Case of the The case of the Creole presents an extreme example of this refusal on the part of nations to recognize the law of the domicil where it sanctions slavery. This vessel, containing slaves in transportation from one port of the United States to another, was by their act forced to put into a port of the Bahama islands in the winter of 1841-2. The slaves having secured for themselves a refuge on shore, the colonial authorities, and afterwards the British government, refused to give them up, as being free persons. If the slaves had merely fled to British territory, it was conceded that they could not be demanded back. But it was contended by Mr. Webster, that the law of nations exempts from interference property on vessels driven into foreign ports by disasters of the sea, or carried there by unlawful force.* This exemption from territorial law is undoubtedly made by the law of nations. (Comp. § 64.) But the question is, whether such a rule of comity and humanity should override a greater act of humanity and compel the territorial authorities to use force in order to prevent the slaves from retaining their liberty. By what process could this be done in a land where slavery is unknown, and how could a passenger be required to return on board a certain vessel which he had left? It is to be observed, however, in regard to applications of foreign law, which the moral sense or political principles of a nation reject, that questions growing out of a status which cannot be recognized by the courts, if they do not affect the personal capacity itself, may be decided according to the foreign law. Thus a contract relating to the sale and purchase of slaves might be held legal, if legal in the domicil of the contracting parties. And it is probable that the children of a polygamist Turk,† by a second or third wife, would not be treated as bastards in all respects by Christian courts. case of Eliz. Thoinas v. Generis et al. (vol. 16, p. 483, of the same Reports), it is beld, that a slave taken to the State of Illinois, with express or implied consent of her master, became free, and being once free, could not again be made a slave by removing her to a slave State. * Webster's Letter to Ashburton. Works, VI. pp. 303–313. + Comp. Demangeat on Fœlix, I. 29. S71. II. The general leaning has been toward the rule that mov able property follows the law of the owner's dom- Rights of prop icil, while immovable follows the law of the place erty. where it lies (the lex loci rei sitæ, or, briefly, lex rei sita). But Savigny and others, especially German lawyers, contend that in all cases the lex rei sita should be followed. A comparatively modern maxim, that mobilia ossibus inhærent, or that a man's movables should be conceived of as passing with him wherever he dwells, expresses the former view, which is followed in our country. Against this, however, there are serious objections. 1. The proper seat of the right to a thing is the place where it is. "He who wishes to gain, have, or exercise a right to a thing betakes himself for this end to its place, and subjects himself voluntarily to the local law which rules where the thing is situated." There is the same reason for voluntary submission to law in this case as there is why the lex domicilii should govern in respect to personal capacity. 2. It is often difficult to say whose domicil is to condition the law,i. e. what person is meant. If we say the proprietor's, it is doubtful in transfers of property whether the old or the new owner is intended; and so in suits concerning property, which of the two litigant claimants ought to have the law of his domicil followed. 3. There are two extremes of movable property, the one nearly as fixed in place as real,—of which kind are furniture, libraries, museums, etc.,—and the other so changeable in place that no particular lex loci can be applied to them. Such are travellers' luggage, and merchants' wares sent abroad. In the former case, no reason can be given why law should treat the things in question otherwise than it treats real estate. In the latter, the lex loci must be determined, by enquiring what is the spot where the owner wishes that they should rest and change place no longer. If this is his domicil, the lex domicilii and * Savigny, u. s., § 366, page 169, seq. lex rei sita coincide. If not, he shows an intention of submit ting to a certain other lex rei sita. The capacity of a person to acquire or to part with property is to be decided according to the law of the domicil, since this is a capacity which follows the rule already laid down touching personal capacity. The capacity of a thing to become private property follows the lex rei sito. And the same is to be said in regard to the power of acquiring and the restrictions on acquiring by occu pation. As to the forms of free transfer of property, there is great diversity of practice. Savigny contends that the same principle of the lex rei site should be followed, without respect t the domicil, or the place where the contract was concluded. As regards prescriptive right to real property, all agree that to this the lex rei sita must be applied. Opinions, however, differ as to the law which ought to regulate the title to movables so acquired, as much as the laws of different nations vary from one another. "Roman law demands possession for three years before a title can vest; Prussian for ten; French, in the case of things stolen or lost, for three; and, in other cases, shuts off the prior owner's right of suit as proprietor at the commencement of the possession."