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We do not consider it immoral, but only inexpedient, and therefore the subject is perpetually being discussed in both Houses of the Legislature. With regard also to the rights of married women, we take what may be called a neutral ground. In our country married women labour under considerable disabilities, but we should certainly recognise the law of a foreign country which put married women upon perfect equality with men, though it is quite conceivable that there might exist some small republic in which any incapacity attached to a married woman was considered absolutely immoral, and therefore not recognised in its law

courts.

I now come to the consideration of the different theories on the question of personal capacity to contract. There are three theories, of which, however, only two deserve the name of a theory, and only two have met with any favour in practice. The first theory is, that the capacity to contract must, with the exceptions before mentioned, be decided by the law of domicile, the second that it must be decided by the "lex loci contractûs," and the third that the abstract "status" must be judged according to the law of domicil, but the capacity arising from the status by the "lex loci." The first is held by a great majority of Continental jurists, and is adopted in nearly all Continental codes. It may, therefore, be called the Continental theory. The second, which has, in fact, never been seriously propounded as a theory, but is the result of a sort of conflict between principle and convenience, in which convenience has gained the upper hand, has found its chief advocates in America, and is stated by Story, Westlake, and Phillimore to be the one recognised in the English Courts, though they confess there is very little authority on the subject. The third theory was first propounded by Hertius, in 1688, and was adopted by Meier who wrote in 1810, and Mittermaier, and lastly by Wächter in four articles published in 1841 and 1842 in the

"Archiv für Civilistische Praxis." It may be stated more fully as follows: The abstract legal qualities of a person (die rechtlichen Eigenschaften einer Person an sich) must be judged according to the law of domicil, but the rights and incapacities (Beschränkungen) which spring from the status by some other law. As to what that other law is, there is some difference of opinion among the upholders of this theory. At first sight there is a specious look about it, which tempts one to think that this is the true one, but like all half measures it has never met with any favour, and the simple objection to it stated by Savigny is convincing. The gist of his objection is that a status is merely a name for the set of rights and capacities which form it, and that it can have no abstract existence apart from its component parts. To give an instance: If the rights of a domiciled Prussian, aged twenty-four, and therefore a minor by the law of domicil, had to be decided upon in our law courts, the advocate of Wächter's theory would say, "We will recognise your minority, but your rights and capacities as a minor must be governed by our law with regard to minors." But Savigny points out that the term "minor" is merely a term which has accidentally been attached to a certain set of rights and capacities, and that to be consistent with the theory, other sets of rights and capacities, such as those of a French minor at sixteen, which have no specific name attached to them, should be judged, as regards their abstract qualities, by the law of domicile, but this is impossible, since the status has no specific name, and there is no status corresponding to it in other countries.

I may, therefore, leave the intermediate theory, and proceed to consider the conflicting claims of the Continental and the American views. The earliest exponents of the Continental theory seem to be Argentræus and Rodenburg, who wrote in the middle of the seventeenth century. They were followed by Huberus and by Boullenois, who published

a French translation of Rodenburg, with considerable additions, in 1776. Fœlix held the same doctrines, except that he substituted the law of origin for the law of domicile; his editor, Demangeat, however, expressly limits the doctrine to domicile. Pardessus also takes this view, and, as I said before, the great majority of Continental codes are in favour of it. The French code merely says, with its grand Napoleonic air: "Les lois concernant l'état et la capacité des personnes régissent les Français même résidant en pays étranger," but the uniform decisions of the Courts show that the same right is allowed to the foreigner in France, which is claimed for the Frenchman in other countries. The Austrian civil code has two regulations on this subject, which provide that the personal capacity of the Austrian subject shall be governed by the law of his domicile as to transactions in another country, and that the personal capacity of foreigners shall ordinarily be determined by the laws of the place to which the foreigner is subject by virtue of his domicile. Belgium, Italy, and some of the Swiss cantons take the same line. In the Prussian code we find "The personal qualities and capacities of a man are judged by the positive laws of the jurisdiction under which he is properly domiciled;" and "Subjects of foreign states, who live or carry on business in these lands must be judged according to the preceding rule." But the Prussian code has also the following provision: "A foreigner who enters into contracts in these lands concerning things therein situated, is judged in respect of his capacity to act according to those laws by which the transaction may best subsist." This rule, Savigny informs us, is a purely positive one, laid down with the view of protecting subjects against the consequences of an innocent error, perhaps even of the dishonesty of their adversary. The most philosophic and consistent exposition of the Continental theory is to be found in the last volume of Savigny's great work, which was published in the year 1848. As I have mentioned before,

he rejects Wächter's division of status, and with the exceptions discussed above, adopts the law of domicile as the only true criterion of personal capacity. It is objected by Wharton that the exceptions he allows reduce his theory to little more than a declaration that no law obtains within a country except that which that country itself contains. But I cannot agree with this objection, for the reasons I have given; the exceptions seem to me to come under one simple head and to be perfectly consistent with the true spirit of Private International Law.

The most recent supporter of the Continental theory is Dr. Bar, an Assessor of the Royal Court at Hanover, in his "Internationale Privat-und Strafrecht," published in 1862.* He, however, is of opinion that when a person is of full age by the "lex loci actus," a bona fide transaction with him should be sustained. This seems to be an important exception, and to be identical with the provision in the Prussian code. I shall endeavour to show hereafter that both are perfectly consistent with the domicile theory, and that they by no means amount, as some writers have supposed, to an adoption of the opposite theory.

Mr. Patrick Fraser in his "Parent and Child," apparently following Bar, also makes fraud an element to be taken. into account. He gives his adhesion to the Continental view, and says that though there is a dictum of Lord Meadowbank in favour of the "lex loci contractûs," the Scotch law is now tending the other way.

The other writers who take this side are Phillimore, Westlake, and Livermore, who, in an instalment of a work on Private International Law, which he did not live to complete, criticises the judgment of the Louisiana Court in Saul v. His Creditors in most severe terms.

I now come to the American theory, that personal capacity to contract must be decided by the "lex loci con

I have not seen Dr. Bar's book Wharton and Fraser speak of it in terms of the highest praise.

tractûs." In the first place, there is a little difficulty as to what is meant by the "locus contractus." If it is taken in the old sense of the term, viz., "locus celebrationis," the place where the contract is made, the theory must be limited to contracts which concern things situated in the country where the contract is made. It is in this sense that Mr. Foote understands it, but he does not make the necessary limitation. Does he seriously contend that an English Court of Law would declare that a contract entered into in this country between an Englishman and a foreigner, concerning something situated in the foreigner's country, was valid, if there the contract would be declared null and void, and consequently it could not be enforced? But now that Savigny has so clearly pointed out that the true seat of a contract, in all cases in which a place of fulfilment is fixed, is the place of fulfilment, it seems better to take the "locus contractus" in this, its proper sense of "locus solutionis."

The American theory seems first to have taken shape in the celebrated case, to which I have already alluded, of Saul v. His Creditors, in which it was gravely stated by the Supreme Court of Louisiana that they would recognise the personal disability of a foreigner in a case of minority, when it was contrary to their own law on the subject, if such recognition helped to sustain a contract with an American citizen; but if it had the opposite effect, they would refuse to recognise it. Phillimore justly characterises this conclusion as monstrous, Livermore criticises it most severely, and even Story says that it seems to stand upon mere arbitrary legislation. In an earlier case in the same Court it was stated that, according to the law of nations, "personal incapacities, communicated by the laws of any particular place, accompany the person wherever he goes. Thus he, who is excused from the consequences of contracts for want of age in his own country, cannot make binding contracts in another." But this is at variance with later

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