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of justice to every unfavourable appearance in the case, a Nor is a person born deaf and dumb to be deemed absolutely non compos mentis, though by some of the ancient authorities he was deemed incompetent to contract. The proposition would seem to be a reasonable one, that every such person was *prima facie incom *453 petent, inasmuch as the want of hearing and speech must exceedingly cramp the powers, and limit the range of the human mind. But it is well known, by numerous and affecting examples, that persons deprived of the faculty of speech and the sense of hearing, possess sharp and strong intellects, susceptible of extensive acquirements in morals and science.c
If the contract be entered into by means of violence offered to the will or under the influence of undue constraint, the party may avoid it by the plea of duress ; and it is requisite to the validity of every agreement, that it be the result of a free and bona fide exercise of the will.de If a person be under an arrest for improper purposes, without a just cause, or where there is an arrest for a just cause, but without lawful authority, he may be considered as under duress. The general rule is, that either the imprisonment or the duress must be tortious and without lawful authority or by an abuse of the lawful autho
- Blachford v. Christian, Knapp's Rep. on Appeals, vol. i. p. 73.
Brower v. Fisher, 4 Johns Ch. Rep. 441. Bracton, de Exceptionibus, lib. 5. ch. 20. Fleta, lib. 6. ch. 40. Bro. tit. Escheat, pl. 4. The civil law also held such afflicted persons to be fit subjects for a curator or guardian. Inst 1. 23, 24. Ibid. 2. 13. 3. Vinnius f. Ferriere, h. t.
c Mr. Justice Story, in his Commentaries on Equity Jurisprudence, p. 227—245, has fully discussed the question, and examined the authorities both in the Euglish and the civil law, which bear on it respecting the relief afforded in equity against contracts and other acts of persons wholly or partially non compotes mentis.
a By the Scots law, force and fear anpul engagements when they are such as to shake a mind of ordinary firmness. Bell's Principles of the Law of Scotland, p. 5. Fear of unlawful imprisonment will constitute a case of duress per minas, and avoid a contract. Co. Litt. 253. 6. 2 Inst. 483. Forshay v. Ferguson, 5 Hill's N. Y. Rep. 154.
rity to arrest, to constitute duress by imprisonments. Nor will a contract be valid if obtained by misrepresentation or concealment, or if it be founded in mistake as to the subject matter of the contract. But the distinctions under this head will be considered at large in a subsequent part of the lecture.
II. The lex loci as to contracts.
Questions have frequently arisen on the effect to be given to foreign laws, when brought into view in discussions concerning personal rights and contracts. The inquiry is, how are contracts made abroad to be construed, and in what manner, and to what extent are they to be enforced and discharged, when the law of the country in which they were made, and the law of the country in
which performance is sought, are in collision. *454 The subject forms a secondary branch of the *law
of nations; and the rules by which such questions are governed, are founded on the principles of general jurisprudence, and are incorporated into the code of national law in all civilized countries. It is sometimes called private international law, and it exists not strictly ex jure gentium but rests on the comitas gentium. But if one independent state allows commercial intercourse and contracts between its citizens and those of another, the rights of the parties and the relation between them would seem to have a higher claim than that of mere co.
• Nicholls v. Nicholls, 1 Atk. 409. Thompson v. Lockwood, 15 Johns. Rep. 259. Watkins v. Baird, 6 Mass. Rep. 511. Stouffer v. Latshaw, 2 Watts' Penn. Rep. 165. Richardson v. Duncan, 3 N. H. Rep. 508. This last case states than even an arrest for a just cause, and under lawful authority, may amount to duress, if done for unlawful purposes. 5 Hill's N. Y. Rep. 157, S. P. There is a material distinction between duress of the person and duress of goods, and the latter will not render an agreement void. Skeate v. Beale, 11 Adolp. f Ellis, 983. Powell, J., in 11 Mod. 201. But though a man may not avoid his bond procured by an illegal distress of his goods, but Mr. Justice Bronson had no doubt that a contract procured by threats and the fear of battery, or the destruction of property might be avoided on the ground of daress. Forshay v. Ferguson, sup.
mity,--a claim of justice, though perhaps of imperfect obligation under the laws of independent states, within their own territories. The principal events which produce a conflict in respect to personal rights and the distribution of property, between the laws of the country where the judicial discussions arise, and the laws of the place of the party's domicil, are marriage, death, bankruptcy, and the application of remedies. We have already adverted to the subject, (though necessarily in the brief manner which the nature of the present undertaking required,) in respect to the effect of foreign suits and judgments ;a and in respect to marriage, b divorce, infancyd assignments in bankruptcy,e the discharge of insolvent debtors,f and the distribution of intestate's estates. A further view of the doctrine will be useful, and cannot fail to be interesting to the student, in its application to contracts at large; for questions arising on the ex-territorial operation of statutes, usages, and judicial decisions, are becoming frequent and delicate topics of discussion in our American law.
