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 CORNELL LAW LIBRARY 
 
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 ^nrn^U Ham i'rljool Hibrarg 
 
Cornell University Library 
 K 7070.B32 1904 
 
 Notes on the doctrine of renvoi In priva 
 
 3 1924 021 987 197 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021987197 
 
ES ON THE DOCTRINE 
 
 OF 
 
 RENVOI 
 
 IN 
 
 PRIVATE INTERNATIONAL LAW 
 
 BY 
 
 JOHN PAWLEY BATE, 
 
 DEADER OF INTERNATIONAL LAW, ETC., IN THE INNS OF COURT; SOMETIME FELLOW OF 
 TRINITY HALL, CAMBRIDGE. 
 
 LONDON : 
 
 STEVENS AND SONS, LIMITED, 
 
 119 & 120, CHANCERY LANE, 
 
 Xaw f>ubU0ber0. 
 
 1904. 
 
 PRICE TWO SHILLINGS AND SIXPENCE NET. 
 
NOTES ON THE DOCTRINE 
 
 OF 
 
 RENVOI 
 
 IN 
 
 PRIVATE INTERNATIONAL LAW 
 
 BY 
 
 JOHN PAWLEY BATE, 
 
 READER OF INTERNATIONAL LAW, ETC., IN THE INNS OF COURT ; SOMETIME FELLOW OF 
 
 TRINITY HALL, CAMBRIDGE. 
 
 LONDON : 
 
 STEVENS AND SONS, LIMITED, 
 
 119 & 120, CHANCERY LANE, 
 
 3Law ©ublisbers. 
 
 1904. 
 
LONDON : 
 
 PRINTED BY ROWORTH AND COMPANY, LIMITED, 
 NEWTON STREET, HIGH HOLBORN, W.C. 
 
CONTENTS, 
 
 I. — pp. I — 8 . The Renvoi-question stated and illustrated. 
 
 II. — (a) pp. 9 — 20. English cases bearing directly on the question. 
 
 (b) pp. 20 — 23 Treatment of these cases by English text-writers. 
 
 III. — pp. 24 — 26 . Tabular statement of Continental cases dealing with 
 the question. 
 
 IV. — pp. 27 — 56 . Summary of certain juristic doctrines on the question. 
 
 (a) pp. 28 — 47. Doctrines favourable to Renvoi, 
 
 with Observations. 
 
 (b) pp. 47 — 56. Doctrines unfavourable to Renvoi, 
 
 with Observations. 
 
 (c) p. 56. Bibliography. 
 
 V. — pp. 57 — 69 . Mr. Westlake's doctrines on the question, with 
 Observations. 
 VI. — pp. 70 — 73 . Legislation and resolutions of congresses upon the 
 question. 
 
 VII. — pp. 74 — 107 . Renvoi and English rules of Private International 
 
 Law : 
 
 (a) pp. 74 — 77. Whether Renvoi can claim admis- 
 
 sion into the English system 
 on its merits ; 
 
 (b) pp. 77 — 107. Whether Renvoi is consistent 
 
 with the general body of 
 English rules of Private Inter- 
 national Law. 
 
 VIII. — pp. 108 — 120. Examination of English Cases which bear directly on 
 
 the question. 
 
 Appendix. 
 
NOTES ON THE DOCTRINE OF RENVOI 
 
 IN 
 
 PRIVATE INTERNATIONAL LAW. 
 
 I. 
 
 I. A doctrine, of a revolutionary character, has of late 
 been knocking at the doors of the English system of law, to 
 which the not entirely apt name of the Renvoi-theory has 
 been given. It may be thus explained : A question is raised 
 in a Danish court as to the testamentary capacity of a Danish 
 subject domiciled in Italy. The law of the Danish Forum 
 refers the matter to the law of the person's domicil, i. e., to the 
 law of Italy ; the Italian Code says that such a matter is to 
 be governed by the law of a foreigner's nationality, i.e., by the 
 law of Denmark. The Renvoi-question is to decide between 
 the two following alternatives^ (in the absence of express 
 legislative instructions to the judge) : — 
 
 (i) Denm. LFor. -> Ital. LDom. 
 
 (ii) Denm. LFor. ^ Ital. LDom. -^ Denm. LNat. (?'. e,, 
 in this case, LFor.). 
 
 1 The writer appeals to the forbearance of the reader. It will be necessary, in the course 
 of the following pages, to make repeated use of the phrases Private International Law, Law 
 of the Forum, Law of the Domicil, Law of the Nationality. As the writer's object is 
 scientific and not literary, he proposes to employ respectively the abbreviations, I.P.L., 
 LFor., LDom., LNat. Further, as it will repeatedly be necessary to deal with a case 
 where, e. g., an English judge is directed by his rules of Private International Law to refer 
 a given matter to the Italian law as the law of a party's domicil, and this latter law, in its 
 turn, directs that the matter be governed by the law of the Forum as being the law of the 
 party's nationality, the writer proposes to represent this graphically as follows : Eng. LFor. 
 — > Ital. LDom. — > Eng. LNat. The last phrase, when mentally expanded, would be 
 "English law as the law of the Nationality." 
 
 If the reader consents to conquer the irritation which this will cause at first, he will soon 
 (so the writer believes and hopes) agree that this, admittedly inartistic, method is justified 
 on grounds of convenience. 
 
 B 
 
( = ) 
 
 If (i) be the correct doctrine as to what ought to happen, 
 the purely internal law of Italy is applied (and testamentary 
 capacity is acquired at i8) ; no notice is taken of the Italian 
 rule by which a foreigner's capacity is dependent on his 
 national law. 
 
 If (ii) be correct, the law of Denmark (which takes 2 1 as 
 the required age) ultimately determines the matter, i. e., by 
 "Renvoi" from the law of Italy. The phrase "Renvoi-theory" 
 is a short mode of indicating the doctrine which approves of 
 (ii) and not of (i). 
 
 The examples given above might just as well have 
 been : — 
 
 (i) Ital. LFor. ^ Denm. LNat. 
 
 (ii) Ital. LFor. -> Denm. LNat. -> Ital. LDom. {i. e., 
 LFor.) 
 
 Further, the third law in (ii) is not necessarily identical 
 with the first law. If the original question had come before 
 an English court, instead of a Danish, the sequence would 
 be:— 
 
 (iii) Eng. LFor. -> Ital. LDom. -> Denm. LNat. 
 
 The phrase " Renvoi " is clearly inapt in (iii), for there is 
 a sending to a third law and not a " sending-i^ar^ " to LFor. : 
 the phrase is often used, however, to cover case (iii). In 
 Germany a verbal distinction is correctly drawn : (ii) is a case 
 oi Riickverweisung, (iii) is a case of Weiterverweisung. 
 
 There need be no limit, in a case of Renvoi, to the 
 number of laws involved. Suppose that a Danish court has 
 to deal with a contract made in Italy between two persons 
 domiciled in France but subjects of one of those American 
 States whose law makes capacity depend on the law of the 
 place of contract : the sequence might be — 
 
 (iv) Denm. LFor. -^ Fr. LDom. -^ Amer. LNat. -^ 
 Ital. L Actus. 
 
( 3 ) 
 
 2. Those who accept the Renvoi-theory do so in differing 
 degrees — 
 
 (a) Some accept it in all cases. 
 
 (b) case (ii) only — Ruckverweisung. 
 
 (c) and, then, only in 
 
 matters relating to 
 the " personal sta- 
 tute " (Family Law, 
 Status, Capacity ; 
 Movable Succes- 
 sion). 
 
 (d) Some law-makers accept Renvoi, but only when a 
 
 matter is thus sent back to the law of their own 
 country. 
 
 (e) Some theorists, while objecting to the Renvoi- 
 
 theory, approve of the results which it produces.^ 
 
 3. The Renvoi-question implies that there is a difference 
 between the rules of I.P.L. adopted by two States with regard 
 to the same matter. In the early days of the science, how- 
 ever, the rules of I.P.L. were, in theory at any rate, uniform ; 
 they were conceived of as constituting universal law adopted 
 by all individual systems ex comitate : in such circumstances 
 there could be no Renvoi-question. In the 19th century 
 'it became finally apparent that this uniformity was impos- 
 sible even as an ideal. Fundamental conceptions began to 
 diverge ; this was especially so in matters of the personal 
 statute (Status, Capacity, Family Law ; Movable Succession) ; 
 
 1 Suppose Eng. LFor. refers the regulation of a succession to the law of France as LDom., 
 but the French law would itself apply to that succession Eng. LNat. The theorists in 
 question would say that, the French law being unwilling to govern the succession, the 
 reference made to it by the English law has failed, and that, in consequence, there is nothing 
 for the English court to do but to apply its own law as LFor. This leads to the same result 
 as the Renvoi-theory proper, and it is often spoken of as a variety thereof; it is obviously a 
 case rather of falling back than of being sent back, and a correcter name, based on the attitude 
 of that law to which the abortive reference is made, is the dhistement theory. The graphic 
 mode of representation adopted herein, is strictly appropriate only to the Renvoi-theory. 
 
 B 2 
 
( 4 ) 
 
 in these matters domicil ceased to be the universal criterion, 
 nationahty being, by many systems, adopted in its place. 
 This made the Renvoi-question possible : for if we assume 
 that a judge of State A is directed by his rules of I.P.L. to 
 apply to a given jural relation the law of State B, a further 
 question may arise if the I.P.L. rules of State B, differing 
 from those of A, consider the matter to belong not to the law 
 of B but to the law of A or of a third State, C. The first 
 traceable appearance of this phenomenon seems to have been 
 in an English court in the year 1841 ; it was not, however, 
 until after the year 1878 that it began to be a very con- 
 spicuous object above the legal horizon and, even then, it was 
 on the Continent and not in England that practical lawyers 
 concerned themselves therewith. 
 
 The Renvoi-theory, in one form or another, has made 
 some progress on the Continent and a considerable literature 
 has there been formed round the question. Later on in this 
 pamphlet, by quotations and summaries, some of the views 
 prevalent on the Continent, pro and con., will be set out. In 
 England there is a comparatively trifling amount of case-law 
 in which the theory is, directly or indirectly, regarded with 
 favour, and, but for Mr. Westlake's contributions to the 
 discussions of the Institute of International Law, an entire 
 absence of theoretical discussion. 
 
 4. Illustrations of Renvoi. — Before proceeding further it 
 may be well to set out a few actual cases in which the theory 
 has been invoked. 
 
 (a) Court of Appeal, Douai, 1899. Joseph Anderson was 
 born at Nottingham, England. In 1852, being then a 
 widower, he settled in France, and in 1861 he married a 
 French lady in France. He died in 1893, a British subject 
 domiciled in France : his wife and children of both marriages 
 survived him. By a will made in French form in 1883 he 
 gave all his property to his widow. We will limit our 
 consideration to the movable property in France. The 
 French court held (i) that the succession thereto was 
 regulated by his LNat. : 
 
( 5 ) 
 
 (il) "Que d'apres la loi anglaise, les biens meubles sont soumis a la 
 legislation du domicile du defunt k I'epoque de son deces ; que Joseph 
 Anderson . . . possedait . . . le domicile exige par la loi anglaise, bien 
 qu'il n'eUt pas obtenu du gouvernement frangais I'autorisationi de se fixer 
 dans notre pays ;" (iii) " Que, par consequent, aux termes de la legislation 
 anglaise, c'est la loi frangaise qui doit regir sa succession mobiliere." 
 
 The court, that is, found that Eng. LNat. governed the 
 succession, but that this law sent the matter back to French 
 LDom ; then the court declared to accept such Renvoi, and 
 thus applied French law. The consequence was that the 
 testamentary disposition in favour of the widow was suc- 
 cessfully challenged under the French Civil Code by the 
 children of doiA marriages. The alternative solution, in- 
 volving a rejection of the Renvoi, would have consisted in 
 the simple application of internal^ English law as LNat. 
 Under this law Mr. Anderson would have been able to leave 
 everything to his widow, as he purported to do. (Clunet, 
 1899, p. 825.) 
 
 (b) Czvt/ Tribunal of Dieppe, i8g6. — Mrs. E. brought an 
 action for divorce against her husband before this tribunal. 
 She alleged that she and her husband, though British sub- 
 jects, were domiciled in France, and, at any rate for the 
 purposes of this illustration, this may be assumed to have 
 been the case. Unable to show such grounds for a divorce as 
 would have been recognized by internal English law, Mrs. E. 
 claimed to be allowed to rely on grounds which would have 
 been adequate by the internal French law. Her counsel 
 reasoned as follows : (i) Divorce is regulated by LNat. 
 (ii) By the national law in question, i. e., English law, 
 
 ' The allusion here is to Art. 13 of the French Code Civil : " L'etranger qui aura ete 
 " admis par I'autorisation du President de la R^publique a ^tablir son domicile en France, 
 " y jouira de tous les droits civils, tant qu'il continuera d'y r^sider. " It may not be out of 
 place to explain here that the usual interpretation of this Art. is that AoraicW jure gentium in 
 France is inadequate to originate rights under French law, unless there is also a governmental 
 authorisation to establish a domicil in France. An unauthorised domicil may, however, 
 indirectly cause the application of French law by the adoption of Renvoi, as in case (a) 
 above. See Clunet's Journal, igo2, p. 858, for another such case. 
 
 2 By this is meant the law of England without any reference to its rules of I.P.L. To 
 the rules of I.P.L. adopted by any given State the phrase "Conflict-rules" is sometimes 
 applied herein. 
 
( 6 ) 
 
 divorce is regulated by LDom., i. e., there is a Renvoi from 
 the English to the French law, and the French courts ought 
 to accept it. "No," said the court, " il ne serait pas rationnel 
 d'accepter le renvoi a la loi frangaise, que le legislateur a cru 
 devoir precisement ecarter," i. e., the framer of the French 
 Code has definitely withdrawn the matter from the cognisance 
 of the French law in favour of LNat, and it would be 
 ridiculous for a French court to allow the English law to 
 nullify the precepts of the French legislator. (Clunet, 1899, 
 p. 360.) 
 
 It will be noticed that in case (a) Renvoi was accepted, 
 and that in case (b) another French court, almost simul- 
 taneously, rejected it. 
 
 (c) The illustrative cases given above relate to the allied 
 subjects of Family law and Inheritance. It will be well to 
 add an example or two relating to Capacity, (i) In 1892 
 the Imperial Court of Germany dealt with the capacity of a 
 Prussian, domiciled in Saxony, to make a will during madness. 
 The Prussian law, as LFor., referred to the Saxon law, as 
 LDom. ; the Saxon law referred to LNat. (Prussian). The 
 Imperial Court declared that the Renvoi ought to be accepted 
 and that testamentary capacity was in the given case to be de- 
 termined by Prussian law. {Zeitschrift f. internat. P. u. S.-R., 
 II, p. 469.) (ii) In 1876 an Englishman married a French- 
 woman : in 1888, their domicil being then French, the wife 
 bought goods from a Parisian tailor: and in 1893 the Civil 
 Tribunal of the Seine was called on to say whether the lady 
 was liable for the price of the goods. Judged by internal 
 French law she would not have possessed capacity to bind 
 herself alone ; judged by the internal English law she would 
 have been capable — or so the Tribunal interpreted the 
 Married Women's Property Act 1882. Counsel for the lady 
 set up the following :— Fr. LFor. -> Eng. LNat. -> Fr. 
 LDom.,, and argued that she was not liable to pay the sum 
 claimed. The court declined to accept this Renvoi, and, 
 applying LNat. without Renvoi, found against her. The 
 judgment contained the following noticeable passage : — 
 
( 7 ) 
 
 " En decidant que la loi applicable a I'etat et a la capacite des etrangers 
 en France est leur loi nationale, le legislateur frangais a considere que I'etat 
 et la capacite des personnes etant une dependance etroite de leur nationalite, 
 cette loi est mieux placee que toute autre pour apprecier les conditions d'oii 
 la regie juridique doit deriver, et qu'elle doit etre observee par des_ motifs 
 superieurs de raison et de justice. Mais, exposant ce principe, le legislateur 
 n'a pas en vue la regie de droit international admise en cette matiere dans la 
 legislation etrangere, puisque lui-meme, dans I'exercice de sa souverainete, 
 etablit cette regie et donne la solution de conflit de la loi frangaise avec les 
 lois etrangeres, en disposant que les etrangers sont regis en France par leur 
 statut personnel et en ordonnant aux juges frangais de leur appliquer leur 
 loi nationale." (Clunet, 1893, p. 530.) 
 
 (d) An important section of the adherents of the Renvoi- 
 theory Hmit its operation to those departments of law from 
 which we have hitherto taken our examples, i. e., to the 
 departments of Family law, of Capacity and Status, and 
 of Succession, so far as they depend upon the "personal 
 statute." There is, however, nothing in the theory as 
 stated by others of its adherents to prevent its general 
 operation throughout the whole field of law. The following 
 case is mentioned in Annuaire de V Institut de droit inter- 
 national, Vol. XVII, p. 224. An action was brought in 
 Hamburg upon a bill drawn payable in Chicago. The 
 defendant pleaded extinctive prescription. According to 
 German law the question of prescription is decided by the 
 law of the place of payment (Chicago), but the law of 
 Chicago refers it to the law of the forum (German). The 
 Supreme Court of Leipzig refused to allow the acceptance 
 of this Renvoi and applied the law of Chicago. 
 
 These cases will show that the question of Renvoi is a 
 fundamental one in the ever-increasingly important domain of 
 I.P.L. ; according as it be answered one way or the other, so 
 have we to apply correspondingly different principles when, in 
 that domain, we pronounce on the validity of marriage, or the 
 possibility of divorce, or the legitimacy of a child ; questions 
 arising with regard to the succession to a deceased, — grants 
 of administration, validity of wills, modes of distribution — 
 must be diversely answered according to the doctrine which 
 ultimately prevails, and this not only because these questions 
 
( 8 ) 
 
 of succession may depend .upoa such matters as those just 
 referred to (marriage, legitimacy, &c.), but quite independently 
 thereof; nay, the problem of Renvoi if stated in its widest 
 form is at the basis of all civil international business, and, 
 according as it receives this or that solution, so may we have 
 to declare a given person capable or incapable of contracting, 
 or the formalities of a given legal act to be adequate or 
 inadequate. 
 
 5. It will be convenient to give here a formal enunciation 
 of the Renvoi-question. That given in (a) below, is an 
 enunciation by an opponent of the Renvoi-theory, that in (b) 
 by one of its advocates : both were propounded at discussions 
 of the Institute of International Law. 
 
 {a) Quand un legislateur abandonne a une loi etrangere la determination 
 d'un point de droit, demande-t-il a cette loi de decider quelle loi sera 
 applicable ou cherche-t-il directement dans cette loi quelle solution doit 
 recevoir le point de droit douteux ? 
 
 {b) Quand le legislateur, seul competent d'apres les principes du droit 
 international pour regler une question de droit prive, {e.g., LNat., to which 
 the question is duly referred by LFor.] abdique et renvoie a une autre loi 
 \e. g., LDom., which may or may not be LFor.] pour la solution de cette 
 question, est-ce cette derniere loi [LDom.] qui doit prevaloir dans le pays 
 tiers [in the State to which the Forum belongs] ou bien doit-on y appliquer 
 malgre ce renvoi le droit interne du legislateur seul competent d'apres les 
 regies du droit international ? 
 
( 9 ) 
 
 II. 
 
 6. What has English law said in answer to these questions? 
 Very little. It cannot be said to have either accepted or 
 repudiated the Renvoi-theory in general. In a few cases it 
 has, indeed, given answers favourable to the theory, and these 
 it is now proposed to set out ; but it will be seen that they 
 can fairly be described as special cases, not justifying any 
 general statement. 
 
 The first three cases are considerably earlier than any 
 foreign case which the writer has met with : they are of the 
 years 1841, 1844, and 1847 respectively, while the earliest 
 cases referred to in the foreign legal literature which he has 
 consulted are of the dates 1856 (Court of Guelderland, Hol- 
 land) and 1 86 1 (Court of Liibeck). 
 
 (i)^ Collier v. Rivaz (Prerogative Court of Canterbury, 
 1 841 ; 2 Cur., p. 855). A British subject died domiciled, in the 
 English sense of the word, in Belgium. Testamentary papers 
 were found, executed by him in accordance with the forms of 
 the internal English law, but not in accordance with the forms 
 of the internal law of Belgium, his place of domicil. Sir 
 H. Jenner admitted the papers to probate on the strength of 
 affidavits of Belgian lawyers that, the deceased not having 
 acquired in Belgium an aiithorised domicil, the Belgian 
 courts would not apply to his succession the dispositions of 
 their local law but would leave it to be governed by the 
 
 ^ Thecastoi de Bontuvalv. de Bonneval (iS'^S, i Curt., p. 857) is sometimes cited (^.^., 
 by Nelson, p. 187) as a case in wiiich the doctrine of Renvoi was accepted. Tiiere is no 
 warrant for this. The court said (p. 858): "The simple question is wliether the deceased 
 was domiciled in France or in this country. On that point it will depend by the laws of 
 " which country the validity or invalidity of the will is to be tried : for it is now settled 
 " . . . that the law of the place of domicil . . . governs the . . . succession to 
 " personal property." And the court, having decided that the deceased was domiciled in 
 France, pronounced ' ' that the Courts of that country are the competent authority to 
 " determine the validity of the will and the succession to his personal estate ; and, as in the 
 " case oi Hare v. Nasmylh (2 Add. 25) the Court suspends the proceedings here, as to the 
 " validity of the will, till it is pronounced valid or invalid by the tribunals of France." 
 
( lo ) 
 
 law of England. Sir H. Jennersaid (p. 858): "It does not 
 " follow that, Mr. R. being a domiciled subject of Belgium, 
 "he is therefore necessarily subject to all the forms which 
 " the law of Belgium requires froni its own native-born 
 " subjects. I apprehend there can be no doubt that every 
 " nation has a right to say under what circumstances it will 
 " permit a disposition ... to be entered into by persons 
 " who are not native-born but who have become subjects 
 " from continued residence ; that is, foreigners who come to 
 " reside under certain circumstances without obtaining from 
 " certain authorities those full rights which are necessary to 
 " constitute an actual Belgian subject. Every nation has a 
 " right to say how far the general law shall apply to its own 
 " born subjects and the subjects of another country ; and 
 " the Court sitting here to determine it, must consider itself 
 " sitting in Belgium under the particular circumstances of the 
 " case .... (p. 863). I am of opinion, that notwithstanding 
 " the domicile of Mr. R. must be considered to have been in 
 " Belgium .... yet that foreign country in which he was 
 " so domiciled would uphold his testamentary disposition if 
 " executed according to the forms required by his own 
 " country. I am therefore . . . bound to decree probate." 
 (2) Maltass v. Maltass{\%\\, i Robert., p. 67). In this case 
 the question was as to the validity of a will made by a British 
 subject resident in Turkey ; the will was in the form required 
 by internal English law. What was his domicil at death ? 
 Either Turkish or (by transmission from his father) English. 
 For the following reasons, however, the court did not think 
 it necessary to decide this question : " This inquiry," said the 
 court, "will become unnecessary if it should turn out that 
 " with regard to this individual succession, the law of Great 
 " Britain and of Turkey is the same ; for when we speak 
 " of the law of Domicil, as applied to the law of succession, 
 " we mean, not the general law, but the law which the 
 " country of domicil applies to the particular case under 
 " consideration. Such law may be totally different as applied 
 " to a natural-born subject of the country, as exemplified in 
 
( II ) 
 
 "the case of Collier v. Rivaz." In the case under con- 
 sideration treaties existed between the United Kingdom and 
 Turkey which in the opinion of the court appHed to the 
 case, and by which the succession of an English subject 
 dying within Turkish dominions was to be regulated by 
 English law. This is, then, not a case of Renvoi, for, in 
 the event of Turkish domicil being established, the matter 
 would come under English law, not by remit from the law 
 of Turkey but by virtue of the treaty. The case is set out 
 because of the dictum. 
 
 (3) Frere v. Frere {1847, 5 Notes of Cases, p. 593). 
 In 1826 the Right Honourable J. Hookham Frere, being 
 domiciled in Malta, made a will in England in English form. 
 He died in 1846, still domiciled in Malta. Sir H. Jenner 
 Fust, in the Prerogative Court of Canterbury, refused to 
 declare the will void, although the municipal law of Malta 
 required the presence of at least five witnesses, at any rate 
 for wills made in Malta. The evidence before the court 
 was that the Maltese courts would not deem a will, made 
 outside Malta by a person domiciled in Malta, to be void, if it 
 complied with the formal requirements of the lex actus. 
 
 (4) Bremer v. Freeman (1856 in the Prerogative Court 
 of Canterbury, Deane, p. 199; 1857 in the Privy Council, 
 10 Moo. P. C, p. 374). F. A., a British subject, died domi- 
 ciled, jrire gentium, in France. She had made a will, in 
 France, in English form : the will dealt with movables all of 
 which, save the contents of her lodgings, were in England. 
 The testatrix had not obtained from the French government 
 authorisation to acquire a French domicil. The judge of the 
 Prerogative Court (Sir John Dodson) admitted the will to 
 probate on the ground that, though F. A. had her domicil 
 de facto in France, yet that it was necessary, in order to 
 establish a domicil in France such as would affect her succes- 
 sion and the mode of making her will, that her domicil should 
 be by authorisation of the French government. The judge 
 expressly said that he was following Collier v. Rivaz (p. 256) : 
 " It is the duty of the Court," said he, " to follow in the same 
 
( 12 ) 
 
 " course." This decision was reversed in the Privy Council, 
 the judgment of that tribunal being rendered by Lord Wens- 
 leydale. "Two questions," said he, "were before the Court, 
 " the first relating to Domicil, and the second was, Has it 
 ' ' been established that by the mitnicipal law of the Domicil at 
 " time of death the will propounded was valid ? " As to the 
 first of these questions it was held that F. A., the testatrix, 
 was domiciled in France j'wre gentitim despite the absence of 
 governmental authorisation : the second question accordingly 
 resolved itself into this, whether in the case of a person so 
 domiciled the use of English forms was "sanctioned by the 
 municipal law of France" (lo Moo. P. C, p. 361). 
 
 The key-stone of Lord Wensleydale's judgment is that, 
 F. A. dying domiciled in France, the validity of her will is to 
 be determined by French law. Subject to that dominating 
 consideration, the judgment deals with two alternative in- 
 terpretations — (a) and (b) below — of Art. 13 of the Code 
 Napoleon. That Art. ran, " Letranger qui aura ete admis 
 " par I'autorisation de I'empereur a etablir son domicile en 
 " France, y jouira de tous les droits civils, tant qu'il continuera 
 " d'y resider." 
 
 (a) Let us interpret this Art. to mean that French law 
 refuses civil rights, including the right of testation, to one 
 who is " domiciled but has not an authorisation " (p. 365). 
 Two cases must be considered, says the court : — (i) Suppose 
 that this refusal applies to goods wherever situate. In this 
 case F. A. loses, by the (French) law of her domicil, power 
 to make a will altogether : and the will propounded is invalid 
 (p- 365)- (ii) Suppose this refusal applies only to goods 
 situate in France. " Still the will, to have any effect, must 
 " be in the form and with the solemnities of the domicil, 
 " according to the general rule,^ otherwise it cannot be 
 "admitted to proof" (p. 366). 
 
 ' This " general rule " is "the rule of International law . . . that the form and 
 solemnities must be governed by the law of the domicil of the deceased ; " the opposed 
 rule, /. e. , locus regit actum, which some of the experts stated to be the rule of International 
 law adopted in P'rance, was summarily banished by the court. See pp. 362-3. In an 
 English forum only the English rules of International law can be entertained. 
 
( 13 ) 
 
 (b) Does Art. 13 mean that French law insists that 
 (p. 366) " no domicil for any ptirpose whatever can be ob- 
 " tained without authorisation " ? After considering French 
 cases and the opinions of French writers, Lord Wensleydale 
 says (p. 373) "On the whole, then, on a review of all this 
 " evidence of the law of France, their lordships are clearly 
 " of opinion that it is not established that, for the purpose of 
 " having a domicil which would regulate the succession, any 
 
 " authorisation of the Emperor was necessary and 
 
 " that consequently, if the testatrix had a power to make a 
 " will at all, the will in this form was invalid."^ 
 
 It will be seen that this case stops short just where it 
 begins to be interesting. Had the court come to the con- 
 clusion that French law had no rules of succession (testate 
 or intestate) for a foreigner who was domiciled in France 
 without authorisation, the court would have had to say how 
 it would deal with the lacuna. That it would not have 
 applied French rules malgrd French law seems a logical 
 conclusion, for, otherwise, the long discussion as to the effect 
 in France of the absence of authorisation would have been 
 unnecessary. 
 
 (5) Crookenden v. Fzdler {\'&S9, i Sw. & T., p. 441). The 
 suit related to a will made in English form. Held, that the 
 testatrix was domiciled in England at death, and that the 
 will was therefore valid. It had also been pleaded that, even 
 if the testatrix's domicil at death were French, the will was 
 valid in point of form by French law. An uncontradicted 
 opinion by a French advocate was given in evidence to the 
 effect that the rule of French law which allows a Frenchman 
 to make a will out of France in accordance with the formali- 
 ties of the lex actus, would by French law apply also in 
 favour of an English subject domiciled in France. The 
 
 ' It had been insisted in argument that Collier v. Rivaz was wrong in law : the judgment 
 does not touch upon this question, the court simply saying that it doubts whether the judge 
 in Collier v. Rivaz was warranted by the evidence in coming to the conclusion which he did. 
 The law of Collier v. Rivaz is neither adversely nor favourably affected by Bre7ner v. 
 Freeman. See 4 Phillimore, Int. Law, § cccxlvii, for the subsequent history of the latter 
 case. 
 
( H ) 
 
 court accepted this and found for the will on this point also ; 
 but the finding on the first point really settled the matter. 
 
 (6) Laneuville v. Anderson (i860, 2 Sw. & T., at pp. 38, 
 39). The Court of Probate (Sir C. Cresswell) declared a 
 will to have been initially valid, qiioad form, in the following 
 circumstances. The testator, a British subject, who was 
 domiciled de facto in France but had not obtained authori- 
 sation from the French government to establish his domicil 
 in France {see 9 Moo. P. C, p. 330), made in England a will 
 in English form. " The evidence proves," said the court 
 " that the will was valid by the law of France." The " law " 
 in question was (2 Sw. & T., p. 29) Art. 999 of the Code 
 Civil : " Un Fran9ais qui se trouvera en pays Stranger pourra 
 " faire ses dispositions testamentaires . . . par acte authentique 
 " avec les formes usit^s dans le lieu ou cet acte sera pass6." 
 A French court by declaring this will to have been subse- 
 quently revoked showed that it construed this Art. as applic- 
 able to Frenchmen by domicil as well as to Frenchmen by 
 nationality.^ 
 
 (7) In the goods of Luigi Bianchi (1862, 3 Sw. and T., 
 p. 16). Luigi Bianchi, Genoese by birth, whose domicil of 
 origin was in the (then) kingdom of Sardinia, went to Bahia 
 in the empire of Brazil and acquired a considerable fortune. 
 In 1856, having wound up his affairs at Bahia, he sailed for 
 Genoa where he intended to reside permanently. He died on 
 the voyage, intestate. Some of his children were in Genoa, 
 others in Brazil. He possessed movables in England ; 
 and in 1859 the Court of Probate granted administration to 
 
 1 In Onslow and Allardice v. Cannon (1861, 2 Sw. & T., p. 137), we see how settled the 
 doctrine had become, that Renvoi was permissible in ascertaining the adequacy of testa- 
 mentary formalities. In that case the next of kin of Cannon, deceased, opposed a will 
 executed by him in 1859 in the Mysore territory in the, locally valid, English form. The 
 ground taken was that the testator was a domiciled Scotsman and that the execution was 
 invalid by the law of Scotland. Pending the suit, a Court of Appeal in Scotland, in 
 Pimns's Trustees, determined that the will of a domiciled Scotsman was good as to 
 personalty if executed according to the lex loci actus. The next of kin of Cannon, 
 accordingly, withdrew their opposition. Dr. Deane, Q.C., of counsel for the next of kin, 
 said, " Thus, if in the present case we had established a Scotch domicil, it would not have 
 " invalidated the will, being executed in accordance with the law of the place where it was 
 " actually made." 
 
( 15 ) 
 
 the representative of a person who had been appointed 
 guardian by the Brazilian law. Discussions, however, took 
 place between the Governments of Sardinia and Brazil with 
 respect to the domicil of Bianchi at the time of his death, 
 which ended in an agreement being come to between the two 
 Governments by which the Brazilian Goverment gave up to 
 the Sardinian all claim to administration and guardianship. 
 In 1862, accordingly, an application was made to the English 
 court to rescind the former grant of administration, and to 
 make one in favour of the Sardinian Consul at Bahia. The 
 court (Sir C. Cresswell) said, "What is the arrangement 
 " between the Courts of Turin and Brazil ? If the deceased 
 " was domiciled in Brazil at the time of his death, how can 
 " such an arrangement affect the grant to be made by me?'' 
 Ultimately, however. Sir C. Cresswell granted the application. 
 He was pressed with the argument, " The Brazilian Govern- 
 " ment have surrendered all their interest in the matter to 
 " the Italian Government " : but he took no notice of it. His 
 decision was given on the ground that, as Bianchi had finally 
 abandoned his acquired domicil in Brazil, his Sardinian 
 domicil of origin revived. 
 
