PART I. PERSONS. CAP. II. p. 67. to be made with foreign States for its reciprocal application, British subjects dying in a foreign country shall be deemed, for all purposes of testate or intestate succession as to movables, to retain the domicil they possessed at the time of going to reside in such foreign country, unless they have resided in such foreign country for a year at least before the death, and shall have made a formal written declaration of an intention to become domiciled there. Similar provisions are made with regard to the subjects of foreign States dying in Great Britain. Domicil being a question of fact, it is not competent for individual States to enact restrictions upon, or facilities for, its acquisition; and such enactments should not, in the tribunals of other States, obtain recognition. CHAPTER III. CAPACITY. PART I PERSONS CAP. III. theories as to. THE question of the capacity, or rather the incapacity, of Capacity and persons, is one of which it is difficult to gather anything like a incapacity, satisfactory view from the isolated decisions on the subject to be found in English law. All individuals, about whom nothing more is known than that they are members of a particular community, are presumed by the law to be as capable of regulating their own actions, entering into contracts, and disposing of their own property, as their neighbours. Infants, however, and persons of unsound mind, are regarded in every civilised country as labouring under a certain incapacity, for most of these purposes; and the declarations of this incapacity, which are made by the law properly claiming jurisdiction in the matter, may be regarded as stamping a certain mark upon the person for the information of other tribunals and communities. How far this mark will be regarded by them, or, in other words, how far the declarations of incapacity made by a foreign law are to be recognised as valid and binding, is a branch of international jurisprudence upon which little agreement is to be found. The conflicting opinions of the jurists may be perhaps conveniently regarded under two main heads, directly opposed to each other; the first springing from the theoretical division of all laws into real and personal.(a) The writers of this school agree in considering that personal laws, or laws directed in personam, impress certain fixed qualities upon the person, which adhere to it wherever it is removed and must be recognised by the tribunals of all jurisdictions alike. This personal law, according to Hertius (De Coll. Leg. § 4), is the law of that State to which the person is subject by domicil, and extends not only to the acts of the individual, wherever done, but to his dealings with property, real as well (a) A distinction formulated, probably for the first time, by Bartolus, in the 14th century, who classified statutes as real and personal, according to the arrangement, obviously often accidental, of the subject and predicate in the enacting sentences.-Bart. Cod. I. I. PART I. as personal, wherever situate. Boullenois, (a) Bouhier, (b) PERSONS. Rodenburg, and P. Voet (c) (the last-named, however, distinCAP. II. guishing between the operation of the principle with regard to real and personal property) lay down a similar rule. As to the question how far a change from the domicil of origin may alter the qualities which have been once impressed by the proper domiciliary law, the views of the older jurists are so conflicting that there is little object in quoting from them. Incapacity from prohibi tion. The theory exactly opposed to that of which mention has just been made, is that which denies to the laws which regulate the capacity and status of persons subject to them any extra-territorial operation whatever. Such laws are, according to this view, the mere eyes by which the Legislature sees the persons who come under its notice, and can only present one kind of image to its perception. This theory has been by no means so generally adopted as the former one, and the younger Voet (d) is perhaps its best known advocate. It is obviously capable of being modified into one more in accordance with the views of English jurisprudence, namely, that the tribunals of one State, when considering acts done within the limits of another by persons there domiciled, will refer to the laws of that other State all questions of the capacity of the persons in relation to those acts, but will not allow the foreign laws in question so to operate as to come into collision with their own regulations for persons properly their subjects. A departure from both these theories is to be seen in the French law on the subject (Code Civil, Art. 3) which provides that all questions of status and domicil, in the case of French subjects, even though domiciled abroad, shall be referred to French law as the law of their nationality; but the view more commonly adopted on the Continent is that which regards the domiciliary law as the one properly applicable. The views hitherto taken by English law of the question of distinguished capacity are somewhat perplexing, a state of things for which the loose and inaccurate extension of the term beyond its proper meaning is perhaps responsible. It