A contract, valid by the law of the place where it is made, is, generally speaking, valid every where jure gentium, and by tacit assent. The lex loci contractus controls the nature, construction, and validity of the contract; and on this broad foundation the law of contracts, founded on necessity and commercial convenience, is said to have been originally established. If the rule were other
• Supra, p. 118.
Supra, p. 233. Supra, p. 404–408. i Supra, p. 392, 393.
5 Supra, p. 67. 428–434. Those universal personal qualities, which the laws of all civilized nations consider as essentially affecting the capacity to contract, as majority and minority, marriage or celibacy, sanity or lunacy, &c., aro regulated by the lexdomicilii, and travel with parties wherever they go, as see post, p. 456.
6 Ec hoc jure gentium omnes pene contractus, introducti sunt-usu eri.
wise, the citizens of one country could not safely contract,
or carry on commerce, in the territories of another. *455 The necessary intercourse of mankind requires *that
the acts of parties, valid where made, should be recognized in other countries, provided they be not contrary to good morals, nor repugnant to the policy and positive institutions of the state.a
The doctrine of the lex loci is replete with subtle distinctions and embarrassing questions which have exercised the skill and learning of the earlier and most distinguished civilians of the Italian, French, Dutch and German schools, in their discussions on highly important topics of international law.b These topics were almost
gente et humanis necessitatibus. Inst. l. 2. 2. Pardessus, Droit commercial tom. v. p. 1482. Trasher v. Everhart, 3 Gill f. Johns. 234. Pickering v. Fisk, 6 Vermont Rep. 102. Story's Com. on the Conflict of Laws, p. 201, 202. 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 præjudicatur. Huber, De Conflictu Legum, tit. 3. sec. 2.
* This principle of public law, says Toullier, (Droit Civil, tom. x. art. 80. n.,) is well explained and enforced by M. Bayard, in the Nouvelle Collection de Jurisprudence, tom. ix. 759; and which he undertook in conjunction with M. Camus.
Among a host of jurists who have displayed their research and aculeness on these subjects, the most pre-eminent are, Dumoulin, D'Argentre, Burgundus, Rodenburgh, P. & J. Voot, Boullenois, Bouhier, and Huberus; and their respective doctrines, pretensions, and merits, were critically and ably examined by Mr. Livermore, of New Orleans, in his Dissertation on Personal and Real Statutes, published in 1829—a work which is very creditable to his learning and vigourous spirit of inquiry. A curious fact is mentioned by Mr. Robertson, in his Treatise on the Law of Personal Suc. cession. He says, that of the ninety-one continental writers on the subject of the Conflict of Laws, quoted or referred to by the American jurists, Livermore and Story, a lorge proportion of them was not to be found in the public law libraries in London, but all of them, except six, were to be met with in that admirable repertory of books of law, the library of the faculty of advocates in Edinburgh. Mr. Livermore, while a practising lawyer in New-Orleans, had collected from continental Europe, most of those rare works as part of his valuable law library, and which library he bequeathed by will to Harvard University in Massachusetts.
unknown in the English courts, prior to the time of Lord Hardwicke and Lord Mansfield ; and the English lawyers seem generally to have been strangers to the discussions on foreign law by the celebrated jurists in continental Europe. When the subject was introduced in Westminster Hall, the only work which attracted attention, was the tract in Huber, entitled De Conflictus Legum and which formed only a brief chapter in his voluminous Prelections on the Roman law; and yet it appears that the very great diversity of laws and usages in the cities, provinces and states of Germany, Holland and France, had produced far more laborious investigations on the subject.a In the works of the civilians on *the continent of Europe, the application of the *456 law of domicil or the lex loci on the one hand, and the ler fori or rei site on the other, is made to depend on the distinction between real and personal statutes. According to the understanding of an American lawyer, a statute means an express act of the legislature of the country; but the jurists educated in the schools of the civil law, apply the term statute to any particular municipal law or usage, though resting for its authority on judicial decisions or the practice of nations. A personal statute is a law, ordinance, regulation or custom, the disposition of which affects the person, and clothes him with a capacity or incapacity, which he does not change with every change of abode; but which, upon principles of justice and policy, he is assumed to
. The foreign treatises of most interest on the doctrine of the lex loci, in addition to that of Huber, are understood to be Rodenburgh's Tractatus de Jure quod Oritur ex Statutorum Diversitate, P. Voet’s De Statutis Eorumque concursu, Hertius' De Collissione Legum, and G. G. Titius' De Conflictu Legum. Mr. Henry published at London, in 1823, a Treatise on Foreign Law, and particularly on the difference between personal and real statutes, and its effects on foreign judgments and contracts, marriages, and wills. In that treatise he shows himself to be a master of many of the foreign works on the subject; and he bestows particular commendation on the treatise of Rodenburgh.