing was laid before the Court to show, that the marriage was valid in 
 Scotland — but because the Act of Parliament did not put any restraint 
 upon English subjects being married in Scotland, with respect to the con- 
 sent of parents. On that ground it is, that those marriages are held good, 
 not being contrary to the law of England. The same holds as to mar- 
 riages beyond sea. For English subjects going abroad, or to Scotland, to 
 marry English subjects, have an exemption from that restraint in the act. 
 What was the case before the marriage act ? Will anybody say, that 
 before the act, a marriage solemnized by persons going over to Calais, or 
 happening to be there, was void in this country, because such a marriage 
 might be void by the laws of France, as perhaps it was, if solemnized by 
 a Protestant priest, whom they do not acknowledge, or if any way 
 clandestine, or without consent ; and that therefore it should be set aside 
 by a court in England, upon account of its being void by the law of France? 
 No. The laws of the state, to which the parlies are subject, must deter- 
 mine the marriage, unless you can show that the law of the other country 
 is that, by which its validity is to be decided. That brings me to the 
 other great consideration in this case, whether the validity of these mar- 
 riages, being solemnized in Ypres and Denmark, are to be tried by the 
 laws of those countries. If they are, the laws of those countries must 
 be laid before the Court, and proved in the best manner possible ; not by 
 the opinions of lawyers, which is the most uncertain way in the world.
 
 228 CONFLICT OP LAWS. [CH. V. 
 
 two lawful wives, one according to the law of the place 
 of the marriage, and the other according to that of his 
 
 but by certificates, laying the ordinances of those countries before the 
 Court. Without considering how far that law is capable of being proved 
 in the present case, the previous question arises with respect to jurisdic- 
 tion, whether the laws of that country, in which the marriage is celebrat- 
 ed, should operate, merely because it was celebrated there. I conceive 
 the law to be clear, that it is not the transient residence, by coming one 
 morning and going away the next day, which constitutes a residence, to 
 which the lex loci can be applied ; so as to give a jurisdiction to the law, 
 and cause it to take cognizance of a marriage celebrated there. It is cer- 
 tain that domicil, or established residence, (that is, such a kind of resi- 
 dence as makes the party subject to the lavps of that country,) may have 
 that effect ; and, with respect to persons so domiciled, the laws of the 
 country must be adhered to in contracts made there. This was the case 
 of Scrimshire. All the proceedings of the Court of France were laid 
 before the Court. I remember it, though it was a long time ago ; and I 
 was counsel for the lady. The mother of the young man was at Bologne, 
 where they had gone animo morandi. It was stated in all the proceed- 
 ings, that they were domiciled in France ; he went there to reside for pur- 
 poses of education, and did reside there ; and the mother continued to re- 
 side there, till she obtained the sentence, that was pleaded in the Con- 
 sistory Court. I do not in the least call in question that determination in 
 the Consistory Court. Every man has allowed the great and extensive 
 knowledge of the Judge ; but he founded his judgment upon the sentence 
 given in that Court, which had assumed jurisdiction, and had a right to 
 assume it ; he paid all respect to the judgment ; and upon that he gave 
 his opinion, that the party suing should be dismissed." A somewhat dif- 
 ferent account of the case of Compton v. Bearcroft (here referred to) is 
 given by Sir W. Wynne, in Middleton v. Janverin, (2 Hagg. Consist. R. 
 443, 444.) On that occasion he said, — " It is, however, contended, that 
 admitting the law to invalidate the marriage in those countries, yet that is 
 not the law by which this case is to be decided in this Court. It is not 
 the lex loci, where the marriage ceremony is performed, which is to de- 
 termine the question, but you must find out some other law, and that is 
 declared by the counsel for Mrs. Janverin to be the law of England. Now, 
 in respect to the lex loci having been adopted as a rule, I think the case 
 of Compton v. Bearcroft proves it very strongly. In that case the Court 
 of Delegates affirmed the rejection of the libel, which was given in against 
 the marriage, on different grounds, as I have understood, from those which 
 were taken in the Court of Arches, and because the marriage was a good 
 marriage in Scotland, and if all the facts pleaded in the libel were proved, 
 the marriage could not be pronounced void under the marriage act ; in
 
 cii. v.] 
 
 MARRIAGE. 229 
 
 domicil of origin.^ The doctrine in England has, in- 
 deed, stopped short of the moral mischief ; if the de- 
 
 which it is expressly declared, that it shall not extend to Scotland. On 
 those grounds it was, as 1 have understood, that the Delegates rejected 
 the libel. The case of that marriage was therefore determined by the 
 lex loci. Those persons having gone to Scotland, and been married in a 
 way not good in England but good in Scotland, and not affected by the 
 marriage act, were considered to have contracted a valid marriage." The 
 learned Reporter has added a very important note to 2 Hagg. Consist. R. 
 444, note (*), on this point. It is certain, that foreign jurists do not take 
 any distinctions between a violation of the positive prohibition by the 
 words, if the laws and the case of a mere evasion or fraud upon the known 
 policy of the laws, by a marria^^e in another country, without any change 
 of domicil by the parties. See also Fergusson on Marr. and Divorce, 
 417 ; Id. 223, 461. It has always appeared to me, that the true doctrine 
 of international policy is, that a foreign marriage, valid by the law of the 
 place of marriage, is valid everywhere, notwithstanding the parties may 
 be domiciled in another country, where the marriage, if celebrated there, 
 would, by the laws thereof, be void, and the parties have gone thither for 
 the express purpose of evading the requisitions of the law of their domi- 
 cil. A learned writer, in the London Legal Observer for January, 1840, 
 has commented on this subject with great acuteness and ability. The fol- 
 lowing extract may be gratifying to the learned reader, as it constitutes an 
 opposite view to that of Mr. Burge. " The idea of fraud on the law of 
 a country is rather a favorite one with jurists. When examined, how- 
 ever, we think it will be found to have a very narrow foundation for the 
 supposed countenance afforded to it by our law. By the courts of several 
 American States it has been repeatedly overruled. It is principally ground- 
 ed on an opinion of the jurist, Huber, (Hub. de Confl. Leg. lib. 1, tit. 3, 
 ^ 8,) supported by a dictum of Lord Mansfield, in Robinson i'. Bland. 
 (1 W. Bl. 234, 256 ; 2 Burrows, 1077.) In the first place, it is at once 
 met by the difficulty, that it has been over and over again decided, that 
 Scotch and foreign marriages (between minors and others, who could not 
 have contracted marriage here) undjertaken, expressly and admittedly, to 
 evade our law, are good, if good perlegem loci, and vice versa. But then, 
 say the advocates of the in fraudem legis doctrine, these decisions are con- 
 sistent ; because the Marriage Act in terms excepts Scotch and foreign mar- 
 riages. In this view, however, they at once throw over Lord Mansfield's 
 authority, because, as Sir W. Blackstone, who was counsel in the case, 
 notes it in the margin of his report, he threw out a ' quaere, whether stolen 
 
 1 1 Touliier, Droit Civil, art. 576 ; Code Civil, art. 144, 148, 170 ; 
 Merlin, Rcpert. tit. Loi, ^ 6, n. 1, and ante, note, § 84, 117. 
 CONFL, 20
 
 230 CONFLICT OF LAWS. [CH. V. 
 
 cision, promulgated in its Courts, can be maintained, 
 (of which doubts may justly be entertained,) that a 
 
 marriages in Scotland are valid.' However, as this case is really the 
 only one, in which, as far as we are aware, the idea of evasion of our 
 law is set up, we must go more fully into it. The case was argued 
 in 1760, The question was, whether a bill of exchange given in France 
 by one English subject to another, but made payable in England, the 
 consideration of which was a gambling debt, should be held recovera- 
 ble in an English Court, It was found not to be recoverable in France ; 
 but Lord INIansfield (though, on this plain ground, he afterwards said 
 the case had after all come to nothing) had it argued twice, as bearing 
 on international law. In his judgment he touched on the rules ap- 
 plicable to foreign personal contracts. He lays down the general 
 rule as to the lex loci prevailing. But then he says ; ' this rule admits 
 of an exception, where the parties had a view to a different kingdom. 
 Contracts are to be considered according to the place, where they are to 
 be executed.' And Mr. Justice Wilmot said; 'The place where the 
 money is to be paid, must govern the law. This was determined as to 
 usury on contracts in Ireland.' From this it is evident, that there is no ground 
 in the decision for the wide principle contended for. The quaere thrown 
 out, merely in answer to an illustrative argument used by counsel, comes 
 more to the point ; but is plainly overruled. Burrows in his report says, 
 that Lord Mansfield referred to a case before Lord Hardwicke of a minor's 
 stolen marriage at Ostend ; the validity of which Lord Hardwicke doubted, 
 and ordered to be tried before an Ecclesiastical Court ; but the trial was 
 stopped by the minor's marrying again on coming of age. We have 
 looked carefully for this case, and have no doubt Butler and Freeman 
 (Ambl, 302) is the one referred to. It had been decided in 1756, four years 
 before. It was the case of a ward married at Antwerp. Lord Hardwicke 
 said ; ' This is the first case under the late Marriage Act. As to such a 
 marriage ([ was going to call it a robbery) there is a door open in the sta- 
 tute as to marriages beyond seas and in Scotland.' He afterwards goes 
 on lo question the validity of the marriage : ' It is said by witness, that 
 he saw them married, according to the rites and ceremonies of the Church 
 of England. But it will not be valid here, unless it was so by the laws of 
 the country where it was had.' The father, it appears, instituted a suit 
 in the Ecclesiastical Court to try the validity according to the foreign law. 
 This case, therefore, so far from supporting Lord Mansfield's doubt, as 
 stated in the margin of Blackstone's report, expressly overrules it. It is 
 more material for our present purpose, as being the first case under the 
 Marriage Act. The Marriage Act was passed in 1753. If Lord Hard- 
 wicke had thought, that before that act there was a principle of law in 
 operation, that a party going abroad to evade our laws could not set up the
 
 CH. v.] 
 
 MARRIAGE. 231 
 
 second marriage, after a divorce, in Scotland, from a 
 marriage, originally celebrated in England between 
 
 lex loci contractus, but that the new act had altered this, he could hardly 
 have foiled to have said so. He treats it, that the new statute, by leaving 
 the old principle of lex loci contractus untouched, had left a door open to 
 evade its new provisions of banns, rites, consent for minors, &c. ; not had 
 opened a new door. We find but one other case before Lord Hard wicks 
 bearing on the subject. It is Roach v. Garvan, decided in 1748. (1 Ves. 
 R, 159.) It is material as showing the principles of law as to foreign 
 marriages clearly laid down, before the marriage act passed. It was the 
 case of a ward of Court, aged only eleven, married in France to a boy of 
 seventeen, the son of a Frenchman. Lord liardwicke laid down, that the 
 infant, being a natural-born subject, could not renounce her allegiance. 
 He said ; ' The most material consideration is the validity of the marriage. 
 It has been argued to be valid from being established by the sentence of a 
 court in France, having proper jurisdiction. And it is true, that if so, it 
 is conclusive, whether a foreign court or not, from the laws of nations in 
 such cases ; otherwise ths rights of mankind would be very precarious and 
 uncerlain.' Now here, if Mr. Burge is right, Lord Hardvvicke was called 
 upon to fall back on the general principle Mr. Burge contends for, that 
 the subject, though broad, unless bona fide domiciled there, (which in 
 Mr. Burge's sense of domicil was not the case,) could not avail himself of 
 the lex loci to avoid the operation of our law. The girl here, was only 
 eleven years old. By our comnron law, as stated by Mr. Burge, a female 
 under twelve could not contract matrimony. Indeed, according to Sir 
 Matthew Hale, the attempt would have subjected the party to a conviction 
 for rape. (1 Hall. P. C. 630 ; and 4 Bla. Com. 212.) So far from doing 
 this, in committing unreservedly the jurisdiction, as to validity, to a for- 
 eign court, he lays down a principle quite destructive of all Mr. Burge's 
 doctrines, as to bona fide domicil ; because, as we shall presently remark 
 further, if that principle only means bona fide, so far as required by the 
 foreign law, it amounts to nothing, and there is nobody who doubts it. 
 It would then be, by common consent, one of the incidents bearing on the 
 validity of the marriage according to the lex loci contractus. There are 
 few opinions, which command higher respect than Mr. Jacob's. In his 
 very learned notes appended to his edition of Roper's Husband and Wife 
 he takes the same view. He says, as to the objection, that an intention to 
 evade our law may affect the validity of the foreign contract ; ' that, 
 though apparently sanctioned by Lord Mansfield, it has not prevailed, 
 either with respect to marriages in Scotland, or with respect to 
 marriages in other places out of England, and there does not appear 
 any exception to the rule, that a foreign marriage, valid according 
 to the law of the place where celebrated, is good everywhere else.
 
 232 CONFLICT OF LAWS. [CH. V. 
 
 English subjects, is void, although such divorce and 
 second marriage would be unquestionably good by the 
 
 (2 Roper, Husb. & Wife, edit, by Jacob, p. 495.) It must be observed, 
 that Mr. Jacob does not specifically advert to objections arising from affi- 
 nity, or from any prohibitory rules not being in the Marriage Act. The 
 rule, however, is evidently older than the Marriage Act, and is always 
 found without a limitation from the first. Except the case of legal per- 
 sonal disqualification against marrying at all, such as Lolley's, to which 
 we shall soon advert, we know but of one country (France), where the 
 validity of a foreign marriage between its own subjects is tried by its own, 
 and not the foreign law. French subjects, who are required at home to 
 obtain the consent of parents, &c. are required so equally, if they marry 
 cut of France. Did such a broad personal rule obtain here, there would 
 have been no room for the present article ; and it is to such a result, that 
 we are addressing ourselves, unless the rules of restriction can be so nar- 
 rowed, as to approve themselves to the moral approbation of all the com- 
 munity, minority as well as majority, i. e. to those cases of affinity, which, 
 by the common consent of the country would* be discountenanced, viz. 
 affinities is one degree, as step-father and step-daughter. We will now 
 go on to examine the supposed second rule, as to a foreign bona fide domi- 
 cil being required. Our English supposed limitation of the general rule, 
 is not, as we have seen, treated by such of the civilians as have espoused 
 these views, as an absolute personal rule, but one merely in fraudem 
 legis ; and they therefore attach to the limitation this sub-limitation, that 
 the qualification will be removed by a sufficient domicil abroad. But suffi- 
 cient by what law? The sufficiency according to the requirements of the 
 foreign law is admitted on all sides. Our law as to domicil proceeds on 
 quite different grounds. But supposing our law required a year's residence 
 tomake a domicil in any place, and the law of that place required two 
 years, and also required domicil to ratify the contract of marriage within 
 it, it is evident, that we here, trying the validity of such a marriage, 
 should require the two years' residence to be proved. These civilians 
 admit this, and require us to fulfil the foreign law in all cases. But then 
 they require a sufficient domicil by our law as well. They would split 
 the unity of the contract, and determine it partly by one law, and partly by 
 the other. They require two sorts of domicil to make up the marriage 
 contract — the one by the law abroad to get over the lex loci, the one by 
 our law, not as essential to the contract, but as evidence of the bona fides 
 of the contract, and to get over the quasi personal disability they suppose, 
 i. e. the suspicion of intention to evade our supposed prohibitory law. It 
 is clear the bona fide domicil, they would exact, must be by way of evi- 
 dence, and evidence only. But if so, how can it be an essential ? Parties 
 may marry without any intended fraud on their own law, where notdomi-
 
 CH. v.] MARRIAGE. 233 
 
 law of Scotland.^ So that, here, there may be two law- 
 ful wives of the party, living at the same time, in dif- 
 ferent countries, and two fomilies of children, one of 
 which may be deemed legitimate by the law of the one 
 country, and illegitimate by the law of the other.~ It 
 is easy to see, what various difficulties may grow out of 
 such a state of things. A son, by the second marriage, 
 may be entitled to the whole real and personal estate 
 of the father in Scotland, and incapable of touching 
 
 ciled to the satisfaction of the civilians; or, what is more likely, may 
 become so domiciled with a positive intention to evade their own law. 
 They may get naturalized abroad, move their property there, do every 
 thing, which would show a domicil with regard to the laws about personal 
 estate, and yet all the while it may be capable of clear proof, that they 
 did this only, because they chose to be married, and were not permitted to 
 be married here, and that they intended, and did all for evasion. They 
 may intend a permanent residence also, and merely because they do not 
 like the English law as to affinity. What would the civilians, who coun- 
 tenance these refinements, say to this case 1 Their notion seems to have 
 arisen from viewing the law, as an individual, whose honor is to be vindi- 
 cated, and who is to be treated with at least outward show of observance 
 and respect. They make it, let it be observed, not a principle of English 
 law merely, but of general law ; though they can find no instance in any 
 one country to support it, except Lord Mansfield's manifestly erroneous 
 dictum in a bill of exchange case. To us the whole scheme seems alto- 
 gether insupportable. A law, we should think, is either local, or it is per- 
 sonal, and any thing between we cannot comprehend. If it were the case 
 of a foreigner's marriage here, would they ask, if he came here in evasion 
 of his own law 1 Or would they not rather say with Fergusson, ' A party 
 domiciled here cannot be permitted to import a law peculiar to his own 
 case.' (Ferg. on Mar. and Div. 399.) " See also Huberus, Lib. 1, tit. 3, 
 De Conflictu Legum, § 13 ; Paul Voet, de Statut. § 9, eh. 2, n. 4, p. 263, 
 edit. 1715; Id. p. 319, edit. 1661. Lord Brougham, in Warrender v. 
 Warrender, 9 Bligh, R. 129, 130, manifestly considered, that the doctrine, 
 that a marriage in a foreign country was void, if it was a fraud upon the 
 law of ihc domicil of the parties, was not maintainable' in point of law. 
 
 1 Lolley's Case, 1 Russ. & Ryan, Cas. 236. See Warrender v. War- 
 render, 8 Bligh, R. 891 ; ante, ^ 86, 88 ; post, ^ 215 to ^ 226. 
 
 2 Beazley v. Beazley, 3 Hagg. Eccl. R. 639 ; Rex v. Lolley, 1 Russ. & 
 Ryan, Cas. 236. 
 
 20*
 
 234 CONFLICT OF LAWS. [CH. V. 
 
 either in England. The Massachusetts doctrine escapes 
 from these incongruities ; and appears to be founded 
 upon a liberal basis of international policy, which deems 
 it far better to support marriages, celebrated in a foreign 
 country, as valid, when in conformity with the laws of 
 that country, although the rule may produce some 
 minor inconveniences, than, by introducing distinctions 
 as to the designs, and objects, and motives of the par- 
 ties, to shake the general confidence in such marriages ; 
 to subject the innocent issue to constant doubts as to 
 their own legitimacy ; and to leave the parents them- 
 selves to cut adrift from their solemn obligations, when 
 they may become discontented with their lot. 
 
 § 124 «. It is no answer to this reasoning to say, that 
 every nation has a right, at its pleasure, to impose any 
 restraints and prohibitions upon the marriages of its 
 own subjects, whether they marry within or without its 
 own territory. Admitting this to be true in the fullest 
 extent, to which it can justly be claimed in virtue of 
 national sovereignty, it must be quite as true, and quite 
 as obvious, that no other nation is bound to recognize 
 those restraints, and those prohibitions, as obligatory 
 upon such subjects, while they are domiciled within its 
 own territory, or when they have contracted marriages 
 there, according to the laws thereof All such local 
 municipal restraints and prohibitions, must, under such 
 circumstances, necessarily tend to mutual embarrass- 
 ment and confusion in the intercourse between such 
 nations. The very object of the rule, arising from the 
 comity of nations, and a sense of the importance and 
 public policy of giving to marriages everywhere the 
 most solemn and binding obligation, is to secure all na- 
 tions against such a conflict of laws. If France has 
 chosen to declare, that all marriages celebrated by its
 
 CH. v.] MARRIAGE. 235 
 
 subjects in foreign countries, in conformity with their 
 laws, but not according to its own laws, shall be utterly 
 void, every other country has an equal right to decL-ire, 
 that such marriages shall be deemed valid, and refuse to 
 submit to the dictation of France. France may at home 
 enforce such laws upon her own subjects and their pro- 
 perty, when found within its territory. But every other 
 nation, by whose laws the marriages celebrated therein 
 would be valid, would sustain such marriages, and treat 
 the claims of France, as an usurpation, founded in injus- 
 tice, and a disregard of the true duty and policy of all 
 civilized nations in their intercourse with each other.
 
 236 CONFLICT OF LAWS. [CH. VI. 
 
 CHAPTER VI. 
 
 MARRIAGES INCIDENTS TO. 
 
 § 125. Having considered how far the validity of 
 marriages is to be decided by the law of the place 
 where they are celebrated, we are next led to consider 
 the operation of foreign law upon the incidents of mar- 
 riage. These may respect either the personal capacity 
 and powers of the husband and wife, or the rights of 
 each in regard to the property, personal or real, ac- 
 quired, or held by both or either of them during the 
 coverture.^ 
 
 § 126. The jurisprudence of different nations con- 
 tains almost infinitely diversified regulations upon the 
 subject of the mutual obligations and duties of husband 
 and wife, their personal capacities and powers, and their 
 mutual rights and interests in the property belonging 
 to, or acquired by each, during the existence of the 
 marriage; and the task of enumerating all of them 
 would be as hopeless as it would be useless. Before 
 the Revolution there were in France a multitude of 
 such diversities in the local and customary law of her 
 own provinces ; and in Germany, and the states of 
 Holland and Italy, and the vast domains of Austria 
 and R-ussia, the like diversities existed, and probably 
 
 1 See on the subject of this chapter, 1 Burge, Comm. on Col. and For. 
 Law, Pt. 1, eh. 6, ^ 1, 2, p. 201 to p. 2fi2 ; Id. ch. 7, ^ 1, p. 262 to 
 p. 276.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 237 
 
 still continue to exist. Froland has enumerated a few 
 of these diversities and by way of illustrating the end- 
 less embarrassments arising from the conflict of laws 
 of different provinces and nations ; ^ and his ample 
 work is mainly devoted to a consideration of the mixed 
 questions, arising from the conjugal relation, as affected 
 by different laws in different provinces and nations. In 
 some of the French provinces before the Revolution, a 
 married woman had a separate power to contract ; in 
 others she had not." In Holland, under the old laws 
 thereof (for it is unnecessary to consider whether they 
 have undergone any substantial alteration in more 
 recent times) the husband had the sole power to dis- 
 pose of all the property of his wife ; and she was 
 entirely deprived of any power over it.^ In Utrecht 
 her consent was necessary, if there were not children 
 by the marriage ; and in some other places, whether 
 there were or were not children. In Utrecht the hus- 
 band and wife were disabled from making donations to 
 each other; in Plolland they may or might make 
 them.^ In some states there is a community of pro- 
 
 1 1 Froland, M6moires, ch. 1, ^ 7, 8. 
 
 2 Id.; Henry on Foreign Law, 31. See also 1 Boullenois, ch. 1. 
 p. 421 ; Id. p. 467, 468; Merlin, Rupert. Autoris. Maritale, ^ 10. 
 
 3 1 Burge, Comm. on Col. and For. Law, Ft. 1, ch. 7, ^ 2, p. 276, 302. 
 
 4 Rodenburg, De Divers. Stat. tit. 2, ch. 5, ^ 9 ; 2 Boullenois, Appx, 
 p. 39. — It may be useful here to state, (once for all,) that, in referring 
 to the laws of different countries, I generally state them as they formerly 
 were, without any attention to the changes which they may actually have 
 undergone. The reasoning of the foreign jurists upon this subject would 
 be rendered exceedingly obscure, and sometimes incorrect in any other 
 way ; and the object of this work is not so much to show what particular 
 conflicts of laws may now arise from the present jurisprudence of a par- 
 ticular country, as to illustrate the principles which different jurists have 
 adopted in solving questions relating to the conflicts of laws generally. 
 See 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, ^ 2, p. 27G to
 
 238 . CONFLICT OF LAWS. [CH. VL 
 
 perty between husband and wife ; in others none ; and 
 in others again, mixed rights and qualified claims/ 
 
 § 127. Boullenois has put several cases, showing the 
 practical difficulties of this conflict of laws. Suppose a 
 husband domiciled in a place where he cannot bind his 
 wife, if he contracts alone and without her, although 
 she is under his marital power and authority; and the 
 husband should go to, and contract in a place, where, 
 by reason of this authority, he can bind his wife by 
 binding himself; w"ill the latter contract bind her? 
 He answers in the negative ; because the obligation of 
 the wife does not spring from the nature of the con- 
 tract, nor from the place of the contract, but from the 
 marital authority, which has no such effect in the place 
 of his domicil.^ In Brittany, formerly, when a husband 
 and wife were each bound in soUdo for the same contract 
 or debt, payment was to . be first sought out of the 
 effects of the husband. But in Paris, upon a like con- 
 tract, the effects of the husband and w^ife were formerly 
 indiscriminately bound. Suppose, then, that at that 
 period married persons, domiciled in Brittany, had gone 
 to Paris and there contracted, or that married persons 
 domiciled in Paris had gone to Brittany and there con 
 tracted, in what manner should the creditor seek pay- 
 ment ? Boullenois seems to have held that in such a 
 case the laws were to be followed, which regulate the 
 estate and condition of the w^ife, that is to say, the laws 
 of her domicil.^ 
 
 p. 332, where there will be found a summary of the laws of Holland on 
 the subject of this chapter. 
 
 ^ 1 Burge, Comm. on Col. on For. Law, ch. 7, ^ 1 to t^ 8, p. 262 to 
 p. 561 ; Henry on Foreign Law, ch. 1, ^ 3, p. 10, 36, note; Id. 9 
 1 Boull. Obs. 15, p. 193; Id. Princ. G6n. 8, p. 8. 
 
 2 2 Boullenois, Obs. 46, p. 407. 3 Jd. p. 468, 469. 
 
 r, ■
 
 CH. VI.] MARRIAGES INCIDENTS TO. 239 
 
 § 128. It is hardly possible to enumerate the different 
 rules adopted in the customary law or in the positive 
 law of different provinces of the same empire, upon the 
 subject of the rights of husband and wife. In some 
 places the laws, which place the wife under the author- 
 ity of her husband, extend to all her acts, as well 
 to acts inter vivos, as to acts testamentary. In others, 
 the former only are prohibited. In some places, the 
 consent of the husband is necessary to give effect to 
 the contracts of the wife. In others, the contract is 
 valid, but is suspended in its execution during the life 
 of the husband. In some places, the wife has no power 
 over the administration of her own property. In others 
 the prohibition is confined to property merely dotal, wnd. 
 she has the free disposal of her other property, which is 
 called paraphernal} 
 
 § 129. But not to perplex ourselves with cases of a 
 provincial and unusual nature, let us attend to the 
 differences on this subject in the existing jurisprudence 
 of two of the most polished and commercial States of 
 Europe, in order to realize the variety of questions 
 which may spring up and embarrass the administration 
 of justice in the tribunals of those countries. 
 
 § 130. The present Code of France does not under- 
 take to regulate the conjugal association as to property, 
 except in the absence of any special contract, w^hich 
 special contract the husband and wife may, under cer- 
 tain limitations, make, as they shall judge proper. 
 When no special stipulations exist, the case is governed 
 
 1 2 Boullenois, Obser. 32, p. 11 ; 1 Domat, B. 1, tit. 9, p. 16fi, 167; 
 Id. ^4, p. 179, 180, &c. See also 1 Froland, M6m. per tot.; Merlin, 
 Repert. Autoris. Maritale, § 10 ; 1 Barge, Comm. on Col. and For. Law, 
 Pt. I, ch. 6, ^ 1, p. 201 to p. 244 ; Id. ch. 7, § 1 to § 7, p. 262 to p. 561.
 
 240 CONFLICT OF LAWS. [CH. VI. 
 
 by "what is denominated the rule of community, Le 
 regime de la commiinaide. This community, or nuptial 
 partnership, generally extends to all the movable pro- 
 perty of the husband and wife, and to the fruits, in- 
 come, and revenues thereof, whether it is in possession, 
 or in action, at the time of the marriage, or it is subse- 
 quently g-cquired. It extends also to all immovable 
 property of the husband and wife acquired during the 
 marriage ; but not to such immovable property as either 
 possessed at the time of the marriage, or which came 
 to them afterwards by title of succession, or by gift.^ 
 The property thus acquired by this nuptial partnership, 
 is liable to the debts of the parties existing at the time 
 of the marriage ; to the debts contracted by the hus- 
 band during the community, or by the wife during the 
 community with the consent of the husband ; and to 
 debts contracted for the maintenance of the family, and 
 other charges of the marriage. As in common cases of 
 partnership, recompense may be claimed and had for 
 any charges, which ought to be borne exclusively by 
 either party. The husband alone is entitled to adminis- 
 ter the property of the community ; and he may alien, 
 sell, and mortgage it without the concurrence of the 
 wife. He cannot, however, dispose, inter vivos, by gra- 
 tuitous title, of the immovables of the community, or of 
 the movables, except under particular circumstances ; and 
 testamentary dispositions made by him cannot exceed 
 his share in the community.^ The community is dis- 
 solved by natural death, by civil death, by divorce, by 
 separation of body, or by separation of property. Upon 
 
 1 Code Civil of France, art. 1387 to 1408 ; Id. art. 1497 to 1541. 
 
 2 Id. art. 1409 to 1440.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 241 
 
 separation of body, or of property, the wife resumes her 
 free administration of her movable property, and may 
 alien it. But she cannot alien her immovable property 
 without the consent of her husband, or without being 
 authorized by law upon his refusal. Dissolution of the 
 marriage by divorce gives no right of survivorship to 
 the wife ; but that right may occur on the civil death 
 or the natural death of the husband. Upon the death 
 of either party, the community being dissolved, the 
 property belongs equally to the surviving party, and to 
 the heirs of the deceased, in equal moieties, after the 
 due adjustment of all debts, and the payment of all 
 charges, and claims on the fund.^ 
 
 § 131. Such is a very brief outline of some of the 
 more important particulars of the French Code, in re- 
 gard to the property of married persons, in cases of 
 community. The parties may vary these rights by 
 special contract, or they may marry under what is called 
 the dotal rule Le regime dotal. But it would carry us 
 too far to enter upon the consideration of these pecu- 
 liarities, as our object is only to point out some of the 
 more broad distinctions between the English and the 
 French law, as to the effects of marriage. 
 
 § 132. In regard to the personal rights, and capaci- 
 ties, and disabilities of the parties, it may be stated, 
 that, independent of the ordinary rights and duties of 
 conjugal fidelity, succor, and assistance, the husband 
 becomes the head of the family ; and the wife can do no 
 act in law without the authority of her husband. She 
 cannot, therefore, without his consent, give, alien, sell, 
 mortgage, or acquire property. No general authority. 
 
 1 Code Civil of France, art. 1441 to 1496. 
 21
 
 242 CONFLICT OF LAWS. [CH. VL 
 
 even though stipulated by a marriage contract, is valid, 
 except as to the administration of the property of the 
 wife. But the wife may make a will without the au- 
 thority of her husband. If the wife is a public trader, 
 she may, without the authority of her husband, bind 
 herself in whatever concerns her business ; and in such 
 case she also binds her husband, if there is a commu- 
 nity between them.' 
 
 § 133. If we compare this nuptial jurisprudence, 
 brief and imperfect as the outline necessarily is, with 
 that of England, it presents, upon the most superficial 
 examination, very striking differences. In the first 
 place, as to personal rights, capacities, and disabilities, 
 the law of England, with few exceptions, (which it is 
 unnecessary here to mention,) places the wife com- 
 pletely under the guardianship and coverture of the 
 husband. The husband and wife are, in contemplation 
 of law, one person. He possesses the sole power and 
 authority over the person and acts of the wife ; so that, 
 as Mr. Justice Blackstone has well observed, the very 
 being, or legal existence of the wife, is suspended dur- 
 ing the marriage, or at least, is incorporated and con- 
 solidated into that of the husband.^ For this reason, a 
 man cannot grant any thing to his wife, or enter into 
 a covenant with her during his life, though he may de- 
 vise to her by will. She is incapable of entering into 
 any contract, executing any deed, or doing any other 
 valid act in her own name. All suits, even for personal 
 injuries to her, must be brought in the name of her 
 
 1 Code Civil of France, art. 212 to 226, art. 1426 ; 2 TouUier, Droit. 
 Civ. art. 618 to 655. 
 
 2 1 Bl. Coram. 441 ; 2 Story, Eq. Jurisp. ch. 36, § 1366 to 1429.
 
 CH. VI,] MARRIAGES — INCIDENTS TO. 243 
 
 husband and herself, and with his concurrence. Upon 
 the marriage, the husband becomes liable to all her 
 debts ; but neither the wife, nor her property, is liable 
 for any of his debts. In the Roman law, and (as we 
 have seen) in the French law, the husband and wife are, 
 for many purposes, considered as distinct persons, and 
 may have separate estates, contracts, rights, and inju- 
 ries.^ 
 
 § 134. In respect to property, in England, the hus- 
 band, by the marriage, independent of any marriage 
 settlement, becomes ipso facto entitled to all her per- 
 sonal or movable property of every description, in pos- 
 session, and in action, and may dispose of it at his 
 pleasure. He has also a freehold in her real estate 
 during their joint lives ; and if he has issue by her, 
 and survives her, he has a freehold also during his own 
 life in her real estate ; and an exclusive right to the 
 whole profits of it during the same period. There is 
 not any community between them in regard to proper- 
 ty, as in the French law. Upon his death she is simply 
 entitled to dower of one third of his real estate during 
 her life ; and he may, at his pleasure, by a testament- 
 ary disposition, deprive her of all right and interest in 
 his personal or movable estate,- although the whole of 
 it came to him from her by the marriage. During the 
 coverture she is also incapable of changing, transfer- 
 ring, or in any manner disposing of her real estate, ex- 
 cept with his concurrence ; and she is incapable of 
 making an effectual will or testament.^ 
 
 i 1 Bl. Comm. 441 ; 2 Stoiy, Eq. Jurisp. ch. 36, § 1366 to ^ 1429 •, 
 1 Brown, Civ. Law, 82 ; 2 Kent, Comm. Lect. 28, p. 129, &c. 3d edit. 
 
 2 2 Kent, Comm. Lect. 28, p. 129, &c. 3d edition ; 2 Black. Comm. 
 433.
 
 244 CONFLICT OF LAAVS. [CH. VI. 
 
 § 135. Now, these differences, (which are by no means 
 all which exist,) exemplified in the French laws and in 
 the English laws, are, for the most part, the very same 
 as exist in America between the States settled under 
 the common law, and those settled under the civil law ; 
 between those deriving their origin from Spain or 
 France, and those deriving their origin from England.^ 
 We may see at once, then, upon a change of domicil, 
 or even of temporary residence, from a state or coun- 
 try governed by the one law, to another governed by 
 the other law, what various questions of an interesting 
 and practical nature may, nay must, grow up from this 
 conflict of local and municipal jurisprudence. 
 
 § 135 a. The subject naturally divides itself into two 
 heads ; first, the effect of the marriage upon the per- 
 sonal capacities and incapacities of the wife, or in other 
 words, her disabilities and her powers, consequent upon 
 the marriage ; and secondly, the effect of the marriage 
 upon the rights and interests of the husband or wife, 
 or of both of them, in the property belonging to them 
 at the time of the marriage, or subsequently acquired 
 by them. We will examine them under these two se- 
 parate heads, although (as we shall presently see) some 
 of the considerations applicable to them mutually run 
 into each other. 
 
 § 136. And in the first place, as to the capacities and 
 disabilities of the wife. It is extremely difficult upon 
 the subject of the personal capacities and disabilities of 
 the wife to lay down any satisfactory rule, as to the 
 extent to which they are or ought to be recognized by 
 
 1 2 Kent, Comra. Lect. 28, p. 183, and note, 3d edit. See 1 Domat, 
 B. 1, tit. 9; Id. tit. 10. See Christy, Louisiana Digest, art. Husband and 
 Wife, and Louisiana Code, art. 121 to art. 133.
 
 CH. Vl] marriages INCIDENTS TO. 245 
 
 foreign nations. In general, she is deemed to have the 
 same domicil as her husband ; and she can during the 
 coverture acquire none other, stio Jure} Her acts, done 
 in the place of her domicil, will have validity or not, as 
 they are, or are not, valid there. But as to her acts 
 done elsewhere, there is much room for diversity of 
 opinion and practice among nations. We have seen, 
 that many of the civilians and jurists of continental 
 Europe hold, that the capacity and incapacity of mar- 
 ried women, as in other cases of the personality of laws, 
 accompany them everywhere, and govern their acts.^ 
 And Mr. Chancellor Kent has said, that as personal 
 qualities and civil relations of a universal nature, such as 
 infancy and coverture, are fixed by the law of the do- 
 micil, it becomes the interest of all nations mutually to 
 respect and sustain that law.^ This is true in a general 
 sense. But every nation will judge for itself, what its 
 own interest requires, and, in framing its own jurispru- 
 dence, will often hold acts valid within its own territo- 
 ries, which the laws of a foreign domicil might prohibit, 
 or might disable the parties from doing. 
 
 § 137. In considering this subject, it is material, at 
 least so far as foreign jurists are concerned, to distin- 
 guish between cases, where there has been a change of 
 domicil of the parties, and where there has not been 
 any such change of domicil. Where the domicil of 
 marriage remains unchanged, the acts of the wife, and 
 her power over her property in a foreign country, are 
 
 1 Ante, ^ 46. See on this subject, 1 Burge, Comm. on Col. and For. 
 Law, Pt. ], ch. 6, ^ 2, p. 244 to p. 262. 
 
 2 See ante, ^ 51, 55, 56, 57, 58, 60 ; Henry on Foreign Law, p. 50 ; 
 Fergusson on Marr. and Div, 334 to 336 ; Merlin, Rupert. Autoris. Ma- 
 ritale, § 10. 
 
 3 2 Kent, Comm. Lect. 39, p. 419, 3d edit. 
 
 21*
 
 246 CONFLICT OF LAWS. [CH. VL 
 
 held by many foreign jurists, to be exclusively governed 
 by the law of her domicil ; in other words, her acts are 
 valid, or not, as the law of her domicil gives her capa- 
 city or incapacity to do them.^ And the rule is ap- 
 plied to her immovable property, as well as to her mov- 
 able property. Thus, if by the law of her domicil she 
 cannot alien property, or cannot contract, except with 
 the consent of her husband, she cannot alien her pro- 
 perty, and cannot contract, without such consent, in a 
 foreign country, where no such restriction exists.^ But 
 suppose that the parties afterwards remove to a new 
 domicil, where the consent of the husband is not neces- 
 sary, is the law of the new domicil, as to the capacity 
 of the wife, to prevail, or that of the matrimonial domi- 
 cil ? This is a question upon which foreign jurists have 
 been greatly divided in opinion.^ 
 
 § 138. We may illustrate this distinction by a few 
 examples. Thus, for example, the law of England dis- 
 ables a married woman from making a will in favor of 
 her husband, or any other person ; the law of France 
 allows it. Suppose a husband and wife, married in and 
 subjects of England, should temporarily or permanently 
 become domiciled in France ; would a will of the wife 
 in France, in regard to her property in England, made 
 in favor of her husband or others, be held valid in Eng- 
 land?^ Many foreign jurists, among whom may be 
 
 1 Ante, ^ 51 to 55, ^ 57, 64, 65 ; post, ^ 141. 
 
 2 Merlin, Rupert. Autoris. Maritale, ^ 10, art. 2 ; Pothier, Cout. d'Or- 
 16ans, ch. 1, n. 7, 15 ; ante, ^ 51 to 54, ^ 04, 65, 69 ; Le Breton v. Miles, 
 8 Paige, R.261. 
 
 3 See Merlin, Repertoire, Effet R6troactif, ^ 2, 3, art. 5 ; Autorisation 
 Maritale, ^ 10 ; ante, ^ 55 to 62. See also 1 Burge, Coram, on Col. and 
 For. Law, Pt, 1, ch. 6, ^ 2, p. 244 to p. 2G2. 
 
 4 See Merlin, R6pert, Testament, ^ 1, 5, art. 1, 2, p. 309 to p. 319.
 
 CH. VI.] MARRIAGES — INCIDENTS TO. 247 
 
 enumerated Hertius, Paul Voet, John Voet, Burgundus, 
 Rodenburg, Pothier, and Merlin, hold the opinion that 
 the law of the new domicil, must in all cases of a change 
 of domicil, govern the capacities and rights of property 
 of married women, as well as their obligations, acts, and 
 duties.^ Froland (it should seem) would answer this 
 particular question upon principle in the affirmative, as 
 a mere question of capacity or incapacity, or status, of 
 the wife ; for he holds, that the capacity or incapacity 
 of married women to do things changes with their do- 
 micil ; and that acts, valid by the law of their original 
 domicil, if done in a new domicil, by whose laws they 
 are void, are to be deemed nullities.^ Thus, he says, 
 that a married woman, who is incapable by the law of 
 her domicil, where the Roman law {Droit Ecrit) prevails, 
 of entering into a suretyship for another, by the Senatiis 
 consiiltiim Velleianiim, or of contracting with her husband, 
 as in Normandy, if she goes to reside at Paris, where 
 no such law exists, is there deprived of that exception. 
 And, on the other hand, a woman married and living at 
 Paris, and afterwards going to reside in Normandy, or 
 in any other country, where the Roman law prevails 
 [Droit Ecrit), loses her capacity to enter into any such 
 contract, which she previously possessed.^ Yet Froland 
 
 1 Ante, ^ 55 to 62; post, ^ 140, 141. See also 1 Burge, Comm. on 
 Col. and For. Law, Pt. 1, ch. 6, ^ 2, p. 253 to p. 261, 
 
 2 1 Froland, M6m. 172 ; ante, \ 55. 
 
 3 1 Froland, M6m. 172; 1 Boullenois, Obser. 4, p. 61 ; 2 Boullenois, 
 Obser. 32, p. 7, 13. Froland has some subtile distinctions on this subject, 
 which, to say the least of them, are not in a practical sense very clear. 
 Lest I should misstate the purport of his remarks, I will quote them in the 
 original, having already referred to them in another place. "Quand il 
 s'agit de I'etat universe! de la personne, abstraction faite de toute matiere 
 r^elle, abstracle ab omni materia reali, en ce cas le statut, qui a commence
 
 248 , CONFLICT OF LAWS. [CH. VL 
 
 has in some other places made distinctions, and insisted 
 on a different rule, as applicable to the rights of mar- 
 ried women in the property of their husbands, holding 
 that those rights are governed by the law of the place 
 of the marriage, rather than by that of the subsequent 
 actual domicil.^ 
 
 § 139. Other foreign jurists, however, have given a 
 different response to the general question ; for we have 
 already seen, that in regard to personal laws, there is 
 much conflict of opinion among them, how far these 
 laws are affected by any change of domicil.^ Huberus 
 (as we have seen) holds a somewhat modified opinion.^ 
 Bouhier maintains the opinion in the broadest terms, 
 that in respect to the rights derived from the marital 
 power (Puissance mmitale\ the law of the matrimonial 
 domicil determines the state or condition of the wife, 
 
 a fixer sa condition, conserve sa force et son authority, et la suit par tout 
 en quelque endroit, qu'elle aille. — Mais quand il est question de I'habilete 
 ou inhabilet6 de la personne, qui a chang6 de domicile, a /aire une certaine 
 chose, alors le statut, qui avoit r^gle son pouvoir, tombe entierement a son 
 6gard, et cede tout son empire a celui dans le territbire duquel elle va de- 
 meurer." 1 Froland, M6m. 171, 172 ; ante, ^ 55. See 2 Boullenois, 
 Observ. 32, p. 7, to p. 10; Bouhier, Cout. de Bourg. ch. 22, ^ 6 to 14 ; 
 Id. § 30 to 38; Id. ^ 148, 149. 
 
 1 1 Froland, M6m. Pt. 2, ch. 4, p. 340 to p. 408 ; 2 Boullenois, Obser. 
 32, p. 22, 23, 29. 
 
 2 See ante, ^ 55 to ^ 02 ; 1 Boullenois, Observ. 13, p. 187, 188 to p. 
 196 ; Id. p. 200 ; 2 Boullenois, Observ. 32, p. 2 ; Id. Observ. 32, p. 14, 
 15, 17, 19 to Id. Observ. 37, p. 204 ; Rodenburg, De Div. Stat. tit. 2, ch. 
 1,^3; Id. Pt. 2, ch. 1, ^ 1 ; 2 Boullenois, Appx. p. 12 ; Id. 55, 56, and 
 2 Boullenois, Observ. 32, p. 22 to p. 28 ; Henry on Foreign Law^, p. 50, 
 51 ; Merlin Rupert. Autoris. Maritale, ^ 10 ; Id. Effes Retroactif, ^ 3, n. 2, 
 art. 3 ; Bouhier, Cout. de Bourg. ch. 23, ^ 4 to ^ 108, and especially^ 67 
 and 68; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 6, ^ 2, p. 253 
 to p. 262. 
 
 3 Ante, ^60, 61; post, §145; Huberus, Lib. 1, tit. 3, De Conflict. 
 Leg. § 12, 13 ; Id. § 9.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 249 
 
 and by consequence the extent of the marital authority ; 
 and this state or condition of the wife being once fixed, 
 cannot be afterwards changed by any change of domi- 
 cil.i Dumoulin seems to have entertained the same 
 opinion.^ Merlin also at one time bent the whole 
 strength of his acknowledged ability, to establish the 
 doctrine, that the law of the matrimonial domicil, and 
 not of the new domicil, as to the capacity and inca- 
 pacity of the wife, ought to prevail. He reasoned it 
 out principally in his examination of the subject of the 
 marital power, or the incapacity of the wife, according 
 to certain local laws, to do any valid act, make any con- 
 veyance, or engage in any contract, without the consent 
 and authorization of her husband. And he then held, 
 that this incapacity is not changed by a change of do- 
 micil to a place, in whose laws it has no existence.^ 
 After maintaining this opinion (as he himself says) for 
 forty years, he has recently changed it, and adhered 
 to the doctrine, that the law of the new domicil ought 
 to govern.^ In discussing the nature and extent of the 
 parental authority, conferred by the domicil of birth, in 
 regard to foreign property, he seems to have been aware 
 of the difficulties of his early doctrine ; and he has said, 
 with great truth, that to put an end to all the difficul- 
 ties of such cases, it is necessary to make a uniform 
 law, not for France only, but for the world ; for the set- 
 tlement of a foreigner in France, or of a Frenchman in 
 
 1 Bouhier, Cout. de Bourg. ch. 22, ^ 22 to 27 ; Id. § 45 to 47 ; Id. ^ 48 
 to 66 ; Id. ^ 69, 70 ; Id. ^ 79, 80, 82, 83 ; Id. § 89, 90 ; Id. ^ 147. 
 
 2 Molin. Oper. Comment, ad Cod. Lib. 1, tit. 1,1. 1 ; Conclus. De Sta- 
 tutis. Tom. 3, p. 555, edit, 1681. 
 
 3 Bouhier, Cout. de Bourg. ch. 22, § 22 to 32, ^ 45. 
 
 4 Merlin, R6pert, EfFet R6troactif, ^ 3, 2, art. 5, p. 15 ; Id. Autorisa- 
 lion Maritale, ^ 10, art. 4, p. 243, 244 ; Id. Majority, ^ 5 ; ante, ^ 58, 59.
 
 250 CONFLICT OP LAWS. [CH. VI. 
 
 a foreign countiy, would at once raise them anew, not- 
 withstanding all the regulations of the present Civil 
 Code of France.^ His reasoning upon the testamentary 
 power, and the manner, in which it is affected by the 
 sitiis of the property, also affords very strong proof of 
 the intrinsic infirmity of all general speculations on this 
 subject.2 
 
 § 140. It has been already intimated, that the oppo- 
 site opinion has been maintained by many jurists. Let 
 us briefly refer to the opinions of a few of them. Her- 
 tius has put the following case. By the law of Utrecht 
 married persons are incapable of making a will of pro- 
 perty in favor of each other ; not so in Holland. Is 
 such a will of property in Utrecht, made by married 
 persons in Holland valid ? Or, e contra, is such a will, 
 made by married persons in Utrecht, of property in Hol- 
 land, valid ? He answers the former question in the 
 negative, and the latter in the affirmative.^ 
 
 § 140 a. The language of Burgundus is still more 
 direct, he affirming in every case of this sort, as to the 
 rights and powers of the husband and wife, that they 
 are regulated by the law of the new domicil. Proinde, 
 lit sciamiis, uxor in potestate sit mariti, necne, qua cetate mi- 
 nor contrahere possit, et ejusmodi. respicere oportet ad legem 
 ciijuscpie domicilii. Hcec enim imprimit qucUitatem personam, 
 atque adeo naturam ejus afficit, ut qiiocunque terrarum sit 
 transitura, incapacitatem domi adeptam, nan aliter qiiam 
 cicatricem in corpore foras circumferat. Consequenter di- 
 
 J Merlin, R6pert. Puissance Paternelle, ^ 7, art. 1, 2, 3. 
 
 2 Id. Testament, H' § ^ ^rt. 1, 2, p. 309 to p. 319. 
 
 3 Hertii, Opera, De Collis. Leg. ^ 4, p. 142, ^42, 43, edit. 1737 ; Id. 
 p. 201, edit. 1716.
 
 OH. VI.] MARRIAGES INCIDENTS TO. 251 
 
 cetmis, si midaverit domicilium persona, novi domicilii condi- 
 iionem induere} 
 
 § 141. Rodenburg has distinguished the cases on this 
 subject into two sorts; (1) those in which there is no 
 change of domicil of the married parties ; (2) and those 
 in which there is a change of domicil. In the former 
 case he holds, that the capacity and incapacity by the 
 law of the domicil extends everywhere. In the latter 
 case, that the capacity and incapacity of the new domi- 
 cil attach.^ So that, according to him, the disabilities 
 of a wife by the law of her domicil attach to all her 
 acts, wherever done, at home or abroad, as long as the 
 domicil exists.^ But upon a hond fide change of domi- 
 cil by her husband, she loses all disabilities, not exist- 
 ing by the law of the new domicil, and acquires all the 
 capacities allowed by the latter.^ Hence, if a husband, 
 who by the law of his domicil has his wife subject to 
 his marital authority, changes his domicil to a place, 
 where no such law exists, or e contra, if he changes his 
 domicil from a place, where the wife is exempt from the 
 marital power, to one where it exists ; in each case the 
 wife has the capacity or incapacity of the new domicil. 
 Fac, igitur, viriim, qui per leges loci, ubi degit, uxor em ha- 
 heat in potestate, collocare domicilium alio, uhi in pot es- 
 tate, virontm itxores non sunt ; vel vice versa. Dicen- 
 dumne erit, induere uxor em potest atem qua priiis liber- 
 dta, et exuere, cui alUgata est ? In affirmationem sententiam 
 deduci videmur per iradita Burgundi. Et recte ; personce 
 enim status et conditio, cum iota regatur a legibiis loci, cui 
 
 1 Burgundus, Tract. 2, n. 7, p. 61. 
 
 2 Rodenburg, de Div. Stat. tit. 2, ch. 1,^1; Id. Pt. 2, ch. 1, § 1 ; Id. 
 ch. 4, § 1 ; 2 BouUenois, App. p. 10, 11 ; Id. p. 55, 56 ; Id. p. 63. 
 
 3 Ibid. 4 Ibid,
 
 252 CONFLICT OF LAWS. [CH. VI. 
 
 ilia sese i^er domiciliwn suhdiderit, idiqiie mutato domicilio, 
 midari necesse est personce conditionem} Boullenois holds 
 on this point the same opinion.^ Rodenburg puts ano- 
 ther case. By the law of Holland married persons may 
 make a will in favor of each other ; by the law of 
 Utrecht, not. Suppose a man and wife, who are mar- 
 ried in Holland, move to TJtrecht, is the will between 
 them, previously made, good ? And he decides in the 
 negative.^ 
 
 § 142. Boullenois, however, has himself put a case, 
 which he seems to decide upon a ground, which breaks 
 in, in some measure, upon the general doctrine. He 
 supposes the case of a woman domiciled, and married 
 in a country, using the Roman law {Droit Ecrit,) to a 
 man belonging to the same country. She has the right 
 and capacity by that law to enjoy her parapliernal 
 property there, and to alienate it independently of her 
 husband,^ and without his being entitled to intermeddle 
 in the administration of it in any manner. He then 
 puts the question, whether, if her husband goes to 
 reside at Paris (where no such right exists,) then she 
 falls under his marital authority, so as to lose from that 
 period the administration and alienation of her para- 
 ■plicrnal property ? Boullenois admits, that she falls 
 under the marital authority ; but at the same time he 
 contends, that she has, notwithstanding, the right of 
 administering and alienating her parapJwnal property ; 
 
 1 Rodenburg, De Divers. Stat. tit. 2, Pt. 2, ch. 1, ^ I ; 2 Boullenois, 
 App. p. 55, 56 ; Burgund. Tract. 2, n. 7. 
 
 2 1 Boullenois, Observ. 4, p. 61, 62; Id. Observ. 16, p. 205; 2 Boulle- 
 nois, Observ. 32, p. 7 to p. 51; Id. p. 81, 82 ; Id. Observ. 35, p. 93 to p. 
 112. 
 
 3 Rodenburg, De Div. Stat. tit. 2, Pt. 2, ch. 4, ^ 1 ; 2 Boullenois, 
 Appx. p. 63 ; Id. p. 81 ; Id. Observ. 35, p. 93 to p. 112. 
 
 4 1 Domat, B. 1, tit. 9, p. 167 ; Id. § 4, p. 179, 180.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 253 
 
 because it was given to her by the contract of marriage, 
 supported by the law of her matrimonial domicil ; and 
 that her husband cannot by a change of domicil ex- 
 tinguish her right, founded upon such authentic titles. 
 And though she cannot act without the consent of her 
 husband in such administration and alienation ; yet he 
 is bound to give such consent.^ But Boullenois is 
 compelled to admit other exceptions to the doctrine, 
 where other considerations are mixed up in the case. 
 Thus he says : Suppose a woman is married at Paris, 
 and has a community of property with her husband 
 there, and she has property at Aix or Toulouse, and 
 her husband goes to reside at either of these places ; 
 the question is, whether she is at liberty to sell her 
 property there without the authority or consent of her 
 husband ; and he holds, that she cannot sell her pro- 
 perty there without the consent of her husband, al- 
 though she was married at Paris. The reason he 
 assigns is ; because in the countries governed by their 
 own customary law, the property of a married woman 
 in community is deemed dotal property; and is pre- 
 sumed to have been brought there by the parties, as 
 such ; and that such property, as dotal property, is less 
 alienable at Aix and Toulouse than in countries governed 
 by their customary law ; and that in those Provinces, 
 as well as in Paris, the husband has the right of the 
 administration of dotal property during the marriage ; 
 so that the change of domicil does not make the right 
 of the husband to cease. But (he adds) if the woman, 
 married at Paris, had no community of property, and 
 having the administration thereof, came to reside at Aix 
 
 1 2 Boullenois, Observ. 32, p. 20, 21 ; Id. p. 22 to p. 28. See Bouhier, 
 Cout. de Bourg. ch. 22, ^ 28 to ^ 30 ; Id. ^ 40 to ^ 45. 
 CONFL. 22
 
 254 CONFLICT OF LAWS. [CH. VL 
 
 or Toulouse, then she might sell her property without 
 the authority of her husband, even if situate in Paris ; 
 because she is no longer under the authority of her 
 husband, who has no interest in the sale. But, if there 
 were no such community, then he holds, that she might 
 sell.^ 
 
 § 143. Passing from the consideration of the personal 
 capacities, disabilities, and powers of the wife, and of 
 the examination of the different opinions of foreign 
 jurists respecting them in cases where there has been 
 no change of domicil, and in cases, where there has 
 been such a change, let us in the next place examine 
 into the effect of marriage upon the mutual property of 
 the husband and wife, and their respective rights in 
 and over it.^ The marriage may have taken place with 
 an express nuptial contract, or arrangement, as to the 
 property of the parties ; or it may have taken place 
 without any such contract, or arrangement. The prin- 
 cipal difficulty is not so much to ascertain, what rule 
 ought to govern in cases of an express nuptial contract, 
 (at least, where there is no change of domicil,) as what 
 rule ought to govern in cases where there is no such 
 contract, or no contract, which provides for the emer- 
 gency. Where there is an express nuptial contract, 
 that, if it speaks fully to the very point, will generally 
 be admitted to govern all the property of the parties, 
 not only in the matrimonial domicil, but in every other 
 
 1 2 Boallenois, Observ. 32, p. 22, 23, 24. See 2 Froland, M6m. 1007 
 to 1064 ; Bouhier, Cout. de Bourgr. ch. 22, ^ 5 to ^ 10 ; Id. § 28 to § 32 ; 
 J. Voet, ad Pand. Lib. 5, tit. 1, ^ 101 ; 1 Burge, Coram, on Col. and 
 For. Law, Pt. 1, ch. 6, ^ 2, p. 244 to p. 2fi2, 
 
 ~ See 1 Burge, Comra. on Col. and For. Law, Pt. 1, ch. 7, ^ 8, p. 599 
 to p. 640.
 
 CH. VI.] MARRIAGES — INCIDENTS TO. 255 
 
 place, under the same limitations and restrictions, as 
 apply to other cases of contract.^ But where there is 
 no express nuptial contract at all, or none speaking to 
 the very point, the question, what rule ought to govern, 
 is surrounded with more difficulty. Is the law of the 
 matrimonial domicil to govern ? Or is the law of the 
 local situation of the property ? Or is the law of the 
 actual or new domicil of the parties? Does the same 
 rule apply to movable property as to immovable pro- 
 perty, when it is situated in different countries ? - 
 Boullenois has remarked, that even on the subject of 
 marriage contracts, the law of the place of the contract 
 will not always decide all the questions arising from 
 it.^ Many of the questions touching it must be decided 
 by the law of the domicil of the parties, and sometimes 
 by the law of the domicil of one of them.^ 
 
 § 144. Two classes of cases naturally present them- 
 selves in considering this subject. First, those, where 
 during the marriage there is no change of domicil ; 
 secondly, those, where there is such a change.^ 
 
 1 See Le Brun, Trait6 de la Communaut6, Liv. 1, ch. 2, ^ 2 ; Murphy 
 V. Murphy, 5 Martin, R. 83 ; Lashley v. Hogg, Robertson's Appeal Cases, 
 4 ; Feaubert v. Turst, Preced. in Chan. 207, 208. This doctrine has 
 been fully recognized in England, in the case of Anstruther v. Adair, 
 
 2 Mylne & Keen, 513 ; post, ^ 184 ; LeBreton v. Miles, 8 Paige, R. 261. 
 
 2 In some foreign Codes, there are express provisions, that marriage 
 contracts shall not fix the rights of the couple according to the law of 
 foreign countries. In France, there is an effective prohibition of contracts 
 regulating marriage rights by the old customs of the provinces wiiich it 
 has abolished. Code Civil, art. 1390. See also Bourcier v. Lanusse, 
 
 3 Martin, R. .581. 
 
 3 1 Boullenois, Prin. G6n. 48, p. 11. See also Dig. Lib. 5, tit. 1, 
 I. 65. 
 
 4 Ibid. 
 
 5 See 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, ^ 8, p. 599 
 to p. 640.
 
 256 CONFLICT OF LAWS. [CH. VL 
 
 § 145. And first, in cases where there is no change 
 of domicil, and no express nuptial contract. Huberus 
 lays down the doctrine, in broad terms, that not only 
 the contract of the marriage itself, properly celebrated 
 in a place according to its laws, is valid in all other 
 places ; but that the rights and effects of the marriage 
 contract, according to the laws of the place, are to be 
 held equally in force everywhere.^ Thus, he says, in 
 Holland married persons have a community of all their 
 property, unless it is otherwise agreed in their nuptial 
 contract ; and, that this will have effect in respect to 
 property situate in Friesland, although in that province 
 there is only a community of the losses and gains, and 
 not of the property itself Therefore, (he adds,) a 
 Frisian married couple remain after their marriage the 
 separate owners, each of their own property, situated 
 in Holland. But whenever a married couple remove 
 from the one province, (Holland,) into the other, (Fries- 
 land,) the property, which afterwards comes to either of 
 them, ceases to be in community, and is held in distinct 
 proprietary rights. But their antecedent property, held 
 in community, remains in the state or right, in which 
 they originally possessed it. Porro, non tantum ipsi con- 
 tractus ipsceque nuptice certis locis rite cciehratce, iihique pro 
 jiistis et validis habentiir ; sed etiam jura et effccia con- 
 tractmim niqytiarumqiie, in iis locis rccepta, ubique vim siiam 
 oUinehimt. In Hollandia conjuges halent omnium honorum 
 comiinionem, quatenus aliter pactis dotalihus non convenit. 
 Hoc etiam locum hahebit in bonis sitis in Frisia, licet ibi 
 tantum sit communio quasius et damni, non ipsormn bono- 
 
 1 Huberus, Lib. 1, tit. 3, ^ 9 ; post, ^ 1G9 ; 1 Burge, Comm. on Col. 
 and For. Law, Pt. 1, ch. 6, ^ 2, p. 244 to p. 262.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 257 
 
 rum. Ergo et Frizii conjugcs manent singiili rerum siia- 
 rum, etiam in HoUandia sitariim, domini; cum primiim 
 vero conjugcs migrant ex una provincia in aliam, bona dein- 
 ceps quce, alteri advcniiint, cessant esse commvnia, mancnf- 
 qiie disiinctis proprietcdihits ; sic ut res antea communes 
 factcB, manent in eo statu juris, quem induerunt} The ex- 
 ample he thus puts, obviously shows that his doctrine 
 is applied to cases where there is no express contract. 
 
 § 145 a. Mr. Chancellor Kent has applied the doc- 
 trine of Huberus in the case of an express ante-nuptial 
 contract between the parties ; and has laid down the 
 rule, that the rights, dependent upon nuptial contracts, 
 are to be determined by the Lex loci contractus? This 
 may be generally correct, in regard to cases of express 
 or of implied nuptial contracts ; and it is probable that 
 none other were at the time in the mind of the learned 
 judge. But we shall presently see, that, as a general 
 question, in regard to the universal operation of the 
 Lex loci matrimonii, there is much controversy upon the 
 subject among foreign jurists. 
 
 § 146. There are many distinguished jurists, who, in 
 common with Huberus, maintain the opinion, that the 
 incidents and effects of the marriage upon the property 
 of the parties, wherever it is situate, are to be governed 
 by the law of the matrimonial domicil, in the absence 
 of all other positive arrangements between the parties.^ 
 
 1 Huberus, Lib. 1, tit. 3, De Conflict. Leg. § 9 ; post, §> 169. 
 
 2 See De Couche v. Savatier, 3 John. Ch. R. 211 ; 2 Kent, Comm. 
 Lect. 39, p. 458, 459, 3d edit. See also Feaubert v. Turst, cited in Ro- 
 bertson's Appeal Cases, 1, and Lashley v. Hogg, 1804, cited Id. 4 ; Le 
 Breton v. Miles, 8 Paige, R. 261. 
 
 3 Merlin R6pert. Commun. de Biens, § 1, art. 3 ; 1 BouUenois, p. 660 
 to p. 673 ; lb. Observ. 29, p. 732 to p. 818 ; Rodenb. De Div. Stat. tit. 
 2, ch. 5, § 12, 13, 14, 15 ; 2 BouUenois, Appx. p. 41 to p. 46 ; 1 Burge, 
 
 22*
 
 258 CONFLICT OF LAWS. [CH. VI. 
 
 Thus, if English subjects are married in England with- 
 out any nuptial contract, the husband, being entitled 
 by the law of England to all the personal or movable 
 property of his wife, will be entitled to it wherever it 
 may be situated, whether in England or in any foreign 
 country. And his rights, it would seem, in her immo- 
 vable property, wherever it may be situated, would, in 
 the opinion of many of the foreign jurists, be exclu- 
 sively regulated by the law of England.^ So, on the 
 other hand, French subjects, married in France, without 
 any contract whatever, would hold (as we have seen ^) 
 certain kinds of their property in community general- 
 ly ', and this rule would apply as well to the like pro- 
 perty situated in foreign countries, as to that situated 
 in France. 
 
 § 147. The grounds upon which this opinion has 
 been maintained, are various. Some foreign jurists hold, 
 that the law of the matrimonial domicil attaches all the 
 
 Coram, on Col. and For. Law, Pt. 1, ch. 6, ^ 2, p. 244 to p. 253 ; Id. ch. 7, 
 § 8, p. 599 to p. 609. 
 
 1 Hertii Opera, De Collis. Leg. ^ 47, p. 143, edit. 1737 ; Id. p. 204, 
 edit. 1716. — Many jurists make no distinction in the application of the 
 doctrine of the tacit contract of marriage between movable and immova- 
 ble property, and consider both to be governed by the law of the domicil 
 of marriage. Others again, distinguish between them. Foreign jurists 
 commonly in the term, " biens," include all sorts of property, movable and 
 immovable, in their discussions on this subject. See Merlin, Rupert. Au- 
 toris. Maritale, ^ 10, art. 2 ; Id. Majority, § 5 ; Id. Communaut6 de Biens, 
 ^ 1, art. 3 ; Voet, De Statut. ^ 4, ch. 2, n. 16 ; Rodenburg, De Div. Stat. 
 Pt. 1, tit. 2, ch. 5, ^ 13, 14, 15 ; Id. Pt. 2, tit. 2, ch. 4, ^ 1 ; 2 Boulle- 
 nois, Appx. p. 41 to 46 ; Id. p. 63 ; 1 BouUenois, p. 673, 683, 767 ; 2 
 Boullenois, p. 81, 88 ; Observ. 35, p. 93, 94 ; Id. Observ. 37, p. 266, 
 277 ; 1 Hertii Opera, De Collis. Leg. ^ 46, 47, p. 143, 144, edit. 1737; 
 Id. p. 203, 204, edit. 1716 ; Livermore, Dissert. ^ 89, p. 73, 74 ; Hube- 
 rus, Lib. 1, tit. 3, ^ 9 ; Bouhier, ch. 22, ^ 79, p. 429. See also 1 Burge, 
 Comm. on Col. and For. Law, Pt. 1, ch. 7, ^ 8, p. 599 to p. 609. 
 
 2 Ante, § 130.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 259 
 
 rights and incidents of marriage to it, proprio vigore, 
 and independent of any supposed consent of the par- 
 ties.^ Others hold that there is in such cases an im- 
 plied consent of the parties to adopt the law of the 
 matrimonial domicil by way of tacit contract ; and then 
 the same rule applies, as is applied to express nuptial 
 contracts. Dumoulin was the author, or at least the 
 most distinguished advocate, of this latter doctrine.^ 
 Quia per prcedida inest (says he) tacihmi pactum, quod 
 mariiiis IncraUtiir dotem convcntam, in casu, et pro propor- 
 tione statuti illius domicilii, quod prcBvidetur, et intelligHur ; 
 et istiid tacitmn piactum, nisi conventimi fiierit, intrat in 
 actionem ex stipidatu rei iixorice, et illam informat. Itaque 
 semper remanet forma ah initio impressa? And he adds, 
 that it applies to all property, whether situate, and 
 whether movable or immovable ; Non solum inspiciatiir 
 statutum vel consuetiido primi illius domicilii pro lonis siih 
 illo sitis. JSed locum habebit uUqiie etiam extra fines et 
 territoriiim dicti statuti, etiam interim correpti; et Jioc indis- 
 tincte, sive bona dotalia sint molilia, sive immoUlia, uhicun- 
 que sHa, sive nomina. Ratio punctiialis specifica procedat 
 in vim taciti pacti ad formam statuti ; vcluti, quod taciturn 
 pactum pro expresso liabetur^ 
 
 § 148. The opinion of Dumoulin, that the law of the 
 
 1 See 1 Boullenois, Obser. 29, p. 741, 750, 757, 758; Huberus, Lib. 1, 
 tit. 3, De Confi. Leg. ^ 9. 
 
 2 1 Boullenois, Obser. 29, p. 757. 
 
 3 Molin. Comm. ad. Cod. Lib. 1, tit. 1, 1. 1, Opera, Tom. 3, p. 555, 
 edit. 1681 ; 1 Froland, M6m. 62, 218 ; Livermore, Dissert. ^ 89, p. 73, 
 74 ; 1 Boullenois, Observ. 29, p. 756, 758. 
 
 4 Molin. Comm, ad Cob. Lib. 1, tit. 1, 1. 1 ; Conclus. De Statutis, 
 Opera, Tom. 3, p. 555, edit. 1681 ; 1 Froland, Mem. 61, 62, 63, 218 ; 
 Livermore, Dissert. \ 89, p. 73, 74 ; 1 Boullenois, Obser. 29, p. 757, 
 758.
 
 260 CONFLICT OF LAWS. [CH. VI. 
 
 place of the marriage constitutes the rule, by which 
 the rights of married persons are regulated, by a tacit 
 contract of the parties, in the absence of any express 
 contract, according to the maxim. In contradihiis tacUe 
 veniiint ea, qiice sunt moris et consiietiidinis, has been 
 adopted by Bouhier, Hertius, Pothier, Merlin, and 
 other distinguished jurists.^ It is opposed, however, 
 b}' others of no small celebrity ; and the doctrine of 
 tacit contract in the case of marriage (as we shall see) 
 is treated by some of them as a mere indefensible and 
 visionary theory.^ D'Argentre, and Froland, and Van- 
 der Muelin, are at the head of those who maintain, that 
 the law of the situs of the property constitutes the rule 
 to decide the rights of the marriage couple at all times, 
 and under all circumstances.^ D'Argentre says ; Pri- 
 miun, quod 3Iolmceus a simpUci consveiudinis disposiiione 
 
 1 Bouhier, Cout. de Bourg. ch. 23, § 69 to ^ 75, p. 458, 459 ; Id. ch. 
 26, per tot. p. 462 to p. 490 ; 1 Froland, M^m. 61 to 63 ; Id. 178 to 211 ; 
 Id. 214 to 222; Id. 274 ; Merlin, Rupert. Communauie de Biens, ^ 1, 
 art. 3 ; Pothier, Traite de la Communaute, art. 1, n. 10; 1 Heriii Opera, 
 De Collis. Leg. ^ 47, p. 143, edit. 1737; Id. p. 204, edit. 1716; post, 
 ^ 150, 151, 152; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, 
 § 8, p. 599 to p. 614. 
 
 2 Froland, in opposing the doctrine of tacit contracts, derived from the 
 supposed operation of the Lex Loci Matrimonii, says, Ce ne sont la que 
 des paroles, et rien au-dela. Mirificum illud Molinsei acumen ; des sub- 
 tiliies d'Esprit ; des Idees; des Chimeres; Eiifin des moyens, que la seule 
 imagination ^chauffee produit. Hac grandiloqueniia etiamsi Molioseus 
 personal, tamen aperie non est verum, quod dicit. 1 Froland, M6m. 316 ; 
 post, ^ 167. 
 
 3 D'Argentr6, In Briton. Leges. Des Donations, art. 218, Glos. 6, n. 
 33, Tom. 1, p. 655 to p. 657; Livermore, Dissert. ^ 95, p. 77 ; 1 Fro- 
 land, M6m. 192 to 200 ; Id. 220, 222 : Id. 316 ; 1 Boullenois, p. 673 to 
 p. 699 ; Id. Obser. 29, p. 732 to p. 736 ; Id. p. 740 to p. 750 ; Id. p. 757, 
 792; 2 Boullenois, Obser. 35, p. 110; Merlin, Repertoire Communaute 
 de Biens, ^ 1, art. 3, p. 110, 111 ; Livermore, Dissert ^ 92 to 106, p. 75 
 to p. 82 ; 1 Froland. Mem. 61 to 64 ; po.st, ^ 152 a, note 2, ^ 167, 168 : 
 1 ^urge, Comm. on Col and For. Law, Pt. 1, ch. 7, ^ 8, p. 609.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 261 
 
 elicet pariiwn conventionem d pactum, citra idlam conven- 
 tionem partium adjedam consududini, raiionem non hahd. 
 Alia enim vis d j-aiio, aliud et principium et causa ohliga- 
 tionis, quce a lege indiicitiir, alia ejus, qucc ah pado d con- 
 vcntione pariiwn proficiscitur} 
 
 § 149. It may be useful to bring together in this 
 place in a more exact form the opinions of some other 
 jurists of the highest reputation on this subject for the 
 purpose of exhibiting some of the differences, as well 
 as some of the coincidences, in the doctrines respectively 
 maintained by them. 
 
 § 150. Cochin holds the doctrine, that if the contract 
 of marriage contains no stipulation for community of 
 property, the law of the place, where the parties are 
 domiciled, and to which they submit by the contract of 
 marriage, must govern, not only as to property (hiens) 
 situate in that place, but as to property situate in all 
 other places.^ The rights of married persons (he adds) 
 over the property, which they then have, as well as 
 over that, which they afterwards acquire, ought to be 
 regulated by an uniform rule. If they have established 
 an express rule by the contract of marriage, that ought 
 to decide their rights as to all their property. If they 
 have made no stipulation, then the law of the place of 
 their common domicil establishes a rule for them ; 
 since they are presumed to submit themselves to it, 
 when they have not stipulated any thing to the con- 
 trary. 
 
 § 151. Le Brun is quite as explicit. After stating 
 
 1 D'Argentr6, In Briton, Leg. Des Donations, art. 218, Gloss. 6, n. 33, 
 Tom. 1, p. 656 ; Livermore, Dissert. ^ 92, p. 75, ^ 95, p. 77, ^ lOG, 
 p. 81, See also I Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, 
 § 8, p. 609 to p. 614 ; 1 Boullcnois, Obser. 29, p. 7G1 to p. 767. 
 
 2 Cochin, ffiuvres, Tom. 3, p. 703, 4to edit. »
 
 262 CONFLICT OF LAWS. [CH. VL 
 
 that the community of property may be formed by an 
 express contract, or by a tacit contract, he gives as a 
 reason for the latter, that, if the married couple have 
 not made any express stipulation, and are domiciled in 
 a place where the law of community exists, when they 
 are married, the conclusion is, that they have referred 
 themselves to that law. And this presumption has its 
 foundation in law, which often decides, that, as to 
 things omitted in the contract, the parties have referred 
 themselves to the usage or law of the place.^ And he 
 adds, that as in cases of express contracts for commu- 
 nity of property, the contracts reach all the property of 
 the parties, even in other countries, so in cases of tacit 
 contracts, such as those resulting by operation of law, 
 the same rule applies. If the law of the place of 
 domicil and marriage of the parties creates such a com- 
 munity, it applies to all property, wherever it is situate. 
 It has, in short, all the character and effect of a per- 
 sonal law or statute, although it regulates property.^ 
 
 § 152. Hertius has put a number of cases to illus- 
 trate the general principle. At Liege, by law, the 
 husband by marriage acquires the ownership of all the 
 property of his wife of every nature. At Utrecht it is 
 otherwise. Is an inhabitant of Utrecht entitled, jure 
 connuhii, to take all the property of his deceased wife 
 situate in Liege ? He answers in the negative ; be- 
 cause the law of the place of marriage (Utrecht.) does 
 not confer it.^ Again. A person, in whose domicil 
 there is no community of property between married 
 
 ' Le Brun, Trail6 de la Communaute, Liv. 1, ch. 2, ^ 2, 3, 4. 
 2 Id Liv. 1, ch. 2, ^6, ^ 36 to 42. 
 
 2 Hertii Opera, De Cullis. Leg. § 44, p. 142, 143, edit. 1737; Id. 
 p. 201, edit. 1716.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 263 
 
 persons, possesses property in another territory, where 
 such community of all property exists, and he contracts 
 marriage in another country, where a qualified commu- 
 nity only exists ( Ubi socicias lonorum tantum, sive simpK- 
 citcr, ita dicta, oUind.) What law is to prevail ? Some 
 jurists hold, that the law of the domicil shall prevail. 
 Others are of a different opinion. Hertius himself 
 holds, that, as the case supposes the place of the mar- 
 riage to be foreign to both parties, the law of the hus- 
 band's domicil ought to prevail as an implied contract 
 between the parties.^ Again. In the domicil of the 
 husband, a community of property exists between mar- 
 ried persons ; will that community apply to immovable 
 property, bought by either party in a territory where 
 such a law does not exist ? Many jurists decide in the 
 negative. Hertius holds the affirmative, upon the ground 
 of an implied contract, resulting from the marriage.^ 
 
 § 152 a. Froland puts the case of a man domiciled 
 at Paris, who goes and marries a woman in a country 
 governed by the Roman law, as in Rheims, Auvergne, 
 or Normandy, or ^ contra ; and the marriage is without 
 any express contract ; and he then asks, in such a case, 
 what law is to prevail as to future acquisitions (con- 
 quests ?) The law of the domicil of the husband ? Or 
 that of the wife ? Or that of the place of marriage ? 
 Or of the location of the property ? And he decides in 
 favor of the latter.^ 
 
 1 Id. ^ 4G, p. 143, edit. 1737; Id. p. 2n2, edit. 1716. 
 
 2 Id. p. 144, \ 47, edit. 1737 ; Id. p. 204, edit. 1716. — The decision of 
 Mr. Chancellor Kent in De Couche v. Sabatier, 3 Johns. Cli. R. 1»0, 211, 
 treating it as a case of an express or an implied contract, would lead to 
 the same conclusion. 
 
 3 1 Froland, M6m. 321. See also Voet, De Stat. ^ 4, ch. 3, ^ 9, p. 134, 
 135, edit. 1715 ; Id. p. 151, 152, edit. IGOl.
 
 264 CONFLICT OF LAWS. [CH. VI. 
 
 § 153. Frolancl has stated the question in a more 
 general shape ; whether, if a community of property 
 exists by the law of the place of domicil and marriage 
 of the parties, it extends to all property situate else- 
 where, where no such law prevails?^ He gives the 
 reasoning of different jurists, maintaining opposite opi- 
 nions on the point, and concludes by stating, that the 
 opinion of Dumoulin in the affirmative has finally pre- 
 vailed, in cases where there is an express contract for 
 such community; and Dumoulin equally contends for 
 it in cases of tacit contract, resulting from the Lex loci 
 contractus?' From this latter point, however, Froland 
 dissents in a qualified manner.^ He deems the law of 
 community, independent of an express contract to be a 
 real law; and therefore confined to the territory. As 
 to acquests, or acquisitions, whether of movable or of 
 
 1 1 Froland, Mem. p. 178 to p. 200; Id. p. 211 to p. 271; Id. p. 272 to 
 p. 340. See also 1 Boullenois, p. 660 to p. 683; Id. Observ. 29, p. 732 
 to p. 818. Dumoulin's words are ; " Nullum habet dubium quin societas, 
 samel contracta, complectatur bona ubicumque sita, sine uUa differentia 
 territorii, quemadmodum quilibet contractus, sive tacitus, sive expressus, 
 ligat personam, et res disponentis ubique. Non obstat, quod hujusmodi 
 societas non est expressa, sed tacita ; nee oritur ex contractu expresso 
 partium, sed ex tacito el prsesumpto contractu a consuetudine locali intro- 
 ducto." 1 Froland, Mem. 274. See also Livermore, Dissert. ^ 78 to 90, 
 p. 69, 71, 72, 73, 74; Saul v. His Creditors, 17 Martin, R. 569, 599. 
 The same doctrine is maintained by Bouhier. "Tout statut," says he, 
 "qui est fond6 sur une convention tacite et presumee, des contractans, 
 est personnel." Bouhier, Cout. de Bourg. eh. 32, 6 69 to 74. And he 
 expressly applies it to the case of tacit contracts of marriage, following 
 out the reasoning of Dumoulin. Id. oh. 26, ^ 1 to 20. On the other 
 hand, D'Argentre and Vander Muelen, hold, that all laws respecting 
 community are real and not personal ; and therefore, that they are go- 
 Terned by the law m sil<t. 1 Boullenois, Obser. 39, p. 758, 759, 760 to 
 765. 
 
 2 Ibid. 
 
 3 1 Froland, M6m. 315, 316, 317.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 265 
 
 immovable property, made in foreign countries, where 
 the law of -community exists, he agrees, that, in cases 
 of an express contract, the law of the matrimonial do- 
 micil ought to prevail. But as to foreign countries, 
 where the law of community does not exist, he thinks 
 the right does not extend, ant in vim consiietiidinis, or in 
 vim contractus ; for it is in vain to presume a tacit con- 
 tract ; and that, therefore, it ought to be governed by 
 the law rei sitce} It would seem, however, from subse- 
 quent passages, that he applied his doctrine to the case 
 of immovables only ; admitting, that movables should 
 be governed by the law of the domicil of the parties.^ 
 
 § 154. Rodenburg seems to apply the same princi- 
 ple to cases, where there is a nuptial contract, as to 
 cases where there is none, holding, that, in the latter 
 cases, the law of the matrimonial domicil is adopted by 
 a tacit contract. At the same time he asserts, that the 
 law of community is not personal, but is real ; and hence, 
 that although it does not, or may not, directly act upon 
 property aliunde, where no community exists; yet it 
 will give a right of action, founded in the tacit contract, 
 which may be enforced everywhere. And, therefore, 
 the law of the matrimonial domicil, in such a case, acts 
 indirectly and obtains universality of application by 
 reason of the tacit contract.^ And he applies it equally 
 to present and future acquisitions."* 
 
 § 155. Boullenois holds an opinion somewhat differ- 
 
 1 1 Froland,M6m. 315, 316, 317, 321,322,323, 338,341 ; 1 Boullenois, 
 Obser. 29, p. 758, 759. 
 
 2 Ibid. 
 
 3 Rodenburg, De Div. Stat. tit. 2, ch. 5, ^ 12 to ^ 15; 2 Boullenois, 
 Appx. p. 41 to p. 47 ; 1 Boullenois, p. 673 to p. 683 ; Id. Obser. 29, p. 
 732 to p. 735 ; Id. p. 754 to p. 757. 
 
 4 Ibid. 
 
 CONFL. 23
 
 266 CONFLICT OF LAWS. [CH. VI. 
 
 ent. After having stated, that jurists have entertained 
 different views as to the operation of the law of the 
 matrimonial domicil upon the real property then pos- 
 sessed by the parties, and upon that afterwards acquired 
 by them, he says, that they seem generally agreed in 
 one point, that so far as respects their property at the 
 time of the marriage, of strict right, the law of the situs 
 ought to be followed. But as to their property, ac- 
 quired after the marriage, they differed ; some holding, 
 that it was governed by the law of the situs ; others, 
 that it was not, and that the law of the place of the 
 marriage, as to community or non-community, ought to 
 govern. Boullenois holds, that this latter doctrine is 
 not correct ; because all laws respecting property are 
 real ; and that those, who adhere to this doctrine, are 
 obliged to resort to a supposed tacit contract of the par- 
 ties, to be governed by the law of the matrimonial do- 
 micil. He goes on to state, that, without aiming a blow 
 against this system of tacit contract, which on account 
 of its equity he highly approves, his own opinion is, that 
 there is no necessity for deeming the law of community 
 to be a personal law, in order to give full effect to the 
 doctrine, as to property acquired after the marriage, 
 upon another distinction. This distinction is, that the 
 law of community or non-community, is one, merely 
 fixing the state or condition of the married couple ; and 
 therefore not a real, but a personal law.' Hence he 
 holds, that the law of community or of non-community, 
 existing in the matrimonial domicil, extends to all pro- 
 perty of the parties, wherever it is situated ; not upon 
 the ground of any tacit contract, but iwopio vigore, as a 
 
 1 1 Boullenois, Obser. 29, p. 736, 741, 751 to 770.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 267 
 
 law, binding both as to their present property, and as to 
 their future acquisitions. But if by the law of the situs 
 the law of community is prohibited, as to their present 
 property, or as to their future acquisitions, or as to both, 
 then he admits, that the law of the situs ought to pre- 
 vail ; for in all cases of this sort the personal law yields 
 to the real law of the situs. Le statut personnel cede en 
 cctte occasion cm statiit reel de la situation} 
 
 § 156. Pothier has adopted the doctrine of tacit con- 
 tracts, maintained by Dumoulin; and, therefore, in case 
 there is no express nuptial contract, if the law of the 
 matrimonial domicil creates a community, he holds, that 
 it applies to all property, present and future, wherever 
 situated, and even in provinces, which do not admit of 
 a community.^ Grotius is also stated to have held the 
 same opinion in a case, where he was consulted.^ 
 
 § 157. It has been remarked by the Supreme Court 
 of Louisiana, that the greater number of the jurists of 
 France and Holland are of opinion, that in settling the 
 rights of the husband and wife, on the dissolution of 
 the marriage, to the property acquired by them, the law 
 of the place, where the marriage was contracted, and 
 not of that, where it was dissolved by death, must be the 
 guide. And that this opinion is, by most of them, 
 founded on the idea first promulgated by Dumoulin, 
 that, where the parties marry without an express nup- 
 tial contract, they must be presumed to contract with 
 
 1 I Boullenois, Obser. 29, p. 736, 741, 750, 751 to 754 ; Id. p. 754 to 
 p. 757, 759, 760, 7G6, 769, 770; 2 Boullenois, Obser. 37, p. 277; post, 
 \ 166. 
 
 2 Pothier, Trait6 de la Communaut6, art. Prelim, n. 10 to n. 18 ; post, 
 ^ 166. 
 
 3 See Henry on Foreign Law, ch. 5, p. 36, 37, note ; iBurge, Comra. 
 on Col. and For. Law, Pt. 1, ch. 7. ^ 8, p. 005.
 
 268 CONFLICT OF LAWS. [CH. YI. 
 
 reference to the law of the country, where the marriage 
 took place, and that this tacit contract follows them 
 wherever they go.^ But that Court are of opinion, that 
 the ground is unsatisfactory, especially when it is ap- 
 plied to cases of property, acquired after a subsequent 
 change of domicil of the parties. Their view of the 
 subject is, that if the doctrine of a tacit contract be ad- 
 missible at all, the contract is to be construed in the 
 same way, as if the laws of the country of the marriage 
 were inserted in it ; and that, so far as they are to be 
 deemed real laws, and not to be personal laws, they are 
 necessarily territorial, and can be construed to apply 
 only to acquests or acquisitions within that peculiar 
 country. The extent of the tacit agreement depends 
 upon the extent of that law. If it has no force beyond 
 the jurisdiction of the sovereign, by which it is enacted ; 
 if it is real, and not personal ; then the tacit consent of 
 the parties cannot turn it into a personal statute. The 
 parties have not said so; and they are presumed to 
 have contracted in reference to the law, such as it was ; 
 to have known its limitations, as well as its nature ; and 
 to have had the one as much in view as the other. In 
 one word, the parties have agreed, that the law shall 
 bind them, as far as that law extends, but no farther.^ 
 
 § 158. The result of this reasoning (and it certain- 
 ly has very great force) would seem to be, that in 
 the case of a marriage without any express nuptial con- 
 tract the Lex loci contractus (assuming, that it furnishes 
 any just basis to imply a tacit contract) will govern as to 
 
 1 Mr. Justice Porter in delivering the opinion of the Court in Saul v. 
 His Creditors, 17 Martin, R. 599 ; post, ^ 170. 
 
 2 Mr. Justice Porter in the case of Saul v. His Creditors, 17 Martin, R. 
 509, 603 to G05 ; post, § 187.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 269 
 
 all movable property, and as to all immovable property 
 within that country ; and as to property in other coun- 
 tries, it will govern movables, but not immovables ; the 
 former having no situs, and the latter being governed by 
 the Lex rei sitcc. 
 
 § 159. Perhaps, the most simple and satisfactory ex- 
 position of the subject, or at least, that, which best har- 
 monizes with the analogies of the common law, is, that 
 in the case of a marriage, where there is no special nup- 
 tial contract, and there has been no change of domicil, 
 the law of the place of celebration of the marriage ought 
 to govern the rights of the parties in respect to all per- 
 sonal or movable property, wherever acquired, and wher- 
 ever it may be situate ; but that real or immovable pro- 
 perty ought to be left to be adjudged by the Lex rei 
 sitcu, as not within the reach of any extra-territorial law.^ 
 Where there is any special nuptial contract, between 
 the parties, that will furnish a rule for the case ; and as 
 a matter of contract, ought to be carried into effect 
 everywhere, under the general limitations and excep- 
 tions belonging to all other classes of contracts.^ 
 
 1 See Henry on Foreign Law, ch. 7, p. 48, 49 ; post, § 454 ; Le Bre- 
 ton V. Miles, 8 Paige, R. 261. 
 
 2 Post, ^ 454. Paul Voet lays down the following doctrine. " Si sta- 
 tuto hujus loci inter conjuges bona sint communia, vel pactis antenuptiali- 
 bus ita conventum sit, ut omnia, ubique locorum sita, communia forent, 
 etiam ad ilia, quaj in Frisia jecent, ubi non nisi qua;sitorum est communio, 
 dabitur actio, ut communicentur." Voet, De Stat. ^ 4, ch. 2, § 16, p. 
 127, edit. 1716 ; Id. p. 142, edit. 1661 ; Id. ch. 3, ^ 9, p. 134, edit. 1716 ; 
 Id. p. 140, 141, Yet he deems laws establishing a community of property 
 to be real, and not personal laws. Id. ^ 4, ch. 3, § 9, p. 134, 135, edit. 
 1716, See 1 Froland, M^m, 199, 200. This apparent discrepancy may 
 be reconciled, by considering, that though the law of community be real ; 
 yet it may found a right of action for property situate elsewhere. See 
 also Rodenburg, De Divers. Stat. tit. 2, ch, 5, ^ 12 to 15 ; 2 Boullenois, 
 Appx. p, 41 to p. 46. A distinction of this sort seems not unknown to the 
 
 23*
 
 270 CONFLICT OF LAWS. [CH. VI. 
 
 § 160. In the next place, what is the principle to be 
 adopted in cases where there has been a change of do- 
 micil ? And this admits of a double aspect ; first, in 
 relation to property acquired by the parties before the 
 removal ; and secondly, in relation to property acquired 
 by the parties afterwards in the new domicil. In each 
 instance, however, we are to be understood to speak of 
 the mere operation of law, where there is no express 
 nuptial contract between them.^ 
 
 § 161. Upon this subject there is, as we have already 
 seen, no small diversity of opinion among foreign ju- 
 rists, as well in regard to the rights to property ac- 
 quired after the change of domicil, as in regard to the 
 rights to property antecedently acquired.^ Bouhier 
 lays down the rule in general terms, that in relation to 
 the beneficial and pecuniary rights [Les droits utiles d 
 ^oecimiaires) of the wife, which result from the matrimo- 
 nial contract, either express or tacit, the husband has 
 
 Scottish law. 1 Rose, Cas. in Bank. 481. Lord Meadowbank, in a Scot- 
 tish case of great importance, laid down the following doctrine as unques- 
 tionable. " In the ordinary case of transference by contract of marriage, 
 when a lady of fortune, having a great deal of money in Scotland, or stock 
 in the bank, or public companies there, marries in London, the whole pro- 
 perty is ipso jure her husband's. It is assigned to him. The legal assign- 
 ment of a marriage operates, ivithout regard to territory, all the world 
 over." Royal Bank of Scotland v. Smith, &c. 1 Rose, Cas. Bank. Appx. 
 I'Jl. Lord Eldon has affirmed this doctrine to be correct, in relation to 
 personal property ; but not in relation to real property. In the cases of 
 bankruptcy, to which he applied it, he added, that there was no legal ob- 
 ligation on a bankrupt to convey his real estate, situate in a foreign coun- 
 try, to the assignees. Selkrig v. Davies, 2 Rose, Bank. Cas. 99, S. C. 
 2 Dow, R. 230, 250. 
 
 1 See 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 7, p. 609 
 to 640 ; ante, ^ 155 ; post, ^ 449 to § 454 ; Ordronaux v. Rey, 2 Sandf. 
 Ch. R. 33. 
 
 2 Ante, ^ 137 to 142 ; Id. § 143 to 159 ; 1 Burge, Com. on Col. and 
 For. Law, Pt. 1, ch. 7, ^ 8, p. 609 to 640.
 
 CH. VL] marriages — INCIDENTS TO. 271 
 
 no power by a change of domicil to alter or change 
 them, according to the rule, Nemo potest miitare consilium 
 suum in alteriiis injiiriam ; and he insists, that this is the 
 opinion of jurists generally.^ Thus, if by the law of 
 the matrimonial domicil there exists a community of 
 property between the husband and the wife, and they 
 remove to another place where no such community ex- 
 ists, the rights of neither party are changed ; and the 
 community applies in the same manner as in the origi- 
 nal domicil.^ And on the other hand, if no such com- 
 munity exists in the matrimonial domicil, a transfer of 
 domicil, to a place where it does exist, will not create 
 it ; for a change of domicil would not add any thing to 
 the marriage rights in the case of an express contract, 
 and therefore ought not to do so in that of a tacit con- 
 tract.^ This also is Dumoulin's opinion. He says, that 
 this is controverted by some authors ; but it is so un- 
 justly and falsely. Sed controvertiint, si maritiis iwstca 
 cum uxore transtiderit domiciliumj an deheat attendi illud, 
 quod erat temi^ore contractus, an vero idtimwn, quod inveni- 
 tiir tem'pore mortis; et istiid idtimum tenet Salicetus, et 
 seqidtur Alexander. Sed Jioc non solum iniqinim ; quia 
 maritiis de loco, in quo nihil lucratur, vel tantum quartam, 
 posset transferre domicilium ad locum, in quo totam dotem 
 lucraretur, pj-mnoriente uxore sine liheris. Et quod sit 
 falsum, proho per text em dictcB Legis, Exigere dotemJ^ 
 Bouhier makes no distinction whatsoever between mo- 
 vable property and immovable property.^ Nor does he 
 
 1 Bouhier, Cout. de Bourg. ch. 22, ^ 63 to 72. 
 
 2 Ibid. 3 Ibid. 
 
 4 Dig. Lib. 5, tit. 1, 1. 65, De Judicis ; ante, ^ 147 ; Molin. Comment, 
 ad Cod. Lib. 1, tit. 1,1. 1 ; Molin. Opera. Tom. 3, p. 555. 
 
 5 Bouhier, Cout. de Bourg. ch. 22, § 79, 80.
 
 272 CONFLICT OF LAWS. [CH. VL 
 
 seem to recognize any distinction between property ac- 
 quired before the change of domicil, and that acquired 
 after the change of domicil.^ 
 
 § 162. Le Brun supports the like opinion. He in- 
 sists, that, if there is no special contract of marriage, 
 the law of the place where the marriage is celebrated, 
 and in which the parties are domiciled, governs as a 
 tacit contract ; and that no subsequent change of domi- 
 cil can change the legal rights of the parties, even as 
 to after acquired property.^ And he puts the case of a 
 marriage in Paris, and a subsequent change of domicil 
 of the parties to the province of Bar, where the sur- 
 vivor is by custom entitled to the whole property in 
 movables by survivorship ; and holds, that if either die, 
 the movables, whether acquired before the removal, or 
 after the removal, are governed by the law of commu- 
 nity, and do not all remain to the survivor. La raison 
 est, qui ce seroit changer V cstahlissement de commiinaiite fait 
 par le contrat, ou par le coutiime, selon lequcl on a du par- 
 tager les meuhles aussi Men que les conqiiets? 
 
 § 163. Bodenburg puts the case of a marriage, in a 
 place where the law of community of property between 
 husband and wife prevails, and a subsequent removal 
 to another place, where it has no existence ; and he 
 asks, if the community still subsists in the new domi- 
 cil ? lie observes, that most of the Dutch jurists are 
 of opinion that it does ; and in this opinion, he concurs 
 to this extent, that the community will continue, until 
 the parties have, by some overt act, discarded it ; and 
 then it will cease.'' And he applies the same principle 
 
 1 Id. ch. 22, per tot. 
 
 2 Le Brun, Traill de la Communaute, Liv. 1, ch. 2, ^ 55, 56, p. 20. 
 
 3 Ibid. ; ante, ^ 151. 
 
 4 Rodenburg, De Div, Stat. Pt. 2, tit. 2, ch. 4, ^ 3, 4 ; 2 Boullenois, 
 Appx. p. 66, 67 ; Id. p. 85 to p. 87 ; Id. Obser. 36, p. 173 ; ante, ^ 154.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 273 
 
 to cases of dowry by the customary law, holding, that 
 the matrimonial domicil ought to prevail.-^ 
 
 § 164. Hertius puts the following question. A mar- 
 riage is contracted in a place where the civil law go- 
 verns, (i. e. where there is no community) ; and after- 
 wards the couple remove to a place where the law of 
 community exists ; and to the inquiry, whether in such 
 a case there is a community in the acquisitions of the 
 parties after the removal, he answers in the negative, 
 adopting the doctrine of Rodenburg ; and he gives this 
 reason for his opinion ; that it is not pr(5bable that the 
 married couple, who did not agree to a community of 
 goods in the beginning, intended to adopt it by a mere 
 change of domicil. Nam fvobaUle non ed, conjuges, qui 
 pactis in societatem honorum ah initio non consensuerant, sola 
 domicilii mutatione earn inducere voliiisse? In the more 
 general form in which the question may be presented, 
 whether in the case of married persons, removing from 
 their matrimonial domicil, where a community of pro- 
 perty exists, to a place where it does not, they are to 
 be governed by the law of the matrimonial domicil, he 
 evidently adopts the affirmative, citing Rodenburg.^ 
 And he applies his doctrine to immovable property, as 
 well as movable property, making an exception, how- 
 ever, of the case where there is a prohibitory law of 
 the country of the sitiis^ 
 
 § 1G5. Paul Voet appears to maintain the doctrine 
 
 1 Rodenburg, De Div. Stat. Pt. 2, tit. 2, ch. 4, § 5 ; 2 Boullenois, Appx. 
 p. 66, 67 ; Id. p. 87 ; ante, ^ 154. 
 
 2 2 Hertii Opera, De Collis. Leg. ^ 49, p. 145, edit. 1737 ; Id. p. 205, 
 edit. 1716. 
 
 3 Id. ^ 48, p. 145, edit. 1737 ; Id. p. 206, edit. 1710. 
 
 4 Id. ^ 47, 48, edit. 1737, p. 144, 145 ; Id. p. 205, edit. 1710.
 
 274 CONFLICT OF LAWS. [CH. VI. 
 
 generally, that a change of domicil does not change the 
 effect of the marriage contract, express or tacit. Quid, 
 si maritus alio doiniciUum posimodum transtiilerit, eritne con- 
 venimdus, secundum loci statutwn, in qiiem postremiim sese 
 recepit. Non equidem. Quia non co ipso, qui domiciUum 
 transfer at, censetur voluntatem circa facta nuptialia mutasse. 
 Nisi eadem solemniias in actu contrario intercesserit. Ac- 
 cedit, quod ilia pacta solus mutare necpieat maritus, id quod 
 tamen posset, si per emigrationem in alium locum, ea muta- 
 rentur} Merlin maintains the like opinion, saying, that 
 if a couple are married at Paris, meaning at the time to 
 live there, and afterwards they remove to Lyons ; in 
 such a case the community, formed at Paris, will con- 
 tinue as to property acquired at Lyons.^ 
 
 § 166. Boullenois holds the opinion, (as we have 
 seen,) that the law regulating the community affects 
 the state or condition of the parties, and is, therefore, 
 a personal law ; and accompanies them everywhere, 
 and affects property, wherever situate.^ He accord- 
 ingly insists, that, if by the law of the matrimonial 
 domicil a community of property exists, that commu- 
 nity extends to all future acquisitions, whether movable 
 or immovable, even in places to which the parties have 
 
 1 Voet, De Stat. § 9, ch. 2, n. 5, 6, 7, p. 264, 2G6, edit. 1716; Id. 
 p. 319, .322, edit. 1661 ; Id. ^ 4, ch. 2, n. 16, p. 127, edit. 1710 ; Id. 
 p. 142, edit. 1061; Id. ^ 4, ch. 3, n. 9, p. 134, 135, edit. 1716; Id. p. 151, 
 152, edit. 1661; post, ^ 168. — Paul Voet holds all such contracts, 
 whether express or tacit, to be real and not personal laws; and therefore 
 not directly aflecting property out of the territory ; but only indirectly, by 
 a remedy to enforce the contract against ex-territorial property. Voet, ad 
 Statut. ^ 4, ch. 3, ^ 9, p. 134, 135, edit. 1716 ; Id. p. 151, 152, edit. 1661 ; 
 post, h 108; Livermore, Dissert. ^ 115 to 123, p. 87 to p. 92. 
 
 2 Merlin, Repertoire, Communaute de Biens, (^ 1, p. 111. 
 
 3 Ante, ^155; 1 Boullenois, Obser. 29, p. 736, 741, 750 to 754; Id. 
 p. 759 to p. 770 ; 2 Boullenois, Obser. 38, p. 277 ; 17 Martin, R. 607.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 275 
 
 afterwards removed, and where no such community 
 exists.' Pothier has adopted the opinion of Boullenois, 
 that the law of community is to be deemed a personal 
 law, and not a real law; and he also adopts the doc- 
 trine of Dumoulin, as to tacit contracts.^ So, that he 
 has no hesitation in declaring, as we have seen, that 
 the law of the matrimonial domicil governs the property 
 everywhere.^ But he has omitted to put the case of a 
 change of domicil, and the effects which it would pro- 
 duce. In another place he has laid down as a general 
 principle, that a change of domicil delivers all persons 
 from the empire of the laws of their former domicil, 
 and subjects them to the new.^ What, then, ought to 
 be the effect of a removal, upon property acquired in 
 the new domicil ? 
 
 § 167. Froland, after a good deal of hesitation, has 
 given his own opinion on the subject to this effect. In 
 cases where there is an express contract of community 
 of property between the husband and the wife, he holds, 
 that a change of domicil does not alter the rights of the 
 parties ; and, that the community applies to property 
 situate where the community is unknown as well as 
 where it exists.^ But where there is no express con- 
 tract, he deems the law of community as purely real, 
 and, therefore, as not extending beyond the matrimo- 
 nial domicil.^ He treats the notion of Dumoulin, of a 
 
 1 2 Boullenois, Observ. 38, p. 277, 278, 283, 284, 285 ; ante, ^ 155. 
 
 2 Pothier, Trait6 de la Communaut6, art. Pr61im. n. 10, 11, 12, 13; 
 ante, § 156. 
 
 3 Ibid. ; ante, ^ 156. 
 
 4 Polhier, Cout. d'Orl^ans, ch. 1, n. 13; ante, ^ 51 a, 6 15G. 
 
 5 1 Froland, M6m. Pt. 2, ch. 1, ^ 10, 11, p. 200 to p. 210 ; Id. p. 341 ; 
 Id. p. 190. 
 
 6 1 FroIand,M6m. Pt. 2, ch. 3, ^ 9,10, II, p. 315 to p. 338 ; Id. p. 341; 
 ante, ^ 148, note, ^ 149.
 
 276 CONFLICT OF LAWS. [CH. VI. 
 
 tacit contract in such a case, as a mere imaginary 
 thing ; words, and nothing else ; a mere subtilty, phan- 
 tom, and chimera. Ce sont la, que des ixiroles, et ricn au 
 dela. Mirificwn illnd Molinoei acumen; des suUilites c?' 
 espjit ; des Idees ; des Chimeres ; Enfin des moyens, que 
 la seide imagination echavffee produit. Hac grandiloquen- 
 tid etiam 3Iolincens personat, iamcn aperte, non est venimj 
 quod dicit} The conclusion, to which he arrives, is, 
 that, if two persons marry without any contract in a 
 place, where the law of community exists, and remove 
 to another place, where it does not exist, the change of 
 domicil has no effect whatsoever ; hut the rights of 
 each are the same, as if they had remained in their 
 matrimonial domicil ; and the acquisitions of immovable 
 property, situate in the new domicil, do not fall into 
 community, but are governed by the law rei sitce. As 
 to movables, he holds, that the law of the actual domicil 
 ought to govern. 2 
 
 § 168. There are many other jurists who maintain, 
 that the law of community among married persons is 
 real, and not personal ; and among these the most dis- 
 tinguished are D'Argentre, Dumoulin, Paul Voet, and 
 Vander Meulen.^ According to them, the law rei sitae 
 
 1 1 Froland, M6m. Pt. 2, ch. 3, ^ 9, p. 316. 
 
 2 1 Froland, Mem. Pt. 2, ch. 3, ^ 9, 10, 11, p. 315 to p. 323 ; Id., 
 p. 341. — I confess myself under some difficulty in reconciling what is here 
 said, with what Froland seems to decide in the next chapter (4th,) § 3, 
 p. 345, &c., where he appears to hold, that a woman marrying in a place, 
 where the law of community does not exist, does not, by removing with 
 her husband to a place, where it does exist, acquire any right of commu- 
 nity to his acquisitions or movables in the latter. 
 
 3 1 Boullenois, Observ. 29, p. 758 to 761, 765; P. Voet, De Stat. § 4, 
 ch. 3, p. 134, 135, (} 9, edit. 1716; Id. p. 151, 152, edit. 1661, See also 
 J. Voet, ad Pand. Lib. 5, tit. 1, n. 101 ; Merlin, Communaut6 de Biens, 
 § 1, art. 3, p. 104, 110 ; Bouhier, Cout. de Bourg. ch. 23, ^ 34. See
 
 CH. VI.] MARRIAGES INCIDENTS TO. 27Y 
 
 will govern in all cases, where there is no express or 
 tacit contract. But, then, we must take this proposi- 
 tion with the accompanying qualification, that those of 
 these jurists who admit of the doctrine of a tacit con- 
 tract, adopting the law of the place of marriage, (among 
 whom are Dumoulin and Paul Voet,) also hold, that 
 although the law of the place of the marriage does not 
 directly act upon the property in a foreign country ; 
 yet, through the means of this tacit contract, it acts 
 indirectly, and enables the parties to enforce it against 
 that property by a proper suit in rem} 
 
 § 169. Huberus (as we have seen,) does not hesitate 
 to assert the doctrine, that, in case of a change of 
 domicil, future acquisitions of married persons are 
 governed by the law of their actual domicil, and not 
 of their antecedent matrimonial domicil.^ Thus after 
 asserting thp,t in Holland there is a community of pro- 
 perty, and in Friesland not; he says, if the married 
 couple remove from the one province (Holland) to the 
 other (Friesland,) whatever property is afterwards 
 acquired, ceases to be common, and remains in distinct 
 ownership [cUsUnctis projmeiatihus) ; and the property 
 before held in community remains clothed with the 
 same legal character that it previously possessed.^ And 
 he applies this doctrine as well to immovable property, 
 relying upon the doctrine of tacit consent, or tacit con- 
 
 Saul V. His Creditors, 17 Martin, R. 5!)8, 599 ; Id. 588 ; ante, § MS, 159, 
 note, 
 
 1 P. Voet, De Statut. ^ 9, ch. 2, n. 5, G, 7, p. 264 to p. 2G6, edit. 
 1716 ; Id. p. 319 to p. 323, edit. 1661 ; ante, ^ 165, note ; ante, ^ 147 ; 
 post, ^169; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 8, 
 p. 612 to p. 614. 
 
 2 Ante, ^ 145. 3 ibid. 
 
 CONFL. 24
 
 278 CONFLICT OF LAWS. [CH. VL 
 
 tract ;^ and holding the opinion of Dumoulin ; Quia 
 f actio hen'e extenditur uhique, sed non statidwn menmty hoc 
 est, sold ef merct vi statidi! 
 
 § 170. It would be endless to recount the diversities 
 of opinion among foreign jurists on this subject, follow- 
 ing out the almost infinitely varied cases, which the 
 customs and laws of different provinces and countries 
 have brought before them. According to the opinion 
 of the Supreme Court of Louisiana, already citecl,^ the 
 greater number of foreign jurists are of opinion, that, 
 in settling the rights of husband and wife, on the dis- 
 solution of marriage, to the property acquired by them, 
 the law of the domicil of the marriage, and not of the 
 place, where it is dissolved by death, is to be the guide.* 
 It is probably so ; but there is more difficulty in affirm- 
 ing it, where there has been a change of domicil, than 
 where there has been no such change. It may be in- 
 ferred, that the Scottish law has adopted the rule, that 
 in cases of community, where there is no written con- 
 tract, the law of the domicil of the parties at the death 
 of either of them regulates the disposal of the property 
 of the parties.^ 
 
 1 Huberus, Lib. 1, tit. 3, ^ 9 ; ante, § 145. 
 
 2 Livermore, Diss. ^ 89, p. 73, 74 ; 1 Froland, M6m. G3. 
 
 3 Ante, ^ 157. 
 
 4 Mr. Justice Porter, in delivering the opinion of the Court in Saul v. 
 His Creditors, 17 Martin, R. 599 ; ante, ^ 157. 
 
 5 Fergusson on Marr. and Divorce, 346, 347; Id. 361. — There are 
 some remarks of Mr. Burge on this subject, which deserve to be cited in 
 this place. " In hoc igitur" (says he) "conflictu quibus adstipulabimur? 
 was the obvious question of one of the jurists, after he had been review- 
 ing these discordant opinions. The following considerations will perhaps 
 justify a concurrence with him in the answer, given by himself. ' Mihi 
 tutius videtur, adhairere secundae sententia;, (qua; negat praedia alibi sita 
 communicari,) quam non solum ratio validissima munit, sed et prasstantes 
 auctores, et consensus aliquot municipiorum probant.' 1st. The law.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 279 
 
 § 171. No question appears to have arisen in the 
 English courts upon the point, which we have been 
 
 which by its own force and operation, and independently of contract, gives an 
 interest in immovable property, is a real law. 2d. Immovable property is 
 not subject to the power of a real law, unless such law exists in the coun- 
 try where that property is situated. 3d. The joint interest, which the 
 husband and wife acquire under the community in the immovable property 
 of each other, is conferred by the law alone, unless that law be con- 
 trolled in its operation by a tacit agreement ; such an interest, therefore, 
 will not be acquired in immovable property situated in a country where 
 the law of community does not exist. 4th. If a tacit agreement could be 
 inferred for the purpose of giving to the law of community a more exten- 
 sive operation than belongs to the quality of a real law, it might with 
 equal propriety be inferred for a similar purpose in the case of other real 
 laws, i. e., those which govern the succession to real property, &c. A 
 preference of the law of the country, in which a man has passed his life, 
 to that of another country, in which his real property may be situated, is 
 as natural a presumption as that in favor of the law of tKe matrimonial 
 domicil. 5th. It cannot be said, that, because the title is conferred by the 
 law, as the consequence of the marriage, there is a ground peculiar to mar- 
 riage for admitting the presumption of a tacit agreement ; because no such 
 presumption is admitted in respect of other titles conferred by law as the 
 consequence of marriage, e. g. the titles to douaire and droit de viduit6. 
 6th. The laws, which confer douaire, and le droit de viduit^, are admitted 
 by all jurists to be real laws ; and consequently they attach on that pro- 
 perty only which is situated in the country where they prevail, and they 
 do not extend to that which is situated in another country, and no tacit 
 agreement is presumed in order to control their powers, 7th. The law 
 establishing a community in immovable property is not essentially distin- 
 guished from the laws of douaire and viduit6, in any one of those particulars, 
 which, in the opinion of jurists, determine the reality or personality of 
 laws, and consequently the extent of their power. There does not, there- 
 fore, appear to be any substantial reason for allowing the law of commu- 
 nity to have the effect of a personal law, and to attach on immovable 
 property, in whatever country it may be situated. If this reasoning be 
 admitted, the community, when it prevails in the matrimonial domicil, will 
 be confined to such immovable property as is situated either there, or in a 
 country, in which a similar law exists, but it will not extend to such pro- 
 perty situated in a country where a similar law does not exist. In the 
 preceding observations, the law of community has been considered only 
 as it affected immovable property. Its effect on personal property is deter- 
 mined by other principles. According to a principle of international ju- 
 risprudence, the acquisition of movable or personal property by the opera-
 
 280 CONFLICT OF LAWS. [CH. VL 
 
 discussing ; that is, what rule is to govern in cases of 
 matrimonial property, where there is no express nuptial 
 contract, and there has heen a change of domicil. But 
 there is a case,^ which, Lord Eldon is reported to have 
 said, was founded in (a nuptial) contract ; and that, if 
 there had been no such contract, the law of England 
 (notwithstanding the domicil of the parties at the time 
 of their marriage was in France) would have regulated 
 the rights of the husband and wife, who were domiciled 
 in England at the dissolution of the marriage by death.^ 
 So that, according to this doctrine, the law of the ac- 
 tual domicil will govern as to all property, without any 
 distinction, whether it is property acquired antecedently, 
 or subsequently, to the removal. 
 
 § 171 «. In a more recent case, where the parties 
 were inhabitants of Prussia, and domiciled there, a 
 question arose in the Court of Exchequer upon the dis- 
 tribution of an intestate's estate under the administra- 
 tion of the court, whether the wife, being a distributee, 
 was entitled in equity, upon a petition by her husband 
 for the amount, to have any of the money settled on 
 her, or whether the whole was to be paid to him. It 
 appeared, that, by the laws of Prussia, the whole of 
 the personalty of the husband and wife is, during the 
 
 lion of law, is, as will be presently shown, governed by the law of its 
 owner's domicil. The community, if it prevailed in the matrimonial do- 
 micil, would therefore attach on the movable property of the husband and 
 wife, in whatever place it was situated." 1 Burge, Comment, on Col. 
 and For. Law, Pt. 1, eh. 7, ^ 8, p. 617 to p. 019 ; and Lashley v. Hogg, 
 cited Id. p. 623 to p. 625. 
 
 ^ Lashley v. Hogg, cited in Robertson's Appeal Cases, 4, and in 1 
 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, § 8, p. 623 to p. 625 ; 
 Feaubert v. Turst, Prec. Ch. 207. 
 
 2 Ibid.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 281 
 
 coverture, at the absolute disposal of the husband ; but 
 on the death of either it is divided between the sur- 
 vivor and the heirs of the deceased. The man made 
 no application to the court ; and the court ordered the 
 whole money to be paid over to the husband.^ Here, 
 we see, the court adopted the law of their actual domi- 
 cil, to regulate the rights of the parties to the movable 
 property. 
 
 § 172. In America there has been a general silence 
 in the States governed by the common law. But in 
 Louisiana, whose jurisprudence is framed upon the 
 general basis of the Spanish and French law, the point 
 has several times come under judicial decision. The 
 law of community exists in that State ; ^ and from the 
 frequency of removals from and to that State, it is 
 scarcely possible that some of the doctrines, which have 
 so much perplexed foreign jurists, should not be brought 
 under review. 
 
 § 173. We have already had occasion to take notice 
 of some of the views entertained by the Supreme Court 
 of Louisiana upon this subject.^ It has been very pro- 
 perly remarked by that Court, that questions upon the 
 conflict of the laws of the different States are the most 
 embarrassing and difficult of decision of any that can 
 occupy the attention of courts of justice."* And it may 
 be added, almost in their own language, that the vast 
 mass of learning which the researches of counsel can 
 furnish, leaves the subject as much enveloped in obscu- 
 
 1 Sawyer v. Shute, 1 Anstr. R. 63. See also Anstruther v. Adair, 2 
 Mylne & Keen, 513. 
 
 2 Civil Code of Louisiana, (1809,) 336, art. 63 ; New Code, (1825,) 
 art. 2369 to 2393. 
 
 3 Ante, (} 157, 170. 4 Ibid. 
 
 24*
 
 282 CONFLICT OF LAWS. [CH. VI. 
 
 rity and doubt, as it would be, if one were called upon 
 to decide, without the knowledge of what others had 
 thought and written upon it.^ 
 
 § 174. It is manifest, that the great body of foreign 
 jurists, who maintain the universality and ubiquity of 
 the operation of the law of the matrimonial domicil, 
 notwithstanding any subsequent change of domicil, 
 found themselves upon the doctrine of a tacit contract, 
 which, being once entered into, is of legal obligation 
 everywhere.^ The remarks of the Supreme Court of 
 Louisiana on this point have been already cited ; and 
 certainly they have a great tendency to shake its found- 
 ation.^ If the law of community be a real law, and 
 not a personal law, it would seem to follow, that it 
 ought to regulate all things which are situate within 
 the limits of the country wherein it is in force, but not 
 elsewhere."* The most strenuous advocate for the doc- 
 trine of tacit contract must admit, that, if by the sta- 
 tute of any country community is prohibited, as to 
 property there, the law of the matrimonial domicil 
 ought not to prevail in such country, in contradiction 
 to its own. And the learned Court, above referred to, 
 have said, that they can perceive no solid distinction 
 between the case of a real statute, and a prohibitory 
 statute, as to property situate in that country.^ 
 
 § 175. But if the law of community be personal, still 
 there is strong ground to contend, that the personal laws 
 
 1 Mr. Justice Porter, in delivering the opinion of the Court in Saul v. 
 His Creditors, 17 Martin, R. 571, 572. 
 
 2 Ante, ^ 147 to 170. 
 
 3 Saul V. His Creditors, 17 Martin, R. 599 to G08 ; ante, § 157, 170. 
 
 4 Mr. Justice Porter, in Saul v. His Creditors, 17 Martin, R. 601, 602. 
 
 5 Ibid. See post, ^ 449 to 454.
 
 CH. VL] marriages INCIDENTS TO. 283 
 
 of one country cannot control the personal laws of 
 another country, ipso facto, where they extend to and 
 provide for property within the jurisdiction of the lat- 
 ter. No one can doubt, that any country has a right 
 to say, that contracts for community, made in another 
 country, shall have no operation within its own terri- 
 tory. The question, then, is reduced to the mere con- 
 sideration, whether the law of the country does directly 
 or indirectly provide for, or repudiate, the community, 
 as to property locally situate within it.^ 
 
 § 176. Upon reasoning to this eflect, after full consi- 
 deration, the Supreme Court of Louisiana came to the 
 conclusion, that the law of community must, upon just 
 principles of interpretation, be deemed a real law, since 
 it relates to things more than to persons, and it has, in 
 the language of D'Aguesseau, the destination of pro- 
 perty to certain persons, and its preservation in view.~ 
 The Court, therefore, held, that, where a married couple 
 had removed from Virginia, (their matrimonial domicil,) 
 where community does not exist, into Louisiana, where 
 community does exist, the acquests and gains, acquired 
 after their removal, were to be governed by the law of 
 community in Louisiana.^ 
 
 § 177. This doctrine appears to be in full accordance 
 
 1 Saul V. His Creditors, 17 Martin, R. 573, 574 to 588 ; 1 Hertii Ope- 
 ra, De Collis. Leg. ^ 47, p. 143, 144, edit. 1737 ; Id. p. 294, edit. 1716 ; 
 post, ^ 449 to 454. 
 
 2 Mr. Justice Porter, in Saul v. His Creditors, 17 Martin R. 593, 594, 
 595, 606, 607; D'Aguesseau, CEuvres, Tom. 4, PI. 54, p. 660, 4to 
 edit. 
 
 3 The law of community existed in Louisiana under the Spanish law, 
 and now exists under the Civil Code of that State. Bruneau v. Bruneau's 
 Heirs, 9 Martin, R. 217; Code Civil of Louisiana, (1809,) 336, art. o3 ; 
 Revised Code, (1825,) art. 2370; Saul v. His Creditors, 17 Martin, R. 
 573 ; 2 Kent, Comm. Lect. 28, p. 183, note, 3d edit.
 
 284 CONFLICT OF LAWS. [cH. VL 
 
 with the laws of Spain. Those laws apply the same 
 rule to cases of express contract, and to cases of tacit 
 contract, or customary law. Where there is an express 
 contract, that governs as to all acquisitions and gains 
 before the removal. Where there is no express contract, 
 the customary law of the matrimonial domicil governs 
 in like manner. But in both cases all acquisitions and 
 gains, made after the removal, are governed by the law 
 of the actual domicil.^ The present revised Code of 
 Louisiana adopts a like rule ; and declares, that a mar- 
 riage, contracted out of the State between persons, 
 who afterwards come to live within the State, is subject 
 to the community of acquests, with respect to such pro- 
 perty as is acquired after their removal.^ 
 
 § 178. This code of course furnishes the rule for all 
 future cases in Louisiana ; but the discussions in that 
 State have arisen upon antecedent cases, and have in- 
 volved a general examination of the w^hole doctrine upon 
 principle and authority. The doctrine, w^hich, with re- 
 ference to public law, has been thus established in that 
 State, resolves itself into two fundamental propositions. 
 First ; where there is an express nuptial contract, that 
 there shall be a community of acquests and gains be- 
 tween the parties, even though they should reside in 
 countries where different laws prevail, that agreement 
 will be held obligatory throughout, as a matter of con- 
 tract, in cases of the removal of the parties to another 
 State ; with this restriction, however, which is applica- 
 ble to all contracts, that it is not to cause any prejudice 
 to the citizens of the country, to which they remove. 
 
 1 Saul V. His Creditors, 17 Martin, R. 576 to 581, 607, 608. 
 
 2 Code Civil of Louisiana, (1825) art. 2370.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 285 
 
 and that its execution is not incompatible with the laws 
 of that country.^ Secondly ; where there is no such 
 express nuptial contract, the law of the matrimonial do- 
 micil is to prevail, as to the antecedent property ; but 
 the property acquired after the removal is to be govern- 
 ed by the law of the actual domicil.^ This latter propo- 
 sition has been laid down, in terms unusually strong, by 
 the Supreme Court of that State. " Though it was once 
 a question, (say the Court,) it seems noiu to be a settled 
 principle, that when a married couple emigrate from the 
 country, where the marriage was contracted, into an- 
 other, the laws of which are different, the property, 
 which they acquire in the place, to which they have 
 removed, is governed by the laws of that place." ^ Upon 
 these propositions the Court have accordingly decided, 
 that, where a couple, who were married in North Caro- 
 lina, where community does not exist, had removed to 
 Louisiana, where it does exist, the property acquired 
 after the removal was to be held in community.* And, 
 in another case, where the marriage was in Cuba, and 
 there was a special contract, that there should be a com- 
 munity according to the custom of Paris, in whatever 
 country the parties might reside ; and the parties re- 
 move to South Carolina, where no community exists, 
 the contract was held to govern the property acquired 
 
 1 Mr. Justice Derbigny, in Murphy v. Murphy, 5 Martin, R. 83 ; Mr. 
 Justice Porter, in Saul ?;. His Creditors, 17 Martin, R. 605, 606. 
 
 ~ Mr. Justice Derbigny, in Gale v. Davis, 4 Martin, R. 645 ; Saul v. 
 His Creditors, 17 Martin, R. 605, 606 ; Le Breton v. Nouchet, 3 Martin, 
 R. 60, 73, 
 
 3 Mr. Justice Derbigny, in Gale v. Davis's Heirs, 4 Martin, R. 645, 
 649. 
 
 4 Mr. Justice Derbigny, in Gale r. Davis's Pleirs, 4 Martin, R. 645.
 
 286 CONFLICT OP LAWS. [CH. VI. 
 
 in the latter State.^ The same doctrine has been main- 
 tained in New York, in the case of a marriage between 
 French subjects, under a similar stipulation of commu- 
 nity and of mutual donation in case of survivorship 
 of either of the parties.^ 
 
 § 179. An instance, illustrative of the exception in 
 cases of express contract, may be drawn from other de- 
 cisions in Louisiana. Upon a marriage celebrated in 
 that State, the parties stipulated, that the rights of the 
 parties should be governed by the custom of Paris. The 
 question was, whether the parties, residing in the coun- 
 try, were competent to enter into a nuptial contract, 
 stipulating, that the effect of it on their property should 
 be governed by a foreign law. The Court held, that 
 they had no such competency, and that the contract was 
 void.^ 
 
 § 180. A still more striking case occurred in the same 
 State, upon some of the doctrines of which, as stated by 
 the Court, there may, perhaps, be reason to pause ; but 
 the grounds are nevertheless stated with great force. 
 A man ran away with a young lady of thirteen j^ears 
 of age, both of them being then domiciled in Louisiana, 
 without the consent of her parents or guardian, and they 
 went together to Natchez in Mississippi, and were there 
 married, and soon after returned to New Orleans, the 
 place of their original domicil. The wife afterwards 
 died, while they were living in Louisiana ; and after 
 her death her mother demanded her property, as it 
 
 1 Mr. Justice Derbigny, in Murphy v. Murphy, 5 Martin, R. 83 ; Mr. 
 Justice Porter, in Saul v. His Creditors, 17 Martin, R. 605 ; Mr. Justice 
 Derbigny, in Bourcier v. Lanusse, 3 Martin, R. 581, 583. 
 
 2 De Couche v. Savatier, 3 Johns. Ch. R. 190, 211. 
 
 3 Mr. Justice Derbigny, in Boucier v. Lanusse, 3 Martin, R. 581. See 
 Code Civil of France, art. 1390.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 287 
 
 would descend by the Louisiana law. The Court sus- 
 tained the demand.'' From the elaborate opinion deli- 
 vered for the Court by Mr. Justice Derbigny, the fol- 
 lowing extract is made, as highly interesting. " With 
 respect (say the Court) to the law of nations, the prin- 
 ciple, recognized by most writers, may be reduced to 
 this ; that although no power is bound to give effect, 
 within its own territory, to the laws of a foreign coun- 
 try ; yet by the courtesy of nations, and from a consider- 
 ation of the inconveniences, which would be the result 
 of a contrary conduct, foreign laws are permitted to 
 regulate contracts made in foreign countries. But in 
 order that they may have such effect, it must, first, be 
 ascertained, that the parties really intended to be go- 
 verned by those laws, and had not some other country 
 in contemplation at the time of the contract. This 
 being previously recognized, the government, within 
 the bounds of which such foreign laws claim admission, 
 has next to consider, whether the enforcing of these 
 laws will cause no prejudice to its rights, or to the 
 rights of its citizens. 
 
 § 181. " Let us take the first exception, and apply 
 it to this case. Did the parties really intend to be go- 
 verned by the laws of the Mississippi Territory, and had 
 they not in contemplation, at the time of contracting 
 marriage, their return to this country ? If we were to 
 judge from their acts alone, there could be no hesitation 
 in saying, that they went to Natchez for the purpose 
 only of contracting marriage, and intended to come 
 back, as soon as it could conveniently be done. Their 
 remaining at Natchez only a few weeks, and that in a 
 
 1 Le Breton v. Nouchet, 3 Martin, R. CO, 73.
 
 288 CONFLICT OF LAWS. [CH. VI. 
 
 tavern, their return to New Orleans not long after, and 
 the continuation of their residence there, until the death 
 of the wife, would amount to an irresistible proof, that 
 they had this country in contemplation at the time of 
 contracting their marriage. But it is alleged, that how- 
 ever evident their intention may appear from these 
 facts, the appellant had really taken the resolution to 
 settle at Natchez. Evidence has been furnished of his 
 declarations to that purpose, both before his departure 
 and after his arrival in the Mississippi Territory. One 
 of his brothers has sworn, that, previous to his leaving 
 New Orleans, he told him and his other brothers, that 
 he intended to stay at Natchez. Other persons have 
 deposed, that letters, expressive of the determination of 
 the appellant to remain there, were by them received 
 from him, shortly after their dates. Without question- 
 ing the propriety of the admission of such testimony, 
 the Court is satisfied, that it is insufficient to counter- 
 balance the weight of the facts, which disclose the real 
 intention of the parties. 
 
 § 182. "But, should their intention still remain a 
 subject of doubt, we have next to consider, whether by 
 permitting the laws of the Mississippi Territory to re- 
 gulate this case, this government would not injure its 
 own rights, or the rights of its citizens. For, a foreign 
 law having no other force, than that which it derives 
 from the consent of the government, within the bounds 
 of which it claims to be admitted, that government 
 must be supposed to retain the faculty of refusing such 
 admission, whenever the foreign law interferes with its 
 own regulations. A party to this marriage was one of 
 those individuals, over whom our laws watch with par- 
 ticular care, and whom they have subjected to certain 
 incapacities for their own safety. She was a minor.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 289 
 
 Has she, by fleeing to another country, removed those 
 incapacities ? Her mother is a citizen of this State ; 
 she herself was a girl of thirteen years, who had no 
 other domicil than that of her mother. Did she not re- 
 main, notwithstanding her flight to Natchez, under the 
 authurity of this government ? Did not the protection 
 of this government follow her, wherever she went ? If 
 so, this government cannot, without surrendering its 
 rights, recognize the empire of laws, the effect of which 
 would be, to render that protection inefficacious. But 
 the laws of the Mississippi Territory, as stated by the 
 parties, do not only interfere with our rights, but are at 
 war with our regulations. By our laws a minor, who 
 marries, cannot give away any part of his property 
 without the authorization of those, whose consent is ne- 
 ■ cessary for the validity of the marriage. By the laws 
 of the Mississippi Territory all the personal estate of 
 the wife (that would embrace, in this case, every thing, 
 which she had) is the property of the husband. Again; 
 according to our laws, we cannot give away more, than 
 a certain portion of our property, when we have forced 
 heirs. But what our laws thus forbid, is permitted in 
 the Mississippi Territory. And shall our citizens be 
 deprived of their legitimate rights by the laws of another 
 government, upon our own soil ? Shall the mother of 
 Alexandrine Dussuau lose the inheritance of her de- 
 ceased child, secured to her by our laws, because her 
 daughter married at Natchez ? Shall our own laws be re- 
 duced to silence within our own precincts, by the superior 
 force of other laws ? If such doctrine were maintain- 
 able, it would be unnecessary for us to legislate. In 
 vain should we endeavor to secure the persons and the 
 property of our citizens. Nothing would be more easy, 
 than to render our precautions useless, and our laws a 
 
 CONFL. 25
 
 290 CONFLICT OF LAWS. [CH. VI. 
 
 dead letter. But the municipal law of the Mississippi 
 Territory, which is relied upon by the appellant, is not 
 the law which would govern this case, even there. The 
 law of nations is law at Natchez, as well as at New 
 Orleans. According to the principles of that law, * Per- 
 sonal incapacities, communicated by the laws of any 
 particular place, accompany the person, wherever he 
 goes. Thus, he, who is excused the consequences of 
 contracts for want of age in his country, cannot make 
 binding contracts in another.' Therefore, even if this 
 case were pending before a tribunal of the Mississippi 
 Territory, it is to be supposed, that they would recog- 
 nize the incapacity, under which Alexandrine Dussuau 
 was laboring, when she contracted marriage, and decide, 
 that such marriage could not have the effect of giving 
 to her husband, what she was forbidden to give. If 
 that be sound doctrine in any case, how much more so 
 must it be in one of this nature ; where the minor, al- 
 most a child, has, in all probability, been seduced into 
 an escape from her mother's dwelling, and removed in 
 haste out of her reach ? We cannot, here, hesitate to 
 believe, that the Courts of our neighboring Territory, 
 far from lending their assistance to this infraction of 
 our laws, would have enforced them with becoming se- 
 verity. For, if, when an appeal is made to those gene- 
 ral principles of natural justice, by which nations have 
 tacitly agreed to govern themselves in their intercourse 
 with each other, while nations entirely foreign to one 
 another feel bound to observe them, how much more 
 sacred must they be between governments, who, though 
 independent of each other in matters of internal regu- 
 lation, are associated for the purposes of common de- 
 fence, and common advantage, and are members of the 
 same great body politic ? " ^ 
 
 1 Mr. Justice Derbigny in Le Breton v. Nouchet, 3 Martin, R. 60, 66,71.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 291 
 
 [§ 182, a. Another important principle was recently 
 recognized in Louisiana, namely, that a marriage settle- 
 ment, executed in another State, where the parties at 
 the time resided, and where the property was situated, 
 if valid by the laws of the place where made, cannot be 
 affected by the subsequent removal of the parties to 
 another State.^] 
 
 § 183. In general, the doctrines thus maintained in 
 Louisiana, will, most probably, form the basis of the 
 American jurisprudence on this subject. They have 
 much to commend them in their intrinsic convenience 
 and certainty, as well as in their equity ; and they seem 
 best to harmonize with the known principles of the 
 common law in other cases. In concluding this topic, 
 the following propositions may be laid down, as those, 
 which, although not universally established or recog- 
 nized in America, have much of domestic authority for 
 their support, and have none in opposition to them. 
 
 § 184. (1.) Where there is a marriage between par- 
 ties in a foreign country, and an express contract 
 respecting their rights and property, present and future, 
 that, as a matter of contract, will be held equally valid 
 everywhere, unless, under the circumstances it stands 
 prohibited by the laws of the country where it is sought 
 to be enforced. It will act directly on movable pro- 
 perty everywhere. But as to immovable property in a 
 foreign territory, it will, at most, confer only a right of 
 action, to be enforced according to the jurisprudence 
 rei sitcB? 
 
 1 Young V. Templeton, 4 Louis. Ann. R. 254. 
 
 2 See Henry on Foreign Law, 48, 49 ; Id. 95 ; ante, ^ 143 ; Le Breton 
 V. Miles, 8 Paige, R. 2G1.
 
 292 CONFLICT OF LAWS. [CH. VI. 
 
 § 185. (2.) Where such an express contract applies 
 in terms or intent only to present property, and there 
 is a change of domicil, the law of the actual domicil 
 will govern the rights of the parties as to all future 
 acquisitions.^ 
 
 § 186. (3.) Where there is no express contract, the 
 law of the matrimonial domicil will govern as to all the 
 rights of the parties to their present property in that 
 place, and as to all personal property everywhere, upon 
 the principle, that movables have no situs, or rather, 
 that they accompany the person everywhere.^ As to 
 immovable property the law m sitce will prevail.^ 
 
 § 187. (4.) Where there is no change of domicil, the 
 same rule will apply to future acquisitions, as to pre- 
 sent property. (5.) But where there is a change of 
 domicil, the law of the actual domicil, and not of the 
 matrimonial domicil, will govern as to all future acqui- 
 sitions of movable property ; and, as to all immovable 
 property, the law rei sUce^ 
 
 1 Ante, § 171, 171 a. [Ordronaux r. Rey, 2 Sandf. Ch. R. 45.] 
 
 2 See Stein's Case, 1 Rose, Bank. Cases, Appx. 481 ; Selkrig v. 
 Davis, 2 Rose, Bank. Cas. 99 ; S. C. 2 Dow, 230, 250 ; 1 Burge, Comm. 
 on Col. and For. Law, Pt. 1, ch. 7, ^ 8, p. 619. 
 
 3 See Henry on Foreign Law, 48, 49 ; 1 Burge, Comm. on Col. and 
 For. Law, Pt. 1, ch. 7, ^ 8, p. 618, 619. 
 
 ■* How will it be as to personal or movable property antecedently ac- 
 quired. See ante, ^ 178 ; ante, ^ 157, 158. — Mr. Burge, advening to 
 the different opinions on this subject, has remarked ; " According to the 
 general doctrine of jurists, the property of the husband and wife, whether 
 it be acquired before or after the change of domicil, continues subject to 
 the law of community, notwithstanding they have removed to another 
 domicil, where that law does not exist. The change of the domicil neither 
 divests them of any right, which they had acquired under the law of their 
 matrimonial domicil, nor confers on them any right, which they could not 
 acquire under that law. If the law of community existed in their matri- 
 monial domicil, they will not cease to be in community, although they 
 should have acquired another domicil in a country where no law of com-
 
 CH. VI.] MARRIAGES INCIDENTS TO. 293 
 
 § 188. (6.) And here, also, as in cases of express 
 contract, the exception is to be understood, that the 
 
 munity was established ; and on the other hand, if there was no law of 
 community in their matrimonial domicil, they will not become subject to 
 the law of community, because they have taken up their domicil in a 
 country, where that law does exist. The concurrence of jurists in this 
 doctrine is so general, that there are few, who have dissented from it. This 
 doctrine seems to result as a necessary and legitimate conclusion from the 
 theory, that the community exists by force of the tacit agreement of the 
 parties, and which is considered of the same weight as if it had been an 
 express agreement ; because, if the rights of the parties, either in their 
 present property, or in their future acquisitions, had been conferred by an 
 agreement, they could not be varied by a change of domicil. But if this 
 theory be rejected, and the law of community has no greater operation 
 than any other real law, it can never be necessary to consider the effect of 
 a change of domicil on the interests of the husband and wife on their real 
 property, because those interests in their present property, as well as in 
 their future acquisitions, are determined by the lex loci rei sitae. The 
 application of this doctrine to the interests acquired by the husband and 
 wife in the personal property of each other under the law of their matri- 
 monial domicil, so far as it regards property acquired before their removal 
 from their matrimonial domicil, might, it seems, be maintained without 
 the aid of this theory. The matrimonial domicil of the parties may be 
 supposed to be in a country, where, as in England, the marriage is an ab- 
 solute gift to the husband of the wife's whole personal estate, the subse- 
 quent domicil may be in a country, where, as in British Guiana, the wife, 
 by virtue of the communio bonorum, retains an interest in her own, and 
 acquires an interest in her husband's personal property, or the matrimonial 
 domicil may have been in British Guiana, and the subsequently-acquired 
 domicil in England. In the one case the whole personal estate of the wife 
 has become vested in the husband, the wife brings no personal property 
 of her own into British Guiana, on which the law of community can 
 attach. In the other case, the wife arrives in England, not only retaining 
 an interest in her own, but having acquired an interest in the property of 
 her husband. The law of the matrimonial domicil has, in this case, 
 already made a disposition of the property of the husband and wife at the 
 time, when the parties and the property were subject to that law. In 
 neither case could the law of the new domicil be admitted without divesting 
 rights, which had been already legally acquired. But in the opinion of the 
 greater number of jurists, not only the property, which had been acquired 
 by the husband and wife before their removal from their matrimonial 
 domicil, but even that acquired in their new domicil, is subject to the law 
 of the matrimonial domicil ; and their opinion has been sanctioned, even to 
 25*
 
 294 CONFLICT OF LAWS. [CH. VL 
 
 laws of the place, where the rights are sought to be 
 enforced, do not prohibit such arrangements. For if 
 they do, as every nation has a right to prescribe rules 
 for the government of all persons and property within 
 its own territorial limits, its own law in a case of con- 
 flict ought to prevail.^ 
 
 § 189. (7.) Although, in a general sense, the law of 
 
 this extent, by the decisions in France. A person was married and domi- 
 ciled in L., where the civil law prevailed. He afterwards removed to Paris, 
 and established his domicil there. On his death his widow demanded a 
 share of his movables, and of the acquets made since the marriage. By an 
 arret of the 29th of March, 1640, her demand was rejected. A similar 
 decision was given in the case of a person married and domiciled in Nor- 
 mandy, who afterwards removed to, and established his domicil in, Paris. 
 A demand by his widow for a share of the acquets, made since the removal 
 from Normandy, was rejected. The application of this doctrine to the 
 acquisitions of personal property made by the husband and wife in their 
 new or actual domicil, can only be sustained by means of the theory of a 
 tacit agreement. Even its advocates do not all concur in subjecting future 
 acquisitions after a change of domicil, to the law of the matrimonial do- 
 micil. Thus, Huber was of opinion, that they are governed by the law of 
 the new or actual domicil : ' Cum primum vero.conjuges migrant ex una 
 provincia, (where the community prevailed,) in aliara, (where it does not 
 prevail,) bona, quae deinceps alteri adveniunt, cessant esse communia, ma- 
 nentque distinctis proprietatibus ; sicut res antea communes factae, manent 
 in eo statu juris, quem induerunt.' But if the law of community be a real 
 law, its power as to personal property cannot be more extensive than as to 
 real property. As it affects only such real property as is actually situated 
 in the country where it is established, so it affects personal property only 
 when its owner is actually domiciled in the country, where such law is 
 established, because the place of his domicil is the situs in fictione juris of 
 his movable property. The real law as to personal property is that, 
 which prevails in the place of the owner's actual domicil. He acquires 
 and holds it according to the disposition of that law, and it depends upon 
 that law, whether he and his wife acquire it for their joint benefit or for 
 his sole benefit." 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 7, 
 ^ 8, p. 619 to p. 622. Sec also Lashley v. Hogg, cited Id. p. 623 to 
 p. 625 ; Id. p. 626. 
 
 1 See Fergusson on Marr, and Divorce, 358 to 363 ; Id. 383, 392 to 
 422 ; Huberus, Lib. 1, tit. 3, De Conflict. Leg. ^ 2 ; ante, ^111.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 295 
 
 the matrimonial domicil is to govern in relation to the 
 incidents and effects of marriage ; yet this doctrine 
 must be received with many qualifications and excep- 
 tions. No other nation will recognize such incidents 
 or effects, when they are incompatible with its own 
 policy, or, injurious to its own interests. A marriage 
 in France or Prussia may be dissolved for incompati- 
 bility of temper ; but no divorce would be granted from 
 such a marriage, for such a cause, in England, Scotland, 
 or America.* "If" (said a learned Scottish judge, in a 
 passage already cited) '- a man in this country were to 
 confine his wife in an iron cage, or beat her with a rod 
 of the thickness of the judge's finger, would it be any 
 justification in any court to allege, that these were 
 powers, which the law of England conferred on a 
 husband, and that he was entitled to exercise them, 
 because his marriage had been celebrated in that 
 country ? " ^ And he added, with great emphasis ; 
 "Marriage is a contract siii generis ; and the rights, 
 duties, and obligations, which arise out of it, are mat- 
 ters of so much importance to the well-being of the 
 state, that they are regulated, not by the private con- 
 tract, but by the public laws of the state, which are 
 imperative upon all who are domiciled within its ter- 
 ritory." ^ 
 
 § 190. (8.) The doctrine of tacit contract to regulate 
 the rights and duties of matrimony, in cases where 
 there is no express contract, according to the law of the 
 place where the marriage has been celebrated, is ques- 
 
 ' Fergusson on Marr. and Div. 398. 
 
 2 Per Lord Robertson. See Fergusson on Marr. and Divorce, 399 ; 
 Id. 361. 
 
 3 Id. 399; Id. 361.
 
 296 CONFLICT OF LAWS. [CH. VL 
 
 tionable in itself ; and, even if admitted, must be liable 
 to many qualifications and restrictions.^ We have seen, 
 that it has been much doubted in Louisiana ; ^ and the 
 Scottish Courts have utterly refused (as we shall fully 
 see hereafter) to allow the doctrine of such a tacit con- 
 tract to regulate the right of divorce.^ 
 
 § 191. But a question may sometimes occur, what is 
 to be deemed in the proper sense of the rule the true 
 matrimonial domicil ? Is it the place where the actual 
 marriage is celebrated ? Or that where the contract of 
 marriage is entered into ? Or that where the parties 
 are domiciled, if the marriage is celebrated elsewhere ? 
 Or, if the husband or wife have different domicils, 
 whose is to be regarded ? These, and many other per- 
 plexing inquiries may be raised ; and foreign jurists 
 have not passed them over without examination.'* 
 
 § 192. Where the place of domicil of both the par- 
 ties is the same with that of the contract and the cele- 
 bration of the marriage, no difficulty can arise. The 
 place of celebration is clearly then the matrimonial do- 
 micil. But, let us suppose that neither of the parties 
 has a domicil in the place where the marriage is cele- 
 brated ; but it is a marriage in transitu, or during a 
 temporary residence, or on a journey made for that sole 
 purpose, animo revertcndi ; what is then to be deemed 
 the matrimonial domicil ? 
 
 § 193. The principle maintained by foreign jurists, 
 in such cases, is, that, with reference to personal rights 
 
 1 Ante, § 147 to 170. 
 
 2 Saul V. His Creditors, 17 Martin, R. 598 to 607 ; ante, § 157. 
 a Fergusson on Marr. & Div. 358 to 363 ; Id. 382, 393 to 422. 
 
 * See on this subject, 1 Burge, Coram, on Col. and For. Law, Pt. 1, 
 ch. 6, ^ 2, p. 244 top. 261.
 
 CH. VL] marriages — INCIDENTS TO. 297 
 
 and rights of property, the actual or intended domicil 
 of the parties is to be deemed the true matrimonial do- 
 micil ; or, to express the doctrine in a still more gene- 
 ral form, they hold, that the law of the place, where at 
 the time of marriage the parties intend to fix their do- 
 micil, is to govern all the rights resulting from the mar- 
 riage. Hence, they would answer the question pro- 
 posed, by stating, that in such a case the law of the 
 actual domicil of the parties is to govern, and not the 
 place of the marriage in transitu} 
 
 § 194. But, suppose a man, domiciled in Massachu- 
 setts, should marry a lady domiciled in Louisiana, what 
 is then to be deemed the matrimonial domicil ? Foreign 
 jurists would answer, that it is the domicil of the hus- 
 band, if the intention of the parties is to fix their resi- 
 dence there ; and of the wife, if the intention is to fix 
 their residence there ; and if the residence is intended 
 to be in some other place, as in New York, then the 
 matrimonial domicil would be in New York. Roden- 
 burg lays down the doctrine in explicit terms ; and 
 gives as a reason, that the marriage is presumed to be 
 contracted according to the laws of the place where 
 they intend to fix their domicil. Quia per destinationem 
 in hcis illis domicilii matrimonium contradmn esse intelUgi- 
 tur? Boullenois states the same doctrine ; and says, 
 that ordinarily, where the domicil of the husband and 
 
 1 2 Boullenois, Obser. 36, p. 260 ; Pothier, Trail6 de la Communaut6, 
 art. Prelim, n. 14, 15, 16 ; Voet, de Statut. § 9, ch. 2, ^ 5, 6, p. 264, 
 edit. 1715 ; Id. p. 319, 320, edit. 1661 ; 1 Burge, Comm. on Col. and For. 
 Law, Pt. 1, ch. 6, ^, 2, p. 244 to p. 261. 
 
 2 Rodenbiirg, tit. 2, ch. 5, ^ 15 ; 2 Boullenois, Appx. p. 47 ; 1 Boulle- 
 nois, 11, 682, 683 ; Id. Obser. 29, p. 802; Voet, De Statut. ^ 9, ch. 2, 
 ^ 5 ; p. 264, edit. 1716 ; Id. p. 319, 320, edit. 1601 ; Le Brun, Traite de 
 la Communaute, Liv. 1, ch. 2, % 42, 43, 46, 47, 48.
 
 298 CONFLICT OF LAWS. [CH. VL 
 
 that of the wife are not the same, the law of the hus- 
 band's domicil is to prevail, unless he means to establish 
 himself in that of his wife.^ Dumoulin is equally ex- 
 pressive. Hinc infertur (says he) ad qucBstionem qiiotidia- 
 nam de contractu dotis et matrimonii, qui censetur fieri nan 
 in loco, in qiio contraJiitur, sed in hco domicilii viri ; et in- 
 telKgitur, non de domicilio oj-iginis, sed de domicilio hahitor 
 tionis ipsius viri, de quo nemo duhitat, sed omnes conseniiiint.^ 
 This appears also to be the opinion of Mascardus, Bar- 
 tholus, Bouhier, Pothier, Merlin, and other distinguished 
 jurists.^ 
 
 § 195. Cujas affirms the same doctrine. Sed ex eo 
 contractu midier migravit in aliiim locum, id est, talis est 
 cmxtractus, id ex eo mulier statim migret in alium locum. 
 Ergo non is locus spectatur, sed ille, in quem sit migratio. 
 Hac ratione, midier non agit, uli matrimonium contraxit ; 
 sed uli ex matrimonio migravit, diveriit, aid aget.^ And in 
 so doing, he does no more than affirm the very doctrine 
 of the Pandects. Exigere dotem muUer debet illic, uU 
 maritus domicilium liabuit, non uU instrumentum dotale con- 
 scriptum est ; nee eni?n id genus contractus est, ut eum lo- 
 cum spectari oporteat, in quo instrumentum dotis factum est, 
 
 A 1 Boullenois, Obser. 29, p. 802 ; 2 Boullenois, Obser. 37, p. 259, 260, 
 265 ; Voet, De Stat. § 9, ch. 2, ^ 5, 6, p. 264, 265, edit. 1715 ; Id. p. 319, 
 320, edit. 1661. 
 
 2 Molinaei, Comment, ad Cod. Lib. 1, tit. 1, 1. 1, Conclus. de Statut. 
 Molin. Opera, Tom. 3, p. 5.55 ; 2 Boullenois, Obser. 37, p. 261. 
 
 3 2 Boullenois, Obser. 37, p. 260 to p. 265 ; Pothier, Trait6 de laCom- 
 munaut^, art. Prelim, n. 14, 15, 16; Bouhier, Cout. de Bourg. ch. 22, i^ 18 
 to 28 ; Merlin, Repert. Autoris. Maritale, ^ 10, art. 5, p. 244 ; Id. Com- 
 munaut^ de Biens, ^ 1, p. Ill ; 1 Burge, Comm. on Col. and For. Law, 
 Pt. 1, ch. 6, ^ 2, p. 241 to p. 261. 
 
 4 Cujas, ad Legem, Exigere dotem, Dig. Lib. 5, tit. 1,1. 65, Cujaccii 
 Opera, Tom. 7, p. 164, edit. 1758. See also Ford's Curators v. Ford, 14 
 Martin, R. 577 ; Le Brun, Traite de la CommunauUi, Liv. 1, ch. 2, ^ 41 ; 
 post, ^ 198.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 299 
 
 quam etim, in ciijiis domiciliiim et ipsa muliei' per conditionem 
 matrimonii erat reditura} 
 
 § 196. Iluberus holds very decisive language on the 
 same subject. " But (says he) the place where a con- 
 tract is made, is not so exactly to be looked at, but, 
 that, if the parties have in contracting had reference to 
 another place, that is rather to be regarded ; Contrax- 
 isse iinusquisque in co loco inteUigitur, in qiioj tit soiveret, se 
 obligavit^ Therefore, the place of the marriage contract 
 is not so much to be deemed the place where the nup- 
 tial contract is made, as that in which the parties con- 
 tracting matrimony, intend to live. Thus, it daily hap- 
 pens, that men in Friesland, natives or sojourners, 
 marry wives in Holland, whom they immediately bring 
 into Friesland. If this be their intention at the time 
 of the contract, there is no community of property, 
 although the marriage contract is silent, according to 
 the law of Holland ; but the law of Friesland in this 
 case is the law of the place of a contract.^ Prainde et 
 hens matrimonii contracti non tam is est, iibi contractus nup- 
 tialis iniliis est, quam in quo contrahentes matrimoniimi exer- 
 cere voluerunt ; ut omni die sit, homines in Frisia indigenas 
 aut incolas, diicere uxores in HoUandia, quas inde statim in 
 Frisiam deduciint ; idqve si in ipso contractu ineiindo pro- 
 positum liabeant, non oritur communio bonorum, etsi pacta 
 dotaiia sileant, secundum jus Hollandice, sed jus Frisice in 
 'hoc casu est hco contractus.'^ 
 
 S 197. Le Brun has discussed the question at con- 
 
 1 Dig. Lib. 5, tit. 1, ^ 65 ; Pothier, Pand. Lib. 5, tit. 1, n. .38. 
 
 2 Dig. Lib. 44, tit. 7, 1. 21 ; Pothier, Pand. Lib. 44, tit. 7, n. 21. 
 
 3 Iluberus, Lib. 1, tit. 3, ^ 10 ; S. P. Fergusson on Marr. and Div. 174 ; 
 Yoet, De Statut. ^ 9, ch. 2, ^ 5, G, p. 264, 265, edit. 1715 ; Id. p. 319, 
 320, edit. 1661. 
 
 4 Huberus, Lib. 1, tit. 3, ^ 10.
 
 300 CONFLICT OF LAWS. [CH. VL 
 
 siderable length, and has arrived at the same conclusion. 
 And he puts the case of a person domiciled in Nor- 
 mandy, where the law of community does not exist, 
 who marries in Paris, without any contract, where the 
 law of community does exist ; and he holds, that, if he 
 has not changed his domicil, but returns immediately 
 to Normandy, the law of Normandy will govern, and 
 no community of property will exist between himself 
 and his wife.^ 
 
 § 198. The same doctrine has been repeatedly acted 
 on by the Supreme Court of Louisiana. In one case 
 of a runaway marriage (already alluded to) in another 
 State by parties domiciled in Louisiana, who immedi- 
 ately afterwards returned, the Court held, as we have 
 seen, that the law of Louisiana governed the marriage 
 rights and property.^ In another case, where the par- 
 ties were married in one State, intending immediately 
 to remove into another, which intention was consum- 
 mated, the Court held, that the marriage rights and 
 property were governed by the law of the place of the 
 intended residence. On this last occasion, the Court 
 said ; " We think that it may be safely laid down as a 
 principle, that the matrimonial rights of a wife, who 
 marries with the intention of an instant removal for 
 residence into another State, are to be regulated by the 
 laws of her intended domicil, when no marriage contract 
 is made, or one without any provision in this respect." ^ 
 In the same case, the Court also recognized the general 
 rule, that, where the husband and wife have different 
 
 1 Le Brun, Traill de la Communaule, Liv. 1, ch. 2, ^ 46 to 51, ^ 55. 
 
 2 Le Breton v. Nouchet, 3 Martin, R. 60 ; ante, ^ 78, 180. 
 
 3 Ford's Curators v. Ford, 14 Martin, R. 574, 578.
 
 CH. VI.] MARRIAGES INCIDENTS TO. 301 
 
 domicils, the law of that of the husband is to prevail ; 
 because the wife is presumed to follow her husband's 
 domicil.^ 
 
 § 199. Under these circumstances, where there is 
 such a general consent of foreign jurists to the doctrine 
 thus recognized in America, it is not, perhaps, too much 
 to affirm, that a contrary doctrine will scarcely hereaf- 
 ter be established ; for in England, as well as in Ame- 
 rica, in the interpretation of other contracts, the law of 
 the place where they are to be performed, has been 
 held to govern.^ Treated, therefore, as a matter of tacit 
 matrimonial contract, (if it can be so treated,) there is 
 the rule of analogy to govern it. And treated as a 
 matter to be governed by the municipal law, to which 
 the parties were, or meant to be, subjected by their fu- 
 ture domicil, the doctrine seems equally capable of a 
 solid vindication.^ 
 
 1 Ford's Curators v. Ford, 14 Martin, 577. 
 
 2 Robinson v. Bland, 2 Burr, R. 1077 ; Lanusse v. Barker, 3 Wheaton, 
 R. 101 ; 4 Cowen, R. 513, note; 2 Kent, Comm. Lect. 39, p. 459, 3d 
 edit. ; Fergusson on Marr. and Divorce, 341, 342, 395, 396, 416. 
 
 3 See Fergusson on Marr. and Divorce, 339 to 346, 
 
 26
 
 302 CONFLICT OF LAWS. [CH. VII. 
 
 CHAPTER VII. 
 
 FOREIGN DIVORCES. 
 
 § 200. Having thus considered the operation of mar- 
 riage upon the personal capacity, and the property of 
 the parties, in the place of its celebration, and in foreign 
 countries, we next come to the consideration of the im- 
 portant subject of divorce.' Marriage is not treated as 
 a mere contract between the parties, subject as to its 
 continuance, dissolution, and effects, to their mere plea- 
 sure and intentions. But it is treated as a civil institu- 
 tion, the most interesting and important in its nature of 
 any in society. Upon it the sound morals, the domes- 
 tic affections, and the delicate relations and duties of 
 parents and of children, essentially depend. On this 
 account, it has, in many nations, the sanction and so- 
 lemnity of religious obligation superadded to it.^ And 
 it may be truly said, that Christianity, l)y giving to it 
 a more affectiiag and sublime morality, has conferred 
 upon mankind new blessings ; and has elevated wo- 
 man to the rank and dignity of an equal, instead of 
 being a humble companion, or a devoted slave to her 
 husband. 
 
 § 201. It is not my design to enter into any discus- 
 
 1 See on this subject, 1 Surge, Comm. on Col. and For. Law, Pt. l,ch. 
 8, ^ 1, p. 640 to p. 668 ; Id. ^ 2, p. 668 to p. 694. 
 
 2 See 1 Burge, Comm. on Col. and For. Law, Pt. 1, oh. 8, ^ 1, p. 642, 
 643 ; post, ^ 209.
 
 CH. VII.] FOREIGN DIVORCES. 303 
 
 sioD, as to the general right of the legislative power to 
 authorize directly or indirectly a dissolution of the 
 matrimonial state, and to release the parties from all the 
 future obligation thereof. It is deemed by all modern 
 nations to be within the competency of legislation to 
 provide for such a dissolution and release, in some 
 form, and for some causes. And there is no doubt, that 
 a divorce, regularly obtained according to the jurispru- 
 dence of the country, where the marriage is celebrated, 
 and where the parties are domiciled, will be held a 
 complete dissolution of the matrimonial contract in 
 every other country.^ I say where the marriage is cele- 
 brated, and where the parties are domiciled ; for both 
 ingredients are, or may be material ; and the presence 
 of one and the absence of the other may change the 
 legal predicament of the case, according to the jurispru- 
 dence of different countries, when the subject comes un- 
 der consideration therein. 
 
 § 202. The real difficulty is to lay down appropriate 
 principles to govern cases, where the marriage is cele- 
 brated in one place, and the parties are at the time 
 domiciled in another ; where afterwards there is a change 
 of domicil by one party, without a similar change by 
 the other ; where by the law of the place of celebration 
 the marriage is indissoluble, or dissoluble only under pe- 
 culiar circumstances, and where, by the law of another 
 place, it is dissoluble for various other causes, and even 
 at the pleasure of the parties. By the law of England, 
 marriage is indissoluble except by a special act of par- 
 liament.^ By the law of Scotland a divorce may be 
 
 1 2 Kent, Comm. Lect. 27, p. 107, 108, 3(1 edit. 
 
 2 1 Black. Comm. 440, 441 ; 1 Burge, Comm. on Col. and For. Law, 
 Pt. 1, ch. 8, ^ 1, p. 654 to p. 660.
 
 304 CONFLICT OF LAWS. [CH. VIL 
 
 had through the instrumentality of a judicial process, 
 and a decree on account of adultery.^ By the civil law 
 an almost unbounded license Avas allowed to divorces ; 
 and wives were often dismissed by their husbands, not 
 only for want of chastity, and for intolerable temper, 
 but for causes of the most frivolous nature.^ In France 
 a divorce may be judicially obtained for the cause of 
 adultery, excess, cruelty, or grievous injuries of either 
 party ; and in certain cases by mutual and persevering 
 consent.^ In America an equal diversity of principle 
 and practice exists. In some States, as in Massachu- 
 setts and New York, divorces are grantable by judicial 
 tribunals for the cause of adultery.^ In other States 
 divorces are grantable judicially for causes of far infe- 
 rior grossness and enormity, approaching sometimes al- 
 most to frivolousness. In other States divorces can be 
 pronounced by the legislature only, and for such causes, 
 as in its wisdom it may choose from time to time to 
 allow.^ 
 
 1 Fergusson on Marr. and Div. 1, 18 ; Erskine's Inst. B. 1, tit. 6, ^ 38, 
 ■13; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, § 1, p. 670 to 
 p. 680. 
 
 2 2 Kent, Comm. Lect. 27, p. 102, 103, 3d edit. ; 1 Brown, Civ. Law, 
 89 to 92 ; 1 Black. Comm. 441 ; Justin JSovellae, 117, ch. 8 ; Cod. Lib. 5, 
 tit. 17, 1. 8; Merlin, Repertoire Divorce, ^ 2, p. 149, 150; Polhier, 
 Trail6 de Mariage, art. 463; Van Leeuwen, Comm. B. 1, ch. 15, ^ 1, 2, 3. 
 
 3 Code Civil, art. 229 to 233 ; Id. 275, &c. See in Fergusson on Mar- 
 riage and Divorce, Appx. 448, the Prussian Code on the subject of Di- 
 vorce ; among others, incompatibility of temper, endangering life or health, 
 is a good cause of Divorce, art. 703. 
 
 4 This also is the law in Holland, in Prussia, and in the Protestant 
 States of Germany, in Sweden, Denmark, and Russia. Fergusson on Marr. 
 and Divorce, 202. 
 
 5 See 2 Kent, Comm. Lect. 27, p, 106 to 110; Id. p. 117, 118, 3d edit. 
 See also 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 8, ^ 1, p. 640 
 to p. 668, where are brought together in a general review the laws of dif- 
 ferent nations on the subject of divorce.
 
 CH. VII.] FOREIGN DIVORCES. 305 
 
 § 203. Some of the most embarrassing questions be- 
 longing to international jurisprudence arise under the 
 head of marriage and divorce. Suppose, for instance, a 
 marriage celebrated in England, where marriage is in- 
 dissoluble, and a divorce obtained in Scotland a vinculo 
 matrimonii, as it may be for adultery under the laws 
 thereof; will that divorce be operative in England, so 
 as to authorize a new marriage there by either party ? 
 Suppose a marriage in Massachusetts, where a divorce 
 may be had for adultery, will a divorce obtained in an- 
 other State, for a cause unknown to the laws of Massa- 
 chusetts, be held valid there ? If, in each of these cases 
 the divorce would be held invalid in the country, where 
 the marriage is celebrated, but it would be held valid, 
 where the divorce is obtained ; what rule is to govern 
 in other countries as to such divorce ? Is it to be 
 deemed valid, or invalid there ? Will a new marriage 
 contracted there by either party be good, or be not 
 good? These, and many other perplexing questions 
 may be put ; and it is difficult at the present moment 
 to give any answer to them, which would receive the 
 unqualified assent of all nations. 
 
 § 204. Other most perplexing inquiries juay grow 
 out of the consideration of the national character of the 
 parties ; whether they are both citizens, or subjects, or 
 both foreigners, or one a citizen, and the other a fo- 
 reigner ; whether the marriage is celebrated at home, or 
 celebrated abroad ; whether the jurisdiction of any court 
 to pronounce a decree of divorce is to be founded upon 
 the national character of the parties, or upon the cele- 
 bration of the marriage within the territorial jurisdic- 
 tion, or upon the domicil of the parties within it, or upon 
 the actual presence or temporary residence of one or 
 both of them at the time, when the process for divorce 
 
 26*
 
 306 CONFLICT OF LAWS. [CH. VIL 
 
 is instituted. And if, upon any of these grounds, the 
 jurisdiction is sustained, another not less important in- 
 f[uiry is, whether the law of divorce of the place of the 
 marriage, or that of the. place, where the suit is insti- 
 tuted, is to be administered by the court, before which 
 the suit is pending. 
 
 § 205. It seems to have been thought, that under the 
 Scottish law it is not necessary to found a jurisdiction 
 for divorce in the courts of Scotland, that both the par- 
 ties should at the time of the adultery committed, or at 
 the time of the suit brought, have their actual domicil 
 in Scotland. It seems to be sufficient, that the defend- 
 ant, against whom the suit is brought, is domiciled in 
 that kingdom, so that a citation may be served upon 
 him, and that a divorce under such circumstances may 
 be granted, whether the adultery is committed at home, 
 or in a foreign country. Undoubtedly this doctrine is 
 to be understood with the limitation, that the domicil is 
 real, and not pretended, and that it is bond fide, and not 
 by collusion between the parties for the mere purpose 
 of maintaining the suit and procuring the divorce.^ 
 
 ' Fergusson on Marr. and Divorce, Introd. p. 16, 17, 18 ; Id. p. 51; 
 Id. p. 114, 115, note; St. Aubyn v. Obrien, Id. Appx. p. 276 ; Id. note 
 B. p. 363 to p. 376; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch.8, 
 -^ 2, p. 672, 674 to 679, 688, 689. See McCarthy v. De Caix, cited in a note 
 to 3 Hagg. R. 642, and in Warrender u. Warrender, 9Bligh, R. 141, 142; 
 Conway v. Beazley, 3 Hagg. Eccles. R. 639, 645, 646 ; S. C. reported at 
 large in 2 Russ. & Mylne, 614, 618, 619, 620 ; Tovey v. Lindsay, 1 Dow, 
 R. 115, 131, 135, 136, 1S7 ; S, C. 2 Clark & Fin. 569, note ; post, ^ 216, 
 217, 218. See also Warrender v. Warrender, 9 Bligh, R. 89, 144 ; post, 
 § 226 a to 226 c. Mr. Chief Justice Gibson in delivering the opinion 
 of the Supreme Court of Pennsylvania, in a case of divorce, used the 
 following language. "In constructing our international law of divorce, 
 we naturally look for the materials of it in the jurisprudence of our ances- 
 tors, whose institutions are more congenial with our own than those of 
 their continental neighbors, and whose process of forensic discussion is
 
 CH. vil] foreign divorces. 307 
 
 § 206. A learned Scottish jurist, in remarking upon 
 the embarrassments arising out of this state of the law 
 
 usually more exact. But we find an irreconcilable difference betwixt the 
 decisions of the English and of the Scottish courts. The English judges 
 acknowledge the legitimacy of no jurisdiction which is not founded in the 
 law of divorce at the place of the marriage, if it be an English one ; 
 while the Scottish, in the other extreme, are willing to found theirs even 
 on a temporary residence of the complainant in the country of the forum. 
 Of the latter pretension, I shall say little more than that it is in truth a 
 usurpation of power, to intermeddle in the domestic concerns of a neighbor. 
 If a bona fide domicil, in the strictest sense of the word, were not essen- 
 tial to jurisdiction, there would be nothing to prevent the exhibition of a 
 libel by a proctor, and without the presence even of the complainant. 
 But the respondent's presence would be more essential still ; for a sentence 
 against one who was not subject to the jurisdiction, would be void on the 
 plainest principles of natural law. Moreover, it is not perceived, how the 
 actual presence of both of them could confer jurisdiction of a cause of 
 divorce, which was not, in its inception, subject to the law of the forum. 
 It seems to me the fallacy in the reasoning of the Scottish judges — plau- 
 sible though it be — consists in their assumption, that divorce is a penalty 
 everywhere annexed to a breach of the marriage contract, which, like a 
 civil cause of action attendant on the person, may be enforced anywhere ; 
 thus forgetting, that, whether it be a penalty at all, depends not on the 
 Scottish law, as an interpreter or avenger, but on the law of the domicil, 
 or else on the lex loci contractus, which exclusively furnishes the original 
 conditions. The English doctrine, on the other hand, is not more recon- 
 cilable to our principle of finite allegiance ; for notwithstanding the doubt 
 and manifest inclination of Doctor Lushington, in Conway v. Beazley, 
 (3 Hagg. Eccles. R. 369,) I take it to be settled by Lolley's case, 
 (I Russ. & Ryan's Crim. Cas. 236,) sanctioned in Tovey v. Lindsay 
 (1 Dow, R. 124,) by the preponderating weight of Lord Eldon's name, 
 that the dissolution of an English marriage, for any cause whatever, can 
 be effected so as to be acknowledged in that country only by English 
 authority. It was indeed intimated in Conway v. Beazley, that the ques- 
 tion of jurisdiction in Lolley's case, perhaps, turned on the difference 
 between temporary and permanent residence ; but the report certainly 
 does not indicate it, and besides, the conclusion attained was an unavoid- 
 able consequence of the British tenet of perpetual allegiance. Though 
 an English subject acquire a foreign character from a foreign domicil, 
 insomuch as to be treated as an alien for commercial purposes ; though 
 he formally renounce his primitive allegiance, and profess another ; he is 
 accounted but as a sojourner while abroad, and England, by the dogma of 
 her government, is his home, and his country still. Holding this dogma,
 
 308 CONFLICT OF LAWS. [CH. VII. 
 
 of Scotland, has made the following powerful observa- 
 tions. " These conclusions evidently demonstrate, that, 
 unless the remedy in this judicature shall be limited, 
 either to that, which the. Lex loci contractus affords, or 
 to that, which the Lex domicilii, taken in the same fair 
 sense, as in questions of succession, might give, the 
 public decrees of the only court of Scotland, which is 
 competent to pronounce one in such consistorial causes, 
 become proclamations to invite all the married, who 
 incline to be free, not in the rest of the British empire 
 alone, but in all countries where marriage is indisso- 
 luble by judicial sentence, to seek that object in this 
 tribunal. Adultery and presence within our territory 
 are the only requisites to found the jurisdiction by 
 citation. What numbers of foreign parties may accept 
 such an offer, and may even commit the crime here, for 
 the very purpose of affording ground for the action, it 
 is impossible to conjecture. But it is manifest, that, in 
 exact proportion to their number, injury to the morals 
 of this country must follow ; and, by setting at nought 
 
 it would be strange did she tolerate foreign interference with her domestic 
 relations within our pale. Insisting on jurisdiction of his person, absent 
 or present, she necessarily regards an attempt to change any one of these 
 as an invasion of her sovereignty; and in that aspect, it cannot be denied, 
 that the matter is within her province and her power : for though the 
 states of marriage is juris gentium, the institution is undoubtedly a subject 
 of municipal regulation. And it is this perpetual allegiance to the country-, 
 its institutions, and its laws — not an indissolubility of the marriage con- 
 tract from the presumptive will and reservation of the parties — which is 
 the root of the English doctrine. It truly assumes, that marriage is con- 
 tracted on the basis of the laws, and that these forbid a British subject to. 
 dissolve it by the authority of any other country ; but take aw^ay the law 
 of perpetual allegiance, and you take away the foundation of the presump- 
 tive pledge not to submit the duration of it to foreign action." Dorsey v. 
 Dorsey, 7 Watts, 349 ; S. C. 1 Chand. Law Reporter, p. SSg, 289. See 
 Maguire v. Maguire, 7 Dana, R. 181.
 
 CH. VII.] FOREIGN DIVORCES. 309 
 
 the laws of other nations, reproach must be brought 
 upon our own. For all foreign parties, while matters 
 stand upon this footing, have it in their power, with 
 the help of evidence, as easily provided, as it may be 
 disgusting and impure, to oblige the Scotch Consistorial 
 Court to entertain the whole mass of their foreign 
 causes, although there is no fair interest to insist, that 
 the municipal law of Scotland shall decide these by its 
 own peculiar rules. To what extent, therefore, the 
 good order of society may eventually be disturbed by 
 this compulsory abuse and pollution of its jurisdiction, 
 in consequence of the doubts and contests that must 
 ensue, as to rights of legitimacy and succession, no cal- 
 culation can be made." ^ 
 
 § 207. Upon the point, what is the rule of divorce, a 
 learned Scottish judge has made the following remarks, 
 in a case depending before him in judgment.^ "With 
 us, the laws relative to divorce are founded on Divine 
 authority. How can a person withdraw himself from 
 obedience to such laws ? Are these laws relaxed as to 
 a person domiciled in Scotland, because his marriage is 
 contracted in a country where the law of divorce is 
 different ? If two natives of Scotland were married in 
 France or Prussia according to the laws of those coun- 
 tries, the marriage would no doubt be valid here. But 
 would they be entitled to come into the Commissary 
 Court, and insist for a dissolution a vinculo matrimonii, 
 merely because their tempers were not suitable, which, 
 in France, was a ground of divorce, or for any of the 
 numberless reasons for dissolving a marriage, which are 
 
 ' Fergusson on Marr. and Div. Introd. p. 18, 19. 
 
 ~ Loid Robertson; The Cases of Edmonstone, of Levelt, and of Forbes, 
 in Fergusson, Appx. 383 ; Id. 398. See also Id. 415.
 
 310 CONFLICT OF LAWS. [CH. VIL 
 
 allowed by the laws of Prussia ? But, if we would not 
 listen to the Lex loci, when it flicilitates divorce to a 
 degree which our law considers as inconsistent with the 
 best interests of society, and as not warranted by the 
 Divine law, on what principle are we to give effect to 
 Ihe Lex loci, which prohibits divorce, even adulterii 
 causa, though permitted in this country under the 
 sanction of the Divine law ? " 
 
 § 208. These passages are sufficiently significant, as 
 to the intrinsic difficulties of the subject, looking only 
 to the law of divorce of a single country. But, when . 
 we look at the almost endless diversities of foreign con- 
 tinental jurisprudence on the same subject, and the 
 little regard which is habitually paid in that jurispru- 
 dence to the decrees of foreign courts, especially in 
 matters which concern persons belonging to any other 
 continental sovereignty; it ought not to surprise us, 
 that one nation should hold its own law of divorce of 
 universal obligation and authority, and that another 
 should yield it up in favor of the law of the domicil of 
 the parties. 
 
 § 209. Upon the continent of Europe there has long 
 existed a known distinction between the Catholics and 
 the Protestants upon the subject of divorce. The 
 former, according to the doctrine of the Romish Church, 
 consider marriage as a sacrament, and in its effects to 
 be governed by the Divine law ; and according to their 
 interpretation of that law it was formerly held to be 
 indissoluble.^ The Protestants, on the contrary, have 
 
 1 See Fergusson on Marr. and Divorce, Appx, note M. p. 443 ; 
 Heinecc. Elera. Juris. Germ. tit. 14, ^ 328 to 332 ; Dalrymple w. Dal- 
 rynnple, 2 Hagg. Consist. R. 63, 64, 67 ; 1 Burge, Comm. on Col. and 
 For. Law, Pt. 1, ch. 8, ^ 1, p. 642, 643.
 
 CH. VII.] FOREIGN DIVORCES. 311 
 
 not generally considered it as a sacrament ; but many, 
 if not all of them, have considered it mainly as a civil 
 institution, and subject to the legislative authority, as 
 matter of. public police and regulation.^ 
 
 § 210. In Catholic France, we are informed, that, un- 
 til some time after the revolution, (until 1792,) marriage 
 was always treated as indissoluble.^ "Our Church" 
 (sa3's Merlin) " never approved of divorce, properly so 
 called. It has always regarded it as contrary to the 
 precept, Quod Dens coiy'unxU, homo nan separet ; What 
 God hath joined together, let not man put asunder.^ It 
 is, therefore, a perpetual maxim among us, that mar- 
 riage cannot be dissolved by means of a divorce." * Po- 
 thier says ; Marriage is not dissolved, but by the natu- 
 ral death of one of the parties ; while they live, it is in- 
 dissoluble.^ He adds, that, though divorce was permit- 
 ted by the Christian Emperors, the Church regarded it 
 as prohibited by the Gospel ; and that it is not permit- 
 ted by the French law for any cause whatsoever.^ 
 
 § 211. Protestants have dealt differently by it.'^ In 
 Scotland, which proposes on this subject to be governed 
 
 1 1 Black. Comm. 433 ; 2 Haag. Consist. R. 63, 67; 1 Burge, Comm. 
 on Col. and For. Law, Pt. 1, ch. 8, ^ 1, p. 648,649; Id. p. 650 top. 653, 
 
 2 We have already seen, that by the Code Civil of France, art. 229 to 
 233, divorce is allowed in a variety of cases. Upon the restoration of the 
 Royal Family, in 1816, it seems that the existing law of divorce was 
 abolished. Merlin, Repertoire, Divorce, ^ 4, p. 161. Whether, since 
 the revolution of 1830, it has been reinstated, I am not at this moment 
 able to say. See Duranton, Cours de Droit Francaise, Vol. 14, p. 535, 
 note. 
 
 3 Matthew, ch. 19, v. 6. 
 
 4 Merlin, Repertoire, Divorce, ^ 3, p. 15J. 
 
 5 Pothier, Trait6 du Mariage, n. 462. 
 
 6 Pothier, Traits du Mariage, n. 464. 
 
 7 Id. n. 465 ; ante, § 209.
 
 312 CONFLICT OF LAWS. [CH. YIL 
 
 exclusively by the Scriptures, divorce is allowed for the 
 Scriptural causes, for adultery, and for wilful desertion.^ 
 In many other Protestant countries, it is not treated as 
 indissoluble, except for Scriptural causes ; but it may 
 be dissolved for other causes. In England, it is ne- 
 ver dissolved, except by an act of Parliament, and for 
 adultery.^ In the Protestant continental nations of 
 Europe many other causes of divorce are known ; and 
 in America, as we have seen, it is generally treated as 
 a matter of civil regulation.^ 
 
 § 212. The conflict of laws on the subject of divorce 
 does not seem to have undergone much discussion 
 among the continental jurists ; at least I have not been 
 able to trace any systematic examination of the subject 
 in those works which are within my reach, and in which 
 almost all other topics of the conflict of laws are so 
 amply treated. The silence of the French jurists may 
 be accounted for, in a great measure, from the uniform- 
 ity of operation of the Catholic religion and its canons 
 over all the provinces of that kingdom ; from the strong 
 probability, that few cases of foreign divorces between 
 French subjects were ever judicially examined ; and 
 from the natural conclusion, that, as in their view 
 Christianity made the marriage union indissoluble, no 
 earthly tribunal, either foreign or domestic, could right- 
 fully pronounce a sentence of divorce. The silence of 
 other Catholic countries may be accounted for in the 
 
 1 Erskine's Inslit. B. 1, tit. 6, § 43, 44 ; Fergusson on Marr. and Div. 
 Appx. note H. p. 423. 
 
 2 Ante, ^ 202. 
 
 3 See 1 Black. Comm. 441 ; Code Civil of France, art. 229 to 233 ; 
 Fergusson on Marr. and Div. Appx. note N. p. 448; 2 Kent, Comm. 
 Lect. 27, p. 95 to p. 106, 3d edit. ; Van Leeuwen, Comm. B. 1, ch. .15, 
 M to 6.
 
 CH. YII.] FOEEIGN DIVORCES. 313 
 
 same way. But it is not so easy to assign a satisfac- 
 tory reason for the omission of the Protestant conntries 
 of the continent of Europe to discuss the subject at 
 large. It is highly probable, that, in those countries, 
 the parties have been referred to their own matrimonial 
 forum, either to furnish the true rule to expound the 
 contract, or to administer the law of divorce, or for both 
 purposes. This course has not been without example, 
 even in our own country, upon cases bearing a close 
 affinity.^ 
 
 § 213. Merlin has treated the question purely as one 
 arising under the French law, either with reference to 
 the allowance of divorces under the legislation of 1792, 
 or with reference to the prohibition of divorces after 
 the restoration of the Bourbons in 1816.^ He asks the 
 question, whether, in virtue of the new law (of 1792) 
 which introduced divorce, a marriage celebrated under 
 the old law, which prohibited divorce, could be dis- 
 solved ; and vice versa, whether a marriage celebrated 
 after the new law, which permitted divorce, could be 
 dissolved after the promulgation of the law (of 1816) 
 which prohibited divorce.^ He says, that if divorce 
 was, as the state of the parties {Vetat des ej)otix), the 
 immediate effect and simple consequence of the mar- 
 riage, the question might be easily answered."* Upon 
 this hypothesis, as the state of the parties, the right of 
 divorce would depend altogether upon the law at the 
 time when the marriage was celebrated ; because then, 
 in the first case put, the contract must be deemed one 
 
 1 2 Kent, Comm. Lect. 27, p. 108, 3d edit. 
 
 2 Ante, ^ 210, 
 
 o 3 Merlin, Repertoire, Effet R6troactif, ^ 3, n. 2, art. 6. 
 
 4 Id. ^ 3, n. 2, art. 6, p. 19. 
 CONFL. 27
 
 314 CONFLICT OF LAWS. [CH. VII. 
 
 for an indissoluble union ; and in the second case, a 
 contract dissoluble for the proper causes of divorce.^ 
 But, he goes on to state, that divorce does not depend 
 upon the intention of the parties, nor is it a conse- 
 quence, or interpretation of it. The legislature, in 
 allowing or prohibiting divorce, has regard only to con- 
 siderations of public order, and not to the mere con- 
 tract of the parties. They are not permitted by pri- 
 vate agreement to change the laws, or to make a mar- 
 riage dissoluble or indissoluble in contravention of the 
 policy of the State.^ He, therefore, comes to the con- 
 clusion, that in a French court a divorce in such case 
 would be granted, or denied, according to the law of 
 France at the time of the suit.^ 
 
 § 214. The question, how a marriage in *a foreign 
 country between French subjects, or between foreign- 
 ers, would be affected by a naturalization or domicil in 
 France, is not here touched. In another work, how- 
 ever, treating of moot questions, he has recently dis- 
 cussed the point. He asks, whether French subjects, 
 married in France since the repealing act of 1816, who 
 have abandoned their country, and become naturalized 
 in a country where divorce is allowed, could institute a 
 suit there, and dissolve their marriage by a decree of 
 divorce pronounced there by mutual consent. He sup- 
 ports the affirmative upon the general reasoning, by 
 which he has sustained the doctrine in the preceding 
 paragraph.^ It would seem, however, from his own 
 statement, that this is quite an open question in France. 
 
 § 215. It is to the decisions of the English and Scot- 
 
 1 Ibid. 2 Ibid. 3 Ibid. 
 
 ^ Merlin, Questions de Droit, Divorce, ^ H, p. 350 ; ante, ^ 213.
 
 CH. VII.] FOREIGN DIVORCES. 315 
 
 tish Courts, however, that we must look for the most 
 thorough and exact discussion of this subject. From 
 the different nature of the respective laws of England 
 and Scotland upon the subject of divorce, from their 
 national union, and from their constant, easy, and fa- 
 miliar intercourse, the Courts of both countries have 
 been frequently called upon to pronounce very elabo- 
 rate judgments respecting the jurisdiction and law of 
 divorce in suits and contestations before them. 
 
 § 216. Several questions on this subject have been 
 recently discussed in the Courts of Scotland. One is, 
 whether a permanent domicil of the parties is indispen- 
 sable to found a jurisdiction in cases of divorce in the 
 Scottish tribunals ; or whether a citation given formally 
 to the party defendant, or left at his dwelling-place in 
 Scotland, after he has been forty days there, is suffi- 
 cient to subject him to the jurisdiction of those courts 
 in a suit for divorce. In the case, in which this ques- 
 tion was principally discussed, the marriage was cele- 
 brated in England ; the husband many years afterwards 
 abandoned his wife, and went to Scotland to reside ; 
 and the wife commenced a suit for divorce against her 
 husband in the Scottish Consistorial Court. The Court 
 were of opinion, that as the parties were English, and 
 never cohabited as husband and wife in Scotland, and 
 there was no proof, that the husband had taken up a 
 fixed and permanent residence in Scotland, the suit 
 ought to be dismissed upon the ground of a want oi 
 jurisdiction. Upon appeal the decree was reversed by 
 the superior tribunal, and a decree of divorce was ulti- 
 mately pronounced.^ 
 
 1 Utterton v. Tewsh, Fergusson on Mair. and Divorce, p. 1 to p. 55 ; 
 Id. p. 56 to p. 67.
 
 316 CONFLICT OP LAWS. [CH. VIL 
 
 § 217. The leading grounds of the reversal were ; 
 " That the relation of husband and wife is a relation 
 acknowledged/z(re gentium ; that the duties, obligations, 
 and rights to redress wrongs incident to that relation, 
 as recognized by the law of Scotland, attach on all mar- 
 ried persons living within the territory and subject to 
 that law, wheresoever their marriage may have been 
 celebrated ; that jurisdiction, or the right and duty of 
 the Courts of Scotland to administer justice in such mat- 
 ters, over persons not natural born subjects, arises from 
 the person sued being resident within the territory at 
 the time of their citation and appearance, or being duly 
 domiciled, and being properly cited accordingly, at the 
 instance of a person having a sufficient interest and title, 
 and proceeding in due form of law." ^ The result of 
 this decision is, that permanent domicil, or the animus 
 remanendi, is not necessary to found the jurisdiction. 
 In several other succeeding cases, the Court have fol- 
 lowed up the same doctrine, affirming that a temporary 
 residence is sufficient to found the jurisdiction, notwith- 
 standing the permanent jurisdiction of the parties is in 
 another country.^ 
 
 § 218. This doctrine has been maintained by the Scot- 
 tish judges with great ability and learning, and no one 
 can read their reasoning without admitting its force. 
 It has not, however, been deemed satisfactory in Eng- 
 land. In a very important case before the twelve judges 
 (Lolley's case,) where English subjects were married in 
 
 1 Utterton v. Tewsh, Fergusson on Marr. and Div. p. 155, 15G ; Id. p. 
 57 to p. 67. 
 
 2 Dunlze v. Levett, Fergusson on Marr. and Div. p. 68 to p. 167 ; Fd- 
 monstone v. Lockhart, Id. p. 168 to p. 208 ; Butler v. Forbes, Id. p. 209 
 to p. 225 ; Kibblewhite v. Rowland, Id. p. 226 to p. 248 ; Gordon v. Pye, 
 Td. p. 276 to p. 362; Id. p. 383 to p. 423.
 
 CH. vil] foreign divorces. 317 
 
 England, and afterwards the husband went to Scotland, 
 and procured a divorce a vinculo there, and then re- 
 turned to England, and married another wife, it was 
 decided, that the second marriage was void ; and the 
 husband was guilty of bigamy.* It has been commonly 
 supposed, that this decision proceeded upon the broad 
 and general ground, that an English marriage is inca- 
 pable of being dissolved under any circumstances by a 
 foreign divorce ; and so it seems to have been under- 
 stood by Lord Eldon on a later occasion.^ It has been 
 
 1 Lolley's Case, 1 Russ. & Ryan's Cr. Cases, 236. See Warrender v. 
 Warrender, 9 Bligh, R. 122, 123, 127, 128, 129, 130, 139 to 143. 
 
 ~ Tovey u. Lindsay, 1 Dow, R. 117, 131. See also McCarthy v. Dc 
 Caix, 1831, cited 3 Hagj^. Eccles. R. 642, note ; S. C. 2 Russ. & Mylne, 
 614, 620. Lord Eldon on this occasion is reported to have used the fol- 
 lowing language. " Here then we have a case, in which both parties 
 were domiciled in England, and then the husband went to Scotland, where 
 it was said he had a domicil by reason of origin, and his being heir of entail 
 of an estate there, and instituted a suit against his wife, which she said did 
 not affect her in England ; and, if his domicil was at Durham, the answer 
 would be sufficient, though the rule of law should be admitted, that the do- 
 micil of the wife followed that of the husband. But if the jurisdiction by 
 reason of the original domicil could be maintained, it would be attended 
 with the most important consequences to the law of marriage. The deci- 
 sion in the second case appeared rather singular, when connected with the 
 decision in the first. They" stated, as a main ground of the judgment in 
 the second cause, that the respondent was confessedly domiciled ix\ Scot- 
 land, and that therefore they had jurisdiction, which appeared to imply a 
 doubt, whether they had jurisdiction in the first cause. If the first cause 
 could be supported, there was no occasion for the second. But, suppose 
 the respondent were domiciled in Scotland at the time of the alleged acts 
 of adultery there, the question still remained, whether in 1810 he could in- 
 stitute a suit against her with effect, unless she had changed her forum 
 likewise, merely upon the ground of the fiction, which had been stated. 
 This was a question of the very highest importance." Lord Brougham, 
 in delivering his own judgment in McCarthy v. De Caix, 2 Russ. »& 
 Mylne, 614, 620, said ; " I find from the note of what fell from Lord El- 
 don on the present appeal, that his Lordship labored under considerable 
 misapprehension as to the facts in Lolley's case. He is represented, as 
 saying, he will not admit, that it is the settled law, and that therefore he 
 27*
 
 318 CONFLICT OF LAWS. [CH. VIL 
 
 suggested, however, that Lord Eldon "was not prepared 
 to carry the doctrine to such a length ; and certainly 
 
 will not decide, whether the marriage was or not prematurely determined 
 by the Danish divorce. His words are, ' 1 will not without other assist- 
 ance take upon myself to do so.' Now, if it has not validly and by the 
 highest authorities in Westminster Hall been holden, that a foreign divorce 
 cannot dissolve an English marriage, then nothing whatever has been es- 
 tablished. For what was Lolley 's case 1 It was a case the strongest pos- 
 sible in favor of the doctrine contended for. It was not a question of civil 
 right but of felony. Lolley had bona fide, and in a confident belief, founded 
 on the authority of the Scotch lawyers, that the Scotch divorce had effect- 
 ually dissolved his prior English marriage, intermarried in England, living 
 his first wife. He was tried at Lancaster for bigamy, and found guilty ; 
 but the point was reserved, and was afterwards argued before all the most 
 learned judges of the day, who, after hearing the case fully and thoroughly 
 discussed, first at Westminster Hall, and then at Serjeant's Inn, gave a 
 clear and unanimous opinion, that no divorce or proceeding in the nature of 
 divorce in any foreign country, Scotland included, could dissolve a mar- 
 riage contracted in England ; and they sentenced Lolley to seven years' 
 transportation. And he was accordingly sent to the hulks for one or two 
 years; though in mercy, the residue of his sentence was ultimately remit- 
 ted. I take leave to say, he ought not to have gone to the hulks at all, 
 because he had acted bona fide, though this did not prevent his conviction 
 from being legal. But he was sent notwithstanding, as if to show clearly 
 that the judges were confident of the law they had laid down ; so that, 
 never was there a greater mistake than to suppose, that the remission ar- 
 gued the least doubt on the judges. Even if the punishment had been 
 entirely remitted, the remission would have been on the ground, that there 
 had been no criminal intent, though that had been done, which the law 
 declares to be felony. I hold it to be perfectly clear, therefore, that Lol- 
 ley's case stands as the settled law of Westminster Hall at this day. It 
 has been uniformly recognized since ; and in particular it was repeatedly 
 made the subject of discussion, before Lord Eldon himself, in the two ap- 
 peals of Tovey v. Lindsay in the House of Lords, when I furnished his 
 Lordship with a note of Lolley's case, which he followed in disposing of 
 both those appeals, so far as it affected them. That case then settled two 
 points ; first, that no foreign proceeding in the nature of a divorce in an 
 ecclesiastical court could effectually dissolve an English marriage ; and, 
 secondly, that a Scotch divorce is not such a proceeding in an ecclesias- 
 tical court, as to bring the case within the exception in the Bigamy Act, 
 for which nothing less than the sentence of an English ecclesiastical court 
 is sufficient." See also 2 Clarke & Finell. R. 567 note, and Warrender 
 r. Warrender, 9Bligh, R. 89, 121, 124, 127; Id. 141, 142, 143; post, 
 ^219 a.
 
 CH. VII.] FOREIGN DIVORCES. 319 
 
 there was room in that case for a distinction, founded 
 upon the fact, that neither of the parties at the time of 
 the suit for the divorce in Scotland had a lond fide do- 
 micil there ; but that they both, at that very time in 
 fact had their domicil in England, where the marriage 
 was had/ 
 
 § 219. It has been stated by another learned judge, 
 in a very recent case, that Lolley's case turned upon 
 the very distinction, in point of jurisdiction, between a 
 temporary and fugitive residence for the purpose of a 
 divorce, and hond fide change of domicil by the husband 
 and wife, animo remanendi. And upon the ground of 
 that distinction, in a case, where there was no change 
 of domicil, and the parties were not at any time hond 
 fide domiciled in Scotland, he declared a Scottish di- 
 vorce from an English marriage utterly void.^ The 
 language of his opinion is so important, that it deserves 
 to be quoted at large. " A case," (says he,) '^in which 
 all the parties are domiciled in England, and resort is 
 had to Scotland (with which neither of them have any 
 connexion) for no other purpose, than to obtain a divorce 
 a vinculo, may properly be decided on principles, which 
 would not altogether apply to a case differently circum- 
 stanced ; as, where, prior to the cause arising, on account 
 of which a divorce was sought, the parties had been 
 hond fide domiciled in Scotland. Unless I am satisfied, 
 that every view of this question had been taken, the 
 Court cannot from the case referred to (Lolley's case) 
 
 1 Lolley's Case, 1 Russ. & Ryan's Cr. Cases, 237; S. C. 2 Clarke & 
 Finell. R. 567, note. 
 
 2 Dr. Lushington in Conway r. Beazley, 3 Hagg. Eccles. R. G39, 645, 
 646, 647, 653.
 
 320 CONFLICT OF LAWS. [CH. VII. 
 
 assume it to have been established as a universal rule, 
 that a marriage had in England, and originally valid by 
 the law of England, cannot, under any possible circum- 
 stances, be dissolved by the decree of a foreign court. 
 Before I could give my assent to such a doctrine, (not 
 meaning to deny that it may be true,) I must have a 
 decision, after argument, upon such a case, as I will 
 now suppose, viz. a marriage in England, the parties 
 resorting to a foreign country, becoming actually bond 
 fide domiciled in that country, and then separated by a 
 sentence of divorce pronounced by the competent tribu- 
 nabof that countr3^ I am not aware, that that point 
 has ever been distinctly raised ; and I think, I may say 
 with certainty, that it has never received any express 
 decision. I believe the course of decision in Scotland 
 up to the present hour has been to consider, that the 
 Scotch Courts have a right to entertain jurisdiction 
 with respect to marriages had in England, after the 
 parties have been residents for a certain period in Scot- 
 land, though that period had been infinitely too short to 
 constitute what we should call a legal domicil ; and 
 that those courts have proceeded in such cases to di- 
 vorce a vinculo. It is obvious, that many most import- 
 ant differences may arise in cases of this description. 
 Two Scotch persons, married in England, may after- 
 wards go to reside in Scotland. Again ; one of the 
 contracting parties may be English, and the other 
 Scotch. If the law of Scotland continue such, as their 
 courts have hitherto held it to be, and if the decision in 
 Lolley's case be of universal application, the issue of 
 the second marriage may be legitimate in Scotland, 
 and illegitimate in England. The son may take the 
 real estate in Scotland, and not the real estate in Eng- 
 land. He might possibly be a Scotch Peer, and lose
 
 CH. VII.] FOREIGN DIVORCES. 321 
 
 his English title, and with it the English estates, the 
 only support of his Scotch Peerage." ' 
 
 § 220. Independent of the point of general jurisdic- 
 tion, founded upon the flict of the domicil of both the 
 parties, or at least of the party defendant in the suit 
 for a divorce, which for a series of years was most 
 elaborately discussed, and remained in a state of dis- 
 tressing uncertainty, as well as to the effect of a per- 
 manent domicil, as to that of a temporary domicil, to 
 found a sentence of divorce, the Scottish Courts have 
 been called on to decide other questions of a broader 
 character, and involving more extensive consequences. 
 In the first place, the general question already hinted 
 at, whether an English marriage between English sub- 
 jects, being indissoluble by the law of England, can 
 under any possible circumstances be dissolved by a 
 decree of divorce in Scotland. In the next place, 
 whether a marriage in Scotland by English subjects, 
 domiciled at the time in England, is dissoluble under 
 any circumstances by a decree of divorce in Scotland. 
 In the next place, whether, in case a marriage in Eng- 
 land, it will make any difference, that the parties are 
 both Scotch persons, domiciled in Scotland, or after- 
 wards become lond fide and permanently domiciled 
 there. 
 
 § 221. Upon these questions the highest tribunals 
 in Scotland have come to the following conclusions. 
 First, that a marriage between English subjects in 
 England, and indissoluble there, may be lawfully dis- 
 solved by the proper Scottish Court for a cause of 
 divorce, good by the law of Scotland, when the parties 
 are within the process and jurisdiction of the court ; 
 
 1 Conway v. Beazley, 3 Hagg. Eccles. R. 645, 646, 647, 653.
 
 322 CONFLICT OF LAWS. [CH. VIL 
 
 or, in other words, that it is not a valid defence against 
 an action of divorce in Scotland for adultery com- 
 mitted there, that the marriage was celebrated in Eng- 
 land. Secondly, that a Scotch marriage by persons, 
 domiciled at the time in England, is dissoluble in like 
 manner by the proper Scottish Court; or in other 
 words, that it is not a valid defence, that the parties 
 were domiciled in England, when the marriage was 
 celebrated in Scotland. Thirdly, that in case of a 
 marriage in England, it will make no difference, that 
 the parties are Scottish persons, domiciled in Scotland, 
 or %re afterwards lond fide and permanently domiciled 
 there ; or, in other words, that it is not a valid defence, 
 that the parties are Scottish persons, happening to be 
 in England when their marriage was celebrated, but 
 who afterwards returned to Scotland, and cohabited, 
 and continued domiciled there. The result of these 
 opinions (the unanimous opinions of the judges of the 
 Court of Session) is, that the mere fact of the marriage 
 having been celebrated in England, whether it is be- 
 tween English parties or Scottish parties, or both, is not 
 per se a defence against a suit of divorce for adultery 
 committed there.H 
 
 § 222. The reasoning, by which these opinions are 
 maintained, as it may be gathered from comparing the 
 arguments of the different judges, is to the following 
 effect. The relation of husband and wife, wherever it 
 may have been originally constituted, and the parties 
 thereto been connected, is entitled to the same protec- 
 tion and redress from the Courts of justice in Scotland, 
 as to wrongs committed in Scotland, which belong 
 
 ^ Cases of Edmonstone, Levetl, and Forbes, Fergusson on Marr. and 
 Div. 3S3, 392, 393 ; Id. 114, 115.
 
 CH. VII.] FOREIGN DIVORCES. 323 
 
 of right to that relation by the law of Scotland.' By 
 marrying in England the parties do not become bound 
 to reside forever in England, or to treat one another in 
 every other country, where they may afterwards reside, 
 according to the law of England. Their obligation is 
 to fulfil the duties of husband and wife to each other in 
 every country, to which they may be called in the 
 course of Providence ; and they neither promise, nor 
 have they power to engage, that they will carry 
 the law of England along with them to regulate, what 
 the duties and powers shall be, which they shall fulfil 
 and exercise, or the redress which the violation of those 
 duties, or abuse of those powers, may entitle them to 
 in all other countries. All these functions belong to 
 the law of the country where they may eventually 
 reside, and to which they unquestionably contract the 
 duties of obedience and subjection, whenever they enter 
 its territories. Even, if it had been the will of the 
 parties by any stipulation, however express, to make 
 the Lex loci the law of their marriage, it would derive 
 no force from that circumstance. An action of divorce 
 could not be dismissed, because the parties, when inter- 
 marrying, had in the most formal ma::mer renounced 
 the benefit of divorce, and had become bound, that 
 their marriage should be indissoluble. It would be no 
 objection to a divorce at the instance of a Roman 
 Catholic, that his marriage was to him a sacrament, 
 and, therefore, by its own nature indissoluble. These 
 are all facta privaionun, and cannot impede or embar- 
 rass the steady, uniform course of the fus piihlicum, 
 which with regard to the rights and obligations of indi- 
 viduals, affected by the three great domestic relations, 
 
 1 Fergusson on Marr. and Divorce, 358.
 
 324 CONFLICT OF LAWS. [CH. VII. 
 
 enacts them from motives of political expediency and 
 public morality ; and in no wise confers them as private 
 benefits, resulting from agreements concerning meiim et 
 ilium, which are capable of being modified and re- 
 nounced at pleasure.' 
 
 § 223. If this supposed obligation of indissolubility, 
 resulting from contract, can derive no force from the 
 will of the parties, it cannot derive any from the dic- 
 tates of the municipal law, where the relation of mar- 
 riage originated, so as to give it efficacy ultra territo- 
 riiim; for the general rule is; Extra-territorium jus 
 dicenti impune non paretur? In the fulfilment of ordinary 
 contracts, as to meum et timm, the Lex loci contractus 
 forms an implied condition of the contract, and is ac- 
 cordingly adopted, as furnishing the means of constru- 
 ing it aright. But this is merely a proceeding in execu- 
 tion of the will of the parties, and not in the least a 
 recognition of the authority of a foreign law. The 
 case is, therefore, quite different, where the will of the 
 parties only constitutes, and does not modify the rela- 
 tion or its rights ; and where of course the municipal 
 law, deriving nothing from stipulation or agreement, is 
 merely the positive institution of the sovereign, and 
 cannot direct the decisions of foreign courts, or the cir- 
 cumstances occurring within their own jurisdiction. 
 Matrimonial rights and obligations, so far as they are 
 juris gentium, admit of no modification by the will of 
 parties ; and foreign Courts are, therefore, in nowise 
 called upon to inquire after that will, or after any 
 municipal law, to which it may correspond.^ 
 
 1 Fergusson on Marr. and Divorce, 359, 360 ; Id. 398, 399, 402. 
 
 2 Ante, § 8 ; Dig. Lib. 2, tit. 1, 1. 20. 
 
 3 Fergusson on Marr. and Divorce, 360, 361, 402, 410, 412, 414.
 
 CH. VII.] FOREIGN DIVORCES. 325 
 
 § 224. Foreigners, equally with natives, while resi- 
 dents, are subject to the law here, and of course are 
 under the protection of the law. The relations in 
 which they stand towards one another, and which have 
 been duly constituted, before they came here, if they 
 are relations recognized by all civilized nations, must 
 be observed ; and the obligations created by them must 
 be fulfilled agreeably to the dictates of the law of Scot- 
 land. If the law refused to apply its rules to the rela- 
 tion of husband and wife, parent and child, master and 
 servant, among foreigners in this country, Scotland 
 could not be deemed a civilized country ; as thereby it 
 would permit a numerous description of persons to 
 traverse it, and violate with utter impunity all the obli- 
 gations on which the principal comforts of human life 
 depend. If it assumed jurisdiction, but applied not its 
 own rules, but the rules of the law of a foreign country, 
 the supremacy of the law of Scotland within its own 
 territories would be compromised ; its arrangements for 
 domestic comfort would be violated, confounded, and 
 perplexed ; and the powers of foreign Courts, unknown 
 to it's law and constitution, would be usurped and exer- 
 cised.^ In every country the laws relative to divorce 
 are considered of the utmost importance, as positive 
 laws affecting the domestic interests of society ; and in 
 some places they are treated as of divine authority.^ 
 A party domiciled here cannot be permitted to import 
 into this country a law peculiar to his own case, and 
 which is in opposition to those great and important 
 public laws, which are held to be connected with the 
 best interests of society.^ 
 
 1 Fergusson oa Marr. and Divorce, 57, 58, 414, 418. 
 
 2 Id. 398, 402, 403 ; ante, § 108, 210. 
 
 3 Id. 399,400, 412, 418. 
 
 CONFL. 28
 
 326 CONFLICT OF LAWS. [CH. VIL 
 
 § 225. That there is great force in this reasoning, 
 cannot well be denied. For a long time it did not 
 obtain any positive sanction in England ; but, as far as 
 judicial opinions went, they were against the doctrine, 
 that an English marriage is dissoluble by a Scottish 
 divorce.^ The reasoning, by which this latter view was 
 sustained, was to the following effect. The law of the 
 place where the marriage is celebrated, furnishes a just 
 rule for the interpretation of its obligations and rights, 
 as it does in the case of other contracts which are held 
 obligatory according to the Lex loci contractus? It is 
 not just, that one party should be able at his option to 
 dissolve a contract by a law different from that under 
 which it was formed and by which the other party un- 
 derstood it to be governed. If any other rule than the 
 Lex loci contractus is adopted, the law of marriage, on 
 which the happiness of society so mainly depends, must 
 be completely loose and unsettled -, ^ and the ma^rriage 
 state, whose indissolubility is so much favored by 
 Christianity, and by the best interests of society, will 
 become subject to the mere will, and almost to the 
 caprice of the parties as to its duration. The courts of 
 the nations whose laws are most lax upon this subject 
 will be constantly resorted to for the purpose of pro- 
 curing divorces; and thus, not only frauds will be 
 encouraged, but the common cause of morality and 
 religion be seriously injured, and conjugal virtue and 
 
 1 LoUey's Case, 1 Russ. & Ryan's Cas. p. 236 ; Tovey v. Lindsay, 
 1 Dow, R. 124 ; McCarthy v. De Caix, 3 Hagg. Eccles. R. 642, note ; 
 S. C. 2 Russ. & Mylne, 620 ; 2 Kent, Comm. Lect. 27, p. 116, 117, 3d 
 edit. 
 
 2 p'ergusson on Marr. and Divorce, 283, 284, 285, 311, 312, 313, 318, 
 325, 335, 339. 
 
 3 Id. 283, 298, 312.
 
 CH. Vir.] FOREIGN DIVORCES. 327 
 
 parental affection become corrupted and debased.^ 
 Thus, a dissatisfied party might resort to one foreign 
 country, where incompatibility of temper is a ground 
 of divorce.; or to another, which admits of divorce 
 upon even more frivolous pretences, or upon the mere 
 consent of both, or even of one of the parties. 
 
 § 226. In this manner a nation may find its own in- 
 habitants throwing off all obedience to its own laws 
 and institutions, and subverting, by the interposition 
 of a foreign tribunal, its own fundamental policy. Nay, 
 a stronger case may be put of a marriage, deemed 
 as a sacrament, indissoluble by the public religion of a 
 nation, which is 3^et dissolved at the will of a foreign 
 nation, in violation of the highest of all human duties, 
 a perfect obedience to the Divine law. There is no 
 solid ground upon which any government can be held 
 to yield up its own fundamental laws and policy, as to 
 its own subjects, in favor of the laws or acts of other 
 countries. Parties contracting in a country where 
 marriage is indissoluble, voluntarily submit to the ju- 
 risdiction and laws of that country, if they are foreign- 
 ers, domiciled there. If they are natural subjects, they 
 are bound by the laws of the country in virtue of the 
 general duty of allegiance. Why then should England 
 permit her subjects, by a 'foreign domicil, to escape from 
 the indissolubility of a marriage contracted in England, 
 and thus permit them to defeat a fundamental policy of 
 the realm ? ^ Such is a summary of the reasoning on 
 each side of this vexed question. 
 
 1 Fergusson on Marr. & Div. 103, 104, 283, 284, 318, 319, 353, 355, 356. 
 
 2 Mr. Chancellor Kent has given an excellent summary of the reason- 
 ing on each side in his Commentaries ; 2 Kent, Comm. Lect. 27, p. 110 
 top. 117, 3d edit. My own duty required me to follow out his doctrine 
 by some additional sketches.
 
 328 CONFLICT OF LAWS. [CH. VIL 
 
 § 226 a. The whole subject, however, recently came 
 before the House of Lords in England, upon an appeal 
 from the Court of Session in Scotland, in which the 
 direct question w^as, whether it was competent for the 
 Scottish courts to decree a divorce between parties do- 
 miciled in Scotland, who were married in England. 
 The facts of the case in substance were these. A 
 Scotchman domiciled in Scotland was married to an 
 Englishwoman in England ; and, by their marriage 
 contract, a jointure was secured to her in his Scottish 
 estates. After their marriage they went to Scotland, 
 and resided there a short time, and then returned to 
 England. They afterwards in England executed arti- 
 cles of separation, by which a separate maintenance was 
 secured to the w^ife during her separation. Immediately 
 afterwards the wife went abroad, and has ever since 
 resided abroad. The husband continued to be domi- 
 ciled in Scotland ; where he brought a suit for a divorce 
 against his wife, founded upon the charge of adultery. 
 The preliminary question presented was, whether, even 
 assuming the parties to be domiciled in Scotland, the 
 suit could be maintained in Scotland for a divorce from 
 an English marriage, which was by the law of England 
 indissoluble. The Court of Session affirmed the juris- 
 diction to decree the divorce ;>nd this decree was upon 
 the appeal confirmed by the House of Lords.^ 
 
 § 226 h. Very elpl2orate\ judgments were delivered 
 by Lord Brougham a* \ Xtoi^i Lyndhurst upon this oc- 
 casion. The direct po;T>^)d\cided was, that the Courts 
 of Scotland had by the lyan'. of Scotland a clear juris- 
 
 ^!^ 
 
 1 Warrender v. Warrender, 9 Bligh, R. 89 ; S. C. 2 Clarke & Finell. 
 R. 488.
 
 CH. VII.] FOREIGN DIVORCES. 329 
 
 diction to decree a divorce in such a case between par- 
 ties actually domiciled in Scotland, notwithstanding the 
 marriage was contracted in England, and that the 
 House of Lords, sitting as a Court of Appeal in a case, 
 coming from Scotland, was bound to administer the 
 law of Scotland. The Court did not, however, decide, 
 what effect that divorce would have, or ought to have 
 in England, if it should be brought in question in an 
 English court of justice.^ Lolley's case was a good 
 deal discussed ; and without being overturned as to its 
 professed general doctrine, must be now deemed to be 
 greatly shaken, except as a decision upon its own pe- 
 culiar circumstances. 
 
 226 c. But although the general question as to the 
 indissolubility of an English marriage, so far at least, 
 as it could arise in England upon a litigation there, 
 was left undecided, Lord Brougham, in delivering his 
 judgment, went into an elaborate examination of the 
 general principles of international law upon this sub- 
 ject. It cannot, therefore, but be acceptable to the 
 learned reader to have in the subjoined note a summary 
 of the reasoning, by which this distinguished judge 
 maintained the opinion, that upon principles of public 
 law, a divorce from an English marriage, made by a 
 competent Court of a foreign country where the par- 
 ties are domiciled, ought to be deemed in England to 
 dissolve the marriage, and to confer upon the parties 
 all the rights arising from a lawful dissolution.^ 
 
 1 Warrender v. Warrender, 9 Bligh, R. 89 ; S. C. 2 Clarke & Finell. 
 R. 488. 
 
 2 His Lordship's reasoning was in substance to the following effect. — 
 "The general principle is denied by no one, that the lex loci is to be the 
 governing rule in deciding upon the validity or invalidity of all personal 
 contracts. This is sometimes expressed, and I take leave to say inaccU' 
 
 28*
 
 330 CONFLICT OF LAWS. [CH. VII. 
 
 § 227. If in any nation the doctrine shall ever he 
 established, in regard to marriages, that the law of the 
 
 rately expressed, by saying, that there is a cornitas shown by the tribu- 
 nals of one country towards the laws of the other country. Such a thing 
 as comitas or courtesy may be said to exist in certain cases, as where the 
 French Courts inquire, how our law would deal with a Frenchman in 
 similar or parallel circumstances, and upon proof of it, so deal with an 
 Englishman in those circumstances. This is truly a comitas, and can be 
 explained upon no other ground; and I must be permitted to say, with 
 all respect for the usage, it is not easily reconcilable to any sound reason. 
 But when the Courts of one country consider the laws of another, in 
 which any contract has been made, or alleged to have been made, in con- 
 struing its meaning, or ascertaining its existence, they can hardly be said 
 to act from courtesy, ex comitate, for it is of the essence of the subject- 
 matter to ascertain 'the meaning of the parties, and that they did solemnly 
 bind themselves ; and it is clear, that you must presume them to have 
 intended what the law of the country sanctions or supposes ; and equally 
 clear, that their adopting the forms and solemnities which that law pre- 
 scribes, shows their intention to bind themselves, nay more, it is the only 
 safe criterion of their having entertained such an intention. Therefore, 
 the courts of the country, where the question arises, resort to the law of 
 the country, where the contract was made, not ex comitate, but ex debito 
 justitiffi ; and in order to explicate their own jurisdiction by discovering 
 that which they are in quest of, and which alone they are in quest of, the 
 meaning and intent of the parties. But whatever may be the foundation 
 of the principle, its acceptance in all systems of jurisprudence is unques- 
 tionable. Thus, a marriage, good by the laws of one country is held good 
 in all others, where the question of its validity may arise. For why 1 
 The question always must be. Did the parties intend to contract marriage? 
 And if they did, what in the place, they were in, is deemed a marriage, 
 they cannot reasonably, or sensibly, or safely, be considered otherwise 
 than as intending a marriage contract. The laws of each nation lay down 
 the forms and solemnities, a compliance with which shall be deemed the only 
 criterion of the intention to enter into the contract. If those laws annex 
 certain qualifications to parties circumstanced in a particular way, or if they 
 impose certain conditions precedent on certain parties, this falls exactly 
 within the same rule ; for the presumption of law is in the one case, that 
 the parlies are absolutely incapable of the consent required to make the con- 
 tract, and in the other case, that they are incapable, until they have com- 
 plied with the conditions imposed/ I shall only stop here to remark, that 
 the English jurisprudence, while it adopts this principle in words, would 
 not perhaps, in certain cases, which may be put, be found very willing to 
 act upon it throughout. Thus, we shonld expect that the Spanish and Por-
 
 CH. VII.] . FOREIGN DIVORCES. 331 
 
 place of its actual celebration shall prevail, not only as 
 to its original validity, but also as to its mode of disso- 
 
 tuguese Courts would hold an English marriage avoidable between uncle 
 and niece, or brother and 'sister-in-law, though solemnized under papal 
 dispensation, because it would clearly be avoidable in this country. But I 
 strongly incline to think that our courts would refuse to sanction, and 
 would avoid by sentence a marriage between those relatives contracted in 
 the Peninsula, under dispensation, although beyond all doubt such a mar- 
 riage would there be valid by the lex loci contractus, and incapable of 
 being set aside by any proceedings in that country. But the rule extends, 
 I apprehend, no further than to the ascertaining of the validity of the con- 
 tract, and the meaning of the parties, that is, the existence of the contract 
 and its construction. If, indeed, there go two things under one and the 
 same name in different countries — if that which is called marriage is of a 
 different nature in each — there may be some room for holding, that we 
 are to consider the thing to which the parlies have bound themselves, ac- 
 cording to its legal acceptation in the country, where the obligation was 
 contracted. But marriage is one and the same thing substantially, all the 
 Christian world over. Our whole law of marriage assumes this ; and it is 
 important to observe, that we regard it as a wholly different thing, a dif- 
 ferent status from Turkish or other marriages among infidel nations ; 
 because we clearly never should recognize the plurality of wives, and con- 
 sequent validity of second marriages, standing the first, which second 
 marriages the laws of those countries authorize and validate. This can- " 
 not be put upon any rational ground, except our holding the infidel mar- 
 riage to be something different from the Christian, and our also holding 
 Christian marriage to be the same everywhere. Therefore, all that the 
 Courts of one country have to determine is, whether or not the thing 
 called marriage, that known relation of persons, that relation which those 
 Courts are acquainted with, and know how to deal with, has been validly 
 contracted in the other country, where the parties professed to bind them- 
 selves. If the question is answered in the affirmative, a marriage has 
 been had ; the relation has been constituted ; and those Courts will deal 
 with the rights of the parties under it, according to the principles of the 
 municipal law, which they administer. But it is said, that what is called 
 the essence of the contract must also be judged of according to the lex 
 loci ; and as this is somewhat vague, and for its vagueness, a somewhat 
 suspicious proposition, it is rendered more certain by adding, that dissolu- 
 bility or indissolubility is of the essence of the contract. Now I take this 
 to be really petitio principii. It is putting the very question under discus- 
 sion into another form of words, and giving the answer in one way. There 
 are many other things which may just as well be reckoned of the essence 
 as this. If it is said, that the parties marrying in England must be taken
 
 332 CONFLICT OF LAWS. [CH. VIL 
 
 lution, some other interesting questions will still remain 
 for decision. In the first place, will any foreign Court 
 
 all the world over to have bound themselves to live, until death, or an 
 Act of Parliannent them 'do part;' why shall it not also be said, that 
 they have bound themselves to live together on such terms, and with such 
 mutual personal rights and duties as the English law recognizes and 
 enforces 1 Those rights and duties are just as much of the essence as 
 dissolubility or indissolubility; and yet all admit, all must admit, that per- 
 sons married in England and settled in Scotland will be entitled only to 
 the personal rights, which the Scotch law sanctions, and will only be liable 
 to perform the duties which the Scotch law imposes. Indeed, if we are 
 to regard the nature of the contract in this respect as defined by the lex 
 loci, it is difficult to see, why we may not import from Turkey into Eng- 
 land a marriage of such a nature, as that it is capable of being followed by 
 and subsisting with another, polygamy being there of the essence of the 
 contract. The fallacy of the argument, ' that indissolubility is of the 
 essence,' appears plainly to be this ; it confounds incidents with essence ; 
 it makes the rights under a contract, or flowing from and arising out of it, 
 parcel of the contract ; it makes the mode, in which judicatures deal with 
 those rights, and with the contract itself, part of the contract ; instead of 
 considering, as in all soundness of principle we ought, that the contract 
 and all its incidents, and the rights of the parties to it, and the wrongs 
 committed by them respecting it, must be dealt with by the Courts of the 
 ' country where the parties reside, and where the contract is to be carried 
 into execution. But at all events this is clear, and it seems to be decisive 
 of the point, that if on some such ground as this a marriage indissoluble 
 by the lex loci is held to be indissoluble everywhere, so conversely, a mar- 
 riage dissoluble by ihe lex loci must be held everywhere dissoluble. The 
 one proposition is in truth identical with the other. Now, it would follow 
 from hence, or rather it is the same proposition, that a marriage contracted 
 in Scotland, where it is dissoluble by reason of adultery, or of non-adhe- 
 rence, is dissoluble in England, and that at the suit of either party. 
 Therefore, a wife married in Scotland might sue her husband in our 
 courts for adultery, or for absenting himself four years, and ought to ob- 
 tain a divorce a vinculo matrimonii. Nay, if the marriage had been 
 solemnized in Prussia, either party might obtain a divorce on the ground 
 of incompatibility of temper; and if it had been solemnized in France 
 during the earlier period of the revolution, the mere consent of the parties 
 ought to suffice for dissolving it here. Indeed, another consequence 
 would follow from this doctrine of confounding with the nature of the 
 contract that, which is only a matter touching the jurisdiction of the 
 courts, and their power of dealing with the rights and duties of the parties 
 to it. If there were a country, in which marriage could be dissolved
 
 CH. VII.] FOREIGN DIVORCES. 333 
 
 have a right to entertain jurisdiction to decree a divorce 
 for causes justified by the law of the matrimonial do- 
 
 without any judicial proceeding at all, merely by the parties agreeing in 
 pais to separate, every other country ought to sanction a separation had 
 in pais there, and uphold a second marriage contracted after such separa- 
 tion. It may safely be asserted, that so absurd a proposition never could 
 for a moment be entertained ; and yet it is not like, but identical with the 
 proposition upon which the main body of the appellant's argument rests, 
 that the question of indissoluble or dissoluble must be decided in all cases 
 by the lex loci. Hitherto we have been considering the contract as to its 
 nature and solemnities, and examining how far, being English, and en- 
 tered into with reference only to England, it could be dissolved by a 
 Scotch sentence of divorce. But the circumstances of parties belonging 
 to one country marrying in another (which is the case at bar) presents the 
 question in another light. In personal contracts much depends upon the 
 parties having regard to the country, where it is to be acted under, and to 
 receive its execution — upon their making the contract, with a view to 
 its execution in that country. The marriage contract is emphatically one, 
 which parties make with an immediate view to the usual place of their 
 residence. An Englishman marrying in Turkey contracts a marriage of 
 an English kind, that is, excluding plurality of wives, because he is an 
 Englishman, and only residing in Turkey and under the Mahometan law 
 accidentally and temporarily, and because he marries with a view of 
 being a married man and having a wife in England, and for English pur- 
 poses ; consequently the incidents and effects, nay, the very nature and 
 essence (to use the language of the appellant's argument) must be as- 
 certained by the English, and not by the Turkish law. So of an Eng- 
 lishman marrying in Prussia, where incompatible temper, that is, disa- 
 greement, may dissolve the contract. As he marries with a view to 
 English domicil, his contract will be judged by English law, and he can- 
 not apply for a divorce here upon the ground of incompatible tempers. 
 In like manner a domiciled Scotchman may be said to contract not an 
 English, but a Scotch marriage, though the consent wherein it consists 
 may be testified by English solemnities. The Scotch parties looking to 
 residence and rights in Scotland, may be held to regard the nature and 
 incidents and consequences of the contract, according to the law of that 
 country, their home ; a connection formed for cohabitation, for mutual 
 comfort, protection, and endearment, appears to be a contract having a 
 most peculiar reference to the contemplated residence of the wedded 
 pair ; the home, where they are to fulfil their mutual promises, and per- 
 form those duties which were the objects of the union ; in a word, their 
 domicil ; the place so beautifully described by the civilian — ' Locus, ubi 
 quisque larem suum posuit sedemque fortunarum suarum, unde cum pro-
 
 334 CONFLICT OF LAWS. [CH. VII. 
 
 micil? Will the like right exist where no divorce is 
 grantable by the Lex loci for a similar cause in case of 
 
 ficiscilur peregrinare videtur quo cum revertitur redire domum.' It cer- 
 tainly may well be urged, both with a view to the general question of 
 lex loci, and especially in answering the argument of the alleged essen- 
 tial quality of indissolubility, that the parlies to a contract like this must 
 be held emphaliGally to enter into it with a reference to their own domi- 
 cil and its laws ; that the contract assumes, as it were, a local aspect, but 
 that, at any rate, if we infer the nature of any mutual obligation from 
 the presumed intentions of the parties, and if we presume those intentions 
 from supposing, that the parties had a particular system of laws in their 
 eye, (the only foundation of the argument for the appellant,) there is 
 fully more reason to suppose they had the law of their own home in their 
 view, where they purposed to live, than the law of the stranger under 
 which they happened for the moment to be. Suppose we take now ano- 
 ther, but a very obvious and intelligible view of the subject, and regard 
 the divorce not as a remedy, given to the injured party by freeing him 
 from the chain that binds him to a guilty partner, but as a punishment 
 inflicted upon crime, for the purpose of preventing its repetition, and thus 
 keeping public morals pure. The language of the Scotch acts plainly 
 countenances this view of the matter, and we may observe how strongly 
 it bears upon the present question. No one can doubt, that every stale 
 has the right to visit offences with such penalties as to its legislative wis- 
 dom shall seem meet. At one time adultery was punishable capitally in 
 England ; it is so in certain cases still by the letter of the Scotch law. 
 Whoever committed it must have suffered that punishment, had the law 
 been enforced, and without regard to the marriage, of which he had viola- 
 ted the duties, having been contracted abroad. Indeed, in executing such 
 statutes, no one ever heard of a question being raised as to where the 
 contract had been made. Suppose, again, that the proposition frequently 
 made in modern times were adopted, and adultery were declared to be a 
 misdemeanor, could any one, tried for it either here or in Scotland, set up 
 in his defence, that to the law of the country where he was married, there 
 was no such offence known ? In like manner if a disruption of the mar- 
 riage tie is the punishment denounced against the adulterer for disregard- 
 ing its duties, no one can pretend, that the tie being declared indissoluble 
 by the laws of the country where it was knit, could afibrd the least defence 
 against the execution of the law declaring its dissolution to be the penalty 
 of the crime. Whoever maintains, that the Scotch Courts are to take 
 cognizance of the English law of indissolubility, when called upon to 
 inflict the penalty of divorce, must likewise be prepared to hold, that, in 
 punishing any other offence, the same Courts are to regard the laws of 
 the State where the culprit was born, or where part of the transaction
 
 CH. VII.] FOREIGN DIVORCES. 335 
 
 a domestic marriage ? For instance, could a Consistory 
 Court of Eno;land entertain a suit for a divorce a vinculo 
 
 passed ; that, for example, a forgery being committed on a foreign bill of 
 exchange, the punishment awarded by the foreign law is to regulate the 
 visitation of the offence under the law of Scotland. It may safely be 
 asserted , that no instance whatever can be given of the criminal law of any 
 country being made to bend to that of any other in any part of its admi- 
 nistration. When the Roman citizen carried abroad with him his rights of 
 citizenship, and boasted that he could plead in all the Courts of the world, 
 * Civis Romanus sum,' his boast was founded not on any legal principle, 
 but upon the fact that his barbarian countrymen had overrun the world 
 with their arms, reduced all laws to silence, and annihilated the independ- 
 ence of foreign legislatures. Their orators regarded this very plea as the 
 badge of universal slavery, which their warriors had fixed upon mankind. 
 But if any foreigner had come to Rome, and committed a crime punisha- 
 ble with loss of civil rights, he would in vain have pleaded in bar of the 
 capitis diminutio, that citizenship was indelible and indestructible in the 
 country of his birth. The lex loci must needs govern all criminal juris- 
 diction, from the nature of the thing, and the purposes of that jurisdic- 
 tion. How then can we say, that, when the Scotch law pronounces 
 the dissolution of a marriage to be the punishment of adultery, the Scotch 
 Courts can be justified in importing an exception in favor of those, who 
 had contracted an Englisli marriage ; an exception created by the English 
 law and to the Scotch law unknown ? But it may be said, that the of- 
 fence being committed abroad, and not within the Scotch territory, pre- 
 vents the application to it of the Scotch criminal law. To this it may, 
 however, be answered, that where a person has his domicil in a given 
 country, the laws of that country to which he owes allegiance, may visit 
 even criminally offences committed by him out of its territory. Of this 
 we have many instances in our own jurisprudence. Murder and treason 
 committed by Englishmen abroad are triable in England and punishable 
 here. Nay, by the bill, which I introduced in 1811, and which is con- 
 stantly acted upon, British subjects are liable to be convicted of felony for 
 slave-trading in whatever part of the world committed by them. It would 
 no doubt be going far to hold the wife criminally answerable to the law of 
 Scotland in respect of her legal domicil being Scotch. But we are here 
 not so much arguing to the merits of this case, which has abundant other 
 ground to rest upon, as to the general principle ; and at any rate the argu- 
 ment would apply to the case most frequently mooted, of English married 
 parties living temporarily in Scotland, and adultery being there committed 
 by one of them. To such a state of facts the whole argument now ad- 
 duced is applicable in its full force ; and without admitting that applica- 
 tion, I do not well see how we can hold, that the Scotch legislature ever 
 possessed that supreme power, which is absolutely essential to the very
 
 336 CONFLICT OF LAWS. [CH. VIL 
 
 for the cause of adultery in case of a Scottish mar- 
 riage ? Or in such cases is the remedy to be exclu- 
 
 nature and existence of a legislature. If we deny this application, we 
 truly admit that the Scottish Parliament had no right to punish the offence 
 of adultery by the penalty of divorce. Nay, we hold, that English par- 
 ties had a right to violate the Scotch criminal law with perfect impunity 
 in one essential particular ; for, suppose no other penalty had been pro- 
 vided by the Scotch law, except divorce, all English offenders against 
 that law must go unpunished. Nay, worse still, all Scotch parties, who 
 choose to avoid the punishment, had only to marry in England, and then 
 the law, the criminal law, of their own country became inoperative. The 
 gross absurdity of this strikes me as bearing directly upon the argument, 
 and as greater than that of any consequences, which I remember to have 
 seen deduced from almost any disputed position. It may further be re- 
 marked, that this argument applies equally to the case, if we admit that 
 the Scotch divorce is invalid out of Scotland, and consequently, that it 
 stands well with even the principles of Lolley's case. In order to dispose 
 of the present question, it is not at all necessary on the one side to sup- 
 port, or on the other to impeach, the authority of Lolley's case, or of any 
 other, which may have been determined in England upon that authority. 
 This ought to be steadily borne in mind. The resolution in Lolley's case 
 was, that an English marriage could not be dissolved by any proceeding 
 in the Courts of any other country, for English purposes ; in other words, 
 that the Courts of this country will not recognize the validity of the Scotch 
 divorce, but will hold the divorced wife dowable of an English estate, the 
 divorced husband tenant thereof by the courtesy, and either party guilty 
 of felony by contracting a second marriage in England. Upon the force 
 and effect of such a divorce in Scotland, and for Scotch purposes, the 
 Judges gave, and indeed could give no opinion ; and as there would be 
 nothing legally impossible in a marriage being good in one country, which 
 was prohibited by the law of another ; so, if the conflict of the Scotch 
 and English law be complete and irreconcilable, there is nothing legally 
 impossible in a divorce being valid in the one country, which the Courts of 
 the other may hold to be a nullity. Lolley's case, therefore, cannot be 
 held to decide the present, perhaps not even to affect it in principle. In 
 another point of view it is inapplicable ; for, though the decision was not 
 put upon any special circumstance, yet in fairly considering its application, 
 we cannot lay out of view, that the parties were not only married, but 
 really domiciled, in England, and had resorted to Scotland for the mani- 
 fest purpose of obtaining a temporary and fictitious domicil there, in order 
 to give the Scotch Courts jurisdiction over them, and enable them to dis- 
 solve their marriage ; whereas, here, the domicil of the parties is Scotch, 
 and the proceeding is bona fide taken by the husband in the Courts of his
 
 CH. vil] foreign divorces. 337 
 
 sively pursued in the domestic forum of the marriage ? 
 Whoever shall diligently consider these questions, will 
 
 own country, to which he is amenable, and ought to have free access, and 
 no fraud upon the law of any other country is practised by the suit. It 
 must be added, that, in LoUey's case, the English marriage had been con- 
 tracted by English parties, without any view to the execution of the con- 
 tract at any time in Scotland ; whereas the marriage now in question was 
 had by a Scotchman and a woman, whom the contract made Scotch, and 
 therefore may be held to have contemplated an execution and effects in 
 Scotland. But although for these reasons, the support of my opinion 
 does not require, that I should dispute the law in Lolley's case, I should 
 not be dealing fairly with this important question, if I were to avoid 
 touching upon that subject ; and as no decision of this House has ever 
 adopted that rule, or assumed its principle for sound, and acted upon it, I 
 am entitled here to express the difficulty which I feel in acceding to that 
 doctrine — a difficulty, which much deliberation and frequent discussion 
 with the greatest lawyers of the age — I might say both of this and of 
 the last age — has not been able to remove from my mind. If no decision 
 had ever been pronounced in this country, recognizing the validity of Scotch 
 marriages between English parties going to Scotland with the purpose of 
 escaping from the authority of the English law, I should have felt it much 
 easier to acquiesce in the decision of which I am speaking. For then it 
 might have been said consistently enough, that whatever may be the Scotch 
 marriage law among its own subjects, and for the government of Scotch 
 questions, ours is in an irreconcilable conflict with it, and we cannot permit 
 the positive enactments of our statute-book, and the principles of our 
 common law, to be violated or eluded by merely crossing a river, or an 
 ideal boundary line. Nor could any thing have been more obvious, than 
 the consistency of those who, holding that no unmarried parties, incapable 
 of marrying here, can, in fraud of our law, contract a valid marriage in 
 Scotland, by going there for an hour, should also hold tlie cognate doc- 
 trine, that no married parties can dissolve an English marriage, indissolu- 
 ble here, by repairing thither for six weeks. But upon this firm ground, 
 the decision of all the English Courts have long since prevented us from 
 taking our stand. They have held, both the Consistorial Judges in Comp- 
 ton V. Bearcroft, and those of the common law in Ilderton v. Ilderton, the 
 doctrine uniformly recognized in all subsequent cases, and acted upon 
 daily by the English people, that a Scotch marriage, contracted by Eng- 
 lish parties in the face and in fraud of the English law, is valid to all in- 
 tents and purposes, and carries all the real and all the personal rights of 
 an English marriage, affecting in its consequences, land, and honors, and 
 duties, and privileges, precisely as it does the most lawful and solemn ma- 
 trimonial contract, entered into among ourselves, in our own churches, 
 CONFL. 29
 
 338 CONFLICT OF LAWS. [CH. VIL 
 
 not find tliem without serious embarrassment. They 
 are incidentally treated in the Scottish decisions already 
 
 according to our ritual, and under our own statutes. It is quite impossible 
 after this to say, that we can draw the line, and hold a foreign law, which 
 we acknowledge all-powerful for making the binding contract, to be utterly 
 impotent to dissolve it. Were the sentence of the Scotch Court in a 
 declarator of marriage to be given in evidence here, it would be conclu- 
 sive, that the parties were man and wife, and no exception could betaken 
 to the admissibility, or the effect of the foreign evidence, upon the ground 
 of the parties having been English, and repaired to Scotland for the pur- 
 pose of escaping the provisions of the English law. A similar sentence 
 of the same Court, declaring the marriage to be dissolved by the same 
 law of Scotland, is now supposed to be given in evidence between parties, 
 who had married in England. Can it, in any consistency of reason, be 
 objected to the reception, or to the force of this sentence, that the contract 
 had been made, and the parties had resided here? In what other con- 
 tract of a nature merely personal — in what other transaction between 
 men — is such a rule ever applied — such an arbitrary and gratuitous dis- 
 tinction made — such an exception raised to the universal position, that things 
 are to be dissolved by the same process, whereby they are bound together ; 
 or rather, that the tie is to be loosened by reversing the operation which knit 
 it, but reversing the operation according to the same rules 1 What gave 
 force to the ligament ? If a contract for sale of a chattel is made, or an obli- 
 gation of debt is incurred, or a chattel is pledged in one country, the sale 
 may be annulled, the debt released, and the pledge redeemed by the law 
 and by the forms of another country, in which the parties happen to reside, 
 and in whose Courts their rights and obligations come in question, unless 
 there was an express stipulation in the contract itself against such, void- 
 ance, release, or redemption. But at any rate this is certain, that if the 
 laws of one country and its Courts recognize and give effect to those of 
 another, in respect of the constitution of any contract, they must give the 
 like recognition and effect to those same foreign laws, when they declare the 
 same kind of contract dissolved. Suppose a party forbidden to purchase 
 from another by our equity, as administered in the Courts of this country 
 (and we have some restraints upon certain parties, which come very near 
 prohibition ;) and suppose a sale of chattels by one to another party, 
 standing in this relation towards each otiier, should be effected in Scot- 
 land, and that our Courts here should (whether right or wrong) recognize 
 such a rule, because the Scotch law would affirm it — surely it would 
 follow, that our Courts must equally recognize a rescission of the contract 
 of sale in Scotland by any act which the Scotch law regards as valid to 
 rescind it; although our own law may not regard it as sufficient. Suppose 
 a question to arise in the Courts of England respecting the execution of a
 
 CH. VII.] FOREIGN DIVORCES. 339 
 
 alluded to ; and the reasoning on each side is worthy 
 of an exact perusal.' The attempt to ingraft foreign 
 
 contract, thus made in this country, and that the objection of its invalidity 
 were waived for some reason : if the party resisting its execution were to 
 produce either a sentence of a Scotch Court, declaring it rescinded by a 
 Scotch matter done in pais, or were merely to produce evidence of the 
 thing so done, and proof of its amounting by the Scotch law to a rescis- 
 sion of the contract — I apprehend, that the party, relying on the con- 
 tract, could never be heard to say, 'The contract is English, and the 
 Scotch proceeding is impotent to dissolve it.' The reply would be, ' Our 
 English Courts have (whether right or wrong) recognized the validity of 
 a Scotch proceeding to complete the obligation, and can no longer deny 
 the validity of a similar but reverse proceeding to dissolve it — unum- 
 quodque dissolvitur eodem modo, quo colligatur.' Suppose, for another 
 example, (which is the case,) that the law of this country precluded an 
 infant, or a married woman, from borrowing money in any way, or from 
 binding themselves by deed ; and that in another country those obligations 
 could be validly incurred ; it is probable, that our law and our Courts would 
 recognize the validity of such foreign obligations. But suppose a feme 
 covert had executed a power, and conveyed an interest under it to another 
 feme covert in England, could it be endured, that, where the donee of the 
 power produced a release under seal from the feme covert in the same 
 foreign country, a distinction should be taken, and the Court here should 
 hold that party incapable of releasing the obligation 1 Would it not be 
 said, that our Courts, having decided the contract of a feme covert to be 
 binding, when executed abroad, must, by parity of reason, hold the dis- 
 charge or release of the feme covert to be valid, if it be valid in the same 
 foreign country ? Nor can any attempt succeed, in this argument, which 
 rests upon distinctions taken between marriage and other contracts, on the 
 ground, that its effects govern the enjoyment of real rights in England, 
 and that the English law alone can regulate the rights of landed property. 
 For, not to mention, that a Scotch marriage between English parlies gives 
 English honors and estates to its issue, which would have been bastard, 
 had the parlies married, or pretended to marry, in England ; all personal 
 obligations may in their consequences affect real rights in England. Nor 
 does a Scotch divorce, by depriving a widow of dower, or arrears of pin- 
 money, charged on English property, more immediately affect real estate 
 here, than a bond, or a judgment released in Scotland according to Scotch 
 forms, discharges real estate of a lien, or than a bond executed, or indeed 
 a simple contract debt incurred in Scotland, eventually and consequentially 
 charges English real estate. It appears to me quite certain, that those, 
 
 1 See Fergusson on Marr. and Divorce, Appx. 383 to p. 422.
 
 340 CONFLICT OF LAWS. [CH. VIL 
 
 remedial justice upon domestic institutions has always 
 been found extremely difficult ; and as we shall here- 
 
 who decided Lolley's case, 'did not look siifRciently to the difficulty of fol- 
 lowing out the principle of the rule which they laid down. At first sight, 
 on a cursory survey of the question, there seems no impediment in the way 
 of a judge, who would keep the English marriage contract indissoluble in 
 Scotland, and yet allow a Scotch marriage to have validity in England ; 
 for it does not immediately appear, how the dissolution and the constitu- 
 tion of the contract should come in conflict, though diametrically opposite 
 principles are applied to each. But only mark, how that conflict arises, 
 and how, in fact and in practice, it must needs arise as long as the diver- 
 sity of the rules applied is maintained. When English parties are di- 
 vorced in Scotland, it seems easy to say, ' We give no validity to this pro- 
 ceeding in England, leaving the Scotch law to deal with it in that coun- 
 try ; and with its awards we do not in anywise interfere.' But the time 
 speedily arrives, when we can no longer refuse to interfere, and then see 
 the inextricable confusion that instantly arises and involves the whole sub- 
 ject. The English parties are divorced — they return to England, and 
 one of them marries again ; that party is met by Lolley's case, and treat- 
 ed as a felon. So far all is smooth. But what if the second marriage is 
 contracted in Scotland ? And what if the issue of that marriage claims 
 an English real estate by descent, or a widow demands her dower? Lol- 
 ley's case will no longer serve the purpose of deciding the rights of the 
 parties ; for Lolley's case is confined to the eflfects of the Scotch divorce 
 in England, and professes not to touch, as, indeed, they who decided it 
 had no authority to touch the validity of that divorce in Scotland. Then 
 the marriage being Scotch, the lex loci must prevail by the cases of Comp- 
 ton V. Bearcroft, and Ilderton v. Ilderton. All its consequences to the 
 wife and issue must be dealt with by the English Courts, and the same 
 judge, who, sitting under a commission of gaol delivery, has in the morn- 
 ing sent Mr. Lolley to the hulks for felony, because he remarried in Eng- 
 land, and the divorce was insufficient ; sitting at Nisi Prius in the after- 
 noon, must give the issue of Mr. Lolley's second marriage an estate in 
 Yorkshire, because she remarried in Scotland, and must give it on the 
 precise ground that the divorce was efTectual. Thus the divorce is both 
 valid and nugatory, not according to its own nature, or the law of any one 
 state, but according to the accident, whether a transaction which follows 
 upon it, and docs not necessarily occur at all, chanced to take place in one 
 part of the island or in the other ; and yet the felony of the husband depend- 
 ed entirely upon his not having been divorced validly in Scotland, and not 
 at all upon his not being divorced validly in England ; and the title of the 
 wife's issue to the succession, or of herself to dower, depends wholly 
 upon the same husband having been validly divorced in that same country
 
 CH. VII.] FOREIGN DIVORCES. 341 
 
 after see, has led to the conclusion, that the safest and 
 best rule is to give remedies only to the extent, 
 
 of Scotland. Nor will it avail to contend, that the parties marrying in 
 Scotland after a Scotch divorce is in fraud of the English rule, as laid 
 down in that celebrated case. It may be so ; but it is not more in fraud- 
 um legis Anglicanae, than the marriage was in Compton v. Bearcroft, 
 which yet has been held good in all our Courts. Neither will it avail to 
 argue, that the indissoluble nature of the English marriage prevents those 
 parties from marrying again in Scotland, as well as in England ; for the rule 
 in Lolley's case has no greater force in disqualifying parties from marrying 
 in Scotland, where that is not the rule of law, than the English Marriage 
 Act has in disqualifying infants from marrying without banns published, 
 and yet these may, by the law of England, go and marry validly in Scot- 
 land. Indeed, if there be any purely personal disqualification or incapa- 
 city caused by the law, and which, more than any other, may be said to 
 travel about with the party, it is that, which the law raises upon a natural 
 status, as that of infancy, and fixes on those, who by the order of nature 
 itself, are in that condition, and unable to shake it off, or by an hour to 
 accelerate its termination. If, in a manner confessedly not clear, and very 
 far from being unincumbered with doubt and difficulty, we find that mani- 
 fest and serious inconvenience is sure to result from one view, and very 
 little in comparison from adopting the opposite course, nothing can be a 
 stronger reason for taking the latter. Now surely it strikes every one, 
 that the greatest hardships must occur to parties, the greatest embarrass- 
 ment to their rights, and the utmost inconvenience to the Courts of Justice 
 in both countries, by the rule being maintained as laid down in Lolley's 
 case. The greatest hardship to parties — for what can be a greater griev- 
 ance, than that parties living bona fide in England, though temporarily, 
 should either not be allowed to marry at all during their residence here, 
 or if they do, and afterwards return to their own country, however great 
 its distance, that they must be deprived of all remedy in case of miscon- 
 duct, however aggravated, unless they undertake a voyage back to Eng- 
 land, ay, and unless they can comply with the parliamentary forms in 
 serving notices ; — the greatest embarrassment to their rights — for what 
 can be more embarrassing than that a person's status should be involved 
 in uncertainty, and should be subject to change its nature, as he goes from 
 place to place ; that he should be married in one country, and single, if 
 not a felon, in another; bastard here, and legitimate there? — the ut- 
 most inconvenience to the Courts — for what inconvenience can be 
 greater, than that they should have to regard a person as married for 
 one purpose and not for another — single and a felon, if he marries a 
 few yards to the southward — lawfully married, if the ceremony be per- 
 formed a few yards to the north — a bastard, when he claims land — 
 29*
 
 342 CONFLICT OF LAWS. [CH. VII. 
 
 and in the manner, which the Lex loci justifies and 
 approves.^ 
 
 legitimate when he sues for personal succession — widow, when she de- 
 mands the chattels of her husband — his concubine, when she counts as 
 dowable of his land ? It is in vain to remind us of the opportunity, which 
 a strict adherence to the lex loci, with respect to dissolution of the con- 
 tract, would give to violators of our English marriage-law. This objection 
 comes too late. Before the validity of Scotch marriages had been "sup- 
 ported by decisions too numerous and too old for any question, this argu- 
 ment ab inconvenienti might have been urged and set against those other 
 reasons, which I have adduced, drawn from the same consideration. But 
 we have it now firmly established, as the law of the land, and daily acted 
 upon by persons of every condition, that, though the law of England in- 
 capacitates parties from contracting marriage here, they may go for a few 
 minutes to the Scotch border, and be married as effectually as if they had 
 no incapacity whatever in their own country, and then return, after eluding 
 the law, to set its prohibitions at defiance, without incurring any penalty, 
 and to obtain its aid, without any difiiculty in securing the enjoyment of 
 all the rights incident to the married state. Surely there is neither sense 
 nor consistency in complaining of the risk, infraction, or evasion arising 
 to the English law from supporting Scotch divorces, after having thus 
 given to the Scotch marriages the power of eluding, and breaking, and 
 defying that law for so many years. I have now been commenting upon 
 Lolley's case on its own principle — that is, regarding it as merely laying 
 down a rule for England, and prescribing how a Scotch divorce shall be 
 considered in this country, and dealt with by its Courts. I have felt this 
 the more necessary, because I do not see, for the reasons which have occa- 
 sionally been adverted to in treating the other argument, how, consistently 
 with any principle, the Judges, who decided the case, could limit its ap- 
 plication to England, and think that it did not decide also on the validity 
 of the divorce in Scotland. They certainly could not hold the second 
 English marriage invalid and felonious in England, without assuming, 
 that the Scotch divorce was void even in Scotland. In my view, of the 
 present question, therefore, it was fit to show, that the Scotch Courts have 
 a good title to consider the principle of Lolley's case erroneous even as an 
 English decision. This, it is true, their Lordships have not done ; and 
 the judgment now under appeal is rested upon the ground of the Scotch 
 divorce being suflicient to determine the marriage contract in Scotland 
 
 1 See in English Law Magazine, Vol. G, p. 32, a review of the English 
 law as to Divorces. See on this very point the judgment of Lord 
 Brougham in Warrender v. Warrender, 9 Bligh, R. 115 to 118, cited 
 ante, ^ 22G c. note.
 
