were almost unknown in the English courts, prior to the time of Lord Hardwicke and Lord Mansfield; and the English lawyers seem generally to have been strangers to the discussions on foreign law by the celebrated jurists in continental Europe. When the subject was introduced in Westminster Hall, the only work which attracted attention was the tract in Huber, entitled De Conflictu Legum, and which formed only a brief chapter in his voluminous Prelections on the Roman Law; and yet it appears that the very great diversity of laws and usages in the cities, provinces, and states of Germany, Holland, and France, had produced far more laborious investigations on the subject. (c) In the works

of the civilians on the continent of Europe, the applica- *456 tion of the law of domicil or the lex loci on the one hand, and the lex fori or rei site on the other, is made to depend on the distinction between real and personal statutes. According to the understanding of an American lawyer, a statute means an express act of the legislature of the country; but the jurists, educated in the schools of the civil law, apply the term statute to any particular municipal law or usage, though resting for its authority on judicial decisions or the practice of nations. A personal statute is a law, ordinance, regulation, or custom, the disposition of which affects the person, and clothes him with a capacity or incapacity, which he does not change with every change of abode; but which, upon principles of justice and policy, he is assumed to carry with him wherever he goes. A real statute affects things as used in contradistinction to persons; and their operation is necessarily confined within territorial limits, or ad locum rei sitæ. (a) Ac

were to be met with in that admirable repertory of books of law, the library of the faculty of advocates in Edinburgh. Mr. Livermore, while a practising lawyer in New Orleans, had collected from continental Europe most of those rare works as part of his valuable law library, and which library he bequeathed by will to Harvard University, in Massachusetts.

(c) The foreign treatises of most interest on the doctrine of the lex loci, in addition to that of Huber, are understood to be Rodenburgh's Tractatus de Jure quod oritur ex Statutorum Diversitate, P. Voet's De Statutis eorumque Concursu, Hertius's De Collissione Legum, and G. G. Titius's De Conflictu Legum. Mr. Henry published at London, 1823, a Treatise on Foreign Law, and particularly on the difference between personal and real statutes, and its effects on foreign judgments and contracts, marriages and wills. In that treatise he shows himself to be a master of many of the foreign works on this subject; and he bestows particular commendation on the treatise of Rodenburgh.

(a) Mr. Henry and Mr. Livermore have become so completely initiated in the learning of the Roman civil law, as to use the terms real and personal statutes as familiarly as an

cording to this distinction, laws regulating the marriage and nuptial contracts, divorce, the period of infancy, and the disposition of personal property, are personal statutes; while laws regulating the descent, transmission, and disposition of real property, and the nature, extent, and limitation of civil remedies, are difficulty with the civilians has

*457 real statutes. But the

been to draw a clear, precise, and practical line of distinction, and one worthy of insertion in the code of international jurisprudence, between the real and personal statutes; and many of their discussions are involved in perplexity and confusion. Merlin arrives at the most definite and intelligible result. In his view of the subject, the laws which regulate the condition, capacity, or incapacity of persons, are personal statutes; and those which regulate the quality, transmission, and disposition of property, are real statutes. The test by which they may be distinguished consists in the circumstance, that if the principal, direct, and immediate object of the law be to regulate the condition of the person, the statute is personal, whatever may be the remote consequences of that condition upon property. But if the principal, direct, and immediate object of the law be to regulate the quality, nature, and disposition of property, the statute is real, whatever may be its ulterior effects in respect to the person. (a)

The doctrine in question may be considered, 1. In its application to the obligation and construction of contracts; 2. In its application to the remedy.

(1.) There is no doubt of the truth of the general proposition, that the laws of a country have no binding force beyond its territorial limits; and their authority is admitted in other states, not ex proprio vigore, but ex comitate; or, in the language of Huberus, quatenus sine præjudicio indulgentium fieri potest. Every independent community will judge for itself how far the comitas inter com

English lawyer would the words real and personal property. I beg leave, however, to protest against the introduction into our American jurisprudence of such a perversion of the word statute, so long as we can find other and more appropriate terms to distinguish foreign from domestic law, or the law of the domicil from the law of the territory. (a) Répertoire de Jurisprudence, tit. Autorisation Maritale, sec. 10. The writers on the civil law frequently speak of the status of the person, by which they mean only his civil condition, quality, or capacity. Statu est qualitas, cujus ratione homines diverso jure utuntur. So, again, Persona est homo, cum statu quodam consideratus. Heinecc. Elem Jur. C. lib. 1, tit. 3, sec. 75, 76.

