In a previous chapter I pointed out that our Commercial Court practice
was not tending to the creation of international Courts; but some
merchants are entering into international arbitration agreements to the
exclusion of their national courts and it is said that these work well,
though they involve more delay. The progressive creation of public
international tribunals may encourage the growth of similar tribunals
for settling private disputes; but the principal outstanding obstacle
to international agreement on questions of status and property is the
conflict between the tests of nationality and domicil.
In the British Empire we have at last achieved an Imperial Nationality
and alongside of it exists a local nationality which will vary
according to the laws of each colony, which prescribe different periods
of residence. If this movement for uniformity continues it may have
great results. Nationality at present concerns a man’s property very
little――in the United Kingdom not at all except as regards the capacity
of owning ships. It gives certain political privileges; but the law
affecting marriage property and contracts has nothing to do with
nationality, and in this respect it differs sharply from the laws of
continental nations. A contract according to English law (whether for
sale or marriage) is good if valid according to the laws of the country
in which it is drawn up and made. Personal or “movable” property is
dealt with according to the law of a man’s domicil (except in the cases
of bankruptcy or liability to income tax which turn upon residence),
and although a marriage contract is good in England, whatever the
domicil of the parties, it cannot be dissolved except in accordance
with the law of the country which is the husband’s domicil. (Land is
dealt with according to the law of the country in which it is situate.)
Clearly, therefore, the domicil is the most important test of all the
English-speaking world, yet it is of all tests the most uncertain.
The late Professor Dicey, in his last edition of the Conflict of
Laws, admits the extraordinary difficulties surrounding the subject,
especially in the case of what is called “Anglo-Indian domicil” and the
possibility of determining the intention of the person whose domicil is
called in question, for domicil depends entirely on (1) residence and
(2) the intention to remain in the place of residence. In many cases it
may be said that a person’s domicil cannot be decided till he dies, and
even then perhaps not with certainty.
The doctrine of domicil grew up under the Roman Empire, which comprised
many local systems of law, but only one citizenship. It became an
essential doctrine of English law and is common to the English-speaking
world except where the test of residence alone has been substituted,
_e.g._, for divorce jurisdiction in the United States, formerly in
India, and in one or two of the Colonies, _e.g._, New South Wales. In
these cases a conflict of laws at once arises between the tests of
residence and domicil, so that, _e.g._, a wife who obtains a divorce
in New South Wales finds that it is not recognized in England if the
husband has an English domicil.
A different conflict arises between the laws of almost all continental
countries and the laws of English-speaking countries, because the
continental jurists have adopted the tests of nationality instead of
domicil. Anyone acquainted with the doctrine of the _renvoi_ and with
the liability to double death duties and general uncertainty of status
in connection with marriage, divorce, and legitimacy resulting from
this conflict must certainly agree that the present system is anomalous
and defective.