with instructions to enter a decree in favor of the plaintiffs and against the corporation and its officers, in accordance with the prayer of the bills, and also a decree dismissing the suit as to the attorney-general of Kansas, without prejudice to any further suit or action."

The form of the last part of this order and the reasons therefor as stated by the court are such that no new light is thrown upon the question of jurisdiction under the Eleventh Amendment. N. Matthews, Jr.

W. G. Thompson.

BOSTON, December 3, 1901.

THE LAW OF CAPACITY IN INTERNATIONAL MARRIAGES.

NE of the most intricate questions that can arise out of the conflict of laws is that of the validity of international marriage; and the effect of invalidity is so disastrous, both materially and morally, that the right solution of the problem is one for which above all others the conscientious lawyer should anxiously seek. Not only is the problem intricate in its nature, but so various are the solutions reached in the different civilized states that no lawyer can safely advise in the matter without some familiarity with the law of each country involved in the marriage.

Marriage is now regarded in all civilized states as a status based upon legal consent of the parties; this consent, however, is not self-operative, but gives rise to the status only as the result of the consent of the proper sovereign power, acting through its law. So far as the parties are concerned, assuming their consent in fact, nothing further is required for a valid marriage but their capacity to give a legal consent; this capacity of parties is the greatest difficulty involved in determining the validity of an international marriage.

There is a fundamental difference between the common law and the civil law of Europe in their conception of personal capacity. The common law regards a man as a natural creature; if he is alive, if he has a mind and exercises it, if he is a free and independent being, the law accepts him as such. A few cases are, to be sure, dealt with artificially: an infant, though he may in fact have a consenting mind, is incapable of contracting; a married woman, though she may in fact be the moving spirit of the family, is dealt with as under her husband's coercion; a corporation, though in fact an aggregation of individuals, is dealt with as a single entity. These are recognized as exceptions to the general rule, based upon reason, but technical and arbitrary. In European countries, on the other hand, natural facts and powers of human life are nothing to the law until the law makes them so. If the law will, a man lives; if it so decree, he dies before the law, though his natural life continues unchanged. If the law endows him with power to speak, to will, to act, he may effectively do so; if not, then so far as legal results go, his speech is inarticulate, his will a mere

thought, his act is as if never done. Until the law gives a man any capacity, he is not regarded as possessing it. Civil capacity, in short, is altogether a creature of the law, and is dependent, therefore, upon some law having conferred it. Once conferred, the capacity to act becomes a status, continuing until taken away again by the proper law, as may happen by civil death, interdiction, or bankruptcy. This doctrine has been most forcibly defended by Professor Pillet.1

"A law once applied to a person," he says, "should be continuous if it is to have every real quality of law. Suppose it ceases to apply to a person when he leaves his own country, or that it only remains inapplicable to such of the person's property as is situated in a foreign country, and it will be clear that the law misses its object because it misses continuity of effect. . . . One can see that if, in the case of the same person, a period of complete incapacity is followed by a period of limited capacity, all the results that the legislator might attain by the rules he established will be forever compromised by the breach of continuity which will be produced in the application of the rule."

Since civil capacity is a status, it must (according to this view) be conferred by the proper law, which is the law of the sovereign who has power over the status. Down to the French Revolution that sovereign was regarded in all European states as the sovereign within whose territories the individual was domiciled; status (including capacity) was governed by the law of the domicil. The framers of the Code Napoléon, however, adopted the law of the nation to which the man owed allegiance, rather than that of his domicil, as the source of his civil rights; and the change has been successively adopted in most of the European codes of the nineteenth century. Belgium and Holland received the Code Napoléon directly; Italy adopted its principles in the Code of 1861; Spain in the Civil Code of 1889; and finally the German empire in the Civil Code of 1900.5 In most European states, therefore, capacity, once regulated by the law of the individual's domicil, is now regulated by the law of his nation. This doctrine, so clearly set forth in the codes and the treatises of the continent, and stated as if it were to be applied in all cases, is nevertheless subject to many exceptions when actually applied by courts in litigated.

121 Clunet's Journal du Droit Internat. Privé 417.

2 Section 3.

• Preliminary Dispositions, § 6.