 (8) In the goods of Lacroix (1877, 2 P. D., p. 96). A 
 British subject, presumably domiciled in France, made a will 
 in France in the form required by the Wills Act, 1837, and 
 not in any of the forms allowed by internal French law. This 
 will would be valid in England, under Lord Kingsdown's 
 Act, if "made according to the forms required by the law of 
 the place where the same was made." It was proved by 
 affidavit that by French law the will of a British subject made 
 in France would be valid if it were in accordance with the 
 forms "required by the law of England to give validity to 
 " wills executed by Englishmen in England." Probate was 
 therefore granted by Sir J. Hannen : i. e., the phrase in 
 Lord Kingsdown's Act, " Law of the place where the same 
 was made" was interpreted to mean "the territorial law 
 " which the lex actus would deem applicable in the given 
 " case." 
 
( 16 ) 
 
 Note. — (1) The court was moved ex parte and was, pro- 
 bably, desirous of giving effect to the will. No attempt was 
 made to reconcile the decision either with the words of Lord 
 Kingsdown's Act or (which would have been much more 
 difficult) with the juridic reasons for the rule locus regit actum. 
 (ii) The law of England concerning the wills " of English- 
 men " was identified by the court with the territorial law of 
 England, i. e., the Wills Act : now a French court applying 
 LNat. might well be justified in giving this liberal interpre- 
 tation to the phrase, but that it is inadmissible in an English 
 court is shown in the note to Case No. lo below. 
 
 (9) In re Trtifort [i%^'j , 36 Ch. D., p. 600). A Swiss subject 
 died domiciled in France. X claimed in the Swiss court to 
 be recognised as his legitimate son and to be entitled as such 
 to nine-tenths of his estate, and obtained a final judgment in 
 his favour on both points. The deceased had left a will by 
 which he gave his fortune to Y ; part of this fortune was 
 movables in England. Mr. Justice Stirling declared that he 
 was bound by the decision of the Swiss courts: "Where," 
 said he, "the title has been adjudicated on by the Courts of the 
 " domicil such adjudication is binding on the Courts of Eng- 
 " land" : true, the domicile was France, but French law (accord- 
 ing to the evidence adduced) regulates movable succession by 
 reference to LNat., and, in addition, by a treaty made be- 
 tween France and Switzerland in 1869, the rights of persons 
 claiming to share in the estate of a Swiss subject dying 
 domiciled in France were to be determined according to the 
 law and by the tribunals of Switzerland. Said Stirling, J.: 
 " The claim of the parties litigating in this Court has been 
 " actually raised and decided in the Courts luJiich, according 
 " to the law of the deceased's domicil, were the proper and 
 " competent Courts to decide. I am bound by the decision." 
 
 Note. — It was not so much as suggested that the material 
 law applicable was the internal French law. 
 
 (10) Add-td-Messih v. Farra (1888, 13 A. C, p. 431). 
 This action related to the movable succession of a person, a 
 member of the Chaldean Catholic community, whose domicil 
 
( 17 ) 
 
 of origin was Turkish, but who, from 1858 until his death in 
 1885, was resident in Cairo where he had acquired the status 
 of a protected British subject. The Supreme Consular Court 
 of Constantinople, applying an Order in Council whereby its 
 civil ; jurisdiction was, as far as circumstances admit, to be 
 exercised on the principles of the law for the time being in 
 force in and for England, put itself in the same position as 
 an English Court of Probate as regards the succession in 
 question, and applied the law of the domicil of the deceased : 
 this domicil was held to be Turkish, inasmuch as, Cairo not 
 being British soil, It was impossible for the deceased to have 
 acquired an English domicil by residence there. The Privy 
 Council approved of this decision. So far no question of 
 Renvoi arises.'^ But in the course of the judgment of the 
 Privy Council (which was delivered by Lord Watson) an 
 indication was given of the way in which the case would 
 have been treated had it been a case of Renvoi. On p. 443, 
 Lord Watson deals with the suggestions (i) that it was for 
 the Ottoman law to say whether, in the circumstances, the 
 deceased had, or had not, lost his Turkish nationality and 
 become a British subject, and (ii) that, if it should make 
 a declaration that there had been this alteration, then, a 
 Turkish tribunal would, in administering the estate, defer to 
 the law of England as LNat. In other words. Lord Watson 
 deals with the supposititious case : Eng. LFor. -> Turk. 
 LDom. -> Eng. LNat., and he says (p. 444) : 
 
 " If it be assumed that, in consequence of his having placed himself 
 under foreign protection, the Porte resigned the deceased, both civilly and 
 politically, to the law of the protecting power, that would merely give him the 
 
 ' The case simply shows that " English law " as administered in Consular courts includes 
 English rules of I. P.L. The same point arose and was similarly decided in Secretary of 
 State for Foreign Affairs v. Charlesworth, Pilling &= Co. (1901, A. C, p. 373). The 
 British Crown has a sovereign power and jurisdiction in Zanzibar by virtue of " treaty, 
 " grant, usage, sufferance and other lawful means," but Zanzibar remains none the less foreign 
 territory, the British King and his officers acting ad hoc as Zanzibar officials. This authority 
 the British Sovereign orders to be exercised in accordance partly with certain Anglo-Indian 
 laws and partly with English law. In the case under consideration the latter law was 
 applicable. It was a case relating to local land. "The law of England," said the Privy 
 Council (p. 383), " recognises the principle that the incidents of land are governed by the 
 " law of its site. Therefore . . . . H. M. would exercise Zanzibar jurisdiction on the 
 " principle that Zanzibar law, which is Mahomedan law, applies to this case." 
 
 C 
 
( i8 ) 
 
 same rights as if his nationality had been English, and the territorial law of 
 his domicil would still be applicable to his capacity to make a will and to the 
 distribution of his estate." 
 
 Note. — The italicised part of the following passage is 
 of importance in connection with the subject-matter of 
 Note (ii) to case No. 8 above {Lacroix). 
 
 " According to sect. 6 (of the Order in Council) they (the Consular Courts) 
 are to administer the law for the time being in force ' in and for England,' an 
 expression which simply denotes the law for the time being administered in 
 the Courts of England ; and, according to sect. 91, they are to have the same 
 jurisdiction in probate as belongs to the English Court of Probate. If this 
 suit had been brought in the Court of Probate here, there can be no doubt 
 that the law applicable would have been that of the testator's domicil ; but it 
 was suggested for the appellant that the words ' in and for England,' must 
 be read as if they had been ' in England and for Englishmen.' That con- 
 struction would not avail her, because testate succession of an JLnglishman is 
 regulated by his domicil, which may be in France or elsewhere abroad. In 
 order to support the argument, it would be necessary to make the gloss run 
 thus, ' in England and for Englishmen domiciled there.' " 
 
 (11) In the goods of Brown-Sdquard {i^()\, 70 L. T., N. S., 
 p. 811). Two British subjects intermarried in France; a 
 marriage settlement gave the wife a power of appointment 
 by will of certain trust-funds in England. After the marriage 
 the parties obtained, and retained until their death, a French 
 domicil ; the husband became also a naturalised French 
 subject, but by French law this did not affect the political 
 status of the wife. While on a temporary visit to England, 
 the wife executed in English form, but not in accordance 
 with the requirements of internal French law, a will exer- 
 cising the power of appointment conferred on her by the 
 marriage settlement. An ex parte application was subse- 
 quently made to Jeune, P., to admit the will to probate. The 
 judgment was as follows : — 
 
 " The testatrix being at the time of her death, according to English law, a 
 domiciled subject of France, I must look at French law and see what it savs 
 on the point. I find from the affidavit of a French advocate that, accordiiio- 
 to the law of France, this will is operative " — inasmuch as the deceased was 
 by French law, an Englishwoman — " I therefore admit it to probate." 
 
( 19 ) 
 
 (i2)^ In the case now to be mentioned, In re yohnson 
 (1903, I Ch., p. 821), the word "renvoi" seems for the first 
 time to have been heard in an English court. In 1894 a 
 British subject, whose domicil of origin was Malta, died, 
 intestate.^ Domiciled in Baden (p. 826 of judgment), she 
 was not naturalised there, and the evidence was that by 
 the law of Baden her succession was governed solely by the 
 law of the country of which she was a subject at the time of 
 her death. She left movables in Baden and in England. 
 The court (Farwell, J.) directed the movables under its 
 jurisdiction to be distributed amongst the persons entitled 
 thereto according to Maltese law. The reasons for this 
 decision were stated in the alternative : (i) A domicil of 
 choice which is, according to the law of the country chosen, 
 ineffectual as regards the post-mortuary distribution of mov- 
 ables, was held to be, for this purpose, no domicil at all 
 {p. 828). The deceased, therefore, retained her domicil of 
 origin, in Malta, until her death, and the law of that domi- 
 cil applied to her succession, (ii) Assuming,' however, that 
 the deceased was domiciled in Baden, and that the law of 
 Baden had seisin of her succession, still it would apply LNat., 
 i. e., the law of the British nationality — i. e., in this case the 
 
 1 In In re Martin (1900, P. D., p. 211), Jeune, P., made a pronouncement which, 
 despite the high authority of the learned Judge, is here referred to in a footnote only, 
 because it was not only obiter but also not finally considered. He had decided that a person 
 was domiciled, in the English sense of the word, in France : he then adverted to the 
 possibility that the French law might hold that person to be domiciled, in the French sense 
 of the word, in England. Of the questions which would then arise he said, " I am very far 
 " indeed from saying that I have arrived at a clear view .... I confess it is extremely 
 " likely (I go no further) that, in that case, we should again have had to apply English law, 
 " though I am not insensible to the difficulty counsel has pointed out as to what he termed 
 " 'an infinite series.'" (See para. 20, post). The President then went on to declare that 
 if and when he had arrived at the conclusion that, in a matter governed by LDom., the 
 domicil was French, he would have to imagine himself "placed in the position of a French 
 Judge." This dictum, which does not lack support, is a crucial one, for if it be admitted 
 without qualification, Renvoi is admitted, and admitted in what will be hereafter shown to 
 be its more unscientific form. See p. 105, post. 
 
 ^ More correctly, "partly testate and partly intestate,'' for her will did not cover all 
 her property; the report does not say what formalities were adopted by the deceased in 
 making it. 
 
 ^ The actual language of the learned judge in introducing this alternative line of 
 reasoning was "even if the Baden Courts would not have refused jurisdiction" (p. 832). 
 The phrase is difficult to construe, but principles of logical dichotomy compel the belief 
 that his meaning was as given above. 
 
 C 2 
 
( 20 ) 
 
 kw of Malta.^ In the latter of these two ahernative reasons 
 the court accepts the Renvoi principle, in what will herein- 
 after be shown to be its more objectionable form.^ It may 
 be as well to point out here that no one was interested to 
 contend for the application of municipal Baden law. 
 
 7. If, as the writer believes to be the fact, the list given 
 above comprises all the English' cases which bear directly 
 on the Renvoi-question, it will be seen that, up to the end 
 of the 19th century, English tribunals had pronounced on the 
 Weiterverweisung question in contradictory manners (No. 8, 
 Bianchi; No. 9, Trtifori) and, for the rest, had shown a 
 willingness to render a will formally valid by interpreting 
 English rules of LP. L. in a sense consistent with that re- 
 quired by the Renvoi-theory. In order, however, justly to 
 estimate the value of these cases it would be necessary to take 
 into account also the rest of the mass of English case-law on 
 I.P.L. Only by so doing can we say whether the cases in 
 question are to be treated as exceptional and subordinate, 
 on the one hand, or as authenticating, on the other hand, a 
 
 1 The judge arrived at this undoubtedly correct determination of the deceased's LNat. in 
 the following way. Politically foreign countries desiring to ascertain LNat. of a British 
 subject must do so by inquiring of England, "the country with which alone they are 
 in diplomatic relation" (p. 835); and "inasmuch as the law of England distributes such 
 movables in accordance with domicil of origin," LNat. in this case is the law of Malta. 
 'VSTiat the authority for the doctrine in the passage last quoted is, the writer cannot con- 
 jecture. It is submitted that the court of Baden would have arrived at the same result more 
 simply, by saying that LNat. in the case of a British subject is the law of that legal area 
 within the British Empire where the person in question last had a domicil. This is what it 
 would have done had it desired to ascertain the nationality, quoad the personal statute, of a 
 German subject. The learned judge asks (p. 834), " What nationality at his death can a 
 Court which ignores domicil attribute to a man born in Scotland who makes his home and 
 fortune at the Cape and dies in England ? " Answer : His LNat. is the law of that one of 
 the three legal areas where the Court would say, if it did not ignore domicil, that he last was 
 domiciled. There would be no need to petition Mr. Choate to ask Mr. Secretary Hay what 
 is LNat. of a citizen of the United States domiciled in New York. To determine LNat. in 
 the case of a British subject by reference to domicil of origin, to the exclusion of a British 
 domicil of choice, is to deny him within the Empire that power of changing his nationality 
 which he enjoys outside it. " Domiciled Scotsman " is a correct phrase and free from the 
 ambiguity attaching to the phrase ' ' domiciled Frenchman. " 
 
 2 But what if the law of Malta refers the question back again to LDom. which ex 
 hypothesi is Baden ! In re Johnson is considered /orf, pp. 115, ct seq. 
 
 ' See in the Appendix hereto the case of Ross v. Ross, where the Canadian courts upheld 
 a will as valid, in point of form, by means of Renvoi. In 1S73 the New York Court of 
 Appeal acted in the same manner in the case oi Dupuy w Il'tirtz (Clunet, 1S74, p. 86; 
 53 N. Y., p. 556). See Appendix hereto. 
 
( 21 ) 
 
 doctrine of general application. It may be that the practice 
 of a hundred years has so firmly based the fabric of English 
 international jurisprudence upon principles other than, possi- 
 bly also less scientific than, those to which Renvoi-adherents 
 appeal, that the cases in question lose their seeming im- 
 portance when viewed in true perspective. The considera- 
 tion of this matter is attempted towards the close of this 
 pamphlet. Meanwhile it is here important to show what use, 
 in this connexion, has been made of the cases given above, 
 by English writers on I.P^L. Mr. Westlake, in the third 
 edition (1890) of his Treatise, has the following passages : — 
 
 (a) " Section 89 . . . the law of any foreign country by which a will 
 may be sustained includes private international law as received in that country, 
 so that if a will would there be held valid because executed according to the 
 forms of any other law, as, for example, that of the locus actus or of the 
 testator's political nationality, an execution according to those forms will be 
 one according to the law of the domicil, though not in accordance with the 
 forms of the domicil." 
 
 He relies on the cases mentioned i, 5, 6 and 8 above. 
 
 {V) "Section 254. If an establishment be made in any country in such 
 manner that by English law it would fix the domicil there, still no effect 
 which the law of that country does not allow to it can be allowed to it in the 
 character of domicil in England. In other words, no one can acquire a 
 personal law in the teeth of that law itself." 
 
 He relies in this section on Nos. i and 4 above ; also on 
 Hamilton v. Dallas. -^ Of Bremer v. Freeman, he says : 
 
 ' Hamilton v. Dallas (1875, I Ch. D., p. 257). The question in this case was whether the 
 movable succession of an intestate (Lord Howden) was to be governed by the English 
 Statutes of Distribution or by the corresponding rules of French law. Although the deceased 
 had been resident in France for many years before his death, he had not obtained, under 
 Art. 13 Cod. Civ., the authorisation of the French Government to establish a domicil in 
 France, and it was argued that the animus with which he took up his residence in France, 
 though coupled with tiie factum of long-continued residence, was, by reason of the absence of 
 authorisation, not enough to make his domicil French for the purposes of succession. The 
 Court (Bacon, V.-C.) pronounced very definitely against this argument, saying : " It is mere 
 " commonplace .... that upon a question of domicil the test must always be the animus 
 " axii the factum (^. 26%) .... If it was competent for Lord Howden (as, in my opinion, 
 " it was abundantly competent for him) .... to take up a domicil in a foreign country, 
 " he had de facto cum anim^ done that beyond all possibility of doubt .... Then it was 
 " suggested that by the French law it was not competent for Lord Howden to acquire a 
 " domicil .... That a foreigner can acquire a domicil de facto in France is not for a 
 " moment to be called in question. It requires no provision in the Code for that ; it is a 
 " law paramount to the law of the Code " (p. 270). The Vice-Chancellor further expressecl 
 
( 22 ) 
 
 " It was held (in the Court of first instance) that according to English 
 principles on domicil a testator had acquired a domicil in a foreign country, 
 and that the effect of applying English principles on wills to that state of his 
 domicil would have been to invalidate his will, contrary to the law of that 
 country, which the Court refused to do. Bremer v. Freemati was reversed on 
 appeal, it being held that to invahdate the will was not contrary to the law of 
 France, in which country the testator, without authority from the French 
 government, had acquired a domicil according to English principles." 
 
 Mr. Dicey, in his Conflict of Laws, refers to the question 
 in two places. The passage {c), set out below, relates to 
 the interpretation to be placed on terms used by him in his 
 book, but it may be taken to be his doctrine on the general 
 question. 
 
 {c), p. 77. — " When any Rule, applied to the circumstances of a given case, 
 designates a foreign country, e. g., Italy, as the country the law whereof is to 
 determine the case, or, in other words, directs that the case be determined in 
 accordance with the law of Italy, then the term ' law of Italy ' means, unless 
 the contrary is expressly stated, any principle or body of law which the Italian 
 Courts hold applicable to the particular case. The Rule, in effect, directs 
 that English Courts shall decide the case with reference to the law, whatever 
 it be, according to which the Italian Courts would decide it." 
 
 He relies on case No. i above, and mentions case No. 8 
 and Pechell v. Hilderley. ' 
 
 the opinion that the 13th Art. of the Civil Code did not bear the construction that, under it, 
 absence of governmental authorisation would prevent the obtaining of a domicil de facto in 
 France (p. 270). There is, however, nothing in the judgment to suggest that, had Art. 13, 
 in the judge's opinion, prevented an unauthorised domicil from being treated in France as 
 domicil, this would have affected an English court ; on the contrary, there is much to lead 
 the inference that French doctrine on the subject is immaterial jure gentium. This case 
 is a strong one, inasmuch as the decision in favour of a French domicil deprived the English 
 revenue authorities of legacy duty. 
 
 1 Pechellv. Hilderley (1869, L. R., i P. and I?., p. 673). Capt. P., a British subject and 
 (presumably) domiciled in England, left a will and two codicils. The will was made in 
 India and was not in the form required by the Wills Act : the codicils were executed in 
 Florence. The first codicil was not valid in point of form either by English or by Italian 
 law ; the second was in the form required by Italian law, but evidence was given that, being 
 only a codicil to a will, it would not be upheld by Italian law as an independent paper and 
 would fail if the will failed. It was argued that by regarding the validity of these papers 
 partly according to Italian and partly according to English law, a valid will and codicils 
 would result. Without saying whether this effect would be produced, the court declined to 
 apply two systems of law at the same time. " I am of opinion," said Lord Penzance, " that 
 " in determining the question whether any paper is testamentary, regard can be had to the 
 " law of one country only at >■ time, and that the mixing up of the legal precepts of two 
 " different countries can only result in conclusions conformable to neither," 
 
( 23 ) 
 
 The second passage in which Mr. Dicey deals with the 
 Renvoi-question is the following : 
 
 {d), p. 113.— "The acquisition of a domicil cannot be affected by rules of 
 foreign law. But the legal effect to be given to the domicil acquired will 
 depend upon the law of the country where the person in question is domiciled. 
 Thus if D dies domiciled in France, though without having obtained the 
 authorisation required by the Code Napoleon, Art. 13, the descent of his 
 movable property in case of intestacy, or the validity of his will of movables 
 in case he leaves a will, will be determined by the rules which French Courts 
 would apply to the case of a person who, though resident in France, has not 
 obtained the necessary authorisation." 
 
 He refers to cases i and 4 above, and to Hamilton v. 
 Dallas. 
 
 Both Mr. Westlake and Mr. Dicey hint that the conditions 
 which have given rise to the Renvoi-question exist in English 
 law in a wider area than that of testamentary Formalities : 
 the former, in extract {b), suggests that this is so with regard 
 to the Personal statute, and the latter suggests that it is so 
 with regard to I.P. L. in general. Neither of these dis- 
 tinguished writers, however, refers to the ulterior difficulties 
 which his doctrine engenders, and neither, of course, offers 
 any solution of them, i. e., of the Renvoi-question.'' The 
 present writer returns to this topic towards the end of this 
 pamphlet. 
 
 ^ Mr. Foote, in the 3rd edition of his Private International jfurisprudence, published in 
 1904, abstains from any discussion of the question. See pp. 10, 368. Mr. Nelson, Selected 
 Cases, p. 187, relying on the cases above mentioned relating to testamentary Form, and on 
 Hamilton v. Dallas, says of I.P.L. in general that the " law of the domicil" means "the 
 law that the Court of the domicil would apply to a case before it. " 
 
( 24 ) 
 
 III. 
 
 8. The first occasion on which the Renvoi-question came 
 before a continental tribunal seems to have been in 1856, 
 when the Court of Guelderland (Holland) declined a Renvoi 
 from Prussian law, as lex actus, to its own law, as lex loct 
 situs, in a matter of donation {Revue de Droit Internal., 
 Vol. XXX, p. 410). The next case was that before the Liibeck 
 Court in 1861, referred to herein on p. 50. Thenceforward 
 the question slept until 1876, the year when the Forgo case^ 
 came, for the second time, before the French Cour de Cas- 
 sation. The following (imperfect) summary — wherein the 
 legal category to which the case belongs and the result {Pro 
 or Contra the Renvoi-theory) are indicated — will give some 
 idea of the extent to which foreign judges have been con- 
 cerned with the question since the date of the Forgo case. 
 
 I. France : — 
 
 1888. Marriage Settlement. Pro (obiter). (Clun., 1888, p. 814.) 
 „ *Interdiction. Pro. (Clun., 1888, p. 791.) 
 
 1889. *Legitimation by subsequent marriage. Pro. (Clun., 1889, 
 
 p. 638.) 
 1891. Form of donation. Pro {obiter). (Clun., 1891, p. 238.) 
 
 1893. *Capacity of married woman. Contra. (Clun., 1893, p. 530.) 
 
 1894. *Interdiction. Pro. (Clun., 1894, p. 531.) 
 
 ,, *Filiation. Pro {obiter). (Clun., 1894, p. 1007.) 
 
 1895. *Capacity of married woman. Pro {obiter). (Clun., 1S95, 
 
 p. 105.) 
 
 ' See Sewell, French Law affecting British Subjects, p. 46, et seq., and p. 169, et seq. 
 The case related to the succession to Fran9ois Xavier Forgo, a natural child, a Bavarian by 
 birth who obtained a domicii de facto at Pau, and died there intestate. Certain relatives of 
 the deceased who would have been entitled under Bavarian law, but not under French law, 
 to succeed to his estate, claimed against the French revenue authorities who had obtained 
 possession. It was held that the succession ought to be governed by Bavarian LNat., but 
 that as Bavarian law referred the succession to the French law, (i) in regard of the "statut 
 personnel" as being the LDom., and (ii) in regard of the "statut reel" as lex situs, the 
 French law was alone applicable. 
 
 * An asterisk denotes that the Renvoi was from the English or American law. 
 
( 25 ) 
 
 I. France — continued. 
 
 1896. 
 1899. 
 
 1901. 
 
 'Administration. Contra. (Clun., 1897, p. 165.)! 
 
 *Divorce. Contra. (Clun., 1899, p. 360.) 
 Interdiction. Pro {semble). (Clun., 1899, p. 794.) 
 Patronymic. Pro. (Clun., 1899, p. 569.) 
 
 *Succession. Pro. (Clun., 1899, p. 825.) 
 
 * „ „ (Clun., 1900, p. 368.) 
 
 * „ „ (Clun., 1902, p. 858.) 
 
 II. Belgium : — 
 
 1879. *Succession. Pro. {Rev. de Dr. Int., Vol. XVI, p. 142.) 
 
 1881. *Divorce. Pro. (Sirey, 1881, 14, 41.) 
 
 1887. *Succession. Pro. (Clun., 1887, p. 748.) 
 1896. Divorce. Pro. (Clun., 1896, p. 895.) 
 
 „ *Succession. Pro. (Clun., 1896, p. 655.) 
 
 III. § Germany : — 
 Succession, 
 
 1861. 
 1880. 
 1881. 
 1885. 
 
 1886. 
 1888. 
 1889. 
 
 1890. 
 1892. 
 
 1893. 
 1894. 
 
 1896. 
 1897. 
 1898. 
 
 Pro. (Seuff. Archiv., xiv, No. 107.) 
 „ „ {Bad. Anna!., xlvii, p. 145.) 
 
 „ (Ibid.) 
 „ „ {Bad. Annal., li, p. 373.) 
 
 „ {Ibid.) 
 Parent and child. Pro. (Bolze, Praxis, III, No. 28.) 
 
 {Entsch. d. RG., civil., xx, p. 351.) 
 
 {Bad. Annal., Iv, p. 129.) 
 
 {Entsch. d. RG., civil., xxiv, p. 326.) 
 
 {Bad. Annal., Ivii, p. 14.) 
 
 (Bohm's Zeitschr., ii, p. 469.) 
 
 {Ibid., iii, p. 416.) 
 
 {Ibid., p. 520.) 
 
 {Ibid., iv, p. 151.) 
 
 {Bad. Annal., Ix, p. 213.) 
 
 {Zeitschr., v, p, 58.) 
 
 {Entsch. d. RG., civil., xxxvi, p. 205.) 
 
 {Zeitschr., ix, p. 134.) 
 
 {Ibid) 
 
 Succession. 
 Guardianship, 
 
 J) 
 Succession. 
 
 Contract. 
 Succession. 
 
 Contra. 
 
 Pro. 
 Contra. 
 
 Prof 
 Contra. 
 
 * An asterisk denotes that the Renvoi was from the EngUsh or American law. 
 § For the German cases the writer is indebted to the courtesy of Dr. Franz Kahn, of 
 Heidelberg. The bracket means " same case.' 
 t See Sewell, French Law, etc., p. 75. 
 
( 26 ) 
 
 III. Germany — continued. 
 
 1898. Effect of marriage on property Pro. (/fo'i/., ix, p. 112.) 
 „ Effect of divorce on property. Contra. {Ibid., ■p. 116.) 
 
 „ Succession and marriage settlement. Contra. (Il'td., p. ^11.) 
 
 IV. Switzerland : — 
 
 1894. *Capacity of married woman. Contra. (Clun., 1894, p. 1095.) 
 
 V. Spain : — 
 
 *Succession. Pro. (Clun., 1901, p. 905.) 
 * An asterisk denoles that the Renvoi was from the English or American law. 
 
( 27 ) 
 
 IV. 
 
 g. The Renvoi-question received a certain amount of 
 scientific consideration from the judges who decided the 
 cases referred to in the preceding paragraphs ; but, as might 
 be expected, it is in monographs issuing from the study and 
 not in judgments rendered, that the matter has been subjected 
 to the most exhaustive analysis. It might also be expected, 
 and it is the fact, that the abstract treatment of the question 
 is to be found in Continental rather than in English literature : 
 indeed, Mr. Westlake's contributions to the proceedings of 
 the Institute in 1898 and in 1900, and a few lines in Mr. 
 Sewell's French Law affecting British Subjects, seem to be 
 the only public utterances of English science .upon the sub- 
 ject, prior to 1903, the date oi In re Johnson (p. 19, ante). 
 
 It is proposed to indicate below, by quotations and sum- 
 maries, a few of the main lines of argument employed on 
 either side : theoretical considerations of this kind assume 
 practical importance if it be admitted that English law has 
 not, as yet, made its final and definite pronouncement. 
 
 Juristic speculation on the Renvoi-question has been 
 stimulated by three facts : ist, beginning with the Forgo 
 case (which was before the French courts between 1874 
 and 1882), the question has repeatedly pressed itself upon 
 the attention of foreign tribunals, — especially the French, 
 Belgian and German, — during the last twenty years ; 2nd, 
 the elaboration of the new German Code and of its ancillary 
 statutes evoked much discussion of the fundamental principles 
 upon which the solution of the Renvoi-question depends 
 (see p. 72, post) ; 3rd, the Institute of International Law 
 formally deliberated upon the question in the closing years 
 of the 19th century and came to a resolution thereon at the 
 Session of 1900 (see p. yi, post). 
 
( 28 ) 
 
 lo. Historically, beyond doubt, the Renvoi-theory is a 
 modern development, and, as such, it must justify itself. 
 We begin, therefore, with some of the arguments of its 
 champions. 
 
 It is sometimes alleged {teste, Buzzati, Rinvio, § 8) that 
 by means of Renvoi identical decisions of the same case 
 can, everywhere, be obtained. Thus, suppose the question 
 concerns the testamentary capacity of a Dane, aged 19, 
 domiciled in Italy. According to the Italian Code testa- 
 mentary capacity begins at 18 and, according to the Danish 
 law, at 21. In Italy the capacity of a person is regulated 
 by LNat. (Cod. Civ., Art. 6), in Denmark by LDom. 
 Apart from Renvoi, the Italian judge will deny testamentary 
 capacity to the person in question, and the Danish judge 
 will declare him capable. But, it is said, let the Italian 
 judge interpret Art. 6 as a rule allowing Renvoi and we 
 have : Ital LFor. -> Denm. LNat. -^ Ital. LDom., and the 
 person is, in Italy, declared capable just as he would be by 
 the Danish judge. 
 
 The weakness of this argument is obvious. If the Italian 
 judge deems his rule concerning the capacity of a non-Italian 
 {quoad nationality) to be a Renvoi-rule, how is he justified in 
 deeming the Danish rule concerning the capacity of a non- 
 Dane [quoad domicil) to be other than a Renvoi-rule .'' 
 And, if the Danish rule were treated as a Renvoi-rule and 
 the case came before a Danish court, we should have : Dan. 
 LFor. -> Ital. LDom. -> Dan. LNat., and testamentary capa- 
 city would be denied. "Hence," says Buzzati {Rinvio, p. 70), 
 " Not uniformity of decisions, but as before discord : with 
 " this fine result added — that the Italian judge in virtue of 
 " his conflict-rule which gives the preference to LNat. will 
 "judge of capacity according to LDom., and the Danish 
 " judge in virtue of his conflict-rule which adopts the criterion 
 " of domicile will judge in accordance with LNat. Precisely 
 " the opposite of what each conflict-rule enounces ! " 
 
 Obs. I. — If, however, this argument in favour of Renvoi 
 breaks down when identity of judgments is claimed as a 
 
( 29 ) 
 
 general consequence of the acceptance of the Renvoi-theory, 
 it is submitted that, when limited to certain cases, the argu- 
 ment holds good. Let us take' the crucial case which (as 
 we shall shortly see) von Bar uses with such effect in another 
 connexion : i. e., let us suppose that the English courts to-day 
 have before them a question involving the marriage-capacity 
 of an Austrian lady who married in France, say twenty years 
 ago, being then domiciled in France. Both the Austrian 
 law and the French law would determine the question by 
 reference to the Austrian law as LNat. ; if the English court, 
 adopting LDom., adopts it in the sense of Renvoi, it will 
 also apply the Austrian law, and in this way (and in this 
 way only) a uniformity of decision is undeniably obtained. 
 Buzzati attempts to belittle this result by varying the facts 
 as follows: "Let us" (says he) "suppose that the marriage 
 " took place in country B instead of in France and that both 
 " the law of England and the law of B regulate marriage- 
 " capacity by reference to the law of the place of celebration, 
 " i. e., the law of B." In this case it is clearly impossible 
 by means of Renvoi to secure that the English courts will 
 give the same decision as the French and Austrian courts, 
 but the criticism suggested by Buzzati's variation of the 
 facts is only pertinent as against those (if there be any) who 
 allege that the Renvoi-theory can eliminate all possibility 
 of divergent decisions. 
 
 Obs. 2. — Kindred to the advantage claimed above for 
 the Renvoi-theory is that which was, somewhat naively, 
 claimed for it by M. Alberic Rolin at the discussions of the 
 Institute in 1898 (Annuaire, 1898, p. 215). It has produced, 
 said he, excellent results in Belgium. Thanks to it, English 
 subjects domiciled in Belgium are submitted to the law of 
 Belgium in matters of Divorce, and thus, in effect, they live, 
 as English people would expect to live, under their LDom. — 
 and the public order of Belgium does not suffer thereby, 
 for it is better that there should be one uniform law for all 
 families throughout the same country. The competence 
 attributed by the Belgian law to LNat. in matters of Divorce 
 
( 30 ) 
 
 rests, continued M. Rolin, on the assumption that the LNat. 
 is the law most interested, and not on the assumption that 
 it knows what is best in the circumstances : hence, when, 
 as in the case of English people domiciled in Belgium, it 
 is impossible to admit that their LNat. is the law most 
 interested, the Belgian courts do right in accepting the 
 Renvoi. 
 
 The Renvoi-theory is here praised for procuring a uni- 
 formity of decision : but, in truth, it is really used to obviate 
 the ill-effects of the selection, on the part of the Belgian 
 law, of LNat. instead of LDom. to regulate international 
 questions of Divorce. 
 
