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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 Conflictus 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. In the works of the civilians on *the continent of Europe, the application of the *456 law of domicil or the lex loci on the one hand, and the ler 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
. 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' De Collissione Legum, and G. G. Titius' De Conflictu Legum. Mr. Henry published at London, in 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 the subject; and he bestows particular commendation on the treatise of Rodenburgh.
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 According 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 reme*457 dies, are real statutes. But the difficulty with the
civilians has been to draw a clear, precise, and practical line of distinction, and one worthy of insertion in the code of international jurisprudence, between 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.b
• 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 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 foreiga from domestic law, or the law of the domicil from the law of the territory.
Repertoire 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. Status est
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 préjudicio 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. 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 disperanter. 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 *458 the same validity, interpretation, and obligatory force in every other country which they have in the country where they were made.a The admission of
qualitas, cujus ratione homines diverso jure utuntur. So, again, Persona est homo, cum statu quodam consideratus. Heinecc. Elm. Jur. C. tom. 5. 1. 3. 76.
• Bank of the United States v. Donnally, 8 Peter's U. S. Rep. 361. Watson v. Orr, 3 Deo. N. C. Rep. 161. Soa, 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 favour of the wife. Anstruther v. Adair, 2 Mylne f. Keen, 573. Dues v. Smith, Jacob's Rep. 544. S. P. Matrimonial rights as between husband and wife, aro determined by the law of their domicil. Garnior v. Poydras, 13 Louis. Rep. 177. And as a general rule personal property follows the law of the domicil of the owner, and real property the law of the locus rei site. Vide supra, p. 429. But every slate may impress upon all property within its
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 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.a 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
territory any character which it may deem expedient, Story's Conflict of Laws, sec. 447. Thus in Louisiana, slaves were declared to be immoveable property, or real estate, in contemplation of law. Louis. Dig. 1808, b. 2. c. 2. art. 19. Local stocks, such as bank, insurance, turnpike, and canal stock, and uther incorporeal property, owing its existence or regulated by local laws, must be transferred according to local laws or regulations. But debts due from corporations are not of a local character, and may be as. signed or transferred according to the law of the place where the assignment is made. A debt has no situs or locality. Erskine's Inst. b. 3. tit. 9. sec. 4. Story's Conflict of Laws, sec. 362. 383. 399. Atwood v. Protection Ins. Co., 14 Conn. Rep. 555. The general principle is, that perso. nal 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. Van Buskirk v. Hartford F. Ins. Co., 14 Conn. Rep. 583.
· Allshouse v. Ramsey, 6 Wharton, 331. Burges' Conflict of Laws, vol. 2. 851. vol. 3. 758. In the matter of Roberts' Will, 8 Paige's Rep. 446. 525. Sessions v. Little, 9 N. H. Rep. 271. Dunscomb v. Bunker, 2 Metcalf's Rep. 8. Thomas v. Beckman, 1 B. Monroe's Ken. Rep. 32. Story's Conflict of Laws, 201. 282. Story on Bills, p. 184–188. Arrington v. Gee, 5 Iredell'8 N. C. Rep. 590. If no place be designated in a note as the 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 endorser fixed. Story's Conflict of Laws, 264. Bryant v. Edson, 8 Vermont Rep. 325. Bank of Orange v. Colby, 12 N. H. Rep. 520.
suing, must be governed by the law of the country where the action is brought. 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.b It is a consequence of the admission of the lex loci, that contracts, void by the law of the land where they are made, are void in every other country. 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 ge
· Hub. De Conflictu Legum, sec. 7. De la Vega v. Vianna, 1 B. g. Adolph. 284. Trimbey v. Vignier, 1 Bing. N. C. Rep. 151. Dunscomb v. Bunker, 2 Metcalf's Rep. 8.
• 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 Reimsdyke v. Kane, 1 Gall. Rep. 371. Harvey v. Richards, 1 Mason's Rep. 381. Le Roy v. Crowninshield, 2 Ibid. 151. Greenwood v. Curtis, 6 Mass. Rep. 358. Brown v. Richardson, 13 Martin's Louis. Rep. 202. Blanchard v. Russell, 13 Mass. Rep. 1. Prentiss v. Savage, Ibid. 26. Lodge v. Phelps, 1 Johns. Cas. 139. Saul v. His Creditors, 17 Martin's Louis. Rep. 569. Story's Comm. on the Conflict of Laws, p. 203—215. 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 NewJersey, it was held, in Varnum v. Camp, 1 Green's Rep. 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 NewYork, was void as to personal property in New-Jersey, because their statute law prohibited preferences in that case. The lex rei sita, 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 cir. cumstances of the case. Parker, Ch. J., in Blanchard v. Russell, 13 Mass. Rep. 6. Story's Conflict of Laws, 29. Shaw, Ch. J., in Commonwealth v. Aves, August, 1836.
• Boullenois, tom. 1. tit. 2. c. 3. p. 491. Alves v. Hodgson, 7 Term Rep. 241. Desebats v. Berquier, 1 Binney's Rep. 336. Houghton v. Page, 2 N. H. Rep. 42. Story's Comm. on the Conflict of Laws, 203. Story on Bills, p. 184–188.