HOUSE OF LORDS. DEMETRIUS EMMANUEL
CASDAGLI, APPELLANT; AND JEANNE CASDAGLI,
RESPONDENT. [1919] A.C. 145 COUNSEL: Hume Williams K.C. and Patrick Hastings for the
respondent. George Wallace K.C. and J. Harvey Murphy for the appellant. SOLICITORS: For the appellants: Hatchett-Jones, Bisgood, Marshall
& Thomas. For the respondent: Treherne, Higgins & Co. JUDGES: Lord Finlay L.C., Viscount Haldane, Lord Dunedin, Lord
Atkinson, and Lord Phillimore. DATES: 1918. July 25, 26, 29, 30. October 28. Divorce – Jurisdiction – Domicil –
Residence in Egypt – British protected Subject –
Extra-territoriality. There is no rule of law that a British resident in Egypt, who is
registered as a British subject at the British Consulate, and as a consequence
enjoys certain privileges and immunities by reason of the ex-territorial
jurisdiction exercised by His Majesty in that country, cannot acquire an
Egyptian domicil. Where, therefore, a British subject, having his domicil of origin
in England, migrated to Egypt and resided there as a British protected subject,
and married in Egypt, and had since made his permanent home there without any
intention of returning to England:- Held, that he had acquired an Egyptian domicil, and, consequently,
that the English Court had no jurisdiction to entertain a suit by his wife for
dissolution of marriage. Opinion of Chitty J. in In re Tootals Trusts (1882) 23 Ch. D. 532
and dictum of Lord Watson in Abd-ul-Messih v. Farra (1888) 13 App. Cas.
431, 445 overruled. Decision of the Court of Appeal [1918] P. 89 reversed. APPEAL from an order of the Court of Appeal(1) affirming a
judgment of Horridge J. In March, 1916, the respondent presented a petition for
dissolution of her marriage with her husband, the appellant. The appellant, who was a British subject born in England, by an
act on petition, prayed that the petition should be dismissed, on the ground
that he was domiciled in Egypt, and that consequently the High Court had no
jurisdiction to entertain a suit for dissolution of the marriage. The
respondent, by her answer, alleged that the appellant had never abandoned his
English domicil. The facts, which are fully set out in the report of the case [*46] in the Court of
Appeal and in the judgment of the Lord Chancellor, may be shortly summarized as
follows. The appellant was born in England in 1872. In 1895, when he was 23
years of age, he went to reside in Egypt, and had resided there ever since,
first at Alexandria and afterwards at Cairo. The appellant and respondent were
married at Alexandria on July 1, 1905, according to the rites of the Orthodox
Greek Church, of which they were both members, and subsequently on July 5,
1905, by a civil marriage at the British Consulate. The appellant had at all times been registered at the British
Consulate as a British subject. The Consular Courts in Egypt exercise jurisdiction in matters
relating to the personal status of British subjects resident in that country,
and registered as such; but dissolution of marriage is excepted from their
jurisdiction. Upon these facts the appellant contended that he had acquired a
domicil of choice in Egypt. The respondent contended that it was not legally
possible for the appellant to acquire such a domicil, inasmuch as he resided
there as a privileged member of an ex-territorial community. Horridge J. found that the appellant had voluntarily fixed his
residence in Egypt with an intention of remaining there for an unlimited time,
but held, upon the authority of In re Tootals Trusts(1) and
Abd-ul-Messih v. Farra(2), hat the appellants residence in Egypt was
ineffectual to create an Egyptian domicil of choice, and that his domicil of
origin remained. He therefore dismissed the act on petition. The Court of Appeal, by a majority (Swinfen Eady and Warrington
L.JJ., Scrutton L.J. dissenting), affirmed this decision. 1918. July 25, 26, 29, 30. George Wallace K.C. and J. Harvey
Murphy for the appellant. The question is whether there is any rule of law
which prevents a British subject from acquiring a domicil in Egypt by reason of
the ex-territorial (1) 23 Ch. D. 532. (2) 13 App. Cas. 431. [*47] jurisdiction exercised by Great Britain in that country. The
majority of the Court of Appeal have held that the appellant, a British
subject, registered as such at the British Consulate in Egypt, inasmuch as in
matters relating to personal status he is subject to the jurisdiction of the
Consular Courts, which derive their authority from the capitulations made
between Great Britain and the Sultan and confirmed by the Treaty of the
Dardanelles in 1809, is a member of a privileged community, living under
English law on Egyptian soil, and is legally incapable of acquiring a domicil
of choice in that country, and they have treated the case as concluded by In
re Tootals Trusts (1) and Abd-ul-Messih v. Farra.(2) In In re
Tootals Trusts (1) a claim for succession duty against the estate of an
Englishman permanently resident in Shanghai was resisted on the ground that the
testator had acquired an Anglo-Chinese domicil. It was admitted by counsel for
the personal representatives of the testator that they could not contend for a
Chinese domicil, but the admission, and its approval by the learned judge, were
based upon a misapprehension or misapplication of the principles laid down by
Sir William Scott in The Indian Chief(3) and by Dr. Lushington in Maltass v.
Maltass.(4)
The Indian Chief(5) was decided upon a question of commercial domicil, and it
was there held that such domicil was derived from community and not from
locality. But commercial domicil is wholly distinct from civil domicil, and
different considerations apply to it. That case, therefore, has no application.
In Maltass v. Maltass (4) Dr. Lushington, who appears to have misapprehended
the effect of Sir W. Scotts judgment in The Indian Chief(5), decided
no question of domicil and expressed no opinion as to the legal capacity of a
British subject to acquire a domicil in Turkey; but he thought there was every
presumption against the intention of British Christian subjects voluntarily
becoming domiciled in the Dominions of the Porte by reason of the difference of
religion, customs, and habits. Those observations go to evidence (1) 23 Ch. D. 532. (2) 13 App. Cas. 431. (3) (1801) 3 C. Rob. 12, 22, 28-30. (4) (1844) 1 Rob. Eccl. 67, 80, 81. (5) 3 C. Rob. 22. [*48] only, and they do not apply with the same force to Egypt at the
present day. Assuming that the admission in In re Tootals Trusts (1) was well founded,
the appellant accepts the decision of Chitty J. that domicil arises from
locality and not from connection with a community, and that the
testators membership of the English community at Shanghai conferred
no Anglo-Chinese domicil; but the decision proceeded upon a false admission,
and is wrong in fact and in law. In Abd-ul-Messih v. Farra (2) the question was whether the
administration of the estate of an Ottoman subject, who had taken up his
permanent residence at Cairo under British protection, was to be governed by
Turkish or by English law. Lord Watson, delivering the judgment of the Privy Council, decided
that the deceaseds domicil was in Cairo, and that Turkish law
applied. He rejected the contention that the deceaseds selection of a
permanent abode in Cairo under British protection attracted to him an
Anglo-Egyptian domicil, and held that there could be no such thing as a domicil
independent of locality and arising simply from membership of a privileged
society. That decision the appellant accepts and relies upon, but he takes
exception to certain obiter dicta of Lord Watson. His Lordships description of the position of foreigners
resident in Egypt under British protection is, at the present time at any rate,
incorrect. They are amenable to the jurisdiction of the Mixed Courts, which
were created by the Khedive in 1875, and which are composed of judges, partly
foreigners and partly natives, appointed by the Egyptian Government, and they
are also to some extent amenable to the Egyptian local Courts. Moreover, the
Consular Courts are constituted by permission of the Egyptian Sovereign, and
are to be regarded as Egyptian Courts deriving their authority from the
Sovereign of that country. So that the law administered by those Courts is, in
truth, part of the municipal law of Egypt. See Blackstone, vol. 1, pp. 43-46.
They are not independent of the Egyptian Courts nor are (1) 23 Ch. D. 532. (2) 13 App. Cas. 431, 445. [*49] they immune from taxation: Scotts Law affecting Foreigners
in Egypt as the Result of the Capitulations. Lord Watson further said that residence in a foreign
State, as a privileged member of an ex-territorial community, although it may
be effectual to destroy a residential domicil acquired elsewhere is ineffectual
to create a new domicil of choice. It is submitted that that dictum
of Lord Watson, which was not necessary to the decision of the case, and the
opinion of Chitty J. in In re Tootals Trusts (1), are erroneous
and ought to be overruled. It is objected that In re Tootals
Trusts (1)
has remained unquestioned for so long that it ought not now to be disturbed,
but it has never been acquiesced in by the profession. It has been criticized
by text writers of authority: Westlakes Private International Law,
5th ed., pp. 336-349; Diceys Conflict of Laws, 2nd ed., p. 724n.;
Piggott on Ex-territoriality, 1907 ed., p. 217; and in Mather v. Cunningham (2) the Supreme
Judicial Court of Maine refused to follow it. See also The Eumaeus.(3) Domicil depends
on locality and not upon society; it is not affected by the fact that a man has
joined any particular society. The test of domicil is residence in a locality
coupled with an intention to reside for an indefinite time. Swinfen Eady L.J. was in error in regarding it as essential to the
acquisition of a domicil in a foreign country that the person residing there
should adopt the manner of life and identify himself with the customs of the
native inhabitants. It is suggested that a domicil may be acquired in a
barbarous country, though the point has never been decided, and that barbarism
is only material as evidence with reference to the presumed intention of the
person sojourning in that country. The appellants argument is contained
in the judgment of Scrutton L.J. It is settled that the jurisdiction of the
Court in the matter of divorce depends upon the matrimonial domicil; therefore
the High Court has no jurisdiction to entertain the respondents suit. (1) 23 Ch. D. 532. (2) (1909) 105 Maine, 326; 74 Atlantic Rep. 809. (3) (1915) 1 Br. & Col. P. C. 605, 615. [*50] They also referred to Le Mesurier v. Le Mesurier (1); Bater v. Bate
r(2);
In re Craignish (3); In re Patience (4) v; Bell v. Kennedy (5); Udny v. Udny (6); Walker v.
Baird
(7) ; Jopp v. Wood (8); Ex parte Cunningham (9); Cockrell v. Cockrell (10); Bremer v.
Freeman(11); Douglas v. Douglas (12); Haldane v. Eckford (13); In re Steer (14); Winans v.
Attorney-General.(15) Hume Williams K.C. and Patrick Hastings for the respondent. In Abd-ul-Messih
v. Farra (16) Lord Watson, after adopting the dictum of Lord Westbury in Udny
v. Udny
(17) that domicil of choice is a conclusion or inference which the
law derives from the fact of a man fixing voluntarily his sole or chief
residence in a particular place, with an intention of continuing to reside
there for an unlimited time, says, According to English
law, the conclusion or inference is, that the man has thereby attracted to
himself the municipal law of the territory in which he has voluntarily settled,
so that it becomes the measure of his personal capacity. He then lays
down that the law which regulates the mans personal status must be
that of the governing power in whose dominions he resides; and he goes on to
say that residence in a foreign country, without subjection to its
municipal laws and customs, is therefore ineffectual to create a new
domicil; and he approves In re Tootals Trusts.(18) Lord Watsons language is precise in its terms. It is a
carefully considered summary of the law on the subject and it is conclusive, as
was recognized by Chitty J. in Abdallah v. Rickards.(19) Not only has the law been definitely settled by In re
Tootals Trusts (20) and Abd-ul-Messih v. Farra (21), but it has
since (1) [1895] A. C. 517. (2) [1906] P. 209. (3) [1892] 3 Ch. 180. (4) (1885) 29 Ch. D. 976. (5) (1868) L. R. 1 H. L. Sc. 307. (6) (1869) L. R. 1 H. L. Sc. 441. (7) [1892] A. C. 491. (8) (1865) 4 D. J. & S. 616, 623. (9) (1884) 13 Q. B. D. 418. (10) (1856) 25 L. J. (Ch.) 730. (11) (1857) 10 Moo. P. C. 306. (12) (1871) L. R. 12 Eq. 617. (13) (1869) L. R. 8 Eq. 631. (14) (1858) 3 H. & N. 594. (15) [1904] A. C. 287. (16) 13 App. Cas. 431, 439. (17) L. R. 1 H. L. Sc. 320. (18) 23 Ch. D. 532. (19) (1888) 4 Times L. R. 622. (20) 23 Ch. D. 532. (21) 13 App. Cas. 431. [*51] been universally acted on: The Derfflinger (No. 1) (1); The Lutzow (2); Diceys
Conflict of Laws, 2nd ed., pp. 91, 724. If a man carries with him into the
country where he intends to reside part of the laws of his own country, and
enjoys immunity from the laws of the new country, he cannot, by permanent
residence, acquire a domicil of choice in that country. It follows that a British
subject cannot acquire a domicil in Egypt so as to determine his domicil of
origin. They also referred to Imperial Japanese Government v.
Peninsular and Oriental Steam Navigation Co. (3) George Wallace K.C. replied. The House took time for consideration. October 28. LORD FINLAY L.C. My Lords, this appeal arises out of
proceedings for divorce taken in the Divorce Court in England by the wife, the
respondent in this appeal, against her husband, the appellant. The husband, by
Act on Petition, alleged that he had acquired a domicil of choice in Egypt,
that there was no English domicil, and that the English Court had no
jurisdiction to entertain a suit against him for dissolution of marriage. The
wife, by her answer, set up that the husband had never abandoned his domicil of
origin, which was English, and that the Court, therefore, had jurisdiction.