 CH. VII.] FOREIGN DIVORCES. 343 
 
 § 228. In America, questions respecting the nature 
 and effect of foreign divorces upon domestic marriages, 
 and vice versa, have, as might be expected, not unfre- 
 quently been under discussion in our courts. In Mas- 
 sachusetts, in some early cases, the Supreme Court 
 refused to interfere, and grant a divorce, where the 
 parties lived in another State at the time the adultery 
 was charged to have been committed, and the libellant 
 had since that time removed into the State. These de- 
 cisions seem mainly to have proceeded upon the con- 
 struction of the local statutes, which conferred jurisdic- 
 tion upon the Court in matters of divorce ; but it was 
 admitted, that the State to which the parties belonged 
 had jurisdiction, and could exercise it if it appeared 
 expedient.^ In a later case, where a marriage, cele- 
 brated in Massachusetts, had been dissolved in Vermont, 
 upon a suit by the husband for a divorce, for the cause 
 
 only. I must now observe, that, supposing (as may fairly be conclucled) 
 LoUey's case to have decided, that the divorce is void in Scotland, there 
 can be no ground whatever for holding, that it is binding upon the, Scotch 
 Courts on a question of Scotch law. If the cases and the authorities of 
 that law are against it, the learned persons who administer the system of 
 jurisprudence, are not bound to regard — nay, they are not entitled to 
 regard — an English decision, framed by English judges upon an English 
 case, and devoid of all authority beyond the Tweed. Now, I have no 
 doubt at all, that the Scotch authorities are in favor of the jurisdiction, 
 and support the decision under appeal. But I must premise that, unless 
 it could be shoivn that they were the other way, my mind is made up 
 with respect to the principle, that I should be for affirming on that ground 
 of principle alone, if precedent or dicta did not displace the argument. The 
 principle I hold so clear upon grounds of general law, that the proof is 
 thrown, according to my view, upon those who would show the Scotch 
 law to be the other way." I have given his Lordship's reasoning at 
 large, because it seemed difficult to admit particular passages, which have 
 been already cited, or will be cited hereafter in other connections, without 
 impairing its true force. Ante, 115 ; post, ^ 259 b. 
 
 I Hopkins u. Hopkins, 3 Mass. R. 158; Carter r. Carter, 6 Mass. R. 
 268.
 
 344 CONFLICT OF LAWS. [CH. VIL 
 
 of extreme cruelty of his wife, (a cause inadmissible by 
 the laws of Massachusetts to dissolve a marriage,) it 
 appearing, that the parties had not at the time any 
 permanent domicil in Vermont, but that the husband 
 had gone there for the purpose of obtaining a divorce, 
 the divorce was held a mere nullity, upon the ground, 
 that there was no real change of domicil. "If" (said 
 the Court) " we were to give effect to this decree, we 
 should permit another State to govern our citizens in 
 direct contravention of our own statutes ; and this can 
 be required by no rule of comity." ^ 
 
 § 229. In another case, the general question came 
 before the Court, whether a marriage, celebrated in 
 Massachusetts, could be dissolved by a decree of di- 
 vorce of the proper State Court of Vermont, both par- 
 ties being at the time hand fide domiciled in that State, 
 and the cause of divorce being such as would not 
 authorize a divorce a vinculo in Massachusetts. The 
 Court decided in the affirmative, upon the ground, that 
 the law of the actual domicil must regulate the right. 
 The reasoning of the Court was to the following effect. 
 " Regulations on the subject of marriage and divorce 
 are rather parts of the criminal, than of the civil code ; 
 and apply not so much to the contract between the 
 individuals as to the personal relations resulting from 
 it, and to the relative duties of the parties, to their 
 standing and conduct in the society of which they are 
 members ; and these are regulated with a principal 
 view to the public order and economy, the promotion 
 of good morals, and the happiness of the community. 
 A divorce, for example, in a case of public scandal and 
 
 1 Inhabitants of Hanover v. Turner, 14 Mass. R. 227, 231. See also 
 Barber v. Root, 10 Mass. R. 265, 266.
 
 CII. VII.] FOREIGN DIVORCES. 345 
 
 reproach, is not a vindication of the contract of fnar- 
 riage, or a remedy to enforce it ; but a species of pun- 
 ishment which the public have placed in the hands of 
 the injured party to inflict, under the sanction, and 
 with the aid of the competent tribunal ; operating as a 
 redress of the injury, when the contract having been 
 violated, the relation of the parties, and their continu- 
 ance in the marriage state, have become intolerable or 
 vexatious to them, and of evil example to others. The 
 Lex loci, therefore, by which the conduct of married 
 persons is to be regulated, and their relative duties are 
 to be determined, and by which the relation itself is to 
 be in certain cases annulled, must be always referred, 
 not to the place where the contract was entered into, 
 but where it subsists for the time, where the parties 
 have had their domicil, and have been protected in the 
 rights resulting from the marriage contract, and espe- 
 cially where the parties are or have been amenable for 
 any violation of the duties incumbent upon them in 
 that relation." ^ 
 
 1 Barber v. Root, 10 Mass. R. 265. — By the Revised Statutes of Mas- 
 sachusetts, 1835, oh. 76, § 9, 10, 11, it is declared, that no divorce shall 
 be decreed for any cause, if the parties have never lived together as hus- 
 band and wife in this State. No divorce shall be decreed for any cause 
 which shall have occurred in any other State or country, unless the parties 
 had, before such cause occurred, been living together as husband and wife 
 in this State, ^o divorce shall be decreed for any cause which shall have 
 occurred in any other State or country, unless one of the parties was then 
 living in this State, It is also by another section (^ 39) of the same 
 chapter provided, that when an inhabitant of this State shall go into any 
 other State or country, in order to obtain a divorce for any cause, which 
 had occurred here, and whilst the parties resided here, or for any cause, 
 which would not authorize a divorce by the laws of this State, a divorce 
 so obtained shall be of no force or effect in this State. [By a recent 
 statute in that State, divorces may be granted for causes occurring out of 
 the State, if the libellant has resided five years in the State previous to 
 filing the libel. Stat. 1S43, c. 47.]
 
 346 CONFLICT OF LAWS. [CH. VII. 
 
 §•229 a. In another case the (juestion, as to the juris- 
 diction to found a suit for a divorce, also arose, and it 
 was held, that ordinarily such a suit cannot be enter- 
 tained, unless the parties are hand fide domiciled in the 
 State, in which the suit is brought ; and that for this 
 purpose the domicil of the husband must be treated as 
 the domicil of his wife. Hence, if a husband should 
 lond fide remove from Massachusetts to another State 
 with his wife, and there a good cause for a divorce by 
 law should occur, a suit could not be maintained there- 
 for in the courts of Massachusetts.^ But the Court 
 thought, that cases might arise, in which the change of 
 domicil of the husband might not deprive the wife- of 
 her right to sue for a divorce in the State, where they 
 originally lived together.^ 
 
 1 Harteau v. Harteau, 14 Pick. R. 181. 
 
 2 Ibid. On this occasion Mr. Chief Justice Shaw, in delivering the 
 opinion of the Court, said ; " Much obscurity has, we think, been thrown 
 on the subject, by confounding the two questions, which are essentially 
 different, viz. 1. In what cases a party is entitled to claim a divorce ; and 
 2. In what county the libel should be brought. As it is a right conferred 
 by statute, the one question may sometimes depend on the other; for if by 
 the terms of the statute no suit can be instituted, it is very clear, that no 
 divorce can be had. But I think there may be cases, where the statute 
 confers a right to have a divorce, in which the statute gives a general 
 jurisdiction to this Court, and yet where the parties do not live, that is, 
 have their domicil, either at the time of the act done, or at the time of the 
 suit commenced, in any county in this Commonwealth. If so, there are 
 cases, where the statute cannot be literally complied with, and must be 
 construed cy pres according to the intent. Suppose a husband commits 
 adultery, and then purchases a house and actually takes up his domicil in 
 another State, but before his wife has joined him, she is apprised of the 
 fact, and immediately files a libel for a divorce, and obtains an order to 
 protect her from the power of her husband, as by law she may. He is an 
 inhabitant of another State, and can in no sense be said to live in any 
 county in this State. And yet it would be difficult to say, thas she is not 
 entitled to have a divorce here. Supposing, instead of the last case, he 
 has actually purchased a house and changed his domicil to another State, 
 and there commits adultery, and the wife not having joined him, and not
 
 CH. VII.] FOREIGN DIVORCES. • 347 
 
 § 230. In New York, as far as decisions have gone, 
 they coincide with those of Massachusetts. Thus, in a 
 
 having left her residence in this State, becomes acquainted with the fact, 
 and libels and obtains a similar order, could she not maintain it 1 Yet, in 
 the latter case, at the time of the act done, and in the other, at the time of 
 the suit instituted, the respondent, one of the parties, certainly did not live 
 in any county of this Commonwealth. This suggests another course of 
 inquiry, that is, how far the maxim is applicable to this case, ' that the 
 domicil of the wife follows that of the husband.' Can this maxim be true 
 in its application to this subject, where the wife claims to act, and by law, 
 to a certain extent and in certain cases, is allowed to act, adversely to her 
 husband? It would oust the Court of it# jurisdiction, in all cases, where 
 the husband should change his domicil to another State, before the suit is 
 instituted. It is in the power of the husband to change and fix his domi- 
 cil at his will. If the maxim could apply, a man might go from this county 
 to Providence, take a house, live in open adultery, abandoning his wife al- 
 together, and yet she could not libel for a divorce in this State, where, till 
 such change of domicil, they had always lived. He clearly lives in Rhode 
 Island ; her domicil, according to the maxim, follows his ; she therefore, 
 in contemplation of law, is domiciled there too ; so that neither of the par- 
 ties can be said to live in this Commonwealth. It is probably a just view, 
 to consider, that the maxim is founded upon the theoretic identity of per- 
 son, and of interest, between husband and wife, as established by law, and 
 the presumption, that from the nature of that relation, the home of the one 
 is that of the other, and intended to promote, strengthen, and secure their 
 interests in this relation, as it ordinarily exists, where union and harmony 
 prevail. But the law will recognize a wife, as having a separate exist- 
 ence, and separate interests, and separate rights, in those cases, where the 
 express object of all proceedings is to show, that the relation itself ought 
 to be dissolved, or so modified as to establish separate interests, and espe- 
 cially a separate domicil and home, bed and board being put, a part for the 
 whole, as expressive of the idea of home. Otherwise, the parties in this 
 respect would stand upon very unequal grounds, it being in the power of 
 the husband to change his domicil at will, but not in that of the wife. The 
 husband might deprive the wife of the means of enforcing her rights, and 
 in effect of the rights themselves, and of the protection of the laws of the 
 Commonwealth, at the same time, that his own misconduct gives her a 
 right to be rescued from his power on account of his own misconduct to- 
 wards her. Dean v. Richmond, 5 Pick. 461 ; B^ber v. Root, 10 INIass. 
 R. 200. The place, where the marriage was had, seems to be of no im- 
 portance. The law looks at the relation of husband and wife, as it sub- 
 sists and is regulated by our laws, without considering under what law or
 
 348 .CONFLICT OF LAWS. [CH. VII. 
 
 case, where the marriage was ia that State, and after- 
 wards the wife went to Vermont, and instituted a suit 
 for divorce there, for a cause not recognized by the laws 
 of New York, against her husband, who remained domi- 
 ciled in New York, the Supreme Court of the latter 
 State refused to carry the decree into effect in regard to 
 alimony, notwithstanding the husband had appeared in 
 
 in what country the marriage was contracted. The good sense of the 
 thing seems to be, if the statute will permit us to reach it, that where par- 
 ties have bona fide taken up a domicil in this Commonweallh, and have 
 resided under the protection and .subject to the control of our laws, and 
 during the continuance of such domicil, one does an act, which may enti- 
 tle the other to a divorce, such divorce shall be granted, and the suit for it 
 entertained, although the fact was done out of the jurisdiction, and whether 
 the act be a crime, which would subject a party to punishment or not ; 
 that after such right has accrued, it cannot be defeated, either by the ac- 
 tual absence of the other party, however long continued animo revertendi, 
 or by a colorable change of domicil, or even by an actual change of domi- 
 cil ; and that it shall not be considered in law, that the change of domicil 
 of the husband draws after it the domicil of the wife to another State, so 
 as to oust the courts of this State of their jurisdiction, and deprive the in- 
 jured wife of the protection of the laws of this Commonweallh and of her 
 right to a divorce. But where the parties have bona fide renounced their 
 domicil in this State, though married here, and taken up a domicil in an- 
 other Slate, and there live as man and wife, and an act is done by one, 
 which, if done in this State, would entitle the other to a divorce, and one 
 of the parties comes into this State, the courts of this Commonwealth have 
 not such jurisdiction of the parlies, and of their relation as husband and 
 wife, as to warrant them in saying, that ihe marriage should be dissolved. 
 The case of Barber v. Root, is an authority for saying, that such a divorce 
 would not be valid in New York. It is of importance, that such a ques- 
 tion should be regulated, if possible, not by local law, or local usage, 
 under which the marriage relation should be deemed subsisting in one 
 State and dissolved in another ; but upon some general principle, which 
 can be recognized in all Stales and countries, so that parlies who are 
 deemed husband and wife in one, shall be held so in all. So many inte- 
 resting relations, so many collateral and deprivative rights of properly, and 
 of inheritance, so many correlative duties depend upon the subsistence of 
 this relation, that it is scarcely possible to overrate the importance of placing 
 it upon some genera;] and uniform principle, which shall be recognized and 
 adopted in all civilized states."
 
 CH. VII.] FOREIGN DIVORCES. 349 
 
 the cause/ upon the ground, that, there being no lond 
 fide change of the domicil of the parties, it was an at- 
 tempt fraudulently to evade the force and operation of 
 the laws of New York.- The Court, however, abstained 
 from declaring, what was the legal effect of the divorce 
 so obtained. In another case, where the marriage was 
 in Connecticut, and the husband afterwards went to 
 Vermont, and instituted a suit there for a divorce 
 against his wife, who never resided there, and never ap- 
 peared in the suit, it was held, that the decree of divorce, 
 obtained in Vermont, was invalid, being infraudem legis 
 of the State, where the parties were married, and had 
 their domicil. It was further held, that the Courts of 
 Vermont could not possess a proper jurisdiction over 
 the case, both parties not being within the State, and 
 the wife not having had any personal notice of the suit.^ 
 What would be the effect of a marriage in Connecticut, 
 a subsequent hond fide change of domicil to New York, 
 and then a divorce in Connecticut, both parties appear- 
 ing in the suit, remains as yet undecided. 
 
 § 230 a. Upon the whole, the doctrine now firmly 
 established in America upon the subject of divorce is, 
 that the law of the place of the actual hond fide domicil 
 of the parties gives jurisdiction to the proper courts to 
 decree a divorce for any cause, allowed by the local law 
 without any reference to the law of the place of the ori- 
 ginal marriage, or the place, where the offence, for which 
 
 1 This does not appear in the statement of facts ; but it is averred by 
 counsel, to appear upon the exemplification of the record of the decree of 
 Vermont. 1 John. R. 431. 
 
 2 Jackson v. Jackson, 1 John. R. 424. 
 
 3 Broden v. Fitch, 15 John. R. 121. See 2 Kent, Comm. Lect. 27, p. 
 108 to p. 118, 3d edit. See also Bradshaw v. Heath, 14 Wend. R. 407. 
 
 CONFL. 30
 
 350 CONFLICT OF LAWS. [CH. VIL 
 
 the divorce is allowed, was committed.^ Perhaps the 
 doctrine cannot be stated, with more clearness, than in 
 the reasoning of Mr. Chief Justice Gibson, in a recent 
 case. "The law of the place (says he) is necessarily 
 the law of the marriage, for its primitive obligation ; 
 but, except on the principle of perpetual submission to 
 its supremacy in all things, it is not the law of the con- 
 tract for the determination of its dissolubility. Is, then, 
 a rule thus founded, adapted to the jurisprudence of a 
 country, whose law of allegiance is different, and whose 
 asserted right of affiliation in respect to those whom it 
 admits on that ground to its civil and political privi- 
 leges, divorce among the rest, concedes the same right to 
 every other country ? Framed on the basis of this law, 
 the contract implies no perpetuity of municipal regula- 
 tion. While the parties remain subject to our jurisdic- 
 tion, the marriage is dissoluble only by our law ; when 
 they are remitted to another, it is incidentally remitted 
 along with them. And that consequence must ensue, 
 as well when they are remitted to a jurisdiction entirely 
 foreign, as when they are remitted to that of a sister 
 State ; for whatever ultra-territorial force a sentence of 
 divorce, by a Court of competent jurisdiction, may have 
 been thought to gain from the constitutional precept, 
 that the judgment of a State Court is to receive the 
 same faith and credit in every other State as in its own, 
 nothing in the federal constitution or laws has been 
 thought to touch the question of jurisdiction ; and the 
 members of the Union, therefore, stand towards each 
 other in relation to it as strangers. With what con- 
 sistency, then, would naturalized citizens be allowed 
 
 1 Pawling V. Bird's Ex'ors, 13 John. R. 192, 208, 209.
 
 CH. VII.] FOREIGN DIVORCES. 351 
 
 our law of divorce, if the validity of a divorce by the 
 law of the domicil in a sister State were disallowed, be- 
 cause the marriage had not the same origin ? Transfer 
 of allegiance and domicil is a contingency, which enters 
 into the views of the parties, and of which the wife con- 
 sents to bear the risk. By sanctioning this transfer 
 beforehand, we consent to part with the municipal go- 
 vernance incident to it ; but with this limitation we part 
 not with the remedy of past transgression." ^ 
 
 § 230 5. The incidents to a foreign divorce are also 
 naturally to be deduced from the law of the place, where 
 it is decreed. If valid there, the divorce will have, and 
 ought in general to have all the effects, in every other 
 country, upon personal property locally situated there, 
 which are properly attributable to it in the forum, where 
 it is decreed. In respect to real or immovable property, 
 the same effects would in general be attributed to such 
 divorce, as would ordinarily belong to a divorce of the 
 same sort by the L^x loci rei sitce. If a dissolution of 
 the marriage would there be consequent upon such a 
 divorce, and would there extinguish the right of dower, 
 or of tenancy by the curtesy, according to such local law, 
 then the like effects would be attributed to the foreign 
 divorce, which worked a like dissolution of the marriage.^ 
 
 1 Dorsey v. Dorsey, 7 Watts, 349 ; S. C. 1 Chand. Law Reporter, 287, 
 289. See Maguire v. Maguire, 7 Dana, R. 18] . 
 
 2 Warrender v. Warrender, 9 Bligh, R. 127 ; ante, § 226 c, note.
 
 !52 CONFLICT OF LAWS. [CH. VIIL 
 
 CHAPTER VIIL 
 
 FOREIGN CONTRACTS. 
 
 § 231. We next come to the consideration of the 
 highly important branch of international jurisprudence, 
 arising from the conflict of laws in matters of contract 
 generally.^ This subject has been very much discuss- 
 ed, not only by foreign jurists and foreign courts, but 
 in our own domestic tribunals. The general principles, 
 which regulate it, have, therefore, acquired a high de- 
 gree of certainty ; although, upon so complex a topic, 
 many intricate and difficult questions yet remain un- 
 settled. 
 
 § 232. It is easy to see, that, in the common inter- 
 course of different countries, many circumstances may 
 be required to be taken into consideration, before it can 
 be clearly ascertained, what is the true rule, by which 
 the validity, obligation, and interpretation of contracts 
 are to be governed. To make a contract valid, it is a 
 universal principle, admitted by the whole world, that 
 it should be made by parties capable to contract ; that 
 it should be voluntary ; that it should be upon a suffi- 
 cient consideration ; that it should be lawful in its na- 
 ture ; and that it should be in its terms reasonably cer- 
 
 ^ See on the subject of this chapter, 1 Burge, Comm. on Col. and For. 
 Law, Pt. 1, ch. 1, p. 23, 24,29; Id. Vol. 3, Pt. 3, ch. 22, p. 749 to p. 
 780 ; Foelix, Conflict, des Lois, Revue Etranger et Francais, Tom. 7, 
 1840, ^ 39 to 51, p. 344 to p. 365.
 
 CH. Vm.] FOREIGN CONTRACTS. ' 353 
 
 tain. But upon some of these points there is a diver- 
 sity in the positive and customary laws of different na- 
 tions. Persons, capable in one country, are incapable 
 by the laws of another;^ considerations, good in one 
 country, are insufficient, or invalid in another ; the pub- 
 lic policy of one country permits, or favors certain 
 agreements, which are prohibited in another ; the forms, 
 prescribed by the laws of one country, to insure valid- 
 ity and obligation of contracts, are unknown in an- 
 other ; and the rights, acknowledged by one country, 
 are not commensurate with those belonging to another. 
 A person sometimes contracts in one country, and is 
 domiciled in another, and is to pay in a third ; and 
 sometimes the property, which is the subject of the con- 
 tract, is situate in a fourth ; and each of these countries 
 may have different, and even opposite laws, affecting 
 the subject-matter. What then is to be done in this 
 conflict of laws ? What law is to regulate the contract, 
 either to determine the rights, or the remedies, or the 
 defences growing out of it ; or the consequences flow- 
 ing from it ? What law is to interpret its terms, and 
 ascertain the nature, character, and extent of its stipu- 
 lations ? Boullenois has very justly said, that these 
 are questions of great importance, and embrace a wide 
 extent of objects.^ 
 
 § 233. There are two texts of the civil law, which 
 treat of this subject, which have been supposed by Civil- 
 ians and Jurists to involve an apparent antinomy. 
 One seems to require, that the place where the con- 
 tract is entered into, should alone govern the contract. 
 
 1 Ante, ^ 51 to 90. 
 
 2 2 Boullenois, Obser. 46, p. 445. 
 
 30*
 
 354 CONFLICT OF LAWS. [CH. VIIL 
 
 Si fundus vcenierit, ex consuetiidine ejus regionis, in cjiid 
 negotium gestum est, pro evictione caveri oportet ;^ If land 
 shall be sold, it is to be warranted against eviction ac- 
 cording to the law of the country, in which the busi- 
 ness is transacted. The other, on the contrary, seems 
 to require, that the place, where the contract is to be 
 executed, should govern it. Contraxisse iimisqiiisqiie in 
 eo loco intelUgikir, in quo, lit solver ei, se ohligavit; Every 
 one is understood to have contracted in the place, in 
 which he has bound himself to perform the contract.^ 
 
 § 234. Dumoulin has endeavored to reconcile these 
 texts, by supposing, that the former Law, Si fundus, 
 truly and fundamentally presupposes, that the contract- 
 ing ^parties have their domicil in the place of the con- 
 tract, and that the contract is there to be executed ; 
 but that the latter Law, Contraxisse, applies to the case, 
 where the party has bound himself to execute the con- 
 tract throughout in another place, than that, in which 
 the contract is made. Sed hie venditor eo ipso se ohligat, 
 solutionem et traditionem realem, per se v el per alium facere 
 in loco, in quo, fundus situs est ; ergo, ihi contraxisse, cense- 
 tur. Et sic Lex, Si fundus, ex viva et radicate ratione,pra2- 
 siipponit contrahentes habere domicilium in loco contractus? 
 
 1 Dig, Lib. 21, tit. 2, 1. G ; Tothier, Pand. Lib. 21, tit. 2, n. 7. See 
 Everhardus, Concil. 178, p. 207; post, § 300 b. See Bartolus's interpret- 
 ation of this law. Barlolus, ad Cod. Lib. 1, tit. 1, 1. 1, n. 14, 15, 16 ; 
 post, ^ 301. 
 
 2 Dig. Lib. 44, tit. 7, 1. 21 ; Pothier, Pand. Lib. 5, tit. 1, n. 3G.— To 
 the same effect is the text ; " Contractum autem non utique eo loco intelli- 
 gitur, quo negotium gestum sit, sed quo solvenda est pecunia." Dig. 
 Lib. 42, tit. 5, 1. 3 ; Pothier, Pand. Lib. 42, tit. 5, n. 24. 
 
 3 Molin. Comment, In. Cod. Lib. l,tit. 1,1. 1, Conclusiones deStatutis, 
 Molin. Opera, Tom. 3, p. 554 ; Everhardus, Consil. 178, p. 206, 207 ; 
 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 851, 852, 853 ; 
 2 Boullenois, Obser. 46, p. 445, 446, 447.
 
 CH. VIII.] FOREIGN CONTRACTS. 355 
 
 Le Brun says, that when the Doctors say, in comment- 
 ing on the Law, {Si fundus,) Locus contractus regit in 
 contractihus, they mean in every thing, which concerns 
 the manner of contracting, the exterior form of the con- 
 tract. But that the law of the domicil is to govern in 
 whatever respects the substance and effects of the acts 
 done.^ However, the generality of French authors have 
 reconciled these laws in a different manner ; by consi- 
 dering, that the place of a contract admits of a double 
 meaning, viz. the place, where the contract is entered 
 into, Ubi verba profenintur, and that, where the contract 
 is to be executed, where payment is to be made, Ubi 
 solidio distinatiir? They think, therefore, that the Law, 
 Si fundus, is to be understood of the place, where the 
 contract is entered into, Ubi verba irrolata sunt ; and, 
 that it properly applies to cases, where it is necessary 
 to decide upon the form, either of the proof, or the sub- 
 stance, or the constitution, or the mode of the contract, 
 or of its extrinsic ceremonies or solemnities ; and, that 
 the Law, Contraxisse, applies to the case where the ques- 
 tion is respecting the rights, which spring from the con- 
 tract, of which the execution and performance are refer- 
 red to another place.^ 
 
 § 235. Boullenois holds both interpretations unsatis- 
 factory, and insufficient for many occasions ; for they 
 suppose, that two places only are to be examined in 
 resolving all questions, the place of the making, and the 
 place of performance of the contract; and in effect, 
 they put aside the law of the place of the situs of the 
 thing (m sitw), and that of the domicil of the parties, 
 
 1 Le Brun, De la Communaute, Liv. 1, ch. 2, ^ 46. 
 
 2 2 Boullenois, Observ. 40, p. 446, 447 ; post, ^ 299 to 304. 
 
 3 Ibid. See also Everhard. Consil. 78, n. 18, 19, p. 207.
 
 356 CONFLICT OF LAWS. [cH. VIII. 
 
 whicli are often imperative, and on many occasions de- 
 serve a preference.^ He adds, that there is another dif- 
 ficulty, which arises in these mixed questions, which is, 
 that the laws in one place affix to certain clauses a cer- 
 tain sense and a certain effect, and the laws of another 
 place give them a sense and an effect, either more exten- 
 sive, or more restrained.^ He also informs us, that 
 many foreign jurists have warned us against two errors, 
 which constitute the quicksands of the law on this sub- 
 ject, and which are necessary to be avoided.^ One of 
 these errors is the confounding of those things, which 
 belong to the solemnities of the acts, and the effects 
 which result from the nature of the acts, on the one 
 side, with those, which belong to the charges or liens, 
 which spring up after the acts, purely as accidents, on 
 the other side.'' The other, the omission in a proper 
 case to have a due regard or deference to the law of the 
 situs or locality of the thing.^ 
 
 § 236. Msevius has given us a warning in this mat- 
 ter against confounding the solemnities of acts and con- 
 tracts, as well as the effects caused by them, with the 
 charges thereof, and extrinsic accidents, which follow 
 the contracts, but are not in the contracts themselves. 
 Cave, autem, in licec materia, confimdas actuiim et contractu- 
 um solennia, nee non effectus ac ipsis causatos cum eorum 
 onere, et accidenti exirinseco, quod contractus suhsequittir, 
 sed ex non ipsis contractibus est. Id, dum multi ignorant, 
 aut non discernunt, forenses maximd Icedunt, et gravantur^ 
 
 1 2 BouUenois, Obscrv. 46, p. 447. 
 
 2 Post, ^ 275. 
 
 3 2 BouUenois, Observ. 46, p. 447, 449. 
 
 4 2 BouUenois, Observ. 46, p. 447, 448, 449. 
 " 2 BouUenois, Observ. 46, p. 449, 450. 
 
 ^ Msevius, ad Jus Lubecense, Quest. Prelim. 4, n. 18, p. 22.
 
 CH. VIII.] FOREIGN CONTRACTS. 357 
 
 So that, according to Msevius, the law of the place of 
 the contract is to govern, first, as to the solemnities of 
 the act or contract; and secondly, as to the eJBfects 
 caused thereby ; but as to the charges (onus) and ex- 
 trinsic accidents, that it is not to govern. Forenses ser- 
 vare teneri statida et consiietudines loci, iibi aliqiiid agtint, et 
 contrahunt ad validitatem actus et contractus. Statiituni 
 enim actus sen contt-actiis semper attenditiir, ciii disjjonentes 
 vel conirahantes se alUgare et conformarc voluisse censetv.r} 
 And speaking afterward upon the charges and extrinsic 
 accidents of acts and contracts, he adds ; M Ms enim, 
 quia non spectant ad formam modumque contrahendi, con- 
 tractum aiitem extrinsecus siibsequuntur, non sectamur statida 
 loci contractus? In this system he is not generally fol- 
 lowed ; and Boullenois has observed, that it is very dif- 
 ficult to say, what ought to be deemed to belong to the 
 solemnities of contracts ; what are the effects caused by 
 them ; and what are the charges and extrinsic accidents 
 resulting from them.^ 
 
 § 237. Burgundus has offered the following system. 
 In relation to express contracts two things are to be 
 considered, the form and the matter of the contract. 
 ( Omnis aidem obligandi ratio haheat, necesse est, rem et verha, 
 hoc est, formam et materiam^) But he adds, that it is 
 not indiscriminately permitted to contract in all times 
 and places ; but it is very often material, with what per- 
 sons we contract ; and all these things will be unavail- 
 ing, unless the contract is conformable to the laws. 
 
 1 Msevius, ad Jus Lubecense, Quest. Prelim. 4, n. 11, 13, 14, p. 22. 
 
 2 Maevius, ad Jus Lubecense, Quest. 4, n. 18, p. 22 ; 2 Boullenois, Ob- 
 serv. 46, p. 448, 449, 450. 
 
 3 2 Boullenois, Observ. 46, p. 447, 448, 449. 
 
 4 Burgundus, Tract. 4, n. 1, p. 100.
 
 358 CONFLICT OF LAWS. [CH. VIIL 
 
 Sed nee omni loco et tempore contrahere licet ; plurimiim 
 qiioqiie refert, cum qidhus stipiilemiir. Et sane hcec omnia 
 siipervaciia sint, nisi et secundum leges paciscamur.^ These 
 things being premised, Burgundus lays down the follow- 
 ing rules ; first, in every thing, which regards the form 
 of contracts, and the perfecting of them, the law of the 
 place, where the contract is entered into, is to be fol- 
 lowed. M quidem in scripturd instrumenti, in solemnitati- 
 hus et ceremoniis, et generaliter in omnibus, quae adformam, 
 ejusque perfectionem pertinent, spectanda est consuetudo re- 
 gionis, uU fit negotiatio? These he deems the substan- 
 tial of the contract {sulstantialia contractus^ ; and among 
 them he includes the necessity of giving a caution or 
 security upon a sale against any eviction, according to 
 the customary law.^ So, the laws, which determine the 
 place and time, when and where contracts ought to be 
 made, belong to the perfection of the form ; Conditio 
 loci et temporis perfectiqnem formce quoque respiciunt ; et 
 ideo regione contractus pariter dirigwdur^ In like man- 
 ner, all special stipulations for a limited responsibility, 
 as of particular heirs only, belong to the form.^ And 
 he concludes by observing, that in all questions, touch- 
 ing the obligation of the contract, or its interpretation ; 
 as, for example, whom it binds, and to what extent ; 
 what is included, what is excluded from it ; also in re- 
 spect to all actions, and all ambiguities, arising out of 
 the contract ; we are first to follow what has been done 
 by the parties ; or if it does not appear, what has been 
 done, the consequence will be, that we are to follow 
 
 '^Burgundus, Tract. 4, n. 1, p. 100, 101 ; 2 BouUenois, Observ. 46, p. 
 450, 451 ; post, ^ 300 a. 
 
 2 Burgundus, Tract. 4,n. 7, n. 29, p. 104, 105. 
 
 3 Id. n. 7, p. 105. 1 Ibid. 5 Ibid.
 
 CH. VIII.] FOREIGN CONTRACTS. 359 
 
 what is usual in the country, where the act took place. 
 For the law is the common instructor of the whole coun- 
 try, whose voice all hear ; and, therefore, every one, 
 who contracts in another province, is not supposed to 
 be ignorant of its customs ; but whatever he does not 
 express plainly, he refers to the interpretation of the 
 law, and wills and intends that, which the law itself 
 wills and intends. And all these things may well be 
 said of the solemnities of contracts. Igikir, ut ikiucis ah- 
 solvam, qiioties de vinculo oUigationis vel de ejus inteiyreta- 
 tione qucentur, velidi, qiios et in quantum oMget, quid sen- 
 tentice stipulationes inesse, quid abesse credi oporteat : item 
 in omnibus actionibus, et ambiguitcdibuSy quce. hide oriuntur, 
 primiim qiddem id sequemur, quod inter partes actum erit ; 
 aut si nan paret, quid actum est, erit consequens, ut id se- 
 quamur, quod in regione in qua actum est,frequentatur. Im- 
 putandum enim ei est, qui dicit, vel agit, quod apertius 
 legem non dixerit, in cujus potestate erat cuncta complecti, et 
 voliintatem suani verbis exprimere. Nee enim stipulator 
 ferendus est, si ejus intersit aliter actum non esse, ciim scire 
 debiierit, id quod a contraJientibus est omissum, supplcri legi- 
 bus, quce haucl aliter dirigunt humanas actiones, quam cor- 
 pora nostra lima alternat. Lex enim communis est prescep- 
 trix civitatis, cujus vocem cuncti exaudiunt. Et ideo, qid in 
 aliend provincid paciscitur, non credendus est esse consuetii- 
 dinis ignarus : sed id, quod palam verbis non exprimit, ad 
 interpretationem legum se referre, atque idem velle, et inten- 
 dere, quod lex ipsa velit. Et hcec quidem cuncta de solem- 
 nitate dicta sint} He then passes to the consideration of 
 the matter of the contract, by which he means the 
 things, of which it disposes ; and he affirms, in respect 
 
 1 Burgundus, Tract. 4, n. 8, p. 105, lOG.
 
 360 CONFLICT OF LAWS. [CH. Vni. 
 
 to the matter, that the law of the situation of the pro- 
 perty ought to govern. CcBterum, id sciamus, coiitradus, 
 ex parte materia utiKs sit, vel inutilis, ad leges, qiice, de 
 quihiis tractatiir, impressce sunt, hoc est, ad consuetiidinem 
 situs resp)iciemiis} He applies the same rule to quasi 
 contracts, as to express contracts ; Idem in quasi con- 
 t7%ictihus, quod in contradihus oltinet? 
 
 § 238. Hertius has laid down three general rules 
 upon the subject of the operation of foreign law.^ The 
 first is, that, when the law respects the person, the law 
 of the country to which the party is a subject, is to be 
 followed. Quando lex in personam dirigitiir, frsjnciendiim 
 est ad leges civitatis, quce personam lidbet suhjectam.^ Se- 
 condly, when the law respects things, the law of the 
 situs is to govern, wherever, and by whomsoever the act 
 may be celebrated. Si Lex dirccto rei imponitur, ea locum 
 Jmbet, uUcunque etiam locorum et a quocunque actus celehre- 
 tur.^ Thirdly, when the law imposes any form in the 
 transaction of the business [actus), the law of the place 
 where it is transacted, is to govern, and not the law of 
 the domicil of the parties, or of the place where the 
 property is situate. >S^/ Lex actui formam dot, inspicien- 
 dus est locus actus, non domicilii, non rei sitce.^ This last 
 rule, in an especial manner, he applies to contracts, even 
 
 1 Burgundus, Tract. 4, n. 8, 9. 
 
 2 Burgundus, Tract. 5, n. 1. See also 2 Boullenois, Observ. 46, p. 450 
 to p. 454, where he has given a summary of the doctrine of Burgundus. 
 Burgundus, in exemplifying what he means by the matter of the contract, 
 where the law of the situs governs, evidently confines himself to real es- 
 tate, or immovable property. See Everhardus, Consil. 78, n. 18, 19, p. 
 207 ; post, (} 299 c. 
 
 3 Ante, ^ 30, 
 
 4 1 Hertii Opera, De Collis. Leg. p. 123, § 8 ; Id. p. 175, edit. 1716. 
 
 5 1 Hertii Opera, De Collis. Leg. p. 125, ^ 9 ; Id. p. 177, edit. 1716. 
 
 6 1 Hertii Op^ra, De Collis. Leg. p. 126, ^ 10 ; Id. p. 179, edit. 1716.
 
 CH. viil] foreign contracts. 361 
 
 when they regard property situated in a foreign coun- 
 try. Valet ettamsi, hona in alio territorio sunt sita} 
 
 § 239. Huberus lays down the following doctrine. 
 All business and acts done in court, and out of court, 
 (or, as we should say, 'm. i^ais, or judicial,) whether testa- 
 mentary, or inter vivos, regularly executed in any place 
 according to the law of that place, are valid everywhere, 
 even in countries where a different law prevails, and 
 where, if transacted in the like manner, they would 
 have been invalid. On the other hand, business and 
 acts executed in any place contrary to the law of that 
 place where they are executed, as they are in their origin 
 invalid, never can acc[uire any validity. And this rule 
 applies not only to persons who are domiciled in the 
 place of the contract, but to those who are commorant 
 there. There is this exception, however, to be under- 
 stood, that if the rulers of another people would be 
 affected with any notable inconvenience thereby, they 
 are not bound to give any effect to such business and 
 transactions. Inde flidt Jicec Positio : Cimcta negotia et 
 acta, tarn in judicio, quam extra judicium, sen mortis causa 
 sive inter vivos, secundum jus ccrti loci rite celebrata, vatent, 
 etiam uli diversa juris ohservatio viget, ac %d)i sic inita, quem- 
 admodum facta sunt, non valcrent. E contra, negotia et 
 acta certo loco contra leges ejus loci celchrata, cum siiit ah 
 initio invalida, nusquam vcdere possunt ; idque non modo 
 resjpectu Jiominum, qui in loco contractus hdbent domicilium, 
 sed et ilhrum, qui ad tempiis ibidem commorantur. Sub 
 hac tamen excejjtione ; si rectores alterius iwpull exinde no- 
 tabili incommodo afficerentur, ut hi tatibus actis atque nego- 
 
 1 1 Hertii Opera, De Collis. Leg. ^ 4, p. I'^O, >^ 10, edit. 1737 ; Id. 
 p. 179, 180, edit. 1716 ; post, 371 a. 
 
 CONFL, 31
 
 362 CONFLICT OF LAWS. [CH. VIIL 
 
 iiis usum effedumque dare non tcneantur, secundum iertii 
 axiomatis Umitationem} He applies the same doctrine 
 indiscriminately to testamentary acts, to acts inter vivos, 
 and to contracts. Quod de testamcntis liahidmiis, hewn 
 etiam Jiahet in aetibus inter vivos. Proinde contractus cele- 
 hrati secundum jus loci, in quo contrahmtur, iihique tarn in 
 jure, quam extra judicium, etiam ubi hoc modo celehrati non 
 valerent, sustincntur : idque non tantum de forma, sed etiam 
 de materia contractus affirmandum est? He adds, that 
 the place where a contract is entered into, is not to be 
 precisely regarded ; that if the parties had another 
 country in view in making the contract, that ought not 
 rather to be considered. Verum tamen non ita jwacise 
 respiciendus est locus, in quo contractus est initus, id, si jxir- 
 tes alium hewn respexerint, ille non potius sit considerandus? 
 But here the same restriction is to apply, that no injury 
 arise thereby to the citizens of the foreign, country in 
 regard to their own rights. Datur ct alia Umitationis 
 scBpe dictcE applicatio in Jioc articido ; Effecta contractuum 
 certo hco initorum, pro jure hci ilUus cdihi quoque ohser- 
 vantur, si nidlum hide civihus alienis creetur prczjudicium, in 
 jure sihi qucesito ; ad quod Potestas alterius hci non tene- 
 tur, neque ^^otest extendere jtis diversi terntorii.^ And he 
 deduces the following general conclusion, that if the 
 law of a foreign countr}^ is in conflict with the law of 
 our own country, in which a contract is also entered 
 into, conflicting with another contract, which is entered 
 into elsewhere, in such a case our own law ought to 
 prevail, and not the foreign law. Ampliamus hanc regu- 
 
 i 2 Huberus, De Confl. Leg. Lib. 1, lit. 3, ^ 3. 
 
 2 2 Huberus, De Confl. Leg. 1, tit. 3, ^ 5, 7, 8, 9. 
 
 3 2 Huberus, De Confl. Leg. Lib. 1, tit. 3, ^ 10 ; post, ^ 281, 299. 
 
 4 2 Huberus, Lib. 1, tit. 1, ^ 11.
 
 CH. VIII.] FOREIGN CONTRACTS. 363 
 
 lam tali extensione. Si jus loci in alio imperio pugnet cum 
 jure nostrcE civitatis, in qud contractus etiam initus est, con- 
 fligens cum eo contractu, qui alibi celchratus est, magis est, 
 id jus nostrum, cjuam jus alieaum, servcmus} 
 
 § 239 a. Bartoliis, on the subject of contracts be- 
 tween foreigners in another country, has expressed him- 
 self to the following effect ; That we are to distin- 
 guish whether the question is (1.) as to the law or cus- 
 tom, which regulates the solemnities of the contract ; 
 or (2.) as to the institution of the remedy; or (3.) as 
 to those things, which belong to the jurisdiction, in exe- 
 cuting the contract. In the first case, the law of the 
 place of the contract is to govern ; in the second case, 
 the law of the place where the suit is instituted. But 
 in the third case, as to those things which arise from 
 the nature of the contract at the time when it was 
 made, or those which arise afterwards on account of 
 negligence or delay, the law of the place of the contract 
 is to govern. Et primo, Qucero quid de contractihus ? 
 Pone contractum celehratum per aliquem forensem in hac 
 civitate ; litigium ortum est, et agitatur lis in loco originis 
 contrahentis ; cujus loci Statuta deleni servari, vel spectari? 
 Distingue, aut loquimur de Statuto, aut de cmisuetudine, qim 
 respiciunt ipsius contractus solemnitatem, aut litis orckna- 
 tionem, aut de Ms cpice pertinent ad jiirisdictionem ex ipso 
 contractu evenientis exeeutionis. Primo casu, inspicitiir lo- 
 cus contractus. Secundo casu, aut qurnris de his, qua perti- 
 net ad litis ordinationem, et inspicitur locus judicii. Aut de 
 his quce 2')crtincnt ad ipsius litis decisionem ; et tunc, aut de 
 his, quce oriuntur secundum ip)sius contractus ncduram tem- 
 pore contractus, aut de his, quce oriuntur ex post facto prop- 
 
 i 2 Huberus, Lib. 1, tit. 3, ^ 11.
 
 364 CONFLICT OF LAWS. [CH. YIII- 
 
 ter negligentiam, vel moram. Primo casu, inspicitiir hens 
 contractus} 
 
 § 240. Boullenois has discussed this subject in a 
 most elaborate manner ; and has laid down a number 
 of rules, which are entitled to great consideration.^ 
 First. The law of the place, where a contract is entered 
 into, is to govern, as to every thing which concerns 
 the proof and authenticity of the contract, and the 
 faith which is due to it, that is to say, in all things 
 which regard its solemnities or formalities.-^ Secondly. 
 The law of the place of the contract is generally to 
 govern in every thing which forms the obligation of the 
 contract {le lien die contrat,) or what is called vinculum 
 ohligationis} Thirdly. The law of the place of the con- 
 tract is to govern as to the intrinsic and substantive 
 form of the contract.^ Fourthly. When the law has 
 attached certain formalities to the things themselves, 
 which are the subject of the contract, the law of their 
 situation is to govern.^ This rule is applicable to con- 
 tracts respecting real estate. Fifthly. When the law 
 of the place of the contract admits of dispositions or 
 acts, which do not spring properly from the nature of 
 the contract, but have their foundation in the state and 
 condition of the person, there the law which regulates 
 the person, and upon which his state depends, is to 
 
 1 Bartol. Comment, ad Cod. Lib. 1, tit. 1, 1. 1, n. 13, cited also 2 Boul- 
 lenois, Observ. 44, p. 455, 456. 
 
 2 2 Boullenois, Observ. 46. p. 445 to p. 538. — Mr. Henry has laid down 
 the first eight rules of Boullenois, as clear law, without the slightest 
 acknowledgment of the source whence they are taken. In fact, his Trea- 
 tise is in substance taken from Boullenois, whose name, however, occurs 
 only once or twice in it. 
 
 3 2 Boullenois, Observ. 46, p. 458. ^ Ibid. 
 o 2 Boullenois, Observ. 46, p. 467. 6 Ibid.
 
 CH. VIII.] FOREIGN CONTRACTS. 365 
 
 govern.^ Sixthly. In questions, whether the rights 
 which arise from the nature and time of the contract, 
 are lawful or not, the law of the place of the contract is 
 to govern.- Seventhly. In questions concerning mova- 
 ble property, of which the delivery is to be instantly 
 made, the law of the place of the contract is to govern.' 
 Eighthly. If the rights, which arise to the profit of one 
 of the contracting parties, in flxct arise under a contract 
 valid in itself, and not subject to rescision, but they 
 arise from a new cause purely accidental, and ex post 
 facto ; in this case, the law of the place where these 
 rights arise is to govern unless the parties have other- 
 wise stipulated.^ Ninthly. These rules are to govern 
 equally, whether the contestation be in a foreign tri- 
 bunal, or in a domestic tribunal, having proper jurisdic- 
 tion over the controversy.^ Tenthly. In questions 
 upon the true interpretation of any clauses in a con- 
 tract, or in a testament, the accompanying circum- 
 stances ought ordinarily to decide them.*' 
 
 § 241. Without entering farther into the examina- 
 tion of the opinions and doctrines of foreign jurists,'^ (a 
 task which would be almost endless,) we shall now 
 proceed to the consideration of those doctrines, touch- 
 ing contracts made in foreign countries, which appear 
 to be recognized and settled in the jurisprudence of 
 the common law. The law which is to govern in rela- 
 
 1 2 Boullenois, Observ. 46, p. 467; post, ^ 437. 
 
 2 2 Boullenois, Observ. 46, p. 472. 3 id, Observ. n. 46, p. 475. 
 4 2 Boullenois, Observ. 46, p. 477. 5 Id. Observ. 46, p. 489. 
 
 6 2 Boullenois, Observ. 46, p. 489. See also Fcelix, Conflict, des Lois, 
 Revue, Elrang. et Franc. Tom. 7, 1840, ^ 39, p. 344 to p. 316. 
 
 ' The learned reader who wishes for farther instruction as to the 
 opinions of foreign jurists on all these points, will find many of them col- 
 lected in 2 Boullenois, Observ. 46, from p. 458 to p. 538. 
 31*
 
 366 CONFLICT OF LAWS. [CH. VIII. 
 
 tion to the capacity of the parties to enter into a con- 
 tract, has been already fully considered.^ It has been 
 shown, that, although foreign jurists generally hold, 
 that the law of the domicil ought to govern in regard 
 to the capacity of persons to contract ; ^ yet, that the 
 common law holds a different doctrine, namely, that the 
 Lex loci contractus is to govern.^ 
 
 § 242. (1.) Generally speaking, the validity of a 
 contract is to be decided by the law of the place, where 
 it is made, unless it is to be performed in another 
 country, for, as we shall presently see, in the latter 
 case, the law of the place of performance is to govern."^ 
 If valid there, it is by the general law of nations, jiu^e 
 gentium, held valid everywhere, by the tacit or implied 
 consent of the parties.^ The rule is founded, not 
 
 1 Ante, ^ 51 to 79. 
 
 2 Ante, ^ 51 to 79. — In addition to the foreign authorities already- 
 cited, we may add that of Cochin and D'Aguesseau. The former says, 
 that ihe subjects of the king of France are always subjects, and they can- 
 not break the bonds, which attach them to his authority ; and parties, 
 contracting in a foreign country, cannot possess any capacity to contract, 
 but according to the law of their own country. It is a personal law, 
 which follows them everywhere. Cochin, QEuvres, Tom. 1, p. 153, 154; 
 Id. 545, 4to. edit.; lb. Tom. 4, p. 555, 4to. edit. "When" (says 
 D'Aguesseau) " the question is, as to an act purely personal, we con- 
 sider only the law of the domicil. That alone commands all persons who 
 are subject to it. Other laws cannot make those capable, or incapable, 
 who do not live within their reach. And this is what Bartolus intended 
 to remark, when ho said, Statutum non potest habilitare personam sibi 
 non subjcclam." D'Aguesseau, CEuvres, Tom. 4, p. 639, 4to. edit. 
 
 3 See ante, ch. 4, § 51 to 54 ; Id. ^ 100 to 106. See also Male v. 
 Roberts, 3 Esp. R. 163; Thompson v. Ketcham, 8 Johns. R. 189; 
 Liverm. Diss. p. 34, ^ 21, p. 35 ; Id. ^ 22, 23, 24, p. 38 ; Id. ^ 26, 27, 
 p. 40 ; Id. ^ 31, p. 42 ; Id. ^ 33, p. 43, ^ 35 ; Andrews v. His Creditors, 
 11 Louis. R. 464, 476. 
 
 4 Post, § 280. 
 
 5 Pearsall v. Dwight, 2 Mass. R. 88, 89. See Casaregis, Disc. 179, 
 §1,2; Willing V. Conseequa, 1 Peters, R. 317 ; 2 Kent, Comm. Lect.
 
 CH. VIII.] FOREIGN CONTRACTS. 367 
 
 merely in the convenience, but in the necessities of 
 nations ; for otherwise, it would be impracticable for 
 them to carry on an extensive intercourse and com- 
 merce with each other. The whole system of agencies, 
 of purchases and sales, of mutual credits, and of trans- 
 fers of negotiable instruments, rests on this foundation ; 
 and the nation which should refuse to acknowledge the 
 common principles, would soon find its whole com- 
 mercial intercourse reduced to a state, like that, in 
 which it now exists among savage tribes, among the 
 barbarous nations of Sumatra, and among other portions 
 of Asia, washed by the Pacific. Jus autem gentium 
 (says the Institute of Justinian) omni Jmmano generi 
 commune est ; nam, usu exigente, et humanis necessitatihus, 
 gentes humance. jura qucedam sibi constituenint. Et ex Jioc 
 jure gentium, omnes pcne contractus introducii sunt, ut 
 emptio et venditio, locatio et conductio, societas, depositum, 
 mutiium, et alii innumeraUles} No more forcible applica- 
 tion can be propounded of this imperial doctrine, than 
 to the subject of international private contracts.^ In 
 
 39, p. 457, 458, 3d edit. ; De Sobry v. De Laistre, 2 Harr. & Johns. R. 
 193, 221, 228 ; Smith v. Mead, 3 Connect. R. 253; Medbury v. Hopkins, 
 3 Connect. R. 472; Houghton v. Page, 2 N. Hamp. R. 42; Dyer u. 
 Hunt, 5 N. Hamp. R. 401 ; Erskine's Inst. B. 3, tit. 2, § 39, 40, 41, 
 p. 514 to p. 516; Trimbey v. Vignier, 1 Bing. New Cas. 151, 159; 
 S. C. 4 Moore & Scott, G95 ; Andrews v. Pond, 13 Peters, R. 65 ; An- 
 drews V. His Creditors, 11 Louis. R. 465 ; Fergusson v. Fyffe, 8 Clark 
 & Finn. R. 121 ; post, ^ 316 a ; Bayley on Bills, ch. (A.) Sth edit, by F. 
 Eayley, p. 78 ; Id. Amer. Edit, by Phillips and Sewell, 18.36, p. 78 to p. 
 86 ; 1 Burge, Comment, on Col. and For. Law, Pt. 1, ch. 1, p. 29, 30 ; 
 Whister v. Stodder, 8 Martin, R. 95; Bank of U. States v. Donally, 
 8 Peters, R. 361, 372 ; Wilcox v. Hunt, 13 Peters, R. 378, 379 ; French 
 I'. Hall, 9 N. Ilamp. R. 137. 
 
 1 1 Inst. Lib. 1, tit. 2, ^ 2, 
 
 2 2 Kent, Comrn. Lect. 39, p. 454, 455, and note, 3d edit. ; 10 Toul- 
 lier, art. 80, note; Pardessus, Droit Comm. A'^ol. 5, art. 1482, Charters v. 
 Cairnes, 16 Martin, R. 1.
 
 368 CONFLICT OF LAWS. [CH. VIIL 
 
 this, as a general principle, there seems a universal con- 
 sent of all courts and jurists, foreign and domestic.^ 
 
 § 242 a. Illustrations of this general doctrine may 
 be derived from cases, which have actually occurred in 
 judgment. Thus, for example, where a bill of ex- 
 change was made and indorsed in blank in France, and 
 the holder afterwards sued the maker in England, a 
 question arose, whether, upon such an indorsement in 
 blank, without following the formalities prescribed by 
 the Civil Code of France, the indorsement passed the 
 right of property to the holder; and it being found, 
 that it did not, by the law of France, the Court held, 
 that no recovery could be had by the hokler upon the 
 note in an English Court. The Court on that occasion 
 said, that the question, as to the transfer, was a ques- 
 tion of the true interpretation of the contract, and was 
 therefore to be governed by the law of France, where 
 the contract and indorsement were made.^ 
 
 1 The cases which support this doctrine are so numerous that it would 
 be a tedious task to enumerate them. They may generally be found col- 
 lected in the Digests of the English and American Reports, under the 
 head of Foreign Law, or Lex Loci. The principal part of them are col- 
 lected in 4 Covven, R. 510, note ; and in 2 Kent, Comm. Lect. 39, p. 457, 
 et seq. in the notes. See also Fonblanque on Eq. B. 5, ch. ^ 6, note (t.) 
 p. 443 ; Bracket v. Norton, 4 Connect. R. 517; Medbury v. Hopkins, 
 3 Connect. R. 472 ; Smith v. Mead, 3 Connect. R. 253; De Sobry u. 
 De Laislre, 2 Harr. & Johns. R. 193, 221, 228 ; Trasher v. Everhart, 
 3 Gill & Johns. R. 234. The foreign jurists are equally full, as any 
 one will find upon examining the most celebrated of every nation. They 
 all follow the doctrine of Dumoulin. "In concernentibus contractibus, et 
 emergentibus tempore contractus, inspici debet locus, in quo contrahitur." 
 Molin. Comment, ad Consuet. Paris, tit. 1, § 12, Gloss, n. 37, Tom. 1, 
 224; post, ^ 260, ^ 300 d. See Bouhier, ch. 21,^190; 2 Boullenois, 
 Observ. 46, p. 458. Lord Brougham, in Warrender v. Warrender, 
 9 Bligh, R. 110, made some striking remarks on this subject, which have 
 been already cited, ante, % 226 b. note. 
 
 2 Trimbey v. Vignier, 1 Bing. New Cases, 151, 159 ; post, ^ 267, 270.
 
 CH. viil] foreign contracts. 369 
 
 § 243 (2.) The same rule applies, vice versd, to the 
 invalidity of contracts ; if void, or illegal by the law 
 of the place of the contract, they are generally held 
 void and illegal everywhere/ This would seem to be 
 a principle derived from the very elements of natural 
 justice. The Code has expounded it in strong terms. 
 Nullum enim pactum, niillam conventionem, iiUum contract- 
 um, inter cos vidcri volumus siihsecutum, qui contraJiunt lege 
 contrahcre 'proUhente? If void in its origin, it seems 
 difficult to find any principle, upon which any subse- 
 quent validity can be given to it in any other country. 
 
 § 244. (3.) But there is an exception to the -rule, as 
 to the universal validity of contracts, which is, that no 
 nation is bound to recognize or enforce any contracts, 
 which are injurious to its own interest, or to those of its 
 own subjects.^ Huberus has ex{)ressed it in the follow- 
 ing terms; Quatenus niJiil potestati mit jiiri alteriiis impe- 
 rantis ejiisqiie civium, prcejudicetur ; ^ and ]Mr. Justice Mar- 
 tin still more clearly expresses it, in saying, that the 
 exception applies to cases, in which the contract is im- 
 
 J Huberus, Lib. 1, tit. 3, De Confl. Leg. § 3, 5 ; Van Reimsdyk v. 
 Kane, 1 Gallis. R. 275 ; Pearsall v. Dvvight, 2 Mass. R. 88, 89 ; Touro v. 
 Cassin, 1 Nott & McCord, R. 173 ; De Sobry v. De Laistre, 2 Harr. 
 & Johns. R. 193, 221, 225 ; Houghton v. Paige, 2 N. Hamp. R. 42 ; 
 Dyer v. Hunt, 5 N. Hamp. R. 401 ; Van Schaik v. Edwards, 2 Johns. 
 Cas. 355; Robinson tJ. Bland, 2 Burr. R. 1077; Burrows v. Jeraino, 
 2 Str. 732 ; Alves v. Hodgson, 7 T. R. 237; 2 Kent, Comra. Lect. 39, 
 p. 457, 458, 3d edit. ; La Jeune Eugenie, 2 Mason, R. 459 ; Andrews v. 
 Pond, 13 Peters, R. 65, 78. 
 
 2 Code, Lib. 1, tit. 14, I. 5. 
 
 ^ Greenwood v. Curtis, 6 Mass. R. 37G, 379 ; Blanchard v. Russell, 
 13 Mass. R. 1,6; Whiston v. Stodder. 8 Martin, R. 95 ; De Sobry v. 
 De Laistre, 2 Harr. & Johns. R. 193, 228 ; Trasher v. Everhart, 3 Gill 
 & Johns. R. 234 ; 3 Surge, Comm. on Col. and For. Law, Pt. 2, ch. 
 20, p. 779 ; post, ^ 348 to 351 ; Andrews v. Pond, 13 Peters, R; 65, 78. 
 
 4 Huberus, Lib. 1, tit. 3, De Conflict. Leg, § 2.
 
 370 CONFLICT OF LAWS. [CH. VIII. 
 
 moral or unjust, or in which the enforcing it in a 
 state would be injurious to the rights, the interest, or 
 the convenience of such state or its citizens.' This ex- 
 ception results from the consideration, that the authority 
 of the acts and contracts done in other States, as well 
 as the laws, by w^hich they are regulated, are not, ino- 
 pio vigore, of any efficacy beyond the territories of that 
 State ; and, whatever effect is attributed to them else- 
 where, is from comity, and not of strict right.^ And 
 every independent community will, and ought to judge 
 for itself, how far that comity ought to extend.^ The 
 reasonable limitation is, that it shall not suffer preju- 
 dice by its comity.'* This doctrine has been on many 
 occasions recognized by the Supreme Court of Louisiana. 
 On a recent occasion it was said by the Court ; " By 
 the comity of nations'- a practice has been adopted, 
 by which courts of justice examine into, and enforce 
 contracts made in other States, and carry them into 
 effect according to the laws of the place, where the trans- 
 action took its rise. This practice has become so gene- 
 ral in modern times, that it may be almost stated to 
 be now a rule of international law, and it is subject 
 only to the exception, that the contract, to which aid 
 is required, should not, either in itself or in the means 
 used to give it effect, work an injury to the inhabitants 
 of the country where it is attempted to be enforced." ^ 
 
 1 Whiston V. Stodder, 8 Martin, R. 95, 97. 
 
 2 Ante, ^ 7, 8, 18, 20, 22, 23, 36. 3 Ibid. 
 
 4 Ante, \ 25, 27, 29 ; Huberus, Lib. 1, tit. 3, De Conflict. Leg. ^ 2, 3, 
 5 ; Trasher v. Everhart, 3 Gill, and Johns. R. 234 ; Greenwood v. Curtis, 
 6 Mass. R. 378 ; 2 Kent, Comm. Lect. 39, p. 457, 3d edit. ; Kentucky i'. 
 Bassford, 6 Hill, N. Y. R. 526 ; Pearsall v. Dwight, 2 Mass. R. 88, 89 ; 
 Eunomus, Dial. 3, ^ 67. 
 
 5 Mr. Justice Porter, inOhioInsur. Company v. Edmonson, 5 Louis. R. 
 295, 299, 300.
 
 CH. VIII.] FOREIGN CONTRACTS. 371 
 
 Mr. Justice Best (afterwards Lord Wynford) on another 
 occasion with great force said, that in cases turning upon 
 the comity of nations [comUas inter commwiitates,) it is 
 a maxim, that the comity cannot prevail in cases where 
 it violates the law of our own countiy, or the law of 
 nature, or the law of God. Contracts, therefore, which 
 are in evasion or fraud of the laws of a country, or of 
 the rights or duties of its subjects, contracts against 
 good morals, or against religion, or against public rights, 
 and contracts opposed to the national policy or national 
 institutions, are deemed nullities in every country, 
 affected by such considerations ; although they may be 
 valid by the laws of the place, where they are made.-^ 
 § 245. Indeed, a broader principle might be adopted ; 
 and it is to be regretted that it has not been univer- 
 sally adopted by all nations, in* respect to foreign con- 
 tracts, as it has been in respect to domestic contracts, 
 that no man ought to be heard in a court of justice to 
 enforce a contract, founded in or arising out of moral 
 or political turpitude, or in fraud of the just rights of 
 any foreign nation whatsoever.- The Roman law con- 
 tains an affirmation of this wholesome doctrine. Pacta, 
 qiicB contra leges constitidionesque, vel contra lonos mores 
 fiiint, niillam vim habere, induhitati juris est? Pacta, quce 
 turjjem caiisam continent, non sunt ohservancla^ Unfortu- 
 nately from a very questionable subserviency to mere 
 commercial gains, it has become an established formu- 
 
 ' Forbes v. Cochrane, 2 Barn. & Cress. R. 448, 471. 
 
 2 Armstrong v. Toler, 11 Wheaton, R. 258, 2G0 ; Chitty on Bills, (8lli 
 edit.) 1833, p. 143, note ; Boucher v. Lawson, Cas. Temp. Hard. 84, 89, 
 194 ; rianche v. Fletcher, Doug. R. 250; post, ^ 255, 257. 
 
 3 Code, Lib. 2, tit. 3, 1, 6. 
 
 4 Dig. Lib. 2, tit. 14, 1. 27, ^ 4. See also 1 Chitty on Comm. and 
 Manuf. ch. 4, p. 82, 83.
 
 372 CONFLICT OF LAWS. [CH. VIIL 
 
 laiy of the jurisprudence of the common law, that no 
 nation will regard or enforce the revenue laws of any 
 other country ; and that the contracts of its own sub- 
 jects, made to evade or defraud the laws or just rights 
 of foreign nations, may be enforced in its own tribu- 
 nals.^ Sound morals would seem to point to a very 
 different conclusion. Pothier has (as we shall presently 
 see) reprobated the doctrine in strong terms, as incon- 
 sistent with good faith, and the just duties of nations 
 to each other.- 
 
 § 246. A few cases may serve to illustrate the ex- 
 ceptions under each of the foregoing heads.^ First, 
 contracts, which are in evasion or fraud of the laws of 
 a particular country.'* Thus, if a contract is made in 
 France, to smuggle goods into America in violation of 
 our laws, the contract will be treated by our courts as 
 utterly void, as an intended fraud upon our laws.^ And 
 in such a case, brought into controversy in our courts, 
 it will be wholly immaterial, whether the parties are 
 citizens or are foreigners. So, if a collusive capture 
 and condemnation are procured in our courts in fraud 
 of our laws by foreigners, who are even enemies at the 
 time, their contract for the distribution of the prize 
 proceeds will be held utterly void by our courts ; 
 although the acts are a mere stratagem of war. And 
 
 1 See Boucher v. Lawson, Cas. Temp. Hard. 85, 89, 194 ; post, ^256, 
 257. 
 
 2 Post, ^ 257. 
 
 3 Many of the cases upon this subject will be found referred to in the 
 argument of Armstrong v. Toler, 11 Wheaton, R. 265, 266. 
 
 ■» See 1 Bell, Comrn. ^233 to247, p. 232 to p. 240, 4th edit.; Id. 
 p. 298 to p. 314, 5lh edit. ; Kames on Eq. B. 3, ch. 8, ^ 1. 
 
 ^ See Holman v. Johnson, Covvper, R. 341 ; Armstrong v. Toler, II 
 Wheaton, R. 258 ; Cambioso v. Maffit, 2 Wash. Cir. R. 98.
 
 CH. VIII.] FOREIGN CONTRACTS. 373 
 
 it will make no difference, that the laws have since 
 been repealed, or that the war has since ceased ; for the 
 contract, being clearly in fraud of the laws existing at 
 the time, the execution of it ought not to be enforced 
 by the courts of the country whose laws it was de- 
 signed to evade. ^ 
 
 § 247. The same principle applies, not only to con- 
 tracts growing immediately out of, and connected with, 
 an illegal transaction, but also to new contracts, if they 
 are in part connected with the illegal transaction, and 
 grow immediately out of it.^ Thus, for example, a 
 man, who, under a contract made in a foreign country, 
 imports goods for another, by means of a violation of 
 the laws of his own country, is disqualified from found- 
 ing any action in the courts of that country upon such 
 illegal transaction, for the value, or for the freight of 
 the goods, or for other advances made on them. He is 
 thus justly punished for the immorality of the act ; and 
 a powerful discouragement from the perpetration of the 
 act is thus provided.^ And if the importation is the 
 result of a scheme to consign the goods to a friend of 
 the owner, with the security of the former, that he may 
 protect or defend them for the owner, in case they 
 should be brought into jeopardy, a promise, afterwards 
 made by the owner to such friend, to indemnify him for 
 his advances and charges on account of any proceed- 
 ings against the property, although it purports to be a 
 new contract, will be held utterly void, as constituting 
 
 1 Hannay v. Eve, 3 Cranch, R. 242. See Jaques v. Withy, 1 H. 
 Black. R. 65 ; The Springfield Bank v. Merrick, 14 Mass. R. 322. 
 
 2 Armstrong v. Toler, II Wheat. R. 2G1, 262. See Canaan v. Brice, 
 3 Barn. & Aid. 179. 
 
 3 Ibid. 
 
 CONFL. 32
 
 374 CONFLICT OP LAWS. ' [CH. VIII. 
 
 a part of the r^s geda, or original transaction. It will 
 clearly be a promise, growing immediately out of, and 
 connected with, the illegal transaction.^ 
 
 § 248. But the principle stops here, and is not ex- 
 tended to new and independent transactions after the 
 illegal act. If the new contract is wholly unconnected 
 with the illegal act, and is founded on a new consider- 
 ation, and is not a part of the original scheme, it is not 
 tainted by the illegal act, although it may be known to 
 the party with whom the contract is made.^ Thus, 
 if, after the illegal act is accomplished, a new contract 
 (not being unlawful in itself) is made by the importer 
 for a sale of the goods to a retail merchant, and the 
 merchant afterwards sells the same to a tailor, or to a 
 customer, who had no participation whatsoever in the 
 original illegal scheme, such new contract will be valid, 
 although the illegality of the original importation is 
 known to each of the vendees at the time when he en- 
 tered into the new contract.^ 
 
 § 249. It will make no diflerence, that such new and 
 independent contract is made with the person Avho was 
 the contriver and conductor of the original illegal act, 
 if it is wholly disconnected therefrom ; for a new con- 
 tract, founded on a new consideration, although in rela- 
 tion to property, respecting which there have been prior 
 unlawful transactions between the parties, is not in 
 itself unlawful.^ Thus, if A. should, in a foreign coun- 
 
 1 Armstrong v. Toler, 11 Wheat. R. 261, 262, See Canaan v. Brice, 
 3 Barn. & Aid. 179. 
 
 2 Armstrong v. Toler, 11 Wheat. R. 262, 268, 269. In this case the 
 general principles applicable to the question of illegality, as well as the 
 authorities, were fully discussed and considered by the Court. 
 
 3 Armstrong r. Toler, 11 Wheat. R. 261. 
 
 4 Armstrong v. Toler, 11 Wheat. R. 262, 268, 269.
 
 CH. VIII.] FOREIGN CONTRACTS. 375 
 
 try, during war, contrive a plan for importing goods 
 from the country of the enemy on his own account, by 
 means of smuggling, or of a collusive capture ; and 
 goods should be sent in the same vessel by B. ; and A. 
 should, upon the request of B., afterwards become sure- 
 ty for the payment of the duties, or should afterwards 
 undertake to become answerable for the expenses on 
 account of a prosecution for the illegal importation, or 
 should afterwards advance money to B., to pay these 
 expenses ; any such act, if it constituted no part of the 
 original scheme, and if A. was not concerned, nor in 
 any manner instrumental in promoting the illegal im- 
 portation of B., but he was merely engaged in a similar 
 illegal transaction, devising the plan for himself, would 
 be deemed a new contract upon a valid and legal con- 
 sideration, unconnected with the original act, although 
 remotely caused by it.^ Hence, such new contract 
 would not be so contaminated by the turpitude of the 
 offensive act, as to turn A. out of court, when seeking 
 to enforce the new contract in the courts of this coun- 
 try, although the illegal introduction of the goods into 
 the country was the consequence of the scheme pro- 
 jected by himself, in relation to his own goods.' 
 
 § 250. The same principle may be illustrated b}^ ano- 
 ther example. If A. should become answerable for ex- 
 penses on account of a prosecution for the illegal im- 
 portation, or should advance money to B., to enable 
 him to pay those expenses ; these acts would constitute 
 a new contract, on which an action might be maintained 
 in our courts, if it constituted no part of the original 
 
 1 Armstrong v. Toler, II Wheat. R. 262, 268, 269. 
 
 2 Ibid.
 
 376 CONFLICT OF LAWS. [CH. VIII. 
 
 scheme for the illegal importation, but it was subse- 
 quent to, and independent of it.' 
 
 § 251. The same general distinction has been assert- 
 ed in many cases, which have undergone a legal adju- 
 dication. Thus, in a case where goods were sold in 
 France by a Frenchman to an Englishman, for the 
 known purpose of being smuggled into England, it was 
 held, that the Frenchman could maintain a suit in Eng- 
 land for the price of the goods, upon the ground, that 
 the sale was complete in France, and the party had no 
 connection with the smuggling transaction. The con- 
 tract, (said the Court,) is complete, and nothing is left 
 to be done. The seller, indeed, knows what the buyer 
 is going to do with the goods ; but he has no concern 
 in the transaction itself.^ [So, in a late case in Massa- 
 chusetts,^ (where the sale of lottery tickets is prohibit- 
 ed by statute,) it was held, that a sale in New York, 
 where such sale is not forbidden, to a citizen of Massa- 
 chusetts, is not invalid, although the seller knew that 
 the purchaser was buying to sell again in Massachu- 
 setts, contrary to the law ; and the sale was held to be 
 made in New York although the proposal was first 
 made by letter from the State of Massachusetts.] But, 
 if it enters at all, as an ingredient, into the contract 
 between the parties, that the goods shall be smuggled, 
 or that the seller shall do some act to assist or facili- 
 tate the smuggling, such as packing them in a particu- 
 lar way, there, the seller is deemed active, and the con- 
 
 1 Armstrong v. Toler, 11 Wheat. R. 258, 260, 268 to 271. But see 
 Canaan v. Brice, 3 Barn. & Aid. 179. 
 
 2 Holman v. Johnson, Cowp. R,. 311 ; Hannay v. Eve, 3 Cranch, 242. 
 But see Pellicat v. Angell, 2 Cromp. Mees. & Rose. 311 ; post, 254, and 
 note. 
 
 3 Mclntyre v. Parks, 3 Mete. 207.
 
 CH. VIII.] FOREIGN CONTRACTS. 377 
 
 tract will not be enforced.^ The same doctrine has ac- 
 cordingly been held in other cases.~ 
 
 § 252. Huberus puts a case illustrative of the same 
 doctrine. In certain places (says he) particular mer- 
 chandise is prohibited. If sold there, the contract is 
 void. But, if the same merchandise is sold in another 
 place, where there is no such prohibition, and a suit is 
 brought upon the contract in the place where the pro- 
 hibition exists, the buyer will be held liable, {Emptor 
 condemnabitur) ; because the contract therefor was, in 
 its origin, valid. But, if the merchandise is sold to be 
 delivered in the other place where it is prohibited, the 
 buyer will not be held liable ; because such a contract 
 is repugnant to the law and interest of the country 
 which made the prohibition.^ 
 
 § 253. The result of these decisions certainly is, that 
 the mere knowledge of the illegal purpose for which 
 goods are purchased, will not affect the validity of the 
 contfact of sale of goods, intended to be smuggled into 
 a foreign country, even in the courts of that country ; 
 but that there must be some participation or interest of 
 the seller in the act itself It is difficult, however, to 
 reconcile this doctrine with the strong and masculine 
 reasoning of Lord Chief Justice Eyre in an important 
 case upon the same subject ; reasoning, which has 
 much to commend it in point of sound sense, and sound 
 
 1 Waymell v. Reed, 5 T. R. 599 ; S. C. 1 Esp. R. 91 ; Lightfoot v. 
 Tenant, 1 Bos. & Pull. 551 ; Biggs v. Lawrence, 3 T. R. 459 ; Clugas 
 V. Penelula, 4 T. R. 466 ; Holman v. Johnson, Cowp. R. 341 ; Brown v. 
 Duncan, 10 B. & C. 98; post, ^ 254, and note. 
 
 2 Ibid. 
 
 3 Huber. Lib. 1, tit. 3, De Conflictu Legura, ^5; S. P. Greenwood v. 
 Curtis, 6 Mass. R. 378 ; Executors of Cambioso v. Assignees of Moffat, 
 2 Wash. Cir. R. 98. 
 
 32*
 
 378 CONFLICT OF LAWS. [CH. VIIL 
 
 morals. "Upon the principles of the common law," 
 (said he,) "the consideration of every valid contract 
 must be meritorious. The sale and delivery of goods, 
 nay, the agreement to sell and deliver goods, is, primd 
 facie, a meritorious consideration to support a contract 
 for the price. But the man who sold arsenic to one, 
 who, he knew, intended to poison his wife with it, 
 would not be allowed to maintain an action upon his 
 contract. The consideration of the contract, in itself 
 good, is there tainted with turpitude, which destroys 
 the whole merit of it. I put this strong case, because 
 the principle of it will be felt and acknowledged with- 
 out further discussion. Other cases, where the means 
 of transgressing a law are furnished, with the know- 
 ledge that they are intended to be used for that pur- 
 pose, will differ in shade more or less from this strong 
 case ; but the body of the color is the same in all. No 
 man ought to furnish another with the means of trans- 
 gressing the law, knowing that he intended to Thake 
 that use of them." ^ The wholesome morality and en- 
 larged policy of this passage make it almost irresistible 
 to the judgment ; and, indeed, the reasoning seems 
 positively unanswerable. 
 
 § 254. The doctrine of I^ord Chief Justice Eyre 
 has been expressly adopted in other cases. Thus, on 
 one occasion," the Court of King's Bench in England 
 held, that a person who sold drugs to a brewer, know- 
 ing that they were intended to be used in the brewing 
 of beer contrary to an Act of Parliament, was not en- 
 titled to recover the money due upon the sale. Lord 
 Ellenborough on that occasion said ; " A person, who 
 
 1 Lightfoot V. Tenant, 3 Bos. & Pull. 351, 356. 
 
 2 Langton v. Hughes, 1 Maule & Selw. 593.
 
 CH. viil] foreign contracts. 379 
 
 sells drugs with a knowledge that they are meant to 
 be so mixed, may be said to cause or procure, quantum 
 in illo, the drugs to be mixed. So, if a person sell 
 goods with a knowledge, and in furtherance of the 
 buyer's intention to convey them upon a smuggling- 
 adventure, he is not permitted by the policy of the 
 law to recover such a sale." ^ And the other members 
 of the Court concurred in that opinion. Mr. Justice 
 Bayley added ; " If a principal sell articles in order to 
 enable the vendee to use them for illegal purposes, he 
 cannot recover the price. The smuggling cases, which 
 were decided on that ground, are very familiar." ^ [So 
 in a very recent case, an agreement to enable a person 
 to sell spirits without a license, was held not enforceable, 
 a license being required for the protection of public 
 morals.^] There are other cases, which adopt the same 
 general principle of enlightened justice.* It has, how- 
 ever, been directly denied in some later decisions.^ 
 Whether these last decisions will be sustained, remains 
 a question for the determination of other tribunals. It 
 is difficult to perceive any just or solid ground upon 
 which a contract is maintainable, or ought to be en- 
 forced in the tribunals of a country, which is knowingly 
 entered into in a foreign country, with the subjects of 
 the former country for the sale of goods, which are to 
 be smuggled into it against its laws j for the sale thus 
 made is the avowed means to accomplish the illegal end.^ 
 
 1 Langton v. Hughes, 1 Maule & Selw. 593. - Ibid. 
 
 3 Ritchie u. Smith, 6 M., G. & Scott, 462 ; 18 Law J. R. C. P. 0. 
 
 4 Canaan v. Brice, 3 Barn. & Adolph. 179, 181 ; Catlia v. Bell, 
 4 Camp. R. 183. 
 
 5 Hodgson V. Temple, 5 Taunt. R. 183 ; Peliicat v. Angell, 2 Cromp. 
 Mees. & Rose. 311. See also Johnson v. Hudson, 11 East, R. 180. 
 
 6 In Peliicat v. Angell, 2 Cromp. Mees. & Rose. 311, the case was of
 
 380 CONFLICT OF LAWS. [CH. VIIL 
 
 § 255. There seems at present a strong inclination 
 in the courts of law to hold, that, if a contract is made 
 
 a bill of exchange, accepted in France by the defendant, a British sub- 
 ject, payable to the plaintiff, (a Frenchman,) being for the price of goods 
 sold by the plaintiff to the defendant in Paris for the avowed purpose of 
 being smuggled into England. The bill was sued in the English Court 
 of Exchequer. Lord Abinger on that occasion said ; " It is perfectly 
 clear, that, where parties enter into a contract to contravene the laws of 
 their own country, such a contract is void ; but it is equally clear, from a 
 long series of cases, that, the subject of a foreign country is not bound to 
 pay allegiance or respect to the revenue laws of this ; except, indeed, that 
 where he comes within the act of breaking them himself, he cannot re- 
 cover here the fruits of that illegal act. But there is nothing illegal in 
 merely knowing, that the goods he sells are to be disposed of in contra- 
 vention of the fiscal laws of another country. It would have been most 
 unfortunate, if it were so in this country, where for many years, a most 
 extensive foreign trade was carried on directly in contravention of the 
 fiscal laws of several other States. The distinction is, where he takes an 
 actual part in the illegal adventure, as in packing the goods in prohibited 
 parcels, or otherwise, there, he must take the consequences of his own 
 act. But it has never been said, that merely selling to a party, who 
 means to violate the laws of his own country, is a bad contract. If the 
 position were true, which is contended for on the part of the defendant, 
 that this appears upon the plea to have been a contract for the express 
 purpose of smuggling the goods, it would follow, that it would be a breach 
 of the contract, if the goods were not smuggled. But nothing of the kind 
 appears upon the plea ; it only states a transaction, which occurs about 
 once a week in Paris. The plaintiff sold the goods; the defendant might 
 smuggle them if he liked, or he might change his mind the next day ; it 
 does not at all import a contract, of which the smuggling was an essential 
 part." It appears to me that this reasoning is wholly unsatisfactory. 
 The question is not, whether it is a part of the contract with the French- 
 man, that the goods shall be smuggled ; but whether he does not know- 
 ingly cooperate by the very sale, as far as in him lies, to accomplish the 
 illegal intention of a British subject to smuggle his goods contrary to the 
 laws of his country. Can a British tribunal be called upon to enforce 
 such a contract 1 Can it be called upon to aid a Frenchman to recover a 
 debt contracted for the purpose of violating British laws 1 Could a French- 
 man, selling poison in France to an Englishman, for the avowed purpose 
 of poisoning the King or Queen of England, recover on such a contract in 
 England ? In Wetherell v. Jones, (3 Barn. & Adolph. R. 225,) Lord Ten- 
 terden said ; " When a contract, which a plaintiff seeks to enforce, is ex- 
 pressly or by implication forbidden by the statute or common law, no
 
 CH. VIII.] FOREIGN CONTRACTS. 381 
 
 ill foreign parts by a citizen or subject of a country, for 
 the sale of goods which he knows at the time are to 
 be smuggled in violation of the laws of his own country, 
 he shall not be permitted to enforce it in the courts of 
 his own country, although the contract of sale is com- 
 plete, and might be enforced in the like case of a 
 foreigner.^ The true doctrine would seem to be, to 
 make no distinction whatsoever between the case of a 
 sale between citizens or subjects, and the case of a sate 
 between foreigners ; but to hold the contract in each 
 case to be utterly incapable of being enforced at least 
 in the courts of the country, whose laws are thus de- 
 signedly sought to be violated. Sound morals and a 
 due regard to international justice seem equally to 
 approve such a conclusion.^ 
 
 § 256. Pardessus has asked the question, whether, if 
 Frenchmen have entered into a contract abroad, forbid- 
 den by the laws of the place, where it is made, they 
 can insist upon its execution in France ; as for example, 
 a contract for contraband trade, or smuggling against 
 the laws of that country. And he has answered, that 
 he rather thinks they may ; since this offence is only a 
 violation of the law of the foreign state ; and govern- 
 ments in this respect exercise a sort of mutual hostility ; 
 
 Court will lend its assistance to give it effect. And there are numerous 
 cases in the Books, where an action on a contract lias failed, because 
 either the consideration for the promise, or the act to be done, was illegal, 
 as being against the express provisions of the law, or contrary to justice, 
 morality, or sound policy." Can a contract be fit to be entertained in a 
 British Court, whose very object is to aid in a violation of British laws, 
 and policy, and morals? 
 
 1 Biggs V. Lawrence, 3 T. R. 454 ; Clugas v. Penaluna, 4 T. E.. 466 ; 
 Weymell v. Reed, 5 T. R. 599; Eunomus, Dial. 3, ^67; Executors of 
 Cambioso v. Assignees of Moffat, 5 Wash. Cir. R. 98. 
 
 2 Ante, ^ 244, 245.
 
 382 CONFLICT OF LAWS. [CH. VIII. 
 
 and, without openly favoring enterprises of a contra- 
 band nature, tliey do not proscribe tliem.^ But this 
 doctrine of Pardessus is certainly a departure from the 
 general principle, that the validity of contracts depends 
 upon the Lex loci coiiiractus ; for, in the case supposed, 
 the contract is clearly void by the laws of the country, 
 where it is made. Huberus holds a doctrine somewhat 
 different, and approaching nearly to sound principles. 
 If (says he) goods are secretly sold in a place where 
 they are prohibited, the sale is void al initio, and no 
 action will lie thereon, in whatever country it may be 
 brought, nay not even to enforce the delivery thereof; 
 for if there had been a delivery thereof, and the buyer 
 should refuse to pay the price, he would be bound not 
 so much by the contract as by the fact of having 
 received the goods, and so far he would enrich himself 
 at the expense and loss of another.^ 
 
 § 257. It might be different, according to the received, 
 although it should seem upon principle indefensible, doc- 
 trine of judicial tribunals, if the contract were made in 
 some other country, or in the foreign country, to which 
 the parties belong; for (as we have seen)^ it has been 
 long laid down as a settled principle, that no nation is 
 bound to protect, or to regard the revenue laws of another 
 country ; and, therefore, a contract made in one coun- 
 try by subjects or residents there to evade the revenue 
 laws of another country, is not deemed illegal in the 
 country of its origin.'' Against this principle Pothier 
 
 1 5 Pardessus, art. 1492. 
 
 2 Hub. De Conflict, ch. 3, ^ 5. 
 
 3 Ante, ^ 245. 
 
 4 See Boucher v. Lawson, Cas. Temp. Hard. 84, 89, 194 ; Holman v. 
 Johnson, Cowper, R. 341 ; Biggs v. Lawrence, 3 T. R. 454 ; Clugas v. 
 Penaluna, 4 T. R. 466; Ludlow v. Van Rensaellaer, iJohns. R. 94;
 
 CH. VIII.] FOREIGN CONTRACTS. 383 
 
 argued strongly, as being inconsistent with good faith, 
 and the moral duties of nations.' Valin, however, sup- 
 ports it ; and Emerigon defends it upon the unsatisfac- 
 tory ground, that smuggling is a vice common to all 
 nations.^ An enlightened policy, founded upon national 
 justice, as well as national interest, would seem to favor 
 the opinion of Pothier in all cases, where positive legis- 
 lation has not adopted the principle, as a retaliation 
 upon the narrow and exclusive revenue system of an- 
 other nation.^ The contrary doctrine seems, however, 
 
 Lightfoot V. Tenant, 1 Bos. & Pull. 551, 557 ; Planch6 v. Fletcher, Doug. 
 R. 251 ; Lever v. Fletcher, 1 Marsh. Insur. 58 to 61, 2d edit. 
 
 1 Pothier, Assnr. n. 58. 
 
 2 2 Valin, Comm. art. 49, p. 127 ; 1 Em^rig. ch. 8, ^ 5, 212, 215, 
 (p. 216 to 218, edite par Boulay-Paty,) and see note of Estrangin to Po- 
 thier, Assur. n. 58 ; 1 Marsh. Ins. ch. 3, ^ 1, p. 59, 60, 2d edit. 
 
 3 It is gratifying to find, that Mr. Marshall and Mr. Chitty have both 
 taken side with Pothier on this point. The foUovping passage from a 
 work of the latter expounds the reasoning with considerable force. " There 
 is something in these decisions, to which a liberal mind cannot readily as- 
 sent ; and the impropriety of them seems to have been hinted at by Lord 
 Kenyon, in the before-mentioned case of Weymell v. Reed. It is impossi- 
 ble not to feel a greater inclination towards the opinion of Pothier, who 
 observes, ' that a man cannot carry on a contraband trade in a foreign 
 country, without engaging the subjects of that country to commit an of- 
 fence against the laws, which it is their duty to obey ; and it is a crime of 
 moral turpitude to engage a man to commit a crime ; that a man carrying 
 on commerce in any country, is bound to conform to the laws of that coun- 
 try ; and therefore to carry on an illicit commerce there, and to engage 
 the subjects of that country to assist him in so doing, is against good 
 faith ; and consequently a contract made to favor or protect this commerce 
 is peculiarly unlawful, and can raise no obligation.' If our law be justifia- 
 ble in protecting these transgressions, it can be only on the plea of neces- . 
 sity. But where is the necessity 1 Shall we be told, that it is impossible 
 to ascertain in the English courts the complex provisions of another coun- 
 try's revenue law ? Surely this argument can avail but little, when it is 
 recollected, that in all cases, where the argument is not convenient, the 
 law of another country, however complex, is the rule, by which contracts 
 negotiated in that country are tried and construed. It may be true, that 
 the rule of our law was adopted by way of retaliation for the illiberal con-
 
 384 CONFLICT OF LAWS. [CH. VIIL 
 
 firmly established in the actual practice of modern na- 
 tions without any such discrimination, too firmly, per- 
 haps, to be shaken except by some Legislative Act abo- 
 lishing it.-^ 
 
 § 258. (2) The second class of excepted contracts, 
 comprehends those against good morals, or religion, or 
 public rights.^ Such are contracts made in a foreign 
 country for future illicit cohabitation and prostitution ; ^ 
 contracts for the printing or circulation of irreligious 
 
 duct of other states, and is continued from a cautious policy. But a cau- 
 tious policy in a great state is but too often a narrow policy ; and, after 
 all, the best policy for a state, as well as for an individual, will perhaps 
 be found to consist in honesty and honorable conduct. Indeed, the system 
 is so directly opposite to the clear principles of right feeling between man 
 and man, that nothing could have withheld the states of Europe from con- 
 curring for its total abrogation, except the smallness of the gain or loss, 
 that attends upon it." 1 Chitty on Commerce and Manufac. p. 83, 84 ; 
 
 1 Marshall, Insur. 59 to 61, 2d edit. Mr. Chancellor Kent has also added 
 his own high authority in favor of the rule of Pothier. He has observed ; 
 " It is certainly matter of surprise and regret, that in such countries as 
 France, England, and the United States, distinguished for' a correct and 
 enlightened administration of justice, smuggling voyaged, made on purpose 
 to elude the laws, and seduce the subjects of foreign states, should be coun- 
 tenanced, and even encouraged, by the Courts of justice. The princi- 
 ple does no credit to the commercial jurisprudence of the age." .3 Kent, 
 Comm. Lect. 48, p. 266, 267, 3d edit. See also La Jeune Eugenia, 
 
 2 Mason, R. 459, 461. 
 
 1 See also Kohn v. Schooner Renaisance, 5 Louis. Ann. R. 25. 
 
 2 1 Bell, Comm. ^ 232, p. 232 to p. 242, 4th edit. ; Id, p. 297 to p. 314, 
 5th edit. 
 
 3 See 1 Selwyn's Nisi Prius, Assumpsit, p. 59, 00 ; Walker v. Perkins, 
 
 3 Burr. 1568 ; Greenwood v. Curtis, 6 INIass. R. 379 ; Birmington v. 
 Wallis, 4 Barn. & Aid. 650; Lloyd v. Johnson, 1 Bos. & Pull. 340; 
 Jones V. Randall, Cowp. R. 37 ; Appleton v. Campbell, 2 Carr. & P. 
 347 ; De Sobry u. DeLaistre, 2 Harr. & Johns. R. 193, 228. Lord Mans- 
 field, in the case of Robinson v. Bland, 2 Burr. 1084, puts the very case. 
 In many countries (says he) a contract may be maintained by a courtesan 
 for the price of her prostitution ; and one may suppose an action to be 
 brought here ; but that could never be allowed in this country. There- 
 fore the lex loci cannot in all cases govern and direct.
 
 CH. VIII.] FOREIGN CONTRACTS. 385 
 
 and obscene publications ; contracts to promote or re- 
 ward the commission of crimes ; contracts to corrupt, or 
 evade the due administration of justice ; contracts to 
 cheat public agents, or to defeat the public rights ; and 
 in short, all contracts, which in their own nature are 
 founded in moral turpitude, and are inconsistent with 
 the good order and solid interests of society.^ All such 
 contracts, even though they might be held valid in the 
 country where they are made, would be held void else- 
 where, or at least ought to be, if the dictates of Chris- 
 tian morality, or even of natural justice are allowed to 
 have their due force and influence in the administration 
 of international jurisprudence. 
 
 [258 a. But to come within this exception, a contract 
 must be clearly founded in moral turpitude, and not 
 simply contrary to the statutes of the country, where it 
 is sought to be enforced. Thus, in a late case in New 
 York, where the sale of lottery tickets is prohibited by 
 law, an action was brought on a bond conditioned for 
 the faithful performance of certain duties enjoined by a 
 law of Kentucky, which authorized the obligees to sell 
 lottery tickets, for the benefit of a college in that State, 
 and the bond was held valid, it being so at the place 
 where the condition was to be performed ; and it was 
 considered immaterial whether the bond was executed 
 in New York, or in Kentucky.^] 
 
 1 See Com. Dig. Assumpsit, F. 7 ; Smith v. Stotesbury, 1 W. BI. 204 ; 
 S. C. 2 Burr. 924 ; Foxes v. Johnnes, 4 Esp. R. 97 ; Willis v. Baldwin, 
 Doug. R. 450; Walcot v. Walker, 7 Vesey, R. 1 ; Southeyu. Sherwood, 
 2 Merivale, 435,441; Lawrence v. Smith, Jacob, R. 471, 474, note ; 
 Jones V. Randall, Cowp. R. 37 ; Bowrey v. Bennett, 1 Camp. 348 ; Jen- 
 nings V. Throgmorton, Ry. & Moody, 251 ; Appleton v. Campbell, 2 C. 
 & P. 347 ; Fergusson on Marr. & Div. 396, 397. 
 
 2 Kentucky j;. Bassford, 6 Hill, N. Y. R. 526. 
 CONFL. 33
 
 386 CONFLICT OF LAWS. [CH. VIIL 
 
 § 259. (3.) The next class of excepted contracts com- 
 prehends those, which are opposed to the national policy 
 and institutions. For example, contracts made in a 
 foreign country to procure loans in our own country, in 
 order to assist the subjects of a foreign state in the pro- 
 secution of war against a nation with which we are at 
 peace ; for such conduct is inconsistent with a just and 
 impartial neutrality ; ^ contracts entered into with a 
 foreign government or its agents, (such as for a loan of 
 money,) such government being a new government, un- 
 acknowledged by our own government, to which the 
 party, entering into the contract, belongs ; ^ for a like 
 rule of public policy applies to such cases ; contracts 
 entered into by our own citizens or others in violation 
 of a monopoly, granted by our own country to particu- 
 lar subjects thereof; ^ contracts by our own citizens or 
 others to carry on trade with the enemy, or to cover 
 enemy property, or to transport goods contraband of 
 war ; ^ contracts to carry into effect the African slave 
 trade, or the rights of slavery, in countries, which refuse 
 to acknowledge its lawfulness, at least if entered into 
 by subjects of, or residents within, such countries.^ In 
 
 1 De Witz V. Hendricks, 9 Moore, R. 586 ; S. C. 2 Bing. R. 314. 
 ~ Thompson v. Powles, 2 Simons, R. 194. See also Jones v. Garcia 
 del Rio, 1 Turner & Rush. R. 299. 
 
 3 Pattison v. Mills, 1 Dow & Clarke, R. 342. 
 
 4 I Marshall, Insur. B. 1, ch. 3, ^ 3, p. 78, ^ 4, p. 85, 2d edit. ; Gris- 
 wold V. Waddington, 16 Johns. R. 438 ; 2 Wheaton, R. Appendix, 35 ; 
 Richardson v. Maine Ins. Co. 6 Mass. R. 102, 110, 112, 113 ; Musson v. 
 Fales, 16 Mass. R. 332 ; Coolidge v. Inglee, 13 Mass. R. 26. 
 
 5 See Somerset's Case, Lofft's R. 1 ; 20 Howell's State Trials, 79 ; 
 Fergusson on Mar. and Div. 396, 397 ; Madrazo v. Willes, 3 Barn. & 
 Aid. 353 ; Forbes v. Cochrane, 2 Barn. & Cresw. 448 ; and especially the 
 opinion of Best, J. I am not unaware of the bearing of the case of Green- 
 wood V. Curtis, 6 Mass. R. 358, on this point ; and without undertaking 
 to examine its authority, it may be sufficient to say, that it is not without
 
 CH. VIII.] FOREIGN CONTRACTS. 387 
 
 all such cases the contracts would, or might he, held 
 utterly void, whatever might he their validity in the 
 country, where they are made, as being inconsistent 
 with the duties, the policy, or the institutions, of other 
 countries, where they are sought to.be enforced.^ 
 
 § 259 a. A case, illustrative of the same principle, but 
 of far less repugnancy to the policy and interests of the 
 particular country, where the rights under a contract 
 are sought to be enforced, occurred in Louisiana. A 
 debtor in another State made a contract, and transfer- 
 red his property to certain creditors in preference to 
 his general creditors, which were not deemed by the 
 laws of that State fraudulent in regard to the latter 
 creditors; he afterwards came to Louisiana, and was 
 arrested there ; and he then by petition sought the be- 
 nefit of the insolvent laws of Louisiana, by those laws 
 such a preference would be fraudulent; and would de- 
 prive the debtor of the benefit of a discharge under the 
 insolvent acts of the State. The Court held, that as the 
 debtor sought the benefit of the Louisiana laws, he 
 
 difficulty in its principles and application, as will abundantly appear from 
 the elaborate argument of Mr. Justice Sedgwick in the same case (Id. 
 362, n.), and the later reasoning of Mr. Justice Best, in Forbes r. Coch- 
 rane, 2 Barn. & Cresw. 448. I have given, in the text, what seems to 
 me to be the just doctrine resulting from the modern cases, without mean- 
 ing to assert, that the authorities cited are fully in point. Ante, ^ 96 a. 
 Mr. Chief Justice Shaw, arguendo, in the case of Commonwealth v. Aves, 
 18 Pick. R. 193, (Ante, § 96, a. p. 93, note,) held, that a suit brought 
 here upon a note of hand, given in a State, where slavery was allowed, for 
 the price of a slave, might be maintainable in our courts, and that the con- 
 sideration would not be invalidated upon the ground of the consideration. 
 It may be so here ; but this doctrine, as one of universal application, may 
 admit of question in other countries, where slavery may be denounced as 
 inhuman and unjust, and against public policy. 
 
 1 1 Bell, Comm. ^ 234 to % 250, p. 232 to p. 210, 4lh edit. ; Id. p. 298 
 to p. 314, 5lh edit.
 
 388 CONFLICT OF LAWS. [CH. VIH. 
 
 could entitle himself to it only by showing a compliance 
 with all their provisions ; and that the preference, so 
 given being fraudulent by those laws, he was not enti- 
 tled to the discharge. On that occasion the Court said ; 
 " But it is said, that if we put such a construction upon 
 the act, we give an extra-territorial operation to our 
 law, by treating, as null, contracts sanctioned by the 
 Lex loci, and regarding as fraudulent those transactions, 
 which were in fact not only legal, but meritorious. To 
 this it may be answered, that we leave those contracts 
 undisturbed, and take cognizance of them no further, 
 than as the voluntary disposition of property in refer- 
 ence to our own insolvent laws, when the insolvent 
 seeks an extraordinary remedy, to which he would not 
 be entitled by the law of his domicil ; that of being de- 
 clared exonerated from the payment of his remaining 
 debts, on the assignment of the remainder of his effects. 
 We look at them only so far, as they form a condition, 
 upon which depends his right to be discharged, and 
 consequently as pertaining to the remedy sought for. 
 It is further urged, that the acts, spoken of in the sta- 
 tute, must be shown to have been done in contempla- 
 tion of taking the benefit of the act, and, that it can- 
 not be supposed, that Andrews had in view the bank- 
 rupt laws of Louisiana, when he made these assign- 
 ments in Alabama. Taken in their literal sense, it is 
 certainly difficult, if not impossible, to give any legal 
 effect to these expressions, without resorting to the 
 extravagant supposition, that the insolvent had pro- 
 cured his own arrest, by colluding with some one cre- 
 ditor, and, that he had done other acts, which would 
 tend to defeat his own project. But the charge prayed 
 for does not omit those expressions, and it is not now 
 our duty to inquire, in what sense they are to be
 
 CH. VIII.] FOREIGN CONTRACTS. 389 
 
 understood, and whether, by the general principles of 
 our law, all contracts of the kind spoken of, within 
 three months preceding insolvency, between debtor and 
 creditor, be not presumed to be in fraud of other 
 creditors." ^ 
 
 259 h. A case of a more difficult character, if indeed 
 it be not of a more questionable character, is one put 
 by Lord Brougham, arguendo, in the course of one of 
 his judgments. Speaking upon the point, that the 
 Lex hci contractus is the governing rule in deciding 
 upon the validity or invalidity of all personal contracts, 
 he said -, " Thus, a marriage, good by the laws of one 
 country, is held good in all others, where the question 
 of its validity may arise. For why ? The question 
 always must be; Did the parties intend to contract 
 marriage ? And if they did, what in the place they 
 were in, is deemed a marriage, they cannot reasonably, 
 or sensibly, or safely, be considered otherwise than as in- 
 tending a marriage contract. The laws of each nation 
 lay down the forms and solemnities, a compliance with 
 which shall be deemed the only criterion of the inten- 
 tion to enter into the contract. If those laws annex 
 certain qualifications to parties circumstanced in a par- 
 ticular way, or if they impose certain conditions prece- 
 dent on certain parties, this falls exactly within the 
 same rule ; for the presumption of law is in the one 
 case, that the parties are absolutely incapable of the 
 consent required to make the contract, and in the other 
 case, that they are incapable, until they have complied 
 with the conditions imposed. I shall only stop here to 
 remark, that the English jurisprudence, while it adopts 
 
 1 Andrews v. His Creditors, 11 Louis. R. 464, 479. 
 33*
 
 390 CONFLICT OF LAWS. [CH. VIU. 
 
 this principle in words, would not, perhaps, in certain 
 cases, which may be put, be found very willing to act 
 upon it throughout. Thus, we should expect that the 
 Spanish and Portuguese Courts would hold an English 
 marriage avoidable between uncle and niece, or brother 
 and sister-in-law, though solemnized under papal dis- 
 pensation ; because it would clearly be avoidable in 
 this country. But I strongly incline to think, that our 
 Courts would refuse to sanction, and would avoid by 
 sentence, a marriage between those relatives contracted 
 in the Peninsula, under dispensation, although beyond 
 all doubt such a marriage would there be valid by the 
 Lex loci contractus, and incapable of being set aside by 
 any proceedings in that country." '" 
 
 260. (4.) Another rule, naturally flowing from, or 
 rather illustrative of, that already stated, respecting 
 the validity of contracts, is, that all the formalities, 
 proofs, or authentications of them, which are required 
 by the Lex loci are indispensable to their validity 
 everywhere else.~ And this is in precise conformity to 
 the rule laid down on the subject by Boullenois.^ 11 
 fend, liar rcqiiiort a la forme intrinsiqiie et constitutive des 
 
 1 Warrender v. Warrender, 9 Bligh, R. Ill, 112 ; post, ^ 226 c. 
 
 2 See ante, ^ 123 ; 1 Burge, Comment, on Col. and For. Law, Pt. 1, 
 ch. 1, p. 29, 30 ; 3 Burge, Coram. Pt. 2, ch. 20, p. 752 to p. 764 ; Foelix, 
 Conflit des Lois, Revue Etrang. et Franc. Tom. 7, 1840, ^ 40 to ^ 51, 
 p. 346 to p. 360; Warrender v. Warrender, 9 Bligh, 111 ; ante, ^ 259 c. 
 
 3 Erskine's Inst. B. 3, tit. 2, ^39, 40, 41, p. 514, 515 ; Boullenois, 
 Quest. Mixt. p. 5 ; Bouhier, Cout. de Bourg. ch. 21, ^ 205 ; 2 Boullenois, 
 Observ. 46, p. 467 ; ante, ^ 240 ; 1 Hertii Op. De Collis. Leg. ^ 4, n. 59, 
 edit. 1737 ; Id. p. 209, edit. 1716. See also Voet, ad Pand. Lib. 5, tit. 1, 
 ^ 51 ; 1 Boullenois, Observ. 23, p. 523 ; Id. p. 446 to p. 466 ; Henry on 
 Foreign Law, 37, 38 ; Id. 224 ; 5 Pardessus, Droit Comm. art. 1485 ; 
 Mr. Justice Martin, in Depau v. Humphreys, 20 Martin, R. 1, 22 ; ante, 
 ^ 122, ^ 259 b ; post, ^ 299 a.
 
 CH. VIII.] FOREIGN CONTRACTS. 391 
 
 ades, suivre encore la hi dii control. Quand la Loi exicje 
 certaines formalites, lesquelles sont attacMcs aiix clioses 
 memes, il faiit suivre la loi de la situation} Burgundus 
 has expressed the same doctrine in very pointed terms. 
 Et quidem in scriptura instrumenti, in solemnitaiibus, ct cere- 
 moniis, et (/enercditer in omnibus^ quce. ad formam ejusque 
 perfectionem pertinent, spectanda est consiietudo regionis, vhi 
 fit negotiation Dumoulin says ; Aut statutum loquitur de 
 Jiis, qucB concernunt nudam ordinationem vel solemnitateni 
 actus ; et semper insjncitur statutum vel consuetudinem loci, 
 nU actus celebratxir, sive in coniractibus, sive in judiciis, sive 
 in testamentis, sive in instrumentis, aut aliis conficiendis? 
 And again ; In concernejiiibus contractimi, et emergentibus, 
 spectatur locus, in quo contraUtiir ; et in concernentibus me- 
 ram solemnitatem ciijiiscimque actus, locus, in quo iUe cele- 
 hraiur^ Casaregis says ; Commimissima enini est distinc- 
 tio, quod aut disscritur de modo procenendi in judicio, aut 
 de juribus contractus, cui robur et specialis forma tributa 
 est a statvio, vel a contrahentibus. Et in primo casu atten- 
 dendum sit statutum loci, in quo Judicium agitatur ; in se- 
 cundo, vcro, casu attendatur statutum loci, in quo fuit cele- 
 bratics contractus.^ liertius is still more direct. jSi Lex 
 actui formam dat, inspiciendus est locus actus, non domicilii, 
 non rei sita ; id est, si de solemnibus quceratur, si de loco, 
 de tempore, de modo actus, ejus loci Jiabenda est ratio, x(bi 
 
 1 2 BouUenois, Observ. 46, p. 467 ; ante, ^ 240; 1 Boullenois, Observ. 
 23, p. 491, 492. 
 
 2 Burgundus, Tract. 4, n. 7, n. 29 ; post, § 300 a ; 2 Boullenois, Ob- 
 serv. 46, p. 450, 451. 
 
 3 Molin, Opera, Comment. Cod. Lib. 1, tit. 4, 1. 1, Conclus. de Statut. 
 Tom. 3, p. 554, edit. 1681 ; post, ^ 441, 479 k. 
 
 4 Molin. Opera, tit. 1, De Fiefs, ^ 12, Gloss. 7, n. 37, Tom. 1, p. 224, 
 edit. 1681. 
 
 5 Casaregis, Disc. Comra. 179, n. 59.
 
 392 CONFLICT OF LAWS. [CH. YIII. 
 
 actus sive negotiiim celehratur} Christinseus, Everliardus, 
 and other distinguished jurists, adopt the same doc- 
 trine.^ And it seems fully established in the common 
 law. Thus, if by the laws of a country a contract is 
 void, unless it is written on stamp paper, it ought to 
 be held void everywhere ; for unless it be good there, 
 it can have no obligation in any other country.^ It 
 
 ^ Hertii Opera, Collis. Leg. ^ 4, n. 10, p. 126 ; Id. n. 59, p. 148, edit. 
 1737 ; Id. p. 179, p. 209, edit. 1716 ; post, ^ 3, 8, 10, 11. See also Co- 
 chin, CEiivres, Tom. 1, p. 72, 4to edit. ; Id. Tom. 3, p. 26 ; Id. Tom. 5, 
 p. 697 ; D'Aguesseau, CEuvres, Tom. 4, p. 637, 722, 4to edit. 
 
 2 Everhard. Consil. 72, n. 11, p. 206; Id. n. 18, p. 207 ; Id. 27, p. 209; 
 post, ^ 300 b. ; Christin. Decis. 283, Vol. 1, p. 355, n. 1, 4, 5, 8, 9, 10, 
 11 ; post, § 300 c. ; Molin. Comment, ad Consuet. Paris, tit. 1, ^ 12, 
 Gloss. 7, n. 37, Tom. 1, p. 224 ; post, § 300 d ; 2 Boullenois, Observ. 
 46, p. 460, 461 ; ante, ^ 122. — Dumoulin pushes the doctrine further, 
 and says ; Et est omnium Doctorum sententia, ubicumque consuetude, vel 
 statutum locale, disponit de solemnitate, vel forma actus, ligari etiam ex- 
 teros ibi actum ilium gerentes, et gestum esse \alidum, et efficacem 
 ubique, etiam super bonis solis extra territorium consuetudinis. Molin. 
 Consil. 53, ^ 9 ; Molin. Oper. Tom. 2, p. 965, edit. 1681 ; 2 Burge, Com. 
 on Col. and For, Law, Pt. 2, ch. 9, p. 865, 866 ; post, ^ 441. 
 
 3 Alves V. Hodgson, 7 T. R. 237 ; Clegg v. Levy, 3 Campb. R. 166. 
 But see Chitty on Bills, (8th edit.) p. 143, note ; and Winne v. Jackson, 
 2 Russell, R. 351 ; 3 Burge, Coram, on Col. and For. Law, Pt. 2, ch. 20, 
 p. 762. — The case of Winne v. Jackson, 2 Russell, R. 351, is certainly 
 at variance with this doctrine. It was a bill, brought to stay proceedings 
 at law on a suit, brought in England by the holder against the acceptor of 
 bills of exchange, made and accepted in France, and which, in an action 
 brought in the French courts, had been held invalid for want of a proper 
 French stamp. The Vice-Chancellor held, " that the circumstance of the 
 bills being drawn in France, in such a form that the holder could not re- 
 cover on them in France, was no objection to his recovering on them in 
 an English Court." This doctrine is wholly irreconcilable with that in 
 Alves V. Hodgson, 7 T. R. 241, and Clegg v. Levy, 3 Camp. R. 166 ; and 
 if by the laws of France such contracts were void, if not on stamped 
 paper, it is equally unsupportable upon acknowledged principles. In the 
 case of James v. Catherwood, 3 Dowl. and Ry. 190, where assumpsit was 
 brought for money lent in France, and unstamped paper receipts were pro- 
 duced in proof of the loan, evidence was offered to show, that by the 
 laws of France such receipts required a stamp to render them valid ; but
 
 CH. viil] foreign contracts. 393 
 
 might be difierent, if the contract had been made pay- 
 able in another country ; or if the objection were not 
 
 it was rejected by the Court, and the receipts were admitted in evidence 
 upon the ground, that the courts of England could not take notice of the 
 revenue laws of a foreign country. But this is a very insufficient ground, 
 if the loan required such receipt and stamp to make it valid as a contract. 
 And, if the loan was good per se ; but the stamp was requisite to make 
 the receipt good as evidence, then another question might arise, whether 
 other proof, than that required by the law of France, was admissible of a 
 written contract. This case also is inconsistent with the case in 3 Camp. 
 R. 166. Can a contract be good in any country, which is void by the law 
 of the place where it is made, because it wants the solemnities required 
 by that law ? Would a parol contract made in England, respecting an 
 interest in lands, against the Statute of Frauds, be held valid elsewhere 1 
 Would any court dispense with the written evidence required upon such 
 a contract ? On a motion for a new trial, the Court refused it. Lord Chief 
 Justice Abbott saying ; "The point is too plain for argument. It has 
 been settled, or, at least, considered as settled, ever since the time of Lord 
 Hardwicke, that in a British court we cannot take notice of the revenue 
 laws of a foreign state. It would be productive of prodigious inconve- 
 nience, if, in every case, in which an instrument was executed in a foreign 
 country, we were to receive in evidence, what the law of that country 
 was, in order to ascertain whether the instrument was, or was not, valid." 
 With great submission to his Lordship, this reasoning is wholly inadmis- 
 sible. The law is as clearly settled, as any thing can be, that a contract, 
 void by the law of the place where it is made, is void everywhere. Yet, 
 in every such case, whatever may be the inconvenience, courts of law are 
 bound to ascertain what the foreign law is. And it would be a perfect 
 novelty in jurisprudence to hold, that an instrument, which, for want of 
 due solemnities in the place where it was executed, was void, should yet 
 be valid in other countries. We can arrive at such a conclusion only by 
 overturning well established principles. The case alluded to, before Lord 
 Hardwicke, was probably Boucher v. Lawson, (Cases T. Hard. 85) ; Id. 
 194, which was the case of a contract between Englishmen, to be execut- 
 ed in England, to carry on a smuggling trade against the laws of Portu- 
 gaL Lord Hardwicke said, that such a trade was not only a lawful trade 
 in England, but very much encouraged. The case is wholly distinguish- 
 able from the present case ; and from that of any contract made in a 
 country and to be executed there, which is invalid by its laws. A con- 
 tract made in Portugal by persons domiciled there, to carry on smuggling 
 against its laws, would, or ought to be held void everywhere. See also 3 
 Chitty on Comra. and Manuf. ch, 2, p. 166.
 
 394 CONFLICT OF LAWS. [CH. VIIL 
 
 to the validity of the contract, but merely to the ad- 
 missibility of other proof of the contract in the foreign 
 court/ where a suit was brought to enforce it ; or if the 
 contract concerned real or immovable property, situated 
 in another country, whose laws are different, respecting 
 which, as we shall presently see, there is a difference 
 of opinion among foreign jurists, although in England 
 and America the rule seems firmly established, that the 
 law m sitce, and not that of the place of the contract, 
 is to prevail.^ 
 
 § 260 ^. So, where the forms of public instruments 
 are regulated by the laws of a country, they must be 
 strictly followed, to entitle them to be held valid else- 
 where. As, for example, if a protest of a bill of ex- 
 change, made in another State, is required by the laws 
 of that State to be under seal, a protest, not under 
 seal, will not be regarded as evidence of the dishonor 
 of the bill.3 
 
 § 261. The ground of this doctrine, as commonly 
 stated, is, that every person, contracting in a country, 
 is understood to submit himself to the law of the place, 
 and silently to assent to its action upon his contract. 
 Paul Voet has expressed it in the following language. 
 Quid si de contractihus proprie dictis, et qiiidem eonmi 
 solemnihis contentio ; quis locus spedahihir, an domicilii 
 contrahentis, an loci, iihi quis contrahit ? Respondeo, affir- 
 
 1 Ludlow I'. Van Rensellaer, 1 Johns. R. 93 ; James v. Catherwood, 3 
 Dowl. & Ryl. 190. See Clarke v. Cochran, 3 Martin, R. 358, 360, 361 ; 
 Brown V. Thornton, 6 Adolp. & Ellis, R. 185; Yates v. Thompson, 3 
 Clarke & Fin. R. 544. 
 
 2 Post, i5> 363 to 373, 435 to 445 ; Foelix, Confl. des Lois, Revue Etrang. 
 et Franc. Tom. 7, 1840, § 40 to 50, p. 346 to p. 359. 
 
 3 Ticknor v. Roberts, 11 Louis. R. 14 ; Bank of Rochester v. Gray, 2 
 Hill, N. Y. Rep. 227.
 
 CH. VIII.] " FOREiaN CONTRACTS. 395 
 
 manter ; Posteriiis. Quia censetiir qids, semet contra- 
 hendo, legihus istiiis loci, ubi contraliit, etiam ratione solem- 
 niiim siibjicere volmsse. Ut qiiemadmodim loci consiietudo 
 suhintrat contradum, cjusque est dedamtiva ita etiam loci 
 statidwn} It would, perhaps, be more correct to say, 
 that the law of the place of the contract acts upon it, 
 independently of any volition of the parties, in virtue 
 of the general sovereignty, possessed by every nation, 
 to regulate all persons, and property, and transactions, 
 within its own territory.^ And, in admitting the law 
 of a foreign country to govern in regard to contracts 
 made there, every nation merely recognizes, from a 
 principle of comity, the same right to exist in other 
 nations, which it demands and exercises for itself.^ 
 
 1 p. Voet, De Stat. § 9, ch. 2, n. 9, p. 267 ; Id. p. 323, edit. 1661 ; 
 Cochin, CEuvres, Tom. 5, p. 697, 4to. edit. ; Fergusson on Marr. and 
 Div. 397; 2 Boullenois, Observ. 46, p. 475, 476; Id. 500, 501, 502; 
 Casaregis, Disc. 179, ^ 56; ante, §122. — Boullenois, and some other 
 jurists contest the universality of this presumed assent to the law of the 
 place of the contract ; and assert, that the principle generally and broadly 
 taken, g6n6ralement et cruement (nuditer et indistincte,) is not correct. 
 But where no other place of performance is pointed out, it seems difficult 
 to see, what other law is to govern. See 2 Boullenois, Observ. 46, p. 457, 
 458, 459 ; Id. 501, 502 to 518 ; Bouhier, Cout. de Bourg. ch. 21, § 191, 
 192 ; Voet, De Stat. § 9, ch. 2, § 10, p. 269 ; Id. p. 325, edit. 1661. 
 Hertius even goes so far as to say, that the law of the place of a contract 
 does not govern, where the party is a stranger, ignorant of ils laws ; 
 " Non valet, si exterus ignoravit statutum." 1 Hertii Opera, De Collis. 
 Leg. § 4, p. 126, 127, § 10, edit. 1737; Id. p. 179, edit. 1716. See also 
 '2 Boullenois, Observ, 46, p. 502. Can a stranger, living in a country, 
 plead ignorance of the laws of that country in his defence ? Is he not 
 bound by them, whether he knows them, or not? Huberus, on the con- 
 trary, holds, that the law of the place of the contract governs, not only in 
 respect to those who are domiciled, but those who are commorant there. 
 Huberus, Lib. 1, lit. 3, De Conflict. Leg. § 3. 
 
 2 See the opinion of Mr. Chief Justice Marshallin Ogden v. Saunders, 
 12 Wheat. R. 332, 338 to 347. 
 
 3 Blanchard v. Russell, 13 Mass. R. 1, 4.
 
 396 CONFLICT OF LAWS. " [CH. VIIL 
 
 Some foreign jurists make an exception from the gene- 
 ral rule in cases of contract, made in a foreign country 
 by any persons, for the purpose of evading the revenue 
 system, or the local solemnities, prescribed by the laws 
 of their own country, respecting such contracts.^ Thus, 
 Paul Voet lays it down among his exceptions. Nisi 
 qiiis, quo in loco domicilii evitaret molestam aliqiiam vel 
 sumptuosam solemnitatem, adeoqiie in fraiidem siii statuti 
 nulla necessitate cogente alio proficiscatur, et mox ad locum 
 domicilii, gesto alihi negotio, revertatur? Nisi etiam extra 
 locum domicilii velit iiti statuto suce patrice favorabiliy quoad 
 solemnia ; tu forte contractus alihi ita gestus, ubi alia solem- 
 nia erant adhihenda, ex aquo et hono in patria, sustine- 
 retur? 
 
 § 262. Illustrations of this rule might be easily mul- 
 tiplied. Thus, by the English and American law, con- 
 tracts, which fall within the purview of what is called, 
 the Statute of Frauds, are required to be in writing ; 
 such are contracts respecting the sale of lands, contracts 
 for the debts of third persons, and contracts for the sale 
 of goods beyond a certain value. If such contracts 
 made by parol, [per verha,) in a country, by whose laws 
 they are required to be in writing, are sought to be 
 enforced in any other country, they will be held void, 
 exactly as they are held void in the place where they 
 are made. And the like rule applies, vice versa, where 
 parol contracts are good by the law of the place, where 
 they are made ; but they would be void, if originally 
 
 1 p. Voet, De Statut. ^ 9, ch. 2, n. 9, p. 268, Excep. 3, 4 ; Id. p.'324, 
 edit. 1661. 
 
 2 P. Voet, de Statut. ^ 9, ch. 2, Ex. 2, p. 268, edit. 1715 ; Id. p. 324, 
 edit. 1661. 
 
 3 Ibid.
 
 CH. viil] foreign contracts. . 397 
 
 made in another place, where they are sought to he 
 enforced, for want of certain solemnities, or for want 
 of being in writing, as required by the local law.^ It 
 is a very different question, as we shall presently see, 
 what rule is to prevail, where the contract respects 
 real or immovable property, and the law of the place 
 of the contract and that of the situs m require different 
 forms and solemnities to give validity to them." 
 
 § 262 a. But, suppose goods are bargained for by a 
 merchant in one country, to be paid for on delivery by 
 a merchant in another country, who is domiciled there, 
 and has given the order therefor ; and the law of the 
 country, where the bargain is made, does not require, 
 that there should be any memorandum thereof in 
 writing ; but the law of the country, where the delivery 
 
 * 2 Boullenois, Observ. 33, p. 459, 460, 461 ; 1 Boullenois, Observ, 
 46, p. 492 to p. 498; Id. 499; Id. 506 ; Id. 523 ; Erskine's Inst. B. 3, 
 tit. 2, ^ 39, 40; Vidal v. Thompson, 11 Martin, R. 23 ; Casaregis. Disc. 
 179, n. 59, 60 ; 1 Heriii Opera, De Collis. Leg. p. 148, ^ 59, edit, 1737 ; 
 Boullenois, Quest, de la Contrar. des Loix, p. 5; Livermore, Diss. p. 46, 
 ^ 41 ; 1 Barge, Comm. Pt. 1, ch. 1, p. 29 ; 3 Burge, Comm. p. 2, ch. 20, 
 p. 758 to p. 762, 769 ; Alves v. Hodgson, 7 T. R. 241 ; Clegg v. Levy, 
 3 Camp. 166. But see Wynne v. Jackson, 2 Russell, R. 251 ; and James 
 V. Calherwood, 3 Dowl. & Ryl. 190; ante, § 260, and note, p. 216 ; post, 
 ^ 362 to ^ 373. Hertius seems to think, that, if foreigners in another 
 country make a contract according to the law of their own country, (both 
 belonging to the same country,) in such a case, the contract will avail in 
 their own country, even if not made according to the lex loci contractus. 
 1 Henii Opera, De Collis. Legum, ^ 10, p. 126, 128, edit. 1737 ; Id. 
 p. 179, 180, 181, edit. 1716. So is Voet, de Statut. § 9, ch. 2, Excep. 4, 
 p. 268, edit. 1716 ; Id. p. 325, edit. 1661. But Boullenois lias observed, 
 that he does not find any authors, who are of opinion, that such a contract 
 made elsewhere, according to the law of their own country, ought to have 
 place even beyond the country. 2 Boullenois, Observ. 46, p. 459. 
 
 2 Post, ^ 363 to 373, ^ 435 to 445 ; 1 Boullenois, Observ. 23, p. 448 to 
 p. 472. 
 
 CONFL. 34
 
 398 CONFLICT OF LAWS. [CH. VIIL 
 
 is to be made, does require such a memorandum in 
 writing. By what law is the bargain to be governed ; 
 by the law of the place of the bargain, or by that of 
 the place of delivery ? It seems to have been thought, 
 that, in such a case, the law of the place of delivery is 
 to govern.^ 
 
 § 263. (5.) Another rule, illustrative of the same 
 general principle is, that the law of the place of the 
 contract is to govern, as to the nature, the obligation, 
 and the interpretation of the contract ; Locus contractus 
 regit actum? Again ; Quod si de ipso contractu quceratur 
 
 ' The case of Acebal v. Levy, 10 Bing. R. 376, seems to have involved 
 this very question, although it does not appear to have attracted the atten- 
 tion either of the Bar or of the Court. The case vi^ent off upon a sup- 
 posed variance between the counts and the evidence. The statement of 
 the facts in the body of the Report does not show, whether the goods in 
 the case, which were sold and shipped at Gigon in Spain, by order of an 
 agent of the defendants, were to be sent to the defendants in England, 
 were sold to be paid for in England after their arrival and delivery there, 
 or were to be paid for on their shipment. But Lord Chief Justice Tlndal, 
 in delivering the opinion of the Court said, that in point of fact the parol 
 evidence at the trial, established, that the price of the goods was to be the 
 current shipping price at Gigon ; and to be paid for on the delivery thereof 
 in England. The defendants refused to receive them; and the agent of 
 the plaintiff then sold them for account of the plaintiff, and the action was 
 brought for the difference between the price of the purchase, and the sale 
 thus made. One of the objections taken was, that there was no memo- 
 randum in writing required by the English Statute of Frauds. The ob- 
 jection was not sustained, because the Court thought, that there was a suffi- 
 cient memorandum ; but the memorandum varied from the counts in the 
 declaration. But the Court and Bar seems to have supposed, that the 
 English Statute of Frauds did apply to the case ; which is certainly a mat- 
 ter open to much discussion, and as we shall presently see, (post, ^ 285, 
 § 318,) has been thought open to a very different conclusion. See Vidal 
 V. Thompson, 11 Martin, R. 23, 24, 25. 
 
 2 1 Em6r. Assur. ch. 4, ^ 8, p. 122, 125, 128. See Casaregis, Disc. 
 179, !^ 60 ; Erskine's Inst. B. 3, tit. 2, § 39, 40, p. 514, 515 ; Delvalle v. 
 Plomer, 3 Camp. R. 444 ; Harrison v. Sterry, 5 Cranch, 289 ; Le Roy v. 
 Crowninshield, 2 Mason, R. 15 ; Van Reimsdyke v. Kane, I Gallis. R.
 
 CH. VIII.] FOREIGN CONTRACTS. 399 
 
 (says Paul Voet) scu de naiiird ipsius, sen de lis, qiice ex 
 naturd contract as veniunt, iniia fidejiissione, etc. etiam spec- 
 tandum est loci stcdiitum, iibi contractus cclchratiir ; quod 
 ci contrahentes scmet accommodare pr(ssumantiu'} First, 
 
 371 ; 2 Kent, Comm. Lect. 37, p. 394, Lect. 39, p. 458 to 460, 3d edit. ; 
 S. P. Ferguson v. Fyffe, 8 Clark & Fin. 121, 140. 
 
 1 P. Voet, De Stat. ^ 9, ch. 2, ^ 10, p. 269, edit. 1737 ; Id. p. 253, 
 edit. 1661. J. Voet is still niore full on the same point. Voet, ad Pand. 
 Lib. 4, tit. 1, ^ 29, p. 240, 241. Si adversus contractum (says he) ali- 
 udve negotium gestum factumve restitutio desideretur, dum quis aut metu, 
 autdolo, aut errore lapsus, damnum sensit contrahendo, transigendo, sol- 
 vendo, fidejubendo, hereditatem adeundo, aliove simili modo ; recte inter- 
 pretes statutisse arbitror, leges regionis in qua contractum gestumve est id, 
 contra quod restitutio petitur, locum sibi debere vindicare in terminanda ipsa 
 restitutionis controversia, sive res illae, de quibus contractum est, et in qui- 
 bus Iffisio contigit, eodem, in loco, sive alibi sitae sint. Nee intererit, uirum 
 laesio circa res ipsas conligerit, veluti pluris minorisve, quam eequum est, 
 errore justo distractas, an vero propter neglectasolemnia in loco contractus 
 desiderata. Si tamen contractus implementum non in ipso contractus loco 
 fieri debeat, sed ad locum alium sit destinatum, non loci contractus, sed im- 
 plementi leges spectandas esse ratio suadet : ut ita, secundum cujus loci 
 jura implementum accipere debuit contractus, juxta ejus etiam leges resol- 
 vatur. Boullenois says, that Jurists distinguish four things in contracts. 
 (1.) Substantiala contractuum ; (2.) Naturalia contraotuum ; (3.) Acci- 
 dentalia contractuum ; (4.) Solemnia contractuum. He says ; lis appel- 
 lant substantiala contractuum, tout ce qui sert a la composition inl6rieure 
 des contrats ; c'est-a-dire, tout ce qui est de I'essence determinant la nature 
 de chaque acte, et sans quoi il ne seroit pas un tel acte. Substantialia 
 sunt, quae ita formam et essentiam uniuscujusque actus constituunt, ut 
 sine iis talis actus esse non possit, cum forma dat unicuique esse id, quod 
 est. Suivant cette definition, le consentement des Parties dans tons les 
 contrats, la chose, et les prix de la chose dans un contrat de vente, perti- 
 nent ad substantialia contractuum et ad speciem contractus constituendam ; 
 et elles sont tellement necessaires, intrinsiques et constilutives d'un contrat, 
 que sine iis actus qui geritur,non valeat. Naturalia contractuum, ce sont 
 les suites et les engagements qui fluent et derivent de la nature et de Tes- 
 p^ce des contrats, dont il s'agit. Naturalia contractuum dicuntur ea, quae 
 pendent et manant a natura et potestate cujusque actus ; sed ejus formam 
 non constituunt. Telle est la garaiitie dans la vente. Mais par rapport a 
 ces engagements qui dtrivent des contrats, on en dis.tingue de deux sortes. 
 II y en a, quae sunt interna, intrinseca, et inseparabilia; c'cst-a-dire, qui 
 sont lies et attaches a chaque espt'ce de contrats, et qui sont propres a
 
 400 CONFLICT OF LAWS. [CH. VIIL 
 
 as to the nature of the contract ; by which is meant 
 those qualities, which properly belong to it, and by law 
 
 chacun de ces contrats, suivant la differente nature, dont ils sont. Quae 
 naturae contractus cohaerent, et sunt veluti propriae possessiones, propriae 
 affectiones ab essentialibuscujusque contractus principii senatag. Telle est, 
 dans un contrat de vente, la n<^cessit6 que le domaine de la chose vendue, 
 soil transf6r6 k 1' Acqu^reur ; et k cet 6gard on ne peut sesoustraire aces 
 choses ; on ne pourroit pas en effet stipuler, que le domine de la chose 
 vendue ne passeroit pas a Tacqu^reur; et ii y en a qui ne naissent que de 
 I'usage ordinaire ou on est d'en convenir, et qui, a raison de ce, sont tou- 
 jours presumes, etre convenus par les Parties. Quseexconsuetudine etiam 
 insunt contractibus, quae consuetudo in naturam quasi contractus tran- 
 siil ; et on les appelle, externa et separabilia. Telle estla garantie defait 
 dans une cession, et a cet ^gard on peut y d^roges, les Parties peuvent sti- 
 puler qu'il n'y aura d'autre garantie que celle que 1' on appelle garantie de 
 droit. Accidenlalia contractus, ce sont les choses, qui ne sont point de la 
 substance constitutive de 1' acte, qui ne fluent et ne d^rivent point de sa 
 nature et de son espece, et ne tnmbent point en convention ordinaire ; mais 
 qui ne se rencontrent dans les contrats que parceque les parties en coa- 
 viennent. Accidentalia contractus ea sunt, quae neque substantiam con- 
 tractuum constituunt, neque ex natura et potestate contracujs dimanant, sed 
 pro voluntate contrahentium, adjici contractibus solent, veluti varia pacta. 
 Je voudrois ajouter, et encore celles, qui ne sont requises que par des dis- 
 positions 16gales, k la verite, mais pures locales comme la necessity de don- 
 ner caution pour la garantie d'un contrat, laquelle a lieu dans certains en- 
 droits. Enfin, il y a, solemnia contractuum ; et on en distingue de deux 
 sortes, solemnia intrinseca, et solemnia extrinseca. fSolemnia inirinseca 
 sunt ea. quae insunt in ipsa forma cujusque actus, neque separari ab ea 
 possunt; telles sont les choses qui appertiennent i la preuve atii I'authen- 
 ticiie de I'acte, et qui comme telles sont partie de ce qui constitue I'eireet 
 I'existence de cet acte ; aussi sont-elles appellees par quelques-uns sub- 
 staiitialia contractuum. Solemnia extrinseca sunt ea, qua; actui per se for- 
 mam habenti, et ultra conventionem contrahentium sed ad ipsam convenlio- 
 nem roborandam, extrinsecus accedunt, et ce sont les choses, qui n'appar- 
 tenant en rien a la composition intrinsique de I'acte, sont seuleinent requi- 
 ses, post actum originatum, pour lui procurer son ex6cuti(m. La solem- 
 nity intrinsique est tellement n^cessaire, que si on I'omet, I'acte n'est pas 
 acte, il n'a nul 6lre, nulle existence ; I'omission vitiat et corrumpii actum ; 
 raison pour laquelle on la place volontiers inter subslantialia contrnciuum. 
 Mais h. regard de la solcmnitc extrinsique, il n'en est pas toujours de 
 meme, aliqnando obmissa impedit executionem ex omni parte. 1 Houlle- 
 nois, Observ. 23, p. 446 to p. 448. See also 2 Burge, ('om on Col. and 
 For. Law, Pt. 2, ch. 9, p. 848, 849, 850 ; 3 Burge, Comm. on Col. and
 
 CH. VIII.] FOREIGN CONTRACTS. 401 
 
 or custom always accompany it, or inhere in it.^ For- 
 eign jurists are accustomed to call such qualities Natu- 
 ralia coiiiractas? Ea enim, qucc audoritate Icgis vel consue- 
 tiidims contracium comitantur, cidem adherent, Natumlia a 
 Dodoribus appcUaiitiir. Lex enim altera est quasi natiira, 
 et in naturam transit. Atqiie quoad mduralia contradmun 
 etiani forenses statuta lodcontradds ohservare debcnt? Thus, 
 whether a contract be a personal obligation, or a real 
 obligation ; whether it be conditional, or absolute ; 
 whether it be the principal, or the accessary ; whether 
 it be that of principal or surety ; whether it be of limit- 
 ed, or of universal operation ; these are points properly 
 belonging to the nature of the contract, and are depend- 
 ent upon the law and custom of the place of the con- 
 tract, whenever there are no express terms in the con- 
 tract itself, which otherwise control them. By the law 
 of some countries, there are certain joint contracts. 
 
 For. Law, Pt. 2, ch. 20, p. 758, 759, 762, 763 ; Don. v. Lippman, 5 
 Clark & Fin. 1, 12, 13. 
 
 1 Pothier, as well as other jurists, distinguish between the essence, the 
 nature, and the accidents of contracts ; the former includes whatever is 
 indispensable to the constitution of it ; the next, whatever is included in it, 
 without being expressly mentioned by operation of law, but is capable of a 
 severance without destroying it ; and the last, those things which belong 
 to it only by express agreement. Without meaning to contest the propri- 
 ety of this division, I am content to include the two former in the single 
 word, nature, as quite conformable to our English idiom. Cujas also 
 adopts the same course. See Pothier, Oblig. n. 5. See also 2 Boulle- 
 nois, Observ. 46, p. 460, 461, 462 ; Bayu v. Vavasseur, 10 Martin, R.61 ; 
 
 Merlin, Repertoire Convention, ^ 2, n. 6, p. 357 ; Rodenburg, De Div. Stat. 
 
 lit. 2,ch. 5, 1^ 16 ; 2 BouUenois, App'x. 50 ; 1 Boullenois, 688 ; 3 Burge, 
 
 Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 848 to p. 851. 
 
 a 1 Boullenois, Observ. 23, p. 446 ; 2 Boullenois, Observ. 46, p. 460, 
 
 461 ; Voet, De Stat. \ 9, ch. 10, ^ 10, p. 287 ; Id. p. 325, edit. 1661 ; Her- 
 
 tiu3, De Collis. Leg. Tom. 1, ^0, p. 127 ; Id. p. 179, 180, edit. 1716 ; 
 
 post, ^ 301 f. 
 3 Lauterback, Diss. 104, Pt. 3, n. 58, cited 2 Boullenois, Observ. 46, 
 
 p. 460. 
 
 34*
 
 402 CONFLICT OF LAWS. [CH. VIIL 
 
 which bind eacli party for the whole, in solido ; and there 
 are other joint contracts, where the parties are, under 
 circumstances, bound only for several and distinct por- 
 tions.^ In such case the law of the place of the con- 
 tract regulates the nature of the contract, in the absence 
 of any express stipulations.- These may, therefore, be 
 said to constitute the nature of the contract.^ 
 
 1 4 Burge, Comment, on Col. and For. Law, Pt. 2 ch. 15, ^ 4, p. 722 
 to p. 735 ; post, ^ 322. 
 
 2 Pothier on Oblig. n. 261 to 268 ; Van Leeuwen, Comment. B. 4, ch. 
 4, ^ 1 ; Fergusson v. Flower, 16 Martin, R. 312 ; 2 Boullenois, Observ. 
 46, p. 463; Code Civil of France, art. 1197, 1202, 1220, 1222 ; Id. Code 
 de Coram, art. 22, 140. One may see, how strangely learned men will 
 reason on subjects of this nature, by consulting Bouellenois. He puts the 
 case of a contract made in a country, where all parties would be bound in 
 solido, and by the law of their own domicil, they would be entitled to the 
 benefit of a division, and vice versa ; and asks, What law is to govern ? 
 In each case he decides, that the law should govern, which is most favor- 
 able to the debtor. " Ainsi, les obliges solidaires ont contracie sous une 
 loi, qui leur est favorable ; j'embrasse cette loi ; elle leur est contraire, 
 j'embrasse la loi de leur domicile." 2 Boullenois, Observ. 46, p. 463, 464. 
 See also Bouhier, ch. 21, ^ 198, 199. 
 
 3 See Henry on Foreign Law, 39. Pothier on Obligations, n. 7, has 
 explained the meanins of the words, the nature of the contract, in the fol- 
 lowing manner. "Things which are only of the nature of the contract 
 are those, which, without being of the essence, form a part of it, though 
 not expressly mentioned ; it being of the nature of the contract, that they 
 shall be included and understood. These things have an intermediate 
 place between those, which are of the essence of the contract, and those, 
 which are merely accidental to it, and differ from both of them. They dif- 
 fer from those, which are of the essence of the contract, inasmuch as the 
 contract may subsist without them, and they may be excluded by the ex- 
 press agreement of the parties ; and they differ from things, which are 
 merely accidental to it, inasmuch as they form a part of it without being 
 particularly expressed, as may be illustrated by the following examples. 
 In the contract of sale the obligation of warranty, which the seller con- 
 tracts with the purchaser, is of the nature of the contract of sale; therefore 
 the seller, by the act of sale, contracts this obligation, though the parties 
 do not express it, and there is not a word respecting it in the contract; but 
 as the obligation is of the nature and not of the essence of the contract of 
 sale, the contract of sale may subsist without it : and if it is agreed, that
 
 CH. VIII.] FOREIGN CONTRACTS. 403 
 
 § 264. An illustration may be taken from a case often 
 put by the civilians. By the law of some countries a 
 warranty is implied in all cases of sale ; by that of oth- 
 ers, it is not. Suppose a contract of sale is made in any 
 of the former countries, by parties domiciled in any of 
 the latter countries. If the contract is to be executed 
 in the country where it is made, a warranty will be im- 
 plied, as an incident arising from the nature of the con- 
 tract ; if it is to be executed in the place of the domicil 
 of the parties, for reasons, which we shall presently see, 
 no warranty will be implied.' By the civil law, there 
 
 the seller shall not be bound to warranty, such agreement will be valid, 
 and the contract will continue a real contract of sale. It is also of the na- 
 ture of the contract of sale, and as soon as the contract is completed by the 
 consent of the parties, although before delivery, the thing sold is at the 
 risk of the purchaser ; and that, if it happens to perish without the fault of 
 the seller, the loss falls upon the purchaser, who is, notwithstanding the 
 misfortune, liable for the price ; but as that is only of the nature, and not 
 of the essence of the contract, the contrary may be agreed upon. When 
 a thing is lent to be specifically returned [commodatur.] it is of the nature 
 of the contract that the borrower shall be answerable for the slightest negli- 
 gence in respect to the articles lent. He contracts this obligation to the 
 lender by the very nature of the contract, and without any thing being said 
 about it. But as this obligation is of the nature, and not of the essence of 
 the contract, it may be excluded by an express agreement, that the bor- 
 rower shall only be bound to act with fidelity, and shall not be responsi- 
 ble for any accidents merely occasioned by his negligence. It is also of 
 the nature of this contract, that the loss of the thing lent, when it arises 
 from inevitable accident, falls upon the lender. But as that is of the nature, 
 and not of the essence of the contract, there may be an agreement to charge 
 the borrower with every loss, that may happen until the thing is restored. 
 A great variety of other instances might be adduced from the different 
 kinds of contracts. Those things, which are accidental to a contract, are 
 such, as, not being of the nature of the contract, are only included in it by 
 express agreement. For instance, the allowance of a certain time for pay- 
 ing the money due ; the liberty of paying it by instalments ; thai of pay- 
 ing another thing instead of it ; of paying to some other person than the 
 creditor ; and the like, are accidental to the contract; because they are not 
 included in it without being particularly expressed." 
 
 1 Pothier, Oblig. n. 7 ;2 Boullenois, Obser. 4G, p. 475, 476 ; Id. 460 to
 
 404 CONFLICT OF LAWS. [CH. VIIL 
 
 is an implied warranty, as to the quality and soundness 
 of goods sold ; by the common law, there is not.^ A 
 sale of goods in England would be governed by the 
 common law ; a sale in a foreign country, under the 
 civil law, would be governed by that law, as to this im- 
 plied warranty. Boullenois lays down this as one of 
 his fundamental rules, in the interpretation of contracts. 
 Whenever (says he) the controversy respects mova- 
 bles, of which an immediate delivery is made, the law 
 of the place of the contract is to govern ; adopting on 
 this point the doctrine, although not the reasoning of 
 Colerus. Consuetudo si qiddem loci, ubi negotium geritiir, 
 ita suUntrat ipsimi contradum ; ut secundum leges loci in- 
 telligatur actus fuisse celehraius, qiiamvis ea de re nihil fu- 
 erit expressiim? 
 
 § 265. Another illustration may be borrowed from an 
 actual decision under the common law. By the law of 
 England an acceptance of a bill of exchange binds the 
 acceptor to payment at all events. By the law of Leg- 
 horn, if a bill is accepted, and the drawer fails, and the 
 acceptor has not sufficient effects of the drawer in his 
 hands at the time of acceptance, the acceptance becomes 
 void. An acceptance in Leghorn is governed by this 
 latter law ; and under such circumstances it has been 
 held void, and not obligatory upon the acceptor.^ 
 
 § 266. Secondly, the obligation of the contract, which, 
 
 463 ; Code Civil of France, art. 1135 ; Voet. De Statut. ^ 9, ch. 2, § 10, 
 p. 209, edit. 1715 ; Id. p. 325, edit. 1661 ; 3 Burge, Comm. on Col. and 
 For. Law, Pt. 2, ch. 20, p. 769, 770. 
 
 1 Poihier, Pand. Lib. 19, tit. 1, art. 5, ^ 48 to 51 ; 2 Black. Comm. 451 ; 
 2 Kent, Comm. Lect. 39, p. 478 to 481, 3d edition. 
 
 2 2 Boullenois, Observ. 46, p. 475, 476, 
 
 3 Burrows v. Jemimo, 2 Str. R. 733 ; 2 Eq. Abr. 526 ; S. P. Pardes 
 sus, Tom. 5, art. 1495, p. 270, 271.
 
 CH. VIII.] FOREIGN CONTRACTS. 405 
 
 though often confounded "with, is distinguishable from, 
 its nature.^ The obligation of a contract is the duty to 
 perform it, whatever may be its nature. It may be a 
 moral obligation, or a legal obligation, or both. But 
 "when we speak of obligation generally, we mean legal 
 obligation, that is, the right to performance, which the 
 law confers on one party, and the corresponding duty 
 of performance, to which it binds the other." This is 
 what the French jurists call Le lien du control (the legal 
 tie of the contract,) Onus conventionis, and what the ci- 
 vilians generally call Vinculum juris, or Vinculum obliga- 
 tionis? The institutes of Justinian have thus defined it. 
 Obligatio est juris vinculum, quo necessitaie adstringimur ali- 
 cujus rei solvendce, secimdum nostrcB civitatis jura} Aeon- 
 tract may in its nature be purely voluntary, and possess 
 no legal obligation. It may be a mere naked pact (nu- 
 dum pactum.) It may possess a legal obligation ; but 
 the laws may limit the extent and force of that obliga- 
 tion in fersonam, or in rem. It may bind the party per- 
 sonall}^ but not bind his estate ; or it may bind his 
 estate, and not bind his person. The obligation may be 
 limited in its operation or duration ; or it may be revo- 
 cable or dissoluble in certain future events, or under 
 peculiar circumstances.^ 
 
 § 266 a. An illustration may be readily seen in the 
 
 1 See 2 Boullenois, Observ. 46, p. 454, 460, 462, 463, 464 ; 3 Burge, 
 Com. on Col. and For. Law, Pt. 2, ch. 20, p. 764, 765. 
 
 2 See 3 Story, Comm. on Constitution, ^ 1372 to 1379 ; Ogdenv. Saun- 
 ders, 12 Wheaton, 213; Pothier on Oblie:. art. 1, n. 1, p. 173, 174, 175. 
 
 3 2 Boullenois, Observ. 46, p. 458, 459, 460. 
 
 4 Inst Lib 3, til. 14; Pothier, Pandect. Lib. 44, tit. 7, P. 1. art. 1, 
 § 1 ; Pothier, Oblig. n. 173, 174. 
 
 5 See 2 Boullenois, Observ. 46, p. 452; 454 ; Code Civil of France, 
 art. 1168 to 1196.
 
 406 CONFLICT OF LAWS. [CH. VIII. 
 
 common case of a Scotch heritable bond. It is well 
 known, that by the common law of England a bond, 
 which is also a charge on land, as for example, a bond, 
 accompanying a mortgage of land as a security, is pri- 
 marily, in a contest between the heir and the adminis- 
 trator, a charge on the personal estate, and of course 
 the heir has a right in equity to be relieved therefrom, 
 so far as there are personal assets to discharge the bond.^ 
 In the Scotch law the same rule prevails as to movable 
 debts, which are primarily and properly chargeable upon 
 the personal assets.^ But, as to heritable bonds, a differ- 
 ent rule prevails ; and they are primarily a charge 
 on the real estate of the debtor.^ Now, suppose a ques- 
 tion should arise in England, as, indeed, it has arisen, 
 whether in the case of a Scotch movable debt, the heir, 
 upon payment of it was entitled to be exonerated there- 
 from, and to receive the amount out of the personal as- 
 sets in England. Upon principle it should seem clear, 
 that he would be entitled to the relief and exoneration ; 
 for the heir, having by the law of the country, where 
 the land lies, a right to such relief and exoneration, 
 would have the same right in regard to the same debt 
 in every other country, since it properly belongs to the 
 nature, obligation, and interpretation of the contract.^ 
 
 1 I Story on Eq. Jurisp. ^ 571, 574 ; Earl of Winchelsea v. Garetty, 
 2 Keen, R. 293, 309. 
 
 2 Earl of Winchelsea v. Garetty, 2 Keen, R. 293, 309, 310 ; post, 
 ^ 487, § 520. 
 
 3 Post, ^ 486 to 489, ^ 529 ; Drummond v. Drummond, 6 Bro. Pari. R. 
 by Tbmlins, 550. 
 
 4 Earl of Winchelsea v. Garretty, 2 Keen, R. 293, 308, 309, 310.— 
 Upon this occasion Lord Langdale said ; " By the law of England, the 
 personal estate is the primary fund for the payment of all debts contracted 
 by the deceased person, whose estate it was. By the law of Scotland mo- 
 vable debts are primarily and properly chargeable upon the personal estate.
 
 CH. VIII.] FOREIGN CONTRACTS. 407 
 
 On the other hand a Scotch heir, paying a heritable 
 bond, would be entitled to no such relief or exoneration, 
 
 The creditor may, indeed, enforce payment against the real estate in the 
 hands of the heir ; but if he does so, the heir is entitled to relief against 
 the executors out of the personal estate ; in other words, according to the 
 law of Scotland, the real estate, though subject to the payment of movable 
 debts, is only a subsidiary fund for the purpose of payment. Payment by 
 the heir does not extinguish the debt, but vests in him the right to recover 
 the amount against the personal estate and constitutes him a creditor 
 against the personal estate ; and whether he can enforce payment against 
 the personal estate, which is to be distributed according to the laws of ano- 
 ther country, which makes the personal estate the primary fund for the 
 payment of debts, is the question. Prima, facie there would seem to be no 
 difficulty ; the heir, having by the law of the country in which the land 
 lies, a right to reliefer exoneration, would seem to be at liberty to make 
 that right available in a country, where the personal estate is the primary 
 fund for the payment of all debts. But it is objected, that in all the opi- 
 nions, upon which the finding of the Master rests, it has been assumed, 
 that the law of domicil makes no difference ; whereas it it is clear, that 
 the domicil determines the law by which the personal estate is to be dis- 
 tributed ; and that, although it be true, that in England, the personal es- 
 tate must be applied in exoneration of the English heir of real estate, yet, 
 tiiat the right of the heir to be exonerated is founded on the law peculiar 
 to England, and that a foreign heir of foreign lands is not entitled to the 
 same relief as an English heir of English lands. The law of England, it 
 is said, affords no relief to foreign real estate out of English personal es- 
 tate ;_and although the law of Scotland regulates the administration of the 
 real estate, and provides that the real estate, if applied in payment of per- 
 sonal debts, shall be exonerated out of the personal estate, the proposition 
 must be limited to personal estate, of which the distribution is regulated 
 according to the law of Scotland, and consequently to the personal estate 
 of debtors domiciled in Scotland. Several cases were cited. They suffi- 
 ciently establish the propositions, which are not disputed on either side; 
 and Drummond v. Drummond establishes, that a Scotch heir is ultimately 
 liable to pay heritable debts, which have, in the first instance, been paid 
 out of the personal estate distributable according to the law of England ; 
 but no case has occurred, in which it has been decided, that the Scotch 
 heir, having paid movable debts, is entitled to be relieved out of the per- 
 sonal estate distributable according to the law of England ; and that is the 
 question here. The personal estate is taken by the administrator, accord- 
 ing to the law of England, subject to the payment of all the debts of the 
 intestate. The real estate is taken by the heir, according to the law of 
 Scotland, subject to the payment of all movable debts, but with a right of
 
 408 CONFLICT OF LAWS. [CH. VIIL 
 
 because the debt is primarily by the local law a charge 
 on the real estate ; ^ and if such heritable bond should 
 
 relief out of the personal estate, and subject to the payment of all herita- 
 ble debts without such right of relief. As to the heritable debts, in respect 
 of which there is no such right of relief, the heir is not entitled to the 
 benefit of the English law, which makes the personal estate subject to the 
 payment of all debts. The Scotch law, which makes the heir ultimately 
 liable to the payment of such debts, and which g-overns the distribution of 
 the real estate, prevails in favor of the persons entitled to the personal es- 
 tate distributable according to the law of England. As to personal debts, 
 in respect of which there is such a right to relief, the English law subjects 
 the personal estate to all debts ; the Scotch law relieves the real estate, as 
 far as it can consistently with the claims of the creditors. The heir, by 
 paying, satisfies the creditor, but at the same time acquires for himself a 
 ri"ht of demand against the executor ; he may, if he pleases, take an 
 assignation for the debt, and make it available ; but that is not necessary, 
 because, without any assignation, his own claim to relief subsists and con- 
 stitutes him a creditor against the personal estate. Under these circum- 
 stances the question does not appear to me to be fully stated, when it is 
 said to be, whether a foreign heir of foreign lands is entitled to the same 
 relief, as an English heir of English lands. The case is, that a foreign 
 heir of foreign lands is, in respect of those lands, subsidiarily liable to pay 
 debts, to which the personal estate, distributable according to the law of 
 Enoland, is primarily liable ; and that, having paid the debt, he is by the 
 law of the country, in which the land lies, constituted a creditor upon the 
 personal estate distributable according to the law of that country. And it 
 is under these circumstances, and without reference to English tenures, or 
 the title to exoneration, which an English heir may possess, that the ques- 
 tion arises, whether the subsidiary debtor, or the person, who by the law 
 of a foreign country is constituted surety for the payment of debts, prima- 
 rily chargeable on another fund, and paying the debts by force of, and 
 according to the law, which constitutes him a creditor upon that other fund, 
 is or is not entitled to make his title as to creditors available in another 
 country, where the personal estate is distributable, and where the law 
 makes the personal estate primarily liable to the payment of all debts. 
 And, upon consideration of the case, I am of opinion, that the right of re- 
 liefer demand against the personal estate, which in the administration of 
 the real estate by the law of Scotland is vested in the heir, who has paid 
 movable debts, is capable of being made available in England, where the 
 personal estate is the primary fund for the payment of all debts." 
 
 1 Drummond v. Drummond, G Bro. Pari. R. by Tomlins, 550 ; post, 
 ^486 to ^489, §529; Elliot v. Lord Minto, 6 Madd. R. 16; Earl of 
 Winchelsea v. Garrety, 2 Keen, R. 293, 308 to 310.
 
 CH. VIII.] FOREIGN CONTRACTS. 409 
 
 be paid by an English administrator out of the personal 
 assets, he would be entitled to reimbursement from 
 the Scotch heir.' 
 
 § 267. It would be easy to multiply illustrations under 
 this head. Suppose a contract by the law of one country 
 to involve no personal obligation, (as was supposed to 
 be the law of France in a particular case which came 
 in judgment,^) but merely to confer a right to proceed 
 in rem ; such a contract would be held everywhere to 
 involve no personal obligation whatsoever. Suppose, 
 by the law of a particular country, a mortgage for 
 money borrowed, should, in the absence of any express 
 contract to repay, be limited to a mere repayment there- 
 of out of the land, a foreign court would refuse to en- 
 tertain a suit giving to it a personal obligation. Sup- 
 pose a contract for the payment of the debt of a third 
 person, in a country where the law subjected such a 
 contract to the tacit condition, that payment must first 
 be sought against the debtor and his estate ; that would 
 limit the obligation to a mere accessorial and secondary 
 character ; and it would not be enforced in any foreign 
 country, except after a compliance with the requi- 
 sitions of the local law. Sureties, indorsers, and gua- 
 rantees are, therefore, liable everywhere, only according 
 to the law of the place of their contract.^ Their obli- 
 gation, if treated by such local law, as an accessorial 
 obligation, will not anywhere else be deemed a princi- 
 pal obligation.^ So, if by the law of the place of a 
 
 1 Robertson on Personal Succession, 209 to 214. 
 
 2 Melan v. Fitz James, 1 Bos. & Pull. 138. 
 
 3 Aymar v. Sheldon, 12 Wend. R. 439. 
 
 4 See Pothier on Oblig. n. 407 ; Trimbey v. Vignier, 6 Carr. & Payne, 
 25 ; S. C. 1 Bing. N. C. 151, 159 ; 4 Moore & Scott, 695 ; post, § 314, 
 
 CONFL. 35
 
 410 CONFLICT OF LAWS. [CH. VIIL 
 
 contract, its obligation is positively and ex diredo ex- 
 tinguished after a certain period by the mere lapse of 
 time, it cannot be revived by a suit in a foreign country, 
 whose laws provide no such rule, or apply it only to 
 the remedy.^ To use the expressive language of a 
 learned judge, it must be shown, in all such cases, what 
 the laws of the foreign country are, and that they 
 create an obligation which our laws will enforce.^ 
 
 § 267 a. This doctrine was fully recognized in a 
 recent case, where the question was as to the rights of 
 parties, growing out of various bonds, executed in a 
 State which was governed by the common law, some of 
 the bonds being designed as security or indemnity to a 
 surety on the other bonds. The Court said ; " These 
 different bonds were entered into in States of the Union 
 where the common law prevails, and consequently 
 the rights and liabilities of the parties are to be mea- 
 sured by that system of jurisprudence ; and whatever 
 the plaintiff (the assignee of the surety) would be en- 
 titled to recover (upon the indemnity bond) in a court 
 of law or equity in the State where the transaction 
 originated, he is entitled to in this Court, in the present 
 form of action." ^ 
 
 § 268. Let us take another case, which has actually 
 passed into judgment. By the common law, heirs are 
 not bound by the simple contracts of their ancestor, but 
 
 316 a ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 764 to 
 p. 766. 
 
 1 See Le Roy v. Crowninshield, 2 Mason, R. 151 ; Polhier, Oblig. 
 n. 636 to 639 ; Voet, ad Pand. Lib. 4, tit. 1, § 29, ad finem. 
 
 2 Lord Chief J. Eyre, Melan v. Duke of Fitz James, 1 Bos. and Pull. 
 141. 
 
 3 Mr. Justice Bullard, in King v. Harman's Heirs, 6 Louis. R. 607, 
 617.
 
 CH. VIII.] FOREIGN CONTRACTS. 411 
 
 only by instruments under seal, declaring them ex- 
 pressly bound. By the law of Louisiana, the heirs are 
 ipso facto bound by such simple contracts of their an- 
 cestors.i If a simple contract is made in a State go- 
 verned by the common law, it cannot be enforced in 
 Louisiana against the heirs of the debtor, although they 
 are domiciled in Louisiana.- The remedy must be 
 sought through the instrumentality of an administra- 
 tion of the assets there.^ 
 
 § 268 a. To this head, of the obligation of contracts, 
 may also be appropriately referred the consideration of 
 the nature and extent of the obligation of contracts, in 
 respect to their dissolubility or indissolubility in point 
 of duration. This topic has been already incidentally 
 discussed in examining the nature and obligation of 
 the contract of marriage, which indeed is truly a con- 
 
 1 Brown r; Richardson, 13 Martin, R. 202. — Mr. Justice Porter, in 
 delivering the opinion of the Court in this case said ; "We recognize the 
 distinction made by the plaintiffs' counsel between the right and the remedy, 
 and agree with him, that contracts should be expounded according to 
 the laws of the country where they are made, and enforced according to 
 the regulations which prevail where the debtor is found. It is that dis- 
 tinction, which gives the defendants immunity in this case. For in order 
 to ascertain who is debtor, we must recur to the laws of the country 
 where the contract was made ; and if these laws do not make persons 
 standing in the character of the appellants liable, under the circumstances 
 now in proof, they cannot be made so by a change of jurisdiction. It is 
 true, that, according to our jurisprudence, the heir is obliged to pay the 
 debts of the ancestor, if he accepts the succession unconditionally ; but it 
 does not follow, that the same rule exists in other countries. An embar- 
 rassment is created in considering the case, from a feeling, which it is 
 difficult to check, that there exists something like a natural obligation on 
 the child to pay the parent's debts ; particularly if he takes any of his 
 property. But, that obligation is, in fact, nothing but the creature of 
 positive law, and is of course subject to all the modifications which the 
 policy of different States may induce them to adopt." Id. p. 208. 
 
 2 Brown v. Richardson, 13 Martin, R. 202. 
 
 3 Ibid.
 
 412 CONFLICT OF LAWS. • [CH. VIII. 
 
 tract ; but, properly speaking, it is something more, an 
 institution of civil society.-^ It lias been often urged, 
 especially in regard to the contract of marriage, that 
 indissolubility is of its very essence ; and that, what is 
 of the essence of a contract, must be judged of ac- 
 cording to the Lex loci contractus. It has been re- 
 marked by an eminent Judge that this is somewhat a 
 vague, and for its vagueness a somewhat suspicious, 
 proposition, and that there are many other things, 
 which may just as well be reckoned of the essence of 
 the contract, as this. He afterwards added ; " The fal- 
 lacy of the argument, ' that indissolubility is of the 
 essence,' appears plainly to be this ; it confounds inci- 
 dents with essence ; it makes the rights under a con- 
 tract, or flowing from and arising out of it, parcel of 
 the contract ; it makes the mode in which judicatures 
 deal with those rights, and with the contract itself, part 
 cff the contract ; instead of considering, as in all sound- 
 ness of principle we ought, that the contract and all 
 its incidents and the rights of the parties to it, and the 
 wrongs committed by them respecting it, must be dealt 
 with by the Courts of the country where the parties 
 reside, and where the contract is to be carried into ex- 
 ecution." ~ These considerations are certainly entitled 
 to great weight ; but they only show the intrinsic diffi- 
 culty of laying down any general rules on such com- 
 plicated subjects, which shall be of universal applica- 
 tion. It will probably be found, that the proposition, 
 that a contract cannot be dissolved, except in the man- 
 ner and under the circumstances prescribed by the law 
 
 1 Ante, ^ 108 a ; ^ 218 to 230 ; Id. ^ 226 c, note. 
 
 2 Lord Brougham in Warrcnder v. Warrender, 9 Bligli, R. 114 ; ante, 
 § 226 c, note.
 
 CH. VIII.] FOREIGN CONTRACTS. 413 
 
 of the place where it was made, if true at all, must be 
 asserted with many qualifications and exceptions. Con- 
 tracts of marriage, and other contracts of a peculiar 
 nature, may perhaps require a different exposition in 
 this respect from other ordinary pecuniary contracts. 
 And even if a contract be indissoluble by the Lex loci 
 contractus, except in a special mode, it may neverthe- 
 less be thought reasonable, that that rule should not 
 prevail upon a change of domicil, as to an act of the 
 parties done in the latter place, where another mode is 
 prescribed, or allowed for its dissolution.^ But of this 
 we shall speak hereafter.^ 
 
 § 269. Cases sometimes occur, in which the tribunals 
 of a foreign country are called upon to decide upon the 
 law of another country, where the contract is made ; 
 and they by mistake misinterpret that law. In such a 
 case if they discharge the parties from the obligation of 
 the contract, in consequence of such misinterpretation 
 of the foreign law, that discharge will not be held 
 obligatory upon the courts of the country where the 
 contract was made."*' A recent case has occurred on 
 this subject. A bill of exchange, drawn in France, and 
 indorsed there, and accepted and payable in England 
 at a banker's, was passed by an indorsee in discharge 
 of an antecedent debt ; and upon presentment for pay- 
 ment, it was dishonored, and the banker's clerk by 
 mistake cancelled the acceptance, and then wrote on it, 
 " cancelled by mistake." Afterwards the indorser, who 
 had so passed the bill in discharge of his debt, cited all 
 the parties, and among others, the creditor and holder 
 
 1 W^arrender v. Warrender, 9 Bligh, 114 ; ante, § 226 c, note. 
 
 2 See post, ^ 351 a ; ante, § 226 a, note. 
 
 3 Novelli V. Rossi, 2 Barn. & Adolph. 757. 
 
 35*
 
 414 CONFLICT OF LAWS. [CH. VIII. 
 
 of the bill, before the tribunals of France, who decreed, 
 that the cancellation operated as a suspension of legal 
 remedies against the acceptor, and consequently dis- 
 charged the other parties, the indorsers, as well as the 
 drawer. A suit was afterwards brought by the "cre- 
 ditor against the debtor-indorser in England ; and it was 
 held, that the courts of France had mistaken the law of 
 England, as to the effect of the cancellation ; and that 
 the plaintiff was entitled to recover against the defend- 
 ant the full amount of the debt, notwithstanding the 
 decree in the French courts.^ 
 
 § 270. Thirdly. The interpretation of contracts. — 
 Upon this subject there would scarcely seem to be 
 any room for doubt or disputation. There are certain 
 general rules of interpretation recognized by all na- 
 tions, which form the basis of all reasoning on the sub- 
 ject of contracts. The object is to ascertain the real 
 intention of the parties in their stipulations ; and when 
 the latter are silent, or ambiguous, to ascertain, what is 
 the true sense of the words used, and what ought to 
 be implied in order to give them their true and full 
 effect.^ The primary rule in all expositions of this sort 
 
 1 ]%>ve]Ii V. Rossi, 2 Barn. & Adolph. 757. 
 
 2 See Lord Brougham's striking remarks on this subject already cited 
 Ante, § 226 c. In Prentiss v. Savage, 13 IMass. R. 23, Mr. Chief Justice 
 Parker said : " It seems to be an undisputed doctrine, with respect to per- 
 sonal contracts, that the law of the place where they are made shall 
 govern in their construction ; except when made with a view to perform- 
 ance in some other country, and then the law of such country is to prevail. 
 This is nothing more than common sense and sound justice, adopting the 
 probable intent of the parties as to the rule of construction. For when a 
 citizen of this country enters into a contract in another, with a citizen or 
 subject thereof, and the contract is intended to be there performed, it is 
 reasonable to presume, that both parties had regard to the law of the 
 place where they were, and that the contract was shaped accordingly.
 
 CH. VIII.] FOREIGN CONTRACTS. 415 
 
 is that of common sense, so well expressed in the Di- 
 gest. In conveniionikis contrahentmm voluntas, potius 
 qiiam verha, spcdari ^jlacuif} But in many cases the 
 words used in contracts have different meanings at- 
 tached to them in different places by law by custom. 
 And where the words are in themselves obscure, or 
 ambiguous, custom and usage in a particular place may 
 give them an exact and appropriate meaning. Hence, 
 the rule has found admission into almost all, if not into 
 all, systems of jurisprudence, that, if the full and entire 
 intention of the parties does not appear from the words 
 of the contract, and if it can be interpreted by any 
 custom or usage of the place where it is made, that 
 course is to be adopted. Such is the rule of the digest. 
 /Semper in stipiilationibiis, et in cceteris contradihis id 
 scqitinmr, quod actum est. Ant si non appareat, quod 
 actum est, erit consequcns, lit id scquamur, quod in regione 
 
 And it is also to be presumed, when the contract is to be executed in any 
 other country, than that in which it is made, that the parties take into 
 their consideration the law of such foreign country. This latter branch of 
 the rule, if not so obviously founded upon the intention of the parties as 
 the former, is equally well settled as a principle in the law of contracts." 
 Mr. Chancellor Walworth, in Chapman v. Robertson, (6 Paige, R. 627, 
 630,) used equally strong language. " It is an established principle," 
 (said he) " that the construction and validity of personal contracts, which 
 are purely personal, depend upon the laws of the place where the contract 
 is made, unless it was made with reference to the laws of some other 
 place or country where such contract in the contemplation of the parties 
 thereto was to be carried into effect and performed." 2 Kent, Com. Lect. 
 39, p. 457, 4.58, 3d edit. ; 3 Surge, Com. on Col. and For. Law, Pt. 2, 
 ch. 20, p. 752 to p. 764. 
 
 1 Dig. Lib. 50, tit. 16, 1. 210. — Many rules of interpretation are found 
 in Polhier on Obligations, n. 91 to 102 ; in Fonblanque on Equity, B. 1, 
 ch. 6, ^11 to 20, and notes; 1 Domat, Civil Law, B. 1, tit. 1, ^ 2 ; 
 1 Powell on Contracts, 370 et seq. ; Merlin, Repertoire, Convention, ^ 7, 
 p. 366.
 
 416 CONFLICT OF LAAVS. [CH. VIII. 
 
 in qua actum est, freqiientatiir} Conservanda est consue- 
 tiido regionis et civitatis (says J. Sande) id>i contractimi 
 est. Omnes enim adiones nostrce (si non aliter fiicrit pro- 
 visum inter contraJientes) inter pretationem rccipiiint a con- 
 suetudine loci, in quo contrahitiir? Usage is, indeed, of 
 so mucli authority in the interpretation of contracts, 
 that a contract is understood to contain the customary 
 clauses, although they are not expressed, according to 
 the known rule, In contractihiis tacite veniiint ea, quce 
 sunt moris et consuetiidinis? Thus, if a tenant is by cus- 
 tom to have the outgoing crop, he will be entitled to it, 
 although not expressed in the lease.^ And if a lease is 
 entirely silent, as to the time of the tenant's quitting, 
 the custom of the country will fix it.^ By the law of 
 England, a month means ordinarily in common con- 
 tracts, as in leases, a lunar month ; but in mercantile 
 contracts it means a calendar month." A contract, 
 therefore, made in England for a lease of land for 
 twelve months, would mean a lease for forty-eight 
 weeks only."^ A promissory note, to pay money in 
 twelve months, would mean in one year, or in twelve 
 calendar months.® If a contract of either sort were 
 
 1 Dig. Lib. 50, lit. 17, 1. 34 ; 1 Doraat, Civil Law, B. 1, tit. 1,^2, 
 n. 9; 2 Boullenois, Observ. 46, p. 490; 3 Burge, Comm. on Col. and 
 For. Law, Pt. 2, ch. 20, p. 775, 776. 
 
 2 J. Sande, Op. Comm. de Reg. Jur. 1. 9, p. 17. 
 
 3 Polhier, Oblig. n. 95 ; Merlin, Repertoire, Convention, ^ 7; 2 Kent, 
 Comm. Lect. 39, p. 555, 3d edit, 
 
 4 Wigglesworth v. Dallison, Doug. R. 201, 207. 
 a Webb V. Plumer, 12 B. and Aid. 746. 
 
 c 2 Black. Comm. 141; Catesby's Case, 6 Coke, R. 62; Lacon v. 
 Hooper, 6 T. R. 224 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, 
 ch. 20, p. 776, 777. 
 
 7 Ibid. 
 
 8 Chitty on Bills (8th edit. 1833,) p. 406 ; Lang v. Gale, 1 M. & Selw.
 
 CH. VIII.] FOREIGN CONTRACTS. 417 
 
 rec|inred to bo enforced in a foreign country, its true 
 interpretation must be everywhere the same, that it is, 
 according to the usage in the country, where the con- 
 tract was made. 
 
 § 271. The same word, too, often has different signi- 
 fications in different countries. Thus, the term nscmce, 
 which is common enough in negotiable instruments, 
 means, in some countries, a month, in others, two or 
 more months, and in others, half a month. A note 
 payable at one usance must be construed everywhere 
 according to the meaning of the word in the country, 
 where the contract is made.^ There are many other 
 cases illustrative of the same principle. A note made 
 in England for 100 pounds, would mean 100 pounds 
 sterling. A like note made in America, would mean 
 100 pounds in American currency, which is one fourth 
 less in value. It would be monstrous to contend, that 
 on the English note, sued in America, the less sum only 
 ousht to be recovered ; and on the other hand, on the 
 American note, sued in England, that one third more 
 ought to be recovered.- 
 
 § 271 a. Another illustration may easily be sug- 
 gested, which is not quite so simple in its circumstances. 
 Suppose a contract is made in England between two 
 Ene-lishmen for the sale of lands situated in Jamaica; 
 and the vendee agreed to give £20,000 for the lands. 
 
 111 ; Cockell v. Gray, 3 B. & Bing. 187 ; Leffingwell v. White, 1 Johns. 
 Cas. 99. 
 
 1 Chiuy on Bills, (8th edit. 1833,) p. 404, 405. See also 2 Boiilienois, 
 Observ. 46, p. 447. 
 
 2 Sec also Powell on Contracts, 376 ; 2 BouUenois, Observ. 46, p. 498, 
 503 ; Henry on Foreign Law, Appendix, 233 ; Pardessus, Droit, Comni. 
 art. 1492 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 772, 
 773 ; post, § 272 a, ^ 307, 308.
 
 418 CONFLICT OF LAWS. [CH. VIIL 
 
 without specifying in what currency. The difference 
 between Jamaica pounds currency and English sterling 
 pounds currency, by the par of exchange, exclusive of 
 any premium on bills of exchange on England, is forty 
 per cent. Consequently, £28,000 Jamaica currency 
 would constitute only £20,000 sterling. The question 
 might then arise, according to which currency the pur- 
 chase-money is to be paid. In the absence of all ex- 
 pressions and circumstances, from which a different 
 intention may be inferred, the interpretation of the 
 contract would be, that it was payable in the currency 
 of the country, where the contract was made, and not 
 in that of the situs of the property.^ Another illustra- 
 tion may be in case of a sale of lands situated in one 
 country, and the contract made in another, and the sale 
 to be of a certain number of acres for a gross price, or 
 at a specific price per acre, the mode of measuring an 
 acre, or the contents thereof, being different in different 
 countries. The question might arise, whether the acre 
 was to be according to the measurement in the one 
 country, or in the other. Now, upon this very point 
 different opinions and judgments have been held by 
 different jurists and tribunals on the continent of 
 Europe ; some holding, that the Zcx loci contractus 
 ought to govern, and others, that the Lex situs ought 
 to govern the admeasurement.^ Choppin has reported 
 a case, where the highest tribunal of Orleans held, that 
 the laws of the place of the contract should determine 
 the admeasurement of the acre. But he disapproves of 
 it, and says ; Justior tamcn est diversa opinio^ vcnditi agri 
 mensiiram ex lege 2^(^t(^^idam situs prcEdionim non Joci 
 
 1 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 860, 861. 
 
 2 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 858, 859.
 
 CH. VIII.] "foreign contracts. 419 
 
 'padce vcndUionis} John Voet holds the same opinion ; 
 Si res immoUUs ad certam mensiiram deheantiir, et ea pro 
 hcorum divcrsitate varia sit, in diibio solvi dehent jiixta 
 mensuram loci, in quo sites sunt.~ In respect to movables 
 he holds the opposite opinion, that they are governed 
 by the law of the place of the contract. Dumoulin 
 holds the same opinion as to immovables ; that they 
 are governed by the Lex situs. JJnde stantibus mensiiris 
 diversis, si fundus venditur ad mensuram, vel affirmatur, 
 vel mensuratur, non continuo debet inspici mensura, quce 
 viget in loco contractus, sed in dubio debet attendi mensura 
 loci, in quo fundus debet metiri, et tradi, et executio fieri?^ 
 He admits, that other jurists differ from him, and that 
 other circumstances may vary this interpretation. Et 
 ita tenendum, nisi ex aliis circumstantiis constet, de qua 
 mensura senserint} Indeed, he denies, that any uni- 
 versal rule can be established.^ The same doctrine, 
 that the Lex situs ought to govern in the like cases, 
 would seem to be favored, if not positively established, 
 in the jurisprudence of England and America.^ 
 
 § 272. The general rule, then, is, that in the inter- 
 pretation of contracts, the law and custom of the place 
 of the contract are to govern in all cases where the lan- 
 guage is not directly expressive of the actual intention 
 of the parties, but it is to be tacitly inferred from the 
 
 1 Choppini Opera, De Feudis Andeg. Tom. 2, Lib. 2, tit. 3 n. 10, 
 p. 132, 133, edit. 1611; 2 Boullenois, Observ. 46, p. 497; 2 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 858, 859. 
 
 2 J. Voet, Lib. 46, tit. 3, n. 8, p. 949 ; 2 Burge, Comm. Pt. 2, ch. 9, 
 p. 859 ; 2 Boullenois, Observ. 46, p. 497. 
 
 3 Molin. Oper. Comm. ad Cod. Lib. 1, tit. 1, 1. 1, Tom. 3, Conclus. de 
 Statut. p. 554. 
 
 * Ibid. 5 Ibid.; post, ^ 274 a. 
 
 6 Ante, § 270.
 
 420 CONFLICT OF LAWS. [CH. VIIL 
 
 nature, and objects, and occasion of the contract.^ The 
 rule has been fully recognized in the Courts of Com- 
 mon Law ; and it has been directly decided by those 
 courts, that the interpretation of the contract must be 
 governed by the laws of the country where the con- 
 tract is made.^ And the rule is founded in wisdom, 
 sound policy, and general convenience. Especially in 
 interpreting ambiguous contracts, ought the domicil of 
 the parties, the place of execution, the various provi- 
 sions and expressions of the instrument, and other cir- 
 cumstances, implying a local reference, to be taken 
 into consideration.^ Thus, Gothofredus says ; Consiie- 
 tudo regionis scqiiemiir, et icleo conducere, concedere, contra- 
 Jiere, et quidvis agere fro modo regionis in dulio presumi- 
 tur. Nam siciit natiira non separetur a suhjedo, ita nee a 
 consueto. Quod est de consiictiidine Jmhetiir pro pacio.^ 
 Burgundus is more full and pointed to this point, as 
 we have already seen.s John a Sande expresses the 
 
 1 See the opinion of the Court, delivered by Mr. Justice Martin, in the 
 case of Depau v. Humphreys, 20 Martin, R. 1, 8, 9, 13, 22, 23, 24 ; Bent 
 V. Lauve, 3 Louis. Ann. R. 88 ; Mr. Justice Porter, in the case of Morris 
 V. Eves, 11 Martin, R. 730; Courtois v. Carpenter, 1 Wash. Cir. R. 
 376. 
 
 2 Trimby v. Vignier, 1 Ring. New Cases, 151, 159 ; post, ^ 316 a ; De 
 la Vega v. Vianna, 1 Barn. & Adolp. R. 284 ; British Linen Company v. 
 Drummond, 10 Barn. & Cressw. 903 ; Bank of United States?;. Donally, 
 8 Peters, R. 361, 372 ; Pope v. Nickerson, 3 Story, R. 484 ; Harrison v. 
 Sterry, 5 Cranch, 289 ; Wilcox v. Hunt, 13 Peters, R. 378, 379. — We 
 shall presently see, that the same rule is adopted in the interpretation of 
 wills. See Lansdowne v. Lansdowne, 2 Bligh, R. 60, 88, 89, 91, and 
 cases there cited. Holmes r. Holmes, 1 Russ. & Mylne, G60, 662 ; Chap- 
 man V. Robertson, 6 Paige, R. 627, 630 ; post, ^ 479 a to 479 n. 
 
 3 Ante, ^ 237. See Lansdowne v. Lansdowne, 2 Bligh, Pari. R. 60, 
 87 ; post, ^ 479 m to 479 n. 
 
 4 Gothofred. ad Pand. Lib. 50, tit. 17, 1. 34 ; Le Brun, Trait6 de la 
 Communaut6, Liv. 1, eh. 2, § 46. 
 
 5 Ante, ^ 237 ; 2 Boullenois, Observ. 46, p. 451.
 
 CH. VIII.] FOREIGN CONTRACTS. 421 
 
 same doctrine in these words. Qiiando verba sunt duUa 
 et amhigiia, tunc hwpicimus, quod verisimiliter a contrahen- 
 tihus actum sit, aid quid Testator scnscrit} 
 
 § 272 «. One of the simplest cases, to illustrate the 
 rule, is the case of a promissory note, made and dated 
 in a particular country, payable in a currency which 
 has the same name, but is of a different value in differ- 
 ent countries. The question is, what currency is pre- 
 sumed to be intended by the parties ? The answer 
 would seem to be equally certain, the currency of the 
 country where it is payable. Suppose, then, a promis- 
 sory note dated in Dublin, and thereby the maker pro- 
 mises to pay to the payee, or order, one hundred pounds 
 in forty days after date ; and the note is afterwards 
 sued in England ; the question would arise, whether 
 the note meant a hundred pounds English currency, or 
 Irish currency. This would depend upon another ques- 
 tion, where the note was payable, as no place of pay- 
 ment was named, in England or in Ireland. Now, by 
 the rules of law in the interpretation of all such con- 
 tracts, when no other place of payment is named, the 
 contract is treated as a contract made in and governed 
 by the law of the place where it is made and dated, 
 and therefore it would be interpreted to mean one hun- 
 dred pounds Irish currency, because payable there, and, 
 indeed, payable everywhere, where the maker should 
 afterwards be found.^ The converse rule would be ap- 
 plied, if the note, though drawn in the same terms, and 
 dated at Dublin, were upon its face made payable in 
 London.^ 
 
 1 J. a Sande, Op. Comm. De Reg. Juris. 1. 9, p. 17. 
 
 2 Kearney v. King, 2 Barn. & Aid. R. 301 ; Sprov/le r. Legoe, 1 B. 
 & Cresw. 16. 
 
 3 Ibid. ; ante, § 271; post, ^317; 3 Comm. on Col. and For. Law, 
 CONFL. 36
 
 422 CONFLICT OF LAWS. [CH. VIIL 
 
 § 273. Boullenois, while he admits the general pro- 
 priety of the rule, Locus contractus regit actum, contests 
 its universality.^ He seems to think, and some other 
 jurists have adopted the same opinion, that where a 
 contract is made between foreigners belonging to the 
 same country, who are not domiciled, but are merely 
 transient persons, in the place where the contract is 
 made, it ought to be governed by the law of their own 
 country ; and that this rule applies, a fortiori, where 
 they are ignorant of the laws of the place where the 
 contract is made.^ Without undertaking to say, that 
 the exception may not be well founded in particular 
 cases, as to persons merely in transitu, it may unhesita- 
 tingly be said, that nothing but the clearest intention 
 on the part of foreigners, to act upon their own domes- 
 tic law, in exclusion of the law of the place of the 
 contract, ought to change the application of the gene- 
 ral rule.^ And, indeed, even then, if the performance 
 of the contract is to be in the same country where it is 
 made, it seems difficult, upon principle, to sustain the 
 
 Pt. 2, ch. 20, p. 772, 773 ; 2 Burge, Comra. Pt. 2, ch. 9, p. 8G0, 861, 
 862. 
 
 1 2 Boullenois, Obsorv. 46, p. 456, 489, 490. 
 
 2 2 Boullenois, Observ. 46, p. 455 to p. 458 ; Id. p. 495, 496, 497, 501, 
 502, 503, and note. — Boullenois (in p. 494, 495) says : To return to our 
 question upon ihe interpretation of contracts or testaments, I think the 
 sole rule, which can be prescribed, is that of determining it according to 
 the different circumstances. These different circumstances will lead us 
 sometimes in favor of the law of the place of the contract, sometimes in 
 favor of that of the situs, often in favor of that of the domicil, and often 
 in favor of that where the payment is to be made. And hence he agrees 
 to Dumoulin's opinion in his ('ommentary on the Code Molin. Comment, 
 ad Cod. Lib. 1, til. 1, 1. 1, Conclus. de Statut. p. 554 ; ante, \ 263 ; Bar- 
 tol. Comment, ad Cod. Lib. 1, tit. 1,1. 1, n. 13 ; post, ^ 279 ; 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 775, 776, 777. 
 
 ^ See Pardessus, Droit Comra. n. 191, 182; 1 Emerigon, ch. 4, ^ 8.
 
 CH. VIII.] FOREIGN CONTRACTS. 423 
 
 exception. Huberus has applied the same rule to those 
 who are domiciled, and to those who are merely com- 
 morant, in the place of the contract ; that the law of 
 the place of the contract is to govern.^ 
 
 § 274. Grotius has also affirmed the doctrine in a gene- 
 ral form. "If" (says he) "a foreigner makes a bar- 
 gain with a native, he shall be obliged by the laws of 
 his State ; because he, who enters into a contract in any 
 place, is a subject for the time being, and must be obe- 
 dient to the laws of that place." Quare etiamsi peregri- 
 niis cum cive paciscatur, tenehitur ilUs legihus ; quia qui in 
 loco aliquo contrahit, tanqiiam siibditus temporarius legihus 
 hci suhjicituy? Emerigon follows Grotius, and adopts 
 his very language. " A stranger," (says he,) " who 
 contracts in the territories of a State, is held as a tem- 
 porary subject of the State, subject to the laws thereof. 
 L^etranger, qui contracte dans les terres dhin etat, est temi, 
 comme sujet a temps de cet etat, de se soumettre aux lots du 
 pays? Lord Stowell, in a passage in one of his most 
 celebrated judgments, has refused to acknowledge igno- 
 rance of the law of a foreign country to be any founda- 
 tion to release a party from the obligation of a contract 
 made there." ^ 
 
 § 274 a. Dumoulin, while he admits the general rule 
 to be, that the law and custom of the place, where a 
 contract is made, ought generally to govern in the in- 
 terpretation of the contract, at the same time denies that 
 it is of universal application. On the contrary, he holds 
 
 1 Huberus, Lib. 1, tit. 3, De Confl. Leg. ^ 2, 3 ; ante, ^261, note. See 
 Livennorfe's Diss. p. 46, ^ 42. 
 
 2 Gnilius, B. 2, ch. 11, ^ 5, n. 2. 
 
 3 Emerigon, Assur. ch. 4, ^ 8, Tom. 1, p. 124, 125. See also Casa- 
 regis, Disc. 179, n. 60, 61, 62. 
 
 4 Dalrymple v. Dalrymple, 2 Hagg. Consist. R. 60, 61.
 
 424 CONFLICT OF LAWS. [CH. VIIL 
 
 that there are cases, in which it ought to be disregarded. 
 ^^ Et animadvciiendiim" (says he,) " quod doctor es pessi- 
 me intelUgunt, d. I, quia pidant riiditer et indisiincte, quod 
 deheat iU inspici locus et consuetudo, iibi fit contractus, et 
 sicjtis in loco contractus. Quod est falsiini ; quinimo jus 
 est in tacita et verisimiliter mente contralmitium. Fac, ci- 
 vem Tuhingensem peregre eiintem per iirhem Italice, vendere 
 ihi domnni suam Tiihingw vel AiigustcB, an teneatur dare 
 duos fidejussor es evictionis, et de duph, prout prohat statutum 
 hci contractus. Et omnes dicimt, quod sic, in quo errant, 
 mn intelligentes praxim, et hie non perspicientes mentem, d. 
 I., qucB est practica. Ideo contrariiim dicendwn ; quia ven- 
 ditor non est subdiius statutis Italice, et statutum illud non 
 concernit rem, sed personam, et sic non potest ligare coder os, 
 qui non censentur sese ohligare ad statutum, quod ineunt. 
 Ideo non tenetur cavere, nisi secundiim morem siii domicilii, 
 vel secu?ndiini jus commune ; nee verum est, quod istiid sta- 
 tutem concernat solemnitatem et modum contrahendi Quin- 
 imo respicit effectum, meritum, et decisionem, et dicta lex 
 male allegatur ad matenam primce conclusionis. Faciamus 
 civem Tuhingensem hie vendere vicino domum Genevce, vel 
 Tigwi sitam, uM sit statutum, quod venditor fundi tenetur de 
 duplo cavere, per duos idoneos cives, ne teneantur litigare ex- 
 tra forum suum. Iste est proptius casus et verus, intellec- 
 tus, d. I. in qud dicitur ; Venditorem teneri cavere secundum 
 eonsueiudinem loci contractus ; quod est intelligendum 7ion de 
 loco contractus fortuiti, sed domicillii, prout crebrius usuvenit, 
 immohilia non vendi pcregr^,sedinhco domicilii. Lexautem 
 debet adaptari ad casus vel hypotheses, qua solent frequenter 
 accidere : nee extendi ad casus raro accidentes. Saltern 
 quando contrariiim apparet de rathne diversitatis, vel quan- 
 do sequeretur captio ingerentis. Quia qud ratione dicta lex, 
 excludit externum locum situs rei, in quo contrahentes non ha- 
 hent domicilium ; multo fortius cxcluditur locus fortidtus eon-
 
 CH. VIII.] FOREIGN CONTRACTS. 425 
 
 tractus, in quo partes peregre transeunf. Patet : Quia quis 
 censctur potiiis contrahere in loco, in quo debet solvere, qiiam 
 in loco, uhifortuiio transicns contrahit. Scd Jdc venditor eo 
 ipso se ohligat, soluUonem et traditioneni realem, per se, vel 
 per alkm, facer e in loco, in quo fundus situs est : ergo ibi 
 contraxisse censetur. Et tamen in dubio non attenditur con- 
 suetudo loci contractus. Quia venditor illl non siibest, nee 
 ejus notitiam habere prwsumitur, ergo mtdto minus consuetu- 
 do loci fortuiti, quam magis ignorat} 
 
 § 275. Cases, illustrative of the importance of the 
 general rule, may be easily found in the jurisprudence 
 of modern nations. "In some countries," (says Boulle- 
 nois,) "the laws give a certain sense and a certain 
 effect to clauses in an instrument, while the laws of an- 
 other country give a sense and effect more extensive, or 
 more restrained. For example, at Toulouse, the clause si 
 sine liberis, added to a substitution, means a gradual substi- 
 tution ; and in other places, it means only a condition, 
 if other circumstances do not concur." ^ The full effect 
 of this example may be felt only by a civilian. But an 
 analagous one may be put from the common law. A 
 contract in England for an estate there situate, or a 
 conveyance of such an estate, to A., and the heirs of his 
 body begotten, would, before the statute de donis, have 
 
 1 Molin. Opera, Comm. ad Cod. Lib. 1. tit. 1,1. 1, Conclus. de Statut. 
 Tom. 3, p. 554 ; 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, 
 p. 851, 852; Id. p. 858, 859. 
 
 2 2 Boullenois, Observ. 46, p. 447, 518, 519. In the French Law sub- 
 stitution is either simple or gradual. It is called simple, when one person 
 only is substituted for another in a donation ; as a donation to A., and if 
 he refuses or dies to B. It is called gradual, when there are several sub- 
 stitutes in succession ; as a donation to A., and if he refuses or dies to B., 
 and if B. refuses or dies to C, and if C. refuses or dies to D., &c. &c. 
 Pothier, Traill des Substitutions, art. Prelim. ; Id. ^ 3, art. 1. See also 
 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 855, 856, 857. 
 
 36*
 
 426 CONFLICT OF LAWS. [CH. VIIL 
 
 been interpreted to mean a contract for, or a convey- 
 ance of, a conditional fee-simple ; but since that statute, 
 it would be construed to be a contract for or a convey- 
 ance of a fee tail.* The rights growing out of these dif- 
 ferent interpretations are (as every common lawyer 
 knows) exceedingly different ; and to construe them 
 otherwise, than according to the common law, would 
 defeat the intention of the parties, and uproot the solid 
 doctrines of law. The sense of the terms, and the legal 
 effect of the instrument ought, and, it is to be pre- 
 sumed, would be everywhere ascertained by the same 
 mode of interpretation wherever the point should come, 
 directly or indirectly, in judgment, in any foreign coun- 
 try. 
 
 § 276. The language of marriage contracts and set- 
 tlements must, in like manner, be interpreted according 
 to the law of the place where they are contracted. A 
 moment's consideration would teach us the inextricable 
 confusion, which would ensue from disregarding the 
 habitual construction put by courts of law upon instru- 
 ments of this sort, executed in England, or in France, 
 and brought into controversy in any other country. 
 The whole system of interpretation of the clauses of 
 of marriage contracts and settlements in England is in 
 a high degree artificial ; but it is built upon uniform 
 principles, which could not now be swept away without 
 leaving innumerable difficulties behind. What could a 
 foreign court do in interpreting the terms, heirs of the 
 hodij^ children, issue, connected with other words of limit- 
 ation, or description, in a marriage settlement or a 
 will made in England ? The intricate branch of Eng- 
 
 » 2 Black. Coram. 110 to 112.
 
 CH. viil] foreign contracts. 427 
 
 lish jurisprudence, upon which the true exposition of 
 such clauses depends, has tasked and exhausted the 
 diligence and learning of the highest professional 
 minds ; and requires almost the study of a life to he 
 thoroughly mastered.^ Probably the system of inter- 
 pretation in similar cases in France does not involve 
 fewer difficulties, dependent upon the nice shades of 
 meaning of words in different connections, and the ne- 
 cessary complexity of matrimonial rights and nuptial 
 contracts, and prospective successions.^ The general 
 rule is in no cases more firmly adhered to, than in cases 
 of nuptial contracts and settlements, that they are to 
 be construed and enforced according to the Lex loci 
 contractus? 
 
 § 276 a. The same doctrine was fully recognized in 
 a recent case in England. In that case the parties 
 were domiciled and married in Scotland, and executed 
 a nuptial contract, containing mutual provisions for the 
 benefit of the parties and their offspring. Afterwards 
 the wife, upon the death of her mother in England, be- 
 came entitled to certain stock ; and the husband filed a 
 bill in chancery to have the stock conveyed to him by 
 the trustee thereof, without a settlement being made 
 upon his wife in regard thereto. The question was, 
 whether the wife was entitled to the common equity to 
 a settlement out of the stock, according to the English 
 law. It appeared, ihat, by the law of Scotland, acting 
 upon the interpretation and construction of the provi- 
 
 ^ See Fearne on Contingent Remainders, passim. 
 
 2 See 2 Boullenois, Observ. 46, p. 489 to 494, 503, 504, 505, 513 ; 
 Martyn v. Fabrigas, Cowper, R. 174. 
 
 3 Feaubert v. Turst, Prec. ch. 207 ; De Couche v. Savatier, 3 Johns. 
 Ch. R. 190.
 
 428 CONFLICT OF LAWS. [CH. VIIL 
 
 sions of the nuptial contract, the wife was not entitled 
 to any such equity to a settlement. The Lord Chan- 
 cellor held, that the Court, in administering the rights 
 of the parties under that nuptial contract, was bound 
 to give the same construction and effect to it in Eng- 
 land, as the Scottish law would give to it; and he 
 therefore awarded the stock to the husband without 
 any settlement.' 
 
 § 277. The same rule is also universally acknow- 
 ledged in relation to commercial contracts.^ Where the 
 terms of an instrument, executed by foreigners in a 
 foreign country, are free from obscurity, it will be con- 
 strued according to the obvious import of those terms, 
 unless there is some proof that, according to the law of 
 the foreign country, the true interpretation of them 
 would be different.^ But where a particular interpre- 
 tation is established, that must be followed. Indeed, 
 the courts of every country must be presumed to be 
 the best expositors of their own laws, and of the terms 
 of contracts made with reference to them. And no 
 court on earth, professing to be governed by principle, 
 would assume the power to declare, that a foreign 
 Court misunderstood the laws of their own country, or 
 the operation of them on contracts made there.^ 
 
 § 278. The remarks already suggested upon this rule 
 cannot be better enforced, than by a quotation from an 
 
 • Anstruther u. Adair, 2 Mylne & Keen, R. 513, 516. See also Bread- 
 albane v. Chandos, cited in 4 Surge, Comment, on Col. and For. Law, 
 App'x, 749, 755. 
 
 2 Pardessus, Droit Comm. Tom. 5, n. 1491, 1492; 2 Kent, Comm. 
 Lect. 39, p. 457, 458, 3d edit. 
 
 3 King of Spain v. Machado, 4 Russell, R. 225 ; post, ^ 286, 
 
 * Mr. Chief .Justice Marshall, in Elmendorf v. Tayolr, 10 Wheaton, 
 R. 159; Mr. Justice Porter, in Saul i;. His Creditors, 17 Martin, R. 587.
 
 CH. VIII.] FOREIGN CONTRACTS. 429 
 
 opinion of the late learned Mr. Chief Justice Parker. 
 " That the laws of any State cannot by any inherent 
 authority, be entitled to respect extra-territorially, or 
 beyond the jurisdiction of the State which enacts them, 
 is the necessary result of the independence of distinct 
 sovereignties. But the courtesy, comity, or mutual 
 convenience of nations, amongst which commerce has 
 introduced so great an intercourse, has sanctioned the 
 admission and operation of foreign laws relative to 
 contracts. So, that it is now a principle generally re- 
 ceived, that contracts are to be construed and interpret- 
 ed according to the laws of the State in which they 
 are made, unless from their tenor it is perceived, that 
 they were entered into with a vioAV to the laws of some 
 other State. And nothing can be more just than this 
 principle. For when a merchant of France, Holland, 
 or England, enters into a contract in his own country, 
 he must be presumed to be conusant of the laws of the 
 place where he is, and to expect that his contract is to 
 be judged of and carried into effect according to those 
 laws ; and the merchant with whom he deals, if a for- 
 eigner, must be supposed to submit himself to the same 
 laws, unless he has taken care to stipulate for a per- 
 formance in some other country, or has in some other 
 way excepted his particular contract from the laws of 
 the country where he is." ^ 
 
 § 278 a. Hence it is adopted by the common law, as 
 a general rule in the interpretation of contracts, that 
 they are to be deemed contracts of the place where 
 they are made, unless they are positively to be per- 
 formed or paid elsewhere. Therefore, a note made in 
 
 1 Blanchard v. Russell, 13 Mass. R. 1, 4, 5.
 
 430 CONFLICT OP LAWS. [CH. VIIL 
 
 France, and payable generally, will be treated as a 
 French note, and governed accordingly by the laws of 
 France, as to its obligation and construction. So, a 
 policy of insurance, executed in England on a French 
 ship for the French owner, on a voyage from one French 
 port to another, would be treated as an English con- 
 tract, and, in case of loss, the debt would be treated as 
 an English debt. Indeed, all the rights and duties, and 
 obligations growing out of such a policy, would be go- 
 verned by the law of England, and not by the law of 
 France, if the laws respecting insurance were different 
 in the two countries.' 
 
 § 279. It has sometimes been suggested, and espe- 
 cially by foreign jurists, that contracts, made between 
 foreigners in a foreign country, ought to be construed 
 according to the law of their own country, whenever 
 they both belong to the same country.^ Where they 
 belong to different countries, some controversy has 
 arisen as to the point, whether the law of the domicil 
 of the debtor, or that of the creditor ought to prevail.^ 
 Where a contract is made in a country between a citi- 
 
 1 Donn V. Lippman, 5 Clark & Fin. 1, 18, 19, 20 ; post, ^ 317. 
 
 2 Ante, ^ 273 ; 2 Boullenois, Observ. 46, p. 455 to p. 458 ; Id. p. 495 
 to p. 593. — Heriius seems to make the following distinction. After ha- 
 vinp stated the general rule to be ; Si lex actui formam dal, inspiciendum 
 est locus actus, non domicilii, non rei sita; ; he adds ; Nimirum valet haec 
 Regula, etiam in extero, qui actum celebrat, licet enim hie subjectus revera 
 maneat patriae suae, tamcn illud, de acto primo est inteliigendum, quoad 
 actum vero secundum suhditus illius loci sit temporarius, ubi agit, vel con- 
 trahit. siiiiulque ut forum ibi sortiiur, ila statulis lioatur. Non valet si 
 exterus igrioravit staiutum. Hertii Opera, Tom. 1, De CoUis. Leg. § 4, 
 n. 10, p. 126, 128 ; Id. edit. 1716, p. 179 to 181. 
 
 3 .See Fcelix, Confl des Lois, Revue Etrang. et Franc. 1840, Tom. 7, 
 ^ 21 to 23, p 200 to p. 209 ; Id. ^ 40 to 50, p. 46 to 49 ; 3 Burge, Comm. 
 on Col. and For. Law, Pi. 2, ch. 20, p. 775, 776.
 
 CH. VIII.] FOREIGN CONTRACTS. 431 
 
 zen and a foreigner, it seeras admitted, that the law of 
 the place where the contract is made, ought to prevail, 
 unless the contract is to be performed elsewhere.' In 
 the common law of England and America, all these 
 niceties are discarded. Every contract, whether made 
 between foreigners, or between foreigners and citizens, 
 is deemed to be governed by the law of the place 
 where it is made, and is to be executed.^ 
 
 § 279 a. Hertius has put a case, where a contract 
 made in a country is subject to a condition, and the 
 performance of that condition takes place in another 
 country, the laws of which are different ; and the 
 question is, whether the laws of the one, or those of the 
 other ought to govern the contract. He answers, that 
 the laws of the country where the contract was made ; 
 because the condition, when fulfilled, refers back to the 
 time of the contract. Quia conditio 7'etrotraJiitur ad tem- 
 piis conventionis? J. a Sande adopts the same doctrine 
 almost in the same words.'* 
 
 § 280. The rules already considered, suppose that 
 the performance of the contract is to be in the place 
 where it is made, either expressly or by tacit implica- 
 tion.^ But where the contract is, either expressly or 
 tacitly, to be performed in any other place, there the 
 
 * See Livermore's Dissert. ^ 42, p. 46 ; 1 Hertii Opera, De Collis. 
 Leg. ^ 10, p. 1-26, 1-28 ; Id. p. 179 to p. 181, edit. 1716 ; Voet, de Siatut. 
 ^ 9, ch. 2, Excep. 4 ; Id. ^ 10, p. 268, edit. 1715 ; Id. p. 325, edit. iei61. 
 But see contra, 2 Boullenois, Observ. 46, p. 459 ; ante, ^ 263, ^ 273, 274. 
 
 2 Smith V. Meade, 3 Connect. R. 253; De Sobry u. De Laistre, 2 Harr. 
 and Johns. R. 193, 228 ; Jacks v. Nichols, 5 Barbour, 38. 
 
 3 Hertii Opera, De Collis. Leg. ^ 4, n. 54, p. 147, edit. 1737 ; Id. 
 p. 207, edit. 1716. 
 
 4 J. a SandO;, Coram, ad Reg. Jur. 1. 9, p. 18 ; post, ^ 287. 
 
 5 Ante, § 242.
 
 432 CONFLICT OP LAWS. [CH. VIII. 
 
 general rule is, in conformity to the presumed intention 
 of the parties, that the contract, as to its validity, na- 
 ture, obligation, and interpretation, is to be governed 
 by the law of the place of performance.^ This would 
 seem to be a result of natural justice ; and the Roman 
 law has (as we have seen) adopted it as a maxim ; Con- 
 traxisse wmsquisqiie in eo loco mteUigitur, in quo td solveret, 
 se ohligavit.^ And again, in the law, Aut uhi qiiisque 
 contraxerit. Contractum aiitem non idiqiie eo hco intelUgi- 
 tur, quo negotiiim gestiim sit ; sed quo solvenda est peciinia? 
 The rule was fully recognized, and acted on in a recent 
 case by the Supreme Court of the United States, where 
 the Court said, that the general principle, in relation to 
 contracts made in one place to be executed in another, 
 was well settled ; that they are to be governed by the 
 laws of the place of performance.^ 
 
 § 281. Paul Voet has laid down the same rule. Hlnc, 
 ratione effedus et complementi ipsiiis contractus, speciatiir 
 ille locus, in quern destinata est solutio : id, quod ad modmn, 
 mensurani, iisuras, ^c. negligentiam, et moram post contrac- 
 tum inituni accedentem, referendum est!' He puts the 
 question ; Qidd si in specie, de nummoriim aid redituum 
 solidionc dlfficultas incidat, si forte valor sit immidatus, an 
 
 1 2 Kent, Comm. Lect. 37, p. 393, 394, and Lect. 39, p. 459, 3d edit. ; 
 Casaregis, Disc. 179; 1 Eintrigon, c. 4, ^ 8, Voet, de Stat. ^ 9, ch. 2, 
 ^ 15, p. 270, edit. 1715 ; Id. p. 328, edit. 1661 ; UouUenois, Quest. Contr. 
 des Lois, p. 339, &c. ; 3 Burge, Comment, on Col. and For. Law, Pt. 2, 
 ch. 20, p. 771, 772 ; Don v. Lippman, 5 Clark & Finell. R. 1, 13, 19 ; 
 Fergusson v. Fyfle, 8 Clark & Finell. 1-21. 
 
 2 Dig. Lib. 44, tit. 7, 1. 21 ; ante, ^ 233. 
 y Dig. Lib. 42, tit. 5, 1. 3. 
 
 4 Andrews u. Pond, 13 Peters, R. 65. See Frazier v. Warfield, 9 
 Smedes & Marshall, 220. 
 
 5 P. Voet De Stat. § 9, ch. 2, p. 270, ^ 12, 14, 15, 16, p. 269 to p. 273, 
 edit. 1715 ; Id. p. 326 to p. 329, edit. 1661 ; post, ^ 301 f.
 
 CH. VIII.] FOREIGN CONTRACTS. 433 
 
 spedaUtiir loci valor, ubi contractus erat celehraiiiSy an loci, 
 in quern desiinata erat solutio. Jxespondeo ; Ex generali 
 Reguld, spcdandum esse loci statutum, in quern desiinata 
 erat solutio} So that, according to him, if a contract is 
 for money or goods, the value is to be ascertained at the 
 place of performance, and not at the place where the 
 contract is made.2 And the same rule applies to the 
 weight or measure of things, if there be a diversity in 
 different places.^ Everhardus adopts the same doctrine. 
 Quod, ccstimatio rei debitcc consideratur secundum locum, 
 iihi destinata est solutio, seu deliheratio, non obstante quod 
 contractus alibi sit celebratus^ TJt videlicit inspiciatiir valor 
 monetce, qui est in loco destinatce solutionis.^ Huberus 
 adopts the same exposition. Veriim tamen non ita prcB- 
 cise resjnciendus est locus, in quo contractus est initus, ut si 
 paries alium in contrahendo locum rcspexerint, ille non potius 
 sit consider andus.^ Indeed, it has the general consent of 
 foreign jurists ; ^ although to this, as to most other doc- 
 trines, there are to be found exceptions in the opinions 
 of some distinguished names. Thus, John a Sande 
 maintains, that the law of the place, where the contract 
 is made, is to govern, although the payment is to be 
 made in another place. Denique inspicitur locus contrac- 
 tus, estiamsi solutio in alium locum sit destinata. Et pro- 
 inde mensura iisurpanda est non loci, ubi frumentum vel 
 
 1 P. Voet, De Stat. ^ 15, 16, p. 271, edit. 1715 ; Id. p. 328, edit. 1661; 
 post, ^ 301, f. 
 
 2 Ibid. 
 
 3 P. Voet, De Slat. ^ 15, 16, p. 271, edit. 1715 ; Id. p. 328, edit. 1661, 
 
 4 Everhard. Consil, 78, n. 9, p. 205; post, ^ 300, b. 
 
 5 Ibid. 
 
 6 Huberus, Lib. 1, tit. 3, ij, 10 ; ante, § 239 ; post, 299. 
 
 7 21joullenois, Observ. 46, p. 475, 476 ; Id. p. 488 ; 1 HertiiOper. De 
 Collis. Leg. ^ 4, n. 53, p. 147, edit. 1737 ; Id. p. 207, edit. 1716 ; Voet, 
 ad Pand. Lib. 4, tit. 1, ^ 29 ; Post, ^ 300 z io ^ 300 f. 
 
 CONFL. 37
 
 434 CONFLICT OF LAWS. [CH. VIIL 
 
 vmmn exigitur, sed uU de eo conventiim est} The gene- 
 ral rule has, however, been adopted both in England 
 and America. In one of the earliest cases, Lord Mans- 
 field stated the doctrine with his usual clearness. " The 
 law of the place can never be the rule, where the trans- 
 action is entered into with an express view to the law 
 of another country, as the rule, by which it is to be go- 
 verned." ^ And this has uniformly been recognized as 
 the correct exposition in the common law.^ 
 
 § 282. But although the general rule is so well esta- 
 blished, the application of it in many cases is not unat- 
 tended with difficulties ; for it is often a matter of seri- 
 ous question, in cases of a mixed nature, which rule 
 ought to prevail, the law of the place where the contract 
 is made, or that of the place where it is to be perform- 
 ed.* In general, it may be said, that, if no place of 
 
 1 J. a Sande, Opera, Comm. De Reg. Jur. 1. 9, p. 18. See also Cole- 
 rus, de Process. Exec. Pt. 2, n. 79, cited 2 Boullenois, Observ. 46, p. 475, 
 476. 
 
 2 Robinson v. Bland, 2 Burr. R. 1077, 1078 ; Post, ^ .S08 to ^ 314. 
 
 3 Ludlow V. Van Rensselaer, 1 Johns. R. 94 ; Thomson v. Ketcham, 
 8 Johns. R. 189; Fanning v. Consequa, 17 Johns. R. 511 ; Powers v. 
 Lynch, 3 Mass. R. 77; 4Co\ven, Rep. 510, note ; Van Reimsdyke tj. Kane, 
 1 Gall. R. 371 ; Cox and Dix v. U. S., 6 Peters, 172, 203 ; 2 Fonbl. Eq. 
 B. 5, ch. 1, ^ 6, and note ; Prentiss v. Savage, 13 Mass. R. 20, 23, 24 ; 
 Ante, § 270, 280 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, 
 p. 752 to p. 754 ; Id. 771, 772, 773 ; Don v. Lippman, 5 Clark & Fin. R. 
 1, 13, 19, 20 ; Tyler v. Trabue, 8 B. Monroe, 306, 
 
 4See2Kamcs, Eq. B. 3, ch. 8, ^S 4 ; Voet, de Statute, ^ 9, ch. 2, (^^ 10, 
 Hertius puts some questions under this head. A condition is added to a 
 contract in Belgium, which is performed by the debtor in Germany ; if the 
 laws of the countries are different, which are to prevail ? Hertius says 
 those of Belgium, because the condition performed relates back to the time 
 of making the contract. Again, a contract made in one place is confirmed 
 in another ; what laws are to govern? He answers, if the confirmation is 
 to give greater credit to the contract, as putting it in writing for the sake 
 of proof, the law of the place of the contract is to prevail. If to give vali-
 
 CH. VIII.] FOREIGN CONTRACTS. 435 
 
 performance is stated, or the contract may indifferently 
 be performed anywhere, it ought to be referred to the 
 Lex loci contradus} But there are many cases, where 
 this rule will not be a sufficient guide ; and as the sub- 
 ject is important in its practical bearing, it may be well 
 to illustrate it by some cases.^ 
 
 § 283. One of the most simple cases is, where two 
 merchants, doing business with each other, reside in dif- 
 ferent countries, and have mutual accounts of debt and 
 credit with each other for advances and sales. What 
 rule is to be folloAved as to the balance of accounts ex- 
 isting from time to time between them ? Is it the law 
 of the one country, or of the other, if there is a conflict 
 between their laws on the subject ? If the business 
 transactions are all on one side, as in case of sales and 
 advances, made by a commission merchant in his own 
 country for his principal abroad ; there the contracts 
 may well be referred to the country of the commission 
 merchant, and the balance be deemed due to him ac- 
 cording to its laws.^ For, although it may be truly 
 said, that the debt is due from the principal, and he is 
 generally expected to pay it, where he dwells ; yet 
 
 dity to the contract, the law of the place of the confirmation. 1 Hertii 
 Opera, De Collis. Leg. p. 147, ^ 54, 55 ; Id. p. 207, 208, edit. 1716. 
 
 ' Don V. Lippman, 5 Clark & Fin. R. 1, 13, 19, 20 ; Post, ^ 317. 
 
 ~ Mr. Burge has expressed the true sense of the general rule, and lis 
 qualifications, in the following terms. " It may be stated generally, that 
 with respect to contracts, of which movable property is the subject, the 
 law of the place in which the contract is made will in some respects ex- 
 clusively prevail, although the contract is to be performed in another ; and 
 that in those respects ii\ which it does not prevail, the law of the place 
 where the contract is to be performed, must be adopted. But this conclu- 
 sion is subject to some qualifications and exceptions." 
 
 3 Coolidge V. Poor, 15 Mass. R. 427 ; Consequa v. Fanning, 3 Johns. 
 Ch. R. 587, GIO. See also Bradford v. Harvard, 13 Mass. R. 18 ; Milne 
 V. Moreton, 6 Binn. R. 353, 359, 365.
 
 436 CONFLICT OF LAWS. [CH. \'IIL 
 
 it is equally true, that the debt is due where the ad- 
 vances are made, and that payment may be insisted 
 upon there. 
 
 § 284. But. suppose the advances have been made in 
 the country of the principal, and the goods sold in the 
 other country ; is the same rule to prevail ? Or, are 
 the advances to be governed by the law of the place 
 where they are advanced, and the sales of the goods 
 by that of the place where they are received by the 
 commission merchant? Suppose both the merchants, 
 in different countries, sell goods and make advances 
 mutually for each other ; and upon the accounts a ba- 
 lance is due from one to the other ; by the law of what 
 place is such balance to be ascertained and paid ? In 
 these and many other like mixed cases, the amount of 
 the balance, the time, and the manner, and the place of 
 payment, and the true principle of the adjustment of 
 the mutual accounts, may materially depend upon the 
 operation of the Lex loci, when the law of the one coun- 
 try conflicts with that of the other. The habits of busi- 
 ness and trade between the parties may sometimes 
 decide these points ; but if no such governing circum' 
 stances are established, the cases must be reasoned out 
 upon principle. Upon principle, it may, perhaps, be 
 found most easy to decide, that each transaction is to 
 be governed by the law of the place where it origin- 
 ated ; advances by the law of the place where they are 
 advanced ; and sales of goods by the law of the place 
 where they are received.^ The importance of the true 
 rule is peculiarly felt in all cases of interest to be paid 
 on balances. 
 
 1 See Consequa V. Fanning, 3 Johns. Ch. R. 588, GIO ; 17 Johns. R. 
 511 ; Casaregis, Disc. 179.
 
 CH. viil] foreign contracts. 437 
 
 § 284 «. This subject was a good deal discussed in a 
 recent case, where goods had been consigned for sale in 
 Trieste by a merchant of Boston, and advances were 
 made by the agent of the consignees in Boston to an 
 amount exceeding the amount of the proceeds of the 
 goods when sold. A suit was brought by the consign- 
 ees to recover the balance, and the question was, at 
 what rate of exchange the balance was to be allowed ; 
 and that depended upon another question, where the 
 balance was reimbursable, in Boston, or in Trieste. The 
 Court held that the balance was reimbursable at Boston, 
 where the advances were made ; but that, if the ad- 
 vances had been made at Trieste, the balance would 
 have been reimbursable there. The Court consequently 
 allowed the par of exchange at Boston upon the balance, 
 it being payable there.^ 
 
 [§ 284 h. On the other hand, it has been very recently 
 determined in Louisiana, and apparently in conflict with 
 the case last cited, that where an advance was obtained 
 in that State from an agent residing there, of a foreign 
 principal, on merchandise to be shipped to, and sold by, the 
 latter abroad, the rate of interest on a balance due the 
 foreign principal by reason of the proceeds of the sale 
 falling short of the advances, must be determined by 
 the law of the domicil of the principal, where the mer- 
 chandise was sold.^] 
 
 1 Grant y. Healey, 2 Chand. Law Reporter, 113 ; S. C. 3 Sumner, R. 
 523. See Post, 311 a, and note. 
 
 2 Ballister v. Hamilton, 3 Louis. Ann. R. 401. Slidcll, J., who deli- 
 vered the judgment in this case, observed : " We are aware that this view 
 conflicts with the opinion of Judge Story, in Grant v. Healy, 2 Law Rep. 
 113; 3 Sumner, R. 523 ; but we feel a strong conviction that the rule we 
 have followed, accords with the general mercantile opinion, which in a 
 matter of this sort is entitled to great weight." 
 
 37*
 
 438 CONFLICT OF LAWS. [CH. VIIL 
 
 § 285. Another case may serve to illustrate the same 
 doctrine. A merchant in America orders goods to be 
 purchased for him in England. In which country is the 
 contract to be deemed complete, and by the laws of 
 which is it to be governed ? Casaregis has affirmed, 
 that in such a case the law of England ought to go- 
 vern ; for there the final assent is given by the person, 
 who receives and executes the order of his correspond- 
 ent. Pro Jivjus materice declarcdione j^rcemittenda est reg- 
 ula ah omnihiis recepta, quod contractus vel negotium inter 
 absentes gestiim dicatiir eo loci, quo idtimus in contrahendo 
 assentitur, sive acceptat ; quia tunc tantum iiniuntur amho 
 co7isensus} Sic mandati contractus dicitur initus in loco, 
 quo diriguntur literce missivce, alicujus mercatoris, si alter ad 
 quern diriguntur, eas recipit, et acceptat r)iandatum? He 
 goes on to illustrate the doctrine by putting the case 
 of a merchant, directing his correspondent, in a foreign 
 country, to buy goods for him ; in which case he says, 
 if the correspondent accept the order, and in the exe- 
 cution of it he buys the goods of a third person, two 
 contracts spring up ; the first of mandate between the 
 principal and his agent, and the second of purchase and 
 sale between the vendor and the agent, as purchaser in 
 the name of the principal ; and both are to be deemed 
 contracts made in the place, where the agent resides. 
 His language is ; Quando Mercator alteri suo Correspon- 
 sori mandat, ut aliquas tnerces pro se emat, casque sibi trans- 
 mittat, quo casu si Corresponsor acceptet mandatum, et in 
 illius execidionem ah aliqua tertia persona merces ' commis- 
 
 1 Casaregis, Disc. 179, ^ 1, 2. See 1 Ilertii Opera, De Collis, Leg. 
 ^ 56, p. 147 ; Id. p. 208, edit. 171G ; 1 Burge, Com. on Col. and For. 
 Law, Pt. 2, ch. 20, p. 753. 
 
 2 Ibid.
 
 CH. viil] foreign contracts. 439 
 
 sas emat, duo perficiimtur contractus : Primus, mandati 
 inter mandantem, et mandatariiim, et alter, empiionis, et re- 
 spective venditionis inter eundcm mandatarium, vti emptorem 
 nomine mandantis, et venditorem, et ambo pierficiuntur in hco 
 mandatarii : Nam, quoad mandati contractmn, ratio est, quia 
 consensus mandantis per literas iinitur cum idtimo consensu 
 mandatarii in loco, quo mandatarius reperitur, ei acceptat 
 mandatum, eoque magis quoad altcrum venditionis, et respec- 
 tive emptionis, quia mandatarius vere emit in loco, in quo et 
 ipse, et venditor existunt} This doctrine, so reasonable 
 in itself, has been expressly affirmed by the Supreme 
 Court of Louisiana.^ It has also received a sanction in 
 a recent case in the House of Lords, where the Lord 
 Chancellor said ; "If I, residing- in England, send down 
 my agent to Scotland, and he makes contracts for me 
 there, it is the same as if I myself went there and made 
 them." 3 The same rule has been held to apply even to 
 an English corporation, contracting by its agent in Scot- 
 land ; for the contract takes effect as a contract in Scot- 
 land.^ 
 
 1 Casaregis, Disc. 179, n. 10, p. 192. 
 
 2 Mr. Justice Martin, in Whiston v. Stodder, 8 Martin, R. 93. See 
 also Malpica v. McKown, 1 Louis. R. 248, 355, 
 
 3 Pattison v. Mills, 1 Dow & Clark, R. 342; Albion F. and L. Insur. 
 Co. V. Mills, 3 Wils. & Shaw, 218, 233. It is difficult to reconcile this 
 doctrine with the views of the Court and bar in Acebal v. Levy, 10 Ring. 
 R. 376, 379, 380, 381, (Ante, <^ 262 a,) where upon a sale of goods in 
 Spain, to be delivered in England, the purchase having been made by an ' 
 agent of the purchasers by orders sent to Spain, the Court and bar 
 seem to have thought that the contract was governed by the English Sta- 
 tute of Frauds. See Ante, ^262 a; Post, ^318, and note. Did the place 
 of the delivery and payment make any difference 1 See Post, (^S 318, and 
 note. 
 
 4 Albion F. & L. Insur. Co. v. Mills, 3 Wils. & Shaw, R. 218, 233, 
 234. See also 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, 
 p. 753.
 
 440 CONFLICT OF LAWS. [CH. VIII. 
 
 § 286. And if a like contract of purchase is made by 
 an agent without orders, and the correspondent ratifies 
 it, Casaregis says, that the contract is not to be deemed 
 a contract in the country of the ratification, but of the 
 purchase ; because the ratification has reference back 
 to the time and place of the purchase. Ratio est, quia 
 ille ratijicationis consensus, licet emitatur in loco ratificaniis, 
 etihi videatur se unirc cum altero precedenti gcrentis consen- 
 su, qui venit a loco gerentis ad locum ratificaniis, retrotraJii- 
 tiir ad tempus et ad locum, in quo fuit per gestorem initus 
 contractus emptionis ; vel aliud negotium pro absente ; et ra- 
 tio rationis est, quia consensus ratificaniis non unitur in loco 
 suo ad aliquem actum seu contractum perficicndum, sed ac- 
 ceptandum contractum vel negotium pro se in loco gestoris 
 jam factum ; ac si eodem tempore et loco, in quo fait per 
 gestorem negotium gestimi, ipsemct ratificans essct prwsens, 
 ihique contraxisset} So, a like rule applies, if a merchant 
 in one country agrees to accept a bill drawn on him by 
 a person in another country. It is deemed a contract 
 in the place where the acceptance is to be made.^ Paul 
 Voet adopts the same conclusion. Quid si de Uteris 
 camhii incidat qucBstio, Quis locus erit sp)ectandus ? Is spec- 
 tandiis est locus, ad quern sunt destinatcB, et ibidem accep- 
 tatcc? 
 
 286 a. Hertius takes a curious distinction on this 
 subject. If, says he, a contract is made in one country, 
 and is ratified in another, it may be asked, if the laws 
 of the different places vary, which is to govern ? To 
 which he answers : If the confirmation is made to add 
 additional faith to the contract, as for example, if the 
 
 1 Casaregis, Disc. 179, § 20, 64, 76 to 80, 83. 
 
 2 Boyce v. Edwards, 4 Peters, R. Hi. 
 
 3 P. Voet, De Statut. ^ 9, ch. 2, <§ 14, p. 271, edit. 1715 ; Id. p. 327, 
 edit. 1061.
 
 CH. VIIT.] FOREIGN CONTRACTS. 441 
 
 contract is reduced to writing for the sake of proof, 
 then the law of the pUice where the contract is made, 
 is to be looked to. But, if to give validity to the con- 
 tract itself, the law of the place of confirmation — Con- 
 tractus in alio loco fit, in alio confirmatiir ; qucEritur, ciijus 
 loci leges, si discrepare eas tisiiveniat, intiier ideheamiis ? 
 Si confirmatio accedat ad concillandam contractid majorem 
 fidem, V. g. contractus prohationis gratia in scriptiiram 
 redigatur, arhitramtir, spectandam loci, uhi contraliitur le- 
 gem. Bin, id contractus sit validus, loci, uU confirmatur, 
 jura prcevalelunt} So that Hertius seems to put the 
 solution of the case upon the point, of the supposed in- 
 tention of the parties, to give validity to a defective 
 contract, or only to impart a better proof of its original 
 validity. 
 
 § 286 ^. A question of a somewhat analogous na- 
 ture, growing out of agency, and of very familiar oc- 
 currence, deserves notice in this place. It is well 
 known, that by the common law the master of a ship 
 has a limited authority to take up money in a foreign 
 port, and give a bottomry bond in cases of necessary 
 repairs, and other pressing emergencies. But he is not 
 at liberty to give such a bond for mere useful supplies 
 or advances, which are not strictly necessary. It is 
 highly probable, that in some maritime countries, the 
 basis of whose jurisprudence is the civil law, a broader 
 authority is allowed to the master or at least a broader 
 liability may attach upon the vessel and the owner.^ 
 In such a case, the question might arise, whether the 
 
 1 1 Hertii Opera, De Collis. Leg. ^ 4, n. 55, p. 147, edit. 1737 ; Id. 
 p. 208, edit. 1716 ; Ante, ^ 297. 
 
 2 See 2 Emerigon, Contrals a la Grosse, ch. 4, i^* 2 to ^ G, ^ 8, p. 422 
 to p. 445.
 
 442 CONFLICT OF LAWS. [CH. VIIL 
 
 liability of tlie ship, or of the owner, was to be decided 
 by the authority of the master according to the law of 
 the foreign place, where the money was advanced, or 
 by the law of the place of the domicil of the ship and 
 owner. In England it would be held, (at least such 
 seems the course of the adjudications,) that the master's 
 authority to bind the ship, or the owner, in a foreign 
 port, would be governed by the law of the domicil of 
 the owner ; and that consequently the master of an 
 English ship could not bind the owner for advances, or 
 supplies in a foreign port, which were not justifiable by 
 the English law.^ But it is far from being certain, that 
 
 1 The Nelson, 1 Hagg. Adm. R. 169, 175, 176. — In the case of The 
 Nelson, Lord Stowell said; "It is certainly the vital principle of this 
 species of bonds, that they shall have been taken, where the owner was 
 known to have no credit ; no resources for obtaining necessary supplies. 
 It is that state of unprovided necessity that alone supports these bonds. 
 The absence of that necessity is their undoing. If the master takes up 
 money from a person, who knows that he has a general credit in the place, 
 or at least an empowered consignee, or agent, willing to supply his wants, 
 the giving a bottomry bond is a void transaction, — not affecting the pro- 
 perty of the owner, — only fixing loss and shame on the fraudulent lender ; 
 but where honorably transacted, under an honest ignorance of this fact, 
 an ignorance that could not be removed by any reasonable inquiry, it is 
 the disposition of this Court to uphold such bonds, as necessary for the 
 support of commerce in its extremities of distress, and as such recognized 
 in the maritime codes of all commercial ages and nations. To the bond 
 exhibited here, some objections are taken respecting its form, but not affect- 
 ing its validity. One objection is, that it binds the owners personally, 
 as well as the ship and freight, which it cannot do. That is held in this 
 Court to be no objection to the efficacy of what it is admitted it can do. 
 Here we do not take this bond in toto, as is done in other systems of law, 
 and reject it as unsound in the whole, if vicious in any part. But we 
 separate the parts, reject the vicious, and respect the efficiency of those 
 which are entitled to operate. The form of these bonds is different in 
 different countries ; so is their authority. In some countries they bind 
 the owner or owners, in others not ; and where they do not, though the 
 form of the bond affects to bind the owners, that part is insignificant, but 
 does not at all touch upon the efficiency of those parts, which have an
 
 CH. yill.] FOREIGN CONTRACTS. 443 
 
 foreign courts, and especially the courts of the coun- 
 try where the advances or supplies were furnished, 
 
 acknowledged operation. It is objected likewise, that this bond does not 
 express the obligation to be on the sea risk, and it does not expressly, or 
 in exact ternns ; but it-does in terms amounting to the same effect. The 
 money is to be paid at such a time " after the ship arrives at her port." 
 If the ship never arrives at her port, or is lost upon the voyage, that is a 
 sufficient description of sea risk. I take no notice of the other objections made 
 to this bond. They are objections invariably paraded on these occasions, and 
 as invariably overruled by the Court." Mr. Brodie in his notes on Lord 
 Stair's Institutes, (Vol. 2, p. 955, 956,) has gone into a full examination 
 of this subject, and said : " It may be laid down as a general, though not 
 absolute principle, that people may be held to contract in reference to the 
 law of the country under whose protection they happen to be at the time. 
 Grant this, however, and the conclusion follows, that the lex loci contrac- 
 tus becomes in reality a constituent quality of their agreements. Hence 
 it may be argued, that if, on account of a vessel, a debt be contracted in 
 a foreign country, which admits the principle of a tacit hypothecation for 
 repairs, &c., such a jus in re ought to be implied, as the actual import 
 and understanding of the transaction, and as therefore no less acquired ex 
 lege loci, than if it had been constituted by a formal writing. But if in 
 this way such a right do arise ex lege loci, then ex justitia, and on prin- 
 ciples of international law, ought to be rendered effectual with us ; a point, 
 which will be manifest, if we consider, that the validity of a written in- 
 strument must be tried by the lav/ of the place in which it was executed. 
 Still, however, must it be remembered, that it is merely as the presumed 
 understanding and intention of parties, that the jus in re can so arise ; as 
 a right conceived in favor of the creditor it can unquestionably be renounced 
 by him ; and then comes the question, whether circumstances do not ex- 
 clude the presumption quoad a mutual understanding founded on the law 
 of the place. When, not to speak of necessary advances, a foreign ship 
 is repaired here, the shipwright, who parts with the possession without 
 stipulating for, and obtaining in due form, a security over the thing, may 
 be supposed to have, according to the principle of the common law, relied 
 exclusively on the personal credit of his debtor ; did, therefore, the other 
 party even conceive, that he had likewise bound the vessel, there would 
 be wanting the mutual understanding to infer an agreement. So far, then, 
 does the lex loci operate against the contraction of a jus in re for the 
 debt ; but it does not thence follow, that elsewhere the lex loci should 
 operate in favor of a tacit hypothecation. A distinction is ever to be at- 
 tended to between the case of a party casually entering a foreign country, 
 and that of one who resides in it ; and the distinction is particularly strong 
 in regard to an individual, who, as master, has the charge of a vessel in
 
 444 CONFLICT OF LAWS. [CH. VIII. 
 
 would adopt the same rules, if the lender or supplier 
 had acted with good faith, and in ignorance of the 
 want of authority in the master.^ 
 
 a foreign port. Well may such a person, when he orders repairs on per- 
 sonal credit, be presumed to be ignorant of any further condition, which 
 the law of his own country denies; and while, if the other party leave 
 that unexplained, it may be argued with great plausibility, that he has 
 consented to waive the additional security, tacitly admitted in ordinary 
 cases, ex lege loci, it must be considered, that there would, at all events, 
 be wanting the mutual assent, which constitutes the basis of a contract. 
 But this is not all. The contract, in such cases, is made with the ship- 
 master, who acts as the implied mandatory of the owners ; and the effect 
 of the transaction must greatly depend on the extent of his authority. 
 Now, it is true, that, as a person, who has been appointed to an office, 
 must be presumed to be invested with the usual powers, so restrictions 
 upon the ordinary authority will not be effectual against another party, 
 who has not been apprised of them ; — yet it will be observed, that, since 
 it is the duty of those who deal with an agent, to make themselves ac- 
 quainted with the extent of his powers, whether expressed or fairly im- 
 plied from his office, so the presumed mandate here must be measured, 
 either by some general principle of maritime law, or by the law of the 
 country to which the ship belongs. Such a general principle of maritime 
 law would of itself, though in a different way, tend, in my apprehension, 
 to exclude the lex loci ; but there is no such universally received principle, 
 and the more positive exclusion of the principle of the lex loci is the 
 consequence. Thus, the English law does not allow the master to hy- 
 pothecate the vessel, at least expressly, unless in a foreign port, where 
 personal credit is unattainable ; but entitles him to pledge the absolute 
 personal responsibility of his constituents for the amount of necessary 
 repairs, furnishings, &c. ; while on the other hand, the French law author- 
 izes him to hypothecate the vessel, &c., not bind his constituents person- 
 ally, at least not beyond the eventual value of the ship- and freight, &c., 
 on her return. And it is quite clear, that the merchants and artisans of 
 the respective countries must contract with the shipmasters of each other, 
 according to the powers respectively inherent in those offices. It would 
 be to no purpose for the English artisan or merchant to plead in France 
 the law of his own country in support of his action for absolute responsi- 
 bility ; and to allow the Frenchman to have the benefit of a privilege ex 
 ']^e loci, while he has acquired the absolute personal liability of the own- 
 ers wbil^j while an opposite measure of justice was awarded to the 
 
 1 2 Em6ri«ion"*Qo"trat. a la Grosse, ch. 4, ^ 8, p. 411, 442 ; Malpica v. 
 McKown, 1 Lou'is. R\ 249, 254, 255.
 
