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Lee Brobst
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May 1, 2009
CONFLICT OF LAWS
THE INTRODUCTION INTO ENGLISH PRACTICE OF CONTINENTAL THEORIES
ON THE CONFLICT OF LAWS
By A. E. ANTON
WESTLAKE suggested, but very cautiously (“I do not know enough of the history of
Scotch law to assert it”), that the introduction into English practice of Continental
theories on the conflict of laws may have been connected “with the Union with
Scotland, coupled with the fact that it had been usual for Scotch advocates to
complete their legal education in Holland.”1 This suggestion was dismissed by
Professor Beale as mere pedantry, on the ground that it was through Story that
Huber and the other Continental writers influenced American and English law.2
Professor D. J. Llewelyn Davies, however, justly points out that this does not take
adequate account of the influence of these writers before the appearance of Story's
Commentaries in 1834.3 He makes out a persuasive case for the view that it was
Lord Mansfield who was directly responsible for making the theories of Continental
writers known to the English courts. Huber, he says, was referred to for the first time
in 1760 in the case of Robinson v. Bland.4 Professor Llewelyn Davies further
surmises that it was through his knowledge of Scots law and his practice in Scottish
appeals that Lord Mansfield had become familiar with Huber's writings, and those of
other Continental jurists, upon the conflict of laws.
Is there any evidence to support this conjecture? Cheshire points out that it was not
until the close of the eighteenth century that a clear acknowledgment was made,
and by Lord Mansfield, of the duty of English courts to give effect to foreign laws.5
This failure of the English courts to apply the “law of nations” was the subject of
comment in judicial proceedings in Scotland both before and after the Union.6
Writing in 1760 a Scottish judge,
footnotes
1 Westlake, Private International Law, 4th ed., p. 8.
2 Conflict of Laws, vol. iii, p. 1904. .Story himself said: “I am not aware
that the works of these eminent jurists have been cited at the English.bar;
and I should draw the conclusion that they are In a great measure, if not
altogether, unknown to the studies of Westminster Hall”: Commentaries
7th ed., p. xii.
3 1937 B.Y.I. L., p. 49 et seq. 4 1 W.BI. 234 and 256; 2 Burr. 1077.
5 Private International Law, 4th ed., p. 33.
6 Cochran v. Earl of Buchan (1698) M. 4544; Goddart v. Swyntott (1713) M.
4533 at p. 4534.
OCT. 1956] Continental Theories on Conflict of Laws 535
Lord Kames, described the position in England and remarked : “What can be
expected from such inconsistency, but injustice in every instance? Lucky it is for
Scotland that chance, perhaps more than good policy, hath appropriated foreign
matters to the Court of Session, where they can be decided on rational principles,
without being absurdly fettered, as in England, by common law .” 7 The position was
indeed very different in Scotland because there the Court of Session combined the
functions of a court of common law and a court of equity, and could apply foreign
law when equitable considerations demanded it. The result was the development as
early as the seventeenth century of a body of case law in matters relating to the
conflict of laws. These decisions are conveniently gathered together in Morison's
Dictionary of the Decisions of the Court of Session under the headings Foreign and
Forum Competens.8 The decisions are not always consistent with one another and
the law was in a fluid condition, but several rules were reasonably well established.
It would be pointless to catalogue these but, to take one branch of the law only, it
was held that personal bonds formally valid according to the lex actus might be
enforced in Scotland although not complying with the formal requirements of Scots
law 9; the same rule was applied to assignation of bonds 10; and the question
whether written evidence was required to instruct the repayment of a foreign bond
was regarded as being referable to the law of the country with which the contract
was most closely connected.11 These and other principles applied in the Scottish
courts were discussed in Kames' Principles of Equity, which contains a chapter
devoted to “Foreign Matters.” 12 Kames’ exposition of the law shows that,
although It was not in a highly developed state, Scottish lawyers had a keen
appreciation of the problems involved and were aware of the different solutions
offered by Continental writers.13
Scots lawyers, indeed, leaned as heavily upon the writings of Continental jurists in
this, as in other branches of the law.
footnotes
7 Principles of Equity, 3rd ed., Vol. ii, p. 316.
8 They are considered in Professor Dewar Gibb’s “International Private Law
in Scotland in the Sixteenth and Seventeenth Centuries,” 39 Juridical
Review, pp. 369 et seq.
