(1) To establish an uniform nationality for the Empire coupled with the
test of residence in regard to local laws, such as we should see in the
United States if the Americans adopted residence instead of domicil as
the test in every State, and
(2) To substitute an uniform test of residence for domicil while
safeguarding certain convenient doctrines by international, as well as
imperial, convention.
It is, for instance, highly undesirable for a Frenchman to carry about
with him an incapacity to marry under 25 without parental consent
wherever he goes. If he marries an Englishwoman in England the French
Courts must be induced to admit that the marriage contract is good if
celebrated according to English law. This also applies to Italy.
Again there is an obvious convenience in the old rule that land must be
dealt with according to the law of the country where it is situate, and
personal property according to the law of the domicil (or, as I should
prefer to have it, the law of the local nationality).
It is anomalous that a colony like British Columbia should exact death
duties on shares held in an industrial company trading in Vancouver by
a deceased Englishman domiciled in England. A special order in Council
enables the executors of the Englishman to recover the estate duty they
have to pay on such shares before the will can be proved; but it does
not relieve them from the nuisance of filling up forms to supply a vast
quantity of absurd and irrelevant information compared with which the
famous Form 4 was positively pleasurable.
To establish the test of nationality would at once sweep away most
of the worst cases of conflict between our own test of domicil and
the continental test of residence. There would be comparatively
little confusion as to what law should be applied in most cases. If
an Englishman died in France his Imperial nationality would at once
determine the principle that his status and property were in no way
involved in any question of a French domicil, and his English “local
nationality” acquired either by birth or residence would determine the
rest. This would entirely fit in with the laws of the Continent.
The same facilities would make for uniformity in the marriage laws
throughout the Empire. An Imperial subject living in, _e.g._, the
West Indies or the Channel Islands (where there is no divorce) would
be entitled to obtain a divorce according to the law of England or
Scotland or any colony in which divorce existed by, say, five years’
residence. The period of residence and nationality are indisputable
facts; the domicil is not. Take, for example, Scotland. A woman may
divorce her husband in Scotland, yet the Scottish law permits her
husband within 40 years after the decree to go to the Court and annul
the decree on the ground that his domicil was not, at the time of the
suit, Scottish, although he may have put in no such defence at the
time. A law which clearly could not be invoked except after a period of
five years’ continuous residence, without regard to what the husband’s
intentions were or where he happened to own houses or land, makes for
order where the present law produces chaos. Under my system the husband
will no longer be able to say, “I had property in Scotland, but I did
not often reside there; I have now decided to let it, and my present
intention is to die in Timbuctoo.”
The test of residence would also solve the difficulties of a wife
living apart from her husband because she might be allowed to acquire
the right of invoking the laws of the country in which she resides, as
she can to-day in England when she asks under the old ecclesiastical
rule for a judicial separation or nullity of marriage, and this right
would be recognized throughout the Empire.
Every day the tests of nationality and residence are gaining ground.
Every day the test of domicil gives rise to more complicated disputes.
Unless we mend our ways in time, the present confusion will become
rapidly worse confounded.
I venture to think that a reform which so obviously appeals to the
common sense of mankind must arrive within at least fifty years. It
involves rather less hard work than the Birkenhead Statutes about real
property.
There are many persons to-day who either have a double nationality or
no nationality; but these anomalies are for the most part due to the
absence of international agreement owing to the gulf set up by the
conflict of domicil and nationality.