Evidence was taken orally and upon affidavit. The case was tried before
Horridge J. He held that he was bound by authority to decide that a British
subject, registered as such at the British Consulate, could not, in point of
law, acquire a domicil in Egypt, and his decision was affirmed by the majority
of the Court of Appeal (Swinfen Eady L.J. and Warrington L.J.), while Scrutton
L.J. dissented, holding that there was no rule of law against the acquisition
of a domicil in Egypt by a British subject. From the decision of the Court of
Appeal the present appeal is now brought to your Lordships House. The
facts are not in dispute, and the only question is whether it is, in point of
law, impossible for a registered British subject to acquire (1) (1916) 1 Br. & Col. P. C. 386. (2) (1915) 1 Br. & Col. P. C. 528. (3) [1895] A. C. 644, 654, 656. [*52] a domicil in Egypt. It was contended for the respondent that this
point had been decided in her favour by Chitty J. in In re Tootals
Trusts
(1) and by the Judicial Committee in Abd-ul-Messih v. Farra (2), and that these
cases had been correctly decided and ought to be followed by your
Lordships House. It is admitted that the appellant is, and always has been, a
British subject. He was born in England in 1872, his father being a naturalised
British subject residing in England, and carrying on business there and in
Egypt. The appellant was taken to Egypt in 1879 on account of his health, and
remained there until 1882, when he returned to England. He was educated in
England and in France, and returned to Egypt in 1895 when he was 23 years of
age. He resided in Alexandria from 1895 to 1900, and was engaged in his
fathers business there. In 1900 he went to Cairo to manage the
business in Cairo, and has resided in Cairo from that time until the present.
He always has been, and is, a member of the Greek Orthodox Church, and the
respondent, who was born in Egypt, is a member of the same Church. They were
married according to the rites of their Church in Alexandria on July 1, 1905,
and on the 5th of the same month the civil marriage took place at the British
Consulate at Alexandria. The appellant was taken into partnership by his
father, together with the appellants four brothers, in 1910. The
father died in 1911, and since his death the appellant has carried on the
Egyptian branch of the business along with two of his brothers. The appellant
has been, and is, registered as a British subject at the British Consulate at
Cairo. Horridge J. found that the appellant had fixed his residence in Egypt
with the intention of residing there for an unlimited time. He decided against
the husband on the question of jurisdiction, not at all upon the facts as to
residence, but simply on the ground that, in point of law, it was impossible
for a British subject to acquire a domicil in Egypt on account of the
extra-territorial rights which British subjects there enjoy. The same view was
taken by the majority of the Court of Appeal. (1) 23 Ch. D. 532. (2) 13 App. Cas. 431. [*53] Until December, 1914, Egypt was, in the contemplation of law, a
part of the Ottoman dominions; but in that month the suzerainty of the Sultan
of Turkey was terminated, and Egypt became a Sultanate under the protection of
Great Britain. The capitulations which had long governed the position in Egypt
of the subjects of Great Britain and of other European Powers remain in force
at the present time. These capitulations are a series of treaties with the
several European Powers. The capitulations between Great Britain and the Sultan
of Turkey were confirmed by the Treaty of the Dardanelles in 1809, and by s. 16
of that Treaty it was provided that disputes amongst the English themselves
should be decided by their own magistrate or consul according to their customs,
without interference by the Turkish authorities. Consular Courts were
accordingly established for the decision of such disputes between English subjects,
not relating to land, and such Courts are now regulated in Egypt by the Egypt
Order in Council of His Majesty dated February 16, 1915. By that Order the
jurisdiction of the Consular Courts, which had been established by His Majesty
in Egypt under the Capitulations, was continued. These Courts deal with
disputes, not relating to land, the parties to which are all British subjects,
and all questions affecting the personal status of a British subject must be
determined in the Consular Courts. There are also in Egypt what are termed
Mixed Courts, for the purpose of dealing with disputes between foreigners of
different nationalities, or between foreigners and natives of Egypt. These
Mixed Courts were established by the Khedive in 1875, after negotiations with
the European Powers. They are Egyptian Courts which administer the law
promulgated formerly by the Khedive, and since December, 1914, by the Sultan of
Egypt. The Courts of first instance consist of seven judges – 4
foreigners and 3 Egyptian – while the Court of Appeal consists of 11
judges – 7 foreigners and 4 Egyptian. The judges are appointed by the
Egyptian Government after communication, in the case of foreigners, with the
Government of the country to which they belong. These Courts have criminal
jurisdiction [*54] over foreigners in the matters enumerated in the
Règlement dOrganisation Judiciaire pour les procs mixtes, and have
civil jurisdiction over all civil and commercial disputes between Egyptians and
foreigners and between foreigners of different nationalities not relating to
the law of personal status. They have also exclusive jurisdiction in actions
relating to immovable property to which foreigners are parties. The
jurisdiction of the Mixed Courts in these matters is defined by art. 9 of Titre
I. of the Règlement, Ces tribunaux connaîtront
seuls des contestations en matire civile et commerciale entre indignes et
étrangers et entre étrangers de nationalités
différentes, en dehors du statut personnel. Ils
connaîtront seulement des actions réelles immobilires entre indignes et
étrangers ou entre étrangers de mme
nationalité ou de nationalités
différentes.(1) It is, therefore, clear that foreigners
residing in Egypt are subject to the law of Egypt and to Egyptian Courts, with
exceptions in the case of disputes all the parties to which are of the same
nationality or which relate to the law of personal status. The Turkish Government had been in the habit of exacting tribute
in the form of capitation tax from unbelievers permitted to reside in Ottoman
territory. By the Capitulations British subjects were exempted from this
tribute. During the argument, your Lordships were referred to Mr. J. H.
Scotts work on the law affecting foreigners in Egypt (revised
edition), in which, at page 171 and the following pages, the question of
taxation as affecting foreigners in Egypt, is discussed. The learned author, in
summing up the law on this point, says (at p. 172): As a matter of
fact no tax of any importance exists at the present time in Egypt which is not
paid by foreigners as much as by natives. The land tax is payable by
foreigners under the law of 1867, and would appear to have been payable by
custom before that date, and the house tax is also payable by foreigners (pp.
173, 174). Custom dues are payable by (1) The latest recension of these regulations may be found in the
Codes des tribunaux mixtes dEgypte, ed. 1917, cp. the Code de
procédure civile et commerciale, 1917, art. 98. The variations are
not material for any purpose of the present report. – H. B. H. [*55] foreigners (p. 173).
All these matters have formed the subject of agreement between the various
Powers and the Government of Egypt, and it has been held by the Mixed Tribunals
that no tax can be imposed upon foreigners without the consent of their own
Government. The Consular jurisdiction over British subjects in Egypt is exercised
under the Order in Council of November 7, 1910, modified as regards Egypt by
the Egypt Order in Council of February 6, 1915, which was made after the
renunciation of allegiance to Turkey and the constitution of Egypt as a
separate Sultanate under British protection. There is a Supreme Consular Court
sitting at Alexandria, and Provincial Courts are provided for by art. 17 of the
Order in Council. The Court has jurisdiction over British subjects in Egypt and
any property there of any British subject, as also in respect of British ships
within its limits. It has also jurisdiction in certain special cases with
regard to Ottoman subjects and foreigners with the consent of their Government.
Its jurisdiction is in matters criminal and matters civil. The article which is
most directly relevant to the present proceedings is art. 103 of the Order in
Council of 1910, which runs as follows: The Supreme Court shall as
far as circumstances admit have for and within the Ottoman Dominions with
respect to British subjects all such jurisdiction in matrimonial cases, except
the jurisdiction relative to dissolution or nullity or jactitation of marriage,
as for the time being belongs to the High Court in England. It
follows that the marriage between the appellant and the respondent could not be
dissolved by the Consular Court. It was urged upon us that this pointed to the
inference that the Divorce Court in England must have jurisdiction, as
otherwise the wife would be unable to obtain anywhere the relief to which she
alleges she is entitled. It is, however, well settled that the jurisdiction of
the Divorce Court depends upon domicil. If the husbands domicil be
English he or his wife may sue for a divorce in the English Court. If the
domicil is not English jurisdiction will not be conferred by the fact that the
relief cannot be obtained in the Consular [*56] Court. The fact that the acquisition by a
British subject of an Egyptian domicil would make it impossible to get relief
by way of divorce has no bearing on the question of law whether such a domicil
can be obtained by him in point of law; it might conceivably in some cases form
an element for consideration in inquiring whether he had the intention to
acquire a domicil in Egypt. The present case, therefore, depends upon the question whether the
husband has an Egyptian or an English domicil. Upon the evidence, and according
to the findings of the Courts below, the husband has done everything possible
to acquire an Egyptian domicil, and this he had acquired unless, as a matter of
law, it be impossible for a British subject in his position to acquire such a
domicil. It was argued that British subjects in Egypt enjoy ex-territoriality,
and that this prevents the acquisition of Egyptian domicil. This argument appears
to me to rest upon a misconception as to the position of a British subject in
Egypt. His position is in no respect analogous to that of an ambassador and his
staff in a foreign country. He is subject to the law of Egypt as administered
by the Mixed Tribunals, and pays taxes. It is true that on a criminal charge,
not being one of those enumerated in the law as to Mixed Tribunals, he must be
tried in His Majestys Consular Court, and civil disputes between him
and other British subjects and questions as to his personal status and
succession must be there determined. The jurisdiction exercised by His Majesty
in Egypt is indeed extra-territorial, but it is exercised with the consent of
the Egyptian Government, and its jurisdiction is therefore, for this purpose,
really part of the law of Egypt affecting foreigners there resident. The
position of a British subject in Egypt is not extra-territorial; if resident
there, he is subject to the law applicable to persons of his nationality.
Whether that law owes its existence simply to the decree of the Government of
Egypt or to the exercise by His Majesty of the powers conferred on him by
treaty is immaterial. It has often been pointed out that there is a presumption against
the acquisition by a British subject of a domicil [*57] in such countries as
China and the Ottoman dominions, owing to the difference of law, usages, and
manners. Before special provision was made in the case of foreigners resident
in such countries for the application to their property of their own law of
succession, for their trial on criminal charges by Courts which will command
their confidence, and for the settlement of disputes between them and others of
the same nationality by such Courts, the presumption against the acquisition of
a domicil in such a country might be regarded as overwhelming unless under very
special circumstances. But since special provision for the protection of
foreigners in such countries has been made, the strength of the presumption
against the acquisition of a domicil there is very much diminished. Egypt
affords a very good illustration of this. What presumption is there against the
acquisition of an Egyptian domicil by a British subject when the country is
under British protection and when the British subject is safeguarded in all his
rights in the manner which I have described? The question is one to be tried on
the ordinary principles applicable to such questions of fact. The view that it
is impossible in point of law could be supported only on the assumption that
the doctrine of ex-territoriality applies to all British subjects, so that
though actually in Egypt they are in contemplation of law still in their own
country, and that for this reason there is not, and cannot be, the residence in
the particular locality necessary for the acquisition of domicil. Any such view
as to impossibility appears to be erroneous in principle, and inconsistent with
the evidence in this case as to the position of a foreigner resident in Egypt.
It is, however, necessary to examine the authorities which were strongly
pressed upon us as showing that the point should be treated by this House as no
longer open to discussion. In the case of The Indian Chief (1) the question
arose whether the owner of cargo, being an American citizen resident at
Calcutta, should be treated as a British subject so as to render illegal his
trading with the enemy. All that was (1) 3 C. Rob. 22. [*58] decided in the case was that the nominal sovereignty of the Great
Mogul might for this purpose be disregarded, and that the cargo-owner, as he
resided and traded in Calcutta under the Government of the East India Company,
must be treated as a British subject, and as he had traded with the enemy the
cargo was condemned. The case was cited merely on account of the passage in Sir
W. Scotts judgment(1), in which he explains, with even more than his
wonted charm of expression, the position of foreign traders in Eastern
countries. The passage illustrates the presumption against the acquisition of a
domicil of choice in such Eastern countries, but is not otherwise relevant to
the present discussion. In 1844 the case of Maltass v. Maltass (2) came before Dr.
Lushington sitting for Sir H. Jenner Fust in the Prerogative Court of
Canterbury. The question was as to the law which should govern the will of a
British subject who for many years had resided in Smyrna. Dr. Lushington found
that the deceased was a British subject, and then proceeded to inquire whether
he was domiciled in Smyrna, but pointed out that this inquiry would be
superfluous if, with respect to his succession, the law of England and the law
applicable in Turkey were the same. Referring to the provisions of the
Capitulations that the property of British subjects dying in Turkey should be
disposed of according to English law, he held that this applied even in cases
in which the deceased had become domiciled in Turkey, and that it was
immaterial whether he had acquired a domicil in Smyrna or retained his English
domicil, as in either case the English law would apply. He concluded with the
following observations: I give no opinion, therefore, whether a
British subject can or cannot acquire a Turkish domicil; but this I must say,
– I think every presumption is against the intention of British
Christian subjects voluntarily becoming domiciled in the Dominions of the
Porte. As to British subjects, originally Mussulmen, as in the East Indies, or
becoming Mussulmen, the same reasoning does not apply to them as Lord Stowell
has said does apply in cases of a total and entire difference (1) 3 C. Rob. 28-30. (2) 1 Rob. Eccl. 67, 80. [*59] of religion, customs, and habits. The language of Dr.