9 Fortoun v. Shetoan (1610) M. 4429: Galbraith v. Cunningham (1626) M.
4430: Harper v. Jaffrey (1630) M. 4431; Master of Saltoun v. Lord Saltoun
(1673) M. 4431: contra, Cassinboote v. Irvine (1634) I Brown's Supplement 201.
10 Falconer v. Heirs of Beatie (1627) M. 4501; Sinclair v. Murray (1636)
M. 4501; Erskine v. Ramsay (1664) M. 4502; Scot v. Toish (1676) M. 4502.
11 Compare Galbraith v. Cunninghum (1626) M. 4446; Balbirnie v. Arkhill and
Relltrees (1633) M. 4446; and Hyde v. Williamson (1634) M. 4447 with
Scot v. Henderson and Wilson (1664) M. 4450.
12 It is, perhaps, not without significance that the second edition of this work
was dedicated to Lord Mansfield.
13 Principles of Equity, supra, pp. 310 et seq. , especially pp. 333 and 342.
536 International and Comparative Law Quarterly [VoL. 5
The ties of Scotland ,with the Continent had always been close. Prior to the
Reformation these contacts had been chiefly with France and, even after it, such
jurists as Craig, Mackenzie, Spottiswood and Fountainhall had studied at French
universities. But in the, sixteenth and seventeenth centuries the universities of the
Netherlands were especially favored. Leiden University alone received some 1,600
Scottish law students.14 The interest was not wholly a one-sided one. When, for
example, Sir George Mackenzie published his Idea Eloquentia forensis hodiernae
letters eulogising it were received in Scotland from various Continental universities
and writers. Among the latter were John Voet and Ulricus Huber.15 In view of these
contacts it is not surprising to find that contemporary Continental writings were
freely cited in the Scottish courts.16 Of the Continental writers mentioned by Story,
the following are cited in the reports of Scottish cases involving a foreign element up
to 1707: Bartolus, Burgundus, Christinaeus, Cujas, Dumoulin, Grotius, a Sande and
Vinnius.17 In the period between 1707 and 1760 many other foreign jurists are
cited, including Clarus, Favre, Andreas Gaill, Huber, Maevius, Mynsinger, Perezius,
Rodenburg, and J. and P. Voet. Huber appears to have been first cited in 1713.18
He was cited again in 1742 19 and 1749.20 Writing in 1835, Robertson in his
Treatise on the Law of Personal Succession 1 mentions that, in his day, of the
ninety-one Con- tinental writers referred to by Story and Livermore, only a few were
to be found in the British Museum and the public law libraries of London, but all
except six were contained in the library of the Faculty of Advocates in Edinburgh.2
It may be asked to what extent the citation of foreign authorities influenced the
decisions in the Scottish cases. Here this difficulty arises, that, while the arguments
of the parties are set out in the early Scottish reports, it was unusual for the
opinions of the judges to be reported, the Scottish judges being extremely shy of
reporters. The grounds of the judgment have to be deduced from the arguments of
the successful party. Some indication, however, of the weight which was attached to
these authorities appears from the argument of the successful defender in the case
footnotes
14 Stair Society, Sources and Literature of Scots Law, p. 233. 15 Mackenzie’s
Works, Vol. I, p. x.
16 As to the writers cited, see A. H. Campbell, The Structure of Stair’s
Institutions (Glasgow, 1954), p. 17.
17 Many less familiar names are referred to, including Buzius, Donellus, and
Tuldenus.
18 Goddart v. Sir John Swynton (1713) M. 4533.
19 Simon, Lord Lovat v. James, Lord Fraser (1742) M. 4512.
20 Count Leslie v. Lady Forbes (1749) M. 4636.
1 Edinburgh, 1836.
2 p. 124.