 II. Another argument pro the Renvoi-theory is con- 
 nected with the extra-territorial effect of judgments. (See, 
 e.g., M. Weiss, Annuaire, 1900, p. 151.) In a case: LA-^ 
 LB ^ LC, if LA does not apply LC, the judgment will not 
 obtain exequahtr in B. M. Bartin, professor of law at Lyons, 
 considers this argument in Vol. XXX, Revue de Dr. Internal. 
 (1900), p. 129. After pointing out that its force may depend 
 in part upon the question whether the B judge in granting 
 exequatur ^y.'A.mme.s the original judgment au fond, or whether 
 he merely satisfies himself that its issue is regular, he attacks 
 the argument on the following lines. (a) If a French court 
 is dealing with the capacity of (say) a Dane domiciled in 
 France, it is alleged that in order to be sure of obtaining 
 exequatzir in Denmark he must pay heed to the Danish rule 
 of conflict : thus — Fr. LFor -> Denm. LNat -^ Fr. LDom. 
 But invert the case and suppose that the same question arises 
 in a Danish court : in order to be sure that the French 
 courts will recognise the Danish judgment, we must have : 
 Denm. LFor. -^ Fr. LDom. -> Denm. LNat. Each judge, 
 i.e., is to apply the system which is repudiated by his own law: 
 we turn in a circle, (b) But even if in : LA -> LB -> LC, 
 LA applies LC in order to be sure of obtaining exequatur 
 for his judgment in B, what about exequatur in D, E, and F .? 
 The argument is only of value if it were possible to determine 
 a country of principal execution ; but this is only possible in 
 
( 31 ) 
 
 the case of immovables, a case where the question could 
 hardly arise, locus sihis being the locus fori ; matters of 
 capacity and of patrimony (including succession, tutelage, 
 bankruptcy) may, on the other hand, concern jurisdictions D, 
 E, and F, just as much as they concern jurisdiction B. Why 
 then adopt, on this ground, the conflict-rule of B and accept 
 the Renvoi from LB to LC ? (c) Further, the question 
 whether LB will grant exequatur to a judgment rendered 
 in A depends not on a single consideration but on a variety 
 of considerations, including that of the competence of A, both 
 in the special case ratione ^naterice or ratione personce, and 
 also generally in that kind of case. If then A desires to 
 give a judgment which will certainly receive exequatur in B, 
 he must adopt not only (i) B's solutions as to the conflict of 
 laws, but also (ii) B's doctrines as to general competence 
 (even going so far as to declare himself competent because 
 LB says so, when his own law would say he was not com- 
 petent). If with this object he is prepared to renounce his 
 own rules in the former matter {i. e., to accept the Renvoi), 
 he must be prepared to do so in the latter matter, a position 
 never admitted in practice. 
 
 Obs. — Let us apply argument (c) to England. The 
 English courts are concerned with (say) the essential validity 
 of a marriage celebrated in France between two English 
 people, domiciled in France both now and at the time of 
 the marriage. The English rule of I.P.L. would ordinarily 
 determine the matter by reference to the French law, but 
 (we suppose) it admits a new principle, to the effect that the 
 necessity of obtaining recognition of its judgments in France 
 is so urgent as to justify a transformation of its rules of I.P.L. 
 into Renvoi-rules : the English court accordingly applies to 
 this case its own local rules of capacity, etc., by Renvoi 
 from French law. If however, this surrender is not too high 
 a price to pay for the recognition in question, how in logic 
 can the English courts decline a jurisdiction in divorce with 
 regard to the same marriage, seeing that the French courts 
 would recognise the competence of the national court in this 
 respect ? 
 
( 32 ) 
 
 12. An argument in favour of the Renvoi-theory is some- 
 times framed as follows : Suppose that an Italian judge is 
 called on to examine the intrinsic validity of a marriage 
 between two English people domiciled, at the time of its 
 celebration, in Italy. He will be referred by the Italian 
 Code to the English law as LNat, and he finds that it 
 wishes the marriages of its citizens to be regulated by their 
 LDom, Why, it is asked, should he not apply this latter, i. e., 
 the Italian law ? Is it supposable that the Italian legislator 
 pretends to safeguard the interests of Englishmen better than 
 the English law does ? How can he declare the marriage 
 null for non-observance of English rules of internal law when 
 he knows that the English judge, applying his own inter- 
 national law, will declare it perfectly valid ? Of a solution in 
 such a sense no one can complain : not the Italian legislator, 
 for his judge exactly follows his directions ; not the English 
 legislator, for he sees the Italian judge deciding the question 
 just as his own judge would have done ; not the parties, for 
 they cannot complain of being judged abroad as they would 
 have been by their national law. All then are content ; this 
 is the correct solution. 
 
 Obs. I. — This argument differs from the two former in 
 being one of principle and not of mere expediency ; 
 accordingly, Buzzati (p. 66), from whom the above is, in 
 substance, taken, meets it (p. 89) by considerations derived 
 from an examination of the basis of the rules of I.P.L. : 
 if that basis were Courtesy or Caprice, he admits that the 
 argument would have weight ; but, finding the rules in 
 question to be based on Jural necessity as interpreted by the 
 lawgiver who frames them, he refuses to admit the argument 
 as valid. 
 
 Obs. 2. — " Is it supposable that the Italian legislator 
 " pretends to safeguard the interests of Englishmen better 
 "than the Enghsh law does"? This argument was much 
 resorted to in the discussions which led to the Hague resolu- 
 tion of 1894, hereafter referred to (p. 71). 
 
 Obs. 3. — The argument in para. 12, it is submitted, is much 
 
( 33 ) 
 
 more forceful if we start, as the Italian law does, from the 
 conception of Nationality than if we start, as the English law 
 does, from the conception of Domicil. Let us imagine that 
 an English court is dealing with the marriage-capacity of 
 English subjects domiciled at the time of their marriage 
 in Italy. Renvoi here would mean : Eng. LFor. -> Ital. 
 LDom. -> Eng. LNat. It is a little difficult to imagine an 
 English judge justifying this acceptance of Renvoi by the 
 remark^ " Is it supposable that the English law pretends to 
 " safeguard the interests of persons domiciled in Italy better 
 " than their LDom. does ? " 
 
 Very similar to the reasoning in para. 12 is that adopted 
 by Sig. Pasquale Fiore, professor in the University of Naples, 
 in a study of the Renvoi-question published in Clunet's 
 Journal for 1901. After premising that certain matters 
 fall within the exclusive competence of the territorial legis- 
 lator {e.g., the regulation of property situate within his 
 territory), Fiore claims that all matters connected with the 
 legal person — capacity, family law, succession on death — 
 ought to be allowed to belong to the exclusive competence 
 of that person's national legislature. He then assumes that 
 the legislative sovereign of such a State as England, which 
 accepts domicil as the test of the personal statute, is in effect 
 saying, " I allow my subjects to form with that other State in 
 " which they are domiciled such a tie as will cause their 
 " personal statute to be governed by the law of that State, 
 " without requiring them to abjure their original nationality 
 " in order to obtain that result." Fiore then assumes, fur- 
 ther, that when an Englishman becomes domiciled in Italy, 
 he does so with the full knowledge that English law will 
 attach that result to his change of domicil, and with the in- 
 tention of procuring for himself the consequential change in 
 his personal statute. And if an Italian judge has to say what 
 law will govern the movable succession of such a person, and 
 has to decide, for that purpose, between the (English) LNat., 
 which is indicated by the Cod. Civ., and the (Italian) 
 LDom., to which the LNat. would refer, Fiore demands a 
 
( 34 ) 
 
 decision in favour of the latter. Any other decision, says he, 
 would involve a fundamental misconception of the principles 
 of legislative competence (p. 688), and would imply that the 
 Cod. Civ. (in its rules with regard to the succession of 
 foreigners) is to be deemed obligatory on all people in the 
 world and on all sovereigns. It would, moreover, says he, be 
 contrary to the presumed intention of the deceased himself, 
 who may be taken to have fixed his domicil in Italy, relying 
 on his belief that he thereby, under and with the concurrence 
 of his national law, submitted his movable succession to the 
 law of Italy (p. 691). To apply to his succession the internal 
 law of England would be an attack on the international rights 
 of man, one of which is the right to have his civil rights 
 everywhere regulated by his LNat., so far as the public order 
 of other States is not assailed thereby. However much 
 Fiore's argument may justify an Italian judge, dealing with 
 the personal statute of an Englishman domiciled in Italy, in 
 accepting the Renvoi, the reader will have observed that it 
 is dead against the reception of Renvoi by an English judge 
 dealing with the same question : but it is sufficient, for all 
 practical purposes, to remark of his argument that its funda- 
 mental premise puts it completely out of court in England, 
 for it requires an English tribunal, if concerned with the 
 personal law of an Italian subject domiciled in England, to 
 apply the Italian law as being the LNat., and as wishing 
 to be applied. Much may be said for this recognition of 
 the supreme claims of nationality ;^ but, while the principles 
 adopted in England remain what they are, it is obviously 
 impossible to admit the premise. 
 
 13. In 1895 Herr Julius Schnell, one of the heads of 
 the Bavarian Ministry of Justice, published a remarkable 
 article in Bohm's Zeitschrift fiir internationales Privatrccht 
 (Vol. V, p. 337), which is considered {see Kahn in Kritische 
 Vierteljahresschrift filr Gesctzgebimg, 1903, p. 614), to have 
 been a factor of great importance in determining the shape 
 
 1 See a similar argument by M. de Vareilles Sommieres in Clunet, 1900, p. 275. 
 
( 35 ) 
 
 taken by the rules of I.P.L. adopted in the new Code of the 
 German Empire. Schnell disclaims any intention of dealing 
 with the Renvoi-question ; he is, professedly, occupied with 
 the question how far any given State is competent to 
 enunciate rules relating to the dominion in space of legal 
 systems in general ; but, as will be seen, the two questions 
 are vitally connected. The reader will understand that the 
 following summary represents most inadequately the charm 
 and cogency of the original. 
 
 The view prevails, says Schnell, that it is the task of a 
 local lawgiver to fix, not only the liniits in space of the do- 
 minion of his own system, but those of all foreign systems. 
 This conception accounts for such codification of the so-called 
 rules of I.P.L. as we find in Artt. 6 — lo of the Italian Code. 
 It leads also to the doctrine that the local judge in applying 
 foreign law can never apply the rules of that law with regard 
 to its own dominion in space. 
 
 Schnell proposes to show that the conception in question 
 is inconsistent with the doctrines of international law and 
 with the fundamental principles on which the public order 
 of every civilized state rests and that it is in practice 
 unworkable. 
 
 No State claims dominion over the whole globe and over 
 all people and legal relations upon the globe — not even as a 
 working assumption for its officials. Such an instruction to 
 its officials would be an inroad on the recognised sphere of 
 dominion of foreign States, and would stand in sharpest 
 contradiction with the principles of civil procedure, which 
 is designed to declare existing rights and not to create new 
 ones, and with the internal rules concerning the limits in time 
 of the dominion of legal systems, and especially with that 
 protection of duly acquired rights which every civilized state 
 recognises. A State which adopts the rule that rights of 
 succession are fixed at the time of the death of the deceased 
 cannot possibly decree that a succession concerning which a 
 suit arises should be determined by the lex fori. To decree 
 this would be to determine the succession by reference not to 
 
 P 2 
 
( 36 ) 
 
 the death of the deceased but to some later epoch arbitrarily 
 selected by the plaintiff, and to displace rights which arose, 
 on its own showing, at the death of the deceased. But, in 
 point of fact, all civilized states admit that the mere circum- 
 stance that a legal relation comes to be pronounced on by 
 their officials does not entitle their officials to regulate that 
 relation. Jurisdictional power does not, save in exceptional 
 cases, imply legislative power. 
 
 When a place or person or legal relation is outside the 
 dominion of a given system of law, that system cannot 
 arrogate to itself a paramount right to declare what foreign 
 authority is to exercise its sway over these places, persons 
 and legal relations. The German Empire is as little entitled 
 to demarcate the boundaries between a French and a Spanish 
 province as to cede a province of France to Spain ; it is just 
 as little entitled to prescribe to Spain and France how these 
 two States are to regulate the acquisition of the nationality 
 of one State by a subject of the other ; and it is not any 
 the more entitled to prescribe how these States are to settle 
 the boundaries of their respective legislative authorities in 
 the departments of Private law. 
 
 Further, a local legislative system cannot arrogate to itself 
 a similar control by way of instructing its officials to assume, 
 in cases which may come before them for decision, that the 
 boundary between France and Spain runs otherwise than 
 these two States have agreed, or that the acquisition of 
 French nationality by a Spaniard is subject to other rules 
 than France and Spain have laid down, or, lastly, that the 
 personal relations of a Spaniard domiciled in France (and 
 vice versa) are to be determined by other laws than those 
 agreed on between France and Spain. In other words : 
 jurisdictional power does not, save in exceptional circum- 
 stances, imply a power to demarcate boundaries any more 
 than it implies legislative power. Boundaries can only be 
 demarcated by the owners of the things the bounds of which 
 are to be demarcated. A State which should declare that the 
 lex fori is to decide whether the succession to the estate of a 
 
( 37 ) 
 
 subject of State B, who died domiciled in State A, is to be 
 governed by the LNat. or by the LDom. of the deceased, 
 causes (just as does a State which subordinates the succession 
 directly to the lex fori) the regulation of the succession to 
 depend upon another moment of time than that of the death 
 of the deceased. And such a State would be making use of 
 civil procedure in order to disturb and not to protect existing 
 rights. £-g-, the Saxon Code^ regulates intestate succession 
 by reference to the law of the last domicil. A Saxon 
 court has to apply this rule to the succession of an Austrian 
 who died domiciled in France. Now there is a convention 
 between France and Austria, whereby movable succession is 
 subjected to LNat., in this case Austrian law: nevertheless 
 the Saxon court must apply French law. Again, the Italian 
 Code regulates succession by reference to the law of the 
 deceased's nationality. An Italian court has to apply the 
 rule to the immovable property in Russia of a deceased 
 German. Now there is a convention between Russia and 
 Germany, whereby in such a case the lex rei sites is to 
 govern, i. e., the Russian law : nevertheless the Italian judge 
 must apply German law. The prevailing conception, then, 
 leads of necessity to the conclusion that a judge of State A 
 must deny legal efficacy to a Treaty made between States B 
 and C with reference to a matter lying within the sphere 
 recognised by State A as belonging to States B and C. 
 
 A lawgiver who defines the limits in Space of all the 
 systems of law on the earth's surface, so far as concerns 
 cases to be decided by his judges, and who, merely because 
 a foreign legal relation comes before them, subjects it to a 
 rule to be determined by the lex fori, acts no less arbitrarily 
 than a legislator who places those foreign legal relations in 
 direct subjection to his own local law. In both cases a legal 
 relation is pronounced on by a law which as regards Time 
 and Space is chosen by the plaintiff, instead of by the law 
 which already has seisin of it. This is most clearly shown 
 
 1 This was written in 1895. 
 
( 38 ) 
 
 in the case of Inheritance : e. g., an Italian dies domiciled 
 in Spain, the rights of his heirs arise at the moment of his 
 death, the rules of Italy and Spain are in agreement that 
 the law of his nationality regulates the succession ; it ought 
 not to be possible that those rights of the heirs should be 
 arbitrarily disturbed merely because it occurs to someone else 
 to sue the heirs before a tribunal which is neither Spanish 
 nor Italian. Yet this is what would happen if the Saxon 
 rule, referred to above, were to apply. 
 
 The following objection, Schnell continues, is made to 
 this doctrine : If a local lawgiver only regulates the operation 
 in Space of his own law, his judge, in a case not subject to 
 the local law, is left without any starting-point for a decision 
 as to which foreign system is applicable. Not so. The deci- 
 sion should follow the same fundamental principles which 
 are followed in determining whether a place or a person be- 
 longs to any given State. If a decision of a German official 
 depends on the question in what country Seville is, the 
 official will decide that it belongs to Spain, not because any 
 German Statute has said so, but because no State other than 
 Spain claims dominion over Seville. If {e.g., for extradition 
 purposes) a German official has to decide on the nationality 
 of a person whom one State and no more claims as a subject, 
 the decision will be in favour of that State. So it is with a 
 judgment of Private law. If a German judge has to say who 
 is entitled to the property in Spain of a deceased Spaniard, 
 he will, directly he ascertains that the German law makes no 
 claim to regulate the succession, determine it in accordance 
 with Spanish law : and this he will do, not because any 
 German Statute remits the determination to the Spanish law, 
 but because no other State than Spain makes a claim to 
 regulate the succession. The judge applies that foreign law 
 which wills to be applied, and never applies foreign law (to 
 borrow Westlake's excellent expression)^ "in the teeth of 
 that law itself." 
 
 I Of this expression Kahn says (Jhering's Jahrhuch, Vol. XXX, p. 77), when criticising 
 the English cases of the Collier v. Rivaz type : " Plausible as this sentence sounds, 
 
( 39 ) 
 
 But what if two foreign legal authorities make conflicting 
 claims to govern this legal relation ? The judge will then 
 obtain a starting-point in the principles which his own system 
 contains with regard to the operation in Space of its own 
 rules : e.g., German law regulates the intestate succession of 
 a German by reference to German law, irrespective of 
 Domicil, and so if a German judge has to deal with a case 
 where each of States A and B claims to govern the succes- 
 sion of a subject of State B who has died domiciled in A, 
 he will decide in favour of State B, because this decision 
 will give effect to the German views as to what is involved 
 in the relation of a person to the State of which he is a 
 subject. The decision in this case is, however, the same as 
 would be given by the traditional system controverted, and the 
 erroneous character of this system appears more clearly if we 
 suppose that States A and B agree in referring the succession 
 to the law of the last domicil, i. e., A. According to the 
 prevalent doctrine the rules of State B must be applied, even 
 against the will of State B. 
 
 Buzzati {Rinvio, p. 119...) criticises the doctrine of Schnell 
 as follows : 
 
 " It rests on two errors — one of fact and the other of law. The first is to 
 believe that States will always be in accord with regard to the distribution 
 of legislative competence, and that it can never happen that a person, a thing, 
 or a juristic relation which Italy, by reference to some criterion, believes 
 subject to it, can, by reference to other criteria, be believed by Germany or a 
 third State to be subject to itself. The second error, of law, is in the suppo- 
 sition that a person or a thing is subject to the sovereignty of a State because 
 it is governed in a special case by the laws of that State — this may be so for 
 all those States which admit the principles of nationality, but not for all those 
 
 ' suggesting in its pregnancy some classical maxim of the law, and logical as it may seem 
 ' that lex domicilii should not be lex domicilii if the lex in question says there is no 
 ' domicilium, yet the Renvoi here rests on a fallacy. We arrive at that dissonance of 
 ' decision which we are intending to avoid, for the French judge is just as much entitled to 
 ' say, ' By my law the English law is lex domicilii, because the Englishman resident here 
 ' ' has not obtained governmental authorisation, and therefore retains his original domicil, 
 ' ' and, as English law holds that the domicil is French, I must apply French law ' (* 
 ' was actually done by the Court of Appeal of Toulouse in r88o; Clunet, Vol. VIII, p. 6l). 
 ' We come into a circle : we commit a fedtio principii in that we tacitly assume that 
 ' which is to be proved, and which in the end we repudiate, i. e., that the foreign law is 
 ' true lex domicilii, for, except it be so, we have no right to bring it into consideration at 
 ' all." How Mr. Westlake meets this argument will appear later on. 
 
( 40 ) 
 
 which prefer the criterion of domicil, e. g., England. An Englishman remains 
 always an English subject even if, being domiciled in France, he is governed 
 by the French law. Nor does France imagine him subject to France's 
 sovereignty. When these two errors are noted the whole theory of Schnell 
 collapses. 
 
 "But other observations may be made. If it be true that the Italian 
 legislator in drafting Prel. Disp., Art. 8, and the judge in applying it to the case 
 of the succession of a German in Russia (as in Schnell's earlier example), 
 commits such an enormous violation of the sovereign rights of Germany and 
 Russia as to be inconceivable, how comes it that the German judge (in the 
 example at the end of Schnell's article) commits none against State A, when 
 against its sovereign order he applies the law prevailing in B ? 
 
 " Again, if it be true that the Italian legislator cannot pretend that Art. 8 
 is applicable, and the Italian judge ought to consider it as not written, in a 
 case relating to the immovable succession of a Russian in Prussia, because by 
 doing otherwise legislator and judge would commit an offence against Russian 
 and Prussian sovereignty similar to that of which they would be guilty in 
 declaring and pronouncing Pomerania to be annexed to Russia, why would 
 the Italian legislator in declaring and the Italian judge in pronouncing that 
 an Italian domiciled in Prussia is governed by Italian law, not be committing 
 an offence against Prussian Sovereignty equal to that of declaring BerUn a 
 subject city of Italy ? 
 
 " Finally, in the example given by Schnell of the judgment pronounced 
 by the Italian magistrate with regard to the succession of a Prussian in Russia, 
 it is intelligible that the Italian judge, erroneously interpreting Art. 8 
 (applying, i. e., the theory of Renvoi), can be remitted by the Italian rule of 
 conflict to that of Prussia, and decide as Prussia and Russia wish. But in 
 many other cases this is absolutely impossible. Suppose that the Prussian 
 deceased were domiciled in Denmark and that the judge were English : the 
 judge will be referred by the English rule of conflict to the Danish rule of 
 conflict ; but the latter prefers the criterion of domicil and will therefore apply 
 the Danish internal law, and every way will be found closed whereby to arrive 
 at the application of the law prescribed by Russia and Prussia. How is it ever 
 possible to suppose, how is it ever possible to understand, that in such a case 
 the English and the Danish judges should be unmindful of the rule of conflict 
 prescribed to them by their respective legislators, in order to obey that pre- 
 scribed by the Russian and Prussian ? Or would not this case be perhaps 
 equivalent to that in which Denmark should make a present of Jutland to 
 Prussia, and England make a present of Wales to Russia ? " 
 
 Obs. I. — Schnell's article was written in contemplation of 
 lex ferenda. An English judge, called to pronounce on the 
 Renvoi question, is, if he does not find himself bound by lex 
 lata, also in presence of lex ferenda. Lex lata consists, for 
 him, of the case-law already set out, and of certain general 
 
( 41 ) 
 
 propositions, borrowed from Continental jurists because at the 
 time they were deemed to represent uniform international 
 practice. Since that time, and largely owing to the develop- 
 ment of the Nationality-idea in Private law, international 
 practice has ceased to be uniform in many of the matters to 
 which these propositions apply. Further, it may be, as 
 Schnell maintains, that these propositions are founded on 
 erroneous conceptions of inter-State relations, and are there- 
 fore defective in theory. It is, then, within the province of 
 an English judge who stands (so to say) at the meeting-place 
 of lex lata and lex ferenda, to consider whether it be 
 desirable, proper and possible, to allow this dissonance of 
 practice or this (alleged) defect in theory to re-act on English 
 doctrines. If, finding that it is desirable and proper, he 
 finds also that the adoption of the Renvoi-theory renders it 
 possible, the Renvoi-theory is to that extent justified. 
 
 It will be noticed that the case put in the last sentence of 
 the summary is practically that before Mr. Justice Stirling 
 in In re Trufort {ante, p. i6), and Schnell's whole article 
 may be read as a theoretical defence of the decision in that 
 case so far as it accepts the Renvoi. 
 
 Obs. 2. — " The judge applies that foreign law which wills 
 " to be applied." This is at the bottom of the whole Renvoi- 
 theory. It is in sharp contradiction with the principle laid 
 down by Gebhard when the rules of I.P.L. of the new 
 German Code were first formulated : " The foreign law is 
 " applied, not because it desires but because the municipal 
 " law declares that it is applicable." (See later, p. ^21-) The 
 German rules ultimately took a shape not entirely consistent 
 with Schnell's dictum. 
 
 14. Von Bar, like Schnell, insists that the rules of I.P.L. 
 are — or ought to be — nothing more than declarations by a 
 given legislative system of the limits of its own competence : 
 it is convenient to assign here a separate section to certain 
 other doctrines of this distinguished jurist. 
 
 In the second edition (1889) of his great work on I.P.L., 
 he devoted two or three pages (pp^ 208 — 210 of Gillespie's 
 
( 42 ) 
 
 Translation : Art. 94 of the original) to the question of conflict 
 between two conflict-rules, of which the one adopts Domicil 
 as the criterion of the personal statute and the other adopts 
 Nationality. He distinguishes what he calls a positive 
 conflict between these conflict-rules from a negative conflict 
 between them : there is a positive conflict when each of 
 two legal systems claims to decide a question in issue, e.g., 
 both Italian and English law claim to govern the movable 
 succession of an Italian subject domiciled at death in England; 
 in the converse case of an English subject dying domiciled in 
 Italy, there is a negative conflict, for each legal system denies 
 that it applies and remits the matter to the other. It is 
 where there is a lacuna, caused by this negative conflict, that 
 the Renvoi-theory appears. In such cases von Bar approves 
 the results of Renvoi while not accepting the principle : this 
 attitude he maintained in an article contributed in 1898 to 
 BOhm's Zeitschrift filr I.P.R. (pp. 177 — 188), and also 
 during the discussions of the Institute. 
 
 At the meeting of 1900 von Bar proposed the following 
 rules for the acceptance of the Institute : — 
 
 " I. Chaque tribunal doit observer le droit de son pays en ce quiconceme 
 I'application Ses lois etrangeres. 
 
 " 2. Pourtant, s'il n'y a pas de disposition contraire expresse, le tribunal, 
 conformement aux principes du Droit international prive doit respecter : 
 
 "a. La disposition d'une loi etrangere qui, en renongant a lier ses 
 nationaux quant au statut personnel en pays etranger, veut que ce statut 
 personnel soit determine par la loi du domicile ou meme par la loi du lieu oil 
 Facte dont il est question a ete fait ; 
 
 " b. La decision de deux ou plusieurs legislations etrangeres qui, pour\-u 
 qu'il soit certain qu'une d'entre elles est necessairement competente s'accordent 
 en attribuant la decision d'une question a la meme legislation." 
 
 We are concerned with 2a and 2b, and will deal with 
 them successively. Stated in terms of Renvoi, the former 
 will be represented by such a case as the following (in which 
 the question may be supposed to relate to marriage-capacity) : 
 Ital. LFor. -^ Eng. LNat. -^ Ital. LDom. The reasoning 
 by which von Bar approves of this result, is that England 
 refuses to follow her subjects abroad so far as private law is 
 
( 43 ) 
 
 concerned ; that there is, therefore, no English nationality in 
 the sphere of private law ; and that, as the Italian judge can- 
 not, in obedience to his Code, apply the national law, where 
 none exists, he must apply Italian law — either on the ground 
 that, in doubt, the law of the forum must be applied, or 
 because, there being no national law, the law of the domicil 
 (Italy) must be allowed to resume the sway which it exercised 
 in Italy in the days before LNat. was adopted as the criterion 
 of the personal statute. (Gillespie's TransL, p. 209 ; Bohm's 
 Zeitschrift, loc. cit., pp. 180 and 185 ; Annuaire, 1900, 
 
 Obs. — In effect, as von Bar himself remarks, this is simply 
 the engrafting of an exception upon the rule which declares 
 nationality the test of the personal statute. Nationality is 
 not to be the test in the case of persons whose national law 
 adopts for that purpose some other test than nationality. 
 He does not suggest that a similar exception should be 
 engrafted upon the rule which declares domicil to be the 
 test of the personal statute, and, therefore, 20, as stated, does 
 not affect an English lawyer. Mr. Westlake, however, goes 
 a step further than von Bar [see pp. 60-1, post) and would 
 allow the exception in both cases; and Farwell, J., adopted 
 the doctrine of von Bar, mutatis mutandis, in In re Johnson 
 {ante, p. 19), arguing in effect that there would be no Domicil 
 for the purposes of civil law in a State the law of which 
 regulated the personal statute by LNat., and not by LDom. 
 
 Kahn (in Jhering's Jahrbuch, Vol. XXX, p. 35) has the 
 following remark : " Von Bar's reasoning makes our law {sc. 
 " which refers the personal statute to LNat.) a mere idem per 
 " idem, statement, i. e., that the personal statute (in an ob- 
 " jective sense, i. e., the civil rules which relate to a person as 
 " such) is to be regulated by the personal statute (in a sub- 
 " jective sense, i. e., subjection of a person as such to a given 
 " system of civil law)." But this criticism seems unwarranted : 
 does not the law in question mean, " Of the various territorial 
 " systems of law we select, as regulative in Germany of a 
 " man's personal statute, that which prevails in the legal area 
 
( 44 ) 
 
 " with which he is connected by the tie of political allegiance, 
 " always premising that that legal system deems that its rules 
 " concerning the personal statute should apply to that man"? 
 More effective, perhaps, is Kahn's subsequent criticism : 
 
 " The unserviceableness of von Bar's solution is decisively shown in the 
 practical cases which gave rise to it, t. e., the cases of collision between the 
 French law of succession and that of a State which, like Italy, regulates 
 succession by reference to the law of the nationality of the deceased. French 
 law looks to the domicil (Art. no, Cod. Civ.) but only in matters of suc- 
 cession, the personal statute in other matters being determined by nationality 
 (Art. 3, Cod. Civ.). Surely von Bar cannot maintain here that ' there is no 
 nationality, in the technical sense, in the area of private law.' " 
 
 15. The following extract {Zeitschrift, loc. cit., page 183), 
 explains and illustrates 2b, the second of von Bar's theses 
 with which we are concerned : — 
 
 " The doctrine," writes von Bar, " which (contrary to Renvoi) deems that 
 the reference to foreign law is a reference to the foreign material law, leads to 
 the following absurd result. X is a subject of State A and is domiciled in 
 State B : he intermarries in B with Y, also a subject of A, according to the 
 forms required by B. Both A and B determine questions of marriage-capacity 
 by reference to the law of the nationality. Doubtless it will be considered by 
 everyone that no conflict can arise as to the law which is to govern the 
 validity of this marriage : it must be that of A. Suppose, however, that later 
 on a question arises concerning its validity before the courts of State C, 
 which determines marriage-capacity by reference to the law of the Domicil. 
 The opponents of Renvoi will insist on the application by C of the law of B, 
 — a law which neither of the parties could have thought of : and it may be 
 that the judge of State C may have, on this theory, to declare a marriage 
 void which both B and C held to be good. Or again : X, a subject of 
 State A domiciled in State B, dies and by the law of both A and B his 
 inheritance devolves according to the law of his nationality and falls on Z. 
 For a long time no question arises ; but, later on, Z has to sue one of the 
 debtors of the inheritance before the courts of State C, which refers 
 question of inheritance to the law of the Domicil ; this debtor sets up that, 
 by the law of the Domicil, Z is not the heir ! These two examples show that 
 the repudiation of Renvoi throws every legal relation into confusion : no one 
 can foresee what the courts are before which questions, up to that time 
 settled by all concerned, may possibly come and what principles the lex fori 
 may adopt. If, however, the rules of private international law are framed as 
 declarations of competence, the court of State C would say in each of the 
 above-suggested cases, ' At the time of X and Y's intermarriage, or, at the 
 time when X's succession was opened, the law either of A or B was competent 
 
( 45 ) 
 
 and both agreed that the law of A was competent. This law has established 
 the legal relation in question : there is no other law which has a reasonable 
 title to vary that adjudication. Consequently I must decide the question by 
 reference to the law of A as it stood at the time in question. '," 
 
 Obs. — Kahn {Krit. Vierteljahresschrift fur Gesetzgehtng, 
 1903, p. 622) admits that advocates of Renvoi find a plau- 
 sible practical result in such a case as the above. He points 
 out, however, that it requires an attention to, and an exami- 
 nation of, foreign conflict-rules which would throw a great 
 burden on a local judge. And he asks, what would be the 
 result if, besides LNat. and LDom., L Actus was involved? 
 Is the congruence of all required? Westlake {see pp. 61-2, 
 pos{) deals with just such a case. 
 
 16. One of the first things to arrest the attention of a 
 theoriser in the domain of I.P.L., is the difference between 
 law as mere juristic material and law as a vital manifesta- 
 tion of sovereign authority. Thus, Art. 763 of the Italian 
 Code whereby testamentary capacity is acquired at 18, is, 
 in Italy and in the case of an Italian subject, law of 
 the latter kind ; but, outside the area within which the 
 Italian sovereign can cause the rule to apply, it is merely 
 juristic material. Upon this distinction an ingenious argu- 
 ment in favour of Renvoi (or of its results) has been based 
 by Herr J. Keidel, writing in Clunet's Journal, 1901 
 (see esp. pp. 88, 89 and 95) : he marks the distinction 
 by speaking on the one ^and of a mere 'regie jitridiqiie,' 
 and on the other of a ' regie jiiridique ' which has been 
 quickened into ' lot' by 'laformule imperative ' of a sovereign. 
 Let us, e.g., suppose that an English court has to decide on 
 the testamentary capacity^ of a Frenchman domiciled in Italy 
 and that it refers to the local Italian law as LDom., i.e., to 
 Art. 763 above named ; the English court may think that it 
 is thereby applying Italian laza, but this is not the case ; it 
 is only applying juristic material of Italian origin, for no 
 imperative formula of the Italian sovereign renders Art. 763 
 
 1 I. e., quoad moiilia. 
 
( 46 ) 
 
 applicable to Frenchmen. For the English court to insist 
 on applying Italian internal law to the case, means that the 
 imperative formula is derived from English sovereignty : but 
 what has English sovereignty to do with the testamentary 
 capacity of a person who was not subjected to it either ratione 
 personcB or ratione territorii? In asking this question Keidel 
 adopts the same position as Schnell (p. 36, ante) and von Bar 
 (p. 44, ante), and we need not dwell on this point. Rather let 
 us notice that, although, in this case, Keidel would approve 
 of the ultimate adoption of French law, the reason would not 
 be in the fact that Italian law (Prel. Disp., Art. 6) declares 
 French law applicable. Assuming the case correctly repre- 
 sented by : Eng. LFor. -> Ital. LDom. -^ Fr. LNat, the 
 cardinal fact would be, not the Weiterverweisung by the 
 Italian law (for, in Keidel's eyes, French ' loi' is only 'regie 
 juridique ' as regards Italian sovereignty) but the (practical) 
 acceptance of the Weiterveriueisung by the French Sovereign. 
 Similarly with regard to Renvoi proper {Rilckverweisttng) : 
 suppose, e.g., the case before the English judge be one con- 
 cerning the testamentary capacity of an Englishman domiciled 
 in Italy, the result of : Eng. LFor. -> Ital. LDom. -^ Eng. 
 LNat., is approved by Keidel, not, however, because of the 
 Renvoi made by the Italian law but because (assuming it to 
 be the case) the English sovereign accepts that Renvoi or 
 gives coercive force to the English local law of capacity, not 
 only in the case of domiciled Eng#shmen but also in the case 
 of English subjects domiciled in a country the law of which 
 purports to regulate capacity by reference to LNat. For 
 such a purpose the English judge is the representative of the 
 English sovereign. 
 