Lushington in this judgment lends no countenance to the idea that it is
impossible for an English subject to acquire a domicil of choice in a country
like Turkey. So far as he touches upon the question at all, he treats it not as
a matter of law but as a question of fact. In 1882 the case of Tootals Trusts (1) was decided by
Chitty J. In that case a petition was presented by residuary legatees asking
for a declaration that the testator was domiciled at Shanghai at the time of
his death, and consequently that no legacy duty was payable. The testator was a
British subject who resided at Shanghai and died there. If the domicil was
English the duty was payable, while if the deceased had acquired a domicil in
China the duty was not payable. The testator had for some years before his
death determined to reside permanently at Shanghai, and had formed and
expressed the intention of never returning to England. It was admitted that it
could not be contended that the domicil was Chinese. It is clear that what was
meant by this admission was that it could not be contended that the testator
had become domiciled in China so as to attract to his estate the law applicable
in China to natives of that country, and Chitty J. said: This
admission was rightly made. The difference between the religion, laws, manners,
and customs of the Chinese and of Englishmen is so great as to raise every
presumption against such a domicil, and brings the case within the principles
laid down by Lord Stowell in his celebrated judgment in The Indian Chief (2), and by Dr.
Lushington in Maltass v. Maltass.(3) Both of these great judges had
treated the question as one of fact, and had pointed out the improbability of
the acquisition of such a domicil. It is obvious that the admission that there
was no Chinese domicil in that sense was rightly made. What the petitioners
contended for in Tootals Trusts (1) was what is there called an
Anglo-Chinese domicil. Some criticism has been bestowed upon this and analogous
expressions, (1) 23 Ch. D. 532, 534. (2) 3 C. Rob. 22, 29. (3) 1 Rob. Eccl. 67, 80, 81. [*60] but it appears to me that the expression Anglo-Chinese
domicil is apt to denote compendiously a domicil in China acquired by
a British subject and carrying with it the privileges conferred by treaty upon
British subjects there residing. These privileges appear to have been analogous
to those enjoyed by British subjects residing in Egypt.(1) At p. 536 Chitty J.
says that the exception from the jurisdiction of His Majestys Supreme
Court at Shanghai as a matrimonial Court in regard to dissolution, nullity, or
jactitation of marriage, apparently left Englishmen subject to the jurisdiction
of the Court for matrimonial causes in England in respect of such matters. This
statement requires qualification. The absence of provision for divorce in
Shanghai cannot of itself confer jurisdiction upon the English Court; it
depends upon the question whether the domicil has remained English. If the
English domicil has been replaced by an Anglo-Chinese one the jurisdiction of
the English Courts would be gone. Chitty J. went on to consider whether, on principle, an
Anglo-Chinese domicil can be established. He came to the conclusion that
there is no such thing known to the law as an Anglo-Chinese
domicil.(2) The view of Chitty J. was that the domicil alleged is in
its nature extra-territorial. I cannot agree. The position of British subjects
in such a country is not extra-territorial. The domicil is acquired and can be
acquired only by residence in Egypt. The law applicable to the foreigner so
residing is, by the consent of the Egyptian Government, partly Egyptian and
partly English. This is the result of the Convention between the two
Governments. Though the domicil is Egyptian, the law applicable to persons who
have acquired such a domicil varies according to the nationality of the person.
The foreigner does not become domiciled as a member of the English community in
Egypt) but he acquires an Egyptian domicil because he, by his own choice, has
made Egypt his permanent home, and you have then to consider by what code of
law (1) 23 Ch. D. 535, 536. (2) 23 Ch. at p. 542 for the reasons given at pp. 538-9. [*61] he and his estate are governed according to the law in force in
Egypt. The domicil is purely territorial, and you go to the law in force in the
territory to see what system of law it treats as applicable to resident
foreigners and to what Courts they are subject. Chitty J. refers to the case of British India, where there are
many particular sects governed by particular laws applicable to them specially,
and distinguishes it on the ground that these special laws are not laws of
their own enactment, but are merely parts of the law of the governing community
or supreme power. The supposed distinction does not exist. In Egypt it is part
of the law of the governing community or supreme Power; in other words, it is
part of the law of Egypt that English residents are governed by English law and
that they are amenable in certain cases only to English Courts established by
the King of England with the consent of the Egyptian Government. Chitty J.(1)
puts the case of a citizen of the United States who attaches himself to the
British community at Shanghai, and says that, according to the
petitioners argument, he would acquire an Anglo-Chinese domicil, and
this he treats as a reductio ad absurdum of the petitioners
contention. A citizen of the United States resident permanently in Shanghai
would be subject to the law which attaches to citizens of the United States so
settling in China according to the law of China. His domicil and the law
applicable would not arise from attaching himself to any particular community
but from his personal residence in Shanghai coupled with his nationality. His
having attached himself, whatever that may denote, to the English community
would be immaterial unless he had acquired English nationality. I think that the respondents counsel were entitled to
treat In re Tootals Trusts (1) as a decision in their favour of the
point now in dispute; and, indeed, I do not think that this was contested by
Mr. Wallace. But the decision is, of course, not binding upon this House, and
it is, in my opinion, erroneous. There has been no such general acquiescence (1) 23 Ch. D. 539. [*62] in the correctness of the decision in In re Tootals
Trusts, and change of position in reliance upon that decision, as to render it
improper that this House should act upon its own view of the law. The case of Abd-ul-Messih v. Farra (1) came before the
Judicial Committee of the Privy Council in 1887 on an appeal from the Supreme
Consular Court at Constantinople. The question related to the succession to a
person who had died in Egypt. The deceased was born at Baghdad, in the Ottoman
dominions, of Ottoman parents, and in early life went to India, whence, after a
considerable period, he went to Jedda, which was also in the dominions of the
Porte. In 1858 he went to Cairo, where he remained until his death, under the
protection of the British Government. Proceedings were taken in the Consular
Court by his widow to obtain probate of his will, which was in the English
form. The judge found that the testator died domiciled in the Ottoman Empire,
that his domicil of origin was there, and that he was a member of the Chaldean
Catholic community, and decreed that the law of Turkey governing the succession
to a member of the Chaldean Catholic community in Ottoman dominions should be
followed in distributing the effects of the deceased. From this order an appeal
was brought by the widow to His Majesty in Council. In support of the appeal
two arguments were put forward. First, that English law should apply to the
succession of the deceased as a British protected person; and second, that the
deceased was affiliated to the community of persons under English jurisdiction
at Cairo, who formed as it were, an extra-territorial colony of the Crown, and
that subjection to the jurisdiction of the Consular Court is equivalent to
residence in the country to which these Courts belong, so as to establish a
domicil in that country. The nature of these contentions must be borne in mind
in order to appreciate the terms of the judgment. What the Judicial Committee
decided was that the testator was not a British subject, and that the fact that
he was a person under British (1) 13 App. Cas. 431. [*63] protection resident in Egypt did not render English law applicable
to his succession. The judgment was delivered by Lord Watson, who points out(1) that
the idea of domicil, independent of locality, and arising simply from
membership of a privileged society, is not reconcilable with any of the
numerous definitions of domicil to be found in the books. He goes on to say:
Their Lordships are satisfied that there is neither principle nor
authority for holding that there is such a thing as domicil arising from
society, and not from connection with a locality. In re Tootals
Trusts
(2) is an authority directly in point, and their Lordships entirely concur in
the reasoning by which Mr. Justice Chitty supported his decision in that
case. I concur with the proposition that there is no such thing as
domicil independent of locality. Residence in a particular locality is of the
very essence of domicil, and the contention put forward by the appellant in
Abd-ul-Messihs Case that subjection to the jurisdiction of the
Consular Courts is equivalent to residence in the country to which these Courts
belong, so as to establish domicil in that country, was preposterous. On the
assumption that the deceased Abd-ul-Messih was domiciled in Egypt in virtue of
permanent residence there, then if he had become in fact a British subject, the
law applicable to British subjects resident in Egypt would have applied in his
case. Mere association with the British in Egypt could not have that effect. If
Chitty J. in In re Tootals Trusts (2) had merely
decided that there is no such thing as domicil arising from society, and not
from connection with a locality, the decision would have been beyond criticism.
It went, I think, a great deal further, and I find myself unable to agree with
the judgment of Chitty J. in that case, or with Lord Watsons approval
of his reasoning, an approval which was in no way necessary for the decision of
the case before the Judicial Committee. Lord Watson gives a statement as to the position of foreigners in
Egypt in the following terms: Certain privileges have been conceded
by treaty to residents in Egypt (1) 13 App. Cas. 439-441. (2) 23 Ch. D. 532. [*64] whether subjects of the Queen or foreigners, whose names are duly
inscribed in the register kept for that purpose at the British Consulate. They
are amenable only to the jurisdiction of our Consular Courts in matters civil
and criminal; and they enjoy immunity from territorial rule and taxation. They
constitute a privileged society, living under English law, on Egyptian soil,
and independent of Egyptian Courts and tax-gatherers. This
description is not in accordance with the evidence in the case now before your
Lordships, and I cannot help thinking that it is due to some misconception of
the evidence in the Abd-ul-Messih Case. Foreigners residing in Egypt have,
since 1875, been subject to the jurisdiction of Mixed Courts, which are
Egyptian tribunals administering Egyptian law, and in certain cases to their
own Consular Courts, and they are subject to Egyptian taxation. If the facts as
to the position of foreigners in Egypt had been correctly appreciated it would
have been impossible for the appellant to put forward the contention which Lord
Watson summarizes as follows: The appellant maintained that a
community of that description ought, for all purposes of domicil, to be
regarded as an ex-territorial colony of the Crown; and that permanent
membership ought to carry with it the same civil consequences as permanent residence
in England, or in one of the colonial possessions of Great Britain, where
English law prevails. The appellant in Abd-ul-Messihs Case appears also to
have argued that the effect of the Order in Council was that English law is the
sole criterion by which, in the case not only of British subjects, but also of
persons under British protection resident in Egypt at the time of their
decease, the capacity to make a will, and its validity when made, must be
determined, This argument was dismissed, and rightly dismissed, by Lord Watson
as wholly unsustainable on the construction of the Order in Council.(1) A
further and alternative contention was advanced by the appellants
counsel in that case to the effect that the deceased had lost his Turkish
nationality and had become a subject of the Queen. It (1) 13 App. Cas. 441, 443. [*65] is pointed out in the judgment, that it was clear that the
deceased was not, in the sense of English law, a subject of Her Majesty, and
that he did not possess that status within the meaning of the Order, which
expressly enacts that it must be attained either by birth or naturalisation. With reference to a contention that by an Order not appealed
against the jurisdiction of the Consular Court had been sustained in respect of
the deceased having acquired the status of a protected British
subject(1), and that this was decisive that the deceased had acquired
that status of a protected British subject, Lord Watson pointed out(2) that
this expression does not occur in the order, and has no technical meaning, and
that it must be understood as meaning merely that the deceased had de facto
enjoyed the same measure of protection as that which is accorded by treaty to
British subjects in the Dominions of the Porte. This, of course, is very
different from his having become a British subject. The appellant, however,
argued that in point of Turkish law the deceased would be regarded as a British
subject, in virtue of the protection which he enjoyed. There was a conflict of
evidence between the legal experts on this point, and the Judicial Committee
did not think it necessary to decide what was the position of the deceased in
this respect by the law of Turkey, for the reason stated in the following
sentence of the judgment(3): If it be assumed that, in consequence of
his having placed himself under foreign protection, the Porte resigned the
deceased, both civilly and politically, to the law of the protecting Power,
that would merely give him the same rights as if his nationality had been
English, and the territorial law of his domicil would still be applicable to
his capacity to make a will, and to the distribution of his estate.
It may be observed, however, that if his nationality had been, in fact, English,
and his domicil was in Egypt, the English law would, for the reasons I have
given in the earlier part of this judgment, have applied to his capacity to
make a will and to the distribution of his (1) 13 App. Cas. 436. (2) Ibid. 443-4. (3) Ibid. 444. [*66] estate. The true justification for the course taken by the
Judicial Committee in treating the opinion of the legal experts as to Turkish
law as irrelevant is that the deceased was not, in point of English law, a
British subject, and that it was quite immaterial whether the Porte had
resigned the deceased to the Protecting Power unless that Power had accepted
the resignation and treated the deceased as a British subject. Having failed in the attempt to establish that the deceased was a
British subject, the appellant asked to have a further proof for the purpose of
showing that the Turkish Courts in administering the estate of a protected
person in the position of the deceased would have been guided not by their own
municipal law, but by the rules followed by English Courts in the case of
domiciled Englishmen. Lord Watson points out that there was no suggestion on
the Record that there was any special law in Turkey as to the succession of a
protected person, and that no further proof upon this point could be allowed. The last argument advanced by the appellant in the Abd-ul-Messih
Case was that the deceaseds residence in Cairo had conferred upon him
an Egyptian, as distinct from a Turkish, domicil(1), but it is there pointed
out that it had not been shown that a domicil in Egypt, so far as regards its
civil consequences, differs in any respect from a domicil in other parts of the
Ottoman Dominions. It is indeed obvious that the questions arising on an
Egyptian domicil in 1880 would have been substantially the same as those
arising upon a domicil, say, in Baghdad, where the deceased was born. Lord
Watson added that residence in a foreign state as a privileged member of an
ex-territorial community, although it may be effectual to destroy a residential
domicil acquired elsewhere, is ineffectual to create a new domicil of choice.
