country of his domicil will only hold him or his estate responsible so far as its own laws permit; and as he is to return to that country, to its laws the question of his responsibility is to be remanded. Hence it is that many eminent jurists have agreed, though for various reasons, in holding that the status of infants is to be determined by the law of their domicil.1 Indeed, in respect to infancy by natural law, the question does not admit of doubt, though it is different, as we will presently see, when infancy approaches that period as to which particular countries, following climate or tradition, have attached various bounds. But so far as concerns persons incapable of self-government, whatever may be the cause, our courts, in appointing a local guardian, will have regard to the action of the judex domicilii.2

of minority

is a matter

of distinctional pol

tive na

icy.

§ 113. We must, however, remember, that minority and infancy are by no means convertible, and that the period. The term at which a state fixes the majority of its subjects is determined largely by national policy. An over-populated state, where it is not desirable to increase the number of persons in business life, for whose distinctive industries long apprenticeships are desirable, whose climate and traditions do not stimulate early development, naturally fixes majority at a more advanced period of life than a state whose soil and industries call for large additions of young, active, and adventurous laborers, and whose climate and traditions lead to the assumption of responsibility at an early age.3 Hence we can well understand how a state of the first class should say:

1 Molinæus, in L. i. c. de S. Trin.; Huber, § 12; Rodenburg, ii. 1, §§ 1–2; Bouhier, ch. 25, No. 1; Boullenois, i. pp. 53, 54; Merlin, Rép. Majorité, § 5; Wheaton, i. p. 111; Thöl, $$ 81, 87; Schäffner, pp. 47, 48; Savigny, pp. 134, 135: Fœlix, i. No. 33; Massé, ii. p. 84; Story, § 46.

2 Infra, § 259.

& Twenty-one years is the period of majority in France (art. 488), in Italy (art. 323), in Bavaria (statute of Oct. 26, 1813), in Russia (art. 160); twenty-two in Hesse (statute of Sept. 13, 1831); twenty-three in Holland (art. 385); twenty-four in Aus

tria (art. 21), and Prussia (i. (1) § 26); twenty-five in Würtemberg (stat. of May 21, 1828), in Hanover (stat. of Ap. 14, 1815, § 24), in Denmark (1, 3, tit. 17), in Spain (Sala, liv. tit. 8), in Portugal, Mexico, and Norway (Fiore, Op. cit. § 173).

In the United States, majority, for civil purposes, is determined by state law. For men the period fixed by all the states is twenty-one years, and in most states the same limit applies to women. In some states, however, the period for women is reduced to eighteen years. 8 Op. Atty. Gen. 65; Lawrence Com. sur. Wheat. iii. 195.

66

Twenty-five years is the period of majority that our national policy requires; you cannot subvert this policy by coming to us either singly or in crowds and undertaking duties and exercising privileges we do not hold you competent to undertake and exercise." And a state of the second class, fixing majority at twentyone, may, on the same reasoning, properly say: "If you come here to do business, you must do so subject to the responsibilities which our distinctive policy assigns to persons of your age.' The conclusion is that laws establishing the term of majority are laws of national policy which each state imposes on its residents, no matter what may be their allegiance or their domicil. It is true that the enthusiastic advocates of the ubiquity of national status insist that one who is either a major or a minor by his domicil must be regarded as a major or minor throughout the civilized world.2 Yet, as we have seen, these are the speculative views of theorists, not the practical conclusions of the courts.3 In France, for instance, where we have been told by writers of high standing that foreign minority is to be regarded as ubiquitous, it is now settled that the courts will not recognize the incapacity of foreign minority in cases where the French party negotiating with the foreigner was without fault in the transaction, and was led by the latter's conduct to believe him of full age.5 And it was expressly ruled by the Court of Cassation, in 1861, that a foreign minor cannot set up his minority in defence to a claim contracted with him in good faith by a party in France who believed him to be of full age, he having reached the French term of majority. It has been further ruled that, though a foreign minor may set up his minority as a defence to a suit brought against him on bills accepted by him in France, in cases in which the party suing was in a position to take notice of such minority, it is otherwise as to persons who had no such opportunity, e. g. his remote indorsees on negotiable paper. It is true that

1 See supra, § 101.

2 See Fiore, Op. cit. § 173. § 101; 6 South. Law Rev. 694. 3 Supra, § 104 a.

Supra,

4 See Du Chassat, Traité des Statuts, No. 237; Valette sur Proudhon, Etat des personnes, i. p. 85.

5 Jour. du droit int. privé, 1878,

p. 502; Fiore, Droit int. privé, trad. Pradier-Fodéré, Nos. 167 et seq. See, also, supra, § 104 a, n.

Fiore, Op. cit. p. 661.

7 See decisions to this effect in Jour. du droit int. privé, 1879, p.

488.

these rulings have been severely censured by the exponents of the theory of the ubiquity of national status,1 but they exhibit what is unquestionably settled French law. And this law, as we have seen, is more consistent with high civilization, with business security, and with settled liberty, than is that of the ubiquity of national disabilities.2

statutes not

permitted to override such pol

icy.

