EFFECTS OF EMPIRE AT THE CENTRE: GENDER AND NATION

To begin, note that private international law puts the focus in international legal history on the state at home as opposed to abroad, on the metropole as opposed to its colonies.

Private international law's potential to introduce colonial legal relations into the metropolitan state brings to the surface the other persistent ‘anxiety of empire' (to use Anthony Pagden's term). Whereas public international lawyers have concentrated on anxiety over how to justify assertions of sovereignty abroad, private international law shifts attention to the ‘fear that whatever occurred, in no matter how distant a corner of the globe, would inevitably have consequences for what took place in the metropolis'.^[951] That the stakes differed from those of public international law can be seen from the fact that Turkey, Russia, China, Japan, Siam and other non-Christian powers were included in the Hague Peace Conferences codifying public international law, but were not invited to the Hague Conferences of 1896, 1902 and 1905 aimed at agreement on principles of private international law.^[952] The former ‘apply to the whole of the civilised world, irrespective of race and religion', whereas the latter provided that they applied only to European territories of the state parties.^[953]

The implications of imperial conflict-of-laws cases for the very nature of the metropole are at their starkest in Somerset's Case, the well-known 1772 judg­ment by Lord Mansfield, Chief Justice of the English Court of King's Bench.^[954] James Somerset had been taken from Africa as a slave and sold to Charles Stewart in Virginia, a jurisdiction where slavery was legal. Stewart brought Somerset with him to England, where Somerset later escaped and was recaptured. After Stewart decided to sell him back into slavery in Jamaica, Somerset was bound in chains aboard ship awaiting departure when abolition­ists successfully sought a writ of habeas corpus to obtain his freedom.^[955] Legal historian Daniel Hulsebosch frames the anxiety of empire as follows:

For almost two centuries, the English constitution had been constructed by contrasting English legal liberties to those available elsewhere, including in other jurisdictions in the empire. This legal alterity emerged from a political culture that was caught between wanting the gains and glory of imperial expansion and fearing that royal dominions abroad would be training grounds for arbitrary government that might travel back home.

Among the arguments made by Somerset's counsel was that respecting Virginia's laws in England would corrupt English society: what would happen to their sense of liberty if the English became accustomed to seeing colonial masters whipping their slaves in the fields on the edge of London?^[957] Lord Mansfield was clear that, however odious slavery was, a contract for the sale of a slave was recognized in England if it was from a jurisdiction where slavery was legal. But adopting the master-slave relation created under American law did not entail adopting all of its consequences and specifically not ‘so high an act of dominion' as keeping Somerset by force to be sold abroad.^[958] In separat­ing the recognition of the status of slave from recognition of the master's right to use force, the court instanced the choice-of-law distinction that a marriage entered into in one place ‘was in all places the same, but the regulation of power over children from it, and other circumstances, very various'.^[959]

Analyzing the incidents of slavery with reference to the incidents of marriage appears less jarring when we recall that gender relations were constructed as the paradigmatic case of national differences in private law. As noted earlier, most of the turn-of-the-century private international law conventions concerned family law, and differences simply between European states. Even between England and Scotland, the laws governing the constitution and dissolution of marriage were strikingly different.^[960] As between the metropolitan state and its colonies, the notion that a uniform law of contracts, bankruptcy and so on was considered essential for the colonies left family law as almost the only area in which stark cases of conflict arose.^[961] In addition to slavery cases, which lawyers have studied,^[962] cases of polygamous marriage were among the textbook examples of the public policy exception to choice of law.

It is more repugnant to the public order that Mohammedans should have one law applied to them in the colony and another in the mother-country, than that there should be different laws as to marriage and divorce for different sections of the people in the same territory in Europe just as there is in North Africa.^[963]

Conflicts cases in the metropolitan legal system thus forced an encounter between legal systems inside and for the metropole. They also potentially featured issues that not only involved women, but also involved gender relations as defining of the European state's moral core for its own society.

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