 Obs. I.— Keidel's object was to justify the Article in the 
 new German Code [Ein/ilhrungsgesetz, Art. 27 ; see p. 72, 
 post) which authorises the German judge to apply German law 
 in some of the cases of : Germ. LFor. -^ Eng. LNat. -^ Germ. 
 LDom. The practical value, to an English judge, of this 
 pretty piece of dialectic, is that, if, in a case like : Eno-. 
 LFor. -> Ital. LDom. -^ Eng. LNat., he be minded to pro- 
 
( 47 ) 
 
 duce the same result as if he "accepted the Renvoi," he can, 
 while professing respect for his existing rules of I.L.P., say, 
 "There is no 'Law of the Domicil ' for this case : as it is 
 " impossible to apply my rule of I.P.L. I must apply my 
 " internal law." Be it noted, however, that if, on the other 
 hand, the English judge were minded to give to his rule of 
 I.P.L. its traditional meaning, and to stop at : Eng. LFor. -> 
 Ital. LDom., it would still be open to him to say, " I borrow 
 " from the Italian Code the regie juridique and, substituting 
 " it for the corresponding English regie, I, as representing the 
 " English Sovereign, apply the imperative formula and give 
 " the requisite coercive force and vitalise it into law." 
 
 17. We pass now to some arguments of the opponents of 
 Renvoi : and, in so doing, it is essential to bear in mind that 
 what is here criticised is Renvoi itself and not the expediency 
 of admitting, in certain exceptional cases, a treatment of 
 international problems which will give the same results as 
 Renvoi. The naked question is that stated by Labbe 
 (Clunet's Journal, 1885, p. 9) ^ : When a lawgiver abandons 
 to a foreign system of law the determination of a legal ques- 
 tion, does he ask this system to decide what law is applicable 
 or does he seek in this system the solution which the legal 
 question ought to receive ? 
 
 18. If the basis of I.P.L. is to be found in ideas of 
 Comity, and the foreign system to which this voluntary 
 deference is paid declines, in any given case, to accept it, a 
 judge may reasonably apply his own law : but this doctrine of 
 Territoriality tempered by Courtesy is discredited and the 
 rules of I.P.L. are now to be treated as dictates of jural 
 reason, or of what passes for such in the eyes of the law- 
 maker who accepts them. When a French law places a 
 question under the authority of a foreign law, the meaning, 
 says Labbe {loc. cit., p. 11), is this : — 
 
 " Not that the French legislator, whose business it is to show the judge 
 his duty, abdicates and renounces his mission ; not that the determination of 
 the law which is applicable, is a matter of indifference to him ; but that he 
 
 ^ This seems to be the earliest theoretical discussion of the question. 
 
( 48 ) 
 
 deems it jurally correct that such and such a point of law should be regulated 
 by such and such a system because that system is best fitted to appreciate the 
 factors of which the rule should be composed. Such and such a system, 
 says the lawgiver, is applicable. It matters little that the foreign system in 
 question would not adopt the same principles. The domestic lawgiver does 
 not bow down before the foreign law in order to receive from it a theory 
 of international law. He borrows from the foreign law the solution of the 
 question and tells his judge that this is the correct and just solution. He 
 does not abdicate ; he pronounces. Not that he claims a universal com- 
 petence but that in no case does he refuse to supply his judges with a 
 guidance which is not haphazard and capricious but based on deliberately 
 and scientifically selected principles." 
 
 M. Laine, like M. Labb6, a professor in the law faculty of 
 Paris, expands this idea in the following passage (Clunet's 
 Jotirnal, 1896, p. 255): 
 
 "If the French legislator, in referring to a foreign law a jural matter, 
 e. g., the regulation of a movable succession left in France, or the status and 
 capacity of foreigners domiciled in France, meant thereby to attribute com- 
 petence to the internal rule of such foreign law concerning successions or 
 status and capacity, he was acting consistently with his duty as a legislator, 
 and his line of action, if criticisable in correctness was at any rate intelli- 
 gible. As regards movable succession, his thought was that, like immovable 
 succession, it ought to devolve according to the law of the place where it 
 is situated because the regulation of successions belongs, in every country, 
 to the domain of property, of public order, of social conditions — but since 
 movables may in point of fact be widely scattered, he has adopted the 
 convention that they are deemed situate at their owner's domicil, and has 
 even pushed the fiction to its limits by giving domicil its legal signification. 
 We. are at liberty to consider this order of thought defective and on the one 
 hand to maintain that the regulation of successions ought to belong to family 
 organisation and be, in consequence, submitted to the national law of the 
 deceased, and on the other hand to urge that even if it be treated as belonging 
 to the domain of property, the movables of a succession ought logically to be 
 deemed situate rather at the actual than at the (merely) legal domicil. But 
 at any rate the rule adopted by our legislator is reasoned and intelligible even 
 if it does not command our entire approval. The case is the same with the 
 rule which submits a foreigner's status and capacity to the law of his country. 
 The legislator has here chosen nationality as the criterion because he deems 
 that there is an intimate bond between nationality and personality. The idea 
 is an old one. In former days, some authors expressed it by saying that the 
 qualities impressed on a person by the law of his domicil ought to accompany 
 him everywhere as if they inhered in his bones : the figure is even more 
 appropriate in our days when the law of the nationality has replaced that of 
 the domicil. 
 
( 49 ) 
 
 " Suppose however that when a French legislator submitted such and such 
 jural relations to a foreign system he acted upon quite other grounds and 
 proposed to refer the solution of the conflict between French laws and foreign 
 laws to the arbitrament of a foreign system. Would not this be an incon- 
 ceivable dereliction of duty ? What ! Is it to be said that our legislator has 
 disclaimed all share in the conflict, has declared that the solution is to him 
 indifferent, that all systems are equally good in his eyes and, especially, that 
 even if it were fitting to apply the law of the nationality to determine the 
 status and capacity of Frenchmen yet as regards foreigners it is none the 
 less fitting to apply, at the bidding of some foreign legislator, either the lex 
 domicilii or the lex actus or the lex rei sitcR 1 Odd that he should legislate in 
 order to say that he was not legislating." 
 
 1 9. Opponents of the Renvoi-theory naturally attach great 
 weight to the form in which the accepted rules of I.P.L. are 
 enunciated, and the argument is one which cannot but be 
 admitted as very cogent by an English lawyer. M. Laind 
 puts it as follows ((2\uxv^\!s, Journal, 1896, p. 254) : 
 
 " The very shape of the rules of private international law which prescribe 
 the application of foreign laws shows clearly enough in what sense they are 
 to be understood. To say that in movable successions the law of the place 
 where the deceased had his legal domicil is to be applied — to say that the law 
 applicable to a person's status and capacity is his national law,— is not this to 
 indicate a rule of succession in the one case and, in the other case, a rule of 
 status and capacity, and in both cases a rule of internal law? Surely the 
 proof Ues in the fact that there would be no hesitation so to understand the 
 matter if the same rule prevailed everywhere. Aforetime, i. e., during the five 
 centuries in which the conflict of laws has been studied in Europe, when 
 any diversity of solutions prevailed rather among jurists than among legal 
 systems, no one, whether jurist or judge, fell into this mistake. It is only in 
 our own day when rules of private international law have been developed {sc, 
 in separate systems) side by side with rules of internal law that the verbal 
 ambiguity, with its resultant errors, could arise. Ought not the words 
 employed {sc, in the traditional rules of private international law) to be 
 understood in their traditional meaning? If the rules had the meaning 
 attributed to them in some recent case-law they ought to be expressed in a 
 different manner and ought to run, e. g., ' The conflict of laws will be settled in 
 matters of succession by the law of the place where the deceased had his 
 legal domicil and in matters of status and capacity by the person's national 
 law.' " 
 
 20. We will next refer to an argument, rightly deemed 
 to be fatal to the Renvoi-theory in its strict signification : 
 we will call it the argument of circulus inextricabilis. The 
 following extract will explain it : — 
 
 6 
 
( 50 ) 
 
 (a) Von Bar, in the 1889 edition of his work on I.P.L. 
 (see n. 47, p. 209, Gillespie's Translation), was dealing wit^i 
 the following case, decided in 1861 : Frankfort LFor. -> 
 French LDom. -> Frankfort LNat. The reason given by 
 the court for adopting the LNat. was : "If the principle 
 " whereby the LDom. applies, is followed out as it should be, 
 " it requires that the law which prevails at the domicil of the 
 " deceased should be applied in its totality, and the succession 
 " therefore should be treated exactly as it would have been if 
 " it had fallen to the Courts of the domicil to deal with it." 
 In this way, says von Bar, recognition was given to a kind 
 of reference or relegation to the other law (LNat.), zV detn£- 
 always assumed that LDom. really had the force which it was 
 represented to have. This reasoning, says he, is untenable : 
 it leads to a circulus inextricabilis, to an unending reference 
 from the one law to the other. [The assumption contained 
 in the italicised phrase is, it will be observed, vital to the 
 Renvoi-theory.] 
 
 (b) Buzzati [Rinvio, p. 77) has the following passage : — ■ 
 
 " By interpreting the simple rules of conflict in the sense of Renvoi, it is 
 not true that we arrive at this or that solution, but that we succeed in not 
 obtaining any decision at all. The doctrine of Renvoi means nothing else 
 than a change in the character and function of conflict-rules. Till now they 
 have been understood to determine the internal law directly applicable to 
 a juristic relation. Instead of this, the Renvoi doctrine would have them 
 exercise the function of indicating the laws which determine the internal law 
 directly applicable to a juristic relation. Now, admitting that this is proper, it 
 follows that all conflict-rules ought to be understood in that sense. What is 
 the upshot ? An eternal Renvoi from one rule of conflict to another without 
 ever descending to the application of an internal law, a closed circle with no 
 exit. // is the application of lawn tennis to international law." 
 
 (c) Kahn (Jhering's Jahrbuch, Vol. XXX, p. 23) wrote : 
 
 " The principle of Renvoi is logically unworkable. If the rule adopted 
 by our system is so framed that the foreign law is to be apphed in its 
 totality, including its rules of private international law, it must also be 
 the import of the foreign rule that our law in its turn is to be applied 
 in its totality, including our own rules of private international law. The 
 consequence is — that in virtue of the foreign law ours is applied in its totality 
 and in virtue of ours the foreign law is again applied in its totality and so on 
 and so on : a logical 'cabinet of mirrors' (Spiegelkabinet)." 
 
( 51 ) 
 
 Obs. — M. Weiss {Traits, Vol. Ill, p, 80) attempts to find 
 an exit from the "vicious circle" in a manner which can 
 hardly please English adherents of the Renvoi-theory : — 
 
 " When a foreigner's LNat., to which it belongs to govern his status and 
 capacity, delegates its competence to his LDom., this refers only to the 
 dispositions of internal law freed from all international complications, and not 
 to the general principles appUcable to the solution of conflicts of law. The 
 intention of the English legislator, when he manifested his preference for LDom., 
 was assuredly not to allow this law to return to him a problem in the choice 
 of laws : he meant LDom. to have the last word, as being the fittest for that 
 function. The circuit ends here and the vicious circle is purely imaginary." 
 
 The initial assumption in this extract, that for the purposes 
 named LNat. is paramount to LDom., is not consistent with 
 English legal doctrine. If a French judge, dealing with the 
 family law of an English subject domiciled in France, were to 
 accept the Renvoi on the authority of M. Weiss's argument, 
 he would certainly be interpreting one conflict-rule (that of 
 the French law which regulates family law by reference to 
 LNat.) in the sense of Renvoi, and another conflict-rule (the 
 English) in a contrary sense. It is only in this illogical way, 
 say the opponents of Renvoi, that escape from the " vicious 
 circle " is possible. 
 
 21. After the passage cited above from Kahn, that author 
 goes on to give an illustration to show the similarly unwork- 
 able character of Renvoi in the sense of Weiterverweisung. 
 
 The case put is the following : Fr. LFor. -> Pruss. LNat. 
 -> Amer. LDom. -> Pruss. LActus. 
 
 " Suppose a French judge has to pronounce on the contractual capacity 
 of a Prussian domiciled in America, with regard to a contract entered into in 
 Prussia. According to the French Cod. Civ., Art. 3, the Prussian law is 
 applicable as LNat., but the Prussian Landrecht § 23 refers to LDom.^ Being 
 then bound to judge exactly as the Prussian judge and being bound to apply 
 the Prussian law in its totahty, he will have to invoke the application of 
 the American law. Now in America the principle prevails that contractual 
 capacity is regulated according to the lex loci actus : hence a Renvoi 
 from the American law to the Prussian and a new Renvoi from the latter 
 to the former. Who can extricate the judge from the circle when once he 
 has accepted the first Renvoi ! " 
 
 1 Written before the new German Code came into force. 
 E 2 
 
( 52 ) 
 
 Obs. — Zitelmann, an opponent of the Renvoi-theory, is 
 cited by Buzzati as disapproving of this example (I.P.R., 
 Leipzig, 1897, p. 241). All interpretations, says he, ought 
 to be given in such a manner as that a reasonable result will 
 ensue. It does not follow that, because the first (French) 
 rule is a Renvoi-rule, the Renvoi is subsequently to be 
 admitted : non constat that the French legislator had not 
 special reasons for admitting the first Renvoi (from Prussia 
 to America) without having any desire for a second Renvoi 
 (from America to Prussia). To which Buzzati replies [pp. 
 cit. , p. 81) : — 
 
 " It is all very well that every interpretation should be given in a way 
 which will lead to a reasonable result ; but, before ascertaining whether the 
 result be reasonable, it is necessary that the interpretation itself be reasonable. 
 But when, in order to arrive at this pretended reasonable result, one has, as a 
 necessary premise, to admit that one and the same rule of conflict (/. «., the 
 Prussian) says one thing when applied by a foreign judge and another opposite 
 thing when applied by a national judge, it must be agreed that both inter- 
 pretation and result are unreasonable." 
 
 Von Bar (Bohm's Zeitschrift, op. cit., n. 15, p. 188), 
 deals with Kahn's illustration as follows : — 
 
 " Kahn assumes that Renvoi here either leads to a ridiculous result or 
 leaves the judge without instructions. Not so. In this case, either Amer. 
 LDom. or Pruss. LNat. or Pruss. LActus is the law which is competent to 
 determine the capacity in question : these two laws, for there are but two, 
 agree that LNat. is not to apply and that Amer. LDom. is primarily applicable. 
 This latter, Amer. LDom., correctly stated is as follows : It will not allow an 
 incapacity existing under it, but not existing under LActus, to be pleaded in 
 violation of the good faith of a transaction. The Prussian contracting party 
 is therefore to be deemed capable if capable either by Amer. law or by lex 
 actus, whichever be more favourable to the validity of the transaction." 
 
 This may be a correcter exposition of the law of the 
 American State in question : but is not the case put by 
 Kahn. We shall see shortly (pp. 61-2, post) that Westlake 
 would in this case apply French law as the law of the 
 forum [Annuaire, 1900, pp. 39, 40). Accordingly, the judge 
 ought to determine the capacity of the party in question, 
 by internal American law (Zitelmann) ; by the Prussian law. 
 
( 53 ) 
 
 if more favourable to the validity of the contract than the 
 American (von Bar) ; by French law (Westlake) ! Two 
 suggestions are inevitable : (i) a general Treaty is needed 
 to regulate such matters, seeing that, whether we accept 
 Renvoi or not, a person about to enter into a contract in 
 circumstances like those of the example, can never find a law 
 by which his capacity will be universally determined, and 
 (ii) if a system (say, the English) possesses a settled rule 
 of I.P.L. as to contractual capacity (say, LDom. in matters 
 of Family and patrimonial law and LActus in commercial 
 matters) it may gain nothing, by toying with Renvoi, except 
 an uncertainty more to be abhorred than any theoretical 
 incorrectitude. 
 
 2 2. The basis of the Renvoi-theory is the doctrine that 
 when a conflict-rule refers a matter to a foreign law, the 
 foreign law is referred to in its totality. It is urged as an 
 objection to the theory that the complete application of a 
 foreign law is almost impossible. Buzzati i^Rinvio, p. 83) 
 says : 
 
 " By means of Renvoi it is never possible to arrive at a total application 
 of a foreign law. In the first place, the application of a foreign law will be 
 limited by the public law and order of the State where it is to be applied. 
 But even in cases which do not affect public order, the complete application 
 of a foreign law is almost impossible. When a judge has to decide how to 
 regulate a jural relation which contains elements of international law, he must 
 distinguish between questions of Capacity, Substance, Form and Effects : and 
 it will continually be seen that the relation will be regulated not by one law 
 only but by various laws each dealing with a different element of the relation. 
 Suppose a question arises in an Italian court about the vaUdity of a marriage 
 celebrated in France between a German and an English woman. As regards 
 capacity of the parties the judge will have to apply respectively the German 
 and the English law, as regards form the French law. If he has to deal 
 with the effects of that marriage he will apply — ^according as he deals with 
 consequences of one or another kind — the German law as the national law of 
 the husband, the law of the place where the parties live, and possibly also 
 the law of the place where the property is which constitutes the dos of the 
 woman or the property of the husband, etc., etc. This marriage and its 
 effects will not be decided on by one and the same law unless the spouses are 
 e.g., both French, living or always having lived in France, married in that 
 state and possessing their property there .... But whenever the question is 
 really one of International law, the judge will never apply in its totality one 
 
( 54 ) 
 
 foreign law only, but as many foreign laws as are by the rules of conflict of the 
 lex fori competent to regulate the varying elements of the juridical relation in 
 question. But not even these will he, under the Renvoi system, apply in 
 their totahty. Suppose e.g. there comes before an Italian Court the question 
 of the validity of a marriage celebrated in England between a Saxon and a 
 Frenchwoman, domiciled in London. The Italian judge who by his rules of 
 conflict relating to capacity will be referred to the Saxon and French rules 
 of conflict, will be called by these (which adopt the national law) to decide 
 on the capacity of the husband by the Saxon internal law, of the wife by the 
 internal French law : here, then, ex hypothesi, we have the application in their 
 totality of Saxon and French law. But to decide on the formal validity of the 
 marriage he will have to apply English law, lex loci celebrationis : now English 
 law determines capacity by the lex domicilii I Here, then, is a case to which 
 the judge does not apply foreign law in its totaUty." i 
 
 The argument contained in this extract is of exceptional 
 importance to English lawyers, owing to the (regrettable) fact 
 that our rules of I.P.L. so often refer different elements of the 
 same jural relation to different laws. This fact makes it 
 difficult to assent to the doctrine, sometimes laid down, that 
 an English judge, when referred by his rules of I.P.L. to a 
 foreign law, puts himself in the position of the foreign judge. 
 We may take as an illustration such a case as Gudpratte v. 
 Young (1851, 4 de G. & S., p. 217), a case in which a 
 settlement, valid in substance but void in form by French law, 
 and valid in form but void in substance by English law, was 
 held to be good by applying French and not English law 
 to govern the substance, and English and not French law to 
 govern the form of the settlement. The feat of mental 
 gymnastics involved in imagining the English judge to be 
 acting now as English judge and now as French judge, in 
 pronouncing upon one and the same jural unit, i. e., the 
 validity of the settlement, is both difficult and futile. 
 
 23. It will be seen later that in several legislative sys- 
 tems Renvoi, or at any rate the result of Renvoi, has been 
 accepted in connexion with the personal statute. M. Bartin 
 has an article in Vol. XXX of the Revue de Droit Inter- 
 national, in which he minutely discusses this aspect of the 
 question. The solution of conflicts of laws adopted by any 
 
 1 Kahn has a similar argument in Jhering's Jahrbuch, Vol. XXX, p. 25. 
 
( 55 ) 
 
 State as regards the personal statute is, says he, closely con- 
 nected with the internal character of that State, e.g., it is 
 intelligible that a highly centralised, unitary State should 
 adopt as its criterion the LNat. rather than LDom. to regu- 
 late, in its eyes, the capacity of its subjects, and, on the other 
 hand, the looseness of the tie existing between the various 
 members of a Federal system will explain the reception 
 within that system of the criterion of Domicil, and then the 
 subsequent extension of it outside the federation. Hence, 
 says Bartin, these rules are, primarily, not rules of private 
 law but of public law : they translate that State's idea of 
 Sovereignty (p. 276). If they affect the individual, as all 
 rules of law must, they are primarily addressed to the judge, 
 indicating how far his mission goes and not, like rules of 
 private law, how he must fulfil his mission : they do not 
 determine the object of his functions but their limits. When 
 then a State A, accepting the Renvoi-principle, authorises its 
 judges to substitute for its own conflict-rules those of another 
 State, B, in the interest of subjects of that State, A in reality 
 is freeing the subjects of B from rules which are part of its 
 public law. In such circumstances, subjects of B are sub- 
 mitted even on A.'s territory and before A.'s tribunals to the 
 public law of B : A adopts, in short, a fiction of exterritoriality 
 for their behoof So that the price exacted by the Swiss 
 rules (p. 70, post) and the rules adopted in 1894 ^.t The 
 Hague {ibid.) is an attack on the Sovereignty of the country 
 to which the judge belongs, an attack in the domain of public 
 law, and therefore an attack which is absolutely inconsistent 
 with the notion of sovereignty (p. 278). 
 
 Bartin then contends that the German system (see 
 p. 72, post) is obnoxious to the same criticism, though in 
 seeming it is quite distinct from the Swiss and The Hague 
 systems. The latter appeal to the conflict-rules of LNat. in 
 order to respect in the individual's person the sovereignty of 
 the State to which he belongs : the German system applies 
 German law because, on von Bar's theory, it cannot find a 
 LNat. for the individual. In reality, however, the German 
 system is following the lead of the individual's LNat. : the 
 
( 56 ) 
 
 German law applies itself because the conflict-rules of LNat. 
 demonstrate that the bond of allegiance uniting the individual 
 to his nation does not, in the eyes of his LNat., extend into 
 the region of civil relations : i. e., the German law borrows 
 the negative conceptions of LNat. as to national sovereignty. 
 
 All three systems, Bartin concludes, rest on one and the 
 same fundamental doctrine, the application of the fiction of 
 exterritoriality applied to an individual by the judge. The 
 notion of territorial sovereignty leads necessarily to the 
 rejection of such a fiction. 
 
 24. In addition to the writers whose views have been 
 indicated in the quotations and summaries contained in the 
 preceding pages, the following may be mentioned : — 
 
 Pro Renvoi : Barazetti (see in Zeitschr. f. I.P.R., i, 426) ; 
 Brocher (Clunet, 1881, p. 13; Cours, 1882, p. 167); Jaques 
 IVerhandlungen, Berlin, 1886, Vol. II, p. 135); Martin 
 (Clunet, 1883, p. 31); Neumann (I.P.R., 1896, p. 25); 
 Renault [Actes de la Conference de la Haye, p. 46) ; A. Rolin 
 (D.I. P., 1897, p. 76); Guarini (Rome, 1900); Sewell 
 {French Law, etc., pp. 66, Jj). 
 
 Contra Renvoi : Anzilotti (Studi critici, p. 194) ; Mignault 
 {Dr. civ. canadien. Vol. I, p. loi) ; Bustamente {El orden pub- 
 lico, Habana, 1883, p. 155); C2.te\\a.ru. {Atti del Reale istituto 
 di Venezia, ser. 7, Vol. 8, p .1647); Chretien (Clunet, 1886, 
 p. 174); Despagnet {Prdcis, 1891, p. 174); Diena {Sui 
 limiti air applic. del dir. str., 1898, p. 9); Fusinato {Riv. 
 ItaL per le scienze giur.. Vol. XXV, p. 435) ; Gierke 
 {Deutsches P.R., 1895, p. 215); Niemeyer {Methodik, 1894, 
 p. 16); Fillet (Clunet, 1894, p. 721); Regelsberger {Pan- 
 dekten, 1893, Vol. I, p, 164); Surville et Arthuys {Cours ildm. 
 1890, n. 30); Stocquart {Rev. de Dr. Int., Vol. XXIII, 
 p. 141); Streit {Nomike, 1894, p. 40); Tournade (Clunet, 
 1895, p. 484); Crome {Handbuch, 1894, Vol. I, p. 108); 
 Zitelmann (I.P.R., 1897, p. 238); Ligeoix (Clunet, 1903); 
 Laurent {Dr. int., 1880, Vol. I, n. 441 ; Sirey 81, 4, 41). 
 
 Partly /r(7, partly contra: Strisower ( Wiener Gerichtskalle, 
 1881, pp. 11, 13). 
 
 This list has been almost entirely borrowed from Buzzati 
 
( 57 ) 
 
 V. 
 
 25. Mr. Westlake made two important pronouncements 
 upon the Renvoi-question in connexion with the discussions 
 of the Institute {see p. yi,posi). Both in 1898 and in 1900 he 
 contributed a written memorandum and also took part in the 
 oral debate {see Annuaire, 1898, pp. 31 — 34, pp. 217 — 219; 
 1900, pp. 35 — 40 and pp. 164 — 168). In 1898 he admitted 
 the Renvoi-theory in certain special cases, rejecting it in 
 general ; in 1900 he announced his entire conversion to the 
 doctrine — or, rather, his adoption of a mode of thought which 
 leads to the same results. If this pamphlet possesses no 
 other merit, it will at any rate have served the purpose 
 of rendering the doctrine of this great master accessible for 
 the first time to the English reader. 
 
 26. The consensus gentium on which I.P.L. ought to 
 rest is now-a-days admittedly wanting, especially — owing 
 to the intrusion of the idea of Nationality — in matters of 
 the personal statute. The question thence arises whether 
 it is desirable and proper that a system which, like the 
 English, still frames its personal statute in the old way, 
 should recognise this change in the international situation 
 by a corresponding change in its rules of I.P.L. If so, one 
 course which presents itself at once to a critic is to examine 
 the reasons why this or that relation was referred of old to 
 LDom. It may be that the reason in some cases points to a 
 connection with the soil or the people living on it, and in 
 these cases there would be no ground for ceasing to refer to 
 the law of that soil, the LDom. In other cases the reference 
 to LDom. might in reality have been a reference to the 
 supreme authority of the area in question, on the assumption, 
 e.g., of some act to be done by him, such as the distribution 
 of property : if for these cases the local law would no longer 
 
( 58 ) 
 
 represent the sovereign will, there would be less reason for 
 insisting on its continued arpplication. It was on these lines 
 that Mr. Westlake approached the problem in 1898, and his 
 conclusions were that, by a limited admission of Renvoi, effect 
 might be given to the results of the analysis. Any such 
 analysis must, however, be largely speculative, and its prac- 
 tical utility would entirely depend on its commanding such an 
 assent as could only be accorded by an act of the ultimate 
 municipal legislator or by international convention. 
 
 Admitting that I.P.L. seeks in general for the territorial 
 law which is the proper one to govern a given legal relation 
 and not for a law which is to govern the choice of law, Mr. 
 Westlake maintained that there are legal relations as to 
 which the quest of I.P.L. should be rather for a territorial 
 sovereignty to whose sway they may be remitted than for a 
 territorial law which shall govern them. In these cases the 
 sovereign authority in question may direct us further afield 
 in our search for the governing law. 
 
 (i) It is a territorial law that I.P.L. points us to in, e.g., 
 the determination of the age of majority : for majority is fixed 
 by reference to the average qualities of a given people. It is, 
 similarly, a territorial law which governs the intrinsic validity 
 and the effects of a contract. In neither of these cases is 
 Renvoi permissible. 
 
 (2) There are however legal relations in the regulation of 
 which the aim of I.P.L. is, to secure a unity of treatment. 
 Thus, suppose a judge of jurisdiction A is dealing with the 
 movables of a succession which, under his rules of I.P.L., 
 belongs as a Mniversitas to jurisdiction B : if the rules of 
 I.P.L. adopted in B declare that the universitas belongs to 
 jurisdiction C, and the rules adopted in C agree in this 
 respect with those of B, the judge of A should apply the 
 law of C, because it is in C that the succession will be opened 
 effectively and without controversy. The principle of unity 
 of treatment involves the search for an authority which is 
 entitled to deal with the succession in a sovereign manner : 
 the judge of A finds that authority is the sovereign of C. 
 
( 59 ) 
 
 (3) Further, there are legal relations in the regulation of 
 which the aim of I.P.L, is to respect the social ideas of a 
 given people, e.g., marriage-capacity so far as it depends on 
 nearness of kinship. The population affected by a given 
 marriage may be defined in terms of domicil or of nation- 
 ality. In either case it is from the sovereign authority of the 
 selected country that information must be sought as to the 
 ideas there prevalent which it is desired to respect : and that 
 sovereign may declare, in his rules of I.P.L., that he has no 
 interest in a marriage between persons who are connected 
 with his jurisdiction by the tie, be it domicil or be it nation- 
 ality, on the strength of which the reference has been made 
 to him. Suppose that an English judge is pronouncing on 
 the validity of a marriage between a man and his deceased 
 wife's sister, both parties being English by nationality and 
 French by domicil. The English rule of I.P.L. takes domicil 
 as the criterion, the French rule takes nationality. Why 
 should the English judge abstain from applying the English 
 law which prohibits such a marriage ? England is, beyond 
 doubt, interested in the affair by reason of the nationality of 
 the parties ; the preponderating interest which English law 
 attributed to the country of the domicil is disclaimed by that 
 country. There is no need, in order to justify the conduct of 
 the English judge, to assume that the lex fori is rehabilitated 
 by the refusal of a courtesy proffered by it to the lex 
 domicilii. 
 
 27. We pass now to Mr. Westlake's contribution to the 
 discussions of 1 900 : — 
 
 (i) He began by insisting that, from the practical stand- 
 point of the legislator, it is impossible to divide a legal system 
 into internal law and international law. Suppose a system 
 says, e.g.,. (a) Testamentary capacity is acquired at 19; 
 (b) personal capacity is regulated by the law of the nation- 
 ality. Without rule (b), rule (a) has no meaning. Who 
 acquires testamentary capacity at 19 ? No answer at all can 
 be given without (b), which indicates the class of persons 
 whose capacity the law-maker believes himself entitled to 
 
( 6o ) 
 
 regulate. Rule (a), stated in the light of (b), runs, " For sub- 
 " jects of my state testamentary capacity is acquired at 19," 
 and nothing is said about foreigners domiciled within the 
 territory. Rule (a) taken by itself is in the air, a mere 
 arrangement of words.^ 
 
 (2) The second proposition in Mr. Westlake's note is 
 the following : When a lawgiver frames a rule such as (b) 
 above, it is limited to the cases which the lawgiver deems 
 subject to his authority in the matter. There will be, firstly, 
 the normal cases, e.g., for a Danish lawgiver, who considers 
 domicil the decisive factor, the normal case will be that 
 of a person domiciled in Denmark, and the lawgiver will 
 fix for him 21 as the age of testamentary capacity ; for 
 an Italian lawgiver who considers nationality as the decisive 
 factor, the normal case will be that of an Italian by nationality 
 and the lawgiver will fix for him the age of 18. But to go 
 so far involves a further step. The lawgiver who regards a 
 given case as normal for himself must regard analogous cases 
 as normal for other lawgivers and as within their sphere. 
 The Danish lawgiver will direct his judge to hold that the 
 testamentary capacity of persons domiciled abroad is that 
 which is recognised by the lawgiver of their domicil ; 
 the Italian lawgiver will direct his judge to hold that the 
 testamentary capacity of non- Italians is that which is recog- 
 nised by the lawgiver of their nationality. By this second 
 step we settle the following cases : (i) for the Danish 
 judge, the case of a person domiciled in a country like 
 England which similarly determines capacity by the law 
 of the domicil ; and (ii) for the Italian judge, the case 
 of a person, e.g., a Frenchman, whose national law deter- 
 mines capacity by the law of the nationality. But we do 
 not settle (i) for the Danish judge, the case of a person 
 domiciled under a system which, like the Italian, says nothing 
 about persons domiciled under it; nor (ii) for the Italian judge, 
 the case of a subject of a State which like Denmark says 
 nothing in the matter about its political subjects. 
 
 1 Cf. Von Bar to the same effect in Bohm's Ztitschrift, 1898) p, 182 & n, 8, 
 
( 6i ) 
 
 (3) For the decision of the cases not disposed of in the 
 second stage, a further stage is necessary : the legislator must 
 allow or order a judge, in default of any other law, to apply 
 the normal law of his own system in cases where no other 
 applies. A Dane domiciled in Italy will then be held, in the 
 courts of Denmark, to acquire capacity when he attains 
 the age (21) required by the Danish law ; but in Italy he will 
 be held to acquire capacity on attaining the age (18) required 
 by Italian law. This secures the same result as the Renvoi- 
 theory but not by the same route, and it is not obnoxious to 
 the "Lawn-tennis" objection. Renvoi implies the indication 
 of a rule which refers back to the indicator, but the truth is 
 that the rule supposed to be indicated by the indicator does 
 not exist in actual fact, by reason of a difference in theory 
 between the two systems. 
 
 (4) Mr. Westlake then cites from his contribution of 1898 
 the passage summarised in (3) on p. 59, ante, but assigns as 
 the reason why in the example given the English judge should 
 apply his own law, the presumed intention of the English 
 lawgiver that if the French law disclaims the deference offered 
 to it, English law is to be applied. 
 