This proposition is a restatement of what was said in the earlier part of the
judgment(2), and for reasons which I have given in dealing with that passage I
am unable to assent to it. The decision in the Abd-ul-Messih Case was clearly right on the
broad ground that the deceased was not a British subject, (1) 13 App. Cas. 445. (2) Ibid. 438-441. [*67] but I must with all respect express my dissent from some of the
dicta which occur in the course of the judgment, for the reasons which I have
given in referring to them. The correctness of the decision is in no way
dependent upon these dicta. The decision in the case of In re Tootals Trusts (1) has been a good
deal canvassed. Sir Samuel Evans, that very distinguished judge whose untimely
death we all deplore, sitting in the Prize Court, made some observations with
regard to In re Tootals Trusts (1) which are worth quoting. In giving
judgment in the case of The Eumaeus, November, 1915(2), he said: In
this case I am not called upon to express any opinion upon the question whether
at the present day a British subject can acquire a civil domicil in an Oriental
country like China. In re Tootals Trusts,(1) may or may not be
good law. It has been much criticised by jurists, and has been recently
dissented from in a judgment of the Supreme Judicial Court of Maine in Mather
v. Cunningham.(3) The decision in the case now before the Court does not
involve that question. In the case to which Sir Samuel Evans refers
(Mather v. Cunningham(3)), as appears from the report in 74 Atlantic Reporter,
the only report which I have seen, the Supreme Court of Maine, sitting as the
Supreme Court of Probate, allowed an appeal from an order of the Probate Court
in Waldo County appointing an administrator. The Court on the appeal consisted
of Emery C.J. and five other Judges. The deceased had made his home and carried
on his business at Shanghai, his domicil of origin having been in Waldo County,
Maine, and the question on which the case turned was whether an American can as
a matter of law acquire a domicil in the province of Shanghai where, by treaty,
American law is substituted for the Chinese local laws. The Supreme Court made
an elaborate examination of the case of Tootals Trusts (1) and of many
criticisms and comments which had been made on that decision, and arrived at
the conclusion that its doctrine could not be supported. It was pointed out
that domicil depends upon locality, and that the law of the locality attaches
to the person who has acquired a domicil there, (1) 23 Ch. D. 532. (2) 1 Br. & Col. P. C. 605, 615. (3) 105 Maine, 326; 74 Atlantic Rep. 809. [*68] whether that law be
decreed by the Supreme Power of the foreign country or is the result of treaty.
They say that the whole trend of modern authority is in opposition to
the dictum advanced in In re Tootals Trusts.(1) The
Court went on to refer to a case which had been decided at Shanghai in 1907, and
said: Judge Wiflley, the United States Court for China, sitting at
Shanghai in 1907 in Re Probate of the will of Young J. Allen announced a strong
opinion in which he rejects the dictum in In re Tootals Trusts, and
comes to a directly opposite conclusion. The Court in Mather v.
Cunningham (2) gave its decision in the following terms: The Court
is of the opinion that Henry J. Cunningham, the decedent, at the time of his
decease, had abandoned his domicil of origin in Waldo County, and had acquired
a domicil of choice in Shanghai, and the appeal was sustained. The case of Allens Will is also cited by Mr.
Westlake in his Private International Law, 5th ed., p. 349. Mr. Westlake says:
The testators domicile of origin was in Georgia, and the
question was whether the law of Georgia was to be applied in the administration
of his estate, or the law which Congress has extended to Americans in
China, which is the common law. Judge Wiltley(3) decided for the
latter, saying that We can see no good reason for holding that a
citizen of the United States cannot be domiciled in China.
I have made endeavours to get the pamphlet report of this case, but without
success. In March, 1916, in H.M. Court of Prize for Egypt sitting at
Alexandria, Cator P. made the following observations in the case of The
Derfflinger (No. 1) (4): From time to time questions as to the status of
British subjects in China and the Ottoman Dominions have come before our
Courts, and it has been settled that no British subject can change his legal
domicil, by residence in any place where the Crown has ex-territorial
authority. That, as we know to our cost, owing to the great inconvenience which
it has entailed upon the British community, is, I think, the effect of In re
Tootals Trusts (1), (1) 23 Ch. D. 532. (2) 105 Maine, 326; 74 Atlantic Rep. 809. (3) The correct name is Wilfley. – H. B. H. (4) 3 Br. & Col. P. C. 389. [*69] approved of by the Privy Council in Abd-ul-Messih v. Farra.(1) These decisions,
it is true, relate only to the subtle and artificial doctrine of personal
domicil which has been evolved by our civil Courts for the purpose of
determining questions relating principally to probate and administration; and a
legal domicil for the purpose of a Court of probate is, I need hardly say, a
very different thing from a commercial domicil for the purpose of a Prize
Court. But In re Tootals Trusts(2) emphasises the fact that there
still exist countries where, owing to fundamental differences in race and
religion, Europeans do not merge in the general life of the native inhabitants,
but keep themselves apart in separate communities; and where such separation is
sanctioned by the exercise of ex-territorial authority I am of opinion that it
is impossible for any individual to acquire a trade domicil other than that of
the country to which he owes allegiance. The fact that inconvenience
has resulted from a particular decision would of course be no reason for
disturbing it, if sound in law. But, as in my opinion Tootals Case
and the dicta approving it are erroneous, I think that the British community in
Egypt should be relieved from the inconvenience which Cator P. says has been
thereby caused. I entirely agree with the conclusion arrived at by Scrutton L.J.
in his admirably reasoned judgment. For these reasons I am of opinion that this Appeal should be
allowed. VISCOUNT HALDANE. My Lords, I agree as to the result of the
appeal, and will not recapitulate the facts in the case. For it is quite clear
that, while the Appellant had an English domicil of origin, he had migrated to
Egypt in 1895, and had made his permanent home in Cairo with no intention of
returning to England. Under these circumstances he must have acquired an
Egyptian domicil if Egypt were a country where a domicil could be acquired, and
he had done nothing to prevent its acquisition. But he remained a British
subject, and he registered himself at the British Consulate at Cairo as a (1) 13 App. Cas. 431. (2) 23 Ch. D. 532. [*70] member of the society of British subjects resident there. The
question is whether such registration, with its consequences, prevented him
from losing his English domicil of origin. Persons so registered undoubtedly
acquire certain privileges, among which is that their litigations, disputes and
differences, if among themselves, are settled by the British Consular Courts,
and if between themselves and Egyptians or other foreigners are settled by the
Mixed Tribunals established for the purpose. This was so for long before the
war, and since the war the Sultan of Egypt has continued this privilege. But
Egypt is a civilized country in which I have no doubt that a domicil could,
apart from special obstacles, be acquired; and what we have to determine is
whether membership of the society of British subjects who possess these
privileges was an obstacle to the presumption of an Egyptian domicil of choice
receiving effect. I do not think that Chitty J. intended in In re
Tootals Trusts (1) to decide, as has been suggested to us, that it was
impossible to acquire a domicil in the Chinese Empire. What I think he did
intend to decide was that the institutions of that country were so radically
divergent from those of this country as to raise a very strong presumption of
fact against any intention to acquire such a domicil. In two passages of his
judgment he uses words which indicate that he considered the point to be one of
presumption of intention, and therefore a question of evidence and not of
substantive law. Nor does it appear to me that the judgment of the Judicial
Committee of the Privy Council in Abd-ul-Messih v. Farra (2) delivered by Lord
Watson in 1888, on an appeal from the Supreme Consular Court of Constantinople,
carries the matter any further in favour of the present Respondent. There a
testator, whose domicil of origin was Turkish, and who was a member of the
Chaldean Catholic community, fixed his permanent residence at Cairo, which was
then part of the dominions of the Sultan of Turkey. He got himself registered
as a member of the British community in Egypt, but only in the capacity of a
protected person who enjoyed the measure of protection accorded primarily to
British subjects but granted to all those (1) 23 Ch. D. 532, 534, 538. (2) 13 App. Cas. 431. [*71] who can obtain the inscription of their names in the register kept
at the British Consulate in Egypt. It was held that he was not, in the sense of
English law, a British subject. It was also held that he had not lost his
Turkish domicil of origin, and that his residence as a privileged member of the
community, although it might have been effectual to destroy a previous
residential domicil elsewhere acquired by choice, was ineffectual to create a
new domicil of choice. It was said, approving the decision in In re
Tootals Trusts (1), that there cannot be created a domicil arising
merely from membership of such a community if there be not also such connection
with the locality where the community is established as will attract the
municipal law of the territory where the member of the community has settled,
so that it becomes the measure of his personal capacity. The result was that
the succession to the testator was treated as depending on the Turkish law
applicable to the Chaldean Catholic community to which he belonged, a law which
could apply in Egypt, which was then part of the Turkish dominion. My Lords, all that these two cases decided was that mere
membership of a protected British society in a foreign country is not enough to
establish a domicil which would attract the British municipal law governing
succession, unless it was accompanied by other essentials required in order to
establish a British domicil. These essentials comprise settlement in a home on
territory that is actually British, along with intention to make that home
permanent. It is said to be difficult to find an adequate definition of
domicil, and no doubt it is difficult. The reason is to be looked for in the
older decisions in which the fundamental principle has been obscured by
qualifications made in the earlier cases, in order to provide for residence
occasioned by considerations of health, or of the anomalous conditions of
service in India under the East India Company. Some obscurity existed at one
time as to whether a change of allegiance was not also required in order to
establish the acquisition of a new domicil, an obscurity which has now been
removed. The effort to reconcile expressions used in (1) 23 Ch. D. 532, 534, 538. [*72] numerous cases decided in these connections, cases which have
never been overruled in terms, has embarrassed those who have attempted to find
words which would cover everything of apparent authority which appears in the
books. But it is clear to-day that there is no reason for hesitating to hold
that a man who has shaken the dust of England from off his shoes, and has gone
to reside in a civilized foreign country with the intention of making a new and
permanent home there, gets rid of his English domicil of origin. Of course, the
condition of that foreign country may be so barbarous as to make it so unlikely
that he should have intended to make it his home, in the full sense of
accepting its institutions as his own, that he may not have the intention to do
so imputed to him. That happened in In re Tootals Trusts.(1) But between
China, at all events, as it was when Chitty J. gave the decision, and Egypt as
it is to-day, there is a vast difference. At the time when the
Respondents Egyptian domicil was challenged Cairo had become a modern
and civilized city situated in the country of a friendly Sultan. I do not think
that even before the war there was anything short of a great divergence between
the conditions in China at the period I have referred to and Cairo as it has
been for many years. The divergence was quite enough to obviate the difficulty
which Chitty J. encountered in ascribing intention. And I am therefore of
opinion that there is no room for drawing in the present case the inference
which Chitty J. made. The thing needful is not lacking in the facts with which
we have to deal, and the Appeal ought to succeed. LORD DUNEDIN (read by VISCOUNT HALDANE). My Lords, the practical
question here is whether the Courts of England have or have not jurisdiction to
dissolve the marriage of the appellant and respondent at the suit of the
respondent. The appellant disputes the jurisdiction. Admittedly such
jurisdiction is founded on the domicil of the husband. The appellant had an
English domicil of origin, and is therefore subject to the jurisdiction unless
he has abandoned that domicil which (1) 23 Ch. D. 532. [*73] he can only do by the acquisition of another domicil not English.
Now the acquisition of another domicil depends on intention and the carrying
into effect of that intention by residence. Intention may be (and in most cases
is) gathered from what a person does, not merely from what he says. But it has
been conceded throughout the argument that if the country here in question were
any of the states of Western Europe or the United States of America instead of
Egypt, the appellant has discharged the burden upon him; that is to say, has
shown intention, and the carrying into effect of that intention by residence.
