eignty of others. This claim, which even the nations asserting it do not reciprocally yield to other nations, has necessarily given rise to much conflict and uncertainty, for it requires a citizen dealing with a foreigner to ascertain at his peril the fact of the foreigner's alienage, the nationality he bears, and the law of that nationality respecting the personal capacity of the foreigner.

The general rule demanded by modern commerce, and which is gradually forcing its way into recognition in all civilized countries, is, that contracts, and other acts not affecting the soil of a foreign nation, are valid everywhere, if valid by the law of the place where they are made or are to be performed, subject to certain simple restrictions necessary to guard against the use of the law of one place to sanction wrongful evasions of the law of another, or prejudicing creditors in another. This is the only rule which alike satisfies the sovereignty of the State, and puts it in the power of every person to ascertain the rules of law to which he is bound to conform.

In the application of these principles, it is to be observed that, as to any transaction constituted by several acts done in different jurisdictions, the Code must furnish a test to determine which place shall be considered the one where the transaction is had, and that uniformity of rights and remedies should be secured as far as may be, without respect to the difference of forum.

The exceptions and qualifications of these leading principles will be considered as they arise, in the Articles of the Division.

TITLE XXIV.

CONDITION OF PERSONS.

CHAPTER XXXVIII. General provisions.
XXXIX. Marriage.

XL. Guardianship and mental alienation.

539. Man is not the subject of ownership. Every human being is a person, that is to say, a being capable of acquiring rights and exercising them; and no one is subject to slavery or involuntary servitude except in punishment for crime, whereof the party shall have been duly convicted.

Bluntschli, Droit Intern. Codifié, § 360; Constitution of the United States, 13th Amendment. As to the duty of nations to persons coming within their jurisdiction from states which maintain slavery, see Chapter XXIV., on the PERSONAL CONDITION OF FOREIGNERS.

Foreign slaves become free by entering free nation. 540. If, by the law of any nation not a party to this Code, the slavery of human beings is permitted, such slavery is local, and the slaves become free on coming within the jurisdiction' of any free nation or state, and such nation or state is bound to respect and defend their liberty.

Bluntschli, Droit Intern. Codifié, §§ 361, 362.

1 This, by Article 309, includes the region within the lines of an army or fleet, as it should. Lieber's Instructions, § 2, ¶ 43.

Rank and social condition.

541. The privileges of rank or social condition are local, and confined to the places within the jurisdiction of the nation by the laws of which they exist, and

affect only acts done and rights acquired within such jurisdiction.

This article does not apply to the rank or privileges of foreign sovereigns; nor to those of agents of international intercourse ;' nor to such privileges of foreign rank or social condition as a nation may recognize by special regulation."

1 1 They are not confined to the territory, but exist in the places which, by Article 309, are subject to extra-territorial jurisdiction.

2 See Article 15, concerning the subjection of the sovereign or chief officer of a nation to the jurisdiction of another nation.

See Chapters XII. and XIII., concerning PUBLIC MINISTERS and CONSULS.

* Of course, it is competent for any nation to recognize foreign rank or privilege.

Personal capacity.

542. The civil capacities and incapacities of an individual in reference to a transaction with living persons,' except so far as it affects immovable property, and subject also, in the case of public funds, corporate stocks and shipping, to the provisions of articles 572 and 573, are governed by the law of the place where the transaction is had, whatever may be his national character or domicil, or the place of his birth.

This is the American rule, as laid down in the case of Polydore v. Prince, Ware's Rep., 402, (U. S. Dist. Ct., Maine, 1837,) on a review of many authorities; and it is submitted as the plain and reasonable rule, which will solve many vexed questions. See, also, Story, Confl. of L., §§ 79, 82. It is not, however, the rule now recognized by European international law, although the tendency of opinion is in this direction.

The conflicting rules laid down by other authorities upon this point, may be stated thus:

1. The capacity of a person is governed by the law of the nation of which he is a member, even when he is resident in a foreign country. This is the rule declared by the French Code Civil, Art. 3, as governing the status of Frenchmen, but there seems to be no corresponding rule as to the status of foreigners in France. (Westlake, Private Intern. Law, p. 381.) It is to be sustained, if at all, by the principle that every nation is the best judge of the capacity or want of capacity of its native subjects. But it is a sufficient objection to the recognition of any such rule in international relations, that, although a nation can within its own jurisdiction maintain the rule over its members, it would involve grave

inconveniences to make it reciprocally a rule for nations to apply to all foreigners who may be sojourning within their dominions. See the case of Saul v. His Creditors, 17 Marten's Rep., 596; Livermore's Dissertation on the Contrariety of Laws.

