[1] Published by Chatto & Windus.
Personally I believe that justice for the poor can be and will be achieved mainly on the Scottish system, which provides a rota of counsel and solicitors for poor persons in both civil and criminal matters. Many publicists, the most eminent of whom is perhaps Walter Bagehot, have imagined that cheap law could be achieved by what is called the fusion of solicitors and barristers. I gravely doubt whether this process will ever take place in Great Britain, or whether, if it did, it would have many of the advantages which have been attributed to it. Some years ago I took the trouble to make some enquiry into the matter, and I obtained expert opinion in regard to the Colonial and American system, under which fusion has been established. It works fairly well in the higher courts of sparsely populated colonies, for there the need for specialization is not so acutely felt as in big cities, where more money is usually at stake and where the solicitor has much more work to do in his own office. On the other hand, even where fusion exists, it does not abolish the essential division of labour in regard to preparing a case for hearing and expounding the case in court. The information which I obtained resulted in the following conclusion:—(1) Fusion would not tend to make law any cheaper in Great Britain and it certainly does not make law any cheaper in the Colonies or in the United States. (2) Fusion would not mean greater despatch in dealing with business. (3) The client would not obtain better advice, because where fusion exists the firm of lawyers whom he consults prefer the opinion of a partner to that of a specialist in another firm.
We may possibly see the lay client enabled to consult counsel direct where litigation is not concerned and the solicitor’s right of audience in the High Court slightly extended.
VIII
PRIVATE INTERNATIONAL LAW
In a previous chapter I pointed out that our Commercial Court practice was not tending to the creation of international Courts; but some merchants are entering into international arbitration agreements to the exclusion of their national courts and it is said that these work well, though they involve more delay. The progressive creation of public international tribunals may encourage the growth of similar tribunals for settling private disputes; but the principal outstanding obstacle to international agreement on questions of status and property is the conflict between the tests of nationality and domicil.
In the British Empire we have at last achieved an Imperial Nationality and alongside of it exists a local nationality which will vary according to the laws of each colony, which prescribe different periods of residence. If this movement for uniformity continues it may have great results. Nationality at present concerns a man’s property very little—in the United Kingdom not at all except as regards the capacity of owning ships. It gives certain political privileges; but the law affecting marriage property and contracts has nothing to do with nationality, and in this respect it differs sharply from the laws of continental nations. A contract according to English law (whether for sale or marriage) is good if valid according to the laws of the country in which it is drawn up and made. Personal or “movable” property is dealt with according to the law of a man’s domicil (except in the cases of bankruptcy or liability to income tax which turn upon residence), and although a marriage contract is good in England, whatever the domicil of the parties, it cannot be dissolved except in accordance with the law of the country which is the husband’s domicil. (Land is dealt with according to the law of the country in which it is situate.) Clearly, therefore, the domicil is the most important test of all the English-speaking world, yet it is of all tests the most uncertain. The late Professor Dicey, in his last edition of the Conflict of Laws, admits the extraordinary difficulties surrounding the subject, especially in the case of what is called “Anglo-Indian domicil” and the possibility of determining the intention of the person whose domicil is called in question, for domicil depends entirely on (1) residence and (2) the intention to remain in the place of residence. In many cases it may be said that a person’s domicil cannot be decided till he dies, and even then perhaps not with certainty.
The doctrine of domicil grew up under the Roman Empire, which comprised many local systems of law, but only one citizenship. It became an essential doctrine of English law and is common to the English-speaking world except where the test of residence alone has been substituted, e.g., for divorce jurisdiction in the United States, formerly in India, and in one or two of the Colonies, e.g., New South Wales. In these cases a conflict of laws at once arises between the tests of residence and domicil, so that, e.g., a wife who obtains a divorce in New South Wales finds that it is not recognized in England if the husband has an English domicil.
A different conflict arises between the laws of almost all continental countries and the laws of English-speaking countries, because the continental jurists have adopted the tests of nationality instead of domicil. Anyone acquainted with the doctrine of the renvoi and with the liability to double death duties and general uncertainty of status in connection with marriage, divorce, and legitimacy resulting from this conflict must certainly agree that the present system is anomalous and defective.
The best solution of these difficulties would be:—