DICEY ON THE LAW OF DOMICIL.*
AmoNo the persons, certainly not very numerous, who interest themselves in legal reforms, no question has been debated more earnestly than whether it be possible to reduce into the form of a Code the immense mass of rules and dicta which now con- stitute the law of England. The arguments in favour of making the attempt, drawn largely from its success in other countries, are too familiar to need repeating. Against them it is urged, and urged with some force, that the problem is more difficult in this country than in any other. "No other country," it is often said, "has accumulated such a treasure of precedents, with such minute rules and subtle distinctions, as we possess in the Reports of decided cases. The task of reducing these into a concise and systematic expression, preserving their exactness, their deli- cacy, their fine shades of tendency, and creating order out of the confusion in which they now lie, is, therefore, a far graver one than the jurists of any of the code-governed countries have had to face, and one which our lawyers are possibly unequal to. For even admitting such a code as the lately framed Bill for the consolidation of the Criminal Law to turn out well—as to which nothing can be said till we have had some years' experience of its working,—the ordinary civil law, the law of contracts and torts, is so vastly larger and in every way more complex than that relating to offences and penalties, that the success of the experiment in the latter case could not go far to give good hopes in the former." We do not ourselves accept this despondent view. We believe the matter to be, after all, more a question of money than of anything else. If a sufficiently strong staff of first-rate men is obtained by sufficiently high pay, and is allowed time enough for the under- taking, we see no reason why they should not produce a Code which, if far indeed removed from perfection, will yet be greatly better in form than our present body of law. But, in the mean- time, nothing goes BO far to prove the possibility of accomplish- ing the work as the codification of particular departments of law by private writers.
This is what Mr. Dicey has done in the present treatise for the law of Domicil. His success is the more remarkable, because the subject is one of almost unequalled difficulty. It is a branch of what is now commonly known as Private Inter- national law, but which older writers called by the less misleading, yet not very descriptive name of "The Conflict of Laws." For the sake of the lay reader, we will give a word or two of ex- planation.
As a rule, every Court of Justice administers the law of its own country, and no other. But cases sometimes arise where to do so would be unwise and unjust,—unjust, because it would defeat the reasonable expectations of the persons concerned ; unwise, because it would provoke other countries to a similar course, and violate what is called the comity of nations. Sup- pose a Frenchman to die intestate,, possessed of land. and of personal property, money, furniture, Consols, &c., in England, and an action brought in England to administer his estate. How will the English Court distribute his property P If he were an Englishman, it would go according to the rules of English law. But as he is a Frenchman, French in his ideas and habits, with 'a French wife (let us suppose) and French children, it would seem more fair that the succession to his pro- perty should be regulated by the laws of France.The first
i question, therefore, for the Englh Court to decide is not who are the persons actually entitled, but what is the law that shall determine who those persons are? This is the simplest possible
• The Law of Domicil, as a Branch of The Lam of England, owed in the form of Robe. By A. V. Dicey, B.O.L., one of the junior °ousel to the Intend Revenue. London: Stevens and Sons. WO. .case, but all questions of private international law are of a taches to its universal application. The Rules themselves are similar nature. That law exists for the sake not of settling very clear and concise in -expression, and are arranged with 'the ultimate questions at issue, but of deciding what law much logical skill under three main heads, the statement of shall be applied to the settlement of those questions. It is, which will indicate the general compass and. scope of the book.
