BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Munro v Munro [1837] CS 16_18 (15 November 1837)
URL: http://www.bailii.org/scot/cases/ScotCS/1837/016SS0018.html
Cite as: [1837] CS 16_18

[New search] [Context] [Printable version] [Help]


SCOTTISH_Court_of_Session_Shaw

Page: 18

016SS0018

Munro

v.

Munro

No. 3.

Court of Session

1st Division D.

Nov. 15 1837

Ld. Corehouse, Lords Justice-Clerk, Meadowbank, Fullerton, Jeffrey, Cuninghame, Lords Glenlee, Medwyn, Moncreiff, Cockburn, Lord President, Lord Gillies, Lord Mackenzie.

Miss Mary Seymour Monro,     Pursuer.— Counsel:
D. F. Hope— Forsyth.
George Munro and Charles Munro,     Defenders.— Counsel:
Sol.-Gen. Rutherfurd— Robertson.

Subject_Marriage—Foreign—Jurisdiction—Domicile.— Headnote:

A person, born in Scotland, and possessing a large entailed estate there, went to London in 1794, where he continuously resided till 1802; he had intercourse there with an Englishwoman, born and domiciled in England, in consequence of which a child was born to him in London in 1796; in 1801 he married the mother of the child, at London, by a regular marriage celebrated according to the English forms; in 1802 he brought his wife and child to reside at his family seat in Scotland, and they resided there, as man and wife, till his wife's death in August, 1803, after which he resided continuously at his family seat till 1808, when he left it to go back to London for the education of his child, whom he brought up in all respects as a lawful child: a declarator of legitimacy, and of right to succeed to the entailed estate, was afterwards raised by the child:—Held, by a majority, composed of seven Judges, that the child was illegitimate: one Judge, 1 of the majority, being of opinion, that the status of illegitimacy, attaching to the child at birth, by the laws of England, was every where indelible; five Judges 2 of the majority, being of opinion, that, in the circumstances of the case, the father was truly domiciled in England, both at the birth of the child, and at the time of his marriage with the child's mother, who never had any other domicile but in England, prior to her marriage; and therefore that the child could not be legitimated; and the seventh Judge 3 of the majority, holding it enough to exclude the legitimacy of the child that the father's domicile was English at the date of the marriage, which his Lordship held to be the case. Opinion intimated by a minority, composed of six Judges, 4 that, in the circumstances, the father had not lost his Scottish domicile, and that therefore the marriage was a Scottish marriage, possessing the virtue of legitimating issue previously born; and that the child was legitimate.


Facts:

Sir Hugh Munro of Fowlis was born in Scotland in 1763. He was the heir of an ancient Scottish family, possessing the entailed estate of Fowlis and others, in Ross-shire. He succeeded to the estate on his father's death in 1781, and was occasionally absent from Scotland, while engaged in travelling, or other transitory occupations, until 1789, when he came to reside with his mother at Ardully, which was one of the houses on the family property. The chief seat was Fowlis Castle, but it was then unfurnished and out of repair, and had been left in that state by his father. Soon after coming of age, Sir Hugh sold the estate of Woodlands in Dorsetshire, which was the only heritage to which he had succeeded in England. From 1789 to 1794 Sir Hugh continued constantly resident at Ardully, but in the spring of 1794 he went to London, from which he did not return till November, 1802. He was not detained in London by any professional or official avocations, but remained as a mere matter of choice. At least as early as the beginning of August, 1795, he became acquainted with Miss Jane Law, a person born and domiciled in England, and, in consequence of their intercourse, a child was born in England on May 15, 1796. In September, 1801, Sir Hugh married Miss Law at London, according to the forms of the English Church. In the certificate of marriage, the parties were respectively designed as bachelor and spinster, both of the parish of St Mary-le-bone. On the day before the marriage Sir Hugh emitted an oath, according to the English form, which, inter alia, bore, that he was of the parish of St Mary-le-bone, and that his usual place of abode had been in the said parish for the space of four weeks then last past.

At the time when Sir Hugh left Scotland, and during the whole period of his absence, his letters made frequent allusion to his intention of returning

_________________ Footnote _________________

1 Lord President.

2 Lords Justice-Clerk, Meadowbank, Fullerton, Jeffrey, and Cuninghame.

3 Lord Corehouse.

4 Lords Glenlee, Gillies, Mackenzie, Medwyn, Moncreiff, and Cockburn.

to his family estate. It was often spoken of as a purpose on which his mind was seriously bent, and sometimes as if it were on the eve of being carried into execution. But the expressions used did not always equally indicate that his return was to be permanent; they sometimes referred to it as more of the nature of a visit; and occasionally they seemed to indicate that an alternation of residence between London and Fowlis Castle was contemplated. Throughout the whole period, Sir Hugh's correspondence manifested the utmost interest in the management of his property, even in the most minute details, so as to amount to an actual superintendence of it, maintained by corresponding with his factor and others. *

_________________ Footnote _________________

* In regard to the important question of Sir Hugh's domicile, whilst in England, the circumstances which entered into it were so numerous, and often so minute, as to render any attempt to detail them necessarily incomplete and unsatisfactory. But the following particulars may be mentioned: Sir Hugh became a magistrate at Fortrose, and took a considerable share in county business, before he went to London. He was enrolled a freeholder of the county of Ross in 1790. In a letter written on leaving Scotland in March, 1794, he spoke of his intended “return from the south in June or July 1794;” and in another letter, soon after, he enquired whether certain “clothes-presses” had been sent to his dressing-room at Fowlis Castle. In the autumn 1794 he accepted the office of a deputy-lieutenant in Ross-shire. In June, 1795, he wrote to a person in charge of his affairs in Ross-shire,—“I intend leaving town for Ross-shire the end of this month. Your accounts with me need not now be sent here.” In September, 1795, he again wrote, proposing, as to certain accounts, to defer a final settlement “until my own return to Ross-shire, which will be very early in next summer.” And in October, 1795, he wrote respecting his intended management of his estate “when resident in the country;” and spoke of his contemplated “return to Ross-shire” early in spring 1796, In letters written in October and November, 1795, Sir Hugh apparently contemplated an alternate residence in town, and on his estate, as he wrote to his factor in these terms:—“When in the country, I shall consider myself factor under your directions, when I am here, you will be factor under mine:” and again he spoke of being his “own factor” both when in Ross-shire and here.”

In March, 1796, Sir Hugh took a lease of a house in Gloucester Place, London, at a rent of L.115, for twenty-one years, with a break in his favour at the expiry of each period of seven years. He furnished this house and lived in it, in a manner suitable to his condition in society.

In May, 1796, immediately after the birth of his daughter, Sir Hugh wrote to his law-agent in Edinburgh, asking “what forms, if any, are necessary to be observed, when executing a will, testament or disposition for the disposal of personal property, and whether, by a general disposition, land also may not be conveyed.”

In August, 1797, Sir Hugh wrote that he “was not yet quite decided on his jaunt to Scotland.” And about this time he wrote several letters, implying that he was on the eve of setting out for Scotland, and enquiring as to the hire of job-horses for a carriage, and as to a saddle-horse, to be kept by him, at a certain rate per month, whilst at Fowlis. In November, 1797, he wrote “my journey to Ross-shire, so long and often retarded here by circumstances which I could not foresee, is now, by the advice of friends here, given up to summer.”

During the whole period of his stay in London, Sir Hugh gave the closest attention to every detail connected with the management of his estate: And where the Mains or home farm of Fowlis, or the lawn around Fowlis Castle, were concerned, his letters, generally, or at least frequently, indicated a strong regard to the preservation of the amenity of the Castle as a residence. In 1795, he had let the Mains for seven years.

The marriage took place in September, 1801. At least as early as January, 1802, Sir Hugh's letters spoke of his “intended visit to Ross-shire;” and on 25th April, 1802, he wrote, intimating his resolution to be at Fowlis as soon as the house could be inhabited. The same letter stated, “I consider a journey to Ross-shire, and a residence in that country, as likely to involve me in much more trouble than would the tour of the French republic.”

During the earlier part of 1802, large quantities of furniture had been sent from London to Fowlis Castle, and the Castle was made fit for the reception and residence of the family. In the previous years, several boxes had been, from time to time, sent down, which were said to contain furniture.

On leaving London iu the end of October, 1802, only one servant was left in the house in Gloucester Place, to take charge of it. The carpets were taken up from the floors; but none of the furniture, pictures, &c., were removed out of the house. Sir Hugh continued to pay parish-rates upon the house as an occupied house. No evidence was recovered as to the payment of the assessed taxes on it.

After reaching Scotland, Sir Hugh appealed against an assessment on Fowlis Castle, on the ground that it was not inhabited, nor habitable, prior to November, 1802.

In a letter dated December 12, 1804, above a year after the death of Lady Munro, Sir Hugh, in writing as to a lease of the garden at Fowlis, said, “as my residences in Ross shire will for the future be seldom and short, such an arrangement was the most prudent.”

In the end of October, 1802, Sir Hugh and Lady Munro with their child, a daughter, left London, for Scotland. On reaching Scotland, in the beginning of November, 1802, they proceeded to Fowlis Castle, where they continued to reside as husband and wife, until August, 1803, when Lady Munro was drowned, whilst bathing. No second child was born of the marriage. Sir Hugh and his daughter, Miss Mary Seymour Munro, continued constantly to reside at Fowlis Castle until 1808, when he took his daughter to London, for the purpose of her education. He then went back to his house in Gloucester Place, of which he had always continued to retain the lease already mentioned. Sir Hugh was thereafter only occasionally in Scotland till 1817, but permanently from 1817 to 1820, after which he resided chiefly in London. During the whole period, at least from his marriage in 1801, he constantly treated his daughter as if she enjoyed the status, and all the patrimonial prospects of a lawful daughter.

The estate of Fowlis was destined under an entail, executed in 1776, in favour of a daughter, failing male issue of Sir Hugh, before any other heir of entail was called. The next heir was George Munro, late of Culrain. In 1833 Miss Munro raised an action of declarator of her mother's marriage, her own legitimacy, and her right to succeed to the estate of Fowlis, failing her father Sir Hugh, without male issue. The action was directed against Sir Hugh, and the other heirs of entail. Sir Hugh lodged defences admitting that the action was well founded. George Munro, late of Culrain, and his son, Charles Munro, the next heirs-substitute after Sir Hugh's issue, lodged defences denying the legitimacy of the pursuer.

The cause was reported on Cases by the Lord Ordinary to the Court; additional Cases were then ordered, after which the Opinions of the whole Judges were directed to be taken.