 CH. VIII.] FOREIGN CONTRACTS. 445 
 
 § 286 c. In a recent case in Louisiana, "where the 
 question arose as to the liability of the owner for the 
 property on board, belonging to a passenger who died 
 on the voyage, the property being afterwards lost, the 
 point was made, whether, as the passenger and pro- 
 perty were taken on board at a foreign port, the law of 
 that port, or the law of the place where the vessel and 
 owner belonged, ought to govern as to the owner's lia- 
 bility. On that occasion the Court said : " We are of 
 opinion that the law of the place of the contract, and 
 not that of the owner's residence, must be the rule by 
 which his obligations are to be ascertained. The Lex 
 loci contmctus governs all agreements unless expressly 
 excluded, or the performance is to be in another coun- 
 try, where different regulations prevail. What we do 
 by another we do by ourselves ; and we are unable 
 to distinguish between the responsibility created by 
 the owner, sending his agent to contract in another 
 country, and that produced by going there and con- 
 tracting himself' Perhaps the case itself did not 
 require so broad an expression of opinion ; since the 
 
 English, be to afford him a double advantage — the combined effect of the 
 laws of both countries, — would give him a right the opposite party never 
 contracted for, nor himself could fairly anticipate. The clear result then 
 is, that the transactions must be held to have reference to the master's im- 
 plied mandate, according to the law of his own country — a mandate, 
 which it is the duty of those who deal with him as an agent, to ascertain 
 the extent of ; and, that, while they never can justly complain of having 
 their right limited by such a principle, the shipmaster cannot be supposed 
 to intend an abuse of his powers, — whence the very gist of all contracts, 
 the understanding of parties, would be wanting to infer a right, ex lege 
 loci contractus, which the scope of his authority did not import. Thus 
 much for the principle of the lex loci contractus. We shall now proceed 
 to inquire into the principles recognized in England." 
 
 1 Mr. Justice Porter ia Malpica v. McKown, 1 Louis. R. 249, 254 ; 
 Ante, ^ 285. 
 
 CONFL. 38
 
 446 CONFLICT OF LAWS. [CH. VIII. 
 
 Court seem to have assumed, that the law of the 
 owner's domicil coincided with the law of the place of 
 the contract, as to the owner's responsibility, and the 
 authority of the master. But the same doctrine has 
 been elaborately maintained by the same Court in 
 another case.^ 
 
 1 Arago V. Currell, 1 Louis. R. 528. Mr. Justice Martin, In delivering 
 the opinion of the court in this case, said : "The first question it presents, 
 relates to the law, by which the rights of the parties are to be governed. 
 The defendant sent his vessel from New Orleans to Vera Cruz, to be em- 
 ployed in the transportation nf passengers ; and the master there entered 
 into a contract for their passages, -which being within the scope of his 
 authority, must be as binding on the defendant as if it had been entered 
 into by him personally. This proposition is, however, strenuously com- 
 bated by his counsel, who contends, that the master had no authority to 
 bind the owner absolutely, but only to the amount of the value of the ves- 
 sel and freight ; because the laws of the country, in which the owner has 
 his domicil, fix the measure of his responsibility, on all contracts made by 
 the master ; that the question, whether an agent has exceeded his powers, 
 must be solved by the laws of the place in which he received them. The 
 admission of this position would still present the question, whether, ac- 
 cording to the laws of Louisiana, the agent, who contracted in Mexico, in 
 the manner, the master did in the present case, exceeded his powers ; 
 and the question would still remain open as to the laws, which ought to 
 govern. So it would be under the provision of our code, relied on, that 
 the principal is bound only for the acts of his agent, which he could have 
 prevented. So, if it be held, that the law of Mexico is to govern a con- 
 tract directed to be made there, the question would not be, whether the 
 agent exceeded his powers, but what responsibility the principal would 
 have incurred, had he contracted personally. This has appeared to us the 
 sole question for our examination and solution. The master was sent to 
 Vera Cruz to take passengers on board of the vessel he commanded. He 
 did so. It is not pretended that he made any other than the agreement 
 usual on such an occasion. Whether the property was received and put 
 on board by the owner, or master, would make no difference. If the last 
 was committed out of the presence of the owner, his liability would be the 
 same. No question therefore arises as to the authority conferred being 
 exceeded. The owner is sought to be made liable, not on the contract, 
 but for a tort committed by the master, acting within the scope of his 
 powers, in the execution of the contract. The law relied on, which fur- 
 nishes the owner with an exemption on account of the misfeasance of the
 
 CH. VIII.] FOREIGN CONTRACTS. 447 
 
 [§ 286 cc. On the other hand, in a still more recent 
 case ^ in the Circuit Court of the United States, a dif- 
 
 master and crew', on the surrender of the vessel and freight, would cause 
 the same immunity had the owner contracted personally. If we under- 
 stand the matter rightly, the immunity is independent entirely of the 
 agreement having been entered into by the agent. For example, in Eng- 
 land, where such a rule prevails, we do not understand, that there could 
 be the slightest difference in the responsibility of the owner for the torts of 
 the master, whether the contract was for passage or freight, whether the 
 contract entered into with one or the other. We repeat, therefore, that 
 we cannot see how the question, whether the agent exceeded his powers, 
 is at all involved in the inquiry before us. The moment it is admitted, or 
 established, that the master's agreement for carrying passengers was on 
 terms, such as he was authorized to nnake, its legal consequences must 
 depend on other principles than those of the law of the contract of man- 
 date. The agreement must have the same effect as if entered into with 
 the owner personally. If then the defendant had gone himself to Vera 
 Cruz, and entered into a contract with a man there, which was to be per- 
 formed in the island of Cuba, would it have been governed by the law of 
 Louisiana? Now, if there be a principle better established than any other 
 on the subject of the conflict of laws, it is, that contracts are governed by 
 the laws of the country in which they are entered into, unless they be so 
 with a view to a performance in another. Every writer on that subject 
 recognizes it. Judicial decisions again and again through the civilized 
 world have sanctioned it. Why then should this form an exception ? 
 Why should the contract of affreightment, or for the conveyance of pas- 
 sengers, stand on different grounds than those of buying and selling mer- 
 chandise ? Whoever contracts in a particular place subjects himself to its 
 laws, as a temporary citizen. The idea that the law of a man's domicil 
 follows him through the world, and attaches to all his contracts, is as 
 novel as unfounded. The proposition was not, indeed, maintained in 
 general terms ; but that offered to the Court in relation to the contract is 
 identical with it ; and it is impossible for us not to feel, that, if the defend- 
 ant and appellant is to have the contract decided by the laws of Louisiana, 
 it will be equivalent to a declaration of this amount, that an inhabitant of 
 this State carries its laws with him wherever he goes, and they regulate 
 and govern his contracts in foreign countries — that, whether a man con- 
 tracts with him in Paris or London, our municipal regulations are the 
 measure of the rights and duties of both parties to the contract. That the 
 legislature of Louisiana may have a right to regulate the contracts of her 
 
 1 Pope V. Nickerson, 3 Story, R. 465.
 
 448 CONFLICT OF LAWS. [CH. VIIL 
 
 ferent rule was adopted. In that case a vessel, owned 
 in Massachusetts, being on a voyage from a port in 
 
 own citizens in every country so long as they owe her allegiance, may or 
 may not be true. But where the citizen contracts abroad, with a foreigner, 
 it is evident the rule must be limited in its operation. The legislature 
 may refuse permission to enforce the agreement at home ; but abroad, and 
 particularly where the agreement is entered into, it is valid. The general 
 rule, however, is never to extend the prohibition to contracts made abroad 
 unless there be an express declaration of the legislative will. We there- 
 fore conclude, that as the master was sent with the vessel to Vera Cruz 
 to take passengers ; as he acted as the owner's agent in making the agree- 
 ment, and this is admitted by the answer ; and as the limitation to the 
 responsibility is resisted on grounds which would have an equal force, if 
 the agreement had been made with him personally, we are bound, in our 
 inquiry as to the law which governs the agreement, to consider it as made 
 personally by the owner, and it is to be governed, not by the laws of his 
 domicil, but by those of the country in which it was entered into and to be 
 performed. But, although the case does not present the question of the 
 owner's responsibility in relation to the contract of mandate, the agent 
 having confined himself within his powers ; yet, as the argument has 
 placed the immunity claimed by the defendant and appellant on that 
 ground, it is well to notice it more particularly. If we understood the 
 arguments correctly, it was contended, that the laws of Louisiana, having 
 put some limitations to the power of the master to bind the owner, any 
 contract of the former, in a foreign country, must be subject to the limit- 
 ation ; and if they be exceeded, there is an end to the latter's responsibility. 
 W^here a general power is confined to an agent, the party contracting 
 ■with him is not bound by any limitation, which the principal may have 
 affixed, at the time or since, by distinct instructions. Now, in the case 
 before us, if instructions be supposed to have been given to the master, 
 not to bind the owner beyond the value of the vessel and freight, or for 
 any act which the latter could not prevent, would parties contracting with 
 the former, in a foreign country, be bound by them? We think it is cer- 
 tain they would not. Every contract, w^hich by the general maritime law 
 the master can make, is binding on the owner. By putting the former in 
 command, and sending him abroad, the latter invests him with the general 
 powers masters have as such, and those who contract with him have 
 nothing to do with any private instructions by which the general power 
 may have been limited. If the limitation arises not from the owner's 
 instructions, but from the particular laws of the country from which the 
 vessel has sailed, must not the consequences be the same ? Can these 
 laws limit the master's power more effectually than the owner could, or 
 can they extend farther? We think not. They have no force in a foreign
 
 CH. VIII.] FOREIGN CONTRACTS. 449 
 
 Spain to a port in Pennsylvania, was compelled by stress 
 of weather to put into Bermuda, where the master sold 
 
 country, where they are presumed to be equally unknown. Em6rigon, 
 treating of the case, where the master was prohibited from taking des 
 deniers a la grosse, during the voyage, examines the question, whether 
 those who furnished them would have an action against the owner. He 
 cites all the texts of the Roman laws, on which the negative can be main- 
 tained, and concludes, that if the lender had no knowledge of the prohibi- 
 tions, the owner would be responsible; that those who contract with him 
 in a foreign country, have a right to presume he is clothed with all the 
 powers which belong to his station. Boulay Paty is of the same opinion, 
 as to the responsibilities of the owner for the acts of the master appointed by 
 him, whom they put in command, with a special prohibition from making 
 a subrogation of his powers. (2 Em^rig. Contrats a la Grosse, ch. 4, 
 ^ 8 ; Boulay Paty, 289.) In another part of his work, Em^rigon treats of 
 the power of a master to draw bills on his owners in a foreign port, con- 
 trary to the authority given by the ordinance, and he considers he cannot, 
 because he exceeds the powers of his legal mandate. In support of this 
 opinion he cites decisions in opposition to what he says was the former 
 jurisprudence of France, founded on the authority of Valin. He seems to 
 conclude the rule is firmly fixed, as he understood it. But we find it was 
 not generally adopted. Boulay Paty states, that opinions were divided, 
 and the Chamber of Commerce of Nantz, in their observations on the Code 
 of Commerce, observe, it is a question often agitated and which had been 
 decided in different ways. (3 Em6rig. Contracts k la Grosse, ch. 4, ^ 11, 
 p. [441] 458 ; 2 Boulay Paty, 71.) The new Code adopted Valin's doc- 
 trine. But Emerigon, who is an author of distinction, in treating of the 
 question, says, that although the master cannot abroad go beyond the 
 legal mandate, provided, that his contract (son raccord) or the general 
 mercantile laws give him a more extensive power, a moins que son rac- 
 cord ou le droit commune, en certant cas, ne lui donne un pouvoir plus 
 etendu. (2 Em6rig. Contrats a la Grosse, ch. ^ 11, p. 452.) The gene- 
 ral rule, where there is no statute, limiting the owner's responsibility, is, 
 that he is responsible for all damages done by the master, while acting 
 within the scope of his powers. Abbott states, that this is the doctrine of 
 the common and civil law, and so do all the writers, we have been able 
 to consult. In Chancellor Kent's late work, and in Judge Story's edition 
 of Abbott, it is stated, that the owner is bound for the whole amount of 
 the injury done by the master or crew, unless where ordinances and 
 statutes have established a different rule. 3 Kent, Comm. 172 ; Abbott 
 on Shipping, edit. 1829; 1 Pothier, Oblig. n. 451, 452. If this question 
 turned on the master's having exceeded his powers, we are inclined to 
 think, that, as the general rule authorized him to bind the owner to the 
 38*
 
 450 CONFLICT OF LAWS. [CH. VIIL 
 
 the vessel and whole cargo. In an action by the ship- 
 pers against the owners to recover the amount of their 
 consignment, in which the right of the master to sell the 
 whole cargo and thus involve the owners was directly 
 in issue, it was determined that the liability of the 
 owners was governed by the law of Massachusetts, 
 where they resided, and not by the law of Spain, where 
 the contract of shipment was made, nor by the law of 
 Pennsylvania, where the goods were to be delivered ; 
 and the cases in Louisiana, just referred to, were not 
 approved.] 
 
 § 286 d. Another case may readily be suggested as 
 to the conflict of laws in cases of Agency. Let us sup- 
 pose, that A., in Massachusetts, should by a letter of 
 attorney, duly executed in Boston, authorize B., his 
 agent in New Orleans, to sell his ship, then lying in 
 New Orleans, and to execute a bill of sale in his (A.'s) 
 name, to the purchaser, and B. should accept the agency 
 and sell the ship after the death of A., but before he 
 had received, or could receive any notice thereof, and 
 should execute a bill of sale in A.'s name to the pur- 
 chaser. In such a case, the question might arise, 
 (especially if A. died insolvent, or the money was in- 
 vested in pursuance of other orders of A. in goods 
 which had perished by fire, or other accident,) whether 
 the bill of sale was valid or not valid. By the law of 
 Massachusetts a letter of attorney is revoked by the 
 death of the principal, whether known or unknown, and 
 all acts done, after his death, under it are mere nulli- 
 
 extent contracted for, the plaintiff and appellant, who contracted with him, 
 was unaffected by a limitation in a statute of another country, of which he 
 could not be presumed to have any knowledge, and to the authority of 
 which he was not subject."
 
 CH. VIII.] FOREIGN CONTRACTS. 451 
 
 ties.' By the law of Louisiana, if an attorney, being 
 ignorant of the death, or of the cessation of the rights 
 of his principal, should continue to act under his power 
 of attorney, the transactions done by him, during this 
 state of ignorance, would be valid.^ Assuming, that 
 this provision covers all cases, not only when the trans- 
 action is executed in the name of the agent, but also 
 when it is executed in the name of the principal, upon 
 which some doubt may be entertained, (as a dead man 
 cannot act at all,^) still the question would be, by what 
 law the letter of attorney, with reference to its revoca- 
 bility, duration, and effect, is to be governed. The 
 general rule certainly is, that all the instruments, made 
 and executed in a country, take effect, and are to be 
 construed, as to their nature, operation, and extent, 
 according to the law of the country where they are 
 made and executed. Locus regit actum.'^ But the 
 question here would be, whether, as the execution of 
 the power was to be in another country, the power 
 should not be construed and executed, and its nature, 
 operation and extent, ascertained by the law of the lat- 
 ter, as an exception to the general rule. There is no 
 doubt, that where an authority is given to an agent to 
 transact business for his principal in a foreign country, 
 it must be construed, in the absence of any counter 
 proofs, that it is to be executed according to the law of 
 the place where the business is to be transacted.^ But 
 
 ' Story on Agency, (^ 488, 489. 
 
 2 Code Civil of Louisiana, art. 3001. Tlie Civil Code of France con- 
 tains a similar regulation. Code Civil of France, art. 2008 ; Polhier on 
 Oblig. n, 81. 
 
 3 See Story on Agency, § 491 to ^ 499. 
 * Ante, ^ 2G3. 
 
 5 Ovvings V. Hull, 9 Peters, R. 607, 627, 628.
 
 452 CONFLICT OF LAWS. [CIL VIIL 
 
 this may well be admitted to be the rule, while the 
 authority is in full force, without making the law of 
 that place the rule, by which to ascertain, whether the 
 original power of attorney is still subsisting, or is re- 
 voked, or dead by operation of law in the place of its 
 origin. The point has never, as far as my researches 
 extend, been directly decided either at home or abroad ; 
 and, therefore, it is submitted to the learned reader for 
 his consideration. Some of the cases already alluded 
 to may be thought to furnish an analogy unfavorable to 
 the validity of the sale.^ 
 
 § 287. Another class of cases may be stated. A 
 merchant in one country sends a letter to a merchant 
 in another, requesting him to purchase goods, and to 
 draw on him for the amount of the purchase-money by 
 bills. In which country is the contract, for the repay- 
 ment of the advances, if the purchase is made, to be 
 deemed to be made ? Is it in the country where the 
 letter is written, and on which the drafts are authorized 
 to be drawn ? Or where the goods are purchased ? 
 The decision has been, that when such advances are 
 made, the undertaking is to replace the money at the 
 same place at which the advances are made ; and, 
 therefore, the party advancing will be entitled to inte- 
 rest on the advances according to the law of the place 
 of the advances.^ So, if advances are made for a fo- 
 reign merchant at his request, or security is given for a 
 debt, the party paying, or advancing, is in like manner 
 
 1 Ante, § 286 b, ^ 286 c. 
 
 2 Lanusse v. Barker, 3 Wheat. R. 101, 146; Grant v. Healey, 2 
 Chand. Law Reporter, 113 ; S. C. 3 Sumner, R. 523 ; ante, §284 a. But 
 see contra, Ballister v. Hamilton, 3 Louis. Ann. R. 401. See also Hertii 
 Opera, Tom. 1, De Collis. Leg. § 4, n. 55, p. 147, edit. 1737 ; Id. p. 208, 
 edit. 1716.
 
 CH. VIII.] FOREIGN CONTRACTS. 453 
 
 entitled to repayment in the place where the advances 
 are made, or the security is given, unless some other 
 place is stipulated therefor.^ [So, where a proposal to 
 purchase goods is made by letter sent from one State 
 to another State, and is there assented to, the contract 
 of sale is made in the latter State.^] 
 
 § 287 «. So, where a loan is made in one State, and 
 security is to be given therefor in another State by way 
 of mortgage ; it may be asked, what law is to govern 
 in relation to the contract and its incidents ? The de- 
 cision has been, that the law of the place where the 
 loan is made, is to govern ; for the mere taking of a 
 foreign security does not (it is said) necessarily alter 
 the locality of the contract. Taking such security 
 does not necessarily draw after it the consequence, that 
 the contract is to be fulfilled, where the security is 
 taken. The legal fulfilment of a contract of loan on 
 the part of the bondsman is repayment of the money ; 
 and the security given is but the means of securing 
 what he has contracted for, which, in the eye of the 
 law, is to pay, where he borrows, unless another place 
 of payment be expressly designated by the contract.^ 
 But if the mortgage is actually to be executed in a 
 foreign country, and the money is to be paid there, the 
 loan will be deemed to be there completed, although 
 the money may have been actually advanced else- 
 where.'* 
 
 1 Bayle v. Zacharie, 6 Peters, R. 635, G43, 644 ; post, ^ 320 a. 
 
 2 Mclntyre v. Parks, 3 Mete. 207. 
 
 3 De Wolf V. Johnson, 10 Wheaton, R. 367, 383. See also Ranelagh 
 V. Charapant, 2 Vern. R. 395, and Raithby's note ; Conner v. Bellamont, 
 2 Atk. 3S2 ; post, § 293. See Chapman v. Robertson, G Paige, R. 627, 
 630 ; post, ^ 293 b. 
 
 4 De "Wolf V. Johnson, 10 Wheaton, R. 367; Hosford v. Nichols, 1
 
 454 CONFLICT OF LAWS. [CH. VIII. 
 
 § 288. A case some what different in its circumstances, 
 but illustrative of the general principle, occurred 
 formerly in England. By a settlement made upon the 
 marriage of A. in England, a term of five hundred 
 years was created upon estates in Ireland, in trust to 
 raise £12,000 for the portions of daughters. The par- 
 ties to the settlement resided in England ; and a ques- 
 tion afterwards arose, whether the £12,000, charged 
 on the term of years, should he paid in England, with- 
 out any abatement or deduction for the exchange from 
 Ireland to England. It was decided that the portion 
 ought to be paid in England, where the contract was 
 made, and the parties resided ; and not in Ireland, 
 where the lands lay, which were charged with the pay- 
 ment ; for it was a sum in gross, and not a rent issuing 
 out of the land.^ 
 
 § 289. Let us take another case. A merchant, resi- 
 dent in Ireland, sends to England certain bills of ex- 
 change, with blanks for the dates, the sums, the times 
 of payment, and the names of the drawees. These 
 bills are signed by the merchant in Ireland, indorsed 
 with his own name and dated from a place in Ireland, 
 and are transmitted to a correspondent in England, 
 
 Paige, R. 221 ; Lloyd v. Scott, 4 Peters, R. 211, 229, — Whether a con- 
 tract, made in one State, for the sale of lands situate in another State, 
 on credit, reserving interest at the legal rate of interest of the State 
 ■where the lands lie, but more than that of the State where the contract is 
 made, would be usurious, has been much discussed in the State of New 
 York. In Van Schaick v. Edwards, 2 Johns. Cas. 355, the judges were 
 divided in opinion upon the question. See also Hosford v. Nichols, 1 
 Paige, Ft. 220, and Dewar v. Span, 3 T. R. 425 ; ante, ^ 279 a. 
 
 1 Phipps V. Earl of Anglesea, cited 5 Vin. Abridg. 209, pi. 8 ; 2 Eq. 
 Abridg. 220, pi. 1 ; Id. 751, pi. 3 ; 1 P. Will. 696 ; 2 Bligh, Pari. R. 
 88, 89. See also Lansdowne v. Lansdowne, 2 Bligh, Pari. R. 60 ; Sta- 
 pleton V. Conway, 3 Atk. 727 ; S. C. 1 Ves. 427.
 
 CH. VIII.] FOREIGN CONTRACTS. 455 
 
 with authority to him to fill up the remaining parts of 
 the instrument. The correspondent in England accord- 
 ingly fills them up, dated at a place in Ireland. Are 
 the bills, when thus filled up, and issued, to be deemed 
 English, or Irish contracts ? It has been held, that 
 under such circumstances they are to be deemed Irish 
 contracts, and of course to be governed, as to stamps 
 and other legal requisitions, by the law of Ireland ; and 
 that as soon as they are filled up, the whole transaction 
 relates back to the time of the original signature of 
 the drawer.^ One of the learned judges on that occa- 
 sion said, that if the drawer had died, while the bills 
 were on their passage, and afterwards the blanks had 
 been filled up, and the bill negotiated to an innocent 
 indorsee, the personal representatives of the drawer 
 would have been bound.- 
 
 § 290. Bonds for the faithful discharge of the duties 
 of office are often given with sureties, by public offi- 
 cers, to the government of the United States ; and it 
 sometimes happens, that the bonds are executed by the 
 principals in one State, and by the sureties in a differ- 
 ent State, or in different States. What law is in such 
 cases to regulate the contract? The rights and duties 
 of sureties are known to be different in different States. 
 In Louisiana one system prevails, deriving itself mainly 
 from the civil law ; in other States a different system 
 prevails, founded on the common law. It has been de- 
 cided, that the bonds in such cases must be treated as 
 made and delivered, and to be performed by all the 
 parties, at the seat of the government of the Union, 
 
 1 Snaith v. Mino:ay, 1 Maule & Selw. 87. 
 
 2 Mr. Justice Bayley, ibid. p. 95.
 
 456 CONFLICT OF LAWS. [CH. VIIL 
 
 upon the ground that the principal is hound to account 
 there ; and, therefore, hy necessary implication, all the 
 other parties look to that, as the place of performance, 
 by the law of which they are to be governed/ 
 
 § 291. The question, also, often arises in cases re- 
 specting the payment of interest. The general rule is 
 that interest is to be paid on contracts according to 
 the law of the place where they are to be performed, 
 in all cases, where interest is expressly or impliedly to 
 be paid.^ Usurum modus ex more regionis, iibi contractmn 
 
 1 Cox and Dick v. United States, 6 Peters, R. 172, 202 ; Duncan v. 
 United States, 7 Peters, R. 435. 
 
 2 Fergusson v. Fyffe, 8 Clark & Finnell. 121, 140 ; Post, ^ 292, 293, 
 kj 293 a to ^ 293 e, ^ 304 ; Conner v. Bellamont, 2 Vern. R. 382 ; Cash 
 v. Kennion, 11 Vesey, R. 314 ; Robinson v. Bland, 2 Burr. R. 1077; 
 Ekins V. East India Company, 1 P. W. 395 ; Ranelagh v. Champant, 
 2 Vern. R. 395, and note ibid, by Raithby ; 1 Chitty on Coram. & Manuf. 
 ch. 12, p. 650, 651 ; 3 Chitty, Id. ch. 1, p. 109 ; Eq. Abridg. Interest, E. ; 
 Henry on Foreign Law, 43, note ; Id. 53 ; 2 Kames, Equity, B. 3, ch. 8, 
 ^ 1 ; 2 Fonbl. Eq. B. 5, ch. 1, 6 6, and note; Bridgman's Equity Digest, 
 Interest, vii. ; Fanning v. Consequa, 17 Johns. R. 511 ; S. C. 3 Johns. 
 Ch. R. 610; Hosfordf. Nichols, 1 Paige, R. 220 ; Houghton v. Page, 
 2 N. Hamp. R. 42 ; Peacock v. Banks, 1 Minor, R. 387 ; Lapice v. 
 Smith, 13 Louis. R. 91, 92 ; Thomson v. Ketchum, 4 Johns. R. 285 ; 
 Stewart v. Ellice, 2 Paige, 604 ; Mullen v. Morris, 2 Barr, 85 ; Healy v. 
 Gorman, 3 Green, N. J. R. 328; 2 Kent, Coram. Lect. 39, p. 460, 461, 
 3d edit. — A case, illustrative of this principle, recently occurred before 
 the House of Lords. A widow in Scotland entered into an obligation to 
 pay the whole of her deceased husband's debts. It was held by the 
 Court of Sessions in Scotland, that the English creditors, on contracts 
 made in England, were entitled to recover interest in all cases, where the 
 law of England gave interest, and not where it did not. Therefore, on 
 bonds, and bills of exchange, interest was allowed, and on siraple con- 
 tracts not. And this decision was aflirraed by the House of Lords. Mont- 
 gomery V. Budge, 2 Dow &: Clark, Rep. 297. The case of Arnolt v, 
 Redfera (2 Carr. & Payne, 88,) may at first view seem inconsistent with 
 the general doctrine. There the original contract was made in London 
 between an Englishman and a Scotchman. The latter agrees to go to 
 Scotland as agent four times a year, to sell goods, and collect debts for 
 the other party, to remit the money, and to guarantee one fourth part of
 
 CH. VIII.] FOREIGN CONTRACTS. 457 
 
 est, constihiUur, says the Digest.^ Thus, a note made in 
 Canada, where interest is six per cent., payable with 
 interest in England, where it is five per cent., bears 
 English interest only.~ Loans made in a place bear 
 the interest of that place, unless they are payable else- 
 where.^ And, if payable in a foreign country, they 
 may bear any rate of interest not exceeding that which 
 is lawful by the laws of that country.* And, on this 
 account, a contract for a loan made, and payable in a 
 foreign country, may stipulate for interest higher than 
 
 the sales ; and he was to receive one per cent, upon the annount of sales, 
 &c. The agent sued for the balance of his account in Scotland, and the 
 Scotch Court allowed him interest on it. The judgment was afterwards 
 sued in England ; and the question was, whether interest ought to be 
 allowed. Lord Chief Justice Best said ; " Is this an English transaction? 
 For, if it is, it will be regulated by the rules of English law. But, if it 
 is a Scotch transaction, then the case will be different." He afterwards 
 added, "This is the case of a Scotchman, who comes into England and 
 makes a contract. As the contract was made in England, although it was 
 to be executed in Scotland, I think, it ought to be regulated according to 
 the rules of the English law. This is my present opinion. These ques- 
 tions of international law do not often occur." And he refused interest, 
 because it was not allowed by the law of England. The Court after- 
 wards ordered interest to be given, upon the ground that the balance of 
 such an account would carry interest in England. But Lord Chief Justice 
 Best rightly expounded the contract as an English contract, though there 
 is a slight inaccuracy in his language. So far as the principal was con- 
 cerned, the contract to pay the commission was to be paid in England. 
 The services of the agent were to be performed in Scotland. But the 
 whole contract was not to be executed exclusively there by both parties. 
 A contract made to pay money in England, for services performed abroad, 
 is an English contract, and will carry English interest. 
 
 1 Dig. Lib. 22, tit. 1, 1. 1 ; 2 Burge, Comm. on Col. and For. Law, 
 Pt. 2, ch. 9, p. 860,801, 862. 
 
 2 Scofield V. Day, 20 Johns. R. 102. 
 
 3 De Wolf V. Johnson, 10 VVheaton, R. 367, 383; Consequa v. Wil- 
 ling, Peters, Cir. R. 225 ; 2 Boullenois, Observ. 40, p. 477, 478 ; An- 
 drev/s v. Pond, 13 Peters, R. 65, 78. 
 
 4 Ibid.; 2 Kent, Comm. Lect. 39, p. 460, 461, 3d edit. ; Thomson v. 
 Ketchum, 4 Johns. R. 285 ; Healy v. Gorman, 3 Green, N. J. R. 328. 
 
 CONFL, 30
 
 458 CONFLICT OF LAWS. [CH. VIII. 
 
 that allowed at home.' If the contract for interest be 
 illegal there, it will be illegal everywhere.^ But if it 
 be legal where it is made, it will be of universal obli- 
 gation, even in places where a lower interest is pre- 
 scribed by law.^ 
 
 § 292. The question, therefore, whether a contract is 
 usurious or not, depends, not upon the rate of the inte- 
 rest allowed, but upon the validity of that interest in 
 the country, where the contract is made, and is to be 
 executed.^ A contract made in England for advances 
 to be made at Gibraltar, at a rate of interest beyond 
 that of England, would, nevertheless, be valid in Eng- 
 
 1 2 Kent, Cotnm. Lect, 39, p. 460, 461, 3d edit. ; Hosford v. Nichols, 
 1 Paige, R. 220; Houghton v. Paige, 2 N. Hamp. R. 42 ; Thomson v. 
 Powles, 2 Simons, R. 194. In this last case the Vice-Chancellor said : 
 " With respect to the question of usury, in order to hold the contract to 
 be usurious it must appear that the contract was made here, and that the 
 consideration for it was to be paid here. It should appear at least, that 
 the payment was not to be made abroad ; for if it was to be made abroad 
 it would not be usurious." See also Andrews v. Pond, 13 Peters, R. 
 65, 78 ; De Wolf v. Johnson, 10 Wheat. R. 383. 
 
 2 2 Kames, Equity, B. 3, ch. 8, ^ 1 ; Hosford v. Nichols, 1 Paige, R, 
 220 ; 2 Boullenois, Observ. 46, p. 477. — In the case of Thompson v. 
 Powles, (2 Simons, R. 194,) the Vice-Chancellor said, "In order to have 
 the contract (for stock) usurious, it must appear that the contract was made 
 here, and that the consideration for it was to be paid here." See also 
 Yrisarri v. Clement, 2 Carr. & Payne, R. 223. In Hosford v. Nichols, 
 (1 Paige, R. 220,) where a contract was made for the sale of lands in New- 
 York, by citizens then resident there, and the vendor afterwards removed 
 to Pennsylvania, where the contract was consummated, and a mortgage 
 given to secure the unpaid purchase-money, with New York interest, 
 (which was higher than that of Pennsylvania,) the Court thought the 
 mortgage not usurious, it being only a consummation of the original bar- 
 gain made in New York. 
 
 3 Ibid. 
 
 4 Haivey v. Archbold, 1 Ryan & Mood. R. 184 ; S. C. 3 B. & C. 626 ; 
 Phelps V. Kent, 4 Day, 96 ; Pratt v. Adams, 7 Paige, 616 ; Greenwade 
 V. Greenwade, 3 Dana, 497 ; Andrews v. Pond, 13 Peters, R. 65, 78 ; 
 Ante, ^ 243.
 
 CH. VIII.] FOREIGN CONTRACTS. 459 
 
 land ; and so a contract to allow interest upon credits 
 given in Gibraltar at such higher rate, would be valid 
 in favor of the English creditor.^ 
 
 § 292 a. This too seems to be the doctrine propounded 
 by Rodenburg, who says : Status quidem aut conditio 
 personanim dirigitur a loco domicilii: cwterimi tamcn in 
 vinculo cvjusque ohligaiionis, id sciamus, quos olligct conven- 
 tion sjyectamv.s leges 7'cgionis, uhi ilia celchrcdur. Quemad- 
 modum et in illicita stipidatio7ie, quce legihus est interdicta, 
 id puta; si deUtuni modum usurarwn excedit, traditiim est 
 valere pactum, quo foris secundum mores illius regionis sti- 
 pulati sumus proJdhitam domi usurarum quantitatem. Unde 
 non longe abire videtur, quod memini niiper apud nos res- 
 ponsum esse, si contracta sit eo loci ohligatio, id)i sortem li- 
 ceat exigere cum tisuris, id maximejam earum aliqucc essent 
 persolutce. Jure caput cu?n itsuris et apud nos exigi, id)i usu- 
 rarum solutione protinils via petitioni sortis pcercluditur, lo- 
 cumque sibi vindicat decantata adeo pareunia? Burgundus 
 is still more direct and positive.^ 
 
 § 293. And in cases of this sort, it will make no dif- 
 . ference, (as we have seen,) that the due performance of 
 the contract is secured by a mortgage, or other security, 
 upon property, situate in another country, where the 
 interest is lower.^ For it is collateral to such contract, 
 and the interest reserved being according to the law of 
 the place where the contract is made, and to be exe- 
 cuted, there does not seem to be any valid objection to 
 giving collateral security elsewhere, to enforce and 
 
 1 Ibid. 
 
 2 Rodenburg, Diversit. Stat. tit. 4, Ps. 2, ch. 2, p. 92. 
 
 3 Burgundus, Tract. 4, n. 10, p. 109; Post, § 293 e, ^ 300 a; 2 Burge, 
 Comm. Pt. 2, ch. 9, p. 860, 861, 862. 
 
 4 Ante, § 287.
 
 460 CONFLICT OF LAWS. [CH. VIIL 
 
 secure the due performance of a legal contract.^ But, 
 suppose a debt is contracted in one country, and after- 
 wards, in consideration of farther delay, the debtor in 
 another country enters into a new contract for the pay- 
 ment of interest upon the debt at a higher rate than 
 that allowed by the country where the original debt 
 was contracted, but not higher than that allowed by 
 the law of the country where it is so stipulated ; it 
 may be asked whether such stipulation is valid ? It 
 has been decided that it is.^ On the other hand, sup- 
 pose the interest so stipulated is according to the rate 
 of interest allowed in the country where the debt was 
 contracted, but higher than that in the country where 
 the new contract is made ; is the stipulation invalid ? 
 It has been decided that it is.^ In each of these cases 
 the Lex loci contractus was held to govern as to the pro- 
 per rate of interest. 
 
 § 293 «. In the cases hitherto stated, the transaction 
 is supposed to be londfide between the parties. For if 
 the transaction is a mere cover for usury, as if the trans- 
 action is in form a bill of exchange drawn upon and 
 payable in a foreign country, but in reality the parties 
 resort to that, as a mere machinery to disguise usury in 
 the transaction against the laws of the country where 
 the contract is made, the form of the transaction will be 
 treated as a mere nullity j and the Court will decide 
 
 ' Conner v. Bellamont, 2 Atk. R, 382 ; Stapleton v. Conway, 3 Atk. 
 R. 727; S. C. 1 Vesey, R. 427; De Wolf w. Johnson, 10 W^heaton, R. 
 367, 383. 
 
 2 Conner v. Bellamont, 2 Atk. R. 382. See also Hosford v. Nichols, 
 1 Paige, R. 220. 
 
 3 Dewar v. Span, 3 T. R. 435. See also Stapleton v. Conway, 3 Atk. 
 R. 382; S. C. 1 Vesey, R. 427. See Chapman u. Robertson, 6 Paige, 
 R. 627, 631.
 
 CH. VIII.] FOREIGN CONTRACTS. 461 
 
 according to tlie real object of the parties. Thus, for 
 example, where a bill of exchange was drawn in New 
 York payable in Alabama, and the bill was for an ante- 
 cedent debt, and a larger discount was made from the 
 bill, greater than the interest in either State, for the 
 supposed difference of exchange, the Court considered 
 the real question to be as to the hona fides of the trans- 
 action. If a mere cover, it was usurious.* 
 
 1 Andrews v. Pond, 13 Peters, R, 65, 77, 78. On this occasion Mr. 
 Chief Justice Taney said : " Another question presented by the exception, 
 and much discussed here, is, whether the validity of this contract depends 
 upon the laws of New York or those of Alabama. So far as the mere ques- 
 tion of usury is concerned, this question is not very important. There is 
 no stipulation for interest apparent upon the paper. The ten per cent, in 
 controversy is charged as the difference in exchange only, and not for 
 interest and exchange. And if it were otherwise, the interest allowed in 
 New York is seven per cent, and in Alabama eight ; and this small differ- 
 ence of one per cent, per annum, upon a forbearance of sixty days, could 
 not materially affect the rate of exchange, and could hardly have any influ- 
 ence on the inquiry to be made by the jury. But there are other consider- 
 ations which make it necessary to decide this question. The laws of 
 New York make void the instrument when tainted with usury ; and if this 
 bill is to be governed by the laws of New York, and if the jury should 
 find that it was given upon an usurious consideration), the plaintiff would 
 not be entitled to recover ; unless he was a bona fide holder, without notice, 
 and had given for it a valuable consideration ; while by the laws of Ala- 
 bama, he would be entitled to recover the principal amount of the debt, 
 without any interest. The general principle, in relation to contracts made 
 in one place to be executed in another, is well settled. They are to be 
 governed by the law of the place of performance ; and if the interest allowed 
 by the laws of the place of performance is higher than that permitted at 
 the place of the contract, the parties may stipulate for the higher interest, 
 without incurring the penalties of usury. And in the case before us, if the 
 defendants had given their note to H. M. Andrews & Co. for the debt then 
 due to them, payable at Mobile, in sixty days, with eight per cent, interest, 
 such a contract would undoubtedly have been valid ; and would have been 
 no violation of the laws of New York, although the lawful interest in that 
 State is only seven per cent. And, if in the account adjusted at tiie time 
 this bill of exchange was given, it had appeared that Alabama interest of 
 eight per cent, was taken for the forbearance of sixty days, given by the 
 contract, and the transaction was in other respects free from usury, such 
 39*
 
 462 CONFLICT OF LAWS. [CH. VIIL 
 
 293 I. Indeed, in all cases of this sort we are to look 
 to tlie real intentions of the parties, and their acts are 
 expressive of them. Thus, where a citizen of New York 
 applied in England to a British subject for a loan of 
 money upon the security of a bond and mortgage upon 
 land in New York, at the legal rate of -interest (seven 
 per cent.) of that State; and it was agreed that the 
 borrower should, upon his return to New York, execute 
 the bond and mortgage, and duly record the same ; and 
 upon the bond and mortgage being received in England, 
 the lender agreed to deposit the money loaned at the 
 bankers of the borrower in London for his use ; and the 
 bond and mortgage were executed and received, and 
 the money paid accordingly to the bankers ; the ques- 
 tion arose, whether the transaction was usurious or not ; 
 and that depended upon the law of the place by which 
 
 a reservation of interest would have been valid and obligatory upon the 
 defendants ; and would have been no violation of the laws of New York. 
 But that is not the question which we are now called on to decide. The 
 defendants allege, that the contract was not made with reference to the 
 laws of either State, and was not intended to conform to either. That a 
 rate of interest forbidden by the laws of New York, where the contract 
 was made, was reserved on the debt actually due ; and that it was con- 
 cealed under the name of exchange, in order to evade the law. Now, if 
 this defence is true, and shall be so found by the jury, the question is not, 
 which law is to govern in executing the contract ; but, which is to decide 
 the fate of a security taken upon an usurious agreement, which neither 
 will execute? Unquestionably, it must be the law of the State where 
 the agreement was made, and the instrument taken to secure its perform- 
 ance. A contract of this kind cannot stand on the same principles with a 
 bona fide agreement made in one place to be executed in another. In the 
 last-mentioned cases the agreements were permitted by the lex loci con- 
 tractus; and will even be enforced there, if the party is found within its 
 jurisdiction. But the same rule cannot be applied to contracts forbidden 
 by its laws and designed to evade them. In such cases, the legal conse- 
 quences of such an agreement must be decided by the law of the place 
 where the contract was made. If void there, it is void everywhere." See 
 Chapman v. Robertson, 6 Paige, R. 627, 630, 631.
 
 CH. Vin.] FOREIGN CONTRACTS. 463 
 
 it was to be governed, ^Yhetller by the law of England 
 (where interest is only five per cent.) or by the law of 
 New York. It was held by the Court, that the con- 
 tract was to be construed according to the laws of New 
 York, and therefore that a bill to foreclose the mort- 
 gage, filed in New York, was maintainable ; and that 
 the law of usury of England was no defence to the suit. 
 On that occasion the learned Chancellor said, that as 
 no place of payment was mentioned in the bond or mort- 
 gage, the legal construction of the contract was, that 
 the money was to be paid where the obligee resided, 
 or wherever he might be found ; that the residence of 
 the obligee, being in England at the time of the execu- 
 tion of the bond, that must be considered the place of 
 payment for the purpose of determining the question 
 where that part of the contract was to be performed ; 
 and that the execution of the bond in New York did 
 not make it a personal contract there, because it was 
 inoperative until received there, and the money depo- 
 sited with the bankers for the borrower. And he con- 
 cluded by saying : " Upon a full examination of all the 
 cases to be found upon the subject, either in this coun- 
 try, or in England, none of which, however, appear to 
 have decided the precise question, which arises in this 
 cause, I have arrived at the conclusion, that this mort- 
 gage, executed here, and upon property in this State, 
 being valid by the Lex situs, which is also the law of the 
 domicil of the mortgagor, it is the duty of this Court to 
 give full effect to the security, without reference to the 
 usury laws of England, which neither party intended to 
 evade or violate by the execution of a mortgage upon 
 the lands here." ^ 
 
 1 Chapman u. Robertson, 6 Taige, R. 627, 630, 633.
 
 464 CONFLICT OF LAWS. ["CH. VIIL 
 
 § 293 c. Whatever objections may be made to the 
 reasoning of the learned Chancellor, and it is certainly 
 open to some observation, the decision itself seems well 
 supported in point of principle ; for the parties intended 
 that the whole transaction should be in fact, as it was 
 in form, a New York contract, governed by the laws 
 thereof, and the repayment of the debt was there to be 
 made. It is easily reconcilable with other laws and 
 principles, if viewed in this light ; if viewed, as the 
 Chancellor interpreted the case, it is perhaps irrecon- 
 cilable with other cases and with general principles.^ 
 
 ' Chapman v. Robertson 6 Paige, R. 627, 630 to 633. It appears to 
 me, that the case was correctly decided ; but with the greatest deference 
 for the learned Chancellor, upon principles and expositions, to which I 
 cannot assent, and which appear to me inconsistent with the general rea-' 
 soning of the authorities. It appears to me, that there being no place of 
 payment designated in the bond and mortgage, which was executed at 
 New York, where the borrower was domiciled, that, although it was not 
 operative until received by the lender, yet when received and adopted by 
 him, the transaction related back to its origin, and it was valid, not as a 
 bond and mortgage executed in England for the payment of money there, 
 but as a bond and mortgage for the payment of the money in New York, 
 as having originated there, and having its whole validity and operation 
 from the law of Nev^ York. If an order for goods were sent from New York 
 to England ; and the order were complied with, and the goods received in 
 New York ; after the receipt of the goods the debt would be treated as an 
 English debt, since the contract of purchase would there be deemed to be 
 negotiated and perfected. Ante, ^ 285,286. In truth, where no place of 
 payment was mentioned, the law of the place, where the contract is made, 
 fixes it in that place, wherever the parties may be domiciled. The bond 
 and mortgage took effect, as contracts of the borrower executed at New 
 York. If a negotiable note is made in one State, and is negotiated to an 
 indorsee in another Slate, the contract with the indorsee by the maker 
 takes effect as a promise in the State where the note was made, and not 
 where it was indorsed. The payment of the money to the bankers of the 
 borrower in London was merely for his accommodation, and it by no 
 means made the money repayable there. The case of Stapleton v. Con- 
 way, 3 Atk. R. 727 ; S. C. 1 Ves. is, as far as it goes, in opposition to 
 the decision in 6 Paige, R. 627. It is not, however, my design in this 
 place to enter upon the reasons of my dissent from the doctrines stated by
 
 CH. VIII.] FOREIGN CONTRACTS. 465 
 
 § 293 d. John Voet, in his Commentaries on the Pan- 
 dects, holds this very doctrine, which appears to me to 
 be entirely in harmony with the received principles of 
 international law. He considers, that the interest must 
 be according to the law of the place where the contract 
 is to be performed, whether that place be where the 
 contract is made, or it be another place. If the interest 
 is in either case stipulated for beyond that rate he 
 deems it usurious. >SV alio in loco gravioriim iisnrarum 
 stipiiiatio permissa, in alio vetita sit, lex loci, in quo contrac- 
 tus celehratus est, spectanda videtur in qiicestione, an mode- 
 ratw, an vero modum cxccdentes, usurce ^er conventionem 
 constitute sint. Dummodo mcminerhnus, ilium propyie lo- 
 cum coniractus in jure non intelUgi, in quo negotium gestum 
 est, sed in quo pecuniam ut solveret, se quis ohligavit. 3fodo 
 etiam bond fide omnia gesta fucrint, nee consulto talis ad 
 miduum contrahendiim locus elcctus sit, in quo graviores usu- 
 rce, quam in loco, in quo alias contrahendum fidssct, prohatw 
 inveniuntur. Etiamsi de codero hypotheca, in sortis et usura- 
 rum securitatem ohligata, in alio hco sita sit, ubi solce levi- 
 ores usurce p)ermissco ; cum cvqidus sit, contractum acccsso- 
 rium regi ex loco pricipalis negotii gesti, quam ex opposito 
 contractum pnncipalem regi lege loci, in quo aceessorius con- 
 tractus celebratus est} 
 
 S 293 e. Burgundus adopts the same doctrine, and 
 says: Licita vero sit, an illicita, stiinilatio, a forma quoque 
 videtur proficisci, et ideo ejusdem legihus dirigitur, qidbus 
 ipsa forma, et ad locum contractus collimare, oportet. Quare 
 
 the learned Chancellor in 6 Paige, R. 627. The principles stated from 
 § 280 to ^ 321, sufficiently explain some of the grounds upon which that 
 dissent may be maintained. Sec also 2 Kent, Comm. Lect. 39, p. 460, 
 461, 3d edit., and Andrews v. Pond, 13 Peters, R. 65 ; Ante, § 291 ; 
 Post, § 304. 
 
 1 J. Voet, ad Pand. Lib. 22, tit. 1, ^ 6, p. 938 ; post, ^ 304.
 
 466 CONFLICT OF LAWS. [CH. VIII. 
 
 etu suf^ariim modiis is comtituendiis est, qui in regione in qua 
 est contractum legitime celehratur. Et cum reditus duodena 
 riiis, in Gallia stijmlatiis, in controversiam incidisset,patroci- 
 nante me judicatum est, in curia Flandrice valere pactum : 
 nee ohesse, quod in Flandria, iihi reditus constitutus, sive Jiypo- 
 thecce impositus proponerettir, usiiras semisse graviores sti- 
 pulari non liceat ; quia ratio hjpothecce non hahetur, quce 
 hac in re nihil conferens ad sidjstantiam oUigationis, tantiim 
 extrinsecus accedit legitimce stipidationi. Sed hoc intellige 
 de usiiris in stipidationem dediictis, non autem de iis, quce 
 ex mora dehentur, in quibus ad locum solutionis {ut docebi- 
 mus postea) respicere oportct} 
 
 § 294. In cases of express contracts for interest fo- 
 reign jurists generally hold the same doctrine. Dumou- 
 lin, and after him Boullenois, says : In concernentihus con- 
 tractum, et emergcntihis tempore contractus spectatiir locus, 
 in cpio contraUtur? And hence the latter deduces the 
 general conclusion, that the validity of contracts for 
 rates of interest depends upon the laws of the place 
 where the contract is made and payable, whether it be 
 in the domicil of the debtor, or in that of the creditor, 
 or in that where the property hypothecated is situated, 
 or elsewhere.^ He holds this also to be a just inference 
 from the language of the Digest. Cum judicio honm 
 fidei disceptatur, arhitrio judicis tisurarum modus ex more 
 regionis, ubi contractum est constituitur ; ■* and that it ap- 
 
 1 Burgundus, Tract. 4, § 10, p. 108, 109 ; post, ^ 302. 
 
 2 Molin, Opera, Comment, ud. Consult. Paris, tit. 1, ^ 12, Gloss. 7, n. 
 37, Tom. 1, p. 224 ; 2 Boullenois, Observ. 46, p. 472 ; Henry on Foreign 
 Law, p. 53 ; Boullenois, Quest, de la Contr. des Lois, p. 330 to 338 ; 
 ante, § 82 a. 
 
 3 2 Boullenois, Observ. 46, p. 472. 
 
 4 Dijr. Lib. 22, tit. 1, 1. 1.
 
 CH. VIII.] FOREIGN CONTRACTS. 467 
 
 plies, where the parties have designedly contracted in 
 the one place, rather than in the other. ^ But, where 
 there is no express contract, and interest is to be im- 
 plied, foreign jurists are not so well agreed." Some 
 contend, that, if the contract is between foreigners, the 
 law of interest of the domicil of the creditor ought to 
 prevail; and others, that that of the domicil of the 
 debtor ought to prevail.^ 
 
 § 295. Boullenois is of opinion, that, where there is 
 no express contract, the interest for which a delinquent 
 debtor is tacitly liable, on account of his neglect to pay 
 the debt, is the interest allowed by the law of the 
 place where the debt is payable ; because it is there 
 that the interest has its origin.^ And, in this, he fol- 
 lows the doctrine of Everhardus, who says : Quia, uli 
 certus locus solutionis faciendm destinatiis est, tunc non facta 
 solutione in termino et loco prcefixo, mora clicitiir contrahi in 
 loco clcstinatce solutionis, non in loco celehrati contractus.^ 
 Strykius holds the same opinion. Si lis oritur ex post 
 facto propter negligentiam et moram, consideratur locus, ubi 
 mora contracta est.^ Boullenois puts a distinction, which 
 also deserves notice, between cases where the debt for 
 money loaned is payable at a fixed day, and where no 
 day is fixed for payment, but it is at the pleasure of 
 the creditor when it shall be paid, and no place of pay- 
 
 ' 2 Boullenois, Observ. 46, p. 472. 
 
 2 2 Boullenois, Observ. 46, p. 472, 477, 478, 479, 496. 
 
 3 Id.; Bouhier, Cout. de Bourg. ch. 21, ^ 194 to i^ 199; Livermore, 
 Dissert. ^ 42, p. 46, 47. • 
 
 4 2 Boullenois, Observ. 46, p. 477. 
 
 5 Everhard. Consil. 78, n. 10, p. 205. 
 
 6 2 Boullenois, Observ, 46, p. 477 ; Henry on Foreign Law, p. 53. — 
 For the citation from Strykius I have been obliged to rely on Boullenois ; 
 as I have not been able, after considerable research in the voluminous 
 words of Strykius, to find the particular passage.
 
 468 CONFLICT OF LAWS. [CH. VIIL 
 
 ment is mentioned.^ In the former case he holds, that 
 the debtor is bound, in order to avoid default, to seek 
 the creditor and pay him ; and therefore the neglect to 
 make payment arises in the domicil of the creditor, and 
 interest ought to be allowed according to the law of 
 that place.- In the latter case the creditor is to demand 
 payment of the debtor ; and the neglect of payment is 
 in the domicil of the debtor, and, therefore, interest 
 ought to be allowed according to the law of his domi- 
 cil.^ And if, between the time of contracting the debt 
 and the demand of the creditor, the debtor has changed 
 his domicil, BouUenois is of opinion that, if the demand 
 is in the new domicil, interest for neglect of payment 
 should be according to the law of the latter ; especially 
 if the change of domicil is known to the creditor.* And 
 he applies the same rule to a case where, by the law 
 of the old domicil, a simple demand only is required, 
 and, by the law of the new domicil, a demand by judi- 
 cial process is necessary.^ The distinction does not 
 appear to have any foundation in our jurisprudence ; 
 for, whether the debt be payable at a fixed day, or 
 upon a demand of the creditor, if no place of payment 
 is prescribed, the contract takes effect as a contract of 
 the place where it is made ; and being payable gene- 
 rally, it is payable everywhere, and after a demand and 
 refusal of payment, interest will be allowed according 
 to the law of the place of the contract.^ 
 
 § 296. It may, therefore, be laid down as a general 
 rule, that, by the common law, the Lex loci contractus 
 will, in all cases, govern as to the rule of interest, fol- 
 
 1 2 Boullenois, Observ, 16, p. 477, 478. 
 
 2 Ibid. 3 Ibid. 4 Ibid. 6 Id. p. 477 to p. 479. 
 e Ante, ^ 272, ^ 278 a ; post, ^ 317, ^ 329.
 
 CH. VIII.] FOREIGN CONTRACTS. 469 
 
 lowing out the doctrine of the civil law already cited ; 
 Cumjudicio honcefidei desceptcdur, arUtrio judicis imirarum 
 modus, ex more regionis, xibi contractum, constitiiUur ; ita 
 iamen id Icgi non of ended} But if the place of payment 
 or of performance is different from that of the contract, 
 then the interest may be validly contracted for at any 
 rate not exceeding that which is allowed in the place of 
 payment or performance. And in the absence of any 
 express contract as to interest, the law of the same 
 place will silently furnish the rule, where interest is to 
 be implied or allowed for delay [ex mora) of payment, or 
 performance.^ 
 
 § 297. But, clear as the general rule, as to interest, 
 is, there are cases, in which its application has been 
 found not without embarrassments. Thus, where a 
 consignor in China consigned goods for sale in New 
 York, and delivered them to the agent of the consignee 
 in China, and the proceeds were to be remitted to the 
 consignor in China, and there was a failure to remit, 
 the question arose, whether interest was to be com- 
 puted according to the rate in China, or the rate in 
 New York. Mr. Chancellor Kent held, that it should 
 be according to the rate in China. But the Appellate 
 Court reversed his decree, and decided in favor of the 
 
 1 Dig. Lib. 22, tit. 1, 1. 1 ; Id. 1. 37 ; ante, ^ 294; 1 Eq. Abr. Interest, 
 E. ; Champant v. Ranelagh, Prec. Ch. 128; De Sobry v. De Laistre, 
 2 Harr. & John. R. 193, 228. See 1 Burge, Comment, on Col. and For. 
 Law, Pt. 1, ch. l,p. 29, 30. 
 
 2 Ante, ^ 291 ; 2 Kent, Comm. Lect. 32, p. 460, 461, 3d edit. ; Robin- 
 son V. Bland, 2 Burr. R. 1077 ; "Ekins v. East India Company, 1 P. W. 
 396 ; Royce v. Edwards, 4 Peters, R. Ill ; 2 Fonbl. Eq. B. 5, ch. 1, 
 § 6; Fanning v. Consequa, 17 Johns. R. 511 ; De Sobry v. De Laistre, 
 2 Harr. & Johns. R. 193, 228 ; Smith v. Mead, 3 Connect. R. 253 ; Win- 
 throp V. Carlton, 12 Mass. R. 4 ; Foden v. Sharp, 4 Johns. R. 183 ; 
 Henry on Foreign Law, p. 53. 
 
 CONFL. 40
 
 470 CONFLICT OF LAWS. [CH. VIIL 
 
 rate in New York. Each Court admitted the general 
 rule, that the interest should be according to the law of 
 the place of performance, where no express interest is 
 stipulated. But the Court of Chancery thought, that 
 the delivery of the goods being in China, and the remit- 
 tance being to be made there, the contract was not 
 complete, until the remittance arrived, and was paid 
 there. The Appellate Court thought, that the delivery 
 of the goods in China, to be sold at New York, was not 
 distinguishable in principle from a delivery at New 
 York ; and, that the remittance would be complete, in 
 the sense of the contract, the moment the money was 
 put on board the proper conveyance in New York for 
 China; and it was then at the risk of the consignor. 
 The duty of remittance was to be performed in New 
 York, and the failure was there ; and consequently the 
 rate of interest of New York only was due.^ 
 
 § 298. Another case has arisen of a very different 
 character. The circumstances of the case were somewhat 
 complicated ; but the only point for consideration there 
 arose upon a note, of which the defendants were the 
 indorsers, and with the amount thereof thev had debited 
 themselves in an account with the plaintiff; and which 
 they sought now to avoid upon the ground of usury. 
 The note was given in New Orleans, payable in New 
 York, for a large sum of money, bearing an interest of 
 ten per cent., being the legal interest of Louisiana, the 
 New York legal interest being seven per cent. only. 
 The question was, whether the note was tainted with 
 usury, and therefore void, as it would be if made in 
 
 1 Consequa v. Fanning, 3 Johns. Ch. R. 587, GIO; S. C. 17 Johns. R. 
 511, 520, 521. See Grant v. Ilealey, 2 Chand.Law Reporter, 113 ; S. C. 
 3 Sumner, R. 523 ; ante, i^ 284 a.
 
 CH. VIII.] FOREIGN CONTRACTS. 471 
 
 New York. The Supreme Court of Louisiana decided, 
 that it was not usurious ; and that, although the note 
 was made payable at New York, yet the interest might 
 be stipulated for, either according to the law of Louisi- 
 ana, or according to that of New York. The Court 
 seems to have founded their judgment upon the ground, 
 that in the sense of the general rule, already stated,^ 
 there are, or there may be, two places of contract ; that, 
 in which the contract is actually made j and that, in 
 which it,is to be paid or performed; Locus, vhi contrac- 
 tus celehratiis est; locus, ubi destinata solutio est; and, 
 therefore, that if the law of both places is not violated, 
 in respect to the rate of interest, the contract for inte- 
 rest will be valid.^ In support of their decision the 
 Court mainly relied upon the doctrines, supposed to be 
 maintained by certain learned jurists of continental 
 Europe, whose language, however, does not appear to 
 me to justify any such interpretation, when properly 
 considered, and is perfectly compatible with the ordi- 
 nary rule, that the interest must be, or ought to be, 
 according to the law of the place where the contract is 
 to be performed, and the money is to be paid. It may 
 not be without use to review some of the more import- 
 ant authorities thus cited, although it must necessarily 
 involve the repetition of some, which have been already 
 cited. 
 
 § 299. There is no doubt, that the phrase Lex loci con- 
 tractus may have a double meaning or aspect ; and, that 
 
 1 Ante, ^ 280. 
 
 2 Depauu. Humphreys, 20 Martin, R. 1. — Mr. Chancellor Walworth, 
 in Chapman v. Robertson, 6 Paige, R. 627, 634, has expressed his entire 
 concurrence in the decision in 20 Martin, R. 1. And see Canegie v. 
 Morrison, 2 Mete. 381. But see Van Schaike v. Edwards, 2 Johns. Ch. 
 Cas. 355.
 
 472 CONFLICT OF LAWS. [CH. VIE. 
 
 it may indifferently indicate the place, where the con- 
 tract is actually made, or that, where it is virtually 
 made according to the intent of the parties, that is, the 
 place of payment or performance.* We have seen, that 
 the rule of the civil law clearly indicates this. Con- 
 tradum aiitem non idiqiie co loco intelUgitiir, quo negotiiim 
 gestum sit ; sed quo solvenda est pecunia.^ Many distin- 
 guished jurists refer to this distinction. Huberus, in 
 the passage already cited, says ; Verum tamcn non ita 
 iw(2cise resjnciendus est locus, in quo contractus es^ initus, ut 
 si p)cirtes alium in contrahendo locum reSpexerint, ille nonpo- 
 iius sit consider andus? Everhardus (as we have seen) 
 says ; Uhi certus locus solutioni faciendce destincdus est, tunc 
 non facta solidione in termino et loco pnefixo mora dicitur 
 contraU in hco destinatce solutionis, et non in loco celebrati 
 contractus. Nimirum, ergo, si inspiciatur valor rei debitoe 
 secundum locum, id)i destinata est solutio. Turn etiam, quia 
 locus cont?^actus, conventio, sive oUigatio, perficitur, scu verha 
 proferurdw. Secundo, uM solutio sen deliheratio destinatur} 
 And he adds: Qida dico,id supra dixi ; quod locus contractus 
 dicitur duolusmodis ; p>rimo,id)i contractus celehratus est ; se- 
 cundo, uhi solutio destinata est.^ And again ; Duplex est locus 
 contractus, id supra dixi, quo casu in tantum censetur con- 
 tractus celehratus in loco destinatce solidionis, quod nidlo modo 
 censetur celehratus in loco, uhi verha fuerimt prolata, quoad 
 ca, qiue veniunt post contractum in esse productumJ' Paul 
 Voet places it in a strong light. JVe tamen hie oriatur 
 
 1 2 Boullenois, Observ, 4G, 446 ; ante, <^ 235. 
 
 2 Dig. Lib. 42, tit. .5, 1. 3 ; Polhier, Pand. Lib. 42, tit. 5, n. 24 ; ante, 
 § 280. 
 
 3 Ante, ^ 239, ^ 281 ; Huber. Lib. 1, tit. 3, ^ 10. 
 
 4 Everhard. Consil. 78, n. 10, 11, p. 205 ; ante, ^ 295. 
 
 5 Everhard. Consil. 78, n. 18. 
 G Id. n. 17 ; Id. n. 20.
 
 CH. VIII.] FOREIGN CONTRACTS. 473 
 
 confusio, locum contractus duplicemfacio ; aliiim, uU fit, de 
 quo jam dictum; aliiim, in quern destinata solutio. Illiid lo- 
 cum verum, Jiunc fictiim appcUat Salicetus} Uterque tamen 
 rectc locus dicitur contnictus, ctiam secundum leges civiles, 
 licet postr emus aliquid fictionis coniineat!^ 
 
 § 299 a. But for what purpose do these foreign ju- 
 rists refer to the distinction ? Is it, that the validity of 
 the same contract is to be at the same time ascertained in 
 part by the law of one country, and in part by that of 
 another? By no means. They nowhere assert, that 
 the validity of the dontract is not to be judged of 
 throughout by one and the same law, that is, by the 
 law of the place, where it is made, or by the law of the 
 place, where it is to be performed, according as, in a 
 just sense, with reference to the nature and objects of 
 the particular contract, the one or the other is properly 
 to be deemed the place of the contract. They no- 
 where assert, that one and the same rule is not to apply 
 throughout to all the stipulations in the contract. That 
 the contract is good, notwithstanding it does not conform 
 either to the law of the place, where it is made, or to 
 that, where it is to be performed. That the contract is 
 to be treated, not as a whole ; but is to be distributed 
 into parts ; so that, if in some of the stipulations it vio- 
 lates the law of each place, it shall still be good through- 
 out, if it does not violate in the whole the law of both 
 places. In many of the passages cited in support of 
 the supposed mixed character, and mixed interpretation, 
 and mixed operation of the contract, these learned ju- 
 
 1 Lib. 1, Cod. tit. 1, Summ. Trinit. n. 4. 
 
 2 Voet, De Stat. ^ 9, ch. 2, ^ 11, p. 270, edit. 1715 ; Id. p. 326, edit. 
 1661. See also 2 BouUenois, Observ. 46, p. 488 ; Boullenois, Quest, sur. 
 Contr. des Lois, p. 330 to p. 338. 
 
 40*
 
 474 CONFLICT OF LAWS. [CH. VIII. 
 
 lists were considering questions of a very diflerent na- 
 ture. Some of them were considering tlie question as to 
 the rule, which is to govern generally in regard to the 
 formalities, solemnities, and modes of execution of con- 
 tracts, where the place of execution is the same place, 
 where it is made; others again were considering the 
 rule, as to the interpretation and extent of the obliga- 
 tion of contracts generally, under the like circumstances; 
 and others again were considering the rule, where the 
 contract is made in one place, and is to be executed in 
 another. We are therefore to understand their language 
 according to the particular occasion, and the particular 
 circumstances, to which it is applied. 
 
 § 300. Let us examine then the particular language, 
 which is used by these jurists, in the passages cited. 
 Thus Alexander is said to use the following passage.^ 
 In scriptura instrumenti, in ceremomis, et solemnitatibus, et 
 generaliter in omnibus, qiice adformam et perfectionem con- 
 tractus pertinent, spectanda est consiietiido regionis, vhi fit 
 negotium. Debet enim servari statiitum loci contractus, 
 cpioad Jiccc, qnce oriuntur secundum naturam ipsius contractus. 
 This language expresses only a general truth, and we 
 have no means of knowino; that the author intended to 
 
 1 I cite the passage from Alexander, (Consil. 37,) as I find it in 20 Mar- 
 tin, R. 22, 23, not having been able to obtain the works of Alexander. 
 But I have some doubt, whether the first part of the passage is not copied 
 by mistake from Burgundus, who uses almost the identical language. 
 Burgundus, Tract. 4, n. 7, p. 104 ; Post, ^ 300 a. I now suspect that 
 the citation is not (as I supposed it was) from Alexander al Alexandro, 
 but by a mistake of the Court in 20 Martin, R. 22, 23, (probably taking 
 it at second hand from some other author,) from Alexander Tartagni Imo- 
 lens (or De Imola) who wrote a large work in 5 and 7 vols, folio, of Con- 
 silia, published Mediol. 1488, 1489. Lipenius in his Bibl. Jurrd. vol. 1, 
 p. 333, refers to this work. 1842. Everhardus in his Consil. 78, in seve- 
 ral seclians refers to Alex, de Imola, Consil. 37, and Consil. 49.
 
 CH. VIII.] FOREIGN CONTEACTS. 475 
 
 speak here of any thing further than the general rule, 
 applicable to all contracts made and to be performed in 
 the same place.^ 
 
 § 300 rt. Burgundus says ; Et qiddcm in scriptura instru- 
 menti, in solemnitaiibus, et cercmoniis, et generaliter in omnir 
 his, quce adformam ej usque perfectionem pertinent, spectanda 
 est eonsuetudo regionis, iibi fit negotiatio. Rationem assignant 
 Doctores quod eonsuetudo influat in eontractus, et convenir 
 cities ad eiim respicere, ac mlmitaicm siiam accommodare 
 videantur. Et rccte? Now we know upon what occa- 
 sion this language was used. Burgundus was here 
 considering the question solely with reference to the 
 point, when a contract is to be deemed lawful, or not ; 
 or in other words, by what law its validity is to be go- 
 verned, lllicita stipulatio est, (says he,) quce legihus est 
 interdida, utputa, si deUtum modum usurarum excedat. Nunc 
 ergo considerandum, ciijus loci ratio haberi deJ)eat? He does 
 not even allude to a case, where the contract is made 
 in one place, and is to be performed in another place. 
 He adds ; Igitiir, id paiicis ahsolvam, quoties de vincido oUi- 
 gationis, vel de ejus interpretatione qucvritur, veluti, qiios ct 
 in quantum ohliget, quid sententiw, stijmlationis inesse, quid 
 ahesse credi oporteat ; item in omnihus actionihus, et amhi- 
 giiitatihus, qum inde oriuntur, primum qiddem id sequcmur, 
 quod inter partes actum crit, ant si non apparet, quid actum 
 est, erit consequens, id id sequamur, cpuod in regione, in qua 
 actum est,frequentatur.^ And he concludes by saying ; 
 
 1 From other passages cited by Everhardus from Alexander de Imola, 
 and Bartolus, and Baldus, it seems clear, that they all consider the locus 
 solutionis to be the proper locus contractus, except so far as regards the 
 solemnities and creation of the contract. (Solemnitatem et subsistentiam 
 contractus.) See Everhard. Consil. 78, n. 20, p. 207 ; Id. n. 24, p. 208. 
 
 2 Burgundus, Tract. 4, n. 7, p. 104 ; ante, ^ 260. 
 
 3 Id. n. 6, p. 104. 
 
 4 Burgundus, Tract. 4, n. 7, p. 105.
 
 476 CONFLICT OF LAWS. [CH. VIII. 
 
 Doctores toties ingermit ea, quw i^espiciiint solemnitatem ac- 
 tus, vel quce tempore coiztractiis ex natiira ipsius adhibentur, 
 onimturqiie, ex more regionis, uhi contr actum est, legem ac- 
 cipere. Ea vera, qiice ad complementum vel executionem 
 contractus spectant vel ahsoluto eo sitpervenmnt, solere a 
 statiito loci dirigi, in quo peragenda est solidio} 
 
 S 300 l. Everhardus says ; Quod quo ad perfectionem 
 contractus seu ad solemnitatem ad esse sen suhstantiam ejus re- 
 qidsitam semper inspicitur statidum seu consuetudo loci cele- 
 hrati contractus. Et est ratio, quia ex quo agitur de con- 
 suetudine contrahendi non mirum, si inspiciatur locus initce 
 conventionis, uhi contractus accejnt perfectionem.^ But he 
 immediately adds ; Sed uhi agitur de consuetudine solven- 
 di, id in casu ])r^senti, (that is, where a contract, made 
 in one place, was payable in another,) vel de his, quce 
 veniunt imp>lcnda diu post contractum, et in alio loco iniple- 
 tioni destinato, tunc inspicitur locus destinatce solutionis. 
 Now, this latter passage would seem as strictly to ap- 
 ply to the case of payment of interest, as to the case of 
 payment of principal. If the parties have not stipu- 
 lated for a particular rate of interest, the usage of the 
 place of payment ought constantly to govern. If they 
 have stipulated for a particular rate of interest, incon- 
 sistent with that of the Lex loci solutionis, the question 
 will still remain, whether it can lawfully be done. Ev- 
 erhardus has not here discussed it -, far less has he de- 
 cided it. And he cites Baldus in support of his opi- 
 nion, as saying ; Quod in cxpeditivis contractus non inspi- 
 ciuntur ordincdivi contractus, sed locus solutionis.^ He af- 
 
 1 Id. n. 29, p. 116. See also Id. n. 10, p. 109 ; ante, § 292 a, § 293 e. i 
 
 2 Everhard. Consil. 78, n. 11, p. 206 ; Id. n. 18, p. 207 ; Id. n. 27, p. 209. ' 
 
 3 Everhard. Consil. 78, n. 11, p. 206 ; Id. n. 17, p. 207; Id. n. 27, p. 
 209.
 
 CH. viil] foreign contracts. 477 
 
 terwards adds, that this rule, in regard to the forms and 
 solemnities, required in order to create and perfect any 
 contract, equally applies to cases, where the perform- 
 ance is to be in the same place, and where it is to be 
 in another place. Uhi vera m wio loco cclchmtus est coiir 
 tradus, ct in alio loco destinata est solidio, tunc quoad ca, 
 qiice concermint solemnitatem actus, item ad esse et perfec- 
 tionem contractus, inspicitur consuctudo loci celebrati contrac' 
 tus, TJnde si ex statuto loci contractus reqidratur certa so- 
 leuinitas in ipso contractu, &c., tale statutum vel consuetudo 
 del^et ohservari, licet in loco destinatw solutionis non sit si^ 
 mile statutum} How far this latter doctrine is correct 
 and maintainable, as a general rule, we have already 
 had occasion, in some measure, to consider.^ It is not 
 material to the present discussion, which turns upon 
 another point, that is, whether the validity of a contract 
 may depend partly upon the law of one place, and 
 partly on the law of another place, some of its stipula- 
 tions being contrary to the law of each place. 
 
 § 300 c. Christinseus expressly professes to follow the 
 doctrine of Everhardus on this subject. Consuetudo loci, 
 (says he,) uhi contraJdtur spectanda est, scilicet quoad ohser- 
 vantiam solemnitatum ipsius actus. Generaliter enim in om- 
 nibus, quce adformam ej usque perfectionem pertinent, spec- 
 tanda est consuetudo regionis uhi fit negotiatio, quia consue- 
 tudo infiuit in contractus, et videtur ad eos respicere, et vo- 
 luntatem suam eis accommodare. Idquh recti. Conditio 
 quoque loci et temporis perfectionem formce etiam respicit, ct 
 idcirco a regione contractus vicissim diriguntur.^ He adds ; 
 Sed quoad ejus executionem, utpote quoad solutionem facien- 
 
 1 Id. n. 18, p. 207. 
 
 2 Ante, ^ 280. 
 
 3 Christin. Decis. 283, Vol. 1, n. 1, 4, 5, 9, 10, 11, p. 255.
 
 478 CONFLICT OF LAWS. [CH. VIII. 
 
 danif inspicienda venit consuetudo destinatce solutionis} And 
 again ; Quoad ea, quae celebrato contractu veniimt facienda, 
 impicitur consuetudo loci, iibi ea dehent fieri, puta, tradi, 
 solvit 
 
 § 300 d. Gregorio Lopez states only the general doc- 
 trine. Quando contractus celebratur in uno loco, puta in 
 Hispali, et destinata solutio in Cordiibce ; tunc non inspicitur 
 locus contractus, sed locus destinatce solutionis ; ut hahetur 
 in ista Lege ff. I. contraxisse? Dumoulin (Molinseus) 
 says ; In concernentiI)us contractum, et emergentihus tempoH 
 contractus, spectatur locus, in quo contraUtur, et in concer- 
 neniibus meram solemnitatem, cujus actus, locus, in cpio ille 
 actus celebratur} In another place he says ; Aut statu- 
 turn loquitur de his, quce concernunt nudam ordinationem et 
 solemnitatem actus ; et semper inspicitur statutum vel consue- 
 tudo loci, tibi actus celebratur, sive in contractibus, sive in 
 jiidiciis, sive in testamentis, sive in instrumentis aut aliis con- 
 ficiendis. Aut statutum loquitur de his, quce meritum scilicet 
 causce, vel decisionem concernunt ; et tunc, aut in his, quce 
 pendent a voluntate partium, vel per eas immutaii possunt, 
 et tunc insjnciuntur circwnstantice, voluntatis, quarum una 
 est statutum hci, in quo contraUtur ; et domicilii contrahen- 
 tium antiqui vel recentis, et similes circumstantiw.^ In an- 
 other passage he finds fault with those who exclusively 
 look to the place where the contract is made in all cases. 
 Quia putant nuditcr ct indistincte quod debeat ibi hispid lo- 
 cus et consuetudo, uU fit contractus, et sic jus in loco con- 
 
 1 Id. n. 8, 9, p. 355. 
 
 2 Id. n. 10, II, p. 355. 
 
 3 20 Martin, R. 9, 17 ; ante, ^ 233 ; Dig. Lib. 44, tit. 7, 1. 21. 
 
 4 Dumoulin, cited in 20 Martin, R. 24 ; Molin. Coram, ad Consuet. 
 Paris, tit. 1, ^ 12, gloss. 7, n. 37, Tom. 1, p. 224, edit. 1681 ; 2 Boulle- 
 nois, Observ. 46, p. 472. 
 
 5 Molinaeus, Coram, in Cod. Lib. 1, tit. 1, Tom. 3, p. 554, edit. 1681.
 
 CH. VIII.] FOREIGN CONTRACTS. 479 
 
 tractus} Quod est falsum ; quinimo jus est it taeita et 
 verisimiUter mente contrahentium. He adds; Quia qids 
 ccnsctw jwfius contrahcre in loco, in quo debet solvere, quam 
 in toco, iiU fortidto tmnsicns contmxit? It is plain, that 
 these passages do not justify the inference sought to be 
 adduced from them. They import no more, than that 
 the law, which is to govern contracts, is not, in all cases, 
 to be exclusively the law of the place, where they are 
 made. 
 
 § 300 e. Boullenois is also relied on in support of the 
 doctrine. In one of the passages cited he says ; When 
 the question is, whether, in contracts upon any subject, 
 the rights which spring from the nature and time of the 
 contract, {iicdura et temjjore contractus,) are lawful or not, 
 it is necessary to follow the law of the place, where the 
 contract is made.^ And in another passage, he says ; 
 When the question is, to determine the lawfulness of a 
 rate of rent, or annuity, (taux de rentes^ and in the 
 place where the contract is made, the rate is different 
 from that, which is to be paid, either in the country of 
 the domicil of the debtor, or in that of the domicil of 
 the creditor ; or finally, in the place where the property 
 hypothecated is situated ; the rate will be adjudged 
 lawful, if it conforms to the law of the place, where the 
 contract is made."* The context shows that Boullenois 
 was only contemplating the case, where the contract 
 was made in the place of its intended performance. For 
 he adds ; This is the provision of the law of the Digest 
 (De Usuris,) where it is declared ; Cum judicio home 
 
 1 Ibid. 
 
 2 Ibid. 
 
 3 2 Boullenois, Observ. 46, p. 472. 
 ■• 2 Boullenois, Observ, 46, p. 472.
 
 480 CONFLICT OF LAWS. [CH. VIIL 
 
 fidd disceptatur, arlitrio jiidicis usiiranim modus ex more 
 regionis, uU contractum est, consiituUiir ; ita tamen, ut legi 
 non offendat ; ' and I believe it takes place whenever 
 the parties designedly contract in one place, rather than 
 another.^ The true meaning of Boullenois, in this cita- 
 tion, may be gathered from his own interpretation of 
 the law of the Digest in another page, where he cites, 
 with approbation, the opinion of Gothofredus, that the 
 words " TJU contractum " ought to be understood to mean 
 the place where the payment ought to be made.^ Hoec 
 verla, '^ Tfbi contractum est" sic intellige, id)i actum est, id 
 solveret} 
 
 § 301. Bartolus has discussed the question somewhat 
 at large, how far the law of the place of the contract 
 is obligatory upon foreigners, and what effects the laws 
 of the place of the contract have beyond the territory. 
 And first, (he says,) let us suppose a contract made by 
 a foreigner in one place, and afterwards a suit is liti- 
 gated thereon in another place, that of the origin of the 
 contracting party ; of which place ought the laws to 
 be observed and followed in deciding it ? He says, we 
 should make a distinction. Either we speak of the 
 statute or custom which respects the solemnities of the 
 contract, or of the process and proceedings in the suit, 
 or of those things which appertain to the jurisdiction 
 in the execution of the contract. In the first case, we 
 are to look to the law of the place of the contract ; in 
 the second case, (as to the process and proceedings in 
 
 1 Dig. Lib. 22, tit. 1, 1. 1 ; Pothier, Pand. Lib. 22, tit. 1, n. 52 ; ante, 
 §296. 
 
 2 2 BouUenois, Observ. 46, p. 472 ; Id. p. 446. 
 
 3 Id. p. 446. 
 
 4 Golhofred. n. 10, ad Dig. Lib. 22, tit. 1, 1. L
 
 CH. VIIT.] FOREIGN CONTRACTS. 481 
 
 the suit,) to the place of the judgment.^ Or else, we 
 speak respecting those things which belong to the de- 
 cision of the cause ; and then the question is as to 
 those things which arise from the very nature of the 
 contract itself in its origin, or as to those things, which 
 arise afterwards on account of negligence or delay. 
 In the first case, the law of the place of the contract is 
 to be looked to, that is, the place where the contract is 
 made, and not where it is performed. In the second 
 case, either the payment is to be made in a fixed place, 
 or alternately in several places, so that the plaintiff has 
 his election ; or it is to be made in no particular place, 
 because the promise is simply made. In the first case, 
 the custom of the place is to be looked to, in which 
 the payment is to be made. In the second and third 
 cases, the place is to be looked to, where the suit is 
 brought. His language is ; Et primo, utrum statidum 
 iwrrigcdur extra territormn ad non subditos ; secimdo, 
 utnmi effectm statuti porrigatur extra territorium statuenti- 
 um. Et primo, qiiwro, quod de contractihiis. Pone con- 
 tractum celehratmn per aUqiiem forensem in hac civitate ; 
 litigium ortum est, et agitatur lis in loco originis contrahen- 
 tis, cujus loci statuta dchent scrvari et spectan. Distingue. 
 Ant loquinutr de statuto, aut de consuetiidine,quw respiciunt ip- 
 sius contractus solemnitatem, aut litis ordinationein, aut de his, 
 quce pertinent ad jurisdictionem ex ipso contractu evenientis 
 execiitionis. Primo casu, inspicitur locus contractus. JSe- 
 cundo casu, aut quceris de Ms, qum pertinent ad litis ordincu- 
 tionem, aut de his, quce pertinent ad litis ordinationeni ; et 
 inspicitur locus judicii. Aut de his, qiice fjertincnt ad ipsi- 
 
 ^ Everhardus manifestly understands Bartolus to speak with reference 
 to contracts, where payment is to be made in loco celebrati contractus. 
 Everhard. Consil. 78, n. 2G, 27, p. 208. 
 CONFL. 41
 
 482 CONFLICT OF LAWS. [CH. VIIL 
 
 lis litis decisionem ; et tunc, aid de his, quw oniintur secun- 
 dum ijpsius contractus naturam tempore contractus, aid de 
 his, quce oriuntur ex post facto pro'ptcr negligentiam,vel mo- 
 ram. Primo casii, rnspicitur locus contractus, ithi est cele- 
 hratus contractus ; et intelligo locum contractus, id)i est cele- 
 hratus contractus non de loco, in qucni collata est solutio, 
 Secundo casti, aid solidio est collata in locum certiim, aid in 
 plurihus locis alternative, ita quod electio sit actoris ; ant in 
 mdliun locum, quia promissio fuit facta simplicitcr. Primo 
 casu inspicitur consuetudo, quce est in illo loco, in quern est 
 collata solutio ; secundo et tertio casu, inspicitur locus, ubi 
 petitur. Ratio prcedictorum est, quia ibi est contracta neg- 
 ligentia vel mora} Now taking this whole passage to- 
 gether, it is difficult to misunderstand the meaning of 
 Bartolus. It is plain, that he did not intend to repu- 
 diate the common distinction, as to the Lex loci contrac- 
 tus and the Lex loci solutionis. He gives full effect to 
 the latter, where a fixed place is prescribed for pay- 
 ment ; and whether he is right or not, that where no 
 place of payment is named, the payment is to be made 
 according to the law of the place where it is demanded 
 by the promisee • he goes no farther than to assert the 
 general proposition, that the law of the place where the 
 contract is made, is to govern in respect to its solemni- 
 ties, and that the law of the place of payment is to be 
 regarded in cases of payment." He does not at all 
 discuss the point which we have now under considera- 
 tion. 
 
 § 301 a. These are the principal passages adduced 
 
 1 Bartolus, ad Cod. Lib. 1, tit. 1, I. 1, n. 14, 15, 16, Tom. 7, p. 4, edit. 
 1602. 
 
 2 Bartolus, ad Cod. Lib. 1, tit. 1, 1. 1, n. 14, 15, 16, edit. 1602. See 
 Vidal V. Thompson, 11 Martin, R. 23.
 
 Cn. VIII.] FOREIGN CONTRACTS. 483 
 
 from foreign jurists, as authorities in support of the 
 doctrine, that a contract is, or may be valid, notwith- 
 standing it does not in its entirety conform, either to 
 the law of the place w^here the contract is made, or to 
 that of the place where it is to be performed. Now, in 
 the first place it is manifest, that many of these jurists, 
 in the passages cited, speak exclusively as to the for- 
 malities and solemnities, and modes of execution of 
 contracts ; and they hold, that in these respects they 
 must conform to the law of the place where they are 
 made. Some of them make no distinction in the ap- 
 plication of this rule, between cases of contracts to be 
 performed in foreign places, and cases of contracts to 
 be performed in the place where they are made. And, 
 perhaps, the generality of language used by most of 
 them, even when they do not refer to this distinction, 
 may be fairly applied, indifferently, to both classes of 
 cases. But several, and, indeed, most of them do ex- 
 pressly and directly recognize the rule, that, where the 
 contract is made in one place, and is to be performed 
 in another, not only may the law of the latter be pro- 
 perly called the locus contractus ; but that it ought in 
 all respects, except as to the formalities, and solemni- 
 ties, and modes of execution, to be deemed the rule to 
 govern such cases. 
 
 § 301 J). In the next place, when these foreign jurists 
 speak of payment or performance, they all agree, that 
 the contract must be governed by the law of the place 
 of payment or performance, and not by the law of the 
 place where the contract is made. How, then, are we 
 to distinguish between different parts of the payment ? 
 If principal and interest are both to be paid in a foreign 
 place, how can the law of that place govern, as to the 
 one, and not as to the other ? As these jurists make
 
 484 CONFLICT OF LAWS. [CH. "VIIL 
 
 no distinction in respect to the payment of principal, 
 and that of interest, but say generally, that the pay- 
 ment must be according to the law of the place where 
 the payment is to be made, it is certainly a reasonable 
 inference, that they did not intend to make any excep- 
 tion whatsoever, but deemed both the principal and the 
 interest governed by the same rule. Indeed, it will be 
 found exceedingly difficult to maintain any distinction 
 between them, which is not purely artificial and arbi- 
 trary ; for interest is but an incident" or accessory to 
 principal. 
 
 § 301 c. But we need not rest entirely on the silence 
 of foreign jurists in these passages; for the subject of 
 interest will be found to be expressly treated by some 
 of them ; and, therefore, if any exception was intend- 
 ed by them, there, the exception would naturally have 
 found its appropriate place. The omission of any ex- 
 ception becomes, under such circumstances, peculiarly 
 significant. Let us, therefore, review, in this connec- 
 tion, some of the passages in which the subject of 
 interest is expressly or impliedly discussed. 
 
 § 301 d. Everhardus says ; Aiit qiicerimus, qids locus 
 insjnciaiiir, quoad accessoria, idjmta expensas et damna de 
 jure canonicOy d iisu?ris de jure civili, si minores vel leviores 
 sunt in iino loco, quam in alio, et similiter ; cerium est, quod 
 inspicitur locus destinatco solutionis; nedum quoad princi- 
 palem oUigationem, scd etiam quoad accessoria} And he 
 insists, that the leading jurists, whom he quotes, hold 
 the same opinion. This language would seem to be as 
 direct as possible to the present inquiry ; and it affirms 
 that the Lex loci solutionis must govern, as well as to 
 
 1 Everhard. Consil. 78, n. 24, p. 208 ; Id. n. 27, 28, 29, p. 208, 209.
 
 CH. VIII.] FOREIGN CONTRACTS. 485 
 
 the interest, as to the principal, the former being merely 
 accessorial to the latter. It is no answer to suggest, 
 that he meant to speak of interest ex mora, or interest, 
 not expressly provided for ; because there is no such 
 qualification in his language, and it is positive, as well 
 as general, as to the accessorial rights, under all circum- 
 stances. 
 
 § 301 <?. Christinseus avows the same doctrine, Sic 
 etiam mspicilur statutiim loci desiinatce solutionis, si agatur 
 de extinctione actionis per 'prccscriijlionem statiiriam vigen- 
 tern in iino loco, et non in alio. Item si agatur de accesso- 
 riis, tit de expensis, damnis et interesse, aut deniqiie usuris, 
 si majores vcl minores sint in iino loco, quam in alio} 
 
 § 301/. Paul Voet may fairly be deemed to hold 
 the same opinion. After having said, in the passage 
 already cited, that there may be a double place of the 
 contract, one where it is made, and the other, where it 
 is to be paid or performed, he immediately adds ; Hinc 
 ratione effedus, et complemcnti ipsius contractus, spectatur 
 ille locus, in quern destinata est solutio, id, quod ad modum, 
 mensuram, usuras, etc., negligentiam et moram post cofitrac- 
 tum initiim accedentem referendum est ;'^ and he then 
 refers to several authorities in support of this opinion. 
 It seems plain from this language, in this connection, 
 that, as to interest, he deemed the true law, by which 
 the legality of the contract was to be adjudged, was 
 the law of the place of payment. 
 
 § 302. In one passage, Burgundus says, that interest 
 is to be allowed according to the place of the contract ; 
 and that, if the question comes under consideration in 
 
 1 Christin. Decis. 283, n. 12, 13, Vol. 1, p. 355. 
 
 2 P. Voet, de Statut. '^i 9, ch. 2, n. 12, p. 270, edit. 1715 ; Id. p. 326, 
 edit. IGfil ; ante, ^ 281. 
 
 41*
 
 486 CONFLICT OF LAWS. [CH. VIII. 
 
 a foreign court, the interest stipulated, though higher 
 than what is lawful by the Lex fori, ought to be allowed. 
 But, where no interest is stipulated, there, the interest 
 is to be ex mora, according to the law of the place of 
 payment.^ His language is ; Quare et imirarmn modus 
 is co7istituendus est, qui in regione, in qua est coniractum, 
 legitime celebratiir. Et cum redditus duodenarius in Gallia 
 siipidatiis, in controversiam incidisset, patrocinante me, jiidi- 
 catum est, in Curia Flandrice, valere pactum ; nee olesse, 
 quod in Flandria, uhi redditus consiitidus, sive Jigpothecce 
 impositiis proponeretur, usara semisse graviores stipidari 
 nofi liceat. Quia ratio liypotliecce non lidbetur, quw hac in 
 re nihil conferens ad siibstantiam ohligationis, tantum extrin- 
 seciis accedit legitirnce stipulationi. Sed, hoc intelUge de 
 iisuris in stipulationem deductis, non autem de iis, qiice ex 
 mora delentw, in quihus ad locum solutionis {lit docemus 
 postea) respicere oportet? Now, if such be the rule, 
 where the contract is made in France, and to be per- 
 formed there, the converse would seem equally to be 
 correct, if the contract had been made in France to be 
 performed in Flanders ; that the contract would be void 
 for usury as against the law of the latter. In another 
 place he says ; Idem ergo de solutionihus dicendum, sci- 
 licet, lit in omnibus, quw ex ed sunt, aiit hide oriuntur, aid 
 circa illam consistunt, ant aliquo modo affinia sunt, consue- 
 tudinis loci spectemus, uhi eamdem implcre convenit? He 
 adds ; Itaque ex soluiione sunt solemnia, valor rei dehitw, 
 pretium monctce ; ex solutione oriuntur prcestatio apochw, 
 
 1 20 Martin, R. 28 ; Burgundus, Tract. 4, n. 10, p. 100. See also 
 Vidal V. Thompson, 11 Martin, R. 23. 
 
 2 Burgundus, Tract. 4, n. 10, p. 109. 
 
 3 Burgundus, Tract. 4, n. 25, 26, p. 114, 115; Id. n. 10, p. 109; 
 2 Boullenois, Observ. 46, p. 488, 498 ; ante, \ 293 e.
 
 CH. VIII.] FOREIGN CONTRACTS. 487 
 
 mii/igra'phce, similiaque ; circa soliitionem consistiint fon- 
 der a, menmrm honitas expensw, mora, damna, inter esse, 
 usura ex mora dehitce, et ejusmodi} And he concludes 
 by stating the reason of the doctrine, as given by all 
 jurists. Railonem mutuantur a Juris Consulfis, qui imuni- 
 qiiemqiie imlt in eo loco contraxisse intcHigi, in quo, lit sol- 
 veret, sc obligavit.^ So that, if this language is to be 
 interpreted in its broad sense, the interest must, in all 
 cases, be according to the law of the place of perform- 
 ance.^ Burgundus's opinion may, perhaps, by some 
 persons be thought of less value, however, because he 
 applies the like rule to prescriptions. Affinia solutioni 
 sunt prwscriptio, ohlatio rei delitw, consignatio, novatio, 
 delcgatio, et ejiismodi^ 
 
 § 303. Boullenois has nowhere, to my knowledge, 
 directly and positively treated the question, whether 
 the interest may be stipulated for according to the 
 place of the contract, when payment is to be made in 
 another place where it would be illegal. The citations 
 already referred to,^ which are supposed to countenance 
 the affirmative, put the case only of a rate of interest, 
 or of an annuity, good by the law of the place of the 
 contract, (and for aught that appears, payable there,) 
 and hold, that it will be good, although different from 
 the law of the domicil of the creditor, or debtor, or even 
 from the law of the place, where the property, pledged 
 for security, is situate.^ There is, however, a passage, 
 
 1 Burgundus, Tract. 4, n. 27, p. 115. 
 
 2 Id. n. 29, p. 116. 
 
 3 LI. n. 10, p. 109 ; ante, ^ 293 a. 
 
 4 Burgundus, Tract. 4, n. 28, p. 110; 2 Boullenois, Observ. 40, p, 488, 
 498; ante, ^ 300 e. 
 
 5 Ante, ^ 300 e. 
 
 *> 2 Boullenois, Observ. 40, p. 472, 473.
 
 488 CONFLICT OF LAWS. [CH. VIII. 
 
 which seems to indicate, although not directly, an 
 opinion of Boullenois in the negative. After referring 
 to, and approving the doctrine of Gothofredus, that 
 interest is to be according to the law of the place of 
 payment, he adds, that it is in this sense, that Gotho- 
 fredus is to be understood, in what he says of the Law, 
 20. of the title of the Digest de Jurisdictione^ where he 
 supposes a Parisian, who has contracted at Rome {De- 
 nnis Ronice conir actum esse ;) and inquires, whether the 
 Parisian, if sued at Paris, shall be condemned to pay 
 the interest prescribed by the law of Rome for the de- 
 lay ; and he answers in the affirmative, saying ; Id vide- 
 tur. Contractus enim istiiis initium viiio caret. Boullenois 
 says, that this decision is very just in effect, if we sup- 
 pose, that the Parisian has not only made the contract 
 at Rome, but also has promised to pay at Rome.^ The 
 natural inference certainly would be, that if he ex- 
 pressly agreed to pay interest, that he should pay 
 according to the rate of interest at the place of pay- 
 ment. 
 
 § 304. It may then be affirmed with some confidence, 
 that the foreign jurists, who have been relied on, do 
 not establish th ' asserted doctrine. On the other hand 
 there are othei' foreign jurists, whose doctrines lead to 
 an opposite conclusion. Thus, John Voet says, if a sti- 
 pulation for a high interest is allowed in one place, and 
 in another, it is prohibited, the law of the place, where 
 the contract is made, is to decide, whether it is good, or 
 whether it exceeds that, which is allowable. Neverthe- 
 less, we must remember, that, in point of law, that is 
 not properly to be deemed the place of the contract, 
 
 1 Dig. Lib. 2, tit. 1, 1. 20 ; Gothofred. n. 37. 
 
 2 2 Boullenois, Observ. 46, p. 446.
 
 CH. viil] foreign contracts. 489 
 
 where the business is transacted, but where the money 
 is by the contract to be paid. But good faith must 
 also be observed ; and the place of the contract, where 
 higher interest is allowed, must not be sought for the 
 purpose of evading the law. Pie adds ; that an hypo- 
 thecation of property, as security, situated in another 
 place, where the interest is lower, will not vary the 
 rule ; for the security will be treated as merely accesso- 
 rial. And it is more equitable, that the accessorial con- 
 tract should be governed by the law of the place, where 
 the principal contract is made, than, on the contrary, 
 that the principal contract should be governed by the 
 law of the place, in which the accessorial contract is 
 made.^ 
 
 1 Voet, ad Pand. Lib. 22, tit. 1, ^ G, Tom. 1, p. 938 ; Id. Lib. 4, tit. 1, 
 § 29, Tom. 1, p. 241 ; ante, ^ 293 d. I have given the sense, although 
 not a precisely literal translation of the passage. The words are ; Si alio 
 in loco graviorum usurarum stipulatio permissa, in alio vetita sit, lex loci, 
 in quo contractus celebratus est, spectanda videtur in qufEstione, anmode- 
 ralae, an vero modum excedentes usurae per conventionem constitute sint. 
 Dummodo meminerinuis, ilium proprie locum contractus in jure non intel- 
 ligi, in quo negoiium gestum est, sed in quo pecuniam, u. solvevet, se quis 
 obligavit. Modo etiam bona fide omnio gesta fuerint, nee consuho talis 
 ad mutuum contrahendum locus electus sit, in quo graviores usurse, quam 
 in loco, in quo alios contrahendum fuisset, probatse c nvenientur. Etiamsi 
 de csEtero hypotheca in sortis et usurarum securifitem obligata, in alio 
 loco sita sit, ubi solas leviores usurae permissas ; cum asquius sit, contrac- 
 tum accessorium regi ex loco principalis negotii gesti, quam ex opposite 
 contractum principalem regi lege loci, in quo accessorius contractus cele- 
 bratur. It appears to me, that the first part of the passage has been mis- 
 understood, or at least mistranslated, in Depau v. Humphreys, 20 Martin, 
 II. 32. The reasoning of the Court upon the passage will here be given, 
 in justice to that learned tribunal. " The authority of the passage," says 
 Martin, J. in delivering the opinion of the Court, " from Voet remains to 
 be examined. This author says; Si alio in loco graviarum usurarum sti- 
 pulatio permissa, in alio vetita sit, lex loci, ubi contractus celebratus est, 
 spectanda videtur, an moderatae, an vero modum excedentes usuraj, per 
 conventionem slipulata) sint. If in a place, the stipulation of higher inte- 
 rest be permitted, in another forbidden, the law of the place, in which the
 
 490 CONFLICT OF LAWS. [CH. YIIL 
 
 § 304 «. If to this doctrine, thus maintained by John 
 Voet, (himself an author of distinguished weight and 
 
 contract was celebrated, is to be resorted to, in order to ascertain, whether 
 the lesser or the greater rate of interest be stipulated by the contract. 
 Thus far Voet teaches what we have seen Alexander, Bartolus, Burgun- 
 dus, Everhard, Strykius, and Boullenois teach, and the contrary, of which 
 no other commentator positively asserts ; what, in our opinion, every 
 sound principle of law dictates. But the appellant's counsel urges, that 
 Voet, unsays, in the succeeding paragraph, what he appears to have so 
 emphatically expressed. The words of the second paragraph are ; Dum- 
 modo meminerimus ilium proprie locum contractus, in jure non intelligi, 
 in quo negotium gestum est, sed in quo, ut pecuniam solvere!, se obligavit. 
 In the argument, which the appellee's counsel draws, in this respect, he 
 is fully supported, by what is said, arguendo, by Lord Mansfield, in Robin- 
 son V. Bland, and in some degree, by Judge Kent, in the same manner, in 
 the case of Van Schaick v. Edwards, already cited. In endeavoring to 
 ascertain the character of the rate of interest, stipulated in a note given in 
 Massachusetts, Judge Kent says ; ' Had the money, for instance, in this 
 case been made payable at Albany, or elsewhere in this State (New York,) 
 then perhaps the decision in Robinson v. Bland, would have applied. If, 
 in the second paragraph, Voet meant to introduce an exception to the rule 
 laid down in the first ; if he meant to teach, that the legality of a rate of 
 conventional interest, arising not ex mora, but tempore contractus, is ex- 
 clusively to be tested by the law loci solutionis, even when it is different 
 from the law loci celebrati contractus ; then, we cannot consider him as 
 affording to us a legitimate rule of decision in the present case ; because the 
 weight of his authority is borne down by that of a crowd of the most respect- 
 able commentators of the law he cites. Perhaps, he must be understood, 
 in the second paragraph, to convey to the student a warning, that by what 
 he teaches in the first, he must not be understood to impugn the proposi- 
 tion, that, in a great degree, the law loci solutionis, influences the obliga- 
 tion of the party, who bound himself, ut solveret pecuniam. Upon the 
 whole, we must conclude, as we did in Norris v. Eves, and Videl v. 
 Thompson, that contracts are governed by the law of the country, in which 
 they were made, in every thing which relates to the mode of construing 
 them, the meaning to be attached to the expressions, by which the parties 
 bound themselves, and the nature and validity of the engagement. But 
 that, wherever the obligation be contracted, the performance must be ac- 
 cording to the law of the place where it is to take place. In other words, 
 that in a note executed here, on a loan of money made here, the creditor 
 may stipulate for the legal rate of conventional interest authorized by our 
 law, ahhough such a rate be disallowed in the place, at which payment is 
 to be made.' " If I am right in the remarks in the text, it will be found,
 
 CH. viil] foreign contracts. 491 
 
 ability,) we add the concurrent testimony of Huberus, 
 Everhardus, Christinfeus, and Paul Voet, already cited/ 
 on the same side, and the entire absence of any direct 
 and absolute authority to the contrary, it is not perhaps 
 too much to affirm, that the decision already alluded to 
 of the Supreme Court of Louisiana,^ is not supported 
 by the reasoning or the principles of foreign jurists.^ 
 It is certainly also at variance with the doctrine main- 
 tained by Lord Mansfield, and the Judges of the King's 
 Bench, in a highly interesting case, (although not posi- 
 tively necessary to the judgment then pronounced,) 
 that the law of the place of payment, or performance, 
 constitutes the true test, by which to ascertain the 
 validity or invalidity of contracts.'* And finally, in a 
 very recent case the Supreme Court of the United 
 States have adopted the doctrine, that, where a contract 
 is made in one place, to be executed in another, it is to 
 be governed, as to usury, by the law of the place of 
 performance, and not by the law of the place where it 
 is made. So, that if the transaction is lond fide, and 
 not with intent to evade the law against usury, and the 
 law of the place of performance allows a higher rate of 
 interest than that permitted at the place of the contract, 
 the parties may lawfully stipulate for the higher in- 
 terest.5 But, then the transaction must be hond fide, 
 
 that the authorities cited by the learned Judge by no means justify the 
 judgment. See Bouhier, Cout. de Bourgogne, Vol. 1, ch. 21, p. 313; 
 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 773, 774, 775. 
 
 1 Ante, ^ 299, 300 b, ^ 300 c. 
 
 2 Depau V. Humphreys, 20 Martin, R. 1. 
 
 ^ See the late case of Carnegie v. Morrison, 2 Mete. R. 391. Curtis, 
 arguendo. 
 
 4 Robinson v. Bland, 2 Burr. 1077. See also Van Schaick v. Edwards, 
 2 Johns. Cas. 355. 
 
 5 Andrews v. Pond, 13 Peters, R. G5, 77, 78.
 
 492 CONFLICT OF LAWS. [CH. VIIL 
 
 and not intended as a mere cover of usury.^ Bohier, 
 indeed, thinks that every contract of this sort would 
 ahnost from its very terms and nature import a design 
 to evade the laws, and to cover usury. But he mani- 
 festly presses the presumption far beyond its legitimate 
 application ; for the circumstances of the case may often 
 establish, that the contract is perfectly innocent and 
 praiseworthy. 
 
 § 305. It has been said, that, if the principle be, that 
 a contract, valid in the place where the contract is cele- 
 brated, is void, if it is contrary to the law of the place 
 of payment, it must establish the converse proposition, 
 that a contract, void by the law of the place where it 
 is made, is valid, if good by the law of the place of 
 payment.^ This would seem to be reasonable ; and the 
 doctrine is supported by the modern cases, notwith- 
 standing the old cases have been supposed to lead to a 
 contrary conclusion. In one case,^ a bond was executed 
 in Ireland for a debt contracted in England ; and be* 
 cause it constituted a security on lands in Ireland, Lord 
 Chancellor Hardwicke held, that it was valid, although 
 it bore the Irish interest of seven per cent. But he 
 thought it would have been otherwise if it had beeu a 
 simple contract debt ; or if the bond had been executed 
 in England.^ Mr. Chancellor Kent has correctly laid 
 down the modern doctrine ; and he is fully borne out 
 by the authorities. " The law of the place," says he, 
 " where the contract is made, is to determine the rate 
 
 ' Bouhier, Cout. de Bourgr. Vol. 1, ch. 21, p. 413. 
 
 2 Depau V. Humphreys, 20 Marliii, R. 1, 30. 
 
 3 Connor v. Bellamont, 2 Atk. R. 381. 
 
 * Stapleton v. Conway, 3 Alk. R. 727 ; S. C. 1 Ves. R. 427. See 
 Dewaru. Span, 3 T. R. 425.
 
 CH. VIII.] FOREIGN CONTRACTS. 493 
 
 of interest, when the contract specifically gives interest; 
 and this will be the case, though the loan be secured by 
 a mortgage on lands in another State, unless there be 
 circumstances to show, that the parties had in view the 
 law of the latter place in respect to interest. When 
 that is the case, the rate of interest of the place of pay- 
 ment is to govern." ^ 
 
 § 30G. But it has been asked, if this be the esta- 
 blished doctrine, of what use is it for any legislature to 
 pass a law for the protection of the weak and neces- 
 sitous ? ^ And the case of minors has been mentioned, 
 as exhibiting the inconvenience of the principle. But 
 we have already seen, that minors in one country may 
 lawfully contract in another, in which they are deemed 
 of age.^ The true answer to all such suggestions is, 
 that no country can give to its own laws any extra- 
 territorial authority, so as to bind other nations. If it 
 undertakes to legislate in regard to acts done, or con- 
 tracts performed elsewhere, it can claim for its own 
 laws no other validity, than such as the comity of other 
 nations may choose to allow towards them. It may, if 
 it chooses, deem all such acts and contracts valid, or 
 invalid, according to its own laws ; but it cannot im- 
 pose a like obligation on other nations, so to treat 
 them. The repose and common interest of all nations, 
 therefore, require each to observe towards all others the 
 principles of reciprocal justice and comity ; and these. 
 
 1 2 Kent, Coram. Lect. 39, p. 460, 461, 3d edit. ; D'Wolf u. Johnson, 
 10 Wheaton, R. 367 ; Scofield v. Day, 20 Johns. 103; Thompson v. 
 Powles, 2 Simons, R. 194 ; Robinson v. Bland, 2 Burr. 1077 ; Boyce v. 
 Edwards, 4 Peters, R. 111. But see Chapman v. Robertson, 6 Paige, R. 
 627, 630. 
 
 2 Depau V. Humphreys, 20 Martin, R. 1, 30. 
 
 3 Saul V. His Creditors, 17 Martin, R. 596, 597 ; ante, '^i 82. 
 
 CONFL. 43
 
 494 CONFLICT OF LAWS. [CH. VIII. 
 
 as we have seen, are best subserved by tbe adoption of 
 the general rule, that the law of the place of the con- 
 tract and payment shall govern.^ 
 
 § 307. Analogous to the rule respecting interest, 
 would seem to be the rule of damages in cases of con- 
 tract, where damages are to be recovered for a breach 
 thereof ex mora,, or where the right to damages arises 
 ex delicto, from some wrong, or injury done to personal 
 property. Thus, if a ship should be illegally or tortiously 
 converted in the East Indies by a party, the interest 
 there will be allowed by way of damages in a suit 
 against him.^ So, the rate of damages on a dishonored 
 bill of exchange will be according to the Lex loci con- 
 tractus of the particular party .^ So if a bill of exchange 
 be made in one State and indorsed in another State, 
 and again indorsed by a second indorser in a third 
 State, the rate of damages upon the dishonor of the bill 
 will be against each party according to the law of the 
 place, where his own contract had its origin, either by 
 making, or by indorsing the bill.^ So, if a note, made 
 in a foreign country, is for the payment of a certain 
 sum in sugar, and by the custom of that place, the like 
 notes are payable in sugar at a valuation, the law of 
 the place is to govern in assessing the damages for a 
 breach thereof.^ 
 
 § 308. Where a contract is made in one country, and 
 
 1 Ante, ^ 242, 280. 
 
 2 Ekins I'. East India Company, 1 P. Will. 395, 390 ; Consequa v. 
 Willing, Peters, Cir. R. 225 ; Id. 303 ; Holmes v. Barclay, 4 Louis. 
 Ann. R. 64. 
 
 3 Slacum V. Pomeroy, 6 Cranch, 221 ; Ilazleluirst v, Kean, 4 Yeates, 
 R. 19 ; Pothier on Oblig. n. 171. 
 
 4 Post, ^ 314, 317.- 
 
 5 Courtois V. Carpentier, 1 Wash. Cir. R. 376.
 
 CH. VIII.] FOREIGN CONTRACTS. 495 
 
 is payable in the currency of that country, and a suit 
 is afterwards brought in another country, to recover 
 for a breach of the contract, a question often arises as 
 to the manner in which the amount of the debt is to 
 be ascertained, whether at the nominal or established 
 par value of the currencies of the two coilntries, or 
 according to the rate of exchange at the particular 
 time existing between them. In all cases of this sort, 
 the place where the money is payable, as well as the 
 currency, in which it is promised to be paid, are (as we 
 shall presently see) material ingredients.^ For instance, 
 a debt of £100 sterling is contracted in England, and 
 is payable there ; and afterwards a suit is brought in 
 America for the recovery of the amount. The present 
 par fixed by law between the two countries is, to esti- 
 mate the pound sterling at four dollars and forty-four 
 cents.^ But the rate of exchange, on bills drawn in 
 America on England, is generally at from eight to ten 
 per cent, advance on the same amount. In a recent 
 case, it was held by the King's bench, in an action for 
 a debt payable in Jamaica, and sued in England, that 
 the amount should be ascertained by adding the rate of 
 exchange to the par value, if above it ; and so, vice 
 versa, by deducting it, when the exchange is below the 
 par.^ Perhaps it is difficult to reconcile this case with 
 
 1 Post, ^ 310. 
 
 2 This is the par for ordinary commercial purposes. But by the Act ol 
 Congress of 1832, ch. 224, ^ 16, the par, for the purpose of estimating 
 the value of goods, paying an ad valorem duty, and for that purpose only, 
 is declared to be to estimate a pound sterling at four dollars and eighty 
 cents. The still more recent Act of 22d July, 1842, ch. 66, makes the 
 •par, for estimating duties in like cases, at four dollars and eighty-four 
 cents for the pound sterling. 
 
 3 Scott V. Bevan, 2 Barn. & Adolph. 78. — Lord Tenterden in deliver
 
 496 CONFLICT OF LAWS. [CH. VIIL 
 
 the doctrine of some other cases.^ In a late American 
 case, where the payment was to be in Turkish piastres, 
 (•but it does not appear from the report, where the con- 
 tract was made, or was made payable,) it was held to 
 be the settled rule, " where money is the object of the 
 suit, to fix the value according to the rate of exchange, 
 at the time of the trial." ^ It is impossible to say, that 
 a rule laid down in such general terms ought to be 
 deemed of universal application ; and cases may easily 
 be imagined, which may justly form exceptions. 
 
 § 309. The proper rule would seem to be, in all cases, 
 to allow that sum in the currency of the country where 
 the suit is brought, which should approximate most 
 nearly to the amount to which the party is entitled in 
 the country where the debt is payable, calculated by 
 the real par, and not by the nominal par of exchange.^ 
 This would seem to be the rule, also, which is adopted 
 by foreign jurists.* In some countries there is an esta- 
 
 ing the opinion of the Court in favor of the rule said ; " Speaking for 
 myself personally, I must say, that I still hesitate as to the propriety of 
 the conclusion." See Delegal v. Naylor, 7 Bing. R. 460; Ekinsu. East 
 India Company, 1 P. Will. 396. 
 
 ' See Cockerell v. Barber, 16 Vcs. 461 ; post, ^ 312. 
 
 2 Lee V. Wilcocks, 5 Serg. & Pi,a\vle, 48. — It is probable, that in this 
 case the money was payable in Turkey. 
 
 3 In Cash v. Kennon, (11 Vesey, R. 314,) Lord Eldon held, that, if a 
 man in a foreign country agrees to pay -ClOO in London, upon a given 
 day, he ought to have that sum there on that day. And if he fails in that 
 contract, wherever the creditor sues him, the law of that country ought to 
 give him just as much as he would have had, if the contract had been per- 
 formed. J. Voet says, "Si major, alibi minor, eorundem nummorum va- 
 lor sit, in solutione faclenda ; non tarn spectanda poteslas pecuniae, quas 
 est in loco, in quo contractus cclcbratus est, quarai potius quaj obtinet in 
 
 .regione ilia, in qua contractus implcmcntum faciendum est." Voet, ad 
 Pand. Lib. 12, tit. 1, ^ 25 ; Henry on Foreign Law, 43, note. See also 
 ante, ^ 281 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 
 771, 772, 773. 
 
 4 Ante, ^ 281.
 
 CH. VIII.] FOREIGN CONTRACTS. 497 
 
 blislied par of exchange by law, as in the United States, 
 where the pound sterling of England is now valued at 
 four dollars and forty-four cents for all purposes, except 
 the estimation of the duties on goods paying an ad va- 
 lorem duty.^ In other countries, the original par has, 
 by the depreciation of the currency, become merely 
 nominal ; and, there, we should resort to the real par. 
 Where there is no established par from any depreciation 
 of the currency, there, the rate of exchange may justly 
 furnish a standard, as the nearest approximation of the 
 relative value of the currencies. And where the debt 
 is payable in a particular known coin, as in Sicca rupees, 
 or in Turkish piastres, there the mint value of the coin, 
 and not the mere bullion value, in the country where 
 the coin is issued, would seem to furnish the proper 
 standard, since it is referred to by the parties in their 
 contract, by its descriptive name as coin. 
 
 § 310. But in all these cases we are to take into con- 
 sideration the place where the money is, by the origi- 
 nal contract, payable ; for wheresoever the creditor may 
 sue for it, he is entitled to have an amount equal to 
 what he must pay, in order to remit it to that country .- 
 Thus, if a note were made in England for ^100 ster- 
 ling, payable in Boston (Mass.), if a suit were brought 
 in Massachusetts, the party would be entitled to recover 
 four hundred and forty-four dollars and forty-four cents, 
 that being the established par of exchange by our laws. 
 But, if our currency had become depreciated by a de- 
 basement of our coinage, then the depreciation ought to 
 be allowed for, so as to bring the sum to the real par. 
 
 1 Ante, ^ 308, n. 2. 
 
 2 See I Chitty on Coram. andManufact. ch. 12, p. G50, 651. See Ante, 
 ^281, 308. 
 
 42*
 
 498 CONFLICT OF LAWS. [CH. VIIL 
 
 instead of the nominal par.^ But if a like note were 
 given in England for £100, payable in England, or pay- 
 able generally (whicb in legal effect would be the same 
 thing) ; there, in a suit in Massachusetts, the party 
 would be entitled to recover, in addition to the four 
 hundred and forty-four dollars and forty-four cents, the 
 rate of exchange between Massachusetts and England, 
 which is ordinarily from eight to ten per cent, above 
 par. And if the exchange were below par, a propor- 
 tionate deduction should be made; so that the party 
 would have his money replaced in England at exactly 
 the same amount which he would be entitled to recover 
 in a suit there. 
 
 § 311. This distinction may, perhaps, reconcile some 
 of the cases, between which there might seem, at first 
 view, to be an apparent contrariety. It was evidently 
 acted on in an old case, where money, payable in Ire- 
 land, was sued for in England ; and the Court allowed 
 Irish interest, but directed an allowance to the debtor 
 for the payment of it in England, and not in Ireland.^ 
 It is presumable, that the money was of less value in 
 Ireland than in England. A like rule was adopted in 
 a later case, where money payable in India was reco- 
 
 1 Paul Voet has expressed an opinion upon this subject in general 
 terms. "Quid, si in specie de nummorum aut redituuna solutione diffi- 
 cultas incidat, si forte valor sit immutatus ; an spectabitur loci valor, ubi 
 contractus erat celebratus, an loci, in quem deslinata erat solutio ? Re- 
 spondeo, ex generali regula, spectandum esse loci statutum, in quem des- 
 tinata erat solutio." P. Voet, de Stat. ^ 9, ch. 2, ^ 15, p. 271 ; Id. p. 
 328, edit. 1661. And he applies the same rule, where contracts are for 
 specific articles, the measures whereof are different in different countries. 
 Id. ^ IG, p. 271 ; Id. p. 328, edit. 1661. 
 
 ~ Dungannon v. Hackett, 1 Eq. Cas. Abr. 288, 289.
 
 CH. VIII.] FOREIGN CONTRACTS. 499 
 
 vered in England ; and the charge of remitting it from 
 India was directed to be deducted.^ 
 
 § 311 a. There is, however, an irreconcilable differ- 
 ence in some of the authorities on this subject. Thus, 
 it has been held in New York, that, where a debt is 
 contracted in a foreign country and is payable there, if 
 the creditor afterwards sues the debtor here for the debt, 
 he is entitled to recover only for the debt according to 
 the par of exchange, and not according to the rate of 
 exchange, necessary to remit the amount to the foreign 
 country. On that occasion the Court said ; " The debt 
 is to be paid according to the par, and not the rate of 
 exchange. It is recoverable and payable here to the 
 plaintiffs, or their agent, and the Courts are not to in- 
 quire into the disposition of the debt, after it reaches 
 the hands of the agent. He may remit the debt to his 
 principal abroad in bills of exchange, or he may invest 
 it here on his behalf, or transmit it to some other part 
 of the United States, or to other countries on the same 
 account. We cannot trace the disposition which is to 
 take place subsequent to the recovery, nor award spe- 
 cial damages upon such uncertain calculations." The 
 same doctrine has been adhered to in subsequent deci- 
 sions.^ It has also been adopted by the Supreme Court 
 of Massachusetts, as the proper rule in all cases, except 
 bills of exchange.'^ On the contrary, in the Circuit 
 Courts of the United States the opposite doctrine has 
 been maintained.^ 
 
 1 Ekins V. The East India Company, 1 P. Will. 396 ; S. C. 2 Bro. Par. 
 Cas. 382, edit. Tomlins. 
 
 2 Martin v. Franklin, 4 Johns. R. 124, 125. 
 
 3 Scofield V. Day, 20 Johns. R. 102. 
 
 •1 Adanns v. Cordis, 8 Pick. R. 2fi0, 2(56, 267. 
 
 5 Smith t'. Shaw, 2 Wash. Cir. R. 107, 163 ; Grant r. Healey, 2 Chand.
 
 500 CONFLICT OF LAWS. [CH. VIIL 
 
 § 312. Ill one case, where by a will made in India, a 
 legacy was given of 30,000 Sicca rupees, and the testa- 
 
 Law Reporter, 113 ; S. C. 3 Sumner, R. 523 ; Ante, ^ 284 a. In this 
 last case the subject was considered at great length ; and the following re- 
 marks were made by the Judge, in delivering the opinion of the Court. 
 " I take the general doctrine to be clear, that whenever a debt is made pay- 
 able in one country, and is afterwards sued for in another country, the cre- 
 ditor is entitled to receive the full sura necessary to replace the money in 
 the country where it ought to have been paid, with interest for the delay ; 
 for then and then only, is he fully indemnified for the violation of the con- 
 tract. In every such case the plaintiff is, therefore, entitled to have the 
 debt due to him first ascertained at the par of exchange between the two 
 countries, and thea to have the rate of exchange between those countries 
 added to, or subtracted from, the amount, as the case may require, in order 
 to replace the money in the country where it ought to be paid. It seems 
 tome, that this doctrine is founded on the true principles of reciprocal jus- 
 tice. The question, therefore, in all cases of this sort, where there is not 
 a known and settled commercial usage to govern them, seems to me to be 
 rather a question of fact than of law. In cases of accounts and advances, 
 the object is to ascertain where, according to the intention of the parlies, 
 the balance is to be repaid ? In the country of the creditor, or of the 
 debtor? In Lanusse v. Barker, (3 Wheat. R. 101, 147,) the Supreme Court 
 of the United States seem to have thought, that where money is advanced 
 for a person in another State, the implied understanding is to replace it in 
 the country where it is advanced, unless that conclusion is repelled by the 
 agreement of the parties, or by other controlling circumstances. Governed 
 by this rule, the money being advanced in Boston, so far as it was not re- 
 imbursed out of the proceeds of the sales at Trieste, would seem to be pro- 
 per to be repaid in Boston. In relation to mere balances of account 
 between a foreign factor and a home merchant, there may be more diffi- 
 culty in ascertaining where the balance is reimbursable, whether where 
 the creditor resides, or where the debtor resides. Perhaps it will be 
 found, in the absence of all controlling circumstances, the truest rule and 
 the easiest in its application, that advances ought to be deemed reimbursa- 
 ble at the place where they are made, and sales of goods accounted for at 
 the place where they are made, or authorized to be made. Thus, if a con- 
 signment is made in one country for sales in another country, where the 
 consignee resides, the true rule would seem to be, to hold the consignee 
 bound to pay the balance there, if due from him ; and if due to him, on 
 advances there made, to receive the balance from the consignor there. 
 The case of Consequa v. Fanning, (3 Johns. Cli. R. 587, 610,) which was 
 reversed in 17 Johns. E.. 511, proceeded upon this intelligible ground, both 
 in the Court of Chancery, and in the Court of Errors and Appeals, the dif-
 
 CH. viil] foreign contracts. 501 
 
 tor afterwards died in England, leaving personal pro- 
 perty, both in England and in India ; upon a suit in 
 
 ference between these learned tribunals not being so much in the rule, as 
 in its application to the circumstances of that particular case. I am aware, 
 that a different rule, in respect to balances of account and debts due and 
 payable in a foreign country, was laid down in Martin v. Franklin, (4 
 Johns. R. 125,) and Scofield v. Day, (20 Johns. R. 102 ;) and that it has 
 been followed by the Supreme Court of Massachusetts, in Adams v. Cordis, 
 (8 Pick. R. 260.) It is with unaffected diffidence, that I venture to ex- 
 press a doubt as to the correctness of the decisions of these learned courts 
 upon this point. It appears to me, that the reasoning in 4 Johns. R. 125, 
 which constitutes the basis of the other decisions, is far from being satis- 
 factory. It states very properly, that the Court have nothing to do with 
 inquiries into the disposition which the creditor may make of his debt 
 after the money has reached his hands ; and the Court are not to award 
 damages upon such uncertain calculations, as to the future disposition of 
 it. But that is not, it is respectfully submitted, the point in controversy. 
 The question is, whether if a man has undertaken to pay a debt in one 
 country, and the creditor is compelled to sue him for it in another country, 
 where the money is of less value, the loss is to be borne by the creditor, 
 who is in no fault, or by the debtor, who by the breach of this contract 
 has occasioned the loss. The loss, of which we here speak, is not a future 
 contingent loss. It is positive, direct, immediate. The very rate of ex- 
 change shows, that the very same sum of money, paid in the one country, 
 is not an indemnity or equivalent for it, when paid in another country, to 
 which by the default of the debtor the creditor is bound to resort. Sup- 
 pose a man undertakes to pay another $ 10,000 in China, and violates his 
 contract ; and then he is sued therefor in Boston, when the money, if duly 
 paid in China, would be worth at the very moment 20 per cent more than 
 it is in Boston ; what compensation is it to the creditor to pay him the 
 $ 10,000 at the par in Boston ] Indeed, I do not perceive any just founda- 
 tion for the rule, that interest is payable according to the law of the place 
 where the contract is to be performed, except it be the very same on 
 which a like claim may be made as to the principal, viz., that the debtor 
 undertakes to pay there, and therefore is bound to put the creditor in the 
 same situation as if he had punctually complied with his contract there. 
 It is suggested, that the case of bills of exchange stands upon a distinct 
 ground, that of usage; and is an exception from the general doctrine. I 
 think otherwise. The usage has done nothing more than ascertain what 
 should be the rate of damages for a violation of the contract generally, as 
 a matter of convenience and daily occurrence in business, rather than to 
 have a fluctuating standard dependent upon the daily rates of exchange ; 
 exactly fur the same reason that the rule of deducting one third new for
 
 502 CONFLICT OF LAWS. [CH. VIIL 
 
 chancery for the legacy, the master, to whom it was 
 referred, estimated the Sicca rupees at 2-5. 6cl per Sicca 
 rupee, being the East India Company's rate of exchange 
 
 old is applied to cases of repairs of ships, and the deduction of one third 
 from the gross freight is applied in cases of general average. It cuts off 
 all minute calculations and inquiries into evidence. But incases of bills of 
 exchange, drawn between countries where no such fixed rate of damages 
 exists, the doctrine of damages, applied to the contract, is precisely that 
 which is sought to be applied to the case of a common debt due and paya- 
 ble in another country ; that is to say, to pay the creditor the exact sum, 
 which he ought to have received in that country. That is sufficiently 
 clear from the case of Mellish v. Simeon, (2 H. Black. R. 378,) and the 
 whole theory of re-exchange. My brother, the late Mr. Justice Washing- 
 ton, in the case of Smith v. Shaw, (2 Wash. Cir. R. 167, 168, in 1808,) 
 which was a suit brought by an English merchant on an account for goods 
 shipped to the defendants' testator, where the money was doubtless to be 
 paid in England, and a question was made, whether, it being a sterling 
 debt, it should be turned into currency at the par of exchange, or at the 
 then rate of exchange, held, that the debt was payable at the then rate of 
 exchange. To which Mr. Ingersoll, at that time one of the ablest and 
 most experienced lawyers at the Philadelphia bar, of counsel for the defend- 
 ant, assented. It is said, that the point was not started at the argument, 
 and was settled by the Court suddenly, without advancing any reasons in 
 the support of it. I cannot but view the case in a very different light. 
 The point was certainly made directly to the Court, and attracted its full 
 attention. The learned Judge was not a Judge accustomed to come to 
 sudden conclusions, or to decide any point which he had not most scrupu- 
 lously and deliberately considered. The point was probably not at all 
 new to him ; for it must frequently have come under his notice in the vast 
 variety of cases of debts due on account by Virginia debtors to British cre- 
 ditors, which were sued for during the period in which he possessed a 
 most extensive practice at the Richmond bar. The circumstance, that so 
 distinguished a lawyer as Mr. Ingersoll assented to the decision, is a far- 
 ther proof to me that it had been well understood in Pennsylvania to be 
 the proper rule. If, indeed, I were disposed to indulge in any criticism, I 
 might say, that the cases in 4 Johns. R. 125, and 20 Johns. R. 101, 102, 
 do not appear to have been much argued or considered ; for no general 
 reasoning is to be found in either of them upon principle, and no author- 
 ities were cited. The arguments and the opinion contained little more 
 than a dry statement and decision of the point. The first and only case, 
 in which the question seems to have been considered upon a thorough ar- 
 gument, is that in 8 Pick. R. 260. I regret that I am not able to follow 
 its authority with a satisfied assent of mind."
 
 CH. Vm.] FOREIGN CONTRACTS. 503 
 
 between India and Great Britain, (i. e. on bills drawn 
 in India on Great Britain,) at the time the legacy be- 
 came due. At the same time, the par or sterling value 
 of the Sicca rupees in India and England was 2-5. Id. 
 per Sicca rupee ; and the East India Company's rate of 
 exchange between Great Britain and India, (i. e. on bills 
 drawn in England on India,) was 25. od. Upon excep- 
 tions taken to the Report, it was contended, that either 
 the par of exchange, or the rate of exchange between 
 Great Britain and India ought to have been adopted.^ 
 Lord Eldon on that occasion said : " In all the cases 
 reported upon the wills of persons in Ireland or Jamaica, 
 and dying there, and vice versa in this country, some 
 legacies being expressed in sterling money, others in 
 sums, without reference to the nature of the coin in 
 which they are to be paid, the legacies are directed 
 here to be computed according to the (real) value of the 
 currency of the country to which the testator belonged, or 
 where the property was ; and I apprehend no more was 
 done in such cases than ascertaining the value of so 
 many pounds in the current coin of the country, and 
 paying that amount out of the funds in Court. On the 
 other hand, I do not believe the Court have ever said 
 they would not look at the value of the current coin of 
 the country, but would take it as bullion. At the time 
 of Wood's half-pence in Ireland, whatever was their 
 actual worth, yet payment in England must have been 
 according to their nominal current value, not the actual 
 value. So whatever was the current value of the rupee 
 at the time when this legacy ought to be paid, is the 
 ratio according to which payment must be made here 
 
 1 Cockerell v. Barber, 16 Ves. 461, 465.
 
 504 . CONFLICT OF LAWS. [CH. VIIL 
 
 in pounds sterling. If twelve of Wood's half-pence 
 were worth six pence in this Court, six pence must have 
 been the sum paid. And in a payment in this Court 
 the cost of remittance has nothing to do with it. So if 
 the value of 30,000 rupees, at the time the payment 
 ought to have been made in India, was ^10,000, that 
 is the sum to be paid here, without any consideration 
 as to the expense of remittance." And he accordingly 
 directed the master to review his report, and the lega- 
 cies to be paid, according to the current value of the 
 Sicca rupee in Calcutta.^ 
 
 § 313. In considering this decision, it is material to 
 observe, that the will was made in India, and, of course, 
 the legacy payable there ; and the testator died in Eng- 
 land, leaving personal assets in both countries. Under 
 these circumstances, the legatee was not compellable to 
 resort to England for payment of the legacy ; but he 
 elected of his own mere choice to receive it there. He 
 might have resorted to India, if he had pleased ; ^ and if 
 so, he would have been entitled to the exact amount of 
 30,000 Sicca rupees, according to their current value 
 there. He ought not, then, by resorting to a court in 
 England, to oblige the estate to bear the charge of the 
 remittance of the amount to England, with which it was 
 charged by the master's report. Nor ought the estate, 
 upon his mere election to receive the amount in Eng- 
 land, to pay for the remittance of the same from England 
 to India. The decree of the Court was, therefore, mani- 
 festly right, and consistent with the principles above 
 
 1 Cockerell v. Barber, 16 Ves. 461, 465. 
 
 S. See Bourke v. Ricketts, 10 Ves. 332, and Raithby's Notes to Rane- 
 lagh V. Champant, 2 Vern. 395 ; Saunders v. Drake, 2 Atk. R. 4G6 ; Sta- 
 pleton V. Conway, 1 Ves. 427.
 
 CH. VIII.] FOREIGN CONTRACTS. 505 
 
 stated. The language of the Court, however, does not 
 seem to put the case upon this clear ground ; but to put it 
 upon the ground, that the value, at the par of exchange, 
 (not indeed the nominal, hut the real par,) without any 
 reference to the place of payment, or of remittance, 
 was, in all cases, the true rule. It admits, however, of 
 some doubt, whether the Court intended to make so 
 general an application of its language, and did not in- 
 tend to restrain it to the circumstances of the particular 
 case. Suppose the executor in India had remitted all 
 the funds to England, and had become domiciled there, 
 and the legatee had always lived in India; would not 
 the latter, having no other means of getting payment 
 but by a suit in England, have been entitled to the 
 charge of remittance to India? Without expressing 
 any opinion upon the subject, it may, perhaps, be 
 thought worthy of further consideration. Some of the 
 cases,^ already cited, are certainly at variance with this 
 decision, if it is to be deemed to assert a doctrine of 
 universal application.^ 
 
 1 Scott V. Bevan, 2 Barn. & Adolp. 78. See also Delegal v. Naylor, 
 7 Bing. R. 460, which apparently supports the rule in Scott v. Bevan, and 
 ante, ^ 308, 309, 311, 311 a. 
 
 2 In the case of mixed money, in Sir John Davies's Reports [28,] 48, 
 there is a curious discussion, as to the nature and changes of English cur- 
 rency. A bond was given in England for the payment of " £100 sterling, 
 current and lawful money of England," to be paid in Dublin, Ireland; 
 and between the time of giving the bond, and its becoming due. Queen 
 Elizabeth, by proclamation, recalled the existing currency in Ireland, and 
 issued a new debased coinage, (called mixed money,) declaring it to be 
 the lawful currency in Ireland. A tender was made in this debased coin, 
 or mixed coin, in Dublin, in payment of the bond. The question, before 
 the Privy Council of Ireland, was, whether the tender was good, or ought 
 to have been in currency, or value, equal to the current lawful money, then 
 current in England. The Court held the tender good ; first, because the 
 mixed money was current lawful of England, Ireland being within the 
 
 CONFL, 43 
 
 /^
 
 506 CONFLICT OF LAWS. [CH. VIIL 
 
 § 313 a. The question touching the effect of a depre- 
 ciation of the currency between the time when the debt 
 is contracted, or it becomes due, and the subsequent 
 payment thereof, which was hinted at in the preceding 
 case, has since arisen in a more direct and solemn 
 form, and undergone no inconsiderable discussion. The 
 French government, during the war between England 
 and France, had confiscated a debt, due from a French 
 subject to a British subject; and subsequently an 
 indemnity was stipulated for, on the part of the French 
 government ; and, there having been a great deprecia- 
 tion of the French currency after the time when the 
 debt Avas confiscated, the question arose, whether the 
 debt was to be calculated at the value of the currency 
 at the time, when the confiscation took place, or subse- 
 quently ; and it was held, that it ought to be calculated 
 according to the value at the time of the confiscation. 
 On that occasion, the case in Sir John Davies's Reports^ 
 already alluded to,^ was referred to, as well as the 
 
 sovereignty of the British crown ; and secondly, because the payment being- 
 to be in Dublin, it could be made in no other currency, than the existing 
 currency of Ireland, which was the mixed money. The Court do not 
 seem to have considered, that the true value of the English current money 
 might, if that was required by the bond, have been paid in Irish currency, 
 though debased, by adding so much more, as would bring it to the par. 
 And it is extremely difficult to conceive, how a payment of current lawful 
 money of England could be interpreted to mean current, or lawful money 
 of Ireland, when the currency of each kingdom was different, and the 
 royal proclamation made a distinction between them, the mixed money 
 being declared the lawful currency of Ireland only. Perhaps the desire to 
 yield to the royal prerogative of the Queen a submissive obedience, as to 
 all payments in Ireland, may account for a decision so little consonant with 
 the principles of law in modern times. See also the comments on this 
 case in the case of Pilkington v. Commissioners for Claims, 2 Knapp, R. 
 18 lo 21 ; S. C. cited 2 Bligh, R. 98, note. See Kearney v. King, 2 Barn. 
 & Aid. 301 ; Sprowle v. Legg, I Barn. & Cress. IG. 
 1 Ante, § 312, 313, note 2.
 
 CH. VIII.] FOREIGN CONTRACTS. 507 
 
 opinions of foreign jurists on the same subject ; and Sir 
 William Grant, in delivering the ophiion of the Court, 
 said: "'Great part of the argument at the bar would 
 undoubtedly go to show, that the Commissioners have 
 acted wrong in throwing that loss upon the French 
 government in any case j for they resemble it to the 
 case of depreciation of currency, happening between the 
 time that a debt is contracted, and the time that it is 
 paid ; and they have quoted authorities for the purpose 
 of showing, that in such case the loss must be borne by 
 the creditor, and not by the debtor. That point it is 
 unnecessary for the present purpose to consider, though 
 Vinnius, whose authority was quoted the other day, 
 certainly comes to a conclusion directly at variance 
 with the decision in Sir John Davies's Reports. He 
 takes the distinction, that if, between the time of con- 
 tracting the debt and the time of its payment, the cur- 
 rency of the country is depreciated by the State, that 
 is to say, lowered in its intrinsic goodness, as if there 
 were a greater proportion of alloy put into a guinea or 
 a shilling, the debtor should not liberate himself by 
 paying the nominal amount of his debt in the debased 
 money; that is, he may pay in' the debased money, 
 being the current coin, but he must pay so much more, 
 as would make it equal to the sum he borrowed. But 
 he says, if the nominal value of the currency, leaving 
 it unadulterated, were to be increased, as if they were 
 to make the guinea pass for SO-s., the debtor may liber- 
 ate himself from a debt of 1/. 10-v. by paying a guhiea, 
 although he had borrowed the guinea, when it was but 
 worth 21.S. I have said it is unnecessary to consider 
 whether the conclusion drawn by Vinnius, or the deci- 
 sion in Davies's Reports, be the correct one ; for we 
 think this has no analogy to the case of creditor and
 
 508 CONFLICT OF LAWS. [CH. VIIL 
 
 "debtor. There is a wrong act done by the French go- 
 vernment ; then they are to undo that wrong act, and 
 to put the party in the same situation as if they never 
 had done it. It is assumed to be a wrong act, not only 
 in the treaty, but in the repealing decree. They justify 
 it only with reference to that which, as to this coun- 
 try, has a false foundation ; namely, on the ground of 
 what other governments had done towards them, they 
 having confiscated the property of French subjects ; 
 therefore, they say, we thought ourselves justified at 
 the time in retaliating upon the subjects of this coun- 
 try. That being destitute of foundation as to this 
 country, the Republic themselves, in effect, confess 
 that no such decree ought to have been made, as it 
 affected the subjects of this country. Therefore it is 
 not merely the case of a debtor paying a debt at the 
 day it falls due ; but it is the case of a wrongdoer, 
 who must undo, and completely undo, the wrongful act 
 he has done ; and if he has received the assignats at 
 the value of 50(7., he does not make compensation by 
 returning an assignat, which is only worth 20d. ; he 
 must make up the difference between the value of the 
 assignat at difierent periods. And that is the case stat- 
 ed by Sir John Davies, where Restitutio in integrum is 
 stated. He says, two cases were put by the Judges, 
 who were called to the assistance of the Privy Council, 
 although they were not positively and formally resolved. 
 He says, it is said if a man upon marriage receive 
 1,000/. as a portion with his wife, paid in silver money, 
 and the marriage is dissolved camd iwcccont nidus, so 
 that the portion is to be restored, it must be restored in 
 equal good silver money, though the State shall have 
 depreciated the currency in the mean time. So, if a 
 man recover 100/. damages, and he levies that in good
 
 CH. VIII.] FOREIGN CONTRACTS. 509 
 
 silver money, and that judgment is afterwards revised, 
 by which the party is put to restore back all he has 
 received, the judgment-creditor cannot liberate himself 
 by merely restoring 100/. in the debased currency of 
 the time ; but he must give the very same currency 
 that he had received. That proceeds upon the princi- 
 ple, that if the act is be undone, it must be completely 
 undone, and the party is to be restored to the situation 
 in which he was at the time the act to be undone took 
 place. Upon that principle, therefore, undoubtedly the 
 French Government, by restoring assignats at the end 
 of 13 months, did not put the party in the same situa- 
 tion in which he was when they took from him assignats 
 that were of a very different value. We have said, 
 that as this point is not directly or immediately before 
 us, it can make no part of our decree. At the same 
 time, it may not perhaps have been without some uti- 
 lity to have given an opinion upon it, inasmuch as it 
 was argued and discussed at the bar. And w^e think, 
 therefore, the Commissioners have proceeded on a per- 
 fectly right principle in those cases, in which we un- 
 derstand they have made an allowance for the deprecia- 
 tion of paper money ; and considering that this case 
 does not differ from those in which they have made 
 that allowance, we are of opinion that the claimants 
 ought to have the same equity administered to them in 
 remunerating them for the loss they have sustained." ^ 
 
 § 313 h. The opinions of Vinnius and Pothier, allud- 
 ed to in the opinion of Sir William Grant, fully confirm 
 his statements. Vinnius is of opinion that the value 
 of the money at the time when it ought to be paid, is 
 
 1 Pilkington u. Commissioners for Claims, 2 Knapp, R. 17 to 21. 
 43*
 
 510 CONFLICT OF LAWS. [CH. VIIL 
 
 the ^alue which is to be allowed to the creditor. Of 
 the same opinion, he adds, are Bartolus, and.Baldus, 
 and De Castro, and indeed of jurists generally, with 
 the exception of Dumoulin, and Hotomannus, and Do- 
 nellus, who think the value at the time of making the 
 contract ought to govern. Hence, after having dis- 
 cussed the principle, Vinnius says, in conformity with 
 the opinions of the former jurists; Hoc aidem fiinda- 
 mcnio iiodto, mjiddem ncutri contraJientiiim injuriam fieri 
 volitmiis, ita definiendum videtur, tit si honitas monetce intrin- 
 seca midata sit, tempus contractus^ si eodrinseca, id est va- 
 lor impositiiius, tempus solutionis in solutione facienday spcc- 
 tari debeat} Pothier holds the opposite opinion, and 
 
 1 Vinnius, ad Inslit. Lib. 3, tit. 15, Textus, De Mutuo, Comra. n. 12, 
 p. 599, edit. 1726 ; Id. p. 664, edit. 1777, Lugduni. The whole passage 
 deserves to be cited. Atque hinc pendet decisio nobilissimajquEestionis, si 
 post contractum seslimatio nummorum creveret aut decreverit, utrum in 
 solutione facienda spectare oporteat valorem, quern habebant tempore con- 
 tractus, an qui nunc est tenfipore solutionis : inlellige si nihil, de ea re ex- 
 presse dictum sit, neque mora intervenerit. Molinaeus, Hotomannus, Do- 
 nellus contendunt, tempus contractus inspiciendum esse, id est, ea aestima- 
 tione nummos reddendos, non quas nunc est, sed quae initio fuit, cum 
 dabantur. Nimirum nihil illi in pecunia numerata praeter aestimationem 
 considerandum putant, totamque nummi bonitatem in hac ipsaaestimatione 
 consislere : ac proinde creditori non I'acere injuriam, qui eandem aestima- 
 tionem, quam accepit, reddit : tantum enim reddere eum, quantum accepit, 
 quod ad solutionem rautui sit satis. Itaque secundum horum sententiam, 
 si 100. aurei mutuo dati sint, cum aureus valebat asses 50. reddantur au- 
 tem, cum singuli valent asses 55. debitor reddens creditori aureos 90. aut 
 in singulos aureos 50. asses reddit, quantum accepit, et liberatur : et vicis- 
 sim si imminuta sit ad eundem modum accepit, et liberatur : et vicissim si 
 imminuta sit ad eundem modum aureorum aestimatio, non liberatur, nisi 
 reddat aureos 110. aut in singulos aureos asses 55. Bartolus vero (in I. 
 Paulus. 101. de solut.) Baldus (in 1. res in dotem, 24. de jur. dot.) 
 Castro, in lib, 3, de reb. cred.) et DD. coram, ut videre est apud Boer, 
 decis. 327. contra consent, spectandum esse in proposito tempus solutionis, 
 id est, aucto vel deminuto nummorum valore, ea aestiraatione reddi eos 
 oportere, non quae tunc fuit, cum dabantur, sed quae nunc est, cum solvun- 
 tur ; nequo aliud statui posse sine creditoris aut debitoris injuria. Quae
 
 CH. VIII.] FOREIGN CONTRACTS. 511 
 
 says : " It remains to be observed, in regard to the 
 price, that it may be rendered in a money different from 
 that in which it is paid. If it is paid to the seller in 
 
 sententia, ut mihi videtur, et verior et aquior est. Nam quod contraris 
 sentential auctores unicunn urgent, in nummis non niateriac, sed solius 
 a3stimationis imposiliEC atque externaj, quam ob id vulgo extrinsecann num- 
 mi bonitatem vocant, rationem duci, nuramumque nihil aliud esse, quam 
 quod publice valet, vereor, ut simpliciter verum sit. Utique enim mate- 
 ria numismatis fundamentura est et causa valoris : quippe qui variatur pro 
 diversitate maleriae : oportetque valorem hunc justa aliqua proportione 
 materise respondere : neque in bene constituta repub. nummo ea ajstimatio 
 imponi debet, quae pretium materije, ex qua cuditur, superat, aut superet 
 ultra modum expensarum, quaj in signanda pecunia fiunt ; quod ad singu- 
 larum specierum valorem parum addere potest. Sed hoc ad actus et praes- 
 tationes privatorum non pertinet. Illud pertinet, quod si dicimus, creditis 
 nummis nihil prseter aestimationem eorum creditum intelligi, necessario 
 sequitur, creditorem teneri in alia forma aut materia nummos accipere con- 
 tra definitionem Pauli in d. 1. 99. de solut. etiamsi damnum ex eo passu- 
 rus sit : nam, qui recipit, quod credidit, nihil habet, quod conqueratur. 
 Sequitur et hoc, si contingat mutari nummorum bonitatem intrinsecam, id 
 est, si valore veteri retentio percutiantur novi nummi ex deteriore materia, 
 quam ex qua cusi, qui dati sunt, puta, si qui dali sunt, cusi fuerint ex puro 
 auro, postea alii feriantur ex auro minus puro et mixto ex cere, debitorem 
 restituendo tot mixtos et contaminatos, quot ille puros accepit, liberari 
 cum insigni injuria creditoris : et contra interpp. pene omnium doctrinam, 
 qui hoc casu solutionem faciendam esse statuunt ad valorem intrinsecum 
 monetae, qui currebat tempore contractus, testibus Gail. 2, obs. 73, n. 6 
 and 7. Borcholt. de feud, ad cap. un. quae sunt regal, num. G2. Illud 
 enim maxime in hac disputatione considerandum est, quoniam hie finis 
 nummi principalis est, ut serviat rebus necessariis comparandis, auctore 
 Aristotele 1, Polit. G. quod mutata monetae bonitate sive extrinseca, sive 
 intrinseca, pretia rerura omnium mutentur, et pro mode auctae aut immi- 
 nutae bonitatis nummorum crescant aut decrescant : quod ipsa docet ex- 
 perientia : eoque facit 1. 2. C. de vet. num pot. lib. II. Crescunt rerum pre- 
 tia, si deterior materia electa, aut manente eadem materia valor auctus sit: 
 decrescunt elcetu materias melioris, aut si eadem bonitate materia; manente 
 valor imminulis fuerit. Fallitur enim imperitum vulgus, dum sibi persua- 
 del, ex augmento valoris aurei aliquid sibi lucri accedere. Hoc autem 
 fundamento posito, siquidem neutri contrahentium injuriam fieri volumus, 
 ita definiendum videtur, ut si bonitas monetas intrinseca mutata sit, tempus 
 contractus, si extrinseca, id est, valor imposititius, tempus solutionis in 
 solutione facienda spectari debeat. Atque ita sacpissime judicatum est.
 
 512 CONFLICT OF LAWS. [CH. VIII. 
 
 gold, the seller may repay it in pieces of silver, or 
 vice versa. In like manner, though subsequent to the 
 payment of the price, the pieces in which it is paid are 
 increased or diminished in value ; though they are dis- 
 credited, and at the time of their redemption their 
 place is supplied by new ones of better or worse alloy ; 
 the seller, who exercises the redemption, ought to repay 
 in money which is current at the time he redeems, the 
 same sum or quantity which he received in payment, 
 and nothing more nor less. The reason is, that, in 
 money, we do not regard the coins which constitute it, 
 but only the value which the sovereign has been pleased 
 that they shall signify ; Eaqiie materia forma piiblica 
 percussa, usum dominiumque non tam ex substantia prcebet, 
 quam ex quantitate ; D. 18, 1, 1. When the price is 
 paid, the seller is not considered to receive the particu- 
 lar pieces, so much as the sum or value which they sig- 
 nify ; and, consequently he ought to repay, and it is 
 sufficient for him to repay, the same sum or value in 
 pieces which are current, and which have the signs au- 
 thorized by the prince to signify that value. This prin- 
 ciple being well established in our French practice, it is 
 sufficient merely to state it. It cuts off all the ques- 
 tions made by the Doctors concerning the changes of 
 money." ^ 
 
 § 314. Negotiable instruments often present ques- 
 tions of a like mixed nature.^ Thus, suppose a nego- 
 tiable bill of exchange is drawn in Massachusetts on 
 England, and is indorsed in New York, and again by 
 
 1 Pothier, Traile du Contrat de Vente, n. 416. I quote from Mr. Cush- 
 ing's excellent Translation, n. 416, p. 264, 265. See Pardessus, Tom. 5, 
 art. 1495, p. 269, 270, 271. 
 
 2 See post, ^ 344, 353 to 361.
 
 CH. VIII.] FOREIGN CONTRACTS. 513 
 
 the first indorsee in Pennsylvania, and by the second 
 in Maryland, and the bill is dishonored ; what damages 
 will the holder be entitled to ? The law as to damages 
 in these States is different. In Massachusetts it is ten 
 per cent., in New York and Pennsylvania twenty per 
 cent., and in Maryland fifteen per cent.^ What rule 
 then is to govern ? The answer is, that, in each case, 
 the Lex loci contradus. The drawer is liable on the 
 bill according to the law of the place where the bill 
 was drawn ; and the successive indorsers are liable on 
 the bill according to the law of the place of their in- 
 dorsement, every indorsement being treated as a new 
 and substantive contract.- The consefj[uence is, that 
 the indorser may render himself liable upon a dishonor 
 of the bill, for a much higher rate of damages, than he 
 can recover from the drawer. But this results from 
 his ow^n voluntary contract ; and not from any collison 
 of rights arising from the nature of the original con- 
 tract.^ 
 
 1 3 Kent, Coram. Lect. 44, p. 116 to p. 120, 3d edit. 
 
 2 Ante, ^ 307; post, § 317 ; Powers v. Lynch, 3 Mass. R. 77 ; Prentiss 
 V. Savage, 13 Mass. R. 20, 23, 24 ; Slacum v. Pomeroy, 6 Cranch, 221 ; 
 Depau V. Humphreys, 20 Martin, R. 1, 14, 15; Hicks v. Brown, 
 12 Johns. R. 142; Bayley on Bills, ch. A. p. 28, Phillips & Sewall's 
 Edition; Trimbey d. Vignier, 1 Bing. R. 151, 159, 160; ante, §267; 
 post, 1^ 316 a, 1^ 353 to 361 ; 3 Burge, Comm. on Col. and For. Law, Pt. 
 2, ch. 20, p. 771 to p. 774. 
 
 3 Pardessus has discussed this matter at large. He adopts the general 
 doctrine here stated, that the law of the place of each indorsement is to 
 govern, as each indorsement constitutes a new contract between the imme- 
 diate parties. And he applies the same rule to damages ; and says, that, 
 if the law of the place, where a bill of exchange is drawn, admits of the 
 accumulation of costs and charges on account of reexchanges, (as is the 
 law of some countries,) in such a case each successive indorser may be- 
 come liable to the payment of such successive accumulations, if allowed 
 by the law of the place, where they made their indorsement. He seems, 
 indeed, to press his doctrine farther, and to hold, that, if the law of the
 
 514 CONFLICT OF LAWS. [CH. VIIL 
 
 § 315. It has sometimes been suggested, that this 
 doctrine is a departure from the rule, that the law of the 
 place of payment is to govern.^ But, correctly con- 
 sidered, it is entirely in conformity to the rule. The 
 drawer and indorsers do not contract to pay the money 
 in the foreign place, on which the bill is drawn j but 
 only to guarantee its acceptance and payment in that 
 place by the drawee ; and in default of such payment 
 they agree upon due notice to reimburse the holder, in 
 principal and damages, at the place, where they respect- 
 ively entered into the contract." 
 
 § 316. Nor is it any departure from the rule to hold, 
 that the time when the payment of such a bill is to 
 accrue, is to be according to the law of the place where 
 the bill is payable ; so that the days of grace (if any) 
 are to be allowed according to the law or custom where 
 the Bill is to be accepted and paid ; ^ for such is the 
 appropriate construction of the contract, according to 
 the rules of law, and the presumed intention of the 
 parties.** 
 
 place of such indorsement does not allow such accumulation of reexchanges, 
 but the law of the place where the bill is drawn does, the indorsers will 
 be liable to pay, as the drawer would. But his reasoning does not seem 
 satisfactory ; and it is certainly inconsistent with the acknowledged doc- 
 trines of the common law. Pardessus, Droit Commerc. art. 1500. See 
 also Henry on Foreign Laws, 53, Appx. 239 to 242 ; 3 Kent, Coram. 
 Lect. 44, p. 115, 3d edit. See Rothschild v. Currie, 1 Adolph. & Ell. 
 N. R. 43 ; Shanklin v. Cooper, 8 Blackf. 41. 
 
 1 2 Kent, Comm. Lect. 39, p. 459, 460. 3d edit. ; Chitty on Bills, 
 p. 191 to p. 194, 8th edit. London. 
 
 2 Potter V. Brown, 5 East, R. 123, 130 ; Dundas v. Bowler, 3 McLean, 
 400; Hicks u. Brown, 12 Johns. R. 142; Powers v. Lynch, 3 Mass. R. 
 77 ; Prentiss v. Savage, 13 Mass. R. 20, 24 ; Pardessus, Droit Comm. 
 art 1497. 
 
 3 See 2 Kent, Comm. Lect. 39, p. 459, 460, 3d edit. ; Chitty on Bills, 
 p. 191, 8th edit., London ; Pothier, Contrat de Change, n. 15, 155 ; 
 5 Pardessus, § 1495; post, ^ 347, 361. 
 
 4 Mr. Justice Martin, in Vidal i'. Thompson, 11 Martin, R. 23, 24.
 
 CH. VIII.] FOREIGN CONTRACTS. 615 
 
 § 316 a. Another illustration of the general doctrine 
 may he derived from the case of negotiable paper, as to 
 the binding obligation and effect of a blank indorse- 
 ment. It seems, that by the law of France an indorse- 
 ment in blank of a promissory note does not transfer 
 the property to the holder unless certain prescribed 
 formalities are observed in the indorsement, such as the 
 date, the consideration, and the name of the party to 
 whose order it is passed \ otherwise, it is treated as a 
 mere procuration.^ Now, let us suppose a note made 
 at Paris, payable to the order of the payee, and he 
 should there indorse the same in blank without the 
 prescribed formalities, and afterwards the holder should 
 sue the maker of the note in another country, as, for 
 example, in England, where no such formalities are pre- 
 scribed 5 the question would arise, whether the holder 
 could recover in such a suit in an English Court upon 
 such an indorsement. It has been held that he can- 
 not ; and this decision seems to be founded in the true 
 principles of international jurisprudence ; for it relates 
 not to the form of the remedy but to the interpretation 
 and obligation of the contract created by the indorse- 
 ment, which ought to be governed by the law of the 
 place of indorsement." 
 
 § 316 J). Another illustration may be derived from 
 the different obligations which an indorsement creates 
 in different States. By the general commercial law, in 
 order to entitle the indorsee to recover against any 
 antecedent indorser upon a negotiable note, it is only 
 
 1 Code de Commerce, art. 137, 138 ; Trimbey v. Vignier, 1 Bing. N. 
 Cas. 151, 158, 159, 160. 
 
 2 Trimbey r. Vignier, 1 Bing. New Cases, 151, 158, 159, 160; ante, 
 ^272.
 
 516 CONFLICT OF LAWS. [CH. VIIL 
 
 necessary tliat due demand should be made upon the 
 maker of the note at its maturity, and due notice of 
 the dishonor to the indorser. But by the laws of some 
 of the American States, it is required, in order to charge 
 an antecedent indorser, that not only due demand 
 should be made and due notice given, but that a suit 
 shall be previously commenced against the maker, and 
 prosecuted with effect in the country where he resides ; 
 and then, if paj^ment cannot be obtained from him 
 under the judgment, the indorsee may have recourse 
 to the indorser. In such a case, it is clear, upon prin- 
 ciple, that the indorsement, as to its legal effect and 
 obligation, and the duties of the holder must be go- 
 verned by the law of the place Avhere the indorsement 
 is made. This very point has been recently decided in 
 a case where a note was made and indorsed in the 
 State of Illinois. On that occasion, Mr. Chief Justice 
 Shaw, in delivering the opinion of the Court, said ; 
 " The note declared on, being made in Illinois, both 
 parties residing there at the time, and it also being 
 indorsed in Illinois, we think that the contract created 
 by that indorsement must be governed by the law of 
 that State. The law in question does not affect the 
 remedy, but goes to create, limit, and modify the con- 
 tract effected by the fact of indorsement. In that, 
 which gives force and effect to the contract, and im- 
 poses restrictions and modifications upon it, the law of 
 the place of contract must prevail when another is not 
 looked to as a place of performance. Suppose it were 
 shown, that, by the law of Illinois, the indorsement of a 
 note by the payee merely transferred the legal interest 
 in the note to the indorsee, so as to enable him to sue 
 in his own name, but imposed no conditional obliga- 
 tion on the indorser to pay ; it would hardly be con-
 
 CH. VIII.] FOREIGN CONTRACTS. 517 
 
 tended, that an action could be brought here upon such 
 an indorsement if the indorser should happen to be 
 found here, because by our law such an indorsement, if 
 made here, would render the indorser conditionally 
 liable to pay the note. By the law of Illinois, the in- 
 dorser is liable only after a judgment obtained against 
 the maker; and as no such judgment appears to have 
 been obtained on this note, the condition upon which 
 alone the plaintiff may sue, is not complied with, and 
 therefore the action cannot be maintained." ^ 
 
 § 317. But, suppose a negotiable note is made in one 
 country, and is payable there, and it is afterwards in- 
 dorsed in another country, and by the law of the for- 
 mer country equitable defences are let in, in favor of 
 the maker, and by the latter such defences excluded ; 
 what rule is to govern, in regard to the holder, in a 
 suit against the maker to recover the amount upon the 
 indorsement to him? The answer is, the law of the 
 place, where the note was made ; for there the maker 
 undertook to pay ; and the subsequent negotiation of 
 the note did not change his original oblig.'ition, duty, 
 or rights.- Acceptances of bills are governed by the 
 same principles. They are deemed contracts of accept- 
 ance in the place, where they are made, and where 
 they are to be performed.^ So Paul Voet lays down 
 
 1 Williams V. Wade, I Metcalf, R. 82, 83. 
 
 2 Ory V. Winter, lf5 Martin, R. 277 ; post, 332, 343, 344. 
 
 3 Lewis V. Owen, 4 Barn. & Aid. 654; ante, ^ 307; post, ^ 333, 344, 
 345. If made in one place and accepted there, payable in another place, 
 the law of the place where the Bill is payable governs. Cooper v. Earl 
 of Waldegrave, 2 Beavan, R. 282. What bills are deemed foreign 1 
 Bills drawn in one State payable in another State, are deemed foreign. 
 Bleekner v. Finley, 2 Peters, R. 236 ; Halliday i'. McDougal, 22 Wend. 
 R. 264, 272 ; Wells v. Whitehead, 15 Wend. R. 527 ; Rothschild v. Cur- 
 rie, 1 Adolp. & Ell. N. Rep. 43. 
 
 CONFL. 44
 
 518 CONFLICT OF LAWS. [CH. VIIL 
 
 the doctrine. Quid si de Uteris Ccimhii incidat questio ; 
 qiiis locus erit spedandiis ? Is spedcmdus est locus, ad 
 quern sunt destincdce, et ibidem acceptaUe. But, suppose a 
 negotiable acceptance, or a negotiable note, made pa}^- 
 able generally, without any specification of place ; what 
 law is to govern, in case of a negotiation of it by one 
 holder to another in a foreign country, in regard to the 
 acceptor, or to the maker ? Is it a contract by them to 
 pay in any place, where it is negotiated, so as to be 
 deemed a contract of that particular place, and govern- 
 ed by its laws ? The Supreme Court of Massachusetts 
 have held, that it creates a debt payable anywhere, b}'- 
 the very nature of the contract ; and it is a promise to 
 whosoever shall be the holder of the bill or note.^ As- 
 suming this to be true ; still it does not follow, that the 
 law of the place of the negotiation is to govern; for 
 the transfer is not, as to the acceptor, or the maker, a 
 new contract ; but it is under, and a part of, the origi- 
 nal contract, and springs up from the law of the place, 
 where that contract was made. A contract to pay ge- 
 nerally is governed by the law of the place, where it is 
 made ; for the debt is payable there, as well as in ev- 
 ery other place.^ To bring a contract within the gene- 
 
 1 P. Voet, de Statut. ^ 9, ch. 2, n. 14, p. 270, edit. 1713 ; Id. p. 327, 
 edit. 1661 ; post, ^ 346, note. 
 
 2 Braynard v. Marshall, 8 Pick. Fi. 194 ; post, ^ 341, 343 to 346. 
 
 3 See Kearney u. King, 2 Barn. & Aid. 301 ; Sprowle v. Legge, 1 Barn. 
 & Cres. 16; ante, •^ 272 a; post, ^ 329 ; Don v. Lippmann, 5 Clark & 
 Finn. 1, 12, 13. — In this last case a bill of Exchange was drawn and ac- 
 cepted in Paris by a Scotchman domiciled in Scotland, and it was payable 
 generally. It seems, that, by the law of Scotland, an acceptance is deemed 
 payable at the place of the domicil of the acceptor, at the time, when it 
 becomes due. Lord Brougham on this occasion said ; "It appears, that 
 in Scotland, — and it is rather singular, that it should be so, —where a bill 
 is accepted generally, without any particular place being named, it shall
 
 CH. VIII.] FOREIGN CONTRACTS. 619 
 
 ral rule of the Lex loci, it is not necessary, that it should 
 be payable exclusively in the place of its origin. If 
 payable everywhere, then it is governed by the law of 
 the place, where it is made ; for the plain reason, that 
 it cannot be said to have the law of any other place in 
 contemplation, to govern its validity, its obligation, or 
 its interpretation. All debts between the original par- 
 ties are payable everywhere, unless some special pro- 
 vision 'to the contrary is made ; and, therefore, the rule 
 is, that debts have no sUus ; but accompany the credi- 
 tor everywhere.^ The holder, then, takes the contract 
 of the acceptor, or maker, as it was originally made, 
 and as it was in the place, where it was made. It 
 is there, that the promise is made to him to pay every- 
 where.- 
 
 § 318. A case a little more difficult in its texture is. 
 
 be deemed payable at the place, at which the acceptor is domiciled, when 
 it becomes due. It becomes of some importance to know, where the bills 
 were payable, because this principle, which has been adopted of late years 
 in many of the Scotch decisions, and towards which I admit the great 
 leaning of the Scotch profession is, renders it material to consider, 
 whether this is a Scotch or a foreign debt. Yet sometimes this expression 
 is used in the cases without affording any accuracy of description ; for 
 sometimes the debt is called English, or French in respect of the place, 
 where the contract was made; sometimes it is the place of the origin, 
 sometimes of the payment of the contract ; and sometimes of the domicil 
 of one of the parties. But at all events it becomes important to consider, 
 whether this was a foreign or a Scotch debt. In the present case it was 
 held most properly to be a foreign debt. That is a fact admitted; it is 
 out of all controversy. This, therefore, must now^ be taken to be a French 
 debt; and then the general law is, that where the acceptance is general, 
 naming no place of payment, the place of payment shall be taken to be 
 the place of the contracting of the debt. I shall therefore deal with this 
 bill, as if it was accepted, payable in Paris." 
 
 1 Blanchardv. Russell, 13 Mass. R. 1,G; Slacumu. Pomeroy, GCranch, 
 221 ; post, ^ 329, 362, 399, 400. 
 
 2 Post, ^ 343, 344.
 
 520 CONFLICT OF LAWS. [CH. VIII. 
 
 when a contract is made in one country, for payment of 
 money in another country, and, by the laws of the lat- 
 ter, a stamp is required, to make the contract valid, and 
 it is not by those of the former ; whether it is governed 
 by the Lex solutionis, or by the Lex loci contractus, as to 
 the stamp. It has been held, that a stamp is not re- 
 quired in such a case to give validity to the contract, 
 upon the ground that an instrument, as to its form and 
 solemnities, is to be governed by the Lex loci contractus, 
 and not by the law of the place of payment ; and that, 
 therefore, a stamp is not required by the principle.^ On 
 that occasion the Court said : " An instrument, as to its 
 form and the formalities attending its execution, must 
 be tested by the laws of the place where it is made ; 
 but the laws and usages of the place where the obliga- 
 tion, of which it is evidence, is to be fulfilled, must 
 regulate the performance. A bill drawn out of London, 
 must be paid at the expiration of the days of grace, 
 which the laws and usages of that place recognize ; but 
 need not have those stamps which are by law required 
 on a bill drawn there." ^ 
 
 § 319. But a case, more difficult to reconcile with 
 established principles, in its actual adjudication, has 
 occurred in Massachusetts. A bill of exchange was 
 drawn in Manchester, in England, upon a firm esta- 
 blished at Boston, in Massachusetts, payable in London, 
 and was accepted at Manchester by one of the firm, 
 then there. The bill was, therefore, drawn in England, 
 
 1 I\Ir. Justice Martin in Vidal v. Thompson, 11 Martin, R. 23, 24, 25. 
 But see ante, ^ 260, and note, ^ 262, 262 a ; Wynne v. Jackson, 2 Rus- 
 sell, R. 351 ; Clegg v. Levy, 3 Camp. R. 166 ; James v. Catherwood, 
 3 Dowl. & Ryl. R. 190. 
 
 2 Ibid.
 
 en. VIII.] FOREIGN CONTRACTS. 521 
 
 accepted in England, and payable in England. But 
 upon its dishonor, it was held, that it was to be deemed 
 a bill accepted in Boston ; because the domicil of the 
 firm was there, and that damages were recoverable of 
 10 per cent., as they would be upon a like bill accepted 
 in Boston.^ There was nothing upon the face of the 
 bill, that alluded to an acceptance in Boston, and 
 nothing in the circumstances, that pointed in that direc- 
 tion. It was certainly competent for the firm to con- 
 tract in England, and to accept in England ; and, 
 beyond all question, if the bill had been drawn solely 
 on the person who accepted it, the acceptance must 
 have been deemed to be made in England, notwith- 
 standing his domicil was in Boston. Is there any dif- 
 ference between an acceptance by a firm, and an 
 acceptance by a single person ? Is not the general 
 principle of law that which is afiirmed by Casaregis, 
 that a contract or acceptance is to be deemed made, 
 where the contract or acceptance is perfected ; Eo loci, 
 quo iiltimus in contnihendo assentihir ? ^ It has certainly 
 been put upon that ground in many modern authorities.^ 
 And, therefore, if the acceptor be an accommodation 
 acceptor in one country, payments made by him of the 
 
 1 Grimshaw v. Bender, 6 Mass. R. 157. — The case of Acebal v. Levy, 
 10 Bing. R. 376, 379, seems to have involved a question very nearly the 
 same, arising under the Statute of Frauds of England, the contract hav- 
 ing been made in Gijon, in Spain, for the delivery of the goods purchased 
 in England. The Court and bar seem to have thought, that the contract 
 was to be governed by the English Statute of Frauds, although made in 
 Spain. See ante, ^ 262 a, and note. See also Cooper v. Earl Walde- 
 grave, 2 Beavan, R. 282. 
 
 2 Casaregis, Disc. 179, n. 1 ; ante, ^ 285. 
 
 3 Boyce V. Edwards, 4 Peters, R. Ill ; P. Voet, U. Statut. ^ 9, ch. 2, 
 § 14. See also McCandish v. Gruger, 2Bay, R. 377 ; Bainr. Ackworth, 
 1 S. Car. R. 107 ; Lewis v. Owen, 4 B. & Aid. 654. 
 
 44*
 
 522 CONFLICT OF LAWS. [CH. VIII. 
 
 bills drawn by the drawer in a foreign country, will be 
 deemed payments under a contract made with the 
 drawer in the place of acceptance and payment.^ 
 
 § 320. The doctrine maintained in Massachusetts, in 
 this last case, is directly in conflict with that maintained 
 under similar circumstances by the Supreme Court of 
 New York. The latter Court has held, that the bill, 
 having been drawn in England, and made payable 
 there, and accepted there, it was to be treated as an 
 English contract ; and that the English interest of five 
 per cent, only was to be allowed for the delay of pay- 
 ment.^ This decision, being in entire harmony with the 
 general principles on this subject, will probably obtain 
 general credit in the commercial world.^ 
 
 § 320 a. Many other cases might easily be put, to 
 illustrate the law in relation to the conflict of the laws 
 of different countries in cases of contract. In some 
 countries there are limited or special partnerships, 
 called in France partnerships in commandite. In these 
 partnerships the contract is between one or more part- 
 ners, who are jointly and severally responsible for the 
 whole contracts and orders of the partnership, and one 
 or more partners, who merely furnish a particular amount 
 of funds, and are responsible only to the amount of such 
 funds, and who are called commandatcdres, or partners in 
 commandite} Similar limited partnerships are also au- 
 thorized in some of the American States.*" Now, let us 
 
 1 Lewis V. Owen, 4 B. & Aid. G54. 
 
 2 Foden v. Thorp, 4 Johns. R. 183 ; Frazier v. Warfield, 9 Smedes & 
 Marshall, 220. 
 
 3 See Bayley on Bills, (5th edit.) ch. A. p. 72 to p. 86, Phillips & Se- 
 wall's N. edit. 
 
 4 Code of Commerce of France, art. 23 to art. 37. 
 
 [5 Whether such a partnership is recognized by the present law of Eng-
 
 CH. VIII.] FOREIGN CONTRACTS. 523 
 
 suppose an order given by the general partner in such 
 a firm in one of such States, upon a house in England, 
 for the purchase of goods there ; and they were accord- 
 ingly purchased in England on the credit of the firm. 
 If the partnership became insolvent, the question might 
 then arise, whether the partner in commandite was liable 
 to pay for the goods beyond the amount of the funds 
 which he had contributed, or was bound to contribute, 
 for the partnership. That question might essentially 
 depend upon another, whether the contract is to be 
 treated as made in the American States, where the part- 
 nership was established, or in England, where the con- 
 tract was consummated. And it might also be import- 
 ant in the case, whether the seller knew that the part- 
 nership Avas so limited or not. No point of this sort 
 has as yet arisen for decision ; and therefore it is left 
 for the more full consideration of those who may be 
 called upon to examine it in the case of a judicial con- 
 troversy.^ 
 
 § 321. In stating the foregoing rules, we have been 
 necessarily led to the consideration of many of what are 
 properly deemed the effects of contracts, which, like the 
 validity of contracts, are dependent upon, and are to be 
 governed by, the Zex loci contractus. These effects are ; 
 the right conferred on the party for whose benefit the 
 contract is made ; the correspondent duty of the other 
 party to fulfil it ; the right of action, which arises from 
 the non-fulfilment of it ; and the consequential right to 
 interest or damages, for the injury done by such non- 
 
 land, see an able article in the London Law Mag., Feb., 1832, No. 94, 
 p. 50, art. v.] 
 
 1 Ante, ^ 285 to 287.
 
 524 CONFLICT OF LAWS. [CH. VIH. 
 
 fulfilment, belonging to the injured party .1 The man- 
 ner, in which remedies are to be administered, will fall 
 under another and distinct head.^ 
 
 § 322. But there are some other effects, which may 
 be deemed accompaniments, effects, or incidents of con- 
 tracts, whichrnay here deserve a passing notice. They 
 are properly collateral to them, and arise by operation 
 of law, or by the act of the parties. Among these may 
 be placed the liability of partners and part owners for 
 partnership debts. If, by the law of the place, where 
 the contract is made, they would be liable in soUdo, 
 although by the law of the domicil of the partnership, 
 they might be liable only for a proportionate share, the 
 law of the former will follow the debt everywhere ; or 
 in other words, the effect of the Lex loci of the contract 
 upon the liability of the partners and part owners will 
 be of universal obligation.^ By the law of some coun- 
 tries the acceptor of a bill of exchange is discharged 
 from his acceptance, if, when he accepted, the drawer 
 was bankrupt ; and this effect of the acceptance regu- 
 larly accompanies it everywhere, as an incident.^ 
 
 § 322 a. Another illustration may be found in the law 
 of some countries, (as in Alost in Flanders,) which 
 allows to a debtor, who has assigned, or transferred a 
 debt, the right of redemption of it upon payment back 
 of the price. In such a case, according to Burgundus, 
 the right of redemption will exist, notwithstanding the 
 
 1 See Pothier, Oblig. n. 141 to 172 ; P. Voet, De Statut. § 9, ch. 2, 
 ^ 12 ; Boullenois, Ques. de la Contr. des Lois, p. 330 to 338. 
 
 2 Post, ^ 556 to 575. 
 
 3 Fergusson v. Flower, 16 Martin, R. 312. See also Carroll v. Wa- 
 ters, 9 Martin, R. 500 ; Pardessus, Droit Comna. art. 1495. 
 
 * Pardessus, Droit Coram, art. 1495.
 
 CH. VIII.] FOREIGN CONTRACTS. 525 
 
 debt has been contracted in another country ; for, in 
 such a case, the right is for the benefit of the debtor, 
 and the debts and the rights of action are judged of by 
 the law of his domicil, without any consideration of the 
 place where the debts were contracted. Uncle rede 
 did latest, consuetudinem Abstensem, qiice indiilget delitori 
 rcdemptionis cessi nominis, eo 'pretio, quod assionis audori 
 solutum est, etiam locum habere in cere cdieno extra territori- 
 um Alostense contrado. Cum enim cjusmodi redemi:)tio in 
 favorem debUoris introdiida, situm nomimim, et adionum ex 
 domicilio ejus metitiir, sine consideratione qua regione con- 
 irada fucrint} A more unexceptionable illustration is 
 the incidental right of warranty, conferred by the civil 
 law in cases of sales of merchandise, not merely as to 
 title, but as to quality.^ 
 
 § 322 h. Of the like nature is the benefit of the right 
 of discussion, as it is called. By the Roman law sure- 
 ties were not primarily liable to pay the debt, for which 
 they became bound as sureties ; but were liable only 
 after the creditor had sought payment from the princi- 
 pal debtor, and he was unable to pay. This was called 
 the benefit or right of discussion.^ Under those sys- 
 tems of jurisprudence which adopt the Roman law, and 
 under the present law of France, the rule is similar ; 
 and the obligation contracted by the surety with the 
 creditor is, that the latter shall not proceed against him 
 until he has first discussed the principal debtor, if he is 
 solvent. This right the surety enjoys, as the heneficium 
 
 1 Burgundus, Tract. 2, n. 24, 25. 
 
 - Ante, \ 264 ; Henry on Foreign Law, 51, 52 ; 2 Boullenois, Observ. 
 46, p. 475, 476 ; P. Voet, De Statut. ^ 9, ch. 2, ^ 10. 
 
 3 1 Domat, B. 3, tit. 4, ^ 2, art. 1 ; Dig. Lib. 4G, tit. 1, 1. 68 ; Novell, 
 tit. 4, cap. 1.
 
 526 CONFLICT OF LAWS. [CH. VIIL 
 
 ordinis vcl exciissionis} And, again ; if other persons 
 are joined with him in the obligation as sureties, he is 
 not in the first instance to be proceeded against for the 
 whole debt, but only for his share of it, if his co-sure- 
 ties and co-obligees are solvent.^ This is commonly 
 known as the benefit of division, or heneficiiim divisionis. 
 If the suit should be brought in a different country 
 from that where the contract or obligation is made, the 
 right of discussion or division would still belong to the 
 surety, as an incident to his contract, although it did 
 not exist by the law of the place where the suit was 
 brought [Lex fori?) The converse proposition would 
 be equally true.^ Such, also, is the lien of a vendor, 
 upon a real estate sold for the payment of the purchase 
 money, according to the law of England ; the lien given 
 for the purchase money, upon goods or merchandise 
 sold by the civil law, and by the law of some modern 
 countries ; ^ the right of stoppage in transitu of the 
 vendor of goods, in case of the insolvency of the pur- 
 chaser in the course of the transit ; ^ the lien of a bot- 
 tomry bond on the thing pledged -, the lien of mariners 
 
 1 Pothier on Oblig. n. 407 to n. 414 ; Code Civil of Fiance, art. 2021 
 to art. 2026. 
 
 2 Pothier on Oblig. n. 415 to n. 427 ; Code Civil of France, art. 2026. 
 
 3 3 Purge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 765, 766 ; 
 Carroll v. Waters, 9 Martin, R. 500. 
 
 4 Ibid.; ante, ^ 316 b. 
 
 5 1 Domat, Civil Law, B. 4, § 2, n. 3 ; 3 Purge, Comm. on Col. and 
 For. Law, Pt. 2, ch. 20, p. 770, 771. See, as to Lien of Vendor on Real 
 Estate, Gilman v. Brown, 1 Mason, R. 219, 220, 221 ; Warrender v. 
 Warrender, 9 Bligh, K. 127. — It seems, that a lien created by the Lex 
 loci contractus maybe dissolved and extinguished not only according to the 
 law of that place, but also by any act done in a foreign country, which, 
 according to the law of that country, would work such dissolution or extin- 
 guishment. See post, § 351 a to 351 d. 
 
 6 Post, ^ 401.
 
 CH. VIII.] FOREIGN CONTRACTS. 527 
 
 on the ship for their wages ; the priority of payment 
 in rem, which the law sometimes attaches to peculiar 
 debts, or to particular persons. In these, and like 
 cases, where the lien or privilege is created by the Lex 
 loci contractus, it will generally, although not univer- 
 sally, be respected and enforced in all places where the 
 property is found, or where the right can be benefi- 
 cially enforced by the Lex fori} And on the other 
 hand, where the lien or privilege does not exist in the 
 place of the contract, it will not be allowed in another 
 country, although the local law, where the suit is 
 
 1 See 3 Bulge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 770, 
 771, 779 ; post, ^ 401 ; Foelix, Conflit des Lois, Revue Etrang. et Franc. 
 Tom. 7, 1840, ^ 33, p. 217, 228. The latter says ; " Nous avons vu, que 
 la legle suivant laquelle les meubles sont regis par ]a loi du domicile de 
 celui, a qui ils apparticnnent, repose sur le rapport intime entre les meu- 
 bles et la personne du 'propri6taire, sur une fiction legale, qui les repute 
 exister au lieu du domicile de ce dernier. De la il suit, que cette i^gle 
 ne peut s'appliquer, qu'aux circonstances, ou actes dans lesquels les meu- 
 bles n'apparaissent, que comme un accessoire de la personne ; par exem- 
 ple : en cas de succession ab intestat, des dispositions de deni^re volont6 
 ou entre-vifs (telles que les contrats de mariage expr^s ou tacites.) La 
 regie est sans application i tous les cas ou les meubles n'ont pas un rap- 
 port intime avec la personne du propri6taire : par exemple, lorsque la pro- 
 priety de meubles est r^clam^e, et contestee, lorsqu'on invoque la maxima, 
 qu'en fait de meubles possession vaut litre ; lorsqu'il s'agit d'exercer des 
 privileges ou des voies d'ex6cution sur les meubles, d'en prohiber l'ali6na- 
 tion, d'en prononcer la confiscation, ou de declarer une succession mobiliere 
 en d6sh6rence au profit du fisc, ou enfin d'interdire I'exportation des meu- 
 bles. Dans tous ces cas, il faut appliquer la loi du lieu, ou les meubles se 
 trouvent effectivement : car la dite fiction cesse par le fait. Par rapport 
 aux privileges sur les meubles, Hert soutient I'opinion contraire, en faisant 
 observer, que toutes les questions de privilege sur les meubles doivcnt 6tre 
 decid6es dans le lieu du domicile du debiteur, par suite de la connexile des 
 causes. Cette opinion revient a celle, qui attribue t\ la loi du domicile son 
 effat sur I'universalite des biens d'un individu. Nous refuterons cette 
 opinion au n° 37 ci-apves. Ce que nous venons de dire des meubles s'ap- 
 plique non seulement aux meubles corporels, mais aussi aux meubles in- 
 corporels ; il y a identity de raison." See post, ^ -101 to 403.
 
 528 CONFLICT OF LAWS. [CH. VIIL 
 
 brought, would otherwise sustain it.^ Thus, if goods 
 are purchased iu England by a citizen of Louisiana, no 
 lien or privilege will exist for the unpaid price, in case 
 of his insolvency, although the law of Louisiana allows 
 it in common cases ; because it is not given by the law 
 of the place of the contract, (England.") Nor would 
 there seem to be any just ground of doubt, that a bot- 
 tomry bond would generally be held valid in rem in all 
 commercial countries, if the lien is good by the law of 
 the place of the contract.^ 
 
 § 322 c. We have said, that such liens will be gene- 
 rally, although not universally, respected ; for although 
 the foreign jurists generally assert the doctrine, they 
 do not universally agree in it as to all kinds of pro- 
 perty, or under all circumstances. Some of them take 
 a distinction between personal or movable property, 
 and real or immovable property ; giving effect to the 
 former according to the law of the place of the contract, 
 and insisting, as to the latter, that no lien can exist, 
 except it is founded in the law of the place where the 
 property is situated (m sitcc.) Others make no dis- 
 tinction whatsoever in respect to such lien or privilege 
 between movable property and immovable property ; 
 some holding, that in both cases the Lex loci contractus 
 is equally to govern ; and some, that in both cases 
 the Lex rei sitcc is equally to govern.^ 
 
 » Ibid. 
 
 2 Whiston V. Stodder, 8 Martin, R. 95, 134, 135. 
 
 3 Post, ^ 323, note 2. 
 
 4 See sonae of these opinions cited in Rodenburg^, De Divers. Statut. 
 tit. 2, ch. 5, ^ IG ; 2 Boullenois, Appx. p. 49, 50, 51 ; Mattha-us, De Auc- 
 tionibus. Lib. 1, ch. 21, n. 35 to n. 41, p. 294 to p. 299 ; 1 Boullenois, 
 Obs. 30, p. 833, 834, 838 ; Foelix, Conflit des Lois, Revue Etrang. et 
 Franc. 1840, Tom. 7, ^ 32 to 34, p. 222 to p. 228.
 
 CH. VIII.] FOREIGN CONTRACTS. 529 
 
 § 322 d. Rodenburg notices these distinctions ; and 
 says, that, although, by the laws of some countries 
 where a marriage is had, the wife has an hypothecation 
 upon all the property of her husband, for her dotal por- 
 tion, [pro restitutione dot is,) yet a question may arise, 
 whether this hypothecation can reach the property of 
 the husband, situate in another country ; where no such 
 law exists ; or the law is to the contrary. He remarks, 
 also, that Christina^us has stated, that the affirmative 
 has been maintained in many decisions. But Roden- 
 burg adds, that he dares not affirm that they have been 
 rightly made. Qiuv tamcn an rede se haheant, affirmare 
 non ausim. And he thinks, that the hypothecation does 
 not extend to the real property of the husband, situate 
 in a foreign country ; because the statute is real, and 
 cannot have an extra-territorial authority. Consequenter 
 non tacita seu legalis liypotheca adstringit bona alia, qiiam 
 quibus lex poterit imperare ; ea nimiriim, quce legislatoris 
 territorio sunt supposita, ciijus soliiis loci' legis est, tanquam 
 statuii realis, realcm in rebus effectmn iwoducere, cum iilte- 
 rius judicis auctoritas non efficiat hypoihecam} 
 
 § 323. But the recognition of the existence and valid- 
 ity of such liens by foreign countries is not to be con- 
 founded with the giving them a superiority or priority 
 over all other liens and rights, justly acquired in such 
 foreign countries under their own laws, merely because 
 the former liens in the countries where they first at- 
 tached, had there by law, or by custom, such a superi- 
 ority or priority. Such a case would present a very 
 different question, arising from a conflict of rights 
 
 1 Rodenburg, De Divers. Stat. tit. 2, ch. 5, § 16 ; 2 Boullenois, Appx. 
 p. 47. See also Rodenburg, tit. 2, ch. 5, ^ 5, 6, 7 ; 2 Boullenois, Appx. 
 p. 37, 38. See also post, ^ 324, 325 ; 1 Boullenois, 681, 685. 
 
 CONFL. 45
 
 530 CONFLICT OF LAWS. [CH. VIIL 
 
 equally well founded in the respective countries.^ This 
 very distinction was pointed out by Mr. Chief Justice 
 Marshall, in delivering the opinion of the Court, in an 
 important case. His language was ; " The law of the 
 place where a contract is made, is, generally speaking, 
 the law of the contract ; i. e. it is the law by which the 
 contract is expounded. But the right of priority forms 
 no part of the contract. It is extrinsic, and rather a 
 personal privilege, dependent on the place where the 
 property lies, and where the court sits which is to 
 decide the cause." ^ And the doctrine was on that 
 occasion expressly applied to the case of a contract 
 made in a foreign country with a person resident 
 abroad.3 
 
 § 324. Huberus has also laid down the same quali- 
 fying doctrine ; foreign contracts are to have their full 
 effect here, provided they do not prejudice the rights of 
 our own country, or its citizens. Qmdentis nihil iMcstati 
 aid jtiri alteriiis imperantes ejusque civiiim prcBJudicetur.^ 
 Or, as he has more fully expressed it in another place ; 
 Effeda coniradimm ccrto loco iJiitoriim, pro jure lod illius 
 
 1 Post, ^ 324, 327, ^ 524 to § 527, ^ 582 ; Foelix, Conflit des Lois, Revue 
 Etrang. et Franc. Tom. 7, 1840, ^ 33, p. 227, 228. — This question might 
 arise even in relation to a bottomry bond, which by the lavp of most mari- 
 time countries has a priority or preference over most other claims, in case of 
 a deficiency of the proceeds to satisfy all claims. In such a case, if the local 
 law of the country, where the bond was sought to be enforced, differed, as 
 to such propriety or preference, from that of the place where the bond was 
 made and executed, it might be a very nice question, which ought to pre- 
 vail ; and would therefore probably be disposed of upon consideration of 
 local and municipal policy. But upon this subject we shall have occasion 
 to speak hereafter. See post, ^ 401 to ^ 403. 
 
 2 Harrison v. Sterry, 5 Cranch, 289, 298. See Ogden v. Saunders, 
 12 Wheaton, R. 361, 362. 
 
 3 Ibid. 
 
 4 Huberus, De Conflict. Leg. Tom'. 2, Lib. 1, tit. 3, ^ 2.
 
 CH. viil] foreign contracts. 531 
 
 alibi qiioqiie olservantiiry si nullum inde civihus alienis crea- 
 tur p'cejiidicium in jure sibi quwsito ; ad quod potestas 
 altoius hci non tenetur, neque potest extendere jus diversi 
 tcnitorii} Hence he adds, that the general rule should 
 be thus far enlarged. If the law of another country is 
 in conflict with that of our own state, in which also a 
 contract is made, conflicting with a contract made else- 
 where, we should, in such a case, rather observe our 
 own law than the foreign law,- Ampliamus hanc regu- 
 lam tali extcnsione. Si jus loci in alio imperio pugnet cum 
 jure nostrce civitatis, in qua contractus etiam initus est, con- 
 figcns cum eo contractu, qui alibi celebratus fuit ; magis est, 
 lit jus nostrum, quam jus alienum, servemus? And he 
 puts several cases to illustrate the rule. By the Roman 
 law, and the law of Friesland, an express hypotheca- 
 tion of movable property, oldest in date, is entitled to 
 a preference or priority, even against a third possessor. 
 But it is not so among the Batavians. And, therefore, 
 if, upon such an hypothecation, the party brings a suit 
 in Holland against such third possessor, his suit will be 
 rejected ; because the right of such third possessor 
 cannot be taken away by the law of a foreign country.'' 
 § 325. He also puts another case. In Holland, if a 
 marriage contract is privately or secretly made, stipu- 
 lating that the wife shall not be liable for debts con- 
 tracted solely by the husband, it is valid, notwithstand- 
 ing it is to the prejudice of subsequent creditors. But 
 in Friesland such a contract is not valid unless published ; 
 
 1 Huberus, Tom. 2, Lib. 1, tit. 3, De Confl. Leg. ^ 11 ; post, § 525. 
 
 2 Huberus, Tom. 2, Lib. 1, tit. 3, § 11 ; post, ^ 525. 
 
 3 Huberus, Tom. 2, Lib. 1, tit. 3, ^ 11 ; ante, ^ 239. 
 
 4 Ibid. — See also Rodenburg, De Divers. Stat. tit. 2, ch. 5 ; 2 Boul- 
 lenois, Appx. p. 47; 1 Boullenois, p. 683, 684.
 
 532 CONFLICT OF LAWS. [CH. VIIL 
 
 nor would the ignorance of the parties be any excuse, 
 according to the Roman law and equity. If the hus- 
 band should contract debts in FrieslancI, on a suit there, 
 the wife would be held liable for a moiety thereof to 
 the Frisian creditors, and could not defend herself under 
 her private dotal contract; for the creditors might 
 reply, that such a private dotal contract had no effect 
 in Friesland, because it was not published. But the 
 Batavian creditors, contracting in Holland, although 
 suing in Friesland, would not be entitled to a similar 
 remedy ; for, in such a case, the law of the place of 
 their contract alone, and not the law of both countries, 
 would come under consideration.^ The author was 
 probably here treating of a case where the debts were 
 contracted in Friesland, after the husband and wife had 
 removed their domicil there ; or, at least, if there was 
 no change of domicil, where the property of the parties, 
 to be affected by the marriage contract, was situate 
 in Friesland. Under any other aspect, it would be diffi- 
 cult to maintain the doctrine. 
 
 § 325 a. Huberus in another place asserts a similar 
 doctrine. A creditor (says he) on account of a bill of 
 exchange, exercising his right in due time, has a pre- 
 ference in Holland to all other creditors against the 
 movable property of his debtor. The debtor has pro- 
 perty of the same kind in Friesland, where no such 
 
 ^ Huberus, Lib. 1, tit. 3, De Confl. Leg. ^ 11. — Huberus adds; Et 
 hoc prevalet apud nos, in contractibus heic celebratis, ut nuperrim^ con- 
 sullus respondi. The sense of this passage in Huberus is mistranslated in 
 the note to 3 Dallas, R. 375. The translator has translated the words, in 
 contractibus heic celebratis, ^^ where the marriage was contracted here," 
 Bind jus loci contractus, " the law of the place where the marriage was 
 contracted ;" whereas the author in this clause is manifestly referring to 
 the contracts (debts) of the respective creditors.
 
 CH. VIII.] FOREIGN CONTRACTS. 533^ 
 
 law obtains. The question is, whether such a creditor 
 will be preferred there to all other creditors? Cer- 
 tainly not, since by the law there, the right of the cre- 
 ditors is established. Creditor ex causa Cambu,jussm(m 
 in tempore exercens, lorccfertur apud Batavos omnibus aliis 
 creditorihiis in bona mohilia debitoris. Hie hahct ejusmodi 
 res in Frisia, ubi hoc jus non obtinet. An, ibi, creditor 
 etiam p'cvferetur cdiis creditoribus ? Nullomodo ; quoniani 
 his creditoribus vi legum hie receptarwn jus prideni qua^si- 
 ium est} 
 
 § 325 b. The same doctrine is adopted by ITertius. 
 After remarking, that in this matter of preferences and 
 privileges of creditors, the statute laws of particular 
 countries have changed the common (the civil) law ; in 
 answer to the question, what law ought to govern in 
 such cases, he says ; If the controversy respects im- 
 movables, the law of the country of the situs rei is, 
 without doubt, to govern. But in respect to movables, 
 if the question arises in cases of contract, or of quasi 
 contract, the law of the place of the contract is to 
 be examined. But, inasmuch as the preference arises 
 from some peculiar law or privilege, it ought not to be 
 extended to the prejudice of the state where the debt- 
 or resides, and his movables are deemed to be collected. 
 In the conflict (concursus) of creditors, the law of the 
 place of domicil of the debtor ought to be observed. 
 Enimvero, quia antelatio ex jure singulari vel privilegio 
 competit, non debet in prwjiidicium illius civitatis, sub qua 
 debitor degit, et res ejus mobiles contineri censentur, extendi. 
 Ad jura igitur domicilii debitoris, ubi fit concursus credito- 
 
 1 D. Hub. Lib. 3, J. P. Univer. cap. 10, ^ 44, cited 1 Hertii Opera, De 
 Collis. Leg. ^ 4, n. 64, p. 150, edit. 1737 ; Id. p. 511, edit. 1716 ; post, 
 ^627. 
 
 45*
 
 534 CONFLICT OF LAWS. [CH. VIIL 
 
 mm, et quo omnes cvjusciinque generis lites adversus ilium 
 deUtorem propter connexitatem causes traduntitr, 7'egidariter 
 respiciendum erif} 
 
 § 325 c. Rodenburg 1ms discussed this subject at 
 large, in relation to the liens, the privileges, and the 
 priorities of creditors in cases of insolvency, and in other 
 cases, where his property, movable or immovable, is situ- 
 ated in different countries, and is not sufficient to sa- 
 tisfy all his debts. This is commonly known by the 
 name of Ooncursus creditoriim, and the privilege, or pri- 
 ority itself, by the name of the Jus Prwlationis. It may 
 be useful to present a brief sketch of the substance of 
 his remarks and his conclusions on the subject. In 
 respect to the property of debtors in different countries, 
 he says, that jurists have distinguished between those 
 things which concern the form and order of the suit, and 
 those which concern the decision or matter of the suit. 
 The suit is to be according to the law of the place where 
 it is instituted. As, for example, if the debtor's pro- 
 perty is to be taken in satisfaction of a judgment, the 
 execution and sale thereof are to be according to the 
 law of the place where the goods are situated, or where 
 they are taken upon the judgment. But if the debtor 
 has become bankrupt, or notoriously insolvent, so that 
 there is no further opportunity for the seizure of his 
 movables, or for execution thereon, all the creditors be- 
 ing in the same condition, the question as to their rights 
 and privileges should be discussed or litigated in the 
 place of his domicil ; for it is properly a question as to 
 the proceedings in the suit, de litis ordinatione.^ But a 
 
 1 1 Hertii Opera, De Collis. Leg. ^ 1, n. Gl, p. 150, edit. 1737 ; Id. 
 p. 211, edit. 1716. 
 
 2 Rodenburg-, De Div. Slat. tit. 2, ch. 5, \S 16 ; 2 Boullenois, Appx. p. 
 47, 48 ; 1 Boullenois, 684, 685.
 
 CH. viil] foreign contracts. 535 
 
 different rule prevails as to the decision and merits of a 
 suit; and the rights of the creditors, in respect to the 
 priority of their debts upon the property of the debtor, 
 ought to be measured according to the law of the place 
 where it is really situated, or is presumed to be situa- 
 ted.' 
 
 § 325 cl. In respect to movable property, as it is 
 always supposed to be in the place of the domicil of the 
 debtor, (for all effects not having a fixed location are 
 presumed to adhere to his person,) it is the law of his 
 domicil which ought to decide the rights of creditors as 
 to such movables. This rule will prevail, where the 
 goods are in his possession, unless indeed a creditor has 
 by his diligence, according to the laws of the place, ac- 
 quired a superior right by an execution over them ; for 
 he will then retain that privilege, since it is not so much 
 founded in the quality of the debt, as that the creditor 
 has by his diligence gained a priority ; so that this pri- 
 vilege being attached to the formalities regulating the 
 execution, it ought therefore to be regulated by the 
 law of the place of execution. And besides ; the Judge 
 who puts the creditor judicially in possession of pro- 
 perty, seized within his jurisdiction, is regarded as act- 
 ing in the name of the debtor ; so that it may be deemed 
 affected by the same reasoning, as if the debtor himself 
 had given it in pledge to the creditor in the place where 
 the property is seized.^ 
 
 § 325 e. Uodenburg afterwards puts the case of a 
 merchant having different shops of trade in different 
 places ; and he says that the question has been put. 
 
 1 Rodenburg, ibid. ; 2 Boullenois, Appx. p. 48 ; 1 Boullenois, 685 ; 
 post, ^ 524 to 527, 582. 
 
 2 Rodenburg, ibid. ; 2 Boullenois, Appx. p. 48 ; 1 Boullenois, 685.
 
 536 CONFLICT OF LAWS. [CH. VIII. 
 
 whether in such a case the creditors ia each place are 
 entitled to be paid out of the property there in trade, 
 or the whole property is to be divided among all the 
 creditors. Some jurists maintain the affirmative. But 
 others, with whom Rodenburg agrees, hold, that the 
 whole should be distributed among the creditors gene- 
 rally in cases of insolvency.' 
 
 § 325/. Rondenburg then puts the case of a contract 
 made in a foreign country, not being the domicil of the 
 debtor, by whose laws a preference is granted to credit- 
 ors by promissory notes of hand ; and he says, that it 
 might seem in such a case, that the law of the place 
 where the contract is made, ought to govern ; for that is 
 the law by which the obligation of contracts is ordina- 
 rily expounded and governed ; ^ Eo quod ohligationes di- 
 rigi soleant a loco, ubi contraJmntur? But after stating, 
 that Mascardus has expressed a similar opinion, follow- 
 ing Decianus, he adds : That it is a nearer approach to 
 the truth to say, that the law of the place of the con- 
 tract ought not to govern ; because that law can deter- 
 mine only the greater or less extent of the engagements 
 of the debtor, and concerns only the contracting parties, 
 who, having contracted in another place than that of 
 their domicil, are presumed to have referred to the laws 
 of that place the form, the obligation, the mode, the con- 
 dition, and whole nature of the contract. Veriim non 
 esse respiciendimi locum contractus vero ]propnus est ; utpote, 
 qui eo duniaxat pertineat, quo vel arctiiis, vcl remissiiis ex 
 
 1 Rodenburg, De Div. Stat. tit. 2, ch. 5, ^ \Q ; Boullenois, Appx. p. 
 49, 50 ; 1 Boullenois, 687, 688. 
 
 2 Rodenburg, De Div. Slat. tit. 2, ch. 5, ^ 16 ; 2 Boullenois, Appx. p. 
 50 ; 1 Boullenois, 688. 
 
 3 Ibid.
 
 CH. viil] foreign contracts. 537 
 
 contractu suo tcneatiir ipse debitor, adeoqiie spectattir, quoad 
 ipsos contrahentes, quod eo ipso, quod alio in loco contractum 
 celebrant, adejusdem leges, formam, vinculum, modum, condi- 
 tionem, totam denique negotiinaturam, sui respectu, componunt} 
 lie proceeds to render the reasons of his opinion, that 
 this preference of creditors constitutes no part of the 
 law of the contract, obligatory in other countries, and 
 says : Moreover, what does not arise from the act of 
 man, but simply from the authority of the law, of which 
 sort all privileges of preference among creditors are, it 
 should be said, that the authority of the legislator has 
 no effect upon property not subjected to him, when the 
 controversy respects the interest of third persons, or of 
 other creditors, who have not contracted in that place, 
 and who consequently have submitted themselves to 
 the laws of that place. Besides ; it is manifest, that we 
 do not exercise these sorts of privileges upon the per- 
 sons of debtors, because, being directed upon the pro- 
 perty, they have their place properly among all the 
 creditors. Ccderum, si quid non ab actu hominis, sedapotes- 
 tate legis proficiscitur, cujusmodi sunt prcelationis privilegia 
 omnia, dicendmn est vim legislatoris nullani esse in bona sibi 
 non subjecta tertii respectu, seu creditorimi aliorum, qui inibi 
 nullum gesserint negotium, ncc legibus loci istius se submise- 
 rint. Ad hcec constat privilegiis isiis non agi in debitoris 
 personam, utpote qum in res directa, locum habeant inter cre- 
 ditores.^ 
 
 § 325 g. Rodenburg farther insists, that the same 
 
 1 Rodenburg, De Div. Stat. tit. 2, ch. 5, § 16 ; 2 BouUenois, Appx. p. 
 50 ; 1 BouUenois. 
 
 2 Rodenburg, De Div. Stat, tit. 2, ch. 16 ; 2 BouUenois, Appx. p. 50 ; 
 1 BouUenois, 688 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 
 20, p. 770, 771.
 
 538 CONFLICT OF LAWS. [CH. VIIL 
 
 rule applies when the debtor has changed his domicil 
 to another country. If in the country of his original 
 domicil where the contract is made, there would be a 
 privilege thereby created upon the movables of the 
 debtor, and he afterwards removes to another country, 
 where no such privilege exists, Kodenburg says, that 
 although it might seem that the privilege ought still to 
 continue on his movables in his old domicil, yet the 
 true rule is, that the law of the new domicil is to pre- 
 vail ; for movables are governed by the law of the do- 
 micil. Nee aliud de eo deUtore dieendum est, qui in loco 
 illo privilegii domiciliumfoverit tempore celelrati cantr actus ; 
 quamvis enim videri p)ossit Jus illud prcelationis creditori 
 per leges loci domicilii in reins moUlihus legitime qucesitum, 
 siibsecutd domicilii mutcdione non debere amitti ; mohilia 
 tamen, in qidhus prioris domicilii lege temdt prcelationis pri- 
 vilegium, traductis alio domesticis laribus, traducuntur qiio- 
 qu& in leges novi domicilii, edque lege administrantiir ; mu- 
 tatione enim domicilii midcdur et moUliiim conditio eoriim, 
 cpice in manum cdiis tradita non sunt, etiam dispendio tercii} 
 § 325 k In regard to immovables, Rodenburg holds, 
 that, if there is either an express or tacit hypothecation 
 or lien by the law of the domicil of the debtor, which 
 is not equally allowed by the law of the situs thereof, 
 the law of the situs or situation is to govern ; and that 
 the creditor will in vain seek to assert any right of pri- 
 ority or privilege ; for, as no man has authority ex- 
 pressly to create such a charge under a foreign law by 
 a judicial proceeding, so neither can the foreign law 
 itself exert such an authority ; since real statutes have 
 
 1 Rodenburg, de Div. Stat. tit. 2, ch, 5, ^ 16 ; 2 Boullenois, Appx. 
 p. 50 ; 1 Boullenois, 688, 689 ; 3 Burge, Coram, on Col. and For. Law, 
 Pt. 2, ch. 20, p. 770, 771.
 
 CH. VIII.] FOREIGN CONTRACTS. 539 
 
 no operation beyond the territory where they are en- 
 acted. Tandem id ad immohiUa transeam. FaCyjus tacitw 
 sen legalls lujpothecm non ohtinere idem in loco rei sitw, 
 quod ohtimt in loco domicilii dehitoris, dicendimi fnistra est 
 esse creditorem^ qui hujusmodi liypothecw oUcntu priorita- 
 tem sibi asseriierit ; cum ceqiie atqiie expressim facto homi- 
 7iis, coram iino jiidicio, liypothecce nexu devinciri neqiieiint 
 alteriits territorii hona, ita nee legis idlius potestas est afficere 
 prcedia extera ; quod statida realia tcrritoriiim non egredi- 
 antur} The result, therefore, of the doctrine of Roden- 
 burg seems to be, that the proper /on/wi to decide upon 
 all questions of the priorities and preferences of credit- 
 ors, is the place of the domicil of the debtor ; and that 
 the law. of that place, and not the law of the place of 
 the contract, is to govern in all cases of such priorities 
 and preferences, in respect to movables situated in his 
 place of domicil. But as to movables situate else- 
 where, as well as to immovables, the law rei sitce is to 
 govern ; although, to prevent confusion and inconveni- 
 ence, the administration and adjudication thereof in all 
 cases is to be by the forum or tribunal of the debtor's 
 domicil." 
 
 1 Rodenburg, De Div. Stat. tit. 2, ch. 5, ^\Q\ 2 Boullenois, App.K. 
 p. 50, 51 ; 1 Boullenois, 689, 690 ; Id. Observ. 30, p. 818 to p. 875. 
 
 2 1 Boullenois, Observ. 30, p. 818 to p. 820. —As the work of Roden- 
 burg is rarely found in our Libraries, and the subject here discussed is of 
 great practical consequence, it may be useful to subjoin the whole passage 
 in this note. "Pergamus quasrere ulterius, creditoribus de praelatione 
 contendentibus, quod Jus cujusque loci oporteat inspicere. Primum uta- 
 mur vulgata D D. distinctione, qua separantur ea, qua; litis formam con- 
 cernunt ac ordinationem, ab iis, qua; decisionem aut nnateriam. Lis ordi- 
 nanda, secundum morem loci, in quo ventilatur. Ut, si judicati exequendi 
 causa bona debitoris distrahantur, qui solvendo sit, executio peragatur eo 
 loci, ubi bona sita sunt, aut in causam judicati capiuntur. Sin cesserit 
 foro debitor, aut propalam desierit esse solvendo, ut isti mobiliura capioni, 
 aut ulli omnino executioni non sit ultra locus, facta jam omnium credito-
 
 540 CONFLICT OF LAWS. [CH. VIIL 
 
 § 325 i. Boullenois in commenting upon Rodenburg 
 says, that every hypothecation or privilege upon pro- 
 
 rum conditione pari, disputatio de privilegiis, aut concursu creditorum 
 veniat instituenda, ubi debitor habuerit domicilium. Unde cum apud nos 
 reliclis fortunis solum vertisset debitor obaeratus, ac res ejus sitas in Hol- 
 landia venum proscriberet curator, creditores Hollandi, apud Provincia3 suae 
 Curiam venditioni intercedentes, causa ibidem ventilata tulerunt repiilsam : 
 audito in et curatore, quod apud nos super universis debitoris facultatibus, 
 adeoque et pretio ex venditione ilia redigendo, ab uno eodemque Judice pe- 
 rasafrendadecidendaque sit creditorum contentio : ex communi scribentium 
 placito. Ob manifestam quoque causae continentiam, ne super creditorum 
 Jure a diversis Judicibus dissonae sententia? pronunlientur. Hajc de litis 
 ordinaloiiis. Aliud fere a pra?cedentibus obtinere dixeris in ejusdem deci- 
 soriis : Jus enim creditorum super prioritate in bonis debitoris demeteri 
 oportet a loco, ubi distracta bona sita sunt, velle esse, intelliguntur. Et 
 quidem de mobilibus si qu^ratur, cum semper ibi esse existimentur, ubi 
 Creditor [Debitor] fovet domicilium, cujus ossibus vagaj ha3 res intelligun- 
 tur adhffirere, utique ex lege ejusdem domicilii discutienda causa credito- 
 rum est. Hsec ita nisi forsan executio directa sit in ejus debitoris mobilia, 
 qui adhuc in possessione suorum bonorum sit, feret enim tum creditor dili- 
 gentiiT! ac vigilantiae suaj pracmium, si quod eo nomine loci mores, ubi in 
 causam judicati ceperit mobilia, pra^ aliis creditoribus ipsi indulserint ; 
 quod privilegium illud non tam proficiscatur ex credito, quam ex acta 
 ipso executionis, qua alios creditor prrevertit, adeoque base res tanquam 
 concernens exequendi ordinem, legem accipiat a loco, ubi ilia peragitur, ac 
 praeterea pignus illud judiciale ita constituens Judex in bonis, apud se in 
 causam judicati captis, dicitur supplere vicem debitoris ; ut perinde res 
 habeatur, ac si ipse debitor bona ilia eo loci pignori tradidisset. Ila^c ita 
 si in uno loco debitoris sit domicilium." Again ; " Fac foris contractum 
 celebratum, ubi per mores ejusdem loci Jus pra-Iationis inter chirographa- 
 rios compelit, locus videri posset attendendus esse contracla? obligationis : 
 eo quod obligationes dirigi soleant a loco, ubi contrahuntur. Verum non 
 esse respiciendum locum contractus vero proprius est : utpote qui eo dun- 
 taxat perlineat, quo vel arctius, vel remissius ex contractu suo teneatur 
 ipse debitor, adeoque spectetur quoad ipsos contrahentes, quod eo ipso, 
 quod alio in loco contractum celebrent, ad ejusdem leges, fotmam, vincu- 
 lum, modum, conditionem, totam dcnique negolii naturam, sui respectu, 
 componunt. Ca'terum si qui non ab actu honiinis, sed ^ potestate legis 
 proficiscilur, cujusmodi sunt pralationis privilegia omnia, dicendurn est 
 vim Legislatoris nuUam esse in bona sibi non subjecta tertii respectu, seu 
 creditorum aliorum, qui inibi nullum gesserint negotium, nee legibus loci 
 istius se submiserint. Ad hajc constat privilegiis istis non agri in debi- 
 toris personam, utpote quae in res directa, locum habeant inter creditores.
 
 CH. VIII.] FOREIGN CONTRACTS. 541 
 
 perty is to be deemed a real right [jus ad rem, or jus in 
 re.) An action without any hypothecation or privilege 
 is purely personal. The existence of a real right must 
 
 Ecquid autem Juris est alieno Judici circa res sibi non supposilas, dispen- 
 dio tertii, qui apud se non contraxit? Nee est, quod retorserit creditor 
 suum non minus spectari oportere, atque debitoris domicilium. Constat 
 quippe, qui cum alio contrahit, non esse vel debere esse conditionis ejus 
 ignarum. Ut nihil impuletur ei, qui in mobilibus a loco domicilii debi- 
 toris sua mensus est privilegia, ad quem locum palam est mobilia perli- 
 nere : cum culpa non vacent alii, qui privilegium sibi assumpserint a po- 
 testate Legislatoris alieni, cui de mobilibus disponendi nullum Jus est. 
 Nee aliud de eo debitore dicendum est, qui in loco illo privilegii domici- 
 lium foverit tempore celebrati contractus : quamvis enim videri possit Jus 
 illud pra^lationis, creditori per leges loci domicilii in rebus mobilibus legi- 
 time quixjsitum, subsecuta domicilii mutatione non debere amitti ; mobilia 
 tamen, in quibus prioris domicilii lege tenuit pra?lationis privilegium, tra- 
 duclis alio domesticis laribus, traducuntur quoque in leges novi domicilii, 
 eaque lege administrantur : mutatione enim domicilii mutatur et mobilium 
 conditio eorum, qua3 in manura aliis tradila non sunt, etiam dispendio 
 tertii: quo argument©, alia quanquam in specie, usus est Senatus Parisi- 
 ensis, apud Chopin. Et hue spectat quod Burgundus tradit, mobilia sequi 
 personam, hoc est (inquit) in domicilio ejus existere, et non alitor quam 
 cum domicilio transferri. Tandem ut ad immobiiia transeam. Fac Jus 
 tacita', seu legalis hypothecaj non obtinere idem in loco rei siltu, quod ob- 
 tinet in loco domicilii debitoris, dicendum frustra esse creditorum, qui 
 hujusmodi hypothecjc obtentu priorilatem sibi asseruerit : cum a^que atque 
 expressira facto hominis, coram uno judicio, hypothecs; nexu devinciri 
 nequeunt alterius territorii bona, ita nee legis ullius potestas est afficere 
 proedia extera ; quod Statuta realia territorium non egrediantur, ut supra 
 tractatum est. Ita si Hollandus, cui generaliter bona debitoris coram quo- 
 cunque Hollandiaj judicio, hypothecic data sunt, apud nos cum reliquis 
 creditoribus experiatur de pradatione, profutura erit ei hypotheca in bonis, 
 in quacunque Hollandia; parte, extra districtum Amstelodamensem, sitis ; 
 non autera in bonis suppositis territorio nostratium, quibus nulla subsistit 
 hypotheca; datio, nisi pacta coram judice rei sita;. Contra cum apud Hol- 
 landos hypotheca generalis extingnatur alienatione, non juvabitur creditor 
 moribus nostris, quibus res ita obligata ad emptores transit cum suo onere. 
 Consimililer, si teneat alibi Consuetudo, ut in bonis debitoris concurrant 
 creditores, nulla habita ratione hypothecarum quale Statutum profert Flo- 
 rentinum Straccha. Ex lege loci rei sita dirimenda creditorum contentio." 
 Rodenburg, De Div. Statut. lit, 2, ch. 5, (5> 10 ; 2 Boullenois, Appx. p. 47 
 to p. 51. 
 
 CONFL. 40
 
 542 CONFLICT OF LAWS. [CH. VIII. 
 
 depend either upon local ordinances, or upon the law of 
 the situs of the property ; and if the law of the situs 
 differs from the ordinances of the place, where the par- 
 ties create the hypothecation or privilege, in allowing 
 or disallowing such an hypothecation or privilege, the 
 law of the situs must govern. In regard to movables, 
 they are presumed to have their situs in the place of 
 the domicil of the owner ; and if the law of that domicil 
 gives a privilege upon them, that privilege ought to be 
 regarded in every other place in which those movables 
 may be found.^ BouUenois in this respect adopts the 
 language of Lautenburg. In rebus moUlihus ohservari 
 dehent jura illius loci, in quo illormn dominus, vel creditor 
 hdbet domicilium, etiam quando agitur de concursu et prwla- 
 tione creditorwn? In regard to immovables, BouUenois 
 adopts the doctrine, that all preferences and privileges 
 thereon are real, and are therefore governed by the law 
 rei sitw? 
 
 § 325 /". John Voet has treated this question with 
 great fulness. In respect to priority and privileges in 
 cases of hypothecations, he insists, that, as to movable 
 property, the law of the domicil of the debtor ought 
 to govern the order thereof, as well, because all 
 movables are understood to be in the place where the 
 owner lives, and are to be governed by the law of that 
 place, as because all creditors, who ought to bring their 
 suit in the tribunal where the property is, (forum rei,) 
 are deemed in their contracts to have had reference to 
 the place of domicil of the debtor, since in that place 
 the debtor, as the principal forum, ought to be sued ; 
 
 1 1 BouUenois, Observ. 30, p. 832, 833, 834. 
 
 2 Id. p. 834. 
 y Ibid.
 
 CH. viil] foreign contracts. 543 
 
 and also because if the laws of the place where the 
 contract is made, or of the forum in which the contro- 
 versy respecting the conflict of rights and preferences 
 between creditors are to be observed, inexplicable diffi- 
 culties will arise, or notorious absurdities will be fallen 
 into ; of which he proceeds to give some illustrations. 
 But in respect to immovables, he holds that the law of 
 the place of the situs ought to govern in all questions 
 of priority and privileges. ImmoUUa regenda esse jure 
 loci, in qm sitce sunt} 
 
 1 J. Voet, ad Pand. Lib. 20, lit. 4, n. 38, p. 904. — The whole passage 
 deserves to be cited. " In quaestione, cujus loci statuta in praelatione turn 
 hypothecariorum turn chirographariorum privilegio munitorum spectari de- 
 beant, dicendum videtur secundum fundamenta generalia in tit. de consti- 
 tut. Princip. parte altera, de statutis proposita. In mobilibus debitoris 
 bonis ilium observari oportere prselationis ordinem, qui in loco domicilii 
 debitoris probatus est ; turn quia mobilia omnia, ubicunque existentia, illic 
 domino sao prsesentia esse intelliguntur, ac propterea isto quoque jure re- 
 genda sunt ; tum quia creditores omnes, qui sequi in agendo debent forum 
 rei, etiam raaxime locum domicilii in contrahendo respexisse videntur, 
 quippe in quo praecipue debitor, velut in foro praeprimis competente, con- 
 veniendus est; turn denique, quia, si leges vel loci in quo contractum est, 
 velfori in quo de creditorum prtelatione acconcursu disputatur, observandas 
 censueris, aut inexplicabilibus et difficultatibus implicaturuses,autadnota- 
 biles delapsurus absurditates. Etenim, si contractuum singulorum loca spec- 
 tari debere contendas, explicari non poterit, quid fieri debeat, si in Hollandia, 
 Frisia, Anglia, Italia, Hispania diversi per eundem debitorem contractus initi 
 sint, quarum regionum unaquajque diversis ex parte, quin et subinde contra- 
 riisde protopraxia legibus utitur, dumin Anglia aut Hollandia contrahens 
 ex legibus Anglicanis aut HoUandicis pritferri desiderabit ei, qui in Frisia 
 contraxit ; hie vero ex Frisise legibus contrariis potior esse velit eo, qui in 
 Hollandia vel Anglia effecit sibi devinctum debitorem. Quod si locum, 
 ubi mobilia proscribuntur, et judicium concursus inter creditores agitatur, 
 spectandum existimes quasi distributio pecuniarum inter creditores pars et 
 sequela executionis sit, (posito, quod alibi, quam in loco domicilii postre- 
 mi debitoris obaerati mobilia vendi et lis de protopraxia agitari possit, cujus 
 contrarium apud nos nunc oblinere, supra x. t. num. 12. dictum est,) ab- 
 surdum illud inde sequeretur, quod tunc non mobilium tantum sed et im- 
 mobilium intuitu leges loci, in quo judicium de protopraxia agitur, obser- 
 vandce forent ; cum non minus distributio pecuniae ex immobilibus, quam
 
 644 CONFLICT OF LAWS. [CH. VIII. 
 
 § 325 /. Matthseus holds, in a great measure, the 
 same opinion, and has discussed the subject at large. 
 The whole passage is too long for insertion in this 
 place ; but a moderate extract will present his views in 
 a very clear manner. Speaking of movables, he says ; 
 Quantum igitur ad res mobiles attinet, tametsi omnes sint 
 ejiisdem generis atque natiirce, motii tamen et qidete discri- 
 mina?'i jjossiint. Eanim enim alicemdlo certo loco dispositcB^ 
 hue illuc feruntur trahinturve ; veluti merces in itinere 
 deprehensw, et id liodi^ fieri solet, arresto reteixtw : alice 
 vero certo loco dispositce quiescimt ; veluti instrumentiim et 
 siqyellex, quam pcderfam. : frcediormn instrnendorum gratia 
 in iwovinciam misit : item fierce hestice, et jmces, et reliqua 
 animalia, quw in fiundis hdberdur fiodurce et propagationis 
 gratia. Qucccwique ejus generis deprehenduntur, id certo 
 loco prcediove afifixw non sint, in iis hand duUe superior de- 
 finitio olservanda est. Cum enim maxime in motu sint, 
 ac inceHis quasi sedibus vagentur, nihil proprius est, quam 
 ut in disputatione cle prcerogativa creditormn spectemiis domi- 
 cilium debiioris. Quce vera loco affi,xce, aid certis posses- 
 
 ex mobilibus, redactae dici deberet executionis sequela aut pars ; atque ita 
 fieret, immobilianon ex lege situs regi, sed incerti juris subesse disposi- 
 tioni, prout in hoc vel illo loco, diversis juribus utente, contentio fuerit 
 inter creditores instituta de prselatione. Quinimo, posito illo jure, quod 
 judicium universale concursus creditorum in eo loco ventilari debeat, in 
 quo debitor, cum moreretur aut foro cederet, domicilium habuit, esse in ar- 
 bitrio debitorispositum, ut migrando de loco in locum creditores non privi- 
 legiatos, efficeret privilegiatos, hypothecam legalem faceret aliisnasci, aliis 
 interire, prout aliud atque contrarium domicilii prioris aut rei sila; legibus 
 jus in novissimi domicilii loco viguerit : quod in imraobilibus loco certo 
 alligalis, nee arbitrio domini situm mutantibus, ferendum non est ; sed 
 potius (cum jam ad immobilia nos deduxerit ratiocinium) in immobilium 
 pretio inter creditores secundum cujusque privilegium distribuendo servan- 
 das erunt leges locorum illorum, in quibus immobilia singula existunt,idque 
 convenienter leguliE in tit. de constit. Princip. parte altera de statutis 
 num. 12. firmatoe, ac dictanti, immobilia regenda esse jure loci, in quo sita 
 sunt."
 
 CH. VIII.] FOREIGN CONTRACTS. 545 
 
 sionihiis aUrihdce sunt, cce naturam prwdiorum sequuntw, 
 ej usque provincicc esse censentur, in qua prcedia sUa sunt. 
 Uncle dicendum videbatur, in liis rebus spectandas esse leges 
 ejus loci, uli prccdia sita sunt, non uU domiciUum debitor 
 liabet} Again, referring to objections which might be 
 made, he says ; Illud etiam objici poiercd definitioni nos- 
 trce : In contractibus spectandas esse leges ejus loci, ubi 
 contractum est, vcl in quern solutio destincda est : Ms enim 
 legibus contrahentes ultro subjecisse se intelliguntur. Igitur 
 in creditonm quoque contentione, non semper leges domicilii, 
 sed si alibi contractum sit, loci contractus sunt observandw, 
 Respondeo ; Si ex contractu agatur, spectari quidem leges 
 ejus loci, ubi contractum est, non tamen in omnibus contro- 
 versiis. Etenim, si de solemnibus quceratur, si de loco, de 
 tempore, et modo obligationis, turn quidem locum contractus 
 observamus : sin de materia obligationis, seu de rebus, qum 
 in cam deducuntur, ejus loci habenda ratio est, ubi res sitce 
 sunt. jSitum autem cum dicimus, prccdia denotamus : hose 
 enim p>roprih sita dicuntur, non etiam res mobiles. In dis- 
 jjutatione verb creditorum de prcvrogativa, quo minus locum 
 contractus spectemus, ipsa cpiodammodo renim natura im- 
 pedimento est. Quid enim si obccratus cum multis contrax- 
 erit, et variis quidem in locis, vario ac diver so jure utenti- 
 bus : veluti Romce, Lugduni, Antuerpice, Amstelodami, Dan- 
 tisci, Genuw, etc., cpii potcrit spectari locus contractus, et 
 cijus potissimum loci leges spectabis citra manifestam alto- 
 rum creditorum injuriam ? At locum domicilii debitoris pos- 
 sis observare citra cujusquam inju7iam, dum omnes cujus- 
 cunque gentis aut nationis cum aliquo debitore contrahentes, 
 domicitium ejus spectasse, ac fortunam judiciorum ibidem 
 exjjerin voluisse videantur. Postremo, opponi poterat, non 
 
 1 Mattheeus, De Auctionibus, Lib. 1, ch. 21, n. 35, 36, p. 295. 
 46*
 
 546 CONFLICT OF LAWS. [CH. VIIL 
 
 tarn domiciUum dehitoris spedandmn esse, qiimn eiim locum, 
 ubi bona proscribuntiir. Execiitionis enim seu pars, seu ap- 
 jyendix, et sequela, videtur esse ilia distribidio peciinianim 
 inter creditores. Commimi aidem calcido doctorum iradiiur^ 
 in execidione facienda spectandimi ewn locum iibi executio 
 sit. Veriun Jiunc ohicem itafaciU removeUmus, si cogita- 
 verimus commwiam illam sententiam de ordine et solemnibus 
 execiitionis duntaxat loqiii, nan etiam de ipsa creditorum 
 content'ione et causa, quce inter eos vertitur : Jicec enim inci- 
 dit quidem in executionem, ab ordine tamen execidionis sepor 
 rata est. In Us autem, quce ad causce decisionem pertinerd, 
 non illicb locum judicii, sed antiquiorem cdiquem, pida domi- 
 cilii, interdum contractus, aliquando situm rei spectamus. 
 Instari poterat : Si ad decisionem causa, pertinet disimtatio 
 ilia creditorum, jam sententia hcec premetur alio argumento : 
 Nempe, quod in decisoriis litis observandce sint leges ejus 
 loci, ubi contractum est. Sed respondetur, hoc tum proce- 
 dere, cum inter creditorem et debitorem lis vertitur : cum 
 verb plures creditores ejusdem debitoris de prcerogativa dis- 
 pidant, locum domicilii debitorus spectamus ; quia locum 
 contractus citra injuriam aliorum spectarc per rerum natu- 
 ram non possumus : nullo certe modo, cum idem debitor, qui 
 variis in hcis negotiari solet, habuerit variarum gentium 
 atque hcorum creditores : puta Italos, Gallos, Belgas, Ger- 
 manos, Hispanos, etc. Hie enim constituere non possis, 
 ciijus potissimim loci leges sint sjyectatidcc : id autem omnium 
 simid hcorum le/es atque mores spectentur, rerum natura 
 non patiiur} 
 
 S 325 m. And, then, referring to immovables, he 
 says ; Quantum ad res immobiles attinet, vidcndum, an recte 
 separaverimus hjpotliecam a privilegio : ita id in cestimandis 
 
 1 Matthaeus, De Auctionibus, Lib. 1, ch. 21, n. 37, 38, 39, 40, p. 296, 
 297, 298.
 
 CH. VIII.] FOEEIGN CONTRACTS. 547 
 
 viribiis hypotliecce spectemus emu locum, uU prwdium sitimi 
 est ; in privilegio inter hjpotliecarios exercendo, domiciUiim 
 delitoris ? Argiimcntum cnim, quo iisi simius, infirmius 
 videtur : Privilegium concernit personam : igitur domiUiim 
 dehitoris in eo spectandum. Quasi verb non sit duplex pri- 
 vilegioriim ratio: ita ut alia quidem personce, alia rei sen 
 caused data sint. Deinde, non videtur ilia necessaria conse- 
 cutio : privilegia personam conccrmint ; igitur personam 
 conntantur, quocunque locorum commigraverit. Etcnim illo 
 duntaxat jura quce personce qualitatem aliquam imprimiinty 
 comitari personam solent : veluti si quis minor, fatuiis, pro- 
 digiis, infaniis, declaretur : Vitiiim cnim hoc perdurat, et 
 quocunque locorum te contuleris, circumferes tecum notam 
 illam et qualitatem in loco domicilii tibi impressam. At pti- 
 vilegium, quod personce conceditur, nullam qucditcdem per- 
 sonce imprimit, nullam notam inurit : comitari ergo per- 
 sonam non poterit in cam provinciam, in cpia fort^ privile- 
 gium cessat. jSed imprimis illiid ohstcd, quod privilegium 
 detiir quidem personm, tamen in bonis dehitoris exercendum. 
 Ut autem in prcediis debitoris in cdia provincia sitis excrceam 
 privilegium, non possunt mild tribuere ii, qui in loco dimi- 
 cilii debitoris jura condunt : cquippe quorum jurisdictioni 
 ager alterius tenitorii subjectus non sit. Mobilia duntaxat, 
 quia personam comitcmtur, jurisdictioni eormn subjecta viden- 
 tur, quocunque in loco reperiantur. Itaque si mulier nupse- 
 rit in Frisia, ubi dotes sunt, dotiumque pfjvilegia : distra- 
 hantur mariti prcedia in Gelria, Hollandia,' Trajecti, ubi ne 
 dotes quidem verce sunt, nedum dotium privilegia : non vide- 
 tur mulier inter hipotliecarios Jmbitura privilegium, quod 
 lml}eret, si in Frisia sita prcedia distraJierentur. Valde 
 enim absurdum sit, vclle hijpotliecariis earn prcefcrri, quam 
 ne numerant quidem Gelri inter lujpothecarios. His de 
 causis genercdius concludendum, sive de viribus hgpothecce, 
 sive de privilegio inter hgpothecarios exercendo loquamur.
 
 548 CONFLICT OF LAWS. [CH. VIIL 
 
 in jjrccdiis spectiindas esse leges ejus loci, iibi froedia sit a 
 sunt} 
 
 § 325 n. M^evius adheres to the same rule in cases 
 of movables, that is to say, that the law of the domicil 
 of the debtor is to govern in all cases of preferences 
 and privileges." D'Argentre adopts the same opinion; 
 Quare statidum de lonis mobilibus vere personale est,et loco 
 domicilii judicium sumit ; et qiiodciincjue Judex domicilii de 
 eo statuit, nbigue locum ohtinct.^ Burgundiis may also 
 fairly be presumed to hold the like opinion. De caiero 
 molilia iU esse dicemus, uhi quis instrimt domicilium ; et 
 ideo quodcumque Jiidex domicilii de 'iis statiierit, ttbique loco- 
 rum oUinet, sive, quod persona ihi est, aut esse, semper intel- 
 ligitur, sive quod ihi rerum suarum suimncmi collocavit. Et 
 sic inteUigcndum est, quod dicinms mohilia sequi personam, 
 hoc est, in domicilio ejus existere, et non aliter quam cum 
 domicilio transferri. Nee refert, eadem hona in loco do- 
 micilii repcriantur, an non} Many other jurists assert 
 the same doctrine.^ Still, however, (as has been already 
 intimated,) all foreign jurists are not agreed in this doc- 
 trine, at least not without many modifications thereof.'' 
 
 § 325 0. But, whatever may be the differences of 
 opinion among them, as to the operation of the rights 
 of preference or privilege of creditors upon movable 
 property, situate in fact in a foreign country, there 
 seems to be a great preponderance of authority, although 
 certainly not an universal agreement, in respect to im- 
 movable property, in favor of the doctrine, that the law 
 
 1 Matthaeus, De Auctionibus, Lib. 1, ch. 21, n. 41, p. 298, 299. 
 
 - Maevius, ad Jus, Lubcsense, Lib. 3, tit. 1, art. 11, n. 23 to n. 35. 
 
 3 D'Argentr6, de Briton. Leg. Art. 218, Gloss. G, n. 30, p. 654. 
 
 '1 Burgundus, Tract. 2, n. 21, p. 113. 
 
 ^ 1 Boullenois, Observ. 30, p. 834, 835, 840. 
 
 ^ Ante, ^ 322 b, ^ 322 c.
 
 en. VIII.] FOREIGN CONTRACTS. 549 
 
 of the place rci sitce ought to prevail, as to the denial or 
 allowance of such preferences and privileges.^ Paul 
 Voet expressed the general sense, when he said ; Veyo 
 immohUia rcguntiu' locormn stutidls, iibi sita ; etiam quoad 
 ea, si de wstimandd hjijothccdy aid de privilec/iis inter hjpo- 
 thecarios agaiur, non inspiciendus erit locus domicilii, vel 
 dclitoiis, vel creditoris, venim locus statidi, uhijacent? An 
 easy example may illustrate the importance of the dis- 
 tinction. Suppose a contract, made in Massachusetts 
 for the sale of lands lying in New York, by whose laws 
 the vendor has a lien for the unpaid purchase-money, 
 and by the laws of Massachusetts there would in such 
 a case be no lien, if the land were in Massachusetts ; 
 the question would then arise, whether any lien at- 
 tached on such a contract on the land. According to 
 the opinions of the foreign jurists already referred to, 
 the law of the rei sitw, and not the law of the place of 
 the contract would attach upon the contract ; and con- 
 sequently, a lien for the unpaid purchase-money would 
 exist on the lands in New York, although no such lien 
 would exist in Massachusetts under or in virtue of the 
 contract.^ 
 
 § 326. Lord Ellenborough has laid down a doctrine 
 essentially agreeing with that of Huberus. " We 
 always import," (says he,) " together with their per- 
 sons, the existing relations of foreigners, as between 
 themselves, according to the laws of their own coun- 
 tries ; except, indeed, where those laws clash with the 
 
 1 Ante, ^ 322 to ^ 325 m ; Post, ^ 362 to ^ 373. 
 
 2 P. Voet, de Stat. ^ 9, ch. 2, n. 8, p. 267, edit. 1715 ; Id. p. 322, edit. 
 1661. 
 
 3 See Gilman v. Brown, 1 Mason, R. 219, 220, 221 ; S. C. 4 Wlieat. 
 R. 255.
 
 550 CONFLICT OF LAWS. [CH. VIIL 
 
 lights of our own subjects here, and one or other of 
 the laws must necessarily give way ; in which case our 
 own is entitled to the preference. This having been 
 long settled in principle, and laid up among our ac- 
 knowledged rules of jurisprudence, it is needless to 
 discuss it fxrther." ^ The Supreme Court of Louisiana 
 have adopted a little more modified doctrine, coinciding 
 exactly with that of Huberus ; " That, in a conflict of 
 laws, it must oftener be a matter of doubt, which 
 should prevail; and, that whenever that doubt does 
 exist, the court, which decides, will prefer the law of 
 its own country to that of a stranger." And if the 
 positive laws of a state prohibit particular contracts 
 from having effect according to the rules of the country, 
 where they are made, the former must prevail." ^ 
 
 § 327. Mr. Chancellor Kent has laid down the same 
 rule in his Commentaries, as stated by Huberus and 
 Lord Ellenborough, and has said ; " But on this subject 
 of conflicting laws, it may be generally observed, that 
 there is a stubborn principle of jurisprudence, that will 
 often intervene and act with controlling efficacy. This 
 principle is, that w^hen the Lex loci contractus and the 
 Lex fori, as to conflicting rights acquired in each, come 
 in direct collision, the comity of nations must yield to 
 the positive law of the land. Li tali conflictu magis est, 
 id jus nostrum, quamjus alicnum, servemus." ^ Mr. Burge 
 has expressed his ow^n exposition of the same doctrine 
 in the following terms. It may be stated generally. 
 
 1 Potter V. Brown, 5 East, R. 120, 124. 
 
 ~ Mr. Justice Porter, in the case of Saul v. His Creditors, 17 Martin, 
 R. 596. 
 
 3 Id. p. 586, 587. 
 
 ■1 2 Kent, Comm. Lect. 39, p. 461, 3d edit.
 
 CH. VIII.] FOEEIGN CONTRACTS. 651 
 
 that, with respect to contracts, of which movable pro- 
 perty is the subject, the law of the place, in which the 
 contract is made, will in some respects exclusively 
 prevail, although the contract is to be performed in 
 another ; and that in those respects, in which it does 
 not prevail, the law of the place, where the contract is 
 to be performed, must be adopted. But this conclusion 
 is subject to some qualifications and exceptions. If a 
 right, which is claimed as resulting from the contract, 
 or if an act or disposition affect the interest of third 
 parties, as the creditors of the owner, resort must be 
 had to the law of his domicil to determine, whether 
 that right exists, and whether he was competent to do 
 the act or make the disposition. A preference claimed 
 by a creditor on the estate of his debtor, by virtue of 
 the contract, and a disposition made by a debtor, which 
 might be void against his creditors, are instances of this 
 exception. The law of a foreign country, is admitted, 
 in order that the contract may receive the effect, which 
 the parties to it intended. No state, however, is bound 
 to admit a foreign law even for this purpose, when that 
 law would contravene its own positive laws, institu- 
 tions, or policy, which prohibit such a contract, or when 
 it would prejudice the rights of its own subjects." ^ 
 
 327 «. A question involving considerations of this 
 nature came recently before the Supreme Court of 
 Louisiana. It was a suit brought in Louisiana upon a 
 bottomry bond of a peculiar character, given by the 
 owner of a steamboat in Cincinnati (Ohio,) and pledg- 
 ing the vessel for the repayment of a sum of money 
 
 • 1 .3 Burge, Comm. on Col. aiul For. Law, Pt. 2, ch. 20, p. 778, 779; 
 Id. p. 770. See also FceHx, Conflict des Lois, Revue Etrang. et Fran^. 
 Tom. 7, 1840, ^ 33, p. 227, 228.
 
