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HARVARD

LAW REVIEW

VOL. XXXIII

NOVEMBER, 1919

No. 1

THIS

PROGRESS OF THE LAW, 1918-19

HIS is the first of a series of articles, written by professors in the Harvard Law School, in which it is intended to point out the most notable decisions, books, articles, and statutes during the past year which affect or explain the law in the topic under discussion. These articles are not intended to be collections of all authorities on the subject, but simply of such authorities, coming under the notice of the author, as seem to him to mark some progress in the law. The next paper in the series will appear in the December number.

THE CONFLICT OF LAWS

THE NATURE, ORIGIN, AND EXTENT OF LAW

1

I. An interesting decision throwing light upon the origin of law is Panama Railroad Co. v. Bosse. This was an action brought in the District Court of the Canal Zone, and eventually brought by appeal to the Supreme Court of the United States. The question of law involved was whether under the law of the Canal Zone in 1916 a master was liable for his servant's negligent tort. A presidential proclamation in 1904 kept in force "the laws of the land, with which the inhabitants are familiar," until altered or annulled by the Commission. In 1912, by presidential proclamation, all the lands within the limits of the Canal Zone were declared necessary for the construction and operation of the canal, and in 1916 there were no inhabitants except employees of the company and persons licensed to do business there.

1 249 U. S. 41, 39 Sup. Ct. Rep. 211 (1919).

The court held, on these facts, that while the Civil Code of Colombia was in force in the Zone, the interpretation of it must be governed by common-law principles; following decisions to that effect in the Zone, beginning with Kung Ching Chong v. Wing Chong. Mr. Justice Holmes observed that

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"it is not necessary to dwell upon the drift toward the common-law doctrine noticeable in some civil-law jurisdictions at least, or to consider how far we should go if the language of the Civil Code were clearer than it is. It is enough that the language is not necessarily inconsistent with the common-law rule."

The court here is bowing to the inevitable. The experience of the Zone is that of New York, where the earlier Dutch law was overwhelmed by the English invasion; of Louisiana, where the French law gave way before an American settlement; and of California, New Mexico, and Texas, where the Spanish law yielded. Nothing but a considerable and continuing body of inhabitants, as in Quebec and in South Africa, has been able to maintain an older system of law against a large immigration of English or Americans. The Code may remain; the vaster body of unwritten law tends almost irresistibly toward the common law.

II. Whose law is administered in the consular courts in the "Treaty Ports" of China or any country of "the Capitulations," so called? This question has exercised the English and American courts for many years. In Tootal's Trusts, Chitty, J., said (or was supposed to have said — as a matter of fact his expressed opinion was quite the opposite), that not Chinese but English law applied to an Englishman doing business in Shanghai. This view was expressed neatly and tersely by Warrington, L. J., in Casdagli v. Casdagli, in the Court of Appeal:4

"I am of opinion that the Consular Court in Egypt is one of the King's Courts, that its jurisdiction is derived from the King and not from the ruler of Egypt, and that the law administered therein is strictly the law of England, and is not to be regarded as a branch of the law of Egypt.”

The opposite view has been vigorously expressed in America by Judge Spear in Mather v. Cunningham:5

2 2 Can. Zone Sup. Ct. 25, 30 (1910). 4 [1918] P. 89, 103.

3

23 Ch. D. 532 (1883).

Б 105 Me. 326, 338, 74 Atl 809 (1909).

"Whatever laws may have been extended by Congress to the Province of Shanghai are operative, not upon American soil, but upon the territory of the Chinese Empire. How do these laws reach there? By treaty, permission of the Emperor. . . . The source of the law was the Emperor."

The same view had been expressed by Professor Huberich in an article in the LAW QUARTERLY REVIEW. This view was taken, in the Court of Appeal in the case of Casdagli v. Casdagli," by Scrutton, L. J., in his dissenting opinion:

"Can it make any difference whether the sovereign of the domicil administers the law directly or allows another sovereign by grant to exercise part of his sovereignty by administering such law as he pleases in Courts which the sovereign of the domicil allows to exist in his territory? The law appears to be still the law of the domicil."

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The House of Lords has now adopted the view of the American courts and of the Lord Justice Scrutton. The view of the court was expressed most neatly by Lord Finlay, L. C.:

"In Egypt it is part of the law of the governing community or supreme power, in other words, it is part of the law of Egypt that English residents are governed by English law."

The acceptance by the House of Lords of the doctrine that the law administered in the consular courts is so administered because it is part of the territorial law of the sovereign, means its universal acceptance. Thus a source of difficulty in establishing the domicil of persons residing in the treaty ports is removed.

DOMICIL

I. The case of Casdagli v. Casdagli,9 just cited on another point, is equally important as settling a disputed question in the law of domicil. English courts for more than a century had been almost denying the possibility of an Englishman becoming domiciled in China, Egypt, or any country of so different a civilization. In Maltass v. Maltass 10 Dr. Lushington evidently doubted the possibility of a British subject becoming domiciled in Turkey, though

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subjects of other European countries have been found to have a domicil in Constantinople." In Tootal's Trusts, 12 Chitty, J., said that "every presumption " was against an Englishman acquiring a domicil in Shanghai. He was also of opinion that a Chinese domicil in Shanghai carried with it the imposition of the native Chinese law as the domiciliary law: that there is no such thing as an "AngloChinese" domicil. This doctrine was approved by the Privy Council in Abd-ul-Nessih v. Farra,13 where the country in question was Egypt. Meanwhile the American courts had been taking the opposite view; finding domicil in a treaty port on the same evidence that would have fixed a domicil anywhere. Judge Wilfley in the American Consular Court for China found an American to have died domiciled in Shanghai,1 disapproving Tootal's Trusts. This decision was followed by the Supreme Judicial Court of Maine in Mather v. Cunningham,15 and is now adopted by the House of Lords.

The doctrine has been the subject of much comment. Professor Huberich's article has already been referred to. The decision of the Court of Appeal in Casdagli v. Casdagli was adversely criticized by Professor Dickinson in a judicious article in the MICHIGAN Law REVIEW.16 The decision of the House of Lords has met with much comment, favorable in general,17 but in at least one case rather adverse.18

II. Three decisions during the past year have involved the right of an emancipated minor to acquire a new domicil. In Delaware, L. & W. R. R. v. Petrowsky 19 the plaintiff's father lived in Pennsylvania, where the plaintiff was employed in a mine; the plaintiff having been injured in the mine, the father said to him, "I cannot support you any longer, so you can go wherever you like." The plaintiff then went to live in New York, and brought this action in the federal court as a citizen of that state. The court held that

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32 HARV. L. REV. 432; 17 MICH. L. Rev. 694; 28 YALE L. J. 810.
19 COL. L. REV. 243.

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