On the assumption that Sir Hugh Munro had not lost his Scottish domicile, whilst residing in England, the pursuer maintained, on the grounds stated in the preceding case of M'Douall, that the marriage was a proper Scottish marriage, although England was the locus contractus; that the alleged indelibility of bastardy, as arising from the mere place of the birth of the child was untenable; and therefore that the principle of legitimation per subsequens matrimonium, must, by the law of Scotland, take effect under this marriage, just as under any other Scottish marriage. 1 But on the footing that Sir Hugh's domicile at the time of the marriage was English, the pursuer further pleaded.

1. The evidence instructed that the marriage was contracted with the purpose of residing permanently in Scotland, the birth-place of Sir Hugh, and the site of his estates, and that purpose was carried duly into effect. At the time of Lady Munro's death, the matrimonial domicile accordingly was Scotland. This alone was enough to render the marriage a Scottish marriage so far as regarded the incidents and proper consequences of the contract, and the rights and obligations of the parties and the interests of their issue. 2 But if so, the legitimation per subsequens matrimonium must take place.

2. As Sir Hugh Munro and Lady Munro had cohabited as husband and wife in Scotland, and were universally esteemed married persons from the time of entering Scotland in November, 1802, to Lady Munro's death in August, 1803, they had satisfied every requirement of the law of Scotland to the effect of contracting a valid marriage in Scotland, supposing that they had not been married in England at all. And, on that supposition, the marriage so contracted, being a proper Scottish marriage, would have legitimated the pursuer. But although the fact, of a marriage having been previously celebrated in England, might not aid the procedure in Scotland, as a means of legitimating the pursuer, it could not prevent that procedure from having that effect, (1.) because there was nothing self-repugnant in the fact that the same persons who were married in England, should also be re-married in Scotland; and (2.) because, where every thing concurred within Scotland, which was requisite, by the law of Scotland, to constitute both marriage and legitimacy, especially in reference to the succession to lands in Scotland, the legitimacy ought to

_________________ Footnote _________________

1 For references on both sides, see immediately preceding case of M'Douall—also Stat. 4 Geo. II. c. 21, § 1—and 13 Geo. III. c. 21, § 1; 1 Blackst. c. 16; L. 24. Ulp. c. 27; Ulp. Fragm. t. 5, § 8; Nolen (Poor Laws), I. 323; Bruce, (Rob. on Per. Succ. p. 123 and 188).

2 Warrender, August 27, 1835; 2 S. and M'L's Appeals, 154; Story (Conflict of Laws), c. 6, § 193, et seq.

be declared by Scottish courts, leaving to any foreign state to deal with the status of, the party, in the manner which its own municipal code might dictate.

3. Every independent kingdom maintained a policy of its own, respecting the contract or institution of marriage, which, in many most important respects, it enforced, to the full extent of its territory, in regard both to parties who were domiciled within the territory at the period of contracting marriage, and also to parties who, being then domiciled abroad, came afterwards to be domiciled within its territory. It did not suffer its own policy to be subverted by the importation of foreign laws along with the arrival of foreigners who came and settled within it. Thus, it was the policy of Scotland to disallow bigamy or polygamy, and therefore if two Turks, after being married and domiciled in Turkey, where polygamy was allowed, came to settle in Scotland, neither of them could contract a second valid marriage during the subsistence of the first, because the policy of Scotland forbade it. Again, if two domiciled English parties married in England, where the marriage was indissoluble except by Act of Parliament, and, after a time, came and settled in Scotland, the law of Scotland would nevertheless divorce them for adultery, thereafter committed, to the effect of either party contracting a valid second marriage, which divorce and second marriage would be respectively valid to the full extent of the territory of Scotland, whatever might be the light in which the courts of England would regard them.—Again, in questions of succession of spouses and children ab intestato (so much akin to questions of legitimacy), it had been held that the effect of a marriage was flexible to a great degree, according to the domicile of the husband, at the period when the marriage was dissolved. Thus, where parties, domiciled in England, married there, and at an after period became settled and domiciled in Scotland, it was held that the rights not only of terce, but of jus relictæ and legitim took effect, at the death of the husband, and that the law of England did not regulate the rights of the parties, though these grew out of the relations constituted by the English marriage. Farther, it was the policy of Scotland to adopt the legal presumption, pater est quem nuptiæ demonstrant: and accordingly if any spouses came from abroad to Scotland, and were domiciled there, and a child was born, the law of Scotland would apply its own rule to the case, whether that rule obtained in the foreign country where the marriage was contracted, or not; though the application of the rule might often have the effect of legitimating a child who could not have been held legitimate if the rule had not been applied. But the policy of Scotland, on the question of legitimacy, so decided for the peace and welfare of society, and would unhesitatingly declare the legitimacy of any child entitled to the benefit of the legal presumption. In like manner, and for similar important purposes as to preserving the peace of society, it was part of the policy of the law of Scotland to presume that a matrimonial consent had passed between the parents of any child, born before the declared marriage of these parents; or at least to give to such child the rights of legitimacy. This rule was said to have been adopted, partly as a portion of the penal code of Scotland, at a time when fornication was punishable as a crime, and subsequent marriage was held to take away the whole cause of offence; partly as an inducement to parents to convert an illicit into a lawful connexion; and partly to prevent the scandal from occurring in families, of there being one or more of the brothers or sisters german, of the same family, who should be accounted spurious, and ousted from all succession to their parents, in respect of being born before wedlock. But whether the rule was rested on sound economical views or not, it was part of the law and policy of the country; and, to the full extent of its territory, that law should be applied to all its subjects; that is, to all spouses and their children domiciled within it. And this should hold the more especially in a question as to who had the status of legitimate heir to a land estate in Scotland, If the policy of Scotland had allowed a person to adopt a son, to the effect of rendering him heir in Scottish land estate, it would equally have applied to the case of a husband coming with his wife and family from abroad, and becoming domiciled in Scotland, as to any other subject of the Scottish laws. But the right of legitimation per subsequens matrimonium should, a fortiori, be held to accrue to the issue of spouses domiciled in Scotland, to the effect of succeeding to Scottish lands, wherever the spouses might have first contracted the relation of the continuous contract of marriage. Considering, therefore, how greatly the matrimonial domicile modified and qualified the rights of spouses and children, the pursuer was entitled in this case to have her legitimacy declared. 1

4. It had been decided in England, in the case of Birtwhistle, 2 that where a child was born in Scotland, of Scottish parents, before marriage, the subsequent marriage of the parents in Scotland, though it made the child lawful to the effect of taking up all Scottish estate, did not enable it to take up land-estate in England. If this judgment was right, it followed, ex paritate, that where a child was born in England, of parents domiciled there, who afterwards married there, the effect should be to legitimate the child as to lands in Scotland. Because, although the English decision was said to proceed upon the statute of Mertoun, that was an English statute merely, to which none but parties domiciled in England were subject; and if it was held to apply merely because the question regarded the succession to a land-estate lying in England, and therefore immovably

_________________ Footnote _________________

1 Lashley, July 10, 1804; Rob. on Succession, 418; 2 Craig, 13. 16, and 18, 17; 3 St., 3, 42; 1 Ersk., 6, 42; 1 Bankt., 5, 54; M'Adam, May 1813; 1 Dow, 148; 1567, c. 13; 1649, c. 12; 1661, c. 38; 1690, c. 25; 1696, c. 31; 2 Vattel, c. 8, § 14; Hertius de Collis. leg. § 46; Muller Prompt. Jur. § 64 and 142; Jac. Voorda, c. 3.

2 4 W. and S. App. 5, p. 95; 5 Barne, and Cress, 438.

subject to its laws, the same rule should cause the application of the Scottish rule of legitimation to the pursuer; and a fortiori, in respect that her father was a Scotsman, and he and his family were domiciled in Scotland during great part of the marriage, and at its dissolution. The defenders answered.

1. The evidence did not instruct that the marriage was contracted with the purpose of residing permanently in Scotland. But even if it had done so, it remained an English marriage, and could not possess the quality of legitimating a child already born.

2. The marriage took place in England. It was regular and valid, and as the same parties could only marry each other once, it was irrelevant to enquire whether their cohabitation and habite and repute in Scotland would have constituted marriage, in the event of no previous marriage in England having taken place. After the English marriage took place, even the most formal celebration of marriage in Scotland or elsewhere, could be attended with no legal effect, being merely useless and supererogatory.

3. Although each independent state maintained its own policy as to the laws of marriage and legitimacy, and would not allow it to be subverted by persons married abroad, importing their foreign laws along with them, these considerations did not dispose of the present case.

It was true that, in various respects, especially the distribution of intestate succession, the law of that country would prevail where the husband was domiciled at the time of his death, whether that was the locus contractus or not. By entering into marriage, a husband did not become obliged to remain domiciled during life, in the locus contractus; and his wife and children necessarily had their respective rights of succession to him, ab intestato, modified according to the laws of the country in which he might die domiciled. As to the power of the Scottish courts to divorce a proper English marriage, even to the extent of the territory of Scotland, it was not yet settled that they had such power. But even if they possessed such power, which was properly a matter of police, all that was essentially different from allowing the superinduction of a new domicile, at any period after marriage was contracted, to alter the legitimacy of any of the issue, either for better or worse. The change of domicile could not make the lawfully married parties, married in any sense, or to any effect, different from that in which they were already married; neither could it alter the relation in which they stood to their issue, born before or after wedlock. And, therefore, where, by the law of the matrimonial domicile at the period of contracting the marriage, that marriage had the effect of legitimating issue already born, such issue would instantly be legitimated by the act of the parents in entering into marriage; and where the marriage had no such effect, the subsequent acquisition of a new domicile by the husband never could legitimate the issue previously born, because it could not produce a new marriage 1 between the parents, and

_________________ Footnote _________________

1 Jolly (3 W. and S. Appeals, 156).

the only marriage which they had contracted did not possess the power of so legitimating. Accordingly a proper English marriage would no more acquire the power of legitimating issue previously born, by the husband coming to Scotland, than a proper Scottish marriage would lose that power, in consequence of the parents, at an after period of their married life, going to settle in England.

4. The case of Birtwhistle afforded no precedent as to the application of general principles of international law, as it was entirely special and turned on the construction of the words of a particular statute, termed the statute of Mertoun, according to which it was held that no child who had been born out of wedlock could take up the succession to the lands there in dispute.