The sole reason against the usual result following is that it is urged that in
the case of Egypt, inasmuch as the appellant is registered at the British
Consulate as a British subject, and in consequence is in the enjoyment of
certain privileges as to his subjection to local tribunals, it is impossible
for him to acquire an Egyptian domicil. My Lords, I think that proposition is
neither laid down by authority nor sound on principle. As to authority, the matter is reduced to two cases, In re
Tootals Trusts (1) and Abd-ul-Messih.(2) Neither of those
cases is technically binding on your Lordships, but I will for the moment treat
them as if they were so. I do not set forth the facts, as that has already been
done by the noble Lords who preceded me. In re Tootals Trusts (1) can be no
authority for the proposition contended for, because all that it actually
decided was that mere enrolment as a member of a British community in China, to
which community certain privileges were by treaty conceded, did not per se
create for the person so enrolled an Anglo-Chinese domicil. The fact that in
that case Tootal had no Chinese domicil was based on admission, and therefore
possibility had not to be considered. Apart from the actual decision I cannot
say that I approve of the remarks of Chitty J. Nor am I able to follow the
noble Viscount in thinking that all that he meant was that a Chinese domicil
was such an improbable domicil for an Englishman to adopt that he would not
easily be brought to think that it had been adopted. I think the American Court
in Mathers Case (3) were right upon the (1) 23 Ch. D. 532. (2) 13 App. Cas. 431. (3) 105 Maine Rep. 326; 74 Atlantic Rep. 809. [*74] facts to refuse to follow what would seemingly have been Chitty
J.s opinion. Further, I am quite clear that the headnote in Abd-ul-Messih (1) goes too far in
saying Tootals Trusts approved. The approval given
by the Judicial Committee was as I read the judgment limited to the proposition
– which indeed I think no one now disputes – that mere
membership of a privileged community will not per se constitute domicil. I turn to Abd-ul-Messih.(1) The first part of the judgment deals with
the forlorn hope of showing that the proposition settled by Tootals
Case was wrong. And that was all that had been dealt with in the Court below.
The de quo was the displacement of a Turkish domicil. It was said in the Court
below, and it was all that was said, that this was effected by the acquisition
of an English domicil. As Egypt where the residence took place was not England,
this could only be if it were possible to acquire such a domicil by
registration in the English community. Judgment on that point really disposed
of the appeal. But at the last moment an argument seems to have occurred to
counsel – to say that the Turkish domicil was displaced by an
Egyptian domicil; and no doubt Lord Watson deals with that in his judgment. He
says that the argument only made its appearance at the end of the case, and
that there are two answers to it, either of which would be sufficient. First,
that there was no averment that in the matter of succession (which was the
practical point of the case) the law of an Egyptian domicil was different from
that of a Turkish domicil. I agree that that was a sufficient answer. But he
then goes on to say: Residence in a foreign state, as a privileged
member of an ex-territorial community, although it may be effectual to destroy
a residential domicil acquired elsewhere, is ineffectual to create a new
domicil of choice. This dictum, which was unnecessary for the
decision of the case, and was therefore obiter, is really the sheet-anchor of
the respondents argument. Doubtless any dictum of Lord Watson is
entitled to great respect. But there have been cases before this where the
obiter dicta of the most learned (1) 13 App. Cas. 431. [*75] judges have on fuller consideration given to them been abandoned.
The dictum, however, remains, and I am not able to explain it away. I am bound
to say, as I do, that I think it unsound. Lord Watson gives no reasons for it.
If his reasons are to be inferred from the prior passages in the judgment where
he is describing the position of the privileged English community, it is not
unfair to point out that that description, even if accurate when given, is
certainly not accurate as at the date of this case. Is there, then, any principle on which such a proposition can
rest? I can see none. I respectfully adopt on this branch of the subject what
has just been said by the noble Viscount, whose opinion I had the advantage of
reading before I wrote my own. The fallacy of the opposing argument seems to me
to rest on the idea of extra-territoriality. That is a conception, which,
having its legitimate application in such things as the position of an
ambassador, or of a British ship in foreign territorial waters, has no
application to the matter in hand. It seems to me that the whole privileges
which were conceded by the Capitulations, or are now continued by the order of
the present ruler of Egypt, are privileges which are made good by Egyptian law
and not by English law. Can there be any inconsistency in the fact of an
Egyptian domicil with the existence of a privilege given by Egyptian law to a
certain class of persons, simply because that privilege sometimes consists in a
law being applied which is not Egyptian law? The opposite view seems to
postulate the idea that you cannot be domiciled unless there is no possible
difference between the law applicable to you and that applicable to every other
native of the country in which the domicil is said to be acquired. On such a
theory how could we explain the position of matters in India? No one denies
that a person may acquire an Indian domicil. Yet after he has done so the law
to be applied to him will vary according as he is a Hindu, a Mussulman, or a
person not professing either of those religions. I think the appeal should be allowed. I agree with the opinion of
Scrutton L.J., and I think it clear that Horridge J. would have come to the
same result, had he not felt himself [*76] disentitled to go in the teeth of a dictum of
Lord Watson which was so directly in point. LORD ATKINSON. My Lords, I concur. The facts have been already
stated. Horridge J. found that it was abundantly proved that the Appellant
had voluntarily fixed his sole or chief residence in Egypt, with the intention
of continuing to reside there for an unlimited time, and the correctness of
this finding of fact has not been questioned either by the Respondents
counsel in the Court of Appeal or in this House, nor is it questioned by either
of the Lords Justices who constituted the majority in the Court of Appeal. The
ordinary consequence of such a finding, if it stood alone, would, according to well-established
authority, be that the Appellant should be held to have acquired a domicil of
choice in Egypt. But it is contended that it cannot have that result in this
case owing to two matters. First, the registration of the Appellant as a
British subject, and second the so-called extra-territorial jurisdiction
alleged to be exercised in Egypt by His Majesty the King of Great Britain,
through his Consular Courts, under the Capitulations confirmed in 1809 by the
Treaty of the Dardanelles, entered into between the Sultan of Turkey and Great
Britain, conjoined with the English Order in Council of November 7, 1910. It is
contended that, the Appellant being so registered, his residence in Egypt must,
upon the authorities, be treated not as the residence of an ordinary inhabitant
there but as that of a privileged member of an ex-territorial community
unconnected with locality, and therefore incapable of conferring a domicil. It is plain that Horridge J. would have held against this
contention but for the decisions in two cases by which he considered he was
bound. He decided accordingly that the Appellants objection to his
wifes petition failed. These two cases are In re Tootals
Trusts
(1) decided by Chitty J. and Abd-ul-Messih v. Farra.(2) The majority of
the Court (1) 23 Ch. D. 532. (2) 13 App. Cas. 431. [*77] of Appeal followed these cases, and applied what they considered
to be the principle laid down in them. Scrutton L.J., in a most able judgment
dealing exhaustively with all the authorities, showed conclusively, I think,
that the principles said to have been laid down by these authorities, if they
were such as was contended for, were unsound, and held as Horridge J. would
have held had he considered himself free to do so, that the Appellant had
acquired an Egyptian domicil of choice. In this conflict of judicial opinion it
becomes necessary, I think, to examine carefully the decisions in these two
comparatively modern cases, as well as the decision of Dr. Lushington in Maltass
v. Maltass (1), and that of Lord Stowell in The Indian Chief (2), on which the
decisions in the two former cases purport to be based, in order to distinguish
the points of actual decision from the obiter dicta in which those most
distinguished judges indulged, and to ascertain, if possible, what were
precisely the principles upon which the decisions rested. In this connection I
may say it would appear to me to be quite illegitimate to assume that the laws,
habits, manners and customs of Eastern countries are stable, and have remained
as repellent to English subjects now as they might have been a century ago, an
assumption which, applied to Japan, if not indeed to Egypt, would be inaccurate
and unjust. About the general law touching the acquisition of a domicil of
choice in European countries, the United States of America or the
self-governing colonies of the British Empire, there was no dispute. It is laid
down as shortly and as neatly by Lord Lindley in his judgment in Winans v.
Attorney-General (3) as could well be desired. He said: I take it to
be clearly settled – by the Lauderdale Peerage Case (4); Udny v. Udny (5); Bell v.
Kennedy
(6) – that the burden of proof in all inquiries of this
nature (i.e., as to domicil) lies upon those who assert
that a domicil of origin has been lost, and that some other domicil has been
acquired. Further, I take it to be clearly settled that no person who is sui
juris can change his domicil without a physical change of place, coupled with
an intention (1) 1 Rob. Eccl. 67. (2) 3 C. Rob. 12, 22. (3) [1904] A. C. 287, 299. (4) (1885) 10 App. Cas. 692. (5) (1869) L. R. 1 H. L. Sc. 441. (6) (1868) L. R. 1 H. L. Sc. 307. [*78] to adopt the place to which he goes as his home or fixed abode or
permanent residence, whichever expression may be preferred. If a change of
residence is proved, the intention necessary to establish a change of domicil
is an intention to adopt the second residence as home, or, in other words, an
intention to remain without any intention of further change except possibly for
a temporary purpose: see Storys Conflict of Laws, s. 43, and In re
Craignish (1); Attorney-General v. Pottinger (2); and Douglas
v. Douglas.(3) An intention to change nationality was in Moorhouse v.
Lord
(4) said to be necessary, but in Udny v. Udny (5) that view was
decided to be incorrect. Intention may be inferred from conduct, and there are
cases in which domicil was held to have been changed notwithstanding a clear
statement that no change of domicil was intended: In re Steer (6), and per Wickens
V.-C. in Douglas v. Douglas.(7) In Winans Case (8) the tastes
habits, conduct, actions, ambitions, health, hopes and projects of Mr. Winans
deceased were all considered as keys to his intention to make a home in
England. Lords Halsbury and Macnaghten laid down the law in words to the same
effect as those used by Lord Lindley. They differed from him on the inference
of fact to be drawn from all the matters I have mentioned as to Mr.
Winans intention to make a home in England. It was contended,
however, on the authority of the case of The Indian Chief (9) decided by Lord
Stowell and the cases which have followed it, that the rules of law
so laid down by Lord Lindley are entirely inapplicable to the acquisition by a
British subject of a domicil of choice in an Eastern state on the ground of the
supposed immiscibility of such a subject with the native
population. The Master of the Rolls in the following passage of his judgment
indicates what he apparently considers a British citizen must accomplish before
he can acquire a domicil in one of those Eastern countries, no matter how long
he may (1) [1892] 3 Ch. 192. (2) (1861) 6 H. & N. 733. (3) L. R. 12 Eq. 643. (4) (1863) 10 H. L. C. 272. (5) L. R. 1 H. L. Sc. 441. (6) 3 H. & N. 599. (7) L. R. 12 Eq. 644. (8) [1904] A. C. 287. (9) 3 C. Rob. 12, 22. [*79] have voluntarily lived there, or how ardently he may have desired
and intended deliberately to make his home there.(1) He said: No
question is raised on this appeal with regard to the domicil of a person who
voluntarily fixes his place of residence in a foreign country, whether
Christian or not, intending to make it his permanent home, intending to make
himself a member of the civil society of that country, and manifesting this
intention by adopting its manner of life, and identifying himself with its
customs – not living in a community separate and apart, but merging
in the general life of the native inhabitants. The Appellant has done nothing
of the kind here, but has always been careful to preserve his status and
position as a member of a privileged community, living separate and apart from
the native inhabitants of Egypt. The voluntary residence there, the deliberate intention to make a
home there, are apparently not enough. The British subject must adopt the
manner of life there, make himself a member of the civil society of that
country. He must identify himself with its customs, he must merge in the general
life of the inhabitants; but upon what rational principle? These are conditions
which could not be fulfilled by a Hindu Brahman, faithful to his religion and
bound by all the rigid rules of his caste, coming to reside in London. And
compliance with them would not be possible in British India, where the
population is not homogeneous but composed of different races living side by
side, mingling little together, and professing different religions, observing
different customs, obeying different laws. For instance, is the English
resident in India to obey the laws binding on a Hindu and regulating the
enjoyment and descent of his property or the laws touching these matters
observed by the Mahometans? And if the former, are they to be the law of
Mitakshara or the law of the Dayabhaga, and if the latter, is he to adopt the
laws and customs of the Shiahs or of the Sunnis? How is it possible for a
British subject to adopt the manner of life of a population
where caste holds the majority of that population in its iron and unchanging
grasp? In England, by (1) [1918] P. 98. [*80] the common law, aliens could not hold landed property even under
lease. By 32 Hen. 8, c. 16, s. 13, it is enacted that leases of dwelling-houses
made to alien artificers should be void, and a penalty of one hundred
shillings, a large sum in those days, was imposed upon the lessor or lessee who
violated the statute. By 7 & 8 Vict. c. 66, aliens were empowered to hold
land or houses for the purpose of residence or business, but they did not by
this ownership acquire either the parliamentary or municipal franchise. They
were disqualified to fill all offices or places of trust, civil or military.
They could not inherit landed estate, nor, till the passing of the 11 & 12
Vict. c. 6, transmit it by descent. Things are now, of course, quite different;
but, despite all these disabilities, this narrow, starved, and restricted
citizenship, if such it could be called, which was all they could enjoy, they
could acquire a domicil of choice in England. It is quite natural that the laws
of an Eastern country, at least a century ago, might appear to a British
citizen to be so arbitrary and oppressive, and the religion, customs and habits
of the natives so repellent, that he would not be likely voluntarily to make
his permanent home amongst them. The fact that the laws and customs were of
that character would, therefore, be strong evidence on the issue of fact, the
existence in his mind of an intention to make his home there. But if, despite
the character of these laws, habits and customs, it be clearly established that
the British subject who has voluntarily gone to reside in this foreign state
desires to make his home there, and deliberately intends, if permitted, so to
do, it is difficult to see upon what principle he should be debarred from
acquiring a domicil there. I do not think the authorities so much relied upon by the
respondent, when examined closely, lay down any such principle as this latter.
