It must be remembered that the rule is, that persons have capacity to contract; and the exception is, their want of capacity. * This exception, therefore, must be made out. And capacity or competency will be held not only when there is no evidence and no rule against it, but when the evidence, or the rules, or the argument, leave it in doubt. (j)

Incapacities are of two kinds; those which may be called natural incapacities, as absolute duress, insanity, or imbecility; and those which may be called artificial, because arising by force of local laws, from marriage, or slavery, or such other causes as are made grounds of incapacity only by positive laws, which vary in different States. And then there is a third kind between these two, or composed of these two, when a natural incapacity, as that of an actual infant, passes by imperceptible degrees into the artificial incapacity of a legal infant of twenty years of age. In regard to the first class, it is true that wherever the incapacitated person goes he carries his incapacity with him; but this is perhaps not because his incapacity was created by a law of the home from which he came, for it was only recognized by that law; but because it must be recognized by every other law, and he finds himself under the same incapacity in every State, because he finds a similar law everywhere in force. For this law is one which may well be called a law of nature; that is, a law enacted by the supreme Creator of, and Law-giver for, human nature, and as wide in its scope and operation as that nature.

When we come to the incapacities of the second kind, that is, to artificial incapacities, the law is not so certain. Upon the law of the capacity of the person, and the law of the place of the contract, on either or on both, the law of construction of contracts as to place, would seem to be founded. Nor is there any difficulty in applying either alone, or both if they are coincident; but if they are both applicable, but would lead to directly opposite results, this collision gives rise to questions which it would be impossible to settle absolutely, even on the authority of civilians; because there is an irreconcilable difference among them. But, judging as well as we may, from the general principles which belong to this subject, we should prefer * the opinion of those who hold, that when the two rules above mentioned come into conflict, that which gives controlling power to the law of the place of the contract should prevail. We might admit a distinction sometimes intimated, and say, that a question which related only to the state and condition of a person, without reference to other parties, would generally be construed by the law of his domicil, wherever he might be. But if one away from his domicil disposes of his movable property, or enters into personal contracts, we cannot but think that the law of the place in which he does these acts would be applied to them. (k)

(j) See ante, vol. i. p. * 298.

(k) On this point, as on most of the questions of the lex loci, the opinions of civilians stand opposed to each other irreconcilably; the great majority, both in number and weight, assert that the law of the domicil determines everywhere the capacity of the party; but they differ very much in the application of the rule; and some of high authority hold a different doctrine. But on this subject we must refer to such works as Livermore's Dissertations, Story's Conflict of Laws, Burke's Commentaries on Colonial and Foreign Laws, and Henry on Foreign Law, in which these authorities are cited and compared; and the student who would push his inquiries further in this direction, will be guided to the original authors, and referred to the places in which these questions are considered. The whole discussion of this question, among civilians, turns upon the exact distinction between real and personal statutes; a distinction wholly unknown to the common law. And indeed they understand by "statute " not what we do, but anything which has the force of law, whatever be its origin and authorization. Kent says, that while the continental jurists generally adopt the law of the domicil (supposing it to come in conflict with the law of the place of the contract), the English common law adopts the lex loci contractus. See 2 Kent's Com. 459, n. (b). We have not, however, been able to find direct and conclusive authority for this. In Male v. Roberts, 8 Esp. 188, in which the plaintiff sought to recover money paid for the defendant in Scotland, and the defence was infancy, Lord Eldon said: "It appears from the evidence in this case that the cause of action arose in Scotland; the contract must be therefore governed by the laws of that country where the contract arises. Would infancy be a good defence by the law of Scotland, had the action been commenced there? What the law of Scotland is with respect to the right of recovering against an infant for necessaries I cannot say; but if the law of Scotland is, that such a contract as the present could not be enforced against an infant, that should have been given in evidence, and I hold myself not warranted in saying that such a contract is void by the law of Scotland, because it is void by the law of England. The law of the country where the contract arose must govern the contract; and what that law is should be given in evidence to me as a fact. No such evidence has been given; and I cannot take the fact of what that law is without evidence." It would seem in this case, though not distinctly stated, that both parties were domiciled in England. In Saul v. His Creditors, 17 Mart (La.) 669, 590, which it might be supposed would be governed rather by the rules of the civil law, the court say: "A personal statute is that which follows and governs the party subject to it wherever he goes. The real statute controls things, and does not extend beyond the limits of the country from which it derives its authority. The personal statute of one country controls the personal statute of another country, into which a party once governed by the former, or who may contract under it, should remove. But it is subject to a real statute of the place where the person subject to the personal should fix himself, or where the property on which the contest arises may be situated." Afterwards, p. 597, in the illustration of these rules, the court say, what we should suppose to mean simply, that the law of the place of the contract overcomes the law of the domicil as to capacity." Now, supposing the case of our law fixing the age of majority at twenty-five, and the country in which a man was born and lived, previous to his coming here, placing it at twenty-one, no objection could be perhaps made to the rule just stated, and it may be, and we believe would be true, that a contract made here at any time between the two periods already mentioned would bind him. But reverse the facts of this case, and suppose, as is the truth, that our law placed the age of majority at twenty-one; that twenty-five was the period at which a man ceased to be a minor in the country where he resided: and that at the age of twenty-four he came into this State, and entered into contracts; - would it be permitted that he should, in our courts, and to the demand of one of our citizens, plead, as a protection against his engagements, the laws of a foreign country, of which the people of Louisiana had no knowledge; and would we tell them that ignorance of foreign laws, in relation to a contract made here, was to prevent them enforcing it, though the agreement was binding by those of their own State? Most assuredly we would not. 16 Martin. 193. Take another case. By the laws of this country slavery is permitted, and the rights of the master can be enforced. Suppose the individual subject to it is carried to England or Massachusetts; -would their courts sustain the argument that his state or condition was fixed by the laws of his domicil of origin? We know they would not"