The following Opinion was returned by

Lords Justice-Clerk, Meadowbank, Fullerton, Jeffrey, and Cuninghame:—

“We are of opinion, that the pursuer has not established her right to the character of the legitimate daughter of the late Sir Hugh Munro of Foulis; and that the defenders are therefore entitled to be assoilzied from this action.

“We are of this opinion, because we are satisfied that Sir Hugh was truly domiciled in England, both at the birth of the pursuer in 1796, and when, in September 1801, he there married her mother, who had never had any other domicile. We do not think it necessary to consider how the case of the pursuer might have been affected by the English domicile of the mother alone, taken along with the fact that she herself was born in that part of the United Kingdom, and that it was the place where the marriage was subsequently celebrated, and where all parties continued to reside for upwards of a year after that marriage,—if Sir Hugh himself had, up to the time of the marriage, been incontestably a domiciled Scotchman. Even upon this supposition, however, we think the pursuer must have had difficulties to encounter, which have not yet been resolved by any clear authority in the law of either country. Some of the dicta in the ultimate decision of the cases of Sheddan, Strathmore, and Ross, seem to point to a conclusion against her; while others, of the very highest authority, in the more recent case of Sir George Warrender, have rather a contrary bearing. But holding, as we do, that the domicile of the husband was also English, we humbly conceive that there is no authority on which the claim of the pursuer can be supported.

“We do not think it clear, that, at the time of the marriage, Scotland was exclusively or immediately contemplated as the future home of the parties, or the country in which their conjugal rights and duties were to be claimed and performed; though we rather incline to think that it should be so held. But then we are of opinion, that this is a consideration truly irrelevant, and extrinsic to the present question. The law of the country to which the contracting parties looked at entering into the contract, and in which they intended that it should be carried into execution, may very properly be referred to (in preference to that of the place of celebration, and perhaps even of domicile) for the measure of their rights and obligations,—because these, and no others, were truly the rights and obligations for which they must be held in substance to have mutually stipulated and engaged. But the legitimation of their previous offspring is not a matter for which they could contract or stipulate; or which can now be given or withheld according to what might be proved or inferred as to their purposes or understanding. It is, on the contrary, the gift or legal result of the law, as applicable to certain facts and circumstances; the value and effect of which must be judged of by the law alone, independent altogether of the intentions or expectations of the parents. The law, therefore, under which they themselves intended to live as married persons, may very well be allowed to settle the extent of their rights and duties as with each other, but cannot affect the condition of children previously born, which we think must be determined by the law of the country where the parents were domiciled at the birth and the marriage. If the domicile was not the same for both parents at these two periods, we should hold that that of the father, at the time of the marriage, should give the rule. But as they were the same in this case, the question does not arise.

“From what has now been said, it will be understood that we do not adopt the doctrine maintained in some parts of the defender's case, as to the absolute indelibility of the bastardy which attaches to a child born, under any circumstances, out of lawful wedlock, in England. Expressions calculated to countenance such a doctrine appear, no doubt, to have been used by some of the noble and learned persons who disposed of the cases of Sheddan and Strathmore, in the House of Lords. But, as in both these cases the domicile of both parents, as well as the place of marriage, and the after home of all the parties, was indisputably within the territory of the law of England, we cannot but consider them as having been used with reference to those admitted circumstances, and as truly importing no more than that the law to which alone the parents were subject at the time of the birth and of the marriage, must then have attached upon the child, and fixed its condition as a bastard, so irrecoverably as to admit of no change by any subsequent acquisition, either of domicile or of patrimonial interest, in another country. To this extent we conceive these decisions to be of binding authority; and the opinion we have expressed is in entire conformity to them. But we do not think they went farther; and we accordingly observe, that in the last case in which a question of this kind was submitted to the Court of review, we mean that of Ross of Cromarty, the Lord Chancellor (Lyndhurst),in moving the judgment of the Lords against the legitimacy of the claimant, expressly declined giving any opinion on the general indelibility of an English bastardy, and rested his judgment entirely on the English domicile of both the parents at the period of the marriage. We have understood also, that the Lord Chancellor (Eldon) maintained the same reserve in the earlier case of Strathmore, and gave his opinion against the legitimacy, on the English domicile and marriage alone; while in the case of Sheddan, those decisive circumstances were combined with the additional disqualification of alienage on the part of the claimant. In short, while there has confessedly been no judgment, any where, denying the right of legitimation, per subsequens matrimonium, to the children of Scottish parents, having no other than a Scottish domicile at the time either of the birth or the subsequent marriage, on the single ground of those children, or some of them, happening to be born during an occasional visit of the mother in England, we must hold, that it cannot have been intended to prejudge such a question by any dicta delivered in cases where it was not raised or argued; and that whenever it is so raised, it will be dealt with, at all events, as an open question.

“As to the evidence upon which we have felt ourselves constrained to hold that Sir Hugh Munro was a domiciled Englishman at and previous to his marriage with the mother of the pursuer in September, 1801, we do not think it necessary to go into any details. On the whole, it appears to us clear, that in 1794 Sir Hugh removed his residence to London, with a view to a long and settled, though indefinite, abode; and that in the course of that residence he had lost his former Scottish domicile, and acquired a new one in England, long before the period of his marriage in 1801. He had lived by that time more than seven years continuously in the metropolis. In 1795—a year before the birth of the pursuer—he had taken the lease of a house there, for a period of twenty-one years, with a break at the end of seven years, of which he did not avail himself. He had all this time no adequately furnished house for his accommodation, and no domestic establishment, in Scotland; and, in 1795, he had let the Mains or home farm around his Scottish castle for seven years—with a power, which he did not exercise, of resuming it at the end of three.

“We are not of opinion, that the ultimate judgment in the case of Lord Somerville affords any countenance to the notion that Sir Hugh Munro never lost his Scottish domicile. The question in that case was, where Lord Somerville was domiciled at the period of his death; and the state of the fact being, that, for many years previous to that event, he had an establishment and domestic residence in both countries, and divided his time pretty equally between them, it was held reasonable to infer, that the original domicile of nativity, which could not be lost by mere absence from Scotland on public employment, was that which he preferred, and meant to perpetuate, during this period of voluntary, but divided residence. The question here, however, is not where Sir Hugh was domiciled at his death, or when he regained that of his nativity after his return to Scotland in 1802, but what was his domicile at the time of the pursuer's birth, and his marriage with her mother.

“We cannot think that a settled voluntary residence for upwards of seven years in one and the same house in London, held on a lease entered into at the very beginning of such residence, can be barred of its natural effect of establishing an English domicile for the resident, by such expressions as occur during this period in the correspondence of Sir Hugh. It is no doubt true, as the pursuer observes, that he appears always to have cherished the notion of one day returning and taking up his abode in his paternal mansion; and that he made some small preparations, from time to time, for such an ultimate return: But all this, we humbly conceive, indicates an intention, not to retain his original domicile, which, as to a man sui juris, requires residence as well as purpose, but merely to regain or reassume it, at some future period, when the objects of his long voluntary residence in England were attained, and he was ready to throw off and resign the intermediate English domicile he had consequently acquired. Men settling themselves, of their own accord, or in the Company's service, in India, are held beyond all doubt to lose their native, and to acquire an Indian domicile; and the cases are innumerable in which their intestate succession has been distributed upon this assumption accordingly. Yet there probably is not one of those persons, especially of Scottish origin, who has not meditated an ultimate return to his native land; and, in the great majority of instances, made great preparations, and outlays, with a view to it. All this, however, only indicates a purpose to change their actual Indian, for a future Scottish, domicile; and till this purpose is consummated by their actual return to Scotland animo remanendi, it is quite settled that their only domicile is in India, and that it is by the law of that country that their rights and condition must be exclusively regulated. If Sir Hugh Munro had died in London the day, or the year, after his marriage, it does not appear to us to be doubtful that his moveable succession ab intestato must have been regulated by the law of England; and, if he was clearly a domiciled Englishman to this effect, we cannot possibly doubt that he was also, in regard to the marriage itself, and its consequences.”

The following Opinion was returned by Lords Glenlee, Medwyn, Moncreiff, and Cockburn:—

“This is a case of great interest to the parties. We also think it of importance to the law; and we have accordingly considered it carefully.

“Though the case raised by the declaratory conclusions of the summons is generally upon the personal status of the pursuer, as maintaining herself to be the legitimate daughter of her father, Sir Hugh Munro, it appears from the form and scope of the summons, and more especially from the character and position assumed by the defender, that the substantial question raised between these parties relates to the eventual succession to the estate of Fowlis in Scotland, under the entail of that estate. The parties in reality join issue in the question, which of them is at this moment the presumptive heir of entail?

“Although, therefore, the quæstio status to be determined must be governed by the principles of general law applicable to all such questions, it is not unimportant to keep it in view, that, as that question arises with a precise relation to the rights of succession to a landed estate situated in Scotland, it is by the law of Scotland peculiarly that it must be tried and decided. The pursuer, in asking it to be declared that she is the legitimate daughter of her father, and as such the heiress presumptive of entail in the estate of Fowlis, says, and necessarily must Say, that she is thus legitimate according to the rules of the law of Scotland as laid down by the authorities in that law, and the decisions of the Courts having jurisdiction to administer it. And the defender, in appearing to resist the pursuer's demand, and maintaining that she is not legitimate, and therefore that he is the heir-presumptive in the estate of Fowlis, says, and must say, that the pursuer's illegitimacy, and his own consequent right, can be determined only by the law of Scotland.

“We do not mean by this observation, to imply, that facts occurring in other countries, and the laws of those other countries incidentally operating on those facts, may not be necessary or material for consideration, in resolving the question of status put in issue. But, as the question raised directly relates to the succession to an heritable estate in Scotland, and as the laws of all civilized nations hold that every such question must be determined by the Courts and the law of the state where the property is situated, all such facts, and all such applications of the law of other states, must be judged of with reference to the fundamental principles of the law of Scotland itself.

“It is an admitted and essential fact in this case, that the pursuer is the daughter of Sir Hugh Munro, and of Jane Law, who, at the time of her death at Fowlis, on the 3d of August, 1803, was the lawful married wife of the pursuer's father. And, whatever other questions may exist concerning the legal domicile of those parties at other periods of their lives, it is beyond all doubt certain, that they were at that time, and long before, to all intents and purposes domiciled in the Castle of “Fowlis. If, at that time, Sir Hugh had predeceased Lady Munro, assuredly she would have had all the rights of the widow of a domiciled Scotch gentleman, and the succession to his estates real and personal would have been regulated generally by the law of Scotland.