Before considering them it is desirable to point out that a very anomalous kind
of domicil may be acquired in Eastern countries by resident merchants, owners
of factories, or persons engaged in trading associations. It is wholly
different from civil domicil, so different, indeed, that a merchant may at the
same moment have a commercial domicil in each of several different and
unconnected Eastern States, [*81] in which he has established so many separate factories or
trading associations. See The Jonge Klassina.(1) In the case of The
Indian Chief (2) Sir William Scott laid it down that it was a rule of the law
of nations that, whenever a factory is founded in an Eastern part of the world,
European persons trading under their shelter and protection take their national
character from the associations under which they live and carry on their
commerce. I think it will be found that judicial observations, made in
reference to this commercial domicil, have been treated as applicable to civil
domicil, a most misleading error. The second kind of anomalous domicil is the
Anglo-Indian domicil. The nature of this domicil is explained by Wood V.-C. in Forbes
v. Forbes.(3) He said: I apprehend that the question does not
turn upon the simple fact of the party being under an obligation by his
commission to serve in India; but when an officer accepts a commission or
employment, the duties of which necessarily require residence in India, and
there is no stipulated period of service, and he proceeds to India accordingly,
the law, from such circumstances, presumes an intention consistent with his
duty, and holds his residence to be animo et facto in India. Turner
L.J. in Jopp v. Wood (4), referring to these cases, said: At the
time when those cases were decided the Government of the East India Company was
in a great degree, if not wholly, a separate and independent Government,
foreign to the Government of this country; and it may well have been thought
that persons who had contracted obligations with such Government for service
abroad could not reasonably be considered to have intended to retain their
domicil here. They in fact became as much estranged from this country as if
they had become servants of a foreign Government. When the officer
left the service of the Company his domicil of origin revived: Ex parte
Cunningham.(5) In The Indian Chief(2), the ship in the year 1795 left the port of
London on a voyage from that port to Madeira, thence (1) (1804) 5 C. Rob. 297, 302. (2) 3 C. Rob. 12, 22. (3) (1854) Kay, 341, 356. (4) 4 D. J. & S. 623. (5) 13 Q. B. D. 418. [*82] to Madras, Tranquebar, Batavia, and back to Hamburg. In the course
of the last trip on this round voyage she called at Cowes for orders, where she
was seized as being a ship belonging to an English subject trading with the
enemy. A Mr. Johnson who claimed the ship as owner asserted that he was an
American, not a British subject. A Mr. Miller, likewise asserting that he was
an American subject, claimed the cargo as owner of it. The question in
controversy in the case was the national character of these respective
claimants. In the case of The Angelique (1) it had been decided by the Court
of Appeal in England, that by the general law all foreigners resident within
the British Dominions incurred all the obligations of British subjects, that as
the Crown alone had power to make war, so it alone had power to dispense with
the observance of these laws, that the East India Company had no power to
license a trade carried on with the general public enemy of the Crown of Great
Britain, and that, therefore, a ship belonging to an Armenian merchant resident
in Madras taken on a voyage from Madras to Manilla, was properly condemned as
the property of a British subject taken in trade with the enemy. The events in Johnsons history affecting his national
character were stated to be these. He was born in America. In the year 1773 he
came to England and settled in London as a merchant. During the American war of
1778 he left England and settled in France as one of a firm engaged in trade
– reserving to himself, by the articles of partnership, the liberty
of returning to America should he so desire. In 1785 he returned to England,
established himself as a merchant, and remained there till September, 1797,
when he left two months before the capture of the ship. In the latter part of
1790 he acted as American Consul in London. That was, however, considered by
Sir W. Scott as an immaterial circumstance. Had he remained till the capture of
the ship, it was held that the whole transaction must be considered as a
British transaction, and therefore a criminal transaction, on the principle
that it is illegal in any person owing allegiance (1) (1801) 3 C. Rob. Appdx. B. 7. [*83] to the British Crown, as he did, as a merchant resident in
England, even though that allegiance were temporary, to trade with the public
enemy; but that inasmuch as he had quitted England for America before that
date, sine animo revertendi, he was in the act of resuming his original
character, and was to be considered to be an American, the character he gained
by residence ceasing with that residence, and that he was, therefore, entitled
to have his ship restored to him. Now these were the only matters in issue in
Johnsons case, and the only matters decided in that case. In the case
of Miller, it was held that if he had in fact engaged in trade in Calcutta, he
became a resident merchant, his mercantile character not taking the benefit of
his official character. A point was made that the trading was not direct to
Batavia, the enemy port; but that circumstance was held to be immaterial. A
third point was urged – namely, that Miller had not been resident in
British territory, since the English Sovereign was not in possession of Bengal
with the same Imperial rights as belong to the Mogul, that the King of Great
Britain did not hold British possessions in the East Indies in right of
sovereignty, and therefore that the character of British merchants did not
necessarily attach on British residents there. It was held that even assuming,
as was contended, that Great Britain could not be deemed to possess sovereign
rights in Bengal, still it was a rule of the law of nations that wherever a new
factory is founded in an Eastern part of the world, European persons trading
under the shelter and protection of that establishment take their national
character from an association under which they live and carry on their
commerce, that the sovereignty of the Mogul only existed as a phantom, did not
in any way affect such establishments as these, that a foreign merchant
resident at Bombay was just in the same position as a British merchant resident
there, that he. was subject to the same duties and amenable to the same common
authority, and that therefore Miller should be considered as a British merchant,
and his property be treated as that of a British merchant taken in trade with
the enemy, and therefore liable to condemnation. These were the only issues [*84] properly raised and
decided in the case. They referred exclusively to what is not very happily
styled commercial domicil. The general observations made by Sir William Scott
in this case of The Indian Chief(1) so far as they applied to civil domicil
deal with matters wholly different in kind and nature from the subject-matter
of the suits; and though they are of high authority in one sense, owing to the
eminence of the distinguished judge who made them, still they are, after all,
only obiter dicta, and do not in any sense amount to decisions of the Court of
Admiralty. In addition, the particular passage so much relied upon begins and
ends with a reference to commercial transactions, and is based upon assumptions
of fact which at the present day, at all events, are of questionable accuracy.
The passage begins thus(2): In the Western parts of the world alien
merchants mix in the society of the natives; access and intermixture are
permitted; and they become incorporated to almost the full extent.
Sir W. Scott then proceeds: But in the East, from the oldest times,
an immiscible character has been kept up; foreigners are not admitted into the
general body and mass of the society of the nation; they continue strangers and
sojourners as all their fathers were – Doris amara suam non
intermiscuit undam; not acquiring any national character under the general
sovereignty of the country, and not trading under any recognized authority of
their own original country, they have been held to derive their present
character from that of the association or factory, under whose protection they live
and carry on their trade. It will be observed that no reference is
made in this passage to the so-called extraterritorial jurisdiction of Consular
tribunals. It is the immiscible character of the foreigner on which the rule of
law is based. However closely that character may have clung to English
immigrants into Eastern States in the year 1800, I take leave to doubt very
much if to-day British residents in Cairo or Alexandria do not mix more in the
society of natives, and are not more completely incorporated into native
society than they were over a century ago. (1) 3 C. Rob. 12. (2) Ibid. 29. [*85] In the other case to which Chitty J. refers – namely, Maltass
v. Maltass (1) – the son of a deceased testator propounded the
latters will in the year 1844 in the Prerogative Court of Canterbury.
The deceased himself was born at Smyrna of British parents, who were British
subjects. After being educated in England he joined his father at Smyrna, was
occupied in commercial pursuits there for many years, and was a member of a
trading firm established there. This firm was dissolved a considerable time
before the death of the deceased. In his will the deceased described himself as
a British merchant, but the learned judge, Dr. Lushington, was unable to
discover any evidence that he was engaged in trade at the time of his death.
The commercial domicil principle was therefore questioned. He married at
Smyrna, was constantly resident there, and died leaving a widow and several
children. The question to be decided was what law governed the succession to
his property. It was held that the law of his domicil must in some shape govern
the succession. The inquiry as to domicil would be unnecessary if it should
turn out that the law of Turkey applicable to this individual succession was
the same as the law of Great Britain. Dr. Lushington held that by the Treaty of
Dardanelles, 1809, the law of Great Britain operates on property left by a
British merchant in the situation of the deceased, no distinction having been
drawn in the case of the deceased having ceased to carry on trade. He
studiously abstains, however, from expressing any opinion upon any question not
necessary to be decided in the case. He gave no opinion as to whether a British
subject can or cannot acquire a Turkish domicil, and added a sentence which, in
my judgment, furnishes a key to this whole matter. He said: But this
I must say – I think every presumption is against the intention of
British Christian subjects voluntarily becoming domiciled in the dominions of
the Porte. Precisely so, since residence in a particular country, and
an intention to make that residence a home for an indefinite period, are the
elements necessary to create a civil domicil there. The existence of such an (1) 1 Rob. Eccl. 67, 80, 81. [*86] intention is an inference of fact to be drawn from the conduct and
action of the resident, and all the circumstances of the case. The observations
already made apply as to the proof of that intention. The error, in my view,
consists in treating the existence and nature of these native laws, habits and
customs, not as facts from which the absence of the necessary intention may be
inferred, but as forming an absolute bar to the acquisition by an English
resident of a domicil of choice in an Eastern country. I do not think the decision of Tootals Case (1) was in conflict
with this view. The struggle in that case was to show that the
testators domicil of choice was an Anglo-Chinese domicil, a term invented
in analogy to the term Anglo-Indian domicil already explained, and, therefore,
to get rid of his English domicil of origin, which if it had continued to exist
would have made his personal estate subject to legacy duty. The facts were
these. The testator went to reside at Shanghai in 1862. With the exception of
two short visits to England in 1864 and 1865 for health and business, he
continued to reside in Shanghai till his death in 1878. He was the manager and
part proprietor of two newspapers published there. Uncontradicted evidence was
given to the effect that for many years before his death he had determined to
reside permanently at Shanghai, had relinquished all intention of returning to
England, and on several occasions expressed his determination to that effect.
Counsel for the petitioner, thinking apparently that their clients
best chance of escaping the payment of the duty was by establishing for the
deceased this fanciful thing, an Anglo-Chinese domicil, admitted that they
could not contend that his domicil was Chinese. In giving judgment Chitty J.,
alluding to this admission, said: This admission was rightly made.
The difference between the religion, laws, manners, and customs of the Chinese
and of Englishmen is so great as to raise every presumption against such a
domicil, and brings the case within the principles laid down by Lord Stowell in
his celebrated judgment in The Indian Chief (2) and by Dr.