* Now, as the title here depends on possession, which is a mere fact, it is plainly reasonable that the law where the fact occurs should be applied in questions of usucapion or prescription, which is right growout of a continued fact. The prosecution of claims to property is regulated by the laws of the place where the suit is brought, (the lex fori,) which may be, however, either the locus rei sitæ, or the defendant's domicil. Jura in re, or rights inhering in things without ownership, as servitudes on land, right of cultivating or building on the land of others, (emphyteusis and superficies,) etc., follow the same rule, i. e. are determined by the lex loci. * Savigny, u. s., p. 186, § 367. The French law is (Code civile, art. 2279,) fait de meubles la possession vaut titre.” $ 72. * tion. III. In cases of obligation it is of importance to decide what is the proper court before which the obliga- Right of obliga tion ought to be brought, (the forum contractûs,) and what is the law there to be applied. (a.) To determine the court it is necessary to ask what is the seat or place of an obligation, with what spot of earth this incorporeal act is most closely connected. There are two seats which can be thought of,—that where the obligation is begun, and that where it receives its fulfilment. The place where an obligation is assumed, however, is in itself accidental, unessential, and without influence on the subsequent steps in the completion of the contract. Unless, therefore, some definite expectation of the parties connects their transaction by an important link with this place, it must be decided that the place of the fulfilment of the obligation, which gives the act body and substance, ought to determine the court where he who complains of the non-fulfilment of it should bring his suit. But what is the place of fulfilment? It is to be known from the express or tacit will of the parties. (1.) When that will is made known, or when, though not expressed, it can refer only to a definite place,—as in contracts for the repair of a house, or the rent of a house or grounds, or in guardianship, and in general and special agencies, there is no difficulty in regard to place. (2.) Where a debtor changes his domicil before paying the debt, the court is that of his former domicil, because the expectation of the parties had fastened on this, as the place where the obligation would be discharged. (3.) If a person away from his domicil assumes an obligation, it may be that the circumstances create an expectation that the place of the origin of the obligation will be the place of fulfilment, or it may not be. Here the general rule holds. Thus a man, * during a sojourn at mineral springs, may incur a debt for his board and lodging, and may make contracts of business at the same place. It is clear that this is the place of fulfilment in the first case, and need not be in the last. (4.) In cases where no definite place of fulfilment can be derived ...in the terms of the obligation, the forum contractûs must be the domicil of the debtor. court apply to the Thus, (1.) If the particular place of (2.) If the obliga (b.) The same rules which apply to the law which is to be used in its decisions. contract mentions, or necessarily implies a fulfilment, the law of that place is to rule. tion grows out of a continuous course of business of the obligated person, the law of the place where the business is carried on must be applied. (3.) If the obligation has arisen out of a single act of the obligated person in his domicil, the law there must prevail, although he change his domicil afterward. (4.) If the obligation arise from a single act of a person away from his domicil, and under circumstances implying the fulfilment in that place of temporary sojourn, the law of that place must govern in judicial decisions. (5.) If none of these suppositions are true, a suit must be regulated by the law of the obligated person's domicil, since there is a presumption, where no other place or local law can be assigned to the fulfilment, that it was expected to come to pass there. It is to be observed, however, that the complainant may bring his suit likewise before the court of the domicil of the defendant, i. e. he may choose between two forums; but, in either case, the law must be applied as has been just laid down, that is, the law of the place of fulfilment of the obligation, or, in default of any fixed place, the place whose law is naturally to be presumed or the domicil of the debtor. If, again, the application of the above-mentioned rules would subject a contract to laws which would make it invalid, while, by the law of the domicil, it would be binding, it is certainly to be presumed that it was not the intention of the parties to subject themselves to laws which would render their own purpose nugatory. Capacity to incur obligations is determined by the law governing the person concerned, that is, the law of his domicil The interpretation of contracts is controlled, according to the prevailing opinion, by the law and custom of the place of |