384 HARVARD LAW REVIEW. cisions illustrate the uncertainty of the result in applying the existing rule. They also caused a diversity in the law of the two countries in an important class of maritime contracts.^ Since the decision in Robinson v. Bland in 1760, in which Lord Mansfield laid down the rule in favor of the law of the place of making a contract, the conditions of commercial intercourse have undergone a revolution. Steam and electricity must have their effect on legal rules, and it is doubtful if there is any practical advantage or jus- tice in maintaining this presumption longer. On the other hand, it is not to be asserted that the intention of the parties, even if it is the true principle to be applied, will, in all cases and without limitation, determine the governing law. Only one of those limitations will be stated here. In Hamlyn & Co. V. Talisker Distillery, the clause of reference was void by the law of Scotland as against public policy, and it was argued that her courts should not be compelled to enforce it, even if the contract was governed by the law of England, and valid.^ This argument was overruled by the House of Lords, upon the ground that since the Scots law permitted a reference where the arbitrators were named, an agreement in which they were not named could not be said to violate any fundamental or essential con- siderations of public policy. If the clause of reference had been in violation of such considerations, even though not contra bonos mores, nor criminal, nor expressly prohibited, it was implied by the judges that the courts of Scotland would not be compelled to enforce it. In other words, a contract may be valid, but not en- forceable, and this distinction is of practical importance in the conflict of laws. The reader will find further illustration and discussion of the point in the recent interesting case of Emery v, Burbank,^ by Mr. Justice Holmes. William Schofield. 1 Lloyd V. Guibert, L. R. i Q. B. 115 ; The Gaetano and Maria, 7 P. D. 137 ; The Industrie, [1894] P. 58. See also The August, [1891] P. 328. 2 As to the relation between the judicial systems of England and Scotland, see Bar (2d ed.), p. 94, Mr. Gillespie's note. 2 163 Mass. 326. In this connection it may be mentioned that after the decision in The Montana, it was usual for English ship-owners to insert in bills of lading, and contracts of charter party a clause providing that all disputes should be decided accord- ing to British law; or, that the contract was made with a view to the law of England. The Iowa, 50 Fed. Rep. 561 ; The Energeia, 56 Fed. Rep. 124 ; The Hugo, 57 Fed. Rep. 403 ; The Guildhall, 58 Fed. Rep. 796 ; The Majestic, 60 Fed. Rep. 624 ; The Glenmavis, 69 Fed. Rep. 472. This clause was generally h'^ld ineffective. According to the distinction taken in Hamlyn & Co. v. Talisker Distillery, the inquiry should be