to borrow a metaphor from chemistry, not itself the acid "Doinicil " means, as a technical term, the place of a person's which combines ' with the base to form a salt ; it is the permanent residence,—that is to say, the place in which the hand which, choosing one of several possible acids, brings law fixes his home. As the question already referred to, " What
it in contact with the base. And it may, therefore, be law governs the acts of a person P" is often answered by say- defined as being " the branch of imunicipal law that deter- ing, " The law of the country where he has his permanent home," mines which of two or more possible systems of municipal law it becomes extremely important to determine what " permanent shall be applied. to the solution of a given case." It is, there- home " means,—what kinds of residences are included. within fore, not " international " at all, and has nothing whatever to the conception, and by what behaviour a man can be said to fix do with the law which prevails as between different independent his " home " in one country rather than another. Hence the States. And Mr. Dicey has very properly brought this truth rules under the first head deal with the nature and acquisition into prominence, by treating the subject as being purely and of domicil, explaining the difference between the domicil of simply a department of the municipal law of England. " The origin, which a man gets at birth, awl the domicil of choice, Limits of Local Law," or " The Applicability of Extra-Municipal which he can acquire for himself by his own acts ; as also between Law," would be a better name for it. And the Law of Domicil, the independent domicil, which a man, or unmarried woman, of – -that is, the law which shows when residence is the criterion full age enjoys, and that of an infant or married woman, which which determi'nes the applicability of one legal system rather depends on the domicil of the father or husband. Then, under the than another—is an important part, perhaps about a half in second head, come the rules determining how the domicil of a hulk, of this whole subject. given person at a given time is to be ascertained, showing wh at facts The peculiar difficulty of the topic is due to three causes. One is amount to evidence, probable, presumptive, or conclusive, of his the great variety of circumstances and conditions to which its rules having made his permanent home in any one place. Sometimes a have to be applied. There are many things to be considered in man has really no home anywhere, or has two or three in different determining by what law a man's acts ought to be governed, his countries. But in those cases the law, which insists that every- birth-place,his place of residence, his place of business, his nation. body shall have a domicil, and only one domicil, will give him ality or allegiance, the position he occupies to other persons,— one, and perhaps—such are the consequences of fixed rules— as, for instance, the relation of a child to a father, a ward to a one that he was not at all aware of himself. Finally, the third guardian, a wife to a husband. There are many different kinds and largest department of the treatise consists of the rules which of acts to be dealt with, for it does not follow that the same lay down the effects of domicil, specifying those acts of a man or rules should be applied to will-making, for instance, as to events in his life which are held to be governed by the law of the -contracts, nor as to marriage and as to divorce. Then a country where his permanent residence lies ; or in other words, second perplexity has been introduced, by the changes of opinion those rights which the law of domicil affects. These are, speak- and tendency on the part of our English Courts by whom ing generally, rights connected with or influencing his personal the law has been shaped. They have been guided, not only capacity, his personal relations—such as marriage—and his by precedent and the principles of English law, but also by position as an owner of movable property. His contracts, on .views of policy and by the opinions of jurists in other countries, the other hand, are governed not by the law of the place where Hence their doctrines have varied from time to time, sometimes he, the person contracting, dwells, but by that of the country following one line of thought, sometimes another ; so that it whore the contract is made, or where it is to be performed ; while becomes often difficult, and zecasionally impossible, to reconcile his dealings with land are governed by the law of the country the decisions they have given. And lastly, these decisions in which the land is situated. Thus, if a Russian subject, themselves have been, until recently, comparatively scanty in domiciled in France, should make a contract in Ger- proportion to the importance which the subject has now many and die intestate in Belgium, leaving land and assumed. Putting together all these sources of confusion money in England, English Courts would direct the land to and complexity, it may be said that hardly any branch go according to the law of England, and the money accord- of our law offers more obstacles to the codifier. There- ing to the law of Prance ; to the contract they would fore, Mr. Dicey's success in reducing the subject to order apply the law of Germany, while the laws of Russia and and clearness is not only most creditable to his own industry Belgium would not come into consideration at all. Any one and grasp of principles, but also valuable evidence of the can see to how many curious and intricate questions the appli- -capacity for similar treatment of other branches of the law. It cation of principles like these must lead, and how delicate a is an a fortiori proof of the practicability of accomplishing the perception of their influence upon one another is needed to work in other departments, that this most troublesome one follow them out in their details. But no one who has not should have been so effectively dealt with. Not of course, that worked over the same field can fully appreciate the fine insight the book contains a set of rules which satisfactorily meet all the and admirable judgment with which Mr. Dicey has brought questions which may be raised by a speculative lawyer, or order and harmony out of confusion, perceiving which are the even all that are likely to occur in practice. There really fundamental principles, and arranging the numerous are several points on which no English authorities exist, exceptions and qualifications under the rules to which they and which must remain uncertain till some case has arisen properly belong. His method is so luminous, that those who calling for their decision. For instance, it is still uncertain profit by his labours will hardly realise how dark this labyrinthine whether or not the English Divorce Court has jurisdiction to chamber of law was before he ontefed it. We do not always dissolve the marriage of two persons not domiciled in this agree with his view, thinking, for instance, that in treating of country when the proceedings for divorce were instituted ; un- the confessedly difficult subject of status he has not reprobated certain whether a divorce obtained abroad of persons married with sufficient decision. the pernicious fallacies of Austin. But in England is valid when the ground of divorce is one not re- the practitioner will find the book a thoroughly exact and cognised in England as sufficient; uncertain whether the trustworthy summary of the present state of our law. The capacity of a married woman to enter into contracts depends on educated layman will find most, if not all, of it intelligible, and the law of her domicil, or on the law of the country where her much of it even interesting. And the speculative jurists of foreign contract is made. In such eases, where there is some countries, though they may sometimes differ with the author on authority both ways, or where, it may be, there is really points of theory, will have reason to thank him for presenting no authority either way, the only thing which a writer the distinctive views of English jurisprudence with so much
an do is to indicate the fact of the doubt, and suggest, point and clearness. but as mere matter of private opinion, the solution which he believes to be the right one. One of the greatest ser- SOME MAGAZINES.
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