munitates is to be permitted to interfere with its domestic interests and policy. The general and most beneficial rule of international law, contributing to the safety and convenience of mankind, is Statuta suis clauduntur territoriis nec ultra territorium dispertuntur. There are, however, certain general rules in respect to the admission of the lex loci contractus, which have been illustrated by jurists, and recognized in judicial decisions, and to which we may confidently appeal, as being of commanding influence in the consideration of the subject. Thus it may be laid down as the settled doctrine of public law, that personal * contracts are to have the same validity, interpretation, and obligatory force in every other country which they have in the country where they were made. (a)1 The admission of this principle is requisite to the safe intercourse of the commercial world, and to the due preservation of public and private confidence; and it is of very general reception among nations. Parties are presumed to contract in reference to the laws of the country in which the contract is made,

* 458

(a) Bank of the United States v. Donnally, 8 Peters U. S. 361. Watson v. Orr, 3 Dev. (N. C.) 161. See also infra, note b. If, therefore, under a foreign marriage contract, the husband would be entitled to property accrued to the wife during coverture, the English courts will enforce it, without raising an equity for a settlement in favor of the wife. Anstruther v. Adair, My. & K. 513. Dues v. Smith, Jacob, 544. S. P. Matrimonial rights as between husband and wife, are determined by the law of their domicil. Garnier v. Poydras, 13 Louis. 177. And as a general rule, personal property follows the law of the domicil of the owner, and the real property the law of the locus rei sitæ. Vide supra, p. 429. But every state may impress upon all property within its territory any character which it may deem expedient. Story's Conflict of Laws, sec. 447. Thus, in Louisiana, slaves were declared to be immovable property, or real estate, in contemplation of the law. Louis. Dig. 1808, b. 2, c. 2, art. 19. Local stocks, such as bank, insurance, turnpike, and canal stock, and other incorporeal property, owing its existence or regulated by local laws, must be transferred acccording to local laws or regulations. But debts due from corporations are not of a local character, and may be assigned or transferred according to the law of the place where the assignment is made. A debt has no situs or locality. Erskin's Inst. b. 3, tit. 9, sec. 4. Story's Conflict of Laws, secs. 362, 383, 399. Atwood v. Protection Ins. Co. 14 Conn. 555. The general principle is, that personal property has no locality or situs, but follows the person of the owner, and his alienation of it is governed by the law of his domicil, or where it was made, and this rule is generally recognized by the comity of nations. Vanbuskirk v. Hartford F. Ins. Co. 14 Conn. 583.

1 Van Buskirk v. Warren, 34 Barb. (N. Y.) 457. A sale of chattels, made in the country where the chattels are, and valid by its law, is valid everywhere. Cammell v. Sewell, 5 Hurl. & Nor. 728. Exch. Cham. And the same rule holds as to a mortgage of chattels. Langworthy v. Little, 12 Cush. 109.

and where it is to be paid, unless otherwise expressed; the maxim is, that locus contractus regit actum, unless the intention of the parties to the contrary be clearly shown. (b) The rule stated in Huber relative to contracts made in one country and put in suit in the courts of another, is the true rule, and one which the courts follow, viz. the interpretation of the contract is to be governed by the law of the country where the contract was made; but the mode of suing and the time of suing, must be governed by the law of the country where the action is brought. (c) It is, however a necessary exception to the universality of the rule, that no people are bound or ought to enforce, or hold valid in their courts of justice, any contract which is injurious to their public rights, or offends their morals, or contravenes their policy, or violates a public law. (d) It is a consequence of the admission of the lex

ton v.

(b) Allshouse v. Ramsay, 6 Wharton, 331. Burge's Col. & For. Laws, vol. ii. 851, vol. iii. 758. In the matter of Roberts's Will, 8 Paige, 446, 525. Sessions v. Little, 9 N. Hamp. 271. Dunscomb v. Bunker, 2 Metcalf, 8. Thomas ". Beckman, 1 B. Monr. (Ken.) 32. Story's Conflict of Laws, § 76. Story on Bills, pp. 184-188. ArringGee, 5 Ired. (N. C.) 590. If no place be designated in a note as a place of payment, the law of the place where it is made determines its construction, obligation, and place of payment; and if the law of that place gives three days of grace, the maker is entitled to that grace, if he resides elsewhere, before demand can be made and the indorser fixed. Story's Conflict of Laws, § 347. Bryant v. Edson, 8 Vermont, 325. Bank of Orange County v. Colby, 12 N. Hamp. 520.

(c) Hub. de Conflictu Legum, sec. 7. De la Vega v. Vianna, 1 B. & Adol. 284. Trimby v. Vignier, 1 Bing. (N. C.) 151. Dunscomb v. Bunker, 2 Metcalf, 8.

