decisions on the point; and ever since the case of Saul and His Creditors the doctrine there enunciated may be taken as the law of America.

Among the Continental codes we find that the code of Baden, while adopting the rule of the French code, makes an exception as to all questions relating to contract; that the Dutch code provides that the Dutch laws relating to the status shall bind the Dutchman in every other country, but that the foreigner, resident in Holland, shall be subject to the Dutch law only, and not to the law of his domicile. The Russian code has similar provisions, as had apparently the code of the Two Sicilies; but it is needless to point out that such rules have nothing to do with any principle of comity, and are almost tantamount to a repudiation of the whole system of Private International Law by the country enacting them.

If we turn to the text books, we find that the chief supporters of the American theory are Burge and Story, but we shall see that Story's support is somewhat weak and wavering. Burge relies on the Louisiana cases, quotes Grotius and Lord Stowell to the effect that a man who contracts in a foreign country is bound to know the law of country, says that the decisions in the Courts of England, Scotland, and the United States adopt this lex loci contractús, and sums up with an appeal to the argument of convenience. "This doctrine," he says, "promotes, whilst that to which it is opposed is inconsistent with those principles of mutual convenience which induce the recognition of foreign laws. The obstacles to commercial intercourse betweeen the subjects of foreign States would be almost insurmountable if a party must pause to ascertain, not by the means within his reach, but by recourse to the law of the domicile of the person with whom he was dealing, whether the latter has attained the age of majority, and consequently whether he is competent to enter into a valid and binding contract." To this part of Mr. Burge's

argument I would reply, that it is just as easy to ask a foreigner, with whom you are going to contract, whether he is "sui juris" by the law of his domicile, as it is to ask him his age, and that, in both cases, it is equally difficult to ascertain the correctness of his answer, for it cannot be predicted that he is more likely to have in his pocket his baptismal certificate than a copy of the code of the land in which he is domiciled. With regard to the quotation from Grotius, which is that "if a stranger makes an agreement with a citizen, he is bound by the same laws; because he who makes a contract in any place is under the laws of the place as a temporary subject," I would remark that Grotius himself points out that the promises of minors have nothing to do with the "law of nature and nations," thereby implying that they have nothing to do with his subject. In fact Grotius wrote while the whole system of comity was yet in its infancy, and he naturally does not take into consideration a system which is founded on the assumption that not only the law and morality common to all nations should be recognised in Courts of any nation, but also the positive laws of each nation provided they do not come into conflict with the “jus naturæ et gentium."

When I turn to Story I find that in the main he is agreed with Burge that the lex loci contractûs is adopted in questions of capacity in England and the United States. But his own opinion on the subject is by no means clearly stated. As I said above, he thinks the case of Saul and His Creditors stands upon arbitrary legislation, and in one place he says that a nation should adopt some definite rule on the subject. He apparently however cannot make up his mind which rule it should be, and perhaps the following words may be taken to be his real view of the matter: "The truth seems to be that there are, properly speaking, no universal rules by which nations are, or ought to be, morally or politically bound to each other on this subject. Each nation may well adopt for itself such modifications of the general

doctrine as seem most convenient, and most in harmony with its own institutions, and interests, and policy." This seems tantamount to a confession that the learned judge is utterly puzzled, and in fact it is properly pointed out by Wharton, in his "Conflict of Laws," that Story laboured under the disadvantage of writing without the information of the views of Wächter, Savigny, or Fœlix.