“It has been an established rule and principle of the law of Scotland for some centuries, that, when a man and a woman are once lawfully married, all the children born of such parents, whether born before the public celebration or open declaration of such marriage, or after it, are equally to be esteemed their legitimate children. It is perhaps not very necessary to enquire minutely into the principles on which this rule of law has been established in Scotland, as it has also been in most of the countries of Europe. It is generally stated by our authorities to rest on a presumption or fiction, by which it is held that there was from the beginning of the intercourse of the parties, or at the time when the child was begotten, a consent to matrimonial union interposed, notwithstanding that the contract was not formally completed or avowed to the world till a later period; and it has been thought to be recommended by these considerations of equity and expediency, that it tends to encourage the conversion of what is at first irregular and injurious to society into the honourable relation of lawful matrimony, and that it prevents those unseemly disorders in families, which are produced where the elder born children of the same parents are left under the stain of bastardy, and the younger enjoy the status of legitimacy.

“But, whatever may be the principle, and whether the law may be useful or the reverse, it is undoubtedly settled in the law of Scotland. It is indeed liable to some exceptions. If, at the time when the child was begotten, one or both of the parties were so situated that they could not lawfully contract marriage, the presumption is excluded, and legitimation cannot take place. And, in like manner, questions have been discussed, as to the effect of facts intervening between the conception or birth of the child and the marriage, inconsistent with the retroactive power of the marriage at last established. We think it unnecessary to enter into such discussions, farther than to observe, that we do not doubt that the presumption may be contradicted, and the operation of the law excluded, by any thing which renders it impossible that the principle of it could be applied. But, apart from all such peculiarities, the rule is clear, and is of such strength and power, that, as Craig states it, ‘tanta enim vis est matrimonii subsequentis, ut de priori delicto inquiri non sinat, et illud omnino tollat et purget.’—Cr. ii. 13, 16.

“Though this doctrine is not to be taken so absolutely, as that nothing whatever in the history of the parents, or connected with the birth of the child, can be enquired into or considered, to control the effect of the state of matrimony at last established, the presumption arising from it is at least so strong, that, in a case standing in the first instance on such indisputable facts as those which we have hitherto assumed, it must lie with those who deny effect to the acknowledged law, to show some clear ground of exception, some distinct and specific cease or impediment, proved in fact, and laid down as relevant on sufficient authority, in respect of which a child of parents lawfully married shall be held illegitimate.

“And we do think it of great importance to observe, that, whatever judgment may be ultimately formed on the particular grounds of exception maintained in the present cause, no case has yet been decided—certainly not in the law of Scotland—against the legitimacy, in which the same state of facts existed at the dissolution of the marriage. In the case of Sheddan v. Patrick, the parties were throughout, and to the end, domiciled in America: In Rose v. Ross, they were all effectually domiciled in England, which legal condition was held not to be altered by the run made into Scotland for a few weeks: In the case of Strathmore, though a struggle was made for a Scotch domicile, Lord Strathmore, dying one day after celebrating a marriage with an Englishwoman in London, was held to have lived and died, domiciled in England. However the judgments pronounced, or the dicta delivered, in these cases, may bear on the present case otherwise, it stands very differently from them all in the point to which we are now referring. Sir Hugh Munro and Lady Munro were, during a long period of time, truly and bona fide domiciled as married persons at Fowlis, in the county of Ross, animo remanendi, when, by unforeseen calamity, the marriage was dissolved by the death of the lady. The status of their daughter, certainly acknowledged and treated by them as their lawful daughter, was then to be determined, under the force of the laws of Scotland. If Sir Hugh had died at the same moment, there could have been no conflictus legum in the direct or proper sense. Dying the proprietor of a Scotch entailed estate, and a native and domiciled Scotchman in the castle of his ancestors, having no real property any where else, he must have left his succession, equally in heritage and in personal estate, to be ruled by the law of the country where he drew his first and his last breath, and had held through life the centre of his affairs. If his wife had survived him, her status and consequent rights must have been at once established by her undoubted possession of that status, and the open cohabitation of the parties as husband and wife, without necessity for any enquiry into the time, place, or manner in which any formal celebration of marriage had taken place between them. There was here no disguised or colourable proceeding. The domiciliation, in the place undoubtedly most suitable for the proprietor of such an estate, and the chief of such a family, was fair, honest, and real in all respects. And the question which thus arises in the front of the case, is one which has not occurred in any of the other agitated cases—whether the rule of the law of Scotland, which holds all the children of married persons to be legitimate, will admit of being controverted by enquiry into the circumstances of the child's birth, or the local residence of the parties at the time when they either celebrated a form of marriage, or legally declared themselves to be married persons? We do not say that it has been positively decided that such enquiry is inadmissible; though the text in Craig comes very near to that point. But, at least, we know of no case in which the same facts have occurred, except indeed the depending case of M'Douall of Logan, in which a great majority of the Court hold the legitimacy to be established.

“Although, therefore, the present cause involves other questions of great delicacy and importance, and though we are sensible that it cannot be exhausted, and not be generally thought to admit of being decided, on this ground alone, we still think it of importance that the peculiar circumstances under which the legal presumption is in this case sought to be overcome should be kept in view.

“The defender has put on record two pleas, in respect of which he maintains, that the law which establishes a child's legitimacy by the marriage of its parents is excluded in this case. These pleas are,—1st, The pursuer having been born illegitimate in England, of an English mother, is not entitled to succeed in a declarator of legitimacy, founded upon the subsequent marriage of her alleged parents in England.

“‘2d, Upon the supposition that the domicile of Sir Hugh Munro, at the period of the pursuer's birth, and her mother's marriage, were material, that domicile must be held to have been English.’

“These pleas are, no doubt, skilfully drawn as the pleading of a party. But they are not expressed with the precision which we think necessary for judgment. The first combines and blends two points together which are in themselves distinct. It cannot be gathered from it, whether it is meant to be laid down, that the pursuer must be legally illegitimate, simply because her birth took place locally in England before the marriage of her parents, though this seems to be maintained in argument; or whether it is only intended, that a person so born in England cannot become legitimate by a subsequent marriage celebrated in England—leaving the question open, whether a Scotch marriage might not have that effect. Again, it is made to appearance a necessary element in the plea, that the mother was English, leaving an implication that the case might be different if the mother were a Scotchwoman. And still farther, this first plea is stated abstractly, without reference to the domiciliation of the father or mother. On the other hand, the second plea states hypothetically, that, supposing the domicile of Sir Hugh Munro at the pursuer's birth, and at her mother's marriage, to be material, that domicile must be held to have been in England. It does not plead distinctly the precise effect ascribed to such domicile—not indicating which of the two points of time is taken as the ruling point; whether, if the place of birth alone will not settle the question the domicile at the date of the birth will determine it; whether there must be superadded to that the place of the marriage, and the domicile at the date of it; or whether the place of the marriage alone, with the domicile at the date of it, will admit or exclude legitimacy; or whether, finally, the place of birth and the place of marriage must be combined, and the domicile at the date of marriage added to them.

It is obvious, that cases may be easily figured coming within the scope of these pleas, in which the application of them would be exceedingly perplexing. The defender, in his argument, does not hold himself to be bound to make out all the assumptions on which they rest, but strives to sustain his case by various hypotheses put forward alternatively. We think it of importance, that the points should be kept distinct. The first question, and in our opinion by far the most important, is that which relates to the domicile of Sir Hugh Munro. When that shall be ascertained, it may then be applied to the birth and to the marriage; and if it should be found that, at the date of the marriage, he was domiciled in Scotland, it may then be a question, whether the locality of the marriage can prevent the effect of it to render the pursuer legitimate; or, if it should be found that the locality of the marriage will not avail against the law of the Scotch domicile, it may then be enquired, whether the place of the birth, by itself, or combined with the place of the marriage, will produce that effect, assuming the domicile to have been Scotch at the date of it. A separate question has been suggested, though not distinctly in the pleas, on the supposition that Sir Hugh Munro Was a domiciled Scotchman, as to the effect of the domicile of the mother at the birth, or before the marriage.

“We proceed to consider the question, what was the legal domicile of Sir Hugh Munro at the time of the pursuer's birth, and more particularly at the time of the marriage of her parents. And we are of opinion, upon a careful consideration of all the facts of the case, that Sir Hugh Munro had, at the first, his domicile of origin in Scotland, and that he had not lost that domicile, either at the date of the birth, or at the date of the marriage.

“We consider this to be a question of very grave and serious magnitude. For, while it appears to us that the facts do not warrant the conclusion that Sir Hugh ever lost his Scotch domicile, according to the fundamental principles of the law of domicile, we apprehend, that, upon the grounds on which it is maintained that he did lose it, many individual Scotchmen may be found to have lost their domicile of origin, without any intention of abandoning it, or the slightest contemplation of establishing a domicile elsewhere; and so, to have lived and died under the operation of laws to which they never looked for regulating the most important interests of themselves and their families.

“Certain facts in the case appear to us to bo free from all doubt. Sir Harry Munro, the father of Sir Hugh, was a native of Scotland, and undoubtedly domiciled there all his life. Sir Hugh Munro was born in Scotland in 1763. He spent his infancy, and received part of his education in Scotland. He was afterwards sent to England for education. His father died in 1781; and Sir Hugh was in Scotland that year. He afterwards went on foreign travel for some years. He came of age in 1784, and was variously in England, Scotland, and on the Continent, till 1789, having been occasionally in Scotland in 1785, 1780, and 1787; and having returned from the Continent in 178, 9, he came to reside with his mother, in one of the family mansions of the estate, and was constantly resident there till 1794. We hold it to be quite an indisputable matter of fact and law, that, down to this period of his life, he had at all times, and wherever resident, continued, as he was at first, a domiciled Scotchman. For it is scarcely necessary to observe, that a boy sent into England for education does not lose his domicile of origin; and that neither does a young gentleman, travelling into foreign parts for his improvement, or living occasionally in the metropolis of England for his amusement, make any change thereby on his legal status as a Scotchman. There is no evidence, nor indeed any averment, that Sir Hugh had, in any part of this time, established himself in any permanent residence in England, or elsewhere, animo remanendi. On the contrary, he had, in the meantime, sold the only real estate which he possessed in England. His constant residence at Ardully from 1789 till 1794 would indeed have effectually fixed his domicile at the end of that period. But the more material view is, that then, at the age of thirty-one, he had never ceased for a moment to be a domiciled Scotchman. On this fundamental fact, we apprehend, there can be no difference of opinion in the Court.