OCT. 1956] Continental Theories on Conflict of Laws 537
of Brown v. Brown 3 where this question arose for the first time in Scotland: “By the
law of what country the succession to a defunct's movables was to be governed,
whether by the law of the country where the movables happen to be at the time of
his death, or by the law of the country where the defunct had his domicile.” The
defender is reported to have argued: “As there- fore the question is new in respect
to the custom of Scotland, as nothing is to be found in our decisions or law-books
directly determining it, recourse must be had to the laws and practice of other
countries, and to the testimonies of foreign lawyers, especially as the question may
not improperly be said to concern the law of nations. And the general and received
doctrine of the foreign lawyers on this subject may be reduced to these propositions
:first, that in all countries the succession to heritage is to be governed by the lex loci
ubi res sita est. Secondly, that proper mobilia are not considered habere situm, but
to follow the law of the country where the owner has his domicile, and to which it is
presumed that sooner or later he intended to transfer them. Thirdly, that the same
thing is true concerning nomina debitorum, that these are governed by the
law of the domicile of the creditor, and not of the debtor. Fourthly, that there
are certain moveable subjects quae habentur loco immobilium. That these
propositions might be proved by multitudes of authorities, but that it should suffice
to refer to Voet, and the many authorities by him cited, Appendix to the title, De
Constitutionibus Principum, § 11; and the title De rerllm. divisione, § 30, where
particularly with respect to nomina his words are, ‘Cum ergo actiones personales,
saltem, ex communi consensu, eae quae ad rem mobilem tendunt, mobibus
annumerari dictum sit: Consequens est, ut licet proprie nullibi situm habeant
tanquam incorporales, tamen illic esse censeantur, ubi creditor, in cujus dominio et
patrimonio actiones sunt, domicilium fixit.”4 And as thus the rules are fixed inter
gentes ex comitate, so they are founded in reason; for, how absurd would it be to
suppose, that, where a man had money or effects in all the different parts of the
world, his presumed will, upon which the succession ab intestato is founded, should
be held to be as different as the peculiar laws or constitutions in the several parts of
the world where his effects lie or his debtors live. ..” 5 The Court of Session found
for the defender. Its reasons for doing so are not given in Kilkerran's report, but
Falconer's report says that the Lords " agreed the case was to be determined by
the law
footnotes
3 (1744} M. 4604.
4 J. Voet, Comm. ad Pandectas, i.8.30.
5 M. 4607.
538 International and Comparative Law Quarterly [VoL. 5
of nations, and by it the domicile of the creditor was to be the rule." The case, where
the rules of private international law were elucidated and appled, may be contrasted
with the Co , temporary English decision of Pipon v. Pipon,6 where there does not
appear to have been any discussion of the doctrines of Continental writers and
where, as A. N. Sack points out,7 a purely negative rule was established. Brown v.
Brown is particularly interesting because it foreshadowed and influenced the
decision in Bruce v. Bruce,8 a case which is the foundation of the present law on
the subject.
After the Union of 1707, Continental authorities must have been cited in argument in
the House of Lords. The very first reported appeal from Scotland was concerned
with a question of private international law.9 In 1715 the case. of Goddart v. Sir
John Swynton 10 came before the House of Lords. One of the matters discussed
was whether a judgment of the Queen's Bench which it was sought to enforce in
Scotland was conclusive of the facts decided or whether it was open to the Court of
Session to enter into the merits of the case. Huber and John a Sande 11 were cited
in argument before the Court of Session and, although Robertson's report of the
proceedings in the House of Lords does not mention them, it seems unlikely that
counsel would have failed to do so, both in their oral arguments and in their printed
cases. The latter were normally based upon the written argumentative pleadings,
used in the Court of Session, which themselves may have been placed before the
House.12 These written pleadings usually made copious reference to juristic
authority .13 In all there are twelve reported appeals from Scotland raising
questions of private international law between 1707 and 1760.
Lord Mansfield appeared as counsel in five of these appeals, that is to say, all such
appeals heard between 1736 and 1756, when he became Lord Chief Justice.14
The reports of the proceedings in
footnotes
6 (1744) Amb. 26.