Lushington in Maltass v. (1) 23 Ch. D. 532, 534. (2) 3 Ch. Rob. 29. [*87] Maltass.(1) But it is contended on the part of the petitioners
that the testators domicil was what their counsel termed
Anglo-Chinese, a term ingeniously invented in analogy to
the term Anglo-Indian. It will be observed that
the existence of those Chinese laws, manners, habits, religion, and customs is
not treated as establishing an absolute bar to the acquisition of a domicil of
choice in China, but merely as raising every presumption against its
acquisition, by leading one to infer that he, the testator, had no intention of
making his permanent home in a place where he had so long resided. If the bar
was absolute the term presumption was misapplied. The learned judge, at an earlier part of his judgment, dealt with
the extra-territorial jurisdiction set up at Shanghai under the treaties made
between the then Queen of England and the Emperor of China in the years 1842,
1843, and 1858, the Statutes 6 & 7 Vict. c. 80 and c. 94, and the Order in
Council of March 9, 1865, which constituted a Supreme Court at Shanghai. These
treaties did not contain any cession of territory so far as related to
Shanghai, but they very closely resembled those existing in Egypt. As in the
present case, they conferred upon British subjects special exemption from the
ordinary territorial jurisdiction of the Emperor of China, and permitted such
subjects to enjoy their own laws at specified places. He then said that upon
these facts the petitioners had contended that the testator had become a member
of an organized British society, independent of Chinese laws and not amenable
to the ordinary tribunals of the country, but bound together by the laws of
England, and had therefore acquired an Anglo-Chinese domicil. He then(2)
repeats what he had already said about the presumption arising from the habits,
customs, etc., of the natives, and adds, but there is no authority
that I am aware of in English law that an individual can become domiciled as a
member of a community which is not the community possessing the supreme or
sovereign territorial power. There may be, and there indeed are, numerous
examples of particular sects or (1) 1 Rob. Eccl. 67, 80, 81. (2) 23 Ch. D. 538. [*88] communities residing within a territory governed by particular
laws applicable to them specially. British India affords a familiar
illustration of this proposition. But the special laws applicable to sects or
communities are not laws of their own enactment, they are merely parts of the
law of the governing community or supreme power. And he winds up by
saying(1) that there is no such thing known to the law as an Anglo-Chinese
domicil, that the testators domicil remained English, and that
therefore his personal property was liable to legacy duty. These were the only
matters decided. Incidentally it was said that native manners, customs, etc.,
may have effect as evidence of the absence of intention to make a home amongst
them. That is all. In Abd-ul-Messih v. Farra (2) the appellant instituted a suit in
Her then Majestys Supreme Consular Court of Constantinople to obtain
probate of the will of her husband, Antonis Youssef Abd-ul-Messih, who died at
Cairo in February, 1885, leaving large personal estate, having previously
acquired the position of a protected British subject. The widows
application was opposed by the next of kin of the deceased on its merits, and
also on the ground that the Court had no jurisdiction in the matter. Two issues
were ultimately framed by or with the consent of the parties: 1. Is
the English law to be followed in distributing the assets of the
deceased? and 2. If the Court is of opinion that the
English law is not applicable, is Turkish, or what other law? The
Consular Court by the Order appealed from, dated May 28, 1886, found that the
testator died domiciled in the Ottoman Empire, his domicil of origin, and a
member of the Chaldean Catholic community, and decreed accordingly that the law
of Turkey governing the succession to a member of the Chaldean Catholic community
domiciled in Turkey should be followed in considering the deceaseds
power of testacy, and in distributing his effects. But for the fact that he had
enjoyed British protection it would have been clear that at the time of his
death he had his domicil in the dominions of the Porte. If he ever had acquired
a domicil of choice in India he had lost that domicil (1) 23 Ch. D. 542. (2) 13 App. Cas. 431. [*89] when he left India and came to live in Cairo, his domicil of
origin then reviving. But it was contended by the appellant that by reason of
his living at Cairo under the enjoyment of British protection he had acquired
this fanciful thing, an Anglo-Egyptian domicil, not based upon connection with
English soil. The testators history was, as far as it was relevant,
shortly this. He was born at Baghdad of Ottoman parents resident there. He then
went to India, and remained there for a considerable time. He then returned to
the Ottoman dominions, going to reside in Jeddah. He left Jeddah in 1858 and went
to live in Cairo, Egypt not then being independent, and registered himself so
as to become a British protected subject. In 1876 he married the appellant, the
ceremony being performed in the manner prescribed by 12 & 13 Vict. c. 68, a
statute enacted to facilitate the marriages of Her then Majestys
subjects resident abroad. Lord Watson, in delivering judgment, said(1):
The idea of a domicil, independent of locality, and arising simply
from membership of a privileged society, is not reconcilable with any of the
numerous definitions of domicil to be found in the books. In most, if not all
of these, from the Roman Code (10.39.7.) to Storys Conflict
(§ 41), domicil is defined as a locality – as the place
where a man has his principal establishment and true home. He then
cited the well-known passages from the judgments of Lord Westbury in Bell v.
Kennedy
(2) and Udny v. Udny (3), and having conclusively shown that the testator
could not acquire an Anglo-Egyptian domicil, said: The appellant
lastly endeavoured to maintain that the deceaseds residence in Cairo
had at least the effect of giving him an Egyptian as distinguished from a
Turkish domicil. That argument was not addressed to the Court below; but there
appear to be two sufficient answers to it. The one is, that the appellant has
not shown that a domicil in Egypt, so far as regards its civil consequences,
differs in any respect from a domicil in other parts of the Ottoman Dominions;
and the other, that residence in a foreign State, (1) 13 App. Cas. 439, 445. (2) L. R. 1 H. L. Sc. 320. (3) Ibid. 458. [*90] as a privileged member of an ex-territorial community, although it
may be effectual to destroy a residential domicil acquired elsewhere, is
ineffectual to create a new domicil of choice. It is, I think, quite
plain that what Lord Watson meant was this, that though the testators
residence in Cairo could not, under the circumstances, create this so-called
Anglo-Egyptian domicil, his residence there might be effectual to destroy any
domicil of choice which he might have previously acquired in India, and that
having thus been left without any domicil of choice, his domicil of origin
would revive. So that really the only points raised in the case and actually
decided were that there can be no such thing as the so-called Anglo-Egyptian
domicil, since it is not connected with locality, as all domicil must be, and
consequently that the testator did not acquire such a domicil, that the
testators domicil of origin had revived, and that therefore the order
of the Consular Court appealed from was right. Two passages in Lord
Watsons judgment have, however, given occasion to much argument on
this appeal. Both are to be found on p. 439 of the report. In dealing with the
question of the Anglo-Egyptian domicil of choice claimed for the testator,
after alluding to the fact that Cairo was not a British possession governed by
English law, and was not British soil, but the possession of a foreign
Government, and subject to the sovereignty of the Porte, he proceeded to say:
Certain privileges have been conceded by treaty to residents in
Egypt, whether subjects of the Queen or foreigners, whose names are duly
inscribed in the register kept for that purpose at the British Consulate. They
are amenable only to the jurisdiction of our Consular Court in matters civil
and criminal; and they enjoy immunity from territorial rule and taxation. They
constitute a privileged society, living under English law, on Egyptian soil,
and independent of Egyptian Courts and tax gatherers. The appellant maintained
that a community of that description ought, for all purposes of domicil, to be
regarded as an ex-territorial colony of the Crown; and that permanent
membership ought to carry with it the same civil consequences as permanent
residence in England, or in one of the colonial possessions of Great Britain,
where English law [*91] prevails. He then proceeds to show that domicil cannot
be independent of locality. The second passage which follows immediately after
the quotation from the judgment of Lord Westbury in Udny v. Udny(1) runs as
follows: According to English law, the conclusion or inference is,
that the man has thereby attracted to himself the municipal law of the
territory in which he has voluntarily settled, so that it becomes the measure
of his personal capacity, upon which his majority or minority, his succession,
and testacy or intestacy must depend. But the law which thus regulates his
personal status must be that of the governing power in whose dominions he
resides; and residence in a foreign country, without subjection to its
municipal laws and customs, is therefore ineffectual to create a new
domicil. The italics are mine. The passage in italics gives a very
incorrect description of the true position at the present time of this
privileged community in Egypt. It is not true that its members are only
amenable to the jurisdiction of the Consular Courts in matters civil and
criminal. They are in many matters, as I shall presently show, subject to the
jurisdiction of the Mixed Tribunals, which are Egyptian Courts established by
an Egyptian statute. And even in the case of the Consular Courts its decrees
and orders are enforced and carried out, not by Consular, but by Egyptian
officers. Neither is it true that they enjoy immunity from territorial rule or
taxation, or that they are independent of Egyptian Courts and tax gatherers.
They pay such taxes as the English Sovereign has, by arrangement with the Khedive,
consented that they should pay. The only point decided in the case was that the
testator, a subject of the Porte by birth and parentage, had not, and could
not, acquire an Anglo-Egyptian domicil. The obiter dicta observations made by
Lord Watson were made in reply to the extravagant contention that for the
purpose of acquiring such a domicil Cairo was to be taken as a possession of
the British Crown, where English law prevailed; but it will be observed that he
says nothing about the necessity of a person who voluntarily resides in a
particular place with the intention of making it his home, in addition
manifesting a desire to adopt the manners of life of native society, or (1) L. R. 1 H. L. Sc. 458. [*92] identifying himself with its customs, upon which the learned
Master of the Rolls apparently insisted. I cannot think that by the words attracted to himself
the municipal law of the territory in which he has voluntarily settled, so that
it becomes the measure of his personal capacity, Lord Watson ever
meant to lay it down that the foreign resident must be bound by all the laws
that bind natives, and by no other laws, and must observe all the lawful
customs that natives observe; else the existence of the slightest exemption
from the operation of the ordinary municipal law conferred upon a foreign
resident as a privilege would make the acquisition of a domicil of choice by
him impossible, especially in India, where different systems of law touching
majority and minority, succession to property, testacy and intestacy of the
Hindu and Mahommedan races differ substantially. Indeed, during the argument of
Sir Ellis Hume Williams, I asked him if the extra-territorial jurisdiction of
the Consular Courts only extended to actions of libel and slander between
British subjects or protected persons, would it still make the acquisition of
an Egyptian domicil of choice impossible? And I did not get a very positive
answer. I cannot but think a fallacy lurks in the phrase municipal
law. Surely if by a special law of the Sovereign power of a state
some section of society is relieved from a duty or burden imposed upon the
general community by a general municipal law, the municipal law, the lex
domicilii, which that section should attract to themselves
in order to acquire a domicil would be the general municipal law as modified by
the special law passed in their favour. For instance, if after this war an Act
of Parliament were passed in England that every French citizen coming to reside
in England would be relieved of 75 per cent. of the income tax payable by
English residents with equal incomes the municipal income tax laws which he
would be bound to obey would be the income tax Acts so modified. He would not
have to pay up to 75 per cent. of his income tax to acquire in England a
domicil of choice, and the fact, if it were a fact, that this special Act was
passed in pursuance of a treaty made between England and France would not alter [*93] matters in the
slightest degree. During the argument these Consular Courts were treated as if
they were set up, and the jurisdiction they exercised was conferred upon them,
by an act of the British Crown propio vigore, altogether independent of the
Sultan of Turkey or the Khedive of Egypt. In my opinion that is not the correct
view. They are set up, and jurisdiction is conferred upon them, by the consent,
and in the exercise of the power, of the legislative governing authority of
Egypt. The lex domicilii for these English residents is the general law of Egypt
applicable to native Egyptians modified by the provisions of the Capitulations
and the statute dealing with the Mixed Tribunals. It matters nothing, in my
view, that these Courts were set up and jurisdiction conferred upon them in
pursuance of a treaty. By Article 9 of the Statute of Judicial Organization for Mixed
Courts in Egypt, 1892, an Egyptian statute establishing Egyptian Courts,
exclusive jurisdiction is conferred upon these Courts over all civil and
commercial causes (not coming within the law of personal status) between
Egyptians and foreigners, and between foreigners of different nationalities.