 (5) Lastly, Mr. Westlake deals with Weiterverweisung. 
 Suppose, says he, the case of two subjects of one of those 
 American States which, in favour of immigration, make 
 capacity depend on the law of the place of contract : these 
 two persons, being then domiciled in France, enter into a 
 contract in Italy and, later, the contract comes before the 
 courts of England. How shall the English judge deal with 
 the question of their capacity ? Taking their domicil at the 
 time of the contract as indicating the law-maker to whom 
 the question of its validity in that respect belongs, he asks an 
 answer from France. France replies, " This case does not 
 belong to me ; your own (English) rule of competence would 
 have done better had it referred you to the American law- 
 giver." Should the judge accept this advice, the American 
 lawgiver will tell him that the case does not belong to him 
 but to the Italian lawgiver. The English judge, however, is 
 
( 62 ) 
 
 not compelled by his rule of competence to accept this advice. 
 He will apply the "internal" law which governs the normal 
 cases of his country, and he will be moved so to do by the 
 same considerations as operate in a simple case of Renvoi : 
 i.e., imbued with the principle that I.P.L. is the science of 
 the limits, in space, of legal systems and, taught what these 
 limits are by the rules of I.P.L. adopted in his own country, 
 the judge will determine to what law-maker any given legal 
 relation belongs ; should this law-maker, adopting other views 
 as to the limits in question, declare that the given legal 
 relation does not belong to him, the judge's journey abroad 
 is at an end. 
 
 Obs. I. — Mr. Westlake's doctrine that rules of material 
 law must always be read in the light of the rules of I.P.L. — 
 e.g., that the English rule is not "Majority commences at 21," 
 but " Persons domiciled in England attain majority at 21," — • 
 is discussed on p. 88. The corresponding doctrine of von Bar 
 that a statement as to its dominion in space is an essential 
 part of every legal rule, evoked the following criticism from 
 Kahn, in Jhering's Jahrbuch, Vol. XXX, p. 28. Let us, says 
 he, distinguish two things from each other : (i) rules which 
 subject a definite legal relation to a definite territorial system, 
 i. e., which delimit the boundaries between various terri- 
 torial systems, and (ii) rules which merely define limits in 
 space for our own law. The rules of class (i) are the proper 
 rules of private international law and the doctrine in question 
 is inapplicable to them (except upon that erroneous conception 
 of their import by which the foreign law to which they in any 
 given case refer, is incorporated with our own). For how 
 can the rule, "A person's capacity is governed by the law of 
 his domicile" be a constituent part of the rule, "Capacity 
 begins with majority and majority begins at 21?" The two 
 rules are incommensurable and as distinct from one another 
 as a rule about the constitutional requirements of a civil law is 
 from the civil law itself Nor does the doctrine hold good of 
 the rules in class (ii) : it is not correct to say that a reference 
 to definite objects quoad space, is as necessarily immanent in 
 
( 63 ) 
 
 the lawgiver's intention as a reference to definite objects 
 quoad thing. What the lawgiver proposes to regulate is the. 
 capacity of persons, the family law of husbands and fathers, 
 the successory rights of sons, of cousins, of legatees, the 
 extent of the rights of absolute or limited owners, etc. How 
 far in space his law is to operate is ordinarily a secondary 
 concern, matter for a supplementary {danebenstehende) rule, 
 even when dealt with in the same paragraph, and even when 
 left to be ascertained by reference to the nature of its material 
 contents. Sometimes, however, a statement as to the spatial 
 operativeness of a rule is a constituent part of the rule, e.g., 
 Art. io8, Cod. Civ. Fr., " Toutes actions contre le commis- 
 " sionaire et le voiturier, a raison de la perte ou de I'avarie 
 " des marchandises, sont prescrites, apres six mois pour les 
 " expeditions faites dans Vintdrieiir de la France et apr^s un 
 '.' an pour q.€\\.&?, faites a V dtranger." Here the spatial refer- 
 ence clearly belongs to the content and not to the extent of 
 the lawgiver's intention : if in thought we were to remove the 
 clause " et apres un an pour celles faites d V stranger" the 
 meaning of the rule might then be that for foreign consign- 
 ments the period of prescription was to be the ordinary 30 
 years or none at all. The character of the rule would remain 
 the same. If, however, by removing the clause in question 
 the rule comes to mean, " the prescriptive period in connexion 
 " with consignments is half-a-year: this relates to home con- 
 " signments ; foreign consignments depend on foreign law," 
 — then the character of the rule would be altered : the spatial 
 reference would no longer be part of the contents of the rule 
 but would belong to an independent rule. We should no 
 longer have a French ordinance defining the prescriptive 
 period in one way for home and in another way for foreign 
 consignments : but we should have a single general rule on 
 the matter, and by its side would be another stating the view 
 of the French lawyer as to the ambit of its effectiveness in 
 space. When, then, we are referred to a foreign law which 
 contains a space-reference, we must always inquire whether 
 the space-reference belongs to the content or to the extent 
 
( 64 ) 
 
 of the law : if it belongs to the content, we are bound by it 
 just as by the rest of the law ; if it belongs to the extent, it 
 does not concern us, for we are only referred to the material part 
 of the law, and the question of its effect in regard of foreign 
 legal areas has been settled, for us, by our own lawgiver. 
 
 Renvoi, continues Kahn, is in all circumstances excluded : 
 it is always perverse and Impossible. Suppose a German 
 court has to deal with a consignment of goods from France 
 to Germany under a contract made in Paris, and that the two 
 parties to the contract and to the action are French. The 
 contract is governed by French law in accord with the inten- 
 tion of the parties : and the question of prescription is to be 
 determined by the same law, i. e., by Art. io8. Cod. Civ., 
 set out above, and the prescriptive period is a year. Let us 
 now adopt in turn the two hypotheses mentioned before : 
 (i) Assume that the clause " et apres un an pour celles faites 
 a Fdtranger" is wanting and that the prescriptive period is 
 30 years, that of municipal French law in general. We 
 adopt that period. (ii) Assume now that the absence of 
 the clause in question makes the rule mean, " the prescriptive 
 " period in connexion with consignments is half-a-year : this 
 " relates to home consignments, foreign consignments depend 
 " on foreign law." The claim would be prescribed in half-a- 
 year, despite the fact that the consignment was with Germany ; 
 for, our law declares that the contract was French and that 
 the prescriptive period is to be decided by reference to French 
 law. The question of the application of the French law of 
 prescription is settled so far as we are concerned : we only 
 ask what that law is. 
 
 Obs. 2. — Mr. Westlake's views about the application of 
 Renvoi in the Law of succession have an exceptional import- 
 ance, because it is in the domain of succession alone that 
 Renvoi has been accepted by English courts. It will have 
 been noticed that in 1900 he seems to disapprove of Wciter- 
 verweisung^ and that in the cases in which he still approves 
 
 ' Query, disapproving, therefore, of the decision in hi re Trvfort (ante, p. i6) ? 
 
( 65 ) 
 
 of the results of Riickverweisung, it is for a reason different 
 from that given in 1898. Thus, in the course of the oral 
 debates of 1898 he dealt with the case of an Englishman 
 dying domiciled de facto in France, leaving movables in 
 England. The law of France where the succession is 
 opened, says that these movables, like the rest of the 
 movable succession, are to be governed by the law of the 
 deceased's domicil de jure, i. e., by the law of his nationality, 
 while the LNat. (England) would apply the law of the last 
 domicil de facto. Why, asked Mr. Westlake, should the 
 English court, when dealing with the movables in 
 England, refuse this Renvoi ? If, said he, the English law 
 has resolved to apply the law of the domicil de facto to 
 movable successions, it is in order not to defeat the lawful 
 expectations of the deceased and his relatives, a reason which 
 necessitates the conception of the movable succession as a 
 unit : were the English court to apply the French internal 
 law and not French law in its totality, there would be a 
 breach in the unity of this succession so far as the goods in 
 England are concerned {Annuaire, 1898, p. 218). In 1900 
 Mr. Westlake would approve of the application of internal 
 English law to this succession on a different ground, namely; 
 that the French law (of the de facto domicil) to which the 
 English courts were, at first, desirous of remitting the case, 
 does not in fact exist, owing to differences in English and 
 French theory.' 
 
 A few words may not be out of place with regard to 
 the "Unity" argument. When it was admitted universally 
 that LDom. regulated movable successions, unity of treatment 
 prevailed : if the day ever returns when all States again 
 
 ' Since these lines were written, the writer has had to consider this very case. The 
 question arose whether an English lady, who had died domiciled de facto in France, could 
 bequeath all her movables in England and in France to some of her children in exclusion of 
 the others. "When French experts were consulted by her English solicitors with regard to the 
 French law, the answer came back that the French law would apply itself (including its rules 
 as to legitim) if the English law as LNat. would deem French law applicable. If to this 
 situation we apply either the solution of 1898 or that of 1900, we have each system saying, . 
 " After you, sir," to the other, and no progress made. 
 
 F 
 
( 66 ) 
 
 adopt the same criterion, that unity will again prevail : mean- 
 while the position is that, while an approach towards unity 
 is possible by means of compromise, complete unity is impos- 
 sible save by surrender. Renvoi is a specious device, de- 
 monstrably unsound in theory, for cloaking surrender : that 
 this is so, may be seen, if, still employing Mr. Westlake's 
 illustration of 1 898, we consider the following cases : — 
 
 (a) With regard to goods in England : Eng. LFor. -> 
 
 Fr. LDom. (defado)^ Eng. LNat. (or Dom. dejure). 
 
 (b) With regard to goods in Denmark : Dan. LFor. -^ 
 
 Fr. LDom. {de facto) -^ Eng. LNat. 
 
 If the English courts in (a) or the Danish courts in (b) 
 allow the French courts to refer them to the English law, 
 they are surrendering their criterion of domicil to that of 
 nationality — a surrender which it would be naive to demand 
 on grounds of unity of treatment, when one remembers that 
 the English and the Danish law remain loyal to a criterion 
 which aforetime produced the desired unity until the intruding 
 French criterion destroyed it. Renvoi being, then, detected 
 and discredited and repudiated, and surrender being assumed 
 impossible, the question arises whether the English judge 
 should make an approach to unity by means of compromise : 
 von Bar {see p. 44, ante) and Mr. Westlake in 1898 [see (2), 
 p. 58, a7tte) furnish a case where compromise might seem 
 reasonable : it is the case in which both LDom. and LNat. 
 agree that LNat. is to be applied, e.g-. (as regards movable 
 succession), Eng. LFor. -> Germ. LDom. -> Ital. LNat. 
 As the Italian law declares itself competent to deal with this 
 case, unity of treatment is secured if the English courts, in 
 view of the altered international situation, allow the requisite 
 modification of their criterion. Such modification is, J>j'o 
 tanto, surrender ; but, being made in the expectation that, 
 mutatis mutandis, the Italian courts would act likewise,^ it 
 would be more aptly called compromise. 
 
 1 The compromise would involve, mittatis mutandis, the following: Ital, LFor. -^ Denm. 
 LNat. -^ Ene. LDom. 
 
( 67 ) 
 
 Mr. Westlake's doctrine of 1900 is, obviously, based on 
 principles which do not tend to unity of treatment in matters 
 of succession. It seems to amount to this. When first 
 LDom. was accepted as the law governing movable succes- 
 sions, it was operative among a number of States all of whom 
 accepted the principle, and nowhere did or could the principle 
 mean that State A- applied the law of State B in cases where 
 State B would apply some other law than its own : now-a-days, 
 however, not all States regulate succession by reference to 
 LDom., a large number adopting LNat. instead: the universal 
 family has become two international groups. Yet, as in the 
 beginning so now, it is only within each group of consentients 
 that one State can apply another's law ; rather than apply the 
 law of a State belonging to the other group it will apply its 
 own, the lex fori. Flawless in logic as this doctrine may be, 
 it is doubtful whether an English judge will consent so to 
 whittle-down English doctrines of I.P.L. The comity which 
 initially directs the English judge to apply (say) the law of 
 France is a reasoned comity : the comity may seem to be 
 declined, but the reasoning remains. And if, relying on this 
 reasoning, the English judge should defy the paradox^ 
 involved in applying a law which does not wish to be applied, 
 he will be on the side of unity of treatment in matters of suc- 
 cession ; for he will be saying, "It is better that a succession 
 " should be regulated either by LDom. or by LNat. — these 
 " two and no more — than by the law of every forum before 
 
 1 As to this, see p. 96 el seq., post. Cf. also the remarks of M. Streit (^Anmmire, igcx), 
 p. 162) : "It is urged by advocates of the Renvoi-theory that the question is due to the 
 existence of a legal lacuna and that it implies a negative conflict, a conflict of abdications, 
 between two systems. But if there was only a lacuna, only a negative conflict, no question 
 of Renvoi could arise. There must exist also a positive conflict, a conflict bred from the 
 fact that each of the two legislations which are brought face to face orders its judges to 
 apply the foreign law, in accordance with the rules of competence adopted by the native 
 forum. But, says an objector, this means that one legislation is imposing on the other a 
 competence which the other refuses ; what business, it is ejaculated, has one legislator to 
 regulate the competence of another ! The reply is that this is a regrettable but none the 
 less inevitable consequence of the fact that there is not at present one uniform system of 
 Private International Law recognised by all States. Unless the law-maker is content to 
 leave his judge without any directions, the law-maker is bound to regulate the competence 
 of foreign tribunals according to the principles which he has deemed it proper to apply 
 to the competence of his own rules." 
 
 F 2 
 
( 68 ) 
 
 " which it may be brought." And it is obvious how consistent 
 this would be with the compromise just suggested for the case 
 in which LDom. and LNat. concur in approving the applica- 
 tion of LNat. 
 
 Obs. 3. — In further elucidation of Mr. Westlake's doctrine, 
 it will be well, in conclusion, to refer to another illustration used 
 by him in the course of the oral discussion of 1900 [Annuaire, 
 p. 166). Let us take, said he, the question of the capacity 
 of an Englishman domiciled in France. French law, as is 
 well known, desires to grant admission to the English law 
 as LNat. But the English law-maker has not laid down 
 any rule as to the status and capacity of persons domiciled 
 out of England, be they Englishmen or foreigners. What is 
 the French judge to do ? He may not refuse a decision. He 
 will, accordingly, apply the law of the domicil. In the absence 
 of nationality, domicil is none the less an available bond, 
 even though, according to modern ideas, a bond less strong 
 than nationality. The reason, continues Mr. Westlake, why 
 the French judge will apply French law is, not because the 
 English law-maker refers the matter to him, but because 
 the English law-maker pronounces the matter outside his 
 interest. La lot anglaise ne renvoie pas ; elle ne fait que 
 se ddsinUresser. Side by side with the primary legislative 
 competence of the law of the nationality, there is a secondary 
 legislative competence of LFor. to deal with the case where 
 no other exists. 
 
 This illustration is, of course, of primary importance only 
 in the general discussion of Renvoi, for the troubles of a 
 French judge have no direct bearing upon English law and 
 law-making. It is, however, interesting as an ingenious 
 defence by Mr. Westlake of certain recent decisions of 
 French courts. Assuming for a moment that it is permis- 
 sible to discuss the attitude of a French judge vis-a-vis with 
 his own law, it might be suggested that the following mode 
 of reasoning Would have been at least equally justifiable : "I, 
 a French judge, am bidden to apply in the case of this 
 Englishman his national law. I find that there does not 
 
( 69 ) 
 
 exist a law of the English, sensu Gallico ; but I find a law 
 of the English, sensu Anglicano. I find also that English, 
 sensu Gallico, and English, sensu Anglicano, are practically 
 identical groups : indeed, from the standpoint of rough 
 sociological generalisation, which is the standpoint from 
 which my lawgiver has developed the rule that questions 
 of capacity are to be referred to the person's national law, 
 the groups are identical. I obey my lawgiver — cy pres : 
 I apply the internal law of England to the status of this 
 Englishman/ His place of domicil is not one of the factors 
 which I am bidden to take into account." 
 
 Would an English judge in like case, e.g., when pro- 
 nouncing on the marria,ge-capacity of an Englishman domiciled 
 in France, and bidden by his law to apply LDom., be guilty 
 of even a technical outrage if he were to say, " The law pre- 
 " vailing in the place of this person's domicil is the Code 
 " Civil ; that it defines its justiciables in term of nationality 
 " and not in terms of domicil, does not make it any the 
 " less the law of the place of his domicil. That is the 
 " territorial law which, without any regard of persons,^ I am 
 " bidden to apply and I borrow for the purpose in hand the 
 " provisions of the French Code with regard to marriage- 
 " capacity." 
 
 1 As a matter of fact, the French courts say this whenever, e. ^. , in a case of movable 
 succession, they adopt Renvoi in the following circumstances, Fr. LFor. — ^ Eng. LNat. — > 
 Fr. LDom. (de facto). 
 
 ^ Cf. M. Weiss {Annuaire, 1901, p. 151), "La question du Renvoi est n^e du choc du 
 vieux principe territorial avec le nouveau principe, Fran9ais et Italien, de la personnalite 
 de la loi." 
 
( 70 ) 
 
 VI. 
 
 28. The principle of Renvoi has received a certain amount 
 of recognition in legislation and in international congresses : 
 
 (i) In 1854 a kindred principle, but limited in extent and 
 more scientifically stated, was adopted by the Canton of 
 Zurich. The personal status, family law, and movable suc- 
 cessions of foreigners were declared to be governed by their 
 LNat. so far as their LNat. prescribed. A similar rule was 
 adopted in the Canton of Zug in 1861 and in Canton Grisons, 
 1862. 
 
 (ii) The Swiss Federal law of December 27th, 1874, 
 contained certain articles which have been considered by 
 some {e. g., by Bartin, Reviie de Dr. hit.. Vol. XXX, p. 179) 
 to accept the Renvoi-principle. They are as follows : — 
 
 Art. 37. Si le futur epoux est etranger, le mariage ne peut etre celebre 
 (en Suisse) que sur presentation d'une declaration de I'autorite etrangere 
 competente, constatant que le mariage sera reconnu par elle avec toutes ses 
 suites legales. 
 
 Art. 56, dealing with marriages between foreigners says, " Qu'aucune 
 action en divorce ou en nuUite ne peut etre admise par les tribunaux (Suisses) 
 s'il n'est pas etabli que I'Etat dont les epoux sont ressortissants reconnaitra le 
 jugement qui sera prononce." 
 
 (iii) In 1893 3-rid 1 894 a congress, representative of nearly 
 all systems of law except the Anglo-American, was held at 
 The Hague which dealt, among other international topics, 
 with that of marriage. In the latter year the following 
 resolution was adopted, which may perhaps be considered 
 as a Renvoi-rule : — 
 
 Le droit de contracter mariage est regie par la loi de chacun des futurs 
 epoux sauf a tenir compte, soit de la loi du domicile, soit de la loi du lieu de 
 celebration, si la loi nationale le permet. 
 
 (iv) A Hungarian law of i8th December, 1894, lays down 
 (Art. 108) that marriages contracted out of Hungary are to be 
 governed, save in certain excepted respects, by the national 
 
( 71 ) 
 
 law of both parties unless that law prescribes the application of 
 some other law. Art. 1 1 1 extends this to marriages of foreign- 
 ers in Hungary. (Neumann, I.P.R. Materialien, No. 349.) 
 
 (v) In August 1895, at the close of the session of the In- 
 stitute of International law, held at Cambridge, it was decided 
 to place upon the list of topics for future discussion "The 
 conflicts between legal systems with regard to I.P.L." A 
 committee was ordered to report on the matter. In 1896, at 
 the session of Venice, the question was propounded by the 
 Reporters of the Committee (Buzzati, Lain6) in the following 
 form : Quand un Idgislateur abandonne a ime lot Sirangere la 
 ddtermination d'tm point de droit, demande-t-il a cette loi de 
 decider quelle loi sera applicable, ou cherche-t-il directement 
 dans cette loi quelle solution doit recevoir le point de droit 
 douteux ? This mode of stating the question provoked 
 criticism, and no progress was made either in that year or in 
 the next. In 1 898, at the session of The Hague, the Reporters 
 of the Committee presented a reasoned report which concluded 
 by proposing certain articles for adoption by the Institute. 
 These proposals were discussed but no definite determination 
 was arrived at, and the matter was adjourned. At the next 
 session of the Institute, in 1900, held at Neuchatel, the Re- 
 porters submitted three articles, in somewhat different form 
 from those of 1898. In the course of a protracted debate 
 two of these articles were dropped : the one remaining ran 
 as follows : Lorsquun lSgislateu,r, posant une regie de droit 
 international privd, ddsigne comnie directement applicable par 
 ses tribunaux d une certaine matiere ime loi civile Strangere, 
 il ne doit pas stibordonner I 'application de cette loi a la condi- 
 tion qiielle soil prescrite dgalement par la legislation dtrangere 
 dont fait partie la loi civile ainsi ddsignde. In order to ascer- 
 tain the decision of the Institute a vote was first taken on the 
 proposal to affirm the principle of this article : it was affirmed 
 by 21 votes to b} Later, the article itself was accepted by 
 
 ^ For: Messrs. Asser, Boiceau, Buzzati, Catellani, Corsi, Descamps, Dupuis, Fauchille, 
 Hilty, Holland, Kebedgy, Lehr, de Liszt, Lyon Caen, Midosi, Renault, Rostworowski, 
 de Roszkowski, Sacerdoti, Streit, Vesnitch. Against: von Bar, Brusa, Harburger, Roguin, 
 Weiss, Westlake. 
 
( 72 ) 
 
 17 votes to 7, subject to such textual emendation as might 
 subsequently be agreed on without discussion ; and ultimately 
 the Institute adopted, almost unanimously, the following reso- 
 lution : Quand la lot d'un Etat regie un confiit de lots en 
 matiere de droit privd, il est desirable quelle ddsigne la disposi- 
 tion mime qui doit etre appliqude a chaque espece et non la 
 disposition dtrangere stir le confiit dont il sagit. The result 
 of the battle royal was, therefore, adverse to the advocates of 
 the Renvoi-theory ; but the minority contains names of 
 exceptional weight. 
 
 (vi) In 1898 a Japanese law was issued, called " Ho-rei," 
 containing general rules for the application of laws. Art. 29 
 is as follows : — " When a person's national law is declared 
 applicable and according to the law of his country the laws 
 of Japan ought to be applied to him, the latter are to be 
 applied." This is a statutory recognition of Ruckverweistmg 
 in certain cases. 
 
 (vii) The new German Civil Code contains a very similar 
 provision in Art. 27 of the Einfilhrungsgesetz. The substance 
 of that article is this : in the cases named in certain preceding 
 Articles as cases in which a foreign law is applicable, the 
 German law is to apply if it is declared applicable by the 
 foreign law in question. The Articles named refer to legal 
 capacity. Art. 7(1); marriages where one only of the parties 
 is a German and marriages in Germany where both parties 
 are foreigners. Art. 13 (i) ; cases in which the proprietary 
 relations of husband and wife are to be governed by the law 
 of the State to which the husband belonged at the time of 
 the marriage. Art. 15 (2); Divorce, Art. 17 (i); Succession 
 to deceased foreigners. Art. 25. 
 
 The motives which accompanied the first draft of the 
 rules of I.P.L., now partly embodied in the Einfiihrungsge- 
 setz, have not been published. They were the result of official 
 conferences of the Bundesrat. The Project of Gebhard, the 
 Redaktor of the " General part " of the B'urgerliches Gesetz- 
 buch, was however that which was ultimately adopted, as set 
 
( 73 ) 
 
 out above, by the Bundesrat, and we know what his Motive 
 were.^ His general Project was clearly and distinctly opposed 
 to the idea that a foreign law is only to be applied where it 
 wishes to apply. " It is recognised," says the general Project, 
 " that legal relations, by reason of their international charac- 
 ter, may belong to foreign countries as well as to our own, 
 and it is not only allowed but it is ordered that, in judging 
 a legal relation which belongs to a foreign country, the foreign 
 
 law shall be applied This foreign law is applied not 
 
 because it desires to be, but because our municipal law de- 
 clares that it is applicable."^ It was admitted by Gebhard 
 that the principle which was ultimately adopted in Einf. Ges., 
 Art. 27, is an inroad on this principle, and the inroad was 
 justified on two grounds : (a) that it would diminish the num- 
 ber of conflicts of law, and [b) that the area of application of 
 German law would be extended, with a steadying effect, in 
 Germany, as regards the security of jural relations.^ 
 
 1 See M-tiW, Hist, and Syst. of I.F.L., 1892; Nieraeyer, Vorschldge und Materialien, 
 etc., 1895. 
 
 ^ Following out this principle, the First Commission rejected that limited recognition of 
 Renvoi which finally prevailed. 
 
 ' See criticism of these doctrines by Bartin, Rev. de Dr. Int., Vol. XXX, p. 167, et seq., 
 and by Kahn, in Jhering's /ahrbuch, Vol. XXXVI, p. 366, et seq., where the history of the 
 legislation is given. See also Keidel's Art. in Cimvt'i^ Journal, 1901. 
 
 It is interesting to note that the question has been raised and is still under discussion in 
 Germany, whether Renvoi may be accepted by German courts in other cases than those 
 enumerated in Art. 27 above named. 
 
 At the meeting of the Institute in 1898, Herr Sieveking, one of the persons who took 
 part in framing the new German Code, expressed an opinion that Einf. Ges., Art. 27, was 
 not to be considered as an acceptance of the Renvoi-theory, but as a partial acceptance on 
 practical grounds of some of its results. 
 
{ 74 ) 
 
 VII. 
 
 29- To an English lawyer dealing hereafter with any 
 matter in which it is possible to apply the Renvoi-theory, 
 two questions will present themselves : (i) Whether, in the 
 absence of legislation on the subject, English case-law is 
 favourable or unfavourable to the application of the theory ; 
 and (ii), in case of doubt, whether the theory is one which 
 commends itself on its merits and which it is desirable to 
 accept when opportunity offers. 
 
 It is with the second of these questions that this pamphlet 
 has so far been mainly occupied, and nothing more than a few 
 words of summary is needed as regards it. The reader will 
 have perceived that quite apart from Weiterverweisung the 
 (so-called) Renvoi ( R'dckveriveisting) takes two different 
 shapes; Renvoi (proper) implies that the law of A refers a 
 given jural matter to the law of B, and that the law of B, 
 being thus seised of the case, sends the matter back to the law 
 of A. The crudity of the theory in this shape has been 
 clearly shown in the foregoing pages. It suffices, perhaps, to 
 say " Lawn-tennis." In the other shape of the theory, that 
 of Westlake, von Bar and others, we have not lawn-tennis, 
 because the player in hand has served a fault — or, better, 
 because the other player refuses to play : the law of A 
 has referred to the law of B, but the law of B, having- 
 different " international " principles from those of A, declines 
 the reference : there is a desist ement on the part of B, 
 and A must find some other method of dealing with the 
 question. This means that A must apply the lex fori. 
 The theory in this shape is at least scientific : but it 
 makes the dissonances which have created the need for 
 International law the reason for denying its existence. 
 Instead, as regards the personal statute, of 3. Jus gentium, the 
 theoretically universal character of which the English courts 
 
( 75 ) 
 
 have repeatedly vindicated in the assertion that " no man 
 shall be without a domicil," there would be merely a jus 
 inter quasdam gentes. Every fresh defection from the ranks 
 of those States which accept LDom. as the criterion of the 
 personal statute would curtail, for England, the area of I.P.L. : 
 indeed, it would only be possible with a reserve to speak 
 any more of the Anglo-American body of international rules 
 concerning the personal statute, for English and American 
 courts take different lines with regard to the resumption of 
 the domicil of origin consequent on an abandonment of a 
 domicil of choice.^ Surely, if our traditional rules be based 
 on any considerations of private justice, in addition to public 
 comity, it is impossible to admit such an exaltation of the 
 LFor. at their expense. Further, the Renvoi theory, stated 
 in terms of ddsistement , takes a positively anti-social shape in 
 certain cases and is obnoxious to much of the criticism 
 devoted by Schnell and von Bar to the traditional theory. 
 In illustration of this we may imagine the English courts 
 applying internal English law to determine the validity 
 of the marriage of a Dane domiciled in France, or to 
 regulate a succession such as that with which In re Tr^l,fort 
 was concerned. 
 
 Again, the ddsistemeiit theory throws upon a local judge 
 the burden of saying whether a foreign system is proved to 
 " desist " or no — nay, more, it throws this burden on all 
 professional advisers and lay persons who wish to know by 
 what law to regulate their conduct. What a serious burden 
 this may be is evident, when one considers the diverse 
 views obtaining in France as to whether French law recog- 
 nises domicil de facto, or when one considers such cases as 
 the following. Let us suppose that a person, originally of 
 German nationality, has settled in Italy and through non- 
 compliance with German rules as to registration has lost his 
 original nationality without acquiring a new one : to what 
 
 ' " The great cvirrent of American authority lays down the principle without qualification 
 that a domicil once acquired by one sui juris is retained, even after abandonment, until 
 another is acquired amnio et facto." (Minor on Conflict of Laws, 1 901, p. 125.) In 
 England, as is well known, the domicil of origm would be deemed to be resumed. 
 
( 76 ) 
 
 law is an English court or practitioner or private party, 
 supposing the principle of ddsistement to be admitted, to refer 
 in order to ascertain this person's capacity ? Does Italian 
 law, which desisted so long as German law deemed him a 
 German, desist from desisting the moment that German 
 nationality has, by German law, been lost? If so, in what 
 quality does it deem itself applicable ? ^ as LDom. or as 
 LFor. ? and if it be as LFor. — i. e., on the ground of a 
 disistement by the German law — that an Italian tribunal 
 would now apply Italian law, is the English court to consider 
 this a ddsistement on the part of Italian law as LDom. or not ? 
 
 Further, Mr. Westlake himself shows how difficult it is to 
 say whether a State "desists": dealing in igoo [Anmiaire, 
 p. 1 66) with the case where a French judge has to pronounce 
 on the capacity of an Englishman domiciled in France, he says, 
 "II appliquera done la loi du domicile : a defaut de la nation- 
 alite, le domicile n'en est pas moins un lien:" and again (p. 39), 
 dealing with the case where an English judge has to pro- 
 nounce on the marriage-capacity of an Englishman domiciled 
 in France, he allows him to apply English law on the ground 
 that " il est impossible de nier que son pays ne soit interesse 
 a la question par la nationalite." If a State which adopts 
 domicil as the exclusive criterion of the personal statute can 
 be imagined to fall back on nationality in order to justify the 
 application of its law to a given case, and if a State which 
 adopts nationality as its criterion can similarly fall back on 
 domicil, even an expert would find it difficult to frame his 
 affidavit as to ddsistement, while the wayfaring man, without 
 being a fool, might easily err in such a labyrinth. 
 
 The writer ventures to express the opinion that the Ren- 
 voi-theory in its crude shape is not one which a lawgiver 
 
 1 Note that the German law would still hold itself applicable. Einf. Gesetz., Art. 29, 
 says, "When the law of the State to which a person belongs, is declared herein to be 
 " applicable to his legal relations, but he belongs to no State, the law of the State to which 
 " he last belonged is applicable, and, if there is no such State, then the law of the State in 
 " which he is domiciled and, in default thereof, the law of the State in which he resides or 
 " resided at the time in question." It is easy to see that this section might give rise to nice 
 problems in d4sistement. 
 
( 11 ) 
 
 would accept upon its merits, even when creating a system de 
 novo, and that it is not in either of its shapes a desirable im- 
 portation into a system which has already been settled upon 
 other lines. That the English system has been already 
 settled on other — even if less scientific — lines is, in the 
 opinion of the writer, the answer to the former of the two 
 questions propounded at the head of this section (VII). 
 
 30. It is to be remarked that English law knows nothing 
 of the Renvoi-theory, just as until yesterday it had never heard 
 of the Renvoi-question. In a handful of cases, most of them 
 gathered from one small corner of the law alone, decisions have 
 been rendered in the English courts which are congruent 
 with the Renvoi-theory in the less scientific of the two shapes 
 adverted to in the preceding paragraph ; but that is all. And 
 just as English law has never consciously accepted the theory 
 as a whole, so it, has never in terms repudiated it ; the writer 
 believes, however, that its fundamental principles are hostile 
 to the theory, and the demonstration of this is the task which 
 he essays in the immediately following pages, premising and 
 confessing that, here as elsewhere, when the attempt is made 
 to formulate in a system a mass of English case-law, some 
 constructive imagination and also some eclectic manipulation 
 are occasionally called for, which depend for their justification 
 on the character of the finished product as a convincing and 
 consistent whole. 
 
 The following propositions represent, in the writer's 
 opinion, the basal doctrines of I.P.L. as applied in England, 
 so far as the Renvoi-question in general is concerned, omitting 
 for the present moment the dozen cases which specially 
 relate thereto : — 
 
 (i) The "western" legal world consists of a number 
 of individual systems each occupying a definite seat in 
 space. This is an outcome of territorial sovereignty. 
 Each of these systems can be stated in terms which 
 contain no reference to the existence of other systems. 
 Such law is strictly internal, municipal, local law. 
 
( 78 ) 
 
 (2) Each system recognises certain rules of external 
 conduct due to the fact that it exists not only individually 
 but as one of a society of systems. These rules are 
 " international " law, and were originally received ab 
 extra as part of a system conceived to exist universally. 
 But now-a-days they are necessarily formulated by each 
 State for its own guidance. 
 