“So far as we discover from this Record, Sir Hugh Munro, being the heir of such a family, was not bred to any profession. At any rate, having succeeded to his father in 1781, he entered into no profession; and it is clear, from all the evidence in this cause, that, throughout his life, he never had any subject of care or business, other than the management of his estate of Fowlis, the education of his daughter, and the literary pursuits to which he might voluntarily addict himself. The extent in which he engaged in the active superintendence of the most minute affairs of his estate, is largely detailed in the evidence, and commented on by the parties. It is not of a common nature, but appears to have gone far beyond the ordinary attention of gentlemen of his rank and condition to their estates. But, though we think it of very great importance, as marking his attachment to his estate, and to his native country, and his anxiety for improving his paternal inheritance, manifestly in contemplation of a permanent residence, we do not feel it to be necessary to enter into the particulars so fully brought out in the evidence and correspondence. The important impression left is, that the legal presumption for the continuance of the domicile of origin in all cases, is in this instance greatly strengthened by all the circumstances in the actings and proceedings of Sir Hugh Munro. We can attach no importance to the fact of some of the old furniture in the house of Fowlis having been removed to Ardully at an early period, when it is observed, that Sir Hugh's intention then was to fix his residence at Ardully, at least for a time, and is besides apparent that, from the nature of Fowlis Castle, and the amount of debt left by his father, Sir Hugh was not in a situation either to repair the house itself, or to furnish it in a manner which he would have thought suitable. Such things are far more than outweighed by his active care of the estate, during a constant residence of four or five years after his return from travel, and the fact of his having actually sold the only real estate which could have connected him with England.

“Indeed, when we reflect on the condition of Sir Hugh Munro at this time—the proprietor of such an estate, in which he took so deep an interest—a gentleman of rank and influence, and the acknowledged chief of his clan—engaged in no profession—and having no mercantile or other employments, to draw him away permanently, or to lead him to abandon the land and domicile of his fathers, and establish himself in a foreign domicile animo remanendi—we think, that the improbability, that any such intention could enter into his mind, is so very great, that nothing but the strongest and clearest evidence of the fact could lead us to come to the conclusion that he over had such an intention.

“But, in looking to what did take place in 1794 and the following years, it is most essential to remember, that the question is not, whether what Sir Hugh did might have been sufficient to create for him an English domicile for some purposes—not, whether if he had been a mere wanderer, with no previous fixed domicile, whose domicile of origin was unknown, and who had the sum of his fortunes and affairs centred in no known locality of the earth—a person without a home, or any fixed seat of his family interests, family honours, family affections—that which he did in England might have stamped on him the character of a domiciled Englishman? This is not at all the case to be resolved. In the case of Lord Somerville, it was clear, and was assumed as unquestionable, that he had an English domicile fully established; but, as in a question of succession, there can be but one domicile to govern (and the rule is the same in a quæstio status), the point to be determined was, not whether he had an English domicile to some effects, but whether he had deliberately abandoned and lost his domicile of origin in Scotland as the predominant guide in the succession to his property. And the question is the same here—Whether, holding it to be clearly established, that previous to Sir Hugh Munro's departure from Fowlis in 1794, he was and had never ceased to be a do miciled Scotchman, he abandoned and lost that domicile, so as to render it inoperative in any question of status which might arise? To judge of this correctly, we apprehend that it cannot be determined by any isolated facts, but that all that he had done before, all that he did or wrote during his residence in England, and all that he did after the material point of time, must be taken into view.

“For it is now necessary to advert to the leading principles by which such a question must be governed. One rule is, that a change of such a domicile, once established, is not easily to be presumed.—‘Non tamen, in dubio, præsumenda facile domicilii mutatio; sic ut cam alligans, tanquam rem facti, probare tencatur;’ Voet 5. 1. 99. ‘Sic enim, in dubio, in loco originis et domicilio paterno quemque presumi continuasse domicilium jam ante dictum.’ Ibid. No. 97. And on these principles, as it is a settled rule in the constitution of a domicile, that it is not formed or proved by the mere fact of residence, however long continued, without the animus or purpose of permanent domiciliation, much more where the question is, whether a man at the age of thirty-one has changed his domicile, abandoning that which he had held from his birth, must there bo proof, not only of the fact of residence elsewhere for a given time, but of an intention to constitute a new domicile in exclusion of the old. The question is one partly of fact, but still more of intention; and unless both be proved, either directly, or as matter of necessary inference, the change of domicile cannot be presumed to have taken place.

“It is on this clear principle, that absence for education,—absence on foreign travel, even though the party may have lingered long in one spot,—absence on military duty, however long, and with whatever permanence in particular stations,—and various similar cases, work no change of the original domicile. The case of persons entering into the service of the East India Company, or any similar employment, is essentially different; and let it not be thought that we have lost sight of the settled rule in such a case. Though the person, who engages in such a course of life, may have in his mind a constant contemplation of returning at some distant and undefined period to his native country, by adopting such a trade or profession which indispensably requires a continued residence in another, and actually pursuing it for a length of time, he forms and evinces that animus remanendi which is of the essence of a constituted domicile, just as effectually as a man who settles as a merchant in London or Hamburgh does, though he may have a lingering anticipation, that, at some time or other, when fortune has crowned his labour, he may spend the evening of his days on his native soil. Such cases, therefore, as Bruce, Dr Munro, &c., afford no illustration against the fixed principle, that to effect a change of domicile for questions of succession or status, there roust be the combined force of actual residence, and the animus remanendi clearly evinced. We think that the correct principles of those cases have been imperfectly appreciated in the opinions which differ from ours in the present case.

“The case before the Court, and others of the same kind, such as Somerville, lie between the two classes of cases now adverted to. There is neither, on the one hand, a known ostensible object, such as education, military duty, &c., which, by presumption of fact and law, excludes the inference of a purpose to abandon the domicile already held; nor, on the other hand, any profession, or métier, of a permanent and continuing nature, taken up, which marks at once the purpose of removal to another domicile animo remanendi. Still the principle of law must apply with equal force to such cases, that it is not by the fact of residence alone, but by such residence with the animus of permanency evinced, that the abandonment of the original domicile is to be established: And this must ever depend on a due consideration of all the facts.

“The general principle on this subject cannot be better expressed than in the words of Voet, which correspond with all that is laid down by the other jurists:—‘Illud certum est, neque solo animo, neque destinatione patris familias, aut contestatione sola, sine re et facto, domicilium constitui: neque sola domus commoratione in aliqua regione; neque sola habitatione, sine proposito illic perpetuo morandi, cum Ulpianus a domicilio habitationem distinguat,’ &c.—Voet, 5, 1, 98. And the general definition of a domicile, as the place where a man ‘larem rerumque ac fortunarum suarum summam constituit, undo rursus non sit discessurus, si nihil avocet, undeque cum profectus est, peregrinari videtur,’ gives a test, whereby the question between mere habitation or residence do facto, and permanent domiciliation animo perpetuo morandi, may in most cases be easily resolved.

“With these principles in view, let the case of Sir Hugh Munro from 1794 downwards be considered.

“After having been for nearly five years constantly resident on his estate in the house of Ardully liferented by his mother, he appears to have formed the desire of having an independent establishment. It is in evidence, that with this view, being then unable at once to repair and furnish Fowlis Castle, he had proposed to Lady Munro to remove to a house in Edinburgh, and that she had at first agreed to the proposal. This assuredly indicated no intention or desire to forsake his domicile of Scotland, but directly the reverse. Lady Munro, however, ultimately declined the proposal. The consequence was, that a certain degree of coolness was produced between Sir Hugh and his mother. Whether this was the cause of his going to London at that time is not precisely in evidence, though it probably influenced him in accompanying the Rev. Dr Robertson, who had occasion to go there; but it does appear, that, intent on his improvements, he lingered, and set out unwillingly at the moment.

“There is nothing is the proof to show, that in this expedition Sir Hugh had any other object in view than his amusement, and a natural desire to revisit the metropolis, perhaps contemplating that he might be able in the meantime to repair and furnish as much of Fowlis Castle as might accomplish his purpose of independent residence. In that very year, 1794, some furniture was ordered and provided for his own dressing-room in the Castle; and it is in evidence, that, at that time, there was no contemplation of his being long or permanently absent, but, on the contrary, a general expectation that he would return soon; and that preparations were made for his reception in the following year, when furniture was sent from Inverness specially for his own use. But, apparently, the state of his health, or perhaps another cause, prevented him from realising his intention of return at that time. Yet even then, in writing to his factor, he speaks expressly of ‘my own return to Ross-shire, which will be very early in next summer.’ Again, he expressly intimates, that ‘at Whitsunday next I intend taking the management o the estate into my own hands. Mr Munro will continue to act for me, until my return to the country, which will be early in summer.’ The same thing is said over and over again in other letters, where he uses the same words, and speaks expressly of what he is to do ‘when resident in the country,’ The letters early in 1796 hear the same words, Sir Hugh constantly speaking of his ‘return’ to Ross-shire as for permanent residence. There is, besides, the clearest evidence of the reality of these intimations of his mind and intentions, in the anxious directions which he gives as to the management of the lawn of Fowlis, declaring, in express words, that he ‘intends’ ‘to live in the house.’

“Though the ‘return’ was postponed, and the same language is continued in the later part of 1796, and following year, we beg leave to stop here for a moment, and to ask these questions—1. Whether, with such evidence before the Court, it can be held, that when Sir Hugh left Ross-shire in April, 1794, he did so with the animus of abandoning his domicile in Scotland, or of fixing his residence in London animo remanendi? And, 2. Whether in February, 1796, when he was making such preparations, and writing such determinate intimations of his designs, it could, in any consistency with the truth of the case, have been predicated as a, fact, that he had fixed his abode and domicile in London animo remanendi? We cannot answer either of these questions otherwise than decidedly in the negative. And yet, Sir Hugh had been then absent from Fowlis, and personally resident in London, for nearly two years. But we think; it clear, that that residence, though incidentally prolonged, was but the hare hahitatio spoken of by the authorities, ‘sine proposito illic perpetuo morandi.’

