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, Conf. 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. 'The rule is restricted so as not to apply to wills. Personal capacity as to immovables. 544. The civil capacities and incapacities of an individual in reference to immovable property, are to be determined by the law of the place where the property is situated. In the conflict of authority among continental jurists on this point, we take the rule, fully established in England and America, that the territorial laws of each nation must be allowed to govern as to the capacity of those who may take or transfer title to lands. See Story, Confl. of L., § 430. For the French doctrine as to the extent to which the law of the location of immovables regulates the capacity of the person in respect to immovables, and the rights resulting from transactions in reference to immovables, see Felix, Droit Intern., vol. 1, p. 21. Demangeat is of opinion that, when once it is clear that the law of the place where the immovables are situated does not exclude the foreigner, in his quality of foreigner, from the right to dispose of or to receive, thenceforth all questions of capacity or incapacity must be determined according to the rules of law applicable to the person of the foreigner. (Felix, Droit Intern., vol. 2, p. 122, note a.) The objection to the rule allowing the law of the nationality to govern in reference to infancy, is again mentioned under another article. The following modification of this rule is laid down by Story, Confl. of L., § 104: Personal disqualifications, arising from the principles of the customary or positive law of the nation of the foreigner, will not be recognized in other countries where the like disqualifications do not exist. Corporate capacity. 545. Corporations and other artificial persons have no existence beyond the jurisdiction of the power by virtue of which they exist, and have no capacity beyond that which is conferred by the law of such power. This is the settled doctrine of the American Law of Corporations. Bank of Augusta v. Earle, 13 Peters' U. S. Supreme Ct. Rep., 588; Ohio & Mississippi R. R. Co. v. Wheeler, 1 Black, 286; County of Allegheny v. Cleveland, &c., R. R. Co., 51 Pennsylvania Rep, 228; and other cases collected in Abbott's Digest of the Law of Corporations, pp. 336, 567. Several of the French treaties contain a provision to the effect that corporations, companies and associations, commercial, moneyed and industrial, as well as joint stock companies and societies of limited liability, formed and authorized according to the laws of either nation, have and may exercise their rights and powers, and may appear in court, whether to institute or to defend actions in any place within the territorial limits of the other nation, without any other condition than that of conformity to the laws of such nation.. This provision applies as well to such bodies formed previous to the adoption of the treaty, as those which are thereafter formed. Treaty of commerce and navigation between France and The Free Cities of Lu beck, Bremen & Ham- Mar. 4, 1865, Art. XVIII., 9 De Clercq, 187. burg, Grand Duchy of Meck-) lenburg Schwerin,— (extended tothe) Grand June 9, 1865, " XXI., 9 Id., 295. burg-Strelitz, Turkish and Egyptian business corporations are authorized to exercise their powers in France. 7 De Clercq, 614. See, also, imperial decrees of February 27, 1861, affecting the relations of France, Luxembourg and Portugal. It is not, however, thought wise to take such a rule as a general one, but to leave corporations with the powers conferred by the domestic law only, except where such special treaties exist. CHAPTER XXXIX. MARRIAGE. ARTICLE 546. " Marriage" defined. 547. Valid foreign marriages. 548. Void marriages. 549. Capacity and consent. 550. Requisite forms. 551. Public ministers and consuls may solemnize marriages. 552. Criminal offenses. 553. Evasion of home law. 554. Personal, marital and parental rights. 555. Polygamy. 556. Legitimacy. "Marriage" defined. 546. The term "marriage," as used in this Code, means the union, voluntary and for life, of one man with one woman. Lawrence's Commentaire sur Wheaton, vol. III. See Revue De Droit International, &c., 1870, No. 1, p. 53. " 'Marriage is one and the same thing, substantially, all the world We regard it as a wholly different thing, a different status over. ... from Turkish or other marriages among infidel nations." Lord Brougham, in Warrender v. Warrender, 2 Clark & Finnelly's Rep., 532. The definition of marriage, as understood by the law of nations, given in Rock v. Washington, 19 Indiana (Kerr) Rep., 53, is as follows: Marriage is the union of one man and one woman, so long as they both shall live, to the exclusion of all others, by an obligation which, during that time, the parties cannot, of their own volition and act, dissolve, but which can be dissolved only by authority of the State. And it is there added, that nothing short of this is meant when it is said that marriages, valid where made, will be upheld in other States. (Citing Noel v. Evans, 9 Indiana, 37; Story's Conflict of Laws, ch. 5; Wheaton's Law of Nations, 137.) See Hyde v. Hyde, Law Rep., 1 Probate and Divorce, 130. In this case, the court were in error in supposing, according to the testimony, that a polygamous marriage is valid in Utah. By the act of Congress of 1862, such marriages are illegal. See Lawrence's Commentaire sur Wheaton, vol. III., quoted in Revue de Droit International, &c., 1870, No. 1, p. 57. Valid foreign marriages. 547. Subject to the provisions of Part VI., on the ADMINISTRATION OF JUSTICE,' a marriage, valid according to the law of the place where it is contracted, is valid everywhere, and the issue of such a marriage is everywhere legitimate. This, in so far as it relates to the form of marriage, is the general doctrine, supported by all authorities. And it applies as well to transient as to domiciled persons. 1 Bishop on Marriage and Divorce, § 353. By the French law, the rule is modified by the application, together with it, of the principle that the laws concerning the status and capacity of persons, control Frenchmen, even when resident in foreign countries. Falix, Droit International, vol. 2, p. 367. But there is considerable disagreement of opinion as to what exceptions should be allowed to this general rule. The following exceptions have each the sanction of some authority: 1st. Polygamous marriages. These are excluded by the definition in Article 546. Such obligations of the married state as it may be proper to impose upon the parties to a polygamous union, when the case arises in a Christian country, are provided for by Article 555. 2nd. Marriages which are incestuous by the law of the place where they are drawn in question. Ponsford v. Johnson, 2 Blatchford's U. S. Circuit Ct. Rep., 51; Story on Conflict of Laws, § 87. But Parsons suggests that a question might be made whether it would be held incestuous so far as to avoid the marriage, if within the degrees prohibited by the law of the State in which the question arose, or only if it be kindred who are too near to marry by the law of the civilized world. 2 Parsons on Contracts, 599. And Shelford (on Marriage and Divorce, 127, 7,) as well as Bishop (on Marriage and Divorce, vol. 1, § 389,) intimates the |