 552 CONFLICT OF LAWS. [CH. VIIL 
 
 and interest, lent to the owner for a year. The steam- 
 boat had in the intermediate time been sold in Ken- 
 tucky to a purchaser with notice of the lien, and she 
 was at New Orleans at the time of the suit brought ; 
 and the object thereof was to enforce the hypothecation 
 or lien created by the bond. Various objections were 
 taken in the defence ; and among them was the objec- 
 tion, that no lien was created in such a case by the 
 laws of Louisiana, where the suit was brought. Mr. 
 Justice Porter, in delivering the opinion of the Court 
 on this occasion, said : " But a more formidable objec- 
 tion has been raised against the regularity of the pro- 
 ceedings. The statutes and jurisprudence of Louisiana, 
 it is contended, only confer the privilege of sequestra- 
 tion to enforce liens given by its laws ; and that, in aid 
 of which this remedy was extended here, was not one, 
 that had any force, or conferred any privilege in our 
 state, though it might have that effect in the country, 
 where it was made." " The objection now taken raises 
 a distinction in cases so circumstanced, -between reme- 
 dies before and after judgment ; and we confess we 
 are unable to see any solid grounds, on which it can 
 rest. If it be true, as we apprehend it is, that the 
 Court can and should enforce the personal obligation, 
 which a party, not a citizen of the state, may have 
 entered into in another country, and that on the judg- 
 ment so rendered, the foreign creditor could obtain the 
 benefit of all writs of execution, which an inhabitant 
 of Louisiana might resort to against a domestic debtor, 
 then we can see no good ground for refusing the auxi- 
 liary process in the first instance ; wdiether it be an 
 order to arrest the person of the debtor, and hold him 
 to bail, or a writ to seize the property brought within 
 the jurisdiction of a Court, if it be the subject of con-
 
 CH. VIII.] FOREIGN CONTRACTS. 553 
 
 test. Both seem to rest on the same principles. And 
 a familiar illustration of the commonly received opinion 
 on this subject, may be given in the case of attach- 
 ments, which are almost every day resorted to in aid 
 of the foreign creditor against the foreign debtor ; and 
 yet there is nothing in our law more expressly giving 
 that remedy to the stranger, than there is in the case 
 of sequestration." After taking notice, that by the 
 laws of Ohio, it had been found, that the bond created 
 a lien on the steamboat, the learned Judge proceeded 
 to say ; " If the steamboat, then, had remained within 
 the State of Ohio, the evidence satisfies us, the plain- 
 tiffs could have had a lien on her. But the main 
 difficulty in the cause still remains. She was sold in 
 the State of Kentucky, under a decree of one of the 
 courts of that State, and purchased by the defendant 
 at the sale. It is admitted on all hands, that this sale 
 was legal and regularly made, and the question is not, 
 what was the effect of the lien in the country, where 
 the contract was made, nor in that, where it is sought 
 to be enforced, but what effect it had in the State, 
 where the defendant acquired title to the property." 
 He then examined the laws of Kentucky on the sub- 
 ject ; and concluded in the following words : " The 
 State of Kentucky, we presume, gives effect to liens, 
 existing on property brought there from another coun- 
 try, on the principle of comity, which we have already 
 noticed, and we must also presume, until the contrary 
 be shown, that she admits them with the same limita- 
 tion, which other States do ; namely, that they shall 
 not work an injury to her own citizens. To ascertain, 
 whether they do or not, recurrence must be had to her 
 laws and policy in relation to contracts made within 
 her limits ; for we take the true principle in such cases
 
 554 CONFLICT OF LAWS. [CH. VIII. 
 
 to be, that the foreign creditor, who has a lien, shonld 
 have no greater or no less privilege, than the domestic 
 creditor. If, for example, the laws of Kentucky re- 
 quired no record to be made of liens given on personal 
 property within the State, she would not require regis- 
 try on the part of the stranger, who came there to 
 enforce a mortgage on property, on which he had a lien 
 in another country ; for if she did, she would neither 
 carry the contract into effect, according to the law of 
 the country where it was made, nor according to her 
 own. If this be true, whatever time is given to the 
 domestic creditor to record his lien, should be given to 
 him, who comes from another State with one, if his lien 
 be recognized as valid, when enregistered, and his 
 prayer to enforce it be admitted, as we are told by the 
 testimony it could be." The court accordingly enforced 
 the lien against the steamboat.^ 
 
 § 327 b. Another case, which may serve to illustrate 
 the difficulty of laying down any universal rule on the 
 subject of contracts, as to the incidents and rights which 
 may attach to or against third persons, residing in dif- 
 ferent countries, may readily be stated, as it is one 
 which may not infrequently occur in practice. By the 
 law of England, if two policies are underwritten on the 
 same ship or cargo for the same voyage, to the full 
 amount of the property at risk, it is treated as a double 
 insurance, and each policy is valid, without any refer- 
 ence to the respective dates thereof And in case of a 
 loss, the insured may recover the whole loss from the 
 underwriters on either policy, at his own election ; and 
 
 ' Ohio Insur. Company v. Edmondson, 5 Louis. R. 295 to 305; Ante, 
 ^ 214.
 
 en. VIII.] FOREIGN CONTRACTS. 555 
 
 they are then entitled to contribution ^;;'o i%dd from the 
 underwriters on the other policy.^ Now, in France, no 
 such rule of contribution exists ; but the policy prior in 
 date is, in case of a double insurance, to be first ex- 
 hausted, and if that is sufficient to pay the whole loss, 
 there is no right to recover the loss, or to exact contri- 
 bution from the underwriters on the policy of a later 
 date." This also seems to be the general rule among 
 most of the maritime nations of continental Europe.^ 
 Now, let us suppose that two policies, of different dates, 
 are underwritten on the same ship or cargo, the one in 
 France, and the other in England, for an American 
 owner, on the same voyage, each policy being for a sum 
 equal to the full value of the property at risk, and there 
 should be a total loss on the voyage ; the question 
 might arise, whether the English underwriters were lia- 
 ble at all, if the French policy was prior in date ; and 
 also, whether, if liable, they could claim contribution 
 from the French underwriters ; and conversely, the ques- 
 tion might arise, whether, if the English policy was prior 
 in date, the French underwriters were liable at all ; and 
 if liable, whether they could claim contribution from the 
 English underwriters. No such case seems as yet to 
 have undergone any judicial decision. But probably it 
 would be held, that each contract was to be exclusively 
 construed according to the obligations and rights cre- 
 , ated by the Lex loci contractus between the parties them- 
 
 1 Park on Insur. ch. 15, p. Q80, 281, 5th edit. ; 3 Kent, Comm. Lect. 
 48, p. 280, 281, 3d edit. ; 1 Marsh on Insur. ch. 4, (^ 4, p. 146, 2d edit. ; 
 2 Phillips on Insur. p. 59, 60, 2d edit. 
 
 2 3 Kent, Comm. Lect. 48, p. 280, 281, 3d edit. ; Code dc Commerce, 
 art. 359, Ordin. of Louis 14th, 1681 ; 2 Valin, Comm. Lib. 3, lit. 6, art. 
 23, 24, 25, p. 72, 73. 
 
 3 1 Emejigon, Assur. ch. 1, ^ 7, p. 23 ; 1 Marsh, on Insur. ch. 4, § 4, 
 p. 146, 2d edit, note a.
 
 55G CONFLICT OF LAWS.. [CH. VIII. 
 
 selves, without any regard to the collateral rights and obli- 
 gations which might arise between the underwriters, if 
 both contracts were made in the same country. If a dif- 
 ferent rule were adopted, there might be an entire want of 
 reciprocity in its operation. Thus, if the French policy 
 were prior in date, and a recovery were had thereon 
 against the French underwriters, they might have contri- 
 bution from the English underwriters ; and yet, if a 
 recovery were had against the English underwriters, they 
 could not have contribution from the French under- 
 writers. On the other hand, if the English policy were 
 prior in date, the French underwriters might be ex- 
 empted from all liability for the loss, or if liable, might 
 recover a contribution from the English underwriters ; 
 at the same time, that if a recovery were had against 
 the English underwriters, they would not be entitled to 
 any contribution against the French underwriters. How- 
 ever, this case is merely propounded as one on which 
 the author professes to have no fixed opinion ; and is 
 designed rather to awaken inquiry, than to satisfy 
 doubts.^ 
 
 § 328. This subject will be resumed hereafter under 
 other heads.^ But the remarks of a learned Scottish 
 Judge ^ may here be properly introduced as exceed- 
 ingly pertinent to the present discussion. " The appli- 
 cation of the Lex loci to contracts, although general, is 
 
 1 In some of the present American policies, there is now what is com- 
 monly called a priority clause, similar in effect to the French law. The 
 very question, therefore, may arise in the case of a double insurance by 
 different policies in England, and in a state using the priority clause, or 
 in the latter state, and a state, which uses the common English policy, 
 and is governed by its laws. 
 
 2 Post, ^ 401, 402, 423 a, ^ 524 to ^ 527. 
 
 3 Lord Robertson in the case of Mrs. Levett ia Fergusson o» Marr. and 
 Div. 385, 397.
 
 CH. VIII.] FOREIGN CONTRACTS. 557 
 
 not universal. It does not take place, where the par- 
 ties, at the time of entering into the contract, had the 
 law of another kingdom in view ; or where the Lex loci 
 is in itself unjust, or conlra honos mores ; or contrary to 
 the public law of the State, as regarding the interests 
 of religion, or morality, or the general well being of 
 society." 
 
 § 329. It may also be stated, although the proposi- 
 tion has been already incidentally considered, that, when 
 a debt is contracted in a foreign country, it is not to be 
 deemed exclusively payable there, unless there is in 
 the contract itself some stipulation to that effect.^ On_ 
 the contrary, a debt contracted in a particular country, 
 and not limited to a particular place of payment, is 
 by operation of law payable everywhere, and may be 
 enforced, wherever the debtor or his property can be 
 found.' 
 
 § 330. Having considered the principles applicable to 
 the nature, validity, interpretation, and incidents and 
 effects of contracts, w^e are next led to the consideration 
 of the manner in which they may be discharged, and 
 what matters upon the merits will constitute a good de- 
 fence to them. I say upon the merits ; for the objec- 
 tions arising from the law of the State where the suit 
 is brought, {Lex fori,) such as the limitations of reme- 
 dies, and the forms and modes of suit, will constitute a 
 separate head of inquiry.^ 
 
 § 331. And, here, the general rule is, that a defence 
 or discharge, good by the law of the place where the 
 
 1 Ante, ^ 272 a, ^ 278 a, ^ 295, ^ 317 ; Don v. Lippmann, 5 Clark & 
 Fin. R. 1, 12, 13. 
 
 2 See Blake v. Williams, 6 Pick. R. 286, 315 ; ante, ^ 272 a, ^ 317 ; 
 Don V. Lippmann, 5 Clark & Fin. 1, 12, 13. 
 
 3 Post, ^ 524 to ^ 527. 
 
 47*
 
 558 CONFLICT OF LAWS. [CH. VIII. 
 
 contract is made, or is to be performed, is to be held of 
 equal validity in every other place, where the question 
 may come to be litigated.^ John Voet has laid down 
 this doctrine in the broadest terms. Si adversus con- 
 tradum aliudve negotiiim gestiim factwnve restitutio desidere- 
 tur, diini quis aid mctu, aut dolo, aid errore lapsus, damnum 
 sensU contrahendo, transigendo, solvendo, fidejiibendo, hcredi- 
 tatem adeimdo, aliove simili modo ; rede interprctes statidsse 
 arUtror, leges regionis, in qud contixictiim gestiimve est, id, 
 contra quod restitidio petitur, locum sihi dehere vindicare in 
 terminandd ipsd restitidionis controversid ; sive res illcE, de 
 qidhus contractum est, et in quibiis Imsio contigit, eodem in 
 loco, sive alibi sitce sint. Nee intercrit idrmn Icesio circa 
 res ipsas contigerit, velidi pluris minorisve, quam cequum est, 
 errore J usto distradas, an vcro propter neglcda solennia in 
 loci contractus desiderata. Si tamen contractus implcmentimi 
 non in ipso contractus loco fieri debeat, sed ad locum 
 alium sit destinatimi, non loci contradiis, sed imp}l€menti, 
 leges spedandas esse ratio suadet ; id ita secundum cujus 
 loci jura implementum accipere dehuit contractus, juxta ejus 
 etiam leges resolvatur^ Casaregis in substance lays 
 down the same doctrine ; ^ and liuberus throughout im- 
 plies it,'' as, indeed, does Dumoulin.^ 
 
 i 2 Bell, Comm. B. 8, ch. 3, § 1267, p. 692, 4th edit. ; Id. p. 688, 5th 
 edit. ; 3 Burge; Comm. on Col. and For. Law, Pt. 2, ch. 21, ^ 7, p. 874 
 to p. 886 ; Id. ch. 22, p. 924 to p. 929.— As to what will constitute a dis- 
 charge in foreign countries, and especially by novation, by confusion, by 
 set-off or compensation, by payment or consignation, and by relapse, see 
 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 21, ^ 1 to ^^ 6, p. 781 
 to p. 880. See also Bartsch v. Atwaler, 1 Connect. R. 409. 
 
 2 J. Voet ad Pand. Lib. 4. tit. 1, ^ 29, p. 210. 
 
 3 See Casaregis, Disc. 179, ^ 60, 61. 
 
 4 Huberus, Lib. 1, tit. 3, ^ 3, 7 ; J. Voet, De Statut. ^ 9, ch. 2, ^S 20, 
 p. 275, edit. 1715 ; Id. p. 332, 333, edit. 1661. 
 
 5 2 Boullenois, Observ. 46, p. 402; Molin. Comm. ad Cod. Lib. 1, tit. 
 1,1.1; Conclus. de Stat. Tom. 3, p. 554, edit. 1681.
 
 CH. VIII.] FOREIGN CONTRACTS. 559 
 
 § 331 «. Burgundus says; Idem ergo de solidiomhiis 
 dicendimi ; scilicet, id in omnibus^ qiice ex ea stmt, aid inde 
 oriwitur, cud circa illam consist unt, aid alicjuo modo affinia 
 simt, consiietiidinem loci spcctemus, nhi eandem implendcau 
 convenit. Itaqiie ex solidione sunt solemnia, valor rei dehi- 
 tce^pretium monetw ; ex solidione oriimiur prcestcdio apochce^ 
 antigrajjJtt, simiUaquc. Affinia solidioni sunt, prcescriplio, 
 ohlatio rei dcbitce, consignatio, novcdio, delegcdio, et cjusmodi} 
 Ea, vcro, quce ad complcmentum vel execidionem contractus 
 sjjectcmt, vel ahsolido eo superveniiint, sola a statido loci di- 
 rigi, in quo peragenda est solidio.^ INIany other foreign 
 jurists maintain the same doctrine."^ 
 
 § 332. In England and America the same rule has 
 been adopted, and acted on with a most liberal justice/ 
 Thus, infancy, if a valid defence by the Lex loci contrac- 
 tus, will be a valid defence everywhere.^ A tender 
 and refusal, good by the same law either as a full dis- 
 charge, or as a present fulfilment of the contract, will 
 be respected everywhere.^ Payment in paper money 
 bills, or in other things, if good by the same law, will 
 be deemed a sufficient payment everywhere.^ And, on 
 the other hand, where a payment by negotiable bills or 
 
 1 Burgundus, Tract. 4, n. 27, 28, p. 114, 115, IIG. 
 
 2 Id. n. 29, p. 116. 
 
 ^ 3 Barge, Comm. on Col. and For. Law, Pt. 2, ch. 21, ^ 7, p. 874, 
 875, 876. 
 
 * 2 Kent, Comm. Lect. 39, p. 459, 3d edit. ; Potter v. Brown, 5 East, 
 124 ; Dwarris on Stat. Pt. 2, p. 650, 651 ; 2 Bell, Comm. ^ 1267, p. 691, 
 692, 4th edit. ; Id. p. 688, 5th edit. 
 
 s Thomson t;. Kelcham, 8 Johns. R. 189 ; Male v. Roberts, 3 Esp. R. 
 163. 
 
 6 Warder v. Arell, 2 Wash. Virg. R. 282, 293, &c. 
 
 "^ Warder v. Arell, 2 Wash. Virg. R. 282, 293 ; 1 Brown, Ch. R. 370 ; 
 Seabright v. Calbraith, 4 Dall. 325 ; Bartsch v. Atwater, 1 Connect. R. 
 409.
 
 560 CONFLICT OF LAWS. [CH. VIIL 
 
 notes is, bj the Lex loci, held to be conditional pay- 
 ment only, it will be so held, even in states, where such 
 payment under the domestic law would be held abso- 
 lute.^ So, if by the law of the place of a contract (even 
 although negotiable) equitable defences are allowed in 
 favor of the maker, any subsequent indorsement will 
 not change his rights in regard to the holder.^ The 
 latter must take it cum onere? 
 
 § 333. The case of an acceptance of a bill of ex- 
 change in a foreign country affords another illustration. 
 Although by our law it is absolute, and binding in 
 every event ; yet, if by that of the foreign country it 
 is merely a qualified contract, it is governed by that 
 law in all its consequences.'' Acceptances are deemed 
 contracts in the country, where they are made ; and 
 the payments are regulated by the law thereof^ 
 
 § 334, But, although the general rule is clear, as 
 above stated, that a discharge by the law of a place, 
 where a contract is made, is a discharge everywhere ; 
 yet there are exceptions to the rule, which every coun- 
 try will enforce, or not, according to its own discretion 
 and sense of justice.^ Thus, where a contract was made 
 in England between two Danish subjects, one of whom 
 was domiciled in England ; and afterwards, during a 
 
 ^ Bartsch v. Atwater, 1 Connect. R. 409 ; Descadillas v. Harris, 8 
 Greenl. R. 298. See other cases cited, 3 Burge, Comra. on Col. and For. 
 Law, Pt. 2, oh. 21, ^ 7, p. 876, 877, 878. 
 
 2 Ante, ^ 317. 
 
 3 Ory V. Winter, 16 Martin, R. 277. See also Evans v. Gray, 12 Mar- 
 tin, R. 475 ; Charters v. Cairnes, 16 ]\Iartin, R. 1. 
 
 4 Burrows v. Jemino, 2 Str. R. 733 ; S. C. 2 Eq. Abridg. 525. See 
 Van Cleff v. Terasson, 3 Pick. R. 12; Ellicott v. Early, 3 Gill, 431. 
 
 5 Lewis V. Owen, 4 B. & Aid. 654 ; 5 Pardessns, § 1492 ; ante, ^ 307, 
 ^ 317; Cooper, v. Earl of Waldegrave, 2 Beavan, R. 282. 
 
 6 Post, § 337.
 
 CH. VIII.] FOREIGN CONTRACTS. 561 
 
 war between England and Denmark, the Danish govern- 
 ment confiscated the debt, and required it to be paid 
 by the debtor, who was then in Denmark, and he paid 
 it accordingly ; the English Court of King's Bench on a 
 suit, brought in England after the peace, by the credi- 
 tor against the debtor, held, that the payment to the 
 Danish government was no discharge, although it would 
 have been so by the laws of Denmark, upon the ground, 
 that such a confiscation was not justified by the law of 
 nations.^ 
 
 § 335. The most important, or at least most frequent 
 cases of discharges of contracts, occurring in practice, 
 are those of discharges arising from matters ex 2^ost 
 facto ; such as a discharge from the contract upon the 
 subsequent insolvency or bankruptcy of the contracting 
 party. And here the general rule is, that a discharge 
 from the contract according to the law of the place 
 where it is made, or where it is to be performed, 
 is good everywhere, and extinguishes the contract.^ 
 This doctrine was fully recognized in the English law 
 by Lord Mansfield (and it doubtless had a much earlier 
 existence) in a formulary of language, which has been 
 since often quoted as a general axiom of jurisprudence. 
 " It is a general principle," said he, " that, where there 
 
 1 Wolfe V. Oxholme, 6 M. & Selw. R. 92. See post, ^ 348, 349, 350, 
 351. It is wholly unnecessary here to consider, whether the confiscation 
 of debts by an enemy is conformable, or not, to the law of nations. That 
 is a point belonging to the public law of nations, and underwent very grave 
 discussions in England, in the case in 6 Maule & Selw. 92, as well as in 
 the American Courts, during the late war with Great Britain. See the 
 Emulous, 1 Gallison, R. 563 ; S. C. on appeal. Brown v. United States, 
 8 Cranch, R. 110. 
 
 2 2 Kent, Comm. Lect. 37, p. 392, 393, 3d edit. ; 2 Bell, Comm. ^ 1267, 
 p. 691 to 695, 4lh edit. ; Id. p. 688, 5th edit. ; 1 Chitly on Comm. and 
 Manuf. ch. 12, p. 654.
 
 562 CONFLICT OF LAWS. [CH. VIII. 
 
 is a discharge by the law of one countiy, it will be a 
 discharge in another." '^ The expression is too broad, 
 and should have the qualification annexed which the 
 case before him required, and which has been uniformly 
 understood, namely, that it is a discharge in the country 
 where the contract was made or was to be performed. 
 And so it was interpreted by Lord EUenborough in a 
 much later case. " The rule," said he, " was well laid 
 down by Lord Mansfield, in Ballantine v. Golding, that 
 what is a discharge of a debt in the country where it 
 was contracted, is a discharge of it everywhere." ^ This 
 doctrine is also firmly established and generally recog- 
 nized in America.^ By some judges the doctrine has 
 been put upon the implied consent of the parties in 
 making the contract, that they would be governed as 
 to all its effects by the Lex loci coirtr actus ^ By others 
 it has been put upon the more firm and solid basis of 
 
 1 Ballantine v. Golding, 1 Coop. Bank. Laws, p. 347, 5th edit., p. 515, 
 4th edit. ; 13 Mass. R. 7 ; 2 Bell, Comm. \ 1267, p. 691, 692, 4th edit. ; 
 Id. p. 688, 5th edit. 
 
 2 Potter V. Brown, 5 East, 124, 130. See Hunter v. Potts, 4 T. R. 
 182 ; Quin v. O'Keefe, 2 H. Bl. 553. 
 
 3 Sec on this point Smith v. Smith, 2 Johns. R. 235 ; Hicks v. Brown, 
 12 Johns. R. 142 ; Van Reimsdyk v. Kane, 1 Gallis. R. 371 ; Blanchard 
 V. Russell, 13 Mass. R. 1 ; Baker v. Wheaton, 5 Mass. R. 511 ; Watson 
 V. Bourne, 10 Mass. R. 337; 4 Cowen, Rep. note, p. 515 ; Green v. Sat- 
 miento, Peters, Cir. R. 74 ; McMenomy v. Murray, 3 Johns. Ch. R. 435, 
 440, 441 ; Walsh v. Nourse, 5 Binn. R. 381 ; Sturgis v. Crowninshield, 
 4 Wheaton, R. ^22; Ogden u. Saunders, 12 Wheaton, R. 213, 358; 
 2 Kent, Comm. Lect. 27, p. 392, 393 ; Id. Lect. 30, p. 459, 3d edit. ; 
 Hall V. Boardman, 14 New Ilamp. 38; Very v. IMcHenry, 29 Maine, 
 214; Atwater ?;. Townsend, 4 Connect. R. 47; Hempstead v. Reed, 
 6 Connect. R. 480 ; Houghton v. Page, 2 Neu^ Hamp. R. 42 ; Dyer v. 
 Hunt, 5 New Hamp. R. 401 ; 2 Bell, Comm. ^S 1267, p. 691, 692, 693» 
 4lh edit. ; Id. p. 688, 5th edit. 
 
 4 See ante, ^ 261 ; Blanchard u. Russell, 13 Mass. R. 1, 4, 5 ; Pren- 
 tiss V, Savage, 13 Mass. R. 20, 23.
 
 CH. VIII.] FOREIGN CONTRACTS. 563 
 
 the sovereign operation of the local law upon all con- 
 tracts made within its sovereignty; and the indispensa- 
 ble comity which all other nations are accustomed to 
 exercise towards such laws whenever they are brought 
 into question either as to contracts, or to rights, or to 
 propert3^^ 
 
 § 33G. The doctrine has been stated in a more gene- 
 ral form by a late learned American Judge, who said ; 
 " It may be assumed, as a rule affecting all personal 
 contracts, that they are subject to all the consequences 
 attached to contracts of a similar nature by the laws 
 of the country where they are made, if the contractiug 
 party is a subject of or resident in that country where 
 it is entered into, and no provision is introduced to 
 refer to the laws of another country." ^ This is not, 
 perhaps, in strictness of language, entirely correct. 
 There are many consequences flowing from contracts in 
 the place where they are made, which do not accom- 
 pany them everywhere, and are not of universal obliga- 
 tion.^ Remedies are a consequence of contracts when 
 broken ; but, as we shall hereafter see, they are go- 
 verned by different rules from rights."^ And the rights, 
 given by the law of the place of the contract, are not 
 always deemed of universal obligation or validity. 
 Marriage, for instance, is admitted to be a valid con- 
 tract everywhere when it is valid by the law of the 
 place where it is celebrated.^ But, as we have seen, 
 all the consequences, attached to marriage in one 
 
 ^ Poller V. Brown, 5 East, R. 124 ; Ante,^ 261. 
 ~ Mr. Chief Juslice Parker, in delivering the opinion of ihe Court in 
 ilie case of Blanchard v. Russell, 13 Mass. R. 1, 5. 
 
 3 Ante, (}325 to ^ 327. 
 
 4 Post, ^ 55G to ^ 575. 
 
 5 Ante, ^ 111, 113, ^ 121 to ^ 125.
 
 564 CONFLICT OF LAWS. [CH. VIIL 
 
 country do not follow it into other countries.^ In 
 Scotland a subsequent marriage legitimates children 
 antecedently born ; but this consequence has not yet 
 been (as we have seen) finally adjudged in England to 
 the extent of making such antenuptial children legiti- 
 mate, so as to be entitled to inherit lands of their 
 parents situate in England. Adhiic suh judice lis cst^ 
 So, the indissolubility of marriage by the law of one 
 country w^ill not attach to it everywhere.^ 
 
 § 337. And even in regard to common contracts of 
 a different nature, the general rule, as to the conse- 
 quences of them, must receive many qualifications and 
 limitations resulting from the public policy or the 
 domestic laws of other States w^here they are sought to 
 be enforced, and the right and duty of self-protection 
 against unjust foreign legislation."* If, for example, a 
 country, where a contract w^as made, should, under the 
 pretence of a general bankrupt act, authorize a dis- 
 charge from all contracts made with foreigners, and 
 should at the same time exclude the latter from all 
 participation with domestic creditors in the assets ; it 
 cannot be presumed that such an act would be held a 
 valid discharge in the countries to which such foreigners 
 belonged.^ And certainly the priorities and privileges 
 annexed by the laws of particular States to certain 
 
 1 See Ante, ^ 145 to ^ 190; Fergusson on Marr. and Div. 359, 360, 
 361, 397, 398, 399, 402, 414 ; Conway v. Beazley, 3 Ilagg. Ecc. R. 639. 
 
 2 Doe dem. BirtwhisUe v. Vardill, 5 B. & Cresw. 438 ; S. C, 9 Bligh, 
 R. 403 ; ante, ^ 87, 93, 94 ; 1 Hertii Opera, De Collis. Leg. ^ 4, § 15, 
 p. 129, edit. 1737; Id. p. 183, 184, edit. I71(i. 
 
 3 Ante, i} 215 to ^ 230. 
 
 4 Ante, ^ 325 to ^ 327, ^ 334. 
 
 3 Blanchard v. Russell, 13 Mass. R. 1,0; Ilaberus, De Conflict. Leg. 
 Lib. 1, tit. 3, ^ 11.
 
 CH. VIII.] FOREIGN CONTRACTS. 565 
 
 classes of debts contracted therein, are not generally 
 admitted to have the same preeminence over debts con- 
 tracted in another country which is called upon to 
 enforce them.^ Nor are the courts of any State under 
 any obligation to give effect to a discharge of a foreign 
 debtor, where, under its own laws, the creditor has pre- 
 viously^ acquired a right to proceed against his property 
 within its own territorj'.- 
 
 § 338. When we speak of the discharge of a debt in 
 the country where it is contracted, being a discharge 
 thereof everywhere, care must be taken to distinguish 
 between cases where, by the Lex loci contractiis, there 
 is a virtual or direct extinguishment of the debt itself; 
 and where there is only a partial extinguishment of the 
 remedy thereon. By the bankrupt laws of England, 
 and by the corresponding insolvent laws of some of 
 the United States, an absolute discharge from all rights 
 and remedies of the creditors is provided for, as part 
 of the system ; and, therefore, the whole obligation of 
 the contract is deemed, ijiso facto, extinguished.^ But 
 there are insolvent laws, and other special systems, both 
 in Europe and America, which fall short of this extent 
 and operation. In some cases, the person only is libe- 
 rated from future imprisonment and responsibility ; in 
 others, particular portions of property only are exempt- 
 ed ; and in others, again, a mixed system, embracing 
 
 1 See ante, ^ 322 to ^ 327 ; Huberus, De Conflict. Leg. Lib. 1, tit. 3, 
 Ml- 
 
 2 Tappan v. Poor, 15 Mass. R. 410 ; Le Chevalier v. Lynch, Doug. R. 
 170. But see Hunter v. Potts, 1 T. R. 182; S. P. Bl. 402; ante, 
 § 325 to ^ 327. 
 
 3 See 2 Kent, Comra. Lect. 37, p. 389 to p. 402, 3d edit. ; 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 22, p. 886 to p. 929. 
 
 CONFL. 48
 
 566 CONFLICT OF LAWS. [CH. VIIL 
 
 some postponed or modified liabilities both of the per- 
 son and property, prevails.^ 
 
 § 339. Now, in all these cases, where there is not 
 any positive extinguishment, or any virtual extinguish- 
 ment, of all rights and remedies of the creditors, the 
 contract is not deemed to be extinguished ; and, there- 
 fore, it may be enforced (as we shall hereafter more 
 fully see) in other countries.^ By the Roman law a 
 Cessio Bonorum of the debtor was not a discharge of 
 the debt, unless the property ceded was to the full suffi- 
 cient for that purpose. It otherwise operated only as a 
 discharge, pro tanto, and exonerated the debtor from 
 imprisonment. Qui bonis cesserint, (says the Code,) nisi 
 solidiim creditor reciperit, non sunt liherati. In eo enim 
 tantiimmodo hoc heneficium eis prodest, ne jiidicati detra- 
 Jiantur in carcerem'^ Huberus informs us, that in Hol- 
 land a Cessio Bonorum does not even exempt from im- 
 prisonment, unless the creditors assent. Secundum jus 
 nostrum Cessio Bonotiim, invitis creditonhus, debitorem a 
 carcere publico non liberat ; ^ and Heineccius proclaims 
 
 1 See 1 Domat, Civ. Law, B. 4, tit. 5, § 1 ; Morris v. Eves, 11 Mar- 
 tin, R. 750. See Mather «. Bush, 16 Johns. R. 424, note ; 2 Bell, Comm. 
 ch. 5, ^ 1162 to ^ 1164, p. 563 to p. 567, 4th edit. ; Id. p. 580 to p. 597, 
 5th edit. ; Phillips v. Allan, 8 B. & Cressvv. 477; 2 Kent, Comm. Lect. 
 37, p. 389 to p. 404, 3d edit. ; 2 Burge, Comm. on Col. and For. Law, 
 Pt. 2, ch. 22, p. 886 to p. 904. 
 
 2 Judd V. Porter, 7 Greenl. R. (Bennett's Ed.) 337; Boston Type 
 Foundery v. Wallack, 8 Pick. R. 186 ; Coffin v. Coffin, 16 Pick. R. 323 ; 
 post, \ 340 to § 352. 
 
 3 Cod. Lib. 7, tit. 71, 1. 1 ; 1 Domat, Civ. Law, B. 4, lit. 5, ^ 1, n. 1, 
 2. See Mather v. Bush, 16 Johns. R. 424, note (b.) ; 2 Bell, Comm. 
 ch. 5, ^ 1162 to ^ 1164, p. 563 to p. 567, 4lh edit. ; Id. p. 580 to p. 598, 
 5th edit. 
 
 4 Huberus, Tom. 3, lib. 42, tit. 3, i^i 1, ^ 3, note; Ex Parte Burton, 
 1 Atk. 255 ; McMenomy v. Murray, 3 Johns. Ch. R. 442 ; Voet, ad Pand. 
 Lib. 42, tit. 3, § 8 ; Le Roy r. Crowinshield, 2 Mason, R. 160. — Lord
 
 CH. VIII.] FOREIGN CONTRACTS. 567 
 
 the same as the law of some parts of Germany.^ The 
 Scottish law conforms to the Roman Code in its leading 
 outlines;^ and the modern Code of France adopts the 
 same system.^ An Insolvent Act, or Bankrupt Act, or 
 Cesdo Bonorum, which only absolves the person of the 
 debtor from imprisonment, but not his future property, 
 or, which only suspends remedies against either the one 
 or the other for a limited period, is not to be deemed a 
 discharge from the contract, and its operation is (as we 
 shall presently see) purely intra-territorial.^ 
 
 Mansfield is reported to have said, in Ballantyne v. Gelding, (1 Cooke, 
 Bank. Laws, p. 347, 5th edit., p. 515, 4th edit.) " That he remembered a 
 case in Chancery, of a Cessio Bonorum in Holland, which is held a dis- 
 charge in that country, and it had the same effect here." The case allud- 
 ed to is most probably Ex parte Burton, (1 Atk. R. 255.) The law of 
 Holland is the reverse of what his Lordship is here supposed to affirm, as 
 the case in 1 Atk. R. 225, and the citations from Huberus and Voet esta- 
 blish. Whether the error is in the Reporter, or in Lord Mansfield him- 
 self, may well be questioned. Mr. Henry has given a sketch of the pre- 
 sent law of France, as to the Cessio Bonorum in cases of foreign con- 
 tracts, which certainly has some peculiarities, not conforming to the 
 general principles of international law adopted in other nations. Henry 
 on Foreign Law, Appx. p. 2.50, See Pardessus, art. 1324 to 1328. The 
 Cessio Bonorum of Scotland is (it seems) a mere discharge of the person. 
 See 2 Bell, Comm. ch. 5, p. 563, &c. 4th edit. ; Id. p. 580, &c. 5th edit. ; 
 Phillips V. Allan, 8 Barn. & Cressw. 479. 
 
 J Heinecc. Elem. Jur. Civ. ad Pand. Lib. 42, tit. 3, ^ 252, 254, p. 6 ; 
 3 Johns. Ch. R. 441, 442. 
 
 2 Erskine, Inst. B. 4, tit. 3, ^2G, 27 ; 2 Bell, Comm. ch. 5, ^ 1162 to 
 § 1164, p. 563 to p. 567, 4th edit. ; Id. p. 580, 5th edit. 
 
 3 Code Civil of France, art. 1265 and 1270 ; Merlin, Repert. Cession 
 de Biens. 
 
 ■* Tap pan t;. Poor, 15 Mass. R. 419 ; Morris v. Eves, 11 Martin, R. 
 730 ; Boston Type Foundery u.Wallack, 8 Pick. R. 186 ; Judd v. Porter, 
 7 Greenl. R. 337 ; Hinckley v. Morean, 3 Mason, R. 88 ; Titus v. Ho- 
 bart, 5 Mason, R. 378 ; 1 Kent, Comm. Lect. 19, p. 420, 422, 3d edit. ; 
 2 Bell, Comm. ^ 1 162 to »5> 1161, p. 562, 567, 694, 4th edit. ; Id. p. 580 
 to.p. 598, 5lh edit. ; Mason v. Ilaile, 12 Wheat. R. 370 ; 2 Kent, Comm. 
 Lect. 37, p. 391 to p. 401, 3d edit. ; Phillips v. Allan, 8 Barn. & Cressw. 
 479 ; Ex parte Burton, 1 Atk. R. 255 ; Huberus, Lib. 42, tit. 3, § 5 ;
 
 568 CONFLICT OF LAWS. [CH. VIIL 
 
 § 340. The general form in which the doctrine is ex- 
 pressed, that a discharge of a contract by the law of 
 the place where it is made, is a discharge everywhere, 
 seems to preclude any consideration of the question, 
 between what parties it is made ; whether between citi- 
 zens, or between a citizen and a foreigner, or between 
 foreigners. The continental jurists recognize no dis- 
 tinction in the cases. The English decisions are un- 
 derstood to maintain the universality of the doctrine, 
 whatever may be the allegiance of the country of the 
 creditor.^ And a like doctrine would seem generally 
 to be maintained in America." There are, however, 
 some cases in which a more limited doctrine would 
 seem to be laid down ; and which appear to confine it 
 to cases of a discharge from contracts between citizens 
 of the same State. Thus, in one case, it was laid down 
 by the Supreme Court of Massachusetts, that if, when 
 the contract was made, the promisee was not a citizen 
 of the State where it was made, he would not be bound 
 by the laws of such State in any other State ; and, 
 therefore, that a discharge there would not bind him or 
 his rights.^ In another case the same learned Court 
 
 Heineccii Elem. ad Pand. Tom. 3, P, 6, Lib. 42, tit. 3, § 253 ; 3 Burge, 
 Comtn. on Col. and For. Law, Pt. 2, ch. 22, p. 924 to p. 929 ; White v. 
 Canfield, 7 Johns. R. 117 ; James v. Allen, 1 Dall. R. 188 ; Quin v. 
 O'Keefe, 2 H. Bl. 553 ; Le Roy v. Crowninshiekl, 2 Mason, R. 160 ; 
 Wright V. Paton, 10 Johns. R. 300 ; Peck v. Ilozier, 14 Johns. R. 346 ; 
 Walsh V. Nourse, 5 Binn. R. 381. 
 
 1 See Mason v. Haile, 12 Wheaton, R. 300 ; Potter v. Brown, 5 East, 
 R. 124. 
 
 2 See Robinson v. Bland, 1 W. Black. R. 258 ; Blanchard v. Russell, 
 13 Mass. R, 1 ; 2 Johns. R. 235 ; 2 Kent, Comm. Lect. 37, p. 392, 393, 
 3d edit. ; Ory v. Winter, 16 Martin, R. 277 ; Sherrill v. Hopkins, 
 1 Cowen, R. 103, 107. 
 
 3 Baker V. Wheaton, 5 Mass. R. 511.
 
 CH. VIII.] FOREIGN CONTRACTS. 569 
 
 said, that a discharge of the contract can only operate 
 where the law is made by an authority common to the 
 creditor and the debtor in all respects ; where both are 
 citizens and subjects.^ But this qualification of the doc- 
 trine (which was only incidentally argued in those cases) 
 was afterwards deliberately overruled by the same Court; 
 and the general doctrine was established in its univer- 
 sality.- The qualification seems, however, again to have 
 been asserted in a more recent decision of the same 
 Court ; upon grounds not very clearly defined, or per- 
 haps not entirely satisfactory, unless the case is to be 
 governed by the decisions of the Supreme Court of the 
 United States upon the subject of discharges under 
 insolvent laws, with reference to the Constitution of the 
 United States.^ It has been expressly denied by other 
 
 1 Watson V. Bourne, 10 Mass. R. 337, 340. 
 
 2 Blanchard v. Russell, 13 Mass. R. 1, 10, 11, 12. 
 
 3 Braynard v. Marshall, 8 Pick. R. 194. — The case was a negotiable 
 promissory note, made by A., in New York, to B., or order ; the note was 
 afterwards indorsed to C, in Massachusetts, who sued A., the maker, 
 there, and he pleaded his discharge under the insolvent laws of New 
 York. On that occasion, Mr. Chief Justice Parker, in delivering the 
 opinion of the Court, declaring the discharge no bar to the suit, said : 
 " The questions which arise out of the subject of State insolvent laws, 
 and the effect of discharges under them, have been so long unsettled in 
 this Commonwealth, owing to the unsatisfactory character of the decisions 
 of the Supreme Court of the United States, which ought to govern cases 
 of this nature, that we have waited with anxiety for a revision of all the 
 cases by that high court, and a final adjudication upon a subject so univer- 
 sally interesting, and hitherto involved in so much perplexity. The case 
 of Ogden v. Saunders seemed, in its progress, to promise such a result, 
 but unhappily, on some of the points which the case presented, the law is 
 left as uncertain as it was before. One thing, however, we understand to 
 have been clearly decided by a majority of the justices of that court, and 
 virtually by all, (as those who admit no validity at all to such laws may be 
 considered as uniting with those who give them only a limited operation,) 
 which is, that discharges under such laws have no effect without or beyond 
 the territory of the State where they are obtained, or against a party not 
 
 48*
 
 570 CONFLICT OF LAWS. [CH. "VIIL 
 
 learned State Courts.^ In commenting upon some of 
 the cases in which, upon questions of discharge, con- 
 
 a citizen of that State, or where the suit shall be brought in a court of the 
 United States, or of any State other than that in which the proceedings 
 took place, notwithstanding the contract, on which the discharge was in- 
 tended to operate, was entered into and was to be performed in the Stale 
 in which the discharge was granted. Now this law, thus settled, is bind- 
 ing upon this Court, as well on account of the nature of the question, 
 which is peculiarly proper for the decision of the highest court of the 
 nation, as because the case itself, unless restrained by the smallnessof the 
 sum in controversy, may be carried to that court by writ of error, and our 
 judgment be reversed ; it being a question of which, by ^ 25, of the judi- 
 ciary act of the United States, (of September 24, 1789,) that court has 
 jurisdiction. But even if we were not inclined to repose on the decision 
 in Ogden v. Saunders, but considered ourselves at liberty to resort to 
 general principles, we are disposed to think that the defence set up under 
 the certificate in this case could not prevail. It does not come within the 
 case of Blanchard v. Russell, in which the contract was made in New 
 York, by a citizen of that State, and was to be performed there, it not 
 being transferable in its nature, being matter of account. A negotiable 
 instrument, made in New York, and indorsed for a valuable considera- 
 tion to a citizen of Massachusetts before an application for the benefit 
 of the insolvent law, ought not to be discharged under the process 
 provided by that law. It is a debt payable anywhere, by the very nature 
 of the contract, and it is a promise to whosoever shall be the holder of the 
 note. At the time of the defendant's application for a discharge, his cre- 
 ditor upon this note was a Massachusetts man, and according to the case 
 of Baker v. Wheaton, (5 Mass. R. 509,) the certificate would be no bar 
 to the action. The principle of this case was fully recognized and adopt- 
 ed in the case of Watson u. Bourne, (10 Mass. R. 337.) Nor is there 
 any thing in the case of Blanchard v. Russell to controvert these decisions, 
 whatever may have been said, arguendo, by tlie judge who delivered the 
 opinion. The contract in that case was in its nature to be performed in 
 New York, and so was to be governed entirely by the laws of that State. 
 The case before us is that of a negotiable promissory note, given in the 
 first place by a citizen of New York to a person resident there, by whom 
 it was immediately indorsed to a citizen of Massachusetts. The promisor 
 became, immediately upon the indorsement, the debtor to the indorsee, 
 who was not amenable to the laws of New York, where the application 
 was made for relief under the insolvent law." See Ogden i;. Saunders, 
 12 Wheaton, R. 213, 358 ; post, ^ 3-11, 313, 344. 
 
 1 Ory V. Winter, IG Martin, R. 277 ; Sherrill v. Hopkins, 1 Cowen,R. 
 103, 107.
 
 CH. VIII.] FOREIGN CONTRACTS. ' 571 
 
 siderable importance has been attached to the circum- 
 stance, that one or both of the parties were inhabitants 
 of, and domiciled in, the State or country where the con- 
 tract was made, the Supreme Court of New York have 
 said: "All these cases stand upon a principle entirely 
 independent of that circumstance. It is that of the Lex 
 loci contractus, that the place where the contract is made 
 must govern the construction of the contract ; and that 
 whether the parties to the contract are inhabitants of 
 that place or not. The rule is not founded upon the 
 allegiance due from citizens or subjects to their respect- 
 ive governments, but upon the presumption of law, that 
 the parties to a contract are conusant of the laws of the 
 country where the contract is made." ' 
 
 § 341. Under the peculiar structure of the Constitu- 
 tion of the United States, prohibiting the States from 
 passing laws impairing the obligation of contracts, it 
 has been decided, that a discharge, under the insolvent 
 laws of the State where the contract was made, will not 
 operate as a discharge of the contract, unless it was 
 made between citizens of the same State. It cannot, 
 therefore, discharge a contract made with a citizen of 
 another State.^ But this doctrine is wholly inapplica- 
 ble to contracts and discharges in foreign countries, 
 which must, therefore, be decided upon the general prin- 
 ciples of international law.^ 
 
 1 Sherrill v. Hopkins, 1 Cowen, R. 102, 108. 
 
 2 Ogden V. Saunders, 12 Wheaton, R. 358 to 369 ; Boyle v. Zacharie, 
 6 Peters, R. 348 ; Agnew v. Piatt, 15 Pick. 417 ; 2 Kent, Comm. Lect. 
 37, p. 392, 393, 3d edit. ; 3 Story, Comm. on Const. '^S 1S34 ; 1 Kent, 
 Comm. Lect. 9, p. 418, 422, 3d edit. 
 
 3 Sec Very v. McHenry, 29 Maine, R. 214.
 
 572 CONFLICT OF LAWS. ' [CH. VIIL 
 
 § 342. The converse doctrine is equally well esta- 
 blished, viz., that a discharge of a contract by the law 
 of a place where the contract w\as not made, or to be 
 performed, will not be a discharge of it in any other 
 country.' Thus it has been held in England, that a 
 discharge of contract, made there, under an insolvent 
 act of the State of Maryland, is no bar to a suit upon 
 the contract in the courts of England.- On that occa- 
 sion Lord Kenyon said : " It is impossible to say, that 
 a contract, made in one country, is to be governed by 
 the laws of another. It might as well be contended, 
 that, if the State of Maryland had enacted that no debts 
 due from its own subjects to the subjects of England 
 should be paid, the plaintiff would have been bound by 
 it. This is the case of a contract lawfully made by a 
 subject in this country, w^hich he resorts to a court of 
 justice to enforce ; and the only answer given is, that a 
 law has been made in a foreign country to discharge 
 these defendants from their debts, on condition of their 
 having relinquished all their property to their creditors. 
 But, how is that an answer to a subject of this country, 
 suing on a lawful contract made here ? How can it be 
 pretended, that he is bound by a condition, to which he 
 has given no assent, either express or implied?"^ In 
 America, the same doctrine has obtained the full- 
 
 ' See 2 Bell, Comm. ^ 1267, p. G91 to p. 695, 4th edit. ; Id. p. 688 to 
 p. 692, 5th edit. ; Phillips v. Allan, 8 B. & Cressw. 479 ; Lewis v. Owen, 
 4 Barn. & Aid. 654 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 
 22, p. 924 to p. 929 ; Quelin v. Moisson, 1 Knapp, R. 265, note. Rose 
 V. McLeod, 4 S. & D, 311, cited 3 Burge, Comm. ubi supra, p. 927, 928. 
 
 - Smith V. Buchanan, 1 East, R. 6, 11. 
 
 3 Smith V. Buchanan, 1 East, R. 6, 11 ; Lewis v. Owen, 4 Barn. & 
 Aid. 654 ; Phillips v. Allan, 8 Barn. & Cressw. 477.
 
 CH. VIII.] FOREIGN CONTRACTS. ^' ^ 
 
 est sanction.^ It is also clearly established iu Scot- 
 land.^ 
 
 § 343. The subject of negotiable paper is generally 
 governed by the same principles. Wherever the con- 
 tract between the particular parties is made, the law of 
 the place will operate, as well in respect to the dis- 
 charge as to the obligation thereof. A nice question, 
 however, has recently arisen on this subject, in a case 
 already mentioned.^ A negotiable note was made at 
 New York between persons resident there, and was 
 payable generally; and the payee subsequently in- 
 dorsed the note to a citizen of Massachusetts, by whom a 
 suit was brought in the State court of the latter State 
 against the maker.' One point of the argument was, 
 whether a discharge of the maker, under the insolvent 
 laws of New York, operated as a bar to the suit ? The 
 case was decided upon another ground. But the Court 
 expressed a clear opinion, that it did not ; and said : 
 " It is a debt payable anywhere by the very nature of 
 the contract ; and it is a promise to whoever shall be 
 the holder of the note." " The promisor became, imme- 
 diately upon the indorsement, the debtor to the in- 
 
 1 Van Raugh v. Van Arsdaln, 3 Cain. R. 154 ; Frey v. Kirk, 4 Gill & 
 Johns. R. 509° Green v. Sarmiento, Peters, Cir.C. R. 74 ; Le Roy v. Crown- 
 inshield, 2 Mason, R. 151 ; Smith v. Smith, 2 Johns. R. 235 ; Ellicott v. 
 Early, 3 Gill, 439 ; Bradford v. Farrand, 13 Mass. R. 18; 2 Kent, Coram. 
 Lect. 37, p. 392, 393 ; Id. Lect. 39, p. 458, 459, 3d edit. ; 2 Bell, Comm. 
 ^ 1267, p. 692, 693, 4th edit. ; Id. p. 688 to 692, 5th edit. ; 3 Burge, 
 Comm. on Col. & For. Law, Ft. 2, ch. 22, p. 924 to p. 929; Rose v. 
 McLeod, 4 S. & D. 311, cited in 3 Barge, Comm. 928, 929. 
 
 2 2 Bell, Comm. ^ 1267, p: 692, 693, 4th edit. ; Id. p. GS8 to 692, 5th 
 edition. 
 
 3 See Aymaru. Sheldon, 12 Wend. R. 439. 
 
 4 Ante, \ 317, § 340.
 
 674 CONFLICT OF LAWS. [CH. VIIL 
 
 dorsee, who was not amenable to the laws of New York, 
 where the discharge was obtained." ^ 
 
 § 344. It is difficult (as has been already intimated) 
 to perceive the ground upon which this doctrine can be 
 maintained, as a doctrine of public law.^ The Court 
 admit that a debt contracted in New York, and not ne- 
 gotiable, would be extinguished by such a discharge ; 
 although such a debt is by its very nature payable 
 everywhere, as debts have no locality. As between 
 the original parties, (the maker and the payee,) the 
 same result would follow. How, then, can the indorse- 
 ment vary it ? It does not create a new contract be- 
 tween the maker and the indorsee in the place of the 
 indorsement. The rights of the indorsee spring from, 
 and under, the original contract, and are a component 
 part of it. The original contract promises to pay the 
 indorsee, as much as the payee, and from the first of 
 its existence. The indorsement is but a substitution of 
 the indorsee for the payee ; and it transfers over the 
 old liability, and creates no new liability of the maker.^ 
 If the indorsement created a new contract in the place 
 where it was made, between the maker afid the indorsee, 
 then the validity, obligation, and interpretation of the 
 contract would be governed by the law of the place of 
 the indorsement, and not by that of the place where the 
 note was originally made. It would not, then, amount 
 to a transfer of the old contract, but to the creation of 
 a new one, which, from a conflict of laws, not usual in 
 different States, would, or might, involve obligations 
 
 1 Braynard v. Marshall, 8 Pick. R. 194. See Ogden v. Saunders, 12 
 Whcaton, R. 359, 362, 363, 364 ; ante, § 317, ^ 340. 
 
 2 Ante, ^ 340. 
 
 3 Polhier, De Change, art. 22 ; ante, ^ 317.
 
 CH. VIII.] FOREIGN CONTRACTS. 575 
 
 and duties wholly different from, and even incompati- 
 ble with, the original contract. Nay, the maker might, 
 upon the same instrument, incur the most opposite 
 responsibilities to different holders, according to the law 
 of the different places where the indorsement might be 
 made.^ 
 
 § 345. Such a doctrine has never been propounded 
 in an}^ common-law authority, nor ever been supported 
 by the opinion of any foreign jurist. The same 
 principle w^ould apply to general negotiable accept- 
 ances as to negotiable notes ; for the maker stands 
 in the same predicament as the acceptor. Yet no 
 one ever supposed that an indorsement after an ac- 
 ceptance ever varied the rights or obligations of the 
 acceptor. It is, as to all persons who become holders, 
 in whatever country, treated as a contract made by the 
 acceptor in the country where such acceptance is made.^ 
 Yet the acceptance being general, payment may be 
 required in any place where the holder shall demand it. 
 The other point, that the indorsement was to a citizen 
 of another State, is equally inadmissible. The question 
 is not, whether he is bound by the laws of New York 
 generally ; but, whether he can, in opposition to them, 
 avail himself of a contract made under the sovereignty 
 of that State, and vary its validity, obligation, interpre- 
 tation, and negotiability, as governed by those laws. If 
 the payee had been a citizen of Massachusetts, and the 
 note had been made by the maker in New York, there 
 could be no doubt that the contract would still be go- 
 verned by the laws of New York, in regard to the payee. 
 What difference, then, can it make, that the indorsee is 
 a citizen of another State, if he cannot show that his 
 
 • Ante, ^ 314, 316, 317. 2 Ante, ^ 314, 317.
 
 576 CONFLICT OF LAWS. [CH. VIIL 
 
 contract has its origin there ? In short, the doctrine of 
 this case is wholly repugnant to that maintained by the 
 same Court in another case, which was most maturely 
 considered, and in which the argument in its favor was 
 repelled. The Court there declared their opinion to be, 
 that full effect ought to be given to such discharges, as 
 to all contracts made within the State where they are 
 authorized, although the creditor should be a citizen of 
 another State. ^ 
 
 § 346. The Supreme Court of Louisiana have adopted 
 the same reasoning ; and held, that, where a negotiable 
 promissory note was made in one State, and was in- 
 dorsed in vunother State to a citizen of the latter, the 
 contract was governed by the law of the place where 
 the note was made, and not by that of the place where 
 the indorsement was made. "We see nothing" (said 
 the Court) " in the circumstance of the rights of one of 
 the parties being transferred to the citizens of another 
 State, which can take the case out of the general prin- 
 ciple." It is a demand made under an agreement (a" 
 note) entered into in a foreign State ; and consequently 
 the party claiming rights under it, must take it with all 
 the limitations to which it was subject in the j)lace 
 where it was made ; and that, although he be one of our 
 citizens." - This is certainly in conformity to what is 
 deemed settled doctrine in England, as well as in some 
 other States in America.^ It was taken for granted by 
 
 1 Elanchard v. Russell, 13 Mass. R. 1, 11, 12. See also Prentice v. 
 Savage, 13 Mass. R. 20, 23, 24 ; ante, § 317, 340. 
 
 2 Ory V. Winter, 16 Martin, R. 277; Shcrriil v. Hopkins, 1 Cowen,R. 
 103 ; ante, ^ 317, § 340. 
 
 •^ See Bianchard v. Russell, 13 Mass. R. 12 ; Ogdcn v. Saunders, 12 
 Wheaton, R. 300 ; Potter v. Brown, 5 East, R. 123, 130.
 
 CH. VIII.] FOREIGN CONTRACTS. 577 
 
 the Supreme Court of the United States to be the true 
 doctrine in the case of a negotiable bill of exchange, in 
 which the drawer's responsibility was supposed to be 
 governed by the law of the place where the bill was 
 drawn, notwithstanding an indorsement in another coun- 
 try ; 1 and also by the Court of King's Bench in Eng- 
 land, in a case in which a right to a Bank of England 
 note was supposed to be governed by the law of Eng- 
 land, notwithstanding a transfer of the same had been 
 subsequently made in France.^ 
 
 § 347. Pardessus has laid down a doctrine equally 
 broad. He says, that it is by the law of the place, 
 where a bill of exchange is payable, that we are to as- 
 certain, when it falls due, the days of grace belonging 
 to it, the character of these delays, whether for the 
 benefit of the holder or of the debtor; in one word, 
 every thing which relates to the right of requiring 
 payment of a debt, or the performance of any other 
 engagement, when the parties have not made any stip- 
 ulation to the contrary.^ And it is of little consequence, 
 whether the person, who demands payment, is the 
 creditor, who made the contract, or an assignee of his 
 right ; such as the holder of a bill of exchange by in- 
 dorsement. This circumstance makes no change in 
 
 1 Slacum V. Pomeroy, 6 Cranch, R. 221. 
 
 2 De la Chaumette v. The Bank of England, 9 Barn. & Cresw. 208 ; 
 S. C. 2 Barn. & Adolph. 385 ; post, ^ 353. See also 2 Bell, Comm. 
 § 1267, p. 692, 693, 4lh edit. ; Id. p. 688 to 692, 5th edit —Quid si de 
 literis cambii incidat questio, (says Paul Voet,) quis locus spectandus? Is 
 locus, ad qiiem sunt destinatse, et ibidem acceptataj. P. Voet, De Stat. 
 § 9, ch. 2, ^ 14, p. 271, edit. 1715 ; Id. p. 327, edit. 1661 ; ante, ^ 317. 
 
 3 Pardessus, Droit Comm. art. 1495, 1498, 1499, 1500; ante, ^ 316; 
 post, ^ 361. 
 
 CONFL. 49
 
 578 CONFLICT OF LAWS. [CH. VIII. 
 
 ref^ard to the debtor. The indorsee cannot require 
 payment in any other manner, than the original cred- 
 itor could.^ And he applies this doctrine to the case 
 of successive indorsements of bills of exchange, made 
 in different countries, stating, that the rights of each 
 holder are the same, as those of the original payee 
 against the acceptor.^ He adds, also, that the effects 
 of an acceptance are to be determined by the law of 
 the place, where it has been made f that every in- 
 dorsement subjects the indorser to the law of the place, 
 where it has been made ; and that it governs his 
 responsibility accordingly.^ 
 
 § 348. Notwithstanding the principle, that a dis- 
 charge of the Lex loci contractus is valid every where, 
 and vice versa, is generally admitted, -as a part of 
 private international law ; yet it cannot be denied, that 
 any nation may by its own peculiar jurisprudence 
 refuse to recognise it ; and may act within its own 
 tribunals upon an opposite doctrine.^ But, then, under 
 such circumstances its acts and decisions will be deemed 
 of no force or validity beyond its own territorial limits. 
 Thus, if a state should by its own laws provide, that a 
 discharge of an insolvent debtor under its own laws 
 should be a discharge of all the contracts, even of those 
 made in a foreign country, its own courts would be 
 
 1 Pardessus, Droit, Comm. art. 1 195, 1198, 1499, 1500 ; ante, ^ 316 ; 
 post, ^ 3G1. 
 
 2 Ibid. 
 
 3 Pardessus, Droit. See Rothschild v. Ciirrie, I Adolph. & Ellis, 
 New R. 43 ; Shanklin v. Cooper, 8 Blackf. 41 ; ante, ^ 314, (^ 31G ; post, 
 § 361 ; Com. art. 1499. 
 
 4 Id. art. 1499. 
 
 5 Ante, ^ 334; post, § 349, 350, 351,
 
 CII. VIII.] FOREIGN CONTRACTS. 579 
 
 bound by such provisions.^ But tliey would, or migbt 
 be held mere nullities in every other country.^ 
 
 § 349, And even in relation to a discharge according 
 to the laws of the place, where the contract is made, 
 there are (as we have seen) some necessary limitations 
 and exceptions engrafted upon the general doctrine, 
 which every country will enforce, whenever those laws 
 are manifestly unjust, or are injurious to the fair rights 
 of its own citizens.^ It has been said by a learned 
 Judge with great force ; " As the laws of foreign 
 countries are not admitted ex ]3roprio vigore, but merely 
 ex comitate, the judicial power will exercise a discretion 
 with respect to the laws, which they may be called 
 upon to sanction ; for if they should be manifestly 
 unjust, or calculated to injure their own citizens, they 
 ought to be rejected. Thus, if any state should enact, 
 that its citizens should be discharged from all debts 
 due to creditors living without the state, such a pro- 
 vision would be so contrary to the common principles 
 of justice, that the most liberal spirit of comity would 
 not require its adoption in any other state. So, if a 
 state, under the pretence of establishing a general 
 bankrupt law, should authorize such proceedings, as 
 would deprive all creditors living out of the state of an 
 
 1 See Penniman v. Meigs, 9 Johns. R. 325 ; Babcock v. Weston, 
 1 Gallis. R. 168 ; Murray v. De Rottenham, 6 Johns. Ch. R.52 ; Holmes 
 V. Remsen, 4 Johns. Ch. R. 471. 
 
 2 See Blanchard v. Russell, 13 Mass. R. 6 ; post, ^ 349 ; Ellicott v. 
 Early, 3 0111,439; Very r. McHenry, 29 Maine, 208; Van Raugh v. 
 Van Ardaln, 3 Cain. R. 154 ; Smith v. Buchanan, 1 East, R. 6 ; Smith 
 I'. Smith, 2 Johns. R. 235; Green v. Sarmiento, Peters, Cir. R. 74; 
 McMenomy v. Murray, 3 Johns. Ch. R. 435 ; Wolff u. Oxholm, 6 Maule 
 & Selw. R. 92; ante, ^338. 
 
 3 Ante, ^ 339; post, ^ 350, 351.
 
 580 CONFLICT OF LAWS. [CH. VIIL 
 
 opportunity to share in the distribution of the effects of 
 the debtor, such a law would have no effect beyond 
 the territory of the state, in which it was passed." ^ 
 
 § 350. The same reasoning was again asserted by 
 the same learned Judge in another case, calling for an 
 exposition of the -limitations of the doctrine. ^' This 
 rule " (said he) " must however, from its very nature, 
 be qualified and restrained -, for it cannot be admitted, 
 as a principle of law or justice, that, when a valid 
 personal contract is made, which follows the person of 
 the creditor, and may be enforced in any foreign juris- 
 diction, that a mode of discharge, manifestly partial or 
 unjust, and tending to deprive a foreign creditor of his 
 debt, while he is excluded from a participation with 
 the domestic creditors in the effects of the debtor, 
 should have force in any country, to the prejudice of 
 their own citizens. The comity of nations does not 
 require it, and the fair principles of a contract would 
 be violated by it." ^ 
 
 § 351. " Thus if a citizen of this State, being in a 
 foreign country, should, for a valuable consideration, 
 receive a promise to pay money, or to perform any 
 other valuable engagement, from a subject of that 
 country; and the law should provide for a discharge 
 from all debts upon a surrender of his effects, without 
 any notice, which could by possibility reach creditors 
 out of the country, where such a law should exist; 
 we apprehend, that the contract ought to be enforced 
 here, notwithstanding a discharge obtained under such 
 law. For although the creditor is to be presumed to 
 
 1 Mr, Chief Justice Parker, in Blanchard v. Russell, 13 Mass. R. 6. 
 
 2 Ibid.
 
 CH. VIII.] FOREEGN CONTRACTS. 581 
 
 know the laws of the place, where he obtains his con- 
 tract, yet that presumption is founded upon another, 
 Avhich is, that those laws are not palpably partial and 
 unjust, and calculated to protect the creditors at home 
 at the expense of those who are abroad. Such laws 
 would come within the well known exception to the 
 rules of comity, viz., that the laws, which are to be ad- 
 mitted in the tribunals of a country, where they are 
 not made, are not to be injurious to the state, or the 
 citizens of the state, where they are so received." ^ 
 
 § 351 a. But although the general rule, that a con- 
 tract, as to its dissolution and discharge, is to be go- 
 verned by the law of the place where it is made, is 
 thus, with few exceptions and limitations, admitted to 
 be well established ; yet we are not to understand, that 
 it thence follows, as a necessary consequence, that in no 
 cases whatever, can a contract be discharged or dissol- 
 ved, except in the mode, and by the process and formali- 
 ties, prescribed by the same law ; or in other words, 
 that it must be discharged and dissolved eo ligamine, 
 quo ligatur, or rather by reversing the operation, which 
 knit it under the local law.^ On the contrary, there are, 
 or may be, circumstances, under which an opposite rule 
 may be maintainable -, and the law of another country, 
 prescribing different modes of proceeding, or different 
 formalities, or different acts, wdiich shall establish a 
 dissolution thereof, may also well prevail to annul or 
 discharge the contract. A change of domicil of the 
 
 1 Mr. Chief Justice Parker in Prentiss v. Savage, 13 Mass. R. 23, 24 ; 
 Very V. McHenry, 20 Maine, 208. See also Fergusson on Marr. and 
 Div. 390, 397; Wolff t'. Oxholm, 6 Maule & Selw. 92 ; ante, ^ 244. 
 
 2 See Warrender v. Warrender, 9 Bligli, R. 124, 125 ; ante, § 226 c, 
 note. 
 
 49*
 
 582 CONFLICT OF LAWS. [CH. VIII. 
 
 parties to the latter country, or an act done in that 
 country, which would there operate to dissolve or dis- 
 charge the contract, may well produce the fullest effect, 
 although the same act might not be recognised by the 
 law of the place of the origin of the contract. Thus, 
 for example, as we well know, the obligation of a bond, 
 or other sealed instrument, after a breach of the con- 
 tract created thereby, cannot in England be discharged, 
 or released, except by a sealed instrument, or a release 
 under seal, according to the known maxim of the com- 
 mon law ; Eodem modo, quo quid constituitur, eodem modo 
 dissolvitiir. And yet by the law of most, if not of all, 
 of the continental countries, whose jurisprudence is 
 founded on the Roman law, a simple receipt or dis- 
 charge, not under seal, would, if executed in such 
 countries, be held to discharge the bond or other sealed 
 instrument. Let us, then, suppose a bond, executed in 
 England for the payment of money, and when it became 
 due, there should be a default in payment, and after- 
 wards the creditor should receive payment of the debtor 
 in France, or otherwise should discharge him by a writ- 
 ten unsealed instrument in France ; such a discharge 
 would in France be held valid, and conclusive, if good 
 by the law of France, notwithstanding it might be held 
 invalid in an English court of common law. In short, 
 any act done, after such an obligation was created, in a 
 foreign country, by whose laws the act would operate 
 as a dissolution thereof, would be treated in that coun- 
 try at least, as a complete extinguishment thereof 
 
 § 351 h. It is not easy, therefore, upon principle, to 
 say, why such an extinguishment of a contract, accord- 
 ing to the Lex Loci, ought not everywhere else to have 
 the same operation, even in the country of the origin 
 of the contract. For, if the contract derives its whole
 
 CH. VIII.] FOREIGN CONTRACTS. 583 
 
 original obligatory force from the law of the place, 
 where it is made, it is but following out the same prin- 
 ciple to hold, that any act subsequently done, touching 
 the same contract by the parties, should have the same 
 obligatory force and operation upon it, which the law 
 of the place where it is done attributes to it. And in 
 this respect there certainly is, or at least may be, a 
 clear distinction between acts done by the parties in a 
 foreign country, and which derive their operation from 
 their voluntary consent and intention, and acts in in- 
 vitum, deriving their whole authority and effect from 
 the operation of the local law, independent of any such 
 consent.^ 
 
 § 351 c. Indeed, the reasonable interpretation of the 
 general rule would seem to be, that, while contracts 
 made in one country are properly held to be dissoluble 
 and extinguishable, according to the laws of that coun- 
 try, as natural incidents to the original concoction of 
 such contracts, they are, and may at the same time 
 also be equally dissoluble and extinguishable by any 
 other acts done or contracts made subsequently in 
 another country by the parties, which acts or contracts, 
 according to the law of the latter country, are sufficient 
 to work such a dissolution or extinguishment. It is to 
 this double posture of a case, that Lord Brougham re- 
 ferred in one of his judgments. "If a contract," said 
 he, " for sale of a chattel is made, or an obligation of 
 debt is incurred, or a chattel is pledged in one country, 
 the sale may be annulled, the debt released, and the 
 pledge redeemed by the law and by the forms of 
 another country, in which the parties happen to reside. 
 
 » Post, nil-
 
 584 CONFLICT OF LAWS. [CH. VIIL 
 
 and in whose courts their rights and obligations come 
 in question, unless there was an express stipulation in 
 the contract itself against such avoidance, release, or 
 redemption. But at any rate, this is certain, that if 
 the laws of one country and its courts recognise and 
 give effect to those of another in respect of the consti- 
 tution of any contract, they must give the like recogni- 
 tion and effect to those same foreign laws, when they 
 declare the same kind of contract dissolved. Suppose 
 a party forbidden to purchase from another by our 
 equity, as administered in the Courts of this country, 
 (and we have some restraints upon certain parties, which 
 come very near prohibition;) and suppose a sale of 
 chattels by one to another party, standing in this rela- 
 tion towards each other, should be effected in Scotland, 
 and that our Courts here should, (whether * right or 
 wrong.) recognise such a rule, because the Scotch law 
 would affirm it ; surely it would follow that our Courts 
 must equally recognize a recission of the contract of 
 sale in Scotland by any act, which the Scotch law 
 regards as valid to rescind it, although our own law 
 may not regard it as sufficient. Suppose a question to 
 arise in the Courts of England respecting the execu- 
 tion of a contract, thus made in this country, and that 
 the objection of its invalidity were waived for some 
 reason ; if the party resisting its execution were to 
 produce either a sentence of a Scotch Court, declaring 
 it rescinded by a Scotch matter done in pais, or were 
 merely to produce evidence of the thing so done, and 
 proof of its amounting by the Scotch law to a recission 
 of the contract ; I apprehend, that the party relying on 
 the contract could never be heard to say ; ' The con- 
 tract is English, and the Scotch proceeding is impotent 
 to dissolve it.' The reply would be, ' Our English
 
 CH. VIII.] FOREIGN CONTRACTS. 585 
 
 Courts have (whether right or wrong) recognized the 
 validity of a Scotch proceeding to complete the obliga- 
 tion, and can no longer deny the validity of a similar, 
 but reverse proceeding to dissolve it — Umanquodqiie 
 dissolvitiir codcm modo, quo colligatur^. Suppose, for 
 another example, (which is the case,) that the law of 
 this country precluded an infant or a married woman 
 from borrowing money in any way, or from binding 
 themselves by deed ; and that in another country those 
 obligations could be validly incurred ; it is probable, 
 that our law and our Courts would recognize the valid- 
 ity of such foreign obligations. But, suppose a feme 
 covert had executed a power, and conveyed an interest 
 under it to another /f;«c covert in England ; could it be 
 endured, that where the donee of the power produced a 
 release under seal from the feme covert in the same 
 foreign country, a distinction should be taken, and the 
 Court here should hold that party incapable of releasing 
 the obligation ? Would it not be said, that our Courts 
 having decided the contract of a feme covert to be bind- 
 ing when executed abroad, must, by parity of reason, 
 hold the discharge or release of the feme covert to be 
 valid, if it be valid in the same foreign country ? " ^ 
 
 § 351 d. Nor does there seem to be in this respect 
 any acknowledged distinction between contracts, which 
 are purely personal, and contracts which impose or may 
 impose any charge on real estate ; for although in re- 
 spect to immovable property the law of the mtus should 
 be admitted (as certainly is the case at the common 
 law) to regulate all the rights to immovable property ; 
 yet it does not thence follow, that an act, which would 
 
 1 Warrender v. Warrender, 9 Bligh, R. 125 to 127 ; ante, \ 226 c, 
 note.
 
 586 CONFLICT OF LAWS. [CH. Vm. 
 
 operate as a dissolution or extinguislament of the con- 
 tract, creating sucli charge, according to the law of a 
 foreign country, where it is subsequently done, may 
 not incidentally and indirectly work such a dissolution 
 or extinguishment thereof, although it does not conform 
 to the Lex rei sitw. Lord Brougham on the same occa- 
 sion, referring to this topic said ; " All personal obliga- 
 tions may in their consequences affect real rights in 
 England. Nor does a Scotch divorce, by depriving a 
 widow of dower or arrears of pin money, charged on 
 English property, more immediately affect real estate 
 here than a bond or a judgment released in Scotland 
 according to Scotch forms, discharges real estate of a 
 lien, or than a bond executed, or indeed a simple con- 
 tract debt incurred in Scotland, eventually and conse- 
 quently charges English real estate." ^ 
 
 § 352. Before we quit this head of contracts, it may 
 be well to bring together some principles applicable to 
 negotiable instruments, which have not been brought 
 as distinctly under review in the preceding discussions, 
 as they deserve to be, and which afford important illus- 
 trations of the operation of foreign law upon contracts 
 and their incidents. The subject of the assignments of 
 debts and other cJioses in action, not negotiable by the 
 general law merchant, or the laws of particular coun- 
 tries, will more properly find a place in our subsequent 
 inquiries.^ 
 
 § 353. Questions have arisen, whether negotiable 
 notes and bills, made in one country, are transferable in 
 other countries, so as to found a right of action in the 
 
 ' Warrender v. Warrender, 9 Bligh, R. 127 ; ante, § 226 c, note. 
 ~ Post, ^ 355, ^ 395 to ^ 400, ^ 566 ; 3 Surge, Comm. on Col. and For. 
 Law, Pt. 2, ch. 20, p. 777, 778.
 
 CH. viil] foreign contracts. 587 
 
 holder against the other parties. Thus, a question oc- 
 curred in England, in a case Avhere a negotiable note, 
 made in Scotland, and there negotiable, was indorsed, 
 and a suit brought in England by the indorsee against 
 the maker, whether the action was maintainable. It was 
 contended, that the note, being a foreign note, was not 
 within the statute of Anne (3 and 4 Ann. ch. 9.), which 
 made promissory notes payable to order assignable and 
 negotiable ; for that statute applied only to inland 
 promissory notes. But the Court overruled the objec- 
 tion, and held the note suable in England by the indor- 
 see, as the statute embraced foreign, as well as domestic 
 notes.^ In another case a promissory note, made in 
 England, and payable to the bearer, w^as transferred in 
 France ; and the question was made, whether the French 
 holder could maintain an action thereon in England ; 
 such notes not being by the law of France negotiable ; 
 and it was held, that he might.^ But in each of these 
 cases the decision was expressly put upon the provisions 
 of the statute of Anne respecting promissory notes, lea- 
 ving wholly untouched the general doctrine of interna- 
 tional law. 
 
 § 353 «. In a more recent case, which has been 
 already cited,^ a negotiable note was made in France 
 and indorsed in France, and afterwards a suit was 
 
 1 Milne v. Graham, 1 Barn. & Cresw. 192. — It does not distinctly ap- 
 pear upon the Report, whether the indorsement was made in Scotland or 
 in England. But it was probably in England. But see Carr v. Shaw, 
 Bayley on Bills, p. 16, note, 5th edit. ; Id. p. ?2, American Edition, by 
 Phillips v^ Sewall, 1836. 
 
 2 De la Chaumette v. The Bank of England, 2 Barn. & Adolph. R. 
 385 ; S. C. 9 Barn. & Cresw. 208 ; and see Chitty on Bills, p. 551, 552, 
 8th edit. ; ante, § 346. 
 
 3 Ante, ^ 316 a.
 
 588 CONFLICT OF LAWS. [CH. VIIL 
 
 brouglit thereon by the indorsee against the maker in 
 England. One question in the case was, whether a 
 blank indorsement in France was by the law of Trance 
 sufficient to transfer the property in the note, without 
 any other formalities. It was held, that it was not suffi- 
 cient. But it seems to have been taken for granted, 
 that if the note was well negotiated by the indorsement, 
 a suit might be maintained thereon in England by the 
 indorsee in his own name. On that occasion the Court 
 said ; " The rule, which applies to the case of contracts 
 made in one country, and put in suit in the courts of law 
 of another country, appears to be this ; that the interpre- 
 tation of the contract must be governed by the law of 
 the country where the contract was made {Lex loci 
 contradus) ; the mode of suing, and the time within which 
 the action must be brought, must be governed by the 
 law of the country where the action is brought. [In 
 ordinandis judiciis, loci consiietiido, uhi agitiir.) This dis- 
 tinction has been clearly laid down and adopted in the 
 late case of De la Vega v. Vianna. See also the case 
 of the British Linen Company against Drummond where 
 the different authorities are brought together. The 
 question therefore is, whether the law of France, by 
 which the indorsement in blank does not operate as a 
 transfer of the note, is a rule which governs and regu- 
 lates the interpretation of the contract, or only relates 
 to the mode of instituting and conducting the suit ; 
 for, in the former case, it must be adopted by our courts, 
 in the latter it may be altogether disregarded, and the 
 suit commenced in the name of the present plaintiff. 
 And we think the French law on the point above men- 
 tioned is the law by which the contract is governed, 
 and not the law which regulates the mode of suing. 
 If the indorsement has not operated as a transfer, that
 
 CH. VIII.] FOREIGN CONTRACTS. * 589 
 
 goes directly to the point, that there is no contract 
 upon which the plaintiff can sue. Indeed, the differ- 
 ence in the consequences that would follow, if the 
 plaintiff sues in his own name, or is compelled to use 
 the name of the former indorser, as the plaintiff by 
 procuration, would be very great in many respects, par- 
 ticularly in its bearing on the law of set-off ; and with 
 reference to those consequences, we think the law of 
 France falls in with the distinction above laid down, 
 that it is a law which governs the contract itself, not 
 merely the mode of suing. We therefore think, that 
 our courts of law must take notice, that the plaintiff 
 could have no right to sue in his own name upon the 
 contract in the courts of the country where such con- 
 tract was made j and that such being the case there, 
 we must hold in our courts that he can have no right 
 of suing here." ^ 
 
 § 354. Several other cases may be put upon this sub- 
 ject. In the first place, suppose a note negotiable by 
 the law of the place where it is made, is there trans- 
 ferred by indorsement -, can the indorsee maintain an 
 action in his own name against the maker in a foreign, 
 country, (where both are found,) in which there is no 
 positive law on the subject of negotiable notes applica- 
 ble to the case ? If he can, it must be upon the ground 
 that the foreign tribunal would recognize the validity 
 of the transfer by the indorsement according to the law 
 of the place where it is made. According to the doc- 
 trine maintained in England, as choses in action are by 
 the common law (independent of statute) incapable of 
 
 1 Triinbey v. Vijjnier, 1 Bing. N. Cas. 151, 159, 160 ; post, ^ 565, 
 566. 
 
 CONFL. 50
 
 590 CONFLICT OF LAWS. [CH. VIIL 
 
 being transferred over, it might be argued that he could 
 not maintain an action, notwithstanding the instrument 
 was well negotiated, and transferred by the law of the 
 place of the contract.^ So far as this principle of the 
 non-assignability of choses in action would affect trans- 
 fers in England, it would seem reasonable to follow it. 
 But the difficulty is in applying it to transfers made in 
 a foreign country, by whose laws the instrument is ne- 
 gotiable, and capable of being transferred, so as to vest 
 the property and right in the assignee. In such a case 
 it would seem that the more correct rule would be, that 
 the Lex loci contractus ought to govern ; because the 
 holder under the indorsement has an immediate and ab- 
 solute right in the contract vested in him, as much as 
 he would have in goods transferred to him. Under 
 such circumstances to deny the legal effect of the in- 
 dorsement is to construe the obligation, force, and effect 
 of a contract, made in one place, by the law of another 
 place. The indorsement in the place where it is made, 
 creates a direct contract between the maker and the 
 first indorsee ; and if so, that contract ought to be en- 
 forced between them everywhere. It is not a question 
 as to the form of the remedy, but as to the right.^ 
 
 § 355. The same view of the doctrine seems to have 
 been taken in another case in England, much stronger 
 in its circumstances than the case of a foreign nego- 
 tiable note, which may be thought to stand in some 
 
 1 See 2 Black. Comm. 442 ; Jeffrey v. McTaggarl, 6 Maule & Selw. 
 126 ; Innes v. Dunlop, 8 T. R. 595. See also Jeffrey v. McTaggart, 
 6 Maule & Selw. R. 12G ; post, ^ 565, 506. 
 
 2 SeeTrimbey v. Vignier, 1 Bing. New Cases, 159, 160, 101 ; ante, 
 ^ 353 a, where the same reasoning seems to have applied ; post, ^ 565, 
 566.
 
 CH. VIII.] FOREIGN CONTRACTS. 591 
 
 measure upon the custom of merchants. A suit was 
 brought by the assignee of an Irish judgment against 
 the judgment debtor in England, the judgment being 
 made expressly assignable by Irish statutes ; and the 
 objection was taken that no action could be maintained 
 by the assignee, because it would contravene the gene- 
 ral principle of the English law, that choses in action 
 were not assignable. But the Court intimated a strong 
 opinion against this ground of argument ; and the 
 cause finally was disposed of upon another point ; but 
 in such a manner as left the opinion in full force.^ It 
 is matter of surprise, that in some of the more recent 
 discussions in England upon the negotiations of notes 
 in foreign countries, this doctrine has not been distinctly 
 insisted on. For, even in England, negotiable notes 
 are not treated as mere choses in action ; but they are 
 deemed to have a closer resemblance to personal chat- 
 tels on account of their transferability ; so that the le- 
 gal property in them passes upon the transfer, as it 
 does in the case of chattels.^ If so, no one could doubt 
 that a title of transfer of personal property in a foreign 
 country, good by the laws of the country where it is 
 made, ought to be held equally good everywhere.^ 
 
 § 356. In the next place, let us suppose the case of 
 a negotiable note, made in a country by whose laws it 
 is negotiable, is actually indorsed in another, by whose 
 laws a transfer of notes by indorsement is not allowed. 
 Could an action be maintained by the indorsee against 
 the maker, in the courts of either country? If it 
 could be maintained in the country whose laws do not 
 
 1 O'Callaghan v. Thomond, 3 Taunt. R. 82 ; post, ^ 565, 566. 
 
 2 McNeil V. HoUoway, 1 Barn. & Aid. R. 218. 
 8 Ante, § 353 a.
 
 592 CONFLICT OF LAWS. [CH. VIII. 
 
 allow such a transfer, it must be upon the ground that 
 the original negotiability by the Lex loci contractus^ is 
 permitted to avail, in contradiction to the Lex fori. On 
 the other hand, if the suit should be brought in the 
 country where the note was originally made, the same 
 objection might arise, that the transfer was not allowed 
 by the law of the place where the indorsement took 
 place. But, at the same time, it may be truly said, 
 that the transfer is entirely in conformity to the intent 
 of the parties, and to the law of the original contract.^ 
 § 357. In the next place, let us suppose the case 
 of a note, not negotiable by the law of the place, where 
 it is made, but negotiable by the law of the place, 
 where it is indorsed ; could an action be maintained, 
 in either country, by the indorsee against the maker ? 
 It would seem, that in the country, where the note was 
 made, it could not ; because it would be inconsistent 
 with its own laws. But the same difficulty would not 
 arise in the country, where the indorsement was made ; 
 and, therefore, if the maker used terms of negotiability 
 in his contract, capable of binding him to the indorsee, 
 there would not seem to be any solid objection to giving 
 the contract its full effect there. And so it has been 
 accordingly adjudged in the case of a note made in 
 Connecticut, payable to A., or order, but by the laws of 
 that State, not negotiable there, and indorsed in New 
 York, where it was negotiable. In a suit, in New York, 
 
 1 See Chilly on Bills, ch. 6, p. 218, 219, 8th London edit. See Kames 
 on Equity, B. 3, ch. 8, ^ 4 ; ante, ^ 353, 354. — In the cases of Milne v. 
 Graham, 1 Barn. & Cressvv. 192, De la Chaumette v. Bank of England, 
 2 Barn. & Adolp. 385, and Trimbey v. Vignier, 1 Bing. N. Cas. 151, 
 the promissory notes were negotiable in both countries, as well where the 
 note was made, as where it was transferred.
 
 CH. Vlll.] FOREIGN CONTRACTS. 593 
 
 by the indorsee against the maker, the exception was 
 taken, and overruled. The Court, on tliat occasion, 
 said, that personal contracts, just in themselves, and 
 lawful in the place' where they are made, are to be 
 fully enforced, according to the law of the place, and 
 the intent of the parties, is a principle, which ought to 
 be universally received and supported. But this ad- 
 mission of the Lex loci contractus can have reference 
 only to the nature and construction of the contract, and 
 its legal effect, and not to the mode of enforcing it. 
 And the Court ultimately put the case expressly upon 
 the ground, that the note was payable to the payee, or 
 order ; and, therefore, the remedy might well be pur- 
 sued according to the law of New- York against a party, 
 who had contracted to pay to the indorsee.^ But, if 
 the words, " or order," had been omitted in the note, 
 so that it had not appeared, that the contract between 
 the parties originally contemplated negotiability, as 
 annexed to it, a different question might have arisen, 
 which would more properly come under discussion in 
 another place ; since it seems to concern the interpret- 
 ation and obligation of contracts, although it has some- 
 times been treated as belonging to remedies.- 
 
 § 358. Another case may be put, which has actually 
 passed into judgment. A negotiable note was given 
 by a debtor, resident in Maine, to his creditor, resident 
 in Massachusetts. After the death of the creditor, his 
 executrix, appointed in Massachusetts, indorsed the 
 same note in that State to an indorsee, who brought a 
 
 1 Lodge V. Phelps, 1 Johns. Cases, 139 ; S. C. 2 Caines, Cas. in Error, 
 321. See Kames on Equity, B. 3, ch. 8, ^ 4. 
 
 2 See Chitty on Bills, ch. 6, p. 218, 219, 8th Lond. edit. ; 3 Kent, 
 Comm. Lect. 44, p. 77, 3d edit. ; ante, ^ 253 a. 
 
 50*
 
 594 CONFLICT OF LAWS. [CH. VIII. 
 
 suit, as indorsee, against the maker in tlie State Court 
 of Maine. The question was, whether the note was, 
 under the circumstances, suable by the indorsee ; and 
 the Court held, that it was not; for'the Court said, that 
 the executrix could not herself have sued upon the 
 note, without taking out letters of administration in 
 Maine ; and, therefore, she could not, by her indorse- 
 ment, transfer the right to her indorsee.^ 
 
 § 359. It does not appear, by the report,^ whether 
 the note was made in Massachusetts or in Maine. It 
 is not, perhaps, in the particular case material, as, ac- 
 cording to the law of both States, the note was nego- 
 tiable by indorsement, whether made in the one or in 
 the other State. If it had been different, it might have 
 given rise to a different inquiry. But in either State, 
 the creditor might certainly, in his lifetime, by his in- 
 dorsement, have transferred the property in the note to 
 the indorsee ; and as clearly his executrix could do the 
 same ; for it is entirely well settled, that an executor 
 or administrator can so transfer any negotiable security 
 by his indorsement thereof.^ If, then, by the transfer 
 in Massachusetts, the property passed to the indorsee, 
 it is difficult to perceive, why that transfer was not as 
 effectual in Maine as in Massachusetts ; and, by the 
 law of both States, an indorsee may sue on negotiable 
 instruments in his own name. [And this doctrine was 
 
 1 Stearns v. Burnham, 5 Grcenl. R. 261 ; S. P. Thomson i'. Wilson, 
 2 N. Hamp. R. 291. But see Iluthwaite v. Phaire, 1 Mann. & Grang. 
 R. 159, 164 ; and Rand v. Hubbard, 4 Mete. R. 252, 258, 259 ; post, 
 ^ 516, 517. See Dixon v. Ramsay, 3 Cranch, 319; Pond v. Makepeace, 
 2 Mete. 114 ; Harper v. Butler, 2 Peters, 239. 
 
 2 [In the second edition of Greenleafs Reports, by Bennett, 1852, it 
 appears that this note was made and indorsed in Massachusetts.] 
 
 3 See Rawlinson v. Stone, 3 Wilson, R. 1 ; S. C. 2 Str. R. 1260.
 
 CH. VIII.] FOREIGN CONTRACTS. 595 
 
 acted upon by the same Court, in a case later than that 
 just alluded to. An administrator appointed in New 
 Hampshire and residing there, held in his official capa- 
 city, a negotiable note against a citizen of Maine, pay- 
 able to the intestate, also a resident of New Hampshire. 
 The note had been indorsed in blank by the payee 
 during his lifetime, and while still a citizen of the 
 latter State. The administrator was allowed to sue in 
 the Courts of Maine, as an indorsee, subject, however, 
 to any defence open between the original parties.^] In 
 truth, such instruments are treated, not as mere choses 
 in action, but rather as chattels personal.^ Choses in 
 action are not assignable by law ; and actions must be 
 brought thereon in the name of the original parties. 
 But negotiable notes are transferable by indorsement ; 
 and when transferred, the indorsee may sue in his own 
 name. Upon the reasoning in the above case, the note 
 would cease to be negotiable after the death of the 
 payee ; which is certainly not an admissible doctrme.^ 
 The decision, in a recent case, in the Supreme Court of 
 the United States, is founded upon the doctrine, that 
 an assignment by an executor of a chose in action in 
 the State where he is appointed, and which is good by 
 its laws, will enable the assignee to sue in his own 
 name in any other State, by whose laws the instrument 
 
 i Barrett v. Barrett, 8 Greenl. R. (Bennett's Ed.) 353. 
 
 2 McNeilage v. Ilolloway, 1 Barn. & Aid. 218. But see Richards v. 
 Richards, 2 Barn. & Adolph. 447, 452, 453 ; ante, § 355. 
 
 3 Ravvlinson v. Stone, 3 Wilson, R. 1 ; S. C. 2 Str. R. 12G0 ; Bayley 
 on Bills, ch. 5, p. 78, 5th edit. — The effect of assignments of debts and 
 other personal property will come more fully under review in the succeed- 
 ing chapter, when we enter upon the subject of the law, which regulates 
 the transfer of personal property. Post, § 395 to ^ 400.
 
 596 CONFLICT OF LAWS. [CH. VIIL 
 
 would be assignable, so as to pass the note to the as- 
 signee, and enable him to sue thereon.^ 
 
 § 360. As to bills of exchange, it is generally re- 
 quired, in order to fix the responsibility of other parties, 
 that, upon their dishonor, they should be duly protested 
 by the holder, and due notice thereof given to such 
 parties. And the first question which naturally arises, 
 is, whether the protest and notice should be in the 
 manner, and according to the forms of the place in 
 which the bill is drawn, or according to the forms of the 
 place in which it is payable. By the common law, the 
 protest is to be made, at the time, in the manner, and 
 by the persons prescribed in the place where the bill 
 is payable.^ But, as to the necessity of making a 
 demand and protest, and the circumstances under 
 which notice may be required or dispensed with, these 
 are incidents of the original contract, which are go- 
 verned by the law of the place where the bill is drawn.^ 
 They constitute implied conditions, upon which the 
 liability of the drawer is to attach, according to the 
 Lex loci contractus ; and, if the bill is negotiated, the 
 
 1 S. p. 3 Kent, Comm. § 44, p. 88, 4lh edit. ; Rand v. Hubbard, 
 4 Mete. R. 252, 258, 259 ; Harper v. Butler, 2 Peters, Sup. Court, R. 
 239 ; Trecothick v. Austin, 4 Mason, 16. — The case of Trimbey v. Vig- 
 nier, 1 Bing. N. Cases, 151, (Ante, § 353 a,) seems to inculcate the doc- 
 trine as general, that a transfer of property, good by the Lex loci of the 
 transfer, will, at least in cases of negotiable instruments, be held good 
 everywhere, so as to enable the indorsee to sue in his own name. 
 
 2 Chitty on Bills, p. 193, 490, 506, 507, 508, 8th Lond. edit. 1833 ; 
 Post, ^631. See Rothschild ?-. Currie, 1 Adolph. & Ell. 43 ; Shanklin 
 V. Cooper, 8 Blackford, 41 ; Pothier, De Change, n. 155 ; S. P. Pardes- 
 sus Droit, Comm. Tom. 5, art. 1497, 1489, n. 155, states the same point. 
 
 3 Ibid. See Aymaru. Sheldon, 12 Wend. R. 439; Id. p. 490, 506, 
 507, 508, 8th Lond. edit. 1833 ; 1 BouUenois, Observ. 23, p. 531, 532. 
 Pardessus, Tom. 5, art. 1489, 1498. Savary, Le Parfait, Negotiant, 
 Tom. 1, Part 3, Lib. 1, oh. 14, p. 851.
 
 CH. VIII.] FOREIGN CONTRACTS. 597 
 
 like responsibility attaches upon each successive in- 
 dorser, according to the law of the place of his indorse- 
 ment ; for each indorser is treated as a new drawer.^ 
 The same doctrine, according to Pardessus, prevails in 
 France.^ 
 
 § 361. Upon negotiable instruments, it is the custom 
 of most commercial nations to allow some time for pay- 
 ment beyond the period fixed by the terms of the in- 
 strument. This period is different in different nations ; 
 in some, it is limited to three days ; in others, it ex- 
 tends as far as eleven days.^ The period of indulgence 
 is commonly called the dai/s of grace ; as to which, the 
 rule is, that the usage of the place on which a bill is 
 drawn, and where payment of a bill or note is to be 
 
 1 See Rothschild v. Currie ; 1 Adolph. & Ell. 43, PothierDe Change, 
 n. 155 ; Bayley on Bills, ch. A. p. 78 to p. 86, 5th edit. 1836, by Phillips 
 & Sewall ; Chitty on Bills, ch. 6, p. 266, 267, 370, 8th Lend. edit. ;' Bal- 
 lingalls V. Gloster, 3 East, R. 481 ; ante, ^ 314 to ^ 317. 
 
 2 Pardessus, Droit Comra. art. 1485, 1495, 1496 to 1499 ; Henry on 
 Foreign Law, 53, Appx. p. 239 to 248. Ante, ^ 314 to ^ 347. Boul- 
 lenois admits, that the protest ought to be according to the law of the 
 place where the bill is payable. But, in case of a foreign bill, indorsed by 
 several indorsements in different countries, he contends that the time, 
 within which notice or recourse is to be had upon the dishonor, is to be 
 governed by a different rule. Thus, he supposes, a bill drawn in England 
 on Paris in favor of a French payee, who indorses it to a Spaniard (in 
 Spain,) and he to a Portuguese (in Portugal,) and he to the holder ; and 
 then says, that the holder is entitled to have recourse against the Portu- 
 guese, within the time prescribed by the law of France, because the holder 
 is there to receive payment ; the Portuguese is to give notice to the 
 Spaniard within the time prescribed by the law of Portugal, because that 
 is the only law with which he is presumed to be acquainted, &c. ; and so 
 in regard to every other indorser, he is to have recourse within the period 
 prescribed by the law of the place where the indorsement was made, and 
 not of the domicil of the party indorsing. 1 Boullenois, Observ. 20, p. 370, 
 371, 372; Id. Observ. 23, p. 531, 532. 
 
 3 Bayley on Bills, 5th Amer. Edit, by Phillips & Sewall, p. 234, 235 ; 
 Chitty on Bills, p. 407, 8ih Lond. edit. ; Id. p. 193.
 
 598 CONFLICT OF LAWS. [CH. VIIL 
 
 made, governs as to tlie number of the days of grace 
 to be allowed thereon.i 
 
 § 362. This head, respecting contracts in general, 
 may be concluded by remarking that contracts respect- 
 ing personal property and debts, are now universally 
 treated as having no situs or locality ; and they follow 
 the person of the owner in point of right ; [3IoUlia in- 
 hcerent ossibus domini ;y although the remedy on them 
 must be according to the law of the place where they 
 are sought to be enforced. The common language is : 
 Mohilia non Jiahent seqiielam ; MoUlia ossibus inhcerent ; 
 Actor seqidtiir forum Rei ; Dehita seqmintur personam 
 dehitoris.^ That is to say, they are deemed to be in the 
 place, and are disposed of by the law of the domicil of 
 the owner, wherever in point of fact they may be situ- 
 ate. Qidn tamcn rcdione mohilmm, (says Paul Yoet, a 
 strenuous opposer of the general doctrine of the extra- 
 territorial operation of statutes,) uhiciinqiie sitorum, do- 
 miciUiim seu personam domini sequamur^ Burgundus 
 says : Sed tamen, ut existimem, hona moventia, et mohilia, 
 ita comitari personam, id extra domicilium ejus censeantiir 
 
 1 Ibid. ; Bank of Washington v. Triplett, 2 Peters, Sup. C. R. 30, 34 ; 
 ante, § 316 to ^ 347; Pardessus, Tom. S. P. Chitty on Bills, p. 407, 
 8th Lond. edit. ; Id. p. 193; S. P. 2 Boullenois, Observ. 23, p. 531, 532, 
 and Mascard. Conclus. 7, n. 72, there cited, 
 
 2 Thorne v. Watkins, 2 Ves. 35 ; 1 Boullenois, Observ. 20, p. 348 ; 
 Liverm. Diss. ^ 251, p. 162, 1C3 ; P. Voet, de Statut. ch. 2, ^ 4, n. 8, 
 p. 126, edit. 1715 ; Id. p. 139, edit. 1661 ; post, ^ 377, 378. 
 
 3 Kames on Equity, B. 3, ch. 8, ^ 3, 4 ; Dwarris on Statutes, Pt. 2, 
 p. 650; Liverm. Diss. § 251, 252, 254, p. 162, 163, 167 ; Fcelix, Conflit 
 des Lois, Revue Etrang. et Franc. Tom. 7, 1840, ^ 32, p. 221 to p. 226 ; 
 Id. ^ 33, p. 227, 228 ; Christinaeus, ad Cod. Lib. 1, tit. 1, Decis. 5, n. 1, 
 2, 3, p. 7 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 777 ; 
 post, ^ 376 to ^ 385, ^ 395 to ^ 400. 
 
 4 P. Voet, De Statut. ^ 4, ch. 2, n. 8, p. 126 ; Id. p. 139, 140, edit. 
 1661.
 
 CH. VIII.] FOREIGN CONTRACTS. 599 
 
 existere, addiici sane noii possum} Rodenburg says the 
 same. Diximiis, mohilia sitwn habere intelligi, iiU dominus 
 instruxerit domicilium, nee aliter mutare eiindem, qiiani una 
 cum domiciUor He goes on to assign the reasons, found- 
 ed upon the perpetually changeable location of mova- 
 bles. Pothier is equally expressive on the same point.^ 
 Indeed, the doctrine is so firmly established, that it 
 would be a waste of time to go over the authorities ; ^ 
 
 1 Burgundus, Tract. 2, n. 20, p. 71. 
 
 2 Rodenburg, De Diver. Stat. lit. 2, ch. 2, n. 1 ; 2 BouUenois, Appx. 
 p. 14, 15. 
 
 3 Post, '^ 381. 
 
 4 See Bouhier, Coutura. de Bourg. ch. 21, ^ 172, p. 408 ; Id. ch. 22, 
 ^ 79, p. 429 ; Id. ch. 25, ^ 5, 6, p. 490 ; Pothier, Des Choses, Tom. 8, 
 P. 2, § 3, p. 109, 110 ; Id. Coutum. d'0rl6ans, Tom. 10, n. 24, p. 7 ; 2 
 Bell, Comm. 684, 685, 4lh edit. ; Bruce v. Bruce, 2 Bos. & Pull. 230 ; 
 Sill V. Worswick, 1 H. Bl. 690, 691 ; In Re, Ewing, 1 Tyrwhilt, R. 91 ; 
 Thorne v. Watkins, 2 Ves. R. 35 ; 4 Cowen, R. 517, note ; Blanchard 
 V. Russell, 13 Mass. R. 6 ; Liverm. Diss. 163, 164 to 171 ; Foelix, Con- 
 flit des Lois, Revue Strang, et Franc. Tom. 7, 1840, ^ 31, p. 220, ^ 32, 
 p. 221 to ^ 36, p. 229. — There are some few jurists, who seem to dis- 
 sent from the doctrine, either in a qualified or absolute manner, who are 
 cited by Mr. Fcelix. He enumerates Tittman, Muhlenbruch, and Eich- 
 horn. Id. p. 223, 224. John Voet has expounded this whole doctrine 
 very fully. Atque ita (says he) evictum hactenus existimo, in omnibus 
 statutis, realibus, personalibus, mixtis, aut quacunque alia sive denomina- 
 tione sive divisione concipiendis, verissimam esse regulam, perdere omnino 
 officium suum statuta extra territorium statuentis ; neque judicem alterius 
 regionis, quantum ad res in suo territorio sitas, ex necessitate quadam 
 juris obstrictum esse, ut sequatur probetve leges non suas. In eo tamen 
 forte scrupulus hseserit ; si scilicet haec ita sint, qui ergo fiat, quod vulgo 
 reperitur traditum, in successionibus, testandi facultate,contractibus, aliis- 
 que, mobilia ubicunque sita regi debere domicilii jure, non vero legibus 
 loci illius, in quo naturaliter sunt constituta ; videri enim hac saltern ra- 
 tione jurisdictionem judicis domicilii non raro ultra statuentis fines operari 
 in res dispersas per varia aliorum magistratuum, etiam remotissimis ad 
 orientem occiduumque solem regionibus imperitantium, territoria. Sed 
 considerandum, quadam fictione juris, seu mails, piscsumptionc, hanc de 
 mobilibus determinationem conseptam niti : cum enim certo stabilique ha;c 
 situ careant, nee carlo sint alligata loco ; sed ad arbitrium domini undi- 
 quaque in domicilii locum revocari facile ac reduci possint, et maximum
 
 600 CONFLICT OF LAWS. [CH. VIIL 
 
 and especially as the same subject will occur, in a more 
 general form, in the succeeding chapter.^ 
 
 § 362 a. Debts, in the vocabulary of the civil law, 
 are often known by the title of Nomina deUtorum ; ^ 
 
 domino plerumque commcJum adferre soleant, cum ei sunt prassenlia ; 
 visum fuit, hanc inde conjecturara surgere, quod dominus velle censeaiur, 
 ut illic omnia sua sint mobilia, aut saltern esse intelligantur, ubi fortuna- 
 rum suarum larem summamque constituit, id est, in loco domicilii. Pro- 
 inde si quid domicilii judex constitueril, id ad mobilia ubicunque sita non 
 alia pertinebit ratione, quam quia ilia in ipso domicilii loco esse concipiun- 
 tur. Si tamen has juris fictiones quis a ratione naturali, in hisce solum 
 consideranda, alienas putet, quippe desiderantes unum communem legis- 
 latorem, lege sua fictiones tales introducentem ac stabilientem ; non equi- 
 dera repugnaverim, atque adeo tunc hoc ipsum comitati, quam gens genti 
 praestat, magis, quam rigori juris, et summae potestati, quam quisque ma- 
 gistratus in mobilia, suo in territorio constituta, habet, adscribendum pu- 
 tem. Praesertira cum considero, subinde per magistratus loci, in quo 
 mobilia vete existunt, de illis ea constitui sancirique, quae domicilii judici 
 displicere possent. Quid enim, si domicilii judex frumenta importari 
 jubeat, penuria frugum vexata regions ; incola spe lucri majoris frumenta 
 sua, in alia regione horreis recondita inferre desiderit ; regioni vero isti 
 imperans omnem vetuerit frugum expottationem, jure suo in sui territorii 
 frumentis usus ? Quis hie obsecro negare sustineat, mobilia regi lege loci, 
 in quo vere sunt, non in quo ob domicilium domini esse finguntur. Nee 
 minus id in rerum publicationibus ex delicto apparet, in quantum fisco loci, 
 in quo reus condemnatus est, non sunt cessura bona omnia mobilia ubicun- 
 que sita, sed ea sola, quae in loco condemnantis inveniuntur ; nisi aliud ex 
 comitate alicubi servetur. Nee dicam, variare de rebus quibusdam locorum 
 plurimorum statuta, utrum mobilibus illae, an immobilibus accensendse sint ; 
 nee novum esse, ut qua; una in regione mobilia habentur, immobilium ca- 
 talogo alibi adscripta inveniantur ; annui, vcrbi gratia, reditus a Provincia 
 debiti, in HoUandia mobiles, immobiles Trajecli : arbores grandiores solo 
 ha^rentes passim immobiles, mobiles tamen in Flandria habitcc. Quo posi- 
 to, necesse fuerit, ut, qua; in domicilii loco mobilia habentur, immobilia 
 vero illic ubi sunt, regantur lege loci in quo vere sunt, magistratu ne ex 
 comitate quidem permissuro, ut quasi mobilia domicilii dominici seque- 
 rentur jura. J. Voet, ad Pand. Lib. 1, tit. 4, P°. 2, § 11, p. 44,45 ; post, 
 ^81,482. 
 
 1 Post, ^ 374 to ^401. 
 
 2 Ersk. Inst. B. 3, tit. 9, § 4 ; Cujaccii, Opera, Tom. 7, p. 491, edit. 
 1758 ; Dig. Lib. 10, tit. 2, L 2, ^ 6 ; Vicat. Vocab. Voce, Noraen.
 
 CH. VIII.] FOREIGN CONTRACTS. 601 
 
 and they also follow the person of the owner, or, as 
 Jason says : Nomina infixa sunt ejus ossibus} Burgun- 
 dus also says : Nomina et actiones loco non circiimscribun- 
 tur, quia sunt incorporalcs ; tamen et ihi jyer fidionem esse 
 intcliiffuntu?', uhi creditor liabet domicilium. Nam^ quod 
 quidam ossibus creditoris, esse affixa putant, non magis mo- 
 vet, quam si dicamiis, dominium fundi esse in p)^^oprietario ; 
 cum alioquin, si quis striciius interprctetur^ aliud est fundus^ 
 aliud dominium ; sicuti aliud est obligaiio, aliud creditum.~ D u- 
 moulin is equally explicit. Nomina et jura, et quce- 
 cumque incorporalia, non circumscribantur loco ; et sic non 
 opus est accedere ad cerium locum. Turn si hwc jura ali- 
 cubi esse censerentur, non reputarentur esse in re pro illis 
 liypothecata, nee in debitoris persona, sed magis in persona 
 creditoris, in quo active resident, et ejus ossibus inhcerent? 
 
 § 3G2 b. The language of Hertius is ; Mobilibus in- 
 terdum eiiam 5<«t' ('ivuloyiuv {iiam proprie neque mobiles sunt, 
 nee immobiles,) acccnsentur res incorporales^ Huberus 
 holds them to fall under the class of movables.^ Paul 
 Voet says : Verum, quid de nominibus et actionibus siatu- 
 endimi erit ? Respondeo, quia proprie loquendo, nee mobi- 
 liam nee immobiiiam veniunt appellatione ; Etiam vere non 
 sunt in loco, quia incorporalia. Ideo non sine distinctione 
 res temperari poterit. Aut igiturrealis erit actio, iendens ad 
 immobilia, et spectaUtur statutum loci situs immobiUum. Aut 
 erit actio realis spectans mobilia, et idem servandum erit, quod 
 
 1 1 Boullenois, Observ. 20, p. 348. 
 
 - BuriTuiidus, Tract. 2, n. 33, p. 73. 
 
 •^ Dumoulin, Conim. de Consuetud. Paris. Tom. 1, De Fiefs, tit. 1, 
 gloss. 4, n. 9, p. 56, 57 ; Liverm. Dissert. ^ 251, p. 162, 163 ; 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 777 ; post, ^ 3U2 to 
 §400. 
 
 4 Hertii, Opera, De Collis. Leg. § 4, n. G, p. 122, 123, edit. 1737; Id. 
 p. 174, edit. 171G. 
 
 5 Ibid. 
 
 CONFL. 51
 
 602 CONFLICT OF LAWS. [CH. YIIL 
 
 de mohilihiis dictum est. Aut crit actio loersonalis sive ad 
 mohilia sive ad immoUlia ^yertinens, qiice cum inhcereat ossibus 
 personcB, statutiim loci creditorum cestimari dehehit} 
 
 § 363. But a question of a very different character 
 may arise, as to executory contracts respecting real 
 estate, or immovables. Are they governed by the law 
 of the place where the contract is made ? Or by the 
 law of the place where the property is situate ? Take, 
 for instance, the case of a contract for the purchase or 
 sale of lands in England or in America, arising under 
 the Statute of Frauds, by which all contracts respecting 
 real estate, or any interest therein, are required to be in 
 writing; and otherwise they are A^oid. If such a con- 
 tract is made in France by parol, or otherwise, in a man- 
 ner not conformable to the law m sitce, for the purchase 
 or sale of lands situate in England or in America, and 
 the contract is conformable to the law of France on the 
 same subject ; is the contract valid in both countries ? 
 Is it valid in the country where the land lies, so as to 
 be enforced there ? If not, is it valid in the country 
 where the contract was made ? ^ 
 
 § 364. If this question were to be decided exclusively 
 by the law of England, it might be stated, that, by the 
 law of England, such a contract would be utterly void ; 
 and it would be so held in a suit brought to enforce it 
 in that realm, upon the ground, that all real contracts 
 must be governed by the Lex m sitw? Lord Mansfield 
 
 1 P. Voet, U. Statut. ^ 9, cli 1, n. 11, p. 256, edit. 1715, p. 312, 313, 
 edit. 1661. 
 
 2 Ante, § 262 ; post, ^ 435, 430 to 445. See 2 Burge, Comm. on Col. 
 and For. Law, Pt. 2, ch. 9, p. 840 to p. 871 ; 4 Burge, Comm. Pt. 2, ch. 
 5, ^ 11, p. 217. 
 
 3 See 2 Dvvarris on Statut. 648; Warrender v. Warrender, 9 Bligh, R. 
 127, 128 ; ante, '^ 351 d.
 
 CH. viil] foreign contracts. 603 
 
 took occasion, in a celebrated case, to examine and state 
 the principle. "There is a distinction" (said he) ' be- 
 tween local and personal statutes. Local ones regard 
 such things as are really upon the spot in England ; as 
 the Statute of Frauds, which respects lands situate in 
 this kingdom. So stockjobbing contracts, and the Sta- 
 tutes thereupon, have a reference to our local funds. 
 And so the statutes for restraining insurances upon the 
 exportation of wool respect our own ports and shores. 
 Personal statutes respect transitory contracts, as com- 
 mon loans and insurances." ^ And in another report of 
 the same case, after a second argument, he said : " In 
 every disposition or contract, where the subject-matter 
 relates locally to England, the law of England must 
 govern ; and must have been intended to govern. 
 Thus, a conveyance or will of land, a mortgage, a 
 contract concerning stocks, must all be sued upon in 
 England ; and the local nature of the thing requires 
 them to be carried into execution according to the law 
 here." 2 . ' 
 
 1 Robinson v. Bland, 1 W. Black. R. 234, 246 ; post, § 383, and note. 
 
 2 Robinson v. Bland, 2 Burr. R. 1079 ; S. P. 1 W. Black. R. 259. See 
 also Ersk. Inst. B. 3, tit. 9, i^ 4 ; Henry on For. Law, p. 12 to 15 ; Scott 
 V. Alnut, 2 Dow & Clarke, 404. See also Selkrig v. Davis, 2 Dow, R. 
 230, 250 ; post, i^* 383, 435. — Mr. Burge, speaking on this subject, says : 
 " There is an entire concurrence amongst them (jurists) in considering, that 
 the title to movables, or the validity of any disposition of them, is not go- 
 verned by the law of their actual situs. This, which may be regarded as 
 a general rule, is subject to this qualification, that the law of the country 
 in which the movable may be actually situated, has not prescribed some 
 particular mode by which alone the movable can be transferred. Thus, 
 property in the public funds or stocks, shares in companies, joint stocks, 
 &c., is a species of personal property, which, as it is created, so it is reg- 
 ulated by the law of the country in which it exists. Certain forms are 
 prescribed by which alone the holder of any share or interest can transfer 
 it. Here the transfer is so far subject to the law of the place where the 
 property is situated, that the legal title to it is not acquired unless those
 
 604 CONFLICT OF LAWS. [CIL VIII. 
 
 § 365. The same doctrine has been laid down in 
 equally emphatic terms in the Scottish courts. Lord 
 Robertson in a highly interesting case said : " Although 
 the rule as to the Lex loci contractus, is of very general 
 application, particularly as to the constitution and valid- 
 ity of personal contracts and obligations, it is not uni- 
 versal. In the first place, it does not apply to contracts 
 or obligations relative to real estates." ^ Lord Banna- 
 tyne, on the same occasion, aflirmed the like principle." 
 
 forms are observed. Bat although the contract may, in consequence of a 
 non-compliance with those forms, fail in conferring the legal title on the 
 diponee, yet it will give him a right to compel the disponer, by action or 
 suit, to make a transfer in the manner required by the local law. To this 
 limited extent the lex loci rei silEc affects and controls the transfer by acts 
 inter vivos of certain movables. But unless the local law gives to them the 
 quality of immovable or real, as it may do, and has done in many instan- 
 ces, they still, as subjects of succession, are governed by the law of the 
 owner's domicil. The rule is, that the title to movable property is go- 
 verned by the law of the place of the owner's domicil ; and this rule is uni- 
 formly applied in deciding on the title to movable property as a subject of 
 succession. The law of the owner's'domicil is not that which exclusively 
 decides on the title to movable property, as a subject of transfer and acqui- 
 sition by acts inter vivos. When contracts of purchase and sale, mortgage 
 or pledge, are completed in a place which is not the domicil of the 
 owner, the validity of such contracts and the rights and obligations which 
 they confer, are governed by the law of the country in which they are 
 completed. ' Semper in stipulationibus, et in caeteris contractibus 'id se- 
 quimur, quod actum est ; aut si non pareat, quid actum est, erit conse- 
 quens, ut id sequamur, quod in regione, in qua actum est, frequentatur.' 
 ' Generaliter enim in omnibus, qua^ ad formam ejusque perfectionem perti- 
 nent, spectanda est consuetude regionis, nbi sit negotiatio, quia consuetude 
 influit in contractus, et videfur ad eos respicere, et voluntatem suam eis 
 accommodare.' " 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 
 20, p. 751, 752 ; 2 Burge, Comm. Pt. 2, ch. 9, p. 863 to p. 870. See post, 
 ^434. 
 
 1 Fergusson on Marr. and Div. p. 395; Id. 397. See Ersk. Inst. B. 3, 
 tit. 2, ^ 40, p. 515 ; post, ^ 43G, and note. 
 
 2 Fergusson on Marr. and Div. p. 401 ; 2 Kaims on Equity, B. 3, ch. 
 2, ^ 2. — Erskine, in his Institutes, seems to assert a more modified doc- 
 trine. He says : " All personal obligations or contracts entered into ac-
 
 en. VIII.] FOREIGN CONTRACTS. 605 
 
 And it lias received an unequivocal sanction in Ame- 
 rica ; where it has been broadly declared to be a well 
 settled rule, that any title or interest in land, or in other 
 real estate, can only be acquired or lost agreeably to 
 the law of the place where the same is situate.' 
 
 § 365 a. Paul Voet has expressed the same opinion. 
 Quid si itaqiie conteMio de aliqiio jure in re, sett ex ipsa se 
 desccndente ? Vel ex contractu, vel actione personali, scd in 
 rem scripta ? An spectabitur loci statutiim, ubi dominus 
 hahet domicilium, an statutum rei sitw ? Respondeo ; 
 Statutiim rei sitcc. TJt tamen actio etiam intentari possit, 
 ubi Reus hahet domicilium. Idcpie obtinet, sive forensis sit 
 ille, de cujus re controversia est, sive incola loci, ubi res est 
 sita? 
 
 § 366. This doctrine may be farther illustrated by 
 the case of Scotch heritable bonds. By heritable bonds 
 in that law are meant bonds for the payment of money, 
 which are secured by a conveyance or charge upon real 
 estate. Such bonds usually contain not only a charge 
 upon real estate, but a p^'sonal obligation to pay the 
 
 cording to the law of the place where they are signed, or as it is expressed 
 in the Roman Law, secundem legem domicilii, vel loci contractus, are 
 deemed effectual when they come to receive execution in Scotland, as if 
 they had been perfected in the Scotch form. And this holds even in such 
 obligations as bind the grantor to convey subjects within Scotland ; for 
 where one becomes bound by a lawful obligation, he cannot cease to be 
 bound by changing places." Yet Erskine afterwards adds, that if an 
 actual conveyance of the property had been made, not according to the 
 Scotch forms, the courts of Scotland would not compel the party to con- 
 vey, nor treat it as an obligation of the grantor to execute a more perfect 
 conveyance. Ersk. Inst. 13. 3, tit. 3, ^ 40, 41, p. 515. See post, ^^ 436. 
 
 1 Cutter V. Davenport, 1 Pick. R. 81 ; Hosford v. Nichols, 1 Paige, R. 
 220 ; Wills v. Cowper, 2 Ilamm. R. 124 ; S. C. Wilcox, R. 278 ; post, 
 ^ 424, 427, 435. 
 
 2 P. Voet, de Statut. § 9, ch. 1, n. 2, p. 250, edit. 1715 ; Id. p. 305, 
 edit. 1G61 ; post, 6» 426, ^ 442. 
 
 51*
 
 606 CONFLICT OF LAWS. [CH. VIII. 
 
 debt. In general, by the Scotch law, mere personal 
 bonds and other debts, on the decease of the creditor, 
 pass to his personal representative ; but heritable bonds 
 belong to the heir ; because the charge on the real 
 estate, he'mg jus nobilius, draws to it the personal right 
 to the debt. According to the Scotch law, no contract 
 or other act, disposing of an heritable bond, will be 
 good, unless it is according to the law of Scotland ; and 
 no contract, intended to create such a heritable bond, 
 will be valid, as such, unless it be made with the 
 solemnities of the Scotch law.^ There are other col- 
 lateral consequences growing out of the same doctrine. 
 Thus, if a Scotch heir should seek to be exonerated 
 from a heritable bond by the application of the personal 
 assets in England, his right would depend upon the law 
 of Scotland, that is, the law of the place where the real 
 estate was situate ; and would not depend upon the 
 law of the place where the personal estate happened 
 locally to be.^ 
 
 § 367. The same reasoning seems to have governed 
 in the House of Lords in a recent case, where certain 
 entailed estates in Scotland were sold for the redemp- 
 tion of the land tax, and the surplus money of the pro- 
 ceeds of the sale was vested, according to a statute on 
 
 1 Ersk. Inst. B. 2, ch. 2, <5, 9 to ^ 20, p. 198 to p. 204 ; Id. B. 3, tit. 2, 
 § 39, 40, 41, p. 514, 515 ; Jerningham v. Herbert, 1 Tamlyn, R. 103; 
 2 Bell, Comm. ^ 668, p. 7, 8 ; Id. ^ 1266, p. 090, 4th edit. ; Id. p. 687, 
 5th edit. ; post, ^ 485 to ^ 489. — Yet Mr. Erskine, in his Institutes, 
 seems to admit, that obligations to convey things in Scotland, although not 
 perfected in the Scottish form, yet if perfected according to the Lex domi- 
 cilii of the parties, are binding in Scotland, not as conveyances, but as 
 contracts, under some circumstances. Ante, ^ 365, note 2. 
 
 2 Elliott V. Lord Minto, 6 Madd. R. 16 ; Earl of VVinchelsea v. Ga- 
 retty, 2 Keen, R. 293, 309, 310; ante, ^ 266 a. See also 4 Burge, 
 Comm. on Col. and For, Law, ch. 15, § 4, p. 722 et seq.
 
 Cfl. VIII.] FOREIGN CONTRACTS. 607 
 
 the subject, in trustees, who were required to pay the 
 interest of it to the heir of entail in possession, until 
 the money should be reinvested in land. The heir of 
 entail next entitled sold his reversionary and contingent 
 right to the interest of this fund by a deed in the Eng- 
 lish form, and executed in England, where the parties 
 were domiciled, but without the solemnities required 
 by the law of Scotland. It was admitted, that the 
 fund was to go to the heirs in entail, and that the prin- 
 cipal thereof was consequently heritable, and could only 
 be passed according to the solemnities of the law of 
 Scotland. But the House of Lords adjudged the inter- 
 mediate interest of the surplus, before the investment 
 in lands, to be movable property, and alienable by the 
 proprietor, as such ; and, therefore, they held the as- 
 signment of it according to the English law good.^ 
 
 § 368. From what has been already stated in the 
 preceding discussions, it will be seen, that foreign 
 jurists are by no means agreed in admitting the gene- 
 ral doctrine.^ On the contrary some of them maintain 
 that the validity of a contract is, in all cases, to be 
 governed by the law of the place, where it is made, 
 whether it regards movables or immovables.^ Thus, in 
 respect to the capacity of persons to contract, their doc- 
 trine is, that, if they are of age to contract in the place 
 
 1 Scott V. Alnutt, 2 Dow & Clark, 404, 412. 
 
 2 Ante, § 260 to ^ 263. See also ante, § 82, ^ 325 to ^ 327 ; post, 
 § 369 to ^ 373, § 474 to ^ 479. See 2 Burge, Comin. on Col. and For. 
 Law, Pt. 2, ch. 9, p. 840 to p. 871. 
 
 3 Ante, (} 52, 53, 60, 61, 62 ; post, ^ 435 to ^ 445. See also Foelix, 
 Conflit des Lois, Revue Strang, et Franc. Tom. 7, 1840, ^ 37, p. 307 to 
 p. 311 ; Id. p. 352 to 360 ; post, ^ 371 f, note. — Mr. Burge has made a 
 large collection of the various opinions of foreign jurists on this subject. 
 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 840 to p. 871.
 
 G08 CONFLICT OF LAWS. [CH. VIII. 
 
 of their domicil, but are not in the place, where their 
 immovable property is situate, the contract to sell or 
 alienate the latter will be valid everywhere ; and so, 
 vice versa} Others hold a different opinion, and insist, 
 that, whatever may be the law of the domicil, as to 
 capacity, and although it governs the person univer- 
 sally, yet it does not apply to immovable property in 
 another country.^ 
 
 1 Ante, 1^ 51 to 1^ 54, ^5* 58 to ^ 63 ; post, ^ 430 to ^ 435 ; Rodenburg, 
 tit. 1, ch. 3 ; Id. tit. 2, ch. 3 ; Liverm. Diss. ^ 44, 45, 46, p. 48, 49 ; Id. 
 §55,56, p. 56; Id. §58, 59, p. 58 ; 1 Boullenois, Observ. 2, p. 27 ; 
 Id. p. 145; Id. Observ. 9, p. 152, 153, 154 ; Id. Observ. 12, p. 175 to 
 p. 177; Id. Observ. 23, p. 456 to p. 460; 1 Froland, M6m. 156, 160. 
 See on this point Fcelix, Conflit des Lois, Revue Etrang. et Franc. Tom. 
 7, 1840, § 27 to § 33, p. 216 to p. 228 ; 2 Burge, Comm. on Col. and 
 For. Law, Pt. 2, ch. 9, p. 840 to p. 870. 
 
 2 Ante, § 54 to § 62 ; post, § 430, 431, 432, § 435 to § 445 ; Liverm. 
 Diss. § 44, p. 48, 49 ; Id. 46 to § 53, p. 49 to § 53 ; Id. § 59, p. 58. See 
 1 Boullenois, Observ. 6, p. 127 to 30, 135; Id. Observ. 9, p. 150 to 156 ; 
 J. Voet ad Band. Lib. 1, tit. 4, § 7, p. 40 ; 2 Froland, JVUm des Stat. 
 821. ■ — There are some nice distinctions put by different authors upon this 
 subject, which are stated wiih great clearness and force by Mr. Livermore, 
 (Dissert. § 58, p. 58 to 62,) and upon which we may have occasion to 
 comment more fully hereafter. At present it is only necessary to say, 
 that Boullenois, Bouhier, and others hold, that, while the law of the do- 
 micil, as to general capacity, governs as to contracts and property every- 
 where, the law of the situs of immovable property governs, as to the 
 quantity, which the party, having full capacity, may sell, convey, or dis- 
 pose of. See Livermore, Diss. § 58 to § 63, p. 58 ; 1 Boullenois, Prin. 
 G6n. 8, p. 7 ; Id. Observ. 6, p. 127 to 133 ; Id. Observ. 12, p. 172, 175 
 to 178 ; Id. Observ. 13, p. 177, 183, 184, 188, 189 ; Bouhier, Gout, de 
 Bourg. ch. 21, §68 to § 70; Id. § 81 to 84. See also 1 Boullenois, 
 Observ. 5, p. 101, 102, 107, 111, 112; 2 Henrys, CEuvres, Lib. 4, 
 ch. 6, Quest. 105. Rodenburg seems to admit, that a contract respect- 
 ing real property, which is entered into according to the forms of the Lex 
 loci contractus may be good to bind the parly personally, although it is 
 not according to the forms prescribed by the Lex rei sitae. Fi.odenburg, 
 tit. 2, ch. 3 ; 1 Boullenois, 414, 415, 416; 2 Boullenois, Appx. p. 19. 
 Mr. Fcelix has enumerated many of the jurists on each side of this ques- 
 tion in his dissertation on the Conflict of Law. Foelix, Conflix des 
 Lois, Revue Etrang. et Franc. 1840, Tom. 7, § 27 to § 32, p. 210
 
 CH. Vni.] FOREIGN CONTRACTS, 609 
 
 § 369. So, in respect to express nuptial contracts 
 we have seen, that many foreign jurists hold them obliga- 
 
 te p. 221 ; 2 Burge, Comm. on Col. and P'or. Law, Pt. 2, cli. 9, p. 840 
 to p. 870. Muhlenbruch, who is a very modern author, and is cited 
 by Mr. Foelix, has a single passage on the subject, which, from its gene- 
 rality, may serve to show how difficult it is to obtain any certainty as 
 to the exact opinion of foreign jurists on the various questions which may 
 arise from the conflict of laws as to personal capacity, contracts, and rights 
 to property. He lays down the following rules on the subject : (1.) Jura 
 atque officia ejusmodi, quae hominum personis inherent, et quasi sunt in- 
 fixa, ex bisque apte pandemia, turn etiam ea, qua3 ad universitatem patri- 
 monii pertinent, ex legibus judicanda sunt, quae in civilate valent, ubi is, 
 de quo quseritur, larem rerumque ac fortunarum suarum summam consti- 
 tuit, scilicet non adversante exterarum civitatum jure publico, Enimvero 
 mutato domicilio jura quoque hujusmodi mutantur, sic tamen, ut ne cui 
 jus ex pristina ratione quEesitum, certisque suis terminis jam definitum 
 eripiatur. (2.) Jura, qua3 proxime rebus sunt scripta, velut qu;e ad do- 
 miiiii causam spectant, vel ad vectigalium tributorumque onus, vel ad pig- 
 norum in judicali exsecutioneui et capiendorum et distrahendorum, turn 
 etiam rerum apud judicem petendarum persequendarumve rationem, et 
 qua; sunt reliqua ex hoc genere, sestimantur ex legibus ejus civitalis, ubi 
 sitae sunt res, de quibus agitur, atque collocatae, nuUo rerum immobilium 
 atque mobilium habito discrimine. (3.) Negotiorum rationem quod atti- 
 net, de forma quidem, quatenus non nisi ad fidem auctoritalemque negotio 
 conciliandam valeat, nee in aliarum legum fraudem actum sit, non est, 
 quod dubilemus, quin accommodate ad ejus loci instituta, ubi geritur res, 
 dirigenda sit atque tustimanda. Nee est, quod non idem statuamus aut de 
 personis, scilicet possintne omnino jure suo et velut arbitrio negotia insti- 
 tuere ? Aut de negotiorum materia, atque vi et potestate, quas iis cum 
 per se insit, tum vero quoad agendi excipiendique facultatem, hac tamen 
 itidem adscripta exceptione, ut ne quid in aliena civitate fiat contra ejus- 
 dem civitalis mores, leges, instituta, ad qute immutanda prorsus nihil valet 
 privatorum arbitrium. Quid? quod omnino sese, qui negotium aliquod 
 inslituerunt, tacite accommodasse videri possunt ad ejus regionis leges 
 consueludinesve, in'qua ut exitum habeat res, de qua agitur, aut legum 
 decreto, aut privatorum auctoritate certo constitutum est. (4.) Judex 
 igilur, qui rem apud exteros natam judicabit, ea certe, qua; ad formam 
 modumque litium instituendarum pertinent, adjurium normas institutaque, 
 quibus ipse paret, dirigat necesse est. In reliquis vero, quatenus aut 
 idem illud servet jus domesticum, aut jus exteris scriptum, tamquam pri- 
 vatorum vohiniate constitutum, in judicando sequatur, id ex principiis 
 modo propositis quisque facile intelliget. Quil)us etiam h;fc esse consen- 
 tanca videntur, ut pnuscriplio quidem acquisiliva, quam vocant, ex juri-
 
 GIO CONFLICT OF LAWS. [CH. VIII. 
 
 tory upon all property, whether movable or immovable, 
 belonging to the parties in other countries, if they are 
 valid by the law of the place of the nuptial contract.^ 
 And in respect to implied nuptial contracts, all those ju- 
 rists, who maintain, that the law of the domicil furnishes, 
 in the absence of any express contract, the rule to ascer- 
 tain the rights and intentions of the parties, by way of 
 tacit contract, necessarily give to the doctrine the same 
 universal operation.^ 
 
 § 369 a. Dumoulin is most emphatic upon this mat- 
 ter. Primo, in sano inteUedu, (says he,) milium habet 
 diibium, quin societas (he is speaking of cases of marriage) 
 semel contmcta, complectatur bona ubicunqiie sita, sine iilla 
 differentia territoriiy qiiani ad modimi quilihet contractus^ 
 sive tacitus, sive expressus, ligat personam, et res disponentis 
 uUqiie. Non ohstat, quod Imjusmodi societas non est expres- 
 sa, sed tacita, nee oritur ex contractu expresso partiiim, sed 
 ex tacito, vel prceswnpto contractu a consuetudine locali intro- 
 ducto? 
 
 § 370. Merlin seems to think, that, although in 
 general the French law must govern in all cases of 
 
 bus rei sitrp, extinctiva vero ex judicii accepti legibus ;i?3timanda sit, prte- 
 terquam quod nihil hac quoque ralione juris detrahatur aclori, si forte in- 
 gratiis suis loco baud condicto convenire reum cogatur ; «t actiones, quae 
 vel ad rescindenda negotia, vel ad damna resarcienda comparatte sunt, 
 secundum legis loci, iibi res acta est, judicentur, nisi si ut alio loco fiat 
 solutio, inter partes convenerit. Ca}terum quse de negotiorum alibi con- 
 tractorum in alieno territorio vi diximus atque potestate, eadem sententiis 
 quoque decretisque a judice prolatis apt convenient. Muhlenbrucb, Doc 
 trina Pandectarum, Tom. 1, p. IGO to 170. See also P. Voet, de Statut. 
 ^ 4, ch. 2, n. 15, p. 127 ; Id. p. 142, edit. 1601. 
 
 1 Ante, § 143 to ^ 160. 
 
 2 Ante, \ 57, § 143 to § 171 ; Boullenois, Observ. 5, p. 120, 121 ; Id. 
 p. G73, 674 ; Id. Observ. 29, p. 757 to p. 767. 
 
 3 Dumoulin, Consil. 53, Torn. 2, ^ 2, p. 964, edit. 1681 ; 2 Burge, 
 Comm. Pt. 2, cb. 0, p. 8fi4, 865 ; ante, ^ 260.
 
 en. VIII.] FOREIGN CONTRACTS. 611 
 
 immovables in France, even "when the owners are fo- 
 reigners ; yet that there are exceptions to the rule. 
 As, for instance, if the foreign law, in the country where 
 a contract is made respecting immovables, has been 
 adopted by the contracting parties, and converted by 
 them into an express contract ; in such a case, he holds 
 that the contract is binding, because the foreign law, 
 as such, does not act upon the immovables in France, 
 but it acts solely by way of contract.^ And he ap- 
 plies the same principle to cases where there is no ex- 
 press adoption of the foreign law, but where it arises 
 by way of tacit contract from the place of the con- 
 tract.^ 
 
 § 371. On the other hand, Pothier treats as real pro- 
 perty, not only lands and houses and inheritable pro- 
 perty, but also all rights in them, and growing out of 
 them ; such as ground rents, or other rents annexed to 
 lands and inheritances, which f;dl under the denomina- 
 tion of y«5 m re ; and also all rights to inheritances 
 which fall under the denomination oi jus ad rem, such 
 as contracts or debts [creanccs) respecting the sale and 
 delivery of immovable property, which are deemed to 
 have the same situation as the things which are the ob- 
 ject of them. Les choses, qui ont ime situation veritable^ 
 sont les heritages, c'est a dire, les fondsde terre, les maisons, 
 et tout ce, qui en fait partie. Les droits reels, que nous 
 avons dans iin heritage, qu'on appelle Jus in re, tels qiHon 
 droit de rente fonciere, de champart, &c. sont censes avoir 
 U meme situation, que cet heritage. Pareilment, les droits, 
 que nous avons a un heritage, qu'on ajjpelle Jus ad rem, 
 c'est a dire, les creances, que nous avons contre quelqiCun, 
 
 1 Merlin, R^'pert. Lois, i5» G, n. 2, 3. 
 
 2 Ibid.
 
 612 CONFLICT OF LAWS. [CH. VIIL 
 
 qui c'est oblige a nous donncr un certain heritage^ sont ceri- 
 ses avoir la meme situation, que r/iSritage, qui en est fob- 
 Jet} And he asserts the general principle, that all 
 things which have a real or fictitious situation, are sub- 
 ject to the law of the place where they are situate, or 
 are supposed to be situate. Toutcs ces choses, qui out 
 une situation reelle, oufeinte, sont siijettes a la loi ou cou- 
 tume dii lieu, on elks sont situees, ou censSes d'etre.^ This 
 also is the doctrine maintained by Rodenburg and Boul- 
 lenois.^ Merlin, in a general view, assents to it.'^ Po- 
 thier further states in relation to debts, which are but 
 Jus ad rem, that they follow the nature of the thing 
 which is the object of the contract, according to the 
 maxim : Actio mobilis est mobilis ; actio ad immobile est 
 immobilis. Hence, a debt due for money, or for any 
 movable thing, belongs to the class of movable proper- 
 ty. So, also, does a contract to do, or not to do, any 
 
 ' Pothier, Coutum. d'Orleans, cli. 1, ^ 2, n. 23, 24 ; Id. ch. 3, n, 51 ; 
 Id. Trait6 des Choses, l^ 3 ; post, ^ 382. 
 
 2 Pothier, Coutum. d'Orleans, ch. 1, ^ 2, n. 24 ; Id. ch. 3, n. 51 ; Id. 
 Traite des Choses, ^ 3. 
 
 3 1 Boullenois, Prin. G^n. 34, 35, 36, p. 8, 9 ; Id. Obs. 5, p. 121, 129 ; 
 Id. p. 223, 224, 225 ; Id. Obs. 20, p. 374, 381, 488 ; 2 Boullenois, Obs. 
 46, p. 472 ; Piodenburg, De Div. Stat. tit. 2, ch. 2, n. 2, p. 15 ; Henry on 
 Foreign Law, 14, note; Id. 15. — Cochin lays down the following doc- 
 trine: " Les formalites, dont un acte doit eire rev^tu, se reglent par la 
 loi, qui exerce son empire dans le lieu, ou Tacte a ete pass6 ; mais, quand 
 il s'agit d'appliquer les clauses, qu'il renferme, aux biens des parties con- 
 tractanles, c'est le lieu de la situation de ses biens, qui doit seule etre con- 
 sultte." And he illustrates by reference lo a donation, in Paris, of pro- 
 perty situate in places where donations inter vivos are prohibited, holding 
 that such donations, alihough clothed with all the proper Parisian formali- 
 ties, are nuUiiies. He then adds, " Ce n'est done pas la loi du lieu, ou 
 I'acte a 6ie pasb6. qui en di'-iermine refTet." Cochin, CEuvres, Tom. 5, 
 p. 697. See also 1 Boullenois, Prin. Gen. 31, p. 8. 
 
 * Merlin, Repertoire, Meubles, ^ 5 ; Id. Biens, ^2, n. 2: Id. Loi. ^ 6, 
 n. 3.
 
 CH. VIIT.] FOREIGN CONTRACTS. 613 
 
 particular thing. He admits that the same rule ap- 
 plies, even when it is accompanied by an hypothecation 
 of immovable property therefor. So that, when a debt 
 is executed, and an hypothecation is made of immova- 
 ble property, as collateral security, the debt is still to 
 be deemed a movable debt, although the hypothecation 
 might, 'per se, be an immovable debt ; because the debt 
 is the principal, and the hypothecation the accessory ; 
 and, Accessoriwn scquitw natiuwn pincipalk} But he 
 insists, that contracts which have for their objects any 
 inheritable property, or other immovable, are to be 
 deemed immovable property ; such as, for instance, in 
 the case of a contract for the purchase of real estate, 
 the right of the vendee against the vendor for the de- 
 livery of the same.^ 
 
 § 371 a. D'Argentre says : Whenever the question 
 respects immovables or inheritances, situate in different 
 places, where there are different modes of acquiring, 
 transferring, and asserting ownership, and the question 
 is, by what law they are to be governed, the most cer- 
 tain rule in use is, that the law of the place where the 
 property is situate is for the most part to be observed, 
 and its laws, statutes, and customs to be observed. He 
 adds, that this rule prevails in contracts, in testaments, 
 and in commercial matters. Cum de rchis soli, id est 
 immohilihis agitiir, (quils cqjjwiknt d'heriiaf/c,) et divcrsa 
 diversaritm possessioniim loca et situs propominttir, in ac- 
 qiiirendis, transferendis, aut asserendis dominiis, et in con- 
 troversia est, quo jure regantur, certissima tisu ohscrvatio 
 
 1 Pothier, Coutum. d'0rl6ans, ch. 1, ^ 2, n. 24 ; Id. n. 50. 
 
 ~ Pothier, Coutum. d'Orleans, ch. 3, art. 2, n. 50, n. 51 ; Id. Trait6 
 des Choses, ^ 2. See Merlin, Repertoire, Biens, ^ 1, n. 13, ^ 2, n. \ ; 
 Id. Meubles, ^ 2, 3 ; Liverm. Diss. p. 162, 163. 
 
 CONFL, 52
 
 614 CONFLICT OF LAAYS. [CH. VIII. 
 
 est, id jus de pliirihiis spedari, quod loci est, et siias cuique 
 loco leges, statuta, et consiietudines servandas, et cp.d cuique 
 mores de rebus, territorio, et potestatis finihus sint recepti, 
 sic id de talibus nidla cujiisqiiam potestas sit prceter terri- 
 tori legem. Sic in contractihus, sic in testamentis, sic in 
 commerciis omnibus, et locis conveniendi constitidum ; ne 
 contra situs legem in immobilibiis, qiddqumn decerni privcdo 
 consensu, et imr est sic judiciari} 
 
 § 371 b. Christinseus adopts the very language of 
 D'Argentre with seeming approbation ; ^ although there 
 are other passages, in which he seenns to admit that a 
 different rule prevails in respect to the acts which are 
 done by a party, which are to be governed by the Lex 
 hci actus. At least he cites without disapprobation the 
 doctrine of Baldus, (who certainly contradicts himself 
 in the passages cited,) that in the solemnities of testa- 
 ments, the law of the place where the testament is 
 made, is to govern, even although the property is situ- 
 ate elsewhere.^ However, he admits that in Belgium, 
 by an express edict, the law of the situs in such cases 
 prevails."* 
 
 § 371 c. John Voet has expressed a very different 
 opinion. He holds that it is sufficient in all cases, 
 whether the contract respects movable property or im- 
 movable property, to follow the law of the place where 
 the contract is made, and the act done, whether it be a 
 contract or a will. Neque minus de statidis mixtis, actus 
 
 ' D'Argent. ad Boit. Leg. Les. Donat. Art. 218, Gloss. 6, n. 3, 1 vol. 
 p. 637; post, '5>438. 
 
 2 Christinaeus, Tom. 2, Decis. 3, n. 1,2; Id. Decis. 4, n. 1, 4, 5, 6, 
 p. 4, 5, 6. 
 
 3 Id. Decis. n. 7. 
 
 4 Id. Decis. 4, n. 1, 2, 3, p. 6.
 
 CII. VIII.]- FOREIGN CONTRACTS. 615 
 
 cujiisqm solemnia 7'espicientihuSj percrehuit, insuper haUtis 
 de summo cujusqiie jure ac potestate ratiociniis, ad validi- 
 tatcm actus cujusqiie adhihitiouem solemnitatum, quas lex 
 loci, in quo actus geritur, ptrmscripserit ohscrvandas ; sic id 
 quod ita gcstum fuerit, sese porrigat ad hona mohilia et im- 
 moUlia, id)icunqiie sita aliis in tenitoriis, quorum leges hngh 
 alium, longeque pleniorem rcqidrunt solemnium interventum} 
 He assigns as the principal reason, that otherwise, from 
 ignorance or want of skill, it would be almost impossi- 
 ble for a man who possessed real property, to make a 
 valid disposition thereof by an. act inter vivos, or by 
 testament.^ He adds, that this rule prevails in Belgi- 
 um, in Spain, in Germany, and in France.^ 
 
 1 J. Voet, ad Pand. Lib. 1, tit. 4, P^ 2, ^ 13, p. 45. 
 
 2 Ibid. 
 
 3 Ibid, citing authorities. His language is : " Quod ita placuisse vide- 
 tur, turn, ne in infinitum prope mulliplicarentur et testamenta et contrac- 
 tus, pro numero regionum, diverso jure circa solennia utentium ; atque 
 ita summis implicarentur molestiis, ambagibus, ac difficultatibus, quotquot 
 actum, res plures pluribus in locis sitas concernentem, expedire voluerint : 
 tum etiam, ne plurima bona fide gesta nimis facile ac prope sine culpa ge- 
 rentis conturbarentur. Tum quia ne ipsis quidem in juris praxi versatis- 
 simis, multoque minus aliis simplicitate desidiaque laborantibus, ac juris 
 scientiam baud professis, satis compertum est, ac vix per industriam ex- 
 quisilissimam esse potest, quaj in unoquoque loco requisita sint actuum 
 solennia, quid indies in hac vel ilia regione novis legibus circa solennium 
 observantiam mutetur : ut proinde, qu^e ratio de militari testamento obti- 
 nuet Quiritium jure, milites nempe solennibus paganorum non fuisse ad- 
 stringendos, dum in castris et expeditione occupati erant, quia et juris im- 
 periti erant, et peritiores consulere in castris non poterant, etiam nunc 
 suadeat, ilium, qui actum gerit, ad alterius loci, quam in quo gerit, solen- 
 nia non esse obligandum ; quia et probabiliter aliorura locorum solennia 
 ignorare potest, et in loco, in quo actum gerit, peritiores morum aliens 
 regionis non satis consulere ; dum ita fere comparatum est, ut pragmatici, 
 quibus auctoribus contractus celebrantur, aut conduntur testamenta, vesati 
 quidem plerumque satis sint in jure patrio, non item locorum omnium et 
 universi orbis jure ; atque insuper non raro mors ad inquisitioncm anxiam 
 adhibendam impatiens est, quod geritur negotium. Quamvis ergo in Fri- 
 sia. septem testes in testamento requiri constet, alibi fere tabellionis testi
 
 616 CONFLICT OF LAWS. {CH. VIII. 
 
 § 371 d. Paul Voet holds a similar opinion ; and 
 puts several cases to illustrate it. If a testator in the 
 place of his domicil makes a will according to the law 
 of the place rei sitce, but not according to the law of 
 the place of his domicil, he asks the question, whether 
 such a will is good, as to property situate elsewhere ; 
 and he answers in the negative. He next puts the case 
 of a testator, who makes his will according to the law 
 of his place of domicil, as for example, before a notary 
 and two witnesses ; and asks, whether the will has effect 
 upon property situate in another country, where more 
 and other solemnities are required ; and he answers in 
 the affirmative. He then asks, if a foreigner makes 
 his will according to the law of the place, where he is 
 merely lodging or commorant, whether the will is valid 
 elsewhere, where he either has immovable property, or 
 he has his domicil ; and he answers in the affirmative. 
 The only exception he makes is, where the testator, in 
 order to evade the law, or in fraud of the law of his own 
 domicil, goes into another country, and there makes 
 his will.'' 
 
 § 371 e. Hertius, as we have seen,^ lays down the 
 rule, that as to the forms and solemnities of acts and 
 contracts, they are to be governed altogether by the 
 law of the place, where the acts are done, and con- 
 
 umque duorum prssentia ac fides sufRciat, aut saltern in universum longe 
 minor solennilas desidcretur ; tamen Ecquitate rei motus Frisia; Senatus 
 ratam habuit de bonis Frisicis dispositionem, Sylvaeducis coram parocho 
 duobusque testibus declaratam, juxta Sylvae ducensis regionis usum. Et 
 ita in praxi ha;c Belgis, Gcrmanis, Ilispanis, Gallis, aliisquo placuisse, 
 auctores cujusque gentis testantur. 
 
 i P. Voet, de Statut. ^ 9, ch. 2, n. 1, 2, 3, 4, p. 261, 262, edit. 1715 ; 
 Id. p. 317, 318, 319, edit. 1661. 
 
 2 Ante, ^ 260.
 
 CH. VIII.] FOREIGN CONTRACTS. 617 
 
 tracts made, and not by the law of the domicil of the 
 party, or the law of the situs rei /SV lex actui formam 
 dat, insjnciendum est locus actus, non domicilii, non rei sitce ; 
 id est, si de solennibus qucendur, si de loco, do tempore, de 
 modo actus, ejus loci hahenda est ratio, uhi actus vcl nego- 
 tium celehratur} He adds ; Ilegula hccc apud omnes, 
 (piardum quideni sciam, est induhitata ; and then says ; 
 Valet eiiamsi lona in alio tcrritorio sint sita? 
 
 § 372. Burgundus apparently admits, that generally 
 the law of the place of the contract ought in all cases 
 to prevail, so far as respects its form, its ceremonies, 
 and its obligation. The passage already cited ^ is to 
 this effect. In scriptura instrumenti, in solemnitatihus, et 
 ceremoniis, et generaliter in omnibus, quw ad formam ejusque 
 perfectionem pertinent, spectanda est consuetudo regionis, uhi 
 fit ncgotiatio. Igitur, ut paucis ahsolvam, quoties de vinculo 
 ohligationis vel de ejus inter pretatione vel interpretatione 
 quwritur, veliiti quos, et in quantum ohliget, cpdd sententice 
 stipidationem inesse, quid abesse credi oporteat, ^^c, nt id 
 sequamur, quod in regione, in qua actum est,frccpientatur^ 
 But he immediately adds, that if we would know, 
 whether the contract was valid or not in respect to the 
 subject-matter thereof, we must look to the law of the 
 situs. Cceterum, ut sciamus, contractus ex parte matericB 
 utilis sit vcl inuiilis, ad leges, qucB rebus, de quibus tractatur, 
 impresscB sunt, hoc est, ad consuetudincm situs, respiciemus.^ 
 
 1 Hertii, Opera, De Collis. Leg. § 4, n. 10, p. 126, edit. 1737 ; Id. 
 p. 179, 180 ; ante, ^ 238. 
 
 2 Ibid. 
 
 3 Ante, ^ 300 a. 
 
 4 Burgundus, Tract, 4, n. 7, 8, p. 104. 
 
 5 Burgundus, Tract. 4, n. 8, 9, p. 107, 108; 2 Boullenois, Observ. 46, 
 p. 450 to p. 454. See J. Voet, ad Pand. Lib. 1, tit. 4, P^- 2, ^ 12, 13, 
 p. 45 ; post, ^ 433.
 
 (318 CONFLICT OF LAWS. [CH. VIIL 
 
 He also expresses surprise, that authors, in considering 
 contracts, should have excluded altogether the nature 
 of the thing contracted for, and' generally to have in- 
 terpreted contracts according to the law of the place, 
 where they are made ; for in sales, and also in letting 
 to hire, and in other contracts, it becomes us to look to 
 the usage touching the subject-matter. Qidppe non 
 solum in emptione oUinet, id ad consiietudinem rei spectare 
 deceat, sed in locationc prwterea, en condiidione, ceterisque 
 contractihis} It must be confessed, that on this subject 
 the distinctions and doctrines of Burgundus are open to 
 much question, 
 
 § 372 a. Dumoulin says, that it is the general 
 
 opinion of jurists, that, wherever the custom or law of 
 
 a place prescribes the solemnities or form of an act, it 
 
 binds foreigners, who there do the act ; and the act is 
 
 .valid and efficacious even in respect to immovable 
 
 . property, beyond the territory of the custom or law. 
 
 Et est omnium Dodonim scntentia, ubicmique consuetudoy 
 
 vel stcdutum locale, disponet de solemnitate, vel forma actus, 
 
 ligari ctiam exteros, ihi actum ilium gerentes, et gestum esse 
 
 validum, et efficacem, iibique etiam super bonis solis extra 
 
 territorium consuetudinis vel staiuti?" Gaill adopts an 
 
 equally broad conclusion. Contractus enim, celebratus 
 
 cum solemnitate requisiia in loco contractus, extendit se ad 
 
 omnia bona, licet in loco bonorum major solemnibus re- 
 
 quireretur? 
 
 § 372 i. Rodenburg, as we shall presently see, goes 
 the full length of this doctrine, and applies it even to 
 
 1 Burgundus, Tract. 4, n. 9 ; Id. n. 7; ante, ^ 302 ; post, ^ 433 to 
 ^38. 
 
 2 Dumoulin, Consil. 53, Tom. 2, ^ 9, p. 965 ; post, 441. ' 
 
 3 Gaill, Pract. Observ. 123, n. 2, p. 548.
 
 CH. VIII.] FOREIGN CONTRACTS. 619 
 
 the cases of wills and testaments, which, he says, if 
 made according to the law of the place where they are 
 executed, are valid even upon property situate else- 
 where.^ ' There are many other jurists who maintain 
 the same opinion both as to contracts and other instru- 
 ments, and as to wills and testaments.^ 
 
 1 Rodenburg, de Div. Statut. tit. 2, ch. 3, n. 1 ; 2 Boullenois, Appx. 
 p. 19; post, ^ 475. 
 
 2 Many of them are enumerated in 1 Boullenois, Observ. 23, p. 491 to 
 p. 516 ; ante, ^ 301. — Mr. FcbHx also has given us a long list of jurists, 
 who hold the doctrine. Indeed, he thinks the doctrine firmly and gene- 
 rally established. His language is; Un principe aujourd'hui generale- 
 ment adopt6 par I'usage des nations, c'est que 'la forme des actes est 
 regime par les lois du lieu dans lequel ils sont faits ou passtis.' C'est-a- 
 dire que, pour la validit6 de tout acte, il sulBt d'observer les formalit6s 
 prescrites par la loi du lieu ou cet acte a et6 dress6 ou r^dige ; I'acte ainsi 
 passe exerce ses elTets sur les biens meubles et immeubles situ^s dans 
 un autre territoire, dont les lois etablissent des formalit6s differentes et 
 plus etendues (Locus regit actum.) En d'autres termes, les lois, qui reg- 
 lent la forme des actes, etendent leur autorit6 tant sur les nationaux que 
 sur les Strangers, qui contractent ou disposent dans le pays, et elles par- 
 ticipent ainsi de la nature des lois r^elles. Le droit Romain ne contient 
 aucune disposition qui consacrat le principe : locus regit actum. Dans 
 lesquelles on a pr6tendu trouver cette regie, ne parlent point de la forme, 
 mais de la mati^re des contrats. D^s le temps des glossateurs, la ques- 
 tion s'est presentee par rapport aux testaments. Bartole a adopt6 I'affir- 
 mative : Albert de Rosate s'est prononc6 pour la negative, sur le motif 
 que la loi n'oblige que les subjets, et que ceux-ci seuls ont le droit d'em- 
 ployer une forme prescrite. Plus tard, Cujas a soutenu, qu'il faut suivre 
 la loi du domicile du testateur : Fachin^e exigeait I'accomplissement des 
 formalit^s prescrites dans le lieu de la situation des biens : Burgundus, 
 tout en admettant la regie relativement aux contrats, la rejette quant aux 
 testaments ; il regarde comme affectant la chose et comme lois reelles les 
 solennites prescrites pour les testaments, en invoquant I'edit de IGll (pour 
 les Pays-Bas,) art. 12. Choppin, au contraire, soutient que le testament 
 fait en pays etranger, d'apres les formes prescrites dans le lieu de la 
 confection, doit sortir ses effets, m6me a regard des immeubles situes 
 dans un autre lieu, et il rapports un arret du parlement de Paris, rendu 
 en ce sens. Dumoulin, Mynsinger, et Gaill, professent la mt-me doctrine. 
 Ces deux derniers auteurs attestent la jurisprudence constante de la 
 chambre imperials (Reichskammergericht) en ce sens. Mevius, en ad-
 
 620 CONFLICT OF LAWS. [CH. TIIL 
 
 § 372 c. Boullenois seems to have labored under 
 no small embarrassment as to the question, whether a 
 
 mettant aussi la r^gle g6nerale, fait remarquer que la coutume de Lubeck 
 ne la reconnait que sous les trois conditions suivantes : V lualadie qui met 
 le testateur en danger de mortt ; 2° deces r6el en paj's Stranger ; 3° ab- 
 sence de toute intention de prejudicier aux h^ritiers naturels. Rodenburg 
 et Voet, en adoptant la regie par rapportaux contrats comme aux testa- 
 ments, la motivent sur les raisons suivantes : 1° n^cessite d'^viter aux in- 
 dividus possedant des biens dans difFerents pays, I'embarras et la difficult^ 
 de r6diger aiUant de testaments ou de contrats qu'il y a d'immeubles 
 situ6s sous I'empire de lois differentes, ou de remplir dans un m6me tes- 
 tament ou contrat toutes les solennites prescrites dans les divers lieux de 
 la situation des biens ; 2° impossibiliie dans laquelle I'individu supris a 
 I'etranger par une maladie mortelle peut se trouver de remplir les solen- 
 nites prescrites dans le pays de son domicile ou de la situation de ses 
 biens ; 3° necessity d'empecher que les actes faits de bonne foi soient an- 
 null6s trop facilement sans la faute de la partie ; 4° impossibilite pour la 
 majeure partie des hommes de connailreles formes prescrites dans chaque 
 localite ; 5° enfin, Voet ajoute, qu'il faut applicuer ici les motifs, qui, chez 
 les Romains, ont fait introduire la forme simple du testament militaire. 
 En terminant, cet auteur cite presque tous ses devanciers indiques ci-des- 
 sus, en declarant que I'opinion profess6e par lui a 6t6 reconnue par la 
 jurisprudence dans les Pays-Bas, en Allemagne, en Espagne, eten France, 
 Tel est aussi le sentiment de Zoesius, Grotius, Christin, Paul Voet, Vin- 
 nius, Jean de Sande, Vander Kessel, Vasquez, Perez, Cochin, Boullenois, 
 Menochius, Carpzov, Huber, Hert, Hommel, Gluck, Thibaut, Dauz, We- 
 ber, Mansord, Muhlenbruch, Mittermaier, Tittman, Merlin, Meier, Par- 
 dessus. Story, Rocco, Hattogh, et Burge." Fcelix, Conflit des Lois 
 Revue Elrang. et Franc. 1840, Tom. 7, ^ 40 to ^ 42, p. 346 to 350. Mr. 
 Fcelix, has, however, subsequently qualified the general doctrine here 
 stated by the following exceptions. " L'acte fait d'apres les formes 
 prescrites par la loi du lieu de sa redaction est valable, non seulement par 
 rapport aux biens meubles appartenant a I'individu et qui se trouvent au 
 lieu de son domicile, mais encore par rapport aux immeubles, en quelque 
 endroit qu'ils fussent situes. Cette derniere proposition, selon la nature 
 des choses, admet une exception, dans le cas ou la loi du lieu de la situa- 
 tion present, a l'6gard des actes translatifs de la propriet6 des immeubles, 
 ou qui y affectent des charges reelles, des formes pariiculieres, qui ne 
 peuvent dtre remplies ailleurs que dans ce meme lieu : telles sont la re- 
 daction des actes par un notaire du mfeme territoire, la transcription ou 
 I'inscription aux registres tenus dans ce territoire, des actes d'ali^nation, 
 d'hypotheque, etc, L'acte fait dans un pays etranger suivant les formes 
 qui y sont prescrites, ne perd pas sa force, quant a sa forme, par le retour
 
 CH. VIII.] FOREIGN CONTRACTS. 621 
 
 contract was obligatory or not, merely by pursuing 
 forms or solemnities prescribed by the law of the place, 
 
 de I'individu au lieu de son domicile ; aucune raison de droit ne milite en 
 faveur de I'opinion contraire. La r^gle, locus regit actum, ne droit pas 
 filre ^tendue au dela des limites, que nous lui avons tracees au n° 40 ; elle 
 ne s'applique qu'a la forme exterieure, et non pas k la matiere ou sub- 
 stance des actes, ainsi que nous I'cxpliquerons encore au ^ suivant. 
 Ainsi, dans un testament, la capacite de la personne et la disponibilit6 
 des biens ne se reglent point par la loi du lieu de la redaction. Dans les 
 dispositions entrevifs, soit a. titreon6-reux, soit^ titre gratuit, la loi du lieu 
 de la redaction peut avoir influ6, soit sur I'ensemble de I'acte, soit sur les 
 termes employes par les parties ; et, sous ce double titre, cette loi peut etre 
 consultee par les juges comnie moyen d'interpr6tation ; mais elle ne forme 
 pas la loi decisive, a moinsque les parties ne s'y soient soumises express6- 
 ment." He afterwards adds ; " La r^gle d'apres.laquelle la loi du lieu de 
 la redaction regit la forme de I'acte, admet differentes exceptions, dontvoici 
 les principales : 1° Lorsque les contractants ou I'individu dont 6mane une 
 disposition se sont rendus en pays etranger dans I'intention d'^luder une 
 prohibition port^e par la loi de leur domicile ; car la fraude fait exception a 
 toutes les regies ; 2° Lorsque la loi de la patrie defend express^ment de 
 contracter ou de disposer hors du territoire et avec des formes autres 
 que celles prescrites par cette meme loi ; car alors l'id6e d'un consente- 
 ment tacite de cette nation se trouve formellement exclue. Cette ex- 
 ception est la meme que celle indiqu6e par M. Eichhorn, sous le n°2; 
 3° En cas d'opposition expresse du statut reel Voy. supra, n° 43 ; 
 Lorsque la loi du lieu de la redaction attache a la forme qu'elle pre- 
 scrit un effet, qui se trouve en opposition avec le droit public du pays 
 ou I'acte est destin6 a recevoir son execution ; 5° Par rapport aux am- 
 bassadeurs ou ministres publics et a leur suite. Ces personnes ne sont 
 pas soumises aux lois de la nation pres de laquelle elles exercent leur 
 mission diplomatique." And he finally sums up thus ; " Une autre 
 question est celle de savoir, si le contractant ou disposant, que se trouve 
 en pays Stranger, peut se borner a employer les formes prescrites par la 
 loi du lieu de la situation de ses immeubles, au lieu de suivre celle du 
 lieu de la redaction. Nous tenons pour I'afSrmative, par une raison 
 analogue a celle donn^e sur la question prdcedente. Le statut reel regit 
 les immeubles ; c'est un principe resultant de la nature des clioses ; la 
 permission d'user des ftrmes etablies par la loi du lieu de la redaction de 
 I'acte n'est qu'une exception introduite en faveur du proprietaire, et a 
 laquelle il lui est loisible de renoncer. Tel est aussi le sentiment de Ro- 
 denburg, de Jean Voet, et de Vander Kessel ; Coccii soulicnt meme que 
 la forme des actes entre vifs ou testamentaires est regie exclusivement par 
 la loi de la situation des biens. Fachinee et Burgundus (V. supra, n°. 41)
 
 622 CONFLICT OF LAWS. [CH. VIIL 
 
 where it is made. He puts the case of two persons con- 
 tracting, who are domiciled in one place, and contract 
 
 partageaient cet avis, mais par rapport aux testaments seulement. En 
 Belgique, I'edit perp6tuel de 1611, art 13, ordonnait, qu'en cas de diver- 
 site de coutume au lieu de la residence du testateur et au lieude la. situation 
 de ses biens, on suivrait par rapport a la forme et a la solennit6, la cou- 
 tume de la situation. Paul Voet, Huber, Hert, Hommel et I'auteur de 
 I'ancien repertoire de jurisprudence, seprononcent pour la nullil6 ; ce der- 
 nier invoque I'autorite de Paul de Castres, au passage rapporte au n° pr6- 
 c6dent, et le principe que la loi lie tous les individus, qui vivent dans son 
 ressort, ne fut-ce que moraentanement. Nous renvoyons a ce sujet aux 
 observations presentees sur la question pr^cedente. Mevius distingue 
 entre le citoyen faisant partie de la nation dans le territoire de laquelle les 
 biens sont situes, et entre I'^tranger ; il n'accorde qu'au premier la facult6 
 de tester ou de contracter partoot d'apres les formes prescrites au lieu de 
 la situation. L'auteur ne donne pas de motif de cette distinction, et nous 
 ne pouvons la trouver fondee." FceHx, Conflit des Lois, Revue Etrang. 
 et Franc. Tom. 7, 1840, p. 3.52 to p. 360. See also the opinions of foreign 
 jurists on the subject, 2 Burge, Coram, on Col. and For. Law, Pt. 2, ch. 
 9, p. 840 to 871. In respect to some of these he has certainly been led 
 into an error; and some speak so indeterminately, that it is difficult to 
 gather what their opinion is. It is certain that Mr. Foelix has misunder- 
 stood the opinion of Mr. Story in his Contlict of Laws (see ^ 364) ; and 
 also the opinion of Mr. Burge. See 1 Burge, Comm. on Col. and For. 
 Law, Pt. 1, ch. 1, p. 21 to p. 24. His language is : " In examining all 
 contracts, instruments, or dispositions, whether they are made inter vivos, 
 or are testamentory, our attention may be directed to four subjects ; the 
 first is, the capacity of him who makes it ; the second is, the property 
 which is the subject or occasion of the contract or instrument ; the third 
 regards the formalities or ceremonies with which it is made ; and the fourth 
 is the judicial process by which the rights, which it confers, are to be en- 
 forced. The capacity of the party to make the instrument is ascertained by 
 consulting the law of the place of his domicil ; because it is that law, and 
 that law alone, which affects the person, and wiiich gives or denies him 
 the capacity or power to make the instrument. With respect to the pro- 
 perty, the subject of the contract, disposition, instrument, or testament, 
 recourse is had to the real law, being that which prevails in the place in 
 which the property, if immovable, is actually sittftited ; or in which, if it 
 be movable or personal, it is presumed to be situated ; that is, in the place 
 of the possessor's domicil. When, however, it is necessary to ascertain 
 whether the contract be valid, what is its true construction and effect, and 
 whether the instrument in which it is expressed, or whether a testament 
 be duly and formally made, recourse is had to the law of the place in
 
 CH. VIII.] FOREIGN CONTRACTS. 623 
 
 in another, and the thing, respecting which the contract 
 is made being situate in another, and asks what ought 
 to be the form and solemnities necessary to make it valid. 
 
 which tlie contract is entered into, or the instrument or testament was 
 made ; because, if it be made according to the forms prescribed by that law, 
 it is valid everywhere. ' Autstatutum loquitur de his, quaj concernunt nu- 
 dam ordinationem velsolemnitatem actus, et semper inspicitur statutem, vel 
 consuetudo loci, ubi actus celebratur, sive in contractibus, sive in judiciis, 
 sive in testamentis, sive in instrumentis aut aliis conficiendis, ila quod tes- 
 tamentum, factum coram duobus testibus in locis, ubi non requiritur major 
 solemnitas, valet ubique.' A distinction, however, must be observed be- 
 tween such solemnities as are purely formal, and those which are of the 
 substance and essence of the disposition or instrument. Tliere are some 
 solemnities which intrinsically atTect the disposition itself, so as to render 
 their observance essential to its validity, whilst there are others which 
 only extrinsically regard them. An example of the former description of 
 solemnities is given by Stockmans, in the case of a law which prohibits 
 the husband and wife from instituting the one the heir of the other, unless 
 by a will executed before two notaries. If the party made a will in the 
 common form, in a place where no such law prevailed, it would be invalid 
 in respect of property situated in the place where it did prevail. Similar 
 examples are afforded by the English Statute of Frauds, which denies the 
 capacity to devise real property, otherwise than by a will attested by three 
 or more credible witnesses ; and by the law of .Jamaica, which enables a 
 married woman to convey her real estate, and a tenant in tail to bar the 
 remainder, and acquire the fee by a simple conveyance ; but it requires at 
 the same time, that the married woman should be examined apart from 
 her husband, and that the conveyance should be acknowledged and record- 
 ed. The following example of that species of solemnity, which is extrin- 
 sic to the disposition, is given by Stockmans, in the case which has been 
 cited : ' Si quis incola dilionis regiiu testetur in urbe Leodiensi, ubi testa- 
 toris subscriptio in testamentis necessaria non est, sed sufficit communis 
 ritus, qui in aliis publicis instrumentis requiritur.' There may be said to 
 be three species of solemnities ; first, those which are requisite to enable 
 the person, as for instance, the authority from the husband to the wife, 
 essential, by the law of some countries, to the validity of her act. These 
 are derived from, and must be examined with reference to the law of the 
 domicil, or the Lex loci rei sit;o. Secondly, those which form a part of, and 
 are essential to the act, such as the delivery of the subject-matter of a gift. 
 The third species of solemnities consists of those which are designed to 
 establish the truth or authenticity of the instrument, such as the proof by 
 two or more notaries, or one notary and two witnesses, or the number, age, 
 and quality of witnesses required for the validity of a will."
 
 624 CONFLICT OF LAWS. [CH. YIIL 
 
 if in each place they are different. If it is clear that the 
 forms appertain to the solemnities of the act, he thinks 
 that there is no difficulty in affirming, that the law of the 
 place of the contract ought to govern. If the forms re- 
 late to the capacity of the person, then the law of the 
 place of his domicil ought to govern. But if, on the con- 
 trary, they appertain either to the substantials of the con- 
 tract, or its nature, or its accidents, or its fulfilment, 
 {sive ad siibstantialia contractus, sive ad naturalia, sive ad 
 accidentalia, aiit complementaria,) there is great difficulty ; 
 and if any general rule is established, either to follow 
 the law of the place of the contract, or that of the situs 
 of the thing, or that of the domicil of the contracting 
 parties, a false principle will be introduced ; for some- 
 times the formalities belong to the quality of the person, 
 sometimes to the contract, and sometimes to other things. 
 He, therefore, arrives at the conclusion, that no universal 
 rule can be laid down applicable to all classes of cases.* 
 In another place Boullenois remarks, that the French 
 authors {nos aideurs) are generally of opinion, that the 
 law of the place of the contract is to govern. Locus con- 
 tractus regit actum? And he then proceeds to lay down 
 certain rules on the subject, which have been already 
 cited, as the guiding principles.^ And among them is 
 the very important rule, applicable to the subject before 
 us, that where the law requires certain formalities which 
 are attached to the things themselves, the law of the 
 situs or situation is to govern.* 
 
 1 1 Boullenois, Observ. 23, p. 464, 465, 466 ; 2 Boullenois, Observ. 46, 
 p. 445. 
 
 2 2 Boullenois, Observ. 46, 456. 
 
 3 Ante, i) 240. 
 
 4 2 Boullenois, Observ. 46, p. 467 ; ante, ^ 240,
 
 CH. VIII.] FOREIGN CONTRACTS. 625 
 
 § 372 d. Mr. Burge, after suggesting, that there are 
 three species of solemnities, which he enumerates, 
 adds ; " A further distinction may be made between 
 those solemnities, which relate to contracts and instru- 
 ments for the transfer of real property, and those, by 
 which it is actually transferred. With respect to the 
 first, those are to be followed, which prevail in the 
 place, where those contracts are made, or those in- 
 struments executed ; but with regard to the actual 
 transfer of such property, those are to be observed, 
 which are prescribed by the law of the place, where it 
 is situated. Thus, a contract to sell or mortgage real 
 property will be valid, if the solemnities are observed, 
 which are required by the law of the place, where the 
 contract is made, and will be the foundation of a per- 
 sonal action against the party to that contract, to com- 
 pel the transport or mortgage of such property, but no 
 transport or mortgage will be complete, nor will the 
 dominium in the property have been transferred or ac- 
 quired, unless those solemnities are observed, which are 
 required by the law of the place, where it is situated." ' 
 Again he adds in another place ; " In considering the 
 law, by which the transfer of immovable property is 
 governed, a distinction should be made between the 
 contract to transfer, and the actual transfer of the 
 dominium. There may be cases, in which the law of the 
 domicil, or that of the place of the contract, will pre- 
 vail, notwithstanding it may be opposed to that of the 
 situs, whilst, in other cases, the law of the situs will 
 prevent the contract taking eifect. Thus, instances are 
 
 1 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 1, p. 24 ; 2 Burge, 
 Comm. on Col. and For. Law, Pi. 2, ch. 9, p. 814, 845. 
 CONFL. 53
 
 626 CONFLICT OF LAWS. [CH. VIIL 
 
 cited by jurists, where the Law of the clomicil incapaci- 
 tates the party from contracting ; but the law of the 
 situs authorizes the alienation of his immovables. Thus, 
 by the law of Ghent, persons were minors until they 
 had attained the age of twenty-five years ; but in 
 Hainault, a person of the age of twenty might alienate 
 his fief situated in that country. An inhabitant of 
 Ghent contracts to sell a fief in Hainault, of which he 
 was the owner. The contract, in the opinion of Bur- 
 gundus, would create no obligation on him to complete 
 this alienation. Ut j^uta, civis Gandensis cctate minor, 
 tamen vigesimum egressiis annum, Hannonica feuda sine 
 ' audoritate futoris vendidit ; procid duhio in ejusmodi adu 
 nihil agi existimandum est, et inidilem omnino conirahi ohli- 
 gationem ; quia Gandavi, qui aliter emandpati non sunt, 
 ante vigesimum quintiim annum rebus suis intervenire ^wo- 
 liibentur. But, if the alienation were actually made, 
 the same jurist considers, that it would be valid : >SV 
 tamen ejusmodi feudi mandpationem fecerit venditor, tutum 
 esse emptorem, et quod uctum erit valere quotidianCi ac- 
 dpimus experientid, quando luce sit cetas et competens, quce 
 in Hannonicorum feudorum alienatione rcquiritur. Nee 
 enim consuetudo Gandensis potest tollere Ubertatem man- 
 dpationis, qida res alienas legibus sids alligare non potest ; 
 hoc enim jus dicere extra territorium. A decision is re- 
 ported by Stockman, in which the same doctrine was 
 held. T. being of the age of twenty, and married, was 
 according to the law of his domicil so far emancipated, 
 as to be capable of administering, but not of alienating 
 his estate. He alienated a property situated in Louvain, 
 where the effect of his marriage gave him the full capa- 
 city of majority. An action was brought by his heir 
 to recover back the purchase-money, on the ground, 
 that T. was incompetent by the law of his domicil to
 
 CH. VIII.] FOREIGN CONTRACTS. 627 
 
 alienate his property, and that this law extended to, 
 and prevented the disposition by hiin of his property 
 in Louvain. But the purchaser insisted, and the Court 
 held, that the validity of the alienation must be decided 
 according to the law of Louvain, and dismissed the 
 action. It follows from this doctrine, that if the person, 
 competent by the law of his domicil, should contract to 
 make an alienation of property situated in a country, 
 where he was incompetent to make it, his contract 
 could not be enforced, although he might be answerable 
 in damages to the person with whom he had contracted. 
 On the other hand, if he were incompetent by the law 
 of his domicil to contract, but competent to alienate by 
 the lex loci rei sitm, and an alienation was actually made 
 by him, it would not be rescinded on the ground that 
 he was incompetent by the law of his domicil to con- 
 tract. In the cases put by Burgundus, and reported 
 by Stockman, it will be perceived, that the alienation 
 was complete. It does not follow, that if the vendor 
 had refused to perform his contract, the forum of the 
 rci siice would have enforced it. The doctrine of Roden- 
 burg is, that the contract is a nullity, and that effect 
 cannot be given to it in any Court to compel its per- 
 formance by the delivery of the property. Wesel, who 
 concurs with Bodenburg, treats the delivery or manci- 
 imtio as the simplex implementuni of the contract; and, 
 as it is required for the validity of a sale, that there 
 should have been a preceding contract, he urges ; Ciim 
 ergo totus venditionis, contractus oh defectum wtatis sit irrituSj 
 nee sit quod mancipatione solenni impleri possit^ utiqiie niida 
 simplexque fundi mancipatio omnino nihil operattir, cessante 
 causa ad mancipandum idoned."^ 
 
 1 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 844 to 846 ; 
 Id. p. 867 to 870.
 
 628 CONFLICT OF LAWS. [CH. VIIL 
 
 § 372 c. And, again, he says ; " So, if those solemni- 
 ties, which the Lex loci contractus requires, have been 
 observed, and the contract according to that law is valid 
 and obligatory, it will be valid everywhere else. But 
 the latter proposition is subject to the qualification, that 
 it does not affect immovable property, subject to a law 
 in the country of its dim, which annuls a contract, 
 because it has not been entered into with the solemni- 
 ties which it requires. If the disposition of the law 
 does not annul the contract on account of its non- 
 observance of the solemnities, which are prescribed, 
 but gives to it a degree of authenticity or credit, which 
 it will want, if they are not observed, or if, in other 
 words, its effect is either to dispense w^ith a more formal 
 proof of the instrument, if it bears on it evidence of 
 their observance, or if in consequence of the non-ob- 
 servance it attaches a presumption against the execution 
 of the instrument, and therefore requires from the par- 
 ties a greater burden of proof, such solemnities are to 
 be classed amongst the proofs in the cause, which are 
 governed neither by the Lex loci contractus, nor by that 
 of the situs, but by that of the Forum. This question, 
 in the opinion of Paul Voet, regards nan tarn de solemni- 
 hiis, quam prohandi efficacid ; cjucb licet in una loco siiffi- 
 ciens, non tamen iMque locormn ; quod judex unius terri- 
 torii nequeat vins trihucre instrumento, ut alibi quid opere- 
 tur." ^ There are other jurists who maintain the same 
 distinction.^ 
 
 1 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 867, 808, 
 See also 3 Burge, Comm. Pt. 2, ch. 20, p. 751, 752. 
 
 2 P. Voet, ad Statut. ^4, ch. 2, n. 15, 16, p. 142, edit. 1661; Ersk. 
 Inst. B. 3, tit. 2, ^ 40. —Mr. Burge adds on this point ; " When the 
 question regards the property which the law allows to be alienated, or the 
 persons to whom, or the purposes for which its alienation may be made, it
 
 CH. VIII.] FOREIGN CONTRACTS. 629 
 
 § 372/. That there may be some grouiid for such a 
 distmction as is above stated, may well be admitted. 
 But that the rule generally prevails in all nations may 
 well be doubted. Thus, it seems very clear that a con- 
 
 can be determined only by the law of the situs. The Statutes of Mort- 
 main, the law of death-bed, the restriction of gifts inter conjuges, are 
 strictly real laws to which the parties to the contract must conform, al- 
 though no such laws exist in the place of their domicil, or in that of the 
 contract. In these instances the law of the situs is prohibitory, and im- 
 presses on the property a quality excluding it from the alienation. A 
 contract, therefore, to make such an alienation as would, in any of these 
 respects, contravene the law of the situs, would be wholly inefTeclual. 
 But when the contract does not expressly, nor by necessary implication, 
 contravene it, but on the contrary, may be carried into effect consistently 
 with, or by means of its provisions, although the contract itself may not 
 give a title, yet it will be the foundation of an action by the one to compel 
 the other to complete it in that manner, which the law of the situs requires 
 in order to give him that title. The observation of Du Moulin,* in com- 
 menting on an article of the Coutume of Auvergne, illustrates this distinc- 
 tion. By that article all contracts or conventions respecting the succession 
 had the effect of vesting the seizin in the person, in whose favor they 
 were made. This great jurist, whilst he thus limits its operation, de praj- 
 diis sitis sub hac consuetudine, et non extra ejus territorium, at the same 
 time adds, Valet quidem pactio ubique, sed translatio possessionis, qua? sit 
 in vim consuetudinis, non valet nisi intra ejus territorium. The deed, by 
 which parties in England convey an estate in British Guiana, has no effect 
 as a transport of it, but it operates as a contract of transport, and enables 
 the purchaser to compel the vendor to complete the transport in the man- 
 ner prescribed by the law of that settlement. Erskine has thus stated the 
 doctrine of the law of Scotland on this subject. All personal obligations 
 or contracts entered into according to the law of the pl.ice, where they are 
 signed, or secundum legem domicilii, vel loci contractus, are deemed as 
 effectual, when they come to receive execution in Scotland, as if they had 
 been perfected in the Scottish form. *And this holds even in such obliga- 
 tions as bind the grantor to convey subjects within Scotland ; for where 
 one becomes bound by a lawful obligation, he cannot erase to be bound by 
 changing places. An English deed, if so executed in point of form as 
 validly to carry Scots heritage, will be given effect to, in regard to such 
 heritage, agreeably to the law of Scotland, notwithstanding the same deed 
 would, by the English law, under similar circumstances, be unavailable in 
 respect of heritage situate in England." 2 Burge, Comm. on Col. and 
 For. Law, Tt. 2, ch. 9, p. 846 to p. 848 ; Id. p. 8G4, 865. 
 53*
 
 630 CONFLICT OF LAWS. [CH. VIII. 
 
 tract, made in a foreign country, for the sale of lands 
 situate in England, Scotland, or America, would not be 
 held a binding contract in either of those countries, to 
 be enforced in their courts in personam, or in rem, unless 
 the contract was in conformity to the forms prescribed 
 by those countries.^ At the same time, it is quite pos- 
 sible, that the same contract might be enforced in the 
 country where it was made, if it should conform to the 
 law of that country touching real property.^ But, after 
 all, looking to the great diversity of views of foreign 
 jurists, there is much reason to be satisfied with the ge- 
 neral rule of the common law on this whole subject, 
 that is to say, that in respect to movables, the law of 
 the place where the contract is made, will, with few ex- 
 ceptions, be allowed to govern the forms and solemni- 
 ties thereof;^ but as to immovables, no contract is obli- 
 gatory or binding unless the contract is made with the 
 forms and solemnities required by the local law where 
 they are contracted. (Lex situs.y 
 
 § 373. But, whatever may be the true rule in cases 
 where the law of the sUiis does not prohibit the con- 
 tract, as, for instance, a contract for the sale of land, it 
 is very clear that, if prohibited there, it is everywhere 
 invalid to all intents and purposes. So the doctrine is 
 laid down by Rodenburg. After remarking that if a 
 contract is made, that the dotal rights shall be accord- 
 ing to the custom of another place than that of the 
 domicil of the husband, it will be good, if there is no 
 local law of either place which prohibits it ; he adds, 
 
 1 Ante, ^ 363, 364, 365. 
 
 2 Ante, ^76. 
 
 3 Ante, \ 362, 364; post, § 370, 383, 384. 
 ^ Ante, \ 364 to ^ 367, ^ 382, 383.
 
 CH. vjil] foreign contracts. 631 
 
 that the contrary, if the contract is opposed to the local 
 law, is true 7'ci sitcc. Contra, si per leges loci, iihi bona 
 constituta sunt, Umitetur illud rerum immobiliimi doariitm, 
 ^c. ; eo quod nemini liceat privatd cautione refragari legi 
 puhlicce ncgcdivcc end prohihitorin'} Boullenois also lays 
 down the same rule among his general maxims : Une 
 conveidion, toide legitime qiCelle soil en elle-meme, n'a pas 
 son execution sur les liens, lorsqu'ils sont situes en coidtimcs 
 prohihitives de la convention? Mr. Burge also lays down 
 among his general principles the following rule. " In 
 a conflict between a personal law of the domicil and a 
 real law, either of the domicil or of any other place, 
 the real law prevails over the personal law. Thus, a 
 person who has attained his majority, has, as an inci- 
 dent to that status, ^^ power of disposing by donation 
 inter vivos of every thing he possessed, may, by the real 
 statute of the place in which his property is situated, 
 be restrained from giving the whole, or from giving it, 
 except to particular persons." ^ 
 
 1 Rodenburg, De Div. Stat. tit. 3, ch. 4, n. 1,2; 2 Eoullenois, Obser. 
 42, p. 401, 402 ; Id. Appx. p. 79, 80. 
 
 2 1 Boullenois, Princ. G6n. 41, p. 9, 10; ante, ^ 262. 
 
 3 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 1, p. 28, ^ 20 ; Id. 
 p. 26, § 8, 9. It may be remarked, that some of the general principles 
 laid down by Mr. Burge in the chapter here cited, wliich he says " may 
 be adopted," admit of grave question, and are not supported by the com- 
 mon law.
 
 632 CONFLICT OF LAWS. [CH. IX. 
 
 CHAPTER IX. 
 
 PERSONAL PROPERTY. 
 
 § 374. We next come to the consideration of the 
 operation of foreign law in relation to personal, real, 
 and mixed property, according to the known divisions 
 of the common law, or to movable and immovable pro- 
 perty, according to the known divisions of the civil 
 law and continental jurisprudence. For all the pur- 
 poses of the present commentaries it will be sufficient 
 to treat the subject under the heads of personal or 
 movable property, and real or immovable property, 
 since the class of mixed property appertains to the 
 latter.! 
 
 § 375. We have already had occasion to state, that 
 in the civil law the term Bona includes all sorts of pro- 
 perty, movable and immovable ; as the corresponding 
 word Biens, in French, also does." But there are many 
 cases in which a broad distinction is taken by foreign 
 jurists between movable property and immovable pro- 
 perty, as to the operation of foreign law. We have 
 also had occasion to explain the general distinction be- 
 tween personal and real laws respectively, and mixed 
 laws, in the sense in which the terms are used in con- 
 
 1 See on the subject of this cliapter, 3 Biirge, Comm. on Col. and For. 
 Law, Pt. 2, ch. 20, p. 749 to p. 780. 
 
 2 See Liverm. Dissert, p. 81, ^ 106 ; 1 Boullcnois, Observ. 2, p. 28 ; 
 Id. Observ. 6, p. 127 ; Rodenburg, De Divers. Stat. tit. 1, ch. 2 ; 2 Boul- 
 lenois, Appx. p. 6 ; Merlin, R6pert. Biens, ^ I.
 
 CH. IX.] PERSONAL PROPERTY. 633 
 
 tinental jurisprudence ; personal, being those which 
 have principally persons for their object, and only 
 treating of property incidentally ; real, being those 
 which have principally property for their object, and 
 speaking of persons only in relation to property ; and 
 mixed, being those which concern both persons and 
 property.^ 
 
 § 376. According to this distribution, all laws re- 
 specting property, whether it be movable or immovable, 
 would fall under the denomination of real laws j and, 
 of course, upon the principles of the leading foreign 
 jurists, would seem to be limited in their operation to 
 the territory where the property is situate.^ This, how- 
 ever, is a conclusion which, upon a larger examination, 
 will be found to be erroneous, the general doctrine 
 held by nearly all foreign jurists being, that the right 
 and disposition of movables is to be governed by the 
 law of the domicil of the owner, and not by the law of 
 their local situation.^ 
 
 § 377. The grounds upon which this doctrine, as to 
 
 ' Ante, i5> 12 to ^ 16; 1 Bonllenois, Princ. Gen. p. 4 to p. 9; Id. Ob- 
 serv. 2, p. 29; Id. Observ. 6, p. 122 to p. 127 ; P. Voet, De Statut. (^ 4, 
 ch. 2, n. 2, p. 117, edit. 1715 ; Id. p. 130, 131, edit. 1661. 
 
 2 Thus Mublenbruch (Doctrina Pandectarum, Vol. 1, lib. 1, ^ 72, 
 p. 167) lays down the following rule. Jura, quae proxime rebus sunt 
 scripta, velut quae ad dominii causam spectant, vel ad vectigalium tributo- 
 rumque onus, vel ad pignorum in judicati executionem et capiendorum et 
 distraliendorum, turn etiam rerum apud judicem petendarum persequenda- 
 rumve rationem, et quae sunt reliqua ex hoc genere, aestimantur ex legibus 
 ejus civitatis, ubi sitae sunt res, de quibus agitur, atque collocate, nullo 
 rerum immobilium atque mobilium habito discritnine. 
 
 3 See ante, ^ 3G2 ; post, ^ 377 to ^ 380. See Foelix, Gondii des Lois, 
 Revue Etrang. et Franc. Tom. 7, 1840, p. 216, 217, 218, 221 to 227. See 
 Cockerell i'. Dickens, 3 Moore, Priv. Coun. R. 98, 132 ; Thomson v. Her 
 Majesty's Advocate Gen. 13 Sim. R. 152, 160 ; In re Bruce ; 2 Cromp. 
 & Jerv. 436.
 
 634 CONFLICT OF LAWS. [CH. IX. 
 
 movables, is supported, are differently stated by differ- 
 ent jurists, but the differences are more nominal than 
 real. Some of them are of opinion that all laws which 
 regard movables are real; but at the same time they 
 maintain that, by a fiction of law, all movables are sup- 
 posed to be in the place of the domicil of the owner, a 
 qm legem situmque accipiunt. Others are of opinion that 
 such laws are personal, because movables have, in con- 
 templation of law no situs, and are attached to the per- 
 son of the owner, wherever he is ; and, being so adhe- 
 rent to his person, they are governed by the same laws 
 which govern his person ; that is, by the law of the 
 place of his domicil.^ The former opinion is main- 
 tained by Paul Voet, Rodenburg, and Boullenois ; and 
 the latter by D'Argentre, Burgundus, Hertius, and 
 Bouhier.^ Paul Voet says : Veriim mohilia ibi censeantiir 
 esse, secundum juris inteUectum, tihi is, cujiis ea sunt, sedem 
 
 1 " Mobilia " (says John Voet) " vero ex lege domicilii ipsius defuncti, 
 vel quia semper domino presentia esse finguntur, vel ex comitate passim 
 usu inter gentes recept^." J. Voet, ad Pand. Lib. 38, tit. 17, ^ 34, 
 p. 596. And in another place he adds : " Sed considerandum, quadam 
 fictione juris, seu malis, praesumptione, hanc de mobilibusdeterminationem 
 conceptam niti ; cum enim certo stabilique haec (mobilia) situ careant, nee 
 certo sint alligata loco ; sed ad arbitrium domini undiquaque in domicilii 
 locum revocari facile ac reduci possint, et maximum domino plerumque 
 comraodum adferre soleant, cum ei sunt praesentia ; visum fuit hanc inde 
 conjecturam surgere, quod dominus velle censeatur, ut illuc omnia sua sint 
 mobilia, aut saltern esse intelligantur, ubi fortunarum suarum larem sum- 
 mamque conslituit ; id est, in loco domicilii." J. Voet, ad Pand. Lib. 1, 
 tit. 4, Pt. 2, ^ II, p. 44. Hertius says; "Nam mobiles ex conditione 
 personse legem accipiunt, nee loco continentur." 1 Hertii, Opera, De Col- 
 lis. Leg. ^ 4, n. G, p. 122, 123, edit. 1737 ; Id. p. 174, edit. 1716 ; Foe- 
 lix, Conflit des Lois, Pvcvue Etrang. et Franc. 1840, Tom. 7, p. 221 , 222 ; 
 ante, ^ 362. 
 
 2 Liverm. Dissert, p. 128, 129 ; 1 Boullenois, Observ. 19, p. 338 to 
 340 ; 1 Hertii, Opera, De Collis. Leg. §• 4, ch. 2, n. 6, p. 122, 123, edit. 
 1737 ; Id. p. 174, edit. 1716.
 
 CH. IX.] PERSONAL PROPERTY. 635 
 
 atque larem siiariim fortimanim collocavit} So Rodenburg : 
 Mobilia quippe ilia non ideo subjacent statido (reali,) quod 
 personale illud sit ; scd quod mohilia, certo ac fixo situ ca- 
 rentia, ihi qucmque situm velle habere, ac existcrc intelligi- 
 mus, iihi larem ac fortunarum fixit summam, ^^c. In do- 
 micilii loco mobilia intelligantur existere? Again, in another 
 place he says : Et quidem, de mobilibus si quwratur, cum 
 semper ibi esse existimentur, ubi creditor foret domicilium, 
 cvj'us ossibus vagcc hw res intelliguntur adhwrere? Boul- 
 lenois affirms the same doctrine ; and gives this reason 
 for it, that, as movables have no such fixed and perpe- 
 tual situs, as lands have, it is necessary that their situs 
 should depend upon the pleasure of the owner, and 
 that they have the very situs which he wishes, when 
 they have that of his own domicil.^ 
 
 § 378. On the other hand, D' Argentre says : De 
 mobilibus alia censura est ; quoniam per omnia ex conditione 
 personarum legem accipiunt, et situm habere negantiir, nisi 
 affixa et cohcerentia, nee loco contineri dicuntur propter habi- 
 litatem motionis et translationis. Qiiare statutum de bonis 
 mobilibus vere personale est, et loco domicilii judicium sumit ; 
 et quodcmnque judex domicilii de eo statuit, uhique locum ob- 
 tinet. Observatio indubita est, mobilia personam seqid, nee 
 situ judicari, aid a locis judicium accipere.^ Bouhier is 
 
 ' P. Voet, De Stat. ^ 4, ch. 2, n. 2, p. 118, edit. 1715; Id. ^ 1), 
 ch. 1, ^ 8, p. 255; Id. p. 132, 309, edit. 1661. 
 
 2 Rodenburg, De Divers. Stat. tit. 1, ch. 2, sub finem ; 2 BouUenois, 
 Appx. p. 6 ; 1 BouUenois, Observ. 2, p. 25, 28 ; Id. Observ. 6, p. 140. 
 
 3 Rodenburg, De Divers. Stat. tit. 2, ch. 5, § 16 ; 2 BouUenois, Appx. 
 48. 
 
 4 1 BouUenois, Observ. 16, p. 223, 224 ; Id. Observ. 19, p. 338; Id. 
 Prin. Gen. 33, p. 8 ; 3 Burge, Comm. on Col. and For. Law, Pt. 1, 
 ch. 20, p. 750, 751. 
 
 5 D'Argentr6, De Leg. Brit. Tom. 1, Des Donations, art. 218, Gloss. 6, 
 n. 30, p. 654 ; Livernn. Diss. ^ 213, p. 128, 129, 130 ; 1 BouUenois, Ob- 
 ser. 19, p. 339.
 
 636 CONFLICT OF LAAVS. [CH. IX. 
 
 quite as explicit. As movables (says he) have no fixed 
 situs, and are easily transported from one place to an- 
 other, according to the pleasure of the owner, therefore 
 it is supposed, by a sort of fiction, that they adhere to 
 his person ; and from hence comes the maxim in our 
 customary law, that movables follow the body or per- 
 son of the owner ; Meulles siiivent le corps, ou la person- 
 ne, — Mobilia sequuntur personam} 
 
 § 378 a. Burgundus puts the doctrine in the strong- 
 est form. Puto eqiddem (says he) mohilia seqiii conditio- 
 nem personcc, id est, si persona fuerit servituti ohnoxia, bona 
 qiioqiie ejus mohilia libera esse desinere, mm apiid nos servi- 
 tiis magis sit bononim, qiiam personce. Ut piita, si quis 
 natiis in simili rcgione territorii Alostensis, inde postea alio 
 migraverit^ atqiie decesserit, bona ejus mobilia quocumque 
 loco reperta, cediint natalis soli Domino. Quia perinde ha- 
 heri debent, ac si per eventum nativitatis, alienee se piotestati, 
 ac dominio defiinctus subjecisset. Non aliter qucim mobilia 
 clerici, cptce et conditionem ejus sequuntur. Sed tamen, lit 
 existimem, bona moventia, et mobilia ita comitari personam, 
 ut extra domicilium ejus censeantur existere, adduci sane 
 non possum. Quod neqiie rationi, neque juri scripto con- 
 gruat, sicuti nee doctorum opinionibus, aid forensi iisu Jirma- 
 tur. Credo ego, mobilia comitari personam quamdiu domi- 
 cilium non habet. Quod utique procedere poterit, si quis 
 domicilio relicto naviget, vel iter faciat, qucerens quo se con- 
 ferat, atque ubi domicilium constitu at. ^ Hertius says : JVam 
 
 1 Boiihier, Cout. de Bourg. ch. 25, ^ 2, p. 490 ; 1 Boullenois, Observ. 
 19, p. 338. — Les meubles (says Cochin) quelque sorte qu'ils soient, sui- 
 veni le domicile. Cochin, O^iivres, Tom. 5, p. 85, 4to. edit. ; 2 Henrys, 
 CEuvres, Lib. 4, ch. 6, Quest, 105, p. 612; Id. 720; ante, ^ 362; 
 3 Burge, Comm, on Col and For. Law, Pt. 2, ch. 20, p. 750, 751 ; Foelix, 
 Conflit des Lois, Revue Etrang. et Fran^. Tom. 7, ^. 32, p. 221, 222. 
 
 2 Burgundus, Tract. 2, n. 20, p. 71, 72.
 
 CH. IX.] PERSONAL PROPERTY. 637 
 
 mobiles ex conditione personce legem acciphmt, nee loco con- 
 tinentur} 
 
 § 379. But, whether the one opinion or the other is 
 adopted, it has been truly remarked by Boullenois, that 
 the same conclusion is equally true, that movables fol- 
 low the person.- The probability is, that the doctrine 
 itself had not its origin in any distinction between real 
 laws, or personal laws, or in any fictitious annexation 
 of them to the person of the owner, or in their incapa- 
 city to have a fixed sHais ; but in an enlarged policy, 
 growing out of their transitory nature and the general 
 convenience of nations. If the law rei sitce were gene- 
 rally to prevail in regard to movables, it would be 
 utterly impossible for the owner, in many cases, to know 
 in what manner to dispose of them during his life, or to 
 distribute them at his death ; not only from the uncer- 
 tainty of their situation in the transit to and from dif- 
 ferent places, but from the impracticability of knowing, 
 with minute accuracy, the law of transfers iiiter vivos, or 
 of testamentary dispositions and successions in the dif- 
 ferent countries in which they might happen to be. 
 Any change of place at a future time might defeat the 
 best-considered will ; and any sale or donation might 
 be rendered inoperative, from the ignorance of the par- 
 ties of the law of the actual situs at the time of their 
 acts. These would be serious evils, pervading the 
 
 > 1 Hertii, Opera, De Collis. Leg. ^ 4, n. 6, p. 122, 123, edit. 1737 ; Id. 
 p. 174, edit. 1716; ante, ^ 362. See J. Voet, Comm. ad Pand, Vol. 2, 
 Lib. 38, tit. 17. n. 34, p. 596. 
 
 2 1 Boullenois, Observ. 19, p. 339. See also J. Voet, ad Pand. Lib. 
 38, tit. 17, ^34, p. 596; Holmes v. Remsen, 4 Johns. Ch. R. 487; 
 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 1, p. 28, 29 ; Foelix, 
 Conflit des Lois, Revue Etrang. et Franc. Tom. 7, 1810, p. 204, 205, 
 206. 
 
 CONFL. 54
 
 638 CONFLICT OF LAWS. [CH. IX. 
 
 whole community, and equally affecting the subjects 
 and the interests of all civilized nations. But in mari- 
 time nations, depending upon commerce for their reve- 
 nues, their power, and their glory, the mischief would 
 be incalculable. A sense of general utility, therefore, 
 must have first suggested the doctrine ; and as soon as 
 it was promulgated, it could not fail to recommend 
 itself to all nations by its simplicity, its convenience, 
 and its enlarged policy.^ 
 
 § 380. But, be the origin of the doctrine what it may, 
 it has so general a sanction among all civilized nations. 
 
 1 See Harvey v. Richards, 1 Mason, R. 412; ante, ^372; a. Mr. 
 Justice Bayley, in delivering- his opinion in the case of In re Ewin, 
 1 Cromp. & Jerv. 156, said ; " Now what is the rule with respect to it 1 
 It is clear, from the authority of Bruce v. Bruce, and the case of Somer- 
 ville V. Somerville, that the rule is, that personal property follows the per- 
 son, and it is not, in any respect, to be regulated by the situs ; and if in any 
 instances the situs has been adopted as the rule by which the property is 
 to be governed, and the lex loci rei sita; resorted to, it has been improperly 
 done. Wherever the domicil of the proprietor is, there the property is to 
 be considered as situate ; and, in the case of Somerville v, Somerville, 
 which was a case in which there was stock in the funds of this country, 
 which were at least as far local as any of the stocks mentioned in this case 
 are local, there was a question, whether the succession to that property 
 should be regulated by the English, or by the Scotch rules of succession. 
 The Master of the Rolls was of opinion, that the proper domicil of the 
 party was in Scotland. And having ascertained that, the conclusion which 
 he drew was, that the property in the English funds was to be regulated 
 by the Scotch mode of succession ; and if the executor had, as he no doubt 
 would have, the power of reducing the property into his own possession, 
 and putting the amount into his own pocket, it would be distributed by the 
 law of the country in which the party was domiciled. Personal property 
 is always liable to be transferred, wherever it may happen to be, by the act 
 of the party to whom that property belongs ; and there are authorities that 
 ascertain this point, which bears by analogy on this case, namely, that if 
 a trader in England becomes bankrupt, having that which is personal pro- 
 perty, debts, or other personal property, due to him abroad, the assign- 
 ment under the commission of bankrupt operates upon the property and 
 effectually transfers it, at least as against all those persons who owe obe- 
 dience to these bankrupt laws, the subjects of this country."
 
 CH. IX.] PERSONAL PROPERTY. 639 
 
 that it may now be treated as a part of the Jus Gentiimi. 
 Lord Loughborough has stated it with great clearness 
 and force in one of his most elaborate judgments. " It 
 is a clear proposition," (said he,) " not only of the law 
 of England, but of every country in the world, where 
 law has the semblance of science, that personal property 
 has no locality. The meaning of that is, not that per- 
 sonal property has no visible locality ; but that it is sub- 
 ject to that law which governs the person of the owner ; 
 both with respect to the disposition of it, and with re- 
 spect to the transmission of it, either by succession, or 
 by the act of the party. It follows the law of the per- 
 son. The owner in any country may dispose of his 
 personal property. If he dies, it is not the law of the 
 country, in which the property is, but the law of the 
 country of which he was a subject, that will regulate 
 the succession." ^ The same doctrine was recognized 
 by Lord Chief Justice Abbott on another important 
 occasion. " Personal property " (said he) " has no local- 
 ity. And even with respect to that, it is not correct to 
 say, that the law of England gives way to the law of 
 the foreign country ; but, that it is part of the law of 
 England, that personal property should be distributed 
 according to the Jus domicilUy^ The same doctrine 
 has been constantly maintained, both in England and 
 America, with unbroken confidence and general unani- 
 mity.3 
 
 1 Sill V. Worswick, 1 H. Black. 690. Hoffman v. Carew, 22 Wend. 
 R. 185, 323. See Thomson v. Advocate-General, 12 Clark & Finn. 1. 
 
 2 Doe d. Birtwhistle v. Vardill, 5 Barn. & Cresw. 438, 451, 452 ; S. C. 
 6 Bligh, R. 32 to 88 ; 2 Clark & Finn. R. 571. 
 
 3 The authorities on this point are very numerous. See Henry on 
 Foreign Law, p. 13, 14, 15 ; 4 Cowen, R. 517, note ; 2 Kent, Comm. 
 Lect. 36, p. 428, &c., 3d edit. ; Id. p. 405 ; Karnes on Equity, B. 3,
 
 640 CONFLICT OF LAWS. [CH. IX. 
 
 § 381. Foreign jurists are not less expressive in its 
 favor. Constat inter omnes, (says Bretonnier) qiie les 
 meuhles suivent les 'persomies, et se reglent suivant la coii- 
 tiime dii domicile} And he speaks but the common lan- 
 guage of the continental jurists." Pothier, after re- 
 marking that movables have no locality, adds : " All 
 things which have no locality, follow the person of the 
 owner, and are consequently governed by the law or 
 the custom which governs his person, that is to say, by 
 that of the place of his domicil." ^ Merlin adopts lan- 
 guage equally general and exact. " Movables " (says 
 he) "are governed by the law of the domicil of the 
 owner, wherever they may be situate ; and this law of 
 course changes with his change of domicil." '* Bynker- 
 shoek asserts the principle to be so well established 
 
 ch. 8, ^ 3, 4 ; Ersk. Inst. B. 3, tit. 2 ^ 40, p. 515 ; Dwarris on Statutes, 
 649, 650 ; In re Ewing, 1 Tyrwhitt, R. 91 ; 1 Rose, Bank. Cas. 478 ; 
 5 Barn. & Cressw. 451, 452 ; 2 Bell, Comm. p. 2 to p. 10, 4lh and 5th 
 edit. ; Piper v. Piper, Ambler, R. 25 ; Potter v. Brown, 5 East, R. 130 ; 
 Holmes t). Remsen,4 Johns. Ch. Pi.. 460; Guier v. O'Daniel, 2 Binney, 
 R. 349, note; Bruce v. Bruce, 2 Bos. & Pull. 229, note ; Liverm. Diss, 
 p. 128 to p. 132 ; De Sobrey v. De Laistre, 2 Harr. & Johns. R. 191, 224 ; 
 Hunter v. Potts, 4 T. R. 182, 192; Phillips v. Hunter, 2 H. Black. 402, 
 405 ; Goodwin v. Jones, 3 Mass. R. 514, 517 ; Biake v. Williams, 6 Pick. 
 R. 286, 314; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, 
 p. 740 to p. 753 ; French v. Hall, 9 N. Hamp. R. 137; Cockerellv. Dick- 
 ens, 3 Moore, Priv. Coun. R. 98, 131, 132. 
 
 1 2 Henrys, CEuvres, Lib. 4, Quest. 127, p. 720. 
 
 2 See 1 Boullenois, Observ. 18, p, 328 ; Observ. 19, p. 339, 340 ; Bou- 
 hier, ch. 22, p. 429, ^ 79, ch, 25, p. 490, ^ 2; 5 Cochin, CEuvres, 85; 
 Liverm. Diss. ^ 212 to ^ 216, p. 129, 130 ; Huberus, De Confl. Leg. Lib. 
 1, tit. 3, ^ 15. See Foelix, Conflit des Lois, Revue Elrang. et Franc. 
 Tom. 7, 1840, ^ 32 to «^ 35, p. 221 to p. 229. 
 
 3 Pothier, Coutume d"0rl6ans, ch. 1, ^ 2, Tom. 10, p. 7, 4to edit. ; Id. 
 Traii6 des Choses, ^ 3, Tom. 8, p. 109, 4to edit. 
 
 4 Merlin, Repert. Biens, ^ 1, n. 12 ; Id. Meubles, ^ 1 ; Id. Loi, ^ 6, 
 n. 3.
 
 CH. IX.] PERSONAL PROPERTY. 641 
 
 that no one has dared to question it : Adeo vccepta hodic 
 sententia est, tit nemo ausit contra luscere} Huberus says : 
 Venmi in mohilibus nihil esse causae, cur aliiid, qiiam jus 
 domicilii sequamur ; quia res moUles non liabent affectionem 
 versus territoriumy sed ad personam patrisfamilias duntaxat, 
 qui aliud, quam quod in loco domicilii oUinehat, voluisse oh- 
 tinere non potest? So that there seems a general, al- 
 though not an entire harmony on this point between 
 foreign jurists and domestic jurists.^ 
 
 1 2 Kent, Comm. Lect. 37, p. 429, 3d edit. ; Bynkershoek, Quest. 
 Priv. Juris. Lib. 1, cap. 16, p. 179, 180, edit. 1744. — Bynkershoek, in 
 the passage here referred to, is speaking of the right of succession ; but 
 his language has been thought susceptible of a broader interpretation. 
 See post, ^ 483. 
 
 2 Huberus, P. 1, Lib. 3, Tom. 1, De Success, ab Intest. n. 21 (s.) 
 
 3 See Fcfilix, Conflit des Lois, Revue Etrang. et Franc. Tom. 7, 1840, 
 ^ 32 to ^ 35, p. 221 to 229. See also Muhlenbruch, Doctr. Pand. Tom. 
 1, Lib. 1, ^ 72, 73, p. 166 to p. 170, who seems to make the law rei situs 
 govern, in many cases, as well with respect to movables as immovables. 
 Jura, quas proxime rebus sunt scripta, vel quae ad dominii causam spec- 
 tant, &c. &c., sestimantur ex legibus ejus civitatis, ubi sitae res, de quibus 
 agitur, atque collocatae, nullo rerum immobilium atque mobilium habito 
 discrimine. Id. ^ 72. Mr. Foelix says on this subject : " Par la nature 
 des choses, les meubles, soit corporels, soit incorporels, n'ont pas, k I'^gal 
 des immeubles, une assiette fixe dans I'endroit ou ils se trouvent de fait : 
 ils dependent n^cessairement de la personne de I'individu, a qui ils appar- 
 tiennent, et ils subissent la destination, qu'il leur donne. Chaque indivi- 
 du etantlegalement cens6 avoir r^uni sa fortune au lieu de son domicile, 
 c'est-a dire au si6ge principal de ses affaires, on a toujours regard^ en droit 
 les meubles comme se trouvent au lieu du domicile de celui, a qui ils ap- 
 paniennent ; peu importe si, de fait, ils se trouvent ou non au dit lieu. 
 Par une fiction legale, on les consid^re comme suivant la personne, et 
 comme 6tant soumis a la meme loi, qui regit I'^tat et la capacite de cette 
 personne ; et nous avons vu (supra n° 21) que cette loi est celle du domi- 
 cile (mobilia sequuntur personam ; mobilia ossibusinhcerent.) En d'autres 
 termes, le statut personnel gouverne les meubles corporels ou incorporels. 
 Ce statut est a leur 6gard r6el par suite de la fiction, qui les repute se 
 trouver au lieu r^gi par ce miSme statut. Tel a toujours iii^ le sentiment 
 presque unanime des auteurs et des cours de justice. Tt'smoins Dumou- 
 lin, Chopin, Bretonnier, D'Argcntrc, Brodeau, Lebrun, Poullain du Pare, 
 Burgundus, Rodenburg, Abraham a Wesel, Paul Voet, John Voet, Sand6, 
 
 54*
 
 642 CONFLICT OF LAWS. [CH. IX. 
 
 § 382. When, however, we speak of movables, as 
 following the person of the owner, and as governed by 
 the law of his domicil, we are to limit the doctrine to 
 the cases in which they may be properly said to retain 
 their original and natural character. For movables 
 may become annexed to immovables, either by incorpo- 
 ration, or as incidents ; and then they take the charac- 
 ter of the latter.^ Thus in the language of the com- 
 mon law, movables, annexed to the freehold, are deemed 
 a part of the latter. Such are the common cases of 
 fixtures of personal property in houses, in mills, and in 
 other hereditaments, whether for use or for ornament. 
 In the law of foreign countries a similar distinction is 
 recognized ; and wherever movables become thus fixed 
 by operation of law, or by the express determination 
 of the owner, they are deemed a part of the immova- 
 ble property.- John Voet ranks them among immova- 
 
 Christin, Gaill, Carpzov, Wernher, IMevius, Franzke, Boullenois, Pothier, 
 Struve, Leyser, Huber, Hert, Hommel, Danz, Gluck, Thibaut, Merlin, 
 MM. Mittermaier, Hauss, Meier, Favard, Duranton, Story, Wheaton, 
 Rocca, et Burge. Trois auteurs seulement ne sont pas enti^rement d'ac- 
 cord, en cette matiere, avec ceux que nous venons de citer : ce sont Titt- 
 raan, M. Muhlenbruch, et M. Eichhorn. Le premier, en soumettant les 
 meubles a la meme loi, qui r^git les immeubles, ne s'attache qu'a I'un des 
 cas exceptionnels, dont nous parlerons au n° 33 ci-apres, sans examiner la 
 regie elle-meme. M. Muhlenbruch repousse toute distinction entre les 
 meubles et les immeubles par rapport a la loi, qui les r6git, par le seul 
 motif, que I'opinion contraire etablirait une difltirence entre la succession 
 dans les immeubles et celle dans les meubles du meme individu ; nous 
 dtmonterons au n° ci-apres la n6cessit6 de reconnaitre cette difference. 
 M. Eichhorn, en rejetant I'application de la loi de la situation des meubles, 
 n'admet cependant la regie, qu'avec la modification, que, selon les circon- 
 stances, il faudra appliquer la loi du lieu ou la cause se plaidera : il cite 
 comme exemple le cas ou le defendeur en revendication invoque la max- 
 ime, qu'en fait de meubles possession vaut titre." FceHx, Conflit des 
 Lois, Revue Etrang. et Franc. 1840, Tom. 7, § 32, p. 222 to p. 224. 
 
 1 Ante, § 371 ; post, ^ 447. 
 
 ~ Pothier, Traite des Choses, § 1 ; Id. Coutume d'Orleans, ch. 3, art.
 
 CH. IX.] PERSONAL PROPERTY. 643 
 
 bles. Idemque statuendimi in mohilibiis, inr loatriBfamilias 
 destinationem peiydid iisus gratia ad cerium bmni, domiim 
 puta, vel fundiim, delaiis, Ha ut perpetuo illic istius iisiis 
 causa mansura sint, etiamsi vel nunqiiam immohilihis natu- 
 raliter jungenda sint, vel ex destinatione jungenda, nccdiim 
 tamen inceperint immohilihis juncta esse, modo ad ipsas 
 cedes fundosve, qidhus jungenda sunt, delata fuerint} 
 Among the class of immovables are also ranked (as we 
 have seen) heritable bonds by the Scottish law, and 
 ground-rents, and other rents charged on lands.^ 
 
 § 383. It follows, as a natural consequence of the rule 
 which we have been considering, (that personal pro- 
 perty has no locality,) that the laws of the owner's domi- 
 cil should in all cases determine the validity of every 
 transfer, alienation, or disposition made by the owner, 
 whether it be inter vivos, or be post mortem? And this 
 is regularly true, unless there is some positive or cus- 
 tomary law of the country where they are situate, pro- 
 viding for special cases, (as is sometimes done,) or from 
 the nature of the particular property, it has a necessa- 
 rily implied locality.^ Lord Mansfield has mentioned. 
 
 46, 47, 48; Merlin, Repert. Biens, ^ 1, n. 13, i^* 2, n. 1 ; Id. Meubles, 
 ^ 2, 3 ; 1 Bell, Comm. ^ 660, p. 648 to p. 652, 4th edit. ; 2 Bell, Comm. 
 p. 2, 3, 4, 4th edit. ; 1 Bell, Comm. p. 752 to p. 755, and 2 Bell, Comm. 
 p. 1 to p. 10 ; 1 Boullenois, Observ. 19, p. 340, 341 ; 1 Karnes on Equity, 
 B. 3, ch. 8, ^ 3 ; Ersk. Inst. B. 3, tit. 9, § 4. 
 
 1 J. Voet, ad Pand. Lib. 1, tit. 8, n. 14, p. 67. 
 
 2 1 Bell, Comm. ^ 660, p. 648 to p. 652 ; 2 Bell, Comm. p. 2, 3, 4, 
 4th edit. ; Ersk. Inst. B. 2, ch. 2, ^ 9 to ^20; Pothier, Trait6 des Cho- 
 ses, ^ 3 ; ante, ^ 366, 367, and note ; post, ^ 447, 
 
 3 Livermore, Diss. ^ 2J5 to ^ 220, p. 130 to p. 137; French v. Hall, 
 9 N. Kamp. R. 137 ; Sessions v. Little, 9 N. Hamp. R. 271 ; Rue High, 
 Appellant, 2 Doug. Mich. 522. 
 
 4 Mr. Chief Justice Tilghman on one occasion said: "The proposi- 
 tion " (that personal property has no locality, but is transferred according
 
 644 CONFLICT OF LAWS. [CH. IX. 
 
 as among the latter class, contracts respecting the pub- 
 lie funds or stocks, the local nature of which requires 
 them to be carried into execution according to the local 
 law/ The same rule may properly apply to all other 
 local stock or funds, although of a personal nature, or 
 so made by the local law, such as Bank stock, Insur- 
 ance stock, Turnpike, Canal, and Bridge shares, and 
 other incorporeal property, owing its existence to, or 
 regulated by, peculiar local laws.^ No positive transfer 
 
 to the law of the country in which the owner is domiciled) " is true ia 
 general, but not to its utmost extent, nor without several exceptions. In 
 one sense personal property has locality, that is to say, if tangible, it has 
 a place in which it is situated, and if invisible, (consisting of debts,) it may 
 be said to be in the place where the debtor resides; and of these circum- 
 stances the most liberal nations have taken advantage, by making such 
 property subject to regulations which suit their own convenience." " Every 
 country has a right of regulating the transfer of all personal property 
 within its territory ; but when no positive regulation exists, the owner 
 transfers it at his pleasure." Moreton v. Milne, 6 Binn. R. 361 ; 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 751, 752 ; ante, § 364, 
 and note. 
 
 1 Robinson v. Bland, 2 Burr. R. 1079; S. C. 1 W. Black. R. 247; 
 ante, ^ 364. 
 
 2 2 Bell, Comm. p. 4, 5, 4th edit. ; Id. p. 1 to 10, 5th edit. ; 1 Bell, 
 Comm. p. 65, 67, 68, 4th edit. ; Id. p. 105 to p. 108, 5th edit. ; 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 750, 751, 752. — Mr. 
 Burge says, that although stocks of this nature can only be transferred ac- 
 cording to the forms of the lex rei sitaB, so as to confer a legal title on the 
 purchaser ; yet it will give the purchaser a right of action to compel the 
 vendor to make a transfer in the manner required by the local law. Ibid. ; 
 ante, ^ 364, note. Erskine, in his Institutes, (B. 3, tit. 9, i^ 4,) puts the 
 like exceptions. " We must except," says he " from this general rule, as 
 Civilians have done, certain movables, which by the destination of the de- 
 ceased are considered as immovables. Among these may be reckoned the 
 shares of the trading companies, or of the public stocks of any country, 
 for example, the Banks of Scotland, England, and Holland, The South 
 Sea Company, &c., which are, without doubt, descendible, according to 
 the law of the State where such stocks are fixed. But the bonds or notes 
 of such companies make no exception from the general rule. They are 
 accounted part of the movable estate of the deceased." Ante, ^ 364, 365;
 
 CH. IX.] PERSONAL PROPERTY. 645 
 
 can be made of such property, except in the manner 
 prescribed by the local regulations.^ But, nevertheless, 
 contracts to transfer such property would be valid, if 
 made according to the Lex domicilii of the owner, or the 
 Lex loci contractus, unless such contracts were specially 
 prohibited by the Lex rei sitce ; and the property would 
 be treated as personal, or as real, in the course of ad- 
 ministration, according to the local law.^ 
 
 § 384. Subject to exceptions of this and the like 
 nature, (such as the statutable transfer of ships, and of 
 goods in the warehouses, or in the docks of a govern- 
 ment, which would fall within the same predicament,) 
 the general rule is, that a transfer of personal property, 
 good by the law of the owner's domicil, is valid, wher- 
 ever else the property may be situate.^ But it does 
 not follow, that a transfer made by the owner, accord- 
 
 Post, ^ 398 ; Robertson on Successions, p. 94, 95. See Attor. Gen. v. 
 Dimond, 1 Cromp. & Jerv. 356, 370, 371 ; Attor. Gen. v. Hope, 1 Cromp. 
 Mees. & Rose. 538 ; S. C. 8 Bligh, R. 44 ; S. C. 2 Clark & Finnell. R. 
 84 ; Att. Gen. v. :6onvvers, 4 Mees. & Welsh. 171, 191, 192, 193 ; post, 
 §432. 
 
 1 Though stock abroad may be, as to its transfer, affected by the local 
 laws, it is not to be treated, as of course, as partaking of the character of 
 real estate and descendible as such. On the contrary, if it be by the local 
 law personal estate, it may be disposed of by an administration, as such ; 
 and the title passes, if it be made in the forms prescribed by the foreign 
 law. See Attor. Gen. v. Dimond. 1 Tyrwhitt, R. 243. In the matter of 
 Ewing, 1 Tyrwhitt, R. 91 ; Ersk. Inst. B. 3, tit. 9,^4; 1 Bell, Comm. 
 p. 65; 2 Bell, Comm. p. 4, 5, 4th and 5th edit. ; ante, 364, 365. 
 
 2 Abbott on Shipp. Pt. 1, ch. 2, § 10 ; 1 Chitty on Comm. and Manuf. 
 556, 558, 509, &;c. ; 2 Kent, Comm. Lect. 45, p. 145, 146, 3d edit. 
 
 3 1 Karnes on Equity, B. 3, ch. 8, § 3. — In the case of a movable sub 
 ject (says Erskine) lying in Scotland, the deed of transmission, if perfected 
 according to the lex domicilii, is effectual to carry the property, for mova- 
 bles have no permanent situation. Ersk. Inst. B. 3, tit. 2, § 40, p. 515 ; 
 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 750, 751, 752 ; 
 ante, § 364, note.
 
 646 CONFLICT OF LAWS. [CH. IX. 
 
 ing to the law of the place of its actual situs, would not 
 as completely devest his title ; nor even that transfer 
 by him in any other foreign country, which would be 
 good according to the law of that country, would not be 
 equally effectual, although he might not have his do- 
 micil there. For purposes of this sort, his personal 
 property may in many cases be deemed subject to his 
 disposal, wherever he may happen to be at the time of 
 the alienation. Thus, a merchant domiciled in Ame- 
 rica, may doubtless transfer his personal property ac- 
 cording to the law of his domicil, wherever the property 
 may be. But, if he should direct a sale of it, or make 
 a sale of it in a foreign country, where it is situate at 
 the time, according to the laws thereof, either in per- 
 son or by an agent, the validity of such a sale would 
 scarcely be doubted. If a merchant is temporarily 
 abroad, he is understood to possess a general authority 
 to transfer such personal property as accompanies his 
 person wherever he may be ; so always that he does 
 not violate the law of the country where the act is 
 done.' The general convenience and freedom of com- 
 merce require this enlargement of the rule ; for other- 
 wise the sale of personal property actually situate in a 
 foreign country, and made according to the forms pre- 
 scribed by its laws, might be declared null and void in 
 the country of the domicil of the owner. In the ordinary 
 course of trade with foreign countries, no one thinks of 
 transferring personal property according to the forms 
 of his own domicil ; but it is transferred according to 
 the forms prescribed by the law of the place where the 
 sale takes place. 
 
 J See 1 Karnes on Equity, B. 3, ch. 8, ^ 3.
 
 CH. IX.] PERSONAL PROPERTY. 647 
 
 § 385. A question, involving other considerations, 
 may be presented ; and that is, whether a transfer of 
 personal property is good, which is made according to 
 the law of the owner's domicil, but not in conformity 
 to the law of the place where it is situate? And 
 whether there is any difference in such a case between 
 the transfer being made by the owner in his place of 
 domicil, or its being made in the place rei sitce ? For 
 instance, let us suppose that, by the law of the domicil 
 of the owner, a sale of goods is complete and perfect 
 to pass the title without any delivery ; and that, by 
 the law of the place of their situs the sale is not com- 
 plete until delivery. In such a case, if the transfer of 
 the goods is made in the domicil of the owner, would it 
 be valid without any delivery thereof, so as to pass the 
 title against third persons ? If it would, in such a case, 
 what would be the effect if the transfer was made in 
 the place where the goods were situate, without any 
 such delivery ? 
 
 § 386. The former question has been much discussed 
 in the courts of Louisiana, from a supposed difference 
 between the rule of the common law and that of the 
 civil law on this subject. By the common law a sale of 
 goods is, or may be, complete without delivery.^ But 
 
 1 The common law deems a sale, as between the parties, complete with- 
 out delivery ; but not as to third persons. If, therefore, a sale is made, 
 the purchaser, in order to complete his title against creditors and other 
 purchasers, must take possession within a reasonable time. Where the 
 property is at sea at the time, and is incapable of delivery, there the title 
 is complete without delivery. But it may be lost by an omission to take 
 possession within a reasonable time after its arrival in port. See Meeker 
 V. Wilson, 1 Gall. R. 419 ; 1 Black. Comm. 446, 448 ; 2 Kent, Comm. 
 492, 493, 498 ; Id. p. 515 lo 522 ; Bohlen v. Cleaveland, 5 Mason, R. 
 174 ; 3 Chitty on Comm. and Manuf. cli. 5, ^ 2, p. 272, &c. ; Lanfear v. 
 Sumner, 17 Mass. R. 110; Bigelow's Digest, Sale, A. B. ; post, ^ 389,
 
 648 CONFLICT OF LAWS. [CH. IX. 
 
 by the law of Louisiana, delivery is necessary to com- 
 plete the transfer, according to the well-known rule of 
 the civil law ; TradUionihus et iisiicapionihus dominia re- 
 rum, noil nudis pactis, transferimtur} Upon the fullest 
 examination, and after repeated arguments, the Su- 
 preme Court of Louisiana have held the doctrine, that 
 the transfer of personal property in that State is not 
 complete, so as to pass the title against creditors, un- 
 less a delivery is made in conformity to the laws of 
 that State, although the transfer is made by the owner 
 in his foreign domicil, and would be good without de- 
 livery by the laws of that domicil.^ 
 
 § 387. The reasoning by which this doctrine is main- 
 tained, is most fully developed in a case in which a 
 transfer of a part of a ship was made in Virginia, the 
 ship at the time of the sale being locally at New Or- 
 leans ; and, before any delivery thereof, she was 
 attached by the creditors of the vendor.^ It was, there- 
 fore, a case of conflict of rights between the creditor 
 and the purchaser. The learned Judge,"* who delivered 
 the opinion of the Court on that occasion, said ; " The 
 position assumed in the present case is, that by the 
 
 note. See also Long on Sales, by Rand, edit. 1839 ; oh. 7, p. 259 to 
 p. 307. 
 
 1 Cod. Lib. 2, tit. 3, 1. 20 ; Olivier v. Townes, 14 Martin, R. 93, 102 ; 
 Norris v. Mumford, 4 Martin, R. 20; Dumford v. Brooks's Syndics, 
 
 3 Martin, R. 222, 225. 
 
 2 Tiie point appears to have been first decided in Norris v. Mumford, 
 
 4 Martin, R. 20; and it has been repeatedly since adjudged in other cases, 
 and particularly in Rannsay v. Stevenson, 5 Martin, R. 23 ; Fisk v. Chand- 
 ler, 7 Martin, R. 24 ; and Olivier v. Townes, 14 Martin, R. 93. Mr. Liv- 
 ermore has contested the doctrine asserted in these decisions with great 
 earnestness and ability. Liverm. Diss. ^ 220 to ^ 223, p. 137 to p. 140. 
 
 3 Olivier r. Townes, 14 Martin, R. 93, 102. 
 ^ Mr. Justice Porter.
 
 CH. IX.] PERSONAL PROPERTY. 649 
 
 laws of all civilized countries, the alienation of movable 
 property must be determined according to the laws, 
 rules, and regulations in force, where the owner's do- 
 micil is situated. Hence, it is insisted, that, as by the 
 law existing in the State where the vendor lived, no 
 delivery was necessary to complete the sale, it must be 
 considered as complete here ; and, that it is a violation 
 of the principle just referred to, to apply to the contract 
 rules, which are peculiar to our jurisprudence, and dif- 
 ferent from those contemplated by the parties to the 
 contract." 
 
 § 388. "We readily yield an assent to the general 
 doctrine for which the appellee contends. He has 
 supported it by a variety of authorities drawn from 
 different systems of jurisprudence. But some of those 
 very books furnish also the exception on which we 
 think this case must be decided, namely, that ' when 
 those laws clash with, and interfere with the rights of 
 the citizens of the countries where the parties to the 
 contract seek to enforce it, as one or other of them must 
 give way, those prevailing, where the relief is sought, 
 must have the preference.' Such is the language of 
 the English books to which we have been referred ; 
 and Huberus, whose authority is more frequently re- 
 sorted to on this subject than that of any other writer, 
 because he has treated it more extensively and with 
 greater ability, in his Treatise De Covflidu Lef/iim, 
 (n. 11,) tells us, Ejfcda eontractuum, certo loco initonim, 
 j)rojure lociilUus alibi quoqiie ohservcmttir, si niiUiim inde 
 civihus alienis creeiur prejuclicium, in jure sihi qucesito. 
 The effects of a contract entered into at any place, will 
 be allowed, according to the law of that place in other 
 countries, if no inconvenience will result therefrom, to 
 the citizens of that other country, with respect to the
 
 650 CONFLICT OF LAWS. [CH. IX. 
 
 right wliich they demand. This distinction appears to 
 us founded on the soundest reasons. The municipal 
 laws of a country have" no force beyond its territorial 
 limits ; and when another government permits these to 
 be carried into effect within her jurisdiction, she does 
 so upon a principle of comity. In doing so care must 
 be taken that no injury is inflicted on her own citizens ; 
 otherwise justice would be sacrificed to courtesy. Nor 
 can the foreigner or stranger complain of this. If he 
 sends his property within a jurisdiction different from 
 that where he resides, he impliedly submits it to the 
 rules and regulations in force in the country where he 
 places it. What the law protects, it has a right to 
 regulate. A strong evidence of this is furnished by 
 the doctrine in regard to successions. The general 
 principle is, that the personal property must be dis- 
 tributed according to the law of the State where the 
 testator dies ; but, so far as it concerns creditors, it is 
 governed by the law of the country where the property 
 is situated. If an Englishman or a Frenchman dies 
 abroad and leaves effects here, we regulate the order in 
 which his debts vare paid by our jurisprudence, not by 
 that of his domicil." ^ 
 
 § 389. " We proceed to examine, whether, giving ef- 
 fect to the law of Virginia, on the contract now set up, 
 would be working an injury to this State, or its citizens. 
 In doing this, we must look to the general doctrine, 
 and the effect it would have on our ordinary transac- 
 tions, as well as its operation in this particular case. 
 If we held here, that this sale can defeat the attach- 
 ment, we should, on the same principle, be obliged to 
 
 1 Post, \S 524.
 
 CH. IX.] PERSONAL FROPERTY. 651 
 
 decide, that the chiimant would hold the object sold in 
 preference to a second purchaser, to whom it was de- 
 livered ; the rule being, that, when the debtor can sell, 
 and give to the buyer a good title, the creditor can 
 seize ; or, in other words, where the first sale is not 
 complete as to third persons, the creditor may attach 
 and acquire a lien.^ In relation to movable property, 
 our law has provided, that delivery is essential to com- 
 plete the contract of sale, as to third parties. This val- 
 uable provision, by which all our citizens are bound in 
 their dealings, protects them from the frauds, to which 
 they would be daily subjects, were they liable to be 
 affected by previous contracts, not followed by the giv- 
 ing of possession. The exemption contended for here, 
 in behalf of the residents of another State, would de- 
 prive them of that protection, wherever their rights, as 
 purchasers, came in contact with strangers ; a protec- 
 tion, which, it may be remarked, it is of the utmost im- 
 portance, owing to our peculiar position, that we should 
 carefully maintain. This city is becoming a vast store- 
 house for merchandise sent from abroad, owned by non- 
 residents, and deposited here for sale ; and our most 
 important commercial transactions are in relation to 
 property so situated. If the purchasers of it should be 
 affected by all the previous contracts made at the own- 
 ers' domicil, although unaccompanied by delivery, it is 
 easy to see, to what impositions such a doctrine would 
 lead ; to what inconvenience it would expose us ; and 
 how severely it would check and embarrass our deal- 
 ings. However anxious we may be to extend courtesy, 
 and afford protection to the people of other countries. 
 
 1 IMcNeil V. Glass, 13 Martin, R. 261.
 
 652 CONFLICT OF LAWS. [CH. IX. 
 
 who come themselves, or send their property, -within 
 our jurisdiction, we cannot indulge our feelings so far, 
 as to give a decision, that would let in such consequen- 
 ces as we have just spoken of It would be giving to 
 the foreign purchaser an advantage which the resident 
 has not ; and that, frequently, at the expense of the 
 latter. This, in the language of the law, we think, 
 would be a great inconvenience to the citizens of this 
 State ; and, therefore, we cannot sanction it." ^ 
 
 § 390. There is certainly great force in this reason- 
 ing upon general principles. And no one can seriously 
 doubt, that it is competent for any State to adopt such 
 a rule in its own legislation, since it has perfect juris- 
 diction over all property, personal as well as real, with- 
 
 1 Olivier v. Townes, 14 Martin, R. 97 to 103. Bat see 1 Kames on 
 Equity, B. 3, ch. 8, ^ 3. — The doctrine of this case seems supported by 
 that of Lanfear v. Sumner, (17 Mass. R. 110,) although in the latter case 
 the Court do not found their judgment upon any supposed conflict between 
 foreign and domestic laws. There can be little doubt that the sale and 
 assignment in Philadelphia in that case was a complete transfer by the Lex 
 loci contractus ; and there was certainly legal diligence in endeavoring to 
 obtain possession after the sale. The Court, however, thought that de- 
 livery was essential to perfect the transfer by the law of Massachusetts ; 
 and, as there had been no delivery until the property was attached by the 
 attaching creditor in Massachusetts, they decided in favor of the title of 
 the latter against the vendee. The Court also said, that, where each of the 
 parties claimed the same goods by a legal title, he who first obtained pos- 
 session would hold against the other; and for this principle they relied on 
 Lamb v. Durant, 12 Mass. R. 54; and Caldwell v. Ball, 1 T. R. 205. 
 The former case is certainly in point. But in the latter the decision was 
 in favor of the party who first had acquired a legal title by the prior in- 
 dorsement of the bills of lading to him. " Whoever," said Ashhurst, J., 
 " was first in possession (not of the goods, but) of either of these bills of 
 lading, had the legal title vested in him." Buller, J., said ; " Both parties 
 claim under T. ; but F. & Co. have the first legal right, for two bills of 
 lading were first indorsed to them." But see Conrad v. Atlantic Insur- 
 ance Co. 1 Peters, Sup. C. R. 386, 445; Nathan v. Giles, 5 Taunt. R. 
 553 ; Bohlen v. Cleveland, 5 Mason, R. 174.
 
 en. IX.] PERSONAL TROPERTY. Goo 
 
 in its own territorial limits.' Nor can such a rule, made 
 for the benefit of innocent purchasers and creditors, he 
 deemed justly open to the reproach of being founded in 
 a narrow or a selfish policy. But, how far any court of 
 justice ought, upon its own general authority, to inter- 
 pose such a limitation, independently of positive legis- 
 lation, has been thought to admit of more serious ques- 
 tion; since the doctrine, which it unfolds, aims a direct 
 blow at the soundness of the policy, on wdiich the gene- 
 ral rule, that personal property has no locality, is itself 
 founded.- It is not, indeed, very easy to reconcile it 
 with the doctrine maintained by Lord Loughborough, 
 (which has been already cited,)^ or with other cases to 
 the same effect. Nor is it easy to say, to what extent 
 it may be pressed in subversion of the general rule ; 
 since every country has so many minute regulations m 
 regard to the transfers of personal property incorporated 
 int°o its municipal code, each of which may be propedy 
 deemed beneficial to its own government, or to the in- 
 terests of its citizens.'^ 
 
 § 391. Another case, illustrative of the doctrine, may 
 be stated. A ship belonging to New York, and owned 
 there, was transferred, while at sea, accordmg to the 
 law of the owner's domicil ; and the ship subsequently 
 
 1 See Liven.. DisM 2-21, p. 137, 138; W;, ^ ^49 ?. 159 to p 162 ; 
 HalU. Campbell, Cowp. R. 208; Hunter .. Potts, ^ T. R. 182, U^, 
 Phillips V. Hunter, 2 H. Bl. 402, 405; SilU. Worswick, 1 H. m. K. 
 673, 690, 691 ; Davis v. Jaquin, 5 Harr. & Johns. R. 100. 
 
 2 See Livermore, Diss. § 221 to ^ 223, p. 137 to p. 140. 
 
 3 Ante, § 380 ; Sill .. Worswick, 1 H. Bl. 690. See also 1 Kames on 
 Equity, B.3, eh. 8, ^3; Erslc. Inst. B. 3 tit. 2 HO ^^-ce ^ Br"-, 
 2 Bos. & Pull. 229, note 231 ; Hunter v. Potts, 4 P. R. 18-, U- , ^-"1^ 
 lips V. Hunter, 2 H. Bl. 402, 405. 
 
 4 Mr. Purge manifestly deems the decision untenable. 3 Burge, Oonfim. 
 on Col. and For. Law, Pt. 2, ch. 20, p. 763, 764. 
 
 55*
 
 654 CONFLICT OF LAWS. [CH. IX. 
 
 arrived at New Orleans, and was attached by creditors, 
 before any delivery thereof to the vendee. The ques- 
 tion was, whether the attachment overreached the title 
 by the transfer. The Supreme Court of Louisiana held 
 that it did not ; and that the transfer was valid to all 
 intents and purposes. The Court took the distinction, 
 that the transfer was complete before the Louisiana 
 laws could locally attach upon it. " In the present case 
 (said the Court) the ship, the subject of the sale, was a 
 New York ship, and the vendor and vendee resident in 
 New York. If, therefore, according to the Lex loci 
 contractus, that of the domicil of both parties, the sale 
 transfers the property without a delivery, it did eo in- 
 stanti, or not at all. In transferring it. it did not work 
 any injury to the rights of the people of another coun- 
 try ; it did not transfer the property of a thing within 
 the jurisdiction of another government. If two persons 
 in any country choose to bargain, as to the property 
 which one of them has in a chattel not within the juris- 
 diction of the place, they cannot expect, that the rights 
 of persons in the country, in which the chattel is, will 
 be permitted to be affected by their contract. But, if 
 the chattel be at sea, or in any other place, if any there 
 be, in which the law of no particular country prevails, 
 the bargain will have its full effect, eo instanti, as to the 
 whole world. And the circumstance of the chattel 
 being afterwards brought into a country, according to 
 the laws of which the sale would be invalid, would not 
 affect it." ^ But, if the ship had been, at the time of 
 the sale, in New Orleans, and she had been attached 
 before an actual delivery to the vendee, the title of the 
 attaching creditor would have prevailed.^ 
 
 1 Thuret v. Jenkins, 7 Martin, 318, 353, 351. 
 
 2 Price V. Morgan, 7 Martin, R. 707 ; ante, ^ 386 to ^ 389.
 
 CH. IX.] PERSONAL PROPERTY. 655 
 
 § 392. But, let us suppose two persons, each claiming 
 as purchaser, under different transfers of the same per- 
 sonal property, one by a transfer from a partner in the 
 place where the property is locally situate, and another 
 by a transfer made by the other partner in the domicil 
 of the firm ; and by the law of the latter place delivery 
 is not essential to complete the transfer; but by the 
 law of the former it is ; which title is to prevail ? Ac- 
 cording to the doctrine held in Louisiana, the title of 
 the purchaser in the place rei sitce ought to prevail.^ 
 And that doctrine seems confirmed by the reasoning in 
 certain decisions of the Supreme Court of Massachusetts, 
 although the precise point as to the conflict of laws was 
 not litigated, and the law of Massachusetts was sup- 
 posed to require a delivery to complete the title.^ 
 
 § 393. A case somewhat different has been put by 
 the Supreme Court of Louisiana. " If (say the Court) 
 
 A. and B. be partners in New Orleans, and C. purchases 
 from A. a quantity of cotton in the warehouse of the 
 firm ; will his right thereto, if he take instant possession 
 of it, be affected by a sale made a few days before by 
 
 B. in Natchez or Mobile ? Will not C. be listened to 
 in his own State, when he shows, that by the Lex fori, 
 by that of Loci contractus, by that of the domicil of his 
 A^endors, and of his own, the sale and delivery vested 
 the property?"^ The case is certainly very strongly 
 put. But, after all, it must entirely depend upon the 
 pbint, whether the prior transfer at Natchez or Mobile 
 
 1 Ramsay v. Stevenson, 5 Martin, R. 23, 77, 78; Thurct v. Jenkins, 
 7 Martin, R. 353. 
 
 2 See Lamb v. Durant, 12 Mass. R. 54 ; Lanfear r. Sumner, 17 Mass. 
 R. 110 ; ante, ^ 386, .389, note. 
 
 3 Thuret v. Jenkins, 7 Martin, R. 353.
 
 656 CONFLICT OF LAWS. [CH. IX. 
 
 conveyed a perfect title by the law of those places, 
 without delivery ; and if so, whether the Lex rei siice 
 ought to prevail against it ? If no delivery were re- 
 quired by the law of Louisiana to perfect the title, the 
 Natchez or Mobile purchaser would prevail, even in the 
 Courts of Louisiana, against the purchaser in New 
 Orleans, whatever might be the apparent hardship of 
 the case under all the circumstances. 
 