has already been said that the word can mean nothing more in strictness than the normal and ordinary condition of all human beings. To say that a man is of full capacity is to say simply that he is of full age, and is in full possession of his faculties. Superadded to this meaning comes a purely conventional one, whose effect (a) Princ. Gen. pp. 4, 5, 6. (b) Cout. ch. 23. This PART I. PERSONS. becomes intelligible only by observing its negations. supplementary meaning of the word signifies that the person, whose capacity is under consideration, is not the subject of any CAP. III. of the prohibitions or deprivations of the laws which actually govern him and his actions. More accurately, that he is not affected by the deprivations and prohibitions of law otherwise. and more stringently than the other reasonable adults by whom he is surrounded. Where a deprivation or a prohibition is general in its effect, it imposes no incapacity upon any one. It does, however, occasionally happen that a prohibition, which is in reality universal, is apparently particular; and that a man is prohibited from a complex act which seems at first sight to be one permissible to others. For example, A. wishes to marry B., his deceased wife's sister, but the English law prohibits him from doing so. Inasmuch as C., D., E., and all the rest of the alphabet may marry B., if they and she like, A. may be said, in a certain loose sense of the term, to be incapacitated by English law from that act. Strictly speaking, this is incorrect. Marriage with a deceased wife's sister, the act in A.'s mind, is universally prohibited by English law, and neither A. nor anybody else may do it. It is true that any other man not similarly related to her may marry B., but if any other man married her, he would not be doing that prohibited act which A. desires to do. A.'s capacity, therefore, is not in any way affected by the prohibition. It will be seen, however, that the distinction between a prohibition and an incapacity is sometimes sufficiently fine to involve a certain amount of confusion. lex loci actus. On the question of capacity in the strict sense of the term, Capacity i.e., the capacity of a sane adult to do a lawful act, the English tested by the authorities are scanty, and even discordant. According to Burge, (a) and Story,(b) the law of the place where an act is done, or a contract entered into, is the proper law to decide all questions of minority or majority, competency or incompetency, and in fact all matters of status and capacity whatever. On the question of the full age which enables a man to bind himself by a contract, Lord Eldon held the same at Nisi Prius.(c) In Ruding v. Smith,(d) which was eventually decided upon a different principle, the opposite view was strongly pressed upon Lord Stowell, who expressly guarded himself against being supposed to accept it. "I do not mean to say," he observes in his judgment, "that Huber is correct in laying down as (a) Burge, Col. Law, i. c. 4, p. 132. (c) Male v. Roberts, 3 Esp. 163. (b) Story, Confl. of Laws, § 103. PART I. PERSONS. CAP. III. Capacity and the lex domicilii. universally true, that 'personales, qualitates, alieni in certo loco These authorities are at any rate sufficiently cogent to render rather startling a dictum of the Court of Appeal, in the modern case of Sottomayor v. De Barros,(b) where it was said to be "a well-recognised principle of law," that the question of personal capacity to enter into any contract was to be decided by the law of domicil. The question in that case was simply of the validity of a marriage entered into in England between two Portuguese first-cousins, prohibited, like all other first-cousins, from intermarrying by the law of Portugal. According to the analysis of the word "capacity," which has been attempted above, this was not a question of capacity at all, but of the legality of an act; and it will be shown, when discussing the subject of contract,(c) that the so-called marriage contract, if a contract at all in the eye of the law, is a contract of a very different nature from that between vendor and purchaser, master and servant. On the question, therefore, of the legality of a marriage prohibited by a certain law, a dictum as to the personal capacity of a man to contract was doubly superfluous, especially as it will be seen below (d) that the decision could in fact have been supported on a sound foundation of less questionable material. That the legality of a marriage must be decided by the law of the domicil of the parties, was decided in the case of a marriage between a woman and her maternal uncle, both Jews, valid by the law of the place of celebration and by Jewish custom, but invalid by English law, which was the law of the domicil of the parties.(e) It is possible that the same test would be applied if the marriage was forbidden, and therefore invalid by the law of one only of the contracting parties. The law of England, for example, would probably hold the marriage of a domiciled English woman with an uncle to be invalid, whatever was the domicil of the uncle on the ground that the law of the domicil of the woman regarded such a union as (a) 2 Sw. & Tr. 67 (1860). |