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Edward Ommanney and others, Trustees and
Executors of Sir Charles Douglas Baronet, Appellants ; deceased,
Mrs. Lydia Mariana Bingham, eldest Daugh
ter of Sir Charles Douglas Baronet, and Respondents. the Rev. Richard Bingham, her Husband,
Note of the Speech of the Lord Chancellor (Lord Loughborough),
at moving the Judgment in the House of Lords, 18th March, 1796.*
Lord Chancellor.- The question now to be determined by your Lordships is peculiarly interesting; and every argument of compassion, every thing which tends to call forth the higher sentiments and feelings, press upon your Lordships for every possible favour to the Respondents; for it is more than probable, that the resentment of the father, on account of this lady's rash conduct, would, under the real circumstances of the case, as they afterwards appeared, have been softened and appeased, and that his known good-nature would have induced him to pardon her indiscretion, and to annul the codicil to his will, if, to the great loss of his country, as well as his family, he had not been carried off suddenly and unexpectedly. But nothing can be so dangerous, as for a Court of Justice to suffer itself to be led away by compassion, instead of being guided by the general rules laid down as the law of the land ; and of applying, in the cases before it, that law, biassed by passion, or warped by personal consideration.
In the present case, there are two interlocutors brought under our review, in their natures essentially different from each other.
The first is on a question of pure Scotch law, by which the Court of Session have declared that the codicil, executed by Sir Charles Douglas, can have no effect, as being at variance with the law of Scotland. But, when this question was before them, unfortunately the Court overlooked another and previous question, which, therefore, forms the subject of their second
• It is understood that this note was given by his Lordship to the parties.
interlocutor ; and that is, whether Sir Charles Douglas was domiciled in this country, or in Scotland. The question here alluded to has no reference to the particular law of Scotland ; it must be decided on principles of general law; because it is now admitted, not merely in both parts of Great Britain, but in all, at least most of the civilised countries in Europe, that it is the place of a man's domicil which must give the rule for the distribution of his personal property.
Formerly, there seems to have existed in the Courts of Scotland, and in other parts of Europe, a kind of controversy in regard to the locality of personal property, as if its distribution was dependent upon this consideration. But the determinations of your Lordships, which have been acquiesced in and followed in Scotland, have now settled it as law, that the distribution of an intestate's personal estate, or the construction or effect of a will, must be governed by the law of the place where the intestate, or the testator, had his last domicil.
If, then, it shall be decided, in the present case, that Sir Charles Douglas died a domiciled Englishman, it is immaterial (as to these parties), whether the judgment of the Court of Session be right or wrong on the other question, which depends on the law of Scotland.
In viewing the life of the late Sir Charles Douglas, your Lordships will find it a life of bustle and adventure. The scenes of activity in which he was almost constantly engaged, and in the course of which he distinguished himself so remarkably for courage and good conduct, afforded him but little opportunity to settle long in any particular place. Independent of the services he rendered to this country, your Lordships will find him in the employment of two Courts, the allies of Britain; viz., Holland and Russia. In the Empress's service, he was entrusted with a very high command, which did not continue, however, for any great length of time; but, in the service of Holland, he continued for a much longer period, three or four years, - and it has been argued that he acquired a domicil in each of these countries; a question which I am not now called upon to discuss. At his return home, in both cases, he was employed in our own service, and your Lordships will perceive that he was much employed, and in various parts of the world; that he was exceedingly active at all times ; and that, when at home on shore, he was so eagerly engaged in the course and pursuit of his profession, that he did not settle any where, so as to strike root very deeply; which, at first sight, makes it difficult to say where he was domiciled. But, upon a more minute investigation of the circumstances in his life, I cannot approve of the judgment pronounced by the Court of Session; and I shall now examine into the reasons on which that judgment is founded, for the purpose of showing on what grounds I am not satisfied, in doing which I shall take the inverse order in which those reasons are stated in the interlocutor.
By this arrangement, then, the first circumstance is, that he died in Scotland, where some of his children were boarded. This, however, of some of his children being boarded in Scotland, is not mentioned as the ratio decidendi, but is thrown in along with the circumstance of his death. On that circumstance, however, no stress can be laid, for nothing is more clear than that residence, purely temporary, has no effect whatever in the creation of a domicil. Precisely of this kind was the residence of Sir Charles Douglas, in Scotland, at the period of his death. He had been appointed to the command on a foreign station, and went down to Scotland to take leave of such of his children as happened to be there, with all the hurry which was the necessary consequence of a speedy and immediate return. When he set out for Scotland, he was actually appointed. He had, therefore, so very short a time to continue, that it is impossible to say or imagine, that he had the remotest thought of settling or remaining in Scotland at the time when, unfortunately, his life was closed. The time he had to spend in Scotland, at that period, was limited ; his stay was circumscribed; an immediate return was indispensably requisite; and, lastly, the object he had in view, in this journey to Scotland, was definable, and is defined. He was there, therefore, without idea or intention to remain ; and, consequently, his last visit to Scotland, and unexpected death, can have no influence on the point of his domicil.
