but the opinions of jurists and the practice of nations have been much divided upon the question, how far the title of his assignees or syndics will control his personal property situated in a foreign country, and prevent its being attached and distributed under the local laws in a different course from that prescribed by the bankrupt code of his own country. According to the law of most European countries, the proceeding which is commenced in the country of the bankrupt's domicile draws to itself the exclusive right to take and distribute the property. The rule thus established is rested upon the general principle that personal (or movable) property is, by a legal fiction, considered as situated in the country where the bankrupt had his domicile. But the principles of jurisprudence, as adopted in the United States, consider the lex loci rei site as prevailing over the lex domicilii in respect to creditors, and that the laws of other States cannot be permitted to have an extra-territorial operation to the prejudice of the authority, rights, and interests of the State where the property lies. The Supreme Court of the United States has therefore determined, that both the government under its prerogative priority, and private creditors attaching under the local laws, are to be preferred to the claim of the assignees for the benefit of the general creditors under a foreign bankrupt law, although the debtor was domiciled and the contract made in a foreign country.'

3. The general rule as to the application of personal The lex loci statutes yields in some cases to the operation of the lex contractus loci contractus.

often causes exceptions to this rule.

Thus a bankrupt's certificate under the laws of his own country cannot operate in another State, to discharge him from his debts contracted with foreigners in a foreign country. And though the personal capacity to enter into the nuptial contract as to age, consent of parents, and prohibited degrees of affinity, &c., is generally to be governed by the law of the State of which the party is a subject, the marriage ceremony is always regulated by the law of the place where it is celebrated; and if valid there,

1 Bell's Commentaries on the Law of Scotland, vol. ii. pp. 681-687. Rose's Cases in Bankruptcy, vol. i. p. 462. Kent's Commentaries on American Law, vol. ii. pp. 393, 404-408, 459, 5th edit. Cranch's Rep. vol. v. p. 289 — Harrison v. Sterry. Wheaton's Rep. vol. xii. pp. 153-163- Ogden v. Saunders.

it is considered as valid everywhere else, unless made in fraud of the laws of the country of which the parties are domiciled subjects.

§ 7. Lex loci contrac

II. The municipal laws of the State may also opetus. rate beyond its territorial jurisdiction, where a contract made within the territory comes either directly or incidentally in question in the judicial tribunals of a foreign State.

A contract, valid by the law of the place where it is made, is, generally speaking, valid everywhere else. The general comity and mutual convenience of nations have established the rule, that the law of that place governs in every thing respecting the form, interpretation, obligation, and effect of the contract, wherever the authority, rights, and interests of other States and their citizens are not thereby prejudiced.1

Exceptions

This qualification of the rule suggests the exceptions to its opera- which arise to its application. And,

tion.

1. It cannot apply to cases properly governed by the lex loci rei sita, (as in the case, before put, of the effect of a nuptial contract upon real property in a foreign State,) or by the laws of another State relating to the personal state and capacity of its citizens.

2. It cannot apply where it would injuriously conflict with the laws of another State relating to its police, its public health, its commerce, its revenue, and generally its sovereign authority, and the rights and interests of its citizens.

Thus, if goods are sold in a place where they are not prohibited, to be delivered in a place where they are prohibited, although the trade is perfectly lawful by the lex loci contractus, the price cannot be recovered in the State where the goods are deliverable, because to enforce the contract there would be to sanction a breach of its own commercial laws. But the tribunals of one country do not take notice of, or enforce, either directly or incidentally, the laws of trade or revenue of another State, and

1 "Rectores imperiorum id comiter agunt, ut jura cujusque populi intra terminos ejus exercita, teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium præjudicitur." Huberus, l. i. tit. 3, de Conflict. Leg. § 2. "Effecta contractuum, certo loco initorum, pro jure loci illius alibi quoque observantur, si nullum inde civibus alienis creetur præjudicium, in jure sibi quæsito." Ib. § 11.

therefore an insurance of prohibited trade may be enforced in the tribunals of any other country than that where it is prohibited by the local laws.'

Huberus holds that the contract of marriage is to be Foreign governed by the law of the place where it is celebrated, marriages. excepting fraudulent evasions of the law of the State to which the party is subject.2 Such are marriages contracted in a foreign State, and according to its laws, by persons who are minors, or otherwise incapable of contracting, by the law of their own country. But according to the international marriage English law. law of the British Empire, a clandestine marriage in Scotland, of parties originally domiciled in England, who resort to Scotland, for the sole purpose of evading the English marriage act, requiring the consent of parents or guardians, is considered valid in the English Ecclesiastical Courts. This jurisprudence is said to have been adopted upon the ground of its being a part of the general law and practice of Christendom, and that infinite confusion and mischief would ensue, with respect to legitimacy, succession, and other personal and proprietary rights, if the validity of the marriage contract was not determined by the law of the place where it was made. The same principle has been

1 Pardessus, Droit Commercial, pt. vi. tit. 7, ch. 2, § 3. Emerigon, Traité d'Assurance, tom. i. pp. 212-215. Park on Insurance, p. 341, 6th ed. The moral equity of this rule has been strongly questioned by Bynkershoek and Pothier.

