DICEY ON THE CONFLICT OF LAWS.* TErs work represents an
amount of thought and labour to be appreciated only by those who have attempted to master, in detail at least, some portion of its subject. That subject is as difficult and perplexed as it is extensive. One mark of its difficulties is the fact that, although it has been discussed for the greater part of a century, judicially and extra-judicially, by many eminent professors both of the Common Law and of Continental systems (among whom have come latest, by no means least, a brilliant Italian school), there is still no
• A Digest of the Law of England with Reference to the Conflict of Laws. By A. V. Dicey. With Notes of American Cases, by John Bassett Moore. London : Stevens and Sons; Sweet and Maxwell. Boston, U.S.A.: The Boston Book Co. generally accepted name for the topics which it embraces, and hardly more than a rough working agreement as to their extent. In this, however, as in other matters of practical importance, it has been needful to settle working rules without waiting for a complete philosophical doctrine, and a body of such rules has in fact been settled, mainly during the last fifty or sixty years, by the decisions of the highest British and American Courts. We say British, not English, because the House of Lords, sitting as a Scottish Court of Appeal, has taken a conspicuous share in this operation.
Mr. Dicey's task has been to state these rules in the most definite form warranted by the authorities, and to justify his statements by reference and explanation in all cases, and by discussion in doubtful cases. He has cut down discussion, however, to what was strictly needful. He has refrained from anything like elaborate argument on behalf of his own opinions, and he has noticed the opinions of Continental writers, and even of Story, the earliest, and still, for many purposes, one of the best, of English-speaking authors on the subject, only so far as those opinions have been distinctly adopted or excluded by decisions of authority, or seem likely to have practical weight with our Courts in deciding points that remain open. In one word, the book is dogmatic in its main purpose, and discursive only by necessity. We may regret, now and again, that we are not allowed to see more of Mr. Dicey's individual mind. We may wish for something more than an occasional glimpse of the historical and political curiosities which make the topic much less dull in the book in large than it appears in a condensed exposition. But the answer lies in the inexorable fact that the book, as it is, holds rather more than eight hundred and fifty pages of large octavo. Not one of those pages, we venture to say after a pretty careful examination, could safely have been spared. The practitioner whose client is involved in a question of enforcing or not enforcing the decrees of a foreign jurisdiction, of recognising or not recognising the validity of a foreign marriage or divorce, of applying the rules of this or that system to the construction of a foreign mercantile contract, will find here what he wants, as much as he wants, and nothing that he does not want. Only a jealous economy of language has made this possible. Again, we have no doubt that the pre- sentation of the subject in a form complete and systematic, and at the same time readily available, by one of the few real masters of it, will be much more than a repertory for prac- titioners. It will be a guide and counsellor for Judges. Some, perhaps many, of its concise and clear propositions will acquire the force of law by formal judicial approval. It will be of material assistance in promoting uniform treat- ment of the questions it deals with in different English- speaking jurisdictions, if not within wider bounds; and sooner or later it may be the foundation of a code which directly or indirectly will define the law for the English-speaking world. These are no small objects, and they are worthy not only of the toil—a toil, we believe, of many years—which is apparent, but of the sacrifice which at first sight is not apparent.