“Hitherto Sir Hugh had resided in hired lodgings. We can probably see well enough the main cause which almost from day to day protracted the execution of his fixed purpose of returning to Scotland. He must have become acquainted with the pursuer's mother at least as early as the beginning of August, 1795, probably some time before, as the pursuer was born on the 15th May, 1796; and although, as far as there is faith in written and real evidence, where no sinister design could be in view, neither this fact, nor the consequent pregnancy of the lady, made any change in Sir Hugh's mind or purpose, it is easy to understand, how from time to time he might be led to delay the execution of it. There can be little doubt, that it was the consideration of her condition, which led to that transaction which forms the main difficulty, and the main ground of the defender's plea, in this part of the case. In March, 1796, Sir Hugh took a lease of a house in Gloucester Place for 7, 14, or 21 years, in the tenant's option, in which he with the lady took up their residence.

“We are by no means insensible to the importance of this fact. But we are far from thinking that it ought to he regarded as conclusive of a permanent change of domicile, or that it is not still to be considered in connexion with all the other facts of the case, in order to discover the animus which prevailed throughout. The form of the lease was only the common form in general or frequent use in London; and it is not a little remarkable that, in the case of Lord Somerville, he also ‘took a lease of a house in Henrietta Street, Cavendish Square, for 21 years, determinable at the end of 7 or 14 years;’ and nevertheless it was found that his domicile for succession was still in Scotland. The cases may not be the same, in so far as Lord Somerville was in fact resident in Scotland during a part of each year. But they are similar in this point, that the mere taking of a house on lease is no conclusive proof of an intention to change the existing domicile. All the facts must still be looked into, and the real intention ascertained, not by any single circumstance, hut by combining and comparing the whole together.

“Now, it was after having taken that lease, that Sir Hugh wrote the important letter to Mr Aitken of the 25th March, 1706, giving directions about the lawn, and stating expressly his intention to live in the house of Fowlis; which was followed by a lease in conformity to the instructions. By another letter of the 18th April, 1796, he still intimated his intention to be in Ross-shire that summer, and spoke of it as his ‘return’ to the country; and it appears by other documents that his return was expected, and prepared for. It is impossible that these things could take place from any thing but a fair and true meaning. For, if Sir Hugh had been then thinking of any such question as that, now before the Court, he had an instant remedy in his hands. He had only to marry the pursuer's mother before the pursuer's birth. Taking the letters, therefore, to speak the reality of his mind, we cannot doubt that he did still seriously intend a speedy return to Scotland.

“What may have been his precise view in taking the lease it may not be easy to ascertain. One simple probability is, that he wished to have the house, and could not get it without taking the lease for years. But, supposing that he had other motives, we think that we are bound to adopt some hypothesis which is consistent with his declared intention otherwise; and there are various ways in which it may be explained, in perfect consistency with his firm resolution to return to Fowlis, and to adhere to his Scotch domicile. He may have intended it as a suitable residence for the lady and his daughter, in which he might visit them occasionally, though he still settled his own residence in the Castle of Fowlis. But take it otherwise, that he meant it to some effect as a residence for himself, what hinders the supposition, that he intended the very thing which Lord Somerville did to keep it as a residence during a part of the year, while he yet carried into full execution his declared purpose of residing principally and permanently at Fowlis? or still more probably, in this last view, that he contemplated his marriage, and an arrangement which might protect him against any apprehended embarrassment? But, whatever view he took of the lease so entered into, we think that it is clearly in evidence that it made no change on his purpose of residing at Fowlis. In that, he appears to have been unshaken; and the delay to execute it must he attributed to other causes than any change of intention.

“But here we observe a very remarkable document. The pursuer was born on the 15th May, 1796. And on the 16th May, Sir Hugh, writing to Mr Kenneth M'Kenzie on other matters, puts in this request:—‘I shall be obliged to you to inform me what forms, if any, are necessary to be observed, when executing a will, testament, or disposition, for the disposal of personal property, and whether, by a general disposition land also may not be conveyed.’ This is at the very moment of the birth of the pursuer. And what does it import? Sir Hugh plainly contemplated the execution of some deed affecting his personal property, for the safety of the pursuer's mother and herself. Did he then imagine himself to be a domiciled Englishman? If he had so thought, he never would have been writing to a Scotch conveyancer for a form of settling personal estate. We are aware that it is not an impossible thing that a man may by his own acts become legally domiciled in a place, without his being perfectly in the knowledge of the legal fact. But that Sir Hugh Munro, who had held his domicile of origin untouched up to the moment of his leaving Fowlis in 1794, and, as we think, decidedly retained and adhered to it, as far as the constant intention of speedily returning could have that effect, till the very moment of so writing to Mr M'Kenzie, should be held to have been domiciled in England ammo remanendi, and to have deliberately abandoned his Scotch domicile, while he yet believed that all his estates real and personal were under the power of the law of Scotland, is a proposition which we find it very hard to receive.

“But farther, after this, Sir Hugh went on, on the 25th May, 1796, still to speak of his ‘return’ to the country, and to repeat the expression of his intimation in July and August following. He changed his purpose of going in that year; but wrote in October that he should be in Ross-shire next year, ‘unforeseen events having obliged him to defer his journey.’ And in a remarkable letter, he instructed Mr Aitken to reserve the hens and eggs paid in kind, because ‘when at home I shall have occasion for them.’ Where was Sir Hugh Munro's home at this time? At least, in his own mind, there was no doubt that his home was at Fowlis.

“Throughout the year 1797, Sir Hugh continues to speak of his return to Ross-shire. Various things were appointed to be done, and a box was sent to be placed in the library; and so fixed was his purpose, that on the 14th July he writes—‘I set out in a few days for Edinburgh.’ From some cause the journey was still delayed, but it was not laid aside. So late as the 24th October, he intimates to the Lord Lieutenant, that he had expected every day to pay his respects to him; and though, when it came to the end of the season, he had limited his intention to a short residence, and was at last advised, on account of the state of the roads, to postpone it, yet there cannot be a doubt that, throughout the correspondence, he had never for a moment laid aside the intention of returning to Fowlis for permanent residence.

“The correspondence recovered in 1798 is not so full as in the previous years. But in March of that year, Sir Hugh writes to Mr Aitken, still expressing his intention of being in Ross-shire; and in May, a very anxious letter about the observance of the conditions of the lease of the Mains, and the state of the house and offices at Fowlis, pipes, wells, &c., and the repairs necessary,

“In 1799, he writes anxiously about the repairs and furnishings for the castle. In that year he took advantage of a break in the lease of the Mains; and one of the tenants depones, ‘That the reason given for the break being taken advantage of in 1799 was, that Sir Hugh was coming to reside at Fowlis, and therefore wished to have the Mains in his own hands.’ The power had been reserved for that express end, and now it was acted on accordingly. There is also very little correspondence in the year 1800. Sir Hugh was continuing to order repairs and improvements on the castle; and in one letter in November of that year, though he still contemplates being in Ross-shire the next season, he anticipates the possibility of his being prevented.

“There can be very little doubt that what prevented Sir Hugh Munro from executing the intention so often declared of returning to Fowlis, was, on the one hand, an unwillingness to leave the pursuer's mother and herself, and, on the other, a doubt or fear in what manner they might be received, especially by his own mother, when he should have fulfilled his intention of marrying the lady. But it seems to be very clear, that, at least early in the summer of 1801, he had made up his mind to the course which he afterwards pursued. For we find him writing anxiously about the heights of the rooms, and various minute particulars, implying the design of a speedy residence. By the proof, it is established, that, during several years, furniture had been gradually sent to the castle; and in the end of 1801, Sir Hugh writes in the most anxious terms on the subject of the thorough repair and furnishing of it.

“In the mean-time, the marriage between Sir Hugh and the pursuer's mother was celebrated on the 24th September, 1801. We cannot think it of any consequence, that Sir Hugh Munro is in the affidavit designed by his actual residence in London; because we believe that by the law of England all parties before being married must have been resident in some parish for a certain period, and that there are few instances of a person married in London, however clearly his domicile may be elsewhere, being otherwise designed than by his actual residence there. * And, as the parties were undoubtedly unmarried persons previous to that celebration, neither can we attach any importance to the fact that they are so designed.

“But, after having thus taken the first step which was to break through the state of hesitation which had hitherto restrained him from completing his own purpose of return, Sir Hugh's anxiety evidently became intense to have the Castle of Fowlis put in a complete state for the residence, not of himself as a single man, but of his wife and family, according to his rank and station. On the 9th December, 1801, he writes to know ‘the length and breadth of the bedstead in my room;’ and on the 16th he writes—‘It is my resolution, please God, to go early next summer into Scotland. I wish, if possible, to reside at Fowlis, while I am in that country; and I hope I shall, without difficulty, be able to accomplish that wish; but be that as it may, nothing but death or violent sickness shall prevent my affording you an opportunity of seeing me.’ We see here something of the feeling of distress which Sir Hugh had experienced, under the succession of incidents which had interposed to delay that return to Fowlis which he had constantly in his intention and desire, and something of the grave determination with which he looked to it, now that the probable cause of its postponement had been removed. Perhaps we see also some indication of what is more pointedly presented in another important letter, written to Mr Mackenzie on the 20th January following. Sir Hugh, apparently, had informed Mr Mackenzie, among his other friends, of his marriage, and Mr Mackenzie had made some remark about its not having been put in the newspapers; and Sir Hugh, in answer, writes the remarkable passage, in which, observing that, being but a little man in London, he did not think that necessary, he adds—“My intended visit to Scotland made it (the marriage), I thought, necessary.” There is here, no doubt, and in a previous part of the letter, where he speaks of his visit being short, a kind of preparation for a possible result, the fear of which was not entirely out of his mind, namely, the possible reception which his wife and daughter might meet with from his mother especially, and his other friends in Scotland, which might eventually render it necessary for his wife's comfort and respectability after all to depart from that his natural and chosen residence. That his real design was to settle there permanently, is proved by the extent of preparation made, and the successive shiploads of handsome furniture sent to Fowlis, but still more by the event, in their decided and permanent domiciliation in the castle, when all doubt on that point

_________________ Footnote _________________

* The writer of this opinion has another marriage certificate before him in the very same terms, though the gentleman had been only a few weeks in London.

had been removed. But the important fact established by the letter is, that the marriage was entered into expressly in contemplation of the parties going to Scotland, as they actually did. Sir Hugh had throughout looked forward to this, and now he intimates to his confidential friend, that it was distinctly with that object and design that the marriage was celebrated. It was a marriage entered into intuitu of the parties residing in the proper domicile of the husband.