 § 394. On the other hand, let us take the case of a 
 shipment of goods from England to New Orleans, on 
 account and risk of a merchant domiciled in England, 
 who owes debts in New Orleans ; and a subsequent 
 transfer of the bill of lading in England to a purchaser, 
 after their arrival at New Orleans, but before the unlad- 
 ing thereof Could a creditor of the shipper at New 
 Orleans in such a case, by an attachment, oust the title 
 of the purchaser, because there had been no delivery to 
 the purchaser under the bill of lading ? By the law of 
 England/ and, indeed, by that of many other commer- 
 cial states, the legal title of the goods passes by the. 
 mere indorsement and delivery of the bill of lading, 
 without any actual possession of the goods by the pur- 
 chaser." Would such a title so acquired be devested by 
 the want of a delivery according to the laws of Louis- 
 iana ? If so, it would most materially impair the con- 
 fidence which the commercial world have hitherto re- 
 
 1 Lickbarrow v. Mason, 2 T. R. 63 ; Abbott on Shipp. Pt. 3, ch. 9, 
 § 16. 
 
 - By the old French law, bills of lading were not negotiable, so as to 
 pass a title in the property to the assignee, but only gave him a right of 
 action subordinate to the rights of third persons. 1 Emerig. Assur. ch. 
 11, § 3. By the Code of Commerce, (art. 281,) bills of lading are now 
 negotiable, so as to pass the property to the indorsee. See 3 Pardessus, 
 Pt. 3, tit. 1, ch, 3, art. 727,
 
 CH. IX.] PERSONAL PROPERTY. 657 
 
 posed in the universal validity of the title acquired 
 under a bill of lading. No opinion is intended to be 
 here expressed on the point by the Author ; but it is 
 presented, in order to show, that the doctrine is not 
 without its embarrassments. 
 
 § 395. If, however, the doctrine of the law rei slice is 
 to prevail over that of the law of the place of the trans- 
 fer in some cases, even in respect to movables, what is 
 to be said in relation to assignments of choses in action 
 or debts due by debtors, resident in a foreign country ? 
 Would an attachment before notice defeat such assign- 
 ments in favor of the attaching creditor, although notice 
 of the assignment should be afterwards given to him 
 within a reasonable time ? ^ By the law of some coun- 
 tries, an assignment of a debt is good without any notice 
 to the debtor, and takes effect instanter ; by the law of 
 other countries, notice is necessary to perfect the title." 
 Would an assignment of a debt in the creditor's domicil, 
 where it would be good without any such notice, be in- 
 effectual, if the debtor resided in a country where such 
 notice would be necessary ? Suppose an attachment 
 made by a creditor, in the intervening period between 
 the time of the assignment and the notice ; would the 
 assignment or the attachment be entitled to a prefer- 
 ence ?^ By the Scottish law a creditor may assign his 
 debt to another person ; but the ''transfer is not com- 
 plete, so as to vest the title absolutely in the assignee. 
 
 1 See Sill v. Worswick, 1 H. Bl. 691, G93 ; Bolilen v. Cleveland, 
 5 Mason, R. 174. See Holmes v. Remsen, 4 Johns. Ch. R. 400; Lewis 
 V. Wallis, Sir Thomas Jones, R. 223; 1 Karnes, Equity, B. 3, ch. 8, 
 k 3, p. 844. 
 
 2 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 777, 778. 
 
 3 See In Re, Wilson, cited 1 H. Bl. 691, 092 ; Post, ^ 399 a.
 
 668 CONFLICT OF LAWS. [CH. IX. 
 
 until notice of the assignment, or, (as the Scotch phrase 
 is,) until an intimation of the assignment is given to 
 the debtor.^ If, therefore, an assignment is made, a 
 
 1 See In Re, Wilson, cited 1 H. Bl. 691, 692 ; Post, ^ 399 a ; Selkrig 
 V. Davis, 2 Rose, Bank. Cases, 315 ; Stein's Case, 1 Rose, Bank. Cases, 
 481 ; 2 Bell, Comm. p. 21, 22, 23, 4th edit. ; Id. p. 16 to 23, 5th edit. ; 
 3 Burge, Cotnm. on Col. and For. Law, Pt. 2, ch. 20, p. 777, 778. 
 But see In re Wilson, cited 1 H. Bl. 691, 692. — I have stated the law of 
 Scotland, as I understand it to be stated in the opinion of Lord Eldon, in 
 Selkrig v. Davis, (2 Rose, Bank. Cas. 315 ; 2 Dov?,R. 230, 250,) though 
 it would seem to be exactly like the Massachusetts law stated in the next 
 section (^ 396.) And so it was understood by Lord Hardwicke and Lord 
 Loughborough. The following passage from the judgment of the latter, 
 in Sill V. Worswick, (1 H. Black. R. 691, 692,) gives a very exact view 
 of their opinions. " A question of this nature came before Lord Hard- 
 wicke very largely in the bankruptcy of Captain Wilson. With the lit- 
 tle explanation I am enabled to give of that case, in which the Court of 
 Sessions entirely concurred with Lord Hardwicke, the distinctions will be 
 apparent. There were three different sets of creditors, who claimed, sub- 
 ject to the determination of the Court, on the ground that Wilson had 
 considerable debts due to him in Scotland. By the law of Scotland, debts 
 are assignable, and an assignment of a debt notified to the debtor, which 
 is technically called an intimation, makes a specific lien quoad that debt. 
 An assignment of a debt not intimated to the debtor, gives a right to the 
 assignee to demand that debt ; but it is a right inferior to that of the cre- 
 ditor who has obtained his assignment and intimated it. By the law of 
 Scotland also, there is a process for the recovery of debts, which is called 
 an arrestment. Some of Wilson's creditors had assignments of specific 
 debts intimated to the debtors and completed by that intimation, prior to 
 the act of bankruptcy. Others had assignments of debts not intimated 
 before the bankruptcy. Others had arrested the debts due to him subse- 
 quent to the bankruptcy, and were proceeding under those arrestments to 
 recover payment of those debts. The determination of Lord Hardwicke, 
 and that of the Court of Sessions, entirely concurred. The first class I 
 have mentioned, namely, the creditors who had specific assignments of 
 specific debts, intimated to the debtors prior to the bankruptcy, were hold- 
 en by Lord Hardwicke to stand in the same situation as creditors claiming 
 by mortgage antecedent to the bankruptcy. All, therefore, he would do 
 with respect to them was, that, if they recovered under that decree, they 
 could not come in under the commission without accounting to the other 
 creditors for what they had taken under their specific security. With 
 respect to the next class of creditors, Lord Hardwicke was of opinion,
 
 CII. IX.] PERSONAL PROPERTY. 659 
 
 creditor of the original creditor uiay, before such in- 
 timation, arrest or attach the debt in the hands of the 
 debtor, and will thereby acquire a preference over the 
 assignee. That doctrine, it would seem, has been actu- 
 ally applied in Scotland to debts due by Scottish debtors 
 to foreign creditors, and assigned in the domicil of the 
 latter.^ 
 
 § 396. According to our law, a different doctrine 
 would prevail ; for an assignment operates, ^^cr se, as an 
 equitable transfer of the debt.^ Notice is, indeed, in- 
 dispensable to charge the debtor with the duty of pay- 
 ment to the assignee ; so that, if, without notice, he 
 pays the debt to the assignor, or it is recovered by pro- 
 cess against him, he will be discharged from the debt.^ 
 
 and the Court of Sessions were of the same opinion, that their tide, being 
 a title by assignment, was preferable to the title by arrestment ; and they 
 likewise held, that the arrestments, being subsequent to the bankruptcy, 
 were of no avail, the property being by assignment vested in the assignees 
 under the commission. It is in this sense that an expression lias been 
 used by Lord Mansfield, in one or two cases, in which his language, rather 
 than his decision, has been quoted with respect to the law of Scotland, 
 namely, that the effect of the assignment under a commission of bank- 
 ruptcy was the same as a voluntary assignment. For so the law of Scot- 
 land treats it, in contradistinction to the assignment perfected by intima- 
 tion, and to an assignment which the party might be compelled to make. 
 But it does not follow that it is an assignment without consideration. On 
 the contrary, it is for a just consideration ; not, indeed, for money actually 
 paid, nor for a consideration immediately precedins- the assignment. In 
 that respect, therefore, it is a voluntary assignment. But taking it to be 
 so, it excludes, and is preferable to all others attaching ; it is preferable to 
 all the arresters ; it is preferable to all creditors who stand under the same 
 class ; and to all who have not laken the steps to acquire a specific lien 
 till after the act of bankruptcy committed." 
 
 1 Ibid. 
 
 2 See ante, ^ 395, and note; 3 Burge, Comm. on Col. and For. Law, 
 Pt. 2, ch. 20, p. 777, 778. 
 
 3 Foster v. Sinkler, 4 Mass. R. 450 ; Blake v. Williams, 13 Mass. R. 
 286, 307, 308, 314 ; Wood v. Partridge, 11 Mass. R. 488 ; Dix v. Cobb, 
 4 Mass. R. 508 ; Bohlen v. Cleveland, 5 Mason, R. 174 ; Holmes y. Rem-
 
 660 CONFLICT OF LAWS. [CH. IX. 
 
 But an arrest or attachment of the debt in his hands 
 by an}^ creditor of the assignor, will not entitle such 
 creditor to a priority of right, if the debtor receives 
 notice of the assignment, j;^';?*:/^';^^^? lite, and in time to 
 avail himself of it in discharge of the suit against him.^ 
 
 § 397. In such a case of conflict of laws, the diffi- 
 culty of applying any other than the general principle, 
 that movables are transferable according to the law of 
 the domicil of the owner, is apparent. Let us take the 
 case of a Massachusetts creditor, assigning in that 
 State a debt contracted there, and due to him by a 
 person then domiciled in Scotland. The transfer is in 
 equity complete in the place where it is made, without 
 notice ; but in the place where the debt is due, it is not 
 complete without notice. To give effect, in such a case, 
 to the law of Scotland, in opposition to that of Massa- 
 chusetts, would be to give a locality to the debt, and 
 to subject it to the exclusive operation of the law of 
 the debtor's domicil. And it might involve this most 
 serious difficulty, that if the debtor were afterwards 
 found in Massachusetts, or in any other country than 
 Scotland, he might be compelled to pay the debt to the 
 assignee, although it might have been recovered from 
 him in Scotland by a creditor, in a proceeding by at- 
 tachment of the debt in his hands, he having had no- 
 tice of the assignment, ijcndcntc lite. 
 
 § 398. The reasoning of Lord Konyon, in a celebrated 
 case,- would certainly lead to the conclusion that an 
 
 sen, 4 Johns. Ch. R. 460, 486. See 3 Burge, Comm. on Col. and For. 
 Law, Pt. 2, ch. 20, p. 777, 778 ; Alair v. Schenck, 3 Hill, N. Y. R. 228. 
 But see Story on Equity Jurisp. ^ 421 a, h 1035 a. 
 
 1 Ibid. 
 
 2 Hunter v. Potts, 4 T.R. 182, 192. See Liverm. Diss. p. 140 to p. 159 ; 
 Id. p. 159, ^ 249. See ante, ^ 383.
 
 CH. IX.] PERSONAL PROPERTY. 661 
 
 assignment of personal property, whether it were of 
 goods or debts, according to the law of the owner's 
 domicil, would pass the title in whatever country 
 it might be, unless there were some prohibitory 
 law in that country. Plis language is : " Every person 
 having property in a foreign country, may dispose of 
 it in this ; though, indeed, if there be a law in that 
 country, directing a particular mode of conveyance, 
 that ought to be adopted. But in this case no law of 
 that kind is stated ; and we cannot conjecture that it 
 is not competent to the bankrupt himself, prior to his 
 bankruptcy, to have disposed of his property as he 
 pleased." The same doctrine is maintained by Lord 
 Hardwicke and Lord Loughborough. And all these 
 learned Judges apply it equally to the cases of assign- 
 ments of goods and debts, to voluntary assignments by 
 the party, and also (as we shall more fully see here- 
 after) to assignments by operation of law, as in cases of 
 bankruptcy. The question of prior notice, or intima- 
 tion, does not seem to have been thought by them ma- 
 terial; for they treat the transfer as complete, from the 
 time of the assignment; and, if that has priority in 
 point of time, over an arrest or attachment of the pro- 
 perty, it is to prevail. The law of England would cer- 
 tainly give effect to such an assignment of any goods or 
 debts in England, w^hich were assigned by the owner 
 in a foreign country.^ 
 
 ' See Solomons v. Ross, and other cases sited, 1 H. Bl. 131, 132, note; 
 Sill u. VVorsvvick, 1 H. Bl. 665,690,691; Inre Wilson, cited ibid. p. 691, 
 692, 693; Lewis v. WaWis, T. Jones, R. 223. See also Selkrig v. Da- 
 vis, 2 Rose, Bank. Cas. 97; S. C. Id. 291, 315, 316, 317; Kannes on 
 Equity, B. 3, ch. 8. ^ 4 ; Scott v. Allnutt, 2 Dow & Clark, R. 404, 412 ; 
 Liverm. Diss. p. 159 ; Ogden v. Saunders, 12 Wheat. R. 364, 365. See 
 also Merlin, R6pert. Faillil6, p. 412, 414, 415. 
 CONFL. 56
 
 662 CONFLICT OF LAWS. [CH. IX. 
 
 § 399. Lord Karnes, in commenting on the subject, 
 says : " That, considering a debt as a subject belonging 
 to the creditor, the natural fiction would be (if any were 
 admissible) to place it with the creditor, as in his pos- 
 session, upon the maxim, 3Iohilia non hahent sequelam. 
 Others are more disposed to place it with the debtor." ^ 
 But, in fact, a debt is not a corpus capable of local posi- 
 tion, but purely ^jiis incorporale? And, therefore, where 
 the debtor and creditor live in different countries, and 
 are subjected to different laws. Lord Kames thinks the 
 law of the domicil of the creditor ought to prevail.^ 
 
 1 Kames on Equity, B. 3, ch. 8, ^ ^:. See Morrison's Case, 4 T. R. 
 185; IH. B1.677; ante, ^362; Rodenburg, De Divers. Stat. tit. 2, 
 ch. 5, § 16 ; 2 Boullenois, Appx. p. 47, 48, 49 ; ante, ^ 377. 
 
 2 See ante, ^ 362, 376, 384; 3 Burge, Coram, on Col. and For. Law, 
 Pt. 2, ch. 20, p. 777, 778, 779. 
 
 3 On this point I cannot do better than insert a passage from Mr. Liver- 
 more's Dissertations (p. 162, i§ 251,) illustrative of the same principles. 
 " It was formerly doubted by some, whether personal actions should be 
 considered as movables, and whether they should not be considered to 
 have a location in the domicil of the debtor. But the common opinion 
 seems to be well settled, that, considered actively, and with respect to the 
 interest of the creditor and his representatives, they must be considered as 
 attached to the person of the creditor ; and this, although the payment of 
 the debt is secured by an hypothecation upon an immovable property. 
 Such is the doctrine of Dumoulin. Nomina et jura, et quajcumque incor- 
 poralia, non circumscribantur loco, et sic non opus est accedere ad certum 
 locum. Tum si hsec jura alicubi esse censerentur, non reputarentur esse 
 in re pro illis hypothecata, nee in debitoris persona, sed magis in persona 
 creditoris, in quo activ6 resident, et ejus ossibus inhaerent. Molin. Oper. 
 Comm. ad Consuet. Paris. Tit. 1, De fiefs. ^ 1, n. 9, p. 56, 57. So also 
 Cassaregis, after saying that movables are attached to the person of the 
 owner, and, at his death, will be distributed according to the laws of his 
 domicil, proceeds to consider, what will be the rule with respect to debts, 
 and determines, that they follow the person of the creditor. An ita dicen- 
 dum de nominibus debiiorum, actionibus, ac juribus, qua3 bona neque, di- 
 cuntur mohilia, neque immobilia, sed tertiam speciem bonorum componunt, 
 et dicunliir incorporalia'? Et respondeo aflirmative ; nam slatutum bene 
 comprehendit nomina debitoium, licet forensium, quia eorum obligationes
 
 CH. IX.] PERSONAL PROPERTY. 663 
 
 He then adds : " When the creditor makes a voluntary 
 conveyance, it is to be expected, that he should speak 
 in the style and form of his own country ; and, conse- 
 quently, that the rule of his own country should be the 
 rule here. In a word, the will of a proprietor, or of a 
 creditor, is good title jure gentium.^ that ought to be 
 effectual everywhere. Thus, an assignment made by a 
 creditor in Scotland, according to our forms, of a debt 
 due to him by a person in a foreign country, ought to 
 be sustained in that country, as a good title for de- 
 manding payment ; and a foreign assignment of a debt 
 due here, regular according to the law of the country, 
 ought to be sustained by our judges."^ In another 
 place he adds : "An equitable title, in opposition to one 
 that is legal, can never found a real action {actio in rem.) 
 It cannot have a stronger effect than to found an action 
 against the proprietor to grant a more formal right, or, 
 in his default, that the Court shall grant it. But in 
 the case of a debt, where the question is not about pro- 
 perty, but payment, an equitable title coincides, in a 
 good measure, with a legal title. An assignment made 
 by a foreign creditor, according to the formalities of his 
 country, will be sustained here, as a good title for de- 
 manding payment from the debtor ; and it will be sus- 
 tained, though informal, provided it be good jure gen- 
 tium ; that is, provided, that the creditor really granted 
 the assignment. Such effect hath an equitable title j 
 
 non circurascribuntur locis, ideoque attenditur statutum, cui subjectus est 
 testator. Et haec verier est sententia ; nam debitorum iiomina, lanquam 
 personae cohaireniia, debent regulari secundum slatuta loci, cui creditor 
 est subjectus." Casaregis, In Rubr. Stat. Civ. Genua? de Success, ab 
 Intest. n. 64, 65, Tom. 4, p. 42, 43. 
 1 Karnes on Equity, B. 3, eh. 8, ^ 4.
 
 664 CONFLICT OF LAWS. [CH. IX. 
 
 and a legal title can have no stronger effect." ^ This 
 is in perfect coincidence with the law of England and 
 America.^ 
 
 § 399 «. Questions may arise upon the conflict of 
 laws, where an assignment is validly made of personal 
 property in one country by the owner thereof, and the 
 property is at the time of the assignment locally in an- 
 other country, by whose laws it is liable to be attached 
 by a trustee process or garnishment; and an attach- 
 ment is actually made by a creditor of the assignor be- 
 fore notice of the assignment. In such a case, (as we 
 have seen,)^ if notice thereof is given before judgment 
 in the suit, the assignee will be entitled to maintain his 
 priority of title. But, suppose the Lex fori enforces a 
 different rule, and will in such a case entitle the cre- 
 ditor to a priority of right, and a judgment against the 
 property \ will that judgment conclude the assignee, if 
 the property is afterwards found in the country, where 
 the assignment is made, by whose laws the maxim pre- 
 vails. Qui prior est in tempore, potior est in jure ? Sup- 
 pose the property to be found in a different foreign 
 
 1 Kames on Equity, B. 3, ch. 8, ^ 4, sub finem. See also Huberus, 
 De Confl. Leg. Lib. I, tit. 3, ^ 9, 
 
 2 See Holmes v. Remsen, 4 Johns. Cli. R. 460, 486 ; S. P. 20 Johns. 
 R. 229, 267 ; Moreton v. Milne, 6 Binn. R. 353, 361, 369; Blake v. Wil- 
 liams, 6 Pick. R. 286, 307, 314. — It is a very different question, when 
 an assignment of a debt is lawfully made, whether the assignee can sue the 
 debtor in his own name ; or must sue in the name of the assignor. That 
 point has been sometimes thought to belong to the mode of remedy, 
 rather than tlie right, and of course is to be governed by the lex fori. See 
 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 777, 778; and 
 see also Wolff v. Oxholm, Maule & Selw. ;92, 93. But see Alivon v. 
 Furnival, 1 Cromp. Mees. & Rose. 277, 296 ; post, ^ 420, 566. 
 
 3 Ante, ^ 390. See also Richardson v. Leavitt, I Louis. Ann. R. 430 ; 
 Merchants Bank v. Bank of United States, 2 Id. 659; Chewning v. John- 
 son, 5 Id. 678, 710.
 
 CH. IX.] PERSONAL PROPERTY. 665 
 
 countiy, and the assignee should sue for the same in 
 the courts thereof; what law ought to be regarded in 
 ascertaining the title ; the law of the place of the as- 
 signment, or that of the judgment ? Will it make any 
 difference, whether the assignee might or might not 
 have intervened for his right in the first suit before 
 judgment ? Or, that he happened to be in the country, 
 where the judgment was rendered at the time of the 
 rendition thereof? These are questions more easily 
 put than answered ; and will well deserve the attention 
 of courts of justice, when they are called upon to en- 
 force the rights of creditors in the local tribunals, against 
 the prior claims of title of assignees under assignments 
 of debts, or other personal property, made in a foreign 
 country.^ 
 
 § 400. But where an attachment or garnishment has 
 been made by a creditor according to the local law m 
 sU(Zf before any assignment by the party, or by opera- 
 tion of law in invitum, there is room for a distinction ; 
 and it may well be held, that in such a case, the attach- 
 ing creditor is entitled to a priority over the assignee. 
 For, in such case, the rule may justly prevail, Qui prior 
 est in tempore, potior est in jure; and the creditor is 
 equitably entitled to the benefits of his diligence. A 
 case to this effect is reported by Casaregis, and reasoned 
 out with great force upon general principles. The doc- 
 trine does not, indeed, seem in its nature susceptible of 
 any well-founded doubt ; and it is in entire conformity 
 to the principles on the same subject recognized both 
 in England and in America.- 
 
 1 Ante, ^ 395, 396. 
 
 2 Mr. Livermore,in his Dissertations, (p. 159 to 162,) has given the 
 case, and the reasoning of Casaregis at large. See Selkrig v. Davis, 
 
 56*
 
 666 CONFLICT OF LAWS. [CH. IX. 
 
 [ § 400 a. The Courts of Louisiana have discussed 
 very frequently, of late, the question of the validity of 
 foreign assignments. In one case it was determined, 
 that an assignment of personal property for the prefer- 
 ence of certain creditors, if valid by the law of the 
 place where made, and where all the parties to the as- 
 signment resided, would protect the property, if after- 
 wards found in Louisiana, from the subsequent attach- 
 ment of a creditor residing in the State of the assign- 
 ment.^ And this was confirmed in a later case,^ where 
 it was also held that the same rule applied to real estate 
 situated in Louisiana, and which had been assigned by 
 the owner living in a foreign State. So, where property 
 situated in one State, is there made the subject of an 
 order of Court having jurisdiction, and is afterwards 
 forcibly or fraudulently withdrawn and removed into 
 another State, the Courts of the latter State will not 
 enforce an attachment against such property in favor of 
 third persons, but will order a prompt restitution, or 
 make such decree as will prevent the acquisition of 
 any rights by the attaching creditor.^] 
 
 § 401. There are some other matters connected with 
 this subject, which deserve attention. Upon the sale 
 of goods on credit, by the law of some commercial 
 countries, a right is reserved to the vendor to retake 
 them, or he has a lien upon them for the price, if un- 
 paid ; and, in other countries, he possesses a right of 
 
 2 Rose, Bank. Cases, 291, 310 ; Casaregis, II Cambista Instruito, cap. 7, 
 Tom. 3, p. 64. 
 
 1 Richardson v. Leavitt, 1 Louis. Ann. R. 430. 
 
 2 Merchants Bank v. Bank of United States, 2 Louis. Ann. R. 659. 
 And see Chewning v. Johnson, 5 Louis. Ann. R. 678. 
 
 ^ Paradise u. Farmers and Merchants Bank of Memphis, 5 Louis. Ann. 
 R. 710.
 
 CH. xl] personal property. 667 
 
 stoppage in transitu only in cases of insolvency of the 
 vendee.i The Roman law did not generally consider 
 the transfer of property to be complete by sale and 
 delivery alone, without payment or security given for 
 the price, unless the vendor agreed to give a general 
 credit to the purchaser ; but it allowed the vendor to 
 reclaim the goods out of the possession of the purchaser, 
 as being still his own property. Quod vendidi (say the 
 Pandects) non alitcr Jit accijyieniis, qiiam si aid p'etium 
 nobis solutiim sit, aut satis eo nomine datum, vet etiam fidem 
 hahuerimiis emptori sine idld saiisfactione} The present 
 Code of France gives a privilege, or right of revendica- 
 tion, against the purchaser for the price of goods sold, 
 so long as they remain in the possession of the debtor.^ 
 In respect to ships, a privilege is given by the same 
 Code to certain classes of creditors (such as vendors, 
 builders, repairers, mariners, &c.) upon the ship, which 
 takes effect even against subsequent purchasers, until 
 the ship has made a voyage after the purchase.'^ And, 
 by the general maritime law, acknowledged in most, if 
 not in all, commercial countries, hypothecations and 
 
 1 Abbott on Shipp. Pt. 1, ch. 1, ^ 6 ; Id. Pt. 3, ch. 9, ^ 2 ; 1 Domat, 
 Civil Law, B. 1, tit. 2, § 3, n. 1, 2 ; Id. ^ 12, n. 13 ; Id. B. 3, tit. 1,^5, 
 n. 3, 4, note ; Merlin, R6pert. Revendication, ^ 1, n. 8 ; Code Civil, art. 
 2102 ; 4 Pardessus, Droit Comm. art. 939, 940, 1204 ; 2 Kent, Comra. 
 Lect. 39, p. 540, 3d edit. ; ante, ^ 322, to § 328 ; 3 Burge, Comm. on 
 Col. and For. Law, Pt. 2, ch. 20, p. 770. 
 
 2 Digest, Lib. 18, tit. 1, 1. 19 ; Id. Lib. 14, tit. 4, 1. 5, n. 18. — As to 
 liens for unpaid purchase-money on lands, see ante, ^ 322 b, and Gilman 
 V. Brown, 1 Mason, R. 219, 220, 221. 
 
 3 Code Civil, art. 2102, n. 4. 
 
 4 Code of Commerce, art. 192, 193; 3 Pardessus, Droit Comm. art. 
 942, 950. See also 1 Valin, Comm. 340 ; Abbott on Shipp. Pt. 1, ch. 1, 
 §6.
 
 668 CONFLICT OF LAWS. [CH. IX. 
 
 liens are recognized to exist for seamen's wages, and 
 for repairs of foreign ships, and for salvage.^ 
 
 § 402. The question, then, naturally arises, whether, 
 if such privileges, hypothecations, or liens, are recog- 
 nized in the country, where the contracts, or acts, which 
 give rise to them, are made, they are to be deemed 
 obligatory in every other place, where the property may 
 be found, even against innocent purchasers, or against 
 creditors who would otherwise, by the law of m sitce, 
 have a preference of right ? Would an attachment, for 
 instance, of foreign creditors prevail against them in 
 the tribunals of the domicil of such creditors ? Upon 
 the general principles, already stated, as to the operation 
 of contracts, and the rule that movables have no local- 
 ity, it would seem that these privileges, hypothecations 
 and liens, ought to prevail over the rights of subsequent 
 purchasers and creditors in every other country. That 
 having once attached rightfully in reniy they ought not 
 to be displaced by the mere change of local situation of 
 the property.^ This doctrine was in some measure 
 recognized in an important case in England, where the 
 right of stoppage in transitu was supposed to depend 
 upon doctrines of foreign law, materially different from 
 the law of England. The right conferred by the foreign 
 law was upheld against the claims of English creditors, 
 under circumstances of that case, which were somewhat 
 peculiar, the lien having been given by the foreign law, 
 and enforced in the foreign country, so far as to compel 
 the master, who was in possession of the goods, to re- 
 
 1 See ante, ^ 322 a, ^ 323 ; Conflit des Lois, Revue Etrang. et Franc. 
 Tom. 6, 1840, ^ 33, p. 227, 228. 
 
 2 See Livermore, Dissert, p. 159, ij 249 ; ante, ^ 322.
 
 CH. IX.] PERSONAL PROPERTY. 669 
 
 cognize it, and to agree to hold the property subject 
 to it.i 
 
 § 402 «. Nevertheless, as we have already seen, there 
 is no inconsiderable conflict of opinion among foreign 
 jurists, and even among domestic jurists, as to the ex- 
 tent, to which the right of privilege or priority ought to 
 be allowed in cases, where such privilege or priorit}^ has 
 
 1 Inglis V. Underwood, 1 East, R,. 515 ; Abbott on Shipp. Pt. 3, ch. 9, 
 § 3. On that occasion. Lord Ken yon said : " The decision in this case 
 will not at all trench upon the general rule of law, respecting the right of 
 stopping goods in transitu : but giving the plaintiffs the full benefit of the 
 argument, that the delivery of the goods on board a chartered ship was a 
 delivery to the bankrupt, still the circumstance of the Russian ordinance, 
 set forth in the case, varies it very importantly, and takes it out of the 
 general rule. By that law, the consignors, under the circumstances 
 stated, had a right to repossess themselves of their goods; and they 
 did so in effect ; not indeed by actually taking them out of the ship on 
 board of which they were laden, or by instituting legal process for the 
 recovery of them ; but having a right so to do, which it became unne- 
 cessary to exert, because it was in the first instance acknowledged 
 and submitted to by the captain, in whose possession the property was, 
 they imposed terms upon him, that he should sign bills of lading to 
 their order, upon his compliance with which they suffered the cargo to 
 proceed to the place of its destination, disposable there as events might 
 turn out. The goods are therefore sent with the condition attached to 
 them. The law of Russia in this respect is a very equitable law ; and I 
 have often lamented, that our own code was defective in the same par- 
 ticular. For every man contracting to supply another with goods acts on 
 the presumption, that that other is in a condition to pay for them ;'and 
 therefore when the condition of the consignee is altered at the time of the 
 delivery, and he is insolvent, and no longer capable of performing his part 
 of the contract, honesty and good faith require that the contract should be 
 rescinded. However, the contrary has been settled to be law, unless the 
 consignor stop the goods in transitu before they get into the consignee's 
 possession. But this being a transaction into a foreign country, where a 
 more equitable law in this respect prevails, I am far from being desirous 
 of limiting its operation ; and for the reasons before given, I think that the 
 consignors have substantially availed tiiemselves of it ; and that the de- 
 fendant, by delivering the goods to their order, has done no more than he 
 was bound to do."
 
 670 CONFLICT OF LAWS. [CH. IX. 
 
 arisen under foreign laws, against subsequent purcha- 
 sers/ or against creditors in the country, where the 
 property is subsequently found. Whether an excep- 
 tion would be allowed generally in favor of maritime 
 liens and privileges, and priorities, founded upon the 
 public policy of giving them full effect as matters of 
 public convenience and interest, founded upon the 
 necessities and exigencies of commerce and naval in- 
 tercourse, may admit of question. It is highly probable, 
 however, that most, if not all, commercial nations will 
 adopt such an exception, upon the principle of comity 
 sub miituce vicissitudhiis oUentu. Indeed, upon any other 
 system, bottomry bonds, respondentia bonds, and other 
 maritime hypothecations, would constitute so unsafe a 
 security, that no merchant abroad would venture to 
 lend his money upon so fragile a title, which might be 
 undermined or destroyed by a local law, wholly un- 
 known and unsuspected by him. 
 
 § 403. Hitherto we have been considering cases of 
 voluntary transfers inter vivos ; and we are now natu- 
 rally led to the consideration of involuntary transfers 
 by operation of law in the domicil of the owner, such 
 as are statutable transfers under the Bankrupt or In- 
 solvent Laws of the country of his domicil. The great 
 question here is, whether an assignment under such 
 laws has a universal operation, so as to transfer the 
 movable property of the bankrupt or insolvent in all 
 other countries, to the same extent as a voluntary 
 transfer made by him would, and thus to withdraw it 
 from the process of the local foreign laws, by way of 
 arrest, attachment, or otherwise, issued in favor of the 
 
 1 Ante, ^ 322 to § 328 ; post, ^ 424 to ^ 528.
 
 CH. IX.] PERSONAL PROPERTY. 671 
 
 foreign creditors in the country where the movable 
 property is situate. This question has been very 
 gravely discussed both at home and abroad ; and the 
 Courts of England and the Courts of America have 
 arrived at opposite conclusions respecting it. The 
 Courts of the former country uniformly maintain the 
 doctrine of the universal operation of such an assign- 
 ment upon all movable property, wherever it may be 
 locally situate at the time of the assignment. Many 
 (but not all) of the Courts of the latter country confine 
 the operation of such an assignment to the territory 
 where the party is declared bankrupt or insolvent. 
 The question is worthy of a very full examination, and 
 a summary of the reasoning on each side of the ques- 
 tion, will, therefore, be here brought under review. 
 
 § 404. Those, who maintain, that assignments under 
 Bankrupt or Insolvent laws are, and ought to be, of 
 universal operation to transfer movable property, in 
 whatever country it may be locally situate, adopt rea- 
 soning to this effect.^ The general principle certainly 
 is, that personal property has no locality ; but, that, as 
 to its disposition, it is subject to the law, which governs 
 the person of the owner, that is to say, it is subject to 
 the law of his domicil." There can be no doubt, that 
 the owner may, by a voluntary assignment or sale, 
 made according to the law of his domicil, transfer the 
 title to any person, wherever the property may be 
 
 ^ Mr. Bell has examined this subject with his usual ability and accu- 
 racy, and vindicated at large the propriety of the rule, giving universal 
 effect to assignments in Bankruptcy. See 2 Bell, Comm. B. 8, ch. 2, 
 ^ 1266, p. 684 to p. 690, 4th edit. ; Id. p. 680 to p. 691, 5th edit. 
 
 2 Sill V. Worswick, 1 H. Black. 690, 691 ; Hunter v. Potts, 4 T. R. 
 182.
 
 672 CONFLICT OF LAWS. [CH. IX. 
 
 locally situate.' Now, an assignment under the bank- 
 rupt laws of his domicil is, by operation of law, a valid 
 transfer of all the bankrupt's property, as valid as if 
 made personally by him.^ The law upon his bankruptcy 
 transfers his whole property to the assignees, who thus 
 become lege loci, the lawful owners of it, and entitled to 
 administer it for the benefit of all his creditors. The 
 mode of transfer is wholly immaterial. The only proper 
 question is, whether it is good according to the law of 
 his domicil.^ This rule is admitted and applied in all 
 
 1 In Re, Wilson, cited 1 H. Black, 691, 692. 
 
 2 Sill V. Worswick, 1 H. Black. 691, 692; Hunter v. Potts, 4 T. R. 
 182, 192; Phillips v. Hunter, 2 H. Black. 402, 405 ; Goodwin v. Jones, 
 3 Mass. R. 517. — " It is a proposition," said the Court, in Phillips v. 
 Hunter, 2 H. Black. 402, 403, " not to be disputed, that previous to the 
 bankruptcy the Bankrupts themselves might have transferred or assigned 
 this property, though abroad, as ahsolutely as if it had been in their ovi'n 
 tangible possession in this country ; and it seems, that the assignees under 
 their commission were entitled, by operation of law, to do with it after the 
 bankruptcy, what the Bankrupts themselves might have done." In Potts 
 V. Hunter, (4 T. R. 182, 192,) the Court said ; " The only question 
 here is, whether or not the property in that Island (Rhode Island) passed 
 by the assignment, in the same manner as if the owner (the Bankrupt) 
 had assigned it by his voluntary act. And that it does so pass cannot be 
 doubted, unless there were some positive law of that country to prevent 
 it." " On the general reason of the thing, if there be no positive decision 
 to the contrary, no doubt could be entertained, but that by the laws of this 
 country, uncontradicted by the laws of any other country, where personal 
 property may happen to be, the commissioners of a Bankrupt may dispose 
 of the personal property of a Bankrupt here, though such property be in a 
 foreign country." In Goodwin v. Jones, (3 Mass. R. 517,) Mr. Chief 
 Justice Parsons said ; " The assignment of a Bankrupt's effects may be 
 considered as his own act, as it is in the execution of laws by which he is 
 bound, he himself being competent to make such an assignment, and 
 voluntarily committing the act which authorized the making of it." See 
 also Livermore's Dissert, p. 159, ^ 249, 250. The same doctrine was 
 aflirmed by Lord Mansfield in Wadham v. Marlow, cited 1 H. Black. 437, 
 438, 439, note ; S. S. and S. P. 8 East, R. 314, 316, note z, 
 
 3 Ante, ^ 399, 420, .566.
 
 CH, IX.] PERSONAL PROPERTY. 673 
 
 cases of the succession to movable property in cases of 
 intestacy, where the property passes by mere operation 
 of law, in the same manner, and to the same extent, as 
 where it passes by the voluntary act or transfer inter 
 vivos of the owner, or where it passes by his last will or 
 testament.^ 
 
 § 405. The same principle applies with equal force 
 and general convenience to the disposition of the effects 
 of bankrupts ; for the just and equal distribution of all 
 the funds of that class of debtors becomes the common 
 concern of the whole commercial world. In cases of 
 intestacy, it is presumed to be the intent of the intes- 
 tate, that his movables, which by fiction of law have 
 no locality, independent of his person, should be brought 
 home, and distributed according to the law of his dom- 
 icil. It is equally to be presumed, as the understanding 
 of the commercial world, that the bankrupt's effects 
 should follow his person, and be distributed in the place 
 of his domicil, where the credit was bestowed, or the 
 payment expected according to the laws thereof.^ An 
 assignment under the bankrupt laws ought to be deemed 
 in all respects of equal force and validity with a volun- 
 tary assignment of the party ; for, by implication of 
 law, he consents to all transfers made of his property 
 according to the law of his domicil. Great inconveni- 
 ences would follow from a different proceeding. Differ- 
 ent commissions might issue in different countries, and 
 have concurrent operation sinml ct semel in different coun- 
 tries. And, thus, it would be in the power of the bank- 
 rupt to throw his property under either commission at 
 
 1 Sill V. Worswick, 1 H. Black. 690, 691. 
 
 2 Holmes V. Remsen, 4 Johns. Ch. R. 460, 470 ; Hunter v. Potts, 4 T. 
 R. 182, 192. 
 
 CONFL. 57
 
 674 CONFLICT OF LAWS. [CH. IX. 
 
 pleasure, and to give local preferences to different cred- 
 itors, according to his own partialities or prejudices. 
 Such a state of things, and such conflicting systems, 
 would lead to great public inconvenience and confusion, 
 and be the source of much fraud and injustice, and dis- 
 turb the equality and equity of any bankrupt system in 
 any country.^ 
 
 § 406. There is great wisdom, therefore, in adopting 
 the rule, that an assignment in bankruptcy shall operate 
 as a complete and valid transfer of all his movable 
 property abroad, as well as at home ; and it has accord- 
 ingly received a very general sanction. It is true, that 
 any nation may adopt, if it pleases, a different system, 
 and prefer an attaching domestic creditor to a foreign as- 
 signee or to foreign creditors. But such a course of 
 legislation can hardly be deemed consistent with the 
 general comity of nations, and could scarcely fail to 
 bring on a retaliatory sj^stem of preferences in every 
 other nation injured thereby. But, until such a legisla- 
 tion is positively made, and interposes a direct obstruc- 
 tion, the true rule is, to follow out the lead of the gen- 
 eral principle, that makes the law of the owner's domi- 
 cil conclusive upon the disposition of his personal pro- 
 
 1 Holmes v. Remsen, 4 Johns. Ch. Pv. 471; Phillips v. Hunter, 2 H. 
 Black. 402. — In Phillips v. Hunter, (2 H. Black. 402, 403,) the Court 
 said ; " The great principle of the Bankrupt laws is justice founded on 
 equality. This being the principle of those laws, it seems to follow, that 
 the whole property of the bankrupt must be under their (the assignees,) 
 control, without regard to the locality of that property, except in cases 
 which directly militate against the particular laws of the country, in which 
 it happens to be situated." If the bankrupt laws were circumscribed by 
 the local situation of the property, a door would be open to all the par- 
 tiality and undue preferences, which they were framed to prevent ; it being 
 easy to foresee, how frequently property would be sent abroad with that 
 unjust view immediately previous to and in contemplation of bankruptcy."
 
 CH. IX. J PERSONAL PROPERTY. 675 
 
 perty.^ This reasoning applies in an especial manner to 
 contracts made in the very country, where the party is 
 declared bankrupt.^ 
 
 § 407. There are many authorities in favor of this 
 doctrine. As early as 1723, Lord Talbot, then at the 
 bar, gave an opinion, that the statutes of bankruptcy 
 of England, did not extend to the plantations ; yet that 
 the personal property of an English bankrupt in the 
 plantations passed to the assignees.^ Lord Hardwicke, 
 in a case in judgment before him, adopted and acted 
 upon the doctrine, that an assignment in bankruptcy in 
 England conveyed the personal property of the bank- 
 rupt in foreign countries ; and that their title would 
 overreach that of an attaching creditor after the assign- 
 
 1 Holmes V. Remsen, 4 Johns. R. 471, 472 ; Hunter v. Potts, 4 T. R. 
 182, 192. Sill V. Worswick, 1 H. Black. 691, 693.— In Phillips v. 
 Hunter, (2 H. Black. 402, 405,) the Court said ; " It is true, that the 
 laws of the country, where the property is situated, have the immediate 
 control over it, in respect to its locality, and the immediate protection 
 afforded to it ; yet the country, where the proprietor resides, in respect to 
 another species of protection afforded to him and his property, has a right 
 to regulate his contract relating to that property." And in Hunter v. 
 Potts, (4 T. R. 182,) the Court said ; " Every person having property in 
 a foreign country may dispose of it in this ; though, indeed, if there be a 
 law in that country, directing a particular mode of conveyance, that must 
 be adopted." "If (said Lord Loughborough) the bankrupt happens to 
 have property, which lies out of the jurisdiction of the law of England, 
 if the country, in which it lies, proceeds according to the principles of 
 well regulated justice, there is no doubt, that it will give effect to the title 
 of the assignees." " But if the law of that country preferred him (a 
 creditor) to the assignees, though I must suppose that determination wrong, 
 yet I do not think, that my holding a contrary opinion would revoke the 
 determination of that country, however I might disapprove of the princi- 
 ciple on which that law so decided." Sill v. Worswick, 1 H. Black. 691 , 
 693. 
 
 2 Sill V. Worswick, 1 H. Bl. 691, 693, 694; Phillips v. Hunter, 2 H. 
 Bl. 404, 405 ; Hunter v. Potts, 4 Term R. 182. 
 
 3 Livermore, Diss. 140 ; Beames, Lex. Mercatoria, p. 5, 6, 6th edit.
 
 676 CONFLICT OF LAWS. [CH. IX. 
 
 ment, although at that time it was not made known to 
 the debtor.^ In another case in the Court of Chancery 
 in England, in 1704, where the property of the owner, 
 who was domiciled in Holland, was taken under a com- 
 mission of bankruptcy, and according to the laws of 
 Holland, the administration thereof given to, and vested 
 in persons, who are called Curators of Desolate Estates, 
 it was decided, that the Curators had immediately up- 
 on their appointment a title to recover the debts due to 
 the bankrupt in England, in preference to the diligence 
 of particular creditors seeking to attach those debts.^ 
 In another case in 1769, the same point was decided."'^ 
 These are cases, in which the rule was asserted in favor 
 of foreign assignees."* A like decision in favor of Eng- 
 lish assignees was made in the Court of Chancery in 
 Ireland in 1763.^ Lord Thurlow gave it the sanction 
 of his own great name in a case decided by him in 
 1787.^ 
 
 § 408. The question was most elaborately considered 
 in England in two cases decided in 1791, in which it 
 was solemnly held, that the operation of the bankrupt 
 laws is to vest in the assignees all the personal property 
 of the bankrupt, wherever it may be situate ; and that 
 whenever that property shall be brought into England 
 
 1 In Wilson's Case, cited in 1 H. Bl. 691, 692, and probably decided 
 between 1752 and 1756. See also S. Ceiled in Hunter v. Potts, 4 T. R, 
 186, 187. 
 
 2 Solomons v. Ross, 1 H. Bl. 131, note ; Id. 601 ; S. C. Cook's Bank. 
 Laws, 306, 4lh edit. 
 
 a Jollet V. Deponthieu, 1 H. 151. 132, note ; Id. 691. 
 
 4 Ibid. 
 
 5 Neale v. Cottingham, 1 H. Bl. R. 132, note ; S. C. cited in Hunter 
 V. Potts, 4 T. R. 194, and Cooke's Bank. Laws, p. 303, 4th edit., 1799. 
 See also Quelin v. Moisson, 1 Knapp, Appeal R., 265, note. 
 
 6 Ex parte Blakes, 1 Cox, R. 398.
 
 CH. IX.] PERSONAL PROPERTY. 677 
 
 by any person who lias obtained it, the assignees will 
 have a right to recover it of him, for the benefit of all 
 the creditors ; and, consequently, that an attachment 
 and recovery of such property, made by a creditor in a 
 foreign country after such assignment, will be held in- 
 operative ; upon the principle, that the title, which is 
 prior in point of time, ought to obtain preference in 
 point of right and law.^ Upon a writ of error the gen- 
 eral doctrine maintained in these cases was affirmed ; 
 but in its actual application it was restricted to attach- 
 ments made by British creditors against British debtors. 
 In this state the doctrine remained until a very recent 
 period, when in the case of the bankruptcy of an Eng- 
 lish partner in a Scotch partnership, it was discussed 
 anew. A commission of bankruptcy was issued in 
 England ; and subsequently an arrest, attachment, or 
 sequestration, was made, by a creditor, of debts due to 
 the bankrupt in Scotland. The question then arose, 
 whether the assignees, or the attaching creditor, was 
 entitled to priority ; and this depended on the question, 
 whether an English commission of bankruptcy passed 
 to the assignees the title to property, or debts locally 
 situate, or due in Scotland. The Court of Session in 
 Scotland held, that it did;^ and upon appeal, this judg- 
 ment was affirmed by the House of Lords. " One 
 thing" (said Lord Eldon) "is quite clear, that there is 
 not in any book any dictum or authority that would 
 
 1 Sill V. Worswick, 1 H. Bl. 665, 690, 691, 694; Hunter u. Potts, 
 4 T. R. 192; S. C. in Err. 2 H. Bl. 402. 
 
 ~ The Court of Session, in Scotland, gave very elaborate opinions on 
 this subject, in the Royal Bank of Scotland v. Cuthbert, commonly cited 
 as Stein's case, 1 Rose, Bank. Cases, Appx. 412 ; 2 Rose, Bank. Cases, 
 91, 78. See also Smith v. Buchanan, 1 East, R. 6 ; 2 Bell, Comm. 684 
 to 687, 4th edit. ; Id. p. 680 to 691, 5th edit. 
 57*
 
 678 CONFLICT OF LAWS. [CIL IX. 
 
 authorize me to deny, at least in this place, that an 
 English commission passes, as with respect to the bank- 
 rupt and his creditors in England, the personal property 
 he has in Scotland or in any foreign country." ^ 
 
 ' Selkrig v. Davis, 2 Rose, Bank. Cases, 291, 214 ; S. C. 2 Dow. R. 
 230, 250 ; 2 Rose, Bank. Cases, 97. See also Ex parte, by Dobrey, 
 8 Ves. 82 ; 2 Bell, Comm. 684 to 687, 4th edit. ; Holmes v. Remsen, 
 4 Johns. Ch. R. 460 ; S. C. 20 Johns. R. 229. — The Judgment of Lord 
 Eidon, which was affirmed apparently with entire unanimity, contains 
 many striking remarks upon the difficulties attendant upon any other sys- 
 tem of international jurisprudence. The following extracts are particu- 
 larly valuable to be submitted to the consideration of the American Courts. 
 " In whatever way a Scottish sequestration may be enforced, the distribu- 
 tion of a bankrupt's effects under it is perfectly different from what it is 
 under an English commission of bankruptcy. The Scottish law cuts down 
 all securities that have been made or given within a certain number of 
 days prior to the issuing of the sequestration, whether they have been 
 given bona fide, or given, as we should say, in contemplation of bank- 
 ruptcy. On the other hand, in our law, though the approximation of the 
 security to the date of the commission may be evidence that it was given 
 in contemplation of bankruptcy, yet it is but evidence; and the security 
 may be perfectly good. Again, in England, a man cannot become a 
 bankrupt without committing an act of bankruptcy. The cominission 
 must be founded on that act of bankruptcy ; and there are various other 
 differences applying to the property of a bankrupt, as administered under 
 an English commission, or, vice versa, as distributed by the rules, and 
 according to the forms of a Scottish sequestration. If, my Lords, you 
 attempt to obviate these inconveniences by a coexisting sequestration and 
 commission, the difficulty is tenfold greater, unless the one should be used 
 merely as the means of assisting the distribution of the funds on the other. 
 What personal property shall belong to the one proceeding, and what to 
 the other proceeding, is no ordinary difficulty. The counsel for the ap- 
 pellant say there is no difficulty. — That a debt owing to the house in 
 Scotland, wherever the debtor lives, ought to go to the Scotch sequestra- 
 tion ; and, in like manner, that the debt owing to the house in England, 
 wherever the debtor lives, should go to the commission. But the house 
 may be constituted of persons, of whom it may be difficult to say, whether 
 a man is a Scotchman or an Englishman. It may happen, that a house 
 is composed of persons, some of whom reside in Scotland and some in 
 England. I should wish to know, not only, how the joint debts due to 
 one firm, and the joint debts due to the other, are to be distributed ; but 
 where separate debts are due to each, whether the separate debts are to
 
 / 
 
 CH. IX.] PERSONAL PROPERTY. 679 
 
 § 409. This is now, accordingly, the settled law of 
 England, in which the following propositions are firmly 
 established ; first, that an assignment under the bank- 
 rupt law of a foreign country passes all the personal 
 property of the bankrupt locally situate, and debts 
 owing in England ; secondly, that an attachment of 
 such property by an English creditor, after such bank- 
 ruptcy, with or without notice to him, is invalid to 
 overreach the assignment ; thirdly, that in England the 
 same doctrine holds under assignments by her own 
 bankrupt laws, as to personal property and debts of the 
 bankrupt in foreign countries ; fourthly, that, upon 
 
 be a fund of distribution under the English commission, or under the 
 Scottish sequestration, or what is to become of them. All these difficulties 
 certainly belong to this case. But, notwithstanding that, one thing is 
 quite clear ; there is not in any book, any dictum or authority that would 
 authorize me to deny, at least in this place, that an English commission 
 passes, as with respect to the bankrupt and his creditors in England, the 
 personal property he has in Scotland or in any foreign country. It is ad- 
 mitted, that the assignment under the English commission, as between 
 the bankrupt and the English and Scotch proprietors, passes the Scotch 
 property, and vests in the assignees, when the Scotch creditors have not 
 used legal diligence. I think the case was put at the bar thus ; That the 
 commission of bankruptcy operated so as to bring into the fund the Scotch 
 personal property, provided that such personal properly was not arrested 
 by legal diligence in Scotland, prior to the intimation of the assignment in 
 Scotland. It was therefore argued, that this was to be put on the same 
 footing as the case of tbe assignation of a particular debt to a particular 
 individual. Now, your Lordships need not be told that, by the law of 
 Scotland, if B. assign a debt, which is due from C. to B., a creditor of B. 
 may arrest that debt in the hands of the debtor, notwithstanding the as- 
 signment, unless the assignee has given an intimation formally to the per- 
 son by whom the debt is owing. That must be admitted. Upon that it 
 has been insisted here, that no intimation has been given, and that this 
 subsequent arrestment in 1798 ought to have the preference of the title of 
 the assignees, under the commission, that was sued out in the year 1782." 
 2 Rose, Bank. Cases, 314 to 316. He afterwards proceeded to decide," 
 that no intimation was necessary ; and if necessary, it was given. Id. 318, 
 319. See Quelin v. Moisson, 1 Knapp, Rep. 2G5.
 
 680 CONFLICT OF LAWS. [CH. IX. 
 
 principle, all attachments made by foreign creditors, 
 after such assignment in a foreign country, ought to be 
 held invalid ; sixthly, that at all events a British cre- 
 ditor -will not be permitted to hold the property acquired 
 by a judgment under any attachment made in a foreign 
 country after such assignment ; and seventhly, that a 
 foreign creditor, not subjected to British laws, will be 
 permitted to retain any such property acquired under 
 any such judgment, if the local laws (however incor- 
 rectly upon principle) confer on him an absolute title.* 
 There is no inconsiderable weight of American authority 
 on the same side ; but it must be admitted, that the 
 preponderating authority is certainly now the other 
 way.- 
 
 § 410. The reasoning, which is urged in support of 
 what may be deemed the American Doctrine, is to the 
 
 1 2 Bell, Coram. ^ 1266, p. 687 to 690, 4th edit. ; Id. p. 680 to 690, 
 5th edit. ; Holmes v. Remsen, 4 Johns. Ch. R. 560 ; S. C. 20 Johns. R. 
 229 ; Dwarris on Statutes, 650, 651. 
 
 2 Mr. Chief Justice Parsons certainly held this opinion in Goodwin v. 
 Jones, 3 Mass. R. 517. And Mr. Chancellor Kent has sustained it in one 
 of his most elaborate judgments, which will well reward a diligent perusal. 
 Holmes v. Remsen, 4 Johns. Ch. R. 460. This is also, as we shall see, 
 the law in France and Holland. Post, ^ 417. See Parish v. Seton, 
 Cooper's Bank. Law, 27; Holmes v. Remsen, 4 Johns. Ch. R. 484; S. 
 P. 20 Johns. R. 258 ; Blake v. Williams, 6 Pick. R. 312, 313 ; Merlin 
 Repertoire, Faillit6 et Banqueroute, Art. 10. Mr. Chancellor Kent, in 
 his Commentaries (2 Kent, Coram. Lect. 37, p. 404 to 408, 3d edit.) has 
 with great candor admitted, that the American doctrine is now established 
 the other way by a preponderance of authority ; although he has an undis- 
 guised distrust of the validity of its foundation. There are not a few 
 jurists in America, each of whom may be disposed to use on this occasion 
 the language of a great orator of antiquity, " Ego assentior Scffivolae." 
 See Livermore's Diss. § 223 to 248, p. 140 to 158. There are in Mr. 
 Henry's Appendix to his work on Foreign Law, p. 251 to p. 258, some 
 curious opinions given by Counsel in 1715, as to the effect of an attach- 
 ment after a foreign bankruptcy. See also Devisme v. Martin, Wyelh's 
 Virg. R. 133.
 
 CH. IX.] PERSONAL PROPERTY. 681 
 
 following effect. It is admitted, that the general rule 
 is, that personal property, including debts, has no local- 
 ity, but follows, as to its disposition and transfer, the 
 law of the domicil of the owner. But every country 
 may by positive law regulate, as it pleases, the disposi- 
 tion of personal property found within it ; and may 
 prefer its own attaching creditors to any foreign as- 
 signee ; and no other country has any right to question 
 the determination. When there is no positive law, the 
 general rule is to govern, with the exception of such 
 cases as fall within the known principle of Huberus, 
 that it is not prejudicial to the State, or to the just 
 rights of its citizens. And this exception is the very 
 ground upon which the objection to the ubiquity of 
 operation of the bankrupt laws of a country, as respects 
 the personal estate of the bankrupt, is to be rested.^ 
 
 § 411, There is a marked distinction between a 
 voluntary conveyance of property by the owner, and a 
 conveyance by mere operation of law in cases of bank- 
 ruptcy in invitiun. Laws cannot force the will, nor 
 compel any man to make a conveyance. In place of a 
 voluntary conveyance of the owner, all that the Legis- 
 lature of a country can do, when justice requires it, is 
 to assume the disposition of his property in invitum. 
 But a statutable conveyance, made under the authority 
 of any Legislature, cannot operate upon any property, 
 except that which is within its own territory. This 
 makes a solid distinction between a voluntary convey- 
 ance of the owner and an involuntary legal conveyance 
 by the mere authority of law. The former has no rela- 
 
 1 Blake v. Williams, G Pick. 286 ; Olivier v. Townes, 14 Martin, R. 
 93, 97 to 100; Milne v. Moreton, 6 Binn. 353; Very v. McHenry, 
 29 Maine, 208.
 
 682 CONFLICT OF LAWS. [CH. IX. 
 
 tion to place ; the latter, on the contrary, has the strict- 
 est relation to place. This distinction is insisted on 
 with great force by Lord Karnes.^ It is, therefore, ad- 
 mitted, that a voluntary assignment by a party, accord- 
 ing to the law of his domicil, will pass his personal 
 estate, whatever may be its locality, abroad as well as 
 at home. But it by no means follows, that the same 
 rule should govern in cases of assignments by operation 
 of law. 
 
 § 412. The true rule in such cases is to hold, that 
 the assignees are in the same situation, as the bankrupt 
 himself, in regard to foreign debts. They take the pro- 
 perty under the assignment, subject to every equity be- 
 longing to foreign creditors, and subject to the remedies 
 provided by the laws of the foreign country, where the 
 debt is due ; and when they are permitted to sue in a 
 foreign country, it is not as assignees, having an inte- 
 rest, but as the representatives of the bankrupt. They 
 stand upon the footing of administrators only, with a 
 right to sue for the benefit of all the creditors. But 
 our local law will not regard the choses in action of the 
 debtor, as exclusively appropriated to the use of such 
 assignees ; and a preference can be gained by them 
 only by pursuing the remedies, which our local laws 
 afford. This was formerly the rule in England.^ 
 
 § 413. Nor can it be truly said, that an assignment 
 by the bankrupt laws is with the consent of the bank- 
 rupt, because he assents by implication to such laws. 
 This is a very unsafe and dangerous principle, on which 
 to risk the doctrine ; for in the same way it may be 
 
 1 Kames on Equity, B. 3, ch. 8, § 6 ; Remsen v. Holmes, 20 Johns. 
 R. 258, 259 ; Moreton v. Milne, 6 Binn. 353, 369; ante, ^ 351 b. 
 
 2 See Mavvdesley v. Paik, cited 1 H. Black. R. 680.
 
 CH. IX.] PERSONAL PROPERTY. 683 
 
 said, that a man, committing a crime, for ■which his 
 estate is forfeited, voluntarily consents to its transfer. 
 But the principle, whether correct or not, can only 
 apply to cases, where the debtor and creditor belong to 
 the same country. It is wholly inapplicable to foreign 
 creditors. 
 
 § 414. Besides; national comity requires us to give 
 effect to such assignments only so far as may be done 
 without impairing the remedies, or lessening the secu- 
 rities, which our laws have provided for our own citizens. 
 The rule is; Qiiatenus sine prejiidicio indulgeniiwn fieri po- 
 test} And after all, this is mere comity, and not inter- 
 national law. All comity of this sort must be built up 
 in a great measure upon the doctrine of reciprocity ; 
 and this is extremely difficult from the known diversi- 
 ties in the jurisprudence of different nations.^ It would 
 prejudice the rights and remedies of our citizens in our 
 own courts, to suffer the assignments under foreign 
 bankrupt laws to prevail over their own diligence, in 
 seeking remedies against their debtors in our own courts. 
 If there is in such cases a conflict between our own laws 
 and foreign laws, as to the rights of our citizens, and 
 one of them must give way, our own laws ought to pre- 
 vail.^ The most convenient and practical rule is, that 
 statutable assignments, as to creditors, shall operate 
 intra-territorially only. If our citizens conduct them- 
 selves according to our laws in regard to the property of 
 their debtors, found within our jurisdiction, it is reason, 
 able, that they should reap the fruits of their diligence- 
 
 ' Hubenis, Lib. 1, tit. 3, De Conflict. Leg. ^ 2. 
 
 2 Blake v. Williams, 6 Pick, R. 26!J, 313, 314, 315; Milne v. Moreton, 
 6 Binn. 353, 375 ; Remsen v. Holmes, 20 Johns. R. 229, 263, 264. 
 
 3 Potter V. Brown, 5 East, R. 131 ; ante, ^ 326.
 
 684 CONFLICT OF LAWS. [CH. IX. 
 
 and not be sent to a foreign country to receive such a 
 dividend of their debtors effects, as the foreign laws 
 allow. If each government in cases of insolvency should 
 sequester, and distribute the funds within its own juris- 
 diction, the general result will be favorable to the inte- 
 rest of creditors, and to the harmony of nations. This 
 is the rule adopted in all cases of administration of the 
 property of deceased persons ; and there is no real diffe- 
 rence between the principle of those cases, and of cases 
 of bankruptcy.^ 
 
 § 415. Down to the time of the American Revolu- 
 tion, this may be fairly deemed to have been the Eng- 
 lish doctrine. It has since been changed. Even in 
 England the principle has not as yet been applied in 
 favor of any foreign countries, except such as have 
 bankrupt laws in form pr substance ; and we have none 
 in our country.- It can make no difference in the case, 
 whether the debt of the attaching creditor accrued 
 here, or in foreign countries ; for in either case the 
 question is not, as to the validity of the contract ; but 
 as to a collateral matter, that is to say, the effect to be 
 given to it, in a conflict between rights growing out of 
 our own laws, and those of a foreign country.^ 
 
 § 416. Neither is it true, that even the voluntary 
 conveyances of parties in all cases are to be held valid, 
 where they are prejudicial to the rights and remedies of 
 our own citizens. In Massachusetts, for instance, it has 
 been held, that a voluntary assignment by a debtor of 
 
 1 Remsen v. Holmes, 20 Johns. R. 229, 265 ; Milne v. Moreton, 
 6 Binn. R. 353, 361 ; Blake v. Williams, 6 Pick. R. 286. 
 
 2 Remsen v. Holmes, 20 Johns. R. 229 ; Blake v. Williams, 6 Pick. R. 
 286; Milne v. Moreton, 6 Binn. R. 353; Wallis v. Patterson, 1 Har. & 
 McHen. R. 463 ; Abraham v. Plestero, 3 Wendell, R. 538, 549, 550. 
 
 ^ Milne V. Moreton, 6 Binn. 360,
 
 CH. IX.] PERSONAL PROPERTY. 685 
 
 all his property, made in Pennsylvania for the benefit 
 of creditors generally, shall not prevail over a subse- 
 quent attachment of the funds of the debtor made after 
 the assignment ; because such an assignment would be 
 void by the laws of Massachusetts, if made in that 
 State, as being in fraud of creditors ; and it is unjust 
 and unequal in its effects, and prejudicial to the citi- 
 zens of the State. In such a case, therefore, the party, 
 who shall by process first attach the debt, or seize the 
 property, ought to prevail whether creditor or assignee.^ 
 § 417. It is admitted, in the reasoning in the Ameri- 
 can cases, that the old law of France and Holland is 
 in coincidence with the British doctrine.^ The modern 
 law of those countries is equally decisive in its support ; 
 and very recent cases have given it a complete confirm- 
 ation in their tribunals. The principal grounds of 
 their decisions may be summed up in the following 
 propositions. (1.) That the law of the domicil may 
 rightfully devest the debtor of the administrator of his 
 
 1 Ingrahamv. Geyer, 13 Mass. R. 146; S. C. cited 6 Pick. R. 307. 
 See also Olivier v. Tovvnes, 6 Pick. R. 97 to 101. — This summary of the 
 American reasoning is principally extracted from the three leading cases 
 of Milne v. Moreton, 6 Binn. R. 353, Remsen v. Holmes, 20 Johns. R. 
 229, and Blake v. Williams, 6 Pick. R. 286, where the subject is very 
 elaborately discussed. The same doctrine vpill be found supported in other 
 American cases, cited in 2 Kent, Coram. Lect. 37, p. 406 to 408, 3d edit. 
 See also Olivier v. Townes, 14 Martin, R. 93, 99 ; Harrison v. Sterry, 5 
 Cranch, R. 289 ; 0>jden v. Saunders, 12 Wheaton, R. 213; Id. 360 to 
 369 ; Saunders v. Williams, 5 New Hamp. R. 213 ; Plestero v. Abraham, 
 1 Paige, R. 237; S. C. 3 Wendell, R. 538; Fox v. Adams, 5 Greenl. 
 R. 245; Wallisu. Paterson, 1 Harr. & McHen. R. 236, 463; Ogden v. 
 Saunders, 12 Wheat. R. 213, 359, 360, 361, 362 ; ante, ^ 399 to 401. 
 
 2 Holmes v. Remsen, 4 Johns. Ch. R. 484 ; Remsen v. Holmes, 20 Johns. 
 R. 258; Blake v. Williams, 6 Pick. R. 312, 313; ante, ^09, note; 
 Henry on Foreign Law, p. 127 to 135 ; Id. p. 153 to 160 ; Id. p. 248 to 
 250. 
 
 CONFL, 58
 
 686 CONFLICT OF LAWS. [CH. IX. 
 
 property, and place it under the administration of as- 
 signees or syndics. (2.) That laws, whose effects are 
 to regulate the capacity and incapacity of persons, their 
 personal actions, and their movables, everywhere be- 
 long to the category of personal statutes. (3.) That 
 it is a matter of universal jurisprudence, and especially 
 of that of France and the Netherlands, that the debts, 
 actively considered, of an inhabitant against a foreigner, 
 are deemed a part of his movable property, and have 
 their locality in the place of domicil of the creditor.' 
 At the same time, it is admitted, that a purchaser from 
 the bankrupt, in a foreign country, of property there 
 locally situate, would be entitled to hold it against the 
 assignees, if, at the time, he had no knowledge of any 
 bankruptcy, or of any intent to defraud creditors.^ 
 
 § 418. The American doctrine has been followed out 
 to another result. Suppose (as was the fact in one 
 case) after a commission and assignment in bankruptcy 
 in England, the bankrupt should voluntarily make a 
 confirmatory conveyance in aid of the commission ; the 
 question is, whether it will have the effect of a volun- 
 tary assignment, so as to defeat a subsequent attach- 
 ment in America ? It has been held, by a learned 
 judge in New York, that it will not ; because, by the 
 law of England, the commission devests the title of the 
 bankrupt in all his property throughout the world ; 
 and he no longer has any capacity to convey it ; but in 
 regard to that property, he is to be treated as civiliter 
 mortims.^ There is great difficulty in maintaining this 
 
 1 Merlin Repertoire, Faillite and Hanqiieroute ^ 2, 3, art. 10, p. 412 ; 
 Henry on Foreign Law, p. 127 to 135 ; Id. 175. 
 
 2 Merlin, Id. p. 415, 416. 
 
 3 Mr. Chief Justice Plait, in Remscn v. Holmes, 20 Johns. R. 267,
 
 CH. IX.] PERSONAL PROPERTY. 687 
 
 doctrine. For if the statutable assignment does, per se 
 transfer the personal property of the bankrupt in foreign 
 countries to the assignees, and devest all his title to it, 
 then it would seem to follow, that a subsequent attach- 
 ment of it must be wholly inoperative, because he has 
 no longer any attachable interest in it. We are not at 
 liberty to treat the property, as still in him for one pur- 
 pose, and out of him for another. The doctrine of Mr. 
 Chancellor Kent is certainly here far more satisfactory, 
 giving to such a voluntary assignment a full confirma- 
 tory effect.^ 
 
 § 419. There are some other questions, arising from 
 the operation of foreign bankrupt laws, and other ana- 
 logous systems of proceeding for the benefit of creditors 
 generally, in invitum, which have come under judicial 
 cognizance, and deserve attention. In the first place, 
 suppose a British subject is declared bankrupt, while 
 he is on a voyage in Iransitu from England to America ; 
 and he has a large shipment of property with him ; is 
 he entitled to hold it when it arrives in America ? Or, 
 can his assignees maintain a suit against him, or against 
 other persons, holding it for his use, not being credit- 
 ors ? It has been held, by a learned Chancellor of 
 New York, (Walworth,) that the assignees are entitled 
 to recover, upon the ground, that the assignment ope- 
 rates as a good conveyance to them against the bank- 
 rupt, and those holding for his use. On that occasion, 
 the learned Judge stated the distinction between that 
 case, and the preceding cases. " In those cases," said 
 he, "the contest was between foreign assignees and 
 domestic creditors, claiming under the laws of the 
 
 1 Holmes v. Remsen, 4 Johns. Ch. R. 489.
 
 688 CONFLICT OF LAWS. [CH. IX. 
 
 countiy where the property was situate, and where the 
 suits were brought. The question in those cases was, 
 whether the personal property of the debtor was to be 
 considered as having locality, for the purpose of giv- 
 ing a remedy to the creditors residing in the country, 
 where the property was in fact situated at the time of 
 the foreign attachment. In this case, the controversy 
 is between the bankrupt and his assignees and credit- 
 ors, all residing in the country under whose laws the 
 assignment was made. Even the propert}^ itself at the 
 time of assignment was constructively within the juris- 
 diction of that country, being on the high seas, in the 
 actual possession of a British subject. Under such cir- 
 cumstances the assignment had the effect to change the 
 property, and devest the title of the bankrupt, as if the 
 same has been sold in England under an. execution 
 against him, or he had voluntarily conveyed the same 
 to the assignees for the benefit of his creditors." ^ 
 Upon an appeal, however, this doctrine was not in 
 terms confirmed by the appellate Court ; and some of 
 the Judges dissented from the doctrine of the Chancel- 
 lor. But the case was ultimately reversed on another 
 point.^ 
 
 1 Plestero v. Abraham, 1 Paige, R. 236 ; S. C. 3 W^end. R. 538. 
 
 2 Abraham v. Plestero, 3 Wend. 538. — It is difficult to perceive, how 
 the doctrine of the Chancellor, as to the operation of the British bankrupt 
 laws upon British subjects and their property in transitu, can be answered. 
 The transfer must be admitted to be operative to devest the bankrupt's 
 title to the extent of an estoppel, as to his own personal claim in opposi- 
 tion to it ; for the law of America, be it what it may, had not then ope- 
 rated upon it. It was not locally within our jurisdiction. No one could 
 doubt the right of the assignee to personal property locally in England at 
 the time of the assignment. In what respect does such a case differ from 
 a case where it has not passed into another jurisdiction] Is there any 
 substantial difference between its being on board of a British vessel and
 
 CH. IX.] PERSONAL PROPERTY. 689 
 
 § 420. It is obvious, that the great question involved 
 in this case was, whether an assignment under a foreign 
 bankrupt law operates as a transfer of personal property 
 in this country. It matters not, in respect to the bank- 
 rupt himself, or others claiming under him, not being- 
 creditors or purchasers, whether it operates as a legal, 
 or as an equitable transfer. In either way it will devest 
 him of his beneficial interest. Upon this point, it is 
 impossible not to feel, that the general current of Ame- 
 rican authority is in perfect coincidence with that of 
 England, in favor of the title of the assignees.^ In 
 most of the cases in which assignments under foreign 
 bankrupt laws have been denied to give a title against 
 attaching creditors, it has been distinctly admitted, that 
 the assignees might maintain suits in our courts under 
 such assignments for the property of the bankrupt.^ 
 This is avowed in the most unequivocal manner in the 
 leading cases in Pennsylvania and New York, already 
 cited, and it is silently admitted in those in Massachu- 
 
 its being on board of an American vessel on the high seas? See ante, 
 § 391. 
 
 1 See 1 H. Black. 691 ; 6 Maulc & Selw, 126 ; 1 East, R. 6 ; Cooke's 
 Bank. Laws, (4th edit.) 304 ; Doug. R. 161, 170 ; ante, ^ 403 to ^ 410. 
 
 2 In Alivon v. Furnival, 1 Cromp. Mees. & Rose. 296, it was held, 
 that if by the law of the foreign country the assignees or syndics of a 
 foreign Bankrupt may sue there, the same right to sue in England will be 
 allowed by the comity of nations ; and that if there are three assignees or 
 syndics appointed under the foreign law, that two may by that law sue 
 without joining the third, the same right to sue by two will be acknow- 
 ledged and enforced by the same comity in England. Upon that occasion 
 Mr. Baron Parke, in delivering the opinion of the Court, said : "This is 
 a peculiar right of action created by the law of the country, and we tliink 
 it may by the comity of nations be enforced in this, as much as the right 
 of foreign assignees or curators, or foreign corporations appointed or cre- 
 ated in a different way from that which the law of this country requires." 
 See ante, ^ 355, 399, 400 ; post, ^ 565, 506. 
 
 58*
 
 690 CONFLICT OF LAWS. [CH. IX. 
 
 setts.i And unless the admission can be overthrown, 
 it surrenders the principle ; for no one will contend, 
 that the assignees can sue either in law or equity in 
 our courts, unless they possess some title under the as- 
 signment. The point has hitherto been a struggle for 
 priorit}^ and preference between parties, claiming against 
 the bankrupt under opposing titles ; the assignees 
 claiming for the general creditors, and the attaching 
 creditors for their separate rights. 
 
 § 421. It is true, that Mr. Chief Justice Marshall, in 
 delivering the opinion of the Court in Harrison v. 
 Sterry,^ used the following language : " As the bank- 
 rupt law of a foreign country is incapable of operating 
 a legal transfer of property in the United States, the 
 remaininc: two thirds of the funds are liable to the at- 
 taching creditors, according to the legal preference 
 obtained by their attachments." But the very terms 
 of this statement show, that the Court were examining 
 the point, only as between the conflicting rights of the 
 assignees and those of the attaching creditors, and not 
 in relation to the bankrupt himself And this is man- 
 ifestly the light in which the doctrine was contemplated 
 by the majority of the Court in a subsequent case.^ 
 
 § 422. In cases of partnership, where there are differ- 
 ent firms in different countries, or some of the partners 
 reside in one, and some in another country, there are 
 
 1 Holmes V. Remsen, 4 Johns. Ch. R. 485 ; S. C. 20 Johns. R. 262, 
 263; Mihie v. Moreton, 6 Binn. 303, 374; Livermore's Diss. 142, 152 ; 
 Blake v. Williams, 6 Pick. R. 305 ; Ino;raham v. Gcyer, 13 Mass. R. 146, 
 147; Goodwin v. Jones, 3 Mass. R. 517. But see contra, Orr v. Amory, 
 11 Mass. R. 25. See ante, \ 399, note ; post, ^ 566. 
 
 2 5 Cranch, R. 289, 302. See also Ogden v. Saunders, 12 Wheaton, 
 R. 61, 362, 363, 364. 
 
 3 Ogden V. Saunders, 12 Wheaton, R. 359 to 365.
 
 CH. IX.] PERSONAL PROPERTY. 691 
 
 still more embarrassing difficulties attendant upon 
 questions of foreign bankrupt assignments. If one 
 partner is declared a bankrupt under a foreign com- 
 mission, his share and interest only in the funds there 
 can pass to his assignees, as against the partners in 
 another country. And of course they must take, sub- 
 ject to an account between all the partners, and stand 
 precisely as the bankrupt does, on a settlement of all 
 claims as between debtor and creditor.^ Let us suppose 
 the case of a partnership in the British West Indies, 
 and in England ; and one of the partners resides in 
 England and becomes bankrupt ; and an assignment is 
 made ; and afterwards a British West India creditor, of 
 the firm, attaches a debt, due to the firm in the West 
 Indies, and procures a judgment and satisfaction there. 
 Can he be compelled to refund the same upon a suit 
 brought by the assignees against him in England ? Sir 
 William Grant, in a case of this sort, decided in the 
 negative ; and on that occasion seemed to have great 
 difficulty in reconciling his mind to the decisions upon 
 the more general questions of satisfaction obtained 
 abroad by a creditor in case of a sole bankruptcy. He 
 held, that the bankruptcy of the partner resident in 
 England could not affect the partners remaining in the 
 West Indies, in a country not subject to the bankrupt 
 law, so as to devest them of the management of the 
 partnership concerns, or of the disposition of the part- 
 nership property. If they applied the partnership as- 
 sets in the payment of the partnership debts ; or if, in 
 a legal course of proceedings against them, the debts 
 were recovered according to the law of the country, no 
 
 1 Harrison v. Sterry, 5 Cranch, R. 289, 302.
 
 692 CONFLICT OF LAWS. [cH. IX. 
 
 jurisdiction could exist in England to force the partner- 
 ship, or the creditor to refund what he had so received or 
 so recovered. Under such circumstances the foreign 
 partners and foreign creditors must be left to their gene- 
 ral rights and remedies.' The same doctrine seems to 
 be acknowledged in other nations where there are part- 
 nerships and partners resident in different countries.^ 
 
 § 423. But, whatever may be the rule in relation to 
 foreign voluntary assignments or foreign bankrupt 
 assignments, for the benefit of creditors generally, there 
 is no doubt that there are some assignments, which 
 take effect by mere operation of law in foreign coun- 
 tries, and are admitted to have universal validity and 
 effect upon personal property, without respect to its 
 locality.^ Such is the case of a transfer of personal 
 property arising from marriage. Thus, a marriage, 
 contracted by citizens of Massachusetts, is a gift in law 
 to the husband of all the personal, tangible property of 
 the wife, and operates as a transfer of it to him, wher- 
 ever it may be situate, at home or abroad. And the 
 right, thus acquired by the law of the matrimonial 
 domicil, will be held of perfect force and validity in 
 every other country, notwithstanding the like rule 
 would not arise in regard to domestic marriages by its 
 own municipal code.' '.This doctrine was adverted to by 
 Lord Meadowbank^ in a very important case already 
 referred to, as perfectly clear and established. "In 
 the ordinary case," says he, " of a transferrence by con- 
 tract of marriage, when a lady of fortune, having a 
 great deal of money in Scotland, or stock in the banks. 
 
 1 Brickwood v. Miller, 3 Merivale, R. 279. 
 
 2 See Merlin, Repertoire, Faillite, et Banqueroute, ^ 2, art. 10, p. 414. 
 
 3 See ante, ^ 398.
 
 CH. IX.] PERSONAL PROPERTY. 693 
 
 or public companies there, marries in London, the 
 whole property is, ipso jure, her husband's. It is as- 
 signed to him. The legal assignment of a marriage 
 operates without regard to territory all the world 
 over." ^ Lord Eldon, on several occasions, has given 
 this doctrine the fullest sanction of his own judgment, 
 averring, that notice was not even necessary to give 
 full effect to such a title.^ The same doctrine was 
 fully admitted in Remsen v. Holmes ; ^ and it is treated 
 by elementary writers as beyond controversy.'* We 
 have already seen that foreign jurists press the doctrine 
 to its fullest extent.^ 
 
 § 423 rt. It is principally in cases of voluntary as- 
 signments, made by a debtor for the benefit of credit- 
 ors, or of involuntary assignments under the Bankrupt 
 laws of a State against a debtor in invitum, that ques- 
 tions arise respecting the conflicting rights of creditors 
 ( Conciu'sus creditonim,) as to the priorities and privileges 
 in the distribution and marshalling of the assets, when 
 they are insufficient to pay all the debts of the party. 
 We have already had occasion to take notice, that 
 generally in cases of movable property the priorities 
 and privileges are to be adjusted, and the distribution 
 is to be made, according to the law of the domicil of 
 the debtor,*' founded upon the notion, that there all his 
 movable property is in contemplation of law concen- 
 
 1 Ante, ^ 59, note ; Royal Bank of Scotland v. Cuthbert, 1 Rose, 
 Bank. Cas. Appx. 481. See ante, ^ 396, 397, 398. 
 
 2 Selkrig v. Davis, 2 Rose, Bank. Cas. 97, 99 ; Id. S. C. 291, 317. 
 
 3 20 Johns. R. 267. 
 
 4 2 Bell, Comm. ^ 1266, p. 696, 697, 4th edit. ; Id. p. 080, 685, 686 
 5th edit. ; Liverm. Diss. 140, ^ 223. 
 
 5 Ante, ^ 145, 146, 417. 
 
 6 Ante, § 323 to ^ 328.
 
 694 CONFLICT OF LAWS. [CH. IX. 
 
 trated, although a part of it may be locally situated 
 elsewhere, according to the maxim ; Mobilia non hahent 
 sequelam ; Mobilia tamquam ossihus affixa personce} And 
 in relation to immovable property, the distribution is to 
 be made according to the Z^.r rei sitce.^ Exceptions 
 may doubtless exist, "where the law of the country, in 
 which either movable or immovable property is situate, 
 prescribes a different rule, which must then be obeyed.^ 
 Similar rules will govern in cases of voluntary assign- 
 ments by debtors, and of involuntary assignments un- 
 der the bankrupt laws of a State. In each case the 
 Lex loci of the assignment, or the bankruptcy will ordi- 
 narily form the basis of the priorities and privileges 
 attaching to his movable property, and will regulate 
 the distribution thereof among his creditors, at least if 
 that is the place of his domicil, and of the situs of the 
 property. If the property is immovable, or is situate 
 elsewhere, the Lex loci rei sitw will, or at least may 
 govern the same."* 
 
 § 423 ^. Priorities and privileges are, indeed, gene- 
 rally treated as belonging to the form and order of pro- 
 ceedings, and are therefore properly governed by the 
 Lex fori ; and they are not treated as belonging to the 
 merits and matters of the decision. Rodenburg says ; 
 Primmn utamur vulcjaia D. D. disiinctione, qua separantur 
 m, qum litis fonnam concermint ac ordinationem, separanlur 
 ah iis, qiice decisionem aid materiam. Lis ordinanda secun- 
 dum morem loci, in quo ventilatur. Tit sijudicati exequendi 
 
 1 Ante, ^ 362, 377, 378. 
 
 2 Ante, § 322 to ^ 328 ; post, ^ 428. 
 
 3 See Rodenburg, De Divers. Stalut. tit. 2, ch.'5, ^ 5, 6 ; 2 Boullenois, 
 p. 37, 38 ; post, ^ 550. 
 
 4 Ante, ^ 322, 328, ^ 385 to § 400, ^ 402 to ^ 416, ^ 412 to § 422.
 
 en. IX.] PERSONAL PROPERTY. 695 
 
 causa hona dehitoris distrahantiir, qui solvendo sit, executio 
 peragatur eo hci, uU hona sita sunt, aut in caiisam jiidicati 
 capiimtw\ Sin cesserit foro debitor, aut propalam desierit 
 esse solvendo, tit isti mohilium capioni, aid ulli omnino execu- 
 tioni non sit idtra locus, facta jam omnium creditormn con- 
 ditione pari, disputatio de privilegiis, aut concursu credi- 
 tormn, veniat instituenda, iihi debitor habiierit domicilium} 
 
 § 423 c. Matthoeus (whose opinions have been aheady 
 in part cited in another phice,^) holds, that hypotheca- 
 tions of movables are to be governed by the law of the 
 domicil of the debtor ; and hypothecations of immov- 
 ables by the Lex loci rei sitce. In respect to priorities 
 and privileges between hypothecary creditors upon 
 movables, the law of the domicil of the debtor is to 
 govern ; and in respect to such priorities and privileges 
 between hypothecary creditors upon immovables, the 
 law of the situs rei, unless indeed the contest solely 
 concerns their rights in the domicil of the debtor. 
 Quantum ad' leges, secundum quas in disputatione de pro- 
 topraxia judicandwn, distinctio adhibenda est. Si bona mobi- 
 lia dehitoris in divcrsis provinciis sint, spcctandce sunt leges 
 ejus loci, uhi debitor domicilium habet. Est enim vulgatum 
 apud doctores, mohilia sequi personam, et idcirco ccnseri eo 
 jure, quod obtinet, uhi domicilium persona habet. Itaque si 
 in loco domicilii valet pignus rei mobilis nudo pacto constitu- 
 ttim, manente possessione penes debitorcm, potior erit in ing- 
 nore is, ciii ante res obligcda est, licet no7i sit translata in 
 eum possessio. Et si creditor aliquis in loco domicilii dehi- 
 toris privilegium inter personates liabeat, gaudebit eodem 
 privilegio in ea civitate, in qua debitor tabernam hahuit et 
 
 1 Rodenburg, De Divers. Statut. tit. 2, oh. 5, ^16; 2 Boullenois, 
 Ap|)x p. 47, 48 ; ante, ^ 325 c to 325/, and note. 
 
 2 Ante, ^ 325 i, 325 k.
 
 696 CONFLICT OF LAWS. [CH. IX. 
 
 merces. Contra, si in loco domicilii mohilia non hahcant 
 seqiielam, nee creditor privilegiimiyfrustra volet uti jure alte- 
 riiis civitcdis, in qua utriimque contrario modo se Mbere per- 
 sjyicit. Quantum vera ad prcedia attinet, sejoaranda videtiir 
 hjpotheca ah eo privilegio, quod qids inter liypothecarios ex- 
 ercet. In cestimanda hgpothcca spectanda sunt ejus terri- 
 toriijura, uhi prcedium situm est. Itaque si in loco domi- 
 cilii delitoris prcedia ohligari possint citra judicis aiictorita- 
 tem, prcedia vero sita sint in ea provincia, id>i oppigneratio 
 judicialis desideratur, frustra ohtendes locum domicilii^ ad 
 excludendum secundum creditorem, cut coram judice loci 
 prcedium pignori ncxum est. Quod, si idrique fundus rith 
 oppigneratus sit, disputetur autcm solummodo de privilcgio, 
 quod alter inter hypothecarios in loco domicilii dehitoris ha- 
 bere se dicit, turn locus domicilii spectandus videtur : quia 
 privilegium illud 'personam concernit, fundum autem pigne- 
 7'atum non afficit} 
 
 § 423 d. Mr. Burge maintains a similar opinion, 
 taking a distinction between ordinary liens and the 
 priorities between creditors. "The vendor's lien," says 
 he, " on the movables sold, and the right to stop them 
 in transitu for the payment of the price, are privileges, 
 •which attach to the subject sold, and are governed by 
 the Lex loci contractus. They are distinguished from 
 the preferences which a creditor may claim on the 
 estate of a debtor, when it is distributed under an exe- 
 cution sale, or general concursus of his creditors. The 
 latter depend not on the Lex loci contractus, but on that 
 of the phice where the movable estate is fictione juns 
 considered to be situated, namely, in the domicil of its 
 
 1 INIatlhaeus, de Auctionibus, Lib. 1, cap. 21, ^ 10, n. 35, p. 294, 295 ; 
 Id. n. 41, p. 298, 299.
 
 CH. IX.] PERSONAL PROPERTY. 697 
 
 owner. The Lex loci contractus, although it is properly 
 invoked as between the parties to the contract, yet it 
 is considered unjust to give it effect against third par- 
 ties, the creditors." ' 
 
 § 423 e. Mr. Bell adopts the doctrine in its fullest 
 extent, that an assignment in bankruptcy conveys all 
 the movable property of the bankrupt, wherever it may 
 be, and it is to be distributed according to the law of 
 the place where the debtor has his domicil, and the 
 proceedings in bankruptcy are had. But in relation to 
 immovable property, that it is to be distributed and 
 administered according to the territorial law. His 
 language is : " The great rule on which the whole of 
 the doctrine relative to the international effect of bank- 
 ruptcy depends, has been completely fixed in all the 
 three kingdoms upon a general principle of the law of 
 nations ; namely, that the personal estate is held as 
 situate in that country where the bankrupt has his 
 domicil : and that it is to be administered in bank- 
 ruptcy according to the rules of the law of that coun- 
 try, just as if locally placed within it. The consequence 
 of .fixing this rule is, that a commission of bankruptcy 
 in England, or in Ireland, and the assignment following 
 on it, or a sequestration in Scotland, and the convey- 
 ance to the trustee, have the effect of transferring to 
 the trustee or assignees the whole personal estate of 
 the bankrupt ; that this transferrence defeats all pre- 
 ferences attempted to be obtained by the diligence of 
 the law of the country where such estate happens to 
 be placed, or by any voluntary conveyance of the bank- 
 rupt, after the period when the effect of the proceed- 
 
 I 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 770 ; Id. 
 p. 778, 779 ; ante, ^ 327, note. 
 CONFL. 59
 
 698 CONFLICT OF LAWS. [CH. IX. 
 
 ings under the bankruptcy attaches to the funds." ^ 
 And again; "Another great point in this doctrine is, 
 what effect shall be allowed in Scotland to a different 
 decision in any foreign country from that which has 
 been adopted in these islands? Let it be supposed, 
 for example, that effects of the bankrupt are in a coun- 
 try, in which the sequestration and the conveyance to 
 the trustee are held to be of no force, and where pre- 
 ference is given to the diligence of the country in 
 which the effects are situate; — Is the creditor, who 
 recovers payment under such local rule, obliged to pay 
 over to the trustee in this country, for general distribu- 
 tion, the money he has received ? And this, again, 
 resolves into two questions, — (1.) Whether the cre- 
 ditor can claim for any balance without having commu- 
 nicated what he has received? and (2.) Whether he is 
 liable to an action for restitution ? In England, where 
 there is no provision by statute for regulating this mat- 
 ter, it is held, — (1.) That an English creditor, who, 
 having notice of the bankruptcy, makes affidavit in 
 England, in order to proceed abroad, cannot retain 
 against the assignees what he recovers. (2.) That a 
 creditor in the foreign country would not, if preferred 
 by the laws of that country, be obliged to refund in 
 England : and (3.) That, at all events, such a creditor 
 cannot take advantage of the bankrupt laws in Eng- 
 land, without communicating the benefit of his foreign 
 proceedings. In Scotland, there is an express provi- 
 sion in the statute relative to payments and preferences 
 abroad ; the policy of which it is proper to explain. 
 As the jurisdiction of the Court of Session does not 
 
 1 2 Bell, Comm. § 1266, p. 684, 685, 4th edit. ; Id, p. 681, 682, 5th 
 edit.
 
 CH. IX.] PERSONAL PROPERTY. 699 
 
 reach foreign countries, wherever the principle of the 
 law of nations does not operate, or has been evaded, it 
 is provided, — (1.) That the creditor, who, after the 
 first deliverance on the petition for secjuestration, shall 
 obtain payment or preference abroad, shall be obliged 
 to communicate, and assign the same to the trustee for 
 behoof of the creditors, before he can draw any divi- 
 dend out of the funds in the hands of the trustee ; and, 
 (2.) That, in all events, whether he claims under the 
 sequestration or not, he shall be liable to an action 
 before the Court of Session, at the instance of the trus- 
 tee, to communicate the said security or payment, in 
 so far as the jurisdiction of the court can reach him. 
 It may, however, as already observed, be doubted, 
 whether this enactment, in so far as it exposes a cre- 
 ditor to a challenge, even where he does not claim under 
 the sequestration, might be held to include foreign cre- 
 ditors, not apprised of the bankruptcy and procedings 
 in this country, but who having recovered, in the usual 
 way, the property of their debtor abroad, should have 
 come afterwards to Scotland. Recently the question 
 occurred under these enactments, whether a local sta- 
 tute in one of our colonies abroad, which was said to 
 proceed on views of local utility, did not so far qualify 
 the sequestration statute of this country, that the 
 foreign creditors should be entitled to retain the pre- 
 ference they had obtained ? But the Court held, that 
 the preference could not be supported. As to real 
 estate, the estate in land, or connected with land, there 
 is a difference of principle very remarkable. The real 
 estate is, not like the personal, regulated by the law of 
 the domicil ; but by the territorial law. A real estate 
 in England is not held to be under the disposition of 
 the bankrupt laws of Scotland, if the proprietor be a
 
 700 CONFLICT OF LAWS. [CH. IX. 
 
 trader there. Nor is an heritable estate in Scotland 
 affected by the commission of the English law. And 
 yet the spirit and policy of the laws, considered inter- 
 nationally, should open to the creditors of a bankrupt 
 in either country the power of attaching his real es- 
 tates." ' 
 
 § 423/. In regard to voluntary assignments for the 
 benefit of creditors with certain preferences, they must 
 (as has been already stated,^) as to their validity and 
 operation, be governed by the Lex loci contractus. If 
 they are valid there, full operation will ordinarily be 
 given to them in every other country where the matter 
 may come into litigation and discussion. But it is a 
 very different question, whether they shall be permitted 
 to operate upon property locally situated in another 
 country, whether movable or immovable, by whose laws 
 such a conveyance would be treated as a fraud upon 
 the unpreferred creditors. That question was discussed 
 in the case already alluded to, where an assignment, 
 made in Alabama, giving preferences to certain credit- 
 ors, came collaterally under discussion in Louisiana, 
 by whose laws such an assignment would be treated as 
 a fraud. On that occasion the Court said : " We find 
 no difficulty in assenting to the proposition, that con- 
 tracts entered into in other States, as it relates to their 
 validity and the capacity of the contracting parties, are 
 to be tested here by the Ze.v loci celehrati contractus. 
 This Court has often recognized that doctrine, as well 
 settled. When a contract is entered into in Alabama, 
 in conformity to the local law, to have its effects and 
 
 1 2 Bell. Comm. h 1266, p. 689, 690, 4th edit. ; Id. p. 685, 686, 5th 
 edit. See Lord Eldon's Remarks in Selkrig v, Davis, 2 Rose, R. 311. 
 
 2 Ante, ^ 25U a.
 
 CH. IX.] PERSONAL PROPERTY. 701 
 
 execution there, it is clear the courts of this State can- 
 not declare its nullity on the ground, that such a con- 
 tract would not be valid according to our system of 
 jurisprudence. Such would be the case, even if one of 
 the contracting parties, or both, were not citizens of 
 Alabama. If Andrews, for example, had been a citizen 
 of Louisiana, having creditors and effects both here and 
 in Alabama, had gone over to that State, and trans- 
 ferred a portion of his property there to certain pre- 
 ferred creditors, such a transaction, as to its legality, 
 would depend upon the law of Alabama. But if such 
 a citizen of Louisiana should immediately afterwards 
 seek to avail himself of the benefit of our insolvent 
 laws, a different question would present itself Al- 
 though our courts might not be authorized to annul 
 such contracts, as to their effects between the parties ; 
 yet they might well inquire, whether it was not the 
 intention of the legislature to afford the protection of 
 the insolvent laws to such only as shall have abstained 
 from giving an undue preference to certain creditors, 
 in derogation of that vital principle of our system, that 
 the property of the debtor forms the common pledge of 
 his creditors, and although such preferences may be 
 tolerated by the Lex loci. If the legislature has thought 
 proper to declare such a condition as one upon which 
 shall depend the right to claim the benefit of the in- 
 solvent laws, which it is not denied they had an unques- 
 tionable right to do, then there is an end to the argu- 
 ment, unless it can be shown, that the mere residence 
 of the party in another State dispenses him from a 
 compliance with the creditor." ' 
 
 1 Andrews v. His Creditors, 11 Louis. R. 476, 477. See also 2 Bell, 
 Coram. ^ 12GG, p. 684, 685, 686, 4th edit. ; Id. p, 681, 682, 683, 5th edit. 
 59*
 
 702 CONFLICT OF LAWS. [CH. IX. 
 
 § 423 g. These are by no meams the only cases of 
 a conflict of laws, or of rights growing thereout, touching 
 personal or movable property ; and which ought to ad- 
 monish us of the danger and difficulty of attempting to 
 lay down universal rules on such complicated subjects. 
 By the laws of many of the nations of continental Europe 
 in cases of collision of ships by accident, without any 
 fault on either side, the loss is to be sustained by a con- 
 tribution by both ships.^ By the law of England in 
 such a case, there is no contribution whatsoever \ but 
 each party is to bear his own loss. Res perit domino.^ 
 Now, let us suppose, that such a collision takes place 
 upon the high seas, beyond any territorial jurisdiction, 
 between an English ship and a foreign continental ship, 
 whose laws divide the loss, and both or either of the 
 ships is injured thereby. How is the loss to be borne ? 
 Will it make any difference, whether the proceeding 
 against the ship or owners for redress is in England, or 
 in the proper continental court ? If the right depends 
 upon the law of the place where the proceedings are 
 had against the ship or the owner, then there will be no 
 reciprocity in the operation of the rule. In a case so 
 confessedly novel in its presentation, it will be found 
 very difficult to affirm any ground of principle, upon 
 which the law of the one country, rather than that of 
 the other, ought to prevail.^ 
 
 1 Story on Bailm. (^ G08 ; Peters v. Warren Insur. Comp'y, 14 Peters, 
 R. 94. 
 
 2 Story on Bailm. ^ 608, 610. 
 
 3 The very question was recently presented at Havre, in France, in the 
 case of the steamer ship James Watt, an English ship, which was seized 
 in France for having by collision run down a French ship, at sea. The 
 Court of Rouen, it is said, decided against the right to seize and detain 
 Jier. But the ground of the decision is not stated. See also Abbott on
 
 CH. IX.] PERSONAL PROPERTY. 703 
 
 § 423 li. Considerations of an analogous nature may 
 be presented in cases of torts, committed on the high 
 seas, and in other extra-territorial places, by the subjects 
 of one nation upon vessels, or other movable property, 
 belonging to the subjects of another nation, where the 
 laws of these nations are different, touching either the 
 nature and character and consequences of the tort, or 
 the rule of damages applicable thereto. It is not easy 
 to say, in such cases, what laws ought to govern. The 
 most that can with any probability be stated, is that, in 
 the absence of any general doctrine to the contrary, 
 either each nation would, in respect to the case w^hen 
 pending in its own tribunals, follow its own laws;' or 
 would apply the rule of reciprocity, granting or refusing- 
 damages, according as the law of the foreign country, 
 to which the injured ship belonged, would, grant or 
 withhold them in the case of an injured ship belonging 
 to the other nation.^ The rule of reciprocity is often 
 applied in cases of the recapture of ships from the hands 
 of a public enemy.^ 
 
 Shipp. by Shee, p. 184, note z, the case of the Maria, there stated. See, 
 also, 3 Hagg. Adm. R. 169 ; Id. 184 ; Id. 244. See, also, The General 
 Steam Navigation Co. v. Guillen, 11 Mees. & Wels. 877. 
 ^ See Percival v. Hickey, 18 Johns. R. 257, 
 
 2 The Girelamo, 3 Plagg. Adm. R. 169. 
 
 3 The Santa Cruz, 1 Rob. R. 50 ; 2 Wheat. R. Appx. 44, 45; The 
 Adeline, 9 Cranch, R. 244. In the case of the Vernon, 1 W. Robinson, 
 New Adm. R. 316, which was a case of collision between a British ship, 
 havingon board a licensed pilot, and a foreign ship, the British ship's pilot 
 being in fault, Dr. Lushington held the owners of the British ship not 
 responsible for the damage, upon the ground that the foreign ship seeking 
 the remedy, must take it according to the law of the country where the 
 suit is brought. Qaasre, if this was a case within the meaning of the 
 rule, did the statute apply to foreign ships or only to British ships?
 
 704 CONFLICT OF LAWS. [CH. X. 
 
 CHAPTER X. 
 
 REAL PROPERTY. 
 
 § 424. Having disposed of the more important ques- 
 tionsj which have arisen respecting personal property, 
 we are next led to the consideration of the operation of 
 foreign law in regard to real or immovable property. 
 And, here, the general principle of the common law is, 
 that the laws of the place where such property is situ- 
 ate exclusively govern in respect to the rights of the 
 parties, the modes of transfer, and the solemnities which 
 should accompany them.^ The title, therefore, to real 
 property can be acquired, passed, and lost only accord- 
 ing to the Lex rei sitce. This is generally, although (as 
 we shall presently see) not universally, admitted by 
 courts and by jurists, foreign, as well as domestic. 
 Paul Voet states the rule in a brief but clear manner ; 
 Ut immoUUa statiitis loci regantur, uhi sita.~ He adds in 
 another place. Quid si itaqiie contentio de aliquo jure in re, 
 seu ex ipsa re descendente, vel ex contractu, vel actione per- 
 
 ' See, on the subject of this chapter, 2 Burge, Comm. on Col. and For. 
 Law, Pt. 2, ch. 4, p. 840 to p. 870 ; 4 Burge, Comm. on Col. and For. 
 Law, Pt. 2, ch. 4, ^ 5, p. 150, &c. ; Id. ch. 5, n. 11, p. 171, 217 ; Id. 
 ch. 12, p. 576 ; Fcelix, Conflit des Lois, Revue Etrang. et P'ranc. Tom. 
 7, 1740, ^ 27 to § 37, p. 216 to p. 230 ; Id. p. 307 to 312. 
 
 2 P. Voet, De Stat. ^ 9, ch. 1, n. 3, p. 253, edit. 1715 ; Id. p. 307, 
 edit. 1661. — Yet we shall see, that Paul Voet adopts some strange no- 
 tions as to the forms and solemnities of instruments of transfer of real 
 estate, whether inter vivos or testamentary, holding, tljat the lex loci ac- 
 tus, and not the lex loci rei sitae, ought to govern. Post, \ 442.
 
 CH. X.] REAL PROPERTY. 705 
 
 sonali, sed m rem scriptd? An spedahUur loci stcdutum, 
 uU dominus hahet domiciUum, cm statutmn rei sitce ? Res- 
 pondeo ; Stcdutum rei sitce} Sir William Grant lays 
 down the rule in very expressive terms. " The validity 
 of every disposition of real estate," says he, "must de- 
 pend upon the law of the country, in which that estate 
 is situated." ~ The same rule would also seem equally 
 to apply to express liens and to implied liens upon im- 
 movable estate.^ 
 
 § 425. And here it may be proper to advert a little 
 more particularly to some of the definitions of foreign 
 jurists, in regard to personal laws and to real laws. 
 We have already seen, that laws purely personal are 
 those which solely affect the person, without any refer- 
 ence to property.' Laws purely real, directly and in- 
 directly regulate property, and the rights of property, 
 without intermeddling with, or changing the state of the 
 person.^ There are other laws, again, which are deemed 
 both personal and real, containing a mixed operation 
 upon persons and property, and which are therefore 
 
 1 p. Voet, De Slatut. § 9, ch. 1, n. 2, p. 253, edit. 1715 ; Id. p. 305, 
 edit. 1661. 
 
 2 Curtis V. Hutton, 14 Ves. jr. 537, .541 ; S. P. Chapman zj.Ptobertson, 
 6 Paiae R. 627, 630 ; Elliot v. Lord Minto, 6 Madd. R. 16 ; Birtwhistle 
 V. Vardill, 5 Barn. & Cresw. 438 ; S. C. 9 Biigh, R. 32 to 88 ; Potter v. 
 Titcomb, 22 Maine, 300 ; post, § 428 to ^ 444. 
 
 3 See 1 BouUenois, p. 683 et seq. 689, 818 ; Rodenburg, De Divers. 
 Stat. tit. 2, ch. 5, ^ 16 ; 2 BouUenois, Appx. 47 ; 1 Hertii, Opera, De 
 Collis. Le?. H> n. 64, p. 150 ; P. Voet, De Stat. § 9, ch. 1, n. 2, p. 253, 
 edit. 1715 ; Id. p. 307, edit. 1661 ; ante, § 322 to ^ 328 ; Id. s^ 363 to 
 § 374; 1 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 1, p. 25, 26 ; 
 Curtis V. Hutton, 14 Ves. jr. 537, 541 ; Elliott v. Lord Minto, Madd. R. 
 16. 
 
 4 1 BouUenois, Prin. Gen. 10, p. 4. 
 
 5 1 BouUenois, Prin. Gen. 22, p. 6 ; Id. Pr. G6n. 21, p. 7. See P. 
 Voet, De Slat. ^ 4, ch. 2, n. 4, p. 134, 135, edit. 1061.
 
 706 CONFLICT OF LAWS. [CH. X. 
 
 called mixed/ Thus, a particular law, wliicli shall 
 authorize a minor or other person, ordinarily incapaci- 
 tated, to dispose of property under particular circum- 
 stances, would be deemed a mixed law ; because, so far 
 as it affects the particular capacity of a person, it is 
 personal, and so far as it enables him to do a particular 
 act respecting property, it is real.- In illustration of 
 these distinctions Boullenois considers the Law, known 
 as the Sencdus-consultiuu Velleiamim, prohibiting married 
 women from making contracts, as purely personal ; a 
 law declaring that no person of full age shall devise 
 more than a third or fourth part of his property, as 
 purely real ; and a law allowing a minor, (otherwise in- 
 capacitated) when married, to make a testament or do- 
 nation in favor of his wife, as mixed.^ These distinc- 
 tions are very important in examining the doctrines of 
 foreign jurists, as they often enter very deeply into the 
 elements of their particular opinions.^ 
 
 § 426. Now, in regard to laws purely real, Boullenois 
 lays down the rule in the broadest terms, that they go- 
 
 ^ 1 Boullenois, Prin. G6n. 15, 16, p. 5. 
 
 2 Ibid. 
 
 3 1 Boullenois, Pr. G6n. 14, 15, 26, p. 5, G, 7 ; Id. Observ. 2, p. 25 to 
 28; Id. Observ. 16, p. 206, Observ. 23, p. 456, 457, 477, 4S8 ; 2 Boul- 
 lenois, Observ. 32, p. 11. — This definition of mixed laws is given by 
 Boullenois, who has drawn it from Rodenburg. But it is very different 
 (as he informs us) from the sense, in which D'Argentr6, Burgundus, and 
 Voet use the same phrase. 1 Boullenois, Prin. G6n. 16, p. 5 ; Id. Ob- 
 serv. 5, p. 122 to 140; Rodenburg, De Div. Stat. tit. 1, eh. 2 ; 1 Boul- 
 lenois, Observ. 2, p. 25 to p. 29 ; Id. Observ. 3, p. 29 to 48. See, also, 
 1 Froland, Mem. ch. 6, p. 114. 
 
 4 J. Voet has devoted a whole title to the subject of personal, real, and 
 mixed laws, which will reward the diligence of the student in a thorough 
 perusal. J. Voet, ad Pand. Tom. 1, Lib. 1, tit. 4, p. 2, p. 38, et seq. 
 The same subject is elaborately discussed by Froland. 1 Froland, Mem. 
 ch. 4, p. 49. ch. 5, p. 31, ch. 6, p. 114.
 
 CH. X.] REAL PROPERTY. 707 
 
 vern all real property within the territory, but have no 
 extension beyond it. Les lois reelles n' out point d' exten- 
 sion directe ne indirecte hors la jurisdiction et la do^ninaiion 
 du lepslafew'} In regard to mixed laws he lays down 
 the rule expressively, that of right they act only upon 
 real property within the territory, to which the persons 
 are subject; but that sometimes they act upon real 
 property situate elsewhere ; and then it is pnly, because 
 the laws are conformable to each other, and by a sort 
 of kindred title only, {a titre de jyat^rnite sculement.y 
 Rodenburg lays down a like rule in regard to real laws 
 (dismissing as unnecessary the class of mixed laws ;) 
 Statida realia inter et ijersonalia hoc interest, quod ilia, in 
 res scripta, territorii siii concliidantur metis, hcec extra eas 
 mm et effectiim 'protendaiii} Paul Voet contends, that 
 no personal laws can regularly extend to immovable 
 property situate in a foreign country ; Non tanien statu- 
 tum personate sese regidariter extendet ad bona immohilia 
 alibi sita ; ^ and he treats it as utterly unimportant, 
 whether it assume to do so directly or indirectly, openly 
 or consequentially. Neque hie distinguam, cum lex non 
 distinguat, an sese extendut statidum directe ad bona cxtra- 
 territorium statuentimn sita, an indirect^, an projyalam, an 
 
 1 1 Boullenois, Pr. G6n. 27, p. 7; Id. 230. —Froland lays down the 
 rule ia even more brief terms. Le statut r6el ne sort point de son terri- 
 toire. 1 Froland, Mem. 156. And he applies the same rule to mixed 
 statutes. Id. 157. 
 
 2 1 Boullenois, Prin. G^n. 20, 21, p. 6 ; 1 Boullenois, Observ. 16, 
 p. 223, 224. 
 
 3 Rodenburg, De Div. Statut. tit. 1, ch. 3; 2 Boullenois, Appx. p. 7 ; 
 1 Boullenois, 145 ; Id. Observ. 9, p. 152 ; Id. 230. 
 
 4 P. Voet, ad Stat. ^ 4, ch. 2, n. 6, p. 123 ; edit. 1715 ; Id, p. 138, 
 edit. 1661.
 
 708 CONFLICT OF LAWS. [CH. X. 
 
 per conseqiientiam. Cum non sint indirede, in fraudem 
 legis aid statuU permittenda, qiice direct^ sunt prokihita} 
 
 § 426 a. Joha Yoet resolutely maintains the same 
 opinion.^ D'Argentre holds the following language. 
 Quce realm, aid mixta sunt, hand duhie locorum ct reruni 
 sitiim sic spectant, id aliis legihus, qiiani territorii, judicari 
 non possint.^ Huberus, after remarking, that the foun- 
 dation of the general doctrine is the subjection of every 
 man to the laws of a country, so long as he continues to 
 act there, which makes his act there valid or invalid, 
 according as those declare it invalid, proceeds to say, 
 that this reasoning does not apply to immovable pro- 
 perty, which does not depend upon the mere will of the 
 owner ; but so far as certain characters are impressed 
 upon it by the law of the country, where it is situate, 
 these characters remain indelible in that country, what- 
 ever dispositions the laws of other countries, or the acts 
 of private persons, may ordain otherwise or contrary 
 thereto. Nor would it be without great confusion and 
 prejudice to the country, where the immovable property 
 is situate, that its own laws respecting it should be 
 changed by such dispositions. Fundamentum iiniversce 
 hvjus doctrinw diximiis esse, et tenemiis, suhjectionem Jiomi- 
 num infra Leges cuj usque territorii, quamdiu illic agunt, 
 quw facit, id actus ah initio validus aid nuUus, alihi quoqiie 
 valere aid non valere non nequeat. Scd hccc ratio non con- 
 venit rehus immohilihus, quando illw spectantur, non id de- 
 
 1 p. Voet, De Stat. ^ 4, ch. 2, G, 7, p. 123, 124, edit. 1715; post, 
 
 2 J. Voet, ad Pand. Tom. 1, Lib. 1, tit. 4, ^ 7, p. 40; ante, i^* 54 a ; 
 post, ^ 433 a. 
 
 3 D'Argentr. De Briton. Leg. Art. 218. Gloss. 6, n. 8, Tom. p. CjO ; 
 post, ^ 439 ; Livermore's Dissert. ^ 97, p. 77.
 
 CH. X.] REAL PROPERTY. 709 
 
 pendentes a libera dispositione ciijusque patrisfamilias, verurn 
 qiicdenus ccrtce notce lege cujusqne Beip. uhi sita stmt, ilUs 
 impressce reperiimtur ; hce notce manent indelehiles in ista 
 Repid)lica, qidcqidd aliarmn Civitatum Leges, aut privato- 
 rum dispositiones, seciis aid contra statuant ; nee enim sine 
 magna confusione pra^jiidicioque Reip. id)i sitce sunt res soli^ 
 Leges, de illis latce, dispositionihus istis midari possent.^ 
 He adds in another place ; Comniimis et recta sententia 
 est, in rebus immobilibus servandiim est jus loci, in quo bona 
 sunt sita? 
 
 § 426 b, Christinseus takes the common distinction 
 in various places between movable property and im- 
 movable property, alleging, that it is observed, as a 
 general rule, that movable property is governed by the 
 law of the domicil, and real property by the law of the 
 situs rei. JJbi pro regida generali servatum fidt, quod bona 
 mobilia sequi et regulari debent secundum statidi loci domi- 
 cilii ejus, ad quern pertinent vel spectant, immobilia vero juxta 
 statuta locorum, id>i ilia sunt sita, id communiter tenent In- 
 terpretes, licet dicta regida nan semper locum liabeat? 
 
 1 Huberus, De Conflict Leg. Lib. 1, tit. 3, ^ 15 ; post, § 413. 
 
 2 Huberus, Tom. 1, P. 1, Lib. 3, tit. 13, 21, s. De Success, ab Lites. 
 p. 278. See post, ^ 443, 443 a. \ 476. 
 
 3 ChristiniBus, Tom. 2, Decis. 5, n. 1, 2, 3, 4, p. 7. — Mr. Foelix on 
 this subject says : " Cette loi r^elle r^git les biens situ^s dans I'eiendue 
 du terriioire, pour lequel elle a 6t6 rendue, en excluant I'application de la 
 loi personnelle du propri6taire, ou de celle du lieu ou I'acte a 6t6 pass6 ; 
 (Nous parlerons plus bas de I'application de cette derniere loi) ; mais 
 aussi les effets de cette loi ne s'^tendent jamais au del^ des limites du ter- 
 ritoire. Telle est la r^gle reconnue par toutes les nations et professee par 
 les auteurs. Nous citerons Burgundus, (Tract. 1, n"^ 4, 11, 12, et 14,) 
 Rodenburg, (Tit. 1, chap. 2,) Paul Voet, (De Statutis, sect. 4, cap. 2, 
 n<"4 et 6,) Jean Voet, (Ad fF. Tit. destat. n" 3,) Abraham £\ Weasel, (Art. 
 16, n" 19,) Christin. (Decisiones, vol. 2, tit. 1, dec. 3, n" 2,) Boulletiois, 
 (Aux endroits cities au n" 24 ci-dessus, et t. 1, p. 107,) Hert. (Sect. 4, 
 ^ 9,) Huber. (N° 15,) Cramer, (Observationes Juris Universi, torn. V. obs. 
 
 CONFL. 60
 
 710 CONFLICT OF LAWS. [CH. X. 
 
 § 427. But it is wholly unnecessary to repeat at 
 length the opinions of foreign jurists, since in the main 
 proposition they generally, although not universally, 
 concur, (for some of them insist upon certain excep- 
 tions, to which we may hereafter allude,) that the law 
 of the situs exclusively governs as to immovable pro- 
 perty.^ Pothier hr.s laid down the rule in the most 
 
 1462,) Pothier, (Sur la coutume d'0rl6ans, chap. 1, ^ 2, n°' 22, 23, et 24 ; 
 ch. 3, n° 51,) Vattel, (Liv. 2, chap. 8, i^ 103 et HO,) Gluck, (Commentaire, 
 ^ 76, Droit Priv6, ^ 17 et 18,) Danz, (Manuel, t. 1, ^ 53, n° 1,) Portalis, 
 pere, (Expos6 des motifs du Code Civil, Locie, t. 1, p. 581 ; V. aussi le 
 discours dutribun Faure,ibid. p. 613,) Meier, (P. 17,) MM. Mittermaier, 
 {^ 32,) Eichhorn, (^ 36,) Tiitman, (Chap. 5,) Muhlenbruch, {^ 72, n° 2,) 
 Brinkmann, (p. 10 et 11,) Story, (^ 374, 424, et suiv., et surtout ^ 428,) 
 Wheaton, (Chap. 2, ^ 5, t. 1, p. 136,) Rocca, (P. 104, 110, 118 et 122,) 
 et Burge, (Regie 6, t. 1, p. 25 ; t. 2, p. 14, 26, 78, et 810.)" Foelix, 
 (Conflit des Lois, Revue Etrang. et Franc. Tom. 7, ^ 27, p. 217, 218.) 
 
 1 The learned reader may consult Livermore's Dissert. ^ 9 to ^ 162, 
 p. 28 to p. 106 ; Hertii Opera, Tom. 1, De Collis. Leg. ^ 4, n. 9, p. 125, 
 edit. 1737 ; Id. p. 177, edit. 1716 ; Ersk. Inst. B. 3, tit. 2, ^ 40, p. 515 ; 
 Bouhier, Cout. de Bourg. ch. 23, ^ 36, 37 to ^ 63, p. 456 to 467 ; 2 Bell, 
 Comm. ^ 1266, p. 690, 4th edit. ; Id. p. 687, 688, 5th edit. ; Fergusson 
 on Marr. and Div. 395 ; Le Brun, de la Communaut6, Lib. 1, ch. 5, p. 9, 
 10 ; D'Aguesseau, CEuvres, Tom. 4, p. 660, 4to edit. ; Cochin, Q^uvres, 
 Tom. I, p. 545, 4to edit.; Id. Tom. p. 555; Henry on Foreign Law, 
 p. 12, 14, 15; Id. App. p. 196 ; J. Voet, ad Band. Lib. 1, tit. 4, P. 2, 
 §3, 5, 6, p. 39, 40; 1 Froland, M6m. ch. 4, p. 49, ch. 7, p. 155; 
 2 Kames on Equity, B. 3, ch. 8, ^ 2. Blr. Burge on this subject says ; 
 " The summary given in the preceding chapters exhibits a great diversity 
 amongst the laws, which regulate the modification and creation of estate.s 
 and interests in real property, and the transfer and acquisition of it. The 
 law of the place, where the act making the modification or alienation is 
 passed, frequently differs either from that of the place in which the party 
 to the act was domiciled, or from that of the place in which the property 
 is situated. It becomes necessary to inquire, which of these conflicting 
 laws is selected, and what are the principles on which the selection is 
 made. There exists a difference of opinion amongst jurists as to the law, 
 which ought to govern the decisions of some of the subjects comprehended 
 under the titles which have been just mentioned, when one of the conflict- 
 ing laws aflfects persons as well as things, or where it applies to the form 
 and solemnity of the acle, by which the modification or alienation of pro-
 
 CH. X.] 
 
 REAL PROPERTY. 
 
 711 
 
 general form, declaring, that real laws have an exclusive 
 dominion over all things submitted to their authority, 
 
 perty is passed, as well as to things. The primary or principal object of 
 the law, or the comparative degree in which, in the one case, it afTects 
 persons or things, and in the other, the form of the act or thing, affords 
 the ground, on which some jurists consider the law as real or personal, 
 and accordingly adopt the lex loci rei silae, or the law of the domicil, or 
 that of the place in which the act is passed. In the opinion of other 
 jurists, if the law of the situs be prohibitive, it must be preferred to the 
 jurists, if the law of the situs be prohibitive, it must be preferred to the 
 personal law of the domicil, without regard to the object of that law, or 
 its immediate effect upon the status of the person. There is, however, 
 no difference of opinion among them in adopting the lex loci rei sitas in 
 all questions regarding the modification or creation of estates or interests 
 in immovable property. This subject does not involve any of the con- 
 siderations, which, in other cases, produced that difference of opinion. 
 The law primarily and principally affects things. It is wholly independ- 
 ent of the status of persons, and is strictly a real law. There is the con- 
 currence, therefore, not only of those jurists who give the greatest effect 
 to the lex loci rei sitas ; but even of those who are disposed to give such 
 an effect to laws affecting the general status of persons, as would greatly 
 control the operation of the lex ,^ci rei sitae. Thus, according to the defi- 
 nition of Rodenburg, ' In solas nudasque res statuti dispositio dirigitur, 
 ut nullum intervenire necesse sit actum hominis aut aliquam concurrere 
 personas operam.' It is comprised in the rule laid down by Burgundus : 
 ' Statuta realia sunt, qua; de jure, et conditione, seu qualitate rei disponunt. 
 Statute reali propositum est dirigere res ipsas, certisque qualitatibus do- 
 minia afficere.' The doctrine of D'Argenlt^ is to the same effect : ' Rea- 
 lia sunt, ut quffi de modo dividendarum hereditatum constituuntur, in capita, 
 in stirpes, aut talia. Item de modo rerum donandarum, et quota dona- 
 tionum.' — ' Item illud, ne in testamento legari posset viro ab uxore, quod 
 quidem de immobilibus constituit et rebus soli, etsi mixtam habeat de per- 
 sonis considerationem, quando impotentia agnatis applicatur rei soli : Nam 
 si de mobilibus solum quaereretur, posset videri in totum esse personale.' 
 The doctrine of Dumoulin is, ' In his, quae concernunt rem, vel onus rei, 
 debet inspici consuetude loci ubi sita res est.' Boullenois also concurs in 
 treating those laws as real : ' Qui affecte directement les biens en fixant 
 leur sort, et leur destination par une disposition particulifre et indepen- 
 dante de Tetat personnel, dont I'homme est affecte pour les actes du com- 
 merce civil, encore que quelquefois ce statut ait ^gard a I'etat personnel, 
 que nous avons ci-devant appell6 pur politique et distinctif.' Merlin main- 
 tains the same doctrine : ' bi I'objet principal, diret, iramediat de la loi, 
 ' est de regler la qualite, la nature des biens, la mani<ire d'en disposer,' it
 
 712 CONFLICT OF LAWS. [CH. X. 
 
 whether the persons, owning them, live within the ter- 
 ritory, or without the territory.^ And Vattel has hiid 
 
 is a real law, and that, ' les effets par rapport aux personnes ne sont plus, 
 que des consequences 61oign6es de la realit6.' The estate or interest, 
 which the law permits or prohibits to be created in immovable property, 
 whether it be by substitution, entail, executory devise, condition, or any 
 other species of limitation, may be considered as a quality impressed on, 
 and inherent in the property. So also are the rules and limits, under 
 which the permission is given. According to the doctrine of those jurists 
 who are the most disposed to allow personal laws, affecting the general 
 status, to control those of the situs, the law, which confers on immovable 
 property its qualities, is strictly real, and prevails over the personal law, 
 Thus, Hertius defines the law to be real, when it impresses any certain 
 quality on immovable property : ' Rebus fertur lex, cum certam iisdem 
 qualitatem imprimit, vel in alienando, e. g. ut ne bona avita possint alie- 
 nari, vel in acquirendo, e. g. ut domini rei immobilium venditaj non aliter 
 acquiratur, nisi facta fuerit judicialis resignatio.' The same rule is laid 
 down by Mestertius and Burgundus, and is followed by Boullenois. 
 These jurists, in treating of the solemnities vihich the law requires should 
 accompany certain acts, distinguish those which are ' tanquam qualitates 
 rebus impressse.' The existence and nature of those qualities must be 
 determined by the law of the situs. It is conceived, therefore, to be indis- 
 putable, that the law of the situs must be adopted in all questions respect- 
 ing the power of alienating immovable property, or the restrictions under 
 which that power may be exercised. Hence, also, it follows, that the 
 law of the situs must prevail, when the question regards the existence or 
 validity of any substitution, the degrees to which it may be limited, the 
 manner of computing those degrees, or the extent to which the power of 
 alienation may be restrained, and generally the condition to which the 
 persons substituted may be subjected. Upon the same principles it will 
 decide, if the question regard the acts which are essential to render the 
 substitution or entail valid, or the respective rights and liabilities of the 
 fiduciary, fidei commissary, or tenant in tail." 2 Burge, Coram, on Col. 
 and For. Law, Pt. 2, ch. 9, p. 840 to 844. Again, alluding to the same 
 subject in another place, he says : " In treating of the alienations of real 
 property by act inter vivos, it has been stated as a conclusion, sanctioned 
 by the authority of jurists and of judicial decisions, and most consistent 
 with admitted principles, that the capacity to make and to take under the 
 alienation was governed by the law of the actual situs of the property, if 
 it were immovable, and by that of the domicil, if it were movable. It is 
 admitted by all jurists, that the transfer of, and title to real property, 
 
 1 Pothier, Coutume, d'Orlcans, ch. 1, ^ 2, n. 22, 23, 24, ch. 3, n. 51.
 
 CH. X.] REAL PROPERTY. 713 
 
 it down, as a principle of international law, that im- 
 movables are to be disposed of according to the laws of 
 the country where they are situate.^ 
 
 § 428. The consent of the tribunals, acting under the 
 common law, both in England and America, is, in a 
 practical sense, absolutely uniform on the same subject. 
 All the authorities, in both countries, so far as they go, 
 recognize the principle in its fullest import, that real 
 estate, or immovable property, is exclusively subject to 
 the laws of the government, within whose territory it 
 is situate.- So that we may here fully adopt the 
 
 must be regulated by the lex loci rei sitas ; that a law, which prohibits its 
 alienation, is a real law, and must, in whatever place the alienation is 
 attempted, prevent the acquisition of any title. It necessarily follows 
 from that admission, that the character and effect of the law must be the 
 same, whether its prohibition has relation to the quality of the property 
 itself, or to the person of the owner ; or whether the prohibition be gene- 
 ral and absolute, or partial and qualified, or existing only sub modo. It is 
 a quality impressed on the property no less, when the property is prohi- 
 bited to be alienated under particular circumstances, than when it is pro- 
 hibited to be alienated under any circumstances, or when it is prohibited to 
 be alienated by and to persons standing in certain relations to each other, 
 or by persons who are under a certain age, or who are in any situation, 
 which by the law precludes them from making or taking under the aliena- 
 tion." 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12, p. 577 ; 
 Id. p. 550 to 596. 
 
 1 Vattel, B. 2, ch. 8, ^ 110; Id. ^ 103; Chapman v. Robertson, 
 6 Paige, R. 627. 
 
 2 The authorities are very numerous, in which it has been decided, or 
 taken for granted ; and among them in England, are Sill v. Worsvvick, 
 
 1 H. Black. 665 ; Hunter v. Potts, T. R. 41, 182; Phillips v. Hunter, 
 
 2 H. Black. 402 ; Selkrig v. Davis, 2 Rose, Bank. Cas. p. 29 ; 2 Dow, R. 
 230; Coppinu. Coppin, 2 P. Will. 290, 293; Broadie v. Barry, 2 Ves. 
 & Beames, R. 130; Birthwhislle v. Vardill, 5 B. & Cres. 438 ; 2 Bell, 
 Comm. 690, 4th edit. ; Id. p. 687, 5th edit. ; and in America are, United 
 States V. Crosby, 7 Cranch, 115 ; Clarke v. Graham, 6 Wheaton, R. 597 ; 
 Kerr u. Mason, 9 Wheaton, R. 566; Harper v. Hampton, 1 Harr. and 
 Johns. R. 687 ; Goodwin v. Jones, 3 Mass. R. 414, 518 ; Cutter v. Da- 
 venport, 1 Pick. R. 81, 86; Holmes v. Remsen, 4 Johns. Ch. R. 460; 
 S. C. 20 Johns. R. 254 ; Hosford v. Nichols, 1 Paige, R. 220 ; Blake v. 
 
 60*
 
 7l4 CONFLICT OF LAWS. [CH. X. 
 
 lano-uage of John Voet ; De realibus quidem, cimi plero- 
 rumque consensus sit, id plimbits docere siipervacuum fuerit} 
 Indeed, so firmly is this principle established, that in 
 cases of bankruptcy the real estate of the bankrupt, 
 situate in foreign countries, is universally admitted not 
 to pass under the assignment, although, as we have 
 seen, there are great diversities of opinion as to mova- 
 bles.^ And Lord Eldon has gone so far as to declare, 
 that there exists no legal or equitable obligation (al- 
 though there is a moral obligation) in the bankrupt to 
 make a conveyance thereof to his assignees ; and that 
 the creditors are v^ithout redress, unless by way of 
 remedy in rem, where the real estate is situate, or by 
 withholding a certificate of discharge until the bank- 
 rupt executes such a conveyance.^ 
 
 § 429. Considering, however, the diversity of opinion 
 on this subject among foreign jurists, it may be of some 
 utility to examine into the application of the general 
 rule in some of its more important aspects. We shall, 
 therefore, consider it, first, in relation to the capacity of 
 persons to take or to transfer real estate ; secondly, in 
 
 Williams, 6 Pick. 286 ; Milne v. Moreton, 6 Binn. R. 359. See, also, 
 4 Covven, R. 510, 5-27, note ; Dvvarris on Slat. 620, 649 ; Wiles v. Cow- 
 per, Wilcox's Ohio Rep. 279 ; S. C. 2 Hammond, R. 124 ; Henry on 
 Foreign Law, 8, 9 ; McCormick v. Sullivant, 10 Wheaton, R. 192 ; 
 Darby v. Mayer, 10 Wheaton, R. 465 ; Curtis v. Hutton, 14 Ves. 537, 
 541; Elliott v. Lord Minlo, 6 Madd. R. 16; Chapman v. Robertson, 
 6 Paige, R. 627, 630 ; Cockerell v. Dickens, 3 Moore, Priv. Conn. R. 98, 
 131, 132 ; Tulloch v. Hariley, 1 Y. & Coll. New R. 114 ; post, ^ 434 ; 
 ante, ^ 424 ; Augusta Ins, Co. v. Morton, 3 Louis. Ann. R. 418. 
 
 1 J. Voet, ad Pand. Lib. 1, tit. 5, P. 2, ^ 6, p. 40. 
 
 2 Selkrig v. Davis, 2 Rose, Bank. Gas. 97 ; Id. 191 ; 2 Dow, R. 230, 
 250 ; 2 Bell, Comm. 690, 4th edit. ; Id. p. 687, 5th edit. ; ante, ^ 403 to 
 ^ 422, ^ 423 u. 
 
 3 Selkrig «. Davis, 2 Rose, Bank. Cas. 97; Id. 281; S. C. 2 Dow, 
 230, 250. But see Stein's case, 1 Rose, Bank. Cas. 462 ; ante, ^ 423 a.
 
 CH. X.] REAL PROPERTY. 715 
 
 relation to the forms and solemnities necessary to trans- 
 fer it ; thirdly, in relation to the extent of interest 
 to be taken or transferred in it; and fourthly, in rela- 
 tion to the subject-matter itself, or what are properly to 
 be deemed immovables. 
 
 § 430. First, in relation to the capacity of persons 
 to take or transfer real estate. It may be laid down, 
 as a general principle of the common law, that a party 
 must have a capacity to take according to the law of 
 the situs, otherwise he will be excluded from all owner- 
 ship. Thus, if the laws of a country exclude aliens 
 from holding lands, either by succession or by purchase, 
 or by devise, such a title becomes wholly inoperative as 
 to them, whatever may be the law of the place of their 
 domicil.^ On the other hand, if, by the local law, aliens 
 may take and hold lands, it is wholly immaterial, what 
 may be the law of their own domicil, either of origin, 
 or of choice. 
 
 § 431. So, if a person is incapable from any other 
 circumstance, of transferring his immovable property by 
 the law of the situs, his transfer will be held invalid, 
 although, by the law of his domicil, no such personal 
 incapacity exists. On the other hand, if he has capacity 
 to transfer by the law of the situs, he may make a valid 
 title, notwithstanding an incapacity may attach to him 
 by the law of his domicil. This is the silent, but irre- 
 sistible result of the principle adopted by the common 
 law, which has no admitted exception. We may illus- 
 trate the principle by an application to cases of common 
 occurrence under the dominion of the common law. By 
 that law a person is deemed a minor, and is incapable 
 
 1 See Buchanan v. Deshon, 1 Gill, R. 280 ; Sewall v. Lee, 9 Mass. R. 
 263.
 
 716 CONFLICT OF LAWS. [CH. X. 
 
 of conveying real estate, until be has arrived at twenty- 
 one years of age. But by the law of some foreign 
 countries minority continues until twenty-five or even 
 until tbirty years of age. . Let us, tben, suppose a 
 foreigner, owning lands in England or America, (wbere 
 tbe common law prevails,) who is by the law of bis 
 domicil in bis minority, but who is over twenty-one 
 years of age. It is clear, that he may convey bis real 
 estate in England or America, notwithstanding such 
 domestic incapacity ; for he is of tbe age required by 
 tbe local law.^ On the other hand, let us suppose a 
 married woman, who is domiciled in a foreign country, 
 and by tbe law of that country is incapable of alienating 
 her real estate v^'itbout tbe consent of her husband, 
 owning real estate in England or in America, where 
 she is incapable of alienating it without such consent ; 
 she cannot alienate it without the consent of her hus- 
 band ; and her separate act will be held ijjso facto void 
 by the law of tbe situs. 
 
 § 432. But, however, clear this may seem, according 
 to tbe principles of the common law on this subject, a 
 very different doctrine is, as we liaA^e already seen, 
 maintained by many foreign jurists on this very point.^ 
 They contend, that the capacity or incapacity of persons 
 to transfer property, or to do any other act, depends 
 altogether upon tbe law of tbe place of their domicil. 
 If they have a capacity or incapacity there, it governs 
 all their property elsewhere, whether movable or im- 
 movable. Thus, Boullenois maintains, that, if a man 
 has immovable property in a place wbere majority is 
 
 ' See Saul v. His Creditors, 17 Martin, R. 569, 597. 
 2 Ante, ^ 51, 52 to 61, 65 ; 1 Burge, Comm. on Col. and For. Law, 
 Pt. 1, ch. 1, p. 21, 22, 23.
 
 CH. X.] REAL PROPERTY. 
 
 717 
 
 attained at twenty-five, and by the law of his domicil 
 he is of age at twenty, he may at twenty sell or alien- 
 ate such immovable property. And, on the other hand, 
 if by the law of the situs of the immovable property, he 
 is of age at twenty, but by the law of his domicil, not 
 until twenty-five, he cannot sell or alienate such pro- 
 perty until the age of twenty-five.' Rodenburg adopts 
 the same doctrine, and maintains it with abundance of 
 zeal.^ After having remarked, that among personal 
 statutes are to be reckoned all laws, which affect the 
 state or condition of the person, such as laws respecting 
 majority, the paternal power over children, the marital 
 power over the wife, and cases of prodigals, he adds ; 
 De qidhiis et simiUbus id Juris est, ut quocumqiie transtule- 
 rit 'persona statute loci domicilii ita qfecta, haUlitatem aut 
 
 1 Ante, ^ 52, 71. — There is a curious distinction maintained by many 
 jurists on this subject, wliich deserves notice. — They say, that, if the 
 local law fixes the age of majority at a particular period, and declares, 
 that, until the party has arrived at that period, he shall not alienate im- 
 movable property, — in that case the local lawr governs; for it does not 
 turn upon the mere fact of being a major or not. But if the local law 
 only says, that no person who is not a major, shall alienate, then, if the 
 party is a major by the law of his domicil, though not by that of the rei 
 sitae, he may alienate the property, because the only point is majority or 
 not, and that must be ascertained by llie lex domicilii; for the state or 
 capacity of a person by the law of his domicil extends everywhere. Boul- 
 lenois dwells much on this distinction, and it has received the support of 
 Merlin. 1 Boullenois, Observ. 4, p. 57 ; Id. Observ. 5, p. 102; Id. Ob- 
 serv. 12, p, 175; Id. Observ. 13, p. 183; Id. Observ. 23, p. 499 ; Id. 
 Observ. 28, p. 700, 705, 720 ; Boullenois, Quest. Mixt. p. 19 ; 2 Merlin, 
 Repertoire, Testament, ^ 1, 6, art. 3, p. 318, art. 2, p. 317, 318; Id. art. 
 3 ; 2 Froland, Mem. des Slat. p. 824, 825 ; Livermore, Dis. ^ 44, p. 48; 
 Id. ^ 47, 48, p. 50 ; Id. ^ 59 to 62, p. 58, 59, CO. 
 
 2 Rodenburg, De Div. Stat. tit. 2, ch. 1 ; 2 Boullenois, Appx. p. 10; 
 1 Boullenois, 77, 79, 154, 155, 194, 295 ; 1 Hertii Opera, De Collis. Leg. 
 § 4, n. 23, p. 133, edit. 1737 ; Id. p. 175, edit. 1716 ; Livermore, Dissert. 
 \ 31, p. 40 ; Id. ^ 44, p. 48 ; Id. ^ 45, 46, p. 49 ; Bouhier, Gout, de Bourg. 
 ch. 24, ^ 91 to ^ 108, p. 476, 477, 478 ; ante, 51, 51 a, ^ 52, ^ 52 a, ^ 53.
 
 718 CONFLICT OF LAWS. [CH. X. 
 
 inhahilitatem adenvptam domi, circumferat ubique, tit in uni- 
 versa territoria suimi statukim exerceat effedum} Yet Ro- 
 denburg himself deserts this doctrine, in regard to the 
 capacity and incapacity to make a will or testament, 
 which he holds must be according to the Lex rei sitw? 
 
 1 Rodenburg, De Divers. Stat. tit. 2, ch. 1 ; 2 Boullenois, Appx. p. 11 ; 
 ante, ^51. 
 
 2 Rodenburg, De Divers. Statut. tit. 2, ch. 5, n. 7 ; 2 Boullenois, Appx. 
 p. 38, 39. His language is : Sed, ut id, quod instat, aganaus : quid si 
 nostras testetur anno setatis decimo quarto, sortieturne affectum dispositio 
 in rebus, quae alterius regionis solo inhaereant, in qua major ad testandum 
 desideratur a;tas ? Sit dubitanda ratio, quod de personarum a;tate ac 
 capacitate lata lex in personam concepta esse videatur, adeoque ad quse- 
 cunque producenda territoria. Verum contra reale Statutum esse inde 
 dixeris, quod in statutum ac condilionem persons non sit scriptum, sed 
 expressim directum in rerum alienationes aut alterationes, et quidem per 
 solam testamenti speciem, adeoque circumscriptive ad istum alienationis 
 actum ; cujusmodi Statuta realia esse traditum saepius : et vel inde in pro- 
 posito conspicere est, quod immoto personas statu, quae nulla ex parte 
 tutelcB subducilur, auutoritate tuloris non spectaute minoris testationes, 
 tribuatur noslratibus ha3c testamenti factio, adeoque cum status non turbe- 
 tur, lex personalis dici nequeat. See also 4 Burge, Comm. on Col. and 
 For. Law, Pt. 2, ch. 12, p. 578, 579, On this subject, Mr. Burge has 
 well remarked : " The difficulty of adopting such a distinction arises 
 from the consequences to which it leads, for it seems to import, that if the 
 law of the situs prohibits the alienation by a minor, the question, whether 
 he is a minor, or in other words, whether he is competent to make a tes- 
 tament, is to be determined, not by that law, but by the law of his domi- 
 cil. But if the law had prohibited an alienation by a person who had not 
 attained the age of twenty-one or twenty-five years, or any other age, 
 which was prescribed by the law as the age of majority, the law of this 
 situs would prevail, and the competence of the person would depend on 
 his having attained that age. But without further pursuing the inquiry, 
 which has already been made in the former volume, it may be considered, 
 that the opinions of Dumoulin, Burgundus, Peckius, John and Paul Voet, 
 and the decision reported by Stockrnans, afford authority sufficient to jus- 
 tify the conclusion, that the capacity to alienate by testament is that which 
 is esiablished by the law of the country in which the immovable property 
 is situated, and by that of the domicil, when the testamentary disposition 
 regards movable property." Ibid. See also 1 Burge, Comm. on Col. and 
 For. Law, Pt. 1, ch. 1, p. 21, 22, 23 ; post, ^ 433 a.
 
 CH. X.] 
 
 REAL PROPERTY. 719 
 
 There are many others, who adhere to the same opinion.' 
 The groundwork of their argument is, that the capacity 
 
 1 Ante, ^ 51, 52, 53, 54, 60; 1 Fioland, M6m. dcs Statuts, 65, 66; 
 Liverm. Diss. 47, p. 54, § 55, '5> 56 ; 2 Froland, M6m. des Siat. p. 1576 
 top. 1594; Merlin R^'pertoire, Testament, ^ 1, 5, art. 2, p. 517,518; 
 1 Boullenois, Observ. 6, p. 127 to p. 140 ; 1 Boullenois, Observ. 28, 
 p. 705 to p. 731. — This is manifestly the opinion of Mr. Livermore, 
 (Diss. p. 40 to p. 42 ; Id. p. 48 to p. 57.) So of Merlin, (Repertoire, 
 Majorite, ^5; Autorisation Maritale, <^ 10, art 2; Id. Puissance Parier- 
 nelle,^ 7, p. 142 to 146) ; of Froland, (1 Froland, Mem. des Stat. p. 156, 
 171 ; 2 Froland, Mem. des Stat. p. 1595); of Bouhier, (Bouhier, Cout. 
 de Bourg. ch. 23, ^ 90 to 96, p. 461 ; Id. ch. 24, ^ 91, &c. p. 476 ; Id. 
 1 Boullenois, Observ. 28, p. 724); of Pothier, (Pothier, Cout. d'Orl^ans, 
 ch. 1, ^ 4, n. 7, p. 2); of Huberus, (Huberus, Lib. 1, tit. 3, §12; ante, 
 § 60); andof Herlius, (Heriii Opera, Tom. l,De Collis. § 4, n. 8, p. 123, 
 124, edit. 1737; Id. p. 175, edit. 1716.) Merlin in another plaee admits, 
 that a law, which prohibits a prodigal from making a testament, is per- 
 sonal ; but at the same time it will not prevent the prodigal from making 
 a valid will of immovable property in a foreign country, which allows it 
 (as in Bourbourg) ; for which he gives two reasons; first, that a law is 
 real, which permits one act to be done by a person, vvho is otherwise inca- 
 pable ; and secondly, because a real law always prevails when it comes in 
 conflict with a personal law. He applies the same rule to an unemanci- 
 pated son, who cannot by the law of his domicil make a testament, but 
 yet may alienate any of his property acquired in Hainault ; for its laws 
 form an exception to the general incapacity of the son, and therefore they 
 are real. Merlin, Repertoire, Testament, § 1, n. 5, art. 1, p. 310. This 
 opinion seems to coincide with that of Hertius, (1 Hertii Opera, De Col- 
 lis. Leg. 4, n.22, p. 133, edit. 1737; Id. p. 188, edit. 1716.) It seems 
 also supported by Rodenburg, (Rodenburg, De Div. Stat. P. 1, tit. 1, 
 ch. 2; 2 Boullenois, Appx. p. 4, 5, 6, cited by Merlin, ubi supra.) — But 
 Merlin says, that, if by the laws of the country of his domicil an uneraan- 
 cipated son cannot make a testament, and by the laws of another country 
 he has a general capacity ; in such a case such laws are personal and in 
 conflict, and therefore the law of the domicil is to govern. Merlin, Id. 
 p. 311. See also 1 Boullenois, Observ. 5, p. 77, 78. Boullenois lays 
 down some rules upon this subject, which seem also to have received the 
 approbation of Bouhier. (1.) When the personal statute of the domicil 
 is in conflict with the personal statute of another place, the law of the 
 domicil is to prevail. (2.) When the personal statute of the domicil is in 
 conflict with the real statute of the same or another place, it yields to the 
 real statute. (3.) When the real statute of the domicil is in conflict with 
 the real statute of the situs of the property, each one has its own authority
 
 720 CONFLICT OF LAWS. [CH. X. 
 
 and incapacity of the person must be uniformly the 
 same everywhere; that the law of the domicil ought 
 to regulate it ; and that it would be utterly incongru- 
 ous to make a minor in one place a major in another, 
 thus investing him wath opposite personal qualities.^ 
 
 § 433. This notion is combated with great vigor and 
 ability by other foreign jurists, whose opinions have 
 been already alluded to.^ Burgundus admits, that per- 
 sonal laws, as to capacity or incapacity, govern all per- 
 sonal acts, such as personal contracts. Nam^ {id Imola 
 et Castrensis scripsere.) qui inhahilis est in wio loco, etiam 
 in alio censehir inhahilis ; quod idiqiie accijnendum est de 
 habilitate, vel inhahilitate, quce a statuto personali procedit, 
 et ad actus personates dirigitur? But in regard to im- 
 movable property, he says, that it is sufficient, that a 
 person be of the age required by the law of the situs, 
 to authorize him to make a valid transfer, although he 
 may be incapable by the law of his domicil. His lan- 
 guage is ; Qidppe [sicut Bartolus existimat) hahilitas per- 
 sonam ad actus personates non trahit effectwn ad res sit as 
 
 in its own territory. 1 BouUenois, Pr. Gen. 29, 30, 31 ; Id. Observ. 5, 
 p. 181, 182 ; Bouhier, Cout. de Bourg. ch. 23, ^ 90, 96, p. 461 ; Id. ch. 
 24, ^ 91, &c. p. 476 ; Livermore, Diss. § 59, p. 58, 59. See the opinion 
 of Grotius cited, post, ^ 479. 
 
 1 Mr. Henry says, that the personal statutes of one place may act indi- 
 recily and by comity on immovable property situate in another; as a de- 
 cree oflunacy may by its effects deprive a parly of a power to alienate his 
 foreifrn property ; and so of the disability created by bankruptcy. Henry 
 on Foreign Law, 15. This seems inadmissible as a doctrine of the com- 
 mon law. 
 
 2 Ante, 52, 53, 54, 54, a. 
 
 3 Burgundus, Tract. 1, n. 7, 8, p. 19, See also Rodenburg, De Div. 
 Stat. tit. 2, ch. 1 ; 2 BouUenois, Appx. p. 11, 12 ; 1 Boullenois, Observ. 
 6, p. 127 to 131 ; Id. p. 199, 201, 202 ; Liverm. Diss. ^ 47, 48, 49, p. 50, 
 51, 52 ; Bouhier, Cout. de Bourg. ch. 24, ^ 91, 94 to 107, p. 476, 477, 
 478.
 
 CH. X.] REAL PROPERTY. 721 
 
 extra territorium. Proinde, d i)er agendum est aliqnid circa 
 rem, jam non respiciemus personam statum, quern foris as- 
 sumpsit ; scd an mancipens in ed sit conditione qiiam low- 
 rum situs ipse requirit} And again ; M quidem eodem 
 modo, quoties de jure, vel servitute, aut lihertate personce 
 quwritur, item de facultate ad res personates constituta, res- 
 pondendum erit secundum conditionem personce, quam induit 
 in loco domicilii. Et contra, ergo si de jure ac facultate, 
 quce a re ipsa proficiscitur, item de ejus servitute, atque lib- 
 ertate, plane ad leges situs spectare oportet. Cum enim 
 unicidque provincice suce 'proprioe sint leges, possessionihis 
 injunctce atque indictee, sane incapacitas foris adepta in con- 
 siderationem venire non potest ; sed omnis, sive qualitas, sive 
 personce hahilitas, quoad eadem bona pertinct, a loco situs 
 proficiscitur?' Bartolus affirms the same doctrine. Cum 
 est, quod de aliquo jure descendente ex re ipsa servari con- 
 suctudo vel statutum loci, idji est res? Boullenois, after 
 some fluctuations of opinion, comes to tlie result, that 
 the capacity to make a testament, so far as it regards 
 the person, is personal ; but so far as it regards immo- 
 vables, is real, and governed by the law of the situs of 
 the property.^ 
 
 § 433 a. Stockmans, Dumoulin, Bouhier, Paul Voet, 
 and John Voet maintain the same opinion.^ Dumou- 
 
 1 Burgundus, Tract 1, n. 8, p. 19 ; ante, ^ 54 ; Liverm. Diss. \ 47, 48, 
 p. 51, 52. 
 
 2 Burgundus, Tract 1, n. 8, p. 19, 20. See also 1 Boullenois, Obser. 
 6, p. 129, 130 ; Id. Obser. 9, p. 150 ; ante, ^ 372. 
 
 3 Bartol. ad Cod. Lib. 1, tit. 1, n. 27; Bartol. Oper. Tom. 7, p. 5. 
 
 4 1 Boullenois, Obser. 28, p. 718, 719, 720. See Td. Obser. 5, p. 81, 
 82, 83, 84, 101, 102. See also Merlin, R6pert. Testament, % 1, n. 8, 
 art. 1, p. 310 ; Cochin, CEuvres, Tom. 4, p. 555, 4to edit. 
 
 5 Liverm. Diss. ^ 49 to 52, p. 52, 53, 54; 1 Froland, Mem. des Stat, 
 p. 65, 66 ; 2 Froland, des Stat. p. 819 to 823 ; 4 Burge, Comm. on Col. 
 
 •and For. Law, Pt. 2, ch. 12, p. 579 ; ante, § 432, note. 
 CONFL. 61
 
 722 CONFLICT OF LAWS. [CH. X. 
 
 lin says ; Aut stahitum agit in rem, et quaciimqiie verhoriim 
 formula idatiir, semper inspicitiir locus uU res est} Si 
 staiutum dicat, quod minor 25 annis nan possit testari de 
 immohilibus, tunc enim non respicit personam, nee agit in 
 personam princifaliter, nee in solemnitatem actus, sed agit 
 in certas res, ad finem conservandi patrimonii, et sic est 
 reale. Quia idem est, ac si dictum esset, immohilia non pos- 
 sint alienari in testamento per minores. Unde statiitum 
 loci inspicietur, sive persona suhdita sit, sive non^ Stock- 
 mans says ; Jampridem Pragmaticonmi consensa et usu 
 fori invaluit, ut ubicumque agitur de renmi soli alienatione, 
 mancipatione, investura, siiccessione, aliisque translationis et 
 acquisitionis modis, insp)iciuntiir leges loci, uU res sitw sunt, 
 sive cpiccstio sit de cetate, vcl alia qualitate, habilitate, vel in- 
 habilitate personce sive agatur de statido verbis in rem, sive 
 in personam, directs concepto ; cum effectiis ipse, potius 
 quam verba, attendendus sit, qui prorsus realis est, quoties 
 de rebus soli transferendis et mancip)andis quceritur ; atque 
 proinde ah hoc effectu statutum omne, quod hue respticit, vel 
 eo rem deducit, pro reali habendum jiidicandiimque sit? 
 Paul Voet adds, that personal laws do not regularly 
 extend, so as to afFect immovable property in a foreign 
 country, either directly or consequentially.'* John Voet 
 
 1 Molin. Comm. ad Cod. Lib. 1, tit. 1, 1. 1, Conclusiones de Statut. 
 Tom. 3, p. 556 ; Liverm. Diss. ^ 81, p. 69. 
 
 2 Molin. Comm. ad Cod. Lib. 1, tit. 1, 1. 1, Conclus. de Statut. Tom. 
 3, p. 556 ; post, ^ 475, Bouhier, Cout. de Bourg. ch. 24, ^ 91 to ^ 102, 
 p. 476, 477, 478 ; 1 Froland, M6m. des Stat. p. 65. 
 
 3 Slockmans, Decis. 125, n. 9, p. 263 ; ante, § 54 ; Liverm. Diss. ^ 50, 
 p. 52, 53 ; 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 863, 
 864. 
 
 4 P. Voet, de Stat. § 4, ch. 2. n. 7, p. 124, edit. 1715 ; Id. p. 138, edit. 
 1661 ; ante, ^ 54, note. — Paul Voet admits, that personal laws accom- 
 pany the person everywhere, as to property, within the territory of the 
 government of which he is a subject ; but not as to any property else-^
 
 CH. X.] REAL PROPERTY. 723 
 
 has gone into an elaborate consideration of the subject 
 and positively denies, that personal laws can operate 
 out of the territory. Nulla tamen ratione (says he) suffi- 
 cienie, cum hcec nitantur, nco a Icgihus Romanis huic sen- 
 teiiiice patrocimum aceedere possil ; verius est iKrsonalia^ 
 non magis quam realia, territonum statuentis p)osse exceclere, 
 sive diredo, sive per consequentiam. And he proceeds to 
 put very pointed inquiries, whether any foreign coun- 
 try will permit its own territorial laws to be overthrown 
 by the laws of another country, on the subject of prodi- 
 gals, infamous persons, minors, illegitimacy, or legiti- 
 macy and heirship.^ 
 
 § 433 h. Christin^eus adopts the same opinion. Quod- 
 cum de rebus soli, hoc est immoUUhus, agitur, ct divcrsa di- 
 versarum possessionum hca, et situs propommtur, in acqui- 
 rendis, transferendis, et asserendis, dominiis, et in controver- 
 sia quo jure regimtur, ccrtissimam in iisu olservationcm esse 
 noti satis Juris, est, id Jus de plurihus spectari, quod loci est 
 vel situs, et siias quoqiie leges, statuta et consuetudines ser- 
 vandosfore; sic quod de talihus mdla cujusquam potestas 
 
 where. Statutum personals ubique locorum personam comitatur, in or- 
 dine ad bona infra territorium statuentis, ubi persona afFecta domicilium 
 habet. Non tamen statutum personate sese extendit ad bona immobilia 
 alibi sita. P. Voet, De Stat. (^ 4. ch. 2, n. 6, p. 123, edit. 1715 ; Id. 
 p. 138, edit. 1661. In another place he says : Immobilia statutis loci re- 
 guntur, ubi sita. P. Voet, De Statut. ^ 9, ch. 1, n. 4, p. 252, 253, edit. 
 1715 ; Id. p. 306, 307, edit. 1661 ; ante, ^ 54, note ; post, i^ i75, 483 b ; 
 ante, ^ 52, 52 a ; S. P. J. Voet, ad Pand. Lib. 1, tit. 4, ^ 2, 9, p. 43. 
 
 1 J. Voet, ad Pand. Lib. 1, tit. 4, ^ 7, Pars 2, De Stat. p. 40, cited at 
 large, ante, ^ 54 a. — There are some jurists who adopt an intermediate 
 opinion, holding, that, in order to transfer real property, the party must 
 have capacity according to the lex domicilii and the lex rei sita;. Thus, 
 if in the country rei sita3 the age to convey is twenty-one years, and in the 
 country of the domicil the age is twenty-five years, a party cannot convey, 
 although he is twenty-one years of age, nor unless he is twenty-five. 
 Ante, § 432, note, ^ 388.
 
 724 CONFLICT OF LAWS. [CH. X. 
 
 sit pneter territorii legem} Peckius is equally direct. 
 Etmim natiira statidi est, lit non extendcdiir ad bona in alio 
 territorio sita, uhi contraria stat juris disposition Bona 
 autem dicuntur esse in ejus jurisdictione, in cijiis tenitorio 
 sunt? And again ; Quod sive statidimi locjiiatur in rem 
 sive in personam, Juibeat locum in bonis positis in territorium 
 statiientium, et non in aliis^ 
 
 § 434. The opinion of these latter jurists is in coin- 
 cidence with that of the common law, as already stated ; 
 and it has been fully recognized in England, in a recent 
 case of which we have had occasion to take notice in 
 another place.^ Upon that occasion Lord Chief Justice 
 Abbott said ; " The rule as to the law of domicil has 
 never been extended to real property -, nor have I 
 found, in the decisions of Westminster Hall, any doc- 
 trine giving a countenance to the idea, that it ought to 
 be so extended. There being no authority for saying, 
 that the right of inheritance follows the law of the do- 
 micil of the parties, I think it must follow that of the 
 country where the land lies." The same doctrine was 
 concurred in by the other Judges.^ 
 
 § 435. Secondly, in relation to the forms and solem- 
 nities of passing the title to real estate.^ We have 
 already had occasion to examine the point; whether 
 
 1 Christin. Decis. 3, Vol. 2, p. 4; 1 Boullenois, Observ. 6. p. 127 to 
 p. 140. 
 
 2 Peck. Oper. De Testam. Conjug. Lib. 4, ch. 8, n. 5, p. 619, edit. 
 1666. 
 
 3 Idem. 
 
 4 Id. n. 6, 7, p. 620. 
 
 5 Ante, ^ 87. 
 
 6 Doedem. Birthwhistle v. Vardill, 5 Barn. & Cres. 438. But see S. C. 
 2 Clark & Finnell. 571 ; 9 Bligh, R. 32 to 88. 
 
 ' See 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 840 to 
 p. 870 ; Id. Vol. 1, Ft. 1, ch. 1, p. 21, 22, 23.
 
 CH. X.] 
 
 REAL PROPERTY. 725 
 
 executory contracts respecting real estate must not be 
 in the form prescribed by the local law, in order to 
 have validity ; as for instance, a contract for the sale 
 of land in England to be in writing according to the 
 Statute of Frauds.^ The result of that examination 
 was, that in countries acting under the common law, 
 the affirmative is admitted ; although foreign jurists 
 are divided on the point.^ It would seem clear, also, 
 
 1 Ante, ^ 363 to 373. See also 2 Burge, Coram, on Col. and For. Law, 
 Pt. 2, ch. 9, p. 867, 8G8, 869. 
 
 2 Ante, ^ 337, 363 to 373. — Mr. Foelix, speaking on this subject, 
 says : " Un principe aujourd'hui g6neralement adopt6 par I'usage des 
 nations, c'est que ' la forme des actes est r6gl6e par les lois du lieu dans 
 lequel ils sont faits ou passes.' C'est-a-dire, que, pour la validile de tout 
 acte, il suffit d'observer les formalit^s prescrites par la loi du lieu ou cet 
 acte a 6te dress6 ou r<^dig6 ; I'acte ainsi pass6 exerce ses effets sur les 
 biens meubles et immeubles situ^s dans un autre territoire, dont les lois 
 6tablissent des formalites diffferent6s et plus 6tendues (Locus regit actum.) 
 En d'autres termes, les lois, qui r6glent la forme des actes, 6tendent leur 
 autorite tant sur les nationaux que sur les Strangers qui, coiitractent ou 
 disposent dans le pays,et elles participent ainsi de la nature des lois r^el- 
 les." Foelix, Conflit des Lois, Revue Etrang. et Fran^., Tom. 7, 1840, 
 § 40, p. 346. 347. And again ; " Parmi les (!;crivains modernes, nous en 
 comptons trois, qui n'adoptent point la maxime, que la forme des actes est 
 regime par la loi du lieu dans lequel ils sont faits ou passes. Suivant M. 
 Eichhorn, les actes d'une personne, qui aflectent sa fortune, doivent, en 
 r^gle g6n6rale, 6tre conform6s aux lois de soq domicile, quant a la forme 
 et quant a leur substance, lorsqu'on se propose de les mettre a execution 
 dans ce domicile : la raison en est, dit I'auteur, dans le principe de la sou- 
 verainele des nations ct dans la loi 21 fF. de obi. et act. (Contraxisse unus- 
 quisque in eo loco intelligitur, in quo ut solveret, se obligavit.) Cette 
 regie, continue I'auteur, admet des exceptions ; 1" lorsque I'acte a 6ie fait 
 sans fraude dans un pays Stranger, ou il y a eu impossibilit6 de remplir les 
 formes prescrites au lieu du domicile de la personne, qui contracte ou qui 
 dispose ; 2° lorsque I'acte a 6t6 fait dans un pays Stranger dont les lois ne 
 prot6gent les acles et contrats qu'autant qu'on y a suivi une certaine 
 forme; 3" lorsque le statut r6el -exige, pour I'acqnisition ou I'alidnation 
 d'un immeuble, un acte qui precede, la forme et le contenu de cet acte 
 doivent se regler par cc statut r6el. — Par application de la r6gle profes6e 
 par M. Eichhorn, cet auteur soutient que le testament fait en pays 6tran- 
 
 61*
 
 726 CONFLICT OF LAWS. [CH. X. 
 
 according to the common law, that no conveyance or 
 transfer of land can be made, either testamentary or 
 
 ger, d'apr^s les formes qui y sont etablies, n'aura ses effets, dans la patrie 
 du testateur, quant a la forme, qu'autant que les lois de cette patrie recon- 
 naissent la meme forme, h moins que le testateur ne soit egalement deced6 
 dans le pays de la confection du testament: dans ce dernier cas seule- 
 ment, le dit testament sortirait ses effects dans sa patrie. La proposition 
 enseign^e par Eichhorn pent etre vraie en droit 6troit ; mais elle est 
 contraire a I'usage des nations, attest^ par le sentiment general des au- 
 teurs cit6s plus haut : on ne doit done pas s'arreter a I'opinion isol6e de 
 M. Eichhorn. D'ailleurs, les exceptions admises par cet auteur, surtout 
 la premiere, ramenent son syst^me a celui que nous avons expos6 au 
 n° 41 : en effet, notre syst^me a precisement sa base principale dans I'im- 
 possibilit6 ou du moins dans la difficulte de remplir a I'etranger les forma- 
 lites prescrites au lieu du domicile de I'individu. Du reste, notre sys- 
 teme admet aussi les deux exceptions enoncees par M. Eichhorn sous 
 les n°* 2 et 3, ainsi que nous Fexpliquerons au n" suivant. M. Muh- 
 lenbruch, en parlant des testaments, revient sur I'opinion par lui emise 
 dans sa doctrina pandectarum ; il se range de I'avis de M. Eichhorn. Le 
 troisieme auteur qui repousse I'application de la regie locus regit actum, 
 en ce qui concerne la forme des actes, c'est Hauss. II regarde cette 
 regie comme vague et inutile, et il n'en admet rapplication que dans 
 deux cas : le premier, lorsqu'il s'agit d'actes de procedure (si de processu 
 ordinando quseritur) ; le second, lorsque les parties, en vertu de leur 
 autonomie, se sont soumises aux lois du pays dans lequel elles ont passe 
 un acte. L' opinion de cet auteur a sa base dans une confusion d'id6es : 
 il a cherche <i appliquer la r^gle locus regit actum non seulement a la 
 forme des actes, mais encore a leur substance ; n'ayant pu parvenir a 
 justifier cette opinion, il a rejet6 enti^rement la dite regie, et il a cru trou- 
 ver uniquement dans la volont6 expresse ou tacite des parties, la base de 
 I'application des lois du lieu, quant k la forme et quant a la matiere de 
 I'acte. L'acte fait d'apres les formes prescrites par la loi du lieu de sa 
 redaction est valable, non seulement par rapport aux biens meubles ap- 
 partenant ;\ I'individu et qui se trouvent au lieu de son domicile, mais 
 encore par rapport aux immeubles, en quelque endroit qu'ils fussent 
 situ6s. Cette dernlere proposition, selon la nature des choses, admet une 
 exception, dans le cas ou la loi du lieu de la situation prescrit, a I'^gard 
 des actes translatifs dc la propri6l6 des immeubles ou qui y affectent des 
 charges r6elles, des formes particulieres qui ne peuvent etre remplies 
 ailleurs que dans ce m6me lieu ; telles sont la redaction des actes par un 
 notaire du meme territoire, la transcription ou I'inscription aux registres 
 tenus dans ce territoire, des actes d'ali6nation, d'hypoth6que, etc. L'acte 
 fait dans un pays Stranger suivant 16s formes qui y sont prescrites, ne perd
 
 CH. X.] REAL PROPERTY. 727 
 
 inter vivos, except according to the formalities prescribed 
 by the local law. Thus, in England, no instrument 
 not under seal can operate as a conveyance of land, so 
 as to give a perfect title thereto. An instrument, 
 therefore, not under seal, executed in a foreign country, 
 where no seal is required to pass the title to lands, 
 would be held invalid to pass land in England.' The 
 same rule is established in America, where it is held, 
 (as we have seen,) that the title to land can be acquired 
 and lost only in the manner prescribed by the law of 
 the place where the property is situate." [But the 
 
 pas sa force, quant a sa forme, par le retour de I'individu au lieu de son 
 domicile ; aucune raison de droit ne milite en faveur de I'opinion contraire. 
 La regie locus regit actum ne droit pas etre etendue au dela des limites 
 que r\ous lui avons trac6es au n° 40 ; ne s'applique qu'a la forme exte- 
 rieure, et non pas k la mali^re ou substance des actes, ainsi que nous I'ex- 
 pliquerons encore au ^ suivant. Ainsi, dans un testament, la capacity, 
 de la personne et la disponibilit6 des biens ne se reglent point par la loi du 
 lieu de la redaction. Dans les dispositions entre-vifs, soit a titre onereux, 
 soit a titre gratuit, la loi du lieu de la redaction pent avoir influ6, soit sur 
 I'ensemble de Facte, soit sur les termes employes par les parties ; et, sous 
 ce double litre, cette loi peul etre consultee par les juges comme moyen 
 d'interpretalion ; mais elle ne forme pas la loi d6cisive, i moins que les 
 parties ne s'y soient soumises expressement. La r^gle indiqu6e au n" 40 
 ne s'applique pas seulement aux actes publics ou solennels, mais aussi 
 aux actes sous signature privee, comme, par exemple, les testaments olo- 
 graphes. Feu M. Merlin fait remarquer que 'la regie locus regit actum 
 est g6n6rale, et il faudrait, pour la rcstreindre aux testaments reyus par 
 personnes publiques, une exception autoris6e par une loi expresse.' Nous 
 ajouterons que les raisons expos6es au n° 41 s'appliquent aux actes sous 
 seing-prive comme aux actes publics. Nous regardons comme une erreur 
 I'opinion contraire profess6e par M, Duranton. Nous empruntons a M. 
 Pardessus une observation importante. C'est que, dans tous les cas ou 
 I'une des parties invoque un acte pass6 hors du royaume, il faut avant tout 
 s'assurer que I'acte a cte passe dans le lieu r6gi par les lois auxquclles on 
 veut le soumettre." Id. ^ 42 to ^ 47, p. 350 to 354. 
 
 1 Ante, ^ 3G3, 364. See Dundas v. Dundas, 2 Dow & Clark, 349 ; 
 Abel! V. Douglass, 4 Denio, 305 ; Coppin t'. Coppin, 2 P. Will. 201, 293 ; 
 2 Fonbl. Equity, B. 5, ch. 1, ^ 6, note, p. 444, 445. 
 
 2 Ante, sS 427, 428 ; United States v. Crosby, 7 Cranch, 115 ; Cutter
 
 728 CONFLICT OF LAWS. [CH. X. 
 
 assignment of a mortgage of real estate is to be go- 
 verned bj the law of the State where made, and not 
 of the State where the property is/] 
 
 § 436. Erskine, in his Institutes, states this to be the 
 law of Scotland. "■ In the conveyance," says he, " of 
 an immovable subject, or of any right affecting heritage, 
 ihe grantor must follow the solemnities established by 
 the law, not of the country, where he signs the deed, 
 but of the State in which the heritage lies, and from 
 which it is impossible to remove it. For though he be 
 subject with respect to his person to the Le:^ domi- 
 cilii, that law can have no authority over property which 
 hath its fixed domicil in another territory, and which 
 cannot be tried, but before the Courts, and according 
 to the laws of that State where it is situated. And 
 this rule is so' strictly adhered to in practice, that a 
 disposition of an heritable jurisdiction in Scotland, 
 executed in England after the English foi:m, was 
 not sustained, even as an obligation to compel the 
 grantor to execute a more formal conveyance." ^ He 
 
 V. Davenport, 1 Pick. R. 81, 86 ; Hosford v. Nichols, 1 Page, R. 220; 
 Wills V. Cowper, 2 Hamm. R. 124 ; S. C. Wilcox's Rep. 278 ; Kerr v. 
 More, 9 Wheaton, R. 566 ; McCormick v. SuUivant, 10 Wheaton, R. 
 192 ; Darby v. Mayer, 11 Wheaton, R. 465. 
 
 ^ Dundas v. Bowler, 3 McLean, 397. 
 
 2 Ersk. Inst. B, 3, tit. 3, ^ 40, p. 515 ; Id. ^ 41 ; 2 Kames on Equity, 
 B. 3, ch. 8, ^ 2, p. 328. — ButErskine,ia the same section, makes a distinc- 
 tion between contracts to convey real estate situate in Scotland, and actual 
 transfers, holding, that if the contract to convey is good by the lex loci 
 contractus, it will be enforced in Scotland ; but an actual transfer will not. 
 " But," says he, " though obligations to convey, if they be perfected 
 secundum legem domicilii, are binding here ; yet conveyances themselves, 
 if of subjects within Scotland, are not always effectual, if they are not 
 executed according to the solemnities of our law." The other part of the 
 section has been already cited in a note, ante, ^ 365. The common law, 
 as we have seen, with masculine vigor, and upon principle, rejects such
 
 CH. X.] HEAL PROPERTY. 729 
 
 is well borne out in this doctrine by other author- 
 ities.^ 
 
 § 437. Boullenois admits, that, when an incapacity 
 to do an act, or to make a conveyance of a thing, ex- 
 cept by certain formalities, if created by the Lex rei 
 sitcv, that law must be observed in regard to that thing, 
 although the party be otherwise capable by the law of 
 his domicil.- He adds, in another place, that, if these 
 
 niceties ; and indeed it seenns repudiated by many of the learned Judges of 
 Scotland. Ante, ^ 365. See Lang v. Whitlaw, 2 Shaw, App. Cases, 
 p. 13 ; S. C. G Wils. & Shaw, p. 66, 67, note ; Brack v. Johnston, 
 5 Wils. & Shaw, p. 61. 
 
 1 Ante, ^ 365, 366, 367 ; Jerningham v. Herbert, 1 Tamlyn, R. 103 ; 
 Fergusson on Marriage and Div. p. 395, 397. — Mr. Burge, speaking on 
 this subject says : " There is a perfect uniformity in all systems of juris- 
 prudence in the adoption of this rule. Thus a contract in England for the 
 sale to A. of immovable property situated in England, or in those colonies 
 which are governed by the law of England, would transfer the dominion 
 in equity, and A. would become the owner; but if the property were 
 situated in British Guiana, it would not transfer the dominion. On the 
 other hand, a contract in British Guiana for the sale of immovable pro- 
 perty situated in England, or in those colonies, would transfer the domi- 
 nium on that property, but it would not transfer the dominium of property 
 situated in British Guiana." 2 Burge, Comm. on Col. and For. Law, Pt. 
 2, ch. 9, p. 865. 
 
 2 1 Boullenois, Observ. 23, p. 476, 477, 488,492, 498, 499, 500; ante, 
 ^ 240. — Boullenois, speaking on this subject, says : " Ces formes distinct- 
 ives des contrats font, pour la plupart, dict^es par le Droit commun ; mais 
 comme M'^ Ch. du Molin observe que chacune des Yilles ayant Jurisdic- 
 tion, peut prescrire une forme particuliere a chaque esp^ce de contrat, il 
 pourroit arriver que ces formes, ou formalit6s varieroient a I'infini ; que 
 dans le lieu du contrat, il y en auroit une ; que dans le lieu ou domicile, 
 il y en auroit une autre; et que dans le lieu de la situation, il y en auroit 
 encore une autre. Dans ces cas, si ceux qui contractent, sont domicilies 
 dans un lieu, qu'ils contractent dans un autre, et que la chose dont ils 
 contractent, soit encore dans un autre quelle forme les contractants don- 
 neront-ils a Facte, eu 6gard a toutes ces formalites variees et multipli6s? 
 S'il 6toit clair que ces formes appartenoient i la solemnite, il n'y auroit 
 pas de difficulte qu'il faudroit suivre ce que la Loi du lieu ou I'acte .se pas- 
 seroit, prescriroit a cet egard. Si ces formalites etoient habilitantes la
 
 730 CONFLICT OF LAWS. [CH. X. 
 
 formalities are attached to things and not to persons, 
 then the laws which prescribe them are real ; and, con- 
 sequently, the law of the place of their situation must 
 govern.^ Accordingly, he lays it down as a funda- 
 
 personne, il faudioit suivre la Loi du domicile de la personne habilil^e. 
 Si ail contraire elles appartenoient, sive ad substantialia contractus, sive 
 ad naturalia, sive ad accidentalia aut complementaria, c'est la ou se ren- 
 contreroit la v6ritable difficult^ ; et si vous donnez pour principe general 
 et indefini, qu'il faut toujours suivre la Loi da lieu ou se passe le contrat, 
 ou bien qu'il faut toujours suivre la Loi de la situation, ou bien qu'il faut 
 toujours suivre la Loi du domicile des contractants, il est certain que vous 
 donnerez un faux principe ; parce que, comme on le verra ci-apres, tantot 
 ces formalit^s appartiennent au contrat, tantot elles appartiennent et de- 
 pendent de la qualit6 de la personne." 1 Boullenois, Observ. 23, p. 465. 
 Boullenois, in another place, says ; " Qaelque vari^t6 qu'il y ait dans ce 
 nombre consid6r6 de differentes formalites ou solemnites, et quelque diffe- 
 rence qu'il y ait meme dans nos Auteurs pour le langage, ils conviennent 
 unanimement, que pour qu'un acte soit parfait, ex omni parte, il y a des 
 choses requises, pour habiliter et rendre capables les personnes qui con- 
 tractent, et elles sont attachees a la personne, et dependent du domicile ; 
 qu'il y en a de requises pour la preuve et I'authenticite, et elles dependent 
 du lieu ou se passe le contrat ; qu'il y en a attache6s aux choses, et elles 
 dependent de la Loi de la situation ; qu'il y en a qui sont de I'essence et 
 de la substance int^rieure et visc^rale des actes, et ces choses sont, selon 
 la nature de chaque acte, commun^ment et assez universellement les 
 m^mes partout ; qu'il y en a qui fleuent de la nature etesp^ce dont sont les 
 contrats, soit qu'elles proviennent de la propre nature de ces contrats, soit 
 qu'elles y soient liees et attach6es par un usage bien constant, et une Cou- 
 tume inv6t6r6e, et ce sont ces choses qui peuvent faire naitre le plus de 
 contestation; qu'il y en a qui ne servent que de complement aux actes 
 d6ja formes, et elles dependent des differentes Loix ; et qu'il y en a en- 
 core qui ne sont que de pure discipline, et d'autres dont I'accomplissement 
 plus ou moins prompt depend de la volont6 des parties, et celles-ci n'en- 
 trainent pas de grandes difficulties. Mais la veritable difficult^ en cette 
 matitire, est de savoir bien discerner toutes ces formalites, et les ranger 
 chacune dans la classe qui leur appartient, afin de ne pas appliquer a une 
 formalite d'une certainc classe, des principes et des decisions qui ne con- 
 venient qu'a une formalite d'une autre classe. Plusieurs exemples vont 
 faire sentir cette difficult6." 1 Boullenois, Obser. 23, p. 4.56, 457 ; Id. 
 p. 488, 492, 498, 499. See Merlin, R6pert. Testament, ^ 1, 5, art, 1, 2, 3. 
 1 1 Boullenois, Obs. 23, p. 467 ; Id. p. 499, 500. See Livermore, Diss, 
 p. 58 to 60 ; Henry on Foreign Law, p. 50.
 
 CII. X.] REAL PROPERTY. 731 
 
 mental rule : Quand la hi ex'ige certaines formalites, 
 lesqiielles sont aUachees aux choses mimes, il faiit sidvre la 
 hi de ki situation} Yet strangely enough, he departs 
 from this general doctrine in relation to testaments, 
 upon some subtile distinctions which he takes, between 
 extrinsic and intrinsic forms, between the solemnities 
 required to the perfection and authenticity of an act, 
 and those which relate to the capacity to do it, or to 
 dispose of the thing which is the subject of it.^ 
 
 § 437 «. Sandius (John a Sande) has given us some 
 quite as subtile distinctions, insisting that there is a 
 wide distinction between the solemnities of an aliena- 
 tion and the thing of which the alienation is the sub- 
 ject ; Quod multiim inter sit inter soknnitates dispositionis 
 et rem, de qiicL sit dispositio. The solemnities respect but 
 the form of the disposition or alienation and the things 
 disposed of or alienated constitute the substantial mat- 
 ter thereof; So that what respects the solemnities, 
 affects only the form of the act, and not the things. 
 Sohnnitates sunt forma ; res est siibjectum dispositionis ; 
 quare tale statidwn magis efficere videtur dispositionem 
 ipsam, qiiani rcm.^ Accordingly, Sandius holds, that, if 
 a foreigner makes his will according to the forms and 
 solemnities of the law of the place where it is made, it 
 will be valid even as to immovables in another country, 
 where different forms and solemnities are required. He 
 assigns the following reason. Hatio Jmjus sententice est, 
 quod statidum vet consuetudo, prcescribens solennitates testa- 
 
 1 2 Boullenois, Observ. 46, p. 467, Rule 4 ; ante, ^ 240. See 1 Boul- 
 lenois, Obser. 9, p. 151. 
 
 2 1 Boullenois, Obser. 21, p. 422 to 426. 
 
 3 1 Boullenois, Obser. 21, p. 422, 423 ; Sand. Decis. Frisic. Lib. 4, 
 tit., Defin. 14, p. 142, 143.
 
 732 CONFLICT OF LAWS. [CH. X. 
 
 menti, non afficiat res Testatoris, neque ejus personam, sed 
 ipsam dispositionem, qiice fit in loco statuti vel consuetudinis. 
 At in cujusvis actus solennitate mspicitiir consuctiido loci, 
 lihi is celehratur, eoqiie in iis quce spectant ad formam et 
 solennitatcs testamenU, inspicitiir consuetudo loci, uU illiid 
 factum est, licet testator ibi larem fixmn non liaheat} And 
 again ; Deinde hcec sententia non facile ad praxin trans- 
 ferri potest, uti incommoda testari volentihus, qui si liabeant 
 hona sita in diversis regionihus, quce, quod ad testamenti 
 solennitates attinet, diversis morihus reguntur, non possunt 
 secundum hanc sententiam uno testamento defungi, sed si 
 nolint pro parte intestati decedere, coguntur contra juris 
 rationem plura testamenta cxarare ; singula scilicet juxta 
 consuetudinem cujusque regionis, vel in uno testamento sequi 
 consuetudines plurium locorum, et actum per se individuum 
 huic, et illi loco diversimode impartiri} 
 
 § 438. D'Argentre and Burgundus maintain with 
 great clearness the general doctrine, that the law rd 
 sitm must govern as to the solemnities of alienation, 
 inter vivos and testamentary.^ D'Argentre's opinion 
 has been already in part stated.^ He adds in another 
 place. Cum de rebus soli, id est immobilibus, agitiir, (qu'ils 
 appellent dlieritage,) et diversa diversarum possessionem 
 loca, et situs proponuntur in acqidrendis, transferendis, aut 
 asserendis, dominiis,ct in controversia est, quo jure rcgantur, 
 certissima usu obscrvatio est, id jus de plmnbits spectari, 
 quod loci est, et suos cuique loco, leges, statida, et consuetii- 
 
 1 Sand. Decis. Frisic. Lib. 4, lit. 1, Dcfin. 14, p. 142, 143. 
 
 2 Id. p. 123. 
 
 3 1 Boullenois, Observ. 6, p. 129 ; Id. Observ. 9, p. 151 ; Id. Obser.22, 
 p. 422, 425 ; Cujaccii, Opera. Tom. 3, Observat. Lib. 14, ch. 12, p. 399, 
 edit. 1758; 2 Burge, Comm. on Col. on For. Law, Pt. 2, ch. 9, p. 866. 
 
 4 Ante, ^ 426.
 
 CH. X.] REAL PROPERTY. 733 
 
 dines servandos ; et qui cui mores de rehis, territorio, et 
 potestatihiis finihus sint recepii, sic tit de talibus nulla cvjits- 
 qiiam potestas sit prceter territoni legem. Sic in cordracti- 
 hiis, sic in testamcntis, sic in commercii omnibus, et locis con- 
 veniendi constittdum ; ne contra situs legem in immoUUhiis 
 qiddquam decerni possit privato consensu ; et par est sic 
 judicari} Burgundus, in addition to what has been 
 ah'eady cited/ says in another place ; Siquidcm solemni- 
 tates testamenti ad jura personalia non pertinent ; quia suni 
 qucedam qualitas bonis ipsis impressa, ad guam tenetur 
 respicere qiiisqids in bonis aliqidd alter at. Nam, id jura 
 realia non porrigunt effectum extra territorium ; ita et hanc 
 prce se virtidem fcrunt, quod nee alieni territorii leges in se 
 recipiant? This is also the opinion of other distin- 
 guished jurists."* 
 
 § 439. Froland treats, as clearly real, all laws, which 
 respect the alienation of immovable property, and con- 
 sequently that it is governed by the Lex reisitw. He 
 lays down, as a fundamental rule; La premiere (chose,) 
 que le Statid Reel ne sort point de son territoire. Et de Id, 
 vient, que dans le cas, ou il s^agit de successions, Sfc. d' alie- 
 nation cVimmeubles, S^-c. il faut s'aitacher aux coidmnes 
 des lieu, oil les fonds sont situes.^ Cochin lays down the 
 
 1 D'Argent. De Briton. Leg. Art. 218, n. 2, p. 647 ; ante, ^ 371 a. 
 
 2 Ante, ^ 372, 433, 438 ; post, § 477. 
 
 3 Burgundus, Tract. 6, n. 2, 3, p. 128, 129 ; post, (} 477 ; Rodenburg, 
 De Divers. Stat. tit. 2, ch. 3, {i 1, 2 ; 2 Boullenois, Appx. p. 1!), 20, 21 ; 
 1 Boullenois, Observ. 6, p. 129, 130; Id. Obser. 9, p. 151 ; Id. Obser. 
 21, p. 4-22, 423, 425 ; ante, ^ 433 a ; 4 Burge, Coram, on Col. and For. 
 Law, Pt. 2, ch. 12, p. 581 to 585 ; post, ^ 477. 
 
 1 Ante, ^ 363 to 373. See 2 Burge, Comra. on Col. and For Law, 
 Pt. 2, ch. 9, p. 865, 866 ; 1 Boullenois, Obser. 21, p. 423, 424 ; Sand. 
 Decis, Frisic. Lib. 4, tit. 1, Defin. 14, p. 142, where many opinions of 
 Jurists are cited. 
 
 5 1 Froland, Mem. 156 ; Id. 65. 
 
 CONFL. 62
 
 734 CONFLICT OF LAAYS. [CH. X. 
 
 rule, that, though the formalities of an instrument [actc) 
 may be, and indeed ought to be, according to the laAV 
 of the place of the instrument ; yet, when the clauses 
 or contents of such an instrument are to be applied to 
 property in another country, the law rei sitw must go- 
 vern. Les formalites, dont irn ade doit etre revetu, se reg- 
 lent par la loi, qui exerce son awpire dans le lieu, oil I'acte a 
 StS passe ; mais quand il s'agit d 'appliqiier les clauses qiCil 
 renferme, aiix Mens des parties contractantes, c'est la hi 
 de la situation de ces Mens, qui doit seule etre consultee} 
 
 § 440. But there are many other jurists, who main- 
 tain the same opinion, as Cochin, holding, that, if the 
 act or instrumeut have the formalities, which are pre- 
 scribed by the law of the place where it is made, it 
 ought to have a universal operation ; ^ and they apply 
 it especially to the case of testamentary dispositions of 
 real property.^ They found themselves upon the ex- 
 
 ^ Cochin, CEuvres, Tom. 5, p. 697, 4to. edit. — There is some difficulty 
 in reconciling this passage with another cited in the note to ^ 440. Per- 
 haps Cochin only means here to say, that the solemnities of the place, 
 where the act is done, are to be observed ; but that the interpretation of 
 the clauses or provisions of the instrument are to be according to the 
 law of the situs. See also 3 Burge, Comm. on Col. and For. Law, Pt. 2, 
 ch. 9, p. 866. 
 
 2 P. Voet, de Statut. ^ 4, ch. 2, ^ 6, p. 123, ^ 7, p. 124, edit. 171.5 ; Id. 
 p. 137, edit. 1661 ; J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, ^ 5, 6, p, 39, 
 \ 10, p. 43, 44 ; 1 Boullenois, Obser. 21, p. 426 to p. 433. — Mr. Liver- 
 more, in his Dissertations, sums up the opinions of different Jurists. 
 Liverm. Diss. ^ 78 to ^ 214, p. 69 to p. 130. So does Mr. Burge. 
 4 Burge, Comm. Pt. 2, ch. 12, p. 581 to p. 585. Sandius, or Sande, has 
 also brought together the opinions of different Jurists on this subject. 
 Sand. Decis. Frisic. Lib. 4, tit. 1, Defin. 14, p. 142, 143. 
 
 2 See Rodenburg, de Div. Stat. tit. 2, ch. 3 ; 2 Boullenois, Appx. 
 p. 19; 1 Boullenois, p. 414 to 421; Id. Observ. 21, p. 422 to 433; 
 1 Hertii, Opera, ^ 4, n. 10, p. 125, edit. 1737; Id. p. 179, edit. 1716 ; J. 
 Voet, ad Pand. Lib. 1, tit. 4, p. 2, 13, p. 43 : Bouhier, Cout. de Bourg. 
 ch. 23, ^ 81 to ^ 89, p. 460 ; Vinnius ad Instit. Lib. 2, tit. 10, ^ 14, n. 5 ; 
 1 Boullenois, Obser. 21, p. 426, 427 ; Merlin, Repert. Loi, *5» 6, art. 6, 7.
 
 CH. X.] RExlL PROPERTY. 735 
 
 treme inconyonience, wliicli would otherwise result from 
 requiring a party to make different testaments for their 
 property, lying in different countries, and the almost 
 utter impossibility, in many cases, of ascertaining at a 
 critical moment, what are the peculiar solemnities pre- 
 scribed by the laws of each of these countries.^ They 
 seem wholly to have overlooked, on the other side, the 
 inconvenience of any nation suffering property, locally 
 and permanently situate within its own territory, to be 
 subject to be transferred by any other laws, than its 
 own ; and thus introducing into the bosom of its own 
 jurisprudence all the innumerable diversities of foreign 
 laws, to regulate its own titles to such property, many 
 of which laws can be but imperfectly ascertained, and 
 many of which may become matters of subtile contro- 
 versy." Some of these jurists press their doctrine so 
 
 1 Rodenburg, De Div. Stat. tit. 2, ch. 3 ; 2 Boullenois, App. p. 19 ; 1 Boul- 
 lenois, p. 414 to 417; Vinnius,ad Instit. Lib. 2, tit. 10,^ 14, n. 5 ; 1 Boul- 
 lenois, Obser. 21, p. 426, 427 ; Hertii, Opera, De Collis. Leg. ^ 4, n. 10, 
 p. 126, edit. 1737; Id. p. 179, edit. 1716; Id. n. 23, p. 133, edit. 1737; 
 Id. p. 189, edit. 1716 ; Foelix, Conflit des Lois, Revue Etrang. et Franc. 
 Tom. 7, 1840, i^* 41, p. 347, 348. John Voet has given the reasoning on 
 this side of the question. J. A^oet and Pand. Tom. 1, Lib. 1, tit. 4, P' 2, 
 § 13, 15, p. 45, 46, See also 4 Burge, Comm. on Col. and For. Law, 
 Pt. 2, ch. 12, p. 590 ; post, 444 a. 
 
 2 Cochin says, it is one of the most uniform principles, that the form of 
 acts depends upon the law of the place where they are passed ; so that, 
 if a man is domiciled at Paris, and there has all his property, (biens,) but 
 he makes his testament in another province under a different law, the law 
 of the latter is alone to be regarded in its form, though the succession to 
 the testator, either of heirship or testamentary, may be regulated by the 
 law of Paris. Cochin, CEuvres, Tom. 2, p. 72, 4to. edit. See ante, 
 ^ 43!}. D'Aguesseau treats with some sarcasm those who venture to sug- 
 gest a doubt on the point. " We leave such discussions," says he, " to 
 the ultramontane Doctors. We say with D'Argentr6, that these ques- 
 tions are not worthy to occupy a moment's attention. No one can doubt, 
 that the formalities of a testament ought to be governed by the law of the
 
 736 CONFLICT OF LAWS. [CH. X. 
 
 far, as to doubt, whether a transfer, made according to 
 the solemnities of the place, where the property is lo- 
 cally situate, would be good, if not also executed accord- 
 ing to the law of the place where the act is done.^ 
 
 § 441. The opinion of these jurists is supported by 
 Dumoulin. His language is ; Et est omnium dodoriim 
 sententia, iiUcumque consiietiido, vel statutum locale disponit 
 de solemnitate, vel forma actus, licjari ctiam exteros, ihi ac- 
 tum ilium gerentes, et gestum esse validum, et efficacem iihi- 
 qiie, etiam suikt honis solis extra territorium consuetiidinis 
 vel statuti? In another place he says ; Aid statutum lo- 
 
 place where the act is done." D'Aguesseau, ffiuvres, Tom. p. 637, 
 4to. edit. 
 
 ^ Rodenburg, De Div. Stat. tit. 2, ch. 3 ; 2 Boullenois, Appx. p. 12 ; 
 1 Boullenois, 417; Id. Observ. 21, p. 428,429,430. Grotius appears 
 to have held the same opinion, and to have applied it to the case of wills 
 and testaments. See post, ^ 479, where his opinion is cited. 
 
 2 Molin. Opera, Tom. 2, edit. 1681, Consil. 53, ^ 9, p. 965 ; ante, ^ 260, 
 note, ^ 274 a, ^ 372 a ; 1 Boullenois, Observ. 21, p. 423, 429. Mr. Liver- 
 more manifestly entertained the opinion, that it was sufficient for a testa- 
 ment of immovable property to have the formalities prescribed by the law 
 of the testator's domicil. After adverting to Dumoulin's division of sta- 
 tutes into those which relate to the solemnities and forms of acts, (nudatn 
 ordinationem vel solemnitatem actus,) and those which concern the merits 
 and decisions of causes, (quae meritum causae vel decisionem concernunt,) 
 he added : " The statutes of the first class I do not consider to be either 
 personal, real, or mixed. They do not act directly upon persons nor upon 
 property, but upon the act for the purpose of determining its authenticity. 
 The laws of some countries require, that a testament shall be made in 
 presence of seven witnesses. In other countries the law requires only the 
 presence of a notary and two witnesses. These laws dispose of the 
 solemnities of all testaments made within their jurisdiction ; but they 
 neither affect the capacity of the testator, nor do they dispose of his pro- 
 perty. The law of the testator's domicil determines his capacity to make 
 a testament; the law of the place where his immovable property is situ- 
 ated, determines, whether it may be disposed of by testament or not ; the 
 will of the testator disposes of his property; and the sole purpose and 
 effect of the statute, which requires a certain number of witnesses to a 
 testament, is to show, whether that Avill has been expressed or not."
 
 CH. X.] REAL PROPERTY. 737 
 
 qidtiw de Ms, quce concermmt niidam ordinationem vel solem- 
 nitatem actus, et semper inspicitiir statutum vel coiisiietiido 
 loci, tibi actus celehratur, sive in contractibiis, sive injiidiciis, 
 sive in tcstamentis, sive in imtnimeniis, aid aliis confici- 
 endis. Ita quod testamentwn, factum coram duohis tcstihus 
 in hcis, id)i non reqidritur major solemnitas, valet uhique. 
 Idem in omni alio actu} And yet Dumoulin in another 
 place uses language not very consistent with the fore- 
 going, unless indeed he is there to be understood as 
 speaking, not of the forms and solemnities of testaments, 
 but of the operation and interpretation thereof. Sed 
 emergit incidens qiiwstio, cujus loci inspiciatur, an loci testa- 
 menti, contractus, vel loci dominantis, an vero loci servientis ? 
 Et omnino dicendum inspiciendam consiietudinem hci servien- 
 tis, sen rei, quce conceditiir? 
 
 § 441 «. Bouhier maintains, that in general the forms 
 and solemnities of all acts done, (which of course in- 
 clude testaments,) should be according to the law of the 
 place where the acts are done, even when the property 
 is situated elsewhere ; at least if the custom of the situs 
 is not in opposition to it.^ He lays it down in another 
 place among his general rules. Tout statut, qui concerne 
 les formalites extrinseques des actes et leur aidhenticite, est 
 personnel; en sorte que, quand Vacte est passe dans les for- 
 mes usitecs an lieu, oil il est redige, il a par tout son execu- 
 
 1 Molin. Opera, Tom. 3, ad Cod. Lib. 1, tit. 1, 1. 1, Conclus. des Sta- 
 tutis, p. 554, edit. 1681 ; ante, § 260 ; post, § 479 k ; 4 Burgs, Comm. 
 on Col. and For. Law, Pt. 2, ch. 12, p. 583 ; 1 Boullenois, Observ. 21, 
 p. 423, 424 ; ante, ^ 365 a. 
 
 2 Molin. Opera, Tom. 1, De Fiefs, § 33, n. 86, Tom. 1, p. 410, edit. 
 1681 ; 1 Boullenois, Observ. 21, p. 423, 424, 425 ; Burgundus, Tract. 6, 
 n. 2, p. 128 ; Bouhier, Cout. de Bourg. ch. 23, ^ 39 to ^ 44, p. 454, 455. 
 
 3 Bouhier, Cout. de Bourg. ch. 28, ^ 10, p. 550. 
 
 62*
 
 738 CONFLICT OF LAWS. [CH. X. 
 
 Hon ; and he then applies the rule expressly to testa- 
 ments/ 
 
 § 442. Paul Voet holds the opinion, that the solem- 
 nities of contracts and other instruments respecting the 
 transfer of immovable property are to be according to 
 the laws of the place where the act is done, and not of 
 the m utce : for he holds laws respecting solemnities 
 not to be either real or personal, but of a mixed nature. 
 Stcdidwn qidppe circa solemnia, nee est in rem, nee in inr- 
 sonam, sed mixti generis?' He therefore insists, that, if a 
 testament is made according to the solemnities of the 
 place rei sitce, but not according to that of the testator's 
 domicil, it will not be valid as to property situate else- 
 where. Venim (says he) cjuid de solemnibus, in negotiis 
 adhihendis, stcduendum erit, si locoriim statida discrepent ? 
 Finge, qiiempiam testari in loca domicilii, adhibitis solemni- 
 hiis rei sitce, non sui domicilii ; valehitne testamenium rcdione 
 honorum cUihi sitorum ? Respondeo, cpiod non. Neque enim 
 aliter testamentimi valere potest, qiiam si ea servetiir solem- 
 nitas, qiiam reqiiirit locus gestionis.^ He further holds, 
 that if a testament is made by a person in his own 
 country {sui loci) according to the forms and solemnities 
 required by the laws thereof, it will be valid in respect 
 to his immovable property in other countries, where 
 different forms and solemnities are required. And this 
 without any distinction, whether such person has re- 
 tained his original domicil, or whether he is settled in 
 
 1 Bouhicr, Cout. de Bourg. cli. 23, <5» 81, 82, p. 460 ; Id. ch. 28, ^ 10 to 
 § 20, p. 550, 551 ; Id. ch. 21, ^ 219, p. 417. 
 
 2 P. Voet, De Statut. ^ 9, ch. 2, n. 3, p. 263, edit. 1715; Id. p. 318, 
 319, edit. 1661. 
 
 3 P. Voet, De Statut. § 2, ch. 2, n. 1, p. 262, edit. 1715; Id. p. 317, 
 .edit. 1661.
 
 CH. X.] REAL PROPERTY. 739 
 
 another country. Quid, si', quisjnam testetur secundum 
 solefnnia sid loci, jnda coram notario et duobus testihiis, an 
 vires capict testamcntum ratione honorum extra ierritorimn 
 statuentis j'accntium, pufa in Frisid, iihi plures solemnitates 
 requiriuntur ? Aff. {affirmo.) Idque i^rocedit, sive testator 
 domicilium j!?nw5 retinuerit, sive alio transtulerit} And he 
 adds, that if a foreigner makes his testament according 
 to the law of the pUice where he is only temporarily 
 abiding, it will still be valid, as to his immovable pro- 
 perty elsewhere, even in his domicil. Quid, siflorensis 
 secundum loci statutum testamentum condat, iihi tantiim Jios- 
 pitaiur, an valehit alibi, ubi ' vel immobiUa, vel domicilium 
 Jiabct ? Respondeo, quod ita. Cum enim agatur de actus 
 solemnitate, qam quoscunqiie obligat, in loco negotiiim aliquod 
 gerentes, eiiam obligat forenscm ibi disponentem, si siiam dis- 
 positionem' vel suum actum velit utilem, licet non prcecise 
 liget eundem? He makes an exception, indeed, of a 
 party's making a testament in a foreign country, with 
 a view to a fraudulent evasion of the law of his own 
 country. Si tamen qidspiam, id evitaret solemnitatem loci 
 sui domicilii, in fraudem talis statuti, extra territorium se 
 conferat, ejus testamentum non valere existumarem? 
 
 1 P. Voet, De Stat. § 2, ch. 2, n. 2, p. 262, edit. 1715 ; Id. p. 317, 
 
 318, edit. 1G61. 
 
 2 P. Voet, De Stat. ^ 9, ch. 2, n. 3, ^ 262, 263, edit. 1715 ; Id. p. 318, 
 
 319, edit. 1661 ; post, \ 475. 
 
 3 P. Voet, De Stat. ^ 9, ch. 2, n. 4, p. 264, edit. 1715 ; Id. p. 318, 
 319, edit. 1661. — In 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 
 12, p. 590. Mr. Burge supposes, that Paul Voet holds a soniewhat dif- 
 ferently modified opinion, like that of Rodenburg, that the testament will 
 will be good if made either according to the law of the place where it is 
 made, or according to that where he has his domicil. Post, ^ 444. See 
 also ante, i^ 365 a. I do not see any thing in the passage of Paul Voet, 
 referred to by Mr. Burge, that leads to such a conclusion. The text con- 
 tains all the cases put by Paul Voet on this point, in his Work De Statut. 
 § 9, ch. 2.
 
 740 CONFLICT OF LAWS. [CH. X. 
 
 § 443. Huberus supports the same opinion. " In 
 Holland/' says he, "a testament maybe made before 
 a notary and two witnesses. In Friesland it is not 
 valid unless established by seven witnesses. A Bata- 
 vian made a testament in Holland, according to tlie 
 local law, under which property situate in Friesland is 
 demanded. The question is, whether the judges in 
 Friesland ought to sustain the demand under that tes- 
 tament. The laws of Holland cannot bind the Frisi- 
 ans ; and, therefore, by the first axiom, the testament 
 would not be valid in Friesland ; but by the third 
 axiom it would be valid ; and, according to that, judg- 
 ment should be pronounced in favor of the testament. 
 But a Frisian goes into Holland, and there makes a 
 testament according to the local law (inoj'e loci,) con- 
 trary to the Frisian law, and returns into Friesland, 
 and dies there. Is the testament valid ? It is valid 
 by the second axiom ; because while he was in Hol- 
 land, although temporarily, he was bound by the local 
 law ; and an act, valid in its origin, ought to be valid 
 everywhere by the third axiom ; and this without any 
 discrimination of movable or of immovable property. 
 So the law is, and is practised.^ On the other hand, a 
 Frisian makes his will in his own country before a 
 notary and two witnesses ; and it is carried into Hol- 
 land, and property situate there is demanded. It will 
 not be allowed ; because the testament was from the 
 beginning a nullity, it being made contrary to the local 
 law. The same law will govern if a Batavian should 
 make a testament in Friesland, although it would be 
 
 1 The axioms here referred to by Huberus are those already stated in 
 ^29.
 
 CH. X.] REAL PROPERTY. 741 
 
 valid if made in Holland ; for in truth, such an instru- 
 ment would from the beginning be a nullity, for the 
 reasons just stated." ^ 
 
 § 443 a. What Iluberus here says may seem not 
 very consistent with what he has said in another pas- 
 sage, already cited ; 2 but he has endeavored to recon- 
 cile the passages by the following remarks. But it 
 may be asked, (says he,) whether what we have already 
 said does not give rise to an objection, that if a testa- 
 ment is made, which is valid by the law of the place, 
 it ought to have the same effect even in respect to pro- 
 perty situate elsewhere, where it is lawful to dispose 
 thereof by will ? There is no such objection ; because 
 the diversity of laws of that sort does not affect the 
 immovable property, neither does it speak concerning 
 the same, but only directs the act of making a testa- 
 ment ; which, when rightly executed, the law of the 
 country does not prohibit that act from being valid in 
 respect to immovable property, so far as no character, 
 , impressed upon that property by the law of the place, 
 is injured or diminished. This observation has a place 
 also in contracts. Thus, if certain things or rights of 
 the soil of Friesland are sold to persons in Holland, in 
 a mode prohibited in Friesland, though valid, wh5re 
 the sale takes place, the things are understood to be 
 well sold. The same is true as to things not, indeed, 
 immovable, but annexed to the soil. But if corn grow- 
 ing on the soil of Friesland should be sold in Holland, 
 according to the lasts, as it is called, the sale is void, 
 although the law of Holland does not speak on the 
 
 1 Huberus, Lib. 1, tit. 3, ^ 4, 1^ 15. 
 
 2 Ante, ^ 426.
 
 742 CONFLICT OF LAWS. [CH. X. 
 
 point; because it is prohibited in Frieslancl, and it 
 adheres to the soil, and is part thereof. Sed an hoc 
 non ohstat ei, quod antea diximus, si factum sit testa?7ientwn 
 jure loci validum, id effectum habere etiam in bonis alibi 
 sitis, tibi de illis testari licet ? Non ohstat ; cjida legiim 
 diversitas in ilia specie non afficit res soli, neque de illis 
 loquitur, sed ordinal actum testandi ; quo recte celebrate, 
 Lex Reijjuhl. non vetat ilium actum valere in immobilibus, 
 quatenus mdlus character illis ijjsis a Iccje loci impressiis 
 Imditur aut imminidtur. Hcec ohser^vatio locum etiam in 
 contractibiis halet ; qidhiis in Hollandia venditce res soli 
 Frisici, modo in Frisia prohihito, licet, uhi gestus est, valido, 
 recte venditce intelliguntur ; idernque in rehis non quiclem 
 immohilihiis, at solo cohcerentihus ; idi si frumentum soli 
 Frisici in Hollandia secundum lastas, ita dictas, sit vendi- 
 tum, non valet venditio, nee quidem in Hollandia secundum 
 earn JUS dicetur, etsi tale frumentum ihi non sit vendi pro- 
 hibitum ; qida in Frisia interdictum est; et solo cohceret 
 ej usque pars est) 
 
 § 444. Rodenburg seems at first to consider, that 
 laws, which regulate the forms and solemnities of acts 
 touching property, are neither strictly personal laws, 
 nor real laws ; but a third sort. Suhsequitur tertium et 
 tdtfmum genus, eorum niminim statidorum, qidbus lex prce- 
 figitur actid, qui a persona peragendus, eundum actum vel 
 vetando, vel certo etiam modo circumscribendo.- He after- 
 wards proceeds to state, that the opinion commonly 
 entertained by jurists is, that as to such acts, ihQ law 
 
 1 Huberus, De Conflict. Leg. Lib. 1, tit. 3, ^ 15. — Whether this dis- 
 tinction is satisfactory or not, will be for the learned reader to decide. See 
 post, ^ 476. 
 
 2 Rodenburg, De Divers. Stat. tit. 2, ch. 3, ^ 1 ; 2 Boullenois, Appx. 
 p. 19.
 
 CH. X.] REAL PROPERTY. 743 
 
 of the place, where the act is done, is alone to be 
 regarded, although it respects immovable property. iSi 
 de solemnibiis quceratur, ea jampridem in foro ac pidpito 
 prcevalidt opinio^ %d spedandcc sint loci cvjiisque leges, iihi 
 actus conficitur} Quare sicuU ex more loci solemnite, ordi- 
 natiim fiierit testamentwn, valitunim illud, idiciinqiie oportii- 
 mt txecpd? He then remarks, that Cujaccius and Bur- 
 gundns had attacked this doctrine ; holding, that testa- 
 tors are bound to observe the forms and solemnities of 
 the res sitce. He distinguishes cases of this sort from 
 cases of contract, which bind only the person; Cvjus 
 ossibiis iibiqiie inhcEret, semel ex forma loci contractce ohliga- 
 tionis, nexus. De re vero alibi consiitxda disponendi, ant 
 ejus in alium transcribendce formam hcec non concernunt. 
 Realiiim namqiie jiirium eorimive actuiim, qidbiis fit manci- 
 pation aid dominium transfertur, aliam esse rationem, vel 
 quotidiana praxis edocet, et rede dispidat Burgundus. Jus 
 in re, ut nascatur, quod Juc ex causa testamenti contingit, 
 non posse id proestare alterius regionis consuetudinem, id 
 forma illd ac solemnibiis circumdaret alienor mn fundorum 
 alterationes, adeoque omnino jus diceret extra territoiium? 
 He then proceeds to examine the reasoning, upon which 
 the opinion is maintained, that the law of the place of 
 the making a testament should govern as to the forms 
 and solemnities thereof, and not the law rei sitce. He 
 admits his own view to be, that a testament made ac- 
 cording to the forms and solemnities of the place where 
 it is made, ought to be held valid -, and also, that a tes- 
 tament, made in such place, according to the forms of 
 the law rei sitm, ought equally to be held valid. The 
 
 1 Rodenburg, De Divers. Stat. tit. 2, ch. 3, § 1 ; 2 Boullenois, Appx. 
 p. 19. 
 
 2 Ibid. 3 Ibid.
 
 744 CONFLICT OF LAWS. [CH. X. 
 
 former lie treats as an indulgence, founded in general 
 convenience ; the latter, as correct in point of strict 
 right. Ego poiiiis idrohiqiie pro testamento respondendum 
 diixerim, quippe personce qiialitas ad siimmam rei nonfacit, 
 tiimfactura, si Btcdida ilia, in solemnilates scripta, persona- 
 lia forent, id siihditiis iis gauderet, non gaiideret exterus : 
 sed contra constat ea mere realia esse. Qidcunqiie enim 
 fucrit, sive incola, sive exterus, qui rem allenare intendit, ne- 
 cesse Jiahet respicere ad solemnitatem territorii, cui bona sunt 
 ohnoxia. Quare dicendum est decidendi qucestionis ratio- 
 nem in modo prolatis positam esse : necessitatis niminim ra- 
 tioncm, summumque favorem, qid pro testamentis facit, im- 
 petrdsse, id, qiiamvis ilia mancijyent ceqiie atque alienationes 
 inter vivos, ideoque consimiliter componenda forent ad nor- 
 mam loci, uU res sitce sunt, suffecerit tamen ordindsse, secun- 
 diim leges loci, ubi actus conficitiir. Proinde si qids eo, quod 
 ad iestandum expeditius sua causd comparatum est, noluerit 
 idi, quod ei forte promptius sit componere suprema ad loci 
 leges, cui bona suhjaceant, quo minus testamentum ejus vali- 
 turum sit, non video : nidla enim Juris ratio, aid wqidtatis 
 benignitas patitiir, id quce salubriter pro idilitate Jiominum 
 introducmdur, ea nos duriore interpretatione contra ipsorum 
 commodum producamus ad severitatem ; nee cum super- 
 addatur alia testandi forma, adimitur prior, quod novce so- 
 lemnitatis adjectionem p)otias dedisse DD. quam piiorem ac 
 ordinarium permiddsse videantur. JJnde consequens est di- 
 cere, ne disputem sine speciei appositione, Amersfurti, ubi 
 coram trinis testibus una cum Notario ultima conduntur elo- 
 gia, viribus subsistere celebrata, coram binis testibus supra 
 Notarium, de bonis in Ilollandia, aut in alia Ptwinciw nos- 
 trw parte sitis} It is hardly possible to conceive a 
 
 1 Rodenburg, De Div. Stat. tit. 2, ch. 3, n. 1, 2 ; 2 Boullenois, Appx. 
 p. 21, 22 ; 1 BuuUenois, p. 414 to 418 ; Id. Obs. 21, p. 422, 423. See
 
 CH. X.] 
 
 REAL PROPERTY. 745 
 
 stronger illustration of the difficulty of undertaking to 
 build up systems of jurisprudence upon mere theory 
 
 also 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 865 to 868. 
 — Mr. Burge says : "In selecting the law, by which it is to be deter- 
 mined, whether the acts or instruments of alienation have been made with 
 the necessary solemnities to render the alienation valid, the distinction 
 must be made between those which are required for the proof or authenti- 
 cation of the act, and those which are required to be observed as the con- 
 dition on which alone the law either authorizes the alienation, or gives to 
 it an effect which it withholds if they are not observed. The former are 
 called sometimes solemnia probantia, and the latter solemnia habiiitantia. 
 Thus, with respect to the former, if the lex loci contractus treats as null 
 and void every contract, the subject-matter of which exceeds in value a 
 certain sum, if it be not reduced to writing and proved before notaries, &c. 
 when the notarial proof is not that which is prescribed, the contract will 
 be void in whatever place it is enforced. So if those solemnities which the 
 lex loci contractus requires, have been observed, and the contract accord- 
 ing to that law is valid and obligatory, it will be valid everywhere else. 
 But the latter proposition is subject to the qualification, that it does not 
 affect immovable property, subject to a law in the country of its situs, 
 which annuls a contract because it has not been entered into with the 
 solemnities which it requires. If the disposition of the law does not annul 
 the contract on account of its non-observance of the solemnities which are 
 prescribed, but gives to it a degree of authenticity or credit which it will 
 want if they are not observed, or if, in other words, its effect is either to 
 dispense with a more formal proof of the instrument, if it bears on it evi- 
 dence of their observance, or if in consequence of the non-observance it 
 attaches a presumption against the execution of the instrument, and there- 
 fore requires from the parties a greater burden of proof, such solemnities 
 are to be classed amongst the proofs in the cause, which are governed 
 neither by the lex loci contractus, nor by that of the situs, but by that of 
 the forum. This question, in the opinion of Paul Voet, regards ' Non 
 tam de solemnibus, quam proband! efiicacia ; qua3 licet in uno loco suffi- 
 ciens, non tamen ubique locorum ; quod judex unius territorii nequeat 
 vires tribuere instrumento, ut alibi quid operetur.' The solemnities v\hich 
 are called habiiitantia, and constitute the mode, by which alone the aliena- 
 tion of immovable property is permitted to be made, or by which alone 
 that alienation can give to the grantee or purchaser certain rights, are 
 those which are prescribed by the lex loci rei sitee. As that law may 
 impose restrictions, which may wholly or partially withhold the power of 
 alienating immovable property situated within its territory, to which all 
 persons owning that property are subject, it may prescribe the condiiions 
 on which such alienation may be made. Thus the law of Scotland does 
 CONFL. 63
 
 746 CONFLICT OF LAWS. [CH. X. 
 
 and private notions of general convenience. The com- 
 mon law has wisely adhered to the doctrine, that the 
 
 not permit a destination of heritage by a testamentary disposition, neither 
 does it permit certain deeds to be made in lecto. One of the conditions 
 may be the form or manner in which it shall be made. This solemnitas 
 dispositionis is tanquam qusedain qualitas rebus impressa, and the validity 
 of the alienation must depend on its compliance with the prescribed 
 solemnity. Among-st the instances illustrating the species of solemnities 
 prescribed by the lex loci rei sitas, and to which effect must be given in all 
 questions respecting the validity of the alienation, may be mentioned the 
 Statute of Frauds in England. Unless there be such an agreement in 
 writing as is required by it, or as is sanctioned by the judicial construc- 
 tions which it has received, no estate or interest in immovable property 
 situated in England will pass, although, according to the law of the place 
 where the agreement was made, it might be sufficient if it were by parol. 
 The lex rei sitce must be invoked if the question regard the insinuation or 
 registration of donations or other instruments, or the effects, which are 
 induced by the neglect of it. Dumoulin seems to treat it as a solemnity 
 which is of the substance of the contract, and to be governed by the lex 
 loci rei sitas. ' Insinuatio et transcriptio in regislris ordinarice curiae loci 
 semper omnibus his casibus est de forma et substantia ; quemadmodum 
 insinuatio donationis apud magistrum census erat de substantia, si excede- 
 bat quingentos aureos.' Boullenois considers that if the registration does 
 not take place when it is proscribed by the lex loci rei sitse, the alienation 
 is void : 'Que si le donaieur est domicil6e dans un royaume, et les biens 
 situes dans un autre, et que ces deux endroits requierent une insinuation, 
 je dis dans ce cas contre Thesaurus, que si elie n'est pas insinu^e dans les 
 deux endroits, mais dans le seul domicile, donatio insinuatur virtute legis 
 municipalis, non porrigit effectum suum ad bona sita extra territorium, 
 parce que si la donation n'est pas insinu6e dans le lieu de la situation, elle 
 n'est pas revalue de la formalite reelle qu'exige la loi de la situation.' " 
 Vattel affirms, " that the validity of a testament, as to its form, can only 
 be decided by the domestic judge, whose sentence, delivered in form, 
 ought to be everywhere acknowledged." But at the same titne he admits, 
 that the validity of the bequests may be disputed, as not being according 
 to the lex rei sitae. Vattell, B. 2, ch. 7, ^85; Id. ^ HI. Mr. Foslix 
 seems to hold a similar opinion. He says : " Une autre question est celle 
 de savoir, si le contractant ou disposant, qui se trouve en pays eiranger, 
 pent se borner a employer les formes prescrites par la loi du lieu de la 
 situation de ses immeubles, au lieu de suivre celle du lieu de la redaction? 
 Nous tenons pour I'affirmative, par une raison analogue a celle donnee sur 
 la question pr6c6dente. Le Statut rt^el r«!^git les immeubles; c'est un 
 principe resultant de la nature des choses; la permission d'nser des formes
 
 CH. X.] REAL PROPERTY. 747 
 
 title to real property can pass only in the manner, and 
 by the forms, and to the extent allowed by the local 
 law. It has thus cut off innumerable disputes and 
 given simplicity, as well as uniformity, to its operations. 
 § 444 a. John Voet maintains, in substance, the same 
 opinion as Rodenburg ; and insists, that it is sufficient, 
 for the validity of testaments of immovable property, 
 that the forms and solemnities thereof should be either 
 according to the law of the place where the testament 
 is made, or according to the law of the place rei sitce. 
 His language is; JSfcqiie minus de stcdidis mixtis, actus 
 cujiisque solennia rcspicientibus, pcrcrehuit, imiiper Jiahitis 
 de summo cujusque jure ac ijotedcde rcdiociniis, ad validi- 
 tatem actus cujusque sufficere adhiUtionem solennitatum, 
 quas lex loci, in quo actus geritur, prwscripserit ohservandas ; 
 
 6tablies par la loi du lieu de la redaction de I'acte n'est, qu'une exception 
 introduite en faveur du propri6taire, et a laquelle il lui est loisible de 
 renoncer. Tel est anssi le sentiment de Rodenburg, de Jean Voet, et de 
 Vander Kessel ; Cocceji soutient meme, que la forme des actes enlre vifs 
 ou testamentaires est r6gl6 exclusivement par la loi de la situation des 
 biens. Fachinee et Burgundus partageaient cet avis, mais par rapport 
 aux testaments seulement. En Belgique, I'^dit perpetuel de 1611, art. 13, 
 ordonnait, qu'en cas de diversite de coutume au lieu de la residence du 
 testateur et au lieu de la situation de ses biens, on suivrait, par rapport a 
 la forme et a la solemnite, la coutume de la situation. Paul Voet, Huber, 
 Hert, Hommel, et I'auteur de I'ancien repertoire de jurisprudence, se pro- 
 noncent pour la nullite. Ce dernier invoque l'autorit6 de Paul de Castres, 
 au passage rapport6 au n° precedent, et le principe, que la loi lie tous les 
 individus, qui vivent dans son ressort, ne fut-ce que momentan6ment. 
 Nous renvoyons a ce sujet aux observations presentees sur la question 
 precedente. Mevius distingue entre le citoyen faisant partie de la nation 
 dans le territoire de laquelle les biens sont situes, et entre I'etranger ; il 
 n'accorde qu'au premier la facuU6 de tester ou de contractor partout 
 d'apr^s les formes prescrites au lieu de la situation. L'auteur ne donne 
 pas de motif de cette distinction, et nous ne pouvons la trouver fondle." 
 Fcelix, Des Conflit des Lois, Revue Strang, et Frang. Tom. 7, 1840, ^ 50, 
 p. 359, 360. See also 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 
 12, p. 581 to p. 587; Id. p. 590.
 
 748 CONFLICT OF LAWS. [CH. X. 
 
 sic, et quod ita gestum fiierit, sese 2yomgat ad hona moUlia 
 et immobilia uUcunqiie sita aim in territoriis, quorum leges 
 huge aliiim, longeqiie i^leniorem reqidrunt solenniwn inter- 
 ventiim ; quod ita placuisse videtur, turn, ne in infinitum 
 pro]?e multiplicarentur et testamenta et contractus, pro nu- 
 mero regionum, diverso Jure circa solennia utentiiim ; atque 
 ita summis implicarentur molestiis, amhagihus, ac difficulta- 
 tihus ; quotqiiot actum, res plures plurihus in locis sitas 
 concernentem, expedire voluerint : tum etiam, ne plurima 
 hand fide gesta nimis facile ac propre sine culpa gerentis 
 conturharentur. He afterwards adds ; Posito vcro hoc 
 generali circa solenniwn adhihitionem jure, execuiiendum su- 
 perest, quid statuendum sit, si quis, in loco aliquo actum ge- 
 rens, neglectis loci istius solennihis, adhihuerit ea, cqiice vel 
 domicilii vel rei sitce statuta requirunt, sive diversa ilia sint, 
 sive p)auciora ? Mgnsingerus quidem et Michael Grassus 
 actus ita gestos mdlius fore momenti pronunciant, sive actum 
 gerens extra domicilii locum servaverit solennia domicilii, sive 
 ea, qucB requirehantur in loco rei immoUlis sitce. Cum enim 
 aide dictum sit, cdiquem et ratione domicilii, et ratione lono" 
 rum immoUlium, sulditum esse magistrcdihus locorum, in 
 quibus vel domiciUum fixit, vel hona immobilia possidet ; ac 
 quisque magistratus secundum jus siimmum {dequo superius 
 disp)utatum, quodque hie usum invenit) sui stcdidi vires nan 
 male tueatur, quo usque potest, iniquus sane esset in sihi suh- 
 jectum rcdione domicilii aut bonorum, si non respectu bonorum 
 in suo territorio jacentium, ratam haberet uUimam volunta- 
 tem aid contractum ejus, a quo sua statuta solenniwn intuitu 
 servanda videt ; maxime, cum hdc ratione defendens sui 
 statuti potestatem non conturbet aut subvertat alibi bene gesta, 
 atque adeo nequaquam altcrius territorii magistratibus idlam 
 videripossit injuriam facere} 
 
 1 J. Voet, ad Pand. Lib. 1, tit. 4, P^ 2, ^ 13, 15, p. 45, 46 ; 4 Bui^e,
 
 CH. X.] HEAL PROPERTY. 749 
 
 § 444 h. Cujaccius seems to liolcl, that the law of the 
 place of the domicil of the testator ought to be regarded 
 as to the forms and solemnities of making wills and tes- 
 taments, without reference to the place, where the will 
 is made, or the property is situated. Quwri hodie sccpe- 
 niimcro solet, cujus regionis ant civitatis leges morcsve scr- 
 viri oporteat in ordinando testamento ; nam quot sunt civita- 
 tcs, tot fere sunt ordinandi testamenti leges et mores ; et so- 
 leo dicere, 2')atriam testatoris solam s^ectari oportere, &c. Jus 
 igitur jpatrice spectatiir, potius quam jus commune Fopuli 
 Romani, &e. Sum igitur patrice et civitatis legihus aut mo- 
 jibus quisquis testari dehet, d^c. Denique non spectari locum 
 volo, in quo hona sunt, scd patriam testatoris, &c. Et domi- 
 cilii potius quam originis spectari patriam. Possit autem 
 qiiis quo loco habet bona, ejus neque originalis esse, neque in- 
 cola} Nee ejus loci idla JiabeUtur ratio infaciendo Testa- 
 mento. This might seem sufficiently explicit. On an- 
 other occasion he says; Intelligimus, inquam, in faciendo 
 testamento, privilegium et morem patriae Testatoris, spectari 
 oportere, non situm hononmi. Nam sola possessio bonorum 
 non creat milii patriam. Si p)ossideo prcedium in hac urbe, 
 hwc urbs non est ideo mea, nisi in ea posid domicilium. So- 
 lam possessionem nee civem facere, nee incolam. Ergo in 
 servandis solemnihus testamenti non spectabo situm bonorum, 
 lit pro vario situ bonorum etiam varia solemnia observentur^ 
 variique mores in exequenda defuncti voluntate ; sed spectabo 
 tantum morem et privilegium patrice testatoris? 
 
 Coram, on Col. and For. Law, Pt. 2, ch. 12, p. 590 ; ante, ^ 410 to 
 §443. 
 
 1 Cujacii, Opera, Tom. 3, Observ. Lib. 14, cap. 12, p. 399, edit. 1758 ; 
 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12, p. 582. 
 
 2 Cujac. Opera, Tom. 9, Comm. ad Cod. Lib. G, tit. 23, p. 709, edit. 
 1768 ; Bouhier, Cout. de Bourg. ch. 28, § 8, p. 549 ; 1 Boullenois, Obser. 
 21, p. 423 ; 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 886 ; 
 
 63*
 
 750 CONFLICT OF LAWS. [CH. X. 
 
 § 445. Thirdly ; in relation to the extent of the inte- 
 rest to be taken or transferred. And, here, there seems a 
 
 4 Burge, Comm. Pt. 2, ch. 12, p. 582; Sand. Decis. Frisic. Lib. 4, tit. 8, 
 Defin. 7, p. 194. Vinnius holds a similar opinion. He says ; Qiisesitum 
 est, an testamentum juxta alicujus loci consuetudinern, aut Statutum fac- 
 tum, etiam vim habet extra ilium locum ; exempli gratia testator ibi tes- 
 tamentum fecit, ubi coram duobus testibus et Notario testari licet, ut in 
 hac nostra Batavia ; qua?ritur, an valeat etiam in iis locis, ubi septem tes- 
 tes requiruntur, uti in Frisia, ubi sequuntur jus civile. Affirmant comm. 
 DD. in L. 1, C. C. de summ. Trinit. et secundum banc Sententiam stepis- 
 sime judicatum. Sunt tamen qui in contrarium eant, et in qusestione pro- 
 posita sic distinguendum arbitrantur, ut circa res quidem mobiles, et 
 nomina, admittenda sit communis interpret, sententia. At circa res soli, 
 spectandum jus ejus loci in quo sitse sunt, &c. Mihi prior sententia vide- 
 tur probabilior, multuraque referre utrum Statutum disponat circa solem- 
 nitatem alicujus actus, an circa rem, puta fundum, locurave ; quae Statuta 
 in rem concipiuntur. Qualia sunt, quie de successione ab intestato dispo- 
 nunt, rem ipsam Laud dubie afficiunt, ut ubicumque, sit ejus loci ubi est, 
 legibus obstringatur. Idemque habendum de Statutis, quae circa habilita- 
 tem personarum, dispensando aliquid, disponunt. Gail), Coras. Gomes. 
 Quae autum Statuta disponunt circa actus solemnitatera duntaxat, cum 
 neque rem afficiant, neque personam actum celebrantis, sed ipsam solum- 
 modo dispositionem, quee, fit in loco Statuti, vel consuetudinis, rationi, et 
 juri consentaneum est, ut ea vim suam exerant etiam ad bona alibi sita; 
 quoniam actuum solemnia ad eorum spectant Jurisdictionem, in quorum 
 territorio celebrantur ; et alias contra ralionem juris, testato decedere vo- 
 lenti, plura testaraenta essent contenda, aut quod absurdum est, plurium 
 locorum consuetudines in uno testamento exquirere oporteret, actumque 
 unum, atque individuum, qualis est testamenli, secundum diversa loca 
 adjudicari. Ubi contraria scite expedit, et prudenter temperat, novam 
 quandam distinctionem Fachinei adde, qujE nos, lib. 2, Select. Quest. C. 
 19. Plane si Lex expresse testatores sequi jubeat jus loci, in quo bona 
 sita sunt, aliud dicendum est. Talis est constitutio Principum Brabantise, 
 emissa anno 1611, cujus meminerunt Burgundus, &c. Vinn. ad Inst. Lib. 
 2, tit. 10, ^14, n.5; 1 Boullenois, Observ. 21, p. 426, 427. Gaill is 
 equally explicit. Alibi statutum est, ut testamentum coram Notario et 
 duobus testibus factum valeat. Qujpsitum, utrum tale testamentum ubi- 
 que vires habeat, etiam extra territorium statuentium, ubi forie major 
 solennitas requiritur, vel jus Civile observantur. Conclusum quod sic ; 
 quia ex communi Doctor, jopinione, statutum disponens citra solennitates 
 testamenti, extendit se etiam extra territorium, ita ut hajres succedere pos- 
 sit in omnibus bonis", ubicunque sitis, et in universum jus testatoris ; quia 
 quoad solennitates attenditur consuetudo loci, in quo actus celebratur.
 
 CH. X.] REAL PROPERTY. 751 
 
 perfect coincidence between the doctrine of the common 
 law, and that maintained by foreign jurists. It is uni- 
 versally agreed, that the law rei sitce is to prevail in re- 
 lation to all dispositions of immovable property, and 
 the nature and extent of the interest to be alienated. 
 If the local law, therefore, prescribes, that no person 
 shall dispose, by deed or by will, of more than half, or 
 a third, or a quarter of his immovable property ; or, that 
 he shall dispose only of a life estate in such property ; 
 such laws are of universal obligation, and no other oi^ 
 farther alienation thereof can be made.^ It follows that, 
 if the local law prohibits the alienation of certain kinds 
 of immovable property, or takes from the owner the 
 power of charging them with liens, or with mortgages, 
 that law will exclusively govern in every such case. 
 D'Aguesseau fully assents to this doctrine, and says, 
 that no one can be ignorant, that, when the question is, 
 what portion of immovable property may be devised, it 
 is necessary invariably to follow the law of the place, 
 where the property is locally situate.^ 
 
 Gain, Pract. Observ. Lib. 2, Observ. 123, p. 548. See Peckius, De 
 Testam. Conjug. ch. 28, n. 9, p. 620, who holds a similar opinion. Fce- 
 lix, Conflit des Lois, Revue Strang, et Franc. Tom. 7, 1840, »^ 37, p. 307 
 to 312; ante, ^ 426 to 428. 
 
 1 1 Boullenois, Prin. G6n. 30, p. 8; Id. Observ. 10, p. 205; and 
 
 1 Froland, Mem. 156 ; Rodenburg, De Div. Stat. tit. 2, ch. 2, ^ 1 ; 
 
 2 Boullenois, App. p. 14; post, ^ 479. 
 
 2 D'Aguesseau, CEuvres, Tom. 4, p. 637, 638, 4to. edit. — Mr. Burge, 
 oa this subject, says ; " In a former part of this vv'ork it has been seen, 
 that the power to alienate immovable property by contract was a quality 
 impressed on the property ; that the law from which it was derived or by 
 which it was regulated, was a real law; and that the existence of this 
 power and the validity of its exercise must be decided by the law of the 
 country in which that property was situated. ' Rebus fertur lex, cum 
 certam iisdem qualitatem imprimit, vel in alienado, v. g. ut ne bona avita 
 possint alienari, vel in aquirendo, v. g. ut dominium rei immobilis vendilae
 
 752 CONFLICT OF LAWS. [CH. X. 
 
 § 446. An illustration of the doctrine may be bor- 
 rowed from the English jurisprudence, prohibiting alien- 
 
 non aliter acquiratur, nisi facta fuerit judicialis regisnatio.' The power of 
 making the alienation by testament is no less qualitas rebus impressa, than 
 that of making the alienation by contract. When, therefore, the question 
 arises, whether the immovable property may be disposed of by testament, 
 recourse must be had to the lex loci rei sitae. That law must also decide, 
 whether the full and unlimited power of disposition is enjoyed, or whether 
 it is given under restriction. The validity of the testamentary disposition 
 depends in the latter case on its conformity to that restriction, whether 
 the restriction consist in limiting the extent or description of property, 
 over which the power of disposition may be exercised, or the persons in 
 whose favor the disposition is made, or in requiring that the testator should 
 have survived a certain number of days after the execution of the act, by 
 which the disposition was made. The total or partial defect of the will on 
 the ground, that it did not institute heirs, or that it omitted to name the 
 heirs, the disherison of the heirs, the grounds on which the disherison may 
 be justified are essentially connected with the power of disposing of im- 
 movable property by testament, and are therefore dependent on the law of 
 its situs. Many of the restrictions on the power of disposing by testament 
 have been considered by jurists expressly with reference to the operation 
 of the law by which they were created. Rodenburg states the rule, 
 ' Unde certissima usa ac observatione regula est, cum de rebus soli agitur, 
 et diversa sunt diversarum ppssessionum loca et situs, spectari semper 
 cujusque loci leges ac jura, ubi bona sita esse proponuntur, sic ut de tali- 
 bus nulla cujusquum potestas sit, prseter territorii leges.' He illustrates it 
 by referring to a statute which prohibits a disposition of allodial property 
 by testament. He considers such a statute a real law, which renders 
 inoperative any testamentary disposition of the property in whatever place 
 the testament is made. Ferriere has stated this doctrine ; ' Si je legue 
 un heritage propre situe en coutume, que en dtfende la disposition, tel 
 legs est nul, et ne peut etre parfourni sur les biens situes en cette cou- 
 tume, quoi qu'acquest, parce qu'a regard des choses, dont on peut dis- 
 poser par derniere volont6, on considere la coutume ou elles sont situ6es. 
 Celui, qui a son domicile en cette coutume peut instituer sa femme dans 
 les biens, qu'il a dans le pais de droit ecrit, comme il aet6 jug6 par arret 
 du 14 Aoust, 175i rapporte par Marion au de ses plaidoyers, ce qui doit 
 etre sans diiriculi6.' A testament made in a foreign country bequeathing 
 heritable subjects situated in Scotland, is not sustained in that kingdom, 
 though by the law of the country where the testament was made, heritage 
 might have been settled by testament, because by the law of Scotland no 
 heritable subject can be disposed of in that form. On this principle a 
 Scot's personal bond taken to heirs and assignees, but ' secluding execu-
 
 CH. X.] 
 
 REAL PROPERTY. 753 
 
 ations and devises of real estate in mortmain, or for 
 charitable purposes. If an American citizen, owning 
 lands in England, or a Scotchman owning lands in Eng- 
 land, should alienate, or devise such lands in violation 
 of the mortmain acts, the instrument^ whether inter vivos, 
 
 tors,' cannot be bequeathed by a foreign testament. But in all questions 
 touching heritable subjects situate abroad, the foreign testanrient will be 
 given effect to according to the lex loci. Dumoulin lays down the same 
 doctrine respecting the restriction on the testamentary power over biens 
 propres. ' Unde statutum loci inspicietur, sive persona sit subdita, sive 
 non ; itam si dicat, haeredia proventa ab una. linea, redeant ad haredes 
 etiam remotiores lineas, vel hseredes linete succedant in hajrediis ab ilia 
 linea proventis. Yel quod illi de linea non possunt testari de illis intotum, 
 vel nisi ad certam partem. Hsec entm omnia et similia spectant ad caput 
 slatuti agentis in rem, et prscedentem conclusionem.' Again; the 
 statute which prohibits a disposition to particular persons, or (which in- 
 volves the same consequence) requires the disposition to be made in favor 
 of persons, and therefore excludes all others, is a real law. ' DirectX 
 enim in rerum alienationera acripta ha3c lex realis omnino dicenda est: nee 
 enim statutum reale sit, an personale metiri oporlet a ratione, qua; a con- 
 jugali forsan qualitate fuerit ducta, sed abipsa re, qua3 in prohibitione sta- 
 tuti ceciderit.' So, also, it has been held, that the law which requires 
 that the testator should have survived the execution of his testament, will 
 control the disposition of property, situated in the country where that law 
 prevails, although the testament is made, or the testator domiciled in a 
 place where no such law exists. If a testator, whose domicil and real estate 
 were both in Normandy, made a will in some other place, in which he 
 had occasion to be present, but where the law did not require, that the 
 testator should survive forty days, it was held, that the survivorship was 
 essential to the validity of the testament, so far as it related to the real 
 property in Normandy. If these questions arise on the power to dispose 
 of movable property by testament, the law by which they are decided is 
 that of the domicil ' pour les meubles, ils suivent la loi du domicile, et il 
 ne sauroit jamais y avoir de choc entre diff"6rentes coutumes, en sorte qu'il 
 est assez inutile, quant aux meubles, d'agiter si le statut, qui permet de 
 tester, ou qui le defend, est personnel, ou s'il est r6el.' The rule is 
 stated by Grolius, ' Ubi de forma sive solemnitate testamenti agitur, 
 respici locum conditi testaraenti ; ubi de persona antestari possit, jus do- 
 micilii ; ubi de rebus qua; testamento relinqui possunt, vel non, respici 
 locum domicilii in mobijibus, in rebus soli situm loci.' 4 iJurge, Comm. 
 on Col. and For. Law, Pt. 2, ch. 5, p. 217 to 220.
 
 754 CONFLICT OF LAWS. [CH. X. 
 
 or testamentary, would be held void. And the same 
 principle would apply to a trust created in personal 
 property, to be invested in lands in England for the 
 like purposes.^ 
 
 § 447. Fourthly; in relation to the subject-matter, or 
 what are to be deemed immovables. Here as we have 
 already seen, not only lands and houses, but servitudes 
 and easements, and other charges, on lands, as mort- 
 gages and rents, and trust estates, are deemed to be, in 
 the sense of law, immovables and governed by the Lex 
 rei sitce^ But in addition to these, which may be 
 
 1 Attor. Gen. r. Mill, 3 Russell, R. 328 ; S. C. 2 Dow & Clark, 393. 
 
 2 Ante, ^ 382; Polh. Cout. d'OrjSans, ch. 1, ^ 2. — P. Poet puts on 
 this point the very sensible distinction, that whether rents are to be deemed 
 personal, or real, depends upon the question, whether they are charged on 
 real property or not. ' Vel enim talium redituum nomine sunt affecta im- 
 mobilia, id est, super immobilibus sunt constituti, et immobilibus erunt 
 adscribendi, adeoq-ue statutum loci spectabitur ; vel immobilia affecta non 
 sunt illis reditibus, tumque mobilibus poteruntaccenseri ; atque adeo statu- 
 tum loci personae, cujus illi sunt reditus, inspici debebit. P. Voet, De 
 Stat. ^ 9, ch. 1, n. 13, p. 259, edit. 1715 ; Id. p. 313, edit. 1661. And 
 he includes among immovables all movables, which are intentionally 
 annexed permanently to the freehold. ' Nisi tamen perpetui usus gratia 
 ex destinalione patris-familias in uno loco manere debeant; quo casu 
 immobilibus comparabuntur.' Id. n. 8, p. 255, edit. 1715; Id. p. 309, 
 edit. 1G61. Rodenburg, speaking on this point, says: De reditibus pecu- 
 liaris esto consideratio. Et illi quidem, qui a re prtestantur, vel cnjus 
 nomine constituta hypotheca est, collocantur a Doctoribus in immobilium 
 numero, ita tamen, si perpetui sunt, secus si temporales, qua disiinctione 
 et Burgundus tititur. Sed vix est ut non utrobique idem sit dicendum : 
 cum enim ob id ipsum annumerentur immobilibus, quod rei immobili per 
 hypothecit; conslitutionem innitantur, ponendi alioquin, vel si perpetui sint, 
 in mobiliura classe ; nee hypothecae iiiimutetur natura, temporis aliqua ad 
 redimendum pra'stitutione, nihilque ad summam rei intersit, certum an 
 incertum luitionis sit tempus, consequens est dicere constitutos ad tempus 
 reditus, a^que atque perpeiuos, immobilium nomine venire, maxime cum 
 per hypothecs) conslitutionem, res ad summam debiti habeatur quasi alie- 
 nata, quaj per solutionem redimitur, Rodenburg, De Div. Stat. tit. 2, 
 ch. 2,^2; 2 Boullenois, Appx. p. 15. See, also, Burgundus, Tract 2, 
 n. 29, 30, p. 77, 78, 79.
 