2 "Si licitum est, eo loco ubi contractum et celebratum est, ubique validum erit, effectumque habebit, sub eâdem exceptione, prejudicii aliis non creandi." Huberus, De Conflict. Leg. 1. i. tit. 3, § 8. He puts, as an example of this exception, the case of parties going into another country, merely to evade the law of their own, as to majority and guardianship. "Sæpe fit, adolescentes sub curatoribus agentes, furtivos amores nuptiis conglutinare cupientes, abeant in Frisiam Orientalem, aliave loca, in quibus curatorum consensus ad matrimonium non requiritur, juxta leges Romanas, quæ apud nos hâc parte cessant. Celebrant ibi matrimonium, et mox redeunt in patriam. Ego ita existimo, hanc rem manifeste pertinere ad eversionem juris nostri; et ideo non esse magistratûs, huic obligatos, è jure gentium, ejusmodi nuptias agnoscere et ratas habere. Multoque magis statuendum est, eos contra jus gentium facere videri, qui civibus alieni imperii suâ facilitate, jus patriis legibus contrarium, scientes, volentes, impertiuntur." De Conflict. Leg. Idem.

recognized between the different States of the American Union, upon similar grounds of public policy.1 (a)

French law. On the other hand, the age of consent required by the French Civil Code is considered, by the law of France, as a personal quality of French subjects, following them wherever they remove; and, consequently, a marriage by a Frenchman, within the required age, will not be regarded as valid by the French tribunals, though the parties may have been above the age required by the law of the place where it was contracted.2 (b)

3. Wherever, from the nature of the contract itself, or the law of the place where it is made, or the expressed intention of the parties, the contract is to be executed in another country, every thing which concerns its execution is to be determined by the law of that country. Those writers who affirm that this exception extends to every thing respecting the nature, the validity, and the interpretation of the contract, appear to have erred, in supposing that the authorities are at variance on this question. They will be found, on a critical examination, to establish the distinction between what relates to the validity and interpretation, and what relates to the execution of the contract. By the usage of nations, the former is to be determined by the lex loci contractus, the latter by the law of the place where it is to be carried into execution.3

1 Haggard's Consist. Rep. vol. ii. p. 428-433. Kent's Commentaries, vol. ii. p. 93.

(a) [Story on Conflict of Laws, § 89. The same doctrine has been applied in Massachusetts, to admit the legitimacy of the issue of a person who had been divorced à vinculo for adultery, and had been declared by the local law incompetent to marry again, but who had gone into a neighboring State, and there contracted a new marriage, and had issue by that marriage; and the widow by such second marriage has, likewise, been declared entitled to dower in the real estate of her husband. Id. §§ 123, 124.]

2 Merlin, Repertoire, tit. Loi, § 6. Toullier, Droit Français, tom. i. No. 118,

576.

(b) [“ There can be little doubt that foreign countries, where such marriages are celebrated, will follow their own law and disregard that of France." Story on Conflict of Laws, § 90. For a resumé of the laws of the States which have, and of those which have not, adopted the principle of the French Code, see Fœlix, Des Mariages Contractés en Pays Étranger. Rev. Etr. et Franç. tom. viii. p 633.] 3 Fœlix, Droit International Privé, § 74.

§ 8. Lex

4. As every sovereign State has the exclusive right of regulating the proceedings, in its own courts of justice, fori. the lex loci contractus of another country cannot apply to such cases as are properly to be determined by the lex fori of that State where the contract is brought in question.

Thus, if a contract made in one country is attempted to be enforced, or comes incidentally in question, in the judicial tribunals of another, every thing relating to the forms of proceeding, the rules of evidence, and of limitation, (or prescription,) is to be determined by the law of the State where the suit is pending, not of that where the contract is made.1 (a)

§ 9. For

III. The municipal institutions of a State may also operate beyond the limits of its territorial jurisdiction, eign sovin the following cases:

ereign, his ambassador, army, or

1. The person of a foreign sovereign, going into the fleet, within the territory territory of another State, is, by the general usage and of another comity of nations, exempt from the ordinary local juris- State. diction. Representing the power, dignity, and all the sovereign

1 Kent's Commentaries, vol. ii. p. 459, 5th ed. Felix, Droit International Privé, § 76.

(a) [The rule of the Supreme Court of the United States always has been that the laws of a foreign country, designed only for the direction of its own affairs, are not to be noticed by other countries, unless proved as facts; and that the sanction of an oath is required for their establishment, unless they can be verified by some other authority, that the law respected not less than the oath of an individual. The Court decided that the Code Civil, which is contained in one of the volumes of the "Bulletin des Lois, à Paris, l'imprimerie royale," with the indorsement, "Le Garde des Sceaux de France, à la Cour Suprême des États Unis," which was sent to the Supreme Court in the course of our national exchanges of laws with France, which Congress had acknowledged, and to reciprocate which they had made an appropriation, was authenticated in such a way as that it might be received by the Court, for the purpose of proving what the law of France was in the case under consideration. Howard's Reports, vol. xiv. p. 429. Ennis et al. v. Smith et al.

By the 69th article, § 9, of the French Code of Civil Procedure, in case of proceedings against foreigners, a copy of the writ (exploit) is required to be sent to the department of Foreign Affairs. This is done in order that it may reach the party interested; and the rule is, for the department to send it to the proper French Diplomatic Agent, to be delivered to the Ministry of Foreign Affairs of the government to which he is accredited. Felix, Droit International Privé, § 150.]