The higher and more or less speculative generalities of the "Conflict of Laws" are touched on in a comparatively short introduction. There is enough to certify us of Mr. Dicey's point of view and justify his method ; and these pages may be read with advantage by many students and lawyers who will reserve the main body of the text to be referred to as occasion arises. We hope that Mr. Dicey may some day recur at leisure to the development of his necessarily brief thesis ; and if we now restate a few points in our own way, it is not to be taken as implying any difference of opinion. As regards the title of the subject, we quite agree that " Conflict of Laws," the first which obtained currency, is also less objectionable than any other yet proposed. The fundamental fact is that civilised Courts of Justice have to take notice for various purposes of rights acquired under other jurisdictions, and of transactions whose effect (though not yet determined by any tribunal) it may be necessary or proper to determine in accordance with the rules of some other system. There may even be a plausible choice, as in some well-known mari- time cases, between two or more different rules as applicable to the whole or different parts of a transaction. "Conflict of laws" is a fairly appropriate phrase in a large proportion of these cases. If the laws of both or all the jurisdictions involved were exactly the same, no practical question could commonly arise ; and if " conflict " be taken in the larger
sense of " competition," the expression is as accurate as many other compendious expressions which pass uncensured. On the other hand, it hardly suits the cases where the conflict, if any, has to do with jurisdiction. In what cases will an English Court allow that the marriage of an Englishman has been effectually dissolved by a decree of the Court of Session in Scotland P That is a serious and most practical question, and it would have to be dealt with even if the law of Scotland as to what is an adequate cause for divorce were identical at all points with that of England. To speak of a conflict of laws here is to take both terms in a non-natural sense. But this will not help the rival term, "Private International Law," the only other one that has obtained currency. For that is easily seen to be non-natural at best in this and in all other cases.
A question of the authority to be attributed to a Scottish judgment in England, or an English judgment in Ontario, or a Californian judgment in New York, is not international in any exact or tolerable sense; it is not a question of jus inter gentes. Political independence, where it exists, makes no difference to the principles to be applied in such cases. Again, the privileges of an Ambassador against legal process are included in Mr. Dicey's digest. International law may claim them with a fair title, but surely they are matters not of private but of public law. Thus one, at least, of the epithets " private " and "international" seems always to be wrong. Doubtless it is true that the body of all these rules, taken as a whole, may be deemed law of nations in the wider sense, jus gentian', in the same way that the law merchant was a species of jus gentium, before it was separately defined by the legislation and jurisprudence of the several nations. There is a sense that uniformity is desirable; there is a conscious striving for uniformity; there is a kind of scientific demand, especially in countries where the Courts are not positively bound, as they are here, by precedent, for the following of that rule which can be shown to be most reasonable in itself, or most correctly deduced from principles accepted as of general validity. This cosmopolitan element in the rules which are actually enforced with more or less approximation to a common understanding is marked, though clumsily marked, by the use of the word "international." But the analogy of the law merchant suggests, and the existence of Mr. Dicey's book goes far to prove, that so-called private international law has out- grown, or is fast outgrowing, the cosmopolitan stage, and being assimilated as an integral part of national systems. Already an English or American lawyer has enough to do to find out the result of his own authorities in a given case, the reported decisions which the House of Lords, or the Judicial Committee, or the Supreme Court of the United States, is likely to follow and confirm. Bar, or Fiore, or the prevailing opinion of French Courts and jurists, may still, just possibly, tarn the scale on a very doubtful point, and that is all. We suspect that the same may now be said in Germany; and French jurisprudence looks cosmopolitan only because France has dominated the Latin world. The general adoption of the " positive " method will bring about a certain amount of national divergence, an increased particularism of method and results, and this is in itself to be regretted. But the gain in certainty and readiness will outweigh the drawbacks. Expounders of systematic doctrine often forget to allow for the human infirmity of even the best actual tribunal. It is better that Judges should administer with correctness a toler- ably good rule which they understand than that they should purport to administer a more ambitious rule which they do not understand. In the former case their judgment will at least be a safe practical guide, and will speak the known language of the law. In the latter it will run great risk of being a nondescript puzzle, and speaking a tongue no better than Panurge's gibberish, of which Pantagruel said, " Je croi que c'est langage des Antipodes, le diable n'y mordroit mie."