 CH. X.] ' REAL PROPERTY. 755 
 
 deemed universally to partake of the nature of immov- 
 ables, or (as the common law phrase is) to savor of the 
 realty, all other things, though movable in their nature 
 which by the local law are deemed immovables, are, in 
 like manner, governed by the local law. For every na- 
 tion, having authority to prescribe rules for the disposi- 
 tion and arrangement of all the property within its own 
 territory, may impress upon it any character, which it 
 shall choose -, and no other nation can impugn, or vary 
 that character. So, that the question, in all these cases, 
 is not so much, what are, or ought to be deemed, ex sua 
 natiird, movables, or not ; as what are deemed so by 
 the law of the place, where they are situated. If they 
 are there deemed part of the land, or annexed (as the 
 common law would say) to the soil or freehold, they 
 must be so treated in every place, in which any contro- 
 versy shall arise respecting their nature and character.^ 
 In other words, in order to ascertain what is immovable 
 or real property, or not, we must resort to the Lex loci 
 rei? 
 
 § 448. Hitherto we have spoken of alienations and 
 acquisitions made by the acts of the parties themselves. 
 The question next arises, whether the same principles 
 apply to estates and rights acquired by operation of law. 
 It may be affirmed, without hesitation, that, independent 
 of any contract, express or implied,^ no estate can be 
 acquired by operation of law in any other manner, or 
 to any other extent, or' by any other means, than those 
 prescribed by the Lex reisitce. Thus no estate in dowry, 
 or tenancy by the curtesy, or inheritable estate, or in- 
 
 1 See Ersk. Institutes, B. 3, tit. 9, ^ 4 ; ante, ^ 382. 
 
 2 Chapman v. Robertson, 6 Paige, R. 630. 
 
 3 Sec Livermore, Diss. § 88, 89, p. 72, 73.
 
 756 CONFLICT OF LAWS. [CH. X. 
 
 terest in immovable property, can be acquired, except 
 by such persons, and under such circumstances, as the 
 local law prescribes. Thus, if the law of a state, where 
 a man is domiciled at his death, should confer a title 
 of dower on his wife, though she were an alien, that 
 would not prevail in any other state, where an alien 
 is not dowable, and where the intestate owned real 
 estate. 
 
 § 449. Many questions upon this subject have arisen 
 in the course of the discussions upon the matrimonial 
 rights, conferred by the Lex domicilii over immovable 
 property, situate in foreign countries. In the different 
 Italian States, and formerly in some of the provinces of 
 France, which were governed by the Roman Law, there 
 existed various regulations with regard to dowry or 
 dotal property, lucrum dotis. By the laws and customs 
 of some places, the husband gained by survivorship 
 the whole of the dotal effects ; by others a third, by 
 others a fourth, and by others nothing.^ One of the 
 questions, which has been most elaborately discussed 
 among foreign jurists, is, whether, in such a case, the 
 law of the matrimonial domicil ought to govern the 
 rights of the parties, as to immovable property in fo- 
 reign countries, as it does in the matrimonial domicil.^ 
 It seems agreed on all sides, that, where there is in 
 the country m sitce a prohibitory law against any 
 such dotal rights, and against any contract to create 
 them, the law of the matrimonial domicil cannot prevail, 
 if a different rule exists there.^ But the question has 
 
 1 Livermore, Diss. ^ 86, p. 71 ; 1 Domat, B. 1, tit. 9, § 1 ; Code Civil 
 of France, art. 1540 to art. 1573 ; 2 Boullenois, 89, 90. 
 
 2 1 Boullenois, Observ. 29, p. 732 to p. 818. 
 
 3 Livermore, Diss. ^ 85 to 91, p. 71 to 75 ; 2 Boullenois, 89, 90, 91,
 
 en. X.] REAL PROPERTY. 757 
 
 been made, whether in the absence of any such prohi- 
 bitory law, or any express contract, the law of the ma- 
 trimonial domicil ought not to prevail, so as to give the 
 same dotal rights in every other place.^ 
 
 § 450. Baldus held, that, in such cases, the law or 
 custom of the matrimonial domicil ought to govern, as 
 to property everywhere. Consiietiidines et statuta, (said 
 he) vigentia in domicilio mariti, non euro, uU res sint post- 
 ice, quca in dotcm datce sunt.^ Dumoulin asserted the 
 same doctrine, upon his favorite theory, that in all cases 
 the law of the matrimonial domicil constituted a tacit 
 contract between the parties.^ There are many jurists 
 who maintain the same opinion. 
 
 § 451. Boullenois, as we have seen,° does not admit the 
 existence of any such tacit contracts, as Dumoulin con- 
 
 92 ; ante, ^ 176 to 180, 184, 188 ; P. Voet, de Stat. § 4, ch. 3, ^ 9, 
 p. 134, 135, edit. 1715 ; 1 Froland, Mem. 63, 63, 64. 
 
 1 Even Paul Voet, who is a strong advocate for the reality of statutes, 
 admits, that cases of express contract may govern, as to property locally 
 situate in a foreign country. ' Si statuto in uno territorio contractus ac- 
 cesserit, sen partium conventio, etiam si in rem si|*onceptum, sese exten- 
 dit ad bona extra jurisdictlonem statuentium sita ;^Bn ut afficiat immediate 
 ipsa bona, quam ipsam personam, quoad ilia.' P. Voet, De Stat, ^ 4, ch. 
 2, ^ 15, p. 127, edit. 1715. 
 
 2 Livermore, Diss. § 87, p. 71, 72 ; 1 Froland, ]M6m. 62. 
 
 3 Livermore, Diss. § 87, p. 73, 74 ; 1 Froland, M6m. 61, 62, 63. — 
 Dumoulin, in treating of the question, what law ought to prevail in fixing 
 the rights of the husband, in regard to the dotal effects of his wife, in case 
 of a change of domicil before the dissolution of the marriage, ultimately 
 decides in favor of the law of the matrimonial domicil. His language is: 
 ' Hinc infertur ad quixjstionem quotidianam de contractu dotis et matri- 
 monii, qui censetur fieri, non in loco, in quo contrahitur, sed in loco domi- 
 cilii viri ; et intelligitur, non de domicilio originis, sed de domicilio habi- 
 tationis ipsius viri, de quo nemo dubitat, sed omnes consentiunt.' Molin. 
 Oper. Tom. 3, edit. 1681, Comm. ad Cod. Lib. 1, tit. 1, 1. 1, Conclus. de 
 Statut. p. 555 ; 1 Froland, M^m. 61 ; Id. 62 ; ante, ^ 147. 
 
 4 Ante, ^ 145 to 156. 
 
 5 Ante, ^ 155 ; 1 Boullenois, Observ. 29, p. 737 to 741. 
 CONFL. 64
 
 758 CONFLICT OF LAWS. [CH. X. 
 
 tends for ; but he deems all laws real, which respect 
 property, making, however, a distinction in cases of 
 laws, which respect the rights of married persons in 
 each other's property, which he treats as laws respect- 
 ing the state or condition of the person.^ But he con- 
 tends, that, even if there be such a tacit contract, it 
 does not render the laws of the place in regard to 
 dowry personal ; for, if that were so (he adds,) then the 
 dowry of persons contracting at Paris would be the 
 same in all other provinces in the realm as it is in Paris, 
 which no one has ever yet contended for. Rodenburg 
 seems to hold, that, where there is no matrimonial con- 
 tract to govern the case, the law of the situs is to go- 
 vern in respect to dowry, approving the doctrine of 
 D'Argentre and Burgundus on this point.^ D'Argentre 
 says ; Cum ccmtiim est virum, iixore prcemortiia, dotem, do- 
 tisve iiartem lucrari ; cvjus loci statutum spectamtis, viri, 
 an uxoris, quod olim fuit, an quod nunc est ? Nos rerwn 
 liicrandanim sitmn spectandiim dicimiis ; et quid ea de re sta- 
 tuta singularia permittant, quid abmicmt respiciendum^ Bur- 
 gundus boldly asserts the opinion, that the law rei sitce 
 must govern in ^kguch cases as to immovable property.^ 
 Nam si dotalitium rei immohilis in controvcrsiam veniat, ea 
 miiiquitus ohtinent sententia, id ad locum situs respicere 
 pporteat ; quce cum usque ad nostra tempora, apud omnes, 
 qui moribus regimtur, inviolaUlis duret, non est committen- 
 
 1 Ante, ^ 155 ; 1 Boullenois, Observ. 5, p. 121 ; Id. Observ. 29, p. 737, 
 738. 
 
 2 1 Boullenois, Observ. 5, p. 121 ; 2 Boullenois, p. 88 to 92. See 
 ante, § 155. 
 
 3 Rodenburg, De Divers. Statut. Pt. 2, tit. 2, ch. 4, <^ 5 ; 2 Boullenois, 
 Appx. p. 67. 
 
 "* D'Argent. ad Briton. Leg. Des Donations, art. 218, gloss. 6, n. 46, 
 Tom. 1, p. 664 ; Liverm. Dissert. § 92 to i^* 99, p. 75 to 78. 
 ^ 1 Boullenois, Observ. 5, p. 121.
 
 CH. X.] KEAL PROPERTY. 759 
 
 diun, id illam diibiam faciam dcfcnsionis soUcitiidine} Many 
 jurists concur with them in opinion.- 
 
 § 452. Similar questions have arisen in relation to the 
 rights of community, and of mutual donations between 
 husband and wife, whether they extended to immovable 
 property situate elsewhere than in the matrimonial do- 
 micil, or not ; and the general result of the reasoning 
 among foreign jurists turns very much upon the same 
 coDsiderations, which have been mentioned in relation 
 to dowry. But this subject has been already discussed 
 in another place, and it need not be here again exa- 
 mined.^ 
 
 . § 453. Similar questions have also arisen in consider- 
 ing the effect of mutual donations by married couples, 
 when they are admitted by the law of the matrimonial 
 domicil, but are unknown to, or prohibited by, the law 
 of the place rei sitce} But they proceed upon the same 
 general principles.^ Cochin says, that it is not the law 
 
 1 Burgundus, Tract. 2, n. 10, p. 63, 64, Liverm. Diss. ^ 104 to ^ 114, 
 p. 80 to 87. 
 
 2 Ante, ^ 142, 148, 152, 153, 167, 168; 1 Froland, Mem. 66, 67, 156; 
 Id. 316 to 323, 328, 341; 2 Froland, M6m. 816. — Froland expresses 
 himself in the following terms. 'La premiere (K^gle,) que le statut reel 
 ne sort point de son territoire. Et dela. vient que dans le cas, ou il s'agit 
 de successions, de la maniere de les partager, de la quotit6 des biens, dont 
 il pent disposer entre vifs ou par testament, d'ali6nation d'immeubles, de 
 douaire de femme ou d'enfans, de legitime, retrait lignager, f6odal ou con- 
 ventionnel, de droit de puissance paternelle, de droit de viduite, et autres 
 choses semblables, il faut s'attacher aux coutumes des lieux, ou les fonds 
 sonl silu^s.' 1 Froland, M6m. 156 ; Id. 49, GO to 81. 
 
 3 See ante, ^ 143 to 158, ^ 160 to 170, 174, 175, 176, 177; 1 Froland, 
 M6m. 66, 67, 68, 69; Id. 177, Pt. 2, ch. 1, per tot. ; Cochin, CEuvres, 
 Tom. 5, p. 80, 4to. edit. ; Merlin, Repertoire, Testament, ^ 1, n. 5, art. 
 1, p, 309, 310. We have already seen Boullenois's view of this subject, 
 ante, ^ 155. See, also, ante, ^ 451. 
 
 4 Ante, ^ 143 to ^ 159. 
 
 5 Liverm. Diss. ^ 181, 182, p. 114, 115 ; 1 Voet, ad Pand. Lib. 1, tit.
 
 760 CONFLICT OF LAWS. [CH. X. 
 
 of the place, -where an act is done, which determines its 
 effect. If (says he) property is situate in a place 
 whose laws prohibit donations inter vivos, or reduce them 
 to a particular portion, no one supposes the donation to 
 be less a nullity, or less subject to reduction, because 
 the act is done in a place, where no such prohibition 
 exists.' 
 
 § 454. The doctrine of the common law seems uni- 
 formly to be, that in all cases of this sort, touching 
 rights in immovable property, the law of the place rci 
 sitce is to govern.^ Hence, if persons, who are married 
 in Louisiana, where the law of community exists, own 
 immovable property in Massachusetts, where such com- 
 munity is unknown ; upon the death of the husband, the 
 wife would take her dower only in the immovable pro- 
 perty of her husband, and the husband, upon the death 
 of the wife, would take, as tenant by the curtesy only, 
 in the immovable property of his wife. 
 
 § 455. Another class of cases, illustrating this subject, 
 may be derived from the known rights of fathers over 
 the property of their children according to the pro- 
 visions of the Roman law, and the customary law of 
 countries, deriving their jurisprudence from the Roman 
 law.=^ By the ancient Homan law all the sons were in 
 subjection to the authority of the father, until they 
 were emancipated by the father, or by some other mode 
 known to that law. During such subjection they were 
 
 4, n. 3, p. 39 ; 2 Froland, Mem. ch. 18, p. 810, &c., ch. 19, p. 901 ; Ro- 
 denburg, De Div. Stat. tit. 2, ch. 5 ; 2 Boullenois, Appx. p. 33, 31 ; 
 1 Boullenois, G60, 661, 663 ; Id. Observ. 29, p. 767 ; 2 Boullenois, Ob- 
 serv. 44, p. 430, 431, 432; ante, § 143 to 159. 
 
 1 Cochin, QEuvres, Tom. 5, p. 697, 4to. edit. 
 
 2 Ante, ^ 157, 158, 159, 174 to 179, 186, 187. 
 
 3 Ante, ^ 139.
 
 OH. X.] REAL PROPERTY. 761 
 
 incapable of acquiring any property for themselves by 
 succession, or donation, or purchase, or otherwise ; and 
 whatever they thus acquired belonged of right to their 
 fother, saving only what was called the son's pccuUum, 
 which consisted of property acquired by his service in 
 the army, or by his skill at the bar, or in the exercise 
 of some public employment.^ This sort of property 
 was, therefore, known by the name o? pecidium castrense, 
 when it was acquired in war, and of jjeculium quasi cas- 
 trense when it was acquired in any other manner.^ In 
 the time of Justinian the law was altered, and the 
 ffither was no longer entitled to the property acquired 
 by his unemancipated son ; but he was entitled to the 
 usufruct or profits thereof during his life. The rule, thus 
 modified, has found its way sometimes with, and some- 
 times without modifications, into the jurisprudence of 
 many provinces and states of continental Europe.'^ 
 
 § 456. Under this aspect of the law with regard to 
 the paternal power, the question has often been dis- 
 cussed among foreign jurists, whether the laws respect- 
 ing the paternal power, are personal or real ; or, in other 
 words, whether the rights of the father, allowed and 
 secured by the law of the place of his domicil, extend 
 to the immovable property of his sons, situate in other 
 
 1 1 Domat, Civ. Law, Prelim. B. 2, tit. 2, § 2, p. 24, note ; Id. B. 2, 
 lit. 2, ^ 2, p. 667 to 669, 670, n. 1, 2, 3 ; Bouhier, Cout. de Bourg. ch. 
 16, ^ 8 to 12, p. 295 ; 1 Brown, Civ. Law, p. 122, 123; 2Froland, Mem. 
 806 to 813 ; 2 Henrys, CEuvres, par Bretonnier, Lib. 4, Quest. 127, 
 p. 772, &c., 717 ; Merlin, Repertoire, Puissance Paternelle, ^ 7, 
 p. 142. 
 
 2 1 Domat, B. 2, § 2, p. 668. 
 
 3 1 Domat, B. 2, § 2, p. 668; Civil Code of France, art. 384 to 387 ; 
 1 Froland, Mem. 69 ; 2 Froland, M6m. ch. 17, p. 789 ; Bouhier, Cout. 
 de Bourg. ch. 16, p. 294. 
 
 64*
 
 762 CONFLICT OF LAWS, [CH. X. 
 
 countries, whose jurisprudence confers no such paternal 
 rights.^ 
 
 § 457. Bretonnier holds the doctrine, that all laws 
 respecting the paternal power are personal, and con- 
 sequently have effect upon all real property of their 
 children, wherever it is situate, and especially as to the 
 profits and usufruct of it ; because the latter partake of 
 the nature of movables. After stating the question, 
 whether fathers, domiciled in a country using the 
 Roman law (dans le imyB de Droit Ecrit,) whose sons 
 have real property in another country, having a different 
 customary law, are entitled to the profits of the latter, 
 that is to say, whether the paternal power extends every 
 where, he proceeds to say ; Cette question ne me semble 
 pas susceptible d'tine grande difficulte ; parceqiie la piiiis- 
 sance paternelle est iin droit personnel, et par consequence il 
 nc pent elre home par aucun territoire ; car c' est une maxime 
 certaine menie dans les pays de coutume, que les statuts per- 
 sonnels sont imiversels, et produisent lew effet partout. 
 Uailleurs, les fruits sont des clioses moUUaires. Or, constat 
 inter omnes, que les meiibles suivent les jyersonnes, et se re- 
 glent suivant la coutume du domicile} 
 
 § 458. Hertius seems to hold a like doctrine, as to 
 the personality of such laws; and puts a question, 
 whether a daughter, who is emancipated by marriage, 
 may afterwards make a testament of property situate 
 elsewhere ; and whether the father would have a right 
 to the usufruct of her property, situate in a place 
 where she would be deemed unemancipated. He an- 
 swers ; Quwsiio hcBC duplex est ; verum ex eodeni princijno 
 
 1 2 Froland, M6m. 808, 813 to 829. 
 
 2 Henrys, CEuvres, par Bretonnier, Tom. 2, p. 720. See 2 BouUenois, 
 Observ. 32, p. 46, 47.
 
 CH. X.] REAL PROPERTY. 763 
 
 decidenda. Jus nempe datum est personce, quod etiam "per 
 consequentiam in hona alteriiis civUcdis, licet immoUUa, 
 operatur} Yet Ilertius, in another place, holds, that an 
 unemancipated son, [fdius-familias) who by the law of his 
 domicil may make a testament, cannot make a testament 
 of property situate in a foreign country. JSfam siatutiim 
 est ill rem concep)tum, et conditio filH-familice non est in dis- 
 positione? Him juxta rcgidam Puduensis fdlus-familias de 
 bonis cdiM sitis testari non poterit? The ground of this opi- 
 nion probably is, that the general incapacity is admitted 
 to exist by the law of the domicil, and the special excep- 
 tion is local and real.^ In this opinion Hertius admits, 
 that he differs from Huberus, whom he asserts to hold 
 the opinion, that if a Batavian, who is an unemancipated 
 son, but has authority to make a testament in Holland, 
 makes a testament in Holland of immovable property 
 situate in Friesland, that testament will be valid in 
 Friesland, although in Friesland the son, however rich 
 and of whatever age, cannot make any testament of his 
 property.^ 
 
 § 459. Bouhier maintains with earnestness and ability, 
 that the paternal power is altogether personal, and that 
 it extends to the immovable property of the unemanci- 
 pated child, situate in a foreign country, where the like 
 law, as to the paternal authority, does not exist.*^ And 
 
 1 1 Hertii Opera, De Collis. Leg. ^ 4, n. 17, p. 130, edit. 1737 ; Id. 
 p. 185, edit. 1716. 
 
 2 1 Hertii Opera, De Collis. Leg. § 4, n. 22, p. 133, edit. 1737 ; Id. 
 p. 188, edit. 171G. 
 
 3 Ibid. 
 
 4 Pilerlin, Repertoire, Testament, § 1, n. 5, art. 1, p. 310. 
 
 5 Hertii Opera, De Collis. Leg. § 4, n. 22, p. 133, edit. 1737 ; Id. 
 p. 188, edit. 1716. 
 
 6 Bouhier. Cout. dc Bourg. eh. 21, ^ 37 to 87, p. 468 to 475.
 
 764 CONFLICT OF LAWS. [CH. X. 
 
 he is supported by the opinion of Le Brun, D'Argentre, 
 and others.^ 
 
 § 460. On the other hand, Froland maintains, that 
 the paternal power in regard to the immovable property 
 of a child is purely real. Ce stcdiit est constamment reel; 
 il ne ietend imnt siir les liens situes dans une coidunie, qui 
 rH a pas disposition par eille? Boullenois, while he admits, 
 that the laws, which give the paternal power, are per- 
 sonal, so flxr as they respect the state or condition of 
 the parties, contends, at the same time, that, so far as 
 those laws gave rights over immovable property, they 
 are real, and are to be governed by the law of the place, 
 where the property is situate.^ And he proceeds to 
 vindicate his opinion in a most elaborate manner.'' 
 
 § 461. D'Aguesseau says ; " That, which characterizes 
 a real statute, and distinguishes it essentially from a 
 personal statute, is not, that it relates to certain per- 
 sonal qualities, or to certain personal circumstances, or 
 to certain personal events ; otherwise we should be com- 
 pelled to say, that all laws, which concern the paternal 
 power, the right of guardianship, the right of widow- 
 hood {le droit de viduite,) and the prohibition of donations 
 between married persons, are all personal laws. And 
 accordingly it is beyond doubt, that in our jurisprudence 
 all these laws are real, which are to be governed, not 
 
 1 Bouhier, Cout. de Bourg. ch. 24, i^ 41, p. 468 ; Le Biun, De la Com- 
 munaul6, Lib. 1. ch. 5, n. 8 ; D'Argent. De Brilon. Leg. Des Dona- 
 tions, art. 218, Gloss. 6, n. 7, Tom. 1, p. 648. 
 
 2 1 Froland, M6m. 69 ; Id. 39, 60, 156 ; 2 Froland, M6m. ch. 17, 
 p. 789 to 819. 
 
 3 1 Boullenois, Observ. 4, p. 68 ; 2 Boullenois, Observ. 32, p. 30 to 33 ; 
 Id. p. 39 to 47 ; Boullenois, Quest. Mixtes, Quest. 20, p. 406. 
 
 4 Ibid.
 
 CH. X.] REAL PROPERTY. 765 
 
 according to the law of the doraicil, but according to 
 that of the phice, where the property is situate." 
 
 § 462. Merlin has examined the same subject in a 
 formal discussion ; and he endeavors to hold a middle 
 course between the opinions of Bouhier and Boullenois, 
 agreeing with the latter, that the usufruct arising under 
 the paternal power is a real right, and governed by the 
 Lex rei sitcc and at the same time, holding with Bouhier, 
 that the father cannot possess the right, unless by the 
 law of the place of his domicil, the paternal power is 
 recognized. He then lays down three principles, which 
 he supposes will remove all the difficulties upon this 
 thorny subject. (1.) The law, which subjects the son to 
 the power of his father, has no need of the aid (minis- 
 iare) of man for its execution ; and it is therefore per- 
 sonal from the very nature of its object. (2.) The law, 
 which declares an unemancipated son (iinjils de famille) 
 incapable of alienating his immovable property without 
 the authority of his father, is personal, although its ob- 
 ject is real ; because it determines the state of the per- 
 son in regard to what he can, and cannot do. (3.) The 
 law, which gives to a fither the usufruct of the property 
 of his son, ought to be real ; because its object is real, 
 and it makes no regulation concerning the capacity or 
 incapacity of the unemancipated son to do any thing.^ 
 
 1 D'Aguesseau, (Euvres, Tom. 4, p. 660, 4to. edit. 
 
 2 Merlin, Piepertoire,.Puissance Paternelle, ^ 7, p. 142, 144, edit. 1827. — 
 The reasoning of ]\Ierlin on this subject is marked with uncommon 
 clearness and force of statement ; and I have therefore thought, that an 
 extract from it might not be unacceptable to the reader. " Or, que trou- 
 vons nous dans la puissance paternelle'? Trois choses. Premiciement, 
 ellc determine I'etat des enfans ; et ;i cet (^gard, elle forme un statut per- 
 sonnel, qui suit les enfans partout. Ainsi, une mere, domiciIi6e en Hai- 
 nault, conserve sous sa puissance les enfans, qu'elle a eu dans celte pro- 
 vince, lors meme que le hasard ou certaines circonstances les ont fait 
 passer dans une autre coutume, qui n'accorde pas les memes droits aux
 
 766 CONFLICT OF LAWS. [CH. X. 
 
 In another place he holds that a law, which prohibits 
 an unemancipated son to make a testament, is personal ; 
 
 femmes qu'aux hommes snr la personne de leurs enfans. En second lieu, 
 la puissance paternelle imprime dans les enfans, qui y sont assujetis, una in- 
 capacity de faire certains actes : comme cetteincapaciieest la suite deleur 
 6tat, elle les suit 6galement partout et influe sur tons leurs biens, quelle qu'en 
 soit la situation. Ainsi, un fils de famille, ne dans une coutume, ou il ne 
 pent pas contracter sans l'autorit6 de son pere, ne peut vendre de lui-meme 
 les biens, qu'il possede dans une autre coutume, qui n'admet pas la puis- 
 sance paternelle ; et reciproquement un fils de famille domicilie dans une cou- 
 tume, qui n'admet pas la puissance paternelle, peut, sans I'autorisation de 
 son pere, aligner les biens qu'il possede dans les pays de droit 6crit. Par 
 la meme raison, un fils n6 a Senlis, ou la coutume proscrit formellement 
 toute puissance paternelle, quoique nourri et entretenu par son pere, peut 
 acquerir pour lui-m6me en Hainault et dans les pays de droit ecrit. Et 
 r6ciproqueraent, un fils de famille, n6 en Hainault, ou dans un pays de droit 
 6crit, ne peut s'approprier les biens, qu'il acquierit dans la coutume de Sen- 
 lis, lorsque ses acquisitions ne reunissent pas toutes les circonstances re- 
 quises, pour qu'elles tombent dans le p6cule castrense, quasi-castrense, ou 
 adventice. Troisiemement, la puissance paternelle donne au pere, dans 
 les pays de droit 6crit et dans quelques coutumes, la jouissance des biens 
 de ses enfans. Cette jouissance est, a la virile, un accessoire de la puis- 
 sance paternelle , mais cllc iic forme daus Ico ciifans nl uapacit^ iii inca- 
 pacity : le st'dtut, qui la d^fere, n'a pas besoin, pour son execution, du 
 ministere de I'homme ; il agit seul ; I'homme n'a lien a faire. On ne 
 peut done pas appliquer ici les raisons, qui ont determine I'espece de con- 
 cordat tacite, dont nous avons par]6. Quel inconvenience y a-t-il a res- 
 treindre cette jouissance au territoire des lois ou coutumes, qui I'accor- 
 dent? Quoi ! parcequ'un pere jouira des biens, que ses enfans ont dans 
 une province, et qu'il ne jouira pas de ceux, qu'ils ont dans une autre, 
 I'ordre public serait trouble, le commerce serait d6rang6. Non. II n'y a 
 pas en cela plus de trouble ni plus de confusion, qu'a succeder a un defunt 
 dans une coutume, et de ne pas lui succ»!:der dans une autre. II est done 
 constant que le systeme du president Bouhier ne peut pas se soutenir, et 
 que le statut, qui donne a un p^re I'usufruit des biens des enfans, qu'il a 
 sous sa puissance, n'est pas personnel. Mais est-il purement r^el, comme 
 le pretend Boullenois, ou bien est-il personnel r6el, c'est-a-dire, faut-il, 
 pour qu'il produise son efTet, que le pere soit domicili6 dans une coutume, 
 qui ad met la puissance paternelle? C'est la difficult^, qui nous reste a 
 resoudre. Le principal peut subsister sans les accessoires : mais les ac- 
 cessoires ne peuvent jamais subsister sans le principal. Ce principe est 
 aussi clair, qu'indubitable, et il nous conduit droit a la decision de notre 
 question. Ainsi, la puissance paternelle peut avoir lieu sans I'usufruit 
 dont nous parlons ici. La coutume de Douai nous en fournit un example,
 
 CH. X.] REAL PROPERTY. 767 
 
 but he at the same time asserts, that this will not pre- 
 vent him from making a testament of movable property 
 in other countries, where it is permitted ; because this 
 case is a mere exception from his general incapacity, 
 and also falls within the rule, that, in a conflict of real 
 and personal laws, the latter must yield.i 
 
 § 4G3. Without going farther into an examination of 
 the opinions of foreign jurists upon this subject, it is 
 sufficiently obvious, what difficulties they are compelled 
 to encounter at almost every step, in order to carry into 
 effect their favorite system of the division of laws into 
 real and personal. The common law has avoided all 
 these difficulties by a simple and uniform test. It de- 
 clares, that the law of the situs shall exclusively govern 
 in regard to all rights, interests, and titles, in and to 
 immovable property. Of course it cuts down all at- 
 tempts to introduce all foreign laws, whether they re- 
 spect persons or things, or give or withhold the capacity 
 to acquire or to dispose of immovable property.^ 
 
 puisqu'elle admet I'une, chap. 7, art. 2, et qu'elle exclut I'autre par son 
 silence, comma I'a decide le parlement de FJandre, par un arret du 27 
 Janvier 1739, rendu au rapport de M. de Casteele de La Briarde, en faveur 
 du Slarquis de Sin, centre les Sieurs et Demoiselles d'Aoust. Mais I'usu- 
 fruit ne peut avoir lieu sans la puissance paternelle, dont il n'est I'acces- 
 soire. Un pere ne peut done en jouir, s'il n'a ses enfans sous sa puis- 
 sance, et par consequence s'il n'est domicilie dans une coutume, qui admet 
 la puissance paternelle. Un p^re, qui 6manciperait son fils au moment 
 meme de sa naissance, n'aurait certainement aucun droit a I'usufruit des 
 biens, que cet enfant acquerrait er:suite, soit dans la coutume du domicile 
 qu'il avait alors, soit dans toute autre province. Or, ce que ce pere est 
 suppos6 faire, la loi le fait elle-meme dans les coutumes qui n'admcttent 
 pas la puissance paternelle ; elle emancipe cet enfant des qu'il voit le jour, 
 et consequemmcnt elle soustrait les biens, qu'il aura dans la suite, a Tusu- 
 fruitque son pere en aurait eu sans cetle emancipation." Merlin, Reper- 
 toire, Puissance Paternelle, § 7, p. 145, 146, edit. 1827. 
 
 1 Merlin, Repertoire, Testament, § 1, n. 5, art. 1, p. 310. 
 
 2 See Brodie v. Barry, 2 Ves. & Beames, R. 127 ; Birthwhistle v. Var- 
 dill, 7 Clark & Finn. 911.
 
 768 CONFLICT OF LAWS. [CH. X. 
 
 § 463 a. This subject of the nature and extent of the 
 paternal power and rights, came recently under consi- 
 deration in England, in a case somewhat complicated in 
 its circumstances, and touching personal estate only. 
 It may be briefly stated as follows. A marriage took 
 place in Holland between the parties. At the time of 
 the marriage, a marriage contract was there executed 
 in the Dutch form, making certain provisions, and 
 among other things, provision for the distribution of the 
 wife's property in the event of her husband surviving 
 her. They afterwards removed to and became domiciled 
 in England, and had children born there. The wife 
 died ; and by her death the children became entitled, 
 under a compromise in Holland, to one fourth of cer- 
 tain property of the wife in the public funds. By the 
 French Code, which is the law of Holland also, when 
 children are under the age of eighteen years, their sur- 
 viving parent has the enjoyment of their property, until 
 they attain that age ; and the father insisted, that as the 
 children were under that age, and the marriage contract 
 and compromise, under which they took one fourth, 
 were both made in Holland, the children must take it, 
 subject to his paternal rights by the law of Holland. 
 The Vice-Chancellor held, that the father was not so 
 entitled. On that occasion the learned Judge said : 
 " By the Code Napoleon, which is the law of Holland, as 
 well as of France, when children are under the age of 
 eighteen, their surviving parent has the enjoyment of 
 their property until they attain that age. But that is 
 nothing more than a mere local right, given to the sur- 
 viving parent, by the law of a particular country, so 
 long as the children remain subject to that law : and, as 
 soon as the children are in a country where that law is 
 not in force, their rights must be determined by the
 
 CH. X.] REAL PROPERTY. 769 
 
 law of the country, where they happen to be. These 
 children were never subject to the law of Holland : they 
 were both born in this country, and have resided there 
 ever since. The consequence is, that this judicial de- 
 cree has adjudged certain property to belong to two 
 British-born subjects domiciled in this country ; and so 
 long as they are domiciled in this country, their per- 
 sonal property must be administered according to the 
 law of this country. The claim of their father does 
 not arise by virtue of the contract, but, solely, by the 
 local law of the country where he was residing at the 
 time of his marriage ; and, therefore, this property must 
 be considered just as if it had been an English legacy 
 given to the children : and all that the father is entitled 
 to, is the usual reference to the master to inquire, what 
 allowance ought to be made to him for the past and 
 future maintenance of his children." ^ 
 
 > Gambier v. Gambler, 7 Sim. R. 263, 270. 
 
 65
 
 770 • CONFLICT OF LAWS. [CH. XI. 
 
 CHAPTER XL 
 
 WILLS AND TESTAMENTS. 
 
 § 464. Having taken these general views of the ope- 
 ration of foreign hiw in regard to movable property, 
 and immovable property, and ascertained, that the gene- 
 ral principle, at least in the common law, adopted in 
 relation to the former is, that it is governed by the 
 law of the domicil of the owner, and in relation to the 
 latter, that it is governed by the law of the place where 
 it is locally situate ; we now come to make a more im- 
 mediate application of these principles to two of the 
 most important classes of cases arising, constantly and 
 uniformly, in all civilized human societies. One is, the 
 right of a person, by an act or instrument, to dispose 
 of his property after his death ; the other is the right 
 of succession to the same property, in case no such post- 
 mortuary disposition is made of it by the owner. The 
 former involves the right to make last wills and testa- 
 ments ; and the latter the title of descent and the dis- 
 tribution of property cib intestcdo. We shall accordingly 
 in this and the succeeding chapter exclusively discuss 
 the subject of foreign law, in relation to testaments, and 
 to successions, and distributions of movable and immov- 
 able property. 
 
 § 465. And first, in relation to testaments of movable 
 property.' So far as respects the capacity or incapa- 
 
 1 See 4 Burge, Coram, on Col. and For. Law, Pt. 2, ch. 12, p. 579, 
 580, 581 ; post, ^ 466, 467.
 
 CH. XI.] WILLS AND TESTAMENTS. 771 
 
 city of a testator, to make a will of personal or movable, 
 property, we have already had occasion to consider the 
 subject in another place. The result of that examina- 
 tion was, that the law of the actual domicil of the party, 
 at the time of the making of his will or testament, was 
 to govern as to that capacity or incapacity.^ We may 
 therefore proceed to the consideration of the forms and 
 solemnities, by which wills of personal estates are to be 
 governed. And here it may be stated now to be a well- 
 settled principle in the English law, that a will of per- 
 sonal or movable property, regularly made according to 
 the forms and solemnities required by the law of the 
 testator's domicil, is sufficient to pass his personal or 
 movable property in every other country, in which it 
 is situated. But this doctrine, although now very firmly 
 established, was for a great length of time much agitat- 
 ed and discussed in Westminster Ilall.^ On one occa- 
 sion Lord Loughborough laid down the doctrine, that 
 with i-Gspect "to tlie rlisposition. of inovable property^ find 
 with respect to the transmission of it, either by succes- 
 sion, or by the act of the party, it follows the law of 
 the person.^ The owner . in any country may dispose 
 
 1 Ante, § 52 to § 62, ^64 to ^ 78, § 101 to ^ 106, § 368, ^ 430 to 
 §434. See also 2 Boullenois, Appx. p. 38; 4 Burge, Comm. on Col. and 
 For. Law, Pt. 2, ch. 12, p. 577, 578, 579. 
 
 2 See Brodie v. Barry, 2 Ves. & Beames, R. 127, 131 ; Bempde v. 
 Johnstone, 3 Ves. R. 192, 200 ; Trice v. Dewhurst, 8 Sim. R. 279, 299, 
 300 ; Moore v. Budd, 4 Hagg. Eccles. R. 346, 354 ; Robertson on Suc- 
 cessions, p. 99, 191, 214, 215, 285, 290, 297 ; The case of the Goods of 
 Marshall Bennett, before Sir H. Jenner, July, 1840, London IMonthly 
 Law Magazine, Sept. 1840, p. 204. 
 
 ^ Sill V. Worswick, 1 H. Black. 690. See also Ommaney v. Bingham, 
 cited 5 Ves. 757 ; 3 Ilagg. Eccles. R. 414, note ; Stanley v. Barnes, 
 3 Hagg. Eccles. R. 373 ; Hogg v. Lashley, 3 Hagg. Eccles. R. 415, 
 note.
 
 772 CONFLICT OF LAWS. [CH. XI. 
 
 of his personal property. On another occasion Lord 
 Thurlow asserted the same doctrine as to succession to 
 personal property, and by implication as to wills.^ 
 Lord Ellenborough put it as clear in his day. He ob- 
 served ; " It is every day's experience to recognize the 
 law of foreign countries, as binding on personal proper- 
 ty ; as in the sale of ships, condemned as prize by the 
 sentences of foreign courts, the succession to personal 
 property by will or intestacy of the subjects of foreign 
 countries."^ But antecedently to this period many 
 learned doubts and discussions had existed on the sub- 
 ject.^ In the Duchess of Kingston's case, a will of per- 
 sonal property executed in France, but not in conform- 
 ity to the laws of that country, was admitted to probate 
 in the Ecclesiastical Courts of England in 1791, it being 
 duly executed according to the English forms, although 
 she was domiciled in France at the time of making the 
 will, and also at the time of her death.^ 
 
 § 466. Even at so late a period as 1823, Sir John 
 Nicholl doubted, whether a will of personal property 
 made abroad by an English subject domiciled abroad, 
 ought to be held valid, unless it was executed in con- 
 formity to the forms prescribed by the English law. 
 The ground of his doubt was, whether an English sub- 
 ject was entitled to throw off his country {cxuere jjcdriam) 
 so far as to select a foreign domicil in complete deroga- 
 
 1 Bruce v. Bruce, 2 Bos. & Pull. 229, note. 
 
 2 Potter V. Brown, 5 East, R. 130 ; Ferraris v. Marquis of Hertford, 
 The English Jurist, April 1, 1843, p. 2G2 ; S. C. 3 Curteis, R. 468. 
 
 3 See Bempde v. Johnstone, 3 Ves. 198, 200 ; Somerville v. Somer- 
 ville, 5 Ves. 750 ; Balfour v. Scott, 6 Brown, Pari. Cases, 550, Tomlin's 
 edit. ; S. C. 2 Addams, Eccles. R. 15, note. 
 
 4 See Curling v. Thornton, 2 Addams, Eccles. R. 21. See 4 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 12, p. 588, 589, 590.
 
 CH. XI.] WILLS AND TESTA^IENTS. 773 
 
 tion of his native domicil, and thus to render his pro- 
 perty in England distributable by succession or testa- 
 ment according to the foreign law. He took a distinc- 
 tion between testacy and intestacy, (assuming, for the 
 sake of argument, that in the latter case the foreign 
 law might prevail,) thinking, that cases of testacy might 
 be governed by very different considerations from those 
 of intestacy. Even if a will, executed according to the 
 law of the place of the testator's domicil, would in such 
 a case be valid, he contended, that it by no means fol- 
 lowed universally, and upon principle, that a will, to be 
 valid, must strictly conform to that law, which would 
 have regulated the succession to the testator's property, 
 if he had died intestate. And, therefore, he held, that 
 a will of personal property, made by a British subject 
 in France, according to the forms of the English law, 
 was good as to such property situate in England. He 
 admitted, that as to British subjects domiciled in any 
 part of the United Kingdom, the law of their domicil 
 must govern in regard to successions and wills ; and so, 
 the like law must govern in regard to successions and 
 wills of foreigners resident abroad. The restriction, 
 which he sought to establish was, that a British subject 
 could not, by a foreign domicil, defeat the operation of 
 the law of his own country, as to personal property 
 situate in the latter.^ 
 
 § 467. To this opinion the same learned Judge firmly 
 adhered in a still later case. But upon an appeal, the 
 decision was overturned by the High Court of Dele- 
 gates, and the doctrine fully established, that the law 
 
 1 Curling v. Thornton, 2 Addams, Eccles. R. p. G, 10 to 25 ; S. C, 
 8 Sim. R. p. 310,311. 
 
 65*
 
 774 CONFLICT OF LAWS. [CH. XL 
 
 of the actual foreign domicil of a Britisli subject is ex- 
 clusively to govern in relation to his testament of per- 
 sonal property ; as it "would in the case of a mere 
 foreigner.^ This case is the stronger ; because it was 
 the case of a will, and several codicils, made according 
 to the law of Portugal, and also of several codicils 
 made, not according to the law of Portugal where the 
 testator was domiciled. The will and codicils executed 
 according to the Portuguese law were held valid ; the 
 others were held invalid. And this doctrine necessarily 
 goes to the extent of establishing, not only whether 
 there be an instrument called a will ; but whether it 
 constitutes a will in the sense of the Lex loci The 
 doctrine also applies, whether the personal property be 
 locally situate in the domicil of the testator, or in a 
 foreign country.^ 
 
 § 468. The same doctrine is now as firmly established 
 in America. The earliest case, in which it was directly 
 in judgment, was argued in the Supreme Court of Penn- 
 sylvania in 1808 ; ^ and this case may have been truly 
 said to have led the way to the positive adjudication of 
 this important and difficult doctrine. There, a foreign 
 testator, domiciled abroad, had made a will of his per- 
 sonal estate, invalid according to the law of his domicil, 
 but valid according to the law of Pennsylvania ; and 
 the question was, whether it was competent and valid 
 to pass personal property situate in Pennsylvania. The 
 
 ' Stanley v. Barnes, 3 Hagg. Eccles. R. p. 373 to 465 ; Moore v. Da- 
 vell, 4 Hagg. Eccles. R. 346, 354 ; S. P. Price v. Dewhurst, 4 Mylne & 
 Craig, 76, 80, 82 ; Ferraris v. Marquis of Hertford, The English Jurist, 
 April 1, 1843, p. 262 ; S. C. 3 Curteis, R. 468. 
 
 2 Ibid. Countess of Ferraris v. Marquis of Hertford, The English Jurist, 
 April 1, 1843, p. 262 ; S. C. 3 Curteis, R. 468. 
 
 3 Desesbats v. Berquiers, 1 Binney, R. 336.
 
 CH. XI.] WILLS AND TESTAMENTS. 775 
 
 Court decided, that it was not ; and asserted the general 
 doctrine, that a will of personal estate must, in order to 
 pass the property, be executed according to the law of 
 the place of the testator's domicil at the time of his 
 death. If void by that law, it is a nullity everywhere, 
 although it is executed with the formalities required by 
 the law of the place, where the personal property is 
 locally situate. The Court asserted, that in this respect 
 there was no difference between cases of succession by 
 testament, and by intestacy.^ The same doctrine has 
 been since repeatedly recognized by other American 
 courts, and may now be deemed as of universal author- 
 ity here.^ [Upon the same principle a will of personal 
 property executed by a testator in a foreign state, but 
 who has not lost his domicil in his native state, is valid 
 if executed according to the laws of his domicil, al- 
 though not in accordance with the law of the place of 
 its execution.^] 
 
 § 469. In Scotland the doctrine was formerly in- 
 volved in many doubts. By the law of Scotland, ille- 
 gitimate persons are not deemed capable of making a 
 will ; and hence a will of movables in Scotland, made by 
 such a person, domiciled in England, was formerly held 
 in Scotland to be invalid.^ In like manner a nun- 
 cupative will, being in Scotland invalid, was formerly 
 
 1 Desesbats v. Berquiers, 1 Binn. R. 336; S. P. Moore v. Budd, 
 4 Hagg. Eccles. R. 346, 354 ; Grattan v. Appleton, 3 Story, R. 755. 
 
 2 See IIq]Tnes v. Remsen, 4 Johns. Ch. R. 460, 469 ; Harvey v. Rich- 
 ards, 1 Mason, R. 381, and cases cited, p. 408, note ; Dixon's Ex'ors v. 
 Ramsay's Ex'ors, 3 Cranch, R. 319 ; De Sobry v. De Laistre, 2 Harr. & 
 Johns. R. 193, 224 ; Armstrong v. Lear, 12 Wheat. R. 169 ; Rue High, 
 App. 2 Doug. 522 ; Harrison v. Nixon, 9 Peters, R. 483, 504, 505. 
 
 3 Rue High, App. 2 Doug. 515. 
 
 4 Ersk. Inst. B. 3, tit. 2, ^ 41, p. 515 ; 3 Kames, Equity, B. 3, ch. 8, 
 §3.
 
 776 CONFLICT OF LAWS. [CH. XI. 
 
 held invalid to pass movables in Scotland, although the 
 will was made in England (where such a will is valid) 
 by a person domiciled there.i But the general doctrine 
 is now the same in Scotland as in England. The law 
 of the domicil universally prevails as to successions and 
 wills of movables in other countries." 
 
 § 470. Foreign jurists are as generally agreed, as to 
 the doctrine in regard to movables, upon the ground, 
 maintained by all of them, that MoUlia seqimntur joer- 
 sonam.^ John Voet lays down the rule in the following 
 terms. In siiccessionihus, iestandi facilitate, contradihiis, 
 aliisque, mohilia, uhiciinqiie sita, regi debere domicilii jure, 
 noil vero legihiis loci illiiis, in quo naturaliter sunt constitiita.^ 
 He adds ; Ibique D. D. [Doetores) moUlium tamen ratione 
 in dispositionibus testamentariis, diim quceritur, an illce in 
 wiiverswn inrmittendce sint, nee ne, uti et ab intestato suc- 
 cessionibus, donationibiis inter conjuges vetitis permissisve, et 
 aliis similibus, de .juris rigore communi quasi gentium omnium 
 consensu laxatum est ; sic lit ex comitate profecta regida 
 praxi universali invaluerit, mobilia in dubio regi lege loci, in 
 quo eorum dominus domiciliimi fovet, ubicunque ilia vere 
 exstiterint.^ 
 
 1 2 Karnes, Equity, B. 3, ch. 8, §. 3, p. 345. 
 
 2 See Bempde v. Johnstone, 3 Ves. 198, 201 ; Somerville t>. Somerville, 
 5Ves. R. 757; Brodie v. Barry, 2 Ves. & Beames, 127, 131, and the 
 cases cited, ante, ^ 495 ; Ersk. Inst. B. 3, tit. 2, § 40, 41 ; 2 Kames, 
 Equity, ch. 8, i^ 6. 
 
 3 See 1 BouUenois, Obser. 28, p. 096 to 721 ; Cochin, CEuvres, Tom. 5, 
 p. 85, 4to. edit. ; ante, ^ 362, ^ 362 a, § 399 ; 4 Burge, Cdhm. on Col. 
 and For. Law, Pt. 2, ch. 12, p. 579, 580 ; FceHx, Conflit des Lois, Revue 
 Etrang. et Franc. Tom. 7, 1840, ^ 40 to ^ 50, p. 346 to 360 ; post, ^ 481. 
 
 4 J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, § 11, p. 44. 
 
 5 J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, ^S 12, p. 45. See also J. Voet, 
 ad Pand. Lib. 28, tit. 1, n. 13, 15, 44 ; 4 Burge, Comm. on Col. and For. 
 Law, Pt. 2, ch. 12, p. 579, 580, 590 ; P. Voet, de Statut. ^ 9, ch. 1, n. 8, 
 p. 255, edit. 1715 ; Id. p. 309, edit. 1661 ; Burgundus, Tract. 1, n. 36 ;
 
 CH. XI.] WILLS AND TESTAMENTS. 777 
 
 § 471. Vattel has spoken in terms, admitting of more 
 question, as to the extent of their meaning. After ob- 
 serving, that a foreigner in a foreign country has by- 
 natural right the liberty of making a will, he remarks ; 
 "As to the forms or solemnities appointed to settle the 
 validity of a will, it appears, that the testator ought to 
 observe those which are established in the country 
 where he makes it, unless it be otherwise ordained by 
 the laws of the state of which he is a member; in 
 which case he will be obliged to observe the forms 
 which they prescribe, if he would validly dispose of 
 the property which he possesses in his own country. 
 The foreign testator cannot dispose of his property, 
 movable or immovable, which he possesses in his own 
 country, otherwise than in a manner conformable to the 
 laws of that country. But as to movable property, 
 specie, and other effects, which he possesses elsewhere, 
 which he has with him, or which follow his person, we 
 ought to distinguish between the local laws, whose effect 
 cannot extend beyond the territory, and those laws, 
 which peculiarly affect the character of citizens. The 
 foreigner, remaining a citizen of his own country, is 
 still bound by those last-mentioned laws, wherever he 
 happens to be, and is obliged to conform to them in the 
 disposal of his personal property, and all his movables 
 whatsoever. The laws of this kind, made in the coun- 
 try where he resides at the time, but of which he is not 
 a citizen, are not obligatory with respect to him. Thus, 
 
 Id. Tract. G, n. 1, 2, 3 ; Fcelix, Conflit des Lois, Revue Etrang. et Franr^. 
 Tom. 7, 1840, ^ 24 to ^ 27, p. 204 to p. 216 ; Id. ^ 32, 33, p. 201 to 
 p. 227 ; ante, ^ 381, note, ^ 444 a; 4 Burge, Comm. on Col. and For. 
 Law, Pt. 2, ch. 5, p. 217, 218 ; Id. ch. 12, p. 576 to 580 ; post, ^ 479 ; 
 Sand. Decis. Frisic. Lib. 4, tit. 1, Defin. 14, p. 142, 143.
 
 778 CONFLICT OF LAWS. [CH. XL 
 
 a man who makes his will, and dies in a foreign country, 
 cannot deprive his widow of the part of his movable 
 effects, assigned to that widow by the laws of his own 
 country. A Genevan, obliged by the laws of his coun- 
 try to leave a portion of his personal property to his 
 brothers or cousins, if they are his next heirs, cannot 
 deprive them of it by making his will in a foreign 
 country, while he continues a citizen of Geneva. But 
 a foreigner, dying at Geneva, is not obliged in this re- 
 spect to conform to the laws of the Republic. The case 
 is quite otherwise in respect to local laws. They regu- 
 late what may be done in the territory, and do not ex- 
 tend beyond it. The testator is no longer subject to 
 them when he is out of the territory ; and they do not 
 affect that part of his property which is also out of it. 
 The foreigner is obliged to observe those laws in the 
 country where he makes his will, with respect to the 
 goods he possesses there." ^ 
 
 § 472. Vattel is in. this passage principally consider- 
 ing the effect of the law of a foreign country upon a 
 foreigner, wdio is resident there. And there can be no 
 doubt that every country may by its laws prescribe 
 whatever rules it may please, as to the disposition of 
 the movable property of its citizens, either inter vivos or 
 testamentary. But it is equally clear, that such rules 
 are of no obligation as to movable property in any other 
 country, and can be in force there only by the comity 
 of nations. So that a will of such movable property, 
 made in the foreign country where he is domiciled, and 
 according to its laws, will be held valid, whatever may 
 be the validity of such a will in the country to which 
 
 ' Vattel, B. 2, ch. 8, ^ 111. See post, ^ 479.
 
 CH. XI.] WILLS AND TESTAMENTS. 779 
 
 the testator owes his allegiance by birth. But the dis- 
 cussion, in which we are engaged, does not respect the 
 effect of any local prohibitory laws over movable pro- 
 perty within the particular territory, but the general 
 principles which regulate the disposition of it when no 
 such prohibitory laws exist. And here, by the general 
 consent of foreign jurists, the law of the domicil of the 
 testator governs as to transfers inter vivos and testament- 
 ary.^ 
 
 [§ 472. a. A pertinent illustration of the exception 
 alluded to in the last section as to the effect of a will 
 abroad, when its provisions conflict with the prohibitory 
 laws of another State, recently occurred in America. 
 In that case a person domiciled in Virginia, by his will 
 made and executed in that State, directed that certain 
 of his slaves, then being in Mississippi, should be eman- 
 cipated, and sent to Africa. By the law of Virginia 
 such a disposition was valid ; by the law of Mississippi 
 it was not. The Courts of the latter State held the 
 will inoperative as to the slaves in that State, because 
 it contravened the public policy of the State, as de- 
 clared by an express statute, and was not embraced in 
 the general rule of comity regulating the law of the 
 domicil.^] 
 
 1 See ante, ^ 465; Hertii, Opera, De Collis. Leg. ^ 4, n. 6, p. 112, 
 edit. 1737 ; Id. p. 174, edit. 1710; Pothier, Cout. d'0rl6ans, ch. 1, ^ 2, 
 n. 24. J. Voet, ad Pand. Tom. 2, Lib. 38, tit. 17, § 34 ; ante, § 470. — 
 Very difficult questions, however, may still arise, and to what is to be 
 deemed the real domicil of a party, who is a native of one country, and 
 who has yet been long resident in another. The quo animo, with which 
 such residence has been originally taken, or subsequently upheld, often 
 becomes a very important element in the decision. See ante, § 44, ^ 49 ; 
 Attor. Gen. v. Dunn, 6 Mees. & Welsh. 511 ; De Bonneval v. De Bon- 
 neval, 1 Curteis, Eccl. R. 856; post, ^ 481, note; Rlunro u. IMunro, 
 1 Rob. R. (House of Lords) p. 493. 
 
 2 Mahorner v. Hooe, 9 Smedes & Marshall, 247, where this subject is 
 examined at great length.
 
 780 CONFLICT OF LAWS. [CH. XI. 
 
 § 473. But it may be asked, What will be the effect 
 of a change of domicil after a "will or testament is made 
 of personal or movable property, if it is valid by the law 
 of the place where the party was domiciled when it 
 was made, and not valid by the law of his domicil at 
 the time of his death ? The terms, in which the general 
 rule is laid down, would seem sufficiently to establish 
 the principle, that in such a case the will or testament is 
 void ; for it is the law of his actual domicil at the time 
 of his death, and not the law of his domicil at the time 
 of making his will or testament of personal property, 
 which is to govern.^ This doctrine is very fully recog- 
 nized and laid down by John Voet. Tamen, si qiiis Jiahi- 
 tans in loco, in quo minor annormn mmierus in tesiaiore re- 
 quinticr, veluti in HoUandid, ibidem anno decimo quinto tes- 
 tamentumfecerii,deindc vero domiciliiim alio transtiderit, iiU 
 necdiim inr cdatem testari licet, veluti TJltraj ectmn, iihi 
 plena pulertas in mascido testatore exigitur, testamentiim ejus 
 quantum ad molilia per talem migrationem irritwn efficitur. 
 Idemque eveniet, si Hollandiis iixorem hwredem instituerit, 
 (quod ihi licitum,) deinde vero ad aliam migret regionem, 
 ibique domiciliiim figat, iihi gratificaiio inter conjuges ne sih 
 premo quidem elogio permissa est ; nam et hoe in casu mo- 
 bilium intuitu in irritwn deducitur voluntas ejus ; cum mobilia 
 in suecessione tcstatd vel intestatd regantur ex lege domicilii 
 dcfuncti, adeoque res devenerit in Usee ad eiim casum, a quo 
 propter qualitatem testatoris, vel Jionorati, initium habere ne- 
 quit. Neque enim sufficit in honorato, quod tempore facti 
 testamenti capax sit, sed et tempore mortis testatoris cum 
 
 1 Sec Desesbats v. Berquiers, 1 Binn. R. 336 ; Potinger r. Wightman, 
 3 Meriv. R. 59, 68 ; Henry on Foreign Law, Appx. p. 196 ; 2 Boulle- 
 nois, ch. 1, p. 2, &c. ; Id. p. 7, &c. ; Id. p. 54 ; Id. p. 57 ; ante, § 55 to 
 74 ; 4 Burge, Comm. on Col. on For. Law, Pt. 2, ch. 12, p. 580, 581.
 
 CH. XI.] AVILLS AND TESTAMENTS. 781 
 
 capacem esse, necesse est} Again he adds ; Quod si is, 
 cKj'its tcstamentum migratlone ex Ilollcmdid ad regionem 
 Ultrajectinam imtum facUim fiicrat, ibidem cvtatem expleve- 
 rit in testatore requisitam, de novo quidem repeterc solenniter 
 latest p'ior em voluntcdem, cdque Hade novotesiari; sedsiid 
 nonfeceritf testamentum, aMea anno cetatis decimo qidnto in 
 Ilollandid conditum^ipso jure quantum ad molilia velimmo- 
 Mia Ultrajectina neqiiaquam convalescit ; non magis, qiiam 
 jure civili aut prcetorio testamentum ah im^nibere conditum, 
 si is pubes /actus in fata concedat? If, however, he should 
 afterwards return and resume his domicil, where his first 
 will or testament was made, its original validity will 
 revive also. Diversum esset, si testator talis iterum postea 
 mutatd mente in Ilollandid rerum ac fortunarum suarum 
 sedem reponat ; tunc enim voluntas ilia, quce migratione hi 
 irritum deducta fuerat, quasi recupercdd ^^ristind ad testan- 
 dum habilitate redintegratur ex cequitate ; eo modo, quo siis- 
 tinetur jure prcdorio testamentum, ci patrefamilias conditum, 
 quod per arrogationem irritum factum fuerat, si is iterum 
 postea suijuns f actus in eddem perstiterit voluntatc? 
 
 § 473. a. Another question may arise under this 
 head. Suppose a power of appointment to be given to a 
 party enabling him to dispose by will of personal estate 
 situate in one country, and he has his domicil in another 
 country and he executes the power and complies with 
 all the requisites of the power, making a will according 
 to the law of the country, where the power was created, 
 and the personal estate is situated ; but the will is not 
 
 1 J. Voet, ad Pand. Lib. 28, tit. 3, Tom. 2, ^ 12, p. 292. 
 
 2 Ibid. ^ 13, p. 293. 
 
 y J. Voet, ad Pand. Lib. 28, tit. 3, Tom. 2, ^ 13, p. 293 ; 4 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 12, p. 580, 591 ; Robinson on 
 Succession, p. 95. 
 
 CONFL. 66
 
 782 CONFLICT OF LAWS. [CH. XI. 
 
 made according to the requisites prescribed by the law 
 of the place of his domicil ; the question would then 
 arise, whether the power of appointment was well exe- 
 cuted, and the will entitled to probate as a will in the 
 country where the personal property is situate. It has 
 been held that it is.^ 
 
 [473 h. Another question on this subject has recently 
 arisen. A testator, having his domicil in the State of 
 Mississippi, died possessed of slaves there, and directed 
 in his will that if either of his two sons, to whom he be- 
 queathed his property, should die " without a lawful 
 heir," his part, real and personal, should go to the sur- 
 vivor. Each son received his portion, and one removed 
 with his slaves into Louisiana, and died without a " law- 
 ful heir." It was determined that although by the law 
 of the testator's domicil the survivor might have had a 
 title to such slaves, yet as by the law of Louisiana, tes- 
 tamentary substitutions were prohibited, the survivor's 
 claim could not be enforced in the latter State.^] 
 
 § 474. We next pass to the consideration of wills 
 made of immovable property.^ And here the doctrine 
 is clearly established at the common law, that the law 
 of the place where the property is locally situate, is to 
 govern as to the capacity or incapacity of the testator, 
 the extent of his power to dispose of the property, and 
 the forms and solemnities to give the will or testament 
 its due attestation and effect.^ 
 
 1 Tatnall v. Hankey, 2 Moore, Priv. Con. Rep. 342. 
 
 2 Harper V. Stanbrough, 2 Louis. Ann. R. 377; Harper u. Lee, Id. 
 382. 
 
 3 See 4 Burge, on Col. and For. Law, Pt. 2, ch. 12, p. 586, 596 ; Foe- 
 lix, Conflit des Lois, Revue Etrang. ct Frang. Tom. 7, 1840, § 40 to 
 ^ 51, p. 346 to 360. 
 
 * Coppinr. Coppin, 2 P. Will. 291, 293; Curtis v. Hutton, 14 Ves.
 
 CH. XI.] 
 
 WILLS AND TESTAMENTS. 783 
 
 § 475. The doctrine of foreign jurists does not, as we 
 have seen, entirely accord with that of the common law ; 
 
 537,541; Birthwhistle i;. Vardill, 1 Fonb. Eq. p. 444, 445, note ; U. 
 States r. Crosby, 7 Cranch, 115; Holmes v. Remsen, 4 Johns. Ch. R. 
 460 ; S. C. 20 Johns. R. 222; McCormick v. SuUivant, 10 Wheaton, R. 
 192, 202 ; Willis v. Cowper, 2 Hamm. R. 124 ; Henry on Foreign Law, 
 p. 13, 15 ; ante, ^ 428, 434 ; 4 Burge, Comm. on Col. and For. Law, 
 Ft. 2, ch. 12, p. 576 to 580 ; Id. Pt. 2, ch. 4, ^ 5, p. 169, 170 ; Id. Pt. 2, 
 ch. 5, p. 217. — Mr. Burge, speaking on this point, (Id. p. 217, 218,) 
 says : " The power of making the alienation by testament is no less quali- 
 tas rebus impressa, than that of making the alienation by contract. When, 
 therefore, the question arises, whether the immovable property may be 
 disposed of by testament, recourse must be had to the lex loci rei sitae. 
 That law must also decide, whether the full and unlimited power of dispo- 
 sition is enjoyed, or whether it is given under restriction. The validity of 
 the testamentary disposition depends in the latter case on its conformity to 
 that restriction, whether the restriction consists in limiting the extent or 
 description of property, over which the power of disposition may be exer- 
 cised, or the persons in whose favor the disposition is made, or in requiring 
 that the testator should have survived a certain number of days after the 
 execution of the act by which the disposition was made. The total or 
 partial defect of the will on the ground, that it did not institute heirs, or 
 that it omitted to name the heirs, the disherison of the heirs, the grounds 
 on which the disherison may be justified, are essentially connected with 
 the power of disposing of immovable property by testament, and are there- 
 fore dependent on the law of its situs." Again, Mr. Burge says : " By 
 the jurisprudence of England and the United States, a will devising lands 
 in England or the States, if the solemnities prescribed by the Statute of 
 Frauds have not been observed, would be ineffectual to pass those lands. 
 This doctrine is fully warranted by the qualification which has been given 
 by jurists to the rule. Lex loci regit actum. The Statute of Frauds, as 
 regards real property situated in England and in the States of America, 
 ' Est lex, qus2 expresse testatores jubet jus loci sequi, in quo bona sita 
 sunt.' It may be said, that the jurisprudence which allows a testament 
 executed according to the solemnities prescribed by the lex loci actus to 
 affect real property situate in the country where that jurisprudence pre- 
 vails, does not depart from the general principle, that the lex loci rei sitae 
 must determine, whether the instrument is sufficient to dispose of real pro- 
 perty. The difference between that jurisprudence and the doctrine of 
 England and the United States is, that the effect of the latter is to require 
 a particular form for the execution, whether it be made in England or in 
 any other country, that is, it makes no provision for a will made in a 
 foreign country, but the terms of its enactment are so comprehensive as to
 
 784 CONFLICT OF LAWS. [CH. XL 
 
 but even among them there is great weight of authority 
 in favor of the general principle.^ We have ah'eady 
 
 include all wills, in whatever country they are made, if they affect real 
 property in England. In the other systems of jurisprudence, it is a part 
 of the lex loci rei sitae, that its immovable property should pass by a testa- 
 ment executed with certain formalities, if it be made in the country where 
 the property is situated, but that if it be made in another country, it may 
 be executed with other solemnities, that is, with the solemnities required 
 by the law of that country. The jurists, whose opinions have been cited 
 in support of the rule, that the testament is valid, if the testator has com- 
 plied with the forms and solemnities prescribed by the law of the place in 
 which it was made, apply it to a testament of movable, as well as immov- 
 able property. The decisions of the courts of England on the validity of 
 testaments of personal estate made abroad are few. The two most im- 
 portant are on the testaments of the Duchess of Kingston and of Bernes. 
 The former was resident in Paris : she obtained letters patent from the 
 King of France, which gave her the same power of devising, as she 
 would have had in England. Although she died in France, she had 
 not relinquished her English domicil. She made her testament in Paris. 
 It was clearly null under the Coutume. But she had observed the forms 
 required by the Statute of Frauds, and the will was valid according to the 
 law of England, It was the opinion of M. Turgot, an advocate of France, 
 and his opinion was confirmed by the Court of Probate, that the testament, 
 although made in Paris, was valid. This opinion proceeds on a principle 
 which is admitted by jurists, that although a will made with the solemni- 
 ties of the lex loci actus may be valid, yet if it were made with the solem- 
 nities of the locus rei sita3 in respect of immovables, and the locus domi- 
 cilii in respect of movable property, it would also be valid. In Bernes's 
 will it appeared, that, although an Irishman by birth, he had acquired a 
 domicil in Madeira. He made a will and several codicils in that island, 
 some of which were not executed with the solemnities required by the law 
 of Portugal, but with those formalities which would satisfy the law of 
 England. The decision given by Sir John Nicholl, that the latter codicils 
 were valid, and that it was competent to have executed them in the man- 
 ner which would be consonant to the law of England, was reversed by the 
 delegates, and they were deemed invalid. Bernes, in this case, had no 
 longer a domicil in Ireland. His domicil was in Portugal. It was neces- 
 sary to establish that fact to distinguish the case from that of the Duchess 
 of Kingston. If he had still retained his domicil in Ireland, the codicils 
 would, upon the principles referred to, and which will be presently more 
 fully staled, have been valid. In neither of these cases did the question 
 
 > See ante, ^ 52 to ^ G2, ^ 430 to ^ 435.
 
 CH. XI.] WILLS AND TESTAMENTS. 785 
 
 had occasion to consider the opinions of foreign jurists 
 as to the capacity and incapacity of the testator to make 
 a testament of immovable property, whether it is to be 
 governed by the law of his domicil, or by the law rei 
 sitcv} We have also had occasion to consider their opi- 
 nions as to the law which ought to govern in respect 
 to the forms and solemnities of testaments of immovable 
 property, whether it is the law m sitcc, or that of the 
 doraicil of the testator, or that of the place where the 
 will was made.^ Putting out of view these questions, 
 
 arise on a testament made with the solemnities required by the lex loci 
 actus, although deficient in those required by the law of the domicil. In 
 another case the testator was an Englishman by birth, and although he 
 had been for many years residing in France, it did not appear that he had 
 abandoned his English domicil. He came to England, and during his 
 residence there made his will, which was a valid testamentary disposition 
 in respect of forms and solemnities according to the law of England. It 
 was contended that it ought not to be admitted to probate, because it was 
 not made in the manner required by the law of France. Here the Court 
 adopted the lex loci actus, but from the report of the case, the learned 
 judge dwells so much on circumstances founded on the testator's domicil 
 of origin, that it would be perhaps not correct to describe the decision as 
 warranting the conclusion, that, if the testator had not been an English- 
 man, his will made in England would have been valid. In Nasmyth's 
 case, the testator was domiciled in Scotland, and his will was made and 
 found there. He died in England in transitu. The Court of Probate in 
 England held itself bound to defer to the law of Scotland. In giving 
 effect to a testament made with the solemnities prescribed by the lex loci 
 actus, jurists do not deny it to a testament made according to the forms 
 required by the lex loci rei sitffi, if it be immovable, or the lex loci domi- 
 cilii, if it be personal property, which is the subject of the disposition : 
 " Proinde,si quis eo,quod ad testandum expeditius sua causa comparatum 
 est, noluerit uti, quod ei forte promptius sit componere suprema ad loci 
 leges, cui bona subjaceant, quo minus testamentum ejus valiturum sit, norj 
 video." Paul Voet and John Voet adopt this opinion. 4 Burge, Comm. 
 on Col. on For. Law, Pt. 2, ch. 1'2, p. 58G to 590 ; Robertson on Suc- 
 cession, p. 95. See, also, Harrison v. Nixon, 9 Peters, R. 505 ; post, 
 479 g. 
 
 1 See Ante, ^ 52 to ^ 62, ^ 430 to ^ 435. 
 
 2 See ante, ^ 3G3 to ^ 373, ^ 435 to ^ 440 ; 1 Burge, Comm. on Col. 
 
 06*
 
 786 CONFLICT OF LAWS. [CH. XL 
 
 as to the form and solemnities of acts, and the capacity 
 and incapacity of the testator, (upon which we have suffi- 
 ciently commented,) there seems to be a general coin- 
 cidence of opinion among foreign jurists, that the Lex 
 rei Slice must in other respects govern as to wills and 
 testaments of immovable property. Thus, John Voet 
 says. Bona defiincti hnmohilia^ et qiice juris inteiyretatione 
 pro talihus habentur, defcrri secundum leges loci, in quo sita 
 sunt} Dumoulin's opinion is to the same effect. His 
 language is ; Aiit statidiim agit in rem, et qiiacunqiie ver- 
 hormn formula utatur, semper inspicitiir locus, iibi I'es sita 
 est. And again : Quoiies ergo statidum principaliter agit 
 in personam et in ejus consequentiam, agit in res immohiles, 
 nan extenditiir ad res sitas in locis, uhijus commune vel sta- 
 tidum hci diversum est? Hertius is even more direct. 
 Si Lex directo rei imponihcr, ea locum liahet, libicmique eiiam 
 locorum et a quocunque actus celehretur? He adds in ano- 
 ther place : Rehis fertur Lex, cum certam iisdem qua- 
 litatem imprimit, vel in cUiendo, v. g. ut ne bona avito possint 
 alienari, vel in acquirendo, e. g. id dominium rei immohilis 
 venditor non aliter accpdriiiir, nisi facta fuerit judicialis resig- 
 nation D'Aguesseau deems it a mere waste of time to 
 
 and For. Law, Pt. 1, ch. 1, p. 21, 22, 23 ; 4 Burge, Coram, on Col. and 
 For. Law, Pt. 2, ch. 12, p. 576 to p. 586 ; Id. ch. 5, p. 217 to 221, See 
 also Fcelix, Conflit des Lois, Revue Etrang. et Franc. Tom. 7, 1840, 
 § 40 to § 50, p. 346 to 360 ; Sand, Decis. Frisic. Lib. 4. tit. 1, Defin. 
 14, p. 142, 143. 
 
 1 J. Voet, ad Pand. Lib. 38, tit. 17, ^ 34, p. 596 ; ante, ^ 424. 
 
 2 Molin. Oper. Comm. ad Cod. Lib. 1, tit. 1, 1. 1, De Conclus, Statut. 
 Tom. 3, p. 556, edit. 1681 ; ante, ^ 443 ; 1 Froland, M6m. 65; Id, Vol. 
 2, p. 779. 
 
 3 1 Hertii, Oper. De Collis, Leg. ^4, n. 9, p. 125, edit. 1737 ; Id. p. 177, 
 edit. 1716. 
 
 4 1 Hertii, Opera, De Collis. Leg. § 4, n. 6, p. 122, edit. 1737 ; Id. 
 p. 174, edit. 1716 ; 2 Burge, Comm. p. 843 ; 4 Burge, Comm. p. 217.
 
 CH. XI.] WILLS AND TESTAMENTS. T87 
 
 do more than to state the general rule.^ Paul Voet has 
 stated the doctrine in an expressive manner : Kon iamen 
 statiitum personale sese regiilariter extendit ad bona immoUlia 
 alibi sHa? In another place he says, Immobilia statidis 
 loci, nbi sita, mobilia loci stalidis, iibi testator Jiabuit clomici- 
 lium? In another place he says, Quid, si itaque conten- 
 tie cle aliqiio jure in re, sen ex ipsa re descendenie ; vel ex 
 contractu, vel actione personaU, scd ad rem scriptd ; an spec- 
 tahitur loci statutwn iibi dominus hahet domicilium, an sta- 
 tutum rci sitce ? Respondeo ; Statutwn rei sitce} Boul- 
 lenois cites another jurist as holding similar language : 
 Sive in rem, sive in personam, loquatur statutwn, ad bona 
 extra territorum non extenditur. Consideratur namque bo- 
 norimi dominus, tit duplex homo ; quoad bona nempe sita in 
 lino territorio est wins homo ; et quoad alterius territorii 
 bona est alius homo? Again ; Idem quod infer endum, quoad 
 successionem testamentarium ; finge enim testamentum hie 
 fieri permissum esse, in Geldria non ita ? Hinc si quispiam 
 hie fecerit testamentum, non capiet vires, ratione bonoriim, in 
 Geldria jacentium. Talequippe statiitum spectatipsa bona, 
 
 ^ D'Aguesseau, CEuvres, Tom. 4, p. 636, 637. See Cochin, CEuvres, 
 Tom. 4, p. 555, 4to. edit. 
 
 2 P. Voet, De Stat. § 4, ch. 2, n. 6, p. 123, edit. 1715 ; Id. p. 138, 
 edit. 1061. 
 
 3 Id. ch. 3, n. 10, p. 135, edit. 1715 ; Id. p. 153, edit. 1601 ; ante, 
 M42. 
 
 < Id. § 9, ch. 1, n. 2, p. 252, edit. 1715 ; Id. p. 305, edit. 1001.— We 
 are not to confound the opinion of Paul Voet, as here expressed, with 
 v;hat he has said in anotlicr place, (ante, '5' 442,) that testaments are to 
 be executed according to the forms and solemnities of the place where 
 they are made, and not by those of the situs of the immovable property. 
 He takes a distinction between the forms and solemnities of testaments, 
 and their operation on this point. Whether there be any solid foundation 
 for such a distinction, it is for the learned reader to decide. Ante, ^ 442. 
 
 5 Id. ibid. ; 1 Boullenois, Observ. 10, p. 154.
 
 788 CONFLICT OF LAWS. [CH. XL 
 
 adeoqiie erit reale, non exserens vires ultra statuentis territo- 
 riwn} Again he adds : Quid, si testamento hona immobilia 
 relida, diversis siihjacent stcdutis ? Idem dicendum ; nihil 
 enim interest, testatus qnis, an intestatus decedat, ut locus sit 
 regulce. Extra tcrritorium jus dicenii impune nonjoairtur.^ 
 This is certainly the doctrine of the common law ; for a 
 man may have the capacity to take real estate in one 
 country, when he is totally disabled to take it in ano- 
 ther. Boullenois (as we have seen) lays it down 
 among his general principles, that, when the personal 
 laws of the domicil are' in conflict with the real laws of 
 the same country, or of a foreign country, the personal 
 laws are to yield ; and that, when the real laws of the 
 domicil are in conflict with the real laws of another 
 country, both have ejDfect within their own respective ter- 
 ritories, according to the laws thereof.^ 
 
 § 475. a. Rodenburg admits, that, where the law rei 
 sitw prohibits married persons to devise their immovable 
 estate by will or testament to each other ; or where the 
 law rei sitce prohibits certain kinds of immovable pro- 
 perty from being devised by will or testament, in such 
 cases the rei sitce is to govern, notwithstanding the par- 
 ties are domiciled, or make their will or testament in a 
 place where no such prohibition prevails ; because these 
 are real laws.^ Unde certissima usu ac observatione regula 
 est, cum de rebus soli agitur, et diver sa sunt diver sarum pos- 
 sessionum loca et situs, spectari semper cujusquc loci leges ac 
 
 1 P. Voet, De Statut. § 4, ch. 3, n. 11, p. 135, edit. 1715; Id. p. 153, 
 edit. 1661. 
 
 2 P. Voet, De Statut. ^ 9, ch. 1, n. 4. p. 253, edit. 1715 ; Id. p. 306, 
 307, edit. 1661. 
 
 3 1 Boullenois, Pr. Gen. 30, 31, p. 8. 
 
 4 Rodenburg, De Div. Stat. tit. 2, ch. 5, 6 1, 2, 3, 4, 5 ; 2 Boullenois, 
 Appx. p. 35, 36, 37, 38.
 
 CH. XI.] WILLS AND TESTAMENTS. 789 
 
 jura, uhi bona sita esse prepommtiir, sic lit de talihis nulla 
 citjusqiiam potestas p?'ceter territorii leges} 
 
 § 476. Huberus has expounded the subject at large. 
 We have ah^eady had occasion to cite his remarks on the 
 subject, so far as respects the forms and solemnities of 
 testaments, which he insists are valid if made according 
 to the forms and solemnities of the place where the tes- 
 tament is made, although not made according to the forms 
 and solemnities required by the law of the situs of the 
 property.^ But he takes a distinction between the 
 forms and solemnities of testaments, and the right to 
 dispose of immovable property by testament. "The 
 foundation (says he) of the whole of this doctrine, 
 which we have been speaking of, and hold, is the sub- 
 jection of all persons to the laws of any territory, as long 
 as they act there, which settles it, that an act valid or 
 invalid from the beginning, will be accordingly valid or 
 invalid everywhere else. But this reasoning does not 
 apply to immovable property, when this is considered, 
 not as depending upon the free disposition of the head 
 of the family, {paterfamilias,) but as having certain 
 marks impressed upon it by the laws of every common- 
 wealth in which it is situate, which marks remain in- 
 delible therein, whatever the laws of other governments, 
 or whatever the dispositions of private persons may es- 
 tablish to the contrary. For it would cause great con- 
 fusion and prejudice to the commonwealth, where im- 
 movable property is situate, that the laws, promulgated 
 concerning it, should be changed by any other acts. 
 
 ' Rodenburg, De Div. Stat. tit. 2, ch. 5, ^ 1 ; 2 Boullenois, Appx. 
 p. 35; 4 Burge, Com. on Col. and For. Law, Pt. 2, ch. 5, p. 218 ; Id. 
 ch. 12, p. 582, 583. See also Burgundus, Tract. 1, n. 40, 41, p. 41, 42. 
 
 2 Ante, ^ 443, 443 a.
 
 790 CONFLICT OF LAWS. [CH. XI. 
 
 Hence, a Frisian, having lands and houses in the pro- 
 vince of Groningen, cannot make a will thereof, because 
 the laws there prohibit any will to be made of such real 
 estate ; and the Frisian laws cannot affect real estate, 
 which constitutes an integral part of a foreign terri- 
 tory." ^ Fimdamentum unwersce hujus doctrines dixinms 
 esse, et tenemus, siibjedionem hominwn infra Leges ciijiisqiie 
 territorii, quamdiu illic agunt, quce facit, id actus ah initio 
 validus aid nidhs, alibi quoqiie valere aid nan valere non ne- 
 qiieat. Sed hcec ratio non convenit rebus immohilibus, quando 
 nice spectantur, non id dependentes a libera dispositione 
 cuj usque pcdrisfamilias, verimi quatemts certce notce lege 
 cujiisque Reip. ubi sita sunt, illis impressce reperiuntur; 
 lice notce manent indelebiles in ista RepubL, qidcquid aliaruni 
 Civitcdum Leges aut privatorwn dispositiones, seciis aid con- 
 tra statuant ; nee enim sine magna confusione pra^judiciocpie 
 Reip. ubi sitce sunt res soli, Leges de illis latce, dispositioni- 
 hus istis mutari possent. Hinc Frisius habens agros et 
 domos in provincia Groningensi, non potest de illis testari, 
 quia Lege prohibitum est ibi de bonis immobilibus testari, non 
 valente Jure Frisico adficere bona, rpice partes alieni territorii 
 integrantcs constituunt. And yet, with this clear princi- 
 ple in view, he proceeds to declare, that this does not 
 contradict the rule which he had already laid down, 
 that if a will is valid by the law of the place where it 
 is made, it ought to have effect even in regard to real 
 property, situate in foreign countries, by whose laws 
 such property may be passed by a will ; because (says 
 he) the diversity of laws in that respect does not affect 
 the soil, neither speaks of it, but simply directs the 
 manner of making the will, which being rightly done, 
 
 1 Huberus, Lib. 1, tit. 3, ^ 15.
 
 CH. XI.] AVILLS AND TESTAMENTS. 791 
 
 the law of the commonwealth does not prohibit the in- 
 strument to have validity in regard to immovables, 
 inasmuch as no characteristic or incident, impressed by 
 the laws of the country, is injured or diminished/ 
 
 § 477. Burgundus lays down the doctrine in general 
 terms, that in every thing, which regards land and other 
 real inheritances, it is the law of the situation which is 
 to decide.^ He takes the distinction between movable 
 and immovable property, and between real and personal 
 statutes. Proindey in quantum (statutum) est reale, ct im- 
 niohilia dirigit, fines territorii non egreditiir? And again : 
 Qiiando hoc iinimi generaliter ohtineat, lit in immoUlihiis si- 
 tus semper spectandus venicd ; in moUUhus cmtcm locus do- 
 micilii.^ And (as we have seen) he applies the rule spe- 
 cially to wills. jSi quidem solemnitates testamenti ad jura 
 personalia non pertinent ; quia sunt qiicedam qualitas lonis 
 ipsis impressa, ad cpiam tenetur respicere, quisquis in bonis 
 aliquid alterat!' Quare etiam mihividetur consequens, juris 
 civilis rcdionem exigere in testamentis exarandis adldhitionem 
 solemnitatis, quamprccscriioserit consuetudo cij usque possessi- 
 onis. JSfam si ex solemni testamcnto nascitur jus in ipsa, re, 
 quomodo id potest prwstare alt erius regionis consuetudo , quce 
 alienis fundis alterationis necessitatem imponere non potest ? 
 Hoc enini esset jus dicere extra territorium cui impime non 
 paretur^ There is a great deal of solid sense in these 
 
 1 Huberus, Lib. 1, tit. 3, ^ 15. The original is cited, ante, k^ 443 a. 
 
 2 Ante, \ 433. 
 
 3 Burgundus, Tract. 1, n. 26, p. 38. 39. 
 
 4 Burgundus, Tract. 1, n. 41, p. 43. 
 
 5 Burgundus, Tract. 0, n. 3, p. 128 ; ante, § 372, ^ 438. 
 
 6 Burgundus, Tract. 6, n. 1, 2, 3, p. 129; Id. Tract. 1, n. 30, p. 38, 
 39; ante, ^ 372, 433, 438; 1 Boullenois, Observ. 9, p. 151. Sec also 
 Henry on Foreign Law, p. 97, 98.
 
 792 CONFLICT OF LAWS. [CH. XL 
 
 remarks ; and they form a satisfactory answer to the 
 distinction propounded by Huberus.^ 
 
 § 478. The Scottish law is in perfect coincidence 
 with the common law on this subject. Erskine, in the 
 passage already cited, has stated, that in the convey- 
 ance of an immovable subject, or of any right affecting 
 heritage, the owner must follow the solemnities esta- 
 blished by the law, not of the country, where he signs 
 the instrument, but of the State in which the heritage 
 lies.^ And even if all due solemnities are observed, 
 still no estate will pass, unless in conformity with the 
 local law. Hence, (he adds,) a foreign testament be- 
 queathing heritable subjects, situate in Scotland, is not 
 sustained in Scotland, although by the law of the coun- 
 try, where the testament was made, a heritage might 
 have been actually settled ; because by the Scottish law 
 no heritable subject can be disposed of in that form.^ 
 
 § 479. Vattel (as we have seen) adopts the same rule, 
 as a general one of the jus gentium.'^ As to bequests, 
 he asserts in the most positive terms, that, when they 
 respect immovables, they must be conformable to the 
 law of the country where they are situated.^ He 
 adds : In the same manner the validity of a testament, 
 as to its form, can only be decided by the Judge of the 
 domicil, whose sentence, delivered in form, ought to be 
 everywhere acknowdedged. But without affecting the 
 validity of the testament itself, the bequest contained 
 
 1 Ante, ^ 476. See also, 4 Burgc, Comm. on Col. and For. Law, 
 Pt. 2, ch. 12, p. 582 to 586. 
 
 2 Ante, § 436. 
 
 3 Ersk. Inst. B. 3, tit. 2, ^ 41, p. 515, 516 ; 2 Kames, Equity, B. 3, 
 ch. 8, ^ 3. 
 
 4 Ante, § 471, 472. 
 
 5 Vattel, B. 2, ch. 7, ^ 85, ch. 8, ^ 103, 110, HI.
 
 CH. XI.] WILLS AND TESTAMENTS. 793 
 
 in it may be disputed before the Judge of the place, 
 where the effects are situated ; because those effects can 
 only be disposed of conformably to the laws of the coun- 
 try.^ Grotius makes a distinction between the personal 
 capacity of making wills and testaments and the forms 
 and solemnities thereof, and the right and power to dis- 
 pose of property, whether movable or immovable, hold- 
 ing, that the forms and solemnities are governed by the 
 law of the place where the will or testament is made ; 
 the capacity of the person is governed by the law of his 
 domicil; and the right to dispose of property is go- 
 verned in the case of movables by the law of the do- 
 micil, and in the case of immovables, by the law of the 
 situs rei. TTbi dc forma sive solemnitate testamenii agUiiVy 
 rcsjnci locum conditi testamenti ; id)i de persona antcstari 
 jus domicilii ; uU de rchus, quce testamento relinqiii possiint, 
 vcl non, respici locum domicilii, in mohilihis, in rehis soli 
 situm loci} If it were necessary, the opinions of manj^ 
 other foreign jurists might be cited to the same effect ; 
 but it would incumber these pages to give them a more 
 extended review.^ 
 
 » Vatte],B.2, ch. 7,^85. See also Id. ch.8, § 110, 111 ; ante,M71. 
 
 2 Grotius, Epist. 4G7, cited 4 Burge, Comm. on Col. and For. Law, 
 Pt. 2, ch. 5, p. 220. 
 
 3 See 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 5, p. 217, 
 218 ; Id. ch. 12, p. 576 to p. 585. — Mr. Burge (in 4 Burge, Comm. 
 p. 218, 219, 220 ; Id. p. 581 to 585) states the opinions of many foreign 
 jurists ; and among others he says (p. 218 to 220) ; " Ferriere has stated 
 this doctrine ; ' Si je legue un heritage propre situ6 en coutume, qui en 
 d^fende la disposition, tel legs est nul, et ne pent etre parfourni sur les 
 bicns situes en cette coutume, quoi qu'acquest, parce qu'i I'egard des 
 choses, dont on pent disposer par dernicre volonte, on considere la cou- 
 tume ou elles sont situc-es. Celui qui a son domicile en cette coutume 
 pent instituer sa femme dans les biens, qu'il a dans le pais de droit 6crit, 
 comme il a 6i6 jug6 par arret du 14 Aout, 1754, rapport^ par Marion au 
 de ses plaidoyers, ce qui doit 6tre sans difficultfe." A testament made in a 
 
 CONFL. 67
 
 794 CONFLICT OF LAWS, [CH. XL 
 
 § 479 a. Passing from these considerations as to the 
 law, by which the forms and solemnities of wills and 
 
 foreign country, bequeathing heritable subjects situated in Scotland, is not 
 sustained in that kingdom, though by the law of the country, where the 
 testament was made, heritage might have been settled by testament ; 
 because by the law of Scotland no heritable subject can be disposed of 
 in that form. On this principle a Scot's personal bond taken to heirs and 
 assignees, but 'secluding executors,' cannot be bequeathed by a foreign 
 testament. But in all questions touching heritable subjects situate abroad, 
 the foreign testament will be given effect to according to the lex loci. 
 Dumoulin lays down the same doctrine respecting the restriction on the 
 testamentary power over biens propres. ' Unde statutum loci inspicietur, 
 sive persona sit subdita, sive non ; itam si dicat, hacredia proventa ab una 
 linea, redeant ad hasredes etiam remotiores lineas, vel haeredes linese suc- 
 cedant in hterediis ab ilia linea proventis. Vel quod illi de linea non pos- 
 sunt testari de illis in totum, vel nisi ad certam partem. HiBC enim omnia 
 et similia spectant ad caput statuti, agentis in rem, et prascedentem conclu- 
 sionem.' Again ; the statute which prohibits a disposition to particular 
 persons, or (which involves the same consequence) requires the disposition 
 to be made in favor of certain persons, and therefore excludes all others, 
 is a real law. ' Directe enim in rerum alienationem scripta hsec lex realis 
 omnino dicenda est : nee enim statutum reale sit, an personale metiri 
 oportel a ratione, quae a conjugal! forsan qualitate fuerit ducta, sed ab ipsa 
 re, quai in prohibitione statuti ceciderit.' So also it has been held, that 
 the law which requires that the testator should have survived the execu- 
 tion of his testament will control the disposition of property situated in the 
 country where that law prevails, although the testament is made, or the 
 testator domiciled in a place Avhere no such law exists. If a testator, 
 whose domicil and real estate were both ia Normandy, made a will in 
 some other place, in which he had occasion to be present, but where the 
 law did not require that the testator should survive forty days, it was held, 
 that the survivorship was essential to the validity of the testament, so far 
 as it related to the real property in Normandy. If these questions arise 
 on the power to dispose of movable property by testament, the law by 
 which ihey are decided is that of the domicil ; " Pour les meubles, ils sui- 
 vent la loi du domicile, et il ne sauroit jamais y avoir de choc entre diff6- 
 rentes coutumes, en sorte qu'il est assez inutile, quant aux meubles, d'agi- 
 ter si le statut, qui permet de tester, ou qui le defend, est personnel, ou 
 s'il est r6el." See also Fcelix, Conflit des Lois, Revue Etrang, et Fran^. 
 Tom. 7, 1840, ^ 37, p. 307 to p. 312. The latter author says in this 
 place ; " Le second cas, ou le statut personnel semble devoir pr6dominer 
 sur le statut r6el, est celui de la succession a toute la fortune d'un indi- 
 vidu, soit ab intestat, soit par testament. Voici les arguments invoques
 
 CH. XI.] WILLS AND TESTAMENTS. 795 
 
 testaments of movable property and of immovable pro- 
 perty are to be regulated, in order to give them validity, 
 
 par les auteurs qui, dans ces deux hypotheses, pr6tendent faire regir la 
 succession par la loi personnelle du defunt. Lorsque, par la mort d'un 
 individu, il s'agit de succ6der k tous ses droits actifs et passifs, ^ touts sa 
 fortune (universum patrimonium,) on regarde en droit cette fortune comma 
 un ensemble (universitas juris,) sans egard aux objets particuliers qui la 
 composent ; et cette universalite repr6sente de droit le defunt, meme avant 
 I'appr^hension faife par I'h^ritier. L'heritier succ6de ensuite dans cette 
 universalite, et c'est alors seulement qu'il represente la personne du de- 
 funt. L'universalit6 des biens du defunt forment ainsi la continuation de 
 la personne de ce dernier, on doit, pour tout ce qui concerne la succession 
 a cette universality, suivre la loi de son domicile, c'est k dire son statut 
 personnel ; tous les objets compris dans la succession sont soumis k ce 
 statut personnel. Ainsi la succession d'un Francais est r^gie par le Code 
 civil, meme a l'6gard des immeubles appartenant au defunt et situ6s en 
 Autriche, et on ne suit pas I'ordre des successions etabli par le Code 
 Autrichien. Cette doctrine a 6te professee par un grand nombre d'auteurs 
 distingu6s ; elle I'a et6 d'abord par Cujas, relativement a. la succession 
 testamentaire ; ensuite la m^me opinion a 6t6 adoptee, quant a la succes- 
 sion ab intestat, par Puffendorf, Bachov, J. H. Boehmer, G. L. Boehmer, 
 Helfeld, Gluck, Hamm, Meier, par MM. Mittermaier, Eichhorn, Muhlen- 
 bruch, et Grundler. Toutefois, quatre des auteurs cit6s, Puffendorf, Hert, 
 Gluck, et Hamm n'admettent le principe qu'avec deux restrictions : il ne 
 sera pas applicable, lorsqu'il existe une loi prohibitive au lieu de la situa- 
 tion des immeubles, ou lorsqu'une qualit6 speciale se trouve imprim^e aux 
 biens ; par exemple, s'ils sont ftodaux, stemmatiques ou frapp6s d'un 
 fid^icommis. En faveur de cette opinion on invoque, outre le principe que 
 la succession reprsente le d6funt, plusieurs considerations accessoires. 
 D'apres I'opinion commune des auteurs, la succession ab intestat repose 
 sur la volont6 presumes du d6funt ; le defunt n'ayant connu, en r^gls 
 generals, d'aulre loi que celle du lieu ds son domicile, on doit admettre 
 qu'il a ^tendu faire passer ses immeubles aux parents appeles par cette 
 loi : si telle n'avait pas 6t6 son intention, il en aurait dispose par testa- 
 ment. On fait remarquer que toutes Iss nations admsttentchez ellcs I'exi- 
 cution des testaments consentis par un etranger dans sa patrie et dans les 
 formes qui y sont prescrites. Ces testaments ns sont autrs chose que 
 I'expression formelle de la volonte du defunt, sanctionn6s par la loi civile 
 de sa patrie : a plus forte raison devra-t-on accorder un effet seml)lable k 
 cette loi civile lorsque, sans un acts du defunt, elle prononce seule. On 
 cits sncors les inconv^nients r^'sultant do la division des patrimoines en 
 differentes successions particuli^res, au prejudice des heritiers et des cr6- 
 anciers ; enfin on fait observer que la chose publique est sans int6ret dans
 
 796 CONFLICT OF LAWS. [CH. XI. 
 
 let us proceed, in the next place, to the consideration of 
 the rules, by which such wills and testaments are to be 
 interpreted. And, in the first place, in regard to wills 
 and testaments of personal property. In such cases, 
 where the will or testament is made in the place of the 
 domicil of the testator, the general rule of the common 
 law is, that it is to be construed according to the law of 
 the place of his domicil, in which it is made.^ A will, 
 therefore, made of personal estate in England, is to be 
 construed according to the meaning of the terms used 
 
 la question, parce que les prohibitions, les charges et impositions pesant 
 sur I'immeuble peuvent neanmoins produire leur effet, et que, du reste, 
 peu importe a I'^tat quelle est la personne, qui herite de tel immeuble 
 D'autres non moins respectables n'admettent I'application du statut per- 
 sonnel en matiere de succession, qu'en ce qui concerne les meubles, et 
 ils la rejettent par rapport aux immeubles ; ils appliquent a ceux-ci la 
 loi de la situation, sans distinguer s'il s'agit de succ6der a un immeuble 
 particulier an .\ l'nniversalit6 de la fortune d'un individu. lis admettent 
 autant de successions particulieres qu'il y a de territoires ou sont situ^s 
 les immeubles provenant du defunt (Quot sunt bona diversis territoriis 
 obnoxia, totidem patrimonia intelliguntur.) Nous citerons Burgundus, 
 Rodenburg, Paul Voet, Jean Voet, Abraham ^ Wesel, Christin, Sande, 
 Gail, Carpzov, Wernher, Mevius, Struve, Leyser Huber, Hommel, Ber- 
 ger, Lauterbach, Vattel, Tittmann, Danz, Hauss, MM. Thibaut, Story, 
 et Burge. Aucune legislation positive ne s'est expliqu6e sur la question 
 de savoir, si c'est la loi r^elle ou la loi personnelle, qui doit i^gir la suc- 
 cession ab intestat. Nous pensons qu'il faut appliquer le statut de la situ- 
 ation des immeubles. Le premier principe, en matiere de conflit des lois, 
 c'est que les lois de chaque 6tat r^gissent Icsbiens situes dansle territoire • 
 il n'est nullement 6tabli qu'une convention tacite s'est formee entre les 
 nations pour I'application de la loi personnelle au cas de succession dans 
 l'universalit6 des meubles et immeubles d'un individu : t^moin la diver- 
 gence des sentiments des auteurs. Les arguments invoqu6es en faveur de 
 cette application sont fond6s en partie dans le droit civil, en partie dans 
 I'avantage commun des nations ; mais on ne voit pas que I'usage des na- 
 tions ait consacr6 cette opinion." See also Fcelix, Id. ^ 27, p. 216, 217, 
 218 ; Ante, § 429 to ^ 444. 
 
 ^ Yates u. Thomson, 3 Clarke & Finell. R. 544, 570; Robertson on 
 Successions, p. 99, 100, 191 to 197, 214, 255 ; post, § 490, 491.
 
 CH. XI.] WILLS AND TESTAMENTS. 797 
 
 by the law of England ; and this rule equally applies, 
 whether the judicial inquiry, as to its meaning and in- 
 terpretation, arises in England, or in any other country.^ 
 
 1 Trotter v. Trotter, 4 Bligh, (N. S.) 502 ; S. C. 3 Wils. & Shaw, R. 
 407. — In this case the testator, a Scotchman, domiciled in the dominions 
 of England in India, made his will there ; he being possessed of Scotch 
 heritable bonds as well as of personal property there. The will was inef- 
 fectual to carry a Scotch heritage according to the law of Scotland ; and 
 the question arose, whether his heir in Scotland, who claimed the herita- 
 ble bonds as heir, was also entitled to share in the movables, as a legatee 
 under the will, without bringing in the heritable bonds, or being put to 
 his election. It was held, that the will as to its terms must be inter- 
 preted according to the law of England ; and that by the law of Eng- 
 land the terms used were not such as to import an intention to convey real 
 estate by the testator; and, therefore, that the heir was entitled to the 
 whole heritable bonds, and also to his share of the movable property under 
 the will. On that occasion the Lord Chancellor (Lord Lyndhurst) said : 
 " It was stated at the bar, and I see by the papers it was also argued 
 below, that in cases of this description, it is not unreasonable, that when 
 any technical points arise in the construction of a will of this description, 
 the Court of Session should resort to the opinion of lawyers of the coun- 
 try, where the will or instrument was executed, but that this applies only 
 to technical expressions ; that where a will is expressed in ordinary 
 language, the judges of the Court of Scotland are as competent to put a 
 proper construction upon it as judges or lawyers of the country where the 
 will was executed. But the judges below were not of that opinion ; and 
 it is impossible, as it appears to me, that such an opinion can be reason- 
 ably entertained. A will must be interpreted according to the law of the 
 country where it is made, and where the party making the will has his 
 domicil. There are certain rules of construction adopted in the Courts, 
 and the expressions which are made use of in a will, and the language of 
 a will, have frequently reference to those rules of construction ; and it 
 would be productive, therefore, of the most mischievous consequences, 
 and, in many instances defeat the intention of the testator, if those rules 
 were to be altogether disregarded, and the judges of a foreign Court, 
 (which it may be considered in relation to the will,) without reference to 
 that knowledge which it is desirable to obtain of the law of the country in 
 which the will was made, were to interpret the will according to their 
 own rules of construction. That would also be productive of another 
 inconvenience, namely, that the will might have a construction put upon 
 it in the English Courts different from that which might be put upon it in 
 the foreign country. It appears to me, that there is no solid ground for 
 67*
 
 798 CONFLICT OF LAWS. [CH. XL 
 
 Thus, for example, if the question should arise, whether 
 the terms of a will include a bequest of real estate, or 
 
 the objection ; but that where a will is executed in a foreign country by a 
 person having his domicil in that country, with respect to that person's 
 property, the will must be interpreted according to the law of the country 
 where it is made. It must, if it comes into question in any proceeding, 
 have the same interpretation put upon it as would be put upon it in any 
 tribunal of the country where it was made. It appears to me, therefore, 
 that the judges were perfectly right in directing the opinion to be taken of 
 English lawyers of eminence, with respect to the import and construction 
 of this will according to the law of England. The main question that 
 was ultimately put to the learned persons, to whom I have referred, is 
 this, — ' Whether, on the supposition of the question having arisen for 
 trial in England, the heir would have been put to his election if he had 
 claimed money secured by heritable bond in Scotland, as well as his share 
 of the personal estate under the will.' The answer is in these terms, — 
 ' Considering heritable bonds in Scotland as real estates to which the heir 
 at law is entitled, unless they are conveyed away with due solemnity by 
 his ancestor, we think the heir at law would be entitled in this case to 
 claim them without being put to his election, if the question had arisen in 
 a court of justice in England.' When that opinion was communicated to 
 the Court in Scotland, the Court, immediately affirming that opinion, 
 decided in favor of the heir at law. The heir at law was undoubtedly 
 entitled to take the real estate, — that is, the heritable bond ; and the sole 
 question was, whether, when he came in to claim under the will his pro- 
 portion of the personal estate, it was required by law, that he should be 
 put to his election, that is, whether he should take the one or the other ; 
 whether he should allow the real estate to be connected with the personal 
 so as to form one mass of the property, and the whole divided, or should 
 take the real estate, and give up the personal estate? Whether he was 
 obliged or not to do this, depended entirely on this consideration, whether 
 upon the face of the will there was sufRcient to manifest a clear intention, 
 that the testator designed by his will to dispose of his real estate ; be- 
 cause, if he intended to dispose of his real estate, although he had not 
 carried that intention effectually into execution, the party taking under 
 that will would not be entitled to have the benefit of the will, and at the 
 same time to defeat the intention of the testator. The question was, 
 therefore, simply a question of construction. Does it appear upon the face 
 of the will, that it was the intention of the testator to dispose of his real 
 estate, that is, of those heritable bonds? Now, the rule of law in Eng- 
 land with respect to subjects of this kind is well ascertained and well de- 
 fined, and it is this, — that you are not to proceed by probability or by 
 conjecture, but that there must be a clear and manifest expression of the
 
 CH. XI.] WILLS AND TESTAMENTS. 799 
 
 show on the part of the testator an intention to be- 
 queathe real estate, as well as personal estate, the ques- 
 tion must be decided according to the law of the place 
 of his domicil, and where the will was made j and the 
 same interpretation must be put upon those terms in 
 every other country, which would be put upon them by 
 the law of that domicil.^ So, what is to be deemed 
 " real estate " in the sense of a will, devising real 
 estate to certain persons, must be decided by the law 
 of the domicil of the testator. Thus, where a testator 
 was domiciled in Jamaica, in which place he made his 
 will, and the devise was in these words ; " I give, devise, 
 and bequeathe one moiety of the rents, issues, and profits 
 of my estate named Islington and Cove's Penn, in the 
 parish of St. Mary, to be divided equally amongst my 
 grandchildren. The other moiety of the rents, issues, 
 and profits of my said estate and Penn I give, devise, 
 and bequeathe to my son, &c." According to the import 
 of the words " my estate," as they are understood and 
 used in Jamaica, not only the land, but the works, build- 
 ings, utensils, slaves, cattle, and stock on the plantation 
 would be included. The court put this construction on 
 the devise.^ 
 
 § 479 J. In like manner, whether the words of a will 
 give a legacy, or create a trust, in favor of a party, 
 where the expressions used import a wish or desire, or 
 
 intention on the face of the will to include that property which is not pro- 
 perly devised, before the heir can be put to his election." Ibid. See also 
 Prince v. Deerhurst, 8 Sirti. R. 279, 299, 300 ; post, ^ 489; Robertson on 
 Successions, p. 189 to 197. 
 
 1 Trotier u. Trotter, 4 Bligh, R. (N. S.) p. 502; S. C. 3 Wils. & 
 Shaw, p. 407. 
 
 2 Stewart v. Garnett, 3 Sim. R. 298 ; 4 Burgc, Comm. on Col. and 
 For. Law, Pt. 2, ch. 12, p. 591.
 
 800 CONFLICT OP LAWS. [CH. XL 
 
 other language of a similar sort is used, must be decided 
 by the law of the place, where the will is made, and the 
 testator has his domicil.^ So, where a legacy is given 
 in terms expressive of a currency in use in different 
 countries, but of different values therein, the same rule 
 will apply. Thus, for example, a will made in Ireland 
 by a testator domiciled there, giving a legacy of £1000, 
 will be interpreted to be a legacy of ^£1000 Irish cur- 
 rency, and payable accordingly, and not a £1000 Eng- 
 lish sterling currency.^ So legacies are deemed pay- 
 able according to the law of the country, and in the 
 currency of the country, where the will is made and the 
 testator is domiciled.^ 
 
 § 479 c. In like manner the question, whether a 
 legatee by the terms of a foreign will or testament 
 takes an estate for life, or in fee, is to be decided by 
 the law of the place where the will is made, and the 
 testator is domiciled, and not by the law of the place 
 where the controversy arises, or the testator was born.'' 
 So if the question arises, whether it is competent to 
 make a particular bequest of property, the validity of 
 it must be decided by the law of the place where the 
 will or testament is made, and the testator is domiciled.^ 
 So, if a legacy is given by a will or testament to a 
 
 1 Pierson r. Garnett, 2 Bro. Ch. R. 38; 2 Story on Eq. Jurisp. ^ 1068 
 to ^ 1071. 
 
 2 Id. p. 47. 
 
 3 Ibid. ; Saunders v. Drake ; 2 Ath. 465 ; Pierson v, Garnett, 3 Bro. 
 Ch. R. 39, 47 ; Malcolm v. Martin, 3 Bro. Ch. R. 50 ; Wallis v. Bright- 
 well, 2 P. Will. 88 ; Lansdowne v. Lansdowne, 2 Bligh, R. 60, 88, 89, 
 95 ; 4 Burge, Comm, on Col. and For. Law, Pt. 2, ch. 12, p. 595, 596 ; 
 ante, ^ 259, 310 to 313. 
 
 4 Brown v. Brown, 4 Wils. & Shaw, 28, 37 ; post, ^ 490. 
 
 5 Price V. Deerhurst, 8 Simons, R. 279, 299, 300, 301 ; 2 Boullenois, 
 Observ. 46, p. 505 to p. 508.
 
 CH. XI.] WILLS AND TESTAMENTS. 801 
 
 party, who dies in the lifetime of the testator, the ques- 
 tion, whether it is an ademption of the legacy, or 
 whether the legacy goes to his personal representatives, 
 is to be decided by the law where the will or testament 
 is made, and he is domiciled.^ 
 
 § 479 d. Another illustration may arise under a will, 
 which purports to direct the testator's real estate to be 
 sold, and the proceeds to be applied to foreign charities, 
 which devise is good by the law of the foreign country, 
 but is prohibited by the law of the testator's domicil. 
 In such a case the devise will be void, because it is 
 against the law of his domicil. This was held in a 
 case, where a testator in England by his will directed 
 his real estate to be sold, and the produce to be laid out 
 in lands, or in the funds, for the maintenance of a 
 charity in Scotland. On that occasion the Master of 
 the Rolls (Sir Wm. Grant) said ; " The statute (9 Geo. 
 2, ch. 36) contains no express words prohibiting a be- 
 quest of money, to be produced by the sale of land, to 
 charitable purposes ; but it is settled by construction, 
 that such a bequest is within the spirit and meaning of 
 the law ; and it is clear, that no charity in England, not 
 within the exception of the statute, could have derived 
 any benefit from the produce of the real estate. The 
 question, then, is, whether such produce may be given 
 to what, in contemplation of the English law, is for a 
 charitable purpose, when that purpose is to be carried 
 into execution in another country. The validity of 
 every disposition of real estate must depend upon the 
 law of the country in which that estate is situated. 
 
 1 Anstruther v. Chalmcr, 2 Sim. R. 1 ; Thornton v. Curling, 8 Sim.R. 
 310 ; S. C. 2 Addams, Eccles. R. 6, 10 to 25 ; post, ^ 491.
 
 802 CONFLICT OF LAWS. [CH. XL 
 
 The subject of this statute is real estate in England. 
 The owners of such property are disabled from disposing 
 of it to any charitable use, except by deed, executed 
 twelve months before the death of the owner, &c., to 
 take effect from the execution. The words are per- 
 fectly general, ^ any charitable use whatsoever ; ' and the 
 object could not be to treat English charities less favor- 
 ably than charities to take effect for the benefit of other 
 countries. It would be somewhat incongruous to refuse 
 to permit such a disposition for the most laudable and 
 meritorious charitable institution in England ; but if the 
 party chose to carry his benevolent intention beyond 
 England, to permit him to do so, to the effect of disin- 
 heriting his heir in his last moments. The disinheriting 
 of the lawful heirs by languishing or dying persons, 
 which is treated by the statute as a mischief, cannot be 
 less so, when the effect is to carry the property out of 
 England. Therefore, neither the words of this statute, 
 nor the presumable intention, warrant me in declaring, 
 that it is to be confined to charitable purposes to be 
 carried into execution in England. The statute not 
 containing an exception in favor of the universities of 
 Scotland, as it does with regard to the universities of 
 England,! must consider this as a charitable disposition, 
 by which nothing that is the produce of the testator's 
 real estate can pass." ^ 
 
 § 479 c. The same rule will apply to the ascertain- 
 ment of the persons, who are to take under a will or tes- 
 tament, when it is made by words designating a parti- 
 cular class or description of persons. "Who are the 
 
 1 Curtis V. HuUon, 14 Ves. 537,511. See also 3 Peters, R. Appx. 
 p. 501 to 503.
 
 CH. XI.] WILLS AND TESTAMENTS. 803 
 
 proper persons entitled to take under the designatw im-- 
 sonanim, is a point to be ascertained by the law of the 
 place where the will is made, and the testator is domi- 
 ciled. Thus, for example, if a testator should bequeathe 
 his personal estate to his " heir at law," who is the per- 
 son entitled to take under that description, will depend 
 upon the law of his domicil. If domiciled in England, 
 it will be the eldest son ; if domiciled in most of the 
 States of America, it will be all his children.^ So, if a 
 
 1 Harrison v. Nixon, 9 Peters, R. 483,504. — On tliis occasion the 
 Court said ; " No one can doubt, if a testator, born and domiciled in Eng- 
 land during his whole life, should, by his will, give his personal estate to 
 his heir at law, that the descriptio persona3 would have reference to and be 
 governed by the import of the terms in the sense of the laws of England. 
 The import of them might be very different, if the testator were born and 
 domiciled in France, in Louisiana, in Pennsylvania, or in Massachusetts. 
 In short, a will of personalty speaks according to the laws of the testa- 
 tor's domicil, where there are no other circumstances to control their ap- 
 plication ; and to raise the question, what the testator means, we must first 
 ascertain, what was his domicil, and whether he had reference to the laws 
 of that place, or to the laws of any foreign country. Now, the very gist 
 of the present controversy turns upon the point, who were the person, or 
 persons, intended to be designated by the testator, under the appellation of 
 ' heir at law.' If, at the time of making his will, and at his death, he was 
 domiciled in England, and had a reference to its laws, the designation 
 might indicate a very different person, or persons, from what might be the 
 case, (we do not say, what is the case,) if, at the time of making his will, 
 and of his death, he was domiciled in Pennsylvania. In order to raise 
 the question of the true interpretation and designation, it seems to us in- 
 dispensable that the country, by whose laws his will is to be interpreted, 
 should be first ascertained ; and then the inquiry is naturally presented, 
 what the provisions of those laws are." Mr. Burge has put a number of 
 cases from the foreign law on the same subject. He says ; " The legal 
 effect of the expression, 'lawful heirs,' will not be controlled by words, 
 which import an equality of distribution amongst the heirs ; but those 
 words will be understood as referring to the equality, which is consistent 
 with, and recognized by that law, which the testator is presumed to have 
 invoked. The institution of heirs was thus expressed ; ' Fratrum et soro- 
 rum filios ac nepotes hicredes legitimes ex acquis partibus.' (Voet, lib. 28, 
 tit. 5, n. 17.) If the whole inheritance were to be divided amongst those
 
 804 CONFLICT OF LAWS. [CH. XL 
 
 person domiciled in Holland should bequeathe his pro- 
 perty to the " male children " of certain persons, and 
 the question should arise, as well it might, whether by 
 " male children " be meant male descendants, that is, 
 descendants claiming through males only, the question 
 would be decided by the interpretation put upon those 
 words by the law of Holland. 
 
 heirs in equal parts, the qualification of legitimus hseres would be dis- 
 regarded, because, according to the order of succession established by 
 law, the grandsons of one brother succeeding with the sons of another do 
 not take per capita, but per stirpes. The equality, therefore, to be ob- 
 served in the distribution, and which must be presumed to have been that 
 contemplated by the testator, is that, which the law admits, namely, an 
 equality between the stirpes, and not between the individuals. (Neostad, 
 Decis. 33.) A case arose in the court at Brabant, of a father domiciled in 
 Brabant, who had, in the institution of his son, desired him to allow that, 
 which he had left him, to go to his lawful children. It was decided, that 
 the grandfather's estate would devolve on those children only, who would 
 take according to the law of Brabant in the case of intestacy, namely, the 
 children of the first, to the exclusion of those of a second marriage. 
 (Stockmans, Curiae Brab. Decis. 27.) Under an institution by the de- 
 scription of ' brothers,' brothers of the whole blood only will take, if ac- 
 cording to the law in the place of the lex loci domicilii, the children of the 
 father's or mother's side only are excluded from the succession. (Chris- 
 tin ad Leg. Mech. tit. 16, art. 7, n. 5, 6 ; Voet, lib. 28, tit. 5, n. 18; Ro- 
 denb. de Jure, Quod Ori, de Stat. Divers, tit. 3, c. 2, n. 6, p. 135 ; Some- 
 len de Reprajs. c. 5, n. 4.) If a testator institute as his heirs those vihom 
 he calls proximi, without using any expression pointing to those who 
 would by law succeed to him in case of intestacy, and he leaves no child- 
 ren, it is doubtful who are entitled to the succession, whether those 
 who would take according to the law of the place of his domicil, or those 
 who were really and naturally the nearest to the testator in blood, although 
 according to that law they could not be his heirs. Thus, if the testator 
 were domiciled in a country where the relations of the deceased mother 
 succeed in preference to the surviving father, the latter is the nearest in 
 blood to the deceased, although he is not nearest in the order of succession. 
 It seems, that the term proximus would receive its natural signification, 
 and consequently the father as the nearest in blood would succeed, and not 
 the descendant in the maternal line. (Voet, lib. 28, tit. 5,n. 19, and lib. 36, 
 lit. 1, n. 25 ; Someren, de Reprees. c. 6.) But it is said, that this con-
 
 CH. XI.] WILLS AND TESTAMENTS. 805 
 
 § 479/. But the question may be asked in these and 
 the like cases, what is to be the rule of construction, if 
 
 struction is made to depend oo the degree in which the law of succession 
 deviates from the natural sense of the word proximus. And where in 
 cases of intestacy some of the nearest are admitted to the succession with 
 some more remote in blood, the construction would be according to the 
 legal sense. If therefore a testator, instituting his wife as his heir, should 
 direct, that the inheritance after his death should revert to the nearest, 
 then according to the jus Scabinicum, [Sen-Cons-Trebellianicum,] the 
 father would be entitled to one half, and all the brothers to the other half. ^ 
 (lb. Sand6, Decis. Fris. lib. 4, tit. 5, def. 6.) If the testator has called 
 to the succession those who are nearest to him in case of intestacy, re- 
 course must be had, not to the laws of the different countries, in which his 
 immovable property is situated, to decide, who are the persons entitled to 
 succeed, but to the lex loci domicilii. And then it may happen, that those 
 would succeed, who will not be the nearest in blood. (Sand. Decis. Fris. 
 lib. 4, tit. 5, def. 6, 8; Voet, lib. 36, tit. 1, n. 25, lib. 28, tit. 5, n. 20; 
 IManlica, de Conj. ult. Volunt. lib. 8, tit. 14, n. 10; Van Leeuwen, 
 Cens. For. part 1, lib. 3, c. 7, n. 19; Neostad, decis. 35; Jul. Clarus. ^ 
 Testam. qua^st. 76, n. 13 ; Someren, de Reprses. c. 5, n. 16 ; ante. Vol. 2, 
 p. 856.) In a bequest of a pecuniary legacy, where the will affords no 
 direct evidence of the currency, in which the testator intended it to be 
 paid, his greater familiarity with the currency of the country, in which he 
 is domiciled, than with that of any other place, justifies the presumption, 
 that he has in view that currency, when he expresses no other currency, 
 in which his bequest is to be paid. The father of a family, who was do- 
 miciled in a village in Peyrouse, in Italy, was on a visit to Ancona on busi- 
 ness. He made his will in the latter place, and gave a legacy to one of 
 his daughters of five hundred florins. Florins were of less value at An- 
 cona than at Peyrouse, and the question raised was, whether the legacy 
 should be paid according to the value of the florins at Ancona, or at Pey- 
 rouse ; and it was determined it ought to be paid according to the value at 
 Peyrouse, the place of the testator's domicil. Where a legacy consists of 
 a certain number of modii of corn, Hertius says, that the modii ought to be 
 according to the measure of the place of the testator's domicil, and not ac- 
 cording to that of the place where the testament was made. So, if a tes- 
 tator, having lands in different places, devise a thousand acres without any 
 other expression, such a devise must be understood according to the mea- 
 surement prevailing in the place of his domicil." 4 Burge, Comm. on Col. 
 and For. Law, Pt. 2, ch. 12, p. 591 to 594. See also 2 Burge, Comm. 
 Pt. 2, ch. 9, p. 855 to 860 ; ante, § 271, 271 a, note ; post, § 484 ; Sand. 
 Decis. Frisic. Lib. 4, tit. 8, Defin. 7, p. 194. 
 
 CONFL. 68
 
 806 CONFLICT OF LAWS. [CH. XI. 
 
 the will or testament is made by the party in the place 
 of his domicil; hut he is in fact a native of another 
 country ; or if the will or testament is made in a coun- 
 try, of which the party is a native, and according to 
 the forms of law in that country, and yet at the time 
 his actual domicil is in another country, by whose laws 
 the will or testament so made is equally good. The 
 answer to both questions is the same. The law of the 
 place of his actual domicil. Thus, for example, where 
 a native of Scotland domiciled in England, having per- 
 sonal property only, executed during a visit to Scotland, 
 and deposited a will there, prepared in the Scotch form, 
 and died in England ; it was held, that the will was to 
 be construed according to the English law.^ 
 
 1 Anstruther v. Chalmer, 5 Sim. R. 1 ; Harrison u.'Nison, 9 Peters R. 
 483, 504, 505, note. — Mr. Burge on this subject says ; " The law of the 
 place of domicil in many cases affords the rule of construction, when the 
 testator has used expressions, which are either ambiguous or of different 
 significations in different countries. Thus, if a testator does not institute 
 his heirs by name, but by the description of those who would succeed to 
 his estate in case he had died intestate, and the rules of succession, where 
 his real or immovable property is situated, are different from those which 
 prevail in the place of his domicil, or in that in which he made his will, or 
 in that where the judicial tribunal is, which adjudicates on the will, the 
 laws of succession, which prevail in the place of his domicil, are those 
 which would be adopted. And the more general opinion is, that even with 
 respect to the succession to real or immovable property, the laws of suc- 
 cession in the place of domicil, and not those in loco rei sitae prevail. The 
 ground, on which tliis rule rests, is that, as it becomes necessary to ascer- 
 tain the sense, in which the testator has used the expression, and what 
 laws of succession he contemplated, it is presumed, that they were those 
 of the country in which he was domiciled, because it must be supposed he 
 was familiar with those laws. There are grounds for presuming he was 
 acquainted with them ; but there exist no grounds for presuming him to be 
 acquainted with any other laws of succession. In affixing the sense, in 
 which he has used certain words, terms, or phrases, he is presumed to 
 have adopted that, which prevailed in the place of his domicil. It has
 
 CH. XI.] WILLS AND TESTAMENTS. 807 
 
 § 479 g. Another question may also be propounded. 
 Suppose at the time of the making of a "will or testa- 
 ment, the testator is domiciled in the place "where it 
 is made, and he afterwards removes to another place, 
 where he is domiciled at his death ; does such removal 
 change the rule of construction, so that, if there is a dif- 
 ference between the law of the original domicil and that 
 of the new domicil, as to the interpretation of the terms, 
 the law of the new domicil is to prevail ? Or, does the 
 interpretation remain, as it was by the law of the ori- 
 ginal domicil ? This question does not seem to have 
 undergone any absolute and positive decision in the 
 courts acting under the common law.^ [It has been 
 held however, in such case, that unless the will was 
 executed according to the law of the person's last do- 
 micil, and the place of his death, it would not be valid 
 althousfh made according: to the laws of the testator's 
 domicil at the time it was made.^] 
 
 § 479 li. The same rules of construction will gene- 
 rally apply to wills and testaments of immovable pro- 
 perty ; unless, indeed, it can be clearly gathered from 
 the terms used in the will, that the testator had in 
 
 been sometimes said, that they ought to be understood in the sense in 
 which they are accustomed to be used in the place where the "will or con- 
 tract was made. But it would be impossible to consider this as a general 
 rule ; for the residence of the party in the place may have been for so short 
 a time as to negative the presumption, that he was even acquainted with 
 that sense." 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 12, p. 
 590, 591. See also 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, 
 p. 855, 856, 857. 
 
 1 It was alluded to, and reserved for consideration in Harrison v. Nix- 
 on, 9 Peters, R. 205, 483. See ante, ^M'i; 4 Burge, Comm. on Col. 
 and For. Law, Pt. 2, ch. 4, § 5, p. 109; Yates u. Thomson, 3 Clarke 
 and Finell. 544, 583 to 589. 
 
 2 Nat V. Coon, 10 Missouri, R. 543.
 
 808 CONFLICT OF LAWS. [CH. XL 
 
 view the law of the place of the situs, or used other lan- 
 guage, which necessarily referred to the usages and 
 customs or language appropriate only to that situs} 
 " Thus," (to borrow an illustration from Mr. Burge,) 
 " in case the limitation of a deed or will were made in 
 England, in favor of the heir of A., a person who had 
 no children, and the settler or testator has property in 
 England, Jamaica, and British Guiana, if the construction 
 of the term, heir, was to be in conformity with the law 
 of England, the father of A. would take ; if according to 
 the law of Jamaica, the elder brother ; and if according 
 to the law of British Guiana, his father, brothers, and 
 sisters, would take his immovable property. It is not 
 to be presumed, that he used the expression in three 
 different senses, or that he adopted the legal import 
 given to it by the law of the one place, rather than 
 that given to it by the law of either of the other two 
 places. But if his domicil were in England, there is 
 the presumption, that he was acquainted with the sense 
 attached to it by the law of England, and that he used 
 it in this sense." ^ So if a testator should devise his 
 real property to his next of kin, who would be entitled, 
 would depend upon the construction given to the words 
 by the law of his domicil.^ 
 
 § 479 i. Foreign jurists have discussed this subject 
 on various occasions.^ Boullenois says; When the 
 question is respecting the interpretation of clauses 
 expressed in a contract, or a testament, it is ordinarily 
 
 1 Trotter v. Trotter, 3 Wils. & Shaw, 407 ; S. C. 4 Bligh, R. (N. S.) 
 502, 505; 2 Surge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p, 857, 
 858. 
 
 2 2 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 9, p. 858. 
 
 3 Ibid. 
 
 4 See Sand. Decis. Frisic. Lib. 4, tit. 8, Defin. 7, p. 194.
 
 CII. XI.] WILLS AND TESTAMENTS. 809 
 
 the circumstances of the case, which are to decide it. In 
 effect, if we sometimes find clauses or dispositions in con- 
 tracts or testaments, which, from not being sufficiently 
 developed, leave some uncertainty of knowing, whether 
 they are to be understood according to the law of the 
 place, where the acts are executed, or according to the 
 law of the place where the goods are situated, or accord- 
 ing to the law of the domicil of one or other of the con- 
 tracting parties, or finally, according to some other law. 
 After citing the opinions of other jurists, he declares his 
 own opinion to be, that the law of the place, where the 
 act is executed, does not always furnish the proper rule 
 of interpretation in all cases ; ^ but that the only rule, 
 which can be prescribed, is that of determining, accord- 
 ing to the different circumstances belonging to each 
 case. These circumstances will sometimes compel us 
 to follow the law of the place of the contract, or testa- 
 ment, sometimes that of the situs rei, sometimes that of 
 the domicil of the party, and sometimes the place, 
 where the payment or performance is to be. He adds, 
 that he finds no doctrine more reasonable than that, 
 which Dumoulin has laid down upon this subject.- 
 
 1 2 BouUenois, Observ. 46, p. 489, 490. 
 
 3 2 BouUenois, Observ. 46, p. 491, 503 to 518 ; Id. p. 537, 538. —Mr. 
 Burge has cited from 2 BouUenois, Observ. 46, p. 534 et seq. a passage 
 illustrating Boullenois's opinion. " The terms," (says Mr. Burge,) " in 
 which the contract is expressed, may receive a construction, according to 
 the law or usage of the place where the contract is made, different from 
 that which is given to them by the law of the situs. If, by adopting the 
 one sense, the contract would be brought within the prohibition of the law 
 of the situs, that construction ought to be rejected. But if this would not 
 be the consequence, and the adoption of either meaning would not alford a 
 ground to prevent the contract from being completed by the law of the 
 situs, it has been a question, whether the construction given by the law or 
 usage of the situs, or that given by the law of the place where the con- 
 
 68*
 
 810 CONFLICT OF LAWS. [CH. XL 
 
 § 479 Jc. We have already had occasion ia part, to 
 
 tract was made, ought to prevail. Thus, in some countries the limitation 
 by gift or devise to a person, and ' si sine liberis discesserit ' to another, 
 operates as a substitution. The children, ' posiii in conditione,' are also 
 considered as ' positi in dispositione,' and are entitled to take. Such was 
 the law of Toulouse. But under the couturae of Paris the expression, ' si 
 sine liberis,' imported only a condition, and consequently, if there were no 
 failure of children, there was no substitution. The following case oc- 
 curred, on which M. Boullenois gave his opinion : The Comte de R., do- 
 miciled in Languedoc, made a settlement on the marriage of his son, who 
 had resided in Paris many years, and the lady with whom he married was 
 a native of and domiciled in Paris. The Comte executed a general power 
 
 of attorney to the Bishop of to arrange the marriage settlement. By 
 
 this settlement he gave to his son a moiety of all his estate, movable and 
 immovable, then belonging to him, or, which should belong to him on the 
 day of his death. ' Sous la condition que, si le futur 6poux decede sans 
 enfans males, n6s de ce mariage, la moiti6 des biens i lui presentement 
 donnas, retournera a I'ain^ de ses freres, ou a I'aine des enfants males 
 du dit ain6 ; apres toutes fois que les conventions de la dite Demoiselle 
 future epouse auront et6 payees et acquittees, et que deduction aura 6te 
 faite de la legitime des filles.' There were issue of the marriage a son 
 and daughter. The real property was situated in Toulouse. The son 
 claimed it, insisting that his father had created a substitution, and that he 
 took as a substitute. The daughter contended, that no substitution was 
 created, that the condition had failed, and, that consequently, the father 
 having died without making any disposition, she was entitled with her 
 brother as one of the heirs ab intestato. The opinion given by M. Boul- 
 lenois was, that the import of the expression, given by the law of Paris, 
 where the contract was made, and where two of the parties to it were do- 
 miciled, and the donor was present by his attorney, must prevail. This 
 opinion was confirmed by sentence des Requetes du Palais of the 21st of 
 August, 1734, in favor of the daughter. But this sentence was reversed 
 on appeal, and the decision was given in favor of the son. There is great 
 force in the arguments, by which this learned jurist maintains his opinion. 
 The principal ground, on which the decision proceeded, was, that the do- 
 micil of the father, the donor, was in Toulouse, and that it must be pre- 
 sumed he contemplated the law, with which he was acquainted, rather than 
 that of Paris, with which he might be unacquainted, and, that in donations 
 the intention of the donor is principally to be considered, since the part of 
 the donee is confined to the acceptance of the donation. But, in the pre- 
 sent case, this consideration loses much of the weight, to which it might 
 otherwise be entitled, because the donor had granted a general power of 
 attorney to a person resident in Paris to arrange the settlement, and had
 
 CH. XI.] WILLS AND TESTAMENTS. 811 
 
 refer to the opinions of Dumoulin on this subject.^ He 
 reproves the doctrine maintained by many jurists, that 
 the law and custom of the place, where a contract is 
 made are to govern the contract in all cases. Et adver- 
 tcndum, quod Dodores pcssime inlclligunt, L. si fundus de 
 evidl ; Quia 'pidcmt ruditer et indistinde, quod deheat ihi 
 inspici locus et consuetudo, iibi fit contractus, et sic jus in 
 loco contractus. Quod estfalsum; qidnimojus est in tacita 
 et verisimiUter mente contrahentium. And he explains 
 himself thus. Aut satutum loquitur de his, quce conceniunt 
 nudani ordinationem vcl solemnitatem actus, et semper inspi- 
 ciiur statutmn vcl consuetudo, iihi actus celehratur, sive in 
 contradihus, sive in judiciis, sive in testamentis, sive in in- 
 strumentis, aut aliis conficiendis? Aut statutum loquitur de 
 
 not prescribed the terms or conditions it should contain. It was not in 
 this case insisted, nor is it the doctrine of jurists, that the situs of tiie pro- 
 perty requires the application of its law to determine the legal import of 
 any expression in the contract. The text of the civil law is, that ' In sti- 
 puiationibus, et in caeteris contractibus, id sequimur, quod actum est ; et si 
 non pateat quod actum est, erit consequens, ut id sequamur, quod in re- 
 gione in qu^ actum est, frequentatur.' It has been justly considered, that 
 this rule is too general ; for that if it were universally followed, the in- 
 tentions of the contracting parties must be frequently defeated. It has 
 been seen in the passage already cited, that it was condemned by Du- 
 moulin. In his opinion, and he is followed by Boullenois, the interpreta- 
 tion of expressions in a contract must depend, not on the place, where it is 
 made, but on those other circumstances, from which the will or intention 
 of the parties may be inferred. Generally, the interpretation which it 
 would receive in the place of their domicil, is that which, it is most pro- 
 bable, will be conformable to their intention." 2 Burge, Comm. on Col. 
 and For, Law, Pt. 2, ch. 9, p. 855 to 857; 2 Boullenois, Observ. 46, p. 
 518 to 533 ; ante, § 275. Boullenois gives other illustrations of his doc- 
 trine. 2 Boullenois, Observ. 46, p. 495 to p. 518. Bouhier seems to 
 hold a similar opinion. Bouhier, Cout. de Bourg. ch. 21, n. 220, 221, 
 222. 
 
 1 Ante, ^ 274, 441. 
 
 2 Molin. Opera, Tom. 3, Comm. in Cod. Lib. 1, tit. 1, p. 554, edit. 
 1681 ; ante, ^ 260, 274, 441 ; 2 Boullenois, Observ. 46, p. 495.
 
 812 CONFLICT OF LAWS. [CH. XL 
 
 Ms, qucc meritiim scilicet caiisce vel decisionem concermmt ; 
 el tunc aid in his, qiice pendent a voluntate partium, vel per 
 eas immutari possiint, et tunc insjnciiintur, circumstantice vo- 
 luntatis qiiarum, una est statutum loci, in quo contrahitw^ et 
 domicilii contrahentium antiqui vel recentis, et similes circum- 
 stantice} 
 
 § 479 I. Hertius lays down the rule, that the words 
 of a testator are to be especially interpreted accord- 
 ing to the custom of the place, where the testator had 
 his origin or domicil. Hinc jwisconsiilti verla testatoris 
 prcBcipu^ interpretantur secundum loci consuetudinem, uU 
 testator originem vel domicilium haheat? And he illus- 
 trates it by the case of a bequest of so many measures 
 of wheat, or so many acres of land, where the question 
 arises as to the quantity of the measures or of the 
 acres, whether to be understood according to the Lex 
 loci of the testament, or the Lex domicilii of the testator.^ 
 The like doctrine is adopted by John Voet, by Stock- 
 mans, by Christinaeus, by Rodenburg, and by Sandius.^ 
 Stockmans uses the following language. Non exigua vis 
 est communis regula, cjiice dictat, testatorem in diibio censeri 
 dispositionem siiam aptare jure illius loci, ubi agit et testa- 
 mentum condit, ct consuetudinem ac leges municip)ales loci 
 tacith influere, ac temperare generates testantiiim locuiiones et 
 dispositiones.^ Paul Voet says ; In specie autem consiie- 
 tudo Icgis verha amhigua intcrprctatur : et si non appareat. 
 
 1 Ibid. 
 
 2 Heilii, Op. De Colis. Leg. ^ 6, n. 3, p. 222, edit. 171G ; Id. p. 158, 
 edit. 1737 ; 2 Burge, Comm. on Col. and For. Law, Pt, 2, ch. 9, p. 859, 860. 
 
 3 Ibid.; Molin, Opera, Tom. 1, De Fiefs, ^ 33, n. 86, p. 410, edit. 
 IGGl. 
 
 4 See ante, ^ 479 e, note ; 4 Burge, Comm. on CoL and For. Law, Pt. 
 2, ch. 12, p. 591 to p. 594, where the opinions of these jurists are cited. 
 
 5 Stockm. Decis. 27, n. 1, p. 27.
 
 CH. XI.] WILLS AND TESTAMENTS. 813 
 
 quid actum sit inter contrahentes, ad cam, tanqiiam renim ac 
 verhonim dominam, reciirritur. Quam ctiam in perscni- 
 tandd icstatoris voluntatc} 
 
 k 479 m. Indeed, it may be laid down as a general 
 rule, that wherever there are words of an ambiguous 
 signification, or different significations in different coun- 
 tries are used in a will, they are to be interpreted in the 
 sense in which they are used in the law of his domicil, 
 with which he may be presumed either to be most fami- 
 liar, or to have adopted. Sandius says \ In amhigiia Jiac 
 testatoris voliiniate spcctandiim esse consuetudinem 7^e€iionis, 
 in qua testator versatus est? The same rule has been re- 
 cognized in England, or rather, it has been generalized ; 
 for it has in effect been held, that in the construction of 
 ambiguous instruments or contracts, the place of execut- 
 ing them, the domicil of the parties, the place appoint- 
 ed for its execution, and other circumstances are to be 
 taken into consideration.^ 
 
 § 479 n. In respect to another point, whether a Court 
 of Equity can enforce a foreign will, of which there has 
 been no probate obtained from our own courts, the prin- 
 ciple seems clear, that it cannot. A Court of Equity 
 can know nothing of a will of personalty in England, 
 unless it has first been adjudged a will in the proper 
 Probate or Ecclesiastical Court. A fortiori the rule 
 must apply to a foreign will.'' 
 
 1 P. Voet, deStatut. ^ 3, ch. l,n. 2, p. 100, edit. 1715; Id. p. Ill, edit. 
 16G1. 
 
 2 Sand. Decis. Frisic. Lib. 4, tit. 8, Defin. 7, p. 195. 
 
 3 Lansdovvne v. Lansdowne, 2 Bligh, R. 60, 87 ; 4 Bur/^e, Comm. on 
 Col. and For. Law, Pt. 2, ch. 12, p. 590,591. See Biinbury d. Bunbury, 
 2 Jurist, (English) 1839, (before Lord CoUenham,) p. 104, 111 to 114. 
 
 4 Price V. Decrhurst, 5 M. & Craig, 76, 80.
 
 814 CONFLICT OF LAWS. [CH. XII. 
 
 CHAPTEH XII. 
 
 SUCCESSION AND DISTRIBUTION. 
 
 § 480. Having considered the operation of foreign 
 law, in regard to testaments of movable property, and 
 of immovable property, we next proceed to the right of 
 succession in cases of intestacy, or, as the phrase is, of 
 succession ab intestato. And, here, the preceding dis- 
 cussions have left little more to be done, than to state 
 the general principles applicable to each species of 
 property. 
 
 § 481. First, in relation to movable property. The 
 universal doctrine, now recognized by the common law, 
 although formerly much contested, is, that the succes- 
 sion to personal property is governed exclusively by 
 the law of the actual domicil of the intestate at the 
 time of his death. ^ It is of no consequence, what is 
 
 ^ Suarez v. Mayor, &c., of New York, 2 Sandf. Ch. R. 173. Many of 
 the authorities to sustain this point have been already cited, ante, ^ 380 to 
 385, ^ 4G5 to 474. But some others may be here referred to. Pipon v. 
 Pipon, Ambler, R. 25 ; Thorne v. Watkins, 2 Ves. R. 35 ; 1 Chitty on 
 Comm. and Manuf. 661 ; Sill v. Worswick, 1 H. Black. 690, 691 ; Bruce 
 V. Bruce, 2 Bos. & Pull. 229, note; Hunter v. Potts, 4 T. R. 182; Potter 
 V. Brown, 5 East, R. 130; Doe d. Birthwhistle v. Vardill, 5 Barn. & 
 Cressw. 438, 450 to 455 ; S. C. 9 Bligh, R. 32 to 88 ; 2 Clark & Finell. 
 R. 571 ; Yates v. Thomson, 3 Clark & Finell. R. 554 ; Robertson on 
 Succession, ch. 6, p. 104 to 117 ; Id. ch. 8, p. 118 to 201; Thornton v. 
 Curling, 8 Sim. R. 310 ; Price v. Deerhuist, 8 Sim. R. 279, 299 ; Moore 
 V. Budd, 4 Hagg. Eccles. R. 346, 354 ; 4 Burge, Comm. on Col. and For. 
 Law, Pt. 2, ch. 4, ^ 5, p, 156 to 170 ; ante, § 362,367, 378. For a long 
 time the law of Scotland was unsettled on this point ; but it now coincides
 
 CH. xil] succession and distribution. 815 
 
 the country of the birth of the intestate, or of his for- 
 mer clomicil, or what is the actual situs of the personal 
 property at the time of his death ; it devolves upon 
 those, who are entitled to take it, as heirs or distri- 
 butees, according to the law of his actual domicil at the 
 time of his death.^ Hence, if a Frenchman dies intes- 
 tate in America, all his personal property, whether it 
 be in America, or in France, is distributable according 
 to the statute of distribution of the State where he then 
 resided, notwithstanding it may differ essentially from 
 the distribution prescribed by the law of France. 
 
 § 481 a. So, the like rule prevails in the ascertain- 
 ment of the person who is entitled to take as heir or 
 distributee. The law of the domicil, therefore, is to de- 
 cide, whether primogeniture gives a right of preference, 
 or an exclusive right to the succession, and whether a 
 person is legitimate, or not, to take the succession. So, 
 whether persons are to take per ccqnta, or fier stupes ; 
 and the nature and extent of the right of presentation. 
 Thus, for example, in England, and in some of the 
 
 with that of England. Robertson on Succession, ubi supra; 4 Burge, 
 Comm. ubi supra; Stairs, Instit. B. 3, tit. 8, ^ 35 ; Ersk. Instit. B. 3, tit. 
 9, ^ 4 ; Livermore, Dissert. 162, 163-; Olivier v. Townes, 14 Martin, R. 
 99 ; Shultz v. Pulver, 3 Paige, R. 182; De Sobry v. De Laistre, 2 Harr. 
 & Johns. R. 193, 224, 228 ; Holmes v. Rerasen, 4 Johns. Ch. R. 460 ; S. 
 C. 20 Johns. R, 229 ; De Couche v. Savatier, 3 Johns. Ch. R. 190 ; Erskine, 
 Inst. B. 3, tit. 2, § 40, 41 ; Id. B. 3, tit. 9, ^S 4; 2 Kames, Equity, B. 3, 
 ch. 8, § 3, 4, p. 333, 345 ; 1 Boullenois, Observ. 20, p. 358 ; 2 Boullenois, 
 54 ; Id. 57 ; Fergusson on Marr. and Div. 346, 361 ; Vattel, B. 2, ^ 85, 
 103, 110, 111 ; 1 Hertii Opera, De Collis. Leg. ^ 4, n. 26, p. 135, edit. 
 1737 ; Id. p. 192, edit. 1710 ; Huberus, De Confl. Leg. Lib. 1, tit. 3, '^ 15 ; 
 Henry on Foreign Law, p. 13, 14, 15 ; Id. p. 46, 196; J. Voet, ad Pand. 
 Lib. 38, tit. 17, ^ 34, p. 596 ; Harvey v. Richards, 1 INIason, R. 418 ; 2 
 Froland, Mem. 1294 ; 2 Dwarris on Statut. G49 ; Price v. Deerhurst, 4 M. 
 & Craig, 76, 83 ; Preston i>. Mellville, 8 Clark & Finell. 1, 12. 
 1 Ibid.
 
 816 CONFLICT OF LAWS. [CH. XII. 
 
 American States, there is no right of representation 
 beyond that of brothers' and sisters' children, as to the 
 right of distribution, in cases of intestacy of immovable 
 property. If, therefore, a man should die, leaving a 
 brother and sister, and the grandchildren of a deceased 
 brother, the latter would not take any thing in virtue 
 of a representation of the deceased brother.' 
 
 § 481 h. This same doctrine is maintained with equal 
 broadness by foreign jurists. It is founded in a great 
 measure upon the doctrine, that movables have no situs, 
 and accompany the person of the owner ; so that in fic- 
 tione juris they are always deemed to be in the place 
 of his domicil. Mohilia seqmmiiir i^ersonam, et ejus 
 
 1 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 4, § 5, p. 156 to 
 160. As in cases of movable property, the law of the domicil is thus held 
 to regulate the succession and distribution thereof; the question may often 
 become important, what is the actual domicil. As to this see ante, ^ 44 to 
 50. Upon this subject many difficult questions may arise. See, for ex- 
 ample, De Bonneval v. De Bonneval, 1 Curteis, R. 836 ; Attor. Gen. v. 
 Dunn, 6 Mees. & Welsh. R. 511. But the rule itself may require some 
 modification, where the law of the domicil of the intestate is intended to 
 take away the rights of persons, who might otherwise succeed to movable 
 property in another country, by a sort of hostile perversity. Thus, it has 
 been said, that, under the Berlin and Milan decrees passed by Napoleon, 
 Englishmen were rendered incapable of succeeding to the personal estates 
 of intestates dying in Italy. Such a law might require England to dis- 
 allow the operation of the general rule, as to personal property of the same 
 intestate situate in England. See Koster v. Sapte, 1 Curteis, Eccl. R. 691 ; 
 ante, ^ 472, note. Suppose a person should die in transitu from his acquired 
 domicil, the question might then arise, whether the law of his native do- 
 micil, or of his acquired domicil, or of his intended domicil was to govern. 
 It seems clear, that a domicil, whether native or acquired, is not lost by a 
 mere abandonment. It is not defeated animo merely ; but animo et facto, 
 and necessarily remains until a subsequent domicil is acquired, at least 
 unless the party dies in transitu to his intended domicil. This last qualifi- 
 cation of the doctrine, though stated by a learned Judge, may be exactly 
 the point of a doubt, whether it varies the rule. Munroe v. Douglass, 5 
 Madd. R. 232. See also 2 Boullenois, Appx. p. 59, 60 ; Jennison v. Hap- 
 good, 10 Pick. R. 77, 99.
 
 CH. XII.] SUCCESSION AND DISTRIBUTION. 817 
 
 ossibus adhcerent} Thus Roclenburg, referring to the 
 effect of a change of domicil on succession, takes the 
 very distinction between movable property and immo- 
 vable pronerty, founded upon its nature and character. 
 Jus rchis siiccedendi immoUUhiis, semper a loco rei sHco me- 
 ticndtmi, hue non pertmet ; succedendi moUUhiis periinet ; 
 quod ea certo loco non circumscripta, comitentiir personam a 
 chmicilio ejus accipicntia leges? Boullenois fully concurs 
 in this opinion.^ Burgundus holds the same opinion.'^ 
 Perhaps it might, with quite as much accuracy, be said, 
 that the doctrine is founded in a great public policy, 
 observed, ex comitate, by all nations, from a sense of its 
 general convenience and utility, and its tendency to 
 avoid endless embarrassments and conflicts, where per- 
 sonal property has often changed places ; which is the 
 view entertained by John Voet.^ 
 
 § 482. Paul Voet has put the principle in a compen- 
 dious manner. Idem nc infcrendum cle statutis, quce spec- 
 tant siiccessiones ah intestato ? Respondeo, quod ita ; rem 
 enim afficvuni, non personam, ut legihus loci, iibi bona sita 
 sunt, vel esse intelligmitur, regi dehcant. Immohilia statutis 
 loci, uU sita ; mohilia loci statntis, nbi testator Jiahuit domi- 
 eilium.^ And again ; Verum an, quod de immoUlihis die- 
 
 1 See ante, ^ 362, 377, 378 ; 4 Surge, Comm. on Col. and For. Law 
 Pt. 2, ch. 4, ^ 5, p. 157 ; Fcelix, Conflit des Lois, Revue Strang, et 
 Fran(j. Tom. 7, 1840, ^ 32, p. 221, 222. 
 
 2 Rodenburg, de Div. Stat. tit. 2, Pt. 2, ch. 2, § 1 ; 2 Boullenois Appx. 
 p. 59 ; 2 Boullenois, ch. 2, p. 54. 
 
 3 2 Boullenois, Observ. 33. p. 57, 63, 64. 
 
 4 Burgundus, Tract. 2, n. 20, 21 ; Id. Tract. 1, n. 20. 
 
 5 J. Voet, ad. Pand. Lib. 38, lit. 17, n. 34, Tom. 2, p. 596 ; post, 
 § 482 a, note. 
 
 6 P. Voet, § 4, ch. 3, n. 10, p. 135, edit. 1716 ; Id. p. 153, edit. 1661 ; 
 ante, ^ 475. 
 
 CONFL. 69
 
 818 CONFLICT OF LAWS. [CH. XIL 
 
 turn, idem de mohiUhis statuendum erit ? Respondeo, quod 
 non. Quia illorum honoriim nomine nemo censehir semet 
 loci legihis siihjecisse. TJt qiice res certiim locum non lia- 
 hent, quia facile de loco in locum transferiintur ; adeoque se- 
 cundum loci statida regidantur, iihi domicilmm hahdt de- 
 functus} 
 
 § 482 a, Sandius, in speaking of successions, takes 
 the like distinction between movables and immovables. 
 Aliud Judicium est de mobilibus, quce ex conditione perso- 
 narum legem accipiimt^ nee loco continere dicuntur, sed per- 
 sonam sequuntur, et ah ea dependent ; et ideo omnia ulicmique 
 mohilia legihus domicilii suhjiciuntur.^ Strykius affirms the 
 same doctrine ; as do Gaill, and Christinieus, and John 
 Voet.^ The latter says ; Cceterum occasione variantium in 
 successionem intestatam statidorum, generaliter ohservandum 
 est, hona defuncti immohiUa, et quce juris interpretatione pro 
 ialihus Imhentur, deferri secundum leges loci, in quo sita 
 sunt ; adeo, ut tot censeri deheant diversa patrimonia, ac tot 
 hcereditates, quot locis, diverso jure identibiis, immohilia ex- 
 istunt. Mohilia vera ex lege domicilii ipsius defuncti, vel 
 quia semper domino prcBsentia esse finguntur, aid {id 
 exposid,) ex comitcde, passim iisu} Bynkershoek is 
 equally positive. Omnino igitiir interest scire non tarn, 
 
 1 P. Voet, De Stat. § 9,ch. 1, n. 8, p. 255, edit. 1715 ; Id. p. 309, edit. 
 1661. See also to the same point John Voet ad. Pand. Tom. 1, Lib. 1, tit, 
 4, Ps. 2, n. 11, p. 44 ; ante, ^ 362, note 3. 
 
 2 Sand. Decis. Frisic. Lib. 4, lit. 8, Defin. 7, p. 194. 
 
 ^ Sirykius, de Success. Diss. 1, ch. 4, n. 3 ; Gaill, Pract. Observ. Lib. 
 
 2, Observ. 124, n. 18, p. 552 ; Chrislin. Decis. Cur. Belg. Vol. 2, Decis. 
 
 3, n. 2, 3, p. 4 ; J. Voet, ad Pand. Lib. 38, tit. 17, De Success, ab Intes- 
 tate, n. 34, Tom. 2, p. 596 ; Fffilix, Conflit des Lois, Revue Etrang. et 
 Fran^. Tom. 7, 1840, ^ 37, p. 307 to 311 ; 4 Burge, Comm. on Col. and 
 For. Law, Pt. 2, ch. 4, ^ 5, p. 156 to 158. 
 
 ^ J. Voet, Comm. ad Pand. Lib. 38, tit. 17, n. 34, Tom. 2, p. 590.
 
 CH. XII.] SUCCESSION AND DISTRIBUTION. 819 
 
 uU qids decessit, qiiam uU dccedens domiciliiim Jmhiit ; nam 
 si hoe sciamiiSy secundum leges domicilii hceredilas intesiati 
 defertiir, sive major, sive minor decesserit quod ad mohUia 
 nempe, et quce pro molilibiis habentur} 
 
 § 483. Secondly, in relation to immovable property. 
 And here a very different principle prevails at the com- 
 mon law. The descent and heirship of real estate are 
 exclusively governed by the law of the country, within 
 which it is actually situate. No person can take, ex- 
 cept those, who are recognized as legitimate heirs by 
 the laws of that country ; and they take in the propor- 
 tions, and the order, which those laws prescribe. This 
 is the indisputable doctrine of the common law.^ 
 
 § 483 a. Foreign jurists are not, indeed, universally 
 agreed, even as to this point, although certainly they 
 differ less than in most other cases. It may truly be 
 said, that the generality of them, (having a great 
 weight of authority,) unequivocally admit, that the de- 
 scent and distribution of real estate are, and ought to be, 
 governed by the Lex rei sitce? On this head it might 
 
 1 Bynkers. Quest. Privat. Jur. Lib. 1, ch. 16, p. 179, 180. 
 
 2 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 4, ^ 5, p, 151, 152, 
 Doe d. Birthwhistle t^. Vardill, 5 Barn. & Cres. p. 451, 452; S. C. 6 
 Bligh, R. 479, note ; 9 Bligh, R. 32 to 88 ; 1 Rob. R. (House of Lords) 
 p. 627 ; ante, ^ 364 to 366, ^ 426 to 429 ; post, ^ 483 a, note ; S. P. Bun- 
 bury V. Banbury, 1 Jurist, (English) 1839, p. 104. 
 
 3 The authorities to this point also have been already cited, ante, ^ 424 
 to 448. See Doe dem. Birthwhistle v. Vardill, 5 Barn. & Cres. 438 ; 
 United States u. Crosby, 7 Cranch, R. 115 ; Kerr v. Moon, 9 Wheaton, R. 
 556, 570 ; McCormicku. Sullivant, 10 Wheaton, R. 192 ; Dunbar v. Dun- 
 bar, 5 Louis. Ann. R. 159 ; Darby v. Mayer, 10 Wheaton, R. 409 ; Hos- 
 ford V. Nichols, 1 Paige, R. 220; Cutler v. Davenport, 1 Pick. R. 81 ; 
 Wills V. Cowper, 2 Hamm. R. 124 ; 1 Ilertii Opera, De Collis. Leg. ^ 4, 
 n. 26, p. 135 ; 1 Boullenois, 25, 223, &c. ; 1 Froland, Mem. 60, 61, 65 ; 
 P. Voet, De Stat. ^ 4, ch. 2, n. 6, p. 123 ; J. Voet, ad Pand. Lib. 1, tit. 4, 
 Pt. 2, ^ 3, p. 39 ; Ersk. Inst. B. 3, tit. 2, ^ 40, 41, p. 515 ; D'Aguesseau,
 
 820 CONFLICT OF LAWS. [CH. XIL 
 
 seem almost sufficient to adopt the language of John 
 Voet, in his classification of real and personal statutes. 
 He reduces to the class of real statutes whatever regards 
 inheritances. Quo pertinent jura successionuni ab intestato ; 
 quonani online ad hona quceque ah intestato, quisque in ca- 
 fita, vel sthyes, vel lineas, vel jura primogeniturcB admitten- 
 dus sit ; qua irdione legitinii ant illegitimi, agnaii, cognati 
 vocentur ; quceque his sunt similia ijlura} Rodenburg is 
 equally decisive. Jus rebus succedendi immohilihus sem- 
 j)er a loco rei sitce rnetiendum? Froland gives the rule in 
 the most concise but energetic terms, attributing the 
 language to Dumoulin ; MoUlia seqmuitur personam ; im- 
 mohilia situm? Dumoulin says ; Aid statidum datur in 
 rem ; puta, hona decendentis veniant ad primo genitum ; et 
 turn attenditur statidum hci, in quo sita sunt hona} Byn- 
 
 Qi^uvres, Tom. 4, p. 637; Huberus, Lib. 1, tit. 3, ^ 15 ; 2 Dwarris on 
 Statut. p. 649 ; Rodenburg, Pt. 2, tit. 2, ch. 2 ; 2 BouUenois, Appx. 
 p. 59, 63 ; 2 BouUenois, 54, 57, 383 ; 2 Froland, Mem. ch. 7, p. 1288 ; 
 FcElix Conflit des Lois, Revue Etrang. et Fran§. Tom. 7, 1840, § 37, 
 p. 307 to 312 ; 4 Burge, Comra. on Col. and For. Law, Pt. 2, ch. 4, ^ 5, 
 p. 151 to 156. — Since the preceding sheets were worked off, I have ascer- 
 tained, that the case of Doe d. Birthwhistle v. Vardill, above cited, has 
 been afRrmed in the House of Lords. 1 Rob. R. (House of Lords) p. 627. 
 The ground was, that by the law of England no person could inherit lands 
 as heir, who was not born after the marriage of his parents. 
 
 1 J. Voet, ad Pand. Lib. 1, tit. 4, P. 2, ^ 3, Tom. 1, p. 39; Id. Lib. 
 38, tit. 17, n. 34, Tom. 2, p. 596. 
 
 2 Rodenburg, De Div. Stat. P. 2, tit. 2, ch. 2, p. 59 ; 2 BouUenois, 
 Appx. p. 54, 57. See also Henrys, CEuvres, Tom. 2, Lib. 4, ch. 6, Quest. 
 105, Observ. Bretonnier, p. 613, 614, edit. 1771. 
 
 3 2 Froland, Mem. 1289. — I cannot find any such expressive language 
 used by Dumoulin in the passage cited by Froland ; and therefore conclude 
 that it is his own concise statement of Dumoulin's opinion, in which he is 
 certainly correct. The passages cited Molin. Opera, Tom. 2, p. 701, edit. 
 1681, Coutumes de Senlis, art. 140 ; Id. p. 747, Coutumes d'Auvergne, art. 
 4; Id. Consil. 53, p. 964 ; Id. Tom. 3, p. 554, Conclus. de Statut. 
 
 * Molin. Oper. Com. in Cod. Lib. 1, tit. 1, 1. 1, Conclus. de Stat. 
 p. 556, edit. 1681.
 
 CH. XII.] SUCCESSION AND DISTRIBUTION. 821 
 
 kershoek in his bold and uncompromising manner as- 
 serts, that the rule is so well established, that no one 
 dares to open his mouth against it. ImmohUia enim de- 
 ferri ex jure, quodoUinet in loco rei sitce, adeo recepta hodie 
 seixtentia est, lit nemo ausit contra hiscere} 
 
 § 483 h. Paul Voet says ; Quid si circa siiccessionem ab 
 irdestato, statutonmi sit difformitas ? SpectaUtur loci statu- 
 tum, uhiimmohilia sita, non uU testator moritur? Rodenburg 
 speaking of laws, which are purely real, {quoi qiddem 
 jure precipui mere realia sunt,) says ; Cujusmodi appellamiis 
 ea, qucB de modo dividendarwn ah intestato licereditatiim 
 tractant, territorium non egredientia ; conspirxmt enim eo vota 
 fere omnium, hona ut dijudicentur sua lege loci, in quo sita 
 sunt vel esse intelliguntur.^ Burgundus, after remarking^ 
 that there is a diversity of opinion upon this subject 
 among jurists, some holding, that the law, of the situs of 
 the property is to govern, some, that the law of the 
 domicil of the intestate, and some few, that the law of 
 the place, where the intestate happened to die, then 
 asserts his own opinion. Bononim duce sunt species ; alia 
 enim mohilia sunt, alia immohilia ; ilia a persona, Imc a situ 
 cujusque provincicB legem accipiunt ; videlicet, ut mdla liabita 
 ratione originis, aut mortis, aut domicilii, tarn hm^edum, 
 qiiam ipsius dcfuncti, dividantur secundum consuetudines 
 locorum, uhi hona vel sunt, vel sita esse intelligiintur.^ 
 
 1 Bynkers. Quest. Privat. Jur. Lib. 1, ch. 16, p. 180 ; ante, 1, ^ 381. 
 
 2 P. Voet. de Statut. ^ 9, ch. 1, n. 3, 4, p. 252, 253, edit. 1715 ; Id. 
 p. 305, 306, 307, edit. 1661 ; ante, ^ 433, 475. — Paul Voet gives a long 
 list of authorities, supporting the doctrine, ut immobilia statulis loci regan- 
 tur, ubi sita. P. Voet, ^ 9, ch. 1, n. 4, ubi supra. 
 
 3 2 Rodenburg, De Divers. Statut. tit. 2, ch. 2,^ 1, n. 1 ; 2 Boullenois, 
 Appx. p. 14 ; Id. p. 74. 
 
 4 Burgundus, Tract. 1, n. 36, p. 38. 
 
 69*
 
 822 CONFLICT OF LAWS. [CH. XII. 
 
 § 483 c. Boullenois treats the subject as so entirely 
 free from doubt, as to require no comment or expla- 
 nation.^ D'Argentre, as we have seen, resolutely 
 maintains the same opinion.^ Sandius says; Contra 
 tamen viilgo a dodorihiis receptimi est, statiita de bonis et 
 siiccessione intestati dis^onentia esse realia, nee egredi fines 
 territorii. Atque ita fieri, lit secundum diversitatem statu- 
 torum diversimode suceedatur, nan aliter, qiiam si per fictio- 
 nem uniiis hominis diversa sunt patrimonia. Et immoUlia 
 sunt sub jurisdictione loci, in quo jacent. Statidum igitur 
 Hollandice non extendit se ad res immobiles in Frisia situs ; 
 sedistce subjacent dispositione juris communis quod in Frisia 
 obtinet? 
 
 § 483 d. And not to dwell upon a point, which, al- 
 though not without controversy among foreign jurists, 
 is generally established, we may quote the opinion of 
 Huberus. His language is ; Non potest heic omitti 
 QiKEstio frequens in foris Jiodiernis, a juris Romani tamen 
 aliena terminis : Quia scepe sit, ut diversum jus succedendi 
 ab intestate in locis, uhi defunctus habuit domicilium, atque 
 in iis locis, ubi bona sita sunt, obtineat, dubitatur, secundum 
 utriiis loci leges successio regenda sit. Communis et recta 
 sententia est, in rebus immobilibus servandum esse jus loci, 
 in quo bona sunt sita ; quia cum partem ejusdem territorii 
 faciant, diversce jurisdictionis legibus adfici non ^^ossunt. 
 Verum in mobilibus nihil esse caiisw, cur aliud quam jus 
 domicilii sequamur ; quia res mobiles non habent affectionem 
 versus territorium, sed ad personam patrisfamilias duntaxat ; 
 qui aliud quam, quod in loco domicilii obtinebat, voluisse 
 videri non potest.^ 
 
 1 1 Boullenois, Observ. 20, p. 358 ; 2 Boullenois, Observ. 4], p. 383. 
 
 2 Ante, § 438. 
 
 3 Sand. Decis. Lib. 4, tit. 8, Defin. 7, p. 194. 
 
 4 Huberus, Vol. 1, Lib. 3, De Success, n. (s),p. 278. See also
 
 CH. XII.] SUCCESSION AND DISTRIBUTION. 823 
 
 § 484. We have already had occasion to state, that 
 in the interpretation of wills of immovable property, and 
 of movable property, if the description of persons, who 
 are to take, be by some general designation, such as 
 " heirs," or " next of kin," " issue," or " children," the 
 rule of the common law is, that they are to be ascer- 
 tained by the Lex domicilii, both in regard to immovable 
 property, and to movable property, unless the context 
 furnishes some clear guide for a different interpretation.^ 
 The same rule will apply in cases of the descent and 
 distribution of movable property ah intestato, for the 
 reason already suggested ; that it is deemed by fiction 
 of law to be in the place of his domicil, and therefore to 
 be distributable according to the Lex domicilii; and 
 consequently, who are the "issue," or "children," or 
 "heirs," or "next of kin," is a matter to be ascertained 
 by that law.- But in regard to immovable property a 
 different rule prevails, founded upon the actual situs ; and 
 as the succession is to be according to the Lex loci situSj 
 the persons, who are to take by succession, can be ascer- 
 tained only by reference to the same law.^ 
 
 4 Burge, Coram, on Col. and For. Law, Pt. 2, ch. 4, ^ 5, p. 150, 151, 152, 
 154, 155. 
 
 1 Ante, ij 479 a, 479 m, 479 n ; 2 Burge, Comm. on Col. and For. Law, 
 Pt. 2, ch. 9, p. 855 to 858. 
 
 2 See Thorne v. Watkins, 2 Ves. 35 ; Brown v. Brown, or Gordon v. 
 Brown, 2 Hagg. Eccl. R. 455, note ; S. C. 4 AVilson & Shaw, 28; P. 
 Voet, De Statut. ^ 3, ch. 1, n, 2, p. 100, edit. 1715; Id. p. Ill, edit. 1661 ; 
 Elliott V. Lord Minto, 6 Madd. R. 16 ; Earl of Winchelsea v. Garety, 2 
 Keen, R. 293, 309, 310 ; ante, 479 e ; post, ^ 490, ^ 529. 
 
 3 Doed.BirthwhisiIei). Vardill, 5 Barn. & Cressw.438; S. C. 6 Bligh, 
 R. 749 ; S. C. 9 Bligh, R. 32 ; ante, ^ 364 to ^ 366, i} 426 to 429, ^ 483 ; 
 4 Burge, Comm. on Col. and For. Law, ch. 4, ^ 5, p. 150, to p. 156. Id. 
 ch. 15, ^ 4, p. 722 to p. 734 ; Elliott v. Lord Minto, 6 Madd. R. 16 ; Earl 
 of Winchelsea v. Garety, 2 Keen, R. 293, 309, 310 ; post, ^ 529.
 
 824 CONFLICT OF LAWS. [CH. XIL 
 
 § 484 a. Foreign jurists generally, although not uni- 
 versally, maintain the same doctrine ; and accordingly 
 hold, that in cases of succession ab mtestato we are to 
 ascertain the persons who are to take the inheritance 
 by the Lex loci rei sitce, whether the question respect 
 legitimacy, or primogeniture, or right of representation, 
 or proximity of blood, or next of kin. John Yoet is 
 very full and explicit on this subject. He says ; Positd 
 ergo varietate, si qucEras, cujiis loci leges in reprcesentatione 
 ohservandce sint ? respondendum videtur eodem modo, quo su- 
 pra in principali qiicestione de successione ; pida, mohiliiim 
 intuitu spectandas esse leges domicilii defuncti, immohiliimi 
 respectii leges cujusque loci, in quo ilia sita sunt : eo quod 
 jus reprcBsentaiionis omnino ad jus successionis intestatce per- 
 tinet, imo successorem facit eum tanquam ex fictione legis 
 proximum, qui vere atque naturalUer defuncto ptvximus non 
 est} 
 
 § 485, But these general principles still leave behind 
 them, even in the common law, some very embarrassing 
 difficulties ; and in the complex systems of foreign law 
 the difficulties are greatly multiplied. Sir William 
 Grant adverted to this subject in an important case, 
 and said ; " Where land and personal property are situ- 
 ated in different countries, and governed by different 
 laws, and a question arises upon the combined effect of 
 those laws, it is often very difficult to determine what 
 portion of each law is to enter into the decision of the 
 question. It is not easy to say, how much is to be 
 
 1 J. Voet, ad Pand. Tom. 2, Lib. 38, tit. 17, n. 35, p. 597. See Id. 
 Lib. 38, tit. 18, n. 84, p. 639, where he adds; Denique prcetermittendum 
 non est, in eo, an jus primogeniturce admiltendutn sit, necne ; immobilium 
 quidem intuitu spectandam esse legem loci, in quo sita sunt ; mobilium 
 vero respeclu consuetudinem domicilii defuncti.
 
 CH. XII.] SUCCESSION AND DISTRIBUTION. 825 
 
 considered as depending on the law of real property, 
 which must be taken from the country, where the land 
 lies, and how much upon the law of personal property, 
 which must be taken from the law of the domicil, and 
 to blend both together, so as to form a rule applicable 
 to the mixed question, which neither law separately fur- 
 nishes sufficient materials to decide." ^ 
 
 § 486. Two cases of a curious nature were on the 
 same occasion mentioned by Sir William Grant, as 
 illustrative of his remarks, which cannot be better stat- 
 ed than in his own language. "I have argued, (said 
 he) in the House of Lords, cases, in which difficulties of 
 that kind occurred. Two of the most remarkable were 
 those of Balfour v. Scott,^ and Drummond v. Drummond.^ 
 In the former, a person domiciled in England died intes- 
 tate, leaving real estate in Scotland. The heir was one 
 of the next of kin; and claimed a share of the personal 
 estate. To this claim, it was objected that, by the law 
 of Scotland, the heir cannot share in the personal pro- 
 perty with the other next of kin, except on condition of 
 collating the real estate ; that is, bringing it into a mass 
 with the personal estate, to form one common subject of 
 division. It was determined, however, that he was en- 
 titled to take his share without complying with that 
 obligation. There the English law decided the ques- 
 tion." ^ 
 
 § 487. He then added; "In Drummond v. Drum- 
 
 1 Brodie v. Barry, 2 Ves. & Beames, R. 130, 131. 
 
 ^ See Robertson on Successions, p. 202 to 207 ; 4 Burgc, Comm. on 
 Col. and For. Law, Pt. 2, eh. 15, ^ 4, p. 731 ; 6 Brown, Pari. R. 731, 
 by Tomlins. 
 
 3 6 Brown, Pari. R. (Tomlins's Edit.) p. 550 ; 4 Burge, Comm. on Col. 
 and For. Law, Pt. 2, ch. 15, § 4, p. 729. 
 
 4 Brodie v. Barry, 2 Ves. & Beam. 130, 131.
 
 826 CONFLICT OF LAWS. ' [CH. XIL 
 
 mend, a person, domiciled in England, had real estate in 
 Scotland ; upon which he granted a heritable bond, to 
 secure a debt contracted in England. He died intes- 
 tate ; and the question was, by which of the estates 
 this debt was to be borne. It was clear, that by the 
 English law the personal estate was the primary fund 
 for the payment of debts. It was equally clear, that 
 by the law of Scotland the real estate was the primary 
 fund for the payment of the heritable bond. Here 
 was a direct Conflictiis legum. It was said for the heir, 
 that the personal estate must be distributed according 
 to the law of England, and must bear all the bur- 
 dens, to which it is by that law subject. On the other 
 hand, it was said, that the real estate must go accord- 
 ing to the law of Scotland ; and bear all the burdens 
 to which it is by that law subject. It was determined, 
 that the law of Scotland should prevail ; and that the 
 real estate must bear the burden." ^ 
 
 § 488. In conclusion he said; "In the first case, the 
 disability of the heir did not follow him to England ; 
 and the personal estate was distributed, as if both the 
 domicil and the real estate had been in England. In 
 the second, the disability to claim exoneration out of 
 the personalty did follow him into England ; and the 
 personal estate was distributed, as if both the domicil 
 and the real estate had been in Scotland." ^ 
 
 § 489. Another illustration is furnished by the very 
 case then in judgment before Sir William Grant, which 
 
 1 Brodie v. Barry, 2 Ves. & Beam, 130, 131. See also Drummond v. 
 Drummond, 6 Brown, Pari. R. (Tomlins's Edit.) p. 550; post, ^ 5"29 ; 
 Iloberlson on Successions, p. 209, 214 ; 4 Burge, Comm. on Col. and 
 For. Law, Pt. 2, ch. 15, § 4, p. 722 to p. 734. 
 
 2 Brodie v. Barry, 2 Ves. & Beam. p. 132 ; ante, ^ 2G6 ; post, § 529.
 
 CH. XII.] SUCCESSION AND DISTRIBUTION. 827 
 
 turned upon the question, whether an heir at law of 
 heritable property in Scotland, being a legatee of per- 
 sonal property, which was in England, under a will of the 
 testator, which intended to dispose of all his real pro- 
 perty in England and Scotland, but which will, not being 
 conformable to the law of Scotland, was not capable 
 of passing real estate there, should be put to his election 
 to take the legacy under the will, or to surrender to the 
 purposes of the will the Scotch heritable property. Sir 
 William Grant decided in the affirmative; and said; 
 " Now, what law is to determine, whether an instru- 
 ment of any given nature or form is to be read against 
 an heir at law for the purpose of putting him to an 
 election, by which the real estate may be aflected ? 
 According to Lord Hardwicke, and the Judges who have 
 followed him, that is a question belonging to the law of 
 real property ; for they have decided it by a statute, 
 which regulates devises of land. Upon that principle, 
 if the doraicil were in Scotland, and the real estate in 
 England, an English will, imperfectly executed, ought 
 not to be read in Scotland for the purpose of putting 
 the heir to an election; and, upon the same principle, if, 
 by the law of Scotland, no will could be read against the 
 heir, it would follow, that a will of land, situated in 
 Scotland, ought not to be read in England, to put the 
 Scotch heir to an election. Doubting much the sound- 
 ness of that principle, I am glad, that the case of Cun- 
 ningham V. Gayner,' relieves me from the necessity of 
 deciding the question; as, whichever law is applied to 
 the decision of the present case, the result will be the 
 same, &c. If the law of Scotland is resorted to, the 
 
 1 1 Bligh, R. 27, note ; Robertson on Successions, p. 219, 220.
 
 828 CONFLICT OF LAWS. [CH. XIL 
 
 case alluded to determines, that the English will may 
 be read against the Scotch heir, for the purpose of put- 
 ting him to an election." ^ 
 
 § 489 a. Other questions of a very difficult and em- 
 Ibarrassing nature may arise, as to the nature and ex- 
 tent of the liability of the heirs to the payment of debts 
 and other charges of the intestate, chargeable on his real 
 estate, situate in different countries, where different 
 rules prevail as to the nature and extent of the liability 
 of the heirs in respect to such real estate, and the real 
 estate descends to different persons, and in a different 
 manner in the respective countries. The question may 
 respect the exclusive or primary applicability of one or 
 more of the real estates to the discharge of such debts 
 or other charges ; or the liability of the heirs in solido, or 
 2yro portione hcereditaria ; or the right of the heirs or de- 
 visees of the real estates in one country, to contribution 
 or indemnity from the heirs or devisees of the real estate 
 in another country ; or the right of the creditors to 
 proceed against them all in soUdo, otx pro -portione hoeredi- 
 iarid? 
 
 § 489 T). Many cases of this sort have been discussed 
 by foreign jurists, and decided by foreign tribunals. 
 Thus, for example, where one part of the succession 
 has been situate in a country, by whose laws the cre- 
 ditors are permitted to proceed against each heir in 
 solido, and another part in the country of the domicil of 
 the intestate, by whose laws the creditors are entitled 
 to proceed against each heir pro portione hcereditaria ; 
 
 1 1 Brodio v. Barry, 2 Ves. & Beames, R. 127, 133; ante, ^ 479 a, 
 note; Robertson on Successions, p. 217, 218. 
 
 2 See 1 Boullenois, Observ. 17, p. 277 to p. 288, where the subject is 
 much discussed. Bouhier, Cout. de Bourg. ch. 21, § 213, 214, p. 416.
 
 CH. xil] succession and distribution. 829 
 
 there has been no small diversity of judgment, as to 
 the rule, which ought to be applied in favor of the cre- 
 ditors ; whether the rule of the law rei sitcv, or of the law 
 of the domicil, as to the nature and extent of the liability 
 of the heirs.^ Perhaps, in such a case, the right of the 
 creditors against the heirs respectively may most pro- 
 perly be deemed to be governed by the Lex rei sitw j 
 and the mode of proceeding against them be regulated 
 by the law of the place, where he seeks his remedy. 
 If he seeks to enforce his rights in the place of the do- 
 micil of the intestate, he must recover against each heir 
 pro iiortione hccreditariCi. If he seeks to enforce them in 
 the other country, then the heirs are there liable to him 
 in soliclo. But this opinion is far from having the assent 
 of several distinguished jurists. They hold, that the 
 creditors are entitled to proceed against the heirs in 
 either country, according to the law of the domicil of 
 the intestate j because it is there, that they suppose the 
 heirs to have contracted the debt to the creditors. Of 
 this opinion are Paul de Castro, Christina}us,and Bouhier, 
 as well as the judges of several foreign tribunals.^ On 
 the other hand, other jurists hold, that in each country 
 respectively, the heirs contract with the creditors accord- 
 ing to the law of the place, where the succession is de- 
 volved upon, and is assumed by the heir, that is, the 
 Lex rei sitce. Of this latter opinion are many distin- 
 
 1 4 Burge, Comm. on Col. and For. Law, Vt. 2, ch. 15, ^ 4, p. 722, 
 723, 724, who cites several authorities upon the subject. Among them are 
 Christin. Tom. 1, Decis. 283, n. 15, IG ; J. Voet, Lib. 29, tit. 2, n. 31 ; 
 Merlin, R6pert tit. Dette, i^ 4 ; 1 Boullenois, Observ. 17, p. 278 ; Bouhier, 
 Cout. de Bourg. ch. 21, n. 213. 
 
 2 1 Boullenois, Observ. 17, p. 277, 278; Bouhier, Cout. do Bourg, ch. 
 31, n. 213, p. 416 ; Christin. Decis. Tom. 1, Decis. 283, n. 15, 16, p. 
 
 CONFL. 70
 
 830 CONFLICT OF LAWS. [CH. XIL 
 
 guished jurists.' Merlin inclines strongly to this latter 
 opinion.^ Boullenois leaves the question without any 
 expression of his own views, saying that it is a point 
 full of difficulty.^ 
 
 § 489 c. A question of another sort may arise between 
 the heirs or devisees of the deceased party, who, as be- 
 tween themselves, in cases of successions or wills of im- 
 movable property in different countries, governed by 
 . different laws, is ultimately to bear the debts of credit- 
 ors, or other charges, for which such property is liable, 
 and which some of the heirs have been compelled to 
 pay. In such cases the question must first arise, which 
 fund is primarily liable for the payment or discharge 
 thereof inter sese; for it should seem, that, as between 
 themselves, the fund primarily liable should ultimately 
 be held chargeable therewith in exoneration of all the 
 other funds. If there is no such priority of liability, 
 but all the funds are equally liable ^^(rtr/j'MS^z^, then it 
 should seem reasonable, that each fund, wherever it is 
 actually situate, should contribute 2^^^o rata, according 
 to its value in the hands of each heir respectively, to 
 the discharge of the common burden. If part of the 
 funds are exempted from contribution, they should still 
 possess that privilege ; and the residue contribute. It 
 will, however, be found difficult to affirm, that foreign 
 jurists and tribunals have given any uniform support 
 to these doctrines.* 
 
 353. See also J. Voct, ad. Pand. Lib. 29, n. 31, 32, Tom. 2, p. 376 ; 
 Merlin, Repert. Dette, ^ 4. 
 
 1 Bouhicr, Cout. de Bourg. ch. 21, n. 213, 211, p. 416. 
 
 2 Merlin, Repertoire, Dette, ^ 4. 
 
 3 1 Boullenois, Obscrv. 17, p. 279. 
 
 4 Polliier appears to hold this doctrine. Pothierdes Successions, ch. 5,
 
 CH. XII.] SUCCESSION AND DISTRIBUTION. 831 
 
 § 490. Other illustrations of the difficulties, attendant 
 upon the administration of this branch of law, are to be 
 found in the application of local rules to the interpreta- 
 tion of wills, whether arising from the Lex domicilii or 
 the Lex rci sitce^ as tKe case may regard movable pro- 
 perty, or immovable property. We have already had 
 
 ^ 1, p. 223, 4to edit. He there cites a case, of which Mr. Burge has^ 
 given the substance as follows. " An inhabitant of Biois, where the cou- 
 tume burdened the heir to the movable estate with all the movable debts, 
 left in his succession biens propres situated in Blois, and others situated in 
 Orleans. The coutume of the latter place makes all the different heirs 
 subject to all the debts. He left an heir to his movable estate, and ano- 
 ther heir to his biens propres, situated in Orleans and Blois. In this case 
 Pothier says, that the heir to the biens propres must, conformably to the 
 coutume of Orleans, where he had succeeded to that part of the succession, 
 bear his part of all the debts of the succession, even those, which are 
 movable, regard being had to the value, which the real estate at Orleans 
 would bear to the whole succession. By this apportionment effect is 
 given to the coutume of Orleans as well as to that of Blois, for the heir to 
 the real estate contributes only to the debts in respect to that part of the 
 estate, which is situated in Orleans, and he does not contribute in respect 
 of that part, which is situated in Blois." 4 Burge, Comm. on Col. and 
 For. Law, Ft. 2, ch. 15, ^ 4, p. 724, 725. The same subject is discussed 
 at large in 2 Froland, Mem. des Statut. ch. 32, p. 1547 to 1573, and he 
 cites several adjudications, and among others one stated by Basnage, Cou- 
 tume de Normand. Tom. 2, art. 408, p. 141. See also 1 Boullenois, Ob- 
 serv. 17, p. 284, who cites Mornac, Comm. on Dig. Lib. 5, tit. 1, 1. 50, 1, 
 De Judiciis. Mr. Burge has expressed his own opinion in the following 
 words. "It may perhaps be stated as the correct rule, that where an obli- 
 gation or an exemption is annexed to the personal estate, but no similar 
 obligation or exemption is annexed to the real estate, the lex loci domicilii 
 will prevail in whatever country the rights or liabilities of the heir became 
 the subject of adjudication. But if similar obligations or exemptions are 
 annexed to the personal and real estate by the respective laws, to which 
 the succession to these two species of property is subject, and the effect of 
 adopting the one law rather than the other would be to throw on the one 
 estate a burden, or confer on it an exemption not annexed to it by the law 
 of the country which governed the succession to it, it would be the more 
 just and correct rule to adopt the lex loci rei sita;, rather than the lex loci 
 domicilii. The case of Drummond and Drnmmond would seem to warrant 
 the adoption of such a rule, nor is the decision in the Bishop of Metz's Sue-
 
 832 CONFLICT OF LAWS. [CH. XIL 
 
 occasion to discuss this subject in another place.^ But 
 it may not be without use to state one or two cases a 
 little more fully than has been already done. A ques- 
 tion of this sort was recently discussed in the House of 
 Lords upon a will made in Virginia, by which the tes- 
 tator bequeathed to his sister, Mary Brown, "the re- 
 maining one fourth share of the balance of his estate, 
 at her death to be equally divided among her children, 
 .if she should have any." The question was, what es- 
 tate Mary Brown took under the will, whether a life 
 estate, or an absolute property. And, it appearing, that 
 the courts of Virginia had construed the bequest to 
 give her an absolute estate, upon the footing of that 
 decree, the House of Lords, deeming it a question of 
 American law, established the same construction.^ 
 
 § 491. In another case, the same principle was adopt- 
 ed ; and the Court laid down the rule, that in the con- 
 struction of a will the Lex domicilii must govern, unless 
 there is sufficient on its face to show a different inten- 
 tion in the testator. The facts were these. A lad}^, a 
 native of Scotland, was domiciled in England. On a 
 visit to Edinburgh she made a will entirely in the Scotch 
 
 cession at variance with it. The lex domicilii had alone annexed to the 
 personal estate an exclusive liability to pay the debts, and no such liability 
 was annexed to the real estate by the loci rei sits. The only liability 
 which was annexed to the real estate by that law, was an obligation to con- 
 tribute with the personal estate ; but such a contribution could not take 
 place, because the personal estate was subject to a law, which made it ex- 
 clusively applicable, and therefore the liability to contribute could only 
 exist, when the personal estate was subject to the same law as the real 
 estate." 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 15, p. 73'2, 
 733. 
 
 • Ante, ^ 4T9 a to 479 n. 
 
 ~ Gordon v. Brown, or Brown v. Brown, 3 Hagg. Eccl. R. 455, note; 
 S. C. 4 W^ils. & Shaw, p. 28 ; ante, ^ 479 c.
 
 CH. XII.] SUCCESSION AND DISTRIBUTION. 833 
 
 form, and it was deposited with the writer at Edinburgh. 
 She had personalty in England only, and died in Eng- 
 land. Scotland, then, was the domiciliimi origmiB et forum 
 contractus ; but, on the other hand, England was the/o- 
 7iun domicilii and the locus rei sitcc. The question was, 
 whether by the legatee's death in the lifetime of the 
 testatrix the legacy lapsed according to the law of Eng- 
 land, or survived to the legatee's representatives accord- 
 ing to the law of Scotland. The Court decided, that 
 being domiciled in England, it was to be presumed, 
 that she intended the law of England to be applied ; 
 and, that there was not enough in the will to repel that 
 presumption.^ 
 
 1 Anstruther v. Chalmers, 2 Simons, R. 1 ; 3 Ilagg. Eccl. R. 444; 
 Yates r, Thomson, 3 Clark & Finnell. R, 544, 570 ; ante, § 479 c. 
 
 ro*
 
 834 CONFLICT OF LAWS. [CH. XIII. 
 
 CHAPTER XIII. 
 
 FOREIGN GUARDIANSHIPS AND ADMINISTRATIONS. 
 
 § 492. The order of our subject next leads us to the 
 consideration of the operation of foreign laws in rela- 
 tion to persons acting in autre droit, such as guardians, 
 tutors, and curators inter vivos, and executors and ad- 
 ministrators post mortem. 
 
 § 493. And first, in relation to guardians.^ By the 
 Roman law guardianship was of two sorts, (1.) Tutcia, 
 and (2.) Ciira. The first lasted in males, until they ar- 
 rived at fourteen years of age, and in females, until they 
 arrived at twelve years of age, which was called the age 
 of puberty of the sexes respectively. From the time of 
 puberty, until they were twenty-five years of age, which 
 was their full majority, they were deemed minors, and 
 subject to curatorship. During the first period of tute- 
 lage, their guardian was called tutor, and they were 
 called pupils ; during the second period, their guardian 
 was called curator, and they w^ere called minors.^ In 
 England the guardian performs the offices both of a tu- 
 tor and a curator under the Roman law.^ In France, 
 the tutorship lasts until the full age of majority.^ 
 
 1 See 3 Burge, Coram, on Col. and For. Law, Pt. 2, ch. 23, § 5, p. 
 1001 to 1014. 
 
 2 1 Domat, Civil Law, B. 2, tit. 1, p. 260 ; Halifax, Analysis of Civil 
 Law, ch. 9, p. 15, 17, 18 ; 1 Brown, Civil Law, B. 1, ch. 5, p. 129, 130. 
 See also Ersk. Inst. B. 1, tit. 6, ^ 1, p, 128. 
 
 3 Halifax, Analysis of Civil Law, ch. 9, p. 15, 17, 18 ; 1 Brown, Civil 
 Law, B. l,ch. 5, p. 129, 130. 
 
 4 1 Domat, Civil Law, B. 2, tit. 1, p. 261.
 
 CH. xiil] foreign guardianships. 835 
 
 § 494. In treating of guardianship, two questions 
 naturally arise ; (1.) Whether the authority of a guar- 
 dian over the person of his ward is local, and confined 
 to the place of his domicil, or extends everywhere ? 
 (2.) Whether the authority of the guardian over the 
 property of his ward is local, or extends everywhere ? 
 
 § 495. In regard to the first point, (the authority of 
 the guardian over the person of his ward,) Boullenois 
 maintains, that the laws, which regulate it, are strictly 
 personal ; and therefore that the authority extends to 
 the ward in foreign countries, as well as at home ; and 
 is of equal validity and right, according to the law of 
 the domicil, in every other place, "t/e mets (says he) 
 cm nomhre dcs statuts personnels, ceiix, qui mettent les enfants 
 sous la puissance de leiir pere, on de leiir tiiteurr * From 
 this, it would seem to follow, that the tutor is to be re- 
 cognized, as fully entitled to assert any claims over the 
 movable property of his ward, and to sue for the debts 
 due to his ward in foreign countries, without having 
 any confirmation of the guardianship by the local 
 authorities.^ 
 
 § 496. Merlin expressly holds the same doctrine, 
 asserting that the foreign guardian, in such a case, is 
 competent to maintain any suit for the debts due to his 
 ward in France and in the Netherlands, without any in- 
 terposition of the local authorities, to confirm the guar- 
 dianship.^ "// est (says he) de principe, cpie Ics procurctr 
 
 » 1 Boullenois, Observ. 4, p. 51 ; Id. p. 68; ante, 57 ; 2 Boullenois, 
 Observ. 39, p. 320, 330. 
 
 2 3 Burge, Comm. on Col, and For. Law, Pt. 2, ch. 23, ^ 5, p. 1002, 
 1003. 
 
 3 Merlin, Repertoire, Absens. ch. 3, art. 3, p. 37 ; Id. Faillite, % 2, n. 2, 
 art. 9, 10, ^ 2, p. 412. See also Id. Autorisation Maritale, ^ 10, art. 2 ; 
 ante, ^ 53, 54.
 
 836 CONFLICT OF LAWS. [CH. XIIL 
 
 tions reveilles de la forme requise ])ar la hi du lieu, oil elles 
 se passent, ont leiir effet fartout. Aiissi ne s'est-on Jamais 
 avise de pretendre, que le tideiir nomme a iin mineiir, ou a 
 un interdit, par le jiige de son domicil, ne p)id agir dans tin 
 pays etr anger contre Ics dehiteitrs dhm ou de V autre, qiHapres 
 avoir fait declarer le jugement de sa nomination execidoire 
 dans ce pays^ ^ 
 
 § 497. Vattel lays down a similar doctrine in more 
 comprehensive terms. "It belongs, (says he,) to the 
 domestic Judge to nominate tutors and guardians for 
 minors and idiots. The law of nations, which has an 
 eye to the common advantage and the good harmony 
 of nations, requires, therefore, that such nomination of 
 a tutor or guardian he valid and acknowledged in all 
 countries, where the pupil may have any concerns." ^ 
 This is also the opinion of Huberus, as we have already 
 seen; 3 and it is stoutly maintained by Hertius. After 
 having stated the rule, he adds ; Ratio hiijiis regidce est 
 evidens. Persona enim suMiti qua talis nemini alii est sui- 
 Jecta, quam siimmo imperanti, cui se stihnisit. Unde fit, id 
 leges, qiim personce qualitatem sive characterem impmiiunt 
 comitari personam soleant, idticunqiie etiam locorum versetur, 
 tametsi in aliani civitatem migraverit, veluti si qiiis, magis 
 infamis, vel prodigiis declaretur^ Hinc tutor, (says he) 
 datus in loco domicilii, etiam hona alibi siia adminislrat. He 
 applies this rule, however, solely to personal rights and 
 personal incapacities, rights of property and power over 
 movables. For in respect to immovables, he adds this 
 
 ' Merlin, Repertoire, Faillite, ^ 2, n. 2, art. 10, p. 414 ; ante, ^ 53, 54. 
 
 2 Vattel, B. 2, ch. 9, ^ 85. 
 
 3 Ante, ^ 60. 
 
 4 1 Ilerlii Opera, de Collis. Leg. ^ 4, n. 8, p. 123, 124, edit. 1737 ; Id. 
 p. 175, edit. 1716; ante, ^ 51.
 
 CH. XIII.] FOREIGN GUARDIANSHIPS. 837 
 
 important qualification ; Qiioniam ipsi fatenmr, si externa 
 civitas circa hona immoUlia aliqidd directe disposidt, earn le- 
 gem scrvari oportere} Stockmans holds a broader opi- 
 nion. Tutor etiam pupilli a Praioreauthoritatem et admi- 
 nistrationcm siiam extra territoriam Prwtoris, et in hona iiU- 
 cimque locoritm sita exercet? Indeed, this same doctrine 
 is commonly asserted by all those foreign jurists, who 
 give to personal laws an ubiquity of operation.^ 
 
 § 498. On the other hand, there are jurists, who 
 maintain a different opinion. Paul Yoet denies, that 
 laws respecting either persons or property, have in the 
 sense of the civil jurisprudence, any extra-territorial 
 authority, and lays down among others the following 
 
 1 Ibid. 
 
 2 Stockman. Decis. 125, n. 6, p. 262. Duraoulinis thought to hold the 
 same opinion ; but it may well be doubted, if it admits of that interpreta- 
 tion. Post, § 502 a ; Molin. Opera, Tom. 3, Comm. ad Cod. Lib. 1, tit. 
 1, 1. 1, Conclus. de Stat. p. 556, edit. 1681. Mattha;us, who has also 
 been cited on the same side, certainly does not hold the opinion. His lan- 
 guage is ; Sed etsi silentio suo quodammodo approbare videatur curatorem 
 a judice domicilii datum, vixtamen est, ut curator ilia prsedia alibi sita pro- 
 scribere ac venders possit, sine speciali permissu ejus judiciis, in cujus 
 territoria sita sunt. Sic enim et Tutor hodie a judice domicilii datur ; nee 
 tamen universorum negotiorum et bonorum administrationem consequitur, 
 nisi cesset judex ejus territorii, in quo pra^dia sita sunt. Matthteus, de 
 Auctionibus, Lib. 1, ch. 7, n. 10, p. 39. See also 3 Burge, Comm. on 
 Col. and For. Law, Pt. 2, ch. 23, \ 5, p. 1002, 1003. He says ; " The 
 appointment of tutor or guardian, committees or curators, so far as it con- 
 fers the care and custody of the person of the minor or lunatic, could not 
 consistently with the principles of international jurisprudence be made by 
 any other judicial tribunal but that of the country, to which the minor or 
 lunatic was by his residence subject. According to the opinion of foreign 
 jurists, every judicial tribunal is bound to recognize this appointment. 
 They consider, that the law, which places the minor or lunatic sub tiitela 
 or sub cura. is a personal law, "afreet ing the status of the person, and that 
 the relation of tutor and ward, which it has constituted, continues to exist 
 notwithstanding the persons may have resorted to any other country." 
 
 3 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, § 5, p. 1004, 
 1005.
 
 838 CONFLICT OF LAWS. [CH. XIII. 
 
 rules ; (1.) that a personal statute does not affect the 
 person beyond the territory of his domicil, so that he is 
 not to be reputed such without the territory, as he was 
 within ; (2.) that a personal statute accompanies the 
 person everywhere, in regard to property within the 
 territory of the government, where the person has his 
 domicil, and to which he is subjected.' He adds, that 
 he makes no distinction in this respect, whether the 
 statute be in rem or in personam ; or, whether it purports 
 to extend to property situate in a foreign territory or 
 not, directly or indirectly ; for the same rule applies in 
 each case. Quia mdhm siahdum, sive in 7xm sive in per- 
 sonam^ si de ratione juris civilis sermo instituatur sese ex- 
 tendit idtra statuentis icrritorium? He qualifies his doc- 
 trine, however, by admitting, that movables are always 
 deemed to be in the place of the domicil of the party, 
 and are therefore governed by the laws thereof.^ John 
 Voet, as we have seen, maintains a similar opinion in 
 the broadest and most unqualified terms.^ 
 
 § 499. It would seem from Morrison's case,^ that the 
 House of Lords deemed the authority of an English 
 guardian sufficient to institute a suit for the personal 
 property of his ward in Scotland, upon the ground, that 
 the administration of his personal estate, granted by 
 the usual authority, where he resided, must be taken to 
 be everywhere of equal force with a voluntary assign- 
 ment by himself The courts of Scotland had unequi- 
 
 i P. Voet, De Stat. § 4, ch. 2, n. 0, p. 123, edit. 1716 ; Id. p. 137, edit. 
 1661. 
 
 2 Id. n. 7, p. 121, edit. 1716 ; Id. p. 138, edit. 1661 ; ante, ^ 51 b, § 52. 
 
 3 Ante, ^ 52, ^ 377. 
 
 4 Ante, \ 54 a. 
 
 5 Cited in 4 T. R. 140, and 1 H. Black. 677, 682.
 
 CII. XIII.] FOREIGN GUARDIANSHIPS. 839 
 
 vocally decided the other way. Whether this decision 
 has since been acted upon in England does not dis- 
 tinctly appear.' It has certainly not received any 
 sanction in America, in the States acting under the 
 jurisprudence of the common law. The rights and 
 powers of guardians are considered as strictly local ; 
 and not as entitling them to exercise any authority 
 over the person or personal property of their wards in 
 other States, upon the same general reasoning and 
 policy, which have circumscribed the rights and author- 
 ities of executors and administrators." 
 
 § 500. In regard to the other point, whether guar- 
 dians appointed in foreign countries have any authority 
 over the property of their wards, situate in other coun- 
 tries, foreign jurists are generally, although not univer- 
 sally, of opinion ^ in respect to movable property, that 
 since it is deemed to be in the domicil of the owner, 
 the law of the domicil is to govern, and the rights and 
 powers of the guardian, tutor, or curator over it, ought 
 to be admitted to prevail everywhere to the same 
 extent as they are acknowledged by the law of the 
 domicil.^ But in respect to immovable property, 
 foreign jurists as generally, although not universally, 
 maintain the doctrine, (whatever may be the rule, as to 
 movable property,) that the rights and authority of 
 guardians are circumscribed by the laws of the territory 
 of their appointment, and do not extend to other coun- 
 
 1 See Beattie v. Johnstone, 1 Phillips, Ch. R. 17 ; S. C. 10 Clark & 
 Finnell. R. 42, where the point is ruled the other way. 
 
 ~ Morrill u. Dickey, 1 John^ Ch. R. 153 ; Kraft v. Vickery, 4 Gill & 
 Johns, R. 332. 
 
 3 See Malenbruch, Doclr. Pand. Lib. 1, P. 1, ^ 72, p. 167, 1G8. 
 
 4 Ante, ^ 495 to ^ 49S ; 4 Burge, Comm. on Col. and For. Law, Pt, 2, 
 ch. 23, ^ 5, p. 1010, 1011.
 
 840 CONFLICT OF LAWS. [CH. XIII. 
 
 tries where the immovable property is situated. In 
 other words, the laws rei sitce are to govern ; and a 
 guardian in one country can claim nothing in another, 
 except in the form and manner, and under the regula- 
 tions prescribed by the local law. Burgundus states 
 the doctrine with great clearness. Speaking of the 
 capacity and incapacity of minors, he says ; Proinde 
 confitcndum est, si aliqidd circa rem alterare minor velity id 
 pida, (dienandi vel Ivjpotliccandi facidtatem exigere, iU sane 
 veniam hwpeirari dehere, iihi bona sunt sita} Nam ct Con- 
 stitutio Diocletiani in alienatione manifest^ reqidrit decretum 
 Prcesidis ejus p^ovincice, in quo pxedium minoris est situm. 
 He then adds ; Nee immerito Felinus scripsit, si facienda 
 est dispensatio respectu rei, nan ejus ejnscopi esse ent, cid 
 persona sidjccta est, sed ad eum spectare cui res sipponi- 
 tur. He says, that a different reason is given by others. 
 Cujus rei rationem alii tr admit, quia per ejusmodi disjjensa- 
 tionem alteratur, et reinstatur natura ipsiiis henejicia et non 
 persona!^ He then states a qualification of the doctrine 
 in cases, where the venia cdatis is obtained, saying ; 
 Erc/o, e contra, si venia aiatis in hoc duntaxat impetretur, 
 id actus personates minor celelrare et peragere possit, veluti 
 honorum suorum administrationem conseqid, contractus et 
 olUgationes inire, sane hoc casu postidare dclelit a judice 
 domicilii, cui in j^crsonas plenum jus est attrihutum.^ But 
 whether it exists or not is immaterial, as Burgundus in 
 another passage speaks directly on the present point. 
 Tfndefere oUinidt, id Judex domicilii, idi et mohilia, ratio- 
 nesque et instrumcnta reperiuntur, tutelam solus deferat. 
 
 1 Burgundus, Tract. 1, n. 12, p. 23. 
 
 2 Ibid. n. 13. 
 
 3 Ibid. n. 14, p. 21 ; 1 Boullenois, Observ. 9, p. 150; Id. Observ. 6, p. 
 129.
 
 CH. xiil] foreign guardianships. 841 
 
 Sed non alitcr tmiversorum hononim administrationem con- 
 sequitur, quam si siipersedente jiidice situs, solus ille consti- 
 tiiatur} This, however, is a qualification by no means 
 generally conceded or admissible. 
 
 § 500 a. We have already seen, that Hertius, and 
 Matthajus, and Paul Yoet, and John Voet, hold the 
 opinion, that the guardian has not, by virtue of his 
 appointment in the place of the domicil of his ward, 
 any rights or authorities over the immovable property 
 of his ward in a foreign country.^ Paul Voet in another 
 place adds ; Vcrum a contractibiis proprie sic dictis, me 
 confer am ad quasi contractus, et quidem tutelce, v el curat elce. 
 Ubi sequcntia examinanda. Quid si piipillo dandus sit 
 tutor, illene dahit, ulji pu^illus domiciliimi hahet, an ubi bona 
 pupilli immobilia sita sunt ? Respondeo ; Quamvis regii- 
 lariter ah illo Magistratu detur tidor, ubi pupillus domici- 
 lium Jiabet, ubi parentes habit anint ; etiam qui dat tutor em, 
 eum primario p>ersonco, non rei dedisse, censeatur ; adeoque 
 is, qui simpliciter datus est, ad res omnes etiam in diversis 
 Provinciis sitas, datus intelligatur ; Id quod plcrumque jure 
 Romano obtincbat, quo diversanim Provinciarum Magistra- 
 tus, uni suberant Impcratori. Ne tamen videatur Judex 
 domicilii quid extra territorium fecisse, non prafudicabit 
 Judici loci, ubi nonmdla pupillaria bona sita, quin et tutorem 
 pupillo ratione illorum bonorwn, scilicet inimobilium, ibidem 
 recte dederit. JJnde etiam si de prcediis minorum alicnan- 
 dis contentio ; si quidem in cdid sita sint Provincid, tutius 
 egerit tutor, qui datus est in loco domicilii, si decretum ab 
 utroque, Judice curet interponi, et domicilii iJupilli, et rei 
 
 1 Burgundus, Tract. 2, n. 18, p. 69. 
 
 2 Ante, ^ 497, 498. 
 
 71
 
 S42 CONFLICT OF LAWS. [CH. XIIL 
 
 sitcc} Even those jurists who contend, that permission 
 ought to be given by the local Judge to such a guar- 
 dian to administer such foreign immovable property, at 
 the same time concede, that without such permission 
 the guardian cannot exercise any rights or authorities 
 over it.- John Voet says ; Non aiitem in loco originis 
 vel situs reriim piipillarium, sed tantum in loco domicilii pii- 
 pillaris tidores a loci illiiis camera imjpillari aid magistrcdii 
 creari, moris est ; cjid hoc ipso dati inielligimtiir imiverso pu- 
 pilli l^cdrimonio, iibicimque existenti. Quod tamen ex comi- 
 tate magis, quam juris rigore sustinetur ; cum in casu, quo 
 impillus immohilia hahet sita in eo loco, qui non subest cideni 
 magistratui supremo, cui impillns suhest ratione domicilii, 
 magistratus loci, in quo sita immohilia, rehus in siio territorio 
 existentihis pecidiarem posset tidorem, dare? 
 
 § 501. Boullenois, after stating, that in France the 
 principal object of guardianship is not so much the 
 custody of the person, as of property, adds, that it has 
 in view the administration and direction of property 
 {hiens,) and that the rights, which it grants, are all real 
 rights. La garde consiste, ou en droits de propriete, ou en 
 droits dhisufruit ; et il n'g a rien de plus reel, que ccs sortes 
 de droits. Par consequent elle ne pent etre regie, que par 
 la hi de la situation. Cest cette Loi, qid donne, ou ne donne 
 pas ; qui appelle certaines ^^ersonnes, ou qid ne les appelle 
 pas. De Id il scmble, qiHil faudroit necessairement en con- 
 clure, que cJiaque coidume, qui admet la garde, et oil ily a 
 
 1 P. Voet, de Statut. ^ 9, ch. 2, n. 17; Id. n. 19, p. 270, 271, edit. 
 1715 ; Id. p. 329 to 231, edit. 16G1. 
 
 2 3 Biirge, on Col. and For. Law, Pt. 2, ch. 23, p. 1004 to 1007. 
 
 3 J. Voet, ad Pand. Lib. 26, lit. 5, ^ 5, Tom. 2, p. 188 ; Id. Lib. 1, tit. 
 4, Pt. 2, ^ 3, 7, Tom. 1, p. 39, 40. See also other foreign jurists cited, 
 3 Burge,Comm. on Col. and For. Law, ch. 23, p. 1005, lOOG, 1007.
 
 CH. XIII.] FOREIGN GUARDIANSHIPS. 843 
 
 des Mens, a settle le droit de deferer la garde, a qui hon lid 
 semhle ; et qiiHl liy a que ceux, h qui elle la defere, qui puis- 
 sent aire gardiens, quclque domicile d'ailleurs, qu\dent ceux, 
 qui tontbent en garde, et ceux, qui sont appelts a la garde} 
 He admits, that there are jurists who assert the con- 
 trary.^ 
 
 § 502. Hertius, as we have seen, asserts the same 
 doctrine as to immovable property.^ Froland arranges 
 himself on the side of those who assert the reality of 
 the laws which respect guardianship, distinguishing, 
 however, as to the quality of persons entitled, the right 
 of possessing the property, and the formalities accom- 
 panying it.'* 
 
 § 502 a. Dumoulin holds the opinion, that the Lex 
 rei sitcc is to govern in all such cases ; and explains 
 himself with unusual fulness on the point. Aut statutum 
 agit in j^crsonam, et tunc non includit exteros, sive hahiliter, 
 sive inhabiliter personam, unde si statuto Jivjus urhis cavetur, 
 quod contractus facti per minorem25. annis non valeant sine 
 consensu suorum pro^nnquor'iim, et authoritate Judicis, 7ion 
 intelligitur, nisi de suhditis suw jurisdictioni per text. I. 1, 
 in fin.ff. de curat, et tutor, dot. ah his. Unde minor dicti 
 loci non poterit ctiam extra locum prcedia, in eo terntorio 
 sita, locare sine dicta solemnitate : Scd bene extra locum prw- 
 dia alibi sita. Quia in quantum agit in personam, restrin- 
 gitur ad suos subditos; et in quantum agit in res, restringi- 
 tur ad sitas intra suum territoriiun. Exterus autem minor 
 
 1 2 Boullenois, Observ. 29, p. 320, 321, 322, 339, 310 ; 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, cli. 23, p. 1001, 1002. 
 
 2 Ibid, 
 
 3 Ante, ^S497; 1 Hertii Opera, De Collis. Leg. 4, n. 8, p. 123, 124, 
 edit. 1737 ; Id. p. 175, edit. 1716. 
 
 •1 1 Froland, Mem. ch. 16, p. 717, 749, 750, 752.
 
 844 CONFLICT OF LAWS. [CH. XIIL 
 
 annis potent etiam de sitis intra locum didi statidi etiam 
 inter locum ilium disponere : Qiiamvis is, qui dolus est tutor 
 vel curator a suo corapetenti judice, sit inJiahilitatus proptei^ 
 tutelam, et curam uhique locorum pro honis ubicumque sitis. 
 Quia non est in vim statuti solius, sed in vim juris communis, 
 et per passivam interpretationem legis, quce locum Jmbet 
 uhique} Everhardus holds the same opinion. JJhi ra- 
 tione diversarum jurisdictionum et territoriorum diversi ju- 
 dices dant tidores, et uniis non intromittat se de territorio alte- 
 rius ; semper enim inspicienda est consuetudo loci, iibi res 
 sunt sitce, maxime quoad immohilia? 
 
 § 503. Lord Karnes hiys down the Scottish doctrine 
 to be, that it is of no importance in what place curators 
 of minors are chosen ; and accordingly, a choice made 
 in England of curators, whether English or Scotch, will 
 be held effectual in Scotland. He admits, that the 
 powers of a guardian of a lunatic in England, are limit- 
 ed, extending only to his person, and not to his estate ; 
 or rather, that different guardians are, or may be, ap- 
 pointed by the Court of Chancery for each. But the 
 authority of any guardian or curator, however appoint- 
 ed, in a foreign country, is not understood by him to 
 extend to any real estate in Scotland.^ 
 
 § 504. There is no question whatsoever, that, accord- 
 inor to the doctrine of common law, the rie-hts of foreifrn 
 guardians are not admitted over immovable property, 
 situate in other countries. Those rights are deemed to 
 be strictly territorial; and are not recognized as having 
 
 1 Molin. Opera, Tom. 3, ad Cod. Lib. I, tit. 1, 1. 1, Conclus. de Statut. 
 p. 556, edit. 1681 ; ante, ^ 497, note. See also Rodenburg, De Divers. 
 Statut. tit. 2, ch. 5, n. 16 ; 2 Boullenois, Appx. p. 47 to 51. 
 
 2 Everhard. Consil. 185, n. 3, p. 406. 
 
 3 2 Karnes, Equity B. 3, ch. 8, ^ 1, p, 325 ; Id. ^ 4, p. 318.
 
 CH. XIII.] FOREIGN GUARDIANSHIPS. 845 
 
 any influence upon such property in other countries 
 whose systems of jurisprudence embrace different regu- 
 lations, and require different duties and arrangements.^ 
 No one has ever supposed that a guardian, appointed 
 in any one State of this Union, had any right to receive 
 the profits, or to assume the possession, of the real 
 estate of his ward in any other State, without having 
 received a due appointment from the proper tribunals 
 of the State, where it is situate. The case falls within 
 the well-known principle, that rights to real property 
 can be acquired, changed, and lost only according to 
 the law m sitw.^ 
 
 § 504 a. The same rule is applied by the common 
 law to movable property, and has been fully recognized 
 both in England and in America. No foreign guardian 
 can virtide officii exercise any rights, or powers, or func- 
 tions over the movable property of his ward, which is 
 situated in a different State or country, from that, in. 
 which he has obtained his letters of guardianship. But 
 he must obtain new letters of guardianship from the 
 local tribunals, authorized to grant the same, before he 
 can exercise any rights, powers, or functions over the 
 same. Few decisions upon the point are to be found 
 in the English or American authorities, probably be- 
 cause the principle has always been taken to be unques- 
 tionable, founded upon the close analogy of the case of 
 foreio;n executors and administrators.^ 
 
 I See 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, ^ 5, 
 p. 1009, 1010, 1011. 
 
 '■2 Ante, ^ 424 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 23, 
 ^ 5, p. 1005, 1006, 1009, 1010. 
 
 3 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 2, ^ 5, p. 1011 ; 
 Id. p. 1010 ; ante, ^ 499 : Morrell v. Dickey, 1 Johns. Ch. R. 153 ; Kraft 
 V. Vickery, 4 Gill & Johns. R. 332, 340, 341 ; 4 Cowen, R. 529, note; 
 71*
 
 846 CONFLICT OF LAWS. [CH. XIIL 
 
 § 505. Whether <a guardian has authority to change 
 the domicil of his ward from one country to another, 
 seeing that it may have a most important operation, as 
 to the succession to his movable property, in case of his 
 death, is a matter which has been much discussed. In 
 favor of the affirmative there are some distinguished 
 foreign jurists, among whom we may enumerate 
 Bynkershoek, Bretonnier, Rodenburg, and John Voet. 
 Bynkershoek says ; Posse tiitorem piqnlli siii domicilmn 
 mutare, perinde ut potest parens superstes, nescio qiiisqiiam 
 serio diibitaverit, si siiccessionis legitimce causa non versctnr ; 
 nam si licec versetur, multa dlspidatio est. JSed an licec 
 quoqiie valehmt, si superstes parens vcl tutor domicilium 
 minoiis transferat, ut ejus, intestati mortui alia sit siiccessio 
 quam antefuit? He proceeds then to discuss the ques- 
 tion, and comes to the conclusion, that he may. Sic 
 piito. Scio impiiberem, vel minorem proprio marte non 
 recte domicilinm smmi mutare ; sed quid ni non posset, qui 
 eum reprwsentat, et quid ni non posset cum omni effectu, nisi 
 qua lex sit, qucc impediat ? ^ Rodenburg says ; Quceranms 
 et illud quod frecpientioris est incursionis ; Hollandus major 
 viginti, minor viginti quinque annis transfert domicilium TJl- 
 trajectum, uhi vigesimo anno tutela vel cura finitur. Quid 
 dicemus pe?'venturum ilium suam in tutelam ? Piespondi ex 
 facto consultus minori hodic constituendi domicilii, facidta- 
 tem non esse, tutori esse ; cpd ut contrahere, ita et domicilium 
 potest consiitucre, quod collocetur illud per contractum, de 
 quo mox latins. Proinde in proposita mihi specie, cum 
 mater, quw tutrix essct, mutato a morte viri domicilio, Ultra- 
 
 post, ^ 512, 513. But Mr. Ch. Walworth seems to have thought other- 
 wise in McNamara v. Dwyer, 7 Paige, R. 23G, 241. 
 
 ' Bynkers. Quest. Privat. Juris. Lib. 1, ch. l(j, p. 174 to p. 186, edit. 
 1744.
 
 CH. XIII.] FOREIGN GUARDIANSHIPS. 847 
 
 jedum concessisset, ihiqiie infam adolevisset : dixi ex Ultra- 
 jedinis legihus cestimandos iicrfcdcc cctatis annos ; dummodo 
 f rails ahsil, ant prcejudidum tcrtii, extra quod vix est tit non 
 dixcris tutori, maxime matri locum ad hahitandum, puiiil- 
 liimque educandiim, eligendl Jas esse, illudqiie ipsiim diibil 
 veriti Batavi Jurisconsulti tutori agnato auctores fuerunt, ut 
 stipularetur a matre ilia, cum cogitaret ex Hollandia con- 
 cedere Trajedum, ne ea res iu/aiitis adspedu ullo modo do- 
 micilii mutationem induceret ; quamquam fateor, si quid hoc 
 ad rem pertinet, positd hdc sententid, in potestate tuioii^ 
 fore, tutelCi semet ociics exucre, nisi turn potitis super fraude 
 qnwrendum ford} John Yoet says ; Plane, si etiamnum 
 minorennis sit,patre vel matre vidua domicilium mutante, 
 filium etiam videri miitasse, si et ipse translatiis sit, nee ex 
 prioris sed novi domicilii, a patre matreve recenter constituii, 
 jure censeri in duhio deberc, rationis est. TJtut enim liaud 
 difficulter admittendum sit, minorennem non magis posse do- 
 micilium mutare, quam contraJiendo se ohligare : tamen, quem- 
 admodum contrahere auetore tiitore permissum ei est, ita et 
 domicilium cum patre matreve, tanquam tutelco ejus ant sal- 
 tem educationi fjrwpositd, tutorihus cceteris non contradicenti- 
 hiis, mutare nihil vetat : nisi ex circiimstantiis manifestnm 
 esset, talem domicilii pupillaris translationem in fraudem 
 proximorum, spem succcssionis ex prioris domicilii lege lia- 
 hentinm, fadam esse? 
 
 505 a. Bynkerslioek thinks it impracticable to make 
 any such exception of cases of fraud from the intrinsic 
 difficulty of ascertaining, what circumstances shall con- 
 stitute evidence of a fraudulent change of domicil." 
 
 1 Rodenburg, De Div. Stat. tit. 2, ch. 1,^6; 2 Boullenois, Appx. 
 p. 57, 58. 
 
 2 J. Voet, ad Pand. Lib. 5, lit. 1, ^ 100, Tom. 1, p. 347. 
 
 3 Bynkers. Quest. Jur. Priv. Lib. 1, ch. IG, p. 182, 183, edit. 1744.
 
 848 CONFLICT OF LAWS. [CH. XIIL 
 
 Burgundus seems to hold with Bartolus, that the do- 
 micil of the guardian is also the domicil of the minor. 
 Puinlli ipsi sihi constituere domicilium non possimt. Bar- 
 tolus aiitcm ibi semit habere domicilium, ubi cum tidoribus, 
 sive aliter hahitaverint. Quce se^itentia ita demiim mihivera 
 videtur, nisi in academiam studioriim causa, vel alio profec- 
 ti, remdinendi animo ibi non steteiint. Qui vcniatn cetatis 
 impetravit, etproprice negotiationi commodisque subservit, ipse 
 sibi minor domicilium instriiere potest. Uxor ibi censetur 
 habere domicilium, tibi maritiis habitat. Legitimd tori sepa- 
 rcdione facta, ipsa sibi domicilium instruet.^ 
 
 505 b. Boullenois has spoken with so little clearness 
 and precision on this subject, that it is not very easy to 
 say with entire exactness, what is his opinion. From 
 the best examination, which I have been able to make 
 of his various discussions of this subject in his different 
 works, he seems to have thought, (1.) That the law of 
 the actual domicil of the parents of a minor constituted 
 the rule to regulate the succession to the minor if he 
 died during his minority, although it was not the do- 
 micil of his birth, but was acquired by his parents af- 
 terwards. (2.) That the like rule did not apply to the 
 case of a minor under tutelage ; and that his guardian 
 could not by a change of domicil change the succession 
 to the property of the minor. (3.) That, hence, if a 
 minor, following the change of domicil of his parents, 
 should die, his movable estate would be governed by 
 the law of succession of the new domicil, if there was no 
 fraud in the removal. (4.) But that there was no rea- 
 son, why a minor might not be reputed domiciled in 
 the domicil of his guardian, so far as the law of that 
 
 1 Burgundus, Tract. 2, n. 34, p. 80, 81.
 
 CH. xiil] foreign gijardianships. 849 
 
 domicil would confer on him particular fliculties or pri- 
 vileges ; and that, therefore, if the law of the domicil of 
 the guardian would give him the power of making a 
 testament of his movables, he might make one conform- 
 able to that law ; for it is but just, that, in such a case, 
 a person domiciled there, even although a minor, should 
 be held subject to the real laws, or laws in rem, of the 
 place, where he is domiciled without fraud.i 
 
 1 Boullenois, Dissert, siir Quest, de la Contrar. des Lois, Quest. 2, 
 p. 59 to 62 ; 2 Boullenois, Observ. 32, p. 49 to 53. — It may not be unac- 
 ceptable to give some extracts from Boullenois in this place. He says in 
 his Dissertations : En effet, il y a pliisieurs raisons, pour lesquelles le der- 
 nier domicile du pere doit r^gler la succession mobiliare du fils, lorsqu'il 
 decede en minority. La premiere est, que le fils mineur tombant sous la 
 puissance d'autrui, on n'a pas voulu qu'il put dependre d'un Tuleur de 
 changer I'orde de succeder au mineur en lui faisant changer de domicile ; 
 en sorte qu'on n'a pas cru qu'un Tuteur dut avoir la liberie de donner ou 
 d'oter aux h^ritiers pr6somptifs. La seconde est, qu'un mineur h. raison de 
 sa minoriie est toujours presume greve et charg6 de fidei-commis envers 
 les h6ritiers de celui de qui il a recju les biens qui doivent composer sa suc- 
 cession, et un Tuteur ne doit pas avoir le pouvoir de derogcr a cette es- 
 pece de fidei-commis. Again he says ; Sur le changement de domicile d'un 
 mineur en ce qui touche ses bicns, il semble qu'il y auroit quelque con- 
 sideration a faire. II paroitroit assez convenable que la succession d'un 
 mineur au-dessus de la pleine puberl6 fut regime par le domicile de ses 
 pere et mere. Que des qu'il est pourvu par marriage, il puisse se choisir 
 tel domicile que bon lui semblera, et que sa succession mobiliare soit itj- 
 gie par ce domicile. Que le fils mineur en suivant le domicile du pere, ou 
 de la mere survivante, sa succession mobiliare soit pareiilement assujettie 
 aux Loi.x de ce nouveau domicile, pourvu que d'ailleurs il n'y ait point de 
 fraude : Que peut faire cle mieu.x un mineur que de continuer de vivre sous 
 I'education de celui de ses pere et mere que Dieu lui a conserve, .et d^s 
 qu'il y a prudence et justice dans cette conduite, ce nouveau domicile de- 
 vient une demeure juste et legitime pour le mineur, dont la succession 
 mobiliare doit suivre le sort. Que le fils mineur qui fait trafic de Mer- 
 chandises, et qui pour ce, s'est choisi un domicile soit pareiilement en ce 
 qui touche ses biens mobiliers, assujetti ;i la Loi du lieu qui a 6l6 le centre 
 de sa fortune, et cela paroit indispensable quand le bien du mineur est un 
 bien d'industrie. I! n'y a pas d'inconveniciit qu'un mineur soit repute do- 
 micilie au domicile de son Tuteur, quant aux faculits parliculicres que la
 
 850 CONFLICT OF LAWS. [CH. XIII. 
 
 § 505 c. On the other hand, Mornac, Christinseus, 
 Bouhier, and Pothier, maintain the opinion in unequi- 
 
 Loi de ce domicile peut lui donner ; c'est pour quoi si par la Loi da do- 
 micile de son Tuteur il a faculte de tester de ses meubles, il pourra tester 
 conformeinent a cette Loi. II est juste dans ce casqu'un domicilie, meme 
 mineur, subisse les Loix pures r^elles du lieu ou il est domicilii sans 
 fraude. Mais quant a son etat de majeur, ou de mineur, on ne sQauroitle 
 faire dependre que de la Loi de son origine, par les raisons qui ont et6 cy- 
 devant alleguees. BouUenois, Diss, de la Contrar. des Lois, Quest. 2, 
 p. 59, 61, 62. In his larger Treatise, he says; Au surplus, ce que nous 
 disons ici pour le cas de la succession mobiliare ab intestat, doit-il avoir 
 lieu pour le cas d'un testament? S'il s'agissoit, par exemple, de savoir si 
 le mineur incapable de tester par la Loi de son domicile de droit, le pour- 
 roit en verlu de la Loi de son domicile de fait. L'Auteur des Observa- 
 tions sur Henrys, observe ioco citato, que si des enfants mineurs sont mis 
 sous la tutelle d'un Lyonnois ils pourront faire un testament, lorsqu'ils se- 
 ront parvenus a la pubert6, parce que les mineurs suivent, a cet 6gard, le 
 domicile de leur tuteur. II dit qu'il I'a ainsi d6cid6 en consultation, avec 
 M. Severt, pour le testament du sieur de Servieres, fait a Page de dix-huit 
 ans. Son pere s'etoit mari6 et 6tabli a Paris : apres son d^ces et celui de 
 sa semme, ses enfants, qui etoient en bas age, furent mis sous la tutelle de 
 Charles Groflier, leur oncle paternel, domicilie en Lyonnois. Le sieur de 
 Servieres fils, avant que de partir pour I'armee, ou il fut tu6, fit son tes- 
 tament au profit d'une de ses sceurs : il fut conteste par une autre scEur, et 
 la decision sut pour le testament. M. le P. Bouhier, ch. 21, n. 4, n'adopte 
 pas cette decision, et j'avoue qu'elle n'est pas sans difficulte. En effet, 
 puisque la Loi determine le domicile du mineur, par le domicile du p6re, 
 je parle d'un mineur non lilabli, pour quoi lui donner deux domiciles, 
 I'un pour r^gler sa succession mobiliare, et I'autre pour regler sa ca- 
 pacii6 personnelie de tester ? II n'y a, comme nous venons de le 
 dire, que le domicile de la personne qui puisse rendre capable celui 
 qui est incapable ; et puisque le domicile du mineur est fixe au domi- 
 cile du pere, comment celui de fait, qu'il peut avoir partout ailleurs, 
 peut-il afiecter sa personne, prtf^rablement a son domicile de droit qui est 
 necessairenieiit, selon la Loi, son vrai domicile? D'ailleurs un testament 
 apporte toujours un changement dans la succession legale du testateur, et 
 la Loi du domicile de droit qu'a le mineur, ne lui permet pas de disposer, 
 de ses biens, et de changer rien dans sa succession. Mais pour le soutien 
 de la decision de MM. Severt et Bretonnier, deux savants Consultants, ne 
 peut-on pas r6pondre que le mineur est dans son devoir, quand il demeure 
 avec son tuteur qui est charg6 de son Education, qu'il y demeure n6ces- 
 sairement et sans fraude? A la bonne heurc que le domicile de son pere
 
 CII. XIII.] FOREIGN GUARDIANSHIPS. 851 
 
 vocal terras, that the domicil of a minor, so far as it re- 
 gards his succession to his estate, cannot be changed by 
 his guardian. Mornac says ; Qncvsitimi est, morino m- 
 piiberc, de cujiis bonis moUUbus ar/itiir, quod spcctari dcbecd 
 illiiis domicilimn, idnun patris ct mcdris, cm iutoris, ajnid 
 quern defunctiis est ; atqiie id, quia locus domicilii parentum, 
 et locus domicilii tuioris contrarias, quoad successiones mobi- 
 lium, divcrsasque comuctudincs fcrani. Videbaiur nonnullis 
 consiilucndum domicilium i.'i cedibus itdoris, uk qid patrem 
 referret. Prcevaluit vero conim sententia, qid domicilium 
 minoris prcese^iim eo casu in loco originis, id est, in cvdibus 
 paternis ac maternis collocandmn dicercnt. Cum cnim do- 
 micilium quaiuor modis conirahi soleat, natura, ac origine, 
 item voluntate, ac concilio, deinde conventione, aid ex necessi- 
 tate muneris. Solum ex his naturale domicilium minori sii- 
 perest, locus scilicet, in quo ipse creverit, parentesque defece- 
 rint ; absurdumque aliiidfuerit affingere minori in ceteris, 
 
 regie sa succession ab intestat ; c'est I'interct dea heritiers qui I'a voulu 
 ainsi, et c'est pour cela qu'il relient le domicile de son pere. Mais si le 
 marriage, si I'emancipation permeltent a un mineur dc changer de domi- 
 cile, comme en convient M. Bouhier luim(^me, et que dans cecas, le mineur 
 puisse tester conform6ment a la Loi du domicile qu'il s'est clioisi, pourquoi 
 ne veut-on pas pareille chose dans le cas ou le mineur passe, par n6cessit^, 
 et sans fraude, dans le domicile de son tuteur 1 II est vrai que dans le 
 cas du marriage et de I'emancipation, la succession mobiliare de ce mineur 
 se r6glera par la Loi de son domicile de choix, et que je n'en dirai pas de 
 meme par rapport a un mineur qui n'est ni mari6, ni eraancipe ; mais ce 
 que je ne dirai pas pour le cas de la succession ab intestat, parce qu'il y a 
 une Jurisprudence form6e a cet egard, je puis le dire pour le cas du tes- 
 tament, parce que la Loi n'a rien decide ]a-dessus, et qu'il semble juste de 
 laisser t\ un mineur, que la mort pr6vient, une capacity que lui donne la 
 Loi ou il demeure actuellement, sans fraude. Neanmoins le premier avis 
 me paroit le meilleur ; un mineur hors le domicile dc son pere, avec son 
 tuteur, habite avcc lui ; mais il n'est pas proprement domicilie avec lui ; . 
 il s^journe en attendant sa majority ; c'est un plaideur qui attend U\ que le 
 temps lui fasse gagner son proems." 2 Boullenois, Observ. 32, p. 51 to 
 53 ; ante, ^ 44, note 2, p. 44.
 
 852 CONFLICT OF LAWS. [CH. XIII. 
 
 qiiod ipse per cotatem non liabeat ilUgendi nempe domicilii 
 consilium. Inio et pi'cestaretur ansa interdwn tiitoribus 
 fraiidandl veros moUllum minoris intereimtis hceredes, irans- 
 fercnilbus scilicet domlclllum in loca, qidhus successura sibi 
 vlderent ex patrils morlhiis, intereiinte valetitdlncirio mlnore 
 deslderia} Christinceus adopts the very language of 
 Mornac on tliis subject.^ Bouliier is equally direct and 
 positive ; holding, that the minor retains the domicil of 
 his parents, and that it cannot be changed by his guar- 
 dian. He says that the inviolable rule of the law in 
 Burgundy is, that the domicil of minors in respect to 
 the succession to their property, cannot be changed by 
 their guardians during their minority ; and he reasons 
 out the doctrine at large.^ Pothier takes a distinction 
 between the case of the change of the domicil of a 
 parent from the change of domicil of a guardian ; 
 and holds, that in the former case, if a change is 
 made without fraud, the minor follows the domicil of 
 his parents and of the survivor. But in the case of a 
 guardian no such effect follows ; for the minor is no 
 part of the family of the guardian, but is like a stranger 
 there, and only for a time {ad iempiis.) ^ 
 
 1 Mornacci, Observ. ad Cod. Lib. 3, tit. 20, Tom, 3, p. 558, edit. 
 1721. 
 
 2 Christin. Decis. 176, Tom. 2, p. 204. 
 
 3 Bouhier, Cout. de Bourg. ch. 21, ^ 3, p. 383 ; Id. ch. 23, ^ 100 to 
 § 167, p. 441, 452. 
 
 4 Bouhier, Coulume d'Orleans, Introd. n. 17. lie uses there the following' 
 language. " II nous suflit de dire, que les mineurs ne composent pas la 
 famille de leur tuteur, comme Ics enfans composent la famille de Icur p^re: 
 ils sont dans la maison de leur tuteur comme dans une maison etrangere ; 
 ils y ont ad tempus, pour le temps que doit durer la tutelle ; par cons6- 
 quent le domicile de leur tuteur n'est pas leur vrai domicile, et ils ne pea- 
 vent 6lre census en avoir d'autreque le domicile paternel, jusquVi ce qu'ils 
 soient devenus en age de s'en etablir un eux-m^mes par leur propre
 
 CH. XIII.] FOREIGN GUARDIANSHIPS. 853 
 
 § 506. The same question has occurred in England ; 
 and it was on that occasion held, that a guardian may 
 change the domicil of his ward, so as to affect the right 
 of succession, if it is done lonci fide and without fraud.^ 
 In that case the father, a native of England, died intes- 
 tate, domiciled in Guernsey, leaving a widow and infant 
 children by her, and also by a former wife. The widow, 
 after his death, was appointed guardian of her own child- 
 ren, and in conjunction with the guardian of the child- 
 ren of the first marriage, sold their estate in Guernsey, 
 and invested the amount in the English funds, and af- 
 terwards removed to England with the children. On 
 the death of some of the children under age, the ques- 
 tion arose, whether their shares were distributable by 
 the law of England, or by that of Guernsey ; and it 
 was decided by the Master of the Rolls (Sir William 
 Grant,) that it was to be by the law of England. On 
 that occasion the learned Judge said : " Here the ques- 
 
 choix, el qu'ils I'aient effectivement 6tabli. II n'en est pas de meme de la 
 mere : la puissance paternelle ttant, dans notre Droit, difKrent en cela du 
 Droit Ronfiain, conamune au pere et a la m6re, la mere, apres la mort de 
 son mari, succede an droits et k la qualii6 de chef de la famille, qu'avoit 
 son mari vis-a-vis de leurs enfans : son domicile, quelque part qu'elle juge 
 de le transf6rer sans fraude, doit done etre celui de ses enfans, jusqu'A ce 
 qu'ils aient pu s'en choisir un, qui leur soit propre. II y auroit fraude, s'il 
 ne paroissoit aucune raison de sa translation de domicile, que celle de se 
 procurer des avantages dans les successions mobiliares de ses enfans. Les 
 enfans suivent le domicile, que leur m^re s'6tablit sans fraude, lorsque ce 
 domicile lui est propre, et que, demeurant en viduit6, elle conserve la quali- 
 ty de chef de famille : mais lorsqu'elle se remarie, quoiqu'elle acqu6rie le 
 domicile de son second mari en la famille duquel elle passe, ce domicile de 
 son second mari ne sera pas celui de ses enfans, qui ne passent pas comme 
 elle en la famille de leur beau-pere ; C'est pourquoi ils sont census conti- 
 nuer d'avoir leur domicile au lieu ou I'avoit leur more avant que de se re- 
 marier, comme ils s^roient census le conserver, si elle ttoit morte." 
 
 ' Polinger v. Wightman, 3 Meriv. R. 07 ; Robertson on Personal Suc- 
 cession, l'J7 to 202. 
 
 CONFL. 72
 
 854 CONFLICT OF LAWS. [CH. XIIL 
 
 tion is, whether, after the death of the father, children, 
 remaining under the care of the mother, follow the do- 
 micil which she may acquire, or retain that which their 
 father had at his death, until they are capable of gain- 
 ing one by acts of their own. The weight of authority 
 is certainly in favor of the former proposition. It has 
 the sanction both of Yoet and Bynkershoek ; the for- 
 mer, however, qualifying it by a condition, that the do- 
 micil shall not have been changed for the fraudulent 
 purpose of obtaining an advantage by altering the rule 
 of succession. Pothier, whose authority is equal to that 
 of either, maintains the proposition, as thus qualified. 
 There is an introductory chapter to his treatise on the 
 Custom of Orleans, in which he considers several points, 
 that are common to all the customs of France, and, 
 among others, the law of domicil. He holds, in opposi- 
 tion to the opinion of some jurists, that a tutor cannot 
 change the domicil of his pupil ; but he considers it as 
 clear, that the domicil of the surviving mother is also 
 the domicil of the children, provided it be not with a 
 fraudulent view to their succession, that she shifts the 
 place of her abode. And he says, that such fraud 
 would be presumed, if no reasonable motive could be 
 assigned for the change. There never was a case, in 
 which there could be less suspicion of fraud than the 
 present. The father and mother were both natives of 
 England. They had no long residence in Guernsey ; 
 and after the father's death, there was an end of the 
 only tie which connected the family with that island. 
 That the mother should return to this country, and 
 bring her children with her, was so much a matter of 
 course, that the Aict of her doing so can excite no sus- 
 picion of an- improper motive. I think, therefore, the 
 Master has rightl}^ found the deceased children to have
 
 CH. XIII.] FOREIGN GUARDIANSHIPS. 855 
 
 been domiciled in England. It is consequently by the 
 law of this country that the succession to their per- 
 sonal property must be regulated." ' This doctrine has 
 
 1 Polluter u. Wightman, 3 Meriv. R. 79, 80. — Mr. Burge on lliis 
 subject remarks : " The doniicil of choice being that which the person 
 himself establishes, it can only be acquired by him who is sui juris. It 
 cannot, tiierefore, be acquired by a lunatic or minor. The domicil of the 
 father, or of the mother, being a widow, is that of the child, and a change 
 by either of those parents of their former domicil, would necessarily ope- 
 rate as a chanore of the child's domicil. It is, however, only during the 
 mother's widowhood, that she could change the domicil of her infant. 
 The domicil, which she acquired on her second marriage would not be- 
 come that of the infant; but his domicil would continue to be that, which 
 the mother possessed previously to her second marriage. The power 
 which the parent thus possesses, of changing the domicil of his child, is 
 assimilated to that which the guardian of an infant possesses, of binding 
 him by contracts, entered into by him on behalf of the infant. But this 
 power, it is said, must be exercised by the parent bona fide. If he 
 changed the domicil of the child, who was sick, with no other apparent 
 objection than that of removing him from a place in which, according to 
 the law of succession there prevailing, the parent would not succeed to the 
 child's estate, to another place, which admitted the parent to such suc- 
 cession, the removal would be deemed a fraud on the rights of those who 
 would have succeeded, if no such removal had taken place, and would not 
 be allowed to prevail. But if the health of the child was such, as to af- 
 ford no expectation of his death, or if there was any reasonable motive for 
 the removal, or, indeed, if the child had attained an age when, by the law 
 of the place of his domicil, he had the power of making a testament, in 
 which latter case there could be no ground for presuming any interested 
 motive on the part of the parent in changing his domicil, the removal could 
 not be impeached." 1 Burge, Conrim. on Col. and For; Law, Pt. 1 , ch. 2, 
 p. 3B, 39. Notwithstanding this weight of authority, which, however, 
 with one exception, is applied solely to the case of parents, or a surviving 
 parent, there is much reason to question the principle on which the de- 
 cision is founded, when it is obviously connected with a change of a suc- 
 cession to the property of the child. In the case of a change of domicil by 
 a mere guardian, not being a parent, it is extremely difficult to find any 
 reasonable principle on which it can be maintained, that he can, by any 
 change of domicil, change the right of succession to the minor's property. 
 The reasoning of Bynkershoek upon the point is very unsatisfactory, while 
 that of Mornac, Bouhier, and Pothicr, has solid reason and justice to sus- 
 tain it. See Robertson on Succession, p. 19(3 to 203.
 
 856 CONFLICT OF LAWS. [CH. XIII. 
 
 also been recognized as the true doctrine in Ame- 
 rica.^ 
 
 § 507. Secondly ; in relation to executors and admin- 
 istrators. According to the Koman law, which made 
 no distinction in this respect between movable and im- 
 movable property, the title " heir," was indiscriminately 
 applied to every person, who was called to the succes- 
 sion, whether he was so called by the act of the party, 
 or by operation of law. Thus, the person, who was 
 created universal successor by a will, was called the 
 testamentary heir {hceres f actus,) and the next of kin by 
 blood, in cases of intestacy, was called the heir at law 
 (Jueres natus) or heir by intestacy. The heir, whether 
 consisting of one or more persons, and whether testa- 
 mentary or by intestacy, was entitled by succession to 
 all the estate of the deceased, whether it was real or 
 personal; and he was chargeable with all the burdens 
 and debts due from him.^ But inasmuch as the suc- 
 
 1 Guier v. O'Daniel, 1 Binn. R. 349, note ; Cutts v. Haskins, 9 Mass. 
 543 ; Holyoke v. Haskins, 5 Pick. R. 20. 
 
 2 1 Domat, B. 1, tit. 1, p. 557 ; Id. ^ l,n. 1, 2, p. 558. — Domat says, 
 that in France, in the Provinces which are governed by the testamentary 
 law, and not by the Roman Law, (Droit ecrit) the title of heirs is given 
 only to the heirs by blood, or heirs at law, and that the testamentary heirs 
 are called universal legataries. But this distinction is merely nominal, 
 and the same rules are applied to the universal legataries, as to ihe heirs 
 by blood. 1 Domat, B. 1, tit. 1, p. 557, 558. Erskine in his Institutes, 
 B. 2, tit. 2, ^ 3, p. 192, says, that in Scotland, "Heritable subjects are 
 those (immovables,) which on the death of ihe proprietor descend to the 
 heir; and movables, those which go to executors, who are on that account 
 sometimes styled haeredes in mobilibus. It may be also observed, that 
 those who undertake to gather in and distribute among such as ate in- 
 terested in the succession the movable estate of a person deceased, in vir- 
 tue of a nomination, either by the testator, or by the Judge, frequently 
 get the name of executors, because it is their office to execute the last 
 will of the deceased." See Id. B. 3, tit. 9, ^ 1, 2, 26.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 857 
 
 cession in either case might be onerous, as well as pro- 
 fitable, the law allowed the heir, whether he were so by 
 testament, or by intestacy, to renounce the inheritance 
 if he pleased ; or he might accept it with the benefit of 
 an inventory, the effect of which was to exonerate the 
 heir from any farther liability, than the amount of the 
 assets, or property inventoried.^ These explanations 
 are important in order fully to understand the reason- 
 ings of foreign jurists, and to apply them to the present 
 subject ; for the civil-law distinctions everywhere per- 
 vade the jurisprudence of continental Europe. 
 