There is another fact, connected with this, stated in the defences for Sir Hugh Munro, which, though not exactly in evidence, is probably correct, and is at any rate the judicial statement of the pursuer's father. He states, that he took the opinion of English counsel, and was advised that ‘he being by birth a Scotsman, the representative of an ancient family in that country, and which is his usual place of residence, a marriage celebrated in England, or any other place, would be effectual’ to render his daughter legitimate. We do not here speak of the soundness of this opinion. But it is manifest, from the way in which the case must have been stated, that Sir Hugh himself, notwithstanding his protracted absence, did still, without doubt, hold Scotland to be his usual place of residence, and that, in entering into the marriage, he distinctly contemplated, that it was in Scotland that the parties were chiefly to reside, and in Scotland that all the incidents of the marriage were to receive their fulfilment.

“The marriage having been concluded with this character and purpose, and having been intimated to Sir Hugh's friends in Scotland, he proceeded actively to make the necessary preparations for executing it effectually. Besides all the furniture which had been previously put into the castle, at least two, if not three, shiploads of furniture, were sent in the course of the early part of that year 1802, though only one inventory has been preserved. Various orders were given for the supply of other goods necessary for their residence. When all was ready, Sir Hugh broke up completely his establishment in London, dismissing all the servants, except one left in charge of the house. And at last, very late in the season, Sir Hugh, Lady Munro, and the pursuer reached Edinburgh in the first days of November, 1802, and proceeded within a few days to Fowlis. The interval between the marriage and the setting out for Scotland was not greater than was necessary for preparing Fowlis for their reception, and cannot militate against Sir Hugh's contemporaneous declaration, that the marriage was entered into with a view of his coming to reside permanently in Scotland.

“It may be observed, that the very lateness of the season when this return to Fowlis took place, proves, that all idea of the residence being temporary, if it ever existed, had by this time been laid aside. Indeed, by the testimony of Mrs Sutherland, it is clearly established, that the only cause, which could have occasioned any expression of doubt, had been at once removed when his marriage and intention of residence were known. She depones ‘that Lady Munro senior was much delighted with the expectation of Sir Hugh and his lady coming down to Fowlis in 1802,’ and expressed satisfaction at the prospect of seeing the pursuer; and her expectation was, that they were to reside permanently at Fowlis. There is also abundance of evidence, to which it is unnecessary particularly to refer, that there was a universal expectation in the country that the family were coming with the intention of making Fowlis their constant place of residence.

“It appears, accordingly, that they were cordially received by Lady Munro senior, and the other friends and relations of the family; and Sir Hugh was so entirely satisfied with his reception, that he settled himself without doubt or reserve in the castle of Fowlis, and returned to the active management of his extensive estate. We think it sufficiently in evidence, that the pursuer was treated and regarded, both by Sir Hugh himself and by the friends and relations of the family, as his lawful daughter. Certainly she was reared and educated as such.

“After the parties had been thus completely settled in permanent residence at Fowlis during a long period, the marriage was dissolved by the calamitous death of Lady Munro in August 1803. That event made no change on Sir Hugh's resolution to retain his home and domicile at Fowlis. For, though he still held the lease of the house in London, having omitted to avail himself of the first break, he never went near it, but continued constantly resident in Ross-shire until September, 1808. By that time the pursuer was twelve years old; and it is abundantly proved by Lady Mary Ross, that Sir Hugh's ‘sole object in leaving Fowlis and going to London’ at that time was ‘to complete Miss Munro's education; in which step both the deponent and Sir Charles Ross concurred, as both fitting and necessary for a person of Miss Munro's prospects;’ while it is proved also, that it was still the wish and intention of Sir Hugh to make Fowlis his permanent residence. Sir Hugh had not availed himself of either of the breaks in the lease of the London house. This circumstance has been thought to imply that he had no intention of permanently residing at Fowlis. If this has reference to the time of the first break of seven years, it is falsified by the fact that he did reside there permanently for six entire years. His not giving up the lease at the expiry of the seven years is easily explained. He had a feeling of doubt how his lady might be received by his friends in Scotland. Christmas, 1802, was the first break. It required three months’ notice; and at the 25th September, Sir Hugh was still in London. He may well be supposed to have wished to retain the means he already possessed of provisionally or occasionally residing in London (as Lord Somerville did), without at all impeaching the reality of his ‘principal desire and intention.’ The next break occurred at Christmas 1809. Before that time Sir Hugh had gone to London for the education of his daughter; so that he then naturally continued to hold the lease which he already had.

“We do not think it necessary to trace the evidence farther. Sir Hugh appears to have been occasionally in Scotland in the subsequent years, and afterwards permanently from 1817 to 1820. His actual residence posterior to that time appears to be of no materiality to the present question.

“Taking this review of the facts in Sir Hugh Munro's history, we are of opinion, that he had not ceased to be a domiciled Scotsman at the date of the pursuer's birth, or at the date of his marriage to the pursuer's mother; that, as that domicile had never been abandoned, so the marriage was entered into with reference to his status as a domiciled Scotsman, and also in distinct contemplation of the permanent residence of the parties in the mansion-house of that domicile. That he personally lived in London during six years is true. But, as the question is, whether he could lose the domicile of origin and choice which he previously had, by the mere fact of his bodily presence in London, without the animus and purpose to abandon that domicile, and to fix his residence animo remanendi in London; so we are of opinion, upon all the evidence, not only that he never had such an intention, but that his positive intention, belief, and understanding were at every point of time the reverse. We do not consider this as depending on expressions in his letters of an intention to regain his Scotch domicile at some undefined period, as if he had first lost it. That is not the nature of the correspondence in this case. It is clear that, at the first, he had no intention of making any protracted residence in London; and year after year, there was plainly a bona fide present intention definitely expressed, of returning immediately, or within some short time, to resume the management of his estate. That intention was never given up; and whatever were the causes which occasioned the delay, they were not causes which necessarily implied or required a permanent domiciliation in London. Accordingly, as soon as he made up his mind to the celebration of the marriage, and the cause of detention was thus removed, the resolution of returning became determinate, and he did again fix himself in permanent residence in the castle of Fowlis. But we farther do not consider this question as to the animus of Sir Hugh when he left Scotland, or while he sojourned in England, as depending simply on any mere expressions of intention, clear though they be. We apprehend, that the result in the actual domiciliation in the castle of Fowlis, as soon as it was fully prepared, must be applied backwards upon all those expressions of his purpose, giving reality to the positive intention at all times declared, and demonstrating the negative of the proposition, that he ever had the animus necessary to put an end to his fixed domicile, or ever did take up his abode in England animo remanendi.

“We shall suppose the case of a young gentleman of family and fortune going to Paris for his amusement, originally intending a mere excursion for a short season; that he is by accidents detained, perhaps by a protracted suit at law, perhaps by the difficulties of an honourable suit in a gentler court,—but that, while he writes constantly of his intention to return speedily, telling or not telling the cause of the delay, successive perplexities postpone the time of it,—could it be, that, after all was settled, and he kept his purpose, formed at first, held at all times, from day to day and year to year, and executed at last—perhaps by bringing to his own home the lady whose favour he had so perseveringly sought—the law of his own country should declare, that, contrary to his constantly proclaimed purpose and intention, any circumstances in the mode of his temporary residence, occasioned by incidents quite extraneous and opposite to all his own thoughts of domiciliation, he had abandoned the domicile of his only home, and for the time fastened on himself the domicile of his transient sojournment during long deferred hope? We should think that it would not be so held.

“Indeed, when we review the case of Somerville, and the doctrines there delivered, we think that the principles of it apply in the most distinct manner to the present case. The cases are not identical in the facts. No two cases are so. But they are identical in this, that, though in Lord Somerville's case there was a domicile, of a certain order, held to be established in England, the question still was, whether he was so domiciled with that animus remanendi which alone could extinguish his domicile of origin, as the rule for all questions in which there can be only one governing domicile. And we are of opinion, that, in the present case, there was no such animus in Sir Hugh Munro, but, on the contrary, that the evidence proves that, though there was residence in England for a time, it was, in the mind and intention of Sir Hugh Munro from first to last, of a temporary character.

“Being thus of opinion, that Sir Hugh Munro's domicile was in Scotland, we come now to apply this to the question concerning the pursuer's legitimacy. If any thing depended on the domicile of Sir Hugh at the date of the pursuer's birth, we have already observed, that there could in our opinion be no doubt of it, and consequently that the pursuer, though born in England, must be considered as the acknowledged daughter of a domiciled Scotchman. We shall afterwards advert to what is said of her condition, as born in England of an Englishwoman not then married. But, in reality, we attach little importance to the force of the domicile as applied to the time of the pursuer's birth. It is in the formation of the marriage that the husband's domicile comes to be of paramount importance; and to that we shall now direct our attention, as the point on which our opinion of the pursuer's legitimacy rests, and in which we believe most of our brethren would concur with us, if they were satisfied that the domicile was in Scotland.

“Assuming Sir Hugh Munro to have been a domiciled Scotchman at the date of his marriage to the pursuer's mother, we are of opinion, that that marriage, though celebrated in England, must be considered as in law a Scotch marriage, in respect of all the incidents and consequences of marriage. In general, the law of the domicile regulates this matter, as held in the case of Ross, and laid down by Story, (Conflict of Laws) p. 156, and other writers. Put the simple case of a Scotch-man), about whose domicile there is no doubt, going into England for a few weeks or months, and there marrying an English lady, and returning with her to his residence in Scotland; we believe that no doubt is or can be entertained, that that marriage must be considered as to all effects a Scotch marriage, as truly as if it had taken place in Scotland; and that neither the place nor the manner of its celebration can alter its character. And it cannot, in our apprehension, be of any consequence, that, before that marriage, the lady may have been a domiciled Englishwoman who never was in Scotland. For, in the moment and in the act of the marriage, the wife necessarily adopts and becomes attached to the domicile of the husband; and therefore her previous domicile, being thereby sunk in his, can be of no more importance in the question, than if, being a domiciled Englishwoman, she had been married within the bounds of Scotland.