Jurisdiction (though not apparently exclusive) is also conferred in all actions
relating to real rights over immovable property between all persons, even those
belonging to the same nationality. By Article 13 it is provided that the bare
fact of the creation of a mortgage of immovable property in favour of a
foreigner, whoever be the possessor and owner of the property, shall render
these Courts (i.e., the Mixed Courts) competent to adjudicate upon the validity
of the mortgage, and upon all its consequences up to and including the forced
sale of such property as well as the distribution of the proceeds. By Articles
6, 7 and 8 of Title II. of the Statute, prosecutions for petty offences in
addition to the trial of persons as principals or accomplices for any one of a
vast number of felonies and misdemeanours, including wounding and homicide, are
made subject to the jurisdiction of the Egyptian Courts whoever the accused may
be, whether native or foreigner. By Article 4 of the Preliminary provision it
is enacted that questions relating to legal status and capacity of persons, and
[*94] to the law of
marriage, to the rights of natural and testamentary succession, and to
guardianship and curatorship, remain in the jurisdiction of the Personal Status
judge. The 15th of the Articles of Capitulation and Peace of 1676, confirmed by
the treaty of 1809, provided for litigation between Englishmen and others being
dealt with in the Egyptian Courts. The 24th Article did the same: a safeguard
is provided; the Ambassador, Consul or interpreter must be present. The 52nd
Article is to the same effect. By the 16th Article the foundation was laid upon
which the so-called extra-territorial jurisdiction was erected. It provided
that if there happened to be any suit or other difference or dispute amongst
the English themselves, the decision thereof shall be left to their own
Ambassador or Consul, according to their custom, without the judge or other
governors (our slaves) interfering with them. The Order in Council of November 7, which merely prescribes the
mode in which any jurisdiction belonging to the Sovereign of Great Britain
shall be exercised, does not carry the matter any further. In the face of these
enactments it cannot, I think, be said with the faintest approach to accuracy
that British subjects properly so called and British protected persons
constitute a privileged society living under English law on Egyptian
soil and independent of Egyptian Courts and tax gatherers. The main,
indeed the only, contention of the respondent in this appeal –
namely, that the existence of the extra-territorial jurisdiction rendered
impossible the acquisition by a British subject of a domicil of choice in Egypt
– is, in my view, unsupported by authority, and wholly fails. I
concur with Scrutton L.J. in thinking that there is no test which must be
satisfied for the acquisition of a domicil of choice in Egypt other than, or in
addition to, those which must be satisfied to acquire a similar domicil in a
European country – namely, voluntary residence there plus a
deliberate intention to make that residence a permanent home for an unlimited
period. On the whole, therefore, I am of opinion that the order appealed from
was wrong, and should be reversed, and this appeal should be allowed with costs
here and below. [*95] LORD PHILLIMORE. My Lords, the jurisdiction of the High Court of
Justice in its matrimonial division is founded upon domicil. The domicil must
be in England. In this case the husband who has been sued by his wife had no
doubt his domicil of origin in England, and the burden lies upon him, as he
disputes the jurisdiction, to show that he has acquired another domicil. But
Horridge J. has found, and it is not disputed that he has rightly found, that
if it be possible for the husband to have changed his domicil of origin into an
Egyptian domicil he has done so. I think also that if Horridge J. had not felt
himself fettered by authority he would have held that there was no
impossibility in the husbands acquiring an Egyptian domicil. The authorities on which the counsel for the wife rely are
apparently cited for two different purposes. The one is to show the
improbability of an European Christian intending to change his domicil for one
in an Oriental and un-Christian country, and they certainly show that this
improbability is considerable. Domicil being acquired animo et facto the
tribunal which determines the facts will take this improbability into its very
serious consideration, but it is only an improbability and not an
impossibility; and, as Dr. Lushington observed in Maltass v. Maltass (1), this
improbability diminishes if the habits or religion of a person are not
inconsistent with those of the country to which he has migrated. Here the
husband is of Greek extraction, his wife apparently is an Egyptian; he married
her in Egypt, and the branch of the Christian Church to which he is attached is
one that has a considerable footing throughout the Levant and in Egypt. In The Indian Chief (2) Sir William Scott had to consider whether
a merchant of American nationality resident in the English factory at Calcutta
could be allowed to trade as a neutral with the enemy or whether he should be
considered as a temporary British subject by reason of his residence under
British protection. It was suggested on behalf of the claimant that Calcutta
was to be considered as part of the dominions of the Great Mogul, on behalf of
the Crown that it was an (1) 1 Rob. Eccl. 67. (2) 3 C. Rob. 22. [*96] imperium in imperio, and upon this latter principle and in
conformity with some other decisions as to residence in Dutch and English
factories in the East Indies the claimant was deemed to be in the position of a
British subject trading with the enemy, and his goods were condemned. In the course of his judgment and in support of his conclusions
Sir William Scott dwelt upon the peculiar and isolated position of Europeans
gathered together in factories in the East and the immiscibility of the
European with the Oriental. In In re Tootals Trusts(1) an Englishman living and
dying in China, and the evidence being that he had determined to reside
permanently in China, made a will in English form which according to the
peculiar privileges granted to Europeans in China was proved in the British
Consular Court. The question was whether legacy duty should be paid on his
bequests. If he was domiciled in England it had to be paid. If he was domiciled
anywhere else it had not to be paid. The first line of defence might have been
that he was domiciled in China. Counsel for the legatees, however, gave up the
contention for a Chinese domicil, and did this with the approbation of the
judge, who thought that having regard to the difference of Chinese habits,
manners and religion, more was required to establish a change of domicil than
would be required if the change was to a country of western civilization, and
that this more had not been established. Whether their admission was right or
wrong was not a matter of judicial determination, and the approbation was given
by a judge who was apparently unassisted by argument. The first line of defence having been given up, counsel argued
that there was such a thing as an Anglo-Chinese domicil arising out of the
existence of the peculiar privileges of Englishmen and other Europeans in
China, and the establishment of Consular Courts, which was neither English nor
Chinese, but a tertium quid. This contention Chitty J. rejected, holding, and
certainly rightly holding, that domicil is not acquired by membership of a
community but by residence in a locality, and that if the testator had not a
Chinese (1) 23 Ch. D. 532. [*97] domicil he retained his English domicil. This decision of Chitty
J., and it is the only point which he decided, so far from supporting the
decision in the present case, is, as will be hereafter seen, rather opposed to
it. As to the bearing of dissimilarity of habits upon the probability of a
change of domicil I adopt the opinion of Horridge J. that this dissimilarity is
an element to be considered, but nothing more. The second and more important purpose for which the counsel for
the wife relied upon the authorities, was to establish, if they could, the
proposition that British subjects having a domicil of origin somewhere in the
British Empire could not acquire a domicil of choice (or that no evidence which
could be given would prove a choice) in any Oriental country subject to the
regime established by the Capitulations in Turkey or by analogous treaties with
China and other Oriental countries. It was said that the effect of these
arrangements was to put a British subject in a position of extra-territoriality
not dissimilar to that of an ambassador, and that his residence as one of a
privileged and protected community was a mere prolongation of his previous
residence under direct British sovereignty. For this purpose In re
Tootals Trusts (1) and the cases of Abd-ul-Messih v. Farra (2) and Abdallah
v. Rickards (3) are those upon which the principal reliance was placed. Upon a careful examination of Tootals Trusts (1) it will be seen
that it lends no support to this proposition. Chitty J., in stating his reasons
for approving the concession of counsel, does not rely upon the privileges of
Englishmen in China as affording any reason against a change to a Chinese
domicil. Indeed, if Tootal could by preserving his English nationality have
kept his privileges though he acquired a Chinese domicil, it would rather seem
that one motive for abstaining from change was thereby removed. When the
existence of these privileges was relied upon to support the peculiar
Anglo-Chinese domicil for which counsel contended, Chitty J. apparently
attached no weight to the argument. (1) 23 Ch. D. 532. (2) 13 App. Cas. 431. (3) 4 Times L. R. 622. [*98] If Tootal instead of having an English domicil of origin had been
a British subject of Chinese race and habits with a domicil of origin at Hong
Kong or Singapore, there is no reason to suppose that Chitty J. would have
found any difficulty in accepting a change of domicil to China or that the
existence of the British Consular Court with its jurisdiction over all British
subjects would have been considered as a reason against a change of domicil. In Abd-ul-Messih v. Farra (1) the testator was a Turkish subject
professing the Mahommedan faith. Under the Mahommedan law, which applies in
Turkey at any rate to all persons of that religion, the liberty of testacy is
restricted, and such part of the estate as cannot be disposed of by will
descends in a particular manner. It did not suit the interests of the widow
that the Mahommedan law should prevail, and therefore she set up a case for an
English or Anglo-Egyptian domicil. The testator was born at Baghdad, and, after some time spent in
India, took up his residence at Jeddah, and finally went to Egypt, where he
died, all these places being in the Ottoman dominions. When he went to Egypt he registered himself as a protected British
person, and it was upon this slender foundation and his temporary residence in
India that counsel for the widow argued for an English domicil. When that failed her counsel took up a second point of the nature
of that which the late James L.J. used to call a tabula in naufragio, that the
deceased has acquired an Anglo-Egyptian domicil (why an Anglo-Egyptian rather
than an Indo-Egyptian or indeed a Scoto-Egyptian did not appear), which would
attract to itself the English law of succession; and this contention was also
rejected by the Privy Council. So far as the decision went it tended in the
same direction as that in In re Tootals Trusts (2), towards the
disregard of the existence of special privileges for Europeans and the
establishment of Consular Courts as an element of any importance in considering
the question of domicil. (1) 13 App. Cas. 431. (2) 23 Ch. D. 532. [*99] The two points actually decided were, as stated in the judgment of
Swinfen Eady L.J., that the community of British subjects and persons having
the status of protected British persons in Egypt was not an ex-territorial
colony of the Crown, and that permanent membership of it did not carry with it
the same civil consequences as permanent residence in England. It was no doubt
further stated that supposing it to be an ex-territorial community residence in
it would not create a domicil of choice. But this was stated in respect of a
Turkish subject moving from one part of the Ottoman dominions to another and
supposed to be thereby seeking to acquire, not a domicil in the new part if
that would make any difference, but a domicil which would be given by residence
as a member of the supposed extraterritorial community. Scrutton L.J. drew, I
think, the right conclusion from this judgment. But his colleagues were led
away by attaching too much importance to certain dicta in the judgment as
stating the law of England and, what is even more doubtful, the law of Egypt.
Speaking with all respect, I must say that the passage which states the
position of British subjects in Egypt according to Egyptian law (a point which
was immaterial because the testator was held not to be a British subject)
states that law to some extent incorrectly. It is open to me to say this
because the position in Egypt is a matter of Egyptian law, and foreign law
according to our jurisprudence is treated as fact, not law. The judgment ignored the existence of the Mixed Tribunals in
Egypt, and treated British subjects as amenable only to the British Consular
Courts. It also spoke of them as immune from all local taxation. This last fact
may or may not have been so in 1888 when the judgment was delivered. It is not
the case now. As to the Mixed Tribunals they were established in 1876 by a
Decree of the Khedive, made, no doubt, with the consent of the principal
European Powers, but by virtue of his delegated authority under the Ottoman
Porte. The Tribunals consist partly of foreigners and partly of Egyptians.
There is no special requirement that the foreign judge in any particular case
should be of the nationality of [*200] the European whose case is before the
Tribunal, and they are given jurisdiction over all civil and
commercial causes not coming within the law of Personal Status between
Egyptians and foreigners and between foreigners of different nationalities.
They shall also have jurisdiction in all actions relating to real rights over
immovable property between any persons, even persons belonging to the same
nationality. They have also in several matters criminal jurisdiction
over foreigners, even in some capital cases. If, therefore, it is a principle
of law (as to which I should desire to reserve my opinion) that
residence in a foreign country, without subjection to its municipal
laws and customs, is .... ineffectual to create a new domicil, the
principle does not affect a British subject resident in Egypt so as to make it
impossible for him to acquire an Egyptian domicil. The other passage which is relied upon in support of the judgments
in the courts below runs as follows: Residence in a foreign State, as
a privileged member of an ex-territorial community, although it may be
effectual to destroy a residential domicil elsewhere, is ineffectual to create
a new domicil of choice. This passage professes to be an answer to the argument that the
deceased had at least acquired an Egyptian instead of a Turkish domicil.
Whether an Egyptian or an Anglo-Egyptian domicil is meant is not clear. I have
not found any trace in the report of the suggestion that the law of Egypt
differs as to succession from that of other parts of the Ottoman dominions. Be
this as it may, let me apply the general statement to the concrete facts:
Residence at Cairo as a British protected person may suffice to destroy any
domicil acquired in India or at Jeddah, but it is not sufficient to destroy the
domicil of origin at Baghdad and give a new domicil of choice, either an
Egyptian or an Anglo-Egyptian one. If an Egyptian domicil proper is intended
this passage does give weight to the connection with a privileged community;
but then there was no importance in an Egyptian domicil. If an Anglo-Egyptian
domicil is meant the passage shows what little weight their Lordships attached
to the privileged community. [*201] In Abdallah v. Rickards (1) Chitty J. took this last passage in Abd-ul-Messih
v. Farra (2) as stating the law. But all that he decided was that a
testator who had a domicil of origin in England, went to the Turkish dominions,
married a Mahommedan, returned to England and married a Christian, went again
to the East (Syria) and lived and died there, keeping up his English habits and
registering himself as a British subject, could not be held to have intended to
change from his British domicil. This may, or may not, have been a right
decision upon the facts, but whatever its weight or its applicability it is not
binding upon this House. These decisions, or at any rate the principles supposed to be
extracted from them, have been commented upon and dissented from in an
important decision of the Supreme Court of Maine: Mather v. Cunningham.(3) It is true that
in two cases in the Egyptian Prize Court the learned judges have given their
adhesion to them. But, on the other hand, in The Eumaeus (4) the President
expressly reserved his opinion upon the principle supposed to be extracted from
In re Tootals Trusts.(5) In this very case Swinfen Eady L.J., as I read his judgment, and
certainly Warrington L.J., thought that if the husband had segregated himself
from the European community he could have acquired an Egyptian domicil. If by
imposing this condition they meant that he must have renounced his British
nationality they make nationality the criterion of domicil, which is contrary
to all authority. If they did not mean that, non-segregation is only a factor
to be considered as a piece of evidence of the persons intention. My Lords, it does not appear to me that the position of Europeans
in the Ottoman dominions under the régime of the Capitulations, or
under any modification of them of which we have cognizance in the now
independent State of Egypt, is rightly described as extra-territorial. It is possible that this description might have been applied to
the ancient Dutch and English factories in the East Indies, and it may be that
in the case of Abd-ul-Messih v. Farra (2) (1) 4 Times L. R. 622. (2) 13 App. Cas. 431. (3) 105 Maine, 326. (4) 1 Br. & Col. P. C. 615. (5) 23 Ch. D. 532. [*202] it was assumed upon the imperfect materials before the Privy
Council that the position in Egypt was like that of a factory. Under the Capitulations and the subsequent treaties and
arrangements with Turkey, with Egypt under the Khedive as still a part of the
Ottoman dominions, with Egypt now as a protected State, and under the analogous
arrangements which exist in China and at one time existed in Japan and
Zanzibar, Europeans of many nations, including the British, have peculiar
privileges and some immunities, the measure of which is to be found in the
expressed terms of the several grants. In so far as it may be said that the
effect of them is to constitute separate little national communities, this is
immaterial on the question of domicil. The result is that while there is authority for saying that there
is improbability in the change of domicil to an Oriental country, even a so
highly civilized one as Egypt, there is no legal impossibility. My Lords, I think that the trend of Horridge J.s mind
was in the right direction, and that the decision of Scrutton L.J., which has
been of great assistance to your Lordships, was right, and that the judgment of
the other learned Lord Justices has not sufficiently analysed the actual points
decided, and has attached too much weight to the dicta, in the cases which have
so often been quoted. It is established, I think, that the husband had a domicil in
Egypt, and was therefore not subject to the High Court of Justice in England in
its matrimonial jurisdiction. I am of opinion that the appeal should be allowed. Order of the Court of Appeal reversed; judgment entered for the
appellant upon his Act on Petition, and the respondents petition for
dissolution of the marriage dismissed. The respondent to pay the costs in the
courts below and also the costs of the appeal to this House. Lords Journals, October 28, 1918. |