 § 508. It will be at once seen, that the executor 
 under the common law in many respects corresponds 
 with the testamentary heir of the civil law ; and that 
 the administrator in many respects corresponds with 
 the heir by intestacy. The principal distinction be- 
 tween them, which is here important to be considered, 
 is, that executors and administrators have no right 
 except to the personal estate of the deceased ; whereas 
 the Roman heir was entitled to administer both the 
 real estate and personal estate ; and all the assets were 
 treated as of the same nature, without any distinction 
 of equitable assets, or of legal assets.^ 
 
 § 509. From what has already been said, the heir, 
 whether testamentary, or by intestacy, of immovable 
 property, can take only according to the Lex loci rci ; 
 or, in other words, he is not admissible as heir, so as to 
 administer the estate in any foreign country, unless he 
 is duly f|ualified according to the principles, rules, and 
 forms of the local law.^ In this respect, he does not 
 
 1 1 Domat, B. 1, tit. 1, § 4, n. 3, 4, p. 593. 
 
 2 1 Brown, Civil and Adm. Law,^ 344, note. 
 
 3 See 2 Karaes, Eq. B. 3, ch. 8, ^ 3, p. 332 ; Vattel,B. 2, cli. 8, ^ 109, 
 
 72*
 
 858 CONFLICT OF LAWS. [CH. XIII. 
 
 differ, either in regard to rights, or to responsibilities, 
 from an heir or devisee, chargeable at the common law, 
 or by statute, with the bond debts of his ancestor or 
 testator. It is for the same reason, that a power to sell 
 immovable property, given to an executor, cannot be 
 executed, unless upon due probate of the will in the 
 place where the property is situate, and showing that 
 it may be lawfully done by the Lex loci rei sitce} And 
 if the party claims, not under a power, but as a devisee, 
 in trust to sell it for the payment of debts, it is also ne- 
 cessary to have a like probate of the will. But it is 
 not necessary, in the latter case, to take out letters of 
 administration, although the devise be in trust to the 
 party by the description of executor ; for in such case 
 he takes as devisee and not as executor ; and his title 
 is under the will, and not under the letters testament- 
 ary.2 
 
 § 510. But in regard to movable estate a like rule 
 does not necessarily prevail in foreign countries, go- 
 verned by a jurisprudence which is drawn from, or 
 modelled upon, the civil law; for movables being 
 treated as having no situs, and to be governed by 
 the law of the domicil of the testator or intestate, the 
 title of the heir, taking its effect directly from that law, 
 is, or at least may, consistently, be held to carry the 
 right to such property, wherever it may be locally 
 situated, in the same manner as the title would, or might 
 pass, by an assignment by the owner by an act inter 
 vivos? 
 
 no, 111 ; 1 Boullenois, Obserr. 17, p. 242 ; Id. Pr. G6n. 37, p. 9; Doe 
 dem. Lewis v. McFarland, 9 Cranch, 151. 
 
 1 Wells V. Cowper, 2 Hamm. R. 124. 
 
 2 Doe dem. Lewis v. McFarland, 9 Cranch, 151. 
 
 3 2 Kames, Equity, B. 3, ch. 8, ^ 4.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 859 
 
 § 511. Lord Karnes seems to take a distinction be- 
 tween the case of a testamentary heir and that of an 
 heir by intestacy, asserting that the nomination of an 
 executor (hares de mohiUhus, or hccres Jidticiartus^) by 
 the testator in his testament, as to his movables, is ef- 
 fectual all the world over, jure gentium, and will be sus- 
 tained in Scotland ; whereas letters of administration in 
 a foreign country are strictly territorial, and, when 
 granted in a foreign country, arc not recognized in 
 Scotland, unless they are confirmed there by a proper 
 judicial proceeding.^ It may be so ; but Erskine lays 
 it down as clear law, that in Scotland neither executors 
 nor administrators, foreign or domestic, are entitled to 
 administer the estate of the deceased, until they have 
 been duly confirmed by the competent Judge.^ What, 
 perhaps. Lord Kames meant to say, was, that the title 
 of executor was a good title, jure gentium, and when it 
 was established in the manner, and by the process pre- 
 scribed by the law of the place where it was sought to 
 be exercised, it ought to be held of universal obligation. 
 And so it probably is in all civilized nations, except 
 such, (if any such there now are,) as adopt the Droit 
 d'aubcdnc, and confiscate the movable property of all 
 foreigners dying, and leaving such property within 
 their territories. 
 
 § 512. In regard to the title of executors and ad- 
 ministrators, derived from a grant of administration in 
 the country of the domicil of the deceased, it is to be 
 considered that that title cannot, de jure, extend, as a 
 
 1 Ersk. Inst. B. 3, tit. 9, {> 2, 26. 
 
 2 2 Kames, Equity, B. 3, ch. 8, ^ 3 ; Id. ^ 4, p. 347, 348. 
 
 3 Ersk. Inst. B. 1, tit. 9, § 27, 29. See Robertson on Succession, 
 p. 263 to p. 273.
 
 860 CONFLICT OF LAWS. [CH. XIII. 
 
 matter of riglit, beyond the territory of the government 
 which grants it, and the movable property therein. As 
 to movable property, situated in foreign countries, the 
 title, if acknowledged at all, is acknowledged e.v comi- 
 tcde ; and of course it is subject to be controlled or mo- 
 dified, as every nation may think proper, with reference 
 to its own institutions, and its own policy, and the 
 rights of its own subjects. And here the rule, to which 
 reference has been so often made, applies with great 
 strength, that no nation is under any obligation to en- 
 force foreign laws, prejudicial to its own rights, or to 
 those of its own subjects. Persons, domiciled and 
 dying in one country, are often deeply indebted to 
 foreign creditors, living in other countries, where there 
 are personal assets of the deceased. In such cases it 
 would be a great hardship upon such creditors to allow 
 the original executor or administrator to withdraw 
 those funds from the foreign country, without the pay- 
 ment of such debts, and thus to leave the creditors to 
 seek their remedy in the domicil of the original execu- 
 tor or administrator, and perhaps there to meet with 
 obstructions and inequalities in the enforcement of 
 their own rights from the peculiarities of the local law. 
 § 513. It has hence become a general doctrine of the 
 common law, recognized both in England and America, 
 that no suit can be brought or maintained by any exe- 
 cutor or administrator, or against any executor or ad- 
 ministrator, in his official capacity, in the Courts of any 
 other country, except that from which he derives his 
 authority to act in virtue of the probate and letters of 
 administration there granted to him.^ But if he de- 
 
 1 Bond V. Graham, 1 Hare, R. 482 ; Silver v. Stein, 9 Eng. Law and 
 Eq. R. 216; Vermilya v. Beatty, 6 Barbour, 431 ; Smith v. Webb, 1 
 Barbour, 230.
 
 CH. xiil] foreign administrations. 861 
 
 sires to maintain any suit in any foreign country, 
 he must obtain new letters of administration, and 
 give new security according to the general rules 
 of law prescribed in that country, before the suit is 
 brought.^ So, on the other hand, if a creditor wishes 
 
 1 Preston v. Ld. Melville, 8 Clark & Fin. 1, 12; Whyte v. Rose, 3 
 Adolp. & Ell. New R, 498, 507 ; Spratt v. Harris, 4 Hagg. Eccles. Rep. 
 403 ; Price v. Dewhurst, 4 Mylne & Craig, 76. The authorities to this 
 point are now exceedingly numerous and entirely conclusive. See Lee v. 
 Moore, Palmer R. 163 ; Tourton v. Flower, 3 P. Will. 369, 370 ; Law- 
 rence V. Lawrence, 3 Barb. Ch. R. 71 ; Thorne v. Watkins, 2 Yes. 35 ; 
 Atty. Gen. v. Cockrell, 1 Price, R. 179; Burn v. Cole, Ambler, R. 416 ; 
 Lowe V. Fairlie, 2 Madd. R. 101; 1 Hagg. Eccl. R. 93, 239 ; Mitford's 
 Plead. 177 (4th edit.) ; Fenwick v. Sears, 1 Cranch, 259 ; Dixon's Exe- 
 cutors V. Ramsay's 'Executors, 3 Cranch, 319, 323; Kerr v. Moon, 9 
 Wheaton, R. 565; Armstrong v. Lear, 12 Wheaton, R. 169 ; Thompson 
 V. Wilson, 2 N. Hamp. R. 291 ; Dickinson's Administrator v. McCrow, 4 
 Randolph, R. 158; Glenn v. Smith, 2 Gill & Johns. R. 493; Stearns v. 
 Burnham, 5 Greenleaf, R. 261 ; Goodwin v. Jones, 3 Mass. R. 514 ; Bor- 
 den V. Borden, 5 Mass. R. 67; Stevens v. Gaylord, 11 Mass. R. 256; 
 Langdon v. Potter, 11 Mass. R. 313 ; Dangerfield v. Thurston, 20 Martin, 
 E. 232 ; Riley v. Riley, 3 Day, Conn. Cas. 74; Champlin v. Tilley, Id. 
 303 ; Trdcothick v. Austin, 4 Mason, R. 16, 32 ; Ex parte Picquet, 5 Pick. 
 65; Holmes v. Remsen, 20 Johns. R. 229, 265 ; Smith, Administrator v. 
 The Union Bank of Georgetown, 5 Peters, R. 518 ; Campbell v. Tousey, 7 
 Cowen, R. 64 ; Logan v. Fairlie, 2 Sim. & Stu. 285 ; Alty v. Bouwens, 4 
 Mees. & Welsh. 171, 192, 193 ; Tyler v. Bell, 1 Keen, R. 826, 829 ; S. C. 
 2 Mylne & Craig, 89, 109. On this occasion Lord Cottenham said : 
 " That an estate cannot be administered in the absence of a personal re- 
 presentative, and that such personal representative must obtain his right to 
 represent the estate from the ecclesiastical court in this country, has, I be- 
 lieve, never before been doubted. The cases of Tourton v. Flower, (3 P. 
 Wms. 369) ; Atkins v. Smith, (2 Atk. 63) ; Swift v. Swift, (1 Ball & 
 B. 326) ; Attorney-General v. Cockerill, (1 Price, 165); Lowe v. Fairlie, 
 (2 Madd. 101) ; Logan v. Fairlie, (2 Sim. & Stu. 284) ; all proceed upon 
 this, that the Courts in this country, for the security of property, will not 
 administer the property of a person deceased, in the absence of a person 
 authorized to represent the estate ; and that they look only to the judgment 
 of the ecclesiastical courts in this country, in granting probate or letters of 
 administration, to ascertain, who are so authorized; and it is immaterial 
 what ecclesiastical court in this country, has granted probate, or letters of 
 administration, provided the state of the property was such as to give it
 
 862 CONFLICT OF LAWS. [CH. XIII. 
 
 a suit to be brought in any foreign country, in order to 
 reach the effects of a deceased testator or intestate, 
 situated therein, it will be necessary, that letters of ad- 
 ministration should be there taken out in due form 
 according to the local law, before the suit can be main- 
 tained ; for the executor or administrator appointed in 
 another country is not suable there, and has no positive 
 right to or authority over those assets, neither is he 
 responsible therefor. The right of a foreign executor or 
 administrator to take out such new administration is 
 usually admitted, as a matter of course, unless some 
 special reason intervene to vary or control it ; and the 
 new administration is treated as merely ancillary or 
 auxiliary to the original foreign administration, so far 
 as regards the collection of the effects and the proper 
 distribution of them.^ Still, however, the new adminis- 
 tration is made subservient to the rights of creditors, 
 legatees, and distributees, who are resident within the 
 country where it is granted ; and the residuum is trans- 
 missible to the foreign country only, when a final ac- 
 count has been settled in the proper tribunal where the 
 new administration is granted, upon the equitable prin- 
 
 jurisdiction." But see Anderson v. Gaunter, 2 Mylne & K. 763, which 
 seems not a sound authority. Lord Cottenham, in Tyler v. Bell, 2 IMylne 
 & Craig, 110, manifestly disapproved of it. 3 Burge, Comm. on Col. and 
 For. Law, Pt. 2, eh. 23, ^ 5, p. 1010, 1011, 1012. Mr. Ch. Walworth, 
 in McNamara v. Dwyer, 7 Paige, 236, 241, held, that although a foreign 
 administrator could not sue, he might be sued in another state, for an ac- 
 count of the assets received under the foreign administration. Can such a 
 distinction be maintained? — The Supreme Court of the United States, in 
 Vaughan v. Norlhup, 15 Peters, decided against it. — S. P. Bond v. Gra- 
 ham, 1 Hare, R. 482 ; Price v. Dewhurst, 4 Mylne & Craig, 76, 80. See 
 Preston v. Lord Melville, 8 Clark & Finnell. 12, 14 ; Vermilya v. Beatt.y, 
 6 Barbour, 432. 
 
 1 Harvey v. Richards, 1 Mason, R. 381 ; Stevens v. Gaylord, 11 Mass- 
 R. 256 ; Case of Miller's Estate, 3 Rawle, R. 312.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 863 
 
 ciples adopted by its own law, in the application and 
 distribution of the assets found there.^ 
 
 1 Preston v. Lord Melville, 8 Clark & Finnell. 12, 14. — See Harvey 
 V. Richards, 1 Mason, R. 381 ; Dawes v. Boylston, 9 Mass. R. 337 ; Se- 
 lectmen of Boston V. Boylston, 2 Mass. R. 318, 384 ; Richards v. Dutch, 8 
 Mass. R. 506 ; Dawes v. Head, 3 Pick. R. 128 ; Hooker v. Olmstead, 6 
 Pick. R. 481 ; Davis v. Estey, 8 Pick. R. 475 ; Jennison v. Hapgood, 10 
 Pick. R. 77; Stevens v. Gaylord, 11 Mass. R. 256; Case of Miller's Es- 
 tate, 3 Rawle, 312; Gravillon v. Richards, Ex'or, 13 Louis. R. 293. 
 Many complicated questions may grow out of original and ancillary ad- 
 ministrations, some of which have been stated in the cases of Harvey v. 
 Richards, 1 Mason, R. 381, and Dawes v. Head, 3 Pick. R. 128. The 
 following extract, from the opinion of Mr. Chief Justice Parker, in the 
 latter case, deserves an attentive perusal. The question there arose, how 
 assets under an ancillary administration were to be disposed of in cases of 
 insolvency, and of debts due to creditors belonging to the same country 
 as the deceased debtor. The Chief Justice, after disposing of these par- 
 ticulars, said ; " Thus this action is determined without touching the 
 questions upon which it was supposed it would turn, which are of a novel 
 and delicate nature, and though often glanced at, do not appear to have 
 been decided, either in this or any other State of the Union. We wish to 
 avoid any thing which may be construed into a conclusive adjudication, 
 and yet are of opinion that it will be useful to throw out for consideration 
 the results of our reasonings upon this subject. If the technical difTiculties, 
 upon which this cause has been decided, had not occurred, but the estate 
 had been rendered insolvent here, and a decree of distribution for a pro- 
 portion had been issued, or if the debt of Lenox and Sheafe had been as- 
 certained by a judgment, and the pleadings to a suit on the bond had been 
 the same in that case as now, the question would be, whether the funds 
 collected here by an ancillary administration, should be appropriated to 
 the payment of such debts, as might be regularly proved here, notwith- 
 standing it was made to appear, that the whole estate was insufficient to 
 pay all the debts, and that the effects here were wanted by the executor 
 abroad, to enable him duly to administer the estate. It has been contend- 
 ed, that this should be done, because the administrator has given bond here 
 in the same manner as if this were the original administration, and because 
 the statute, which authorizes this administration, requires, that the Judge 
 of Probate shall settle the estate in the same way and manner as he 
 would, if the original will had been proved here. With respect to the 
 bond, it will be saved by a faithful administration of the estate according to 
 law ; and with respect to the settlement by the Judge of Probate, this 
 must be understood to authorize him to require the administrator to ac- 
 count, and that the due course of proceedings in the probate office shall be
 
 864 CONFLICT OF LAWS. [CH. XIII. 
 
 § 513 f^. In England "it is well established that, in 
 the case of a British subject dying intestate in the 
 colonies or in foreign countries, a prerogative adminis- 
 tration extends to all the personal property of the in- 
 testate, wherever situate at the time of his death, 
 whether in Great Britain, or in the colonies, or in any 
 country abroad : and, indeed, from the late case of 
 Scarth v. Bishop of London, it appears that, where the 
 intestate dies abroad, not having goods in divers dio- 
 ceses in England, but only in the diocese of London, 
 administration granted to such intestate by the Con- 
 sistory Court of the Bishop of London will be equally 
 effectual."^ How far this doctrine is intended to be 
 
 observed. It certainly cannot be construed to mean, that in all cases a 
 final settlement of the estate shall take place here ; if it did, then, if there 
 were no debts here, and none to claim as legatees or next of kin, it would 
 be necessary for all such to prove their right and receive their distributive 
 shares here, notwithstanding the settlennent must in such case be made 
 according to the laws of the country where the deceased had his domicil. 
 But we think in such case it would be very clear, that the assets collected 
 here should be remitted to the foreign executor or administrator ; for it 
 seems to be a well-settled principle, that the distribution is to be made 
 according to the laws of the country where the deceased was domiciled ; 
 and if any part is to be retained for distribution here, it will be only by 
 virtue of some exception to this general rule, or because the parties inte- 
 rested seek their remedy here ; in which case it might be within the legal 
 discretion of the court here to cause distribution, or to remit, according to 
 the circumstances and condition of the estate. An exception to the gene- 
 ral rule grows out of the duty of every government and its courts to pro- 
 tect its own citizens in the enjoyment of their property ,and the recovery 
 of their debts, so far as this may be done without violating the equal 
 rights of creditors living in a foreign country. In relation to the effects 
 found within our jurisdiction and collected by the aid of our laws, a regard 
 to the rights and interests of our citizens requires, that those effects should 
 be made answerable for debts due to them, in a just proportion to the 
 
 I Whyte V. Rose, 3 Adolp. & Ell. (New Series) 498, 507 ; Scarth v. 
 Bishop of London, 1 Hagg. Eccles. R. 625.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 865 
 
 carried is not perhaps very clearly defined ; and cer- 
 tainly, if carried fully out, it may materially impair the 
 
 whole estate of the deceased, and all the claims upon it, whatever they 
 may be. In the several cases which have come before this Court, where 
 the legal character and effects of an ancillary administration have been 
 considefed, the intimations have been strong, that the administrator here 
 shall be held to pay the debts due to our citizens. The cases, Richards 
 V. Dutch ; Dawes, Judge, &c. v. Boylston ; Selectmen of Boston v. Boyl- 
 ston ; and Stevens v. Gaylord, are of this character. In all these cases, 
 however, we must suppose the Court had reference to a solvent estate, 
 and in such case there seems to be no question of the correctness of the 
 principle ; for it would be but an idle show of courtesy to order the pro- 
 ceeds of an estate to be sent to a foreign country, the province of Bengal 
 for instance, and oblige our citizens to go or send there for their debts, 
 when no possible prejudice could arise to the estate, or those interested in 
 it, by causing them to be paid here ; and possibly the same remark may 
 be applicable to legacies payable to legatees living here, unless the cir- 
 cumstances of the estate should require the funds to be sent abroad. 
 Whether citizens of other States claiming payment of their debts of the 
 administrator here, are to be put upon the same footing with citizens of 
 Massachusetts, by virtue of the privileges and immunities secured to them 
 by the Constitution of the United States, is a point which we do not now 
 decide. But without doubt the courts of the United States, having full 
 equity powers, would enforce payment upon the principles above stated, 
 where there is no suggestion of insolvency of the estate. There would 
 be no doubt, we think, that payment of debts by the administrator here, 
 after sufficient proof, that they were due, and an allowance of his account 
 therefor by the Probate Court with proper notice, would be faithful admi- 
 nistration according to the condition of his bond, and would be a proper 
 way of accounting to the principal administrator abroad. In regard to 
 effects thus collected within our jurisdiction, belonging to an insolvent 
 estate of a deceased person having his domicil abroad, the question may 
 be more difficult. We cannot think, however, that in any civilized coun- 
 try, advantage ought to betaken of the accidental circumstance of pro- 
 perty being found within its territory, which may be reduced to possession 
 by the aid of its courts and laws, to sequester the whole for the use of its 
 own subjects or citizens, where it shall be known, that all the estate and 
 effects of the deceased are insufficient to pay his just debts. Such a doc- 
 trine would be derogatory to the character of any government. Under 
 the English bankrupt system, foreigners as well as subjects may prove 
 their debts and share in the distribution. Without doubt, in other foreign 
 countries, where there is a cessio bonorum, or other process relating to 
 
 CONFL. 73
 
 S66 CONFLICT OF LAWS. [CH. XIIL 
 
 general doctrine as to the necessity of local administra- 
 tions, as well as trench upon the rights of foreign credit- 
 
 bankrupts' estates, the same just principle is adopted. It was so under 
 our bankrupt law, while that was in force, and no reason can be sug- 
 gested why so honest and just a principle should not be applied in the 
 case of insolvent estates of deceased persons. It is always practised upon 
 in regard to persons dying within our jurisdiction, having had their domi- 
 cil here ; that is, creditors of all countries have the same rights as our 
 own citizens, to file their claims and share in the distribution. There 
 cannot be, then, a right in ahy one or more of our citizens, who may hap- 
 pen to be creditors, to seize the whole of the effects which may be found 
 here, or claim an appropriation of them to the payment of their debts, in 
 exclusion of foreign creditors. It is said this is no more than what may 
 be done by virtue of our attachment law, in regard to the property of a living 
 debtor who is insolvent. But the justness of that law is very question- 
 able, and its application ought not to be extended to cases, by analogy, 
 which do not come within its express provisions. What then is to be 
 done with the effects collected here belonging to an insolvent estate in a 
 foreign country 1 Shall they be sent home in order to be appropriated ac- 
 cording to the laws of that country 1 This would often work great injustice 
 and always great inconvenience to our own citizens, whose debts might not 
 be large enough to bear the expense of proving and collecting them abroad ; 
 and in countries where there is no provision for an equal distribution, the 
 pursuit of them might be wholly fruitless. As in Great Britain, our citi- 
 zens, whose debts would generally be upon simple contract, such as bills of 
 exchange, promissory notes, accounts, &c., would be postponed to credit- 
 ors by judgment, bond, &c., and even to other debts upon simple contract 
 which might be preferred by the executor or administrator. It would seem 
 too great a stretch of courtesy to require the effects to be sent home and 
 our citizens to pursue them under such disadvantages. What then shall be 
 done to avoid, on the one hand, the injustice of taking the whole funds for 
 the use of our citizens to the prejudice of foreigners, when the estate is 
 insolvent, and on the other, the equal injustice and greater inconvenience 
 of compelling our own citizens to seek satisfaction of their debts in distant 
 countries'? The proper course would undoubtedly be, to retain the funds 
 here for a pro rata distribution according to the laws of our State among 
 the citizens thereof, having regard to all the assets, either in the hands of 
 the principal administrator, or of the administrator here, and having regard 
 also to .^the whole of the debts, which by the laws of either country are 
 payable out of those assets, disregarding any fanciful preference which 
 may be given to one species of debt over another, considering the funds 
 here as applicable to the payment of the just proportion due to our own
 
 CH. xiil] foreign administrations. 867 
 
 ors and foreign governments. Is it meant to be said, 
 that if personal property is in a foreign country at the 
 
 citizens ; and, if there be any residue, it should be remitted to the prin- 
 cipnl administrator, to be dealt with according to the laws of his own 
 country, the subjects of that country, if there be any injustice or inequality 
 in the payment or distribution, being bound to submit to its laws. The 
 only objection which can be made to this mode of adjusting an ancillary 
 administration upon an insolvent estate, is the difficulty and delay of exe- 
 cuting it. The difficulty would not be greater than in settling many other 
 complicated affairs, where many persons have interests of different kinds 
 in the same funds. The powers of a court of Chancery are competent to 
 embrace and settle all cases of that nature, even if the powers of the 
 Court of Probate are not sufficiently extensive ; which however is not 
 certain. The administrator here should be held to show the condition of 
 the estate abroad, the amount of property subject to debts, and the amount 
 of debts, and a distribution could be made upon perfectly fair and equitable 
 principles. The delay would undoubtedly be considerable, but this would 
 not be so great an evil as either sending our citizens abroad upon a forlorn 
 hope to see the fragments of an insolvent estate, or paying the whole of 
 their debts out of the property without regard to the claims of foreign 
 creditors. And if the Probate Court has not sufficient power to make 
 such an equitable adjustment, a bill in equity, in which the administrator 
 here should be the principal respondent, would probably produce the 
 desired result, and then time and opportunity could be given to make 
 known the whole condition of the estate, and all persons interested might 
 be heard before any final decree ; in the mean time the administrator 
 could be restrained from remitting the funds until such decree should be 
 passed." Dawes v. Head, 3 Pick. R. 143 to 148. 
 
 The following extracts are made from the opinion of the Court in Har- 
 vey V. Richards. " One objection urged against the exercise of the author- 
 ity of the Court is, that, as national comity requires the distribution of 
 the property according to the law of the domicil, the same comity requires 
 that the distribution should be made in the same place. This consequence, 
 however, is not admitted ; and it has no necessary connection with the 
 preceding proposition. The rule, that distribution shall be according to 
 the law of the domicil of the deceased, is not founded merely upon the 
 notion, that movables have no situs, and therefore follow the person of the 
 proprietor, even interpreting that maxim in its true sense, that personal 
 property is subject to that law which governs the person of the owner. 
 Nor is it, perhaps, founded upon the presumed intention of the deceased, 
 that all his property should be distributed according to the law of the 
 place of his domicil, with which he is supposed to be best acquainted and
 
 868 CONFLICT OF LAWS. [CH. XIIL 
 
 death of the intestate, it may be removed from thence, 
 and administered under a prerogative administration in 
 
 satisfied ; for the rule will prevail even against the express intention of the 
 deceased, unless the mode in which that intention is expressed would give 
 it legal validity as a will. It seems, indeed, to have had its origin in a 
 more enlarged policy, founded upon the general convenience and necessi- 
 ties of mankind ; and in this view the maxim above stated flows from, 
 rather than guides the application of that policy. The only reason, why 
 any nation gives effect to foreign laws within its own territory, is the end- 
 less embarrassment which would otherwise be introduced in its own inter- 
 course with foreign nations. The rights of its own citizens would be 
 materially impaired, and, in many instances, totally extinguished, by a 
 refusal to recognize and sustain the doctrines of foreign law. The case 
 now under consideration is an illustration of the perfect justice and wis- 
 dom of this general practice of nations. A person may have movable 
 property and debts in various countries, each of which may have a different 
 system of succession. If the law rei sita; were generally to prevail, it 
 would be utterly impossible for any such person to know in what manner 
 his property would be distributed at his death, not only from the uncer- 
 tainty of its situation from its own transitory nature, but from the imprac- 
 ticability of knowing with minute accuracy, the law of succession of every 
 country, in which it might then happen to be. He would be under the 
 same embarrassment, if he attempted to dispose of his property by a testa- 
 ment; for he could never foresee, where it would be at his death. Nay 
 more, it would be in the power of his debtor, by a mere change of his 
 own domicil, to destroy the best digested will; and the accident of a 
 moment might destroy all the anxious provisions of an excellent parent for 
 his whole family. Nor is this all. The nation itself, to which the 
 deceased belonged, might be seriously affected by the loss of his wealth, 
 from a momentary absence, although his true home was in the centre of 
 its own territory. These are great and serious evils, pervading every 
 class of the community, and equally affecting every civilized nation. But 
 in a maritime nation, depending upon its commerce for its glory and its 
 revenue, the mischief would be incalculable. The common and spontane- 
 ous consent of nations, therefore, established this rule from the noblest 
 policy, the promotion of general convenience and happiness, and the 
 avoiding of distressing difRculties, equally subversive of the public safety 
 and private enterprise of all. It flowed from the same spirit, that dictated 
 judicial obedience to the foreign commissions of the admiralty. Sub 
 mutuae vicissitudinis obtentu, damus petimusque vicissim, is the language 
 of the civilized world on this subject. There can be no pretence, that the 
 same general inconvenience or embarrassment attends the distribution of
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 869 
 
 England, or administered in England Avithout such a 
 removal, and in either case be obligatory upon the 
 
 foreign effects according to the foreign law by the tribunals of the country, 
 where they are situate. Cases have been already stated, in which great 
 inconvenience would attend the establishment of any rule, excluding such 
 distribution. It may be admitted also, that there are cases, in which it 
 would be highly convenient to decline the jurisdiction and remit the parties 
 to the forum domicilii. Where there are no creditors here, and no heirs 
 or legatees here, but all are resident abroad, there can be no doubt, that a 
 court of equity would direct the remittance of the property upon the ap- 
 plication of any competent party. -The correct result of these consider- 
 ations upon principle would seem to be, that whether the Court here ought 
 to decree distribution or remit the property abroad, is a matter, not of 
 jurisdiction, but of judicial discretion, depending upon the particular cir- 
 cumstances of each case ; that there ought to be no universal rule upon 
 this subject ; but that every nation is bound to lend the aid of its own tri- 
 bunals for the purpose of enforcing the rights of all persons, having a title 
 to the fund, when such interference will not be productive of injustice or 
 inconvenience, or conflicling equities. It is farther objected, that a rule, 
 which is to depend for its application upon the particular circumstances of 
 each case, is too uncertain to be considered a safe guide for general prac- 
 tice. But this objection affords no solid ground for declining the jurisdic- 
 tion, since there are an infinite variety of cases, in which no general rule 
 has been or can be laid down, as to legal or equitable relief, in the ordinary 
 controversies before judicial tribunals. In many of these, the difficulty is 
 intrinsic in the subject-matter ; and where a general rule cannot easily be 
 extracted, each case must, and indeed ought to, rest on its own particular cir- 
 cumstances. The uncertainly, therefore, is neither more nor less than be- 
 longs to many other complicated transactions of human life, where the law 
 administers relief ex eeque et bono. Another objection, addressed more 
 pointedly to a class of cases like the present, is the difficulty of settling 
 the accounts of the estate, ascertaining the assets, what debts are sperate, 
 what desperate, and, finally ascertaining what is the residue to be distri- 
 buted, and who are the next of kin entitled to share. And to add to our 
 embarrassment, we are told, that we cannot compel the foreign executor 
 to render any accounts in our courts. I agree at once, that this cannot be 
 done, if he is not here; but I utterly deny, that the administrator here 
 cannot be compelled to account to any competent Court for all the assets, 
 which he has received under the authority of our laws. And if the foreign 
 executor chooses to lie by, and refuses to render any account of the fo- 
 reign funds in his hands, so far as to enable the Court here to ascertain 
 whether the funds are wanted abroad for the payment of debts or legacies, 
 73*
 
 870 CONFLICT OF LAWS. [CH. XIII. 
 
 foreign government, and pass a perfect title to the pro- 
 perty ? 
 
 § 514. But although an executor or administrator, 
 appointed in one State, is not in virtue of such appoint- 
 ment entitled to sue, nor is he liable to be sued, in his 
 
 or not, he has no right to complain, if the Court refuses to remit the 
 assets, and distributes them among those who may legally claim them. 
 And as to settling the estate, or ascertaining who are the distributees, 
 there is no more difficulty than often falls to our lot in many cases, arising 
 under the ordinary probate proceedings. All these objections are, in fact, 
 reasons for declining to exercise the jurisdiction in particular cases, rather 
 than reasons against the existence of the jurisdiction itself. It seems, 
 indeed, admitted by the learned counsel for the defendant, that, if there be 
 no foreign administration, it would be the duty of the Court to grant relief 
 upon an administration taken here. Yet every objection, already urged, 
 would apply with as much force in that, as in the present case. The 
 property would be to be distributed according to the foreign law of the 
 deceased's domicil. The same difficulty would exist, as to ascertaining 
 the debts and legacies, and the assets and distributees entitled to share. 
 But it is said in the case now put, the administration here would be the 
 principal administration, whereas in the case at bar, it is only an auxiliary 
 or ancillary administration. I have no objection to the use of the terms 
 principal and auxiliary, as indicating a distinction in fact as to the objects 
 of the different administrations ; but we should guard ourselves against 
 the conclusion, that therefore there is a distinction in law as to the rights 
 of parties. There is no magic in words. Each of these administrations 
 may be properly considered as a principal one, with reference to the limits 
 of its exclusive authority ; and each might, under circumstances, justly be 
 deemed an auxiliary administration. If the bulk of the property, and all 
 the heirs and legatees and creditors were here, and the foreign adminis- 
 tration were only to recover a few inconsiderable claims, that would 
 most correctly be denominated a mere auxiliary administration for the 
 beneficial use of the parties here, although the domicil of the testator 
 were abroad. The converse case would of course produce an opposite 
 result. But I am yet to learn, what possible difference it can make in 
 the rights of parties before the Court, whether the administration be a 
 principal or an auxiliary administration. They must stand upon the 
 authority of the law to administer or deny relief, under all the circum- 
 stances of their case, and not upon a mere technical distinction of very 
 recent origin." Harvey v. Richards, 1 Mason, R. 381. See also Gravil- 
 lon V. Richard's Ex'or, 13 Louis, R. 293.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 871 
 
 official capacity in any other state or country ; yet 
 there are many other questions, which may require con- 
 sideration, and in which a conflict of laws may arise in 
 different countries. In the first place, let us suppose, 
 that an executor or administrator should go into a fo- 
 reign country, and, without there taking out new let- 
 ters of administration, should there collect property, 
 effects, and debts of his testator or intestate, found or 
 due there ; the question might arise, whether he would 
 not thereby, to the extent of his receipt and collection 
 of such assets, be liable to be sued in the courts of that 
 country by any creditor there. Upon general prin- 
 ciples it would seem, that he would so be liable ; and, 
 upon the principles of the common law, he would be 
 liable as an executor de son tort, or person intermeddling 
 with such assets without any rightful authority, derived 
 from the local authorities under a new grant of admi- 
 nistration there. For it would not lie in his mouth to 
 deny, that he had rightfully received such assets ; and 
 he could not rightfully receive them except as execu- 
 tor.^ It would be quite a different question, whether 
 the payment of any such debts, or the delivery of any 
 such property or effects to him by the debtors, or by 
 other persons, owing or possessing the same, would be 
 a valid payment or discharge of such persons therefrom, 
 or would confer any title to the same upon such execu- 
 tor or administrator, at least against any executor or 
 administrator, subsequently appointed in such foreign 
 state or country, and contesting the right or title." 
 Upon that question, there is much room for discussion 
 
 ^ Campbell v. Tousey, 7 Cowen, R. 64. 
 
 - Preston v. Lord Melville, 8 Clark & Fin. 1, 12, 14.
 
 872 CONFLICT OF LAWS. [CH. XIIL 
 
 and doubt, notwithstanding what has been asserted in 
 some of the tribunals acting under the common law.^ 
 For it is exceedingly clear, that the probate grant of 
 letters testamentary, or of letters of administration, in 
 one country, give authority to collect the assets of the 
 testator or intestate only in that country, and do not 
 extend to the collection of assets in foreign countries ; 
 for that would be to assume an extra-territorial jurisdic- 
 tion or authority, and to usurp the functions of the 
 foreign local tribunals in those matters.^ It is no 
 answer to the objection to say, that the effects of the 
 testator or intestate are assets, wherever they are situ- 
 ated, whether at home or abroad ; and that such effects 
 as are in a foreign country at the time of the death of 
 the testator or intestate, although they remain and are 
 wholly administered there by the executor, are equally 
 
 1 Doolittle V. Lewis, 7 Johns. Ch. R. 45, 49 ; post, ^ 515. 
 
 2 See Pond, Administrator v. Makepeace, 2 Mete. R. 114; Preston v- 
 Lord Melville, 8 Clark & Finnell. 1, 12, 14. See Attorney-General v. 
 Bouwens, 4 Mees. & Welsh. 171, 190, 191, 192. On this occasion Lord 
 Abinger said : " Whatever may have been the origin of. the jurisdiction 
 of the ordinary to grant probate, it is clear, that it is a limited jurisdiction, 
 and can be exercised in respect of those effects only which he would 
 have had himself to administer in case of intestacy, and which must 
 therefore have been so situated as that he could have disposed of them 
 in pios usus. As to the locality of many descriptions of effects, house- 
 hold and movable goods, for instance, there never could be any dispute. 
 But to prevent conflicting jurisdictions between different ordinaries, with 
 respect to choses in action and titles to property, it was established as 
 law, that judgment debts w-ere assets, for the purposes of jurisdiction, 
 where the judgment is recorded ; leases, where the land lies ; specialty 
 debts, where the instrument happens to be ; and simple contract debts, 
 where the debtor resides at the time of the testator's death : and it was 
 also decided, that as bills of exchange and promissory notes do not alter 
 the nature of the simple contract debts, but are merely evidences of title, 
 the debts due on these instruments were assets, where the debtor lived, 
 and not where the instrunaent was found. In truth, with respect to simple 
 contract debts, the only act of administration, that could be performed by
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 873 
 
 assets. Doubtless this is true ; but the question is 
 not, whether they are assets or not ; but who is clothed 
 with authority to administer them ; and this must be 
 decided by the local jurisdiction where they are situat- 
 ed ; for the original administration has no extra-terri- 
 torial operation.^ 
 
 the ordinary, would be to recover or to receive payment of the debt, and 
 thai would be done by him, within whose jurisdiction the debtor happened 
 to be. These distinctions being well established, it seems to follow, that 
 no ordinary in England could perform any act of administration within 
 his diocese, with respect to debts due from persons resident abroad, or 
 with respect to shares or interest in foreign funds payable abroad, and in- 
 capable of being transferred here ; and therefore no duty would be paya- 
 ble on the probate or letters of administration in respect of such eifects. 
 But, on the other hand, it is clear, that the ordinary could administer 
 all chattels within his jurisdiction ; and if an instrument is created of a 
 chattel nature, capable of being transferred by acts done here, and sold 
 for money here, there is no reason why the ordinary or his appointee 
 should not administer that species of property. Such an instrument is 
 in effect a salable chattel, and follows the nature of other chattels as to 
 the jurisdiction to grant probate. In this case, assuming that the foreign 
 governments are liable to be sued by the legal holder, there is no conflict 
 of authorities ; for there governments are not locally within the jurisdic- 
 tion, nor can be sued here ; and no act of administration can be performed 
 in this country, except in the diocese where the instruments are, which 
 may be dealt with, and the money received by their sale in this country. 
 Let us suppose the case of a person dying abroad, all whose property in 
 England consists of foreign bills of exchange, payable to order, which bills 
 of exchange are well known to be the subject of commerce, and to be 
 usually sold on the Royal Exchange. The only act of administration, 
 which his administrator could perform here, would be to sell the bills and 
 apply the money to the payment of his debts. In order to make titles to 
 the bills to the vendee, he must have letters of administration ; in order to 
 sue in trover for them, if they are improperly withheld from him, he must 
 have letters of administration, (for even if there were a foreign administra- 
 tion, it is an established rule, that an administration is necessary in the 
 country where the suit is instituted) ; and that these letters of adminis- 
 tration must be stamped with a duty according to the salable value of 
 the bills ; the case of Hunt v. Stevens, is an express authority." See 
 also Doolittle v. Lewis, 7 Johns. Ch. R. 45, 46, 47; Morrell v. Dickey, 
 1 Johns. Ch. R. 153. 
 1 Altor.-Gen. v. Dimond, I Cromp. & Jerv. 356, 370 ; ante, § 513.
 
 874 CONFLICT OF LAWS. [CH. XIII. 
 
 § 514 a. Ill the next place, let us suppose, that an 
 executor or administrator appointed in the State where 
 his testator or intestate died, should go into a foreign 
 country, and should, without taking out new letters of 
 administration, collect assets in such foreign country, 
 and bring them home to the State, from which he had 
 received his original letters testamentary, or letters of 
 administration ; the question might arise, whether, in 
 such a case, he would be liable to account in the courts 
 of the latter State for all the assets which he had so 
 received in the foreign country, in the same way and 
 under the like circumstances, as he would be liable to 
 account for them if he had received them in the home 
 State. In other words, whether they would constitute 
 a part of the home assets which he is bound to admi- 
 nister, and for which he is liable to account under the 
 domestic administration according to the domestic laws. 
 It has been said, that the assets, so received and col- 
 lected, are to be so administered and accounted for, as 
 home assets, by such executor or administrator. And 
 the doctrine laid down in an ancient case is relied on 
 for this purpose ; where it is asserted to have been 
 held by the Court, that " if the executor have goods of 
 the testator in any part of the world, they shall be 
 charged in respect of them ; for many merchants and 
 other men, who have stocks and goods to a great value 
 beyond sea, are indebted here in England ; and God 
 forbid, that those goods should not be liable to their 
 debts ; for otherwise, there would be a great defect in 
 our law." ^ Now this language in its broad import is 
 
 1 Dovvdale's Case, 6 Co. R. 47, 48 ; S. C. Cro. Jac. 55 ; cited and ap- 
 proved also in Evans v. Tatem, 9 Serg. & R. 252, 259.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 875 
 
 certainly unmaintainable in our day ; for it goes to the 
 extent of making a domestic executor or administrator 
 liable for all assets of the testator or intestate, which 
 are locally situate abroad ; although, as we have seen, 
 he has not in virtue of the domestic letters of adminis- 
 tration any authority to collect them, or to compel pay- 
 ment or delivery thereof to himself^ But the circum- 
 stances of the case called for no such doctrine. The 
 case was of a testator who died in Ireland, and the • 
 defendant, who was his executor, collected and admi- 
 nistered in Ireland certain property of the deceased. 
 Afterwards he came to England, and was sued there 
 by a creditor as executor; and the question arose, 
 whether he was liable to the creditor in such suit for 
 the assets collected and received by him in Ireland 
 under the administration there. With reference, there- 
 fore, to the actual facts of the case, the more general 
 question did arise. But according to the doctrine 
 maintained in England in modern times, he was not at 
 all liable to be sued in England, as executor, under let- 
 ters testamentary taken out in Ireland ; and a fortiori 
 not for the assets received and administered in Ireland 
 under that appointment.^ The authority of the case 
 may therefore well be doubted in both of its aspects.^ 
 
 1 Ante, ^ 314. 
 
 ~ Ante, ^ 314 ; post, ^ 515. 
 
 3 " If, after such administration shall have been completed, any surplus 
 should remain, and it shall appear that there are trusts to be performed in 
 Scotland, to which it was devoted by Sir Robert Preston, it will be for 
 the Court of Chancery to consider whether such surplus ought or ought 
 not to be paid to the pursuers, for the purpose of being applied in the per- 
 formance of such trusts ; and in considering that question every attention 
 ought to be paid to the authority under which the pursuers have been 
 appointed trustees, and the consent which led to such appointment. It is 
 premature to decide that point, it being at present unascertained whether
 
 876 CONFLICT OF LAWS. [CH. XIIL 
 
 § 514 1). Some of the American Courts have gone 
 the length of recognizing, to its full extent, the doctrine 
 asserted in this case ; and have held, that a foreign 
 executor or administrator, coming here, having received 
 assets in the foreign country, is liable to be sued here, 
 and to account for such assets, notwithstanding he has 
 taken out no new letters of administration here, nor has 
 the estate been positively settled in the foreign state.' 
 The doctrine asserted in these courts is, that such a fo- 
 reign executor or administrator is chargeable here, as 
 executor, for all the assets which he still retains in his 
 hands, or which he has expended, or disposed of here, 
 unless expended or disposed of here in the due course 
 of administration, whether they were received here 
 or in the foreign country, although he has not taken 
 out any new letters of administration here.^ There 
 is very great difficulty in supporting these decisions 
 to the extent of making the foreign executor or ad- 
 ministrator liable here for assets received by him 
 abroad in his representative character, and brought 
 here by him. If a foreign executor or administrator 
 cannot sue in his representative character in another 
 state for the assets of the deceased situate there, with- 
 out new letters of administration ; because he derives 
 his authority solely from a foreign government, which 
 
 there will be any surplus of the personal estate in this country, or what 
 will be the amount of it, and no declaration of right by the Court of Ses- 
 sion would be binding upon the Court of Cliancery, under whose jurisdic- 
 tion the property in England is placed by the suits which have been insti- 
 tuted." Preston v. Lord Melville, 8 Clark & Fin. 14. 
 
 1 Swearingen's Ex'ors v. Pendleton's Ex'ors, 4 Serg, & R. 389, 392 ; 
 Evans v. Tatem, 9 Serg. & Rawle, 252, 259; Bryan v. McGee, 2 Wash. 
 Cir. R. 337 ; Campbell v. Tousey, 7 Co wen, R. 64. 
 
 2 Ibid.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 877 
 
 has no authority to confer any right upon him, except 
 to collect and receive the assets, found within its own 
 territorial jurisdiction, and to which, therefore, he is 
 properly and directly responsible for the due adminis- 
 tration of the assets, actually collected and received in 
 such foreign country under its exclusive appointment, 
 it is not easy to perceive how he can be suabld in such 
 State for such assets in his hands, received abroad by 
 him under the sanction of the foreign administration, 
 and by the authority of the foreign government, to 
 which he is thus accountable for all such assets. One 
 of the learned Courts, however, which decided the 
 point, seems to have taken it for granted, that a foreign 
 executor or administrator was of course suable here for 
 all assets found in his hands. " If a foreign executor," 
 said the Court, " is liable to be sued here, of which we 
 apprehend there can be no question, he must, from the 
 very nature of the case, prmd facie, be responsible for 
 the assets which are shown to have been in his posses- 
 sion within this State." With great deference, that 
 was the very point to be established by some just 
 reasoning, founded upon the principles of international 
 jurisprudence generally recognized by foreign jurists, 
 or by the uniform established doctrine of the common 
 law on this subject in modern times. It will be found 
 exceedingly difficult to cite any modern authorities at 
 the common law in support of such a doctrine,^ since 
 no authority could be shown which supported it. On 
 
 • In the cases of Swearingen's Ex'ors v. Pendleton's Ex'ors, 4 Serg. & 
 Rawle, 389, 392, and Evans v. Tatem, 9 Serg. & Rawle, 252, 259, the 
 Supreme Court of Pennsylvania contented itself with merely affirming the 
 doctrine in Dowdaie's Case, (G Co. R. 47.) without any general reasoning 
 on the subject. 
 
 CONFL. 74
 
 878 CONFLICT OF LAWS. [CH. XIII. 
 
 the other hand, there are other American authorities 
 ■which indicate a very different doctrine.^ The modern 
 
 1 The very recent case of Fay v. Haven, 3 Metcalf, 109, is directly in 
 point. See Selectmen of Boston v. Boylston, 2 Mass. R. 384 ; Goodwin 
 V. Jones, 3 Mass. R. 514 ; Davis v. Estey, 8 Pick. R. 475 ; Dawes v. Head, 
 3 Pick. R. 128 ; Doolittle v. Lewis, 7 Johns. Ch. R. 45, 47 ; McRae's Ad- 
 ministrators 1'. McRae, 11 Louis. R. 571. — In the case of the Selectmen 
 of Boston V. Boylston, 2 Mass. R. 384, 391, Mr. Justice Sedgwick, in 
 delivering the opinion of the Court, after adverting to the fact, that the 
 testator died in England, and that administration was there granted of his 
 estate to the defendant cum testamento annexo, and that the defendant 
 took out ancillary letters of administration in Massachusetts, where the 
 suit was brought, and in respect whereof he was called upon to account 
 with the plaintiffs for the assets both in England and America, said ; " The 
 Judge of Probate has, in this case, proceeded, and in all similar cases must 
 proceed, according to the powers, which are delegated to him by this 
 statute. He can exercise no other powers. He has granted to the 
 respondent administration on the estate of Thomas Boylston, lying in 
 this government, with the will annexed. All the authority then, given to 
 the administrator, is over the estate lying in this government. ' The Judge 
 is to settle the said estate. What estate? Clearly, I think, the estate 
 lying in this government. And it will neither consist with the intention 
 of the legislature, nor the purposes of justice, because the administrator, 
 with the will annexed, is here, to proceed upon the fiction, that by his 
 relation to the testator, in the same capacity, in England, we ought to 
 consider all the assets possessed by him there, as the estate of the testator 
 lying in this government ; because the estate by the statute subjected to 
 the control of the court of probate, and to be settled by it, was that which 
 was lying here before granting the letters of administration. To that and 
 to that only, do the words, and, as I think, the meaning of the legislature 
 extend. The argument from the inconveniences of admitting the construc- 
 tion, for which the counsel for the appellants have contended, is strong 
 and irresistible. It may reasonably be presumed, that the largest part of 
 the testator's estate lies in the country, where the original administration 
 is granted ; and that there also is the greatest portion of claims upon it. 
 For what purpose of utility is the property to be transported to a distant 
 region, and those to whom it belongs compelled to follow it, for the satis- 
 faction of their demands? The expense and trouble of such a procedure, 
 while vi'holly unnecessary, could not fail to be considerable. Suppose an 
 English merchant of great property and extensive dealings to have been 
 the testator: suppose this property to be principally in England, but por- 
 tions of it to be left in several foreign countries, and that the administrator
 
 CH. xiil] foreign administrations. 879 
 
 English authorities are to the same effect. They fully 
 establish the doctrine, that, if a foreign executor or 
 
 appointed there goes to collect it, and seeks the aid of the foreign govern- 
 ments for that purpose ; and they under pretence of giving this aid, claim 
 an authority of drawing within their jurisdiction all the personal property 
 of the testator, and all those who have demands upon it, or are interested 
 in it. All these governments are independent of each other ; and what is 
 to establish a right of precedence? The commencement of a prosecution t 
 How is this to be known 1 How are the other authorities to be controlled 1 
 If this is to be the construction, who will become bound for the adminis- 
 trator? By what means can the liability of the administrator and his 
 sureties be known? In terms they only guarantee the settlement of the 
 estate lying within the commonwealth ; but in effect, if this construction 
 be admitted, estate lying in every part of the globe. It is, in our opinion, 
 impossible, that such could have been the intention of the legislature. 
 There are innumerable other inconveniences, which might be, but which it 
 is unnecessary should be pointed out." In Goodwin v. Jones, 3 Mass. R. 
 514, 519, 520, Mr. Chief Justice Parsons in delivering the opinion of the 
 Court said : " When any person, an inhabitant of another State, shall die 
 intestate, but leaving real estate within this Commonwealth, if adminis- 
 tration should not be granted by some judge of probate of a county, in 
 which the estate lies, there would be no legal remedy for the creditors of 
 the deceased to avail themselves of his real estate for the payment of the 
 debts due them. Therefore to prevent a failure of justice, administration 
 in such case must be granted by some Probate Court here ; and the ad- 
 ministrator so appointed will, by virtue of his letters of administration and 
 of the laws, also have the administration of all the goods, chattels, rights, 
 and credits of the intestate, which were within the state. And if a fo- 
 reign administrator of that intestate should also have the administration of 
 his personal estate here, there would exist two administrators of the same 
 goods of the same intestate, independent of each other, and deriving their 
 authority from different States, a consequence which cannot be admitted. 
 But the granting of administration here cannot divest the foreign adminis- 
 trator of any rights already vested in him ; and the necessary inference 
 is, that whether administration be, or be not, granted in this State, an 
 administrator appointed in another State cannot legally claim any interest 
 in the goods of his intestate, which are subject to an administration grant- 
 ed in this State. And it is no objection to this reasoning, that debts due to 
 the intestate on simple contract are to be considlered as goods situate 
 where he dies. For if the position be admitted, contrary to the authority 
 of Wentworlh, in his Executor (page 46,) where it is supposed, that such 
 debts are bona notabilia where the debtor lives ; yet the administrator, if
 
 880 CONFLICT OF LAWS. [CH. XIII. 
 
 administrator brings or transmits property here, which 
 he has received under the administration abroad, or if he 
 is personally present, he is not either personally or in 
 
 he recover judgment on such contract in this State, may satisfy it by an 
 extent on lands, which certainly in their disposition are exclusively subject 
 to the control of the laws of the Commonwealth. We have no particular 
 statute relating to foreign administrators ; but the manner, in which an 
 executor of a will proved without the State may execute his trust within, 
 is regulated by the statute of 1785, June 19, c. 12. The executor, or any 
 person interested in any will proved without the Stale, may produce a 
 copy of it, and of the probate under the seal of the foreign court, which 
 proved it, before the judge of probate of any county, where the testator 
 had real or personal estate, whereon the will may operate, and request to 
 have the same filed and recorded, which the judge, after notice and hear- 
 ing all parties, may order to be done : and he may then take bonds of the 
 executor, or may grant administration cum testamento annexo of the testa- 
 tor's estate lying in this government not administered, and may settle the 
 estate, as in cases, where the will has been proved before him. This 
 statute needs no explanation. The executor of a will proved without the 
 State cannot intermeddle with the effects of the testator in the State, but 
 with the assent of a judge of probate, to whom he must first give bond. 
 Neither can an administrator with the will annexed intermeddle, unless he 
 is appointed by some judge within the State, who has authority to settle 
 the whole estate within his jurisdiction. And it would be inconsistent 
 with the manifest intent of the statute to allow an administrator of an 
 intestate, not an inhabitant or resident within the State at his death, an 
 authority derived from a foreign administration, which he could not have 
 under the foreign probate of a will, of which he was the executor." In 
 Doolitlle V. Lewis, 7 Johns. Ch. R. 45, 47, Mr. Chancellor Kent said : 
 " It is well settled, that a party cannot sue or defend in our courts, as exe- 
 cutor or administrator, under the authority of a foreign court of probates. 
 Our Courts take no notice of a foreign administration ; and before we can 
 recognize tiie personal representative of the deceased, in his representative 
 character, he must be clothed with authority derived from our law. Ad- 
 ministration only extends to the assets of the intestate within the State where 
 it was granted ; if it were otherwise the assets might be drawn out of the 
 State, to the great inconvenience of the domestic creditors, and be distriliuted 
 perhaps, on very different terms, according to the laws of another jurisdic- 
 tion. The authorities on this subject were cited by me in the case of 
 Morrell v. Dickey, (1 Johns. Rep. 151,) and I presume there is no dispute 
 about the general rule ; and llie only difliculty lies in the application of it 
 to this particular case."
 
 CH. XIII.] FOREIi^N ADMINISTRATIONS. 881 
 
 his representative capacity, liable to a suit here ; nor is 
 such property liable here to creditors ; but they must 
 resort for satisfliction to the forum of the original ad- 
 ministration.^ So, where property is remitted by a 
 foreign executor to this country to pay legacies, no suit 
 can bo maintained for it, if there is no specific appro- 
 priation of it, without an administration taken out here.- 
 § 515. But, although an executor or administrator is 
 not entitled to maintain a suit in a foreign court, in 
 virtue of his original letters of administration ; yet, it 
 has been said, that, if a debtor chooses voluntarily there 
 to pay him a debt which he may lawfully receive under 
 that administration, the debtor will be discharged.^ 
 This proposition is, or at least may be true to the 
 extent, in which it is thus guardedly laid down and 
 limited. For if an administration should be taken 
 out on a creditor's estate in the country, where both 
 the creditor and debtor resided at the time of his 
 
 1 Currie, Administrator v. Bircham, 1 Dowl. & Ryl. R. 34; Davis u. 
 Estey, 8 Picic. R. 475 ; Attor.-Geii. v. Bouwens, 4 Mees. & VVels. R. 
 171, 191 ; Tyler v. Bell, 1 Keen, R. S2G, 829 ; S. C. 2 Mylne & Craig, 
 89, 109, 110; Attor.-Gen. v. Dimond, 1 Cromp. & Jerv, R. 356, 371 ; 
 Spratt V. Harris, 4 Hagg. Eccl. R. 408 ; Attor.-Gen. v. Hope, 2 Clark & 
 Finnell. R. 84, 90, 92 ; S. C. 8 Bligh, R. 44 ; 1 Cromp. Mees. & Rose. 
 538. But see Dovvdale's case, G Co. R. 47, and Anderson v. Gaunter, 2 
 Mylne & Keen, 703 ; Spratt i\ Harris, 4 Hagg. Eccl. R. 405, 408 ; ante, 
 ^ 513, ^ 514 a. la Scrimshire v. Scrimshire, (2 Hagg. Consist. R. 420,) 
 Sir Edward Simson said ; " If an Englishman makes a will abroad, and 
 makes a foreigner executor, and has no effects in England, and the execu- 
 tor proves the will lawfully abroad, that probate, or sentence of the proper 
 court, establishing the will, as to effects there, of a man domiciled there, 
 would be a bar to a discovery in chancery of effects abroad." 
 
 2 Logan V. Fairlie, 2 Sim. & Stu. R. 284. 
 
 3 The proposition is thus guardedly laid down, in Stevens v. Gaylord, 
 11 Mass. R. 256. But the question may also arise, whether the volun- 
 tary payment of a debt by a domestic debtor in a foreign country lo a fo- 
 reign administrator, when there is no domestic administrator appointed, 
 
 74*
 
 882 CONFLICT OF LAWS. [CH. XIII. 
 
 death, there, inasmuch as a debt is properly due in 
 that country, and properly falls within that adminis- 
 tration, it may be paid voluntarily by the debtor in 
 another country, if he should afterwards change his 
 domicil to that country, or if he should be found there ; 
 and the discharge of the administrator will be held 
 a good discharge everywhere else, although no new 
 administration be taken out ; because the right to 
 receive it primarily attached, where the original admi- 
 nistration was granted. Thus, for example, if an intes- 
 tate should die in Ireland, leaving a bond debt there 
 due by a debtor, residing there at the time of his death, 
 that bond debt would be hona notabilia there, and a pay- 
 ment afterwards by the debtor made in England to such 
 administrator would or might be a good discharge, not- 
 withstanding no administration were taken out in Eng- 
 land.^ 
 
 § 515 a. There is, however, (as has been already 
 stated,^) much reason to doubt, whether the doctrine be 
 
 will be a good discharge of the debtor. Debts are due not only in the 
 domicil of the debtor, but in the domicil of the creditor ; and indeed, 
 unless a particular place of payment is appointed, they are due and may 
 be demanded anywhere. If a debtor be found in the foreign country, 
 where the creditor died, and where an administrator is appointed, he 
 would certainly be suable there, and could not protect himself by a plea, 
 that he was liable to pay only to the administrator appointed in the place 
 of his (the debtor's) domicil. Lord Hardvvicke, in Thorne v. Watkins, 
 (2 Ves. 35,) said, that all debts follow the person, not of the debtor in 
 respect of the right or property, but of the creditor to whom due. In 
 Doolittle V. Lewis, (7 Johns. Ch. R. 49,) Mr. Chancellor Kent held, that 
 a voluntary payment to a foreign executor or an administrator was a 
 good discharge of the debt. See Shultz v. Pulver, 3 Paige, R. 182 ; 
 Hooker r. Olmstead, G Pick. R. 481 ; Atkyns v. Smith, 2 Atk. R. C3 ; 
 Trecothick v. Austin, 4 Mason, R. 16, 33. 
 
 1 Hulhwaite v. Phaire, 1 Mann. & Grang, 159, and particularly what is 
 said by Lord Chief Justice Tindal in page 1G2. 
 
 2 Ante, ^ 514. See Preston v. Lord Melville, 8 Clark & Finnell. 1, 14.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 883 
 
 maintainable to the extent, which the proposition has 
 been sometimes understood to justify ; that is to say, so 
 as to apply it to a debt due by a debtor, who at the 
 death of the creditor is actually domiciled in, and owes 
 the debt in the foreign country, where no administra- 
 tion is taken out. Suppose an administration should 
 afterwards be granted in the foreign country ; would it 
 be any bar to an action brought by the foreign adminis- 
 trator, against the debtor for the same debt, that the 
 debtor had already paid it to another administrator, 
 who had no ri2:ht to demand it in virtue of his ori- 
 ginal administration, and who, therefore, might pro- 
 perly be deemed a stranger to the debt ? Suppose a 
 contest to arise between the original administrator and 
 the foreign administrator in relation to the administra- 
 tion of the debts, so received as assets of the deceased, 
 could the original administrator retain it against the 
 will of the foreign administrator ; or thereby subject it 
 to a different application in the course of administration 
 and marshalling assets from that, which w^ould otherwise 
 exist ? It seems difficult to answer these questions in 
 the afBrmative, without shaking some of the best-esta- 
 blished principles of international law on this subject.' 
 
 § 516. And here it may be necessary to attend to a 
 distinction, important in its nature and consequences. 
 If a foreign administrator has, in virtue of his adminis- 
 tration, reduced the personal property of the deceased, 
 there situated, into his own possession, so that he has 
 
 1 See Currie v. Bircham, 1 Dowl. & Ryl. R. 35 ; Tyler r. Bell, 1 Keen, 
 R. 836 ; S. C. 2 Mylne & Craig, 89, 109, 110 ; Attor.-Gen. v. Dimond, 
 1 Cromp. & Jerv. 356, 370 ; Contra Anderson v. Gaunter, 2 Mylne & 
 Keen, R. 763. But the latter case seems overruled. Ante, ^ 513 ; post, 
 ^ 518, 519, 520, 521, 525 ; Huthwaite v. Phaire, 1 Mann. & Grang. 159, 
 164, 165.
 
 884 CONFLICT OF LAWS. [CH. XIII. 
 
 acquired the legal title thereto, according to the laws of 
 that country; if that property should afterwards be 
 found in another country, or be carried away and con- 
 verted there against his will, he may maintain a suit 
 for it there in his own name and right personally, with- 
 out taking out new letters of administration ; for he is, 
 to all intents and purposes, the legal owner thereof, al- 
 though he is so in the character of trustee for other 
 persons. In like manner, if a specific legacy of per- 
 sonal property is bequeathed in a foreign country, and 
 the legatee has, under an administration there, been ad- 
 mitted to the full possession and ownership by the ad- 
 ministrator, he may afterwards sue in his own name for 
 any injury or conversion of such property in another 
 country, where the property or wrongdoer may be 
 found, without any probate of the will there.* The 
 plain reason in each of these cases is, that the executor 
 and the legatee have, each in his own right, become full 
 and perfect legal owners of the property by the local 
 law ; and a title to personal property, duly acquired 
 by the Lex loci rei sitce, will be deemed valid, and be re- 
 spected as a lawful and perfect title in every other 
 country. 
 
 § 517. The like principle will apply, where an exe- 
 cutor or administrator, in virtue of an administration 
 abroad, becomes there possessed of negotiable notes be- 
 longing to the deceased, which are payable to bearer ; 
 for then he becomes the legal owner and bearer by 
 virtue of his administration, and may sue thereon in 
 his own name ; and he need not take out letters of. ad- 
 
 1 See Commonwealth v. Griffith, 2 Pick. R. II ; Bollard v, Spencer, 7 
 T. R. 354 ; Shipman v. Thompson, Willes, R. 103 ; Slack v. Walcutt, 3 
 Mason, R. 508, 518.
 
 en. XIII.] FOREIGN ADMINISTRATIONS. 885 
 
 ministration in the State, where the debtor resides, in 
 order to maintain a suit against him.' And for a like 
 reason, it would seem, that negotiable paper of the de- 
 ceased, payable to order, actually held and indorsed by 
 a foreign executor or administrator in the foreign coun- 
 try, who is capable there of passing the legal title by 
 such indorsement, would confer a complete legal title 
 on the indorsee, so that he ought to be treated in every 
 other country, as the legal indorsee, and allowed to sue 
 thereon accordingly, in the same manner that he would 
 be if it were a transfer of any personal goods or mer- 
 chandise of the deceased, situate in such foreign coun- 
 try.2 
 
 § 517 a. And when an executor appointed abroad has 
 remitted to another country, (as for example, to Eng- 
 land,) that fund to be distributed between legatees 
 there domiciled ; the distribution may be made either 
 voluntarily by the remittee, or enforced by a Court of 
 Equity in such country, without any administration 
 being taken there, or making the legal representative 
 of the testator a party to the suit.^ 
 
 § 518. Where there are different administrations, 
 granted in different countries, that is deemed the prin- 
 cipal or primary administration, which is granted in the 
 country of the domicil of the deceased party ; for the 
 final distribution of his ellects among his heirs or distri- 
 butees is to be decided by the law of his domicil. 
 Hence, any other administration, which is granted in 
 
 1 Robinson v. Crandall, 9 Wendell, R. 425 ; and see Barrett i'. Barrett, 
 8 Greenleaf, R. 353. But see Stearns v. Burnham, 5 Grcenleaf, R. 361 ; 
 Thompson v. Wilson, 2 New Ilamp. R. 291 ; McNeilage c. Holioway, 1 
 B. and Aid. 218 ; ante, ^ 354, 358, 359. 
 
 2 lb. and ante, ^ 358, 359. 
 
 ^ Arthur v. Hughes, 4 Beavan, R. 506.
 
 886 CONFLICT OF LAWS. [CH. XIIL 
 
 any other country, is treated as in its nature ancillary 
 merely, and is, as we have seen, generally held subordi- 
 nate to the original administration.^ But each admi- 
 nistration is, nevertheless, deemed so far independent of 
 the others, that property received under one cannot be 
 sued for under another, although it may at the moment 
 be locally situate within the jurisdiction of the latter. 
 Thus, if property is received by a foreign executor or 
 administrator abroad, and it is afterwards remitted here, 
 an executor or administrator appointed here could not 
 assert a claim to it here, either against the person in 
 wdiose hands it might happen to be, or against the fo- 
 reign executor or administrator.^ The only mode of 
 reaching it, if necessary for the purposes of due admi- 
 nistration in the foreign country, would be to require 
 its transmission or distribution, after all the claims 
 against the foreign administration had been duly ascer- 
 tained and settled.^ 
 
 § 519. But suppose a case, where the personal estate 
 of the deceased has not, at the time of his de- 
 cease, any positive locality in the place of his domicil, 
 or in any foreign territory ; but it is strictly in transitu 
 to a foreign country, and afterwards arrives in the coun- 
 try of its destination. It may be asked, in such case, 
 to whom would the administration of such property 
 rightfully belong ? Would it belong to the administra- 
 
 1 Ante, ^ 514. 
 
 2 Currie, Administrator v. Bircham, 1 Dow]. & Ryl. R. 35. See Jaun- 
 cey V. Seeley, 1 Vern. R. 397 ; ante, ^ 513, 515, ^ 515 a. See Huth- 
 waite V. Phaire, I Mann. & Grang. 159. 
 
 3 See Dawes v. Head, 3 Pick. R. 153 to 148 ; Harvey v. Richards, 1 
 Mason, R. 381 ; ante, § 513, and note, ^ 514 ; Selectmen of Boston v. 
 Dawes, 2 Mass. R. 384 ; Goodwin v. Jones, 3 Mass. R. 514 ; Dawes v. 
 Boylston, 9 Mass. R. 337.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 887 
 
 tor in the place of the domicil of the deceased, or to 
 the administrator appointed in the place, where it had 
 arrived ? And if (as may "well happen in the case of a 
 ship and cargo sent abroad) the propert}^, or its pro- 
 ceeds, should afterwards return to the domicil of the 
 original owner, would the administrator, there appointed 
 be entitled to take it, and bound to account for it, in 
 the due course of administration? Practically speak- 
 ing, no doubt is entertained on this subject ; and the 
 property, whenever it returns to the country of the do- 
 micil of the owner, whether by remittance or otherwise, 
 is understood to be under the administration of the ad- 
 ministrator appointed there. Nor has there been a 
 doubt hitherto judicially expressed, that property, so 
 sent abroad, and returned, might and should be so ad- 
 ministered, and that all parties would be protected by 
 the'r d ings in regard to it. 
 
 § 520. Indeed, according to the common course of com- 
 mercial business, ships and cargoes, and the proceeds 
 thereof, locally situate in a foreign country at the time 
 of the death of the owner, always proceed on their 
 voyages, and return to the home port, without any sus- 
 picion, that all the parties concerned are not legally 
 entitled so to act ; and they are taken possession of, and 
 administered by the administrator o? the fojwu domiciUi, 
 with the constant persuasion, that he may not only 
 rightfully do so, but that he is bound to administer 
 them, as part of the funds appropriately in his hands. 
 A different course of adjudication would be attended 
 with almost inextricable difficulties, and would involve 
 this extraordinary result, that all the personal property 
 of the deceased must be deemed to have a fixed situs, 
 where it was at the moment of his death; and, if re- 
 moved from it, must be returned thither for the pur-
 
 888 CONFLICT OF LAWS. [CH. XIIL 
 
 pose of a due administration. Na}'-, debts due in a 
 foreign country would be absolutely required to be re- 
 tained there, until a local administration was obtained ; 
 and could not without peril be voluntarily remitted to 
 the creditor's domicil. And if the debtor should, in the 
 mean time, remove to another country, it might become 
 matter of extreme doubt whether a payment to a local 
 administrator there would discharge him from the debt.' 
 
 But it may, perhaps, after all, be doubtful whether, 
 with a strict regard to the principles of international 
 law, the personal property of the deceased testator or 
 intestate, whether it consisted of goods or of debts, 
 situate at the time of his death in a foreign country, 
 could be lawfully disposed of, except under an adminis- 
 tration granted in that country, although they had 
 since been removed, or transmitted to the domicil of 
 the deceased, and had been received by his administra- 
 tor appointed there.^ 
 
 § 521. A case, illustrative of these remarks, has re- 
 cently occurred. The personal estate of an intestate 
 consisted in a considerable degree of stage-coaches and 
 stage-horses, belonging to a daily line, running from one 
 State to another; and letters of administration were 
 taken out by the same person in both States, one being 
 that of the intestate's domicil. A question arose, under 
 which administration the property was to be accounted 
 for, part of it being in one State and part in the other, 
 and part in transitu from one to the other, at the moment 
 of the intestate's death. The learned Chancellor of 
 New York said, that, if administration had been granted 
 
 1 See Stevens v. Gaylord, 11 Mass. R. 25G ; ante, § 515, ^ 515 a. 
 
 2 See ante, § 513 to § 518 ; post, § 525.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 889 
 
 to different individuals in the two States, the property 
 must have been considered as belonging to that admi- 
 nistrator, who first reduced it to possession within the 
 limits of his own State. But that in the case before 
 him, as both administrations were granted to the same 
 person, if an account of administration were to be taken, 
 it would be necessary to settle that by ascertaining, 
 what had been inventoried and accounted for by him 
 under the administration in the other State.^ 
 
 § 522. Where administrations are granted to differ- 
 ent persons in different States, they are so far deemed 
 independent of each other, that a judgment obtained 
 against one will furnish no right of action against the 
 other, to affect assets received by the latter in virtue of 
 his own administration ; for, in contemplation of law, 
 there is no privity between him and the other adminis- 
 trator.^ It might be different, if the same person were 
 administrator in both States.^ On the other hand, a 
 judgment, recovered by a foreign administrator against 
 the debtor of his intestate, will not form the foundation 
 of an action against the debtor by an ancillary adminis- 
 trator appointed in another State."* But the oreign ad- 
 ministrator himself might in such a case maintain a per- 
 sonal suit against the debtor in any other State ; be- 
 cause the judgment would, as to him, merge the ori- 
 ginal debt, and make it personally due to him in his 
 own right, he being responsible therefor to the estate.^ 
 
 § 523. So strict is the principle, that a foreign ad- 
 
 1 Orcutt V. Orms, 3 Paige, R. 459. 
 
 2 Lightfoot V. Bickley, 2 Rawle, R. 431. 
 
 3 Lightfoot u. Bickley, 2 Rawle, R. 431. 
 
 4 Talmage v. Chapel, 16 Mass. R. 71. 
 
 •> Ibid. But see Smith v. Nicolls, 5 Bing. New Cas. p. 208 ; post, 607. 
 
 CONFL. 75
 
 890 CONFLICT OF LAWS. [CH. XIIL 
 
 ministrator cannot do any act, as administrator, in ano- 
 ther State, that, where the local laws convert real secu- 
 rities in the hands of an administrator into personal 
 assets, which he may sell or assign, he cannot dispose 
 of such real securities, until he has taken out letters of 
 administration in the place 7^ei sitm} Thus, mortgages 
 are declared by the laws of Massachusetts to be personal 
 assets in the hands of administrators; and disposable by 
 them accordingly. But the authority cannot be exer- 
 cised by any, except administrators, who have been, 
 duly appointed within the State.^ On the other hand, 
 if an administrator sells real estate for the payment of 
 debts, pursuant to the authority given him under the 
 local laws m sitce, he is not responsible for the proceeds 
 as assets in any other State ; but they are to be dis- 
 posed of. and accounted for, solely in the place and in 
 the manner pointed out in the local laws.^ 
 
 § 524. In relation to the mode of administering assets 
 by executors and administrators, there are in different 
 countries very diiferent regulations. The priority of 
 debts, the order of payments, the marshalling of assets 
 for this purpose, and, in cases of insolvency, the mode 
 of proof, as well as the mode of distribution, differ in 
 different countries.^ In some countries, all debts stand 
 in an equal rank and order ; and, in cases of insolvency, 
 the creditors are to be paid j>?«W ]mssu. In others, 
 
 1 Goodwin v. Jones, 3 Mass. R. 514, 519. See Bissell v. Briggs, 9 
 Mass. R. 467, 468. But see Doolittle v. Lewis, 7 Johns. Ch. R. 45, 47 ; 
 Attor.-Gen. v. Bouwens, 4 Mees. & Welsh. 171, 191, 192. 
 
 2 Cutter V. Davenport, 1 Pick. R. 80. But see Doolittle v. Lewis, 7 
 Johns. Ch. R. 45, 47. 
 
 3 Peck V. Mead, 2 Wendell, R. 471 ; Hooker v. Olmstead, 6 Pick. R. 
 481, 483 ; Goodwin v. Jones, 3 Mass. R. 514, 519, 520. 
 
 4 Harvey r. Richards, 1 Mason, R. 421 ; ante, ^ 323 to § 328, ^ 401 to 
 §403.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 891 
 
 there are certain classes of debts entitled to a priority 
 of payment ; and tliey are therefore deemed privileged 
 debts. Thus, in England, bond debts and judgment 
 debts possess this privilege ; and the like law exists in 
 some of the States of this Union.' Similar provisions 
 may be found in the law of France in favor of particular 
 classes of creditors.- On the other hand, in Massachu- 
 setts, and in many other States of the Union, all debts, 
 except those due to the government, possess an equal 
 rank, and are payable pari passu. Let us suppose, 
 then, that a debtor dies domiciled in a country where 
 such priority of right and privilege exists ; and he has 
 personal assets situate in a State where all debts stand 
 in an equal rank, and administration is duly taken out 
 in the place of his domicil, and also in the place of the 
 situs of the assets. What rule is to govern in the mar- 
 shalling of the assets ? The law of the domicil ? Or 
 the law of the situs ? The established rule now is, that 
 in regard to creditors the administration of assets of de- 
 ceased persons is to be governed altogether by the law 
 of the country where the executor or administrator acts, 
 and from which he derives his authority to collect them ; 
 and not by that of the domicil of the deceased. The 
 rule has been laid down with great clearness and force 
 on many occasions.^ 
 
 ^ Smith Administrator t'. Union Bank of Georgetown, 5 Peters, R. 518. 
 
 2 Merlin, Repertoire, Privilege ; Civil Code of France, art. 2092 to 
 2106. 
 
 3 See Harrison v. Sterry, 5 Cranch, 299 ; Milne v. Moreton, 4 Binn. 
 R. 353, 3G1 ; Olivier v. Townes, 14 Martin, R. 93, 99 ; ante, ^ 388 ; De 
 Sobry v. De Laistre, 2 Harr. & Johns. R. 193, 224 ; Smith Administrator 
 V. Union Bank of Georgetown, 5 Peters, R. 518, 523 ; Daws v. Head, 3 
 Pick. R. 128 ; Holmes v. Remsen, 20 Johns. R. 265 ; Case of Miller's 
 Estate, 3 Rawle, R. 312; McElmoyle v. Cohen, 13 Peters, R. 312.
 
 892 CONFLICT OF LAWS. [CH. XIIL 
 
 § 525. The ground, upon which this doctrine has 
 been established, seems entirely satisfactory. Every 
 nation, having a right to dispose of all the property 
 actually situated within it, has (as has often been said) 
 a right to protect itself and its citizens against the in- 
 equalities of foreign laws, which are injurious to their 
 interests. The rule of a preference, or of an equality 
 in the payment of debts, whether the one or the other 
 course is adopted, is purely local in its nature, and can 
 have no just claim to be admitted by any other nation, 
 which in its own domestic arrangements pursues an op- 
 posite policy. And in a conflict between our own and 
 foreign laws, the doctrine avowed by Huberus is highly 
 reasonable, that we should prefer our own. In tali con- 
 flidii magis est, tit jus nostrum, qiiam jus alienum, ser- 
 vemtis} 
 
 § 526. It seems, that many foreign jurists, but cer- 
 tainly not all,^ maintain a different opinion, holding, 
 that in every case the privileges of debts and the rank 
 and order of payment thereof, are to be governed by 
 the law of the domicil of the debtor at the time of his 
 contract, or of his death. They found themselves upon 
 the general rule, that the creditor must pursue his re- 
 medy in the domicil of the debtor, and that debts fol- 
 
 Where there are administrations and assets in different States, and the 
 estate is insolvent, the general principle adopted by the Courts of Mas- 
 sachusetts is, to place creditors there, as to the assets in the State, upon a 
 footing of equality with other creditors in the State, where the party had 
 his domicil at his death. Davis v. Estey, 8 PicFc. R. 475. 
 
 1 Huberus, De Confl. Leg. Lib. 1, tit. 3, ^ II. See also Smith Adm'r 
 V. Union Bank of Georgetown, 5 Peters, R. 517 ; ante, ^ 322 to 327. 
 
 2 See ante, ^ 325 a, to 325 o, and 1 Boullenois, p. 684 to 690 ; Roden- 
 burg Diversit. Statut. tit. 2, ch. 5, 16 ; 2 Boullenois, Appx. p. 47 to 
 p. 50.
 
 CH. xiil] foreign administrations. 893 
 
 low his person, and not that of the creditor.^ This rule 
 was acknowledged in matters of jurisdiction in the 
 Homan law, in which it is said ; Juris orcUnem converti 
 posiulas, tit non actor rei forum, sed 9'eus actoris sequatur. 
 Nam, uhi domiciUum reus hahet, vel tempore contractus lia- 
 huit, licet hoc postea transtulerit, iU tanium cum convemi 
 oportet? But it by no means follows, that, because this 
 was the rule in the municipal jurisprudence of Rome, 
 therefore it ought to be adopted, as a portion of modern 
 international law. Nor does it necessarily follow, even 
 if the rule were admitted to govern, as to the forum 
 where the suit should be brought against the debtor in 
 his lifetime, that upon his death, in a conflict of the 
 
 1 Livermore, Diss. p. 164 to 171 ; ante, § 323 to 328. See also § 401 
 to 403. — Mr. Livermore has, in his Dissertations (p. 164 to 171), con- 
 troverted the correctness of the American doctrine ; and he holds, that the 
 law of the debtor's domicil, at the time when the debt was contracted, fur- 
 nishes the true rule. Mr. Henry lays down the rule, that when the law 
 of the domicil of the creditor and debtor differ, as to classing debls and 
 rights of action among personal or real property, the law of the domicil 
 of the debtor must prevail in suits on them. Henry on Foreign Law, c4, 
 35. Mr. Dwarris slates the same rule, and quotes the maxims, " Actor 
 sequitur forum rei," and "Debita sequuntur personam debitoris." He 
 admits, indeed, that debts and rights of action attend upon the person of 
 the creditor, " Inhaerent ossibus creditoris " ; but, to recover them, one 
 must follow the forum rei, and person of the debtor. If the question 
 regard the distribution of the creditor's estate, the law of his domicil is to 
 be observed. If the question is, in wiiat degree or proportion the repre- 
 sentatives of the debtor should be charged with payment from his effects, 
 then it is of a passive nature, and the law of the domicil of the debtor 
 should be followed. Dwarris on Statut. 650. It would be difficult to 
 point out in the English law any autliority in support of this doctrine. 
 See also Dumoulin's and Casaregis's opinions cited in Livermore's Diss. 
 162, 163; Molin, Opera, Tom. 1. In consuetud. Paris. De fiefs, tit. 1, 
 § 1, Gloss. 4, n. 9, p. 56, 57, edit. 1681 ; Casaregis in Ruhr. Stat, Civ. 
 Genuaj de Success, ab Intest. n. 64, Tom. 4, p. 42, 43 ; ante, § 323, to 
 328. 
 
 2 Cod. Lib. 3, tit. 13, 1. 2.
 
 894 CONFLICT OF LAWS. [CH. XIIL 
 
 rights and privileges of creditors [concursiis creditonim) 
 of different countries, the municipal law of the country 
 of the debtor should overrule the jurisprudence of the 
 situs of the effects.^ 
 
 § 527. This, however, seems to be the doctrine of 
 Coquille, Moevius, Carpzovius, Burgundus, Rodenburg, 
 Matth£eus, and Gaill.^ But it is manifest, from the 
 language used by them, that it is a matter of no small 
 difficulty ; and a diversity of laws and opinions may 
 well be presumed to exist in regard to it. Boullenois 
 holds the same doctrine.^ Hertius seems in one pas- 
 sage to affirm it, saying ; ;SV de re immohiU agiiur, spec- 
 tandas esse leges situs rei induhium est, etiamsi piiilegium 
 in ea propter qiialitatem personce tribucdur. At in rebus mo- 
 Ulihus, si ex contractu vel quasi agcdur, locus contractus 
 inspiciendus esset. Enimvero, quia antelatio ex jure 
 singulari vel privilegio competit, non debet in prcejudi- 
 ciwn illius civitatis, sub qua debitor elegit, et res ejus mo- 
 biles contineri censeatur, extendi. Ad jura igitur domicilii 
 debitoris, ubi jit concursus creditonim, et quo omnes cnjus- 
 
 1 Ante, § 332 to § 337. 
 
 2 Livermore, Diss. ^ 254 to ^ 257, p. 166 to 171 ; Rodenburg, De Div. 
 Stat. tit. 2, ch. 5, ^ 16 ; 2 Boullenois, Appx. p. 47 ; ante, ^ 324 to 325 o ; 
 1 Boullenois, p. 686 to p. 687 ; Id. Observ. 30, p. 818 to p. 834 ; Bouhier, 
 Cout. de Bourg. ch. 21, ^ 204, ch. 22, ^ 151 ; Ma3vius, Comm. in Jus 
 Lubesence, Lib. 3, tit. 1, art, 11, n. 24 to n. 27, p. 39, 40 ; Id. art. 10, n. 
 51, p. 33 ; Mattheeus, de Auction. Lib. 1, ch. 21, § 35, n. 10, p. 294, 295 ; 
 Gaill, Observ. Pract. Lib. 2, Observ. 130, n. 12, 13, 14, p. 563 ; Burgun- 
 dus, Tract. 2, n. 21, p. 72, edit, 1621 ; ante, ^ 324 to ^ 327.— Not having 
 access to the works of Carpzovius and Coquille, I am obliged to rely on 
 the citations, which I find in Livermore's Dissertations of Coquille's 
 opinion, and upon Rodenburg, Masvius, (ubi supra,) and Hertius for the 
 citations from Carpzovius. The other Authors I have examined, and the 
 citations are correct. Ante, § 324 to ^ 327 ; post, ^ 582. 
 
 3 1 Boullenois, p. 818 ; Id. Observ. 30, p. 834.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 895 
 
 cimqiie generis lites adversiis ilium debiiorem jjropter con- 
 nexitatem causce traJmntiw, regulariter respiciendiim erit} 
 Yet he afterwards admits that cases may exist, where 
 undue preferences, given by the local laws of one State 
 in favor of its own subjects, may be met with a just re- 
 taliation by others.^ He cites a passage from Huberus,^ 
 which would seem to show, that the latter was of a dif- 
 ferent opinion. A creditor (says Iluberus) upon a bill 
 of exchange, exercising his right in a reasonable time, 
 has a preference in Holland over all other creditors 
 upon the movable property of his debtor. He has pro- 
 perty of the like kind in Friesland, where no such law 
 exists. Will such a creditor be there preferred to other 
 creditors ? By no means j since those creditors, by the 
 laws there received, have already acquired a right. 
 Creditor ex causa camhii, jus suum in tempore exerccns, 
 prcefcrtur apiid Batavos omnihus aliis dehitoribus [creditori- 
 bus ?] in bona mobilia debitoris. Hie Jmhet ejusmodi res in 
 Fiisid, ubi Jwcjus non obtinet. An ibi creditor etiam prce- 
 feretur cdiis creditoribus ? Nullo modo ; quoniam heic cre- 
 ditoribus, vilccjum Jiic rcceptarum jus pridem qucusitum cst^ 
 Upon this Hertius remarks. Niniirwn recti disceret in 
 sect, antec. non teneri Potestates sequijiis cdienwn infrcmd- 
 em sill juris, et civium suorum. Hine in quibusdam Ger- 
 manice regionibus cives et incolcc in concursu creditormn ante- 
 habentur exteris, et iwo consuetiidinc, qiice Bibcraci est, lit 
 
 ' 1 Hertii, Opera, De Collis. Leg. § 4, n. 64, p. 150, edit. 1737 ; Id. p. 
 211, edit. 1716 ; ante, ^ 325 b. 
 
 2 Id. 
 
 3 Huberus, J. P. Univers. ch. 10, § 44. 
 
 * I quote the passage as I find it in Hertius, not having access to the 
 work of Iluberus here referred to. Iluberus, J. P. Univers. cii. 10, § 44 ; 
 1 Hertii, Opera, De Collis. Leg. ^ 4, n. 64, p. 150, edit. 1737 ; Id. p. 211, 
 edit. 1716. See ante, ^ 325 a. Should not debitorihus be creditoribus?
 
 896 CONFLICT OF LAWS. [CH. XIII. 
 
 cives chirogra'phiarii iwceferantur extraneis forensihis, cinte- 
 riorem hypotliecam Jiabentihiis, pronunciatiim in Camera Im- 
 periali} Now, this seems a virtual surrender of the 
 main ground in all cases where there is a conflict of 
 laws, as to the priorities and preferences of creditors, 
 between the law of the domicil of the debtor, or of the 
 contract, and that of the situs of the movables. 
 
 § 528. In the course of administration, also, in dif- 
 ferent countries, questions often arise as to particular 
 debts, whether they are properly and ultimately paya- 
 ble out of the personal estate, or are chargeable upon 
 the real estate of the deceased. In all such cases, the 
 law of the domicil of the deceased will govern in cases 
 of intestacy ; and, in cases of testacy, the intention of 
 the testator. A case, illustrating this doctrine, occur- 
 red in England many ^^ears ago. A testator who lived 
 in Holland, and was seized of real estate there, and of 
 considerable personal estate in England, devised all his 
 real estate to one person, and all his personal estate to 
 another, whom he made his executor. At the time of 
 his death, he owed some debts by specialty, and some 
 by simple contract in Holland, and he had no assets 
 there to satisfy those debts ; but his real estate was by 
 the laws of Holland made liable for the payment of sim- 
 ple contract debts, as well as specialty debts, if there 
 were not personal assets to answer the same. The cre- 
 ditors in Holland sued the devisee, and obtained a 
 decree there for the sale of the lands devised for the 
 payment of their debts. And then the devisee brought 
 a suit in England against the executor (the legatee of 
 
 1 1 Hertii, Opera, De Collis. Leg. H> "• 64, p. 150, edit. 1737 ; Id. p. 
 211, 212, edit. 1716 ; ante, ^ 325 b.
 
 CH. XIII.] FOREIGN ADMINISTRATIONS. 897 
 
 the personalty) for reimbursement out of the personal 
 estate. The Court decided in his favor, upon the ground, 
 that in Holland, as in England, the personal estate was 
 the primary fund for the payment of debts, and that it 
 should come in aid of the real estate, and be in the first 
 place charged.^ 
 
 § 529. In the Scottish law the same doctrine is re- 
 cognized, that is to say, that the fund which is prima- 
 rily chargeable with the debt, shall ultimately bear it in 
 exoneration of all other funds. But, in its application 
 under the local law to particular cases, an opposite re- 
 sult may be produced from that in the case just men- 
 tioned ; for the personal estate is, in such cases, exone- 
 rated, and the real estate made to bear the debt. Thus, 
 for example, in Scotland heritable J)onds are primarily 
 payable out of the real estate ; and, as we have seen, 
 the personal estate of a person domiciled, and dying in 
 England, is held exonerated from the charge of such a 
 heritable bond, made by him upon real estate in Scot- 
 land, to secure a debt contracted in England ; and the 
 Scottish estate is compellable to bear the burthen.^ On 
 the other hand, by the law of Scotland, movable debts 
 (in contradistinction to heritable bonds) are primarily 
 and properly chargeable upon the personal estate. The 
 creditor may indeed enforce payment against the real 
 estate in the hands of the heir -, but if he does so, the 
 heir is entitled to relief against the executor out of the 
 
 1 Anonymous, 9 Mod. R, 66 ; S. P. Bowman v. Reeve, Preced. Ch. 
 511. 
 
 - Ante, ^ 486, 487, 488 ; Drummond v. Drummond, 6 Brown, Pari. 
 Cases, 550 (Tomlin's edit. 1803) ; S. C. cited 2 Ves. & Beames, 131 ; 
 Winchelsea v. Garetiy, 2 Keen, R. 293, 310 ; Robertson on Succession, 
 209, 214 ; 4 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 15, ^ 4, p. 
 722 to p. 734 ; ante, ^ 266 a, 366, 486, 487.
 
 898 CONFLICT OF LAWS. [CH. XIIL 
 
 personal estate. In other words, according to tlie law 
 of Scotland, the real estate, though subject to the pay- 
 ment of movable debts, is only a subsidary fund for the 
 purpose of payment. Payment, therefore, by the heir, 
 does not extinguish the debt in his hands, but vests in 
 him a right to recover the amount against the personal 
 estate.^ The question has arisen, whether under such 
 circumstances, the heir is entitled to enforce a payment 
 out of the personal estate of his ancestor, not only in 
 Scotland, but in England (where he died domiciled), 
 according to whose laws the personal estate is also the 
 primary fund for the payment of debts ; and it has been 
 held, that he is so entitled, upon the ground, that as 
 between the heir and the persons entitled to the distri- 
 bution of the personal estate, the primary fund, must in 
 all cases ultimately bear the burden.- 
 
 1 Earl of Winchelsea v. Garetty, 2 Keen, R. 293, 308. 
 
 2 Earl of Winchelsea v. Garetty, 2 Keen, R. 293, 310, 311, 312. See 
 Lord,Langdale's opinioa cited at large, ante, ^ 266 a.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 899 
 
 CHAPTER XIV. 
 
 JURISDICTION AND REMEDIES. 
 
 § 530. We are next led to the consideration of the 
 subject of remedies, or the modes of redress for the vio- 
 lation of the rights of other persons by proceedings in 
 courts of justice. And, in the nature of things, these 
 may well be classed into three sorts ; first, those reme- 
 dies which purely regard property, movable and immo- 
 vable ; secondly, those which purely regard persons ; 
 and, thirdly, those which regard both persons and pro- 
 perty. The Roman jurisprudence took notice of this 
 distinction, and accordingly divided all remedies, as to 
 their subject, into three kinds ; (1.) Real actions, other- 
 wise called Vindications, which were those in which a 
 man demanded something that was his own, and which 
 were founded on dominion, or jus in re ; (2.) Personal 
 actions, denominated also Condictions, which were those 
 in which a man demanded what was barely due to him, 
 and which were founded on some obligation, or jxiB ad 
 rem; (3.) Mixed actions, which were those in which 
 some specific thing was demanded, and where also some 
 personal obligations were claimed to be performed.^ 
 The real actions of the Roman law w^ere not, like the 
 
 1 Halifax on the Roman Law, B. 3, ch. 1, ^ 4, 5, p. 25, 86 ; 1 Brown, 
 Civil and Adm. Law, p. 439, 440. — In Pothier's work on the Customs of 
 Orleans, there will be found a correspondent division of actions into the 
 same classes. Pothier, Coutumes d'Orl^ans, Introd. G6n. ch. 4, art. 109 
 to 122.
 
 900 CONFLICT OF LAWS. fCH. XIV. 
 
 real actions of the common law, confined to real estate j 
 but they included personal as well as real property. 
 But the same distinction, as to classes of remedies and 
 actions, equally pervades the common law, as it does 
 the civil law. Thus, we have in the common law the 
 distinct classes of real actions, personal actions, and 
 mixed actions ; the first embracing those which concern 
 real estate, where the proceeding is purely in rem ; the 
 next, embracing all suits in personam for contracts 
 and torts ; and the last, embracing those mixed suits 
 where the person is liable by reason of, and in connec- 
 tion with, property.^ 
 
 § 531. In considering the nature of actions, we are 
 necessarily led to the consideration of the proper tri- 
 bunal in which they should be brought ; or, in other 
 words, what tribunal is competent to entertain them in 
 point of jurisdiction. And, here, the subject naturally 
 divides itself into the consideration of matters of juris- 
 diction in regard to the administration of mere muni- 
 cipal and domestic justice ; and matters of jurisdiction 
 in regard to the administration of justice inter gentes, 
 founded upon principles of public law. 
 
 § 532. In the Roman jurisprudence, and among 
 those nations which have derived their jurisprudence 
 from the civil law, many embarrassing questions, as to 
 jurisdiction, seem to have arisen." The general rule of 
 the Roman Code is, that the plaintiff must bring his 
 suit or action in the place where the defendant has his 
 
 1 3 Black. Comm. 294 ; Comyns, Dig. Action, N. 
 
 2 See 1 J. Voet, ad Pand. Lib. 5, tit. I, ^ 303 ; Id. ^ 64, 66, 74, 91, 
 92; Huberus, Lib. 5, tit. 1, De Foro Compet, Tom. 2, ^ 38 to ^52, 
 p. 722 to 730; Strykius, Tom. 6, 11, p. 1,8, Tom. 7, 1, p. 5 ; 1 Boul- 
 lenois, Observ. 25, p. 601, 618, 619, 635.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 901 
 
 domicil, or where he had it at the time of the contract. 
 Juris ordincm (said the Emperor Diocletian) converti 
 postiilas ; lit non actor rei forum, sed reus actoris sequcdur. 
 Nam uU domicilium reus hahet, vel tempore contractCis 
 Jialuit, licet lioc postea transiulcrit, ihitantum eum conveniri 
 oportct} But it is not to be understood; that this rule 
 applied to all cases where the party defendant was 
 found, without any regard to the situation of the thing 
 sought, as if its object were to show more favor to the 
 party defendant than to the plaintiff. Its sole object 
 was, that the adjudication might be made where it could 
 be enforced. Thus, we find the doctrine laid down in 
 the Code, that, although the general rule is, that the 
 plaintiff must bring his suit in the domicil of the de- 
 fendant ; yet this was dispensed with in certain suits 
 in rem ; which might be brought in the place rei sitce. 
 Actor Rei forum, sive in rem, sive in personam sit actio, 
 sequitur. Sed et in locis, in quihus res, propter quas con- 
 tenditur, constitidm sunt,jubemus in rem actionem adversus 
 possidentem moveri.^ 
 
 § 533. Huberus thus explains the doctrine. Cufus 
 ratio non tam est, quod reus sit actore favordbilior, etsi 
 verissima ; sed quod necessitatis vocandi et cogendi alium 
 ad jus cequum, non nisi a superiore proficisci queat : supe- 
 rior autem cujusque non est alienus, sed proprius rector. 
 
 Vocandi, inquam, et cogendi; quandoquidem sine coactione 
 jiidicia forent elusoria ; nee alihi forum lege stdbilitur,quam 
 id)i ilia cogendi facultas adJdheri potest ; non tamen, lit id)i- 
 cunque ilia valet, sit foriim, sed iihi res et wquitas patitur. 
 
 Vis ilia compellendi partes ad wquum jus, imiirimis est in 
 
 1 Cod. Lib. 3, tit. 13, 1. 2 ; ante, ^ 526. 
 
 2 Cod. Lib. 3, tit. 19, 1. 3 ; 1 BouUenois, Observ.25, p. 618, 619; post, 
 § 551. 
 
 CONFL. 76
 
 902 CONFLICT OF LAWS. [CH. XIV. 
 
 loco domicilii, est etiam in loco rei sitce, et rei gestce, si Reus 
 illic hciberi 2J0ssit, alias seciis. Hinc tria sunt loca fori in 
 jure nostro, Domicilii, Rei sitw, Rei gestce} And, hence 
 he thinks, that the rule of the civil law rei sitce applies, 
 not only to immovables, but to movables, although 
 many jurists confine it to the former.^ Sed Jieic aliam 
 pothis rationem sequimiir ; quod in foro stahiliendo maxime 
 consideretur, an in iwomptu sit effectwn dare citationi, in 
 cogendis partibus ad ohseqidum jurisdictionis ; qucefcmd- 
 tas ceqiie locum Jiahet in mohilihiis, uhi detinentur, qiiam in 
 immohilibus, uhi sitce sunt? 
 
 § 534. But he admits, that, as the forum domicilii 
 was of universal operation, actions in rem might be 
 brought in i\\Q forum domicilii, as well as in the forum 
 rd sitce. Videlicet, hoc semper tenendum, domicilii forum 
 esse generate, quod in cunctis actionihus, adeoque etiam in 
 actionibiis in rem, oUinere, sciendum est, id de dd. legihus 
 constat^ Again he says ; Summa igitur hcec esto. Do- 
 miciliwn in omnihiis relus et actionihus prcehet forum. 
 Res sita prceterea in actionihus in rem singidarihus, non 
 excluso domicilio? And he supposes the same rule to 
 apply in modern times in the civil law countries. Hcec 
 ego deforo domicilii, rdque sitce altern^ conjuncto, morihus 
 hodiernis eodem modo ^^iitem ohtinere, quemadmodiim Jure 
 
 1 Huberus, Lib. 5, tit. I ; De Foro Compet. § 38, Tom. 2, p. 722. 
 See also I Boullenois, Observ. 25, p. 618, 619 ; post, ^ 551. 
 
 2 The subject is a good deal controverted among the civilians ; but the 
 present work does not require me to engage in the task of discussing the 
 various opinions which are held by them. The learned reader will find 
 many of them referred to in J. A'^oet ad Pandect. Tom. 1, Lib. 5, § 77, 
 &c., p. 337. 
 
 3 Huberus, Tom. 2, Lib. 5, tit. 1, H^. P- 727. 
 
 4 Id. ^ 49, p. 728. 
 
 5 Id. ^ 50, p. 728.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 903 
 
 Cwmns prwscriptum est ; iit maxime in rem agatiir, iibi 
 res sita est ; possit tamen omnino eiiam, uU Reus haUtat} 
 
 § 535. In regard to mixed actions, although there is 
 no text of the Homan law directly in point, Huberus 
 thinks, that they may be brought, either in the place 
 of domicil of the defendant, or of the rei sitce. De 
 mixtis actiombiiSf exceptd hcvreditatis petitionee quce partim 
 in rcm^ partim in personam, esse diciintur, non sunt textiis 
 speciales, iibi sint instituendce. Ideorpie id ex earum proprie- 
 tcde colligiint Interpretes, cum partim imitentur naturam per- 
 soncdium, partim in rem actiones, illas et apud domiciliwn et 
 apud rem sitam esse movendas, §-<?. Proinde sic est statu- 
 cndiun. Posse quidem illas actiones idroque loco, domicilii, 
 situsque, moveri ; verum, si faciendm sunt adjudicationes 
 manuque divisio regenda sit, partes ad judicem loci remit- 
 tendas esse, res ipsa loquitur.^ 
 
 § 536. The civil law contemplated another place of 
 jurisdiction, to wit, the place where a contract was 
 made, or was to be fulfilled, or where any other act was 
 done, if the defendant or his property could be found 
 there, although it was not the place of his domicil. 
 Illud sciendum est, eiim, qid ita fuit ohligatus, lit in Italia 
 solver et, si in provincid habidt domicilium, iitrohique ptosse 
 conveniri, et hie, et ill? Huberus explains this thus. 
 Sequitur causa fori tcrtia, quam Hem Gestam esse diximus, 
 eamque vel ex contractu vel ex delicto admisso, dec. Sed 
 contractus ita forum trikdt, si contrahens in eodemloco repe- 
 riatur ; quod convenit, requisito communi inde ah initio col- 
 locato, nidlam esse fori causam, nisi cum facultate cogendi 
 
 1 Huberus, Tom. 2, Lib. 5, tit. 1, ^ 50. 
 
 2 Id. ^ 51, p. 729. 
 
 3 Dig. Lib. 5, tit. 1, 1. 19, § 4. See also as to all these distinctions, 
 Pothier, Pand. Lib. 5, tit. 1, n. 29 to 44 ; Cod. Lib. 3, tit. 18, 1. 1.
 
 904 CONFLICT OF LAWS, [CH. XIV. 
 
 conjundam ; qiialis non est ex Jiistorid contractus, si vel 
 Re^is ibi non inveniatur, vel bona duntaxcd sita non liabeat, 
 in qiice missio fieri iwssit, quando Reus se in loco contractus 
 non sistit} These distinctions of the Roman law have 
 found their way into the jurisprudence of most, if not 
 all, of the continental nations of modern Europe. 
 
 § 537. Accordingly we find it laid down by foreign 
 jurists generally, that there are, properly speaking, 
 three places of jurisdiction ; first the place of domicil of 
 the party defendant, commonly called the forum domi- 
 cilii; secondly, the place where the thing in contro- 
 versy is situate, commonly called the forum rei sitcc ; 
 and thirdly, the place where the contract is made, or 
 other acts done, commonly called /onw^ rei gestce, or fo- 
 rum contractus. Vis ilia compellandi partes ad cequum 
 jus (says Huberus) imprimis est in loco domicilii ; est 
 etiam in loco rei sitce ; et rei gestw, si reus illic Jiaberi 
 posse ; alias seciis? The same distinctions are fully 
 laid down by John Voet, in Boullenois, to whom we 
 may generally refer for more copious information.^ They 
 are also recognized in the Scottish law.^ They have 
 been here brought into view, because they constitute 
 the basis of the reasoning of many of the foreign jurists, 
 in discussing the great doctrines respecting the compe- 
 tency of tribunals to hold jurisdiction of causes ; and 
 the proper operation of judgments and decrees {rei Judi- 
 catce.) They are also known as fundamental elements 
 
 1 Huberus, Tom. 2, Lib. 5, tit. 1, ^ 53, 54, p. 729, 730. 
 
 2 Huberus, Tom. 2, Lib. 5, tit. 1, De Foro Compet. ^ 38, p. 722. 
 
 3 J. Voet, ad Tand. Lib. 5, tit. 1, De Judiciis, p. 303, ^ 6-1 to ^ 149 ; 
 1 Boullenois, Observ. 25, p. 601 ; Id. p. 618, 619 ; Id. p. 635 ; Henry on 
 Foreign Law, ch. 8, p. 54, ch. 9, p. 63. 
 
 4 Erskine, Inst. B. 1, tit. 2, § 16 to 22, p. 29 to 39.
 
 CII. 
 
 XIV.] JURISDICTION AND REMEDIES. 905 
 
 in the actual jurisprudence of many of the modern na- 
 tions of continental Europe/ 
 
 § 538. In the corresponding distribution of actions 
 by the common law into personal actions, and real ac- 
 tions, and mixed actions,^ the two latter are, in point of 
 jurisdiction, confined to the place rei sitcc ; and the for- 
 mer are generally capable of being brought wherever 
 the party can be found. Or, as the judicial phrase is, 
 in the common law, real actions and mixed actions are 
 local ; and personal actions are transitonj} 
 
 § 539. Considered in an international point of view, 
 jurisdiction, to be rightfully exercised, must be founded 
 either upon the person being within the territory, or 
 upon the thing being within the territory ; for, otherwise, 
 there can be no sovereignty exerted upon the known 
 maxim : Extra tcrntorimn jus dicenti imjnme non imrc- 
 
 1 See Code de Proc6dure Civile of France, B. 1, tit. 1, art. 1 to 4 ; 
 Henry on Foreign Law, ch. 8, p. 54, ch. 9, p. G3, ch. 10, p. 71 ; Tar- 
 dessus. Droit Comm. Tom. 5. art. 1353 ; 1 Boullenois, .Observ. 25, p. GOl, 
 618, 619; Id. 635. —In France, jurisdiction would seem generally to 
 belong either to the place of domicil, or to the place rei sitae. Jurisdiction 
 in the place of the contract, or of the other act done, does not seem to have 
 been recognized under the old jurisprudence, and it does not exist in the 
 modern Code. Code de Procedure Civile, art. 1, 2. " Le lieu (says 
 EouUenois) ou se passent les actes,celuioules parties s'obligent de payer, 
 et leur soumission, ne d6terminent pas la justice ou elles doivent plaider." 
 1 Boullenois, Observ. 30, p. 829, 830, 831, 832 ; 2 Boullenois, p. 455, 456, 
 457. Dumoulin says : " Cajterum ex eo solo, quod quis promisit solvere 
 certo loco, licet ibi conveniri possit de jure, sicutsiibicontraxisset ; tamen 
 hoc non observatur in hoc regno ; quia in hoc regno non sortitur quis forum 
 ratione contractus, etiam vere et realiter facti in loco." Molin. Opera, 
 Comm. in Decii. Tom. 3, p. 837, edit. 1681; 1 Boullenois, Observ. 30, 
 p. 829. See also Pothier, Traite de la Procedure Civile, ch. 1. 
 
 2 3 Black. Comm. 117, 118. 
 
 3 3 Black. Comm. 294 ; Comm. Dig. Aclion, N. ; 1 Chitty on Comm. 
 and Manuf. p. 647, 648, 649. 
 
 76*
 
 906 CONFLICT OF LAWS. [CH. XIV. 
 
 tur} Boullenois puts this rule among his general prin- 
 ciples. The laws of a sovereign rightfully extend over 
 persons who are domiciled within his territory, and over 
 property which is there situate.^ Vattel lays down the 
 true doctrine, in clear terms. " The sovereignty, (says 
 he,) united to domain, establishes the jurisdiction of the 
 nation in its territories, or the country, which belongs 
 to it. It is its province, or that of its sovereign, to ex- 
 ercise justice in all places under its jurisdiction, to take 
 cognizance of the crimes committed, and the differences 
 that arise in the country." ^ On the other hand, no 
 sovereignty can extend its process beyond its own ter- 
 ritorial limits, to subject either persons or property 
 to its judicial decisions. Every exertion of authority 
 of this sort beyond this limit is a mere nullity, and in- 
 capable of binding such persons or property in any other 
 tribunals.^ This subject, however, deserves a more exact 
 consideration. 
 
 § 540. In the first place let us consider the subject 
 of jurisdiction a little more particularly in regard to 
 persons. These may be, either citizens (native or nat- 
 uralized), or foreigners. In regard to the former, while 
 within the territory of their birth, or of their adopted 
 allegiance, the jurisdiction of the sovereignty over them 
 is complete and irresistible. It cannot be controlled ; 
 and it ought to be respected everywhere. But as to 
 citizens of a country domiciled abroad, the extent of 
 jurisdiction, which may be lawfully exercised over them 
 
 1 Dig. Lib. 2, tit. 1, 1.20. 
 
 2 I Boullenois, Pr. Gen. 1, 2, p. 2, 3. 
 
 3 Vattel, B. 2, ch. 8, ^ 84. 
 
 ■* Picquet v. Swan, 5 IMason, R. 35, 42. SeeRussel r. Smyth, 9 Mees. 
 & Welsh. R. 819 ; De Witt v. Burnett, 3 Barhour, 96.
 
 CII. XIV.] JURISDICTION AND REMEDIES. 907 
 
 in personam, is not so clear upon acknowledged princi- 
 ples. It is true, that nations generally assert a claim 
 to regulate the rights, and duties, and obligations, and 
 acts of their own citizens, wherever they may be domi- 
 ciled. And, so far as these rights, duties, obligations, 
 and acts afterwards come under the cognizance of the 
 tribunals of the sovereign power of their own country, 
 either for enforcement, or for protection, or for remedy, 
 there may be no just ground to exclude this claim. 
 But when such rights, duties, obligations, and acts come 
 under the consideration of other countries, and espe- 
 cially of the foreign country where such citizens are 
 domiciled, the duty of recognizing and enforcing such a 
 claim of sovereignty, is neither clear, nor generally ad- 
 mitted. The most that can be said, is, that it may be 
 admitted ex comitate gentium. But it may also be denied 
 ex justitid gentium, whenever it is deemed iujurious to 
 the interests of such foreign nations, or subversive of 
 their own policy or institutions. No one, for instance, 
 would imagine, that a judgment of the parent country, 
 confiscating the property, or extinguishing the personal 
 rights or personal capacities of a* native subject, on ac- 
 count of such a foreign residence, would be recognized 
 in any other country. And it would be as little ex- 
 pected, as a matter of right, that any other country 
 would enforce a judgment against such persons in the 
 parent country, obtained in invitum, on account of a 
 supposed contumacy in remaining abroad, to which suit 
 he had never appeared, and of which he had received 
 no notice ; however the proceedings might be in con- 
 formity to the local laws. This is the just result de- 
 ducible from the axioms of Huberus already quoted ; 
 and, especially, from the first and second of these axi-
 
 908 CONFLICT OF LAWS. [CH. XIV. 
 
 oms.^ Whatever authority should be given to such 
 judgments, must be purely ex comitate, and not as mat- 
 ter of absolute or positive right on one side, and of duty 
 on the other. 
 
 § 541. In regard to foreigners, resident in a country, 
 although some jurists deny the right of a nation gene- 
 rally to legislate over them, it would seem clear, upon 
 general principles of international law, that such a right 
 does exist ; and the extent to which it should be exer- 
 cised, is a matter purely of municipal arrangement and 
 policy. Huberus lays down the doctrine in his second 
 axiom. All persons, who are found within the limits of 
 a government, whether their residence is permanent or 
 temporary, are to be deemed subjects thereof.^ Boulle- 
 nois says, that the sovereign has a right to make laws 
 to bind foreigners in relation to their property within 
 his domains ; in relation to contracts, and acts done 
 therein ; and, in relation to judicial proceedings, if they 
 implead before his tribunals.^ And, further, that he 
 may, of strict right, make laws for all foreigners, who 
 merely pass through his domains, although commonly 
 this authority is exercised only as to matters of police.'' 
 Vattel asserts the same general doctrine, and says, that 
 foreigners are subject to the laws of a state, while they 
 reside in it.^ And, in relation to disputes which may 
 
 1 Ante, ^ 29. 
 
 2 Id. ; Huberus, Tom. 2, Lib. 1, tit. 3, ^ 2, p. 538 ; ante, ^ 29, note 3 ; 
 Henry on Foreign Law, ch. 8, p. 54, cli. 9, p. G3, ch. 10, p. 71. 
 
 3 1 Boullenois, Pr. G6n. 4, 5, p. 3. 
 
 4 Id. 5, p. 3. 
 
 5 Valtel, B. 1, ch. 19, § 213 ; Id. B. 2, ch. 8, § 99, 101, 103. See 
 Caldwell v. Van Vlissenger, 16 English Jurist, 115; S. C. 9 Eng. Rep. 
 51.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 909 
 
 arise between foreigners, or between a, citizen and a fo- 
 reigner, he holds, that they are to be determined by the 
 judge of the place, and according to the laws of the 
 place of the defendant's domicil.^ 
 
 § 542. There are nations, indeed, which wholly refuse 
 to take cognizance of controversies between foreigners, 
 and remit them for relief to their own domestic tribu- 
 nals, or to that of the party defendant ; and, especially, 
 as to matters originating in foreign countries. Thus, in 
 France, with few exceptions, the tribunals do not enter- 
 tain jurisdiction of controversies between foreigners 
 respecting personal rights and interests.^ But this is a 
 matter of mere municipal policy and convenience, and 
 does not result from any principles of international law. 
 In England, and America, on the other hand, suits are 
 maintainable, and are constantly maintained, between 
 foreigners, where either of them is within the territory 
 of the state in which the suit is brought. 
 
 [§ 542 a. The question has been much discussed of 
 late, how far foreign princes may be made amenable in 
 the courts of another state, or whether they are exempt 
 from its jurisdiction. In a very recent case ^ in the 
 House of Lords, it was held, that a foreign sovereign, 
 although a British subject, coming to England and there 
 
 1 Id. B.2,ch. 8, ^M03. 
 
 2 See Pardessus, Droit Comm. Tom. 5, art. 1476 to 1478, p. 238 ; 
 Henry on Foreign Law, Appendix, p. 214 to 216. 
 
 3 Duke of Brunswick v. King of Hanover, 2 Clark & Fin. N. S. 1. 
 And see De Haber v. The Queen of Portugal, and Wadswortli r. The 
 Queen of Spain, 7 Eng. Rep. 340. A foreign sovereign, it seems, has an 
 undoubted right to sue, either at law or in equity, in the courts of another 
 state. HuUet v. King of Spain, 1 Dow & Clark, 169.
 
 910 CONFLICT OF LAWS. [CH. XIV. 
 
 exercising his rights as such subject, could not be made 
 responsible in the English Courts for acts done in his 
 own country in virtue of his authority as sovereign, and 
 not as a British subject ; and Lord Lyndhurst observed : 
 " It must be a very particular case indeed, even if any 
 such case could exist, that would justify us in interfer- 
 ing with a foreign sovereign in our courts."] 
 
 § 543. But, although every nation may thus right- 
 fully exercise jurisdiction over all persons within its 
 domains ; yet, we are to understand, that, in regard 
 thereto, the doctrine applies only to suits purely per- 
 sonal, or to suits connected with property within the 
 same sovereignty. For, although the person may be 
 within the territorial jurisdiction ; yet, it is by no means 
 true, that, in virtue thereof, every sort of suit may there 
 be maintainable against him. A suit cannot, for in- 
 stance, be maintainable against him, so as absolutely to 
 bind his property situate elsewhere; and, a fortiori, not 
 so as absolutely to bind his rights and titles to immo- 
 vable property situate elsewhere. It is true, that some 
 nations do, in maintaining suits in iJersonam, attempt, 
 indirectly, by their judgments and decrees, to bind pro- 
 perty situate in other countries ; but it is always with 
 the reserve, that it binds the person only in their own 
 courts in regard to such property. And, certainly, 
 there can be no pretence, that such judgments or de- 
 crees bind the property itself, or the rights over it, 
 which are established by the laws of the place where it 
 is situate. If a Court of Chancery, in England, should 
 compel a bankrupt by its decree, to convey his personal 
 and real estate, situate in foreign countries, to the as- 
 signees under the commission, (as it was at one time 
 thought they might do, although now the doctrine is
 
 CH. XIV.] JURISDICTION AND REMEDIES. 911 
 
 repudiated) •/ yet such a decree would not operate to 
 transfer the property, so as to affect the rights of cre- 
 ditors, or the regular operation of the laws of the state 
 rei sitce. So, a foreign court cannot, by its judgment or 
 decree, pass the title to land situate in another country ; 
 neither can it bind such land by a judgment or decree, 
 that in default of the defendants in the suit conveying 
 it shall be conveyed by the deed of its own ofiScers to 
 the plaintiffs. Such a conveyance, made by its officers, 
 would be treated in the country, where the land is situ- 
 ate, as a mere nullity.^ 
 
 § 544. The doctrine of the English Courts of Chan- 
 cery, on this head of jurisdiction, seems carried to an 
 extent, which may, perhaps, in some cases, not find a 
 perfect warrant in the general principles of international 
 public law ; and, therefore, it must have a very uncertain 
 basis, as to its recognition in foreign countries, so far as 
 it may be supposed to be founded in the comity of 
 nations. That doctrine is, that the Court of Chancery, 
 having authority to act upon the person, [agere in j^cr- 
 sonam,) may indirectly act upon real estate, situate in a 
 foreign country, through the instrumentality of this au- 
 thority over the person ; and that it may compel him to 
 give effect to its decree respecting such property, 
 whether it goes to the entire disposition of it, or only to 
 affect it with liens or burdens.'^ Lord Hardwicke as- 
 serted the jurisdiction in several cases.* At a more 
 
 1 Ex parte Blades, 1 Cox, R. 398 ; Selkrig v. Davies, 2 Rose, Bank. 
 Cases, 79 ; Id. 291 ; S. C. 2 Dow, R. 231. 
 
 2 Watts V. Waddle, 6 Peters, R. 389, 400. 
 
 3 See 1 Eq. Abridg. C. p. 133 ; Arglasse ». Muschamp, 1 Vern. R. 75, 
 135 ; Kildare v. Eustace, 1 Vern. 75, 135, 419. 
 
 4 See Foster v. Vassal, 3 Atk. 589 ; Penn v. Lord Baltimore, 1 Yes. 
 R. 444.
 
 912 CONFLICT OF LAWS. [CH. XIV. 
 
 recent period the Court of Chancery asserted the juris- 
 diction over a British creditor, who had fraudulently 
 obtained a judgment in the British West Indies against 
 his debtor, and had on an execution sold his debtor's 
 real estate there, and become the purchaser thereof; 
 and the Court set aside the purchase for the fraud.^ 
 It is observable, that in this last case all the parties 
 were British subjects, and the original judgment was 
 in a British Island. The Master of the Bolls, (Sir R. 
 P. Arden,) on that occasion said ; " Upon the whole, it 
 comes to this ; that, by a proceeding in the island, an 
 absentee's estate might be brought to sale, and for 
 whatever interest he has, without any particular, upon 
 which they are to bid; the question is, whether 
 any court will permit the transaction to avail to that 
 extent. It is said, this Court has no jurisdiction, be- 
 cause it is a proceeding in the West Indies. It has 
 been argued, very sensibly, that it is strange for this 
 Court to say, it is void by the laws of the island, for 
 want of notice. I admit, I am bound to say, that, ac- 
 cording to those laws, a creditor may do this. To that 
 law he has had recourse, and wishes to avail himself of 
 it ; the question is, whether an English Court will per- 
 mit such an use to be made of the law of that island, 
 or any other country. It is sold, not to satisfy the 
 debt, but in order to get the estate, which the law of 
 that country never could intend, for a price much in- 
 adequate to the real value ; and to pay himself more 
 than the debt, for which the suit was commenced, and 
 for which only the sale could be holden. It was not 
 much litigated, that the Courts of equity here have an 
 
 1 Cranslown v. Johnston, 3 Ves. Jr. 170 ; S. C. 5 Yes. Jr. 276.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 913 
 
 equal right to interfere with regard to judgments or 
 mortgages upon the hinds in a foreign country, as upon 
 lands here. Bills are often filed upon mortgages in the 
 West Indies. The only distinction is, that this Court 
 cannot act upon the land directly, but acts upon the 
 conscience of the person living here. Archer v. Pres- 
 ton, Lord Arglasse v. Muschamp, Lord Kildare v. Eus- 
 tace, (1 Eq. Abr. 133 ; 1 Vern. 75, 135, 419.) Those 
 cases clearly show, that with regard to any contract 
 made, or equity between persons in this country, 
 respecting lands in a foreign country, particularly in 
 the British dominions, this Court will hold the same 
 jurisdiction, as if they were situated in England. Lord 
 Hardwicke lays down the same doctrine, (3 Atk. 589.) 
 Therefore, without affecting the jurisdiction of the 
 Courts there, or questioning the regularity of the pro- 
 ceedings, as in a court of law, or saying, that this sale 
 would haA^e been set aside either in law or equity there, 
 I have no difficulty in saying, which is all I have to 
 say, that this creditor has availed himself of the advan- 
 tage he got by the nature of those laws, to proceed 
 behind the back of the debtor upon a constructive 
 notice, which could not operate to the only point to 
 which a constructive notice ought, that there might 
 be actual notice without wilful defliult ; that he has 
 gained an advantage, which neither the law of this, 
 nor of any other country would permit. I will lay down 
 the rule as broad as this ; this Court will not permit 
 him to avail himself of the law of any other country 
 to do, what would be gross injustice." ^ 
 
 § 545. To the extent of this decision, perhaps there 
 
 1 Cranstown v. Johnston, 3 Ves. R. 170 ; S. C. 5 Ves. 276. 
 
 CONFL. 77
 
 914 CONFLICT OF LAWS. [CH. XIV. 
 
 may not be any well-founded objection ; ^ and the same 
 doctrine has been repeatedly acted upon by the equity 
 courts of America.^ But even in England, the Court 
 of Chancery "will not act directly upon lands in the 
 plantations, so as to affect the title, or the possession, 
 or the rents and profits thereof^ Nor will it entertain 
 jurisdiction over contracts with regard to lands in fo- 
 reign colonies, so as to touch the title there ; or to pre- 
 vent a sale thereof by an injunction ; ^ although it has 
 been repeatedly held, in very general terms, that there 
 is no doubt of the jurisdiction of the Court of Chancery, 
 as to land in the West Indies, or in other foreign places, 
 if the persons are in England.^ 
 
 § 546. But it is not an uncommon course for a nation 
 by its own municipal code to provide for the institution 
 of actions against non-resident citizens, and against 
 non-resident foreigners, by a citation viis et modi's, (as it 
 is called,) or by an attachment of their property, nomi- 
 nal gDr real, within the limits of its own territorial sove- 
 reignty ; and to proceed to judgment against the party 
 defendant, whether he has any actual notice of the suit, 
 or not, or whether he ever appears to the suit, or not. In 
 respect to such suits in personam, by a mere personal ci- 
 tation, viis et modis, such as by posting up such a cita- 
 tion on the Royal Exchange, in London, as is done in 
 
 1 S. P. Jackson v. Petrie, 10 Ves. 164. 
 
 2 See Massie v. Watts, 6 Cranch, 148, 158 ; Ward v. Amedon, Hop- 
 kins, R. 213 ; Mead v. ]\Ierreit, 2 Paige, R. 402 ; Mitcliell v. Bunch, 2 
 Paige, R: 60G. 
 
 3 Roberdeau v Rous, 1 Atk. 543. See 1 Vern. R. 75, 135, 419 ; post, 
 §551. 
 
 4 White V. Hall, 12 Ves. Jr. 321. See Massie u. Watts, 6 Cranch, 
 148, 156. 
 
 5 Jackson v. Petrie, 10 Ves. 165.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 915 
 
 the Admiralty in England, or by an edictal citation (as 
 it is called,) posted up at the Key in Leith, at the mar- 
 ket cross of Edinburgh, and the pier and shore of Leith, 
 according to the practice of Scotland,^ there is no pre- 
 tence to say, that such modes of proceeding can confer 
 any legitimate jurisdiction over foreigners, who are non- 
 residents, and do not appear to answer the suit, whether 
 they have notice of the suit, or not. The effects of all 
 such proceedings are purely local ; and, elsewhere, they 
 will be held to be mere nullities. 
 
 § 547. Lord EUenborough put this doctrine with 
 great clearness and force, in a case before the Court, 
 where a judgment was obtained in the Island of To- 
 bago, against a party, stated in the proceedings, to be 
 " formerly of the City of Dunkirk, and now of the City 
 of London, merchant," and who was cited to appear at 
 the ensuing court, to answer the plaintiff's action, by a 
 summons, which was returned served " by nailing up a 
 copy of the declaration at the Court House door," and on 
 which service judgment was afterwards given by default 
 of the defendant to appear and defend it. It was at- 
 tempted to maintain the judgment, as. authorized by the 
 local law, in cases of persons absent from the island. Lord 
 EUenborough, in delivering the judgment of the Court, 
 said ; " By persons absent from the island, must neces- 
 
 1 Ersk. Instit. B. 1, tit. 2, ^S 17, IS ; Id. B. 4, tit. I, ^ 8. — Afier a 
 decree is obtained in personam, in Scotland, it seems, that letters of horn- 
 ing, as they are called, issue, requiring the defendant to comply with the 
 decree, which may be served by personal service, or, if the party cannot 
 be found, by application at his place of domicil, or dwelling-house ; and, 
 if he is out of the kingdom, then he is charged by a copy put up at the 
 market cross in Edinburgh, and at the pier and shore of Leith. Ersk. 
 Inst. B. 2, tit. 5, ^ 55 ; Id. B. 4, tit. 3, s"* 'J- See Douglas v. Forrest, 4 
 Bing. R. 686, 690.
 
 916 CONFLICT OF LAWS. [CH. XIV. 
 
 sarily be understood persons, who have been present, 
 and within the jurisdiction, so as to have been subject 
 to the process of the Court; but it can never be applied 
 to a person, who, for aught appears, never was present 
 within, or subject to the jurisdiction. Supposing, how- 
 ever, that the Act had said in terms, that though a per- 
 son sued in the island had never been present within 
 the jurisdiction ; yet that it should bind him, upon proof 
 of nailing up the summons at the court door ; how could 
 that be obligatory upon the subjects of other countries ? 
 Can the Island of Tobago pass a law to bind the rights 
 of the whole world ? Would the world submit to such 
 an assumed jurisdiction ? The law itself, however, 
 fairly construed, does not warrant such an inference ; 
 for ' absent from the island ' must be taken only to 
 apply to persons, who had been present there, and 
 were subject to the jurisdiction of the Court out 
 of which the process issued ; and, as nothing of that 
 sort was in proof here to show, that the defendant 
 was subject to the jurisdiction at the time of com- 
 mencing the suit, there is no foundation for raising an 
 assumpsit in la\y upon the judgment so obtained." ^ 
 
 1 Buchanan v. Rucker, 9 East, R. 192, 194. SeeCranstown v. Johns- 
 ton, 3 Ves. R. 170; S, C. 5 Ves. 276; Cavan v. Stewart, 1 Starkie, R. 
 625; Becquet v. McCarthy, 2 Barn. & Adolph. 951 ; S. P. Fergusson v. 
 Mahon, 11 Adolph. & Ellis, 179, 182.— In Smith v. Nicholls, 5 Bin^. 
 New Cases, 208, which was an action of trover for a ship, the defendant, 
 among other things, pleaded a foreign judgment and recovery by the 
 plaintiff in the Vice Admiralty Court at Sierra Leone for the same sub- 
 ject-matter. To that plea there was a replication, that the defendant was 
 not in the Colony of Sierra Leone, or at any place witliin the jurisdiction 
 of the Vice Admiralty Court, at the commencement of, or at any time 
 during the proceedings, or any time until after the judgment in the 
 Colony of Sierra Leone, and had no notice thereof, &c. ; and Lord Chief 
 Justice Tindal in delivering his opinion, adverting to this point, said ;
 
 CH. XIV.] JURISDICTION AND REMEDIES. 917 
 
 This doctrine has been fully recognized in the American 
 courts.^ 
 
 " The effect of the plaintiff's replication is this, — He shows some mat- 
 ters, by which at least prima facie the judgment relied on is a void judg- 
 ment; for he says, at the time of the suit being commenced, and from 
 that time down to the termination of the suit, not only was the defendant 
 in that action absent from the place, but that he had no person, whatever, 
 no agent, or any other person, on whom any processor monition from the 
 Court could be served, or who could answer for him. Till that is an- 
 swered by showing, that there was some law in the colony from which, in 
 the situation the party was, the judgment would not be a void one, we 
 must say the plaintiff is setting up that, which, if unanswered, shows it to 
 b^a void judgment. In Plummer v. Woodburne, the Court says, that be- 
 fore you set up a foreign judgment as conclusive in the nature of an 
 estoppel between the parties, it must appear on the record, that it is deci- 
 sive and binding between them in the colony, where the judgment is given. 
 That does not appear here ; and therefore on both grounds I think the plea 
 is a bad plea, as far as the foreign judgment is concerned." See also Plum- 
 mer V. Woodburne, 4 Barn. & Cressw. 625. Lord Brougham in alluding 
 to the same subject in Don u. Lippmann, 5 Clark & Finnell. 1, 20, 21, 
 said ; "But supposing that the debt might have been sued for in Fr.ince, 
 then comes the question, whether the French judgment cannot be sued on 
 as a substantive cause of action. It is, in fact, tendered as one of the 
 grounds of suit here. A foreign judgment is good here for such a pur- 
 pose, provided that it has not been obtained by fraud or collusion, or by a 
 practice contrary to the principles of all law. Fraser v. Sinclair, (Morr. 
 4543,) which was affirmed in this House, showed, that we regard a foreign 
 judgment only as prima facie evidence of a debt. Buchanan r. Rucker, 
 (1 Camp. 03 ; 9 East, 192,) established, that the court, before which a 
 foreign judgment is brought by a proceeding of this sort, may examine, 
 whether it has been rightly ^obtained or not ; and the principle of the de- 
 cision cannot be confined to the case of a party not being within the juris- 
 diction at the time the judgment is obtained. If he is a foreigner, and is 
 not within the jurisdiction, but is by force kept out of it before the action, 
 and is not sued by proper forms, his case is even stronger than that of the 
 defendant in Buchanan v. Rucker, and he must have the same principle 
 applied to it. The case of Douglas v. Forrest, (4 Bing. 680,) shows, 
 
 1 Teuton v. Garlick, 8 Johns. R. 194 ; Borden v. Fitch, 15 Johns. R. 
 121 ; Bissell v. Briggs, 9 Mass. R. 462; Mills v. Duryee, 7 Cranch, 481, 
 480 ; Picquet v. Swan, 5 Mason, R. 35, 43,44 ; Buttrick v. Allen, 8 Mass. 
 R. 473 ; De Witt v. Burnett, 3 Barbour, 96. 
 77 #
 
 918 CONFLICT OF LAWS. [CH. XIV. 
 
 § 548, In a recent case, the validity of a judgment 
 rendered in a foreign country in a suit against persons 
 who were non-residents, and had no actual notice of the 
 suit, and did not appear and answer the same, came be- 
 fore the Court of Common Pleas in England, upon a 
 Scottish judgment rendered against a Scottish absentee, 
 upon a due attachment of his heritable property in Scot- 
 land, and due proclamation, by what is technically 
 called "horning," in Scotland, which judgment was ren- 
 dered against the defendant by defiiult for his non- 
 appearance to answer the suit. The question was, 
 whether the judgment so rendered was void, or not. It 
 was held, that the judgment was valid. This decision 
 was founded partly upon the construction of the articles 
 of union between Scotland and England, and partly 
 upon the recognition of such a practice, as valid, by a 
 British Act of Parliament, and partly upon the fact, that 
 the judgment was against a Scottish subject.^ On that 
 occasion. Lord Chief Justice Best in delivering the opi- 
 nion of the Court said ; '- A natural born subject of any 
 
 how much the application of the rule is affected hy circumstances. In 
 that case, which was an action in an English Court on a Scotch judgment 
 of horning against a Scotchman born, the Court guards itself against a 
 general inference from the decision. The Chief Justice, in delivering the 
 judgment of the Court, says ; (4 Bing. 703,) ' We confine our judgment 
 to a case, where the party owed allegiance to the country, in which the 
 judgment was so given against him, and by the laws of which country his 
 property was, at the time those judgments were given, protected.' 
 Beckett v. McCarthy, (2 Barn. & Ad. 951,) has been supposed to go 
 to the verge of the law ; but the defendant in that case held a public office 
 jn the very colony in which he was originally sued." In the still more 
 recent case of Ferguson v. Mahon, .3 Perr. & Dav. R. 143, the Court of 
 King's Bench in England held, in an action on an Irish judgment, that it 
 was a good plea in bar, that the defendant was never served with, nor had 
 notice of any process in the action. 
 
 1 Douglas V. Forrest, 4 Bing. R. 686, 702, 703.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 919 
 
 country, quitting that country, but leaving property 
 under the protection of its laws, even during his ab- 
 sence, owes*obedience to those laws, particularly when 
 those laws enforce a moral obligation. The deceased, 
 before he left his native country, acknowledged, under 
 his hand, that he owed the debts ; he was under a moral 
 obligation to discharge those debts, as soon as he 
 could." ' And after adverting to the case of Buchanan 
 V. Rucker, and some others, he added ; " To be sure, if 
 attachments, issued against any persons, who were 
 never within the jurisdiction of the Court issuing them, 
 would be supported and confirmed in the country in 
 which the person attached resided, the legislature of 
 any country might authorize their Courts to decide 
 on the rights of parties, who owed no allegiance to 
 the government of such country, and were under no 
 obligation to attend its Courts, or obey its laws. We 
 confine our judgment to a case, where the party owed 
 allegiance to the country in which the judgment was 
 so given against him, from being born in it, and by the 
 laws of which country his property was, at the time 
 those judgments were given, protected. The debts 
 were contracted in the country in which the judgments 
 were given, whilst the debtor resided in it." ^ 
 
 § 548 a. Another case also occurred at a later period, 
 which presented a similar question. An action was 
 brought and a judgment recovered in the island of 
 Mauritius against a party, who had been a former resi- 
 
 1 Douglas V. Forrest, 4 Bing. R. 686, 702, 703. 
 
 2 Douglas V. Forrest, 4 Bing. R. 686, 702, 703, See also Becquet v. 
 McCarlliy, 2 Barn. & Adolph. R. 951 ; Don v. Lippmann, 5 Clark & Fin- 
 nell. 1, 21 ; Plummer v. Woodburne, 4 Barn. & Cressw. R. 625.
 
 920 CONFLICT OF LAWS. [CH. XIV. 
 
 dent in the Island ; but who was absent from the Island 
 during the whole course of the proceedings. By a law 
 of the Colony it was provided, that if a suit was insti- 
 tuted against an absent party, process should be served 
 upon the King's Procurator General in the colony ; but 
 it was not expressly provided that the Procurator Gene- 
 ral should communicate with the absent party. It ap- 
 peared that the process was served on the Procurator 
 General, but it did not appear, that the absent party 
 had any notice thereof The Court held, that the judg- 
 ment was valid. Lord Tenterden, on that occasion, in 
 delivering the opinion of the Court, said; "Another ob- 
 jection, and not an unimportant one, was, that the tes- 
 tator, when the proceedings were instituted against him, 
 was absent from the island ; and it was urged, that it 
 was contrary to the principles of natural justice, that 
 any one should be condemned unheard, and in his ab- 
 sence. Proof, however, was given, that by the law of 
 the colony, in the case of a person formerly resident in 
 the island, absenting himself, and not leaving any attor- 
 ney upon whom process in a suit might be served, 
 the Procurator General or his deputy was bound to take 
 care of the interests of such absent party. It was said, 
 that the law of the island did not provide any means, 
 whereby the Procurator General or his deputy might be 
 recj^uired to hold communication with, or receive direc- 
 tions from an absent person. There may, perhaps, be 
 some deficiency in the law in that respect ; but as the 
 law of the island is, that the process shall be served 
 upon the public officer, it must be presumed, that he 
 would do whatever was necessary in the discharge of 
 that public duty ; and we cannot take upon ourselves 
 to say, that the law is so contrary to natural justice, as
 
 CH. XIV.l JURISDICTION AND REMEDIES. 921 
 
 to render the judgment void in a case, where the pro- 
 cess was so served." ^ 
 
 § 549. A still more common course, in many States 
 and nations, is, to proceed against non-residents, whether 
 they are citizens, or Avhether they are foreigners, by a 
 seizure or attachment of their property situate or found 
 within the territory. Sometimes the seizure or attach- 
 ment is purely nominal, as, for example, of a chip, or a 
 cane, or a hat. In other cases the seizure or attach- 
 ment is hond fide of real property, or personal property, 
 within the territory, or of debts due to the non-resident 
 persons in the hands of their debtors, who live within 
 the country." In such cases, for all the purposes of the 
 suit, the existence of the property, so seized or attached 
 within the territory, constitutes a just ground of pro- 
 ceeding, to enforce the rights of the plaintiff to the 
 extent of subjecting such property to execution upon 
 the decree or judgment. But if the defendant has 
 never appeared and contested the suit, it is to be 
 treated to all intents and purposes as a mere proceed- 
 ing in rem, and not, as personally binding on the party 
 as a decree or judgment in personam; or, in other 
 words, it only binds the property seized or attached in 
 the suit to the extent thereof j and is in no just sense 
 
 1 Becquet v. McCarthy, 2 Barn. & Adolph. 951, 958, 959. — It has 
 been justly remarked by Lord Brougham, (in Don v. Lippmann, 5 Clark 
 & Finnell. 21,) that that case '• has been supposed to go to the verge of 
 the law ; but the defendant in that case held a public office in the very 
 colony, in which he was originally sued." Perhaps a stronger doubt of 
 its correctness might upon principles of public justice have been pro- 
 nounced. BouUenois manifestly deems an exorcise of jurisdiction against 
 an absent foreigner to be unfounded in point of authority. I Buullcnois, 
 Observ. 25, p. 610. 
 
 2 See Henry on Foreign Law, ch. 8, 9, 10, p. 51, 63, 71 ; Douglas v. 
 Forrest, 4 Bing. R. 686, 700, 701.
 
 922 CONFLICT OF LAWS. [CH. XIV. 
 
 a decree or judgment, binding upon him beyond that 
 property. In other countries, it is uniformly so treated, 
 and is justly considered as having no extra-territorial 
 force or obligation.' 
 
 1 See Ewer v. Coffin, 1 Gushing-, 23 ; Phelps v. Holker, 1 Dall. 261 ; 
 Kilburn v. Woodworth, 5 Johns. R. 37 ; Pawling v. Bird's Ex'ors, 
 13 Johns. 192 ; Bissell v. Briggs, 9 Mass. R. 462 ; Robinson v. Ex'ors 
 of Ward, 8 Johns. R. '86 ; post, ^ 592. But see Douglas v. Forrest, 
 4 Bing. R. 686, 702, 703 ; Shumway v. Stillman, 6 Wendell, R. 447 ; 
 1 Boullenois, Observ. 25, p. 609, 610, 619, 620, 622, 623,624,628; 
 6 Harris & Johns, R. 191 ; Taylor v. Phelps, 1 Gill & Johns. R. 492.— 
 Mr. Chief Justice Parsons, in his very able opinion in Bissell v. Briggs, 
 (9 Mass. R. 468,) has made some pointed remarks on this subject, from 
 which the following extract is made. " To illustrate this position, it may 
 be remarked, that a debtor, living in Massachusetts, may have goods, 
 effects, or credits, in New Hampshire, where the creditor lives. The 
 creditor there may lawfully attach these, pursuant to the laws of that 
 State, in the hands of the bailiff, factor, trustee, or garnishee of his debtor, 
 and, on recovering judgment, those goods, effects, and credits, may law- 
 fully be applied to satisfy the judgment ; and the bailiff, factor, trustee, or 
 garnishee, if sued in this State for those goods, effects, or credits, shall, in 
 our courts, be protected by that judgment, the Court in New Hampshire 
 having jurisdiction of the cause for the purpose of rendering that judg- 
 ment, and the bailiff, factor, trustee, or garnishee producing it, not to ob- 
 tain execution of it here, but for his own justification. If, however, those 
 goods, effects, and credits are insufficient to satisfy the judgment, and the 
 creditor should sue an action on that judgment in this State to obtain satis- 
 faction, he must fail ; because the defendant was not personally amenable 
 to the jurisdiction of the Court rendering the judgment. And, if the 
 d&fendant, after the service of the process of foreign attachment, should 
 either in person have gone into the State of New Hampshire, or consti- 
 tuted an attorney to defend the suit, so as to protect his goods, effects, or 
 credits from the effect of the attachment, he would not thereby have 
 given the Court jurisdiction of his person ; since this jurisdiction must 
 result from the service of the foreign attachment. It would be unreason- 
 able to oblige any man living in one State, and having effects in another 
 State, to make himself amenable to the courts of the last State, that he 
 might defend his property there attached." See post, ^ 584, 592, 598 to 
 618. Mr. Burge has made the following remarks on the same subject. 
 " In order that it may produce the effect of res judicata in the country, in 
 which it is pronounced, and ^ fortiori in a foreign country, the sentence 
 must be given by a competent tribunal. It must put a final termination
 
 CH. XIV.] JURISDICTION AND REMEDIES. 923 
 
 § 550. In the next place, let us consider the subject 
 of jurisdiction in regard to property. It will be unne- 
 
 to the matter in litigation, and it must be certain. The want of either of 
 these requisites is such a defect as to render the sentence null and void, 
 and this defect is called a nullity. The judicial tribunal must be compe- 
 tent to entertain jurisdiction of the subject-matter of the suit. If, accord- 
 ing to the constitution of the tribunal, the subject-matter of the sentence 
 was excluded from its cognizance, the sentence pronounced by the indi- 
 viduals composing it would possess the weight wliicli belonged to an arbi- 
 trament made by those to whom the litigating parties had submitted tlieir 
 differences, but it would not possess the authority of res judicata. Where 
 a limited tribunal takes upon itself to exercise a jurisdiction which does 
 not belong to it, its decision amounts to nothing, and does not create any 
 necessity for an appeal. Such a defect in the sentence cannot be cured by 
 the appearance of the party. Another nullity in the sentence is, a deci- 
 sion given upon that, which was not demanded or not contested, or when 
 more has been adjudged than was demanded, for in either case the judge 
 has exceeded his jurisdiction : " Ultra id, quod in judicium deductum est, 
 potestas judicis nequaquam potest excedere." The party, against whom 
 the sentence has been obtained, must be subject to the jurisdiction of that 
 tribunal. Such a jurisdiction is founded either in respect of the defend- 
 er's domicil in the territory of the tribunal, ratione domicilii, or in respect 
 of his being possessed of some estate or subject within it, ratione rei sit83, 
 or on the arrestment made by the decree of the court of the party's mov- 
 able effects, arrestum causa fundandac jurisdictionis. A jurisdiction 
 acquired by the arrest of the defender's property was not known to the 
 civil law, but it was admitted in the jurisprudence of Plolland, Spain, 
 France, and -Scotland, in all personal actions, in which the defender is 
 bound, "ad dandum, faciendum, et prsestandum." It is not allowed in 
 order io compel the defender to appear before any other judicial tribunal 
 than that of the place in which the immovable property, the subject of the 
 suit, is situated. By the law of Scotland the jurisdiction is founded not 
 only on the defendant's domicil, but on his personal residence in a place 
 for forty days. It admits jurisdiction ratione rei sita», unless it has for its 
 object a question merely personal, as of status. Where a foreigner not 
 otherwise subject to the jurisdiction of the courts of Scotland is possessed 
 of movable property, there the jurisdiction is acquired by arresting his 
 goods, and so fixing them within the judge's territory, or by their being 
 already a subject of competition in a court of that kingdom. By the civil 
 law the jurisdiction was acquired in respect of the place in which the con- 
 tract was entered into, or in which it was to be performed ; but the codes 
 founded on the civil law do not admit a jurisdiction in either of these cases 
 unless the defendant is found in that place. The citation of the defender,
 
 924 CONFLICT OF LAWS. [CH. XIV. 
 
 cessary to discuss the matter at large, as to personal 
 property, since the general doctrine is not controverted, 
 that, although movables are, for many purposes, to he 
 deemed to have no situs, except that of the domicil of 
 the owner ; yet, this being but a legal fiction, it yields, 
 
 the vocatio in jus, juris experiendi causa vocatio, is essential to the validity 
 of the sentence, because otherwise he has not had the opportunity of de- 
 fending hinnself against the claim of his adversary. That citation need not 
 have been served on him personally ; it is sufficient if it be left at his 
 house. When the tribunal acquires jurisdiction either ratione rei sitae, or 
 by arrestment in consequence of the defender having no domicil in loco 
 fori, this citation is necessarily a merely formal act. By the Code Civil, 
 the public minister is specially charged with the duty of watching over 
 the interests of those who are presumed to be absent, and he is to be heard 
 upon all deinands which concern them. The Code de Procedure makes 
 provision for delivering to certain public officers copies of the process, 
 which may be issued against foreigners. The jurisdiction exercised by 
 the Courts of England is in general founded on the personal service of the 
 process on the defendant. Indeed, according to the ancient law, the 
 plaintiff could not proceed in an action before the defendant had actually 
 appeared in court to answer him; and even if he pertinaciously neglected 
 or refused to appear, the only course was to issue continued process, or to 
 distrain upon his goods, in order thereby, as it was expected, to induce 
 him to appear, or to outlaw him, by which process he incurred a qualified 
 forfeiture of his land and goods, and all his civil rights as a subject were 
 suspended. But in certain cases, after actual personal service, the plaintiff 
 was, by the aid of certain statutes, permitted to enter an appearance for 
 the defendant. But if the defendant were abroad, or avoided the service 
 of process, and had no goods (the distraining of which was considered 
 nearly equivalent to actual service, because it was supposed the defendant 
 would hear of that proceeding,) then the only course was, and still is, to 
 proceed to outlawry, which, however, does not enable the plaintiff to pro- 
 ceed in his action, or to obtain judgment therein, but only causes a seizure 
 of the lands, goods, and property of the defendant, as forfeited to the king 
 for the defendant's contumacy and disrespect of his process. But the 
 plaintiff may thereupon, by application to the Court of Exchequer or by 
 petition, when his claim exceeds fifty pounds, obtain satisfaction of his 
 debt by sale of the defendant's property seized under his outlawry, unless 
 previously the defendant appears to the action, and enables the plaintiff to 
 try the merits." See also Ewer v. Coffin, 1 Cush. 24 ; Rangeley v. Web- 
 ster, II New Hamp. 299 ; McVicker v. Budy, 31 Maine, 317 ; 3 Burge, 
 Comm. on Cor. and For. Law, Pt. 2, ch. 24, p. 1016, 1019.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 925 
 
 whenever it is necessary for the purpose of justice, that 
 the actual situs of the thing should be examined. A 
 nation, within whose territory any personal property is 
 actually situate, has as entire dominion over it, while 
 therein, in point of sovereignty and jurisdiction, as it 
 has over immovable property situate there. It may 
 regulate its transfer, and subject it to process and exe- 
 cution, and provide for and control the uses and dispo- 
 sition of it to the same extent, that it may exert its 
 authority over immovable property.^ One of the 
 grounds upon which, as we have seen, jurisdiction is 
 assumed over non-residents, is, through the instrument- 
 ality of their personal property, as well as of their real 
 property, within the local sovereignty.- Hence it is, 
 that, whenever personal property is taken by arrest, 
 attachment, or execution within a state, the title so 
 acquired under the laws of the state is held valid in 
 every other state ; ^ and the same rule is applied to 
 debts due to non-residents, which are subjected to the 
 like process under the local laws of a state.^ 
 
 § 551. In respect to immovable property, every at- 
 tempt of any foreign tribunal to found a jurisdiction 
 over it, must, from the very nature of the case, be 
 utterly nugatory, and its decree must be forever inca- 
 pable of execution m trm. We have seen, indeed, that 
 
 • 1 See ante, ^ 423 a. 
 
 2 Ante, 519. 
 
 ^ Lord Kenyon expressed his opinion to the following effect, in Ogden 
 u. Folliott, (3 T. R. 733.) "I have always understood it to be clear, 
 (said he,) that all judicial acts, done in one country over the property of 
 the subjects within their jurisdiction, are conclusive on the property of 
 those parties in any other country." 
 
 4 See Bissell v. Briggs, 9 Mass. R. 462, 468, 469. But see Folliott v. 
 Ogden, 1 H. Black. R. 123, 135 ; S. C. 3 T. R. 726, 733. See Donn v. 
 Lippmann, 5 Clark & Finnell. 1, 19. 
 CONFL. 78
 
 926 CONFLICT OF LAWS. [CH. XIV. 
 
 by the Roman law a suit might in many cases be 
 brought, either where the property was situate, or where 
 the party had his domicil.^ This might well be done 
 within any of the vast domains, over which the Roman 
 empire extended ; for the judgments of its tribunals 
 would be everywhere respected and obeyed. But 
 among the independent nations of modern times there 
 would be insuperable difficulties in such a course. And 
 hence, even in countries acknowledging the Roman 
 law, it has become a very general principle, that suits 
 in rem should be brought, where the property is situate ; 
 and this principle is applied with almost universal ap- 
 probation in regard to immovable property.^ The same 
 rule is applied to mixed actions, and to all suits, which 
 touch the realty.^ 
 
 § 552. Boullenois has treated this whole subject with 
 becoming fulness and accuracy. He has divided ac- 
 tions into those which are purely personal, those 
 which are purely real, and those which are mixed, 
 and partake of the character of both, following, in 
 these respects, as he avows, the division of Bur- 
 gundus.^ The first, (personal actions,) respect the 
 
 1 Ante, ^ 532, 545 ; post, § 586, 591. 
 
 2 The jurisdiction as to the rights of real property is local, the subject 
 being fixed and immovable. Lord Chief Justice De Grey in Rafael v. 
 Develst, 2 Wm. Black. R. 1058. 
 
 3 Henry on Foreign Law, ch. 8, ^ 3, p. 59, ch. 9, ^ 1, p. 63 ; 1 Boulle- 
 nois, Observ. 25, p. 601, &c. ; Id. p. 618, 619 ; Id. p. 635, &.c. ; Id. p. 
 619. 
 
 4 The language of Burgundus is ; Omnium condemnationum summa 
 divbio, pariter in tria genera deducitur. Aut enim in rem, aut in per- 
 sonam, aut in utramque concipiuntur. In rem, quoties alicui res asseri- 
 tur, hoc est ejus esse dicitur, vel jure creditoris, aut alio modopossidenda 
 datur. In personam, si condemnetur ad aliquid dandum aut patiendum, 
 faciendum aut non faciendum, vel, si personse statum afficiat. la utram- 
 que si et res, et persona; simul in condemnationem veniant. Burgundus, 
 Tract. 3, n. 1, 2, p. 84, 85.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 927 
 
 quality, state, or condition of persons, and pronounce 
 against them judgments purely personal. Ad dandum, 
 vel facienduiUy aut non faciendum. The next, (real ac- 
 tions,) respect things, either the proprietary right or 
 ownership, or the right of possession, or the right or 
 title of a creditor, or some other right or title. The last, 
 (mixed actions,) respect both persons and things, either 
 in adjudging the property to one, or pronouncing against 
 him a personal judgment for the profit of the other, or 
 adjudging the property to one, and adjudging the other 
 to make restitution of the profits to him ; so that it is 
 the title of the action which characterizes the action.^ 
 Personal actions may rightfully be brought between 
 natives in any competent tribunal of the realm ; and 
 between foreigners also, who have submitted to the ju- 
 risdiction, wherever the laws allow its exercise ; and 
 between natives and foreigners in like manner.^ But 
 in all these cases the domicil of the party defendant is 
 commonly supposed to be within the jurisdiction.^ Real 
 actions ought to be brought in the place rei sitw ; and 
 this is the rule not only, when the property in contro- 
 versy is situate in the same kingdom ; but also when 
 
 1 1 Boullenois, Observ. 25, p. 601, 602. 
 
 2 Boullenois makes a distinction in suits between natives and foreign- 
 ers to this effect. If a foreigner sues a native, then the jurisdiction is 
 well founded against the latter in the place of his domicil ; and the fo- 
 reigner is bound by the judgment. If the foreigner is defendant, and has 
 submitted to the jurisdiction, then the same result follows. If he has not 
 submitted, or has not appeared to the suit, then the judgment is not obliga- 
 tory. 1 Boullenois, Observ. 25, p. 609, 610. He founds himself in this 
 opinion upon the general rule. Actor sequitur forum rei ; and he quotes 
 with approbation the remark of J. Gaill ; Quis manens extra regnum non 
 tenetur in parlamento respondere super actione personali. Id. p. 612. 
 
 3 1 Boullenois, Observ. 25, 601, 602, 603, 606, 609, 610. See also Id. 
 Prin. G6n. 31, p. 8, 9.
 
 928 CONFLICT OF LAWS. [CH. XIV. 
 
 the parties, being domiciled in one country, engage in 
 a litigation, as to property locally situate in another 
 country.^ If, therefore, a judgment should be rendered 
 in one country respecting property in another, it will be 
 of no force in the latter. It is true, that property within 
 a country does not make the owner generally a subject 
 of the sovereign, where it is locally situate ; but it sub- 
 jects him to his jurisdiction secundum quid, d aliquo modor 
 Mixed actions, so far as they regard the realty, are to 
 be brought in the place rei sitce ; but if the personal 
 damages or claims be separable in their nature and 
 character, they may be sued for as personal actions.^ 
 There are many other jurists who adopt the like dis- 
 tinctions.'* 
 
 § 553. Yattel explicitly avows the same doctrine. 
 " The defendant's judge," (that is, the competent judge,) 
 says he, "is the judge of the place where the defend- 
 ant has his settled abode, or the judge of the place 
 where the defendant is when any sudden difficulty 
 arises, provided it does not relate to an estate in land, 
 or to a right annexed to such an estate. In such a case, 
 as property of this kind is to be held according to the 
 laws of the country, where it is situated, and as the 
 right of granting it is vested in the ruler of the coun- 
 try, controversies relating to such [real] property can 
 only be decided in the state in which it depends." ^ 
 
 1 1 Boullenois, Observ. 25, p. 618, 619, 620, 622, 623 ; Id. Princ. G6n. 
 35, 37^ p. 9, 
 
 2 la. Observ. 25, p. 623, 624, 625. 
 ^ Id. Observ. 25, p. 635, 636. 
 
 4 Id. Observ. 25, p. 601, to p. 651 ; 1 Hertii, Opera, De Collis. Leg. ^ 70, 
 p. 132, edit. 1737 ; Id. p. 215, edit. 1716 ; J. Voet, ad Pand. Tom. l,Lib. 
 4, tit. 1, ^ 28, p. 241. 
 
 5 Vattel, B. 2, ch. 8, § 103.
 
 CII. XIV.] JURISDICTION AND REMEDIES. 929 
 
 § 554. It will be perceived, that in many respects 
 the doctrine here laid down coincides with that of the 
 common law. It has been already stated, that by the 
 common law personal actions, being transitory, may be 
 brought in any place where the party defendant can be 
 found ; ^ that real actions must be brought in the fonim 
 rei sitcc ; and that mixed actions are properly referable 
 to the same jurisdiction.- Among the latter are actions 
 for trespasses and injuries to real property, which are 
 deemed local; so that they will not lie elsewhere than 
 in the place rei dice. This distinction was recognized 
 as long ago as 1G65, in a case,^ where the twelve Judges 
 certified, that for torts to the person and to personal 
 property done abroad, a remedy lay in a suit in per- 
 
 1 Personal injuries are of a transitory nature, et sequunter forum Rei. 
 Lord Chief Justice De Grey in Rafael v. Develst, 2 W. Black. R. 1058. 
 See Mostyn v. Fabrigas, Cowper, R. 161, 176, 177; Robinson v. Bland, 
 2 Burr. R. 1074 ; S. C. 1 W. Black. 259 ; ante, 364. 
 
 2 Ante, ^ 364; 4Cowen, R. 527, note. — Lord Mansfield in Mostyn v. 
 Fabrigas, (Cowper, R. 161, 176,) said : " There is a formal and a sub- 
 stantial distinction as to the locality of trials. I state them as different 
 things. The substantial distinction is, where the proceeding is in rem ; 
 and where the effect of judgment cannot be had, if it is laid in a wrong 
 place. That is the case of all ejectments, &c. With regard to matters, 
 that arise out of the realm, there is a substantial distinction of locality too ; 
 for there are some cases, that arise out of the realm, which ought not to be 
 tried anywhere but in the country where they arise. As if two persons 
 fight in France, and both happening casually to be here, one should bring 
 an action of assault against the other, it might be a doubt, whether such 
 an action could be maintained here ; because, though it is not a criminal 
 prosecution, it must be laid to be against the peace of the king ; but the 
 breach of the peace is merely local, though the trespass against the person 
 is transitory." His Lordship here doubtless alluded to a case of a personal 
 trespass between foreigners ; for in a subsequent part of the same opinion 
 he expressly held, that, as between subjects, not only upon contracts, but 
 for personal torts, an action might be maintained in England ; and indeed 
 that was the very point decided in the case then in judgment. 
 
 3 Skinner v. The East India Company, cited in Cowper, R. 167, 168.
 
 930 CONFLICT OF LAWS. [CH. XIV. 
 
 sonam in England ; but that for torts to real property or 
 to fixtures abroad no suit lay. Lord Mansfield and Lord 
 Chief Justice Eyre held at one time a different doctrine ; 
 and allowed suits to be maintained in England for inju- 
 ries done by pulling down houses in foreign unsettled 
 regions, viz. in the desert coasts of Nova Scotia and 
 Labrador.' But this doctrine has been since overruled 
 as untenable according to the actual jurisprudence of 
 England;^ however maintainable it might be upon 
 general principles of international law, if the suit were 
 for personal damages only.^ [It has been determined, 
 however, in a late case in America, that a person resid- 
 ing in Pennsylvania, and owning real estate situated . 
 there, might maintain an action in the Circuit Court of 
 the United States, in the State of New Jersey, against 
 a canal corporation chartered by the latter State, for 
 consequential injuries done to such real estate by the 
 defendant's canal, situated also in New Jersey.*] 
 
 § 555. The grounds upon which the exclusive juris- 
 diction is maintained over immovable property are the 
 same, upon which the sole right to establish, regulate, 
 and control, the transfer, descent, and testamentary dis- 
 position of it have been admitted by all nations. The 
 
 1 Cited by Lord Mansfield in Mostyn v. Fabrigas, Cowper, R. 180, 181. 
 
 3 Doulson V. Matthews, 4 T. R. 503. And see Watts v. Kinney, 
 6 Hill, N. Y. R. 82. 
 
 3 The doctrine of this last case was very fully examined and afiirmed by 
 Mr. Chief Justice Marshall, in the case of Livingston v. Jefferson, before 
 the Circuit Court of Virginia, in 1811, (4 Hall's American Law Journal, 
 p. 78.) It was an action quare clausam fregit, brought against Mr. Jef- 
 ferson on account of an alleged trespass to lands (the Batture) in New Or- 
 leans, by his order, while he was President of the United States. The 
 suit was dismissed for want of jurisdiction. 
 
 '^ Rundle v. Delaware and Raritan Canal, Wallace, Jr's. R. 275. See 
 also Holmes v. Barclay, 4 Louis. Ann. R. 63.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 931 
 
 inconveniences of an opposite course would be iunume- 
 rablCj and would subject immovable property to the 
 most distressing conflicts arising from opposing titles, 
 and compel every nation to administer almost all other 
 laws, except its own, in the ordinary administration of 
 justice.* 
 
 556. Having stated these general principles in rela- 
 tion to jurisdiction, (the result of which is, that no nation 
 can rightfully claim to exercise it, except as to persons 
 and property within its own domains,) we are next led 
 to the consideration of the question, in what manner 
 suits arising from foreign causes are to be instituted, 
 and proceedings to be had until the final judgment. 
 Are they to be according to the law of the place where 
 the parties, or either of them, live ? Or are they to be 
 according to the modes of proceeding and forms of suit 
 prescribed by the laws of the place where the suits are 
 brought ? Fortunately, herC; there is scarcely any 
 ground left open for controversy, either at the common 
 law, or in the opinions of foreign jurists, or in the ac- 
 tual practice of nations. It is universally admitted and 
 established, that the forms of remedies, and the modes 
 of proceeding, and the execution of judgments, are to 
 be regulated solely and exclusively by the laws of the 
 place where the action is instituted ; or, as the civilians 
 uniformly express it, according to the Lea: fori? 
 
 § 557. The reasons for this doctrine are so obvious, 
 that they scarcely require any illustration. The busi- 
 ness of the administration of justice by any nation is, in 
 
 1 Ante, ^ 364, 365. 
 
 2 See on this point, iBurge, Contiin. onCol. and For. Law, Pt. l,eli. I, 
 p. 24 ; Ferguson v. Fyfre,8 Clark & Finnell. 121 ; General Steam Naviga- 
 tion Co. V. Guillen, 11 Mees. & Wels. 877.
 
 932 CONFLICT OF LAWS. [CH. XIV. 
 
 a peculiar and emphatic sense, a part of its public right 
 and duty. Each nation is at liberty to adopt such forms 
 and such a course of proceeding as best comport with its 
 convenience and interests, and the interests of its own 
 subjects, for whom its laws are particularly designed. 
 The different kinds of remedies, and the modes of pro- 
 ceeding, best adapted to enforce rights and guard 
 against wrongs in any nation, must materially depend 
 upon the structure of its own jurisprudence. What 
 would be well adapted to the jurisprudence, either cus- 
 tomary or positive, of one nation, for rights which it 
 recognized, or for duties which it enforced, or for wrongs 
 which it redressed, might be wholly unfit for that of 
 another nation, either as having gross defects, or steer- 
 ing wide of the appropriate remedial justice. A nation, 
 acknowledging the existence of peculiar rights and pri- 
 vileges, either personal or real, such as seignorial rights, 
 Qr trusts in the realty, would naturally introduce cor- 
 respondent remedies. While other nations, in which 
 such rights and privileges and trusts did not exist, 
 might well dispense with the formalities which they 
 might require. The jurisprudence of one nation may 
 be very refined and artificial, with a multitude of intri- 
 cate and perplexed proceedings ; that of another may 
 be rude, uninformed, and harsh, consisting of an undi- 
 gested mass of usages. It would be absolutely imprac- 
 ticable to apply the process and modes of proceeding of 
 the one nation to the other. Besides ; there would be 
 an utter confusion in all judicial proceedings by attempt- 
 ing to engraft upon the remedies of one country those 
 of all other countries whose subjects should be parties 
 or be interested therein. No tribunal on earth, however 
 learned, could hope, by any degree of diligence, to mas- 
 ter the laws and processes and remedies of all other
 
 CH. XIV.] JURISDICTION AND REMEDIES. 933 
 
 nations, and the qualifications and limitations properly 
 belonging thereto. A whole life might be passed in 
 obtaining little more than a few unconnected elements ; 
 and litigation would thus become immeasurably com- 
 plicated, if not absolutely interminable. All that any 
 nation can, therefore, be justly required to do, is to 
 open its own tribunals to foreigners, in the same man- 
 ner and to the same extent, as they are open to its own 
 subjects ; and to give them the same redress, as to 
 rights and wrongs, which it deems fit to acknowledge 
 in its own municipal code for natives and residents.^ 
 
 Lord Brougham, in delivering- his judgment in Donn v. Lippmann, 5 
 Clark & Finnell. R. 1, 13, 14, made some striking remarks on this sub- 
 ject. " The law on this point is well settled in this country, where this 
 distinction is properly taken, that whatever relates to the remedy to be 
 enforced, must be determined by the lex fori, the law of the country to the 
 tribunals of which the appeal is made. This rule is clearly laid down in 
 the British Linen Company v. Drummond, (10 Barn. & Cres. 903); De 
 la Vega v. Vianna, (I Barn. & Adol. 284,) and in Huber v. Steiner, (2 
 Scott, 304; 1 Hodges, 206 ; 2 Bing. N. C. 202 ; 2 Dowl. Prac. Gas. 781 ; 
 and 4 Moore & Scott, 328,) though the reverse had previously been 
 recognized in Williams v. Jones, (13 East, 439.) Then, assuming that 
 to be the settled rule, the only question in this case would be, whether the 
 law now to be enforced is the law which relates to the contract itself, or 
 to the remedy. When both the parties reside in the country, where the 
 act is done, they look of course to the law of the country, in which they 
 reside. The contract being silent as to the law, by which it is to be go- 
 verned, nothing is more likely than that the lex loci contractus sliould be 
 considered at the time the rule ; for the parlies would not suppose, that 
 the contract might afterwards come before the tribunals of a foreign coun- 
 try. But it is otherwise, when the remedy actually comes to be enforced. 
 The parties do not necessarily look to the remedy, when they make the 
 contract. They bind themselves to do, what the law they live under 
 requires; but as they bind themselves generally, it may be taken as if 
 they had contemplated the possibility of enforcing it in another country. 
 That is the lowest ground, on which to place the case. The inconveni- 
 ence of pursuing a different course is manifest. Not only the principles 
 of the law, but the known course of the courts renders it necessary, that 
 the rules of precedent should be adopted, and that the parties should take
 
 934 CONFLICT OF LAWS. [CH. XIV. 
 
 § 558. The doctrine of the common law is so fully 
 established on this point, that it would be useless to do 
 more than to state the universal principle, which it 
 has promulgated ; that is to say, that in regard to the 
 merits and rights involved in actions, the law of the 
 place where they originated, is to govern ; In iis, qum 
 spedant decisoria caiisce, et litis decisionem, inspiciuntiir sta- 
 tiita loci, iibi contractus fuit celehmtus} But the forms of 
 remedies and the order of judicial proceedings are to 
 be according to the law of the place where the action 
 is instituted, without any regard to the domicil of the 
 parties, the origin of the right, or the country of the 
 act.2 
 
 the law as they find it, when they come to enforce their contract. It is 
 true, that there may be no difficulty in knowing the law of the place of 
 the contract, while there may be a great difficulty in knowing that of the 
 place of the remedy. But that is no answer to the rule. The distinction, 
 which exists as to the principle of applying the remedy, exists with even 
 greater force as to the practice of the courts, where the remedy is to be 
 enforced. No one can say, that because the contract has been made 
 abroad, the form of action known in the foreign court must be pursued in 
 the courts where the contract is to be enforced, or the other preliminary 
 proceedings of those courts must be adopted, or that the rules of pleading, 
 or the curial practice of the foreign country, must necessarily be followed. 
 No one will assert, that before the Jury Court in Scotland the English 
 creditor of a domiciled Scotchman would have the right to call for a trial 
 of the case by a jury ; or take the converse, that a Scotchman might refuse 
 the intervention of a jury here, and insist on having the case tried, as in 
 Scotland, by the judge only. No one will contend in terms, that the fo- 
 reign rules of evidence should guide us in such cases; and yet it is not so 
 easy to avoid that principle in practice, if you once admit, that though the 
 remedy is to be enforced in one country, it is to be enforced according to 
 the laws which govern another country. 
 
 1 2 Boullenois, Observ. 46, p. 462; ante, § 260; Bank of United States 
 V. Donnally, 8 Peters, R. 361, 372; Andrews v. Pond, 13 Peters, R. 65 ; 
 Wilcox V. Hunt, 13 Peters, R. 378. See also Bouhier, Coutume de Bourg. 
 ch. 18, n. 10 ; ante, ^ 242, ^ 260 to ^ 273. 
 
 ~ The authorities are exceedingly numerous. Among them we may cite 
 the following. Andrews v. Herriott, 4 Cowen, R. 408 ; and see Id. 528,
 
 en. XIV.] JURISDICTION AND REMEDIES. 935 
 
 § 559. Nor are foreign jurists less pointed in their 
 recognition of it. Thus Bartolus, in speaking upon 
 
 n. (10), and authorities there cited ; 2 Kent, Comm. Lect. 27. p. 118, &c. 
 3d edit.; Robinson v. Bland, 2 Burr. 1084; De la Vega v. Vianna, 1 
 Barn. & Adolp. R. 284 ; Trimbey v. Vignier, 1 Bing. N. Cas. 159, 160, 
 161 ; Donn v. Lippmann, 5 Clark & Fin. R. 1, 13, 19, 20 ; ante, ^ 557, 
 note, Fenwick v. Sears, 1 Cranch, 259; Nash v. Tupper, 1 Cain. R. 
 402; Pearsall r. Dwight, 2 Mass. R, 84 ; Smith v. Spinola, 2 Johns. R, 
 189 ; Van Reimsdyk v. Kane, 1 Gallis. R. 371 ; Lodge v. Phelps, 1 Johns. 
 Cas. 412; Thrasher v. Everhart, 3 Gill. & Johns. 234 ; Hyde v. Good-' 
 now, 3 Comstock, 270; Wood v. Watkinson, 17 Conn. 510; Peck v. 
 Hozier, 14 Johns, R. 346 ; Ohio Insur. Company v, Edmondson, 5 Louis. 
 R. 295 to 300 ; Warren v. Lynch, 5 Johns. R. 239 ; Jones v. Hook's Ad- 
 ministrator, 2 Rand. Virg. R. 303; Wilcox v. Hunt, 13 Peters, R, 378, 
 379 ; French v. Hall, 9 N. Hamp. R. 137 ; Bank of United States v. Do- 
 nally, 8 Peters, R. 361, 370,371, 372, 373. — This last case was an action 
 brought in Virginia on a promissory note made in Kentucky, not under 
 seal, but which by the law of Kentucky was deemed a specialty. The 
 Statute of Limitations of Virginia was pleaded in bar ; and one question 
 was, whether it was a good bar or not. On that occasion the court said ; 
 " The other point, growing out of the statute of limitations, pleaded to 
 the fourth and fifth counts (for as to the three first counts it is conceded 
 to be a good bar) involves questions of a very difTerent character, as to the 
 operation and effect of a conflict of laws in cases governed by the lex loci. 
 The statute of limitations of Virginia provides, that ' all actions of debt, 
 grounded upon any lending or contract without specialty,' shall be com- 
 menced and sued within five years next after the cause of such action or 
 suit, and not after. This being the language of the act, and confessedly 
 governing the remedy in the courts of Virginia, the bar of five years must 
 apply to all cases of contract, which are without specialty, or in other 
 ■words, are not founded on some instrument acknowledged as a specialty 
 by the law of that State. The common law being adopted in Virginia, 
 and the word ' specialty ' being a term of art of that law, we are led to the 
 consideration, whether the present note is deemed, in the common law, to 
 be a specialty. And certainly it is not so deemed. It is not a sealed con- 
 tract, nor does it fall under any other description of instruments or con- 
 tracts or acts known in the common law as specialties. The argument 
 does not deny this conclusion ; but it endeavors to escape from its force, by 
 aflirming, that the note is a specialty according to the laws of Kentucky ; 
 and if so, that this constitutes a part of its nature and obligation : and it 
 ought, everywhere else, upon principles of international jurisprudence, to 
 be deemed of the like validity and effect. The act of Kentucky of the
 
 936 CONFLICT OF LAWS. [CH. XIV. 
 
 contracts, says ; Qiicvro, quid de contractibiis ? Pone 
 contr actum celelratum per aliquem forensem in hoc civitate ; 
 
 4th of February, 1812, provides, 'that all writings hereafter executed 
 without a seal or seals, stipulating for the payment of money or property, 
 or for the performance of any act, duty, or duties, shall be placed upon the 
 same footing with sealed writings, containing the like stipulations, re- 
 ceiving the same consideration in all courts of justice, and to all intents 
 and purposes, having the same force and effect, and upon which the same 
 species of action may be founded, as if sealed.' Now, it is observable, 
 that this statute does not in terms declare that such writings shall be 
 deemed specialties ; nor does it say, that they shall be deemed sealed 
 instruments. All that it affirms is, that they shall be put upon the same 
 footing as sealed instruments, and have the same consideration, force, effect? 
 and remedy as sealed instruments. So that it is perfectly consistent with the 
 whole scope and object of the act, to give them the same dignity and obli- 
 gation as specialties, without intending to make them such. A State legis- 
 lature may certainly provide, that the same remedy shall be had in a pro- 
 missory note, as on a bond or sealed instrument ; but it will not thereby 
 make the note a bond or sealed instrument. It may declare, that its obli- 
 gation and force shall be the same, as if it were sealed ; but that will still 
 leave it an unsealed contract. But whatever may be the legislation of a 
 State, as to the obligation or remedy on contract, its acts can have no 
 binding authority beyond its own territorial jurisdiction. Whatever 
 authority they have in other States, depends upon principles of international 
 comity, and a sense of justice. The general principle adopted by civilized 
 nations is, that the nature, validity, and interpretation of contracts, are to 
 be governed by the law of the country where the contracts are made, or 
 are to be performed. But the remedies are to be governed by the laws of 
 the country, where the suit is brought ; or, as it is compendiously express- 
 ed, by the lex fori. No one will pretend, that because an action of cove- 
 nant will lie in Kentucky on an unsealed contract made in that State ; 
 therefore, a like action will lie in another State, where covenant can be 
 brought only on a contract under seal. It is an appropriate part of the 
 remedy, which every State prescribes to its own tribunals, in the same 
 manner in which it prescribes the times, within which all suits must be 
 brought. The nature, validity, and interpretation of the contract may be 
 admitted to be the same in both States ; but the mode, by which the 
 remedy is to be pursued, and the time within which it is to be brought, may 
 essentially differ. The remedy, in Virginia, must be sought within the 
 time, and in the mode and according to the descriptive characters of the 
 instrument, known to the laws of Virginia, and not by the description 
 and characters of it prescribed in another State. An instrument may be 
 negotiable in one State, which yet may be incapable of negotiability by 
 tlie laws of another State ; and the remedy must be in the courts of the
 
 CH. XIV.] JURISDICTION AND REMEDIES. 937 
 
 litigmm ortiim est, et agitatiir Us in loco originis contrahentis. 
 Oujiis loci stahita dehent servari vel spectari ? Disiingiie ; 
 Aid loqimmw de stcduto, aiit de consiietudine, quce rcspiciiint 
 ipsiiis contractus solennitatem, aid litis ordinationem, aid de 
 his, qiuc imiincnt ad jurisdictionem ex ipso contractu eveni- 
 cntis execidionis. Primo casii, i7ispicitiir locus contractus. 
 Secundo casii, aid qiiwris de his, quce pertinent ad litis or- 
 dincdioneni, et inspicitur locus judicii ; cad de his quce. 
 pertinent ad ipsius litis dccisioncm, et tunc, cad de his, quce 
 oriuntur secundum ipsius contractds naturam tempore con- 
 tractus, aid de his, quce oiiuntur ex post facto, propter neg- 
 ligentiam vcl morcan ; primo casu inspicitur locus contractus, 
 &c} 
 
 § 560. Rodenburg asserts the same distinction. Pri- 
 mum idamur vulgatd doctorum distinctione, qua separantur 
 ea, quce litis formam concernunt ac ordincdioncm, al iis, quw 
 dccisioncm cad mcderiam^ Lis ordinanda secundum morem 
 loci, in cquo ventilcdur? Boullenois affirms the same 
 doctrine. A Vegard (says he) du pnncipe de decision, 
 quantum ad litis dccisoria, il se tire, ou de la loi du co7itrcd, on 
 de la loi dc la situcdion, ou de la volonte presumee des parties, 
 lorsqiH elles ont contracte ensemble ; en un mot la Loiseule de la 
 jurisdiction n^g influe point comme telle. Diversitas fori non 
 debet meritum causce variare. A Vegard desformalitesjudici- 
 
 latter on such instrument, according to its own laws. If then, it were 
 admitted, that the promissory note, now in controversy, were a specialty 
 by the laws of Kentucky, still it would not help the case, unless it were 
 also a specialty, and recognized as such by the laws of Virginia ; for the 
 laws of the latter must govern as to the limitation of suits in its own courts, 
 and as to the interpretation of the meaning of the words used in its own 
 statutes." Post, ^ 567. 
 
 • Bartolus, Comm. ad Cod. Lib. 1, tit. 1, 1. 1 ; Bart. Opcr. Tom. 7, p. 
 4, edit. 1602; 2 Boullenois, Observ. 46, p. 455, 456 ; ante, ^ 301. 
 
 2 Rodenburg, De Div. Stat. tit. 2, p. 5, n. 16 ; 2 Boullenois, Appx. p. 
 47; 1 Boullenois, 660; Id. 685, 818; ante, ^ 325 c, ^ 325 d, 325 h, 
 note 2. 
 
 CONFL. 79
 
 938 CONFLICT OF LAWS. [CH. XIV. 
 
 aires, qiianiimi ad litis ordinationem, la regie est de sirivre la 
 procedure et les usages observes dans le lien, dii Ton plaide} 
 Hertius states the same point in liis compendious way. 
 Expedita est Doctoriim Responsio, Jura jiidicii tantwn in 
 illis ohservanda esse, qiice ad ordinem processus jiidicialis 
 pertinent, etsi lis sit de bonis immobilibiis, in alio ierritorio 
 sitis? 
 
 § 561. Strykius states it in the following language. 
 Quotiesciinque circa jiidicii ordinationem controveHitur, sta- 
 tida loci judicii, omnibus cceteris posthabitis, introspiiciantiir. 
 In modo procedendi consuetudo jiidicii cdtendenda, iibi lis 
 agitatur. In modo vero decidendi, sen in ipsa ccmsw decisione, 
 consuetudo litigantiiim, sen iibi actus est gestiis, cdtendendus? 
 Huberus says ; Adeoqiie receptwn est optima ratione, ut in 
 ordinandis judiciis loci consuetudo, ubi agiiur, etsi de negotio 
 alibi celebrato, spectetur^ Dumoulin says ; TJnde an in- 
 strumentum habeat executionem, et quo modo debeat exeqiii, 
 attenditur locus ubi agitur, vel Jit executio. Ratio, quia 
 fides instrumenti coneernit meritum, sed virtus executoria et 
 modus execpiendi coneernit processiim.^ Again he adds -, 
 Quod in Ms, quce pertinent ad processum judicii, vel execu- 
 tionem faciendam, vel ad ordinationem judicii, semper sit ob- 
 servanda consuetudo loci, in quo judicium agitatur.^ Eme- 
 rigon says ; Pour tout ce, qui concerne Vordre jiidiciare, on 
 
 1 1 BouUenois, Observ. 33, p. 535 to 546 ; Id. Prin. Gen. 49, p. 11. 
 
 2 1 Hertii, Opera, De CoUis. Leg. ^ 4, n. 70, p. 152, 153, edit. 1737 ; 
 Id. p. 215, edit. 1716. 
 
 3 Strykii, Tract, et Disp. Tom. 2, p. 27 ; De Jure Princ, ext. Territ. 
 ch. 3, n. 34 ; ante, ^ 295, 
 
 4 Huberus, Tom. 2, Lib. 1, tit. 3, De Confl. Leg. § 7. 
 
 5 1 BouUenois, Observ. 23, p. 523, 524 ; Molin. Oper. Comm. ad Cod. 
 Lib. 1, tit. 1, Tom. 3, p. 554, edit. 1681. 
 
 6 1 BouUenois, Observ. 23, p. 523, 524 ; Molin. Opera, Comm. Cod. 
 Lib. G, tit. 32, Tom. 3, p. 735, edit. 1681.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 939 
 
 doit suivre Viisage du lieu, oil Hon phide. Pom- ce, qui est 
 de la decision dufond, on doit suivre, en regie generate, les 
 lois du lieu, oil le contrat a ete passe. Cette distinction est 
 consignee dans tous nos livres} 
 
 562. We may conclude this reference to the opinions 
 of foreign jurists by a citation from John Yoet, who 
 states at once the rule and the reason of it. Quia vero 
 regionum, civitatum, vicoruin varia, imo contraria scspe jura 
 sunt, ohscrvandum est, quantum quidem ad ordinem judicii 
 formamque aitinet, judicem nulUus alteriiis sed siii tantmn 
 fori leges sequi. Sed in litis ipsius definitione, si de solcn- 
 nibus contractus, testamenti, vel negotii altcriiis qiiwstio sit, 
 validum pronunciare debet ac solenne negotiimi, quoties adlii- 
 hita invenit solennia loci, in quo illud gestmn est, licet alice, aut 
 majores, in loco judicii ad talem actum solennitates reqidsitce 
 essentr 
 
 § 563. There are many questions, however, which 
 may arise, as to what are, and what are not matters 
 properly belonging to the xQmQ^y, {Ad litis ordinationem,) 
 and what are, and what are not, matters properly be- 
 longing to the merits, {Ad litis decisionem.) Many cases 
 of this sort may be found collected and discussed by 
 foreign jurists upon the peculiarities of their own juris- 
 prudence. But they could not be made intelligible to 
 a lawyer under the common law, without occupying a 
 space in explanations, wholly disproportionate to their 
 importance in a treatise, like the present.^ 
 
 1 1 Em6rigon, Trail6 des Assur. ch, 4,^ 8, n. 2, p. 122 ; Le Royr. 
 Crowninshield, 2 Mason, R. 163. See also to the same effect, P. Voet, 
 De Stat. ^ 10, ch. 1, n. 1, 6, p. 281, 285, 286, edit. 1715 ; Id. p. 339, 340, 
 341, edit. 1661. 
 
 2 J. Voet, ad Pand. Tom. 1, Lib. 5, tit. 1, ^ 51, p. 328. 
 
 3 See 1 BouUenois, Observ. 23, p. 535 to 569.
 
 940 CONFLICT OF LAWS. [CH. XIV. 
 
 § 564. It may be of more utility to introduce a few 
 illustrations of the doctrine, arising peculiarly under 
 the common-law modes of proceeding ; first, in regard to 
 persons, who may sue ; secondly, in regard to process 
 and proceedings ; and thirdly, in regard to certain de- 
 fences against actions, arising from matters ex pod 
 facto, and founded on local law, or customary practice. 
 
 § 565. In the first place, in regard to persons, who 
 may sue. It may be laid down as a general rule, that 
 all foreigners, siii juris, and not otherwise specially 
 disabled by the law of the place, where the suit is 
 brought, may there maintain suits to vindicate their 
 rights and redress their wrongs. The same doctrine 
 applies to foreign sovereigns and to foreign corpora- 
 tions.^ But questions may arise, where the party suing 
 is not the original party to the debt or claim ; but 
 he takes a derivative title only from the original party, 
 as where he is an assignee or grantee or donee of the 
 debt or other claim. We have already had occasion to 
 take notice of a peculiarity of the common law, that 
 debts and cJioses in action are not, with the exception of 
 negotiable promissory notes and bills of exchange, as- 
 signable.^ Hence, if any other debt or chose in action, 
 
 1 Foreign corporations may also be sued in all cases where they have 
 property within the jurisdiction ; Libbey v. Hodgson, 9 N. Hamp. R. 394 ; 
 but quccre, of some of the doctrines in the case. See Danforth v. Penny, 
 3 Met. 564; Peckham v. North Parish in Haverhill, 16 Pick. R. 274 ; 
 McQueen v. Middleton Manuf. Co. 16 Johns. E.5; Story, Eq. Plead. 
 ^ 55 ; Hullett v. The King of Spain, 2 Bligh, R. N. S. p. 51 ; S. C. 1 
 Dow & Clark, R. 169; S. C. 1 Clark & Finnell. R. 333; Columbian 
 Government v. Rothschild, 2 Sim, R. 94 ; South Carolina Bank v. Case, 8 
 Barn. & Cressw. 427 ; City of Berne v. The Bank of England, 9 Ves. 347 ; 
 Silver Lake Bank v. North, 4 Johns. Ch. R. 370 ; Bank of Augusta v. 
 Earle, 13 Peters, R. 519, 588, 589. 
 
 2 Ante, ^ 354, 355, § 395 to 400.
 
 H. XIV.] JURISDICTION AND REMEDIES. 941 
 
 such as a bond, or a covenant, or other contract, is as- 
 signed, no action can be maintained thereon in a 
 common-law court by the assignee in his own name.' 
 The same rule has been applied to assignments of debts 
 or choses in action, made in foreign countries, although 
 the assignee might be entitled to found an action 
 thereon in such foreign country in his own name, in 
 virtue of such assignment.^ For (it has been said) the 
 inquiry, in whose name the suit is to be brought, be- 
 longs not so much to the right and merit of the claim, 
 as to the form of the remedy. No distinction seems to 
 have been made in England, as to the right to sue, be- 
 tween the case of an assignee by the private voluntary 
 act of the assignor, and an assignee by operation of 
 law by an assignment in invitum under the bankrupt 
 laws. Thus, it has been held, that a Scotch assignee of 
 a bankrupt could not maintain a suit in his own name 
 in England for a chose in action of the bankrupt, which 
 was admitted to pass under the assignment.^ In Ame- 
 
 1 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 777, 778 ; 
 Wolff y. Oxholme, 6 Maule & Selw. R. 99; ante, ^ 354, 355. 
 
 2 Woinry. Oxholme, 6 Maule & Selw. R. 99 ; Folliott v. Ogden, 1 H. 
 Black. 431 ; Innes v. Dunlap, 8 Term R. 595; Jeffrey v. McTaggart, 
 6 Maule & Selw. R. 126. 
 
 3 Jeffrey v. Mc. Taggart, 6 Maule & Selw. 126, and Wolff «. Oxholme, 
 6 Maule & Selw. 99. But see in Smith v. Buchanan, (1 East, 11,) the 
 dictum of Lord Kenyon on the contrary. In Alivon v. Furnival (1 
 Cromp. Mees. & Rose. 277,) two out of three syndics of a French bank- 
 rupt sued a debtor of the bankrupt in their own names in England ; and 
 the objection was taken, that they had no title to sue. The Court over- 
 ruled the objection. Mr. Baron Parke in delivering the judgment of the 
 Court, said ; " Lastly, it is said, that though two may act and bring an 
 action, yet they must sue in the name of all. Now, the effect of the tes- 
 timony of Colin is, that two may sue in France without a third, and the 
 witness for the defendant does not prove the contrary, and there seems no 
 reason why it should not be so. The property in the effects of the bank- 
 
 79*
 
 942 CONFLICT OF LAWS. [CH. XIV. 
 
 rica, contradictory decisions have been made upon the 
 same point, some courts affirming, and others denying, 
 the right of the assignee to sue in his own name ; al- 
 though the weight of authority must now he admitted 
 to be against the right.^ 
 
 § 566. The reasoning of these decisions seems 
 equally to apply to the case of a foreign assignee by 
 the voluntary act of the party, even where he could 
 sue in his own name in the country in which the 
 assignment was made, although certainly there is room 
 for a distinction in such a case ; and it has sometimes 
 been recognized. Thus, in a case where the assignee 
 of an Irish judgment brought a suit in his own name 
 in England, such a judgment being assignable in Ire- 
 
 rupt does not appear to be absolutely transferred to these syndics in the 
 way that those of a bankrupt are in this country ; but it should seem, that 
 the syndics act as mandatories or agents for the creditors ; the whole 
 three, or any two or one of them having the power to sue for and re- 
 cover the debts in their ovi'n names. This is a peculiar right of action, 
 created by the law of that country ; and we think it may by the comity of 
 nations be enforced in this, as much as the right of foreign assignees or 
 curators, or foreign corporations, appointed or created in a different way 
 from that which the law of this country requires. Dutch West India 
 Company v. Moses (1 Strange, 612,) National Bank of St. Charles v. De 
 Bernales (1 R. & Moody, 190,) Solomons v. Ross, (1 H. Black. 131 n.) 
 We do not pronounce an opinion, whether this objection is available on the 
 plea of nil debet, or ought to have been pleaded in abatement, (though 
 we were much struck with the argument of the learned counsel for the 
 plaintiff,) as we think it is not available at all upon the evidence in this 
 case." See also ante, ^ 419, 420. 
 
 1 See ante, § 358, 359, 419, 420; Milne v. Moreton, 6 Binn. R. 374 ; 
 Goodwin v. Jones, 3 Mass. R. 514, 519 ; James v. Boynton, 9 Mass. R. 
 357; Orr v. Amory, 11 Mass. R. 25; Ingraham v. Geyer, 13 Mass. R. 
 146, 147 ; Byme v. Walker, 7 Serg. & Rawle, 483 ; Bird v. Caritat, 2 
 Johns. R. 342 ; Bird v. Pierpont, 1 Johns. R. 118 ; Murray v. Murray, 5 
 Johns. Ch. R. 60 ; Brush v. Curtis, 4 Connect. R. 312 ; Raymonds. 
 Johnson, 11 Johns. R,. 488; Holmes v. Remsen, 4 Johns. Ch. R. 460, 
 485.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 943 
 
 land, so as to vest a title at law in the assignee, the 
 Court of Common Pleas held, that 'he was entitled to 
 recover ; because (as it should seem) a legal title by 
 the Lex loci vested in him, and the case was not to be 
 governed by the law of England, as the assignment 
 was in Ireland.^ The distinction, although nice, is at 
 the same time clear ; for the remedy is sought upon a 
 legal right, vested ex dirccto by the local law in the 
 assignee against the judgment debtor. There does not 
 seem, therefore, any solid ground upon principle, why 
 a right confessedly legal in the country where it origi- 
 nated, and passing a direct and positive fixed title in 
 the assignee, should not have the same remedy in every 
 other country, which legal fixed titles in the party are 
 there entitled to. It is assuming the very ground in 
 controversy, to assert, that it is a mere equitable title \ 
 for the local law has adjudged it otherwise, and vested 
 the original title ex directo in the assignee. In the 
 common case, where an executor or administrator in- 
 dorses negotiable paper in the country, from which he 
 derives his administrative authority, no one will doubt 
 that the legal title passes to the indorsee, and that he 
 may sue thereon in any other country in his own 
 name ; and yet such an indorsement, in another coun- 
 try, by the executor or administrator, would not be 
 admitted to have any such validity or effect." How- 
 ever, the doctrine of this case has been much doubted ; 
 and, therefore, it can scarcely be thought to be unex- 
 ceptionable in point of authority. There are certainly 
 
 1 O'Callaghan V. Thomond, 3 Taunt. 82, 84; ante, ^355; 3 B urge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 20, p. 777, 778. 
 
 2 Ante, i5» 353 a, 354, 358, 359 ; Trimbey v. Vignier, 1 Bing. N. Cases, 
 151, 159, leo.
 
 944 CONFLICT OF LAWS. [CH. XIV. 
 
 dicta and decisions, which are pointedly the other way, 
 and in which it is said, that the suit must be brought 
 in the name of the assignor, if the Lex fori requires it.^ 
 § 567. Another illustration may be taken from the 
 forms of action upon instruments under seal. Thus, in 
 Virginia a contract to pay money with a scrawl instead 
 of a seal, is treated as a sealed instrument, so that debt 
 lies upon it in that State. But in New York, where 
 
 1 The dictum of Lord Loughborough in Folliott v. Ogden, (1 H. Black. 
 135,) and that of Lord Ellenborough in Wolff u. Oxholme, (4 Maule & 
 Sehv. 92, 99,) are to this effect. But the recent case of Alivon v. Furni- 
 val, 1 Cromp. Mees. & Rose. 277, 296, certainly, as far as it goes, up- 
 holds it. Ante, ^ 565, note. See also Robinson v. Campbell, 3 Wheat. 
 R. 212. The case of Wolff r. Oxholme, 6 Maule & Selw. 92, 99, may 
 perhaps be distinguishable in its circumstances, as well as in the reasoning 
 of the Court. Lord Ellenborough's language in the last case was, as fol- 
 lows. "One of the points insisted upon in the argument for the defend- 
 ant was, that this assignment and the suit instituted upon it, were a bar 
 to the plaintiffs' demand : but we think that they cannot have that effect. 
 The assignee could not sue in the courts of this country in his own name ; 
 the action must have been brought here in the names of the original credit- 
 ors, even if they had assigned the debt for a valuable consideration ; and 
 although the assignment gave the assignee a right to sue in his own name 
 in Denmark, yet the defendant does not appear to have been prejudiced by 
 that measure even there, nor has any material consequence resulted there- 
 from. And we consider the case to stand now just as it would have done, 
 if no assignment had been made, and if the suit in Denmark had been 
 brought by the plaintiffs themselves, instead of being instituted by their 
 trustees." See ante, ^ 358, 359, 399, note. See Trasher v. Everhart, 
 3 Gill & Johns. R. 234 ; McRay v. Mattoon, 10 Pick. R. 52 ; Pearsall v. 
 Dwight, 2 Mass. R. 96 ; 3 Burge, Comm. on Col. and For. Law, Pt. 2, 
 ch. 20, p. 777, 778. This subject is ably discussed on different sides in 
 two articles in the American Jurist, namely, in the number for January, 
 1833, (9 Vol. 42,) and in the number for January, 1834, (11 Vol. 101,) 
 to which I gladly refer, as giving a more satisfactory view of this subject 
 than, with reference to the plan of the present work, I have been able to 
 give. It may be thought, that the case of foreign executors and adminis- 
 trators, as assignees by operation of law of the deceased's estate, stands 
 upon a similar ground. But it appears to me to proceed on principles 
 materially different, applicable to rights, and not merely to remedies. 
 Ante, ^ 399, note, \ 420, 512, 513.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 945 
 
 such a scrawl is not treated as a seal, the remedy must 
 be, as upon an unsealed simple contract.' The same 
 doctrine has been maintained in England upon an 
 instrument executed in Jamaica, where there was no 
 seal, but a mark or scrawl in the place where the seal 
 is usually affixed.^ On the other hand, a single bill is 
 deemed in Virginia not to be a specialty : in Maryland 
 it is otherwise. A rernedy brought in Maryland upon 
 such a single bill, executed in Virginia, cannot be by 
 an action of assumpsit, as upon a simple contract, but 
 must be by action of debt, as upon a specialty .s 
 
 § 568. In the next place, as to process and proceed- 
 ings. There is no controversy, that in a general sense 
 the mode of process constitutes a part of the remedy. 
 But the question has arisen, whether, upon contracts 
 made in a foreign country, and which by the laws of 
 that country are precluded from being enforced by a 
 personal arrest or imprisonment, the like exemption 
 applies in suits to enforce them in another country, 
 where such process constitutes a part of the remedial 
 justice. Such a contract existed, or was supposed to 
 exist, in a case where a bond given in France, and sued 
 in England, was understood to bind the property, and 
 not the person of the party in France.'* On that occa- 
 
 1 Warren v. Lynch, 5 Johns, R. 239. See also Andrews v. Herriot, 
 4 Cowen, 508 ; Le Roy v. Beard, 8 Howard, U. S. R. 4G-1, where the 
 subject is examined at length, and the authorities are collected. But see 
 Meredith v. Hinsdale, 2 Caines, R. 362. 
 
 2 Adam v. Kerr, 1 Bos. & Pull. 3G0. See also Bank of the United 
 States V. Donnally, 8 Peters, R. 361 ; ante, § 558, note. 
 
 3 Trasher i'. Everhart, 3 Gill & Johns. R. 234 ; Bank of the United 
 States V. Donnally, 8 Peters, R. 361 ; ante, '5> 558, note. 
 
 4 Melan v. Filz James, 1 Bos. & Pull. 138 ; 3 Burge, Comm. on Col. 
 and For. Law, Pt. 2, ch. 20, p. 766, 767, 708.
 
 946 CONFLICT OF LAWS. [CH. XIV. 
 
 sion Lord Chief Justice Eyre said ; " If it appears, that 
 this contract creates no personal obligation, and that it 
 could not be sued, as such, by the laws of France, (on 
 the principle of preventing arrests so vexatious as to 
 be an abuse of the process of the Court,) there seems to 
 be a fair ground on which the Court may interpose to 
 prevent a proceeding so oppressive as a personal arrest 
 in a foreign country, at the commencement of a suit, in 
 a case, which, as far as one can judge at present, author- 
 izes no proceeding against the person in the country 
 in which the transaction passed. If there could be 
 none in France, in my opinion there can be none here. 
 I cannot conceive, that what is no personal obligation 
 in the country in which it arises, can ever be raised 
 into a personal obligation by the laws of another. If 
 it be a personal obligation there, it must be enforced 
 here in the mode pointed out by the law of this coun- 
 try. But what the nature of the obligation is, must be 
 determined by the law of the country where it was 
 entered into ; and then this country will apply its own 
 law to enforce it." ^ And accordingly the Court dis- 
 charged the party from the arrest. 
 
 § 569. There does not seem the least reason to doubt 
 the entire correctness of the doctrine thus laid down. 
 If the contract creates no personal obligation, but an 
 obligation in rem only, it cannot be, that its nature can 
 be changed, or its obligation varied by a mere change 
 of domicil. That would be to contradict all the prin- 
 ciples maintained in all the authorities, that the validity, 
 nature, obligation, and interpretation of a contract are 
 
 1 Ibid. See also Ohio Insur. Co. v. Edmondson, 5 Louis. R. 295, 
 300.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 947 
 
 to be decided by the Lex loci contractus} A suit in^ycr- 
 sonam m'EtBglaia.d could not be maintained, except upon 
 some contract, which bound the person. If it bound 
 the property only, the proceeding should be in ran; 
 and, if in express terms the party bound his property 
 only, and exempted himself from a personal liability, 
 no one would doubt, that a suit in personam would not 
 be maintainable. The same principle would apply, if 
 the laws of a country should declare, that certain 
 classes of contracts should not bind the person at all, 
 but only property, or a particular species of property. 
 Such laws do probably exist in some countries. But 
 it does not follow, because a personal remedy is not 
 given by the laws of a country, that therefore there is 
 no personal obligation in a contract.- 
 
 § 570. The real difficulty lies, not in the principle 
 itself, but in its application. There is a great distinc- 
 tion between a contract, which ex directo excludes per- 
 sonal liability, and a contract made in a country, which 
 binds the party personally, but where the laws do not 
 enforce the contract in ijcrsonam, but only in rem. In 
 the latter case the remedy constitutes no part of the 
 contract. The liability is general, so far as the acts of 
 the parties go ; and the mode of enforcing is a mere 
 matter of municipal regulation. It is strictly a part of 
 the Lex fori, and may be changed from time to time, as 
 the legislature may choose.^ This was the view of the 
 matter taken by Mr. Justice Heath in the case alluded 
 
 1 Ante, i^ 263 to ^ 273 ; 3 Burge, Coram. Pt. 2, ch. 20, p. 765, 766, 
 776. 
 
 2 Talleyrand v. Boulanger, 3 Vcs. Jr. R. 446 ; Flack v. Holm, 1 Jac. 
 & Walk. 405. 
 
 3 See Ogden v. Saunders, 12 Wheat. R. 213.
 
 948 CONFLICT OF LAWS. [CH. XIV. 
 
 to ; for he, in dissenting from the opinion of the Court, 
 did not deny the principles of the decision, but held, 
 that the contract was personal. " We all agree/' said 
 he, "that in construing contracts we must he governed 
 by the laws of the country in which they are made ; 
 for all the contracts have reference to such laws. But, 
 when we come to remedies, it is another thing. They 
 must be pursued by the means which the law points 
 out, where the party resides. The laws of the country 
 where the contract was made, can only have reference 
 to the nature of the contract, not to the mode of enforc- 
 ing it. Whoever comes voluntarily into a country 
 subjects himself to all the laws of that country ; and 
 therein to all the remedies, directed by those laws, on 
 his particular engagements." ^ 
 
 § 571. The doctrine of this case has been sometimes 
 followed in America.^ But the better opinion now 
 established both in England and America is, that it is 
 of no consequence whether the contract authorizes an 
 arrest or imprisonment of the party in the countr}^ 
 where it was made, if there is no exemption of the 
 party from personal liability on the contract. He is 
 still liable to arrest or imprisonment in a suit upon it 
 in any foreign country, whose laws authorize such a 
 mode of proceeding as a part of the local remedy.^ In 
 
 1 Melan v. Fitz James, 1 Bos. & Pull. 142 ; Hinkley v. Morean, 3 Ma- 
 son, R. 88; Titus v. Hobart, 5 Mason, R. 378. 
 
 2 Symonds v. Union Insur. Co. 4 Dall. 417. 
 
 3 See Imley v. Elfesson, 2 East, R. 453 ; Peck v. Hozier, 14 Johns. R, 
 346 ; Robinson v. Bland, 2 Burr. 1089; Hinkley v. Morean, 3 Mason, R. 
 88 ; Titus v. Hobart, 5 Mason, R. 378 ; Smith v. Spinolla, 2 Johns. R. 
 198, 200 ; De la Vega v. Vianna, 1 Barn. & Adolph. R. 284; 3 Burge, 
 Coram, on Col. and For. Law, Pt. 2, ch. 20, p. 766 to 769 ; Atwater v. 
 Townsend, 4 Connect. R. 47 ; Woodbridge v. Wright, 3 Connect. R. 
 523, 526; Smith v. Healey, 4 Connect. R. 49.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 949 
 
 a recent case in England, where the plaintiff and de- 
 fendant were both foreigners, and the debt was con- 
 tracted in a country, by whose laws the defendant 
 would not have been liable to arrest, an application 
 was made to discharge the defendant from arrest on 
 that account j but the Court refused the application. 
 Lord Tenterden on that occasion in delivering the 
 opinion of the Court, said; "A person suing in this- 
 country, must take the law as he finds it. He cannot 
 by virtue of any regulation in his own country enjoy 
 greater advantages than other suitors here. And he 
 ought not, therefore, to be deprived of any superior 
 advantage, which the law of this country may confer. 
 He is to have the same rights which all the subjects of 
 this kingdom are entitled to." ^ The same doctrine has 
 been solemnly promulgated by the House of Lords on 
 a still more recent occasion.^ 
 
 § 572. The like principles apply to the form of judg- 
 ments to be rendered, and of executions to be granted 
 in suits. They must conform to the Lex fori, although 
 the party defendant may, in his domestic forum, have 
 been entitled to a judgment, exempting his person 
 from imprisonment, in virtue of a discharge under an 
 insolvent law existing there, and of which he had there 
 judicially obtained the benefit.^ And it will make no 
 
 1 De la Vega v. Vianna, 1 Barn. & Adolph. R. 284. See also Whit- 
 temore v. Adams, 2 Cowen, R. 626 ; Willing v. Consequa, I Peters, Cir. 
 R. 317; Courtois v. Carpentier, 1 Wash. Cir. R. 376; Bird v. Caritat, 
 2 Johns. R. 345; Wyman v. Southward, 10 Wheaton, R. 1. See Henry 
 on Foreign Law, p. 81 to 86. 
 
 2 Don V. Lippmann, 5 Clark & Finnell. R. 1, 13, 14, 15 ; ante, ^ 557, 
 note. 
 
 3 Hinkley v. Morean, 3 Mason, R. 88 ; Titus v. Hobart, 5 Mason, 
 R. 378; Atwater v. Townsend, 4 Connect. R. 47; Woodbridge v. 
 
 CONFL. 80
 
 950 CONFLICT OF LAWS. [CH. XIV. 
 
 difference in such case, whether the contract sued on 
 was made in a State granting such discharge or not ; 
 or, whether the parties were citizens of that State or 
 not. The effect of such a discharge is purely local. It 
 is addressed solely to the courts of the State under 
 whose authority the exemption is allowed. But it has 
 nothing to do with the process, proceedings, or judg- 
 ments of the courts of other States, which are to be 
 governed altogether by their own municipal jurispru- 
 dence. Wherever a remedy is sought, it is to be 
 administered according to the Lex fori ; and such a 
 judgment is to be given as the laws of the State, where 
 the suit is brought, authorize and allow, and not such 
 a judgment as the laws of other States authorize or 
 require.^ 
 
 § 573. The general doctrine is stated in ample terms 
 by Paul Yoet. Quid, si actiones sint intentandce, et qui- 
 dem perso7iales, an sequemur, statiihim domicilii debitoris, 
 an statidum loci, iibi exigi vel intentari 'poterunt ? Respon- 
 deo, etsi bene mnlti velint tales actiones certo loco non cir- 
 cumscrili, inspectd tantiim ilia corporali circumscriptione, 
 ut tamen eas velint censeri de loco ubi agi et exigi possunt.^ 
 Again he adds ; JSed revertar, wide fueram digressiis, ad 
 concurswn statutonim variantiimi circa judicia. Ubi occur- 
 runt iwnnulla circa solemnia in jiidiciis servanda, circa tem- 
 pora, caidiones, probationes, causanim decisiones, execu- 
 
 Wright, 3 Connect. R. 523, 526 ; Smith v. Healey, 4 Connect. R. 49 ; 
 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 21, ^ 7, p. 878, 879. 
 
 ^ Hinkley v. Morean, 3 Mason, R. 88 ; Titus v. Hobart, 5 Mason, R. 
 378 ; Atwater v. Townsend, 4 Connect. R. 47 ; Smith v. Healy, Id. 49; 
 Woodbridge v. Wright, 3 Connect. R. 523. See also Suydam v. Broad- 
 nax, J 4 Peters, R. 67. 
 
 2 P. Voet, ad Stat. ^ 10, ch. 1, n. 2, p. 281, edit. 1715 ; Id. p. 340, 
 edit. 1661.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 951 
 
 tioneSy et appellatioms. F'mgc, enim, alia set'vari solemnia, 
 in hco domicilii litigatoris, alia in loco contradils, alia in 
 loco rei sitce, alia injudicii loco. Qucenam spectanda solem- 
 nia ? Rcspondco ; Spectanda sunt solemnia, id est, stilus 
 judicisfori ilUus, nbi litigatur. Idque in genere verum est, 
 sive loqiiamiir dc civihis, sive forensihiis : statuta rpiippe 
 circa solemnia meo sensu mixti erant generis ; adeoque vires 
 exsermit tam intra quam extra territorium, tarn in ordine ad 
 incolas, quam ad exteros} 
 
 § 574. The same doctrine is fully confirmed by John 
 Voet, as a received doctrine of foreign law. MuUis 
 prwterea in locis id ohtinet, ne duo ejiisdem provincice sen 
 ierritorii incolx se invicem, aut bona, sistant in alio territorio. 
 Sic duo Brabantini se invicem non extra Brahantiam ; duo 
 Hollandi non extra Holhndum, S^c. Quod si qids, neglectd 
 statuti dispositione, concivem aut hona ejus alihi stiterit, litis 
 movendx gratia, non peccabunt quidem istius loci judices, si 
 arrestum confirment ; cum non ligentur alieni territorii legi- 
 bus, talem arrestationem concivium vetantibus. JSed, qui ita 
 detentus litigare coactus est, recte petet a suo judice, con- 
 demnari concivem, id arresti vinculum, contra statuti domi- 
 cilii prohibitionem alibi impositum, remittal, litique alibi 
 cceptoi cum imp&i'isis renunciet, ac solvat midctam statuto 
 dictatam? And he proceeds to add, that in some places 
 the practice is in suits between two foreigners, belong- 
 ing to one and the same country, to remit the parties 
 to their domestic forum ; which, however, is done, not 
 as a matter of right or duty, but of comity, or from 
 policy, to prevent injurious delays to the suits of their 
 
 ' P. Voet, de Statut. % 10, ch. 1, n. 6, p. 285, edit. 1715 ; Id. p. 345, 
 346, edit. 1661. 
 
 - J. Voet, ad Pand. Lib. 2, tit. 4, ^ 45, p. 129; cited also I Barn. & 
 Adolp. R. 288, note; ante, ^ 562.
 
 952 CONFLICT OF LAWS. [CH. XIV. 
 
 own citizens. Quod tamen vel ex comitate magis, quam ne- 
 cessitate fit, vel magis ad decUnandam nimiam litium fre- 
 quentiam judicihiis molestam, civihiis, inde siiaram litium 
 p7'otelationem patientihiis, damnosam} 
 
 § 574 a. Dumoulin also affirms a similar doctrine in 
 tlie passages already cited. TJnde, an instrumentiim ha- 
 heat executionem, et qiiomodo debeat exequi, aitendiiiir locus, 
 ubi agitiir, vel fit execiitio. Ratio, qida fides instnimenti 
 concernet meritimi ; sed virtus executoria et modus excquendi 
 concetmit processum.^ Quod in his, quce pertinent ad pro- 
 cesswn judicii, vel executionem faciendam, vel ad ordina- 
 tionem judicii, semper sit ohservanda consuetude loci, in quo 
 judicium agitatur.^ Burgundus is equally expressive. 
 Eodem modo dicemus, in contexanda actione, fori consuetil- 
 dines ohservandas esse, ubi contenditur, quia et in judiciis 
 quasi contrahitur. Idem in arrestis sen manuum injectionibus 
 tenendum est, id scilicet consuetudinem loci spectemus, ubi 
 facta est manus injectio ; quia arrestatio apud nos ingressus 
 est judicii, et duntaxat litis pendentiam, non executionem 
 generet.^ This indeed seems, with few exceptions, to be 
 the general doctrine maintained by foreign jurists ; and 
 Boullenois has collected their opinions at large.^ He 
 treats the question of imprisonment as purely one modus 
 exeqiiendi; and he applies the same principle to mesne 
 
 1 Ibid. 
 
 2 Molin. Opera, Tom. 3, Comm. ad Cod. Lib. 1, tit. 1, 1. 1, p. 554, edit. 
 1681 ; ante, §i 561. 
 
 3 Id. Lib. 6, lit. 32, p. 735, [741,] edit. 1681 ; 1 Boullenois, Observ. 23, 
 p. 523, 524 ; ante, ^561. 
 
 4 Burgundus, Tract. 5, n. 1, p. 118, 119; 1 Boullenois, Observ. 23, p. 
 524, 526 ; 2 Boullenois, Observ. 46, p. 488. But see Burgundus, Tract. 4, 
 n. 27, p. 116, cited post, ^ 574 c, note. 
 
 5 1 Boullenois, Observ. 23, p. 523, 524, 525, 528, 529 ; Id. p. 535 to 
 p. 543 ; Id. p. 544 to p. 569. See Henry on Foreign Law, p. 81 to 85.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 953 
 
 process and to process of execution.^ He accordingly 
 puts the case, where a Frenchman contracts a common 
 debt in a country, by whose laws such a debt imparts 
 a right to arrest the body, and says, that this right is a 
 mere mode of enforcing the contract, modus cxequendi, 
 and consequently it depends upon the law of the place, 
 where the execution of it is sought ; so that if it is 
 sought in a place, where no such arrest of the body is 
 allowable, the creditor has no right to claim any re- 
 straint by such a rigorous course.^ 
 
 § 574 Z*. But a distinction is taken by some foreign 
 jurists between a contract made in a country between 
 a stranger and a citizen thereof, or between two citi- 
 zens, and a contract made in the same country between 
 two foreigners belonging to another country, when the 
 law of the place where the contract is made, allows an 
 arrest of the person, and the law of the place where the 
 suit is brought, or to which the two foreigners belong, 
 disallows such an arrest. Thus, in Brabant, there is a 
 law of Charles the Fourth, which prohibits any Bra- 
 banter from arresting another Brabanter in a foreign 
 jurisdiction ; and Peckius puts the question, whether in 
 a case of this sort any Brabanter may arrest another 
 Brabanter in Spain, Italy, England, France, or other 
 foreign country. And he holds, that he may not ; first, 
 because the prohibitory law is absolute, and compre- 
 hends subjects even in a foreign territory ; secondly, be- 
 cause the power of establishing a law between subjects 
 is not limited to the territory of the sovereign ; thirdly, 
 because, if the sovereign may bind his subjects every- 
 
 1 Id.; Henry on Foreign Law, p. 55, 56 ; Id. p. 81 to 85. 
 - 1 Boullenois, Observ. 23, p. 525 ; Id. p. 523, 529 ; Id. Observ. 25 
 p. 601, &c. 
 
 80 *
 
 954 CONFLICT OF LAWS. [CH. XIV. 
 
 where, this privilege equally binds them everywhere, 
 as a part of the law ; fourthly, because a sentence of 
 excommunication would bind the subjects in a foreign 
 territory ; and a fortiori then, this privilege does bind 
 them ; and, fifthly, because the incapacity of the prodi- 
 gal binds him in a foreign territory, and this case of 
 privilege is as strong or stronger. Hence he con- 
 cludes, that not only the person, but the movables of 
 the Brabanter, (which follow his person) also would be 
 free from arrest, l/nde siciit persona arrestari nan potest, 
 ita nee hona moUlia ejusdem} 
 
 § 574 c. There is great reason to doubt both the pre- 
 mises and the conclusion of Peckius in asserting this 
 distinction ; and certainly it now has no admitted recog- 
 nition in the common law.~ Peckius asserts another 
 distinction, in which he has apparently the support of 
 Christinteus, and Everhardus, and some other jurists, 
 that where the law of the place of contract allows an 
 arrest, but the law of the place of payment does not, 
 (and so e contra in the converse case,) the law of the lat- 
 ter is to prevail. He quotes the language of Everhar- 
 dus on the same point with approbation. Quod si in 
 loeo celelrati contractus sit statutimi, quod debitor possit capi 
 et incarcerari, vel quod instrumenta notariorum haheant cxe- 
 cidionem paratam ; in loco vero destinatm solutionis, 7ion sit 
 simile stcdutum, sed servetur jus commune, cdtendatur, quoad 
 hoc, mos, ohservantia, statutum, aid lex, destinatce solutionis. 
 
 1 Peck, de Jure Sist. ch. 8, n. 1 to n. 6, Peckii, Opera, p. 753, edit. 
 1666. 
 
 2 Ante, ^ 568 to ^ 571. — Mr. Henry, however, thinks the distinction 
 sound, and deems it supported by the case of Melan v. The Duke of Fitz 
 James, 1 Bos. & Pull. 138 ; ante, ^ 568 to § 572. Burgundus says ; 
 AfBnia solutioni sunt, praescriptio, oblatio rei debitaj, consignatio, novatio, 
 delegatio, et ejus modi. Burgundus, Tract. 4, n. 28, p. 116.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 955 
 
 Quippc, quod in his. qiice concernunt judicariam executioneiii, 
 inspicitiir locus dcstinaice soliitioms.^ He then adds in the 
 converse case ; Quod d in arrcstcdionc, si similis casus oc- 
 curred, locus dcstinaice solutionis ct judicii spectari debeat? 
 Christinreus uses similar language.^ The common law 
 of England and America, however, does not recognize 
 any such distinction.^ 
 
 1 Everhard. Consil. 78, n. 22, p. 208 ; Peck, de Jure Sist. cap. II, p. 
 758, edit. Peck. Oper. 1666. 
 
 2 Peck. Oper. De Jure Sist. cap. II, n. 1, p. 758, 759, edit. 1666. 
 
 3 Christin. Tom. 1, Decis. 283, n. 12, p. 355 ; 1 Boullenois, Obser. 23, 
 p. 525 ; 2 Boullenois, Observ. 46, p. 488. 
 
 4 Post, § 581 ; Campbell v. Steiner, 6 Dow, R. 116 ; Don v. Lippmann, 
 5 Clark & Finnell. R. 1, 19, 20. In this latter case Lord Brougham said, 
 speaking on this point ; " All the authorities, Huber. (De Confl. Leg. in 
 Div. Imp.) ; Voet (Dig. Lib. 24, t. 3, s. 12) ; and Lord Karnes, (Karnes's 
 Principles of Equity, 3. 8. 6. 1. 5. 3,) are cited in that case. Campbell v. 
 Steiner (0 Dow, 116,) was an action for a bill of costs for business done in 
 this House. The Court below there allowed the rule of Scotch prescrip- 
 tion. That judgment was affirmed by Lord Eldon, who, however, said, 
 that he moved it with regret. He said, that it had been ruled, that the 
 debtor being in Scotland, and the creditor in England, the debtor might 
 plead the Scotch rule of prescription; that that was against some of the 
 old authorities, but was in accordance with those of later date. That 
 case cannot be reconciled with the principle, that the locus solutionis is to 
 prescribe the law. It has nothing lo do with the case. Why is it, then, 
 that the law of the domicil of the debtor was there allowed to prevent the 
 plaintiff from recovering'? It was, because the creditor must follow the 
 debtor, and must sue him, where he resides ; and by the necessity of thai 
 case, was obliged to sue him in Scotland. In that respect, therefore, there 
 was in that case no difference between the lex loci solutionis, and the lex 
 fori; and it must be admitted, that in such case the rules of evidence, and 
 if so, the rules of practice, may be varied, as they are applied in one 
 court or the other. But, governing all these cases is the principle, that 
 the law of the country where the contract is to be enforced, must prevail 
 in enforcing such contract, though it is conceded, that the lex loci con- 
 tractus may be referred to, for the purpose of expounding it. If therefore 
 the contract is made in one country, lo be performed in a second, and is 
 enforced in a third, the law of the last alone, and not of the other two. 
 will govern the case."
 
 956 CONFLICT OF LAWS. [CH. XIV. 
 
 § 574 d. Peckius then puts another case, where the 
 contract of indebtment is made in a country where an 
 arrest is not allowed, and the debtor has not promised 
 to pay in another country where an arrest is allowed, 
 but he is found there ; whether in such a case he may, 
 nevertheless, be arrested there, the debt being then 
 due. He thinks he may ; because to this extent it may 
 be truly said, that the law and usage of the place of 
 the judgment ought in this matter to be observed ; and 
 that in those things which concern the proceedings in 
 suits, foreigners are bound by the laws of the place 
 where they are liable to be sued. Sed quid, si qitis con- 
 traxit in loco, in quo illiiis loci homines nan utuntur arresto, 
 neqiie promisit solvere in patria arresti, sedtamenillice repe- 
 ritiir ; idriim nihilominus arrestari possit ? Existimo, quod 
 sic, si vel tempus solutionis clapsum vel in mora periculum 
 sit ; quia adhuc veriim est dicerc, quod statutum et consue- 
 tudo locijiidicii servare dehet in istius modi ; et in Ms, quce 
 ad ordinationem judiciorum 'pertinent, for enses ligantur sta- 
 tutis loci, ubi conveninntur? 
 
 § 575. In the next place, as to defences arising from 
 matters ex ^yost facto. These may be of the nature of 
 counter claims or set-offs to actions, analogous to com- 
 pensation in the Roman and foreign law ; ^ or they may 
 be matters of discharge, such as discharges under in- 
 solvent law^s, arising at a subsequent period ; or they 
 may be laws regulating the time of instituting suits, 
 called, in the foreign law, statutes of prescription, and, 
 in the common law, statutes of limitations. The latter 
 
 1 Peckii, Opera, De Jure Sist. cap. 11, p, 75S, 759, edit. 1606. The 
 same point was held in Don v. Lippmann, 5 Clark & Finnell. R. 1, 20 ; 
 ante, ^ 574 c, note. 
 
 - Polhier, Oblig. n. 587, 588.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 957 
 
 defence will deserve a very exact consideration. The 
 former may be disposed of in a few words. The sub- 
 ject of discharges from the contract, either by the act 
 of the parties, or by operation of law, have been already 
 sufficiently considered.^ As to set-off or compensation, 
 it is held in the courts of common law, that a set-off to 
 any action, allowed by the local law, is to be treated as 
 a part of the remedy ; and that therefore it is admissi- 
 ble in claims between persons belonging to different 
 states or countries, although it may not be admissible 
 by the law of the country where the debt, which is sued, 
 was contracted.- [The admissibility of the set-off is to 
 be governed entirely by the lex fori, and not by the lex 
 hci contractus.^] The liens, and implied hypothecations, 
 and priorities of satisfaction, given to creditors by the 
 law of particular countries, and the order of payment of 
 their debts, are, as we have already seen,'' generally 
 treated as belonging to the proceedings in suits Ad litis 
 ordinationem, and not to the merits of the claim.^ 
 
 § 576. In regard to statutes of limitation or prescrip- 
 tion of suits, and lapse of time, there is no doubt that 
 they are strictly questions affecting the remedy, and 
 not questions upon the merits. They go, Ad litis ordi- 
 
 1 Ante, ^ 330 to ^ 352. See also 3 Burge, Coram, on Col. and For. Law. 
 Pt. 2, ch. 21, ^ 7, p. 874 to 886. 
 
 2Gibbst;. Howard, 2 NewHamp. R. 29G ; Ruggles w. Keeler, 3 Johns. 
 R. 263. See Pothier on Oblig. n. 641, 642. 
 
 3 lb. Bank of Galliopolis v. Trimble, 6 B. Monroe, 601. But see 
 Bliss V. Houghton, 13 New Hamp. R. 126 ; Harrison v. Edwards, 12 
 Verm. R. 648. 
 
 4 Ante, ^ 322 b to 328, § 423 a. 
 
 5 Rodenburg, De Div. Stat. tit. 2, ch. 5, n. 15, 16 ; 2 Boullenois, Appx. 
 p. 47, 49 ; 1 Boullenois, Observ. 25, p. 634, 635, 639 ; Id. p. 685 ; Id. p. 
 818. See also P. Voet, De Stat. ^ 10, ch. 1, n. 2 to n. 6, p. 282 to 289, 
 edit. 1715 ; Id. p. 340 to 346, edit. 1661.
 
 958 CONFLICT OF LAWS. [CH. XIV. 
 
 tiationem, and not Ad litis decisionem, in a just juridical 
 sense.^ The object of them is to fix certain periods 
 within which all suits shall be brought in the courts of 
 a state, whether they are brought by or against subjects, 
 or by or against foreigners. And there can be no just 
 reason, and no sound policy, in allowing higher or more 
 extensive privileges to foreigners than are allowed to 
 subjects. Laws, thus limiting suits, are founded in the 
 noblest policy. They are statutes of repose, to quiet 
 titles, to suppress frauds, and to supply the deficiency 
 of proofs, arising from the ambiguity and obscurity, or 
 the antiquity of transactions. They proceed upon the 
 presumption, that claims are extinguished, or ought to 
 be held extinguished, whenever they are not litigated 
 in the proper forum, within the prescribed period. 
 They take away all solid grounds of complaint ; because 
 they rest on the negligence or laches of the party him- 
 self. They quicken diligence, by making it in some 
 measure equivalent to right. They discourage litiga- 
 tion, by burying in one common receptacle all tlie accu- 
 mulations of past times, which are unexplained, and 
 have now, from lapse of time, become inexplicable. It 
 has been said by John Voet with singular felicity, that 
 controversies are limited to a fixed period of time, lest 
 they should be immortal, while men are mortal : JVe 
 aiitem lites immortelles essent, dum Utig antes mortales 
 sunt.^ 
 
 § 577. It has accordingly become a formulary in in- 
 ternational jurisprudence, that all suits must be brought 
 
 1 I Boullenois, Observ. 23, p. 530 ; Ferguson v. Fyffe, 8 Clark. & Fin. 
 121, MO. 
 
 2 J. Voet, ad Pand. Lib. 5, tit. 1, ^ 53, p. 338. .
 
 CH. XIV.] JURISDICTION AND REMEDIES. 959 
 
 within the period prescribed by the local law of the 
 country where the suit is brought, {Lex fori,) other- 
 wise the suits will be barred ; and this rule is as fully 
 recognized in foreign jurisprudence, as it is in the com- 
 mon law.^ Not, indeed, that there are no diversities of 
 opinion upon this subject ; but the doctrine is establish- 
 ed by a decisive current of Avell considered authorities.^ 
 Thus, Huberus lays down the doctrine in clear terms, 
 applying it to the A^ery case of a prescription ; and he 
 assigns the reason ; Ratio hcec est, cpiod prwscriptio et exe- 
 eiitio non pertinent ad valorem contractils, sed ad tempiis et 
 modum actionis instituendce, qiice i^er se, quasi contractum, 
 separatum negotium constituit. Adeoque receptiim est opti- 
 ma ratione, lit ordinandis jiidiciis, loci consiiettido, uhi agi- 
 tur, etsi de negotio, alibi celelrato, spectatur, id docet San- 
 diiis, uhi tradit, etiam in execidione sententice alihi latce, scr- 
 vati jus loci, in quo fit executio, non uhi res judicata est? 
 
 ^ The authorities in the common law are very numerous. A consider- 
 able number of them are cited in 4 Cowen, R. 528, note 10 ; Id. 530 ; 
 Van Reimsdyk v. Kane, 1 Gallis. R. 371 ; Le Roy v. Crowninshield, 2 
 Mason, R. 351 ; British Linen Company v. Drummond, 10 Barn. & 
 Cressw. 903 ; De La Vega v. Vianna, 1 Barn. & Adolp. R. 284 ; Huber 
 V. Sleiner, 2 Bing. New Cases, 202, 209 to 212 ; Don v. Lippmann,5 
 Clark & Finnell. R. 1, 13, 14, 15, 16, 17 ; Medbury v. Hopkins, 3 Con- 
 nect. R. 472 ; Woodbridge v. Wright, 3 Connect. R. 523 ; Bank of U. S. 
 V. Donnally, 8 Peters, R. 361 ; Bulger v. Roche, 11 Pick. 36 ; De Couche 
 V. Savatier, 3 Johns. Ch. R. 190; Lincoln v. Baltelle, 6 Wend. R. 475 ; 
 Brown v. Stone, 4 Louis. Ann. R. 235. And this although the contract 
 may be dated and payable in another State. Young v. Crossgrove, 4 
 Louis. Ann. R. 233. 
 
 2 See Ersk. Inst. B. 3, tit. 7, n. 49, p. 633, 634. 
 
 3 Huberus, Tom, 2, Lib. 1, tit. 3, De Conflict. Leg. ^ 7 ; 1 Hertii, 
 Opera, De Collis. ^ 4, n. 65, p. 150, 151, edit. 1737; Id. p. 312, edit. 
 1716. Hertius seems of a different opinion ; saying, that, if the pre- 
 scription only of the place, where the suit is brought, could prevail, the 
 times of prescription would be very uncertain ; for a man might frequently 
 be sued in different places. 1 Hertii, Opera, De Collis, Leg. ^ 4, n. 65,
 
 960 CONFLICT OF LAWS. [CH. XIV. 
 
 Paul Voet says ; TJhi quoad actionis intentationem, occurrit 
 ilia dlfficultas, an si diversa sint statuta circa actionis fini- 
 tionem sen termimim, spectandus sit terminus statuti deUtoris, 
 an creditoris ? Respondeo ; quia actor sequitur forum rei, 
 ideo extraneus petens a reo, quod sihi dehetur, sequetiir ter- 
 minum statidi prcescriptum actioni in foro rei. Et quia 
 Jioc statutum non exserit vires extra ierritorimn statiientis, 
 ideo, etiam rco alihi convcnto, tale statidum ohjicere non po- 
 terit) Boullenois holds a similar doctrine, asserting, 
 that the bar of prescription is a part of the modtis pro- 
 cedendi? It is in vain, (he adds,) to assert, that the bar 
 of prescription is a peremptory exception, [exceptio 
 peremptoria,) and that, according to Baldus, Exceptio 
 peremptoria pertinet ad decisionem causce ; — That remark 
 properly applies to a peremptory exception, which falls 
 upon the contract, and not to one, which falls only upon 
 the action or proceedings in a suit.^ Many other jurists 
 might be cited in support of this doctrine, if it were 
 necessary to go at large into the subject.^ The doc- 
 
 p. 150, edit. 1737 ; Id. p. 212; edit. 1716. See also the opinions of other 
 jurists to the same point in 1 Boullenois, Observ. 23, p. 528, 529, 530 ; 2 
 Boullenois, Observ. 46, p. 487, 488 ; Erskine's Inst. B. 3, tit. 7, ^ 48, p. 
 633, 634; J. Voet, ad Pandect. Tom. 2, Lib. 44, tit. 3, ^ 10, 12 ; 3 Burge, 
 Coram, on Col. and For. Law, Pt. 2, ch. 21, ^ 7, p. 878, 879. 
 
 1 P. Voet, de Stat. § 10, ch. 1, n. 1, p. 281, edit. 1715; Id. p. 340, 
 edit. 1661. 
 
 2 1 Boullenois, Observ. 23, p. 530 ; post, ^ 579. 
 
 3 Ibid. 
 
 4 See 1 Boullenois, Observ. 23, p. 530, 550 ; 2 Boullenois, Observ. 46, 
 p. 455, 456 ; Casaregis Disc. 179, ^ 59, 60 ; P. Voet, De Slatut. ^ 10, ch. 
 1,^ 1, p. 281, edit. 1715; Id. p. 339, 340, edit. 1661. See 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 10, ^ 5, p. 122, 123, 124 ; Id. 
 ch. 21, ^ 7, p. 878, 879, 880; Erskine, Inst. B. 3, tit. 7, ^ 48, p. 633, 
 634.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 961 
 
 trine of the Scottish courts is in precise conformity to 
 that of the common law.^ 
 
 § 578. But if the question were entirely new, it 
 would be difficult upon principles of international justice 
 or policy to establish a different rule. Every nation 
 must have a right to settle for itself the times, and 
 modes, and circumstances, within and under which suits 
 shall be litigated in its own courts. There can be no 
 pretence to say, that foreigners are entitled to crowd the 
 tribunals of any nation with suits of their own, which 
 are stale and antiquated, to the exclusion of the com- 
 mon administration of justice between its own subjects. 
 As little right can foreigners have to insist, that the 
 times and modes of proceeding in suits, provided by the 
 laws of their own country, shall supersede those of the 
 nation in which they have chosen to litigate their con- 
 troversies, or in whose tribunals they are properly par- 
 ties to any suit. 
 
 § 579. The reasoning sometimes insisted upon by 
 foreign jurists, in opposition to this plain and intelligi- 
 ble doctrine, is, in the first place, that the statute of 
 limitations or prescription really operates as a peremp- 
 tory bar, and therefore does not in fact touch the mode 
 of proceeding, but the merits of the case ; JVou tangit 
 modum simpUcem iwoccdcndi ; sed tangit meritum caiisce ; ~ 
 and. in the next place, that it subjects the party to dif- 
 ferent prescriptions in different places, and therefore 
 leaves his rights in uncertainty.^ The latter objection 
 
 1 Erskine, Inst. B. 3, tit. 7, ^ 48, p. 633; Le Roy v. Crowninshield, 2 
 Mason, R. 174 ; Kames on Equity, B. 3, ch. 8, k^ 4, 6 ; P. Voet, De 
 Statut. ^ 10, ch. 1, n. 1, p. 280, 281, edit. 1715; Id. p. 339, 340, edit. 
 1661. 
 
 2 1 Boullenois, Observ. 23, p. 529, 530 ; ante, \ all. 
 
 3 1 Hertii Opera, De Collis. Leg. § 4, n. 65, p. 150, 151, edit. 1737 ; Id. 
 p. 212, edit. 1716. 
 
 CONFIi. 81
 
 962 CONFLICT OF LAWS. [CH. XIV. 
 
 may be answered by the obvious consideration, that if 
 the party chooses to reside within any particular terri- 
 tory, he thereby subjects himself to the laws of that terri- 
 tory, as to all suits brought by or against him. It may 
 be added, that, as the law of prescription of a particular 
 country, even in case of a contract made in such coun- 
 try, forms no part of the contract itself, but merely acts 
 upon it ex i^ost facto in case of a suit, it cannot properly 
 be deemed a right stipulated for, or included in the 
 contract. Even these foreign jurists do not pretend, 
 that the prescription of a country where a contract is 
 made, constitutes a part of the contract. What they 
 contend for amounts at most only to 'this, that the pre- 
 scription of the Lex loci contractus acts upon, and apper- 
 tains to, the decision of the cause. Hoc pertinet ad de- 
 cisionem causce, says Baldus. Prescrijytio utiqiie ad con- 
 tractmn et meritum catisce 2')crtmet, non ad p'OcesBimi, says 
 Gerhard Titius.^ This objection indeed is fully and 
 satisfactorily answered by Boullenois in the passage 
 above cited.^ 
 
 1 1 Boullenois, Observ. 23, p. 529, 530 ; Ersk. Inst. B. 3, tit. 7, h 48, 
 p. 633, 631. 
 
 2 Ante, ^ 577. — Lord Brougham also in delivering his judgment in 
 Don V. Lippmann, 1 Clark & Finnell. p. 1, 15, 16, met the very objection. 
 His language on that occasion was (it being the case of a bill of exchange 
 accepted and payable in France, and sued afterwards in Scotland, and the 
 Scottish prescription set up as a bar) ; " It is said, that the limitation is 
 of the very nature of the contract. First, it is said, that the party is bound 
 for a given time, and for a given time only. That is a strained construc- 
 tion of the obligation. The party does not bind himself for a particular 
 period at all, but merely to do something on a certain day, or on one 
 or other of certain days. In the case at the bar the obligation is to pay 
 a sum certain at a certain day ; but the law does not suppose, that he 
 is at the moment of making the contract contemplating the period, at 
 which he may be freed by lapse of time from performing it. The ar- 
 gument, that the limitation is of the nature of the contract, supposes, that 
 the parties look only to the breach of the agreement. Nothing is more 
 contrary to good faith, than such a supposition, that the contracting par-
 
 CH. XIV.] JURISDICTION AND REMEDIES. 963 
 
 § 580. The other objection is well founded in its 
 form, but it does not shake the ground of the general 
 doctrine. It is true, as Baldus contends, that the sta- 
 tute of limitations or prescription does go to the deci- 
 sion of the cause ; Exccptio ijeremptoria iKvtinct ad deci- 
 ■sioncm causce. But that is not the question. The ques- 
 tion is, whether it is a matter of the original merits, as 
 for example, a question of the original validity, or in- 
 terpretation, or discharge of a contract, or whether it is 
 a matter touching the time and mode of remedial jus- 
 tice, which is provided by law to redress grievances, or 
 to prevent wrongs, or to suppress vexatious litigation. 
 Suppose a nation were to declare, (as France has done 
 in regard to foreigners in some cases,) that no suits 
 should be maintained in its own courts between fo- 
 reigners.^ This would be a peremptory exception. 
 But could it be denied, that France had a right so to 
 regulate the jurisdiction of its own tribunals ? Or that 
 it was an enactment touching remedies ? Considering 
 in their true light, statutes of limitation or prescription 
 are ordinarily simple regulations of suits, and not of 
 rights. They regulate the times in which rights may 
 be asserted in courts of justice, and do not purport to 
 act upon those rights. Boullenois has truly said ', 
 L' exception ne tomhe, que sur V action ct la procedure inten- 
 Ue? Pothier very properly treats prescription, {Fin de 
 mn recevoir) not so much as an extinguishment of the 
 
 lies look only to the period, at which the Statute of Limitations will 
 begin to run. It will sanction a wrong course of conduct, and will turn 
 a protection against laches into a premium for evasiveness." 
 
 1 Ante, ^ 542. 
 
 2 1 Boullenois, Observ. 23, p. 530 ; ante, ^ bll ; Ersk. Inst. B. 3, tit. 
 7, § 48, p. 633, 634.
 
 964 CONFLICT OP LAWS. [CH. XIV. 
 
 debt or claim, as an extinguishment of the right of 
 action thereon.^ And this is precisely the manner in 
 which the subject is contemplated at the common law 
 as well as by many foreign jurists.^ 
 
 § 581. And here, again, upon the same mistaken 
 foundation already discussed, some foreign jurists (as 
 we have seen^) maintain the doctrine in relation to 
 contracts, (a doctrine repudiated by the common law,^) 
 that, if they are made in one place, and to be performed 
 or paid in another place, the law of prescription of the 
 latter place is to govern. Such is the opinion of Ever- 
 hardus. Aiit qucerimus (saj^s he) quis locus inspiciatiir, 
 quoad extinctionem actionis 2J^'opter prcescriptionem statuto- 
 riam, vigentem in iino loco, ct non in alio, iibi statuta loco- 
 rum sunt diversa. Et cerium est, quod inspicitiir locus des- 
 tinatcB solutionis.^ Bartolus, Burgundus, and Christi- 
 nseus hold the same opinion.'^ Of course, the doctrine 
 
 1 Pothier on Oblig. n. 640, 641, 642. 
 
 2 Sturgis V. Crowninshield, 4 Wheat. R. 122, 200, 207. 
 
 3 J. Voet, ad Pand. Lib. 44, tit. 3, § 10 ; D'Aguesseau, CEuvres, Tom. 
 5, p. 374, 4to. edit. ; Le Ftoy v. Crowninshield, 2 Mason, R. 170, 171 ; 
 Merlin, R6pert. tit. Prescription, Sect. I. ^3, n. 7. — Corporations are 
 deemed to be domiciled in the country from which they derive their act or 
 charter of incorporation ; and therefore the same rule applies to them as 
 applies to pri%-ate persons in cases of prescription. 3 Burge, Comm. on 
 Col. and For. Law, Pt. 2, ch. 21, ^7, p. 881, 882. See Louisville Rail- 
 road Company v. Letson, 2 How. U. S. R. 497. 
 