 (3) The "International" rules lay down the occa- 
 sions on which the given system applies not its own but 
 another's law. They are not capricious, but are based 
 on considerations of jural propriety — either on considera- 
 tions of comity or on considerations of the interests of 
 the persons affected : if on considerations of comity, 
 then the comity is towards the society of legal systems 
 and not towards any individual system (for the rules are 
 stated in general terms). 
 
 (4) The " international " rules are — at any rate, 
 normally — framed in terms of legal space, the indicium 
 of an occasion on which the " international " system (or 
 the " international " part of a system) is to operate, being 
 the presence in a foreign legal-area of some fact which is 
 deemed to be of such a character and to be so connected 
 with the soil or its sovereign as to demand or justify the 
 application of the law of that legal area in the given 
 case [e-g., lex loci domicilii lex loci actus, lex loci 
 contractus). 
 
 (5) When the English law, under the guidance of its 
 rules of I.P.L., decides that an occasion for the operation 
 of a foreign law has arisen, the selection of the particular 
 foreign law is implied, and no further considerations, 
 dependent on the co-existence of different systems in legal 
 space, can be entertained : the reference is, therefore, to 
 the purely internal law of the foreign legal-area. Con- 
 siderations based on nationality are, for the purposes of 
 civil law, spatial considerations. 
 
( 79 ) 
 
 (6) The "international" rules of any system are dis- 
 tinct from its internal law, whether the two be conceived 
 of as separate systems or as separate parts of the same 
 system. 
 
 (7) When it is said that a foreign law is " referred to," 
 or is "applied," or that the matter is "subject to" a 
 foreign law, etc., that foreign law is proved and admitted 
 as fact and not as law : territorial sovereignty demands 
 this. The English law does not profess to abdicate 
 in favour of the foreign law, or to decide on the legal 
 problem exactly as the judge of the foreign legal-area 
 in question would decide. This would, indeed, be im- 
 possible in those cases where differing elements in a 
 given legal situation are referred to different foreign 
 systems. 
 
 These propositions contain a doctrine familiar to the 
 international lawyer : it is not claimed that the doctrine is 
 theoretically sound, but only that it is coherent and intelli- 
 gible. The reader who prefers to take them for granted is 
 recommended to pass at once to p. 108 ; the intervening 
 pages are but an amplification of the preceding summary. 
 From page 108 onwards to the end of the pamphlet, the writer 
 shows that the English cases which seem to support Renvoi 
 do not necessarily demand more than the further propo- 
 sition : — 
 
 (8) The following exceptions have been engrafted on 
 the principle of proposition 5, s^l■pra : — (i) When the 
 testamentary formalities of English law are declared 
 adequate by the foreign law to which the English rules 
 of LP. L. refer the question, a will in English form will 
 be admitted to probate in England. (ii) When a 
 foreign law which, under the English rules of I.P.L., 
 is the law to which a movable succession belongs, refers 
 the regulation of that succession to a third law and the 
 third law accepts the reference, there is authority for 
 
( 8o ) 
 
 saying that the English courts will apply that third law 
 to the succession in question. 
 
 At the same time the writer suggests that the cases 
 referred to in proposition (8), while an inadequate basis for 
 the general reception of Renvoi by English courts, demon- 
 strate a willingness on the part of English law so to enforce 
 its rules of LP. L. as not to infringe rights duly acquired 
 under competent foreign systems, an attitude which weakens 
 those claims of the Renvoi-theory which depend on considera- 
 tions of practical justice. 
 
 31. In the phrase "law of England" the word "England" 
 has the same sense as in the phrases "king of England," 
 "climate of England," and refers to a definite area in space. 
 There may be other areas possessing each a law, and there 
 may be jural relations other than those created and regulated 
 by the law of England ; but the law of England can be 
 stated without any reference thereto. The legal system 
 which has its seat in that ultimate spatial unit called England, 
 may or may not have seisin of all persons, things, acts and 
 events in England — this does not enter into the conception 
 and is only important in that, so far as it has not that seisin, 
 the phrase "law of England" tends to become a misnomer for 
 the system. As a matter of work-a-day fact, however, law in 
 England and the law of England are coincident or may be 
 deemed coincident, with as much exactitude as can be hoped 
 for in one of the sciences of life. Any exceptions to this 
 statement are due to the fact, to be hereafter explained, that 
 the English courts sometimes recognise another law than this 
 strictly territorial law of England. 
 
 Let us take an example or two. We may say with 
 IDerfect propriety that divorce is an institution of the law 
 of England, and we mean thereby that, where and in so 
 far as the law "of England" applies, divorce can be 
 obtained if prescribed conditions be complied with {e.g., 
 the condition that the spouses are permanently settled in 
 
( 8t ) 
 
 England at the time of the suit). We may say also that 
 primogeniture is an institution of the law of England, and 
 we mean thereby that, whei'e and in so far as the law "of 
 England" applies, the eldest lawfully-born son is preferred 
 to others in the succession to the land of a deceased 
 father. And, similarly, when we say, that by the law " of 
 England," unlike the law " of Scotland," a debtor can give 
 goods to his creditor by way of security without transfer of 
 possession, we mean that he can do so, where and in so far 
 as the law ^' of England" applies. This wearisome qualifica- 
 tion "where and in so far as the law of England applies" 
 does not, however, explicitly occur in our statement of the 
 contents of the law of England ; it is implicit in the very 
 phrase "law " of England : a law that has no application is 
 not a law. And when therefore (to take a last example) 
 we are asked " What is the age of majority by the law of 
 England," and we reply "Twenty-one," both question and 
 answer contain the sous-entendu " where and in so far as the 
 law of England applies," and not only is there no need to 
 frame our reply " Twenty-one, except for persons domiciled 
 elsewhere," but this reply would be an inaccurate statement 
 of the law, in its isolated individuality, of " England " (as a 
 spatial unit). 
 
 There are, however, other legal systems than that of 
 England ; and, as before, it is equally important for us to 
 realise that the bulk of them are similarly territorial systems. 
 We construct our legal atlas, in the main, upon the basis 
 of the political atlas ; the patch coloured green is the area 
 of a law called hence the "law of Scotland"; the blue 
 patch is the seat of the law of France ; the yellow patch that 
 of the law of Holland. Some areas which need only one 
 colour in the political atlas become a number of separate 
 areas in the legal atlas: thus each of the States of the United 
 States of America requires a separate colour. There is a law 
 which has its seat in Ohio, another law of Pennsylvania, and 
 so on. In other cases, e.g., in that of Germany, the colourist 
 has to devise a scheme whereby to suggest that, while the 
 
 G 
 
( 82 ) 
 
 political unit is for some purposes also a legal unit, it is for 
 other purposes split up into areas each of which has its own 
 law. There is a law of Germany, but the law of Saxony and 
 the law of Prussia are not yet entirely absorbed therein. 
 
 This territoriality of legal system is the outcome of the 
 territoriality of political sovereignty — either the direct out- 
 come, as in such cases as the law of Italy, the law of France, 
 — or the indirect outcome as in such cases as the law of 
 Cape Colony, the law of Massachusetts, the law of England. 
 Where there is no foundation of territorial sovereignty for the 
 legal system, it takes the shape of a personal law, e.g., the 
 law of the Hindus, and much of the law administered in 
 Egypt and in consular courts. These are , however, abnormal 
 cases. 
 
 In order to complete our view of the cosmos of civil law, 
 it is now to be remarked that the territorial bodies of law 
 of which we have been speaking, are more than a number of 
 separate systems, they form a society. None of them lives 
 unto itself Each of them is affected — not in contents btU in 
 condiut — by external claims which are due to the fact that, 
 in the social and economic life of the individual, interests 
 arise, from time to time, which lie across the boundaries 
 marked out by legal geography. Occasions arise when this 
 or that legal system deems it right to supersede, wholly or in 
 part, its own rules by those of another system. The system- 
 atisation of these acts of sacrifice creates, for each system, a 
 body of rules to which the convenient label of " Private 
 International Law " has been o-iven. 
 
 to' 
 
 32. To help us in the analysis of the obligation and rules 
 just spoken of let us suppose that the following cases come 
 up for legal appreciation in England and, though it is not 
 essential, we will for simplicity's sake assume that they come 
 before a court of law. 
 
 {a) Two subjects of Portugal, in which country both were 
 permanently settled, intermarried in England. They 
 were first cousins. 
 
( 83 ) 
 
 (d) A will, made in holograph form in France, by an 
 Italian subject who was permanently settled in Scot- 
 land, purported to give all the deceased's property, 
 which included stock in the English funds, to the 
 deceased's widow in exclusion of his children. 
 
 (c) A contract was made in London whereby an Algerian 
 merchant undertook to deliver on a day named a 
 certain amount of esparto grass to a British merchant. 
 He was prevented from doing this by the outbreak 
 of an insurrection in Algeria — a sufficient reason to 
 excuse him according to the (French) law of Algeria 
 but not according to the law of England. 
 
 In case (a) the law of England might have said, " I have 
 no objection to the intermarriage of first cousins, and the 
 marriage is therefore good so far as I am concerned," That 
 attitude, however, is impossibly anti-social and, in the issue, 
 English law, even in the absence of a judgment by the Portu- 
 guese courts, substitutes the material provisions of the law of 
 Portugal for its own and treats the marriage as invalid — even 
 to the extent of saying that the offspring of the union cannot 
 inherit land in England. This conduct of the law of England 
 used to be explained by attributing it to comity. To whom ? 
 To Portugal ? Or to the society of legal systems ? A consi- 
 deration of case (d) will help us to the answer. 
 
 In case (d), as in case (a), the law of England might have 
 said : " Quoad form, I only know that which is prescribed 
 by the Wills Act : quoad capacity, it is nothing to me that 
 the law of Italy allows a will to be made at i8 ;and I am 
 equally indifferent to the law of France : quoad disinheritance 
 of children, I allow it, and the law of Scotland to the con- 
 trary is — not the law for England." As a matter of fact, 
 however, no such course of conduct is adopted, but all the 
 three matters adverted to are treated in England as settled 
 in the manner in which the (territoriaP) law of Scotland would 
 
 ^ Even in Bremer v. Freeman it is the formalities deemed sufficient by the "municipal" 
 law of France which the court enquires for. 
 
 G 2 
 
( 84 ) 
 
 settle them. If this be on the ground of comity to Scotland, 
 i. e., of comity apart from principle, it would be open to the 
 charge of being a want of comity towards France and Italy. 
 The comity which is manifested is, then, a comity towards 
 the society to which the law of England belongs, Comitas 
 gentium. Case {c) makes this even clearer. 
 
 In case {c) English law proceeds on the general principle 
 that a contract is to be construed and governed by reference 
 to the law of the place to which on the whole it belongs. 
 This place it might well decide to be England, and we will 
 suppose that it so decides. This ultimate application of 
 English law can hardly be treated as an act of comity to 
 England ! 
 
 What, now, do we mean by this comity thus displayed 
 by an individual system towards the society to which the 
 individual belongs ? something optional in a given case or 
 something obligatory in general ? We should certainly be 
 inclined to return as an answer that a gentleman is courteous 
 because he always ought to be, and not because, in the par- 
 ticular case, he prefers to be. It will be better, however, to 
 derive our answer from the following considerations. 
 
 T^2)- The cases in which the law of England submits to 
 receive ab extra limitations upon the operation of its rules, 
 are general and not specific cases : that is to say, it generalises 
 the concessions which it makes. It admits, for example, that 
 movable successions are to be regulated by reference to the 
 law of the place where the deceased was (or is to be deemed 
 to have been) permanently settled at his death. This is a 
 rule of conduct for the law of England. Now, when we say 
 that the law of England admits this rule, we cannot but imply 
 that it admits also the propriety of the rule. Historically, the 
 rule was borrowed by administrators of the law of England 
 from continental jurists as part of a recognised external 
 system of LP. L.' The existence, however, of an external 
 
 1 "On the subject of domicil there is so little to be found in our own law that we are 
 obliged to resort to the writings of foreign jurists for the decision of most of the questions 
 that arise concerning it." Per .Sir Thomas Plumer, V.-C, in Polingcr v. Wightman (1817, 
 3 Mer.,p. 79). 
 
( 85 ) 
 
 body of I.P.L. binding on all civilised systems of law has, in 
 later days, been decisively repudiated by English courts,^ and 
 the continued acceptance of the rule of conduct in question 
 (as to movable successions) must be based upon a perception 
 of its merits as an abstractly just rule, or at least upon a 
 recognition that the rule is not sufficiently objectionable to 
 justify a breach of continuity in legal action. Taking this 
 case as typical, we reach, then, the conclusion that the law of 
 England, as one of the society of territorial systems of law, 
 in submitting to rules which limit its proper activities, does so 
 on principle and not on caprice. Is it necessary to go any 
 further and say that it submits to rules which on the whole 
 it thinks it ought to because it thinks it courteous? This 
 is the way in which the question about comity seems best 
 answered. 
 
 Such cases as case (c) above show that, in addition to 
 comitas gentmm, justice to private individuals is one of the 
 bases of the international system received in England. 
 
 34. In the preceding paragraphs the rules of conduct 
 thus recognised by the law of England have been treated as 
 quite distinct from the territorial law of England. In justi- 
 fication of this mode of treatment, it is submitted that between 
 the territoriallaw "of England" and the "international law 
 of England," there is a cleavage, historical and fundamental, 
 of a character which precludes their being advantageously 
 conceived as parts of the same system, even if administered 
 in the same courts.^ The latter rules («) were introduced into 
 
 ' "The phrase Private International law is liable to be misunderstood. It is a convenient 
 expression for such rules as in the jurisprudence of most civilised nations are applied ex comitate 
 to the solution of questions depending on foreign status, foreign laws, or foreign contracts. 
 But no law, \sm.&-a% propria vigore upon any independent State, can be established by gene- 
 ralisation from the jurisprudence of other nations." Per Selborne, L.C., in L. R., 10 
 App. Cas., p. 513. 
 
 ^ Cf. Jitta, in Archiv fiir offentUckes Recht, Vol. 14, pp. 308-9 : — "Suppose a contract 
 made in Germany between two Germans domiciled in Germany, and that the object of the 
 contract and the place of performance are in Germany. This is a relation purely of national 
 law. Now suppose that the validity, contents, and operation of this contract come before a 
 Dutch court, as may well be the case in (say) bankruptcy proceedings. For the Dutch judge 
 the relation is no longer a national but an international one. What is altered ? No single 
 element of the relation. What is altered is the standpoint of the observer .... A relation 
 
( 86 ) 
 
 England, as universal rules, on the authority of Italians, 
 Dutchmen, Frenchmen, &c., whose authority in a matter of 
 municipal English law would be nil ; {b) they relate to the 
 conduct of English law, not only or mainly towards its 
 justiciables, but also towards external legal equals. Thus 
 much may be pardoned as a justification of the use of the 
 old phrase, " Private International Law." 
 
 35. Let us turn for a moment to the alternative theories. 
 According to one of them, all rules acted on in an English 
 (French, Italian, etc.) court are rules of municipal English 
 (French, Italian, etc.) law. The law of England (France, 
 Italy, etc.) consists, so it is sometimes said, of two great 
 departments, the one being the internal law, and the other its 
 rules of competence. The plea set out in the preceding 
 paragraph is the only material plea which can be urged 
 against this doctrine ; but, in addition — though the matter -is 
 but verbal — it may be pointed out that when the phrase "law 
 of England" (France, Italy, etc.) has to do the double duty 
 which the theory requires, a confusion is created which is 
 certainly inconvenient and inelegant, and which may be 
 dangerous. The inconvenience and the inelegance are that 
 
 can then be national or international, according as it falls to be dealt with in accordance 
 with the legal claims of the narrower or wider commvtnity. " 
 
 Such a law as Lord Kingsdown's Act may show that it is difficult to draw the dividing- 
 line between internal and international law, but the broad distinction remains and its 
 existence is attested by numerous dicta of English judges. See, e.g., the footnotes to 
 pp. 95 and 102 herein. There are also numerous dicta which seem to speak of internal and 
 international rules as welded into one, but they can be explained as meaning that the two 
 are administered in the same courts. Thus we have a strong utterance, as follows : — 
 
 " It is all very well to say that International law is one and indivisible, of which we take 
 judicial notice ; but we cannot be ignorant of the fact that various civilised countries take 
 different views of it ; and are we to say that the Scotch Court is wrong because it takes a 
 different view of the application of International law than that which we should take? I 
 think not. This part of the International law as recognised by the Scotch law becomes part 
 of the Scotch law ; and, to my mind, this Court, at all events, is not at liberty to review 
 International law so far as it becomes part of the Scotch law, and which Scotch lavtyers say 
 is Scotch law. The fact is of course notorious to us all, that if anybody studies Private 
 International law out of a French law-book, he takes one view of it ; and if he takes a 
 German law-book he takes another view. They do not all take the same view.'' Per 
 Lindley, L.J., in L. R. (1892, i Ch., p. 226). 
 
 Yet the separate existence of the two bodies of rules is implied in the passage which 
 precedes that cited. It runs, " The court of Louisiana decided the question of title to the 
 English ship, not by English or international law or anything of that sort, but by their ow n 
 law, .... throwing over international law." 
 
( 87 ), 
 
 we may have to say, in this or that case, that the law of 
 England is that the law of England does not apply. The 
 danger is one closely connected with the subject of this 
 pamphlet. The law of (say) England, in compliance with 
 I.P.L., refers a certain matter (say the validity of a marriage) 
 to the law of (say) Italy! If the phrase "law of Italy" is 
 susceptible of meaning both the internal, territorial law of 
 Italy and also this law plus the Italian rules of I.P.L., it is, 
 at any rate verbally, possible to allege that the reference 
 made by the English law is to the law of Italy in this latter 
 sense, i. e., in its totality. Reasons will shordy be given, 
 however, to show that the law to which the English law 
 meant to make the reference was the territorial law of Italy. 
 It is the possibility of this confusion which constitutes the 
 danger mentioned above. 
 
 36. The theory examined in the preceding paragraph 
 may breed confusion ; that which next comes before us may 
 breed confusion worse confounded. According to this theory^ 
 the territorial law of (say) England and the rules of I.P.L. to 
 which the activities of that law are subject, are so wedded 
 that the territorial law cannot be stated except in terms of 
 its rules of competence. Thus, to say that, by the law of 
 England, testamentary capacity quoad mobilia is acquired at 
 21, is, according to this theory, inaccurate and meaningless : 
 the proper statement should be "By the law of England 
 ' ' testamentary capacity quoad mobilia is acquired at 2 1 in 
 " the case of persons domiciled in England." Similarly, when 
 the Italian Code (Art. 763) declares those persons to be inca- 
 pable of will-making who have not completed their eighteenth 
 year, it is insisted that the true statement of the law of Italy 
 would be "■Political subjects of Italy are incapable of testa- 
 " tion unless they have completed their eighteenth year"; 
 and, in the corresponding provision of the French Code, the 
 advocates of this theory would mentally interpolate the 
 
 ' At the Hague in 1900 Mr. Westlake based his acceptance of the Renvoi-theory upon, 
 in part, the doctrine here stated. See pp. 59-60, ante. 
 
( 88 ) 
 
 phrase " Political subjects of France and other persons who, 
 " with governmental authorisation, have established a domi- 
 " cil in France." These amplified propositions are perfectly, 
 and insidiously, correct ; there is no canon of either verbal or 
 material logic which defines the stage at which a rule should 
 be so stated as to incorporate the 'exceptions. The insidious 
 character of this doctrine will be more easily shown by the 
 following analogy. 
 
 Let us imagine a number of material bodies, revolving in 
 separate orbits round a central point, each under its own 
 initial impetus : the proper course of each body is, however, 
 let us further imagine, subject to occasional perturbations due 
 to the attraction of the other bodies. It is clear that the 
 motion of any one body may be stated either by reference to 
 its proper orbit, with separate allusion to the perturbations, or 
 in terms of the resultant orbit. Two things must be borne 
 in mind, however : (i) that if for any purposes of calculation 
 the proper motion, alone, has to be considered, the latter 
 form of statement should be avoided ; and (ii) that in calcu- 
 lating the relative positions of the bodies to each other, it will 
 not do to apply at the same time one theory of the nature and 
 intensity of their mutual attractions in the case of one body, 
 and a different theory in the case of another body — a fine 
 mess would otherwise ensue. 
 
 The application of this in the domain of international civil 
 law is obvious : (i) The statement of internal and international 
 law in fusion must not be taken to exclude the possibility 
 of stating internal, territorial law in its individuality — indeed 
 the external lex loci domicilii, lex loci actus, lex loci contractus, 
 may in the vast bulk of cases be neglected, (ii) Unless great 
 care is employed, the mode of statement in question will lead 
 to the contemporaneous admission of conflicting laws of 
 perturbation. The following example will illustrate that 
 fallacy in operation : A question comes before an English 
 court with regard to the testamentary capacity of a British 
 subject who has died domiciled in Italy. The rules of I.P.L. 
 received in England— and let us note in passing that they 
 
( 89 ) 
 
 have to be stated apart from thq Internal law — refer the 
 matter to the law of Italy. The law of Italy, if we mean 
 thereby the blended law of the theory under discussion, con- 
 tains 6ne rule only of testamentary capacity, and that one 
 rule relates to Italian subjects alone. How is the English 
 judge to extricate himself? If he thinks to do so by applying 
 the law of England, he finds that it relates only to persons 
 domiciled in England. The impasse is the analogue of the 
 mathematical mess hinted at above and is due to the 
 same cause, the contemporaneous application of inconsistent 
 principles. If — as must be the case in an English forum — 
 international law as conceived in England is applied, no other 
 conception thereof is subsequently admissible. The danger, 
 then, of stating English municipal law in terms of its Inter- 
 national law is that we should, in the same case, and in an 
 English forum, state the municipal law of a foreign system in 
 terms of its International law, even when that International 
 law is at variance with our own.^ 
 
 2)"]. More important for our present purpose than the 
 question of the jural basis and character of the rules of 
 effacement accepted by the law of England, is the form 
 traditionally assumed by the more fundamental of these rules. ^ 
 With unvarying uniformity they call attention to some fact 
 connected with the local area of some foreign law, and 
 declare that law to be applicable because it is the law of 
 the area with which that fact is locally connected. Thus, 
 when the rule in question relates to testamentary-capacity, 
 
 1 The writer is here only restating what he conceives to be the traditional doctrine of 
 English law. He is not attempting the impossible task of impugning the logic of the 
 alternative doctrine. 
 
 ^ It is possible to find quite modern affirmations of the rules in their original shape. See, 
 e.g., " Unicum hoc ipsa rei natura ac necessitas invexit ut cum de statu et conditione 
 hominum quteritur, uni solummodo Judici, et quidem Domicilii, universum in ilia {sc. causa) 
 jus sit attributum," Rodenburg (De staf. divers., I, iii, 4) : cited with approval by Lord 
 Westbury, in Shaw v. Gould {1&68, L. R., 3 H. L., p. 83), and by Lord Watson, delivering 
 the judgment of the Judicial Committee in Le Mesuricr v. Le Mesurier ( 1895, A. C. , p. S38). 
 (i) C'est ainsi que la majoriU et la minoriti du domicile ont lieu partout meme pour les biens 
 situes ailleurs (Boullenois). (ii) Quoties in quasstione an quis minor vel majorennis sit, 
 obtinuit id dijudicandum esse ex lege domicilii ; sit ut in loco domicilii minoremiis, tibiqtie 
 terrarum pro tali habetidiis sit, et contra. (J. Voet.) Quoted, without dissent, by Lord 
 Halsbury, L.T., in Cooper v. Cooper {1888, L. R., 13 A. C, at p. 99). 
 
( 90 ) 
 
 it emphasises the fact thaj; the testator is permanently settled 
 in a foreign legal-area and on that ground pronounces that 
 the law of that foreign area (lex loci domicilii) is the proper 
 law to decide the question ; the implication is that there is an 
 intimate connexion in space between the salient fact and the 
 proper law to deal with it. This law can be no other than 
 the territorial law of the area in which the fact, so to say, 
 resides.^ The rule, again, which declares that the lex loci 
 actus is the law competent to determine the formalities of 
 (say) a marriage -ceremony, suggests a similarly intimate 
 connexion between an act on a given territory and a 
 territorial law. 
 
 It may be added that by aid of the maxim, Expressio 
 tmius exclusio altej%is, we may discover from these rules 
 what facts, local to a foreign legal area, are not deemed 
 adequate on which to found a self-denying ordinance on the 
 part of the English law. Of these eloquent silences the most 
 significant is that with regard to political allegiance : the fact 
 that a given person is politically connected with the area 
 which is the seat of a foreign legal system, is not recognised 
 as a reason for applying to him that legal system, save in 
 certain exceptional cases. ^ The English doctrines of I.P.L. 
 admit, indeed, that a person can be attached to that foreign 
 area in such a way as that the law of that area may exclude 
 all others in determining, e.g., his personal status, but that 
 tie is the tie of Domicil and not the tie of Domicil-with- 
 governmental-authorisation or the tie of Nationality. 
 
 38. When, then, upon any given occasion a rule of 
 I.P.L. operates in England, the situation involves a number 
 of elements, the sequence of which may be stated as follows : 
 
 1 ' ' What is really necessary is that the father should at the time of the birth of the child 
 be domiciled in a country allowing legitimation.^^ Per Cotton, L.J., in hi re Grove {1S88, 
 L. R., 40 C. D., p. 232). This clearly refers to the territorial law of the country and not to 
 the law which would, there, be applied in the particular case. 
 
 " The object of the law in searching for and ascertaining a man's domicil is to 
 ascei:i3.m the particular Mmticipal law\>yw\azh his private rights are regulated and defined." 
 Per Chitty, ]., In re Craignish (1892, 3 Ch., at p. 189). 
 
 ■■' Note that the traditional doctrine as to domicil was received in England for use 
 within the British confederation as well as outside, and at a time when British nationality 
 was indelible. 
 
( 91 ) 
 
 1. The co-existence of a number of territorial systems of 
 
 law side by side with that of England, e.g., the law 
 of France. 
 
 2. The presence upon one of the non-English legal areas 
 
 of a fact, e.g., domicil of AB in France. 
 
 3. The admission that the spatial connexion between the 
 
 fact and the legal area is of such a character as to 
 demand or justify the application of the law of that 
 area to the whole or part of a problem calling for legal 
 appreciation, e.g., the distribution of AB's goods on 
 his death. 
 
 4. The existence of a rule of that local law dealing with 
 
 the class of problem in question, i. e., the territorial 
 French rules of post-mortuary distribution of goods. 
 
 5. The application by the English law to the movable 
 
 succession of AB of these local rules. 
 
 The above enumeration has been made in order, at the 
 risk of tedium, to fix the reader's attention upon the fact that 
 before any reference is made to a foreign law there must exist 
 a fact connected in a determinate manner with a foreign 
 legal area. The kind of fact and the degree of connexion 
 required are not for the foreign law to declare, for it has not 
 yet been invoked ; they are to be declared by International 
 law as interpreted by the law of England. When the law 
 of England is satisfied that the fact resides in the pre-deter- 
 mined manner upon the foreign soil, then for the first time the 
 law of that foreign soil comes upon the scene. To take the 
 example last employed : AB's domicil upon French soil is, 
 upon the English conception of International law, sufficient 
 to cause the law of the French soil to apply to his movable 
 succession. It is not necessary that he should live in a 
 chateau, or possess any goods in France, or have been 
 authorised by the French Government to acquire a domicil 
 in France : no English rule attributes any significance to 
 these things. The only essential matter is the fact which in 
 
( 92 ) 
 
 English legal phrase is summarised as "domicil in France." 
 If AB was, at death, "domiciled" {sensu Anglicano) in France, 
 his movable succession will be regulated according to the 
 rules which French law would apply to a movable succession 
 which it deemed governed by F"rench law. In the given case, 
 if AB had not obtained a governmental authorisation to settle 
 in France, French law "in its totality" — including,^ i.e., its 
 rules of I.P.L. — would not deem his movable succession to be 
 governable by the " territorial law " of France ; this is, how- 
 ever, immaterial in this case and for the following reasons, 
 (i) It is for the English court, interpreting or stating the rules 
 of I.P.L., to say what fact is adequate to justify the given 
 reference to French law ; this implies that it is not for French 
 law to pronounce upon the adequacy in question, i. e., all 
 French rules as to I.P.L. are excluded, (ii) When English 
 law, declaring domicil to be, in its eyes, an adequate tie 
 between person and territory for the purposes of the inter- 
 national law of inheritance, is silent about other special 
 ties {e.g., domicil authorised by government), it impliedly 
 excludes them, and the exclusion is final. 
 
 The ultimate cause of the application of French law to 
 AB's movable succession is the English rules of I.P.L. ; the 
 proximate cause is the relation of domicil between AB's 
 person and French soil. French law is not invited to say 
 whether, upon its own principles, it ought or ought not to 
 apply, at any rate so far as this depends on questions of legal 
 space ; it is only invited to say, upon the assumption that 
 all questions of legal space have been settled in favour of its 
 application, how it would distribute the goods in question. 
 
 If AB were a Roman Catholic and French successory 
 law (like the Austrian law of Divorce) contained separate 
 provisions for Roman Catholics, this, being an internal French 
 rule, would be recognised in England.^ Even this, however, 
 
 1 What if the rule simply declared that the successoiy law of the Code Civil was not to 
 apply to such a case, without saying what law was to apply? On jirinciple, and having 
 regard to the reasons at the bottom of the selection of the lex domicilii, it would seem that 
 the prohibition should be neglected. 
 
( 93 ) 
 
 might be challengeable if the case of Roman CathoHcs was 
 by French law referred to the law of some non- French legal 
 area, for_ this might be construed as the reintroduction of 
 those juridico-spatial considerations which ex hypothesi have 
 been eliminated. This extreme suggestion serves the practical 
 purpose of showing that, in the solution of a problem like 
 that relating to AB's inheritance, no regard is to be paid to 
 those principles of foreign law which, beyond doubt, are based 
 upon considerations relating to legal space. This means the 
 exclusion of all foreign doctrines which are in substance 
 doctrines of I.P.L. or rules of competence in space. 
 
 It remains to add, in order to give actuality to these 
 speculations, that a principle which purports to control the 
 operation of a law by reference to nationality or to autho- 
 rised-domicil is a principle of the kind referred to, in the last 
 sentence but one, as " based on considerations relating to 
 legal space." This is as obvious in the case of nationality 
 as in the case of authorised-domicil, and needs no demon- 
 stration beyond that which is contained in the statements 
 that sovereignty is territorial, and that the legal areas for the 
 purposes of public law and the legal areas for the purposes 
 of private law, either alone or in groups, are in the nature of 
 things identical. The Italy which is the seat of the law 
 of Italy, and the Italy to which a person may be bound by 
 such a tie as to constitute him an Italian, are the same Italy 
 and, for fundamental reasons of legal philosophy, must be. 
 And when, as sometimes happens, continental lawyers 
 have to say what is the national law of a given British 
 subject, they, failing to find a civil system which can be 
 called the British, adopt, as his LNat, the law of that legal 
 area within the British Empire with which the British subject 
 in question is most connected.^ 
 
 ^ See, e.g., Clunet, 1901, p. 905 : a Spanish court dealing with the succession of a sujet 
 icossais, domiciled at Barcelona, referred in the first instance to the Scottish law as the law 
 of his nationality. Spanish law determines internal Spanish nationality by reference to the 
 Spanish province of origin. See Bartin, Rev. de Dr. Int., Vol. XXX, pp. 296-7. In In re 
 Johnson the judge arrived at the conclusion that the law of the domicil of origin was, in the 
 case of the British subject in question, to be taken as the law of the nationality : query, 
 whether he would have looked to the law of an actually existent domicil of choice within the 
 British Empire, had there been a domicil of choice. 
 
( 94 ) 
 
 39- When English law, then, refers a matter to a 
 foreign law, the matter is referred to that foreign law con- 
 sidered as strictly territorial, in exclusion of the " inter- 
 national " rules adopted by that foreign law. That such 
 a notionaP reference may be a reference of a strictly 
 limited character is not only conceivable in theory but is 
 necessary in practice. If, e.g., the matter related to property 
 in England, the reference to a foreign law would be made 
 with the reserve that the English pronouncement on the 
 question whether the property was movable or immovable 
 was to be final : and in the result that foreign law might be 
 notionally applied in circumstances in which it would itself 
 refuse to apply. This may happen whenever the quality of a 
 legal institute or relation is susceptible of being differently 
 appreciated in different systems. Examples of such differences 
 are the following : consent of parents to a child's marriage 
 is in France a matter groingr to the essential validitv of the 
 marriage ; in England it is treated as a matter of form. The 
 Common law rights of a widow in the property of her deceased 
 husband may from one point of view be considered as part of 
 matrimonial law, from another as part of successory law ; so 
 may the English rule whereby marriage revokes a will. The 
 title by which goods of a deceased who has left no heirs vest 
 in the State, may be variously treated as succession or as 
 occupation (of a res nulliits) or as a naked manifestation of 
 sovereignty. The rule of the law of the Netherlands, which 
 forbids its subjects to make a will in holograph form, may be 
 classified as matter of capacity or as matter of form, and so 
 on. Now, if the law of State A refers to that of State B a 
 question involving an ambiguous element of the character 
 just exemplified, it is obviously justified in making its own 
 solution of the ambiguity a term in the reference. That it 
 not only may, but often must do so, is shown by the following- 
 illustration : suppose a French court to be dealing with a 
 
 1 How completely notional that reference may be is shown by the cases where a foreign 
 law of succession is applied to goods in England, although the deceased left no property 
 within the domicil. See 2 Add., p. 25, approved by Cottenham, L.C., in 4 Myl. & Cr., p. 83. 
 