4 Art. 9; so Mexico, Civil Code, Art. 12.

6 Art. 7.

cases. Where the capacity created by the law of the status ap pears to be for the benefit of citizens of the forum, the doctrine is rigorously applied; but where it would operate to the fraud, or even to the disadvantage of citizens of the forum, the courts are quick to find an exception. Thus, in the case of De Lizardi v. Chaize,1 where the defendant was an infant by his own law, though he would have been of age in France, the Court of Cassation said :

"It is proper in applying the foreign statute to enforce restrictions and limitations without which there would be constant danger of error or surprise to the prejudice of French citizens. Though on principle one is bound to know the capacity of the person with whom one enters into a contract, the rule cannot be so strictly and rigorously applied with regard to foreigners contracting in France. Civil capacity may in fact be easily verified in the case of transactions between French citizens; but it is otherwise as to transactions that take place in France between Frenchmen and foreigners. In such a case, the Frenchman cannot be held to know the laws of various nations, and their provisions as to minority and majority and the extent of the power of foreigners to make agreements within the limits of their civil capacity. It is sufficient for the validity of the contract that the Frenchman has acted without laches and negligence and in good faith."

And in the similar case of Fourgeaud v. Santo Venia,2 the Court of Paris said:

66

Though the laws which govern the status and capacity of persons follow those persons wherever they go, whatever be their domicil of origin, yet one must remember that the application of the foreign statute is subject to restrictions and limitations required by the legitimate interest of citizens of France who have become such by regular banking operations."

Indeed, the Supreme Court of Hanover in 1846 stated the rule very much as an American court would now state it.1

"The rule must always be, that a court shall decide according to the law of the land. The exception to this rule, based solely on peculiar

1 Jour. du Palais, 1862, 427; printed in translation in 2 Beale's Cases on Conflict of Laws 34.

6 Clunet 488; 2 Beale's Cases 35.

8 Acc. Cussac v. Hartog (Paris, 1883), 10 Clunet 290. In a similar case the Civil Tribunal of the Seine said: "It is a principle of natural law and of the public order of France that no one shall enrich himself at the expense of another; such a rule, like laws of police and of safety, binds, without distinction of origin or nationality, all whe are on French soil." 14 Clunet 178.

4 Manager of the Court Theatre of Hanover v. G., 13 Seuffert's Archiv 10; 2 Beale's Cases 33.

usage, according to which the minority of a foreigner is determined by the law of his domicil, cannot be extended in the decisions so as to cover the legal consequences of such minority. The effect of the defendant's agreement, attacked as the contract of a minor, is therefore to be determined by our law."

Such modifications of the express provisions of a code by judicial decisions should always be borne in mind in dealing with foreign codes.

If, consid

The common law, on the other hand, considering that individuals are by nature endowed with capacity to act, looks at each act and judges the effect of it in view of all its circumstances, including the natural capacity of the particular individual. ering all these circumstances, the law, within the jurisdiction of which the act was done, gives it legal effect, no other consideration enters into the case. The question whether consent in fact by a party is legally effective is, therefore, to be determined by the law which has jurisdiction over the act of giving consent, that is, by the law of the place; capacity to act, in short, is determined by the law of the place of the act. Judge Story puts the matter with his usual clearness and accuracy:1

"In regard to questions of minority or majority, competency or incompetency to marry, incapacities incident to coverture, guardianship, emancipation, and other personal qualities and disabilities, the law of the domicil of birth, or the law of any other acquired and fixed domicil, is not generally to govern, but the lex loci contractus aut actus, the law of the place where the contract is made, or the act done; and again,1 "although foreign jurists generally hold that the law of the domicil ought to govern in regard to the capacity of persons to contract; yet the common law holds a different doctrine, namely, that the lex loci contractus is to govern."

So, too, Chief Justice Gray in Milliken v. Pratt: 3

"It has been often stated by commentators that the law of the domicil, regulating the capacity of a person, accompanies and governs the person everywhere. But this statement, in modern times at least, is subject to many qualifications; and the opinion of foreign jurists upon the subject, the principal of which are collected in the treatises of Mr. Justice Story and of Dr. Francis Wharton on the Conflict of Laws, are too varying and contradictory to control the general current of the English and American authorities in favor of holding that a contract which by the law of the place is recognized as lawfully made by a capable person, is valid every2 Ibid. § 241. 8 125 Mass. 374.

1 Conflict of Laws, § 103.