 4 Ante, ^ 574 c. 
 
 5 Ibid. 
 
 6 Everhard. Consil. 78, p. 208 ; 2 Boullenois, Observ. 46, p. 488. 
 
 "^ 2 Boullenois, Observ. 46, p. 488. — It is surprising, that Mr. Henry 
 should have cited this doctrine of foreign authors, as sound law (appa- 
 rently copying it from Boullenois) without considering that the whole 
 course of p]nglish opinions on this subject disclaimed it. (Henry on Fo- 
 reign Law, ch. 8, ^ 1, 2, p. 54, 55.) Pardessus says, that, when a debtor 
 pleads a statute of prescription, the right to use this plea, and the time 
 within which it should be pleaded, will be regulated by the law of the
 
 CH. XIV.] JURISDICTION AND REMEDIES. 965 
 
 of these authors must be understood to be limited to 
 prescription in personal actions ; for, as to prescription 
 in cases of immovable property, it is beyond reason- 
 able doubt, that it is and ought to be governed purely 
 by the Lex hci rei sitcc} Dumoulin has laid down the 
 distinction in broad but exact terms. Aut statutiim dls- 
 ponit de ]jrcescripUone,vel usuccqmne rerum corporcdimu, sive 
 moliUum, sive immolUium, ct tunc indisUnde {mpicUur locus, 
 uU res est. Idem in relus sive Jurihus incorporalihus limi- 
 tatis ad res corporales, sivd qucdenus ad illas res limiiantur ; 
 Secus si de Juribiis, vel actiomhus personalihus, sive mo- 
 mentaneis, sive anmds pei^sonce adJierentihiis, id est non limi- 
 tatis ad certas res, etiamsi illis actiomhus adhwreat hijpotlieca 
 generalis, vel accessoria rerum corporalium? Paul Voet 
 takes the like distinction. Quid, si itaque conteniio de ali- 
 quo jure in re, seu ex ipsa re descendente ? vel ex contractu, 
 velactionepersonali, sed hi rem scripta ? An spectabitur loci 
 
 place where he has promised to pay ; or, if this place has not been deter- 
 mined, then at the domicil of the debtor, at the time when he contracted 
 the obligation ; because, prescription being a plea given to the debtor 
 against the demand of his creditor, it is naturally in the domicil of the 
 debtor or of his government that he should find this protection. Pardes- 
 sus, Tom. 5, Pt. 6, tit. 9, eh. 2, ^ 2, art. 1445, p. 275 ; Henry on Fo- 
 reign Law, Appendix, p. 237. Pardessus goes on to state, that these 
 rules apply to the case where several sureties for the same debt reside in 
 jurisdictions, where the laws respecting prescription are different. Each, 
 in becoming a surety, must be supposed to have intended to enjoy all the 
 real pleas or exceptions existing in favor of the principal debtor, without 
 renouncing the particular prescription in his own favor, to extinguish his 
 obligation as surety, which is regulated by the law of his domicil at the 
 moment when he signed the contract. Pardessus, Id. art. 1495, p. 275, 
 276 ; Henry on Foreign Law, 238. This is certainly pressing the doc- 
 trine to a very great extent. 
 
 1 1 Boullenois, Observ. 20, p. 350 ; J. Voet, ad Pand. Lib. 44, tit. 3, 
 § 12. 
 
 2 MoUn. Opera, Tom. 3, Coram, ad Cod. Lib. 1, tit. 1, 1. 1, p. 557, De 
 Prescript, edit. 1681 ; 1 Boullenois, Observ. 20, p. 350. 
 
 81*
 
 966 CONFLICT OF LAWS. [CH. XIV. 
 
 statutum, uhidominiis liahet domkilium, an statidimi rei sitce ? 
 Bespondeo ; Statutum rei sitce. Ut tamen actio etiam inten- 
 tari possit, ubi reus halet domicilium. Idqtie oUinet, sive 
 forensis sit ille, de cvjus re controversia est, sive incola loci, 
 uhires est sita} John Voet maintains the same doctrine. 
 Si prcescriptioni implendce alia prcefinita sint tempora in loco 
 domicilii actoris, alia in loco uhireus domicilium fovet, spectan- 
 dum videtur tempiis, quod oUinet ex statuto loci, in quo reus 
 commoratur, nisi de immohiliiim prcescriptione qucBstio sit ; 
 quo casu necpie leges domicilii prcescrihentis, neque leges domi- 
 cilii ejus, in cujus prcejudicium prcescriptix) sit,sedmagis leges 
 loci, in quo sita immolilia, spectandce sunt ; cum iralcditium 
 sit, immolilia regi lege loci, in quo sita sunt.^ Pothier and 
 Merlin fully recognize the same doctrine.^ The com- 
 mon law has firmly fixed its own doctrine, that the pre- 
 scription of the Lex fori must prevail in all cases of per- 
 sonal actions. In all cases of real actions, and of actions 
 touching things savoring of the realty, the prescription 
 of the law rei sitce is also to prevail. And as by the com- 
 mon law, no actions of this sort can be brought ex di- 
 recto, except in the place rei sitce ; it follows that the Lex 
 fori governs, as a universal rule, applicable to all cases.^ 
 
 1 P. Voet. De Statut. ^ 9, ch. 1, n. 2, p. 251, edit. 1715 ; Id. p. 305, 
 edit. 1661. 
 
 2 J. Voet, ad Pand. Tom. 2, Lib. 44, tit. 3, n. 12, p. 887 ; 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 10, ^ 5, p. 122, 125 ; J. Voet, 
 ad Pand. Tom. 1, Lib. 5, tit. 1, n. 77. 
 
 3 Pothier, Traite de la Prescript, n. 247 ; Merlin, R6pert. tit. Prescrip- 
 tion, Sect. I. ^ 3, n. 7; 3 Burge, Comm. on Col. and For. Law, Pt. 2, 
 ch. 10, ^ 5, p. 123, 124. 
 
 4 See British Linen Company tJ. Drummond, 10 Barn. & Ores. 903 ; 
 Huber V. Steiner, 2 Bing. N. Cas. 202, 209 to 216 ; Don v. Lippmann, 
 5 Clark & Finnel. R. I, 13 to 17 ; Bulger v. Roche, 11 Pick. R. 36 ; 
 De Couche v. Savatier, 3 Johns, Ch. R. 190, 218, 219 ; De la Vega v. 
 Vianna, 1 Barn. & Adolph. 284 ; Lincoln v. Battelle, 6 Wend. R. 475 ;
 
 CH. XIV.] JURISDICTION AND REMEDIES. 967 
 
 § 582. But although statutes of limitation or pre- 
 scription of the place where the suit is brought, may 
 thus properly be held to govern the rights of parties in 
 such suit, or as the proposition is commonly stated, the 
 recovery must be sought, and the remedy pursued 
 within the times prescribed by the Lex fori, without re- 
 gard to the Lex loci contractus, or the origin or merits of 
 the cause ; yet there is a distinction which deserves 
 consideration, and which has been often propounded. 
 It is this. Suppose the statutes of limitation or pre- 
 scription of a particular country do not only extinguish 
 tlie right of action, but the claim or title itself, ipso facto, 
 and declare it a nullity after the lapse of the prescribed 
 period ; and the parties are resident within the juris- 
 diction during the whole of that period, so that it has 
 actually and fully operated upon the case ; under such 
 circumstances the question might properly arise, whether 
 such statutes of limitation or prescription may not af- 
 terwards be set up in any other country to which the 
 parties may remove, by way of extinguishment, or trans- 
 fer of the claim or title. This is a point which does not 
 seem to have received as much consideration in the de- 
 cisions of the common law, as it would seem to require. 
 That there are countries in which such regulations do 
 exist, is unquestionable. There are states which have 
 declared, that all right to debts, due more than a pre- 
 scribed term of years, shall be deemed extinguished ; 
 and that all titles to real and personal property, not 
 pursued within the prescribed time, shall be deemed 
 
 ante, ^552 to ^ 555; Broh v. Jenkins, 9 Martin, R. 5i6 ; 3 Burge, 
 Comm. on Col. and For. Law, Pt. 2, ch. 10, \ 5, p. 123, 124, 125.— 
 The Ivoman law seems to iiave given an election to the plaintiff to bring 
 his action in the domicil of the defendant (reus) or of the rci sitee. Ante, 
 § 5:-2 ; 1 Boullenois, Obsetv. 25, p. 618, 619.
 
 968 CONFLICT OF LAWS. [CH. XIV. 
 
 forever fixed in the adverse possessor.^ Suppose, for 
 instance, (as has occurred,) personal property is ad- 
 versely held in a State for a period beyond that pre- 
 scribed by the laws of that State, and after that period 
 has elapsed the possessor should remove into another 
 State, which has a longer period of prescription, or is 
 without any prescription j could the original owner 
 assert a title there against the possessor, whose title by 
 the local law, and the lapse of time, had become final 
 and conclusive before the removal ? It has certainly 
 been thought, that, in such a case, the title of the pos- 
 sessor cannot be impugned.^ If it cannot, the next 
 inquiry is, whether the bar of a statute extinguishment 
 of a dehtjkffe loci, ought not equally to be held a per- 
 emptory exception in every other country ? This sub- 
 ject may be deemed by some persons still open for 
 future discussion. It has, however, the direct authority 
 of the Supreme Court of the United States in its favor ; ^ 
 and its correctness has been recently recognized by the 
 Court of Common Pleas in England."* In the Ameri- 
 can Courts other than the Supreme Court, it does not 
 seem hitherto to have obtained any direct approval or 
 
 1 See J, Voet, ad Pand. Lib. 44, tit. 3, ^ 5, 6, 9 ; Ersk. Inst. B. 3, tit. 7, 
 ^ 1, 2, 7, 8; Beckfordu. Wade, 17Ves. 86 ; Lincoln v. Battelle, 6 Wend. 
 R. 475. — A statute of this sort, extinguishing the title to real estate 
 after an adverse possession, and transferring the title to the adverse pos- 
 sessor, actually exists in the State of Rhode Island. Act of 1822, Digest 
 of Rhode Island Laws, p. 363, 364, edit. 1822. 
 
 2 See Beckford v. Wade, 17 Ves. 88 ; Newby v. Blakeley, 3 Hen. & 
 Mum. R. 57 ; Brent v. Chapman, 5 Cranch, R. 358 ; Shelby v. Grey, 
 11 Wheat. R. 361, 371, 372. But see Lord Dudley i-. Warde, Ambler, 
 R. 113. 
 
 3 Shelby v. Grey, 11 Wheat. R. 361, 371, 372. 
 
 ■1 Huber v. Steiner, 2 Bing. N. Cases, 202, 211. See also Don v. Lipp- 
 mann, 5 Clark & Finnell. 1, 16, 17 ; 3 Burge, Comm. on Col. and For. 
 Law, Pt. 2, oh. 10, § 5, p. 883, 884.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 969 
 
 recognition. But in all the cases in which the question 
 might have been incidentally discussed in these Courts, 
 the statutes under consideration did not i)urport to ex- 
 tinguish the right, but merely the remedy.^ 
 
 § 582 a. A question of a kindred character has been 
 discussed of late years, both in England and America ; 
 and that is, whether the Statute of Limitations, or pre- 
 scription of the country where a suit is brought, is a 
 good defence and bar to a suit brought there to enforce 
 a foreign judgment. In both countries it has been held, 
 that it is a good defence and bar.^ In America the case 
 was stronger than it was as presented in England, 
 for it was a judgment rendered in one of the United 
 States, which was sought to be enforced in another State 
 of the Union ; and therefore fell within the clause of 
 the Constitution, which declares, that full faith, and cre- 
 dit, and effect, shall be given in each State to the judi- 
 cial proceedings of every other. It was thought, that 
 this clause did not in the slightest degree vary the ap- 
 plication of the general principle, that in all matters of 
 proceedings in courts the Lex loci was to govern.^ 
 
 1 On this subject, see Decouche v. Savatier, 3 Johns. Ch. R. 190, 218, 
 219 ; Van Reimsdyk v. Kane, 1 Gallis. R. 371 ; Le Roy v. Crowninshield, 
 2 Mason, R. 151, and the cases there cited ; Lincoln v. Battelle, G Wend. 
 R. 475 ; 1 Domat, B. 3, ^ 4, art. 1, p. 464 ; Id. art. 10, p. 460. John 
 Voet says in one place; "Si prasscriptioni implendaj alia prcfinita sint 
 tempera in loco domicilii actoris, alia in loco, ubi reus domicilium fove 
 spectandum videtur tempus, quod obtinet ex statuto-.loci, in quo reus com- 
 moratur." J. Voet, ad Pand. Lib. 44, tit. 3, ^ 12, p. 877. 
 
 2 Don V. Lippraann, 5 Clark & Finnell. R. 1, 19, 20, 21 ; McElraoyle 
 V. Cohen, 13 Peters, R. 312. 
 
 3 Tovvnsend v. Jemison, 9 How. U. S. R. 419 ; Me Elmoyle v. Cohen, 
 13 Peters, R. 312, 327, 328. — Mr. Justice Wayne, in delivering; the opi- 
 nion of the Court, after adverting to the clause of the Constitution of the 
 United States, and the interpretation thereof, said ; " Such being the faith, 
 credit, and effect, to be given to a judgment of one State in another by
 
 970 CONFLICT OF LAWS. [CH. XIV. 
 
 § 582 h. It may be important, then, carefully to dis- 
 tinguish between cases, where the statute of limitations 
 
 the Constitution and the act of Congress, the point under consideration will 
 be determined by settling, what is the nature of a plea of the statute of 
 limitations. Is it a plea that settles the right of a party on a contract or 
 judgment, or one that bars the remedy ? Whatever diversity of opi- 
 nion there may be among jurists upon this point, we think it well settled 
 to be a plea to the remedy ; and consequently, that the lex fori must pre- 
 vail. Higgins V. Scott, 2 Barn. & Adolph. 413; 4 Cowen, R. 528, note 
 10; Id. 530; Van Reimsdyk v. Kane, 1 Gallis. R. 371; Le Roy v. 
 Crowninshield, 2 Mason, R. 351 ; British Linen Co. v. Drummond, 10 
 Barn. & Cresw. 903 ; De la Vegau. Vianna, 1 Barn. & Adolph. 284 ; De 
 Couche V. Savatier, 3 Johns. Ch. R. 190 ; Lincoln v. Battelle, 6 Wend. 
 R. 475 ; Gulick v. Lodes, Green's New Jersey Rep. 68 ; 3 Burge, Com. 
 on Col. and For. Law, p. 883. The statute of Georgia is, ' that actions 
 of debt on judgments obtained in Courts, other than the Courts of this State, 
 must be brought within five years after the judgment obtained.' It would 
 be strange, if in the now well understood rights of nations to organize their 
 judicial tribunals according to their notions of policy, it should be conceded 
 to them in every other respect, than that of prescribing the time within 
 which suits shall be litigated in their Courts. Prescription is a thing of 
 policy, growing oui of the experience of its necessity ; and the limt;, 
 after which suits or actions shall be barred, has been, from a remote an- 
 tiquity, fixed by every nation, in virtue of that sovereignty, by which it 
 exercises its legislation for all persons and property within its jurisdiction. 
 This being the foundation of the right to pass statutes of prescription or 
 limitation, may not our States, under our system, exercise this right in 
 virtue of their sovereignty 1 Or is it to be conceded to them in every other 
 particular, than that of barring the remedy upon judgments of other States 
 by the lapse of time ? The States use this right upon judgments rendered 
 in their own Courts ; and the common law raises the presumption of the 
 payment of a judgment after the lapse of twenty years. May they not 
 then limit the time for remedies upon the judgments of other States, and 
 alter the common law by statute, fixing a less or larger time for such pre- 
 sumption, and altogether barring suits upon such judgments, if they shall 
 not be brought within the time stated in the statute ? It certainly will not 
 be contended, that judgment creditors of other States shall be put upon a 
 better footing, in regard to a State's right to legislate in this particular, 
 than the judgment creditors of the State in which the judgment was ob- 
 tained. And if this right so exists, may it not be exercised by a State's 
 restraining the remedy upon the judgment of another State, leaving those 
 of its own Courts unaffected by a statute of limitations, but subject to the 
 common-law presumption of payment after the lapse of twenty years. In
 
 CH. XIV.] JURISDICTION AND REMEDIES. 971 
 
 is strictly a mere bar to the remedy, and cases, where it 
 goes directly to the extinguishment of the debt, claim, 
 or right. Where it professes to dispose of the latter, it 
 would seem difficult to say, that a mere removal to ano- 
 ther country can revive an extinguished debt, claim, or 
 right, or change the positive title of property acquired 
 and perfected under the local law of the place, where 
 the parties and property are situated.^ But where it 
 professes to deny, or control, or extinguish the remedy 
 only, other considerations may properly apply. It has, 
 indeed, been decided upon a recent occasion, in one of 
 the American Courts, that in cases falling within the 
 latter predicament, it will make no difference, whether 
 both parties have remained domiciled in the same coun- 
 try where the original cause of action arose, during the 
 whole period required by the local statute of limitations 
 to bar the remedy thereon, or whether they have 
 changed their domicil after it has begun to run.^ But 
 the reasoning which thus repels any such distinction, is 
 not so clear or decisive as has been supposed. Every 
 
 other words, may not the law of a State fix different times for barring the 
 remedy in a suit upon a judgment of another State, and for those of its own 
 tribunals? We use this mode of argument to show the unreasonableness 
 of a contrary doctrine. But the point might have been shortly dismissed 
 with this safe declaration, that there is no direct constitutional inhibition 
 upon the States, nor any clause in the Constitution, from which it can be 
 even plausibly inferred, that the States may not legislate upon the remedy 
 in suits upon the judgments of other States, exclusive of all interference 
 with their merits. It being settled that the statute of limitations may bar 
 recoveries upon foreign judgments ; that the effect intended to be given 
 under our Constitution to judgments is, that they are conclusive only as 
 regards the merits ; the common-law principle then applies to suits upon 
 them, that they must be brought within the period prescribed by the local 
 law, the lex fori, or the suit will be barred." 
 
 1 Donr. Lippmann, 5 Clark & Finnell. R. 1, 15, 16, 17. 
 
 2 Bulger u. Roche, 11 Pick. R. 36.
 
 972 CONFLICT OF LAWS. [CH. XIV. 
 
 nation has a complete and exclusive sovereignty to 
 enact laws, which shall limit all rights of action to cer- 
 tain prescribed periods within its own tribunals ; and to 
 declare, that after that period all rights of action shall 
 be extinguished ; and if the parties remain domiciled 
 within the territorial jurisdiction during that whole 
 period, the law ij^so facto operates on the case, and the 
 rights of action are completely extinguished there. 
 But the same doctrine is not true, or rather may not 
 be true, where before the prescribed period has arrived, 
 one or both of the parties have changed their national 
 domicil ; for by such change they have ceased to be 
 under the exclusive dominion of the nation, whose sta- 
 tute of limitations has begun to operate upon their 
 rights of action, but has not as yet extinguished them. 
 The laws thereof can no longer operate on those rights, 
 at least not operate, except within the territorial limits 
 of the nation. Elsewhere they can be deemed as 
 having only an inchoate and imperfect effect ; and the 
 change of domicil suspends their power to extinguish 
 the rights of action in future, since they can have no 
 binding extra-territorial force. It is no answer to say, 
 that when once the statute of limitations begins to run, 
 no subsequent impediment stops it from continuing to 
 run. That is true in the nation, whose laws contain 
 such provisions, or inculcate such a doctrine. But no 
 other nation is bound to give effect to such provisions 
 or to such a doctrine. They are strictly intra-territorial 
 regulations and interpretations of the Lex fori, which 
 other nations are not bound to observe or keep. While 
 the parties were domiciled there, the statute of limita- 
 tions continued to run against them ; but it had not then 
 extinguished any rights of action. When they changed 
 their domicil, the statute, as to them or their rights of
 
 CH. XIV.] JURISDICTION AND REMEDIES. 973 
 
 action, in respect to personal property, or personal 
 claims, was no longer operative or obligatory ; but the 
 statutes only of their new domicil. It would, or at 
 least might, then, require a very different consideration, 
 where the local law had before the change of domicil 
 actually extinguished all rights of action ; for then to 
 revive them is to create new rights, and not to enforce 
 old rights subsisting at the time of the removal.^ 
 
 1 In Bulger f. Roche, 11 Pick. R. 36, the very case arose of a cause of 
 action extinguished by the local law of the country, (Nova Scotia,) where 
 both parties resided during the whole period of the running of the statute 
 of limitations ; and the Supreme Court of Massachusetts held, that the 
 right of action after a change of domicil of the defendant by a removal to 
 Massachusetts was not thereby extinguished in the Slate tribunals ; but 
 might be pursued within the period prescribed by the statute of limitations 
 of Massachusetts. On that occasion Mr. Chief Justice Shaw in delivering 
 the opinion of the Court said ; "The facts, so far as they are material, are 
 these; that the cause of action accrued in 1821, more than six years be- 
 fore the comtnencement of this action, that the plaintiff and defendant 
 were both domiciled at Halifax in Nova Scotia, and were subjects of the 
 King of Great Britain, and that by the law of that country, an action of 
 assumpsit is barred in six years. It is stated in the replication, and ad- 
 milted by the rejoinder, that the plaintiff came into this commonwealth, for 
 the first time, in 1829, and that the action was commenced within six 
 years from that time. That the law of limitations of a foreign country 
 cannot of itself be pleaded as a bar to an action in this commonwealth, 
 seems conceded ; and is indeed too well settled by authority to be drawn in 
 question. Byrne v. Crowninshield, 17 Mass. R. 55. The authorities 
 both from the civil and the common law concur in fixing the rule, that the 
 nature, validity, and construction of contracts, is to be determined by the 
 law of the place, where the contract is made ; and that all remedies for 
 enforcing such contracts are regulated by the law of the place, where 
 such remedies are pursued. Whether the law of prescription, or statute of 
 limitation, which takes away every legal mode of recovering a debt, shall 
 be considered as affecting the contract, like payment, release, or judgment, 
 which in effect extinguish the contract, or whether they are to be consi- 
 dered as affecting the remedy only by determining the time, within which 
 a particular mode of enforcing it shall be pursued, were it an open ques- 
 tion, might be one of some difficulty. It was ably discussed upon general 
 principles in a late case (Le Roy v. Crowninshield, 2 Mason's II. 151) be- 
 
 CONFL. 82
 
 974 CONFLICT OF LAWS. [CH. XIV. 
 
 § 583. What has been thus far stated on this head 
 may be concluded by quoting a passage from John 
 Yoet, the correctness and force of which, in point of 
 principle, are submitted to the consideration of the 
 reader. Quod, si restitutio concedenda sit non ex causa, 
 quce ijjsiim negotium ah initio comitabatur, (iiti comitatur 
 metiis, dolus, error) sed ex ed, qum ijost supervenit, (qitalis 
 est Usiicapio verum, aut Prwseriptio jiiriiim ct actionum. 
 
 fore the Circuit Court, in which however it was fully conceded by the 
 learned judge, upon a full consideration and review of all the authorities, 
 that it is now considered to be a settled question. A doubt was intimated 
 in that case, whether, if the parties had remained subjects of the foreign 
 country until the term of limitation had expired, so that the plaintiff's re- 
 medy would have been extinguished there, such a state of facts would not 
 have presented a stronger case, and one of more serious difficulty. Such 
 was the case in the present instance. But we think it sufficient to advert 
 to a well settled rule, in the construction of the statute of limitations, to 
 show, that this circumstance can make no difference. The rule is this ; 
 that where the statute has begun to run, it will continue to run notwith- 
 standing the intervention of any impediment, which, if it had existed, when 
 the cause of action accrued, would have prevented the operation of the 
 statute. For instance, if this action accrued in Nova Scotia in 1821, and 
 the plaintiff or defendant had left that country in 1825 within six years, in 
 1828, after the lapse of six years, the action would be as effectually bar- 
 red, and the remedy extinguished there, as if both had continued to reside 
 in Halifax down to the same period. So that when the parties met here 
 in 1829, so far as the laws of that country, by taking away all legal re- 
 medy, could affect it, the debt was extinguished, and that equally, whether 
 they had both remained under the jurisdiction of those laws, till the time 
 of limitation had elapsed, or whether either or both had previously left it. 
 The authorities referred to, therefore, must be held applicable to a case where 
 both parties were subject to the jurisdiction of a foreign state, when the bar 
 arising from its statute of limitations attached. The same conclusion re- 
 sults from the reason, upon which these cases proceed, which is, that sta- 
 tutes of limitation affect only the time, within which a legal remedy must 
 be pursued, and do not affect the nature, validity, or construction of the 
 contract. This reason, whether well founded or not, applies equally to 
 cases, where the term of limitation has elapsed, when the parties leave the 
 foreign state, as to those where it has only begun to run before they have 
 left the state, and elapses afterwards." But see Don v. Lippraann, 
 5 Clark & Finnell. R. 1, 15, IG, 17.
 
 CH. XIV.] JURISDICTION AND REMEDIES. 975 
 
 propter absentiam non intcrriipta) ita generaliter definiendmn 
 existimo, illiiis loci leges in restitidione faciendd aitendendas 
 esse, secundum cvjiis loci leges impleta siimmojiire fuit per 
 ahscntiam Usucapio vel Prccscripiio. Quid enim, olsccro, 
 aid justius end ccrpdus, quam id ex eorundcm legislcdorum 
 prcescriptio remedium adversus Icesionem indulgecdur, ex 
 quorum prcescnptio et siimmo Jure primitus Iccsio ncdafidt? 
 Quihus consequens est, id si immohilium rcrum Usucapio 
 impleta sit, scrventur in resiitulione faciendd jura regionis, 
 in qiid immoUles res sitce sunt : adeoque, id in amittendo, sic 
 et in recuperando dominio, regantur immolilia ex situs sid 
 lege, juxta vulgatam regulam in mcderid stcdutarid. Sin 
 moUlia usucapta fuerint, in resiitutione magis erit,ut serven- 
 tur leges domicilii ejus, qui per iisucapionem dominium ami- 
 serat ; id ita mohilia, quce censentur illic esse, uhi domicilium 
 fovet dominus, ex lege domicilii redeant, idi fnerant amissa. 
 jSed si actiones in personam temporis lapsu, per ahsentiam 
 contigente, extinctco sint ; proJ)cd)ilius fuerit, in illis restituen- 
 dis oh justam ahsentice causam spectandum esse jus loci, in 
 quo dehitor commoratur, contra quem restitutio petitur : cum 
 etiam ex istius loci lege Prcescriptio implenda fuerit} 
 
 1 J. Voet, ad Pand. Lib. 4, tit. 1, § 29, p. 241 ; Henry on Foreign 
 Law, p. 56, 59.
 
 976 CONFLICT OF LAWS. [CH. XV. 
 
 CHAPTER XV. 
 
 FOREIGN JUDGMENTS. 
 
 § 584. We come in the next place to the consider- 
 ation of foreign judgaients, or of the force and effect of 
 foreign sentences, Exceptio rei jiidicatce. As to the ef- 
 fect to be given to foreign judgments, there has been 
 much diversity of practice, as well as of opinion, among 
 jurists and nations. We do not speak here of cases, 
 where the point was, whether the court pronouncing the 
 judgment, had jurisdiction, or not; but, assuming the 
 jurisdiction to be unquestionable, what force and effect 
 ought to be given to such judgment. Ought it to be 
 held conclusive upon the parties ? Or ought it to be 
 open to impeachment by new evidence, or to be re- 
 examined upon the original merits ? The subject may 
 be considered in two general aspects ; first, in regard to 
 judgments in 7^em ; and secondly, in regard to judgments 
 i?t personam. 
 
 1 Burgundus divides judgments (sententiae) into three classes ; (1., in 
 rem; (2.) in personam; (3.) mixed in rem et in personam. "Omnium 
 condemnationum summa divisio, pariter in tria genera deducitur. Aut 
 enim in rem, aut in personam, aut in utramque concipiuntur. In rem, 
 quoties alicui res asseritur, hoc est ejus esse dicitur, vel jure creditoris, aut 
 alio modo possidenda datur. In personam, si condemnetur ad aliquid dan- 
 dum aut patiendum, faciendum aut non faciendum, vel si personje slatum 
 afficiat. In utramque, si et res et personae simul in condemnationem ve- 
 niant." Burgundus, Tract. 3, n. 1, 2, p. 84, 85 ; 1 Boullenois, Observ. 
 25, p. 602. See the learned opinion of Mr. Vice-Chancellor Bruce, in 
 Barrs v. Jackson, 1 Y. & Coll. 585, as to what domestic judgments are 
 conclusive or not.
 
 CH. XV.] FOREIGN JUDGMENTS. 
 
 977 
 
 heads ; first, where the judgment is set up by way of 
 defence to a suit in a foreign tribunal ; and, secondly, 
 where the judgment is sought to be enforced in a foreign 
 tribunal against the original defendant, or his property ; 
 and, thirdly, where the judgment is between subjects, or 
 between foreigners, or between foreigners and subjects. 
 These divisions will, in some degree, require a separate 
 examination.^ 
 
 § 585. Vattel has said with great force, that it is the 
 province of every sovereignty to administer justice in 
 all places within its own territory and under its own 
 jurisdiction, to take cognizance of crimes committed 
 there, and of the controversies, that arise within it. 
 Other nations ought to respect this right ; and, as the 
 administration of justice necessarily requires, that every 
 definitive sentence, regularly pronounced, be esteemed 
 just and executed as such ; when once a cause, in which 
 foreigners are interested, has been decided in form, the 
 sovereign of the defendants ought not to hear their 
 complaints. To undertake to examine the justice of 
 a definitive sentence is an attack upon the jurisdiction of 
 the sovereign, who has passed it.^ Hence Vattel de- 
 duces the general rule, that, in consequence of this right 
 of jurisdiction, the decision, made by the judge of the 
 place within the extent of his authority, ought to be 
 respected, and to take effect even in foreign countries.^ 
 § 586. Reasonable as this doctrine seems to be, it is 
 difficult to affirm, that it has obtained the general assent 
 of civilized nations in modern times in their intercourse 
 with each other. The support, which it has received 
 
 1 See on this subject, 3 Burge, Comm. on Col. and For. Law, Pt. 2, ch. 
 24, p. 1014 to p. 1080. See also 2 Smith, Lead. Cas. 436, note, 2d. 
 edit. 
 
 2 Vattel, B. 2, ch. 7, ^ 84. 3 Id. § 85. 
 
 82*
 
 978 CONFLICT OF LAWS. [CH. XV. 
 
 from the common law, is far more extensive and uni- 
 form, than it has received in the jurisprudence of conti- 
 nental Europe. In order, however, to found a proper 
 ground of recognition of any foreign judgment in ano- 
 ther country, it is indispensable to establish, that the 
 court pronouncing judgment should have a lawful juris- 
 diction over the cause, over the thing, and over the par- 
 ties.^ If the jurisdiction fails as to either, it is (as we 
 have already seen) treated as a mere nullity, having no 
 obligation, and entitled to no respect beyond the do- 
 mestic tribunals.^ And this is equally true, whether 
 the proceedings be in rem or in ijersonam, or in ?'em and 
 also in personam.^ 
 
 § 587. This subject was a good deal considered in a 
 celebrated case, (a proceeding in rem,) before the Su- 
 preme Court of the United States, where the principal 
 point was, whether there had been a change of the 
 ownership of the property by the sentence of a foreign 
 court in a suit there pending in rem. Upon that occa- 
 sion Mr. Chief Justice Marshall, in delivering the opi- 
 nion of the Court, used the following language. " The 
 power of the [foreign] court, then, is, of necessity, exa- 
 minable to a certain extent by that tribunal, which is 
 compelled to decide, whether its sentence has changed 
 
 1 See 1 BouUenois, Observ. 25, p. 618, 619, 620. See S. P. Ferguson 
 V. Mahon, 11 Adolph. & Ell. 179, 182, 183. 
 
 2 Ante, ^ 539, 546, 547 ; Buchanan v. Rucker, 9 East, R. 192 ; Bissell 
 V. Briggs, 5 Mass. R. 4G2; Shumway v. Stillman, 6 Wend. R. 447; Don 
 V. Lippmann, 5 Clark & Finnell. 1, 20, 21 ; 4 Cowen, R. 524, n. ; 1 Star- 
 kie on Evid. P. 2, ^ 68, p. 214 ; Henry on Foreign Law, 18, n ; Id. 23 ; 
 Id. 73 ; Cavan v. Stuart, 1 Stark. 525 ; Middlesex Bank v. Butman, 29 
 Maine, R. 19 ; Noyes v. Butler, 6 Barbour, 613 ; Hall v. Williams, 6 Pick 
 232; Wood V. Tremere, 6 Pick. R. 354; S. P. 11 Adolph. & Ellis, 179, 
 182, 183. 
 
 3 Ibid.
 
 CH. XV.] FOREIGN JUDGMENTS. 979 
 
 the right of propertj^ The power, under which it acts, 
 must be looked into ; and its authority to decide ques- 
 tions, which it professes to decide, must be considered. 
 
 § 588. " But although the general power, by which 
 a court takes jurisdiction of causes, must be inspected, 
 in order to determine, whether it may rightfully do, 
 what it professes to do, it is still a question of serious 
 difiiculty ; whether the situation of the particular thing 
 on which the sentence has passed, may be inquired 
 into for the purpose of deciding, whether that thing 
 was in a state, which subjected it to the jurisdiction of 
 the court, passing the sentence. For example ; in 
 every case of a foreign sentence condemning a vessel 
 as prize of war, the authority of the tribunal to act as 
 a prize court must be examinable. Is the question, 
 whether the vessel condemned was in a situation to 
 subject her to the jurisdiction of that court, also exami- 
 nable? This question, in the opinion of the Court, 
 must be answered in the affirmative. 
 
 § 589. "Upon principle, it would seem, that the 
 operation of every judgment must depend on the power 
 of the court to render that judgment ; or, in other 
 words, on its jurisdiction over the subject-matter which 
 it has determined. In some cases, that jurisdiction 
 unquestionably depends, as well on the state of the 
 thing, as on the constitution of the court. If by any 
 means whatever a prize court should be induced to con- 
 demn, as prize of war, a vessel, which was never cap- 
 tured, it could not be contended, that this condemnation 
 operated a change of property. Upon principle, then, 
 it would seem, that, to a certain extent, the capacity of 
 the court to act upon the thing condemned, arising 
 from its being within, or without their jurisdiction, as 
 well as the constitution of the court, may be considered
 
 980 CONFLICT OF LAWS. [CH. XV. 
 
 by that tribunal, which is to decide on the effect of the 
 sentence. 
 
 § 590. " Passing from principle to authority, we find, 
 that in the courts of England, whose decisions are par- 
 ticularly mentioned, because we are best acquainted 
 with them, and because, as is believed, they give to fo- 
 reign sentences as full effect as are given to them in any 
 part of the civilized world, the position, that the sen- 
 tence of a foreign court is conclusive with respect to 
 what it professes to decide, is uniformly qualified with 
 the limitation, that it has, in the given case, jurisdiction 
 of the subject-matter." ^ 
 
 § 591. Let us now consider the operation of judg- 
 ments in the different classes of cases which have been 
 already adverted to. And first, in relation to judgments 
 in rem. If the matter in controversy is land, or other 
 immovable property, the judgment pronounced in the 
 forum rei sitce is held to be of universal obligation, as to 
 all the matters of right and title, which it professes to 
 decide in relation thereto." This results from the very 
 nature of the case ; for no other court can have a compe- 
 tent jurisdiction to inquire into, or settle such right or 
 title. By the general consent of nations, therefore, in 
 cases of immovables, the judgment of i\iQ forum rei sitce 
 is held absolutely conclusive.^ ImmoUUa ejus jurisdic- 
 tionis esse repiitantiir, uhi sita sunt} On the other hand, a 
 judgment in any foreign country, touching such immo- 
 vables, will be held of no obligation. John Voet is ex- 
 
 1 Rose V. Himely, 4 Cranch, 269, 270. 
 
 2 Ante, § 532, 545, 551. 
 
 ^ 1 Boullenois, Observ. 25, p. G18, G19, 623. 
 
 4 Id. p. 619; 1 Hertii. Opera, De Collis, ^ 4, n. 73, p. 153, 154, edit. 
 1737 ; Id. p. 216, edit. 1716. See also J. Voet, ad Pand. Tom. 1, Lib. 
 1, tit. P% 2, n. 11, p. 44, and ante, ^ 362, note 3.
 
 CH. XV.] FOREIGN JUDGMENTS. 981 
 
 plicit on this point. " Licet aidem rcgulariter judex re- 
 qiiisitus non cognoscat dejustitidsententice per alterumjudi- 
 cem latw, nee cam ad examen penitius revocet, sed pro jiis- 
 iitid ejus ac ccquUate ^;rct'5!(?««/. Tamen si animadvertaty 
 earn directo contra sui territorii statida latam esse circa res 
 immohiles, in suo territorio sitas, eandem non exseqidtur ; idi 
 nee, si alias ahsqiie prolixd caiisce cognitione constet, senten- 
 tiam nidlam esse} 
 
 § 592. The same principle is applied to all other 
 cases of proceedings in rem, against movable property, 
 within the jurisdiction of the court pronouncing the 
 judgment.^ Whatever the court settles as to the right 
 or title, or whatever disposition it makes of the pro- 
 perty by sale, revendication, transfer, or other act, will 
 be held valid in every other country, where the same 
 question comes directly or indirectly in judgment before 
 any other foreign tribunal. This is very familiarly 
 known in the cases of proceedings in rem in foreign 
 courts of Admiralty, whether they are causes of prize, 
 or of bottomry, or of salvage, or of forfeiture, or of any, 
 the like nature, over which such courts have a rightful 
 jurisdiction, founded on the actual or constructive pos- 
 session of the subject-matter {Bes.y The same rule is 
 
 1 J. Voet, ad Pand. Tom. 2, Lib. 42, lit. 1, n, 41, p. 788. 
 
 2 See Karnes on Equity, B. 3, ch. 8, ^ 4 ; French v. Hall, 9 N. Hamp. 
 R. 137. 
 
 3 Croudson v. Leonard, 4 Cranch, 434; Whitney v. Walsh, 1 Cush. 
 29 ; The Mary Anne, Ware, R. 104 ; Barrow v. West, 23 Pick. 270 ; 
 Monroe v. Douglass, 4 Sandf. Ch. R. 179 ; Williams v. Armroyd, 7 
 Cranch, R. 423 ; Rose v. Himely, 4 Cranch, 241 ; Hudson r. Guesiier, 
 4 Cranch, 293; The Mary, 9 Cranch, 126, 142 to 146 ; 1 Starkie on Evi- 
 dence, Pi. 2, ^ 81, p. 238, &c. ; Marshall on Insur. B. 1, ch. 9, ^ 6, p. 
 412,435; Cases cited in 4 Cowen, R. 520, n. 3 ; Grant v. McLachlin, 
 4 Johns. R. 31 ; Peters v. The Warren Insur. Co. 3 Sumner, Rep. 389 ; 
 S. C. 1 Chand. Law Reporter, 222 ; Blad v. Bamfield, 3 Swanst. R.
 
 982 CONFLICT OF LAWS. [CH. XV. 
 
 applied to other courts proceeding in rem, such as to the 
 Court of Exchequer in England, and to other courts 
 exercising a like jurisdiction in rem upon seizures.^ 
 And in cases of this sort it is wholly immaterial whether 
 the judgment be of acquittal or of condemnation. In 
 both cases it is equally conclusive.^ But the doctrine, 
 however, is always to be understood with this limita- 
 tion, that the judgment has been obtained lonci fide and 
 without fraud \ for if fraud has intervened, it will doubt- 
 less avoid the force and validity of the sentence.^ So it 
 must appear that there have been regular proceedings 
 to found the judgment or decree ; and that the parties 
 in interest in rem have had notice, or an opportunity to 
 appear and defend their interests, either personally or 
 by their proper representatives, before it w^as pro- 
 nounced ; for the common justice of all nations requires 
 that no condemnation should be pronounced before the 
 party has an opportunity to be heard.^ 
 
 § 592 a. Proceedings also by creditors against the 
 personal property of their debtor in the hands of third 
 persons, or against debts due to him by such third per- 
 
 604, 605 ; Broadstreet v. Neptune Insur. Co. 2 Chand. Law Report. 262, 
 264, 265 ; S. C. 3 Sumner, Rep. 600; Magoun v. New England Ins. Co. 
 1 Story, R. 157 ; S. C. 3 Chand. Law Rep. 127, 130, 131. 
 
 1 Ibid. And Starkie on Evid. p. 2, <5» 67, 80, 81, p. 336 ; Gelston ?;.Hoyt, 
 3 Wheaton, R. 246 ; Williams v. Armroyd, 7 Crancli, 423. 
 
 2 Ibid. 
 
 3 See Post, § 597 ; Duchess of Kingston's Case, 11 State Trials, p. 
 
 261, 262 ; S. C. 20 Howell, State Trials, p. 355 ; Id. p. 538, the opinion 
 of the Judges ; Bradstreet v. The Neptune Insur. Co. 2 Chand. Law Rep. 
 
 262, 264, 265 ; S. C. 3 Sumner, R. 600 ; Magoun v. The N. England In- 
 sur. Co. 1 Story, R. 157; S. C. 3 Chand. Law Report. 127, 130, 131. 
 
 4 Sawyer v. Maine Fire and Mar. Ins. Co. 12 Mass. R. 291 ; Brad- 
 street V. The Neptune Insur. Co. 3 Sumner, 600 ; S. C. 2 Chand. Law 
 Reporter, 263 ; Magoun, v. N. England Insur. Co. 1 Story, R. 157 ; S. 
 C. 3 Chand. Law Reporter, 127, 130.
 
 CH. XV.] FOREIGN JUDGMENTS. 983 
 
 sons, (commonly called the process of foreign attach- 
 ment, or garnishment, or trustee process,) are also 
 treated as in some sense }>roceedings in rem, and are 
 deemed entitled to the same consideration.^ But in 
 this last class of cases we are especially to bear in mind, 
 that to make any judgment effectual the court must 
 possess and exercise a rightful jurisdiction over the Res, 
 and also over the person, at least so far as the Pies is 
 concerned ; otherwise it will be disregarded. And if 
 the jurisdiction over the lies be well founded, but not 
 over the person, except as to the Ties, the judgment will 
 not be either conclusive or binding upon the party in 
 'personam, although it may be in rem.~ 
 
 1 See cases cited, in 4 Cowen, R. 520, 521, n. ; Ante, ^549; Holmes i-. 
 Remsen, 20 Johns. R. 229 ; Hull v. Blalie, 13 Mass. R. 153 ; McDaniel 
 V. Hughes, 3 East, R. 366 ; Philips v. Hunter, 2 H. Black. 402, 410. 
 
 2 Ante, 549, and note ; Bissell v. Briggs, 9 Mass. R. 468. See Ocean 
 Ins. Co. V. Portsmouth Marine Railway Co. 3 Mete. 420 ; Danforlh v. 
 Penny, Id. 564. See also, 3 Burge, Comm. on Col. and For. Law, Pt. 2, 
 ch. 24, p. 1014 to 1019. — Some very important questions may arise in 
 cases of foreign attachment or garnishment. Suppose A., a creditor of B., 
 should bring a suit by foreign attachment or garnishment in a foreign 
 country against C. as garnishee of the property or credits of B., will a 
 judgment rendered in that suit conclude D., who claims the same property 
 or credit by a prior title, in another suit therefor in the same country, or 
 in another country ? Will it make any difference, that A., before obtain- 
 ing his judgment, had notice of D.'s claim and right? Will it make any 
 difference, that D. might by the lex fori have intervened in the first suit to 
 vindicate his title, and to support it, if he was not domiciled in the coun- 
 try at the time, although he had notice of the same suit ? Another case 
 may be put involving similar considerations. Suppose a suit is brought in 
 a foreign country by A. against B. to recover property there situate, to 
 which C, who is domiciled in a foreign country, also clainns title ; and by 
 the law of the country where the suit is brought, C. might intervene for 
 his title ; but he does not, although he has notice of the suit. If A. obtains 
 judgiT\ent in the suit for the property against B., will that judgment bind 
 C. in the courts of that country, in a subsequent suit brought there by C. 
 against A. for the same property ? If it will bind him there, will it bind
 
 984 CONFLICT OF LAWS. [CH. XV. 
 
 § 593. In all these cases the same principle prevails, 
 that the judgment acting in rem, shall be held conclu- 
 sive upon the title and transfer and disposition of the 
 property itself, in whatever place the same property 
 may afterwards be found, and by whomsoever the latter 
 may be questioned ; and whether it be directly or inci- 
 dentally brought in question. But it is not so universally 
 settled, that the judgment is conclusive of all the points, 
 which are incidentally disposed of by the judgment, or 
 of the facts or allegations, upon which it professes to be 
 founded. In this respect different rules are adopted by 
 different states, both in Europe and in America. In 
 England such judgments are held conclusive, not only 
 in rem, but also as to all the points and facts, which 
 they professedly or incidentally decide.^ In some of 
 the American States the same doctrine prevails. While 
 in other American States the judgments are held con- 
 clusive only in rem, and may be controverted as to all 
 the incidental grounds and fticts on which they profess 
 to be founded.^ 
 
 him in a suit brought in the country of his own domicil, or in another fo- 
 reign country 1 These questions are propounded for the consideration of 
 the learned reader, without any attempt to discuss or solve them. 
 
 1 In Blad v. Bamfield, decided by Lord Nottingham, and reported in 
 3 Swanst. R. 604, a perpetual injunction was awarded to restrain certain 
 suits of trespass and trover for seizing the goods of the defendant (Bam- 
 field) for trading in Ireland, contrary to certain privileges granted to the 
 plaintiff and others. The property was seized and condemned in the Da- 
 nish courts ; Lord Nottingham held the sentence conclusive against the 
 suits, and awarded the injunctions accordingly. 
 
 2 See 4 Cuwen, R. 52-3, n. and cases cited ; Vandenheuvel r. U. Insu- 
 rance Co. 2 Caines' Cases in Err. 217; 2 Johns. Cases, 451, Id. 481 ; Robin- 
 gon V. Jones, 8 Mass. R. 536 ; Maley v. Shattiick, 3 Cranch, 488 ; 2 Ivent, 
 Comm. Lect. 37, p. 120, 121, 3d edit, and cases there cited ; Tarleton v. 
 Tarlelon, 4 M. & Selvv. 20. See Peters v. Warren Insur. Co. 3 Sumner, 
 R. p. 3H9 ; S. C. I Chand. Law Reporter, 281 ; Gelston v. Hoyt, 3 
 Wlieat. R. 246.
 
 CH. XV.] FOREIGN JUDGMENTS. 985 
 
 § 594. A similar doctrine has been contended for, and 
 in many cases successfully, in Hivor of sentences of a 
 peculiar character ; such as those which touch the 
 general capacity of persons, and those which concern 
 marriage and divorce. Thus, foreign jurists strongly 
 contend, that the decree of a foreign court, declaring 
 the state (status) of a person, and placing him, as an 
 idiot, or minor, or prodigal, under guardianship, ought 
 to be deemed of univers.-il authority and obligation.' 
 And so it ought, and doubtless would be deeme in 
 regard to all acts done, and authority exercised, within 
 the jurisdiction of the sovereign, whose tribunals have 
 pronounced the sentence. But the necessity of giving 
 it universal effect, so as to make the guardianship ope- 
 rative and effectual in all other countries, in regard to 
 the person, and his property in those countries, is not 
 so obvious. But we have already had occasion to con- 
 sider this subject in another place.^ 
 
 § 595. As to sentences confirming marriages, or 
 granting divorces, they may well stand upon a distinct 
 ground. If they are pronounced by competent tri- 
 bunals in regard to persons within the jurisdiction, 
 there is great reason to say, that they ought to be 
 held of universal conclusiveness, force, and effect, in 
 all other countries. Lord Hardwicke is reported to 
 
 1 1 Boullenois, Observ. 25, p. 603, Burgiindus's opinion. — Indeed, 
 Bur^undus seems to have been of opinion, thai (he only judgments, which 
 ought to have any force or operation exira-territorially, are those, wliich 
 respect the state and condition of persons. Sed qiioniam omnis propositi 
 nostri summa eo speclat, ut scialur, ntnim snum sententia egrediatur ter- 
 ritorium, excutiamus iiaque naluram singularum. Nam mihi sola (says 
 he) ilia sententia, quae de statu personae feriur, explicare vires extra ter- 
 ritorii limites videtur. Burgundus, Tract. 3, n. II, 12, p. 90 ; 1 Boullenois, 
 Observ. 25,p. 003. 
 
 2 Ante, i 495 to 504. 
 
 CONFL. 83
 
 986 CONFLICT OF LAWS. [CH. XV. 
 
 have said in a case before him, in which the validity 
 of a marriage in France was asserted to have been 
 established by the sentence of a court in France, 
 having the proper jurisdiction thereof; "It is true, 
 that if so, it is conclusive, whether in a foreign court, 
 or not, from the law of nations in such cases ; other- 
 wise the rights of mankind would be very precarious." ^ 
 § 596. On the other hand Lord Stowell, in a case 
 before him, in which the validity of a foreign sentence 
 of divorce was set up, as a bar to proceedings in the 
 English Ecclesiastical Courts between the same parties, 
 said ; " Something has been said on the doctrine of law 
 regarding the respect due to foreign judgments ; and 
 undoubtedly a sentence of separation, in a proper court, 
 for adultery, would be entitled to credit and attention 
 in this court. But I think the conclusion is carried too 
 far, when it is said, that a sentence of nullity of mar- 
 riage is necessarily and universally binding on other 
 countries. Adultery and its proofs are nearly the same 
 in all countries. The validity of marriage, however, must 
 depend, in a great degree, on the local regulations of the 
 country where it is celebrated. A sentence of nullity of 
 marriage therefore, in the country where it was solemn- 
 ized, would carry with it great authority in this country. 
 But I am not prepared to say that a judgment of a third 
 country on the validity of a marriage, not within its ter- 
 ritories, nor had between subjects of that country, would 
 be universally binding. For instance, the marriage, alleg- 
 ed by the husband is a French marriage; a French judg- 
 ment on that marriage would have been of considerable 
 weight ; but it does not follow, that the judgment of a 
 
 1 Roach V. Garvan, 1 Ves. 157. See also a case in the time of Charles 
 2d, cited by Lord Hardwicke in Boucher v. Lawson, Cas. T. Hard. 89 ; 
 and also in Kennedy v. Earl of Cassilis, 2 Swanst. R. 326, note.
 
 CH. XV.'] FOREIGN JUDGMENTS. 987 
 
 court at Brussels, on a marriage in France, would have 
 the same authority, much less on a marriage celebrated 
 here in En "land. Had there been a sentence against 
 the wife for adultery in Brabant, it might have pre- 
 vented her from proceeding with any effect against her 
 husband here ; but no such sentence anywhere ap- 
 pears." ^ 
 
 § 597. This subject, however, has already been con- 
 sidered at large in the preceding discussions, relative 
 to divorces. The result of the doctrine therein stated 
 is, that the English courts seem not to be disposed to 
 admit, that any valid sentence of divorce can be pro- 
 nounced in any foreign country, which shall amount to 
 the dissolution of a marriage, celebrated in England be- 
 tween English subjects, at least so far as such a divorce 
 is to have any force or operation in England. At the 
 same time it may be remarked, that the doctrine, so ap- 
 parently held, has undergone very elaborate discussions 
 at a very recent period ; and the grounds, upon which 
 it rests, have been greatly shaken.^ But in Scotland, 
 and in America, a different doctrine is maintained ; and 
 it is firmly held, that a sentence of divorce, pronounced 
 between parties actually domiciled in the country, 
 whether natives or foreigners, by a competent tribunal, 
 having jurisdiction over the case, is valid, and ought to 
 be held everywhere a complete dissolution of the mar- 
 riage, in whatever country it may have been origi- 
 nally celebrated.'"^ Of course we are to understand, 
 that the sentence is obtained hond fide and without 
 
 1 Sinclair v. Sinclair, 1 Hagg. Consist. Rep. 297. See also Scrim- 
 shire V. Scrinnshire, 2 Hagg. Consist. Rep. 397, 410. 
 
 2 Ante, ^ 215, 225 to 228. 
 
 3 See ante, ^212, 215 to 230.
 
 988 CONFLICT OF LAWS. [CH. XV. 
 
 fraud ; for fraud in this case, as in other cases, will 
 vitiate any judgment, however well founded in point of 
 jurisdiction, i 
 
 § 598. In the next place, as to judgments in personam. 
 And here a distinction is commonly taken between suits 
 brought by a party to enforce a foreign judgment, and 
 suits brought against a party who sets up a foreign 
 judgment in bar of the suit by way of defence. In the 
 former case it is often urged, that no sovereign is bound 
 jure gentium to execute any foreign judgment within his 
 dominions; and therefore, if execution of it is sought in 
 his dominions, he is at liberty to examine into the 
 merits of the judgment, and to refuse to give effect to 
 it, if, upon such examination, it should appear unjust 
 and unfounded. He acts in executing it upon the prin- 
 ciples of comity; and has, therefore, aright to prescribe 
 the terms and limits of that comity.^ But it is other- 
 wise, (it is said,) where the defendant sets up a foreign 
 judgment, as a bar to proceedings ; for if it has been 
 pronounced by a competent tribunal, and carried into 
 effect, the losing party has no right to institute a new 
 suit elsewhere, and thus to bring the matter again into 
 controversy; and the other party is not to lose the pro- 
 tection which the foreign judgment gave him. It is 
 then Res judicata, which ought to be received, as con- 
 
 1 See Starkie on Evid. Pt. 2,^77, 79, 83; Duchess of Kingston's 
 case, 11 Slate Trials, 261, 262; S. C. 20 Howell, Slate Trials, 355, and 
 the opinion of the Judges ; Id. p. 538, note. See also Mr. Hargrave's 
 learned argument in this case, as to the conclusiveness of res adjudicata, 
 especially in cases of jacilalion of marriage and divorce, and of the effect 
 of fraud in procuring such sentences. Harg. Law Tracts, 449, 479, 483. 
 See also Bowles v. Orr, 1 Younge & Coll. 464. 
 
 2 2 Kent, Comm. Lect. 37, p. 119, 120, 3d edit.; and the cases there 
 cited. See also 1 Boullenois, Observ. 25, p. 601 ; post, i^) 611 to 618.
 
 CH. XV.] FOREIGN JUDGMENTS. 989 
 
 elusive evidence of right ; and the Exceptio rei jiidicatce 
 under such circumstances is entitled to universal con- 
 clusiveness and respect.^ This distinction has been 
 very frequently recognized as having a just foundation 
 in international justice.^ 
 
 § 599. Lord Chief Justice Eyre has stated it with 
 his usual force in an elaborate judgment. " If we had 
 the means, (said he,) we could not examine a judgment 
 of a court in a foreio-n state brou^'ht before us in this 
 manner, (that is, by the defendant, as a bar.) It is in 
 one way only, that the sentence or judgment of the 
 court of a foreign state is examinable in our courts ; 
 and that is, when the party, who claims the benefit of 
 it, applies to our courts to enforce it. When it is thus 
 voluntarily submitted to our jurisdiction, we treat it, 
 not as obligatory perhaps in the country in which it 
 was pronounced, nor as obligatory to the extent to 
 which by our law sentences and judgments are obli- 
 gatory ; not as conclusive, but as matter in pais ; as a 
 consideration primci facie sufficient to raise a promise. 
 We examine it, as we do all other considerations or 
 promises ; and for that purpose we receive evidence of 
 what the law of the foreign state is, and whether the 
 judgment is warranted by that law. In all other cases, 
 we give entire faith and credit to the sentences of fo- 
 
 1 2 Kent, Comra. Lect. 37, p. 119, 120, 3d edit.; and cases there 
 cited. 
 
 2 Id. and cases there cited; Burrows v. Jeniino, 2 Str. R. 733 ; S. C. 
 cited Cas. T. Hard, 87; Boucher v. Lawson, Cas. T. Hard. 89; 2 
 Swanst. R. 326, note ; Tarleton v. Tarleton, 4 M. & Selw. 20 ; Taylor r. 
 Phelps, 1 Gill & Johns. R. 492; Griswold v. Pitcairn, 4 Connect. R. 85. 
 See Burnham v. Webster, 1 Wood. & Minot, R. 174; Rangely v. Web- 
 ster, 11 New Ilamp. R. 299. 
 
 83*
 
 990 CONFLICT OF LAWS. [CH. XV. 
 
 reign courts, and consider them as conclusive upon us." ^ 
 The same distinction is found applied in the same man- 
 ner in the jurisprudence of Scotland.^ 
 
 § 599 a. The view which was thus taken by Lord 
 Chief Justice Eyre, does not appear to have been acted 
 upon to its full extent in subsequent times. It would 
 seem a natural result from that view, that if a suit was 
 brought for the same cause of action, in an English 
 Court, which had already been decided in favor of either 
 party in a foreign court of competent jurisdiction, and 
 was final and conclusive there, that judgment might be 
 well pleaded in bar of the new suit upon the original 
 cause of action, and would, if hond fide, be conclusive. 
 It may be doubted, however, whether the same doctrine 
 is at present entertained in England. In a recent case, 
 the Court seem to have thought, that if a plaintiff has 
 recovered judgment in a foreign country upon any ori- 
 ginal cause of action, he may, notwithstanding, sue in 
 England upon that original cause of action, or may sue 
 upon the judgment there obtained, at his option ; be- 
 cause the original cause of action is not merged in such 
 a judgment.^ [And the same view has recently been 
 adopted in America, where it was also determined that 
 an action could not be sustained in the State of Maine, 
 upon a judgment recovered in the State of Illinois, but 
 that a suit for the original cause of action was still open 
 
 1 Phillips V. Hunter, 2 H. Black. R. 410. 
 
 2 Erskine, Inst. U. 4, tit. 3, §i 4. 
 
 3 Smith V. Nichols, 5 Bing. N. Cas. 208, 221 to 224. There were 
 peculiar circumstances in the case, and therefore the point was not posi- 
 tively decided. The same doctrine seems to have been asserted in Hall 
 V. Odber, II East, R. 118 ; but there also it was not directly decided. 
 But see Pluntimer v. Woodhouse, 4 Barn & Cresw. R, 625 : ante § 547, 
 note ; Becquet v. McCarthy, 2 Barn. & Adolp. 961 ; ante, ^ 548 a.
 
 CH. XV.] FOREIGN JUDGMENTS. 991 
 
 to the plaintiff.]' Now, if the original cause of action 
 is not merged in a case where the judgment is in favor 
 of the plaintiff, it seems difficult to assert, that it is 
 merged by a judgment in the foreign court in favor of 
 the defendant." 
 
 [599 h. The effect of a foreign judgment in flivor of 
 the same plaintiff, when relied upon as a bar, by way 
 of merger, in a suit upon the same cause of action, in 
 another State, has been much discussed of late ; and the 
 prevailing opinion seems to be, that if the foreign Court 
 had no jurisdiction of the person of the defendant, a 
 judgment there in favor of the plaintiff, would not merge 
 the original cause of action, so as to defeat an action in 
 another State upon the same cause.^ So, the foreign 
 judgment is open to examination, to show that a por- 
 tion of the claims originally sued upon in the foreign 
 Court, were afterwards withdrawn, and were not passed 
 upon by the jury, and therefore were not included in 
 the foreign judgment] 
 
 § 600. Lord Kames has marked out and supported 
 another distinction, between suits sustaining, and suits 
 dismissing a claim. " In the last place (says he) come 
 foreign decrees ; which are of two kinds, one sustaining 
 the claim, and one dismissing it. A foreign decree, sus- 
 taining the claim, is not one of those universal titles, 
 which ought to be made effectual everywhere. It is a 
 
 1 McVicker v. Beedy, 31 Maine, R. 314. In this case the defendant's 
 property was attached in Illinois, on the original suit, but the defendant 
 himself was never served with process, and never appeared to the action. 
 See also Middlesex Bank v. Butman, 21) INIaine, R. 19. 
 
 2 A foreign judgment for costs may be enforced in England. Russell 
 V. Smyth, 9 Mees. & Wels, 810. 
 
 3 Middlesex Bank v. Butman, 29 Maine, R. 19. 
 
 4 Burnham u. Webster, 1 Woodbuiy & Minot, R. 172.
 
 992 CONFLICT OF LAWS. [cH. XV. 
 
 title that depends on the authority of the court whence 
 it issued, and therefore has no coercive authority extra 
 territorium. And yet, as it would be hard to oblige the 
 person, who claims on a decree, to bring a new action 
 against his party in every country to which he may re- 
 tire ; therefore, common utility, as well as regard to a 
 sister court, have established a rule among all civilized 
 nations, that a foreign decree shall be put in execution, 
 unless some good exception be opposed to it in law or 
 equity ; which is making no wider step in favor of the 
 decree, than to presume it just, till the contrary be 
 proved. But this includes not a decree, decerning for 
 a penalty ; because no court reckons itself bound to 
 punish, or to concur in punishing, any delict committed 
 extra territorium!^ 
 
 § 601. " A foreign decree, which, by dismissing the 
 claim, affords an Exceptio rei jiidicatce against it, enjoys 
 a more extensive privilege. We not only presume it 
 to be just, but will not admit any evidence of its being 
 unjust. The reasons follow. A decreet-arbitral is final 
 by mutual consent. A judgment-condemnator ought 
 not to be final against the defendant, because he gave 
 no consent. But a decreet-absolvitor ought to be final 
 against the plaintiff, because the judge was chosen by 
 himself; with respect to him, at least, it is equivalent 
 to a decreet-arbitral. Public utility affords another ar- 
 gument extremely cogent. There is nothing more 
 hurtful to society, than that lawsuits be perpetual. In 
 every lawsuit there ought to be a ne plus ultra ; some 
 step ought to be ultimate -, and a decree dismissing a 
 claim is in its nature ultimate. Add a consideration, 
 that regards the nature and constitution of a court of 
 justice. A decree dismissing a claim, may, it is true, 
 be unjust, as well as a decree sustaining it. But they
 
 CH. XV.] FOREIGN JUDGMENTS. 993 
 
 differ widely in one capital point ; in declining to give 
 redress against a decree dismissing a claim, the court is 
 not guilt}^ of authorizing injustice, even supposing the 
 decree to be unjust ; the utmost that can be said, is, 
 that the court forbears to interpose in behalf of justice. 
 But such forbearance, instead of being fiiulty, is highly 
 meritorious in every case, where private justice clashes 
 with public utility. The case is very different with re- 
 spect to a decree of the other kind ; for to award exe- 
 cution upon a foreign decree, without admitting any 
 objection against it, would be, for aught the court can 
 know, to support and promote injustice. A court, as 
 well as an individual, may in certain circumstances have 
 reason to forbear acting, or executing their oflice ; but 
 the doing injustice, or the supporting it, cannot be justi- 
 fied in any circumstances." ^ 
 
 § 602. It does not appear, that this distinction of 
 Lord Karnes, between judgments sustaining suits, and 
 judgments dismissing them, has been recognized in the 
 common law.^ And there seems quite as much reason, 
 that a defendant should be protected against a new liti- 
 gation, after there has been a final sentence in his fiivor, 
 as there is, that a plaintiff should be protected in the 
 enjoyment of any right which is established by a sen- 
 tence in his favor. The sentence for the defendant 
 may, in its legal operation, as completely establish a 
 right in him, or as completely establish the non-exist- 
 ence of any right in the plaintiff, as the contrary sen- 
 tence would establish an adverse right in the plaintiff, 
 
 1 2 Kames on Equity, p. 365, 3d edit. 1778. 
 
 2 See the cases cited in Starkie on Evid. Pt. 2, ^ 80 ; Iloyt v. Gelston, 
 13 Johns-. R. 561 ; S. C. 3 Wheat. R. 246 ; The Bennett, 1 Dodson, R. 
 175, 180.
 
 994 CONFLICT OF LAWS. [CH. XV. 
 
 and the non-existence of any repugnant right in the 
 defendant. 
 
 § 603. In the next place, as to judgments in personam, 
 which are sought to be enforced by a suit in a foreign 
 tribunal. There has certainly been no inconsiderable 
 fluctuation of opinion in the English courts upon this 
 subject. It is admitted on all sides, that in such cases, 
 the foreign judgments are ]mmd facie evidence to sus- 
 tain the action, and are to be deemed right until the 
 contrary is established ; ' and of course they may be 
 avoided, if they are founded in fraud, or are pronounced 
 lay a court not having any competent jurisdiction over 
 the cause.^ But the question is, whether they are to 
 be deemed conclusive ; or whether the defendant is at 
 liberty to go at large into the original merits, to show, 
 that the judgment ought to have been different upon the 
 merits, although obtained honafide. If the latter course 
 be the correct one, then a still more embarrassing con- 
 sideration is, to what extent, and in what manner, the 
 original merits can be properly inquired into. 
 
 § i;04. Lord Nottingham, in a case, where an attempt 
 was made to examine a foreign sentence of divorce in 
 Savoy, in the reign of Charles the Second, held, that it 
 was conclusive, and its merits not examinable. " We 
 
 1 See Monroe u. Douglas, 4 Sandf. Ch. R. 126 — a very elaborate case 
 on this subject; Walker v. Witter, Doug. R. 1, and cases there cited ; 
 Arnold v. Redfern, 3 Bing. R. 353 ; Sinclair v. Fraser, cited Doug. R. 4, 
 5, note ; Houlditch v. Donegal, 2 Clark & Finnell, R. 470 ; S. C. 8 Bligh, 
 R. 301 ; Don v. Lippmann, 5 Clark & Finn. 1, 19, 20; Price v. Dew- 
 hurst, 8 Sim. R. 279 ; Alivon v. Furnival, 1 Cromp. Mees. & Rose. 277 ; 
 Hall V. Odber, 11 East, R. 118; Ripple v. Ripple, 1 Rawle, R. 386. 
 
 2 See Bowles v. Orr, 1 Younge & Coll. 464 ; ante, \ 544, 545 to 550 ; 
 Ferguson v. Mahon, 3 Perry & Dav. 143 ; Price v. Dewhurst, 8 Simons, 
 R. 279, 302; Don v. Lippmann, 5 Clark & Finnell, R. 1, 19, 20, 21 ; S. 
 P. Ferguson u. Mahon, 11 Adolp. & Ellis, 179, 182.
 
 CH. XV.] FOREIGN JUDGMENTS. 995 
 
 know not (said he) the laws of Savoy. So, if w^e did, 
 we have no power to judge by them. And, therefore, 
 it is against the law of nations not to give credit to the 
 sentences of foreign countries, till they are reversed by 
 the law, and, according to the form, of those countries, 
 wherein they were given. For what right hath one 
 kingdom to reverse the judgment of another ? And 
 how can we refuse to let a sentence take place, until it 
 be reversed? And what confusion would follow in 
 Christendom, if they should serve us so abroad, and 
 give no credit to our sentences." ^ Lord Ilardwicke 
 manifestly held the same opinion, saying ; " That where 
 any court, foreign or domestic, that has the proper juris- 
 diction of the cases, makes the determination, it is con- 
 clusive to all other courts." ^ 
 
 § 605. On the other hand. Lord Mansfied thought 
 that foreign judgments gave a ground of action, but 
 that they were examinable.^ The same doctrine was 
 held by Lord Chief Baron E3're,'' and Mr. Justice Cul- 
 ler,^ the latter relying upon a decision of the House of 
 Lords, as giving the true line of distinction between fo- 
 reign and domestic judgments. Li that case the House 
 of Lords reversed a decision of the Court of Session of 
 Scotland, in which the latter Court held the plaintiff 
 bound in a suit upon a foreign judgment to prove be- 
 fore the Court the general nature and extent of the de- 
 
 1 Kennedy v. Earl of Cassilis, 2 Svvanslon, R. note, 326, 327. 
 
 2 Bouclier i>. Lawson, Cas. T. Hard. 89. See also Roach v. Garvan, 
 1 Yes. 157. 
 
 3 Walker v. Witter, Doug. 1 ; Id. 6, note 3 ; Herbert v. Cooke, Willes, 
 R. 36, note; S. P., Hall v. Odber, 11 East, R. 118; S. P., Bayley v. Ed- 
 wards, 3 !Swanst. R. 703, 711, 712. 
 
 4 Phillips V. Hunter, 2 H. Black. 410; ante, § 2. 
 
 5 Galbraith v. Neville, cited Doug. R. 6, note 3.
 
 996 CONFLICT OF LAWS. [CH. XV. 
 
 mand, on -which the judgment had been obtained. The 
 reversal expressly declared, that the judgment ought to 
 be received as evidence prima facie, of the debt ; and 
 that it lav upon the defendant to impeach the justice 
 thereof, or to show the same to have been irregularly, 
 or wrongfully obtained.^ But it may be remarked of 
 this last decision, that it does not go to the extent of 
 establishing the doctrine, that the merits of the judg- 
 ments ab origine are reexaminable de novo ; but only 
 that its justice may be impeached, or its irregularity or 
 fraud shown.^ 
 
 § 606. Lord Kenyon seems clearly to have been of a 
 different opinion, and expressed serious doubts, whether 
 foreign judgments were not binding upon the parties 
 here.^ And Lord Ellenborough, upon an occasion in 
 which the argument was pressed before him, that a fo- 
 reign judgment was reexaminable, and that the de- 
 fendant might impeach the justice of it, pithily re- 
 marked, that he thought he did not sit at Nisi Priiis to 
 try a writ of error, upon the proceedings of the court 
 abroad.'* In a more recent case Sir L. Shadwell, (the 
 
 1 Sinclair v. Fraser, Doug. R. 4, 5, note 1. 
 
 2 Ante, ^ 544 to 550, 603. — In Alivon v. Furnival, 1 Cromp. Mees. «St 
 Rose. 277, it seems to have been held, although not expressly so laid 
 down by the Court, that the proceedings of foreign courts must be pre- 
 sumed to be consistent with the foreign law, until the contrary is distinctly 
 shown ; and that, therefore, the principle adopted by a foreign court in 
 assessing damages cannot be impugned, unless contrary to natural justice, 
 or proved not to be conformable to the foreign law. The same point was 
 adjudged in Martin v. Nicolls, 3 Sim. R. 458, and Becquet v. McCarthy, 2 
 Barn. & Adolp. 951 ; S. F. Ferguson v. Mahon, 11 Adolp. & Ellis, 179, 
 182. 
 
 3 Galbraith v. Neville, Doug. R. 5, note 3. See also Guinness v. 
 Carwell, 1 Barn. & Adolph. 459. 
 
 4 Tarleion v. Tarleton, 4 Maule & Selw. 21. But see Hall v. Odber, 
 11 East, R. 118.
 
 CH. XV.] FOREIGN JUDGMENTS. ' 997 
 
 Vice-Chancellor,) upon a full examination of the au- 
 thorities, held the opinion, that the true doctrine was, 
 that foreign judgments were conclusive evidence, and 
 not re -examinable ; that this was the true result of the 
 old authorities ; and therefore in a suit hrouirht in En or- 
 land to enforce a foreign judgment, he held the judg- 
 ment to be conclusive.^ The present inclination of the 
 English Courts seems to be to sustain the conclusiveness 
 of foreign judgments;^ although certainly there yet 
 remains no inconsiderable diversity of opinion among 
 the learned judges of the different tribunals.'^ [This 
 question was much discussed in a recent English 
 case,^ in the Queen's Bench, where all the authorities 
 were examined, and it was determined that a foreign 
 judgment was only 'prima facie evidence for the courts 
 of England, and so far examinable as to show that the 
 foreign Court had no jurisdiction of the sub 
 or of the person of the defendant, or that the judgment 
 
 ' Martin u. Nicolls, 3 Simons, R. 458. But see Bank of Australasia 
 V. Harding, 19 Law Journ. C. P. 345. 
 
 2 See Guinness v. Carroll, 1 Barn. & Adolp. 459; Becquet u. ]McCar- 
 thy, 2 Barn. & Adolph. R. 951. 
 
 3 In Houlditch v. Donegal, 8 Bligh, R. 301, 337 to 310, Lord Brougham 
 held a foreign judgment to be only prima facie evidence, and gave his rea- 
 sons at large for that opinion. [And the same was held in the late case 
 of Bank of Australasia v. Harding, 19 Law Journ. C. P. 345.] On the 
 other hand, Sir L. Shadwell, in Martin v. Nicolls, held the contrary opi- 
 nion, that it was conclusive ; and also gave a very elaborate judgment on 
 the point, in which he reviewed the principal authorities. Of course, the 
 learned Judge meant to except, and did except, in a later case. Price v. 
 Dewhurst, 8 Sim. R. 279, 302, judgments which were produced by fraud. 
 See also Don v. Lippmann, 5 Clark & Finnell. 1, 20, 21 ; ante, ^ 545 to 
 § 550, to ^ 605; Alivon v. Furnival, 1 Cromp. Mees. & Rose. 277, 284. 
 See also Ferguson v. Mahon, 11 Adolp. & Ellis, 179, 182 ; Henderson t-. 
 Henderson, 3 Hare, R. 100, 113, 114, 115. 
 
 4 Bank of Australasia v. Nias, 20 Law Journ. 284 ; S. C. 4 Eng. Rep. 
 252. See also Lewis r. Wilder, 4 Louis. Ann. R. 574. 
 
 CONFL. 84
 
 998 CONFLICT OF LAWS. [CH. XV. 
 
 was fraudulently obtained -, but that it was conclusive 
 upon the defendant so far as to prevent him from alleg- 
 ing that the promises upon which it was founded were 
 never made, or were obtained by fraud of the plaintiff; 
 and that any pleas which might have been pleaded to 
 the original action, could not be pleaded to the action 
 upon the judgment.] 
 
 § 607. It is indeed very difficult to perceive, what 
 could be done, if a different doctrine were maintainable 
 to the full extent of opening all the evidence and merits 
 of the cause anew, on a suit upon the foreign judgment. 
 Some of the witnesses may be since dead ; some of the 
 vouchers may be lost, or destroyed. The merits of the 
 case, as formerly before the court upon the whole evi- 
 dence, may have been decidedly in favor of the judg- 
 ment; upon a partial possession of the original evidence 
 they may now appear otherwise. Suppose a case 
 purely sounding in damages, such as an action for an 
 assault, for slander, for conversion of property, for a 
 malicious prosecution, or for a criminal conversation ; is 
 the defendant to be at liberty to re-try the whole merits, 
 and to make out, if he can, a new case upon new evi- 
 dence ? ^ Or is the court to review the former decision, 
 like a court of appeal, upon the old evidence ? In a case 
 of covenant, or of debt, or of a breach of contract, are all 
 the circumstances to be re-examined anew ? If they 
 are, by what laws and rules of evidence and principles 
 of justice is the validity of the original judgment to be 
 tried ? Is the court to open the judgment, and to pro- 
 ceed ex ceqiio et hono ? Or is it to administer strict law, 
 and stand to the doctrines of the local administration of 
 
 1 See Alivonu. Furnival, 1 Cromp. Mees. & Rose. 277.
 
 CH. XV.] FOREIGN JUDGMENTS. 999 
 
 justice ? Is it to act upon the rules of evidence ac- 
 knowledged in its own jurisprudence, or upon those of 
 the foreign jurisprudence? These and many more 
 questions might be put to show the intrinsic difliculties 
 of the subject. Indeed, the rule, that the judgment is 
 to be prima facie evidence for the plaintiff, would be a 
 mere delusion, if the defendant might still question it 
 by opening all or any of the original merits on his side ; 
 for under such circumstances it would be equivalent to 
 granting a new trial. It is easy to understand, that the 
 defendant may be at liberty to impeach the original 
 justice of the judgment, by showing, that the court had 
 no jurisdiction; or that he never had any notice of the 
 suit ; ^ or that it was procured by fraud ; or that upon 
 its face it is founded in mistake ; or that it is irregular, 
 and bad by the local law. Fori rci judicatce. To such 
 an extent the doctrine is intelligible and practicable. 
 Beyond this, the right to impugn the judgment is in 
 legal effect the right to re-try the merits of the original 
 cause at large, and to put the defendant upon proving 
 those merits.^ 
 
 § 608. The general doctrine maintained in the Ame- 
 rican courts in relation to foreign judgments certainly 
 is, that they are ^7r«;za facie evidence ; but that they 
 are impeachable.^ But how far, and to what extent. 
 
 1 S. P. Ferguson v. Mahon, 11 Adolp. & Ellis, 179, 182. 
 
 2 See Arnot r, Redfern, 2 Carr. & Payne, 88 ; S. C. 3 Bing. R. 353 ; 
 Novelli V. Rossi, 2 Barn. & Adolph. 757 ; Douglas v. Forrest, 4 Bing. R. 
 686 ; Obicini v. Bligh, 8 Bing. R. 335 ; INIarlina v. Nicolls,3 Sim. R. 458 ; 
 Alivan v. Furnival, 1 Cromp. Mees. & Rose. 277. See also Starkie on 
 Evidence, Pt, 2, ^ 67 ; Phillips & Amos on Evidence, (8th edit.) p. 537, 
 538, (1838) ; Buttrick v. Allen, 8 Mass. R. 273 ; Huberus, Tom. 2, Lib. 
 1, tit. 3, De Conflictu, ^ 6. 
 
 3 Many of the cases are collected ; 2 Kent, Coram. Lect. 27, p. 1 18, &c.
 
 1000 CONFLICT OF LAWS. [CH. XV. 
 
 this doctrine is to be carried, does not seem to be defi- 
 nitely settled. It has been declared, that the jurisdic- 
 tion of the court/ and its power ovpr the parties and 
 the things in controversy, may be inquired into ; and 
 that the judgment may be impeached for fraud. ^ Be- 
 yond this no definite lines have as yet been drawn. 
 
 § 609. By the Constitution of the United States it is 
 declared, that full faith and credit shall be given in each 
 State to the public acts, records, and judicial proceed- 
 ings of every other State. And Congress, in pursuance 
 of the power given them by the Constitution in a suc- 
 ceeding clause, have declared, that the judgments of 
 State Courts shall have the same faith and credit in 
 other States, as they have in the State where they are 
 rendered.^ [And the same rule applies to judgments 
 of the Circuit Courts of the United States, when relied 
 upon in a State Court.^] They are, therefore, put upon 
 
 3d edit. ; in 4 Cowen, R. 520, note 3 ; and in Mr. Metcalf's notes to his 
 valuable edition of Starkie on Evidence, Pt. 2, i^^GT, 68, edit. 1830, p. 214 
 to 216. See also Bissell v. Briggs, 9 Mass, R.462 ; Borden v. Fitch, 15 
 Johns. R. 121; Green v. Sarmiento, 1 Peters, Circt. R. 74; Field v. 
 Gibbs, 1 Peters, Circ. R. 155 ; Aldrich v. Kinney, 4 Connect. R. 380 ; 
 Shumway v. Stillman, 6 Wend. R. 447 ; Hall v. Williams, 6 Pick. 247 ; 
 Starbuck v. Murray, 5 Wend. R. 148 ; Davis v. Peckars, 6 Wend. R. 
 327 ; Bultrick v. Allen, 8 Mass. R. 273 ; Pawling v. Bird's Ex'rs, 13 
 Johns. R. 192 ; Rathbone v. Terry, 1 Rhode Island, R. 73 ; Hitchcock v. 
 Aicken, 1 Cain. R. 460; Warton's Dig. Judgment, I.; Bigelow's Dig. 
 Judgment, H. ; Johnson's Digest, Debt, H. ; Coxe's Digest, Judgment ; 
 Hoxie V. Wright, 2 Vermont, Rep. 263 ; Bellows v. Ingraham, 2 Ver- 
 mont, R. 575 ; Barney V. Patterson, 6 Harris & Johns. 182. 
 
 1 See Noyes v. Butler, 6 Barb. S. C. R. 613. 
 
 2 Wood V. Watkinson, 17 Conn. 500 ; Welch v. Sykes, 3 Gilman, 
 197. 
 
 3 Constitution, Art. 3, ^ 4 ; Act of Congress of 26th May, 1790, ch. 1 1 ; 
 3 Story's Comm. on Constit. ch. 29, ^ 1297 to 1307. 
 
 "* Niblett V. Scott, 4 Louis. Ann. R. 246 ; Barney v. Patterson, 6 H. & 
 J. 182.
 
 CH. XV.] FOREIGN JUDGMENTS. 1001 
 
 the same footing as domestic judgments.^ But this 
 does not prevent an inquiry into the jurisdiction of the 
 Court in which the original judgment was rendered, to 
 pronounce the judgment, nor an inquiry into the right 
 of the State to exercise authority over the parties, or 
 the subject-matter, nor an inquiry, whether the judg- 
 ment is founded in, and impeachable for a manifest 
 fraud.^ The Constitution did not mean to confer any 
 new power upon the States ; but simply to regulate the 
 effect of their acknowledged jurisdiction over persons 
 and things within their territory.^ It did not make the 
 judgments of other States domestic judgments to all in- 
 tents and purposes ; ^ but only gave a general validity, 
 faith, and credit to them, as evidence. No execution 
 can issue upon such judgments without a new suit in 
 the tribunals of other States.^ And they enjoy not the 
 right of priority, or privilege, or lien, which they have 
 in the State where they are pronounced, but that only 
 which the Lex fori gives to them by its own laws in 
 their character of foreign judgments.*^ 
 
 ^ [Without this act judgments of each State would be regarded as fo- 
 reign judgments in the Courts of every other State. Dorsey v. Maury, 10 
 Smedes & Marshall, 298.] 
 
 2 Taylor v. Bryden, 8 Johns. R. 173. See Cummings v. Banks, 2 Bar- 
 bour, 602 ; Davis v. Smith, 5 Georgia, R. 274 ; Gleason v. Dodd, 4 Mete. 
 333. 
 
 3 See Story's Comment, on the Constit. ch. 29, ^ 1297 to 1307, and 
 cases there cited ; Hall v. Williams, 6 Pick. R. 237 ; Bissell v. Briggs, 
 9 Mass. R. 462 ; Shumway v. Stillman, 6 Wend. R. 447 ; Evans v. Tarl- 
 ton, 9 Sergt. & R. 260; Benton v. Burgot, 10 Sergt. & R. 240; Han- 
 cock V. Barrett, 1 Hall. Sup. Ct. R. 155 ; S. C. 3 Hall, Sup. Ct. R. 302 ; 
 Wilson V. Niles, 2 Hall, Sup. Ct. R. 358; Hoxie v. Wright, 2 Vermont, 
 R.'263 ; Bellows v. Ingraham, 2 Verm. R. 573 ; Aldrich v. Kinney, 4 
 Connect. R. 380. 
 
 4 See D'Arcy r. Ketchum, 11 How. U. S. R. 165. 
 
 5 [See the sound remarks of Mr. Justice Redfield, in the late case of 
 Diraick v. Brooks, 21 Vermont, R. 569, where this subject is ably exa- 
 mined.] 
 
 6 [McElraoyle v. Cohen, 13 Peters, R. 312, 328, 329 ; ante, ^ 582 a, 
 
 84*
 
 1002 CONFLICT OF LAWS. [CH. XV. 
 
 [§ 600 a. In the sister States of America, the effect of 
 a judgment in one State, when relied upon as a cause 
 of action in another, has been frequently discussed of 
 late, and the tendency of modern decisions is to restrict 
 the force of such judgments in the Courts of another 
 State. Thus, in a late case in Ohio, an action was 
 brought on a judgment rendered in Pennsylvania. The 
 only service in the original suit was by an attachment 
 of the defendant's real estate situated in the latter State. 
 The defendant himself had no personal notice of the 
 suit and never appeared to the action, either by him- 
 self, or by attorney, neither had he ever been within 
 the State of Pennsylvania.^ It was determined that 
 such a judgment was not even prima facie evidence of 
 debt in Ohio. The same doctrine was affirmed in a 
 still later case,^ in the State of Maine, where it was 
 also determined that no action could be maintained in 
 that State, upon a judgment recovered in Illinois, unless 
 the Court rendering the judgment had jurisdiction of 
 the defendant's p<?r<5W2, and that an attachment of the 
 defendant's property in Illinois, would not, of itself, give 
 the Courts of that State jurisdiction of the owner's per- 
 son.] 
 
 note ; Wood v. Watkinson, 17 Conn. R. 500, an elaborate case upon this 
 subject. 
 
 1 Arndt v. Arndt, 15 Ohio, R. 33. 
 
 2 McVicker v. Beedy, 31 Maine, R. 310. In this case, the original suit 
 was in the Supreme Court of Illinois, upon a contract made in that State, 
 and the defendant at that time residing there. Previous to the commence- 
 ment of the suit he removed to Maine, leaving property in the hands of a 
 resident of Illinois, which was attached by the trustee process, and notice 
 of the suit was published in the newspapers, according to the statutes of 
 Illinois. The defendant, however, never had actual notice of the suit, and 
 did not appear to the process. Judgment being obtained upon his default, 
 and the property attached being insufficient to satisfy the same, an action of
 
 CH. XV.] FOREIGN JUDGMENTS. 1003 
 
 § 610. In the next place, as to judgments inpet'sonam 
 in suits between citizens, in suits between foreigners, 
 and in suits between citizens and foreigners. The com- 
 mon hiw recognizes no distinction whatever, as to the 
 effect of foreign judgments, whether they are between 
 citizens, or between foreigners, or between citizens and 
 foreigners. In all cases they are deemed of equal obli- 
 gation, whoever are the parties. The cases which have 
 been already cited, refer to no such distinction ; but 
 the same rules are indiscriminately applied to all per- 
 sons. 
 
 [§ 610 a. Another principle of the common law, some- 
 what connected with the subject of foreign judgments, 
 here considered, is the doctrine of lis pendens ; or the 
 effect of the pendency of another suit, in a foreign tri- 
 bunal, upon the same cause of action, and between the 
 same parties. Many authorities ^ consider such a suit 
 no bar, or cause of abatement, to the second action, (as 
 would be the case, were both suits pending before the 
 same court) ; but the decisions are not entirely harmo- 
 nious, and the question can hardly be considered as 
 
 debt was brought in Maine, to recover the balance. The objection of a 
 want of jurisdiction in the Courts of Illinois was held to be well taken, but 
 the plaintiff was allowed to amend on terms, and to add a count for the 
 original cause of action. 
 
 1 Bowne u. Joy, 9 Johns. 11. 221 ; Walsh v. Durkin, 12 Johns. R. 99 ; 
 Russell V. Field, Stuart's Canada R. 558 ; Bayley v. Edwards, 3 Swanst. 
 703. And see Maule v. Murray, 7 Term R. 470; Salmon «. Wootton, 9 
 Dana, 423; West Lyndia v. McConnelI,5 Miller's Louis. R. 244; Coltr. 
 Partridge, 7 Met. 570; Casey v. Harrison, 2 Dev. N. C. R. 244; Newell 
 V, Newton, 10 Pick. R. 470. But if it be so, the plaintiffs to each suit must 
 be the same, and the defendants the same. If the parties are reversed in the 
 foreign action, the pendency of such suit is no cause of abatement to the 
 second, although both bo for the same cause. Wadleigh v. Veazie, 3 Sum- 
 ner, 165.
 
 1004 CONFLICT OP LAWS. [CH. XV. 
 
 fully settled.^ In proceedings in rem, there ma}^ be 
 good reason for holding, that a suit pending in a fo- 
 reign tribunal, is good cause of abatement to a suit sub- 
 sequently commenced for the same property.-] 
 
 § 611. We have hitherto been principally consider- 
 ing the doctrines of the common law. But it cannot be 
 affirmed, that the same doctrines are generally main- 
 tained, either by foreign Courts, or by foreign Jurists. 
 Many foreign Jurists contend for the doctrine of Vat- 
 tel, that the judgments of a foreign competent tribunal 
 are to be held of equal validity in every other country.^ 
 Thus Huberus lays down the rule ; Cunda negotia et 
 acta, tarn injiidicio quam extra judicium, sive moiiis causa, 
 sive inter vivos, secundum jus certi hci nte celebrata, valent, 
 etiam uU diver sa juris observatio viget,ac uhisicinita, quem- 
 admodum facta sunt, non valerunt^ And again ; Simi- 
 lem usiim hahet Jiwc observatio in rebus judicatis, Senten- 
 tia in aliquo loco j^ronimciata, vel delicti venia, db eo, qui ju- 
 risdictionem illam Jiabet, data, ubique Jiabet effectum ; nee 
 fas est alterius EeijJiiblicce magistratibiis, Ileum alibi abso- 
 lutum, veniave donatimi, licet absque justa causa loersequi, 
 aut iterum 2^ermittere recusandimi, &c. Idem obtinet in sen- 
 tentiis rerum civilium.^ The same doctrine seems equally 
 
 1 The following authorities incline to consider such a suit good cause of 
 abatement. Balch, ex parte, 3 McLean, 221 ; Hart v. Granger, 1 Conn. 
 R. 154; Rolph v. Brown, 3 Watts & Serg. 399, Gibson, C. J. 
 
 2 2 Kent's Com. 122: Taylor v. Royal Saxon, Wallace, Jr. C. C. R. 
 311 •, Le Chevalier v. Lynch, Doug. 170; Embree v. Collins, 5 Johns. 
 101 ; Carrol v. McDonough, 10 Martin, 609. See Lewis ?;. Mew, 1 Strob- 
 hart, Eq. R. 180; Smith v. Mcl%er, 9 Wheaton, 532; The Ship Robert 
 Fulton, 1 Paine, G20 ; Slyhoof r. Flitcraft, 1 Ashmead, 171. 
 
 3 Henry on Foreign Law, 75, 76. 
 
 •i Huberus, Tom. 2, Lib. 1, tit. 3, De Conflict. Leg. ^ 3. 
 s Idem, ^ 6.
 
 CH. XV.] FOREIGN JUDGMENTS. 1005 
 
 well founded in the expressive language of the Roman 
 law. Res judicata pro veritate accipikir? 
 
 § 612. D'Argentre holds the like opinion. Nam de omni 
 ■personali ncgotlo, judicis ejus cognitiouem esse, cui persona 
 sulsit, sic, ut cpiociinqiie p)ersona aleat, id jus sit, quod ille sta- 
 tuerit? Gain asserts, that any other rule would involve 
 absurdity. Ahsurdim enimfore, si post senteniiam cJejiniti- 
 vam alia esset ferenda scnteniia, et processum in infinitum 
 extrahi litcmque ex lite oriri delere? John Voet maintains 
 a similar opinion in all suits except those respecting 
 immovables. Licet autem regulariter Judex requisitus non 
 cognoscat de justitid senteniico per altermn Judiccm latce, nee 
 earn ad examen penitius revocet ; sed pro justitid ejus ex 
 ceqidtate prwsumat ; tamen, si animadvertat, earn directo 
 contra sui territorii statuia Mam esse circa res immoUles in 
 suo territorio sitas, eandem non cxsequetiir} 
 
 § 613. There are, however, other foreign jurists, who 
 maintain a very different opinion.^ We have already 
 had occasion to take notice of the doctrines of Boulle- 
 nois upon the right of jurisdiction ; ^ and he applies 
 them in an especial manner to the authority of foreign 
 judgments. In regard to judgments in rem, or partly 
 
 1 Dirr. Lib. 1, tit. 5, 1.25. 
 
 2 D'Argentr. Comm. ad Leg. Briton, art. 218 ; Gloss. 6, n. 47, p. G65, 
 edit. IGIO ; Henry on Foreign Law, p. 74 ; 1 BouUeneis, Observ. 25, p. 
 605. 
 
 3 Henry on Foreign Law, p. 74, 75; Gaill, Pract. Observ. Lib. 1, Ob- 
 serv. 113, n. 11, p. 201 ; 1 BouUenois, Observ. 25, p. G05, COG. — There is 
 an error in the reference of BouUenois to Gaill. It should be to Observ. 
 113, instead of 123. 
 
 4 J. Voet, ad Pand. Tom. 2 Lib. 42, tit. 1, n. 41, p. 788. 
 
 5 See 1 BouUenois, Observ. 25, p. GOl to p. G50; 3 Burge, Comm. on 
 Col. and For. Law, Pt. 2, ch. 24, p. 1050 ; Id. p. 1050 to p. lOGO ; Id. p. 
 1062 to 1076. 
 
 6 5 Ante, ^ 552.
 
 1006 CONFLICT OF LAWS. [CH. XV. 
 
 in rem, or partly in rem and partly in personam, lie deems 
 the jurisdiction to belong exclusively to the tribunals of 
 the place rei sitce, and, consequently, that the judgment 
 rendered there, ought to be of universal obligation.^ 
 But, in regard to judgments in personal actions, he 
 makes the following distinctions. If the foreign judg- 
 ment is in a suit between natives of the same country 
 in which it is pronounced, and it is rendered by a com- 
 petent tribunal, in such a case it ought to be executed 
 in every other country without any new inquiry into 
 the merits.^ The reason assigned is, that the judgment 
 has emanated from a lawful authority, and has been ren- 
 dered between persons, who are subject to that author- 
 ity ; and consequently, the judgment ought not to be 
 submitted to examination or discussion in any other 
 tribunal, which for such purposes must be wholly in- 
 competent. If the foreign judgment is rendered in a 
 suit between mere strangers, who are foreigners found 
 within the territorial authority of the court rendering it, 
 and the jurisdiction is rightfully exercised over the 
 parties, in such a case the judgment is equally conclu- 
 sive, and not examinable by any other tribunal.^ But 
 he thinks, that the jurisdiction cannot be rightfully ex- 
 ercised, merely because the foreigners are there, unless 
 they are domiciled, and have made themselves subject 
 to the laws, or have made some contract there, or some 
 contract to be executed there, which is the subject-mat- 
 ter of the suit.^ Lastly, if the judgment is rendered in 
 a suit between a native of the country where the judg- 
 
 1 1 BouUenois, Observ. 25, p. 618, 619, 620 to 624 ; Id. p. 635, 636. 
 
 2 1 BouUenois, Observ. 25, p. 603, 605. 
 
 3 1 BouUenois, Observ. 25, p. 607,609. 
 
 ^ 1 BouUenois, Observ. 25, p. 600 to p. 610.
 
 CH. XV.] FOREIGN JUDGMENTS. 1007 
 
 merit is pronounced, and a foreigner, in such a case, if 
 the foreigner be the plaintiff, then the judgment ought 
 to be conckisive, and not examinable, whether the fo- 
 reigner has been successful, or unsuccessful in his claim; 
 for, in such a case, the suit is brought before the proper 
 forum, according to the maxim, Actor seqiiitur forum Rei, 
 and then Standiim est in judicio ; and the execution of 
 the judgment ought to be every^Yhere held perfect and 
 entire without any new examination.^ But if the fo- 
 reigner be the defendant, and he has not entered into 
 an}^ contract in the place, where the suit is brought, or 
 into any contract, which is to be performed there, and 
 which is the subject-matter of the suit ; in such a case 
 the judgment is not conclusive against the defendant.^ 
 
 § 614. Boullenois concludes his remarks upon this 
 subject in the following manner. " When, then, some 
 of our authors say, that foreign judgments are not to be 
 executed in France, and that it is necessary to com- 
 mence a new action, that is true without any exception 
 in all matters touching the realty. It is also true in 
 personal matters, when the defendant is a Frenchman, 
 who has not contracted in the foreign country, nor pro- 
 mised to pay there, nor submitted himself voluntarily 
 to the foreign jurisdiction ; for in such a case a new 
 action should be brought, saving the right to demand a 
 provisional execution of the foreign judgment. But, in 
 the other cases above mentioned, the judgment ought 
 to be executed without a new action." ^ 
 
 1 1 Boullenois, Observ. 25, p. 609. 
 
 2 1 Boullenois, Observ. 25, p. 610, 617. 
 
 3 1 Boullenois, Observ. 25, p. 640. — Toullier has commented upon and 
 denied the distinctions of Boullenois, as not being well founded in French 
 jurisprudence. 10 Toullier, Droit Civ. Frang. ch. 6, ^ 3, p. 83.
 
 1008 CONFLICT OF LAWS. [CH. XV. 
 
 § 615. There was in France an ancient Ordinance 
 (in 1629,) one article of which expressly declared, that 
 judgments, rendered in foreign countries for any cause 
 whatever, should not be executed within the realm, and 
 that subjects against whom they were rendered might 
 contest their rights anew throughout France.^ 
 
 § 616. Emerigon says, that judgments rendered in 
 foreign countries against Frenchmen are not of the 
 slightest weight in France ; and that the causes must 
 be there litigated anew. In support of this statement 
 he quotes the remark of D'Aguesseau, that it is an invio- 
 lable maxim, that a Frenchman can never be transferred 
 to a foreign court. C'est une maxime inviolaUe, qihin 
 Francais ne pent jamais etre tradidt devant wi j'uge etran- 
 ger? Immediately afterwards Emerigon adds, that it is 
 the same, as to foreign judgments rendered in favor of 
 a foreigner against a foreigner domiciled in France. 
 He then proceeds to remark, that it is only in suits be- 
 tween foreigners not domiciled in France that a fo- 
 reign judgment will be executed in France. The rule 
 equally applies, whether the Frenchman be plaintiff or 
 be defendant in the cause. But, on the other hand, a 
 Frenchman may sustain a suit in the French courts 
 against a foreigner, and the judgment rendered by such 
 foreigner may be executed against his property in 
 France. Emerigon, however, admits, that the rule is 
 not eXjCmpt from doubt, and has been much contro- 
 verted ; for the maxim, Actor seqidtur forum Rei, belongs 
 
 1 1 Boullenois, Observ. 25, p. G46 ; 2 Kent, Comm. Lect. 37, p. 121, 
 122, note, 3d edit. See 10 TouUier, Droit Civ. Franc, in ch. 6, ^ 3, n. 
 82, 83. 
 
 ~ D'Aguesseau, CEuvres, Tom. 5, p. 87, 4to edit. 
 
 i
 
 CH. XV.] FOREIGN JUDGMENTS. 1009 
 
 to the law of nations.^ Vattel affirms the same maxim 
 in explicit terms.^ 
 
 § 617. The doctrine thus promulgated by Emerigon 
 has continued down to a very recent period.^' But by 
 the present Code of France the Ordinance of 1629 seems 
 to be abolished ; and foreign judgments are now deemed 
 capable of execution in that country.' But the merits 
 of the judgment are examinable ; and no distinction 
 seems to be made, whether the judgment is in a suit 
 between foreigners, or between Frenchmen, or between 
 a foreigner and a Frenchman ; or whether it is in ftivor 
 of one party, or of the other; or whether it is rendered 
 upon defliult, or upon confession, or upon a full trial 
 and contestation of the merits.^ Toullier considers it 
 as now the established jurisprudence of France, that no 
 foreign judgment can be rendered executory in France, 
 but upon a full cognizance of the cause before the 
 French tribunals, in which all the original grounds of 
 the action are to be debated and considered anew.<5 
 And he adds, that the same principle is applied to 
 
 1 Em6rigoa Traite des Ass. Tom. 1, ch. 4, ^ 8, n. 2, p. 122, 123 ; 2 
 Kent, Comm. Lect. 37, p. 121, 122, note, 3d edit. — The same doctrine 
 is explicitly avowed to be the law of France in many other authorities. 
 See Henry on Foreign Law, Appx. 20'J. 
 
 2 Vattel, B. 2, ch. 8, § 103. 
 
 3 Merlin, R6pertoire, Jugement, ^ 6; Id. Etranger, ^ 2 to ^5; Id. 
 Questions de Droit, Jugement, ^ 14; 2 Kent, Comm. Lect. 37, p. 121, 
 122, note, 3d edit. ; 10 Toullier, Droit Civ. Franc, ch- 6, ^ 3, p. 76, 81, 
 82, 86. 
 
 4 Codede Procedure Civile, art. 516; Code Civil, art. 2123, 2128; 10 
 Toullier, Droit Civ. Franc, ch. 6, ^ 3, n. 76, 77, 78, 84, 85, 86. 
 
 5 10 Toullier, Droit Civ. Franc, ch. 6, ^ 3, n. 76, 77, 78, 80, 81, 84, 
 85, 86 ; Pardessus, Droit Comm. Tom. 5, art. 1488; 3 Burge, Comm. on 
 Col. and For. Law, Pt. 2, ch. 24, p. 1048, 1049. 
 
 6 Id. n. 85, 86; 2 Kent, Comm. Lect. 37, p. 121, 122, note, 3d edit. ; 
 Pardessus, Droit Comm. Tom. 5, art. 1488. 
 
 CONFL. 85
 
 1010 CONFLICT OF LAWS. [CH. XV. 
 
 cases, where foreign judgments are set up by the de- 
 fendant by way of bar to a new action. The judgments 
 are equally reexaminable upon the merits.^ 
 
 § 618. It is difficult to ascertain, what the prevailing 
 rule is in regard to foreign judgments in some of the 
 other nations of continental Europe ; whether they are 
 deemed conclusive evidence, or only prima facie evi- 
 dence. Holland seems at all times, upon the general 
 principle of reciprocity, to have given great weight to 
 foreign judgments, and in many cases, if not in all 
 cases, to have given to them a weight equal to that 
 given to domestic judgments, wherever the like rule of 
 reciprocity with regard to Dutch judgments has been 
 adopted by the foreign countrj^, whose judgment is 
 brought under review. This is certainly a very reason- 
 able rule ; and may, perhaps, hereafter work itself firmly 
 into the structure of international jurisprudence.^ 
 
 1 10 Toullier, Droit Civ. Franc, ch. 6, ^ 3, n. 76 to 86 ; Merlin, Reper- 
 toire, Jugement, ^ 6 ; Id. Questions de Droit, Jugement, § 14 ; Pardessus, 
 Droit Com, Tom. 5, art. 1488; 2 Kent, Comm. Lect. 37, p. 118 to 121, 
 3d edit. 
 
 2 Henry on Foreign Law, ch. 10, ^ 2, p. 75, 76; Id. Appx. p. 209 to 
 p. 214.
 
 CH. XVI.] TENAL LAWS AND OFFENCES. 1011 
 
 CHAPTER XVI. 
 
 PENAL LAWS AND OFFENCES. 
 
 § 619. We are next led to the consideration of the 
 operation of foreign Laws in regard to penalties and 
 offences. And this will not reqmre any expanded ex- 
 amination, as the topics are few, and the doctrines 
 maintained by foreign jurists and by tribunals acting 
 under the common law involve no intricate inquiries 
 into the peculiar jurisprudence of different nations. 
 
 § 620. The common law considers crimes as al- 
 together local, and cognizable and punishable exclu- 
 sively in the country, where they are committed.^ No 
 other nation, therefore, has any right to punish them ; 
 or is under any obligation to take notice of, or to en- 
 force any judgment, rendered in such cases by the tri- 
 bunals, having authority to hold jurisdiction within the 
 territory, where they are committed.^ Hence it is, that 
 a criminal sentence of attainder in the courts of one 
 sovereign, although it there creates a personal disability 
 to sue, does not carry the same disability with the per- 
 son into other countries. Foreign jurists, indeed, mam- 
 
 i «' 
 
 - • Crimes (said Lord Chief Justice De Grey, in Rafael v. Yerelst, 2 
 Win. Blaciv. R. 1058) are in their nature local, and the jurisdiction of 
 
 crimes is local." t. o t •> 
 
 2 Rmherf. Tnst. B. 2, ch. 9, § 12 ; Martens, Law of Nations, L. 3, ch. o, 
 ^ 2-2, 23, 24, 25 ; Merlin, Repertoire, So6verainet6, ^ 5, n. 5, G, p. 379 to 
 382 \ Commonwealth v. Green, 17 Mass. R. 515, 545, 546, 547, 548.
 
 1012 CONFLICT OF LAWS. [CH. XVL 
 
 tain on this particular point a different opinion, holding, 
 that the state or condition of a person in the place of 
 his doraicil accompanies him everywhere.^ Lord Lough- 
 borough in declaring the opinion of the Court on one 
 occasion said ; " Penal laws of foreign countries are 
 strictly local, and affect nothing more than they can 
 reach, and can be seized by virtue of their authority. 
 A fugitive, who passes hither, comes with all his transi- 
 tory rights. He may recover money held for his nse, 
 and stock, obligations, and the like ; and cannot be af- 
 fected in this country by proceedings against him in 
 that, which he has left beyond the limits of which such 
 proceedings do not extend." ^ Mr. Justice Buller, in the 
 same case, on a writ of error said ; " It is a general prin- 
 ciple, that the penal laws of one country cannot be taken 
 notice of in another." ^ The same doctrine was affirmed 
 by Lord EUenborough in a subsequent case.^ And it 
 has been recently promulgated by Lord Brougham, in 
 very clear and authoritative terms. " The Lex loci 
 (says he) must needs govern all criminal jurisdiction 
 from the nature of the thing and the purpose of the 
 jurisdiction." ^ 
 
 1 Ante, ^ 91, 92 ; 1 Hertii Opera, de Collis. Leg. § 4, n. 8, p. 124, edit. 
 1737; Id. p. 175, edit. 1716; 1 Boullenois, Obs. 4, p. 64, 65. — Boullenois 
 states this doctrine in strong terms. "A I'egard des statuts, qui pro- 
 noncenl unc morte civile pour crimes, ou une note d'infamie, I'elat de ces 
 miserables se porte par tout, independament de tout domicile ; et cela par 
 un concert et un concours general des nations, ces sortes de peines etant 
 une tache, une plaie incurable, dent le condamn6 est afflig6, et qui I'ac- 
 compagne en tous lieux. C'est ce que dit D'Argentre." 1 Boullenois, 
 Ohserv. 4, p. 64, 65. 
 
 2 Folliott V. Ogden, 1 H. Black, p. 135. 
 
 3 Oaden V. Folliott, 3 T. R. 733, 734. 
 
 4 WoKFi'. Oxholm, G M. & Selw. R. 99. 
 
 5 Warrender v. Warrender, 9 Bligh, 119, 120.
 
 CH. XVI.] PENAL LAWS AND OFFENCES. 1013 
 
 § 621. The same doctrine has been frequently re- 
 cognized in America. On one occasion, where the sub- 
 ject underwent a good deal of discussion, Mr. Chief 
 Justice Marshall, in delivering the opinion of the Su- 
 preme Court, said ; " The Courts of no country execute 
 the penal laws of another." ^ On another occasion, in 
 New York, Mr. Chief Justice Spencer said ; " We are 
 required to give effect to a law (of Connecticut,) which 
 inflicts a penalty for acquiring a right to a chose in 
 action. The defendant cannot take advantage of, nor 
 expect the Court to enforce, the criminal laws of ano- 
 ther State. The penal acts of one State can have no 
 operation in another State. They are strictly local, and 
 affect nothing more than they can reach." ^ Upon the 
 same ground also, the Supreme Court of Massachusetts 
 have held, that a person convicted of an infamous of- 
 fence in one State, is not thereby rendered incompetent 
 as a witness in other States.^ [So, in a late case in 
 Chancery,'' a foreigner in England was not allowed to 
 withhold certain documents,whose production was sought 
 by a bill of discovery, upon the plea that their contents 
 would render him liable to the penal laws of his own 
 country ; they having no such effect in England, and 
 the courts of the latter country having no regard to the 
 penal laws of a foreign State.] 
 
 § G22. The same doctrine is stated by Lord Kames as 
 the doctrine in Scotland. " There is not (says he) the 
 same necessity for an extraordinary jurisdiction to punish 
 
 J The Antelope, 10 AVheat. R. 66, 1:23. 
 
 2 Scoville V. Canfielil, M Johns. R. 338, 340. See also The State v. 
 Knight, Taylor's N. C. Rep. 65. 
 
 3 Commonwealth v. Green, 17 Mass. R. 515, 510, 511, 516, 517. 
 
 4 King of Two Sicilies v. Willcox, 1 Simons, N. S. 301. 
 
 85*
 
 1014 CONFLICT OF LAWS. [CH. XVL 
 
 foreign delinquencies. The proper place for punisli- 
 ment is, where the crime is committed. And no so- 
 ciety takes concern in any crime, but what is hurtful to 
 itself." 1 
 
 § 623. The same doctrine is laid down by Martens, 
 as a clear principle of the law of nations. After re- 
 ' marking, that the criminal power of a country is con- 
 fined to the territory, he adds ; " By the same principles 
 a sentence, which attacks the honor, rights, or property 
 of a criminal, cannot extend beyond the Courts of the 
 territory of the sovereign who has pronounced it. So 
 that he, who has been declared infamous, is infamous in 
 fact, but not in law. And the confiscation of his pro- 
 perty cannot affect his property situate in a foreign 
 country. To deprive him of his honor and property 
 judicially there also, would be to punish him a second 
 time for the same offence." ^ 
 
 § 624. Pardessus has affirmed a similar principle. 
 "In all the States of Christendom,, (says he,) by a sort 
 of general consent and uniformity of practice, the pro- 
 secution and punishment of penal offences are left to 
 the tribunals of the country, where they are committed. 
 The principle of the French Legislation, that the laws 
 of police and bail are obligatory upon all, who are 
 within the territory, is a principle of common right in 
 all nations." " Bouhier also admits the locality, or, as 
 he terms it, the reality of penal laws ; and of course he 
 limits their operation to the territory of the sovereignty, 
 within which they are committed.'* 
 
 ^ Karnes on Equity, B. 3, ch. 8, ^ L See also Ersk. Inst. B. 1, tit. 2, 
 p. 23. 
 
 ~ Martens, Summary of the Law of Nations, B. 3, ch. 3, ^ 24, 25. 
 
 3 Pardessus, Droit. Comm. 5, art. 1407. See also Merlin, Repertoire, 
 Souv6rainet6, ^ 5, n. 5, 6, p. 37'J to 382. 
 
 Bouhier, Cout. de Bourg. ch. 34, p. 588. See also Matthaei Comm.
 
 en. XVI.] PENAL LAWS AND OFFENCES. 1015 
 
 § 625. On the other hand Tlertius, and Paul Voet, 
 seem to maintain a different doctrine, holding, that 
 crimes committed in one state may, if the criminal is 
 found in another state, be upon demand punished there.^ 
 Paul Voet says ; Slatutum personale iibiquc locorum per- 
 sonam comikdur, d:c., etiam in ordine ad panam a cive pe- 
 tcndam, si pcena civibus sit imposita? And he, as "well as 
 some others of the foreign jurists, enters into elaborate 
 discussions of the question, whether, if a foreign fugitive 
 criminal is arrested in another country, he is to be pu- 
 nished according to the law of his domicil, or according 
 to the law of the place, where the offence was commit- 
 ted.^ If any nation should suffer its own courts to en- 
 tertain jurisdiction of offences committed by foreigners 
 in foreign countries, the rule of Bartolus would seem to 
 furnish the true answer. Delida pimiiintur juoda mores 
 loci commissi delicli, et nan loci, uhi de crimine cognoscitiir^ 
 
 ad Pand. Lib. 48, tit. 20, ^S 17, 18, 20.— Mr. Hallam has remarked ; "Tiie 
 death of Servetus, has, perhaps, as many circumstances of aggravation, 
 as any execution for heresy, that ever look place. One of these, and 
 among the most striking, is, that he was not the subject of Geneva, nor 
 domiciled in the city, nor had the Chrislianissima Restitutio been pub- 
 lished there, but at Vienne. According to our laws, and those, I be- 
 lieve, of most civilized nations, he was not answerable to the tribunals of 
 the republic." Hallam's Introduction to the Literature of Europe, Vol. 2, 
 (Lond. edit. 1839,) cap. 2, ^ 27, p. 109. 
 
 ^ Hertii, Opera, De Collis. Leg. ^ 4, n. 18 to n. 21, p. 130 to 133, edit. 
 1737 ; Id. p. 185 to 188, edit. 1716. 
 
 2 P. Voet, de Statut. ^ 4, ch. 2, n. 6, p. 123, edit. 1715 ; Id. p. 138, edit. 
 1601. See Id. ^ 11, ch. 1, n. 4, 5, p. 294 to 296, edit. 1715; Id. p. 355 to 
 360, edit. 1761. 
 
 3 See I Hertii, Opera, De Collis. Leg. ^4, n. 19 to n. 21, p. 131, 132. edit. 
 1737; Id. p. 185 to 188, edit. 1716; P. Voet de Stat. ^ ll,cii. 1, ^ 1,4,5, 
 p. 291 to 297, edit. 1715; Id. p. 355 to 360, edit. 1661. 
 
 4 Henry on Foreign Law, p. 47. — I quote the passage as I find it in 
 Henry. Upon examining Bartolus in the place apparently intended to be 
 cited by IMr. Henry (Bartolus, Comm. ad Cod. Lib. 1, tit. 1, lib. 1, n. 20,
 
 1016 CONFLICT OF LAWS. [CH. XVI. 
 
 [§ 625 a. The doctrine that one State will not notice 
 the penal laws, or revenue laws of another State, is, 
 however, to be understood with some limitation, and 
 cannot be extended so far as has sometimes been sup- 
 posed. Thus, in a late case in New Hampshire, a citi- 
 zen of that State brought an action of trespass against 
 a citizen of Vermont, to recover damages for assessing 
 the plaintiff with an illegal tax, and issuing a warrant 
 against him upon which he was arrested. The defend- 
 ant relied upon a want of jurisdiction in the Courts of 
 New Hampshire, to inquire into the matter. And the 
 learned Chief Justice Parker, in pronouncing judgment 
 upon this point observed : " It is said that the Court 
 will not notice the penal laws, or the revenue laws, of 
 another State. But this principle is not applicable in 
 this case, nor can it be true to that extent. There is 
 no attempt to enforce the penal or revenue laws of Ver- 
 mont by this action. If there were, this could not be 
 done through the instrumentality of the Courts of this 
 State ; as for instance, if the attempt was to collect a tax. 
 assessed in Vermont, by a suit here." ' It had been 
 previously determined in Vermont, that the Courts of 
 that State would not take C02;nizance of an official bond 
 given in New Hampshire to the Treasurer of that State, 
 
 ( 
 
 21 ; Id. n. 44 ; Id. n. 47, Tom. 7, p. 4, edit. 1G02,) I have not been able to 
 find any such language used by Bartolus. Martens deems it dear, that 
 a sovereign, in whose dominions a criminal has sought refuge, may, if 
 he chooses, punish him for the offence, though committed in a foreign 
 country; though he admits, that the more common usage in modern 
 limes is to remand the criminal to the country, where the crime was 
 committed. Martens, Law of Nations, B. .S, ch. 3, ^ 22, 23. See also 
 Vattel, B. 2, ch. 2, ^ 76 ; Grotius, de Jure Belli et Pac. B. 2, ch. 21,^ 2, 
 3, 4, 5 ; Burlemaqui, P. 4, ch. 3, i^^ 24, 25, 2(3. See Lord Brougham's opi- 
 nion in Warrender t;. Warrender, OBligh, R. 118, 119, 120. 
 1 Henry v. Sargeant, 13 New Hamp. R. 321.
 
 CH. XVI.] PENAL LAWS AND OFFENCES. ' 1017 
 
 for the flxitliful discharge of a certain officer's duties 
 under the laws of New Hampshire, when the remedy 
 sought was one prescribed only by the laws of New 
 Hampshire, and not in accordance with the common 
 law.^] 
 
 [§ 625 1). Although the penal laws of every country 
 are in their nature local, yet an offence may be com- 
 mitted in one sovereignty in violation of the laws of 
 another, and if the offender be afterwards found in the 
 latter State, he may be punished according to the laws 
 thereof, and the fact that he owes allegiance to another 
 sovereignty, is no bar to the indictment. Thus, in a 
 late case in New York,^ a citizen of Ohio had there exe- 
 cuted a fraudulent paper addressed to citizens of New 
 York, w4iich had been presented to the latter in New 
 York, by an innocent agent, and the fraud w\as there 
 completed. The defendant being afterw^ards indicted in 
 New York for the offence, pleaded that he was a na- 
 tural-born citizen of Ohio, and owed allegiance to that 
 State ; that he had never been within the State of New 
 York, and that the fraudulent paper was executed in 
 Ohio. It was determined this was no answer to the 
 indictment.] 
 
 § 626. There is another point, which has been a good 
 deal discussed of late ^ and that is, whether a nation is 
 bound to surrender up fugitives from justice, who es- 
 cape into its territories, and seek there an asylum from 
 punishment. The practice has, beyond question, pre- 
 
 1 Pickering v. Fisk, 6 Vermont, R. 102, where the subject of the hx 
 fori and the lex loci, is ably examined by Mr. Justice Phelps. In Hunt 
 
 c. Povvnal, 9 Vermont, 411, it was inlimated that an action could not be 
 maintained in the Courts of that Slate, against a town situated in a foreign 
 State, for an injury arising from a defective highway. 
 
 2 Adams v. The People, 1 Comstock, R. 173.
 
 1018 CONFLICT OF LAWS. [CH. XVI. 
 
 vailed, as a matter of comity, and sometimes of treaty, 
 between some neighboring States, and sometimes, also, 
 between distant States, having much intercourse with 
 each other. ^ Paul Yoet remarks, that under the Roman 
 Empire this right of having a criminal remitted for trial 
 to the proper forum criminis was unquestionable. It 
 resulted from the very nature of the universal dominion 
 of the Roman Laws. Jure tamen civili notcmdum, remissi- 
 onihus locum fuisse cle necessitate, id reus ad locum, ubi de- 
 liquit, sic iKtente judlce,fuerit mittendus, quod omnes judices 
 uni sid)essent imperatori. Et omnes idrovincim Romance unitcB 
 essent accessorid, non princijKditer? But he remarks, that 
 according to the customs of almost all Christendom, 
 (except Saxony) the remitter of criminals, except in 
 cases of humanity, is not admitted ; and, when done, it 
 is to be upon letters rogatory, so that there may be no 
 prejudice to the local jurisdiction. Jloribus nihilominus 
 {lion tamen jSaxonicis) iotius fere Oliristianismi, nisi ex hu- 
 manitate, non sunt admissce remissiones. Quo casu, remit- 
 tenti magistratid cavendum per litteras reversoriales, ne actus 
 jiirisdictioni remittentis idlum pariat prcejudicium. Id quod 
 etiam in nostris Provinciis JJniiis est receptum? And he 
 adds, Neque enim Provincice Fcederatce uni supremo pa- 
 rent ; ■* a remark strictly applicable to the American 
 States. It is manifest, that he treats it purely as a mat- 
 ter of comity and not of national duty. 
 
 § G27. It has, however, been treated by other dis- 
 tinguished jurists, as a strict right, and as constituting 
 
 1 See Vattel, B. 2, ch. 6,^ 76. 
 
 2 P. Voet, De Stat. ^ II, cli. 1, n. 6, p. 297, edit. 1715; Id. p. 353, 
 edit. 166 1. 
 
 3 Ibid. 
 
 * Id. See also Matthtei Comm. de Ciiminibus, Dig. Lib. 48, tit. 14, 
 1. 1, M.
 
 CH. xvl] penal laws and offences. 1019 
 
 a part of the law and usage of nations, that offenders 
 charged with a high crime, who have fled from the 
 country in which the crime has been committed, should 
 he delivered up and sent back for trial by the sovereign 
 of the country, where they are found. Yattel mani- 
 festly contemplates the subject in this latter view, con- 
 tending that it is the duty of the government, where 
 the criminal is, to deliver him up, or to punish him ; 
 and if it refuses so tcf do, then it becomes responsible, 
 as in some measure an accomplice in the crime.^ This 
 opinion is also maintained with great vigor by Grotius,by 
 Heineccius, by Burlemaqui, and by Uutherforth.- There 
 is no inconsiderable weight of common-law authority on 
 the same side ; and Mr. Chancellor Kent has adopted 
 the doctrine in a case which called directly for its de- 
 cision.^ 
 
 § G28. On the other hand, Pufendorf explicity denies 
 it as a matter of right.^ Martens is manifestly of the 
 same opinion, contending that, with respect to crimes 
 committed out of his territories, no sovereign is obliged 
 to punish the criminal who seeks shelter in his domi- 
 nions, or to execute a sentence pronounced against his 
 
 1 Vattel, B. 2, ch. 6, § 76. 
 
 2 Grotius de Jure Belli et Pacis, ch. 21, i^i 2, 3, 4, 5 ; Heineccii Pree- 
 lect. in Grot. h. t. ; Burlemaqui, Pt. 4, ch. 3, ^ 23 to ^ 29, p. 258, 259, edit. 
 1763 ; Rutherf. Inst. B. 2, ch. 9, ^ 12. 
 
 3 In the matter of Washburn, 4 Johns. Ch. R. 100 ; 1 Kent, Comm. 
 Lect. 2, p. 30, 3d edit. ; Rex v. Hutchinson, 3 Keble, 785 ; Rexr. Kim- 
 berley. 2 Strange, R. 848 ; East India Company v. Campbell, 1 Ves. Sen. 
 246 ; Miirc v. Kaye, 4 Taunton, R. 31, per Heath, J. ; Wynne's Euno- 
 mus. Dialog. 3, ^ 07; Lundy's case, 2 Vent. II. 314 ; Rex v. Bell, 1 Amer. 
 Jurist, 287. 
 
 4 For this reference to Pufendorf's opinion, I must rely on Burlemaqui 
 (Pt. 4, ch. 3, ^ 23, 24), not having been able to find it in his Treatise on 
 the Law of Nations. The only reference to the point, which I have met 
 with in that work, is in B. 8, ch. 3, ^ 23, 24.
 
 1020 CONFLICT OF LAWS. [CH. XVL 
 
 person or his property .^ Lord Coke expressly main- 
 tains, that the sovereign is not bound to surrender np 
 fugitive criminals from other countries, who have sought 
 a shelter in his dominions.^ Mr. Chief Justice Tilgh- 
 man has adhered to the same doctrine in a very elabo- 
 rate judgment.^ The reasoning of Mr. Chief Justice 
 Parker, in a leading case,^ leads to a similar conclusion ; 
 and it stands indirectly confirmed by the opinion of a 
 majority of the Judges of the Sftpreme Court of the 
 United States in a very recent case of the deepest in- 
 terest.^ 
 
 1 Martens, Law of Nations, B. 3, ch. 3, ^ 23. 
 
 2 3 Coke, Inst. 180. 
 
 3 Commonwealths. Deacon, 10 Serg. & R. 125; 3 Story, Comm. on 
 Constit. § 1802. See also Merlin, E6pertoire, Souv6rainie, ^ 5, n. 5, 6, 
 p. 379 to p. 382. 
 
 4 Commonwealth v. Green, 17 Mass. R. 515, 540, 541, 546, 547, 548. 
 
 5 Holmes v. Jennison, 14 Peters, R. 540; Holmes, ex parte, 12 Verm. 
 R. 631. — Mr. Justice Barbour maintained the same opinion in the case of 
 Jose Ferreira de Santos, 2 Brock. R. 493. Most of the reasoning on each 
 side will be found very fully collected in the case of The matter of Wash- 
 burn, 4 Johns. Ch. R. 106 ; that of Commonwealth v. Deacon, 10 Serg. 
 & Rawle, 123; Holmes v. Jennison, 14 Peters, R. 540 to 598; and that 
 of Rex 11. Ball, 1 Amer. Jurist, 297. The latter case is the decision of Mr. 
 Chief Justice Reid of Canada. See In re Joseph Fisher, Stuart's Can. R. 
 245. See also 1 Amer. State Papers, 175 ; Cummonweallh v. De 
 Longchamps, 1 Dall. 111,115 ; United States v. Davis, 2 Sumner, R. 482, 
 486. The subject respecting the restitution by our government or extradi- 
 tion of fugitives from justice from a foreign country, has been brought at 
 various times before our government. The various cases, and the opinions 
 of the law officers, will be found collected in the Executive Documents, 
 House of Repr. No. 199, 26th Congress, 1st Sess'on, 1840; Report of Se- 
 cretary of State, of May, 1840. Mr. W^irt, in his able opinions as Attorney- 
 General, denies the right and duty. [As to the mode of procedure, and 
 practice upon a warrant for a fugitive from justice, see Smith, ex parte, 3 
 McLean, 121. InreMetzger, 5 New York Legal Obs. 83; 1 Barbour, 
 248; 5 How. 176; In re Hayward, 1 Sandf. 701.]
 
 CH. xvil] evidence and proofs. 1021 
 
 CHAPTER XVIL 
 
 EVIDENCE AND PROOFS. 
 
 § G29. We come in the last place to the consideration 
 of the operation of foreign laws in relation to evidence 
 and proofs. And, here, independently of other more 
 complicated questions, two of a very general nature 
 may arise. In the first place, what rule is to prevail, 
 as to the competency or incompetency of witnesses ? 
 Is the rule of the law of the country where the trans- 
 action to which the suit relates, had its origin, to go- 
 vern, or the law of the country where the suit is 
 brought ? In the next place, what is the rule which is 
 to prevail in the proof of written instruments ? In other 
 words, in what manner are contracts, instruments, or 
 other acts made or done in other countries to be proved ? 
 Is it sufficient to prove them in the manner and by the 
 solemnities and proofs which are deemed sufficient by 
 the law of the place where the contracts, instruments, 
 or other acts, were executed ? Or is it necessary to 
 prove them in the manner and according to the law of 
 the place where the action or other judicial proceeding 
 is instituted ? 
 
 § G30. Various cases may be put to illustrate these 
 questions. A contract or other instrument is executed 
 and recorded before a Notary Public in a foreign coun- 
 try, in which by law a copy of the contract or other in- 
 strument certified by him is sufficient to establish its 
 existence and genuineness ; would that certificate be 
 admissible in the courts of common law of England or 
 
 CONFL. 86
 
 1022 CONFLICT OF LAWS. [CH. XVIL 
 
 America to establish the same facts ? ^ Again ; persons 
 who are interested, and even parties in the very suit, 
 are in some foreign countries admissible witnesses to 
 prove contracts, instruments, and other acts, material to 
 the merits of the suit ; would they be admissible as 
 witnesses in suits brought in the courts of common law 
 in England and America, to prove the like facts in re- 
 lation to contracts, instruments, or other acts, made or 
 done in such foreign countries, material to the suit ? 
 These are questions more easily put, than satifactorily 
 answered upon principles of international jurispru- 
 dence. 
 
 § 630.«. Similar considerations may arise in respect 
 to the rules as to presumptions de facto and de jure, 
 which may be different in different countries. Thus, 
 for example, the title to movable property may depend 
 upon the question of survivorship of one of two persons, 
 who both died under the like circumstances ; as, for ex- 
 ample, on board a ship which foundered at sea, or was 
 totally lost with all her crew by shipwreck. Now, dif- 
 ferent countries may, and probably do, adopt different 
 presumptions, as to the survivorship in such calamitous 
 circumstances, founded upon considerations of the age, 
 or sex, or other natural or even artificial grounds of 
 belief or presumption.- What rule then is to be adopt- 
 ed ? The law of the place of domicil of the parties, or 
 the law of the forum where the suit is instituted ? On 
 one occasion, when a question of this very nature was 
 
 [I See Mascardus, De Probat. Vol. 2, Conclus. 927, n. 4 to n. 8, p. 336, 
 [455, edit. 1731.] 
 
 2 See Fearne's Posthum. Works, 38 ; The Case of Gen. Stanwix and 
 Daughter ; Code Civil of France, art. 720, 721, 722 ; 4 Burge, Comm. on 
 Col. and For. Law, Pt. 1, ch. 4, ^ 5, p. 152, 153.
 
 CH. xvil] evidence and proofs. 1023 
 
 before him, a late learned Judge (Sir William Grant) 
 said ; " There are many instances in which principles 
 of law have been adopted from the civilians by our 
 English Courts of Justice ; but none that I know of, in 
 which they have adopted presumptions of fact from 
 the rules of the civil law." ^ 
 
 § 630 h. There are certain rules of evidence which 
 may be affirmed to be generally, if not universally, 
 recognized. Thus, in relation to immovable property, 
 inasmuch as the rights and titles thereto are generally 
 admitted to be governed by the Jaw of the situs, and 
 as suits and controversies touching the same ex diredo 
 properly belong to the forum of the ^Uus, and not else- 
 where, it would seem a just and natural, if not an irre- 
 sistible conclusion, that the law of evidence of the situs 
 touching such rights, titles, suits, and controversies, 
 must and ought exclusively to govern in all such cases.^ 
 So, in cases relating to the due execution of wills and 
 testaments of immovabl&s, the proofs must and ought 
 to be according to the law of the situs. So in respect 
 to the due execution of wills and testaments of mova- 
 bles, as they are governed by the law of the domicil of 
 the testator, the proofs must and ought to be according 
 to the law of his domicil. By the present law of Eng- 
 land, a will or testament of movable property, in order 
 to be valid, must be executed in the presence of two 
 witnesses. If, then, an Englishman, domiciled in Eng- 
 land, should make his will in England, in the presence 
 of one witness only, that will could not be admitted to 
 proof in Scotland to govern movable property situate 
 
 1 Mason v. Mason, 1 Meriv. E. 308, 312. 
 
 3 See TuUochu. Hartley, 1 Y. & M. New Cas. in Ch. 114, 115.
 
 1024 CONFLICT OF LAWS. [CH. XVIL 
 
 there.^ The like rule would apply to a case where the 
 will was executed in the presence of two witnesses, 
 both or either of whom were incompetent by the law of 
 England, although competent by the law of Scotland. 
 
 § 631. Similar principles may well be applied to 
 many other cases. There are certain formalities of 
 proof, which are required by the laws of foreign coun- 
 tries in regard to contracts, instruments, and other acts 
 which are indispensable to their validity there ; and 
 these are therefore held to be of universal obligation ; 
 and must be duly proved in every foreign tribunal, in 
 which they are in litigation, before any right can be 
 founded on them.^ An illustration of this doctrine 
 may be drawn from the known rule of the common 
 law, that a bill of exchange upon its dishonor must be 
 protested before a notary ; and if not proved to be so 
 protested, no remedy can be had against the drawer or 
 indorsers.^ Another illustration may be drawn from 
 the registration of deeds and other instruments, which 
 cannot be given in evidence unless proved to be duly 
 registered according to the Lex loci rei sitce. Another 
 illustration may be drawn from cases of contract under 
 the statute of frauds, which must be in writing, and 
 must state a good consideration, in order to be valid in 
 point of legal obligation or evidence.^ Another illus- 
 tration may be drawn from the known doctrine as to 
 stamps, by which it is held, that no instrument can be 
 
 1 Yates V. Thomson, 3 Clark & Finnell. 544, 576, 577. 
 
 2 See Trasher v. Everhart, 3 Gill & Johns. R. 234, 242 ; ante, ^ 260 
 to ^ 263. 
 
 3 See Boyden v. Taylor, 2 Harr. & Johns. 396 ; ante, § 260 a, § 360, 
 361 ; Wilcox V. Hunt, 13 Peters, R 378. 
 
 ■* Ante, § 262, ^ 262 a.
 
 CH. XVII.] EVIDENCE AND PROOFS. 1025 
 
 given in evidence unless it is properly stamped.' In 
 all these cases the proper proofs must doubtless be 
 given in conformity with the local law.^ And if the 
 proofs are given in the mode which the local law re- 
 quires, there is some difficulty in asserting, that such 
 proofs ought not to be deemed everywhere a full 
 authentication of the instrument.^ 
 
 § 632. Boullenois divides the formalities of acts into 
 several classes ; those which are required before the 
 act qiice reqidriintur ante fadimi ; those which are re- 
 quired at the time of the act ; quce reqidnmtur in facto ; 
 and those which are required afterwards ; qucz reqiii- 
 nmtiir ex post fado.^ But a more important distinction 
 in his distribution is of the formalities at the time of 
 the act, which he denominates the formalities of proof, 
 [fonnaUtcs p'obanteB) and those which are substantial 
 and intrinsic formalities.^ Among the former he in- 
 cludes those which respect the number of witnesses 
 who are to witness the execution of the act, their age, 
 and quality, and residence, and the date and place of 
 the act. And here he holds, that as to the formalities 
 of proof the maxim applies ; Solemnitates tesiimoniales 
 non sunt in potestate contrahentiiim, sed in potestate jurist 
 Solemnitates siimendce sunt ex consiietudine loci, in quo res 
 et actus geritur? 
 
 § 632 a. Mascardus holds a similar opinion ; and 
 says, that an act, executed before a notary in any 
 
 » Ante, § 260. 
 
 2 Ante, ^ 260, 260 a, ^ 360, 361, \ 363 to ^^i 373. 
 
 3 See Ersk. Inst. B. 3, tit. 2, ^ 39, 40, 
 
 4 I Boullenois, Observ. 23, p. 491. 
 
 5 1 Boullenois, Observ. 23, p. 492, 498, 506, &c. 
 
 6 1 Boullenois, Observ. 23, p. 492, 493 ; ante, ^ 260. 
 1 Ibid. 
 
 86*
 
 1026 CONFLICT OP LAWS. [CH. XVII. 
 
 place, if duly executed according to the law of that 
 place, and valid as a notarial act, ought to be held of 
 the same obligation and validity in every other place. 
 Unde jus prohationis, orium a princiino, non tolUtur mida- 
 tione loci} Paul Yoet appears to entertain a different 
 opinion ; and he puts the case, whether, if an instru- 
 ment were executed in one place before a notary, who 
 by the Lex loci is competent for that purpose, the valid- 
 ity or force of that instrument would extend to another 
 place, where the notary would be deemed incompetent, 
 so that he could not there give public authenticity to 
 the instrument. Quid si tcimen in iino loco factum sit 
 imtriimentum coram notario, qui ibidem est JiaUlis, an ex- 
 tendetur vis illius instrumenti ad aliwn locum, iibi censetur 
 inJiaUlis, sic iit publicum ibidem neqiieat facere instrumen- 
 tiim? After giving the opinions of several jurists in 
 the affirmative, he proceeds to give his own to this 
 effect j that it is not so much a question of solemn- 
 ities as of the efficacy of proof, which, although it may 
 be sufficient in one place, may not be so everywhere ; 
 and that the tribunal of one country cannot give such 
 validity and force to any instrument, as that it shall 
 have operation elsewhere.^ 
 
 1 Mascard. De Probat. Conclus. 927, Tom. 2, p. 336, 337, [454, 455, 
 edit. 1731,] n. 4 to n. 14 ; ante, § 260 a. 
 
 2 P. Voet, de Stat. § 10, ch. 1, n. 11, p. 287, 2S8, edit. 1715; Id. 
 p. 347, edit. 1661. 
 
 3 P. Voet, de Stat. ^ 10, ch. 1, n. 11, p. 287, 288, edit. 1715; Id. 
 p. 347, edit. 1661. His language is; Quid si taraen in uno loco factum 
 sit instrumentum coram notario, qui ibidem est habilis, an extendetur vis 
 illius instrumenti, ad alium locum, ubi censetur inhabilis, sic ut publicum 
 ibid6 nequeat facere instrumentum ? Sunt qui id adfirmant. Quasi loci 
 consuetudo, dans robur scripturse, etiam obtineat extra territorium. Sunt 
 qui id ideo adfirmant, quod non tarn de habilitate et inhabilitate notarii 
 laboremus, quam de solemnibus. Quod si verum foret, res extra dubita- 
 tionis aleam esset collocata. Verum, ut quod res est dicam existumem hie
 
 CH. XVII.] EVIDENCE AND PROOFS. 1027 
 
 § 633. Paul Voet, also, in another place, speaking 
 upon the subject of the operation of the Lex fori, as to 
 the modes of proceeding in suits, uses the following 
 language. Si de prohationihus, et qiddcm testibus ; sic 
 eas adhihclit, sic examinahit Jiosce, front exigit fonim jiidi- 
 cisy ubi prodiicuntiir. Si de imtrumentis ; sic exJdhenda, 
 sic cdenda, v.tfert loci stcdutwn, iiU cxJdhentur, vel cdimtur} 
 The generality of these expressions must lead us to the 
 conclusion, that he was of opinion, that the modes of 
 proof and the law of evidence of the Lex fori ought to 
 regulate the proceedings in all suits, whether these 
 suits arose from foreign contracts, or instruments, or 
 other acts, or not. But perhaps he may have intended 
 to give them a more limited application.^ 
 
 § 634. Bouhier states a case, where a suit was 
 brought in France by an Englishman against another 
 
 agi, non tarn de solemnibus, quam proband! efficacia ; quae licet in uno 
 loco sufficiens, non tamen ubique locorum ; quod judex unius teriitorii 
 nequeat vires tribuere instrumento, ut alibi quid operetur. Hinc etiara 
 mandatum ad lites, coram notario et testibus hie sufficienter factum, non 
 tamen erit validum in Gelrise partibus, ubi notarii non admittuntur, ut 
 coram lege loci, hie confectum esse oporteat, quo in Geldria sortiatur 
 affectum. Quemadmodum enim personam non subditam, non potest quis 
 alibi inhabilitare ; ita nee personam subditam potest alibi facere habilem. 
 P. Voet, ubi supra. 
 
 1 P. Voet, de Stat. ^ 10, ch. 1, n. 9, 10, p. 287, edit. 1715 ; Id. p. 347, 
 edit. 1661. 
 
 2 Erskine in his Institutes says, that in suits in Scotland vvitli foreigners 
 upon obligations made in a foreign country, they may prove payment or 
 extinguishment lege loci. If, for instance, the law of the foreign country 
 allows the payment of a debt constituted by writing to be proved by wit- 
 nesses, that manner of proof will also be allowed by the Scottish courts 
 as sufficient for extinguishing such debt, although by the Scottish law 
 obligations, formed by writing, are not extinguishable by parol evidence. 
 Ersk. Inst. C. 3, tit. 5, ^ 7. This seems a mixed case of the law of the 
 place governing as to the discharge of contracts, and also of the mode of 
 proof of the discharge.
 
 1028 CONFLICT OP LAWS. [CH. XVII. 
 
 person for money supposed to be lent by him to the 
 latter ; and he offered proof thereof by witnesses. It 
 was objected, that by the Ordinance of Moulins (art. 
 54,) such parol proof was inadmissible. But the Court 
 admitted it upon the ground, that the law of England, 
 where the contract was made, admitted such parol 
 proof, and therefore it was admissible in a controversy 
 on the contract in France. Bouhier holds the decision 
 to be correct, if the contract was made, as he supposes 
 it to have been, in England.^ 
 
 § 634 a. Upon this subject it is perhaps not possible 
 to lay down any rules which ought to be, or even which 
 can be applied to all cases of evidence. Generally speak- 
 ing, it seems true that neither the Lex loci contractus 
 nor the Lex loci domicilii, is applicable to the course of 
 procedure -, but the course of procedure ought to be 
 according to the law of the forum, where the suit is 
 instituted.^ And perhaps it may be stated as a general 
 truth, that the admission of evidence and the rules of 
 evidence are rather matters of procedure than matters 
 attaching to the rights and titles of parties under con- 
 tracts, deeds, and other instruments ; and therefore 
 they are to be governed by the law of the country 
 where the Court sits. But, then, (as has been well 
 observed by an eminent judge,) in all questions of 
 international jurisprudence it is easy to say how things 
 are here and there when there is very great difference 
 between the points ; but when we come to the confines, 
 
 i 1 Bouhier, Cout. de Bourg. ch. 21, ^ 205, p. 415. See also Stry- 
 kius, Tom. 2, Diss. 1, ch. 3, ^ 18 to ^ 25, p. 21, 27. 
 
 2 See Yates v. Thomson, 3 Clark & Finnell. R. 577, 580 ; Don v. 
 Lippmann, 5 Clark & Finnell. R. 1, 14, 15, 16 ; Bain v. Whitehaven & 
 Furness Junction R. Co. 3 House of Lords Cases, 1, 19.
 
 CH. XVII.] EVIDENCE AND rROOFS. 1029 
 
 and when one province runs into the other, then arises 
 the difficulty, and then we get intei' apices jiiris.^ There 
 
 1 Lord Brougham, in Yates v. Thomson, 3 Clark & Finnell. 577, 
 580. — Lord Brougham on this occasion said (it being a case where a 
 question arose in Scotland upon the interpretation of a will made in Eng- 
 land) ; " It is on all hands admitted, that the whole distribution of Mr. 
 Yates's personal estate must be governed by the law of England, where 
 he had his domicil through life, and at the time of his decease, and at the 
 dates of all the instruments executed by him. Had he died intestate, the 
 English statute of distributions, and not the Scotch law of succession in 
 movables would have regulated the whole course of the administration. 
 His written declarations must, therefore, be taken with respect to the 
 English law. I think it follows from hence, that those declarations of 
 intention, touching that property, must be construed as we should con- 
 strue them here by our principles of legal interpretation. Great embar- 
 rassment may no doubt arise from calling upon a Scotch Court to apply 
 the principles of English law to such questions, many of those principles 
 being among the most nice and difficult known in our jurisprudence. The 
 Court of Session may, for example, be required to decide, whether an 
 executory devise is void as being too remote, and to apply, for the purpose 
 of ascertaining that question, the criterion of the gift passing or not pass- 
 ing, what would be an estate in the realty, although in the language of 
 Scotch law there is no such expression as executory devise, and within 
 the knowledge of Scotch lawyers no such thing as an executory estate 
 tail. Nevertheless, this is a difficulty, which must of necessity be grap- 
 pled with, because in no other way can the English law be applied to per- 
 sonal property situated locally within the jurisdiction of the Scottish 
 forum ; and the rule which requires the law of the domicil to govern 
 succession to such property, could in no other way be applied and fol- 
 lowed out. Nor am I aware that any distinction in this respect has ever 
 been taken between testamentary succession and succession ab intestato, 
 or that it has been held either here or in Scotland, that the Court's right 
 to regard the foreign law was excluded, wherever a foreign instrument 
 had been executed. It is therefore my opinion, that in this as in other 
 cases of the like description, the Scotch Court must inquire of the foreign 
 law as a matter of fact, and examine such evidence as will show how in 
 England such instruments would be dealt with as to construction. I give 
 this as my opinion upon principle, for I am not aware of the question ever 
 having received judicial determination in either country. But here I 
 think the importing of the foreign code (sometimes incorrectly called the 
 comitas) must stop. What evidence the Courts of another country would 
 receive, and what reject, is a question into which I cannot at all see the 
 necessity of the Courts of any one country entering. Those principles,
 
 1030 CONFLICT OF LAWS. [CH. XVIL 
 
 may be cases which at once partake of the nature of 
 the law of evidence, and also of the substance of the 
 weightier matters of international jurisprudence.^ 
 
 which regulate the admission of evidence, are the rales, by which the 
 Courts of every country guide themselves in all their inquiries. The 
 truth with respect to men's actions, which form the subject-matter of their 
 inquiry, is to be ascertained according to a certain definite course of pro- 
 ceeding, and certain rules have established, that in pursuing this investiga- 
 tion some things shall be heard from witnesses, others not listened to ; 
 some instruments shall be inspected by the judge, others kept from his 
 eye. This must evidently be the same course, and governed by the same 
 rules, whatever be the subject-matter of investigation. Nor can it make 
 any difference, whether the facts, concerning which the discussion arises, 
 happened at home or abroad ; whether they related to a foreigner domi- 
 ciled abroad, or a native living and dying at home. As well might it be 
 contended, that another mode of trial should be adopted, as that another 
 law of evidence should be admitted in such cases. Who would argue, 
 that in a question like the present the Court of Session should try the 
 point of fact by a jury according to the English procedure, or should fol- 
 low the course of our dispositions or interrogatories in courts of equity, 
 because the testator was a domiciled Englishman, and because those 
 methods of trial would be applied to his case, were the question raised 
 here? The answer is, that the question arises in the Court of Ses- 
 sion, and must be dealt with by the rules which regulate inquiry there. 
 Now, the law of evidence is among the chief of these rules ; nor let it be 
 said, that there is any inconsistency in applying the English rules of con- 
 struction and the Scotch ones of evidence to the same matter, in investi- 
 gating facts by one law and intention by another. The difference is mani- 
 fest between the two inquiries : for a person's meaning can only be gath- 
 ered from assuming, that he intended to use words in the sense affixed to 
 them by the law of the country he belonged to at the time of framing 
 his instrument. Accordingly, where the question is, what a person in- 
 tended by an instrument relating to the conveyance of real estate situated 
 in a foreign country, and where the lex loci rei sitae must govern, we 
 decide upon his meaning by that law, and not by the law of the country 
 where the deed was executed, because we consider him to have had that 
 foreign law in his contemplation. The will of April, 1828, has not been 
 admitted to probate here ; it has not even been offered for proof, so that 
 there is no sentence of any court of competent jurisdiction upon it either 
 way. But in England it would never be received in evidence nor seen by 
 
 ^ Ibid. And see Pickering v. Fisk, 6 Vermont, R. 108, Phelps, J.
 
 CH. xvil] evidence and proofs. 1031 
 
 § 635. There are very few traces to be found in the 
 Reports of the common law of any established doc- 
 
 any Court ; neither would it have been seen if it had been proved ever so 
 formally. Our law holds the probate as the only evidence of a will of 
 personalty, or of the appointment of executors ; in short, of any disposi- 
 tion which a testator may make, unless it regards his real estate. Can it 
 be said, that the Scotch Court is bound by this rule of evidence, which, 
 though founded upon views of convenience, and for any thing I know well 
 devised, is yet one which must be allowed to be exceedingly technical, 
 and which would exclude from the view of the Court a subsequent will, 
 clearly revoking the one admitted to probate? The English Courts would 
 never lo(»k at this will, although proof might be tendered, that it had come 
 to the knowledge of the party on the eve of the trial. A delay might be 
 granted to enable him to obtain a revocation of the probate of the former 
 will. It is absurd to contend, that the Court of Session shall admit all 
 this technicality of procedure into its course of judicature, as often as a 
 question arises upon the succession of a person domiciled in England. 
 Again, there are certain rules just as strict, and many of them not less 
 technical, governing the admission of parol evidence with us. Can it be 
 contended, that, as often as an English succession comes in question be- 
 fore the Scotch Court, witnesses are to be admitted or rejected upon the 
 practice of the English Courts ; nay, that exainination and cross-examina- 
 tion are to proceed upon those rules of our practice, supposing them to be 
 (as they may possibly be) quite different from the Scotch rules ? This 
 would be manifestly a source of such inconvenience as no Court ever could 
 get over. Among other embarrassments equally inextricable there would 
 be this; that a host of English lawyers must always be in attendance on 
 the Scotch Courts, ready to give evidence, at a moment's notice, of what 
 the English rules of practice are touching the reception or refusal of testi- 
 mony, and the manner of obtaining it ; for those questions, which, by the 
 supposition, are questions of mere fact in the Scotch Courts, must arise 
 unexpectedly during each trial, and must be disposed of on the spot in 
 order that the trial may proceed. The case which I should however put 
 as quite decisive of this matter, comes nearer than any other to the one at 
 bar, and it may with equal advantage to the elucidation of the argument, 
 be put as arising both in an English and in a Scotch Court. By our Eng- 
 lish rules of evidence no instrument proves itself unless it be thirty years 
 old, or is an office copy, authorized by law to be given by the proper 
 officer, or is the London Gazette, or is by some special Act made evidence, 
 or is an original record of a Court under its seal, or an exemplification 
 under seal, which is quasi a record. By the Scotch law all instruments 
 prepared and witnessed according to the provisions of the Act of 1G81 are 
 probative writs, and may be given in evidence without any proof. Now,
 
 1032 CONFLICT OF LAWS. [CH. XVIL 
 
 trines on this subject. We have already seen in regard 
 to witnesses generally, that their competency is go- 
 verned in common cases by the Lex fori} But, suppose 
 the only witness to a contract, written or verbal, was 
 incompetent on account of interest by the common law, 
 but competent by the law of the place of the contract ; 
 in a suit in a tribunal of the common law on the con- 
 tract, ought his testimony to be rejected ? Again ; 
 suppose that the books of account of merchants, which 
 (as is well known^) are by the laws of some states ad- 
 missible, and by those of other states inadmissible, as 
 evidence, are offered in the forum of the latter to esta- 
 
 suppose a will of personalty or any other instrument relating to personal 
 property, attested by two witnesses and executed in England according to 
 the provisions of the Scotch Act, as tendered in evidence before the 
 Court of Session ; it surely never will be contended that the learned 
 Judges, on being satisfied, that the question relates to English personal 
 succession, ought straightway to examine what is the English law of evi- 
 dence, and to require the attendance of one or other of the subscribing 
 witnesses, where the instrument is admissible by the Scotch law as pro- 
 bative. Of this I can have no doubt. But suppose the question to arise 
 in England, and that a deed is executed in Scotland according to the Act 
 of 1681, by one domiciled here, would any Court here receive it as prov- 
 ing itself, being only a year old, without calling the attesting witnesses ; 
 it would have a strange effect to hear the circumstance of there being two 
 subscribing witnesses to the instrument, which makes it prove itself in the 
 Parliament House of Edinburgh, urged in Westminster Hall as the ground 
 of its admission, without any parol testimony. The Court would inevita- 
 bly answer, ' two witnesses ; — then, because there are witnesses, it can- 
 not be admitted, but they must, one or other of them be called to prove 
 it.' The very thing that makes the instrument prove itself in Scotland, 
 makes it in England necessary to be proved by witnesses. I have, there- 
 fore, no doubt whatever, that the rules of evidence form no part of the 
 foreign law, according to which you are to proceed in disposing of Eng- 
 lish questions arising in Scotch Courts." 
 
 1 Ante, ^ 621 to ^ 623. 
 
 2 See Pothier on Oblig. P. 4, ch. 1, art. 2, § 4, n. 719 ; Cogswell v. 
 Dolliver, 2 Mass. R. 217; 1 Starkie on Evid. Pt.2, ^ 130, 131 ; Strykius, 
 Tom. 7, Diss. 1, ch. 4, § 5. 
 
 i
 
 CH. XVII.] EVIDENCE AND PROOFS. 1033 
 
 blish debts contracted in the former j ought they to be 
 rejected ? ' 
 
 § 635 a. Cases, vice versa, may easily be put, which 
 will present questions quite as embarrassing. Thus, 
 for example, let us suppose the case of a crime, com- 
 mitted on board an American ship on the high seas by 
 a white man, or upon a white man, and the principal 
 witnesses of the offence are black men, either free or 
 slaves ; and suppose, (as is or may be the fact,) that in 
 the slaveholding States black men are competent wit- 
 nesses only in cases in which black men are parties, 
 and not in cases where white men are parties ; and in 
 the non-slaveholding States black men are in all cases 
 competent witnesses. If the offender is apprehended 
 and tried for that offence before a Court of the Uni- 
 ted States in a slaveholding State, would the black men 
 be witnesses or not ? If not there, would they be wit- 
 nesses in the case, if the trial were in a non-slaveholding 
 State ? In other words, will the rules of evidence in 
 such a case, in the Courts of the United States, depend 
 upon the rules of evidence in the State where the trial 
 is had ? If not, then what rules of evidence are to 
 prevail ? The answer in the present state of our law 
 cannot be given with entire confidence, as to its accu- 
 racy and universality of adoption. 
 
 § 635 b. Lord Brougham, in a recent case, where the 
 question was much considered, both as to the law of 
 
 1 Upon this very point foreign jurists have delivered opposite opinions, 
 as appears from Hertius, who, however, abstains from giving any opinion 
 on the subject. 1 Herlii, Opera, De Collis. Leg. § 4, n. 68, p. 152, edit. 
 1737; Id. p. 214, edit. 1716 ; 4 Burge, Comm. on Col. and For. Law, Pt. 
 2, ch. 3, ^ 5, p. 153. Paul Voet thinks they are to be deemed prima facie 
 evidence, but not conclusive. P. Voet, De Stat. ^ 5, ch. 2, n. 9, p. 160, 
 edit. 1715 ; Id. p. 183, edit. 1661. 
 
 CONFL. 87
 
 1034 CONFLICT OF LAWS. [CH. XVII. 
 
 procedure and the rules of evidence on foreign contracts, 
 sued in another country, used the following language. 
 '• No one will contend in terms, that the foreign rules of 
 evidence should guide us in such cases ; and yet it is not 
 so easy to avoid that principle in practice, if you once 
 admit, that though the remedy is to be enforced in one 
 country, it is to be enforced according to the laws which 
 govern another country. Look to the rules of evidence, 
 for exauiple. In Scotland some instruments are proba- 
 tive ; in England, until after the lapse of thirty years, 
 they do not prove themselves. In some countries forty 
 years are required for such a purpose ; in others thirty 
 are sufficient. How, then, is the law to be ascertained, 
 which is to govern the particular case ? In one court 
 there must be a previous issue of fact ; in another there 
 need be no such issue. In the latter, then, the case 
 must be given up as a question of evidence. Then 
 come to the law. The question, whether a parol agree- 
 ment is to be given up, or can be enforced, must be 
 tried by the law of the country, in which the law is set 
 in motion to enforce the agreement. Again, whether 
 payment is to be presumed, or not, must depend on the 
 law of that country ; and so must all questions of the 
 admissibility of evidence ; and that clearly brings us 
 home to the question on the Statute of Limitations. 
 Until the Act of Lord Tenterden, a parol agreement or 
 promise was sufficient to take the case out of the Sta- 
 tute of Limitations ; but that has never been the case 
 in Scotland. It is not contended here, that the practice 
 of England is applicable to Scotland, but these are illus- 
 trations of the inconvenience of applying one set of 
 rules of law to an instrument, which is to be enforced 
 by a law of a different kind." ^ 
 
 ^ Don V. Lippmann, 5 Clark & Finnell. p. 15 ; Id. p. 17. See Yates 
 V. Thomson, 3 Clark & Finnell. 544.
 
 CH. XVII.] EVIDENCE AND PROOFS. 1035 
 
 § 635 (?. In many foreign countries original contracts, 
 deeds, conveyances, and other solemn instruments 
 are often written in tlie public books of notaries 
 public, and executed and registered and kept there, 
 and are not allowed to be given out to the parties ; 
 but certified copies only thereof are delivered to 
 the parties, and these copies are deemed in such 
 countries admissible evidence in all suits to esta- 
 blish and prove such original papers and docu- 
 ments. The question has arisen in England, whether 
 such copies, so certified, are admissible, either as ori- 
 ginal, or as secondary evidence in suits pending in the 
 English Courts. It has been held, that they ar-e not ; 
 at least, not without proof, that they were made at the 
 time of entering and registering the original paper, and 
 in the presence of the parties, although they were ad- 
 missible in the country where the originals were ex- 
 ecuted. The ground of this decision seems to have 
 been, that the rules of evidence of the foreign country 
 were not to be followed, but the rules of evidence of 
 England ; and by the law of England copies of original 
 documents were not admissible under such circum- 
 stances, unless proved by some witness, who had com- 
 pared them with the original, as in common cases.^ So, 
 upon the like ground, it has been held, that copies of a 
 judgment of the Supreme Court of Jamaica, signed by 
 the Clerk thereof, are not admissible evidence in a suit 
 in England, although such copies would be admissible 
 in Jamaica.^ 
 
 1 Brown V. Thornton, 6 Barn. & Adolph. 185. 
 
 2 Appletoni'. Lord Braybrook, 6 Maule & Selw. 34 ; Black v. Lord 
 Braybrook, G Maule & Selw. 39. In a recent case Vice Chancellor Bruce 
 held, that a copy of a deed of real estate in Jamaica taken from the Regis- 
 try in Jamaica, in which it is required to be recorded, was good evidence 
 in Chancery in England in a suit, where it was pertinent, although it was
 
 1036 CONFLICT OF LAWS. [CH. XVII. 
 
 § 635 d. By the old law of Louisiana, in case the 
 party formally disavowed his signature to an instru- 
 ment, proof thereof was required to be made by ex- 
 perts.^ In a case, where a written paper or receipt w^as 
 executed in the State of Mississippi, and a suit brought 
 thereon in Louisiana, and the signature was disavowed ; 
 the question arose, whether the proof of the signa- 
 ture in such a case was to be made by experts, 
 or might be made by witnesses, as was the law 
 of Mississippi. The Court on that occasion said ; 
 "In treating of the third and last question," (that is, 
 the question now under consideration,) " it is proper to 
 observe, that we believe it to be admitted as a principle, 
 in all tribunals, that the Lex loci, or law of the country 
 where the contract is made, ought to govern in suits 
 commenced in any other country on such contracts -, 
 and it does appear by a law of the Partidas, that 
 this principle extends even to the proof of the con- 
 tract, expressed in general terms, which might per- 
 haps be applied to the mode of proving facts, as well 
 as to the amount of evidence necessary to their verifi- 
 cation. But it is unnecessary to determine this point 
 absolutely, in the present case, because there is suffi- 
 ciently found in the determination of the first and 
 second questions, on which to decide against the opi- 
 nion of the Judge of the District Court." ^ From this 
 language, it would seem to have been the inclination of 
 the Court to admit the evidence. 
 
 a copy of a copy, i. e. of the registered deed, because it would be admissi- 
 ble in evidence in Jamaica. Tulloch v. Hartley, 1 Y. & Coll. New Cas. 
 Ch. 114, 115. 
 
 1 Code of Louis. 1809, art. 226. 
 
 2 Clark's Ex'or. v. Cochran, 3 Martin, R. 353, 361, 362. See also 
 Wilcox V. Hunt, 13 Peters, R. 378.
 
 CH. XVII.] EVIDENCE AND PROOFS. 1037 
 
 [§ 635 e. This question was much discussed in a very 
 recent case in the House of Lords, where the rule was 
 fully recognized and acted upon, that the lex fori must 
 govern as to the admission of evidence, and Lord 
 Brougham observed in giving judgment; "As to the 
 stipulations of a contract made abroad, our courts are 
 bound by foreign law, which must be to them a matter 
 of f)ict. But it is a totally different thing as to the 
 law of evidence. The law of evidence is the lex fori 
 which o;overns the Courts. Whether a witness is com- 
 petent or not ; whether a certain matter requires to be 
 proved by writing or not ; whether a certain evidence 
 proves a certain fact or not ; that is to be determined 
 by the law of the country where the question arises, 
 where the remedy is sought to be enforced ; and where 
 the Court sits to enforce it." ^] 
 
 § 636. In regard to wills of personal property made 
 in a foreign country, it would seem to be almost a mat- 
 ter of necessity to admit the same evidence to establish 
 their validity and authenticity abroad, as would esta- 
 blish them in the domicil of the testator ; for otherwise 
 the general rule, that personal property shall pass 
 everywhere by a will made according to the law of the 
 place of the testator's domicil, might be sapped to its 
 very foundation, if the law of evidence in any country, 
 where such property was situate, was not precisely the 
 same as in the place of his domicil. And, therefore, 
 parol evidence has been admitted in courts of common 
 law to prove the manner in which the will is made and 
 proved in the place of the testator's domicil, in order to 
 
 ^ Bain v. Whitehaven & Furness R. Co. 3 House of Lords Cases, I, 
 19. And see Yates f. Thompson, 3 Clark & Finn. 544. 
 
 87*
 
 1038 CONFLICT OF LAWS. [CH. XVII. 
 
 lay a suitable foundation to establish the will else- 
 where.' 
 
 § 637. Passing from this most embarrassing, and as 
 yet (in a great measure) unsettled class of questions, 
 let us consider in what manner courts of justice arrive 
 at the knowledge of foreign laws. Are they to be ju- 
 dicially taken notice of? Or, are they to be proved as 
 matters of fact? The established doctrine now is, that 
 no court takes judicial notice of the laws of a foreign 
 country, but they must be proved as facts.^ 
 
 § 638. But it may be asked, whether they are to be 
 proved as facts to the jury, if the case is a trial at the 
 common law, or as facts to the court ? It would seem 
 as facts to the latter ; for all matters of law are pro- 
 perly referable to the court, and the object of the 
 proof of foreign laws is to enable the court to instruct 
 the jury, what, in point of law, is the result of the fo- 
 reign law to be applied to the matters in controversy 
 before them. The court are, therefore, to decide, what 
 is the proper evidence of the laws of a foreign country ; 
 and when evidence is given of those laws, the court are 
 to judge of their applicability, when proved, to the case 
 
 1 De Sobry v. De Laistre, 2 Harr. & Johns. 101, 195. See Yates v. 
 Thomson, 3 Clark Ai Finnell. 544, 574. 
 
 2 See Mostyn v. Fabrigas, Cowp. 175 ; Male v. Robjerts, 3 Esp. R. 163; 
 Douglas V. Brown, 2 Dow & Clark, R. 171 ; De Sobry v. De Laistre, 3 
 Harr. & Johns, R. 193 ; Trasher v. Everhart, 3 Gill & Johns. R. 2c4 ; 
 Brackett v. Norton, 4 Connect. R. 517 ; Talbot v. Seeman, 1 Cranch, 38 ; 
 Church V. Hubbart, 2 Cranch, 187, 236, 237; Andrews v. Herriott, 4 
 Covven, R. 515, 516, note ; Starkie on Evid. Pt. 2, § 33 ;Id. § 92 ; Id. Tt. 
 4, p, 569 ; Conseequa v. Willings, Peters's Cir. R. 229 ; Legg v. Legg 8 
 Mass. R. 99 ; Robinson v. Danchy, 3 Barbour, 20 ; Tyler v. Trabue, 8 B. 
 Monroe, 306 ; Territt v. Woodruff, 19 Vern. R. 182 ; Hosfordv. Nichols, 
 1 Paige, R. 220.
 
 CH. XVII.] EVIDENCE AND PROOFS. 1039 
 
 in hand.' [But the construction given to a foreign sta- 
 tute, in the foreign country, is a question of fact for the 
 Jury.2 
 
 § 639. As to the manner of proof, this must vary ac- 
 cording to circumstances. The general principle is, 
 that the best testimony or proof shall be produced, 
 which the nature of the thing admits of ; or, in other 
 words, that no testimony shall be received, which pre- 
 supposes better testimony behind, and attainable by the 
 party who offers it. This rule applies to the proof of 
 foreign laws, as well as of other facts. But to require 
 proof of such laws by such a species of testimony as the 
 
 1 De Sobry v. De Laistre, 2 Harr. & Johns. 193, 219. But see Brack- 
 ett V. Norton, 4 Connect. R. 517. — In Trasher v. Everhart, (3 Gill & 
 Johns. 234, 242) the Court said ; " It is in general true, that foreign laws 
 are facts which are to be found by the jury. But this general rule is not 
 applicable to a case, in which foreign laws are introduced for the purpose 
 of enabling the Court to determine, whether a written instrument is evi- 
 dence. In such the evidence always goes in the first instance to the 
 Court, which, if the evidence be clear and uncontradicted, may, and ought 
 to decide, what the foreign law is, and, according to its determination on 
 that subject, admit or reject the instrument of writing as evidence to the 
 jury. It is offered to the Court to determine a question of law, — the ad- 
 missibility or inadmissibility of certain evidence to the jury. It is true, 
 that if, what the foreign law is, be a matter of doubt, the Court may de- 
 cline deciding it, and may inform the Jury, that if they believe the foreign 
 law, attempted to be proved, exists, as alleged, then they ought to receive 
 the instrument in evidence. On the contrary, if they should believe, that 
 such is not the foreign law, they should reject the instrument as evidence. 
 Is not foreign law offered in all cases to instruct the Court in mattf?rs of 
 law, material to the point in issue ? Can the Court properly leave it to 
 the jury to find out, what the law is, and apply it to the case? Lord 
 Mansfield in Mosiyn v. Fabriijas (Cowper, R. 174) said ; " The way of 
 knowing foreign laws is by admitting them to be proved as facts ; and the 
 Court must assist the jury in ascertaining what the law is. In the absence 
 of other proof, the Court will treat tiie foreign law as being like our law 
 as to liabilities on contracts and interest " Leavenworth v. Brockway, 2 
 Hill, N. Y. Rep. 201 ; Robinson v. Danchy, 3 Barbour, 20. 
 
 2 Holman v. King, 7 Melc. 384.
 
 1040 CONFLICT OF LAWS. [CH. XVll. 
 
 institutions and usages of the foreign country do 
 not admit of, would be unjust and unreasonable. In 
 this, as in all other cases, no testimony is required, 
 which can be shown to be unattainable.' 
 
 § 640. Generally speaking, authenticated copies of 
 the written laws, or of other public instruments of a 
 foreign government are expected to be produced. For 
 it is not to be presumed, that any civilized nation will 
 refuse to give such copies duly authenticated, which 
 are usual and necessary for the purposes of administer- 
 ing justice in other countries. It cannot be presumed, 
 that an application to a foreign government to authen- 
 ticate its own edict or law will be refused ; but the fact 
 of such a refusal must, if relied on, be proved. But if 
 such refusal is proved, then inferior proofs may be ad- 
 missible.^ Where our own government has promul- 
 gated any foreign law or ordinance, of a public nature, 
 as authentic, that may of itself be sufficient evidence 
 of the actual existence, and terms of such law or ordi- 
 nance.^ 
 
 § 641. In general, foreign laws are required to be 
 verified by the sanction of an oath, unless they can be 
 verified by some other high authority, such as the law 
 respects, not less than it respects the oath of an indi- 
 vidual.^ Th'e usual mode of authenticating foreign 
 laws (as it is of authenticating foreign judgments) is 
 by an exemplification of a copy under the great seal of 
 
 1 Church V. Hubbart, 2 Cranch, R. 237 ; Isabella v. Pecot, 2 Louis. 
 Ann. R. 391. 
 
 2 Church V. Hubbart, 2 Cranch, 237, 238. 
 
 3 Talbot V. Seeman, 1 Cranch, R. 39. 
 
 4 Church V. Hubbart, 2 Cranch, R. 237 ; Brackett v. Norton, 4 Conn. 
 R. 517 ; Hempstead v. Reed, 6 Conn. R. 480 ; Dyer v. Smith, 12 Conn. 
 R. 384. 
 
 i
 
 CH. XVII.] EVIDENCE AND PROOFS. 1041 
 
 a state ; or by a copy proved to be a true copy by a 
 witness, who has examined and compared it with the 
 original ; or by the certificate of an officer properly 
 authorized by law to give the copy ; which certifi- 
 cate must itself also be duly authenticated.^ 
 
 [§ 641 a. In many American States, by express sta- 
 tutory enactment, printed copies of the statutes of any 
 other State, purporting to be published by authority, are 
 admitted as^;r/;«a/rt(?/e evidence of such laws ;^ but inde- 
 pendent of such provision, foreign written laws can be 
 proved only by an exemplification properly certified, 
 and the printed statute books of such State are not ad- 
 missible.^] 
 
 § 642. But foreign unwritten laws, customs, and 
 usages, may be proved, and indeed must ordinarily be 
 proved, by parol evidence. The usual course is to 
 make such proof by the testimony of competent wit- 
 nesses, instructed in the laws, customs, and usages 
 under oath.* [The knowledge required of the witness 
 must, it seems, have been acquired by actual experi- 
 ence and practice in the foreign country, and not by 
 mere theoretical instruction in a foreign University.^] 
 
 1 Church V. Hubbart, 2 Cranch, R. 238 ; Packard v. Hill, 2 Wend. R. 
 411 ; Lincoln v. Battelle, 6 Wend. R. 475. 
 
 2 Maine Rev. Stat. c. 133, s. 47 ; Conn. Rev. Stat. c. 10, s. 131 ; Com- 
 paret v Jernegan, 5 Blackf. 375. 
 
 3 Packard v. Hill, 2 Wend. 411 ; Chanoine v. Fowler, 3 Wend. 173 ; 
 Church r. Hubbart, 2 Cranch, 236 ; State v. Tvvitly, 2 Hawks, 441; 
 Bailey v. McDowell, 2 Harring. 34. 
 
 4 Church V. Hubbart, 2 Cranch, R. 237 ; Dalrymple v. Dalrymple, 2 
 Hagg. R. Appx. p. 15 to 144 ; Brush v. Wilkins, 4 Johns. Ch. R. 520; 
 Kenny v. Clarkson, 1 Johns. 385, 394 ; Hosford v. Nichols, 1 Paige, 220; 
 Isabella v. Pecot, 2 Louis. Ann. R. 391 ; Baron De Bodis' Case, 8 Q. B. 
 E,. 208; Mostyn v. Fabrigas, Cowper, R. 174. 
 
 5 Bristovv r. Secquevillc, 19 Law Journ. Ex. 289. But see Vander- 
 donckt V. Thellusson, Id. C. P. 2.
 
 1042 CONFLICT OF LAWS. [cH. XVIL 
 
 Sometimes, however, certificates of persons in high 
 authority have been allowed as evidence without other 
 proof.^ [And it has been thought that the peculiar re- 
 lation in which the American States stand to the com- 
 mon law of England might require some modification of 
 the rule first above laid down ; ^ and in Louisiana, it 
 has been held that the Courts of that State would not 
 require proof of the common law, but would gather it 
 from the most authentic books and treatises on that 
 subject.^] 
 
 § 643. It seems that the public seal of a foreign 
 sovereign, afiixed to a writing purporting to be a writ- 
 ten edict, or law, or judgment, is of itself the highest 
 evidence of its authority ; and the courts of other coun- 
 tries will judicially take notice of such public seal, 
 which is therefore considered as proving itself* [So, in 
 America, the seal of one State afiixed to an act of the 
 legislature, proves itself, and imports absolute verity in 
 the courts of another State ; but such seal must be a 
 seal valid at common law, and not merely an impression 
 on paper, which in some States is made a valid seal for 
 some purposes.^] But the seal of a foreign court does 
 not prove itself; and therefore it must be established 
 
 1 In re Dormay, 3 Hagg. EccL R. 767, 769 ; Rex v. Pictou, 30 How- 
 ell's Slate Trials, 515 to 573 ; The Diana, 1 Dods. R. 95, 101, 10-2. 
 
 2 Carnegie v. Morrison, 2 Mete. 404, Shaw, C. J. 
 
 3 Young V. Templeton, 4 Louis. Ann. R. 254. 
 
 ** Lincoln v. Battelle, 6 Wend. R. 575 ; Griswold v. Pitcairn, 2 Conn. 
 R. 85; Church r. Hubbart, 2 Cranch, 238, 239; Anon. 7 Mod. R. 66; 
 United States v. Johnson, 4 Dall. 416 ; Appleton r. Lord Braybrook, 6 
 Maule & Selw. 34 ; Black v. Lord Braybrook, 6 Maule & Selw. 39. 
 
 ^ Coit V. Millikin, 1 Denio, 376. And see Bank of Rochester r. Gray, 
 2 Hill, N. Y. R. 227 ; Farmers & Manuf. Bank v. Haight, 3 Hill, N. Y. 
 R. 493.
 
 CH. XVII.] EVIDENCE AND PROOFS. 1043 
 
 as such by competent testimony.^ There is an excep- 
 tion to this rule in favor of Courts of Admiralty, which 
 being courts of the law of nations, the courts of other 
 countries will judicially take notice of their seal with- 
 out positive proof of its authenticity.^ 
 
 § 644. The mode by which the laws, records, and 
 judgments of the different States composing the Ame- 
 rican Union, are to be verified, has been prescribed by 
 Congress, pursuant to an authority given in the Con- 
 stitution of the United States. It is, therefore, wholly 
 unnecessary to dwell upon this subject, as these regula- 
 tions are properly a part of our own municipal law, and 
 do not strictly belong to a treatise on international law.^ 
 
 § 645. And here , these Commentaries on this inte- 
 resting branch of public law are brought to a close. It 
 will occur to the learned reader, upon a general survey 
 of the subject, that many questions are still left in a 
 distressing state of uncertainty, as to the true princi- 
 ples which ought to regulate and decide them. Differ- 
 ent nations entertain different doctrines and different 
 usages in regard to them. The jurists of different coun- 
 tries hold opinions opposite to each other, as to some of 
 the fundamental principles which ought to have a uni- 
 versal operation ; and the jurists of the same nation are 
 sometimes as ill agreed among themselves. StilL how- 
 
 1 Starkieon Evid. Pt. 2, ^ 92 ; Delafield r. Hurd,3 Johns. R. 310; De 
 Sobry V. De Laistre, 2 Harr. & Johns, R. 193 ; Henry v. Adey, 3 East, 
 R. 221 ; Andrews v. Herriott, 4 Cowen, R. 526, note. 
 
 2 See Yeaton v. Fry, 5 Cranch, 335 ; Thomson v. Stewart, 3 Conn. R. 
 171. 
 
 ^ See on this subject the Act of Congress of 2Gth of May, 1790, ch. 
 11, and the Act of Congress of the 27th of March, 1801, ch. 56 ; 3 Story, 
 Com. on Const. ^ 1297 to 1307; Andrews v. Herriott, 4 Cowen, R, 526, 
 527, note.
 
 1044 CONFLICT OF LAWS. [CH. XVII. 
 
 ever^, with all these deductions, it is manifest, that many 
 approximations have been already made towards the 
 establishment of a general system of international juris- 
 prudence, which shall elevate the policy, subserve the 
 interests, and promote the common convenience of all 
 nations. We may thus indulge the hope, that at no 
 distant period, the comity of nations will be but another 
 name for the justice of nations ; and that the noble 
 boast of the great Roman Orator may be in some mea- 
 sure realized : — Non erit alia lex Romw, alia Athenis, alia 
 nunc, alia posthae ; sedet omnes gentes et omni tempore una 
 Lex, et sempiterna, et immortalis, contineUt} 
 
 1 Cicero, Fragm. de Repub. 
 
 I
 
 INDEX. 
 
 TUK FIGUKKS UEFEU TO THE SECTIONS. 
 
 ACCEPTANCES, of different obligation in England and 
 
 Leghorn .... 265 
 
 by what law governed . .317, 333, 344 
 
 ACCOUNT, BOOKS OF, when admissible evidence 634, 634 a, 635 c 
 
 ACTIONS, real, in the Eoman Law, what . . . 530 
 
 personal ...... 530 
 
 mixed ... ... 530 
 
 where brought by the Roman Law . . 531-537 
 
 division of, by BouUenois .... 552 
 
 ACTS done, validity of depends on lex loci . . G2, 77, 97 
 
 ADMINISTRATORS AND EXECUTORS, 
 
 who correspond to under the Roman Law . . 508 
 
 their title good, all the world over, according to 
 
 Lord Kames . . . . . 511 
 
 their title does not extend beyond their territory . 512 
 no suit can be brought by or against them, in 
 
 virtue of foreign letters , . 513 - 514 h, 515 
 
 ancillary, funds collected by, to what debts ap- 
 propriated . . . . . 513, 514 /> 
 
 collecting debts in another state, liable dc .so)i 
 
 tort. ...... 514 
 
 whether liable for assets received abroad and 
 
 brought into such state . . . .514/' 
 
 foreign, voluntary payment to, Avhen a valid dis- 
 charge . . . . 515 
 
 Avhere they remit property to pay legacies 515, 51 5« 
 may sue in their own names, for person- 
 al property reduced into possession . 516 
 
 CONFL. 88
 
 1046 INDEX. 
 
 ADMINISTRATOES AND EXECUTORS, (contmueJ.) 
 foreign, may sue in their own names upon nego- 
 tiable notes . . . . 517 
 
 ancillary, are subordinate . . . .518 
 
 ■where property of the deceased is in transitu at 
 
 his death ..... 519-5-21 
 
 case of stage-coaches in different states, &c. be- 
 longing to the deceased .... 521 
 
 ancillary, force of judgment against . . 522 
 
 where real securities are converted into personal 
 
 assets ...... 523 
 
 ■what law is to govern the priority of debts and 
 
 the marshalling of assets . . . 52-4-527 
 
 Avhich estate shall be charged with debts 485-489, 528, 529 
 
 ADmRALTY, COURT OF, judgments of in rem . . 592 
 
 the effect of its seal . 643 
 
 ADVANCES, MUTUAL, by merchants of different countries 283 
 
 AGENT, FOREIGN, contracts made by . . .285 
 
 ALIEN, dowable according to the lex rei slice . . . 448 
 
 ALLEGIANCE, natural, what . . . . 21 
 
 local, what . . . . .22 
 
 AMBASSADORS, retain their domicil ... 48 
 
 ANCILLARY ADMINISTRATORS. {See Administkatoks.) 
 ANTENUPTIAL OFFSPRING, their legitimation by the 
 
 Scotch law . . 87 
 
 ARREST, when It belongs to the remedy . . 568 - 571 
 
 ASSETS, DOMESTIC, how affected by foreign administra- 
 tions . . . 513, 514 
 ASSIGNEE OF DEBT, when he may sue In a foreign 
 country in his own name, or 
 not . 355,398,399,399 0,565,566 
 ASSIGNEES OF B.^"KRUPT, whether they can sue In 
 
 their own names in a foreign country 410, 420, 560 
 ASSIGNMENT OF DEBTS, by what law governed 398 - 400, 505-567 
 
 notice of, when necessary to 
 
 debtor 395, 398, 399 a, 565, 566 
 
 ASSIGNMENTS, of foreign liabilities, right to sue upon 355-360 
 
 of an Irish Judgment . . 355, 566 
 
 general imder Bankrupt and Insolvent 
 
 laws, effect of . . . 403-423// 
 
 {See BANKRurx Laws.) 
 
 by marriage .... 423 
 
 ATTACHMENT, before notice of an assignment . . . 395 
 
 ATTAINDER, disability from .... 620 
 
 AUTHENTICATIONS of contracts must be according to 
 
 the lex loci . . 259 a, 630 h, 634
 
 INDEX. 
 
 B. 
 
 1047 
 
 BALANCES between raercliants ol' dificrent countries . 283 
 
 BANK STOCK, its locality . • • • .38;! 
 
 BANKRUPT LAWS, FOREIGN, 
 
 discharges under .... 338 
 
 assignments under . . . ■ • 403 
 
 whetlier they have a universal operation 403, 40-1 
 
 opposite opinions of English and American Courts 403 
 
 reasoning of the English Courts in favor of their 
 
 universality .... 403-408 
 
 authorities in support of the English doctrine 407, 408 
 
 opinion of Lord Eldon . • • .408 
 
 propositions established in the English doctrine 409 
 
 reasoning of the American Courts against their 
 
 universality . . • • 410-417 
 
 contrary doctrine hold in France and Holland . 417 
 
 where confirmatory conveyance by bankrupt to 
 
 his assignees . . • • . 41S 
 
 •whether they operate a transfer of personal 
 
 property in this country . • 419 -423 /t 
 
 priority of domestic creditors . • 408-423// 
 
 case of bankrupt partners resident in different 
 
 countries . . . • • 4-- 
 
 BENEFIT OF INVENTORY, what . • • ' ^t^ 
 
 " BIENS," its meaning with the civilians . . 13, 14G, 375 
 
 BILL OF LADING,— contract of what place 
 BILLS OF EXCHANGE, with blanks to be filled in a fo- 
 reign country . - • 289 
 damages upon . • • 314-320 
 when payable and indorsed in dif- 
 ferent countries . . • 317 
 how governed as to the incidents 
 
 of payment . • 347, 3G0, 3G1 
 
 their protest, by what laAv governed 3G0, G30 
 notice of protest, by what law go- 
 verned . • • • 300 
 (See Negotiable Ixstruments.J 
 BIRTH-PLACE, how it ali'ects domicil . • • .40 
 
 citizenship ... 48 
 
 BLOOD RELATIONS, marriage between • 114, 114 a, 115 
 
 " BONA," its meaning with the civilians • • • 375 
 
 BONDS, HERITABLE, what in Scotch law . • . 36G 
 
 whether payable out of the real or 
 
 personal estate 48G, 487, 488, 489, 529 
 
 BOOKS OF ACCOUNT, when admissible evidence • G34, G35 c
 
 1048 INDEX. 
 
 BOULLEXOIS, Mr. Henry has borrowed from . . 14, 581 
 
 his principles as to territorial jurisdiction . Id 
 
 capacity of persons . 57, 58 
 
 foreign contracts . . 240 
 
 foreign judgments . 613, 614 
 
 BRIDGE SHAEES, their locality ^ . . . .383 
 
 CANAL SHARES, their locality . . ; . 383 
 
 CAPACITY OF PERSONS . . . . 50-106 
 
 laws regulating, treated by the civilians as personal . 5 1 
 of two sorts . . . .51 
 
 universal, what . . . 51 
 
 special, what . . . .51 
 
 determined by the original domicil . . 51 
 
 disagi'eeing opinions of the foreign jurists . 51 a - 63 
 as to minority and majority . 51 a, 55, 55 a, 71 
 
 distinctions as to, between movables and im- 
 movables . . . 52-54,367,368,369 
 where a change of domicil . . .55-63 
 opinions of BouUenois and Mei'lin . . 57,58 
 Huberus . . . .60-62 
 best established doctrines . . . 63-99 
 acts done in the place of domicil to be judged 
 
 of by the laws there ... 64 
 
 capacity of the domicil is deemed to exist every- 
 where, the domicil being unchanged . . 65-68 
 modern law of France on this point . . 68 
 the domicil being changed, the capacity is changed 69 
 distinction noticed on this point . . 70, 71 
 reasons of the civilians on fixing the age of 
 
 majority . . . . . 72, 73 
 
 no universal rules on this subject . . 73-70 
 
 opinions of the Supreme Court of Louisiana 
 
 examined . . . . 75-78 
 
 English rule as to capacity to marry . . 79-81 
 
 case of British minor intermarrying in France 80-81 
 
 law of actual domicil of universal obligation . 81 
 
 different opinion of the foreign jurists . 82-85 
 
 general principles in England as to capacity to 
 
 marry . . . 85-88 
 
 in the American Courts . 89 
 
 disabilities from minority in Continental Europe 90 
 
 infancy ' . . . 90, 91, 103 
 
 outlawry, &c. in England . 92
 
 INDEX. 
 
 1049 
 
 CAPACITY OF PERSONS, (con:inund.) 
 
 disabilities from illegitimacy, according to the 
 
 foreign jurists . . • 93-94 
 
 cau.sa jyrofessionis, as of monks . 94 
 
 slavery ... 90, 9G a, 104 
 
 idiocy, insanity, and prodigality 99 - 106 
 
 ubiquity of the law of domicil denied by the 
 
 Scotch Court . . . . .97 
 
 rules established in England and America . 100-106 
 
 whether sentences touching arc conclusive 593, 594, 595 
 
 CATHOLICS, their views on divorces ... 210 
 
 CESSIO BONOKUM, what 339 
 
 CHAjSICERY, its jurisdiction over foreign lands and persons 543 - 545 
 does not act directly upon foreign lands . . 545 
 
 CHARGES on Lands, how to be borne . 366, 367, 486 - 489 c 
 
 CHARITIES for foreign purposes, when valid . . 479 cZ 
 
 CIIOSES IN A CTION, not assignable by the Common • 
 
 Law .... 353 — 360, 365 
 
 due by foreign debtors, assignment of . . 395, 396 
 
 assignment of, according to the law of the 
 
 owner's domicil . . . . .397 
 
 CITATIONS VII S ET MODIS, by what law their priority 
 
 is determined .... 546, 547, 576 
 jurisdiction given by . . . . 546, 547 
 
 CITIZENS, who are 48 
 
 jurisdiction over . . . . , 540 
 
 CIVILIANS use the term, mixed questions ... 9 
 
 their discussions of the Conflict of Laws . . 11 
 
 their division of Statutes . . . . 12 
 
 object in using their works . . . .16 
 
 their systems on the Conflict of La'ys . . 26 
 
 their views as to the capacity of persons . . 50, 51 
 
 as to fixing the age of majority . 72, 73 
 
 on foreign contracts . . 233-240 
 
 CIVIL DEATH, disability from . . . • 620 
 
 COHABITATION, illicit, foreign contracts for . . . 258 
 
 COLLISION of Ships of different Nations on the high seas, 
 
 what rule is to govern in case of a conflict 
 
 of laws 423 f/, 423 h 
 
 COMITY OF NATIONS, its relation to questions of Con- 
 
 Jiict of laws ..... 28 
 
 question as to the propriety of this phrase . 33-38 
 
 a proper phrase ..... 38 
 
 not the comity of courts ... 38 
 
 as to the extra-territorial force of laws 33-38, 278 
 
 as to Bankrupt Laws . . - 349-351,414 
 
 83*
 
 1050 
 
 INDEX. 
 
 COMITY OF NATIONS, (continued.) 
 
 what it allows, as to movables . . 471,472 
 
 COMMERCIAL AGENTS, their domicil . . . 48 
 
 CO^DIERCIAL CONTRACTS, their interpretation . 277-278 
 
 COMMON LAW, the Roman Law so called . . 12 
 
 COMMUNITY, LAW OF, what . . . 130,131a 
 
 to what property applied . 148 - 159 
 
 general result . . 158, 159 
 
 whether real or personal . 172-177 
 
 does not attach to immovables 
 
 • under the Common law . 454 
 
 COMPENSATION by the Roman Law . . .575 
 
 COMPETENCY^ OF A WITNESS, convict of an infamous 
 
 crime in another State 620-623 
 CONFLICT OF LAWS, supposed by Huberus not to occur 
 
 often under the Romans .... 2 
 
 traces of, in the Digest .... 2 
 
 importance of rules relating to . . . 5, 9 
 
 examples of questions of . . . 6 
 
 questions of, of frequent occurrence . . 6, 7 
 
 interesting to the United States . . 9 
 not systematically treated by writers of 
 
 the Common Law . . . . 10 
 
 little cultivated in England . . . .10 
 
 minutely discussed by the civilians . . 11 
 
 general maxims of . . . . 1 7 - 38 
 
 who is to determine what law shall govern 23, 24, 25 
 
 the power given to the Courts in France early . 24 
 
 in England and 
 
 America . . 24 
 difficult tok ascertain the proper principles to 
 
 govern cases of . . . . .25-28 
 
 variety of laws ..... 25 
 
 systems of the civilians, as to . . . 26 
 
 governed much by the comity of nations . 28 - 38 
 
 not by the comity of courts . . 38 
 
 the axioms of Huberus ... 29 
 
 Hertius .... 30 
 
 Huberus undervalued . . . . 31 
 
 domestic laws prevail over foreign 326, 327, 327 a, 3276 
 
 CONSENSUAL CONTRACT, marriage is . . . 109 
 
 CONSULS, their domicil, what .... 48 
 
 CONTRABAND OF WAR, contracts to cover . . 259 
 
 CONTRACTS, to be governed by the law where made . 76 
 
 their validity . . • . .231 
 
 texts of the Civil Law touchina; . . 233
 
 INDEX. 1051 
 
 CONTRACTS, {continued.) 
 
 these texts discussed . . . 233-237 
 
 opinions of the civilians . . . 234 - 240 
 
 rules of Boullenois ..... 240 
 doctrines of the Common Law . . 241 
 
 their validity governed by the lex loci 242-248, 327 
 
 exceptions to this rule . . 244- 259 &, 328 
 
 ■where injurious to the interests of a nation 244 - 245 
 
 in evasion of the revenue laws of a foreign coun- 
 try ..... 245- 24a 
 growing out of Illegal transactions . . 246 - 251 
 smuggling . . . 251-253 
 whether affected by mere knowledge of the 
 
 Illegal purpose .... 253 - 254 
 
 foreign revenue laws not regarded . . 257 
 
 against morals or public rights . . . 258 
 
 opposed to national policy . . . 259 
 
 how affected by proofs required by lex 
 
 loci .... 260-263,318,319 
 
 requisite of stamps . . . 260-318,631 
 
 under the Statute of Frauds their validity 
 
 abroad .... 262, 262 a, 630 ?/ 
 
 parol, their validity abroad . . 262, 262 a, 634 
 
 their nature, obligation, and Interpretation 262, 262 a 
 
 their nature, what, and how governed . 263, 266 
 
 illustration In cases of warrantry . . 264 
 
 their obligation, what, and how governed . 266 - 269 
 misinterpretation of foreign laws . . 269 
 
 their Interpretation, Avhat, and how governed 270 - 278 a 
 affected by usage . . . . 270 
 
 meaning of terms month and usance . 270, 271 
 
 of transient persons, how governed . . 273,274 
 
 of marriage and settlement, their Interpretation 276, 276 a 
 of commerce, their interpretation . . 277,278 
 
 governed by the law of place of performance 279, 279 a 
 where mutual advances and balances . 283 
 
 made by an agent abroad . . • 285 
 
 incidents to contracts, what are, by what rule 
 
 governed . . • • 351 r; 
 
 when obligation personal . 351 d 
 
 when obligation real . . . 351 (^ 
 
 with merchants abroad . . - 286 
 
 where loan and security are In different States 287 a 
 
 bills of exchange with blanks to be filled In a 
 
 foreign country .... 289 
 
 where principal and sureties are in different States 2110
 
 1052 INDEX. 
 
 CONTRACTS, {continued.) 
 
 rules as to interest (See Intekest.) . 291-306 
 
 damages ex delicto . . . 307 
 
 different currencies . . 308-314 
 
 case of mixed money .... 314 
 
 negotiable instruments and damages thereupon 314-321 
 payable and indorsed in 
 
 ' different countries . 317 
 conflicting opinions of New York and Massa- 
 chusetts ..... 319, 320 
 
 their effects depend upon the lex loci . 321 
 
 as in the case of liens .... 322 h 
 
 priority of foreign liens not conceded . 322 - 327 & 
 
 debts are payable everywhere . - . 329 
 
 their discharge depends upon the lex loci . 330-335 
 
 {See Discharges.) 
 
 all their consequences do not accompany them . 336 
 
 impairing the obligation of . . . 341 
 
 principles as to negotiable instruments . . 352 - 361 
 
 [See Negotiable Instruments.) 
 
 respecting personal property have no situs 362 - 362 h 
 respecting real property are governed by the lex 
 
 rei sitce ..... 363-373 
 conflicting opinions of foreign jurists upon this 
 
 point ..... 368-372/ 
 
 how dissolved, when by lex loci contractus 351 - 351 d 
 
 when by lex domicilii . 351 d 
 jurisdiction over and remedies upon. 
 
 (See JuRisDiCTiox, Remedies.) 
 evidence and proofs of. 
 
 (See EviDEXCE.) 
 CORPORATIONS, FOREIGN, when they may sue in our 
 
 Courts . . . 565 
 
 COVERTURE, governed by the Zea; Zoci . . . 102 o 
 
 CREDITORS, priority of domestic, over foreign assignees 420, 421 
 distribution of effects of debtor among, by 
 
 what rules governed . . . 323- 325 (7, 423 a 
 CRIMES, arc local and exclusively punishable where com- 
 mitted . . . . . 619-624 
 diff'erent doctrine of Hertius and Paul Yoet 625 
 CRIMINALS, FUGITIVE, whether a nation is bound to 
 
 surrender them up . . 626-628 
 
 CURATOR, who by the Roman Law . . . .493 
 
 CURRENCIES, questions arising from different . . 308-313 
 
 case of mixed monci/ . . ■ .314
 
 INDEX. 1053 
 
 D. 
 
 DAMAGES in cases ex delicto . . . . 307 
 
 on negotiable instruments . . . 314-320 
 
 DAYS OF GRACE, by what la-w determined . . 347,361 
 
 DEBTS, when payable everywhere . . . 329, 514 h 
 
 have no situs, and follow the person . 362, 362 a, 399 
 
 are treated as movables . . . 362, 362 a, 399 
 
 charged on real property are treated as immovables 363 
 assignment of, how and when valid . 394 - 400 
 
 are transferred by the law of the creditor's 
 
 domicil .... 399, 399 a, 400 
 
 when discharged by payment to foreign ad- 
 ministrators . . . . 514 Z* 
 upon what estate charged . . . 528 
 what law determines their priority . 524 - 528 
 when an extinguishment of . 582, 582 a, 582 b, 583 
 (&e Limitations.) 
 
 DEFENCES. (See Discharges.) 
 
 DELIVERY, where necessary to complete a sale . . 386 
 
 foreign transfer without, invalid, when . 386 - 390 
 
 DISCHARGES AND DEFENCES, in the place of the 
 
 contract, good elsewhere . . 330 - 335 
 
 exception to this rule .... 334 
 
 from, matters ex post facto . . . 335 
 
 from Bankrupt and Insolvent Law . . 338 
 
 (See Bankrupt Laws.) 
 where extinguishment of Debt . . . 338 
 
 from the Roman Cessio Bonorum . . 339 
 
 how affected by the character of the parties 340 - 349 
 
 Constitution of the U. States 341 
 
 in a place where the contract was not made 342,348,349 
 iNhenhy lex loci contractus . 348-351, 632 o 
 
 when by the lex domicilii . . 351 a 351 f/ 
 
 of indorsers how governed . , . 343-347 
 
 limitations upon their effects . . 348-351 ff 
 
 their dependence upon the comity of nations . 350 
 
 by voluntary payment to a foreign administrator 5 14 i 
 
 DISCUSSION, right of, what it is . . . . 322 i 
 
 effect of, in a case of conflict of laws . 322 ?> 
 
 DISSOLUTION OF CONTRACTS. 
 
 may be by lex loci contractus . 348, 349, 351, 632 a 
 
 aho hy lex domicilii . . • 351a-351(/ 
 
 DISTRIBUTION AND SUCCESSION. (See Succession.) 480-491
 
 1054 INDEX. 
 
 DISTRIBUTION of effects of bankrupt in cases of con- 
 flicting rights of creditors 322 c- 327 6, 423 -423./' 
 of personal property, hy what rules go- 
 verned . . 481 -482 a, 514- 514 i 
 of real property, by what rules governed 483 - 484 a 
 DIVORCES, regularly obtained, a complete dissolution of 
 
 marriage . . . . .201 
 
 difficult to lay down rules touching . . . 202 
 
 how obtained in England ... • 202 
 
 Scotland . . . .202 
 
 France . . . . 202 
 
 America .... 202 
 license of the Civil Law . . . 202 
 
 embarrassing questions under this head . 203, 204 
 
 how affected by the national character of parties 204, 205 
 presence in Scotland 205 - 207, 215 - 217 
 diversities of foreign laws as to . . . 208 
 
 views of Catholics . . . . .210 
 
 Protestants . . • . 211 
 
 not systematically treated by the continental jurists 212 
 under the French law, discussed by Merlin . .213 
 
 best discussed by English and Scotch Courts . 215 
 
 between parties not domiciled in Scotland . 216, 217 
 Scotch doctrine not recognized in England 218, 21 S 
 
 the animus manendi necessary to give jurisdiction 219 
 
 marriage after Scotch divorce . . . 218 
 
 questions discussed by the Scotch Courts . 221, 222 
 
 reasoning of the Scotch Courts . . 222-225 
 
 not sanctioned in England . . 225 
 
 English marriages not dissoluble in Scotland . 225, 597 
 whether governed by the lex loci of marriage 220- 227 
 
 how treated in Massachusetts . . .228 
 
 regulated there by the actual domicil . . 229 
 
 also in New York . . . 230 
 
 DOMESTIC CREDITORS, their priority over foreign as- 
 signees . . . 420, 421 
 
 DOMICIL, what 39-49 
 
 in the Roman law . . . . .42 
 
 defined by the French jurists ... 43 
 
 residence and intent to remain constitute . . 43 
 
 rules for determining . . . . 46, 47 
 
 the place of birth . . . . .46 
 
 of an illegitimate child .... 46 
 
 of minors . . . . • .46 
 
 of widows . . . . • 46
 
 INDEX. 1055 
 
 DOMICIL, (^continued.) 
 
 -where a person lives . • • • .40 
 
 removal with intent to reside . • • 4G 
 
 where a married man's family lives . • -40 
 
 of an unmarried man . • • • ^' 
 
 residence must be voluntary ... 47 
 
 mere intention, without removal, and vice versa . 47 
 
 once acquired, remains ..." 47 
 
 principles in respect to residence in different 
 
 countries . . • • • ^°' ^"^ 
 
 (See National Domicil.) 
 how it affects the capacity of per- 
 sons . . . 51,54a-72, 81, 82, 96a-98 
 (See Capacity of Persons.) 
 how it affects marriage. (See Makriagk.) 
 the incidents of marriage. 
 (See Marriage — ITS Incidents.) 
 matrimonial, what . • ■ 191-199 
 of owner governs personal property . • 376-382 
 its transfer . • 383,397-400 
 of testator governs wills of personal property 464 - 473 
 
 (See Wills.) 
 of intestate governs the successions to personal 
 
 property . • • 481, 481 «, 481 6, 482 
 
 (See Succession.) 
 of the ward limits the power of the guardian 
 
 over his person . . • • 495-503 
 
 DOWER, determined by the fexmsJto . • • 448 
 
 DRAWER, according to what law liable . • • .346 
 
 E. 
 
 EFFECTS OF CONTRACTS, depend upon the lex loci . 321 
 
 ENEMY'S PROPERTY, contracts to cover . - -259 
 EVIDENCE AND PROOFS, formalities of the lex loci 
 
 required . • • 260-262 «, 318, 629 
 of foreign instruments . . • • 630 
 of instruments executed before a fo- 
 reign Notary . • • • • ^^^ 
 where persons interested and parties 
 
 are competent witnesses abroad . • • 630 
 
 what formalities of universal obligation . • 631 
 in cases of foreign protest, registration 
 
 of deeds. Statute of Frauds, and Stamps . 631 
 
 merchants' Books, when evidence or not . 634 - 635 c
 
 1056 INDEX, 
 
 EVIDENCE AND PROOFS, (continued.) 
 
 where parol proof is admissible or not . . 634 
 few traces on subject of foreign Evi- 
 dence in the Reports .... 635 
 
 of Foreign Wills and Personal Property . . 636 
 foreign laws must be proved as facts to 
 
 the Court . . . . . 637, 638 
 must be the best the nature of the case 
 
 will admit . . . . . 639 
 of foreign wi'itten laws . . . 640,641 
 of foreign unwritten laws . . . 642 
 by means of the seal of a foreign sove- 
 reign, of a Court of Admiralty, &c. . . 643 
 of the laws, records, and judgments of 
 
 the different States of the U. States . . 644 
 
 EXCHANGE, rate of, on Foreign Contracts . . 307 - 311 a 
 
 EXCOMMUNICATION, how it affects the capacity . 92, 104 
 
 EXECUTIONS, form of, belongs to the remedy . 572, 573 
 
 EXECUTORS, FOREIGN, case of note indorsed by 358, 350, 517 
 
 {See Administrators.) 
 EXTRA-TERRITORIAL FORCE OF LAWS, 7, 20-23, 98, 279 
 
 depends upon comity 32-38, 279 
 
 on what grounds supported 514 h 
 
 E XUE RE PATRIAM, Tight of English subjects . . 466 
 
 F. 
 
 FIXTURES, belong to the realty .... 382 
 
 FOREIGN ADMINISTRATIONS . . . 507-529 
 
 (See Administrations.) 
 FOREIGN CONTRACTS. {See Contracts.) 
 
 FOREIGN JUDGMENTS. (&e Judgments.) . 584-618 
 
 FOREIGN LAW. (See Conflict of Laws.) 
 
 FOREIGN LAWS, ignorance of .... 76,274 
 
 misinterpretation of . . . 269 
 
 must be jiroved to the Court as facts 637, 638 
 
 FOREIGN REVENUE LAWS, contracts in evasion of . 246, 247 
 
 not regarded . . 257 
 
 FOREIGNERS, jurisdiction over . . . 541,542 
 
 FORIVIS AND SOLEMNnTIES OF DsSTRUlMENTS, 
 
 governed by lex loci . . 260, 262, 262 a, 318 
 
 FRAUD, judgment may be impeached for . . 597,608 
 
 FRAUDS, STATUTE OF, contracts under, their validity 
 
 abroad . . . 262, 435, 631 
 
 FUGITIVES, whether nations are bound to surrender up 626, 627
 
 INDEX. 1057 
 
 G. 
 
 GARNISHMENT, writ of, when jtidgment on, binding on 
 
 third persons . . . . .549 
 
 GRACE, DAYS OF, by what law governed . . . 347,361 
 
 GUARANTEES, according to what law liable . . .267 
 
 GUARDIANS, who by the Roman Law ... 493 
 
 authority over the person of a ward confined 
 
 to the place of his domicil . . 495 - 503, 594 
 
 authority does not extend to foreign immo- 
 vable property . . . 502, 504 
 whether they may change the national domi- 
 cil of a ward ..... 505 
 
 H. 
 
 "HEIRS OF THE BODY," &c., how to be construed 
 
 abroad . . . 275,484 
 
 HEIRS, under the Roman Law, who . . .507, 508 
 
 can take immovable property 
 
 only by the lex rei sitce . . 509 
 
 HENRY, Mr., has borrowed, without acknowledgment, from 
 
 Boullenois • . . . . 14, 581 
 
 HERITABLE BONDS, in Scotland, what . . .366 
 
 whether payable out of the real or 
 
 personal estate . . 486-489,529 
 
 HORNING, what by the Scotch law . . . .546 
 
 case of judgment after, without actual notice 547-549 
 
 HUBERUS, his three axioms . . . . .29 
 
 authorities approving his axioms ... 38 
 
 undervalued . . . . .31 
 
 HUSBAND AND WIFE, capacities of, by what law governed 50 - 63 
 
 effect of change of domicil of . 55, 55 a, 66 
 
 HYPOTHECATION, by what law regulated . . 322 J- 323 
 
 when it has priority or not . . 322 a, 327c? 
 
 when it adheres to property . . 401, 402 
 
 when governed by lex fori . . .675 
 
 (See Lien.) 
 
 IDIOCY, capacity in case of . . . . 99, 106 
 
 IGNORANCE, of the laws of a foreign country, its conse- 
 quences . . . . .76, 274 
 ILLEGITBIATE CIHLDREN, their domicU ... 46 
 
 CONFL. 89
 
 1058 INDEX. 
 
 ILLEGITBIATE CHILDREN, (continued.) 
 
 how affected by the after marriage of their pa- 
 rents . . . . . 87-106 
 their disabilities according to foreign jurists . 93 - 93 c? 
 cannot make a Trill in Scotland . . . 469 
 ILLICIT COHABITATION, foreign contracts for . . 258 
 IMMOVABLES, capacity of persons as to . . 52 - 54, 368 
 heritable bonds are . . . 366,382 
 gi'ound rents are . . . . .382 
 what are to be deemed, is determmed by 
 
 the lex rei sitce . . 381, 382, 383,447 
 
 foreign, whether governed by the law of 
 
 the matrimonial domicil . . . 449 
 
 wills of, governed by the lex rei sitce 475-479 m 
 
 (See Wills.) 
 succession to, governed by the lex rei sitce . , 483 a 
 
 (See Succession.) 
 authority of a foreign guardian does not 
 
 extend to .... . 504 
 
 (See Real Pkoperty.) 
 BIPRISOXMENT, when it belongs to remedies 
 INCEST, how it affects marriage 
 
 by the law of nature 
 by the positive law 
 INCIDENTS TO CONTRACTS, what are . 
 INDORSEE, FOREIGN, right of action in his own name 
 INDORSEMENT by a foreign executor 
 INDORSERS, according to what law liable 
 INFAJMY, how it affects capacity 
 INFANCY, when a discharge 
 INFANTS, their domicil, (See MixORS.) . 
 
 when bound by contracts made in foreign coun- 
 tries .... 
 INSANITY, capacity in case of . 
 INSTRUMENTS, forms and solemnities of, by what law 
 
 governed 
 INSURANCE STOCK, its locaUty 
 INTERNATIONAL LAW, maxims of, (See IHaxims.) 
 
 comity of nations 
 the axioms of Iluberus 
 its foundations 
 (See Conflict of Laws.) 
 INTEREST, is to be according to the law of the place of 
 performance of contract 
 when usurious or not 
 distinction as to, put by Boullenois 
 
 568- 
 
 •572 
 
 85, 114- 
 
 -117 
 
 114- 
 
 -116 
 
 
 116 
 
 
 322 
 
 me 353- 
 
 -360 
 
 358 
 
 ,359 
 
 . 267, 343- 
 
 -347 
 
 91,92,104, 
 
 ,620 
 
 . 
 
 332 
 
 
 46 
 
 m- 
 
 75, 82, 
 
 82 a 
 
 
 99 
 
 260, 262 a. 
 
 ,319 
 
 
 383 
 
 . 17 
 
 -38 
 
 27 
 
 -38 
 
 
 29 
 
 • 
 
 35 
 
 291 -292 a. 
 
 305 
 
 
 305 
 
 . 295, 
 
 296
 
 INDEX. 
 
 1059 
 
 INTEREST, (continued.) 
 
 governed by the lex loci . . . 296, 305 
 
 embarrassing cases as to . . • 297, 298 
 
 double meaning of Zex ?ocJ .... 299 
 INTERPRETATION OF FOREIGN CONTRACTS, what 
 
 and how governed 270-279 
 INTERPRETATION OF FOREIGN 
 
 WILLS . 479 a -479 m, 489, 490,491 
 INTESTATE, succession and distribution of his property 
 
 (See Succession.) 
 IN TRANSITU property, by what law governed 
 INVENTORY, BENEFIT OF, what 
 IRISH JUDGMENT, assignment of . . . 
 
 480- 
 
 -491 
 
 519- 
 
 •521 
 
 
 507 
 
 355, 
 
 566 
 
 
 119 
 
 355, 
 
 566 
 
 522. 
 
 , 523 
 
 . 
 
 572 
 
 , 
 
 584 
 
 JEWS, singularity of their usages 
 JUDGMENT, IRISH, assignment of 
 JUDGMENTS, FOREIGN, of what force where different 
 administrations 
 form of, belongs to the remedy 
 various questions arising under 
 of a competent tribunal valid according to Vat- 
 
 tel everywhere . . . 585, 586, 611 
 
 courts must have jurisdiction over the cause 
 
 and parties .... 58G - 590 
 
 are conclusive upon immovables . 591, 592-596 
 
 movables within their ju- 
 risdiction . . 592, 593 
 whether conclusive upon incidental points . 593 
 in questions of capacity . 594 
 in cases of marriage and 
 
 divorce . . 595-597 
 
 (See Divorce — Marriage.) 
 may be impeached for fraud . . 597,608 
 
 when sought to be enforced and when set up in 
 
 bar, distinction between these cases 598, 599 
 
 distinction of Lord Kames between suits sus- 
 taining and dismissing claims . . 600 - 602 
 this distinction not recognized in the common 
 
 law G02 
 
 when sought to be enforced, whether conclu- 
 sive - . • • .603-607 
 held conclusive by Nottingham, Ilardwicke, 
 
 Kenyon, &c 603-607 
 
 held examinable by Mansfield, Eyre, Buller, &c. 605 
 Inclination of English Courts to maintain their 
 conclusiveness . • • • 606
 
 1060 INDEX. 
 
 JUDGSIENTS, FOREIGN, (continued.) 
 
 reasoning in favor of their conclusiveness . 607 
 
 held examinable in America . . . 608 
 
 of different States of the U. States . . 609 
 
 no distinction in the common law whether be- 
 tween citizens or foreigners . . .610 
 doctrines of the foreign courts and jurists 611-618 
 Boullenois . . . 613, 614 
 could not formerly be enforced in France 615, 616 
 now examinable in France . . • 617 
 their validity in Holland . . . 618 
 JUEISDICTION, TERRITOEIAL, . . . . 17, 18 
 
 principles of Boullenois as to 19 
 JURISDICTION, over parties in cases of divorce, (^S'ee Divorce.) 
 where actions must be brought by the Roman 
 
 law . . . • . . 531-537 
 
 by the common 
 
 law . . 538 
 
 depends upon the person or thing being within 
 
 the territory . . . . 539 
 
 over persons .... 540 - 549 
 
 citizens at home .... 540 
 
 citizens abroad .... 540 
 
 resident foreigners . . . 541 
 
 refused by some nations over foreigners . . 542 
 
 over foreigners within territory, applies to suits 
 
 purely personal .... 543 
 
 of chancery over foreign lands and persons 543 -545 
 
 does not act directly upon foreign 
 
 lands ..... 545 
 
 by citations viis et modis, posting, horning, &c. 546 
 
 where judgment after horning and no actual 
 
 notice of the suit . . . 547-548 a 
 
 where property of non-residents is attached . 549 
 
 possessed by every nation over property within 
 
 its territory .... 550-551 
 
 exclusive over immovable property . 551 -555 
 
 how treated by Boullenois . . .552 
 
 byVattel . . . .553 
 
 by the common law . . 554 
 
 over the cause and parties, necessary to every 
 
 judgment .... 586-590 
 
 (See Judgments.) 
 
 K. 
 KAMES, LORD, his views on the title of administrators 511 
 
 his distinction as to foreign judgments 600 - 602
 
 INDEX. 1061 
 
 KNOWLEDGE of the illegal purpose of a contract . 253, 254 
 
 of foreign laws .... 76,274 
 
 LAWS, FOREIGN, ignorance of . . . 76, 274 
 
 misinterpretation of . . . 270 
 
 must be proved as facts to the Court 637, 638 
 
 LAWS, variances of, among different nations . . 1, 2, 25 
 
 LAW OF NATIONS, not recognized by the nations of antiquity 2, 3 
 
 this accounted for by Iluberus . . .2 
 
 ' its gradual rise . . . . . 2 a,2 b 
 
 its importance in the present times . . . 5 
 
 conflict of laws an important branch of . . 9 
 
 LEGACIES, how interpreted . . 312, 313, 313 a, 479-479 m 
 
 in what currency payable . . 312, 313, 313 a 
 
 LEGITBIACY, determined by the lex loci of the marriage 87, 105, 105 a 
 
 LEVITICAL DEGREES, recognized by the English Statute 115 
 
 LEX FORI, (See Reme-dies.) .... 566-577 
 
 ZSA'i OCT, traces of, in the Roman Digest ... 2 
 
 (See Conflict of Laws — Contracts.) 
 
 LIENS, when regulated by the lex loci . . . 322 h 
 
 foreign, cannot have priority . . . 322 6- 327 a 
 
 when they adhere to the property . . 401 - 402 a 
 
 when regulated by the lex fori . . . 575 
 
 LIMITATIONS, STATUTES OF, belong to remedies . 576 
 
 their object and policy . . . . 576 
 
 suits by foreigners must be brought within the 
 
 time prescribed by them . . . 577,578 
 
 objections of the foreign jurists to this rule '. 579 - 583. 
 
 extinguish the right of action . . . 580 
 
 ■when they extinguish the claim . . 581,582 
 
 where title to property has become final by 
 possession, and there is a removal to another 
 jurisdiction, with a longer proscription . 582 
 
 LIVERMORE, MR., his Dissertations on Contrariety of Laws . 1 1 
 
 LIVINGSTON, Dr., his Dissertation on marriage with a 
 
 wife's sister . . . .115 
 
 LOAN AND SECURITY, when in different States 287 a 
 
 LOCALITY OF TRIALS, distinctions as to . . 554 
 
 LOCALITY OF BANK STOCK, &c 383 
 
 LUNATICS, their capacity . ... . . 104 
 
 M. 
 
 MAJORITY, whether that of the domlcil prevails 52, 54 a- 56, 71, 72, 75 
 reasons of the civilians on fixing age of . 72, 73 
 
 89*
 
 1062 INDEX. 
 
 MAJORITY, (continued:) 
 
 cases in Louisiana as to . . . 75-78 
 
 determined by the lex loci . . . 102 
 
 MARRIAGE, English rule as to capacity for . . . 79 - 81 
 
 of British minors in France . . 80-80 a 
 
 principles in England as to capacity for . 87, 87 a, 88 
 
 American Courts . . . 89 
 
 of parents of illegitimates in Scotland . 87, 87 a 
 
 governed by thclex loci . 84, 87 a, 102-103, 112, 225 
 how affected by incest . . . 85,114-117 
 
 a favored contract . . . .108 
 
 a. consensual contract . . . 109,110 
 
 a matter of municipal regulation . . 109,112 
 
 three exceptions to the rule that the lex loci 
 
 governs ..... 113 a -121 
 1st. in cases of incest and polygamy . 113a-116a 
 
 between kindred prohibited . . 113a-116a 
 
 2d. when prohibited by positive law through 
 
 policy . . . . . 117 
 
 3d. when celebrated in desert or barbarous 
 
 countries according to the law of domicil . 118,119 
 
 this exception based upon necessity . . 119 
 
 at the Cape of Good Hope . . , 119 
 
 of British subjects in foreign settlements . . 120 
 
 grounds of the rule that the Zex foci governs . 121 
 
 the rule supported by the foreign jurists 122, 122 a, 122 b 
 in a foreign country, between persons of ano- 
 ther country . . . 123, 123 a, 123 b 
 Scotch, by parties domiciled in England . 124 
 after divorce in Scotland . . . .124 
 legislative right to dissolve . . . 201 
 contracts and settlements, their interpretation . 276 
 transfers personal property all the world over . 423 
 whether sentences confirming, are universally 
 
 conclusive ..... 594 
 
 MARRIAGE — INCIDENTS TO .... 125-199 
 diversified regulations as to . . 126-128 
 
 mainly discussed by Froland . . . .126 
 
 as regulated by the French Code . . , 130 
 
 the law of community . 130,131,150-156,163-176 
 under the Enghsh law . . .134, 135 
 
 how the capacity of wife is affected by 
 
 the domicil ..... 138 
 
 how the capacity of the wife is affected by 
 
 changes of domicil . . . . 138
 
 INDEX. 
 
 1063 
 
 MARRIAGE — INCIDENTS TO, (continued.) 
 opinions of the foreign jurists 
 as to the property of husband and wife 
 1st. where there is no change of domicil 
 general result of the reasoning 
 2d. where a change has taken place . 
 diversity of opinion 
 
 no question has arisen before the English Courts 
 on this point . . . .' 
 
 opinion of the Court of Louisiana 
 tacit contract as to matrimonial domicil 
 general propositions as to the incidents of mar- 
 riage ...... 
 
 matrimonial domicil, what . 
 where intention of an instant removal 
 case of a runaway marriage 
 MARSHALLING ASSETS, by what law governed 
 MATRBIONIAL DOI^ncIL, what . 
 
 whether it governs immovables abroad 
 MAXIMS OF INTERNATION.VL JURISPRUDENCE 
 
 1st. every nation has exclusive jurisdiction within 
 its own territory .... 
 
 principles of Boullenois under this maxim 
 2d. no nation can affect property or persons out 
 of its territory .... 
 
 exception to the 2d maxim 
 3d. the force of the laws of one country in ano- 
 ther depends upon the laws of the latter 
 {See Conflict of Laws.) 
 where the law is silent, who is to determine in 
 cases of the conflict of laws 
 MERCHANTS, FOREIGN, contracts with 
 MERCHANTS' BOOK, when evidence or not in foreign 
 courts ..... 
 
 MINORITY, whether that of the domicil governs univer- 
 sally . . . 52, 5-4 a -56, 71 
 
 reasoning of the civilians 
 cases in Louisiana as to 
 disabilities from, in Continental Europe 
 determined by the lex loci, in what cases 
 exceptions to this rule 
 MINORS, their domicil .... 
 British intermarrying in France 
 who, by the Roman law 
 their capacity. (See Capacity of Persons 
 
 ISO- 
 
 142 
 
 
 143 
 
 US - 
 
 ■159 
 
 158, 
 
 159 
 
 
 IGO 
 
 IGl- 
 
 •170 
 
 
 171 
 
 172- 
 
 182 
 
 J74, 
 
 190 
 
 183- 
 
 •190 
 
 190- 
 
 -199 
 
 
 198 
 
 
 198 
 
 524- 
 
 -527 
 
 190- 
 
 ■199 
 
 449, 
 
 ,450 
 
 . 17 
 
 -38 
 
 
 18 
 
 
 19 
 
 20 
 
 -22 
 
 
 21 
 
 28'; 
 
 23, lOG 
 
 . 23 
 
 287 a 
 
 634, 635 d 
 
 '•2, 
 
 when bound by contracts in a foreign country, or 
 
 . 90 
 
 102, 103 
 
 106 
 
 46 
 
 80, 80 a 
 
 493 
 
 Minority.) 
 
 not 
 
 74, 75, 82, 82rt
 
 1064 INDEX. 
 
 MISINTERPRETATION OF FOREIGN LAWS, effect of . 269 
 MIXED LAWS, what .... 530, 538, 554 
 
 MIXED ACTIONS, what . . . 374,425,426,426 a 
 
 IMIXED MONEY, case respecting . . . .314 
 
 MIXED QUESTIONS, a term of the civilians . 9 
 
 MONEY, FOREIGN, depreciation, how payment to be made 
 
 in .... . 308, 314 
 
 MONTH, has different meanings . . . .270 
 
 MORALS, contracts against . . . . . 258 
 
 MORTGAGES, are personal assets in Massachusetts . . 523 
 
 MOVABLES, capacity of persons as to . . . 52 - 54, 368 
 
 whether governed by the lex rei sike . . 368 - 373 
 
 whether laws relating to, are personal or real 377, 378 
 
 follow the person of the owner . . 378,378 a 
 
 what, when annexed to immovables . . . 382 
 
 not affected by foreign laws, except through 
 
 comity . . . . . 472 
 
 foreign judgments are conclusive upon, when 
 
 within their jurisdiction . . . 592 
 
 (See Personal Property.) 
 MUTUAL ADVANCES AND BALANCES, between mer- 
 chants of different countries . 283 
 
 NATIONAL DO:»nCIL. (See Domicil.) 
 
 principles as to . . . 48, 49 
 
 persons born in a country are citizens . 48 
 reasonable qualification of this rule . 48 
 
 foi'eigners resident for permanent 
 
 purposes are citizens . . 48 
 
 when foreign domicil is abandoned 
 
 for native . . . .48 
 
 of ambassadors and foreign ministers 48 
 
 of consuls .... 48 
 
 of children born upon the sea . . 48 
 
 of three sorts . . . . 49 
 
 of a ward, whether guardian may 
 
 change . 605, 505 a, 505 b, 505 c, 506 
 
 NATIONS, LAW OF. (&e Law of Nations.) 
 
 NATURALIA OF CONTRACTS, what 
 
 NATURE OF CONTRACTS, what, and how governed 
 
 NEGOTIABLE INSTRUMENTS, damages upon 
 
 payable and indorsed in different countries 
 made payable generally 
 conflicting opinions in N. York and Mas- 
 sachusetts .... 
 discharges and defences upon 
 
 263, note, 
 
 , 265 
 
 . 263- 
 
 -265 
 
 314- 
 
 ■320 
 
 . 
 
 317 
 
 
 317 
 
 317, 
 
 320 
 
 
 342
 
 351- 
 
 360 
 
 -360, 
 
 517 
 
 358, 
 
 359 
 
 
 359 
 
 347, 
 
 361 
 
 
 517 
 
 
 259 
 
 
 22 
 
 547- 
 
 -549 
 
 630, 632 a 
 
 
 395 
 
 
 360 
 
 90 
 
 , 276 
 
 INDEX. 1065 
 
 NEGOTIABLE INSTRUMENTS, (continued.) 
 
 made and transferred in different coun- 
 tries ..... 
 foreign indorsee's right of action in his 
 
 own name . . • 353 
 
 when indorsed by foreign executor 
 not mere choses in action 
 days of grace upon 
 
 foreign administrator may sue in his own 
 name .... 
 
 NEUTRALITY, contracts inconsistent with . 
 NON-RESIDENTS, laws as to .... 
 
 jurisdiction over and judgments against 
 NOTARY PUBLIC, efficacy of his certificate in a foreign 
 country . . . • 
 
 NOTICE OF ASSIGNMENT, when necessary 
 NOTICE OF PROTEST OF BILLS, by what law governed 
 NUPTIAL CONTRACTS, governed by fex- Zocj . 
 
 O. 
 
 OBLIGATION OF CONTRACTS, what and how governed 266 - 269 
 
 personal, what . 568-572 
 OFFENCES. (See Penal Laws.) 
 
 OUTLAWRY IN ENGLAND, how it affects the capacity . 92 
 
 P. 
 
 PARAPHERNAL PROPERTY, what . . . 128 
 
 PAROL CONTRACTS, their validity abroad . . 262,262 a 
 
 PAROL PROOF, case of, in France .... 634 
 
 PARTNERSHIPS IN COMMANDITE, effect of, on con- 
 tracts in foreign countries . . . 320 a 
 PATERNAL POWER, of the ancient Romans . . 25, 455 
 laws of, whether real or personal 456-471 
 doctrines of Merlin . . . 462 
 how far it affects real property of 
 
 children in foreign countries 456-472 
 
 as to consent to marriage of chil- 
 dren in foreign countries . . 90 
 PAYMENT, how and what is good . . . . 514 & 
 in what currency . • • 308-313 i 
 when at par value . . • 308-313 6 
 PENAL DISQUALIFICATIONS, not regarded in foreign 
 
 countries . 104, 620 - 624
 
 619- 
 
 -624 
 
 • 
 
 625 
 
 . 626- 
 
 -628 
 
 
 621 
 
 
 624 
 
 
 280 
 
 530, 539, 
 
 552 
 
 
 16 
 
 
 51 
 
 375, 425, 
 
 ,426 
 
 554, 555. 
 
 , 556"" 
 
 1066 INDEX. 
 
 PENAL LAWS AND OFFENCES. 
 
 crimes are local and exclusively punishable 
 Trhere committed .... 
 
 different doctrine held by Hertius and P. Yoet 
 "whether a nation is bound to surrender up 
 
 fugitives from justice 
 competency of a witness convict of an infa- 
 mous crime in another State 
 reality of penal laws 
 PERFORMANCE, PLACE OF, when its law governs 
 PERSONAL ACTIONS, what 
 PERSONALTY, reasons for using this word 
 PERSONAL LAWS, how they affect the person . 
 
 what .... 
 
 whether they can operate extra- 
 territorially 
 PERSONAL OBLIGATION OF CONTRACTS, what 
 
 and how governed, 267, 568 - 572 
 PERSONAL PROPERTY, 
 
 is governed by the law of the domicil of the owner 376 - 382 
 reasons and origin of this rule , . 379,380 
 
 when it loses its character by being fixed to the 
 
 realty ...... 382 
 
 may be transferred by the law of the domicil of 
 
 the owner .... 383,397-400 
 
 exceptions to this rule . . . 383, 384 
 
 valid transfer of, by the law of the situs . 384 
 
 delivery necessary to complete a sale in Louisiana 386 
 
 Massachusetts 389, 392 
 invalidity of foreign transfer without delivery, 
 
 against creditors . . . 386 - 394 
 
 this doctrine questioned . . . 390 
 
 case of transfer at sea held valid without delivery 391 
 
 case of transfers by partners in different places 392 
 
 whether the lex rei sitcE of the place of transfer 
 
 should prevail . . . . 392 
 
 where attachment before assignment . . 400 
 
 subject to what liens, &c. . . . 401 - 402 a 
 
 assignments under bankrupt and insolvent laws . 403 
 
 (See Baxkrupt Laws.) 
 transferred by marriage all the world over . 423 
 
 will of, governed by the law of the testator's 
 
 domicil ..... 465 - 473 
 
 (See Wills.)
 
 INDEX. 1067 
 
 PERSONAL PROPERTY, (continued.) 
 
 succession to, governed by the law of the intes- 
 tate's domicll .... 481-482(1 
 (See Succession.) 
 the primary fund for the payment of debts in 
 
 Holland and England . . . 529 
 
 how, when reduced into possession by a foreign 
 
 executor . . . . .516 
 
 (See Movables.) 
 PERSOXS, jurisdiction over, (&e Jurisdiction.) . 540-549 
 
 POLICY, NATIONAL, contracts opposed to . . 259 - 259 b 
 
 POLYGAMY, forbidden by Christianity . . .114 
 
 makes an exception as to the validity of mar- 
 riages by to; Zoci » . . . . 114 
 POSTING, notice by, local in its effects . . . 547 
 PRESCRIPTION. (See Limitations.) 
 PRESENCE, gives jurisdiction to the Scotch laws in cases 
 
 of divorce . . 205-207,217,222-225 
 
 (See Divorces.) 
 PRINCIPALS AND SURETIES, when in different States, 290 
 
 PRIORITY AND PRIVILEGE of foreign hens how and 
 
 when allowed . . . . 322&-325o 
 
 of domestic creditors over foreign assignees 420, 421 
 
 of creditors under administrations, by what law 
 
 determined .... 
 
 contlict of, between foreign and domestic 
 
 creditors ..... 
 when determined by the lex fori 
 PRIVILEGES AND PRIORITIES, what is the rule when 
 law different in different countries 
 as to real estate or immovables 
 as to personal estate or movables 
 (See Lien.) 
 PROCESS, belongs to remedies, .... 568 
 
 (See Remedies.) 
 PRODIGALITY, how it affects the capacity . . .99, 106 
 
 PROMISSORY NOTES. 
 
 (See Negotiable Instruments.) 314 - 320, 353 - 360 
 PROOFS, FOREIGN. (See Evidence.) 
 
 PROPERTY m TRANSITU, by what law governed . 401, 402 
 PROSTITUTION, foreign contracts for . . .258 
 
 PROTEST OF BILLS OF EXCHANGE, how made, and 
 
 according to what law . . . 360, 631 
 
 PROTESTANTS, their views on divorces . . .211 
 
 PUBERTY, age of, by the Roman law . . . . 493 
 
 PUPILS, who by the Roman law . . .' .493 
 
 524 
 
 -527 
 
 3-23- 
 
 325 a 
 
 
 575 
 
 321- 
 
 327 6 
 
 321- 
 
 ■327 ft 
 
 323- 
 
 327 h
 
 1068 INDEX. 
 
 E. 
 
 RATE OF EXCHANGE, on foreign contracts . . 308-311 
 
 REAL ACTIONS, what . . . . . 530, 552 
 
 REAL LAWS, what .... 375,425,426 
 
 REAL PROPERTY, governed by the 
 
 lex rei sike . . 364-367,424-428,463 
 
 so contracts respecting . . . 364 - 373 
 
 contracts respecting, how dissolved and extin- 
 guished . . . . 322 J, note, 351 
 
 what is real property according to Pothier . 371 
 
 does not pass under foreign bankrupt laws . 428 
 
 capacity to take or transfer, governed by the 
 
 lexreisilce .... 430-434 
 
 foreign jurists divided upon this point . . 423-434 
 
 capacity, according to some, determined by the 
 
 domicil of the party .... 432 
 
 forms of transfer determined by the lex rei slice . 435 
 
 foreign jurists divided on this point . 435-444 & 
 
 testaments of, according to some, governed by 
 
 the domicil of the testator . . 437 - 444 l> 
 
 the extent of the interest transferred governed 
 
 by the lex rei siice .... 445, 446 
 
 doctrines of the Common and Civil Law alike 
 
 on this point ..... 445 
 
 what, determined by the Zex rei sz'to . . 447 
 
 acquired by operation of law, only according 
 
 to the lex rei sitce ... . 448 
 
 under the Common Law, not aflFected by the 
 
 law of community .... 454 
 
 difficulties of the civilians on this subject . . 463 
 
 wills of, governed by the Zea; rei sj'to . . 474 
 
 (See Wills.) 
 succession to, governed by the lex rei sitce . 483 - 483 d 
 
 (See Succession.) 
 not subject to the authority of a foreign guar- 
 dian ...... 504 
 
 trespasses to, are deemed local . . 554 
 
 a different doctrine once held . . . • 554 
 
 jurisdiction over, exclusive . . . 550-555 
 
 foreign judgments are conclusive upon . . 591 
 
 (See Immovables.) 
 REAL SECURITIES, how administered when converted 
 
 into personal assets . . . .523 
 
 REALITY, reasons for using this word . . • 16 
 
 ofPenallaws 624
 
 INDEX. 
 
 10G9 
 
 KE-EXCIIANGE, by what law governed . . 308-311 
 EEGISTRATION, necessarj- to make certain instruments 
 
 evidence ..... <^31 
 REMEDIES, are part of the consequences of contracts . . 337 
 classed into three sorts . . • 53(» 
 by actions real, personal, and mixed in the Ro- 
 man Law .... 530 
 where actions must be brought 
 
 (See Jurisdiction.) 
 are governed by the lex fori . ■ ■ 55G 
 reasons of this rule .... 557,558 
 this rule recognized by the civilians . 559 - 562 
 questions as to what belongs to . • 563 
 what persons may sue . . ■ 565 - 56 ( 
 where assignment of an Ii-ish judgment . 566 
 where a scrawl has the force of a seal . . 567 
 the mode of process belongs to . . 568 
 where the contract creates no personal obliga- 
 tion 569,570 
 
 when a party is liable to arrest . . 571 
 
 form of judgments and executions belongs to . 572 
 
 set-off, liens, priorities, &c. belong to . . 575 
 
 Statutes of Limitation belong to . . . 576 
 
 REMOVAL, with intent to reside, how it affects domicil . 46, 47 
 
 RESIDENCE, its importance in determining domicil . . 44 
 
 must be voluntary .... 44 
 
 once acquired remains . . • .47 
 
 principles as to, in different countries . . 48 
 gives jurisdiction to the Scotch Courts in cases 
 
 of divorce .... 215-225 
 {See Divorces.) 
 
 REVENDICATION, right of, what .... 401 
 
 REVENUE LAWS, FOREIGN, contracts in evasion of . 245, 246 
 
 not regarded . . 257 
 
 ROMAN LAW, called the Common Law . . .18 
 
 as to domicil . . . • • 42 
 
 RUNAWAY MARRIAGE, case of . - • .198 
 
 S. 
 
 SCOTCH HERITABLE BONDS, what ... 366 
 
 whether paj-able out of the real or personal 
 
 estate .... 486-489,529 
 
 SCOTCH ]\IARRIAGES by parties domiciled in England . 124 
 
 SCOTCH DIVORCES of English marriages . 124, 215 - 225 
 
 how obtained .... 202 
 
 {See Divorces.) 
 
 CONFL. 'JO
 
 1070 INDEX. 
 
 SCR AWL, -where it has the force of a seal . . . 5G7 
 
 SEAL, of a sovereign, Court of Admiralty, &c., its effect . 643 
 
 SECURITY AND LOAN, when in different States . .287a 
 
 SENATUS-CONSULTUM VELLEIANUM, what it is 15, 57, 425 
 ■whether it is a real or a personal statute . 15,425 
 
 SET-OFF, belongs to the remedy, {See Compe>'sation.) . 575 
 
 SETTLEMENTS, MARRIAGE, their interpretation . 276 
 
 SISTER-IN-LAW, marriage with . . . .116 
 
 Dr. Livingston's Dissertation as to . . 115 
 
 SLAVERY, how it affects the capacity . . . .104 
 
 SLAVE-TRADE, foreign, contracts to carry on . . 259 
 
 SMUGGLING, conti-acts for .... 251,252,253 
 
 SOVEREIGN, FOREIGN, may sue in our Courts . . 5G5 
 
 SOVEREIGNTY of a nation over its own subjects . 21, 22, 84 
 
 within its own territory . . . 22 
 
 SPECIAL LAWS, as to the capacity of persons, what . 51 
 
 STAMPS, how they affect foreign contracts . . 260, 318, 631 
 
 STATUTE OF FRAUDS, contracts under, their validity 
 
 abroad ..... 262,435,631 
 
 STATUTES, divisions of, by the civilians . . . .12 
 
 what . .... 12, 13 
 
 personal, what . . . . 14, 375 
 
 real, what . . . 13,375,460,484 
 
 mixed, what . . . . . 13, 375 
 
 distinction between personal and real . 14 - 16, 461 
 
 Senatus-consultum Velleianum . . 15, 425 
 
 distinction between local and personal . . 364 
 
 STATUTES OF LBHTATIONS. {See LimiTxVTioks.) 
 
 STOCK, in banks, canals, &c., its locality . . . 383 
 
 STOPPAGE IN TRANSITU, right of, how it adheres to 
 
 property ..... 401 
 
 SUBJECTS, wherever they may be, bound by the laws of 
 
 their country . . . . 21-23,84 
 
 who are ..... 541 
 
 SUCCESSION AND DISTRIBUTION, 
 
 of personal property governed by the law of the 
 
 domicil of the intestate . 481, 482 a, 514, 514 6 
 
 reason of this rule . . . . 514 & 
 
 of immovable property governed by the lex rei sitcc 483 - 484 
 meaning of the word "heirs," &c. how deter- 
 mined ...... 484 
 
 embarrassing questions arising under . 485-491 
 
 where intestate, domiciled in England, left real 
 
 estate in Scotland . . . . 487 
 
 SURETIES, according to what law liable . . .267 
 
 SURETIES AND PRINCIPALS, when in different States . 590
 
 INDEX. 1071 
 
 TENDER AND REFUSAL, when a discharge . 332 
 
 TERRITORIAL JURISDICTION . . . .18 
 
 principles of Boullenois as to . . . . It) 
 
 TERRITORY, force of the laws of a nation out of . 7, 20 - 23, 98 
 
 this force depends upon comity . 32 - 38, 278, 306 
 
 power of administrator does not extend beyond 512 
 
 jurisdiction depends upon . . . 539 
 
 TESTMIENTARY HEIR, by the Roman Law, who . .507 
 
 TESTAINIENTS. (See Wills.) 
 
 TORTS ON OCEAN of foreign vessels, by what law go- 
 verned in case of a conflict of laws . . 423// 
 (See CoLLisiox.) 
 TRANSFER of foreign liabilities, right to sue upon . 353-3G<» 
 of personal property. (See Personal Peoperty.) 
 under the Bankrupt Laws. (See Bankrupt Laws.) 
 TRANSIENT PERSONS, contracts of . . . 273,274 
 TRIALS, locality of, distinctions as to . . . • 554 
 TURNPIKE SHARES, their locality ... 383 
 TUTOR, who by the Roman Law .... 493 
 
 U. 
 
 UNCLE AND NIECE BY BLOOD, marriage between • . 114 o 
 
 UNIVERSAL LAWS, as to the capacity of persons, what . 51 
 
 USAGE, how it affects contracts .... 270 
 
 USANCE, its meaning in dilferent countries . . . 271 
 
 V. 
 
 VALIDITY, OF CONTRACTS, what ... 232 
 governed hy the lex loci . . 242 0,243,327 
 (See Contracts.) 
 
 VALUE OF MONEY IN CONTRACTS, by what rule 
 
 ascertained ..... 308 &c. 
 
 VENIAyETATIS, mcamngo? .... 60, note 
 
 VJIS ET MODIS, citations, what they are . . . 546 
 
 W. 
 
 WARD. (See Guardians.) 
 
 WARRANTY, affects the nature of a contract . . 264 
 
 WIDOWS, their domicil . . - .40 
 
 WILLS AND TESTAMENTS, according to the law of 
 the testator's domicil pass personal property, 
 wherever situate .... 464-475
 
 1072 INDEX. 
 
 WILLS AND TESTAJklEXTS, {continued.) 
 
 Sir J. Nicholl's exception to this rule in the 
 
 case of English subjects abroad . 4<jG, 407 
 
 thi* rule established in America . . 468 
 
 Scotland . . . 460 
 
 among the foreign jurists . 470 
 
 as laid down by Yattel . . 471,472 
 
 where change of domicil after making the will . 473 
 
 interpretation of foreign . 479 a - 479 m, 488, 491 
 
 of immovable proj^erty, governed by the lex rei 
 
 sitce .... 431 -443 a, 473-479 
 
 distinctions of the foreign jurists on this head 475-477 
 the Scotch law in coincidence with the Com- 
 mon Law ..... 478 
 
 when interrupted accordiug to local rules . 484 
 of personal propei-ty, by what evidence esta- 
 blished ...... 636 
 
 WITNESS, competency of, when convicfofan infamous 
 
 crime in another state . . . 621 
 when competent abroad and 
 
 incompetent here . . 629 
 
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