'I am wholly unable to understand why the mere putting into writing the very same contract which the law created between them (the spouses), without any writing at all, should bar the husband from altering the contract relations between himself and his wife; when, if the law creates that contract relation, then the husband is not barred from getting rid of the obligation which upon his marriage the law affixed to the transaction' ([1900] A. C. at p. 26). After having disposed of Lashley v. Hog the Lord Chancellor concludes: We are at liberty to decide the question now in dispute in accordance with reason and common sense' (p. 30). Lord Morris agreed in these reasons (p. 36). Lord Macnaghten: 'If there is a valid compact between spouses as to their property, whether it be constituted by the law of the land or by convention between the parties' (p. 33). Lord Shand: As the Code enacted expressly all that a written contract required to provide' (p. 38). Lord Brampton: I pause here to emphasize the fact that this system (of the Code) operates upon no spouses unless by their mutual consent' (p. 41).

Proceeding from such views it can hardly be said to be a hazardous step to conclude that the law of the matrimonial domicil must be considered as being of an equal operative force to a marriage contract, taking its place where the same does not exist, and that, by a subsequent change of domicil, its effect on the property relations of the spouses is as little affected as an express contract would have been. Such conclusion, I submit, would support the general principle proposed to be established; with this practical result, that a husband and wife, immigrating to England, retain the property relationship provided for them by the law of the country where they were domiciled at the time of their marriage, whether such law created community of goods or any other definite and judicially recognized system, e. g. that of ususfructus maritalis.

And this brings me to consider by way of illustration how in the light of such a principle of English law on the one hand, and the provisions of the new German law on the other hand, property relations between man and wife in this country and in Germany respectively, in the absence of a marriage contract, will, from an international point of view presumably, have to be treated, premising that the subject has become highly complicated by the circumstance that German legislation has entered upon its new course of substituting throughout the principle of nationality for that of matrimonial domicil1.

Compare my article in vol. xvi, no. 61, Jan. 1900, p. 88, Law QUARTERLY REVIEW.

Let us first take the case of a German domiciled in England at the time of his marriage. The relevant provisions of the German law will be these: The property relations are governed by the German law where the husband at the time of marriage was a German subject (sect. 15, Introductory Act). The wife's property by virtue of her marriage becomes subject to the administration and usufruct of the husband. Such property includes property acquired by the wife during marriage' (sect. 1363, Civil Code). Suppose the wife of the German subject, as referred to above, inherits a sum of money from her father who has died intestate, and whose estate situate in Germany is in the hands of a German administrator. The latter will, in accordance with the law which dominates the property, be justified in paying the money over to the husband. The immediate consequence will be, that the wife will be deprived of the right which the policy of the law, under the dominion of which she and her husband have ever since their marriage lived, has deliberately extended to her. Whether she may eventually recover the money against her husband is a point which the Courts will have to determine. Should money devolve upon her from an English source, and through the agency of an English administrator, I submit that he will hardly be safe in paying it over to her, and taking his discharge from her, without having applied to the Court for directions.

Let us now consider the case of an Englishman domiciled in Germany and marrying an English woman whilst so domiciled. The Introductory Act provides: Foreign spouses having, at the time of their marriage, their domicil in Germany, their property relations will be governed by the law of the country to which the husband belongs at that time' (sect. 15). According to this provision the property of an English man and wife would be dealt with on the basis of English law. On the other hand, there is a section (27) in the same Act which must be read in conjunction with the former, and which is to the effect that, where, according to the law of the country to which the parties belong, German law is to be applied, the German law shall obtain. Now as the English law recognizes the law of the matrimonial domicil, i. e. in the hypothetical case under consideration, the German law, it would follow that the latter would, by German Courts, be treated as regulating the property relations between the husband and wife, with the same result as in the former case, viz. when such

1 The right of administration and usufruct does not apply to bona reservata. Such are, generally speaking, the wife's paraphernalia, her earnings, and property coming to her earmarked by a donor or testator as bona reservata.

couple change their domicil to their native country the wife would, as far as the German law goes, be deprived of the benefit which English legislation has bestowed upon her. Will English Courts draw the consequences of De Nicols v. Curlier1 in such a case?

In conclusion I may be allowed to observe that in my opinion the change which the German legislature has made, in discarding the criterion of matrimonial domicil, is not a happy one from an international point of view, in so far as such an extreme assertion of the national principle is naturally in itself bound to clash with the spirit of international jurisprudence. I may further remark that as the whole doctrine referring to the subject of property relations between husband and wife is more or less imbued with the fiction of the intentions of the parties, it must be more rational to conceive that the parties look to the laws of the country under which they live, and which they are presumed to know, than to those of a country from which they have separated themselves. And this applies with particular force to Germany, in so far as they may and, as a matter of fact, do lose their nationality through lapse of time. So that it would appear absurd to say that a born German, living in England and perhaps ceasing to be a German subject the day after his marriage with an English woman, would consciously or subconsciously look to the German law as governing the relations between himself and his wife.