One excellent thing Mr. Dicey has done is to get rid, we hope for ever, of the word "comity," which was once a blessed word, and comforted even learned persons no less than "Mesopotamia." As Mr. Dicey most rightly points out, we give effect to rights acquired under the judgment of a French Court, and take note of French law for that purpose, not because we want to please the President of the French Re- public (which is the business of diplomatists, not of Judges), but because it seems the best way, or the only way, of doing justice to the parties. The Common Law needs no "comity," and never did, to tell it that the Queen's Courts shall do full justice to friendly aliens as well as Englishmen ; besides which, there need not be an alien party at all. Again, all the talk about comity "throws no light whatever on the nature of the rules upheld by English or other Courts as to the en- forcement of foreign laws." What seems to have been really in the minds of the earlier authors who put their trust in " comity " is a doctrine of this kind. Here is a body of rules having, like the law merchant or the canon law, a cosmopolitan and ultra-territorial character; it is, or ought to be, binding everywhere, in virtue of a cosmopolitan custom founded on its intrinsic reasonableness ; therefore every Court is morally bound, in all proper cases, to apply it, and every Sovereign is
bound to recognise its existence and authority. But, if this be so, the supposed " comity " or courtesy would seem to be a branch of the ordinary and morally perfect duty of every Sovereign to cause justice to be done within his dominions. Perhaps the earlier writers were afraid of putting it so high. Mr. Dicey, however, has gone beyond negations; he gives us two broad and intelligible principles by which the leading rules are amply justified. First, there is the principle of submission. A man must not except to the competence of a jurisdiction before which he has chosen to bring his cause, or to the application of a law by which he has agreed to be bound. Next, there is the principle of effectiveness. Where two or more jurisdictions may possibly deal with the same matter, that Court which, on the whole, has the power of dealing with it most effectively will be regarded by other Courts as having the best right to do so, as being, in our common forensic phrase, entitled to the conduct of it. No doubt these principles, like all very general principles in law, have to be helped out in their detailed applications by a certain number of artificial and more or less arbitrary presumptions. This in no way detracts from their soundness or utility. So, in a particular branch of the subject, the conception of Domicil, founded on what is in most cases an obvious matter of fact, is driven to become something very like a legal fiction in exceptional cases where the usual basis of fact is wanting. In this respect it offers a rather curious analogs to Possession, which equally seems to the plain man, at first sight, a mighty simple matter for lawyers to raise such a dust about. The difficulty arises as to both ideas from the need of carrying them through. You may be homeless in fact, but you must have a domicil in law ; goods may be apparently abandoned, but (in our law at any rate) somebody must have the best right to them.
There is just one passage about "the ages of mediaival barbarism" which we hope Mr. Dicey will amend in a future edition. It is bad history, and, if we may venture to say so, not good taste. In fact there was a great deal more of "peaceful and commercial intercourse between independent countries" in the thirteenth century than in the century following the Reformation, and cases of the "conflict of laws" were not at all uncommon. Between the Church and the King there were standing conflicts of both law and jurisdiction. Then the bounds of the Common Law on the one hand, and the law merchant, the law of the Admiralty, the law of the Chancellor, and various local customs and special privileges on the other hand, were more or less vague and contested. The subject was not set apart as a special subject, just because the phenomena were familiar in every branch of affairs. The truth is that the "con- flict of laws" began to appear as an exceptional occur- rence needing an exceptional doctrine and method only when the concurrence of many laws in the same territory ceased to be regarded as normal, and the supremacy of national secular law, the law of the land, was taken as a matter of course. Very pretty questions arose in the early Middle Ages in the way of conflict between the personal laws of the parties. A church in Rome was claimed from a monastery governed ever since its foundation, as it alleged, by Lombard law ; by which law, Lombard or Roman, should the cause be tried ? Similar questions are still possible in British India, where, for the vast majority of inhabitants, the law of inheritance is not territorial, but religious or tribal. Maine's rule of transition from status to contract, a hackneyed formula by this time, but still vital, is exemplified here. In the East the first question is into what law a man was born; in the West it is what law he has directly or indirectly chosen. A minute point for improvement in the next edition is the style of printing the exceptions to the rules. They are now given in smaller print than the commentary, which seems to as a mistake, for the exceptions are often quite as important as the rules themselves, and sometimes nearly as extensive. The definition of "immovable property" (p. 73) as "equiva- lent to realty with the addition of chattels real" is correct for all practical purposes; nevertheless (as Mr. Dicey well knows) in our law some movable things (title-deeds, heirlooms) are included in realty. The American notes are short, and we are glad to infer from this, and from such examination of the contents as we have made, that there is little material difference between the results or tendency of American and English decisions.
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