The next circumstance is, that, occasionally he had a domicil in Scotland. But this is rather an inaccuracy, for when had he a domicil in Scotland; that is, at what period was he fixed and settled there for life, or, as the word has been explained, for a perpetuity, meaning a continuation of time, or with an intention to remain ? Unless it can be shewn, that he had been settled in Scotland with such an animus, he can never be said to have had a domicil in that country. For there is no such thing as an occasional domicil. It is the general habit and tenor of a man's life which must be looked to ; and in no case is it possible for a man to be so situated as to admit the idea of any thing like two domicils for the purpose of succession, unless his time were so arranged as to be equally and statedly divided betwixt two countries, in each of which his residence had exactly the same appearance
permanency as in the other: a case which could hardly occur, for some shade of difference would in general appear, giving a clearer character of permanency, or established settlement, to one of the situations, than to the other. But if such a case, as I have now supposed, were brought before us, there might be some difficulty in coming at the true conclusion. It is sufficient, however, here to say, that such is by no means the present case.
The last, or rather the first, consideration in the interlocutor is, that Sir Charles Douglas was born in Scotland. This may be insisted upon as affording some little degree of argument; but the Judges in Scotland were all agreed in opinion, that birth is the slightest circumstance in the formation of the domicil of a person who has arrived at the years of Sir Charles Douglas. If it could be made out, that in no part of his life the person made choice of any country, as the site of his domicil, his birth would undoubtedly fix it in the place of his nativity. But, where a man's conduct and general habits have settled him elsewhere, his having been born in another country becomes of no consideration, and cannot have the smallest effect in regard to his domicil.
Upon the case of Sir Charles Douglas, my opinion is, that he fixed himself in this part of the United Kingdom; and I have no hesitation in declaring it as my further opinion, that it does not detract from the idea of his being domiciled in England, that his professional habits and conveniency, joined to his hopes of preferment, induced him to fix and settle here in preference to Scotland. As I have already observed, Sir Charles Douglas could not be much at home; but when he had any leisure, any opportunity of living on shore, where was it most likely, where most expedient, that he should be found ? At a great sea-port certainly; at Gosport, or in its neighbourhood; and it appears to me, that no officer, so eager about his profession, and of so much naval ingenuity as Sir Charles Douglas possessed (for it is well known that he was the author of some great improvements), would have chosen any other situation. Sir Charles Douglas was a public man, and one
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may, therefore, speak of him. I will, then, take it upon me to say, that his mind and inclinations were so attached to his profession, and his zeal and ingenuity for the improvement of the navy so great, that I am convinced he could not have been at rest for any great length of time in any situation, but where he had an opportunity of shewing and putting these in practice.
I have mentioned the probability that Sir Charles Douglas would take up his residence in this country; and, as matter of fact, he was domiciled at Gosport, that is, his family and establishment were there for seven years successively, from the year 1776, even when service called him personally to another quarter. At one period he had a guardship at the Medway. Still, however, his house and home continued at Gosport; and the general habits of his life and his conduct throughout, all tend to confirm the proposition, that his domicil was, by choice, in England, and consequently that he must be considered as an Englishman.
I shall not detain your Lordships with a discussion of the effect of the visit to his sister in 1786; but content myself with observing that, during the whole space of time which he remained in Scotland, he had no house of his own, was never master of a family; and that, previous to his departure for Scotland, he guards his sister against entertaining any idea that it was his intention to be more than a visiter, or to take up any settled residence in Scotland.
Your Lordships will at once see, that it is a very material circumstance, and takes away much of the favour of the case from the Respondents, that a man, considering himself an inhabitant of a particular country, and, acting upon that idea, has made a regular settlement of his affairs, agreeably to the laws of that country; and yet that he should be disappointed in his intention, and the disposition he had made be defeated, on the idea and supposition that his succession must be governed by the law of another country, where he happened to be born; and that such his settlement, not being agreeable to this latter law, shall be considered as good for nothing: that he shall be held as a person who has died intestate, leaving it to that law to make a will for him. In the case of Sir Charles Douglas, this hardship is particularly apparent; for, if we look to the will which he executed, and the subsequent codicil, it is impossible to conceive that he considered himself in the character of a Scotchman, having his property subject to the rules established