(d) Hub. Prælec. Jur. Civ. tom. ii. b. 1, tit. 3, De Conflictu Legum. Voet, ad Pand. lib. 5, tit. 1, sec. 51. Emerig. des Ass. ch. 4. sec. 8, vol. i. p. 122. Kame's Principles of Equity, b. 3, ch. 8, sec. 4. Van Reimsdyk v. Kane, 1 Gallison, 371. Harvey v. Richards, 1 Mason, 381. Le Roy v. Crowninshield, 2 Idem, 151. Greenwood v. Curtis, 6 Mass. 358. Brown v. Richardsons, 13 Martin (Louis.) 202. Blanchard v. Russell, 13 Mass. 1. Prentiss v. Savage, Ibid. 26. Lodge v. Phelps, 1 Johns. Cas. 139. Saul v. His Creditors, 17 Martin (Louis.) 569. Story's Com. on the Conflict of Laws, § 244,

2 The courts of Kentucky have declared, that in an action on a note brought in that state, they will not enforce the set-off laws of the state where the note was made. Bank of Galliopolis v. Trimble, 6 B. Monr. 599.

3 In Virginia, slaves may be emancipated by will; but this is prohibited by statute in Mississippi. The courts of the latter state held that the will of a person whose domică was in Virginia, providing for the emancipation of his slaves in Mississippi, was inoperative for that purpose. Mahorner v. Hooe, 9 Smedes & Marsh. 247. Dalton . Murphy, 30 Miss. (1 George) 59.

4 A contract made in one state, with the full knowledge of the parties that the property, which is its subject-matter, is to be used in another state, in violation of the positive law of the latter state, but in no immoral manner, will be enforced in the latter state, unless it be shown that the parties knew that such use was forbidden. Merchants' Bank v. Spalding, 5 Seld. (N. Y.) 53.

loci that contracts void by the law of the land where they are made, are void in every other country. (e) So, also, the personal incompetency of individuals to contract, as in the case of infancy, and the general capacity of parties to contract, depend, as a general rule, upon the law of the place of the contract. (f) The incompetency of a married woman to contract is considered by the civilians to depend upon the law of the place of the marriage. (g) Upon the doctrine of the lex loci, nuptial contracts,* valid by the law of the place where made, will be * 459 recognized and enforced by the courts of other countries, in proper cases; (a) and as personal qualities and civil relations

et seq. In this work of Mr. Justice Story, the exceptions in the text are stated and discussed, and the authorities in support of them collected. In New Jersey it was held, in Varnum v. Camp, 1 Green, 326, that an assignment of personal property by an insolvent debtor, made at New York, in trust to pay creditors, and giving preferences, though good in New York, was void as to personal property in New Jersey, because their statute law prohibited preferences in that case. The ler rei sitæ, even as to personal property, prevailed by force of the statute over the lex loci. The exercise of comity in admitting or restraining the application of the lex loci, must unavoidably rest in sound judicial discretion, dictated by the circumstances of the case. Parker C. J. in Blanchard v. Russell, 13 Mass. 6. Story's Conflict of Laws, § 28. Shaw C. J., in Commonwealth v. Aves, 18 Pick. 193-225.

p. 491.

(e) Boullenois, tom. i. tit. 2, c. 3, Alves v. Hodgson, 7 Term Rep. 241. Desesbats v. Berquier, 1 Binney, 336. Houghton v. Page, 2 N. Hamp. 42. Story's Com. on the Conflict of Laws, § 242. Story on Bills, pp. 184-188.

(f) Male v. Roberts, 3 Esp. N. P. 163. Ex parte Lewis, 1 Vesey, 298. Henry on Foreign Law, 96. Saul v. His Creditors, 17 Martin (Louis.) 596-598. Story on the Conflict of Laws, p. 97. Pickering v. Fisk, 6 Vermont, 102. In the case of Polydore v. Prince, Ware, 402, it was held, after a full consideration of the law, both at home and abroad, and of the principles of general jurisprudence which belong to the question, that civil incapacities and disqualifications by which a person is affected by the law of his domicil, are regarded in other countries as to acts done or rights acquired in the place of his domicil, but not as to acts done or rights acquired within another jurisdiction, where no such disqualifications are acknowledged. On this doctrine it was held that the libellant, who was a slave by the law of his domicil, might sue in his own name in Maine, where slavery was not allowed, for a personal tort committed in an American vessel, on the high seas, and within the cognizance of the District Court.

(g) Henry on Foreign Law, 37, n., cites the opinion of Grotius, in a case submitted to him to that effect.

(a) Feaubert v. Turst, Prec. in Ch. 207. 1 Bro. P. C. 38, (S. C.) Freemoult v. Dedire, 1 P. Wms. 429. Decouche v. Savetier, 3 Johns. Ch. 190. Crosby v. Berger, 3 Edw. Ch. 538. Hub. de Conflictu Legum, lib. 1, tit. 3, sec. 9. Story's Com.

5 And they will be held void in any other country, although they would have been held valid, if made in such other country. McAllister v. Smith, 17 Ill. 328. Perhaps there may be an exception to this rule in the case of contracts growing out of the violation of the revenue laws of foreign countries. Sharp v. Taylor, 2 Phil. (22 Eng. Ch.) 801.