7 “Conflict of Laws in the History of English Law.,” in Vol. iii of Law: A
Century of Progress (1937).
8 (1790) 6 Bro. P.C. 566.
9 Gray v. Duke of Hamilton and others (1708) I Rob.App. 1.
10 (1713) M. 4533; (1715) I Rob.App. 162.
11 Fountainhall’s report adds references to Erodius and Gudelinus, but it must
not always be assumed that Authorities referred to by Fountainhall were before
the court when the case was decided.
12 J. Macqueen, Treatise on Appellate Jurisdiction (1842), pp. 287 (Minute of
House of Lords, dated March 27, 1708) and 334.
13 John A. Inglis, II Eighteenth.Century Pleading," 19 Juridical Review, p. 53.
14 Earl of Breadalbane v. Innes (1736) 1 Pat.App. 181; Fullarton v. Kinloch
(1740) 1 Pat.App 265; Robertson v. Marquis of Annandale (1749) 1
Pat.App. 293; Bayne v. Earl of Sutherland (1750) 1 Pat.App. 454; Hill v.
Grant (1755) 1 Pat App. 597.
OCT. 1956] Continental Theories on Conflict of Laws 539
the House of Lords do not contain references to foreign authorities but, once again,
it seems probable that these authorities were before the House. In one of these
cases, Bayne v. Earl of Suther- land, the Court of Session report 15 refers to
Rodenburg, Voet, Grotius and Perezius, Gaill, and Christinaeus, and there was
much discussion of the distinction between personal and real statutes.16 Robinson
v. Bland was an action to recover money won on a wager made in France. After
argument Lord Mansfield said: “I should like to hear another argument, and as the
present topics are exhausted, I would throw out a few hints to be spoke at the next
time. There is a distinction between local and personal statutes. . …” Was he
recalling the arguments in Bayne v. Earlof Sutheiland ? It seems not unlikely.
When Robinson v. Bland was re-argued reference was made to Voet, Huber,
Grotius and Dumoulin, and Lord Mansfield's judgment was based mainly on Huber's
Praelectiones, ii.1.3.
It would be misleading, however, to overemphasize the part played by Lord
Mansfield in the introduction into English practice of Continental doctrines upon the
conflict of laws. His citation of Contindental authorities had little immediate effect. In
the three decades following Robinson v. Bland the writer can find only one case
involving a foreign element in which these authorities were cited. That was the case
of Holman v. Johnson 17 where, once again, Lord Mansfield presided. The real
turning point, it is thought, was in 1790, when the case of Bruce v. Bruce 18 came
before the House of Lords. After elaborate arguments in which counsel on both
sides leaned heavily upon such Continental authorities as Huber, Vattel, Vinnius, J.
Voet, Van Leeueen, and Denisart, that House, affirming Brown v. Brown and
reversinglater Scottish decisions,19 established in a manner beyond dispute that
intestate succession to moveable estate was governed not by the lex situs but by
the law of the intestate's domicile. Bruce v. Bruce was soon followed by a series of
important cases in which this principal was elaborated, including Hunter v. Potts
{1791) 20 ; Hog v. Lashley {1792)1; Balfour v. .Scott {1793)2; Bempde v.
footnotes
15 June 21, 1749, M. 4595; Kilkerrans Decisions, p. 209.
16 Buyne v. Earl of Sutherlund was referred to by Lord Hardwicke in Thorne
v. Watkins (1750) 2 Ves.Sen 35. It would seem from his remarks that
Bayne was decided by the House of Lords upon general principles of private
interernational law-Robertson's Treatise on Personal Succession, supra, p. 114.
17 (1775) 1 Cowp. 341.
18 Supra; Lord Thurlow's judgment is reported in 2 Bos. & Pul. 226.
19 These had apparently proceeded upon an erroneous view of English law:
Robertson's Treatise, Supra, pp. 101 et seq .
20 4 T.R. 182.
1 6 Bro.P.C. 577.
2 6 Bro.P.(J. 550; November 15, 1787, Faculty Collection.