( 95 ) 
 
 Will made in Italy by a Dutch subject in holograph form ; 
 French law refers matters of capacity to the law of Holland, 
 matters of form to that of Italy: the question whether the rule 
 of Dutch law forbidding Dutch subjects to make holograph 
 wills is one of capacity or one of form, cannot be included in 
 the reference but must be settled by the French law,^ if only 
 because the laws of Italy and of Holland might differ thereon.^ 
 When, then, a reference is made by the law of England, in 
 virtue of its rules of I.P.L., to the law of another system, with 
 which it is in disagreement not as regards the category in 
 which a given legal relation is to be placed but as regards 
 the principles determining the operation of laws in space, 
 there is nothing exceptional in the reference being made with 
 a reserve : the reserve is that all questions concerning the 
 proper law to be applied, so far as considerations of space 
 are concerned, have been settled in the English sense. 
 Indeed, as it is only because of that settlement that the 
 individual foreign system has been selected, English law 
 would stultify, itself if it were to allow the question of space- 
 considerations to be reopened. 
 
 ' The French courts have held the rule to be one of personal capacity, see, e. g., Clunet, 
 1904, p. 166 ; on p. 169 the juridical reasons of this analysis are given. 
 
 ^ A closely analogous question came before the Privy Council in 1892. An action was 
 brought in Canada on a judgment obtained in New York. The Privy Council held that the 
 Canadian court ought to form its own opinion whether the action in New York was penal or 
 not, and that it was not bound by the interpretation put upon New York laws by the courts 
 of New York. 
 
 " Their Lordships cannot assent to the proposition that, in considering whether the 
 present action was penal in such sense as to oust their jurisdiction, the courts of Ontario 
 were bound to pay absolute deference to any interpretation which might have been put upon 
 the (New York) Statute of 1875 in the State of New York. They had to construe and apply 
 an international rule, which is a matter of law entirely within the cognizance of the foreign 
 court whose jurisdiction is invoked. Judicial decisions in the (foreign) State where the 
 cause of action arose are not ]irecedents which must be followed, although the reasoning 
 upon which they are founded must always receive careful consideration, and may be con- 
 clusive. The (British) court appealed to must determine for itself, in the first place, the 
 substance of the right sought to be enforced ; and, in the second place, whether its 
 enforcement would, either directly or indirectly, involve the execution of the penal law of 
 another State. Were any other principle to guide its decision, a court might find itself in 
 the position of giving effect in one case and denying effect in another, to suits of the same 
 character, in consequence of the causes of action having arisen in different countries ; 
 or in the predicament of being constrained to give effect to laws which were, in' its own 
 judgment, strictly penal." /Vr Lord Watson, in giving the judgment of the Privy Council 
 in Huntingdon v. Attrill (1893, A. C, at p. 155). 
 
( 96 ) 
 
 Discords such as those just mentioned, whether they arise, 
 on the one hand, in the analysis of jural conditions and rela- 
 tions, or, on the other hand, in the adjustment thereof under 
 considerations of legal space, are fundamental and irresoluble, 
 and no system can be taxed with want of international comity 
 on the ground of its adherence to its own analysis and its own 
 rules of adjustment. 
 
 40. The rules of LP. L. adopted by one legal system 
 differ sometimes from those adopted by another. Hence 
 two results necessarily follow : (i) a matter is sometimes not 
 referred to a given legal system when that system would 
 deem that it ought to be [e. g., the formal validity of a will 
 made in France by a Frenchman domiciled in England, is, 
 by French law, determined by reference to the law of France, 
 while the English law would determine it by reference to 
 the law of England) ; and (ii) a given matter is sometimes 
 referred to a given legal system when that system would 
 deem that it ought not to be {e.g., the marriage- capacity of 
 a Dane, domiciled in Italy, would in England be determined 
 by reference to the law of Italy, even though the law of 
 Italy desires that the marriage-capacity of a non-Italian shall 
 not be governed by the law of Italy, but by that person's 
 national law). Each of these two results is the natural out- 
 come of the existence of divergent principles of LP. L. ; the 
 former result is accepted as such, but the latter is, by some, 
 regarded as so anomalous as to justify the doctrine that any 
 positive reference to a given system must be a reference to 
 that system "in its totality." Unless (so the objection runs) 
 the rules of I.P.L. adopted by that system be taken into 
 account, its application to any given case may be against its 
 will. Underlying this objection is a radical misconception 
 of what is meant by " referring " to a foreign law — a mis- 
 conception of such importance in connection with the Renvoi- 
 question as to call for some detailed consideration. 
 
 It is axiomatic that one legal system cannot operate as law 
 outside the area ruled by the sovereign in whom it lives and 
 moves and has its being. When it is said that, under the 
 
( 97 ) 
 
 English principles of International law, a matter is " referred 
 to" or is "subject to" a foreign law, or that a foreign law is 
 to "apply," or to be " recognised," the inevitable condensation 
 of phraseology may, for a moment, obscure the fact that no 
 law can operate, as law, in England other than the law of 
 England and (or including) its rules of I.P.L. If a French 
 law penetrates into England, it does so as Fact only, just as 
 a French coin can only penetrate into England as a coin : the 
 foreign coin can only become money by becoming English 
 money pro hac vice, and the foreign law can only be law in 
 England by being (so to say) energised from Fact into Law by 
 the breath of English sovereignty. Thus the law of France 
 admits force majeure as a valid defence in an action for 
 breach of contract, and, if the law of England, holding that a 
 given contract ought by (English) rules of I.P.L. to be 
 governed by the law of France, admits force majeure as a 
 good defence in the particular case, this does not mean that 
 French law, as an activity, is operating in England, or that 
 French law is rendered competent on English soil. On 
 English soil English law is in all cases supreme, omni- 
 competent and exclusively competent. In the exercise of this 
 supremacy and competence it suspends, on occasions, its 
 internal rules and applies its "international " rules ; and when 
 such an occasion arises, it receives as part of the facts upon 
 which it is to make a pronouncement, not only the decisively 
 " foreign " fact which has called for the suspension of its 
 internal law, but also so much of the law of the "foreign " 
 area where that fact resides as actually has been there 
 applied, or is there applicable. This foreign law, whether 
 it takes the applied form of judgment or the pure form 
 of legal proposition, comes into the domain of English 
 law merely as Fact — to be proved and to receive legal 
 appreciation just as other facts. ^ The Will of the foreign 
 sovereign shapes this material, and the English law, in 
 
 ' Cf. per Lord Ellenborough in Potter v. Brown (1804, 5 East, p. 131). "We always 
 import together with their persons the existing relations of foreigners as between them- 
 selves according to the laws of their respective countries." 
 
 " In any case the (insurance) office may have to settle for itself doubtful and com- 
 plicated questions of fact, and there is nothing more in having to ascertain the law of a 
 
 H 
 
( 98 ) 
 
 selecting this material and in withdrawing its own rules in 
 order to make room for it, renders so far a homage to the 
 expression of that will ; but the only will that can receive 
 execution in England is that of the English sovereign. To 
 recur to the example last employed : it is by virtue of the Will 
 of the French lawgiver that force majetire serves as a defence 
 in his law, but the question whether in any particular case 
 the law of England, in compliance with (its) rules of "inter- 
 national " law, shall substitute^ for its own rule on the subject 
 \}s\&fact that the French rule is as stated, does not depend on 
 the Will of the French lawgiver at all. Even if the answer 
 
 foreign country than in having to ascertain whether the assignment was in fact bond fide or 
 for good consideration." Per Wills, J., in Lee v. Abdy{\?&t, 17 Q. B. D., p. 315). 
 
 Cf. also Les/iev. Bai/lie {184.^, 2 Y. & C. C, p. 91). In that case an English testator had be- 
 queathed a legacy to a married woman who was domiciled in Scotland. The husband died 
 shortly after the testator, and the executors of the testator, with full knowledge of the Scotch 
 domicil, subsequently paid the legacy to the widow, and not, as .Scotch law required, to the 
 representatives of the husband. In an action brought in England by these representatives, it 
 was held that the executors were not liable unless they had express notice of the law of Scot- 
 land on the matter. Knight Bruce, V.-C, said, " I view this case as if the married lady, at 
 " the time of her marriage, had, instead of marrying, made an assignment of the legacy ; in 
 " which case, if the executors without notice of the assignment had paid her the legacy, 
 " the payment would have been good " (p. 97). 
 
 In this way English law may itself be Fact and not Law even in England. Let us 
 suppose that an Englishman by nationality dies domiciled in Belgium and intestate, and that 
 he leaves movables in France. It is conceivable that these movables may be distributed in 
 France in accordance with English law as LNat. If so, and if these goods later on find 
 their way into England, they will (so it is submitted) be part of a duly distributed succes- 
 sion, and the English statutes of distribution will be merely part of the facts out of which 
 the successor's right was generated. 
 
 ^ Cf. Lord Brougham's (//rf«« in H.L., sitting asaScotch court: "Great embarrassment 
 may no doubt arise from calling upon a Scotch court to apply the principles of English law to 
 
 such questions Nevertheless this is a difficulty which must of necessity be grappled 
 
 with, because in no other way can the English law be applied to personal property situated 
 locally within the jurisdiction of the .Scottish forum. . . . The Scotch court must inquire 
 
 of the foreign law as a matter of fact But here I think the importing of the foreign 
 
 Code (sometimes incorrectly called the comitas) must stop." Yates v. Thomson (1835, 
 3 CI. & F., at p. 585). 
 
 " I take the rule to be universal that foreigners are in all cases subject to the laws of 
 the country in which they may happen to be ; and, if in any case, when they are out of their 
 own country their rights are regulated and governed by their own laws, I take it to be not 
 by force of those laws themselves, but by the law of the country in which they may be 
 adopting those laws as part of their {sic) own law for the purpose of determining such rights." 
 A?- Turner, V.-C, in Cald-wellv. Van Vlissingen (1851, 9 Hare, p. 427). 
 
 " The law of England may possibly, for the purpose of deciding upon the validity of this 
 script, adopt the law of another country." Per Dr. Lushington, giving the judgment of the 
 Privy Council, in Croker v. The Marquis of Hertford (1835, 4 Moo. P. C, p. 357). 
 
 " It is true that in many cases the Courts of England inquire into and act upon the 
 law of Foreign countries as in the case of a contract entered into in a foreign country, where, 
 by express reference or by necessary implication, the Foreign law is incorporated with the 
 contract, and proof and consideration of the Foreign law, therefore, become necessary to the 
 
(. 99 ) 
 
 be in the affirmative (t. e., if the " proper law " of the contract 
 be held to be French) it will not be as /aw that the French 
 rule will arrive in England ; the Will which initially vivified 
 it will die out of it when it leaves its native area. In no case, 
 then, is it possible to assert that a foreign /aw is made to 
 apply against its will : the law that has a will, i e., the living, 
 dynamic, law, cannot go abroad.^ 
 
 41. It is in support of the doctrine that a reference to a 
 foreign law must be a reference to that law " in its totality," 
 z. e., in support of the Renvoi-theory, that the objector says, 
 " Were it otherwise, a foreign law might be made to operate 
 " against its will." That this objection rests on a miscon- 
 ception has just been shown : it may now be added that what 
 is mistaken for a case of seeming coercion is in reality quite 
 different and lends no support to the Renvoi-theory. Let us 
 imagine that the English law is considering the validity of a 
 
 construction of the contract itself. And as in the case of a collision on an ordinary road in a 
 foreign country, where the rule of the road in force at the place of collision may be a 
 necessary ingredient in the determination of the question by whose fault or negligence the 
 alleged tort was committed. But in these and similar cases the English Court admits the 
 proof of the Foreign law as part of the circumstances attending the execution of the contract, 
 or as one of the facts upon which the existence of the tort, or the right to damages, may 
 depend, and it then applies and enforces its own law so far as it is applicable to the case 
 thus established." 7Vie Halley (1868, L. R., 2 P. C, p. 204). Per Turner, L.J. 
 
 " The English law for certain purposes, of which the present purpose is one, incorpo- 
 rates the local law of -Zanzibar." Per Lord Hobhouse, giving the judgment of the Privy 
 Council, in Sec. State v. Charlesworth (1901, A. C, at p. 385). 
 
 ^ Since the above was in type the writer has found a gratifying corroboration in the 
 following passage written by M. de Vareilles Sommieres in Pev. Crit. de Ligisl. et de 
 Jurispr. 1903, Vol. 31, p. 393, et seq. " Elles {sc. les lois feangeres) n'y commandent 
 mSme qu'on reconnaisse la validite de I'acte et de I'existence des droits qu'il a engendres, 
 car, ce qui le conimande, ce ne sont pas elles, muettes et sans volont^ sur ce point, ce 
 sont des principes de droit naturel qui font corps avec toutes les legislations du monde .... 
 c'est done la legislation meme du pays a la porte duquel frappe le droit ne a I'etranger. 
 
 On le voit, la loi etrangere ne sort pas de son domaine : elle ne commande et n'oblige 
 que chez elle ; elle n'est ob^ie, appliquee que chez elle. Ce n'est pas elle, c'est le droit ne 
 chez elle qui, a I'occasion, p^netre dans les autres Etats et y re9oit une execution extra- 
 territoriale. Ce que nous voyons se produire dans ces Etats, ce ne sont pas les effets d'une 
 loi etrangere, ce sont les effets d'un droit ne d'une vente, d'une donation, d'un testament 
 
 effectue a I'etranger Bien qu'une grand'mere soit assurement pour quelque chose dans 
 
 I'existence de son petit -fils, on ne peut pourtant pas dire que les faits et gestes du petit-fils soient 
 les faits et gestes de I'aieule, et que si celui-la est repu dans un Etat, celle-la y entre avec lui. 
 
 Ce n'est pas ex^cuter une loi que de tenir compte de ses applications passees. 
 
 Nul ne dira que, dans un Etat, une loi abrog^e s'applique encore parce qu'on ne tient pas 
 pour non avenues les applications qu'elle a re9ues dans le passi. On ne peut pas davantage 
 dire qu'une loi Etrangere s'applique dans un Etat parce qu'on respecte les applications qu'elle 
 a regues chez elle." 
 
 H 2 
 
( 100 ) 
 
 will made by a Dane domiciled in Italy, and aged 20 : the 
 decision, if given on traditional lines, will be that his capacity 
 is determined by the testamentary provisions of the law of 
 Italy, and therefore commences at 18. As the Italian code 
 contains a provision that the capacity of non- Italians is to be 
 regulated by their national law (in this case the law of 
 Denmark, which confers testamentary capacity at 21), it 
 might seem as if the law of Italy were made to apply against 
 its will. In the light, however, of what has been said in the 
 preceding paragraph, it is clear that the complaint can only 
 mean that the testamentary provision of the Italian code, 
 having been imported into England, is in England put to uses 
 not contemplated by the law-maker who framed it ; he, it 
 might be said, was legislating for Italian subjects only, non 
 constat that a provision meant also for Danish subjects would 
 have been, materially, the same. Any objection on that 
 ground is, however, clearly for the importer and not for the 
 native manufacturer : it happens, however, that the importer 
 has got exactly what he wanted, /. e., the legal material manu- 
 factured in Italy for home-consumption in determining tes- 
 tamentary capacity. The importer wants just that article 
 because of the considerations local to Italy {e.g., domicil in 
 Italy), which, in the particular case, render it, in his opinion, 
 jurally correct to replace the material provisions of the law 
 of England by those of the law of Italy. 
 
 42. It is sometimes said that I.P.L. systematises the 
 extra-territorial recognition of rights : in so far, however, as 
 this description may suggest that State A never recognises 
 the law of State B except where a right already and actually 
 exists under the law of State B, it is a dangerous description 
 in connexion with the Renvoi-discussion. This conception of 
 I.P.L. would be perfectly satisfactory if all systems adopted 
 the same rules for the solution of the problems of legal space : 
 but, as it is divergencies in that respect which have produced 
 the Renvoi-question, the conception in question may prove 
 misleading. Further, it may be questioned whether, the dis- 
 sonances of international rules being what they are, it is a 
 
( loi ) 
 
 conception of real value to the English lawyer, whose rules of 
 I.P.L. so often lead him to regulate the various elements of a 
 jural relation — Form, Capacity, Substance — each by reference 
 to a different system : in such a state of things the English 
 courts may have to recognise rights which no individual 
 external system has generated. The justification of this, 
 and of the kindred fact that English courts often seem to 
 impute to a foreign system a legal determination which in 
 the actual case that foreign system would not make, is the 
 following consideration : When once a jural relation, or an 
 element therein, is perceived to be outside the dominion of 
 the law of England, it is deemed by English courts to be tn 
 the dominion of International law and not in the dominion 
 of any other legal system} 
 
 If the English courts are dealing with a marriage which 
 was celebrated in France, and if in consequence they apply 
 
 ' It is not of course suggested that all dicta of English judges are consistent with this 
 doctrine. Numerous citations might be made which seem opposed to it, as, e. g. , per Lord 
 Eldon (1824, 8 Sim., p. 314), "If the law of England be such that I ought to apply the law 
 of France, etc.," and the often cited remark of Lord Stowell, in Dalrymple v. Dalrymple 
 (1811, 2 Hagg. Ecc, p. 54):— 
 
 " Being entertained in an English Court, (the cause) must be adjudicated according to 
 the principles of English law applicable to such case. But the only principle applicable to 
 such a case by the law of England is that the validity of Miss G. 's marriage rights must be 
 tried by reference to the laws of the country where, if they exist at all, they had their origin. 
 Having furnished this principle, the law of England withdraws altogether, and leaves the 
 legal question to the exclusive judgment of the law of Scotland." 
 
 It does not, however, unduly strain Lord Stowell's language to interpret it as meaning 
 that the legal situation before the English courts is not one in which a question arises for the 
 cognisance of internal English law as to whether Miss G.'s marriage-rights were duly 
 acquired or as to their character, those legal questions being for the Scotch law, but that the 
 situation before the English courts is one in which duly acquired marriage-rights of a certain 
 character are among the facts of the case. In Doe v. Vardill (1835, 9 Bli., N. S., p. 45 ; 
 2 CI. & F., p. 574) Alexander, L.C.B., took this view of Lord Stowell's dictum. In 
 just the same way, e.g., the facts of the case in Rothschild v. Ctirrie (1841, I Q. B.), 
 included not merely a dislionoured bill, but a dishonoured bill on which notice had been duly 
 given : and this, it is suggested, is what Lord Denman meant when he said (p. 51) : — 
 
 " We are of opinion that the French law regulated the time of giving notice of this 
 dishonour ; and, as the notice was given in due time according to that law, our judgment 
 must be for the plaintiff." 
 
 Cf. also :— 
 
 "I have nothing to do, as I apprehend, with foreign law. I am to administer the 
 English law ; and I apprehend it is now clearly established by a great variety of cases .... 
 that the rule of law is this, that where a person dies intestate, his personal estate is to be 
 administered according to the law of the country in which he was dpmiciled at the time of 
 
( I02 ) 
 
 French rules as to the requisite formahties, it is not correct to 
 say that the formal element of this marriage is deemed by the 
 English courts to belong to French jurisdiction — it belongs 
 to the International area, and it is in obedience to its rules 
 of I.P.L. that the English court admits proof that the inter- 
 national requirements as to form have been complied with. 
 Not even when every element of the marriage is French, 
 and valid by French law, is it correct to say that a French 
 marriage as such is recognised in England as a marriage. 
 The only marriages which are recognised in England are 
 those which are valid by English or by international law : 
 English courts no more admit that a given marriage is valid 
 merely because French law says so, than they give execution 
 to a French decree of divorce when they admit that each of 
 the parties to the dissolved marriage can marry again. Both 
 the marriage while it existed and the divorce are merely data, 
 of French origin: I.P.L. will tell the English judge whether 
 the data are material or immaterial.^ 
 
 his death, whether he was a British subject or not." Per Shadwell, V. -C, in Price v. 
 Dewhurst (1837, 8 Sim., p. 299). 
 
 " The Court of Session appears to have taken a very correct view of the international 
 law upon the subject in considering the law of the country where the debt is contracted, as 
 furnishing the rule by which the nature and extent of the obligation are to be tried." Per 
 Cottenham, L.C., in Fergusson v. Fyfe (1841, 8 CI. & F., at p. 140). 
 
 "It is not, however, correct to say that, with regard to the distribution of personal 
 property, the law of England gives way to the law of a foreign country ; but that it is part 
 of the law of England thai personal property should be distributed according to the jtts 
 domicilii." Per Abbott, C.J. (1826, 5 B. & C. 451), cited with approval by Page 
 Wood, V.-C, in Campbell y. Beaufoy (1859, Johns., p. 326). 
 
 ^ By International law, as recognised in this country, those children are legitimate 
 whose legitimacy is established by the law of the father's domicil." Per Kay, J., in In re 
 Andros (1883, 24 C. D., p. 642). The operative law is here International law : the 
 materials only are supplied by the foreign law. 
 
 ' " In order to sustain the competency of the present suit, it is necessary for the appellant 
 to show that the jurisdiction assumed by the district judge of Matava was derived either from 
 some recognised principle of the general law of nations or from some domestic rule of the 
 Roman Dutch law. If either of these points were established, the jurisdiction of the District 
 court would be placed beyond question ; but the effect of its decree divorcing the spouses 
 would not in each case be the same. When the jurisdiction of the court is exercised 
 according to the rules of International law, as in the case where the parties have their 
 domicil within its forum, its decree dissolving their marriage ought to be respected by the 
 
 tribunals of every civilised country On the other hand a decree of divorce 
 
 a vinculo, pronounced by a court whose jurisdiction is solely derived from some rule of 
 municipal law peculiar to its forum, cannot, when it trenches upon the interest of any other 
 country to whose tribunals the spouses were amenable, claim extra-territorial authority." 
 Per Lord Watson, in giving the judgmenl of the Privy Council, in Le Mcsurier v. Le MesuHcr 
 (1895, A. C, p. 527). 
 
( I03 ) 
 
 When once an element in a jural situation has been 
 ascertained to be non- English, the English law refers it to a 
 theoretical International law : this fact is of some importance 
 if only to meet the reproach sometimes addressed to us that 
 our system "considers all the laws and statutes of the world 
 as an appendix to our local law." Not so : when a legal 
 element is outside our own competence we purport to refer it 
 to a universal system, a system to which our own law and 
 other laws are assumed to do equal homage, and in obedience 
 to which, indeed, we make the initial admission that the 
 element in question is outside our competence. In this 
 system the very rule which tells us that the matter does not 
 belong to us, tells us to whom it does belong — and we obey 
 the system. It is a system which has descended to us from 
 a time when its fundamental assumption of universality was a 
 tenahxle assumption, and it works : those are its credentials. 
 That it is not a system which would be inaugurated de novo 
 may be admitted ; but it seems equally clear that its scientific 
 defects are not curable by a wholesale admission of the 
 Renvoi-theory. For the English law to accept a Renvoi to 
 itself, in the proper sense of the word " Renvoi," would be to 
 commit logical suicide, since it would mean the abrogation 
 of a rule, founded on considerations of comity and justice, at 
 the bidding of a foreign law whose sole claim to be heard 
 rests upon the rule itself : and for the English law to accept 
 a Renvoi to itself on the principle of ddsistement would mean 
 that the more extended became the divergence between 
 English and foreign rules of I.P.L., so much the oftener 
 would internal English law be applied to matters which it 
 believes outside its competence. 
 
 43. In order to meet the objection that English law, if 
 it refuses the Renvoi-doctrine may be applying a foreign law 
 against the will of that law, it has been shown in the fore- 
 going pages (i) that principles of territorial sovereignty 
 prevent a foreign law from operating as law in England, 
 and (2) that any seeming coercion of the foreign system 
 is applied not in the name of English but of International 
 
( i04^ ) 
 
 law ; each proposition supports the doctrine that foreign 
 law takes the shape of Fact when it comes before an 
 English court. This doctrine may now be fortified by- 
 other considerations derived from the actual working of the 
 English system. Of these, the most suggestive is, perhaps, 
 that which relates to the operation in England of a foreign 
 judgment.^ A judgment rendered by the competent foreign 
 court has no effect, as such, in England ; but it is held 
 to generate in England an obligation, quasi ex contractu, or, 
 as it is sometimes put, a contract implied in the (English) 
 law, though even this obligation may conceivably be dis- 
 placed when it comes before the scrutiny of an English court. 
 The judgment evidently comes into England as a fact alone.^ 
 When, however, the foreign law which the English rules of 
 LP. L. indicate as the proper law to govern any given matter, 
 has not rendered a judgment thereon, the English law inc^uires 
 for the materials upon which it presumes that a judgment, 
 had there been one, would have been rendered.^ Arguing a 
 fortiori from the case where a judgment has been rendered, 
 we see that these materials also are inquired for, not as 
 
 ' "We think that .... the true principle on which the judgments of foreign 
 tribunals are enforced in England is that stated by Parke, B., in Russell v. Smyth, 9 M. 
 & W. 819, . . . that the judgment of a Court of competent jurisdiction over the defendant 
 imposes a duty or obligation on the defendant to pay the sum for which judgment is given, 
 which the Courts in this country are bound to enforce ; and consequently that anything which 
 negatives that duty, or forms a legal excuse for not performing it, is a defence to the action." 
 Per Blackburn, J., Schibsby v. Westenhoh (1870, L. R., 6 Q. B., at p. 159). 
 
 ^ Note that the English court will sometimes recognise a right arising from a foreign 
 judgment even when the foreign law in question would not do so. See Pemberton v. 
 Hughes (1899, 1 Ch., p. 790). 
 
 ^ " No principle can be better established than that the administration of the personal 
 estate of a deceased person belongs exclusively to the country in which he is domiciled at his 
 death. The Courts of that country must decide who is entitled, and from their decision there 
 can be no appeal. It does not always happen, as is the case here, that the claim of the 
 party litigating in our Courts has been actually raised and decided in the Courts of the 
 country of the domicil. It is, therefore, often matter of necessity that our Courts should 
 receive evidence from learned foreigners as to what the law of the domicil is. Such evidence 
 is in general far from satisfactory, but it often happens that no better evidence can be 
 obtained, and then the Courts here must ascertain, from conflicting testimony, as well as 
 they can, what the law is on which they must act. But here we are left in no doubt. The 
 title of the respondent has been fully adjudicated upon by the Courts of his domicil after 
 long and careful consideration, and by their decision we are bound." Per Lord Cranworth, 
 Doglioni V. Crispin (1S66, L. R., I H. L., p. 314), cited with approval by Stirling, J., in 
 /« re Trufort, supra. 
 
( ^05 ) 
 
 law but as fact. And just as a foreign judgment is not 
 allowed an indiscriminate effectiveness in England, so also the 
 materials gathered from the foreign law are subjected to the 
 tests of English legal principle : in other words, an English 
 pidge, applying foreign law, does not necessarily apply it 
 as the judge of its native area woidd. This is illustrated 
 by such a case as Lynch v. The Provisional Government of 
 Paraguay, (1871), L. R., 2 P. & M., p. 268. That case 
 related to the succession of a person who had died domiciled 
 in Paraguay. After his death a local law was passed, de- 
 claring his property forfeited to the State. The English 
 judge refused to distribute his English movables in the same 
 way in which the judge of Paraguay would have distributed 
 his movables in Paraguay, but declared that the law which 
 was applicable was the law of Paraguay as it stood at the 
 time of the death of the. deceased — a law which at the time 
 when it was actually enforced was, as regards the particular 
 case, mere jural material of the same character as the XII 
 Tables. 
 
 That the English judge, in applying foreign law at the 
 bidding of his rules of I.P.L., does not place himself abso- 
 lutely in the same position as the judge of its native area 
 occupies, is also shown by those numerous cases in which 
 English conceptions of public policy^ and of private justice^ 
 have been held to prevent the recognition in England of 
 rights duly acquired under a competent foreign system. The 
 same thing is further shown by considerations dealt with on 
 pp. 94-5 and 53-4 of this pamphlet: viz., (i) the English judge 
 must make his own final determination as to the legal quality 
 of a jural element; must, e.g., say finally whether a given item 
 of property is to be considered movable or immovable; it may 
 be that, decreeing it to be movable, he will apply to it a 
 foreign law which itself would deem it immovable, (ii) As 
 the English rules of I P. L. often split up a jural relation into 
 elements to each of which it applies the law of a different 
 
 1 See, e.g., Hope v. Hope (1856, 8 de G., M. and G., p. 731). 
 
 2 See, e. g., Kaufman v. Gerson (1904, i K. B., p. 591). 
 
( io6 ) 
 
 country, this will mean that a foreign law is often utilised to 
 produce an ultimate result of which that foreign law would 
 disapprove. While, then, from the standpoint of English law, 
 foreign law in general is Fact, and while certain foreign 
 law, indicated, as occasion arises, by International law, is 
 Fact of a most compelling character in the generation of 
 rights under the English law, ' even this favoured law is 
 not unconditionally received in England. Rights, duly 
 existing under a foreign law which is the proper law in 
 a given case, do not merely by virtue of their existence as 
 foreign rights obtain recognition in England : ^ a jural 
 appreciation on the part of the English law actually or 
 constructively intervenes. If, then, that scrutiny discloses 
 that the foreign law is implicated with " international " 
 principles which are repudiated by English law, those 
 principles must be eliminated in the English court. The 
 pjdimim mobile of the situation is not the existence of a 
 foreign right, but the presence of a fact deemed by I.P.L., as 
 understood in England, to be so decisively foreign as to 
 demand that the English law should withdraw — what? Not 
 its living self, but the prima facie applicability of its own 
 material provisions. Logic, accordingly, demands that what 
 it substitutes therefor should be something of the same order, 
 i. e., the material provisions of the foreign law. This will 
 usually result in what may loosely be called the recognition by 
 English law of foreign rights and foreign legal determinations. 
 If this is not the result, the reason will be that the foreig-n 
 
 1 See, e. g. , Shaw v. Gotild {1868, L. R. , 3 H. L. , p. 55). X Y was validly married under 
 the law of Scotland, where for many years he was domiciled and where the children of the 
 marriage were born. The English court held the children to be illegitimate, because it held 
 that an earlier marriage of XY, contracted in England, was, according to English principles, 
 not dissolved by a Scotch decree of divorce, valid in Scotland. 
 
 A further and regrettable illustration is furnished by the doctrine, established in defiance of 
 the great authority of Sir R. Phillimore (see his views in L. R., ii Ad. & E., pp. 5, g, etc.), 
 that English courts will not recognise rights based on acts which are actionable torts In the 
 foreign country where they are committed unless those acts are also actionable by English law. 
 
 The same thing may be said of the even more regrettable rules adopted in England with 
 regard to legitimation of a bastard by subsequent intermarriage of its parents : as the father 
 must be domiciled at the time both of the child's birth and of the marriage in a jurisdiction 
 which recognises such subsequent legitimation, the concurrence of two foreign systems may 
 be called for though each might deem itself competent alone. 
 
( 107 ) 
 
 law has adopted " international " rules which differ from those 
 recognised in England : in that case three courses are open 
 to the English law : (i) it may sacrifice its conception of 
 LP. L. to that of the Foreign law ; or (ii) it may adhere thereto 
 at the cost of applying the material provisions of a foreign 
 law in circumstances in which that foreign law would itself 
 not do so ; or (iii) it may attempt the elaboration of an 
 entirely new branch of law, that designed to regulate the 
 conflict, not of internal rules, but of rules of conflict. Of 
 these courses (i) is impossible, (ii) accords with the general 
 English idea that in law certainty outweighs many defects in 
 theory, (iii) is that which is preferred by Renvoi-adherents. 
 
( ip8 ) 
 
 VIII. 
 
 44. The preceding pages contain a statement of the 
 fundamental doctrines of English law concerning I.P.L., 
 which, if correct only in its main features, will show that the 
 Renvoi-theory is inconsistent with those doctrines. It re- 
 mains to consider the relation to general principles of the 
 special cases set out on pp. 9 to 18, in which the English 
 courts have more or less directly dealt with the matter. 
 