JULIUS HIRSCHFELD.

By the way I may remark that the German idea of domicil is more lax than that of English jurisprudence. The Code only requires a permanent residence and admits of several domicils simultaneously.

'A

CONTEMPT OF COURT AND THE PRESS.

LITTLE more quickness in the Government would cure this itch of libelling,' remarks Laud in one of his letters. Writing as he was of Prynne, of whom he was able to say, 'I thank my God I had his ears,' one wonders why he was not satisfied with the control over libellers then possessed by the Star Chamber. The Star Chamber and licenser of printing have disappeared, but there still remains over the press of this country one disciplinary jurisdiction almost as stern and far-reaching in its peculiar domain as that of the Star Chamber. It is that of the judges to punish those who print or publish matter declared to be in contempt of the Court.

This jurisdiction is so venerable and has been left so uncontrolled by the legislature that there is nothing more specific than the Bill of Rights to prevent an offender figuring in the pillory sans ears and nose if a judge were minded to follow Stuart precedent. It is moreover clear that, once in, neither Habeas Corpus nor Parliament could get him out until he had purged his contempt; as Mr. Gladstone had to admit in August, 1882, when Mr. Dwyer Gray, M.P., Lord Mayor of Dublin, was sentenced to three months' imprisonment, fined £500, and made to find bail in £10,000 for his good behaviour for comments in the Freeman's Journal on the conduct of a Dublin jury. Subsequently, on October 24 in the same year, in the debate on a motion for the appointment of a select committee to enquire into the matter, Mr. Gladstone promised to introduce a measure dealing with and altering the law as to contempt of Court (Hansard, 3rd series, vol. 274, col. 36); but no legislative proposals were in fact ever made.

The case of Mr. Dwyer Gray aroused criticism chiefly owing to the severity of the punishment; but cases involving some doubt as to whether the jurisdiction to commit has been properly invoked, especially if the punishment is well deserved, seldom receive adequate notice. Certainly the recent case of Reg. v. Gray1 tried before the Lord Chief Justice and Grantham and Phillimore JJ. on March 27 and 28, owing to the peculiar and unusual nature of the contempt alleged, deserves more attention than it has as yet received.

1 [1900] 2 Q. B. 36, 96 L. J. Q. B. 502.

In this case no one could feel the least grain of sympathy with the offender for his vulgar attack upon the judge, but the general acquiescence of the press in the law as laid down by the Lord Chief Justice and agreed to by Grantham and Phillimore JJ. is somewhat surprising. The Times alone showed a lurking suspicion that there were possible dangers in the application of the principles laid down by the Court. No one can fairly accuse our present Bench of an undue desire to amplify the judicial jurisdiction. The breath of public sentiment permeates the Bench as freely as it does Parliament, and the country is, for the most part, content to allow the judges whatever legal means the law permits for protecting their reputations, confident that there is small likelihood of its being abused. Still there is a real danger in leaving matters of criminal procedure merely to the discretion of a judge, as, for instance, the power to order corporal punishment for certain offences. So in matters of contempt; a jurisdiction which enables a judge to commit to prison a subject of the Queen, without the verdict of a jury and without appeal; to fine bim either as an additional or substitutional punishment, without limit of amount, for an offence which has never been defined by statutory enactment, is a jurisdiction which no one will deny requires the closest scrutiny whenever it is exercised. Another danger is due to the fact that owing to the vague nature of the offence the decisions of the judges as to the law of contempt form precedents which are not merely declaratory but creative of the law; and every extension of this peculiar jurisdiction diminishes the area within which public opinion can operate to control it. It should also be remembered that the jurisdiction is one often exercised in the colonies where public opinion is either non-existent or powerless to act as an effective force to control the judiciary.

The strenuous effort which the judges of the eighteenth century made to keep the question of libel or no libel under their control as matter of law is well known; and the attack of Junius on Lord Mansfield in the preface to the collected edition of his letters was due to the prominent part taken by Lord Mansfield in this controversy. The passing of Fox's Libel Act in 1792 put the matter at rest, and since that time, with the sole exception of such libels as are contempt of Court, juries are the only arbiters of the question whether any given words are libellous or not. When, however, a libel on a judge is also a contempt of Court, the offender, being in this case proceeded against by motion and not by indictment or information, is deprived of the protection which Fox's Act would otherwise give him, as the Act only applies where proceedings are taken either civilly or by indictment or information. When the