John Westlake

“ Only where a rule contemplates a person as attached more or less permanently to a particular territory, the tie which so attaches him to it may be either nationality or domicile if the territory is a separate state, as France; but it can only be domicile if the territory is combined with others in one state. Nothing but domicile can distinguish British subjects as belonging to England, Scotland or Jamaica, or citizens of the United States as belonging to New York or Pennsylvania. ”

“ Every citizen of a foreign state in America owes a double allegiance, one to it and one to the United States. He may be guilty of treason against one or both. If the demands of these two sovereigns upon his duty of allegiance come into conflict, those of the United States have the paramount authority in American law. ”

“ That no doubt is an extreme hardship to a population the majority of which do not speak Dutch but English. But there was nothing about education in the convention, and when we treat that as a matter which might arise with any perfectly independent country, it would be absurd to suppose that a foreigner can have a claim to have his language used in schools supported by public money. How long is it in this country that a parent has had a right to have his child taught with public money? ”

“ They meet us again when we inquire in what territory, or by virtue of what territorial law, a particular alleged right has accrued. Persons belonging by domicile or nationality to A enter in B into a contract to be performed in C; where and by virtue of what law does either acquire a right against the other? Is it to be in or by the law of their homes, where they are normally, though not always necessarily, to be sued? Or of the country where they contract, which for various purposes, as those of police, but not for all purposes, has the control of them when they contract? ”

“ We must not at once condemn an ideal because it is a racial one. The larger part of the world at present is governed by racial ideals. We see how in Russia a persistent effort is made to Russify the Finns in Finland, the Poles in Poland, and all the other subjects of the Russian Empire. We see in Germany the same eager desire to exterminate by severe pressure the Polish language and the Danish language in the parts which have been annexed from the Polish and Danish kingdoms. ”

“ In the system adopted in England everything turns on the competence. For judgments in rem, declaring or disposing of the property in a thing, the test of competence is that the thing, whether movable or immovable, was within the territory of the court. Judgments which declare the status of a person, as with regard to marriage or majority, are competent if the person was subject to the jurisdiction by nationality or domicile. ”

“ A part of the British dominions, no matter what freedom it enjoys with regard to its internal affairs, can have no foreign relations distinct from those of the United Kingdom. Thus they became separate, or what in recent controversies has been called international, states, and not only that but sovereign international states, because the foreign relations allowed them were uncontrolled; they were at their sole option. There were in the conventions which recognized them certain stipulations as to their conduct towards the natives, but these were only treaty matters. ”

“ Savigny has well pointed out that our subject is analogous to the determination of the limits of laws in time, which has to be made when the just application of a new enactment is to be distinguished from the ex post facto application which cannot justly be allowed it. The truth which is aimed at in the phrase “conflict of laws” is that the main problem of our subject is the selection of a law for each given case; but different laws are candidates for selection, not from anything in them as laws, but from differing opinions about the justice of the case. ”

“ The franchise and representation asked for the Uitlanders by Sir Alfred Milner could not be otherwise than a death-blow to the Boer ideal. Now we may think, and I have no doubt that most of us do think, that the English ideal is the better of the two, but that will not give us a right to enter upon a crusade for its propagation. If we allow propagandism to be a cause for war the result will be anarchy throughout the world. ”

“ The distinction between domestic and international grounds of competence can only be explained by the history of law, and we come in sight of the fact that the rules of private international law rest finally on conventions which could not have existed if the civilization of different countries had not so much that was common in its origin and in the course which it has followed, but which suit the life of those countries just because that life is itself another outcome of those common antecedents. ”

“ And if there be anything at all sordid in the motives of the oligarchy on one side, that may well pair off with the motives which exist on the other side, the desire to free the mines of the Rand from excessive taxation, and thereby to increase, I will not say only the gains of the capitalists but the gains of those interested in the mines generally, because no doubt if the taxation were reduced there would be a better field for the employment of labour, and labour as well as capital would gain. ”

“ If, as in England, judicial precedents are held to be binding, so that the law of the land consists in part of judge-made law, a similar result is produced; an English court must follow English precedents on the application of foreign law or the refusal to apply it, to the same extent to which it would be bound to follow them on any other point. So far as our matter remains open for a judge, he has, to assist him towards a just decision, the treaties, written laws and judicial precedents of other countries as examples, and a vast literature which has grown up in all Christian countries. ”

“ South Africa can prosper under two, three or six governments, but not under two absolutely conflicting social and political systems, perfect equality for Dutch and British in the British colonies side by side with permanent subjection of British to Dutch in one of the republics. It is idle to talk of peace and unity under such a state of affairs. It is this which makes the internal condition of the Transvaal republic a matter of vital interest to Her Majesty's government. ”

“ English courts usually hold themselves to be more stringently bound by rules, whether those enacted by parliament or those adopted for themselves; and if they should continue to profess the doctrine that capacity depends on the law of the domicile, it is not probable that they will deem themselves entitled to make exceptions for the protection of persons contracting in England with foreigners not enjoying such capacity. ”

“ It is not likely, not having the support of Germany, that they would take any steps in peaceful times. But if it is the fact that there are considerable military powers on our frontiers which have that propaganda at heart, then I think it would be folly to ignore it. We must expect as reasonable men that an attempt by arms would be carried out when England was in difficulty, and the only way to deal with it was to deal with it at a time when England was not in difficulties. ”

“ Comity of Nations.—In the 17th century the Dutch jurists Paul and John Voet and Huber brought forward a view which has since been largely adopted in England and the United States, namely, that the effect given by courts of law to foreign public authority is only due to the comity of nations, but for which every possible question before them would have to be decided by the law of the land. ”

“ I regret to say that this doctrine, supported as it is by a ceaseless stream of malignant lies about the intentions of the British government, is producing a great effect upon a large number of our Dutch fellow colonists. Language is frequently used which seems to imply that the Dutch have some superior right even in this colony to their fellow citizens of British birth. Thousands of men peaceably disposed, and if left alone perfectly satisfied with their position as British subjects, are being drawn into disaffection, and there is a corresponding exasperation on the side of the British. ”