The authorities on the subject are very well stated by Wharton, but with his own theories I cannot agree. He adopts a solution of the difficulty based on the position that statutes which destroy capacity are disfavoured internationally, while those which protect capacity are favoured. Among the statutes which destroy capacity he puts those which establish slavery or civil death, and those which impose disabilities upon persons of full age, while as instances of the other class, he mentions those which restrain infants and married women. He then discusses in detail all the different kinds of incapacity, and when he comes to infancy, lays down the following rule: "In respect to infancy by the natural law the question does not admit of doubt (i.e., that the lex domicilii must decide). But it is different when infancy approaches that period as to which particular countries, following climate or tradition, have attached various bounds." His theory, therefore, with regard to infancy seems to be this: Up to the age, which by the law of nature is full age, personal incapacity must be judged by the law of domicile, because it imposes this incapacity in order to protect capacity. On the other hand, in questions concerning persons who have passed this natural majority, the law of domicile must be rejected, because it imposes incapacity for the purpose of destroying capacity. This sounds very like nonsense, but, as far as I can make out, it is what Wharton contends for as the true solution of the difficulty. The notion of an imaginary age, which the natural law has settled to be the age of majority, is ridiculous. Natural law, meaning the law of God, has nothing

to do with the question; and if by natural law Wharton means the positive morality common to all nations, we get no further than this, that by this law persons of twelve are minors, and persons of thirty are majors. The imaginary border line is, therefore, rather a wide one. I would also point out that statutes in restraint of minors and married women destroy capacity just as much as any other statutes which impose disability. The difference between the two classes is, that the one especially aims at destroying the capacity for incurring duties, while the object of the other is to destroy the capacity for taking rights.

I am now brought to a consideration of what the English law on the subject is. Mr. Foote states it in the following form: "When the lex loci of an act or of a contract competes with the lex domicilii of the person with regard to his capacity, the former prevails." Story and Westlake both say that, according to English law, the lex loci contractús must decide questions of personal capacity, but Westlake admits that the array of authority on the subject is very weak, and that the argument derived from questions of capacity to marry has been much shaken by the decision in Brook v. Brook. Phillimore's remarks are still stronger. He says: "The state of jurisprudence presented by the practice of the English and American tribunals upon the question of the personal status of foreigners will be found very unsatisfactory, whether it be considered with reference to comity, as being at variance with the law of the rest of the Christian world, or with reference to its own domestic jurisprudence, being marked by painful and clumsy inconsistencies." Mr. Fraser, who seems to have forgotten what he had previously written in his "Parent and Child," criticises Lord Justice Cotton's dictum to the effect that the learned judge was not aware that the old doctrine (i.e., that the lex domicilii must decide) was abandoned as an impracticable one, and that his decision ignores the judgments which sustained the marriages of English minors in Scotland, and

is in direct contradiction with the judgment of Sir Cresswell Cresswell in Simonin v. Maillac. Mr. Foote likewise protests that " If it is a well-recognised principle of law' that the law of domicile is to exclude the law of the place of contract, it has become so since Story wrote and since Lord Eldon sat at Nisi Prius."

Mr. Foote here alludes to the case of Male v. Roberts,* which is, perhaps, not so celebrated as it deserved to be, for it is upon this solitary case that American writers have been kind enough to build up for us a theory which English writers, though not without some murmuring, have been weak enough to accept as a true enunciation of English law. And so when a judge speaking in the name of the Court of Appeal, states what the real law is, there is an immediate outcry that he is unsettling the law. It seems to me that if the statement in question had been a decision on the express point, and not a mere dictum, which (though Mr. Foote seems to forget this) cannot alter the law one hair's breadth, it would rather have been entitled to the merit of settling the law.

But to consider the case of Male v. Roberts. It is a very simple one. The defendant was a performer in a circus at Edinburgh; he became indebted for liquors of different sorts, and was arrested; the plaintiff paid the money for him, and the defendant refused to repay him. The action was brought to recover the money, and the defendant pleaded that he was an infant when the money was advanced to him. Lord Eldon said that the law of the country where the contract arose must govern the contract, and that consequently the defendant must show that infancy was a good defence by the law of Scotland. The plaintiff failed in proving his case, and was non-suited.

Where is the principle laid down here, that the question of personal capacity must be decided by the lex loci contractûs? There is not one word in it about capacity. The * Rep. 3 Espinasse's Reports, p. 163.