2. The civil capacities and incapacities of an individual are to be determined by the law of his domicil.

Woolsey states this to be the rule, and he says, " According to this rule, if a person changes his domicil, he acquires a new jural capacity, by which, in foreign parts, his actions are to be measured. This is true universally, but in many cases the courts of the earlier domicil, especially if it were the person's native country, have shown a leaning, not to be justified, towards holding him under their territorial law." The reasons which justify this principle are, he says, "(1.) That otherwise extreme inconvenience would 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. (2.) That the person subjects himself and his condition, of free choice, to the law of the place where he resides, by removing there or continuing there.”

In harmony with the great increase of intercourse and the extended and important interests dependent upon the transactions of transitory as well as domiciled foreigners, it seems just to apply more fully the general principle, that every nation has jurisdiction over all transactions within its territorial limits, and while removing the general disabilities of aliens, as is already done in so many cases by treaty, it is proposed, on the other hand, to subject the transactions of aliens to the regulation of the ordinary local law in all that does not affect the title to immovable property situate in other jurisdictions.

The general rule will then be, that, subject to the jurisdiction of each nation over all property within its limits, the efficacy of a transaction depends upon the law of the place where the transaction is had.

In this respect we admit the force of the observation of Story, (Confl. of L., § 76,) that contracts ought to be governed by the law of the country where they are made, as to the competence of the parties, and as to their validity, because the parties may well be presumed to contract with reference 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. See, also, Fergusson on Marriage and Divorce, App., 361, cited in Story, Confl. of L., § 97.

Story, Confl. of L., p. 69, &c., states the following rules as being best established, or as at least having the sanction of such authority as gives them superior weight in the jurisprudence of Continental Europe.

The acts of a person done in the place of his domicil, in regard to property situated therein, have no other legal effect elsewhere than they have in that place. Story, § 64.

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, as long as his domicil remains unchanged, even in relation to transactions in a foreign country, where they might otherwise be obligatory.

This rule is founded, according to Rodenburgh, upon the inconvenience

which would result from a fluctuating rule of capacity upon every accidental change of place of the person or of his movable property. Story, p. 72, § 67. It ought to be observed, however, that the inconvenience of a fluctuating rule is an inconvenience to the individual only, requiring him to ascertain and conform to the law of the place where he may be. It is the most convenient for facilitating commercial transactions and the administration of justice. In case of a change of domicil, these rules would apply in the country of new domicil, and perhaps in every country except that of the original domicil. Id., § 70.

Story, upon a review of the authorities, concludes that there is no general rule on the subject admitted by all nations, and that the exceptions conceded by the advocates of the universal operation of the law of the domicil show that no general rule can be adopted which may not work inconvenience to the interests of some countries, institutions or capacities, and that the conclusion is that no nation is obliged to recognize the foreign law of capacity; that the place determines the validity of the act, subject to the right of each nation to refuse to enforce or recognize acts contrary to their laws or policy.

For a recent discussion of the doctrine of personal statute and real statute, see Exposé et critique des principes generaux eu matiere de statuts reels et personels d'apres le droit Francaise, par F. Laurent, Revue de Droit International et de Legis. comp., 1869, No. 2, 244.

1 Testamentary capacity is regulated by Chapter XLIV., on WILLS.

Exception.

543. No transaction had by a foreigner with living persons,' is voidable on the ground of his infancy, except so far as it may affect immovables, if either the law of his domicil, or the law of the place where the transaction is had, sustains his capacity.

This is the provision of the Prussian law with reference to foreigners' contracts, stated by Westlake, (Private Intern. L., p. 383,) who recommends a similar provision for adoption in England. It is proposed here, in order to meet the objection stated by him, and in the case of Saul v. His Creditors, (17 Marten's Rep., 596, 5 Marten's N. S.,) in Burge's Com. on Colonial Law, p. 132, and other authorities, of allowing aliens who are beyond the age fixed for majority by the local law, to elude the obligation of contracts on the ground of a foreign disability, with which those with whom they dealt could not be presumed to be acquainted.

In re Hellman's Will, (Law Rep., 2 Equity, 363,) it was held, that a legacy bequeathed to an infant domiciled abroad might be paid when the infant came of age by the law of the testator's domicil or by the law of the infant's domicil, whichever should first happen, but in the mean time must be dealt with as an infant's legacy, according to the law of the testator's domicil, although, by the law of the infant's domicil, the guardian would be entitled to receive it.

1 The rule is restricted so as not to apply to wills.