§ 114. Here it is that we encounter a decision of the Supreme Court of Louisiana, which has met with a degree of Foreign celebrity allotted to few other American adjudications. "The writers on this subject," said the court, "agree that the laws or statutes which regulate minority and majority, and those which fix the state or condition of man, are personal statutes, and follow, and govern him, in every country. Now, supposing the case of our law fixing the age of majority at twenty-five, and the country in which a man was born and lived previous to his coming here placing it at twenty-one; no objection could, perhaps, be made to the rule just stated. And it may be, and, we believe, would be true, that a contract made here between the two periods already mentioned would bind him. But, reverse the facts of the case; and suppose, as is the truth, that our law placed the age of majority at twenty-one; that twenty-five was the period at which a man ceased to be a minor in the country in which he resided; and that at the age of twenty-four he came into this state, and entered into contracts; would it be permitted that he should in our courts, and to the demand of one of our citizens, plead as to protection against his engagements the laws of a foreign country, of which the people of Louisiana had no knowledge? Most assuredly it would

not." 3

To this opinion Mr. Livermore takes grave exception, in which he is followed by Judge Story, who declares that the difficulty is in seeing "how a court, without any such positive (enabling) legislation, could arrive at both conclusions," which he holds to stand upon mere arbitrary legislation, and positive

law, and not upon principle." Sir R. Phillimore is still more sweeping in his denunciation. The case he calls "celebrated and leading," but the conclusion he pronounces to be " monstrous." On the other hand, this same principle, namely, that when there are two conflicting domicils as to capacity, that will be selected which most favors a contract entered into by the person whose capacity is disputed, has been incorporated into the Prussian Code,2 and, on an analogous question, has been lately sustained in England. Bar gives to this conclusion his entire approval. Independently of the ground just stated, that the courts will sustain that construction which most favors capacity, he insists that foreigners, in such cases of conflict, when competent at the place of transaction, are to be regarded by all courts, except those of their domicil and of countries with similar codes, as competent to do the particular act. For, as he argues, it is not to be supposed that a government would exercise a greater tenderness over foreigners than over its own subjects; and if it presumes its subjects to be capable of being relieved from the incapacities of minority at a particular age, it will not undertake to intrude this shelter upon foreigners after such a period. At the same time following the line of the Supreme Court of Louisiana, he maintains that a foreign major does not lose his majority on visiting a country in which by the local law he is still a minor. "Indeed," as he remarks, "this would not be possible without appointing a special guardian for such adult; " and he adds that the position is one universally denounced. In other words, he who is capable of business in his domicil is capable of it everywhere. And such is the drift of the argument of Reinhold Schmid, the learned professor of law at Berne, in his recent interesting tract on this topic. So far as concerns foreigners," he declares, "whose business capacity comes into question before our courts, on the one side, there is no reason to give them a wider protection than

1 IV.

66

p. 252.

the law of England, or the law of

2 A. L. R. § 35. See Savigny, p. domicil, whichever occurs first. Hell

145. Infra, § 429.

An English legacy to an infant domiciled abroad may be paid when

man, in re, L. R. 2 Eq. 363.

4 $ 45, p. 156, note 5.

Die Herrschaft der Gesetze, etc.,

the infant comes of age, either by p. 43, Jena, 1863.

their home laws secure; and, on the other side, it would be repugnant to equity if, by extending to them their foreign protection, they should be more favored than our own citizens. This leads us to the conclusions: (a.) that a foreigner who is capable of business at his domicil must be recognized as so capable by our laws, even though if domiciled among us he would be incapable; and (b.) foreigners who are incapable by their own laws must be treated by us as capable, when our laws so regard them." The first position, he goes on to say, is generally recognized in all cases where capacity is dependent on age. The second, he admits, is contested, but he proceeds to ask whether, if the limitations of business capacity are to be viewed as a favor to the persons so guarded, it is to be presumed that our law should have a tenderer regard for foreigners, in this respect, than for ourselves. And he points out the disturbance to trade, and the medley which would thus be introduced into jurisprudence, if this sentimental enthusiasm for nationality be yielded to.1 And whatever may be the strength of the position that the law most favoring local business capacity will be preferred, there can be no question that neither in England nor in the United States will home statutes, based, as that of minority is, on national policy, be subordinated to foreign statutes based on an antagonistic policy.2 Hence we have several emphatic rulings to the effect that when the law says that twenty-one years shall be

1 The distinction in the text is further extended by Bar, in a review of the first edition of this work. No state, he argues, can impose the disabilities of minority upon a person who is not subject to such disabilities by the laws of his home. It is otherwise, however, when by the laws of a place where a business transaction is performed a party is of full age, though a minor at his home. It is true, adds this able commentator, that there may be a conflict in such cases, since the judex domicilii would probably hold that the person in question, if incapable of business at home, was incapable abroad, while the judex loci actus would decide the other way.

But this very conflict would subserve material justice. The plaintiff would probably select the state in which the defendant had property by which the claim might be satisfied. If this be the state of the litigated transaction, the defendant, who placed it there, could not complain. If, however, the defendant is sued at his own home, a person pursuing him in such home, having trusted him on account of property possessed by him in such home, is open to criticism if he did not, at the time of the transaction, inquire as to the personal relations of the person thus trusted.

2 See supra, §§ 101 et seq., 113. See 6 South. Law Rev. (Jan. 1881) 696.