International and Comparative Law Quarterly [Vol. 5]
Johnston (The Marquis of Annandale's Case) (1796) 3; O'mmaney v. Bingham (Sir
Charles Douglas' Case) (1796) 4; and Somerville v. Somerville (1801).5 In all these
cases there ,vas ample citation of Continental authorities and from 1790 until 1834,
when Story's Commentaries were published, foreign authorities were cited almost as
a matter of course in English cases involving a foreign element.6
In one of these cases, Potinger v. Wrightman, Sir S. Romilly said in argument: “Of
authority on this subject, in the English law, none exist . . .; but it has been much
discussed by foreign jurists, to whose opinions (in the absence of domestic
authorities) our courts are accustomed to resort, on questions which (like the
present), must be decided rather by general principles of law, than by the peculiar
doctrines of any local code.” He went on to quote from J. Voet, Rodenburg,
Bynkershek, Denisart, Grivello, and Pothier. In delivering his opinion the Master of
the Rolls (Sir William Grant) said: “On the subject of domicile there is so little to be
found in our own law that we are obliged to resort to the writings of foreign jurist for
the decision of most of the questions that arise concerning it. . . . Here the question
is whether, after the death of the father, children remaining under the care of the
mother, follow the domicile which she may acquire, or retain that which their father
had at his death, until they are capable of gaining one by acts of their own. The
weight of authority is certainly in favor of the former proposition. It has the sanction
both of Voet and Bynkershoek. . . .”
Story cites Bruce v. Bruce as an English case, 7 but it is worth emphasizing that it
was a Scottish appeal and ,was argued as such. Balfour v. Scott and Hog v. Lashley
were also Scottish appeals, the forerunners of many Scottish conflict cases which
became “naturalized” in England. Hunter v. Potts was an English case, but there
was ample citation of Scottish case law and authorities including Kames and
Erskine, as ,weIl as of the works of Continental jurists. It is suggested that it is
primarily to the Scottish appeals of the 1790's that English lawyers owed their
introduction to Continental theories upon the conflict of laws. It would be dangerous
to be dogmatic about this. In Scrimshire v. Scrimshire,8- decided in 1752, the view
that the formal validity of a
footnotes
3 3 Ves.Jun. 198.
4 5 Ves. 750.
5 5 Ves. 750.
6 Cf. Viveash v. Becker (1814) 3 M.& S. 284; Potintger v. Wrightman (1817)
3 Mer. 67: Wolf v. Oxholm (1817) 6 M. & S. 92; Munroc v. Douglas (1820)
5 )Madd. 379) : Ruding v. Smith (1821) 2 Hagg.Con. 371; Burtwhistle v.
Vardill (1826 5 B. & C. 438; British Linen Co.v. Drummond (1830) 10 B. &
C. 1903; De la Vega v. Vianna (1830) 1 B. & Ad" 284: Stanley v. Bernes (1830)
3 Hagg.Ecc. 373.
7 Commmentaries 7th ed., p. 46.
8 2 Hagg.Con. 395.
[OCT. 1956] Continental Theories on Conflict of Laws 541
Marriage was to be referred to the lex loci celebrationis was supported in argument
by citations from Gaill, Donellus, Sanchez, Voet, and Mynsinger. Scrimshire shows,
as one would expect, that those jurists were known to the learned practitioners in
Doctors’ Commons. The case, however, appears to have been unique, and another
forty years elapsed before Continental theories upon the conflict of laws became
more generally known. In that process the example of Scottish practice would seem
to have played no negligible part. Bold emphasis added
COMMENTS: If a “person” is a beneficiary of the social security trust he is
considered a debtor. In other words, if you “are subject to” the 14th
amendment then you do not have a domicile but instead you reside subject
to the law of the creditor. The creditor is the unincorporated association.
See Title 15 USC Chap. 41 sec (c), (d), and (e); Article IV Sec. 3 cl.2 of the U.
S. Constitution.
Last Updated on Tuesday, 28 April 2009 10:56
Last Updated on Tuesday, 28 April 2009 10:56
