Page:Harvard Law Review Volume 9.djvu/400

372 372 HARVARD LAW REVIEW. There being a general harmony of decision in the courts of England and America upon the conflict of laws, it is not necessary to limit a theoretical discussion of this question to any particular jurisdiction ; it may proceed according to the principles of the general common law. In 1760, in the case of Robinson ^. Bland,i Lord Mansfield said : — " The general rule, established ex comitate et jure gentium^ is that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. But this rule admits of an exception, when the parties (at the time of making the contract) had a view to a different kingdom.'* This rule, in a somewhat shorter form, as for example, " the nature, the obligation, and the interpretation of a contract are to be governed by the law of the place where it is made, unless the parties at the time of making it have some other law in view,"^ has often been stated and applied by courts of the highest authority, both in England and America, and, until recently, might justly be looked upon as something settled and fundamental. A tendency to question it has appeared. Professor Westlake, in the third edition of his book, says : — "Under these circumstances, it may probably be said with truth that the law by which to determine the intrinsic validity and effects of a contract will be selected in England on substantial considerations, the preference being given to the country with which the contract has the most real connection, and not to the law of the place of contract as such." 8 As supporting this proposition, the learned author cites Jacobs V. Credit Lyonnais,^ and In re Missouri Steamship Co.^ (cases decided since the appearance of his previous edition), and adds : — "But in both cases a stress was laid by the learned judges on the intention of the parties as the governing element in the choice of a law which is not in accordance with the discussion preceding the §, and which, where the lawfulness of the intention is itself in question, as it was In re Missouri Steamship Co., I still find it difficult to reconcile with the logical order to be followed. " « • 1 I W. Bl. 234, 257, 258; s. c. 2 Burr. 1077. The two reports differ. 2 See The Montana, 129 U. S. 397, 458. 8 Westlake, Priv. Int. Law (3d ed.), § 212, p. 258. 6 Westlake, Priv. Int. Law (3d ed.), § 212, p. 258.
 * 12 Q. B. D. 589. * 42 Ch. D. 321.