 There are twelve of these cases and all of them relate 
 to one department of law only, i. e., that of post-mortuary 
 succession to movables. Of the twelve, two are unfavourable 
 to the Renvoi-theory, namely, the cases of Bianchi and Abd- 
 id-Messih, but in each of these cases the pronouncement 
 unfavourable to Renvoi was an obiter dictum. In eight of 
 the remaining ten the question was as to the formal validity 
 in an English court of a will made in English form by a 
 British subject of English origin, and in seven of the eight 
 the will was allowed to be valid. These cases, in this one 
 province of the legal area, contain dicta or decisions consistent 
 with those demanded by the adherents of the Renvoi-theory, 
 but their importance would be grossly exaggerated if it were 
 imagined that in any of them the judge was consciously sup- 
 porting the theory ; with the exception of the last {^Brown- 
 Sdqiiard, 1894), they were decided before the Renvoi-theory 
 was born. Further, two of these eight cases may be ignored. 
 No. 2 [Maltass) contains a dictum which is an echo of the 
 judgment in Collier v. Rivaz, but its facts are not Renvoi facts. 
 The other case which may be ignored is No. 8 {Lacroix) : 
 decided on an ex parte application, it merely shows how ac- 
 commodating a judge will sometimes be rather than declare 
 a will to be void in point of form : the dictum of Lord Watson 
 
( 109 ) 
 
 in No. lo {Abd-ul-Messih), given on p. i8 hereof, finally 
 disposes of it. Six cases remain, Collier v. Rivas, Frere 
 V. Frere, Bremer v. Freeman, Crookenden v. Fitller, Laneu- 
 vtlle V. Anderson, and In re Brown-S^quard : in all these, 
 except Bremer v. Freeman, a will not executed in accord- 
 ance with the forms required by the internal LDom., to 
 which the English rule referred the matter, was admitted 
 to probate on the ground that it would have been considered 
 formally valid by the tribunals of the domicil, either as com- 
 plying with the requirements of LNat. or with those of 
 LActus. It is at least arguable that these cases simply decide 
 that the international rule adopted in England with regard to 
 the formalities of a will of movables, is a facultative rule, a 
 rule which allows alternatives, as (in the opinion of many 
 theorists) every rule of form ought to be. At the time when 
 most of these cases were before the courts it was far 
 from settled that the LDom. regulated the formalities of a 
 will of movables : a reference to the Parliamentary debates 
 of the year 1861, upon the Bills which became Lord Kings- 
 down's Act and the Domicil Act, will show that many eminent 
 lawyers were opposed to that doctrine. The decisions in 
 question broke in on no settled rule. They cannot be em- 
 ployed to base with certainty the general doctrine that an 
 English court, in referring any matter to the law of a 
 foreign country, means to submit it to the rules of I.P.L. 
 adopted there, unless it be shown that in the cases here 
 discussed the will would have been held in England to 
 be void, even if conforming to the internal law of the 
 country in qziestion, had it been invalid in point of form 
 under the rules of I.P.L. adopted there. For this there is 
 no warrant and it is highly improbable. Can it be imagined, 
 on the warrant of these cases relating to Form, that if an 
 English subject domiciled in Italy made a will at 20, an age 
 at which by the Ital. LDom. he possesses testamentary 
 capacity, the English courts would, nevertheless, hold the 
 will void on the ground that the Ital. LDom., referring to 
 the English Wills Act as part of LNat., really required a 
 
( "0 ) 
 
 testator to be at least 2 1 ? Does not this illustration show 
 that these cases in which a will is liberally treated in regard 
 of the requisite formalities, stand by themselves and are quite 
 special cases ? ^ 
 
 Undoubtedly, the dictum in Collier v. Rivaz, echoed in 
 Maltass case, and the inference (see p. 13) which may be 
 drawn from Lord Wensleydale's judgment in Bremer v. 
 Freeman, go farther than the suggestion of the preceding 
 paragraph. But before it can be admitted that they furnish 
 any justification for the application of the Renvoi doctrine to 
 the material as opposed to the formal branches of the law of 
 succession, their value must be estimated in the light of the 
 general principles of I.P.L. as conceived in England. And 
 even (which the writer doubts) if they survive this test, it 
 would be a bold thing to declare, on the authority of a few 
 unsupported probate cases, that when English law refers any 
 jural relation, whether in the domain of movable succession 
 or not, to a foreign law, the reference is to the law which the 
 foreign judge would apply to the particular case. 
 
 This is, however, the declaration which Mr. Dicey seems 
 to make (see p. 22, ante). That one of the three cases on 
 which he relies should be that of Lacroix, shows the doubtful 
 character of the ground on which he stands : the other two 
 are Collier v. Rivaz and Pechell v. Hilderley, hardly adequate 
 warrant for a doctrine so cataclysmic. 
 
 It will be remembered that there is another doctrine, for 
 which both Mr. Westlake and Mr. Dicey stand sponsors, rely- 
 ing on certain of the cases now under consideration, namely, 
 that no effect will be allowed in an English court to the ac- 
 quisition of a foreign domicil, except such effect as is allowed 
 by the law of the domicil (see pp. 21 and 23, ante) : the rela- 
 tion of this doctrine to the Renvoi-theory, in the desistement 
 shape, is clear. Mr. Westlake and Mr. Dicey both cite as 
 authority for it Collier v. Rivaz, Brevier v. Freeman, and 
 
 1 Cf. the latitude in point of form allowed to the marriage-settlement in Van Gnitten 
 V. Digby (1862, 31 Beav., p. 561). 
 
( ni ) 
 
 Hamilton v. Dallas only. In the last-named case French 
 internal law was held to govern the succession of a person 
 who had died domiciled in France without obtaining govern- 
 mental authorisation for such domicil ; the judge, after exami- 
 nation, came to the conclusion that the French law would 
 not regard the absence of authorisation as a bar to its own 
 application, but there is nothing in the Report to suggest 
 that he would have refused to apply French law even had he 
 formed a contrary opinion — there is, indeed, much to suggest 
 that he only went into that question because it had been 
 raised at the bar. The sole basis, then, for the doctrine 
 under review is the dictum in Collier v. Rivaz and the 
 inference drawn from Bremer v. Freeman} The position 
 seems a little insecure ; indeed, only the deserved reputation 
 of the writers named makes it seem tenable at all. 
 
 45. The foregoing analysis shows that the dicttim in 
 Collier v. Rivaz possesses a considerable, if undeserved, im- 
 portance in the development of English doctrine. It is, 
 accordingly, worth while to point out that it only supports the 
 Renvoi-theory in its cruder and yet proper signification. If 
 the theory be stated in the more refined form adopted by 
 Mr. Westlake, Collier v. Rivaz lends no aid, for the judge (see 
 his words on p. 10, ante^ assumed that the LDom., to which 
 the English law referred, did not "desist," but continued to 
 have seisin of the case^ although it itself attached no import- 
 ance to mere domicil. Accordingly, the only support which 
 the theory in its scientific form can find in the cases under 
 discussion is in the somewhat disputable inferences drawn 
 from Brem-er v. Freeman and Hamilton v. Dallas. 
 
 ' The Domicil Act, 1861, which was passed shortly after the decision of this case, lends 
 some force to the contention that, despite Bremer v. Freeman, a foreign domicil will 
 produce its traditional results in England even " in the teeth of " the law of the domicil 
 itself. Sections I and 2 seem to suggest that an Act of Parliament and a treaty would be 
 needed if it were wished to prevent (i) a domicil, de facto acquired in a foreign country, from 
 producing some effect in the domain of succession, and (ii) a loss of English domicil from 
 rendering English law inapplicable to a given succession. _ 
 
 It may be added here that the English court will vindicate what it conceives to be public 
 international law "in the teeth of" a foreign system. See iVolff v. Oxhohn (1817, 
 6 M. & S., p. 92). 
 
 ^ This is even more obvious in Laneuville v. Anderson, case No. 6, p. 14, ante. 
 
( 112 ) 
 
 Nor does the desistement doctrine derive any encourage- 
 ment from In re Trufort, one of the other two cases, re- 
 maining out of the ten which seem to countenance the 
 Renvoi-theory. In that case the LDom. referred to by the 
 English'rules of I.P.L., declared to apply a third law, LNat. : 
 on the desistement theory the English judge should have 
 applied his own law, LFor., but, instead, he accepted the 
 reference to LNat. We turn now to that case. 
 
 46. The Renvoi-question belongs to the general problem 
 raised by the reception in civil law of the ideas of authorised- 
 domicil and nationality and, perhaps, of other elements of 
 discord. So long as the rules of I.P.L. were founded on a 
 general consensus, there was no room for such a reproach as 
 that which, e.g., Schnell (see p. 38, ante) casts upon the science 
 in its traditional form, i. e., that the degree of respect vouch- 
 safed to rights duly acquired will often depend on the forum 
 before which they may happen to be challenged.^ The decision 
 rendered by Stirling, J., m In re Trufort, furnishes, almost 
 unconsciously, an escape from this reproach. In that case 
 the English tribunal referred the material validity of a will of 
 movables made by a Swiss subject domiciled in France to 
 LDom. : a treaty existed between France and Switzerland 
 whereby movable successions of the subjects of each State 
 were, in the other, to be regulated by LNat. The English 
 
 1 The writer ventures to maintain that the rules of I.P.L. as received in England are not 
 obnoxious to this reproach to the extent which is commonly believed. Suppose, e.g., a 
 French subject domiciled in England made a will in England in holograph form : that will 
 would be void by English, but valid by French law. If movables situate in France at the 
 time of their late owner's death were subsequently brought into England, it is hard to believe 
 that the persons claiming under the English intestacy would be allowed in an English court 
 to dispute the title of the beneficiaries under the French will, as regards those movables. It 
 is one thing to apply a foreign law against its wishes or to refuse to apply a foreign law 
 which wishes to be applied, in matters within the English jurisdiction ; but it is quite a 
 different thing to use the English rules of I.P.L. in order to divest rights duly acquired under 
 a foreign law in matters over which English law had at the time no effective jurisdiction. 
 This is, however, too large a question to be dealt with here. 
 
 When conflict-rules conflict, it may, perhaps, seem as if rights duly acquired were being 
 contemned. E. g. , an English court would apply Danish and not French law to the 
 succession to goods in England of a French subject dying domiciled in Denmark, and 
 would seem to be contemning rights acquired under the successory law of France, his LNat. 
 This is, however, the fault of the conflict and not of either of the parties to it. 
 
( "3 ) 
 
 court, without so much as mentioning the claims of LDom., 
 applied the LNat. to which LDom. referred. This decision, 
 when generalised, yields the following proposition : if the 
 English rules of I.P.L. refer a matter to a foreign law A, 
 and A in its turn refers the matter to a foreign law B, which 
 accepts the reference, the English courts will apply the law of 
 B. In this way a marriage, such as that mentioned in the 
 extract from von Bar's article, given on p. 44, ante, will be 
 held valid in England : it was a marriage celebrated in France 
 in French form between two Austrians, both domiciled in 
 France ; all questions of marriage-capacity would, in accord- 
 ance with the rules of I.P.L. observed alike in France and 
 in Austria, be settled by the law of Austria, and we suppose 
 that by the law of Austria the parties are capable of inter- 
 marrying, although they would be incapable by the internal 
 law of France. If the English court were to pronounce on 
 the validity of this marriage by reference to its traditional 
 rules of I.P.L., it would here have to declare void a marriage 
 rightfully deemed valid by the parties for perhaps a quarter 
 of a century. The rule for which In re Trufort is an authority 
 avoids this result and saves us from disturbing the rights 
 which the parties had every reason to believe duly acquired. 
 Again, according to In re Trufort, the successions to which 
 Schnell refers in the passage summarised on p. 2)1 hereof, 
 would be regulated in an English court just as they were 
 regulated at the time of the death of the deceased in the 
 place where those successions were respectively opened. 
 Alike in the case of the marriage and of the successions, 
 English internal law disclaims all application : the law of A 
 which is deemed applicable under the English rules of I.P.L. 
 makes a similar disclaimer, and would apply the law of B, 
 which accepts the reference : on traditional lines the English 
 court would be led by its rules of I.P.L. to ignore the disclaimer 
 on the part of A : it makes, however, a prudent compromise, 
 recognising the alteration in the international situation which 
 has taken place since its rules of I.P.L. were elaborated. 
 
 I 
 
( 114 ) 
 
 It pays a common-sense homage to accomplished facts in 
 which it is not personally interested. When, however, the 
 case is one in which it is personally interested, or the facts 
 are (so to say) not accomplished, the compromise will be im- 
 possible : this needs a word of explanation. If the question 
 before the English court is as to the material validity of a 
 marriage between two Danes domiciled in France, the Weiter- 
 verweisung by the French law is to a law, the Danish, which, 
 unlike the law of B in the preceding example, may be sup- 
 posed not accept the reference : there are no accomplished 
 facts to recognise, other than those accomplished under the 
 traditional English rules of l.P.L. ^ yb/'/z'orz if the parties 
 to the hypothetical marriage were British subjects of English 
 origin, there would not only be no other accomplished facts to 
 recognise, but the English law would be personally interested, 
 inasmuch as by the very act of remitting the question in the 
 first place to the law of France, it has declared that its 
 principles forbid the application of English law. The 
 Weiterverweisung admitted in In re Trufort, affords not the 
 least pretext for the admission of R'dckverweisung. In the 
 former, the English court applies its rules of I.P.L., but 
 with a liberal interpretation thereof ; the latter means that 
 the English court repudiates its rules directly a foreign judge 
 is pleased to be displeased with them and that a foreign law 
 which is called as a witness is allowed to sit as a court of 
 appeal. 
 
 47. Up to the end of the 19th century the matter, 
 accordingly, stands as follows : — 
 
 (i) In support of the doctrine, fertile of impossible 
 situations, that when an English tribunal is bidden by its 
 rules of l.P.L. to apply the law of a foreign country, it 
 is to apply whatever law the foreign judge would apply 
 to the particular case, there are cited only such cases as 
 Collier V. Rivaz, which do not decide more than that formal 
 validity will not be denied in England to a will deemed valid 
 in point of form by the law which governs its material 
 validity. 
 
( 115 ) 
 
 (ii) Text-writers have laid down the doctrine, (not un- 
 reasonable in itself if the legislator were writing on a clean 
 slate), that an international rule bidding an English judge to 
 apply LDom. is only to be followed so far as it is actually 
 accepted inter gentes ; in favour of this doctrine there is only 
 the inference which may be drawn from Bremer v. Freeman. 
 Against the doctrine is not only the dichtm, obiter but con- 
 sidered, of Lord Watson (13 A. C, p. 444; see p. 18, ante), 
 but also, subject to the following postulates, the momentum 
 of the whole body of English international case-law : the 
 postulates referred to are (a) that a non-English element in 
 any jural relation cognised by the English courts, is governed 
 not by French, German, etc., law but by a law which is called 
 International and assumed to be universal; and (b) that if this 
 assumption is false in fact it is of too fundamental a character 
 to be affected by the maxim, Cessante ratione legis cessat lex 
 ipsa. 
 
 (iii) When International law as conceived in England bids 
 an English tribunal apply the law of a foreign country which, 
 disclaiming applicability because of the shape taken either by 
 its rules of competence or by its rules of I.P.L., refers the 
 matter to the law of a third state which accepts the reference, 
 there is authority for the application in England of this last- 
 named law. The authority is In re Trufort, subject to any 
 weakening effect produced by the obiter dictum in the case 
 of Bianchi (see p. 15, ante): In re Trufort related to the 
 distribution of a movable estate on death, but substantial 
 reasons of propriety may be adduced for extending the under- 
 lying principle to the regulation of every jural relation, e.g., 
 for recognising as valid in England a divorce pronounced 
 abroad not by the courts of the marital domicil but by the 
 courts of a country deemed competent by the law of that 
 domicil. 
 
 48. Suppose, then, that at the end of the 19th century 
 the following case had come before an English court : — A 
 British subject whose domicil of origin was Maltese left 
 Malta in 1832, at the age of 22, and took up her permanent 
 
( ii6 ) 
 
 residence in Baden, living there until her death in 1894. 
 She died intestate, leaving movable goods in England. How 
 are these goods to be distributed ? 
 
 The answer is, " According to that law of Baden where 
 she had lived for the last 62 years of her life, which cor- 
 responds to the English Statutes of Distribution." If an 
 authority be demanded for a solution which seems elementary, 
 the following words of the late Lord Watson may be quoted 
 (13 A. C, pp. 437, 439)-- 
 
 " It is a settled rule of English law that civil status with its attendant rights 
 and disabilities, depends, not upon nationality but upon domicil alone ; and, 
 consequently, that the law of the testator's domicil must govern in all 
 questions arising as to his testacy or intestacy, or as to the rights of persons 
 who claim his succession ab intestato .... In most, if not all of these 
 (books) from the Roman Code (10, 39, 7) to Story's Conflict (sect. 41), 
 domicil is defined as a locality — as the place where a man has his principal 
 establishment and true home. Probably Lord Westbury was more precisely 
 accurate, when he stated, in Bell v. Kennedy (L. R., i H. L., Sc. 320), that 
 domicil is not mere residence, ' it is the relation which the law 1 creates 
 between an individual and a particular locality or country.' The same learned 
 Lord, in Udny v. Udny (L. R., i H. L., Sc, 458), speaking of the acquisition 
 of a residential domicil, said : ' Domicil of choice is a conclusion or inference 
 which the law derives from the fact of a man fixing voluntarily his sole or 
 chief residence in a particular place with an intention of continuing to reside 
 there for an unlimited time.' According to English law, the conclusion or 
 inference is, thai the man has thereby attracted to himself the municipal law of 
 the territory in which lie has voluntarily settled, so that it becomes the measure 
 of his personal capacity, upon which his majority or minority, his succession, and 
 testacy or intestacy must depend." 
 
 To this solution an opponent may reply, " That is all very 
 well, provided LDom. takes the same view and wishes to 
 apply. But in the present case the law of Baden does not 
 wish to apply : it regulates succession by LNat., and the 
 deceased was not a political subject of Baden. She had not 
 therefore obtained such a domicil in Baden as would 'attract' 
 to her the local law of succession." The answer to this objec- 
 tion is, " You have been misled by the somewhat clumsy 
 shape of the second sentence quoted by Lord Watson from 
 
 1 N.B. — He means International Law, not the Law of the Domicil. The distinction is 
 gf the utmost importance. 
 
( n; ) 
 
 Lord Westbury. The meaning is, that given a certain fact 
 and a certain intention, the English court is bidden by its 
 rules of I.P.L. to draw the 'conclusion or inference' that the 
 municipal law of a certain country applies to a certain succes- 
 sion : the consent of the lawgiver of that country to this 
 employment of his enactments is no factor in the situation. 
 By virtue of a higher law than any foreign municipal law the 
 concurrence of Fact and Intention generate domicil, and the 
 ' conclusion or inference ' in question is part of the import of 
 this legal conception."^ 
 
 We may next imagine the objector to fall back on a line 
 of argument such as the following: — "Well, waiving this 
 objection, and assuming that the Baden law as LDom. is 
 deemed in an English court to obtain a notional seisin of 
 this succession, still the Baden law requires that in this case 
 LNat. shall be applied." This position can easily be demon- 
 strated to be theoretically unsound, and it is not worth 
 while to do more than hearken to von Bar saying ''■ circulus 
 inextricabilis"'^ (see p. 50, ante). If, however, theoretical 
 
 ^ That a person can be domiciled in a country which has no successory laws for his case, 
 is implied in Bremer v. Freeman. That the local laws of a country are immaterial in 
 determining whether a person is domiciled there, is distinctly laid down in Hamilton v. 
 Dallas. See also Somerville's case (5 Ves. jr., p. 791), where it is held that there cannot 
 be two domicils for the purposes of succession, and Pechell v. Hilderley, where it is held that 
 the precepts of two countries cannot be applied to the same succession. 
 
 ^ It will not have escaped the reader's notice that this and the preceding objection repre- 
 sent the substance of the judgment in In re Johnson (p. ig, ante). The learned judge said in 
 that case (p. 827), "It would be impossible for me to hold that this results in a circultis 
 inextricabilis." He said it, however, in connexion with the argument which corresponds to 
 the first of these objections : he does not seem to have considered it in connexion with his 
 second line of argument. 
 
 In the Law Quarterly Review, 1903, Vol. XIX, p. 244, there is a note relating to In re 
 Johnson and authenticated by initials which are the same as those of Mr. Dicey. The writer 
 of that note repudiates the decision given by Farwell, J., in favour of the law of the domicil 
 of origin as such, and claims that " the principle to be adhered to was that the goods of the 
 " deceased in England ought to be distributed in the same way in which the Baden courts 
 " would have distributed or, rather, did distribute the goods of the deceased situate in 
 " Baden." The present writer submits that this latter doctrine simply opens the door to the 
 Renvoi-problem without presenting any solution of it. If, t. g. , the deceased had left no 
 goods in Baden — in which case LDom. would still be applicable (see p. 94, n. , ante) — the 
 doctrine in question would lose much of its attractiveness. 
 
 The opinion maintained in this pamphlet that the proper law to apply is the internal law 
 of Baden involves the further opinion that if (as alleged by "A. V. D." on p. 246, op. cit.) 
 English law permits an English executor or administrator, dealing with the succession of a 
 person who at death was domiciled out of England, to hand the movables, after payment of 
 
( ii8 ) 
 
 considerations be banished by mutual consent and the 
 objector relies on English cases, his little battery — Collier 
 V. Rivaz and other probate cases — where it does not miss 
 fire is outranged and rendered ineffective by Lord Watson's 
 dictum in Abd-id-Messih v. Farra (pp. 17 and 18, ante). 
 
 A third objection, of a very different order, may lastly be 
 imagined : it is that associated in this pamphlet with Mr. 
 Westlake's name. "Your so-called rule of I.P.L. by which 
 LDom. regulates movable succession is unsound. The 
 utmost that your municipal legislator can do is to say that 
 his Statutes of Distribution apply to persons domiciled in 
 England : this will justify your judge in applying to persons 
 domiciled in other countries, not the English statute but 
 the corresponding foreign statute, provided that its area of 
 operation is also determined by domicil. In other cases 
 he has no warrant for applying any but his own law." 
 Logic cannot be invoked against this argument, but only 
 the principle of stm^e decisis. That no English cases give 
 it any support is, however, not final, for it is advanced de 
 lege ferenda not de lege lata. It seems at first sight to 
 appeal to the convenience of an English judge — to abolish 
 I.P.L. altogether would be still, more convenient for him! — 
 but some considerations have been set out on pp. 74-6 which 
 justify a doubt on this point. The Germans have, indeed, 
 adopted, to a limited extent, a somewhat similar principle, 
 but it was by way of deliberate legislation : for an English 
 judge to introduce it in case-law would be uniquely bold 
 and, inasmuch as it is not easy to define the limits within 
 which a principle introduced by judicial legislation is to 
 operate, at any rate coincidently with its introduction, the 
 disturbing effects would be disastrous in the whole area of 
 I.P.L.^ Moreover, it may be doubted whether the gain on 
 
 debts, to the representative appointed by LDom., it is with the intent that these movables 
 shall be distributed in accordance with the internal law of the domicil and no other. 
 For a Scotch appreciation of In re Johnson, see Appendix. 
 
 1 To take an extreme case, what would be its effect on Section 265 of the Merchant 
 Shipping Act, 1894 : "Where in any matter relating to a ship .... there appears to be a 
 conflict of laws the case shall be governed by the law of the port at which the ship 
 
( "9 ) 
 
 the side of jural science is accompanied by any gain in 
 substantial justice, when we substitute for the old rule which, 
 e.g., regulates movable succession by LDom. a rule which 
 says, LFor. regulates movable successions except where 
 LDom. consents to apply; or in other words, The Statutes 
 of Distribution regulate in England the movable succession of 
 persons domiciled here and of a large and increasing number 
 of other persons. 
 
 Whatever defects exist, either in the character or in the 
 basis of the rules of I.P.L. adopted in England, Renvoi 
 {^Ruckverweisting), is not a possible remedy in its crude form : 
 and in- its scientific form it is too drastic. Until the parlia- 
 mentary draftsman or the diplomatist takes these rules in 
 hand, the words of Lord Cairns are to the point, "In 
 questions of International law we should not depart from any 
 settled decisions nor lay down any doctrine inconsistent with 
 them." (L. R., i Sc. App., p. 452.) For those who follow 
 this advice and who assent to the proposition that the only 
 law enforced in an English court is English law and Inter- 
 national law, the Renvoi question need cause no embarrass- 
 ment as a scientific problem.^ 
 
 49. The writer suggests, in conclusion, that the English 
 cases in which Renvoi has been admitted may be generalised 
 in a manner which agrees much better with the character of 
 English legal reform than the Renvoi-theory does. 
 
 (i) The Collier v. Rivaz group supports the desirable 
 doctrine that when a jural matter is clothed in formalities 
 which are adequate by reference to the law which, according 
 to English rules, governs its essential validity and its effect, it 
 shall be deemed formally valid in English courts. 
 
 (ii) In In re Tritfort the English court showed such 
 respect for rights deemed to be duly existent by the foreign 
 law to which English rules referred a jural matter which at its 
 
 is registered " ? Is this conditional on the law of the port deeming itself applicable ? If 
 modern statute-law can tell an English judge to apply a foreign law, without considering 
 whether that foreign law wishes to be applied, why cannot ancient case-law ? 
 
 1 Cf. Jitta, Archiv fiir bffentliches Recht, Vol. 14, p, 323. 
 
( I20 ) 
 
 origin was within the exclusive control of English law, as to 
 suggest that the same attitude would be adopted if the court 
 had to deal with rights duly acquired under a foreign law in 
 a matter which at its origin was within the exclusive control 
 of that foreign law, even if English rules would not deem the 
 foreign law in question to be the competent law to deal with 
 that matter. 
 
 Conflicts between the internal rules of different legal 
 systems led to the birth of I.P.L. ; subsequently developed 
 conflicts between international rules call for similar conces- 
 sions on the part of the traditional formulae. It is submitted 
 that movement along such lines as have just been indicated is 
 sufficient for the needs of the case, and that no considerations 
 of respect for foreign systems demand, while many considera- 
 tions forbid, that English law, in a matter initially within the 
 exclusive control of the English Courts, should be applied 
 to cases to which its traditional rules of I.P.L. declare it 
 inapplicable. 
 
tai 
 
 APPENDIX. 
 
 I. — In 1894 the Supreme Court of Canada adopted the 
 Renvoi-principle, in a matter of testamentary form (lioss v, 
 Jioss, 25 S. C. Rep., p. 307)/ The question was as to the 
 vaHdity of a will made in New York by a person domiciled 
 in Quebec : the Quebec law was locus regit actum, and the 
 form employed was one, holograph, not recognised by the 
 internal law of New York, although it was recognised by 
 the internal law of Quebec : New York law, however, on its 
 international side, recognised as valid a will made according 
 to the law of the testator's domicil. The case, then, was : 
 Queb. LFor. ^ N.York LActus ^ Queb. LDom. The 
 following passage occurs in the dissenting judgment of 
 Taschereau, J. (now a member of the Judicial Committee of 
 the Privy Council) : — 
 
 " The form that, under Art. 7 of the Quebec Code declaratory of the old 
 law, has to be followed by a Quebecer who makes a will in New York, is the 
 form required by the law of New York for wills by its own subjects, the form 
 generally used in New York, as the last part of Art. 999 of the Code Napoleon 
 reproducing the rule locus regit actum expresses in clear terms. And the New 
 York Legislature had not the power to alter that law for the province of 
 Quebec, and to decree that a Quebecer could in New York make his will 
 either according to his lex domicilii or to the lex loci actus, or to neither one 
 nor the other, but according to a mixture of both, at least^so as to affect 
 movables in Quebec. 
 
 " The respondent, in other words, would argue, at least his argument leads 
 to it, that though the legislature in Quebec has refused to adopt the change 
 in the law made in this respect as to holograph wills by Art. 999 of the Code 
 Napoleon or by Art. 1588 of the Louisiana Code, yet the New York legislature 
 has done it for them. 
 
 " To so contend is evidently to forget the sovereignty of the province and 
 of the law of the domicil of the testator in the matter and leads to a reason- 
 ing in a circle. And a safe rule that I would apply here is the one laid down 
 
 * See Lafleur's Conflict of Laws (Montreal, 1898), p. 14. 
 K 
 
( 122 ) 
 
 by Lord Penzance in a somewhat analogous case, Pechell v. Hilderley^ that 
 in determining the question whether such a will is valid or not, regard can be 
 had to the law of one country alone at a time and the Court will not mix up 
 the legal precepts of different countries. The law of Quebec is exclusively 
 the rule here. But were it necessary to make the inquiry, it seems to me 
 established in the case that the will would be held invalid in New York. 
 
 " Mr. Adams, one of the experts examined in the case, makes this point 
 clear, and I do not see that he is contradicted by the other experts. 
 
 " Upon evidence that by the Quebec law a holograph will made in New 
 York by a citizen of Quebec is not valid in Quebec to transmit property 
 real or personal situated or to be found in Quebec if, by the New York law, 
 holograph wills by citizens of New York are not valid in New York, this will 
 in question here would not be admitted to probate in New York. 
 
 " It was said at the argument on the part of the respondent, this will is 
 good by the Quebec law, it is also good by the New York law, why should it 
 not be upheld ? This is, however, but an assumption of the very question at 
 issue. That is precisely what has to be determined, whether this will is valid 
 or not : and to such an argument the appellants have only to answer, with 
 not more but with as much force, by saying that as the will is bad in Quebec, 
 and also bad in New York, it cannot be upheld. If Ross had left personal 
 estate in New York, and the New York Court upon contestation of his will had 
 referred the question of its validity to the Quebec Courts, following the course 
 adopted by the Prerogative Court in England in de Bonneval's case,- to have 
 the question settled by Ross's lex domicilii, the Quebec Courts would have 
 had to answer, and the Court of Queen's Bench concedes it, that by Ross's 
 lex domicilii, alone and independently of the New York law, the rule locus 
 regit actum imperatively governs, and that this will by that law is therefore 
 null ; that by the Quebec law a Quebecer, who in New York desires to make 
 a will disposing of either movables or immovables, or both, in Quebec, must 
 do so according to the New York forms. And as a holograph will is not in 
 the New York form, that would have been the end of the controversy, as Art. 
 2694 of the New York Code of Procedure, above referred to, expressly says 
 that as to personal estate it is by Ross's lex domicilii that, in New York, the 
 validity of his will is to be concluded. I utterly fail to understand the import 
 of the rule locus regit actum, if it does not mean, adapting it to this case, that 
 a Quebecer who desires when in New York to make a will has to make it 
 according to the form required by the law of New York for its own subjects ; 
 or to put it in other words, if a will in the holograph form made by a New 
 Yorker in New York is void under the New York law in New York, a 
 Quebecer's will in that form made in New York is also void in Quebec, 
 which is Ross's lex domicilii." 
 
 1 L. R., I. P. & D. 673 (see p. 22 n., ante). ^ 1 Curteis, 856 (see p. gn., ante). 
 
( 123 ) 
 
 II. — In the Juridical Review for 1903 (at p. 207) the 
 late Mr. Galbraith Miller discusses the decision in In re 
 Johnson, He approves of the result while deprecating the 
 mode in which it was arrived at. The decision, says he, 
 accords with well-established practice in the Commissariot 
 of Edinburgh : in proof whereof he refers to the following 
 passage in Currie on Confirmation of executors in Scotland, 
 3rd Edn., 1902, pp. 23-4: 
 
 " By the Law of the Doraicil is not necessarily meant the ordinary law of 
 succession in the country where the deceased died domiciled. In several 
 countries the local law is not applied to the succession of foreigners. In 
 Belgium the validity of the will of a foreign testator who may die domiciled 
 there is not governed by the law of that country applicable to its natural- 
 born subjects but by the law of the testator's own country. Where the 
 deceased had died domiciled in Rome, leaving a brother and a widow 
 surviving, but no issue, decerniture was applied for by the brother, on being 
 advised by the British Consul at Rome that the deceased being a British 
 subject the administration would be not according to the ordinary Italian 
 law but according to the law of this country (Aitken, 28th Jan., 1887). 
 Where the deceased had died domiciled in the Argentine Republic evidence 
 was obtained that by the law of that country, unless a person has become a 
 naturalised citizen, which can only be after twelve years' residence, and on 
 special application, his succession is ruled by the law of his native country 
 (McTavish, 19th Dec, 1873). In another case a certificate by the Peruvian 
 Consul at Glasgow was obtained to the effect that the personal estate of the 
 wife of a British subject, who had not become a Peruvian citizen, would on 
 her death fall to be administered in accordance not with Peruvian but with 
 British law (Irving, 25th March, 1881)." 
 
 The writer is, however, informed that neither in these nor 
 in any other cases has the Renvoi-question been considered 
 by the Scotch courts. 
 
 III. — The writer is informed that the Renvoi-question 
 has not as yet been solved by tribunals in the United States ; 
 but in 1873 {see footnote to p. 20 hereof), the New York 
 Court of Appeal dealt with one of the related topics. A lady 
 whose domicil of origin was in New York resided in Paris 
 for a long period before her death, but was never authorised 
 by the French Government to establish a domicil in France. 
 She made a will in France in the' form required by the 
 
( 124 ) 
 
 local law of New York but not in the form required by 
 the local law of France. The New York Court of Appeal 
 upheld the will " on the ground that irrespective of the 
 " consideration arising upon Article 13, no domicil in France 
 " was established by the evidence {Diiptiy v. Wurtz, 53 N. Y., 
 " p. 574)." Even if, however, a French diOxx\\6\ jure gentium 
 had been established in France, the following passages in the 
 judgment show that the American court would have agreed 
 with the doctrine enunciated by Farwell, J., in the earlier part 
 of his judgment in In j^e Johnson : — 
 
 " Unless a new domicil was acquired, the domicil of origin continues and 
 must govern. It must be shown that the deceased has subjected her estate 
 to the law of some other country in order to exempt it from the laws of her 
 own State, and in this connection the reference which has been made to 
 Article 13 of the Code Napoleon becomes important." 
 
 The Court then showed how, in the case of Melizet, the 
 French Court of Cassation construed Art. 13, Code Napoleon, 
 in a manner contrary to that adopted by the British Privy 
 Council in Bremer v. Freeman, and continued : 
 
 " The decree of the Court of Cassation states fully the grounds upon 
 which the court reverses the lower court. They are, in brief, that the right 
 to enact laws concerning the transmission of property by succession belongs 
 to every country : that it is the same with respect to laws which establish the 
 conditions and legal effects of domicil, which is nothing more than the place 
 which the Civil law assigns to each person for the exercise of his civil rights : 
 that by the terms of Article 1 3, Code Napoleon, foreigners are not admitted to 
 the exercise of all civil rights, and consequently cannot acquire a domicil in 
 France with all its legal effects, without having obtained the prescribed autho- 
 rization to establish their domicil there and continuing to reside there. 
 
 "The result of this construction of Article 13 necessarily is to establish 
 that, according to the French law, the will of the deceased would be regarded 
 by the French courts as valid if executed in conformity with the law of her 
 domicil of origin. 
 
 " The inquiry into domicil becomes unnecessary if it turns out that, with 
 respect to this individual succession, the law of New York and of France is 
 the same, for when we speak of the law of the domicil as applied to the law 
 of succession, we mean not the general law but the law which the country of 
 the domicil applies to the particular case under consideration {Maltass v. 
 Maltass, i Rob., p. 72)." 
 
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