“If there could have been any doubt of this legal doctrine, every such doubt, is removed by the late decision of the Court, and the House of Lords, in the case of Warrender against Warrender, which appears to us to be a case of very great importance in the present question. By the law of England, marriage once contracted cannot be dissolved except by Act of Parliament; and questions have been agitated, in which different opinions have been formed, in the case of persons being English and domiciled in England, and being married there when they afterwards come to Scotland, and having obtained a domicile there, insist for dissolution of the marriage in the Scotch Courts. But, in that case of Warrender, though Sir George had resided a great deal in England, he was held to be undoubtedly a domiciled Scotchman. Being so, he married in London the daughter of Lord Falmouth, born and educated in England, and who had never been in Scotland. Sir George insisted against the lady for divorce in the Scotch Consistorial Court. It was pleaded in defence, that there was no jurisdiction to dissolve the marriage, in respect that it was a marriage celebrated in England, which by the law of that country was indissoluble. But it was held that the competency of the action to that effect must be sustained; and although other views of great importance were taken of the case, we understand it to have been distinctly held by both the eminent Judges who decided that cause in the House of Lords, that the domicile of the husband is the domicile of the wife, and that Sir George Warrender's domicile having been clearly in Scotland at the time of the marriage, the marriage must be held and treated, in regard to all its incidents and consequences, as a Scotch marriage, and on that ground, independent of others, that it was competent for Sir George, being domiciled in Scotland, to insist for dissolution of the marriage in the Scotch Court. Holding this to be sound in principle, and ruled in that important case, we think that the application of it to the present case is clear and direct.

“For it being in our opinion sufficiently established that Sir Hugh Munro's domicile at the time of the marriage was in Scotland, and the domicile of the pursuer's parents having undoubtedly been in Scotland when that marriage was dissolved, the marriage must be dealt with as a Scotch marriage; and, as it is one of the incidents of such a marriage, being Scotch, that the child of the parents so married, at whatever time born, is legitimate, it follows that the pursuer was by the effect of the marriage, under the law of the domicile, effectually secured in her right as the legitimate daughter of her father.

“But we cannot leave this point without observing, that, if the marriage of the pursuer's parents, regularly celebrated, though in England, were not to be considered as a Scotch marriage to these effects, the case would present a most extraordinary result in the law, and a case of extreme hardship. If Sir Hugh Munro had celebrated no marriage in England, but had simply brought the pursuer's mother to Scotland, and introduced her to his mother and his relations as his wife, had written the letters which he did, designing her as his wife, and had cohabited with her in the castle of Fowlis by the distinct character of Lady Munro, his lawful wife, there would have been very marriage between these parties contracted in Scotland, and under the law of Scotland,—between parties certainly domiciled there,—as effectual an any celebration of marriage could have made it; and all the incidents of a Scotch marriage, including the legitimacy of their acknowledged daughter, would have followed. This is the case of Mr M'Douall of Logan, now before the Court, in which we, concurring with the great majority of the Judges, hold the legitimacy to be clearly established. But it will be a singular case of hardship, if Sir Hugh Munro, desiring to fulfil his pledges to the pursuer's mother, and to do justice to the pursuer, in the most unequivocal and legal manner, shall be found to have placed the pursuer in a worse condition, and actually to have stamped illegitimacy upon her, by the act of celebrating a regular and lawful marriage according to the forms of the place where he happened to be for the time. We cannot reconcile this to the principles of justice. But we see that the possibility of so strange a result taking place is at once removed, if we be right in holding, that the marriage in question, though celebrated in England, is truly to be considered as a Scotch marriage.

“There remains, however, a point on which the defender places great reliance. It is maintained, that, the pursuer having been born in England, of an English woman not married at the time of the birth, she was born an illegitimate child; that that status of illegitimacy was indelible by the law of England; and that the subsequent marriage, even taking it to be a Scotch marriage, could not legitimate the child, or wipe off the indelible stain of illegitimacy. We cannot assent to this proposition; and, with all possible deference to any different opinions, we know of no authority for it in the law of Scotland, or among the jurists and writers on general law, in the application here attempted to be made of it. We are no doubt aware of certain dicta thrown out by high authorities in the law of England, in the case of Ross, and another case there referred to. But in the case of Ross, the point was expressly waived by the Lord Chancellor, as not necessary to be decided; and the judgment went distinctly on the ground, that the parties were both domiciled in England, and that, though the marriage was formally in Scotland, the parties had gone there for that purpose only, and returned immediately to England, their former domicile; thus affording another example of the principle, that, though a marriage may be celebrated in one place, it is in respect of the incidents of marriage to be regulated by the law of the husband's domicile. And we have yet seen no case, in which this principle of indelibility has been applied under the law of Scotland, whether in this Court or in the House of Lords. Both in Sheddan v. Patrick, and in Strathmore, the domicile was held to be the ruling point, sufficient for judgment.

“To say that the pursuer was born illegitimate, because her parents were not married at the time of the birth, is to say no more than could be said in any such case, whether the child was born in Scotland or in England. There may be a question, to which we have already alluded, as to the competency of enquiring into this in Scotland, where the parents have been clearly married, and have been domiciled there, and no impediment recognised by the law of Scotland can be stated. But, as a matter of fact, it is true in every case, that till the marriage the child is illegitimate. Such a fact, therefore, does not in the least advance the argument for the point to be made out. To say again, that because the child was born in England of an English mother, the illegitimacy is indelible, if this means that it is indelible by the law of England, and under the law of England, is to say no more than that the law of England has not adopted the rule of legitimation per subsequens matrimonium. But if it be meant that, because the child was born in England, it cannot become legitimate in Scotland by a Scotch marriage, in a question to be determined by the law of Scotland, it is a petitio principii, for which there is no authority whatever in that law. The presumption on which the rule of legitimation is generally held to depend is, that at the time of the child's being begotten there was a consent to marriage, and that the marriage when it takes place draws back to that time. But why this presumption should be prevented from operating in the law of Scotland, merely because it is not admitted by the law of England, is not at all obvious to us. We are here in a Scotch question, and in a Scotch Court, applying a plain rule of our own law; and, unless that law says that if the child be born in England, it shall not have the benefit of the rule, we do not see how it is at all material, that it could not enjoy it, if the law of England were to be applied to the case. But we know of no such exception in the law of Scotland; nor, as far as we are informed, is there any such exception recognised in the law of any country which holds the principle of legitimation per subsequens matrimonium.

“We are not here giving any opinion on a point, of which it does not belong to us to form any judgment. We are not enquiring, what the law of England might decide, if the pursuer, or any person similarly situated, were making a claim in an English Court of law, in respect of property within their jurisdiction. We observe that Professor Story (p. 99) has said, that “a person born before wedlock, who in the country of his birth is deemed illegitimate, may not by a subsequent marriage of his parents in another country, where such marriage would make him legitimate, cease to be illegitimate in the country of his birth.” We may have doubts of the soundness of this doctrine in international law, if it were meant to be indiscriminately applied to all cases, which we imagine it is not. But it is a point with which we have no occasion or competency here to deal. The very statement of it in this form implies, that the supposed indelibility is confined to the country of the birth, where alone it can operate. Whether such a question would be so decided by the courts of England, if the pursuer were making any claim in those courts, we cannot presume to form any opinion. We are aware that conflicts of law may take place; and there is no help for it when they do occur. But the question before us is a purely Scotch question, to be ruled by general principles no doubt, but still with reference to the law of Scotland in the particular point; and we cannot, in consistency with the established principles of that law, hold that this pursuer could not become legitimate by the marriage of her parents, when or wheresoever she may have been born.

“It appears to us to be very clear that the circumstance of the mother being English adds nothing at all to the supposed difficulty in the place of the pursuer's birth. She was certainly illegitimate by the law of England, and by the law of Scotland also, at the time of her birth; and she would have been so equally, though her mother had been a Scotchwoman. But, if Sir Hugh Munro was a domiciled Scotchman, and if the marriage is in consequence to be taken as a Scotch marriage, the wife adopting the husband's domicile, and becoming a Scotchwoman, and if, again, the place of the birth by itself creates no indelibility in the law of Scotland, to prevent the marriage from legitimating the child, we are quite unable to perceive, how such an indelibility can arise from the circumstance that the wife and mother was an Englishwoman at the time of the birth,

“On the whole, we are of opinion that the pursuer is entitled to prevail in the conclusions of her declarator.”

The cause was then resumed, along with these opinions, by the Judges of the First Division. Their Lordships at the same time advised the case of M'Douall v. Countess of Dalhousie and Others, ante, p. 1, and their Lordships delivered the following Opinions in reference to these respective cases:—

Lord President.—In the case of Munro, I concur entirely in the opinion of the majority of the consulted Judges, but I cannot concur with them in the case of M'Douall.

To me it appears that there is no material distinction between the cases, and that the same principles must rule both. I will therefore deliver my opinion in both cases at the same time.

The case of Munro is even stronger than that of Ross. In the case of Boss, there was, at least, a marriage in Scotland in form,—and in validity, in one sense of the word, though it was entered into merely for the purpose of committing a fraud on the law of England as to bastardy; but in this case of Munro, the only marriage was in England, and the status of marriage was by this English marriage indelibly fixed on the parties, so far as the constitution of the marriage at least was concerned; whether that could he dissolved afterwards, is a separate question. No doubt they afterwards cohabited in Scotland, so as to have made them married persons by habit and repute, if they had never been married before. But previously they had been firmly, solemnly, and indelibly married in England; and that marriage could neither be strengthened nor weakened by any subsequent conduct in Scotland.

But I must go farther, because I am of opinion, that in the whole of this argument, too much stress has been laid on the domicile of the putative father, and because I think that attention has not been paid to the difference between the constitution and subsistence of personal status, and the consequences which may result from personal status once fully constituted, when the parties either had a previous domicile, or afterwards fixed their residence in a different country.

As to the domicile of the putative father, I cannot think that either his past, future, or present domicile, can, or ought to have any effect on the status of the bastard. The father is tied to his legitimate child, by the strongest bonds of the law. The connexion betwixt them is inseparable and unavoidable. The general rule of ‘pater est quem nuptiæ demonstrant,’ is absolute in regard to all children born in wedlock, save in a few special exceptions; and therefore the domicile and status of the father, fixes those of the legitimate child. But there is no legal tie between a bastard and his supposed father. The father is not regarded in law as his father; therefore nothing in the putative father's domicile can affect the status of bastardy impressed on the child by birth.

In law, the bastard has no father. This is expressly laid down by Blackstone, as to the law of England, where this bastard was born. He says,—‘all other children have their primary settlement in their father's parish, but a bastard, in the parish where born, for he hath no father;’—and the same is the law of Scotland.

Now, the pursuer in this case, Miss Law, or Munro, was unquestionably an English bastard at her birth. Her mother was the only parent recognised by the law of England,—she never might have been able to fix paternity for her child on any man. The mother is primarily liable to maintain her bastard, and if she cannot, it must be maintained by the parish. At least this used to be the law of England before the Poor-Law Act. No doubt, in order to relieve the parish, the mother may attempt, and may succeed in the attempt, to fix on a particular man as the father of her child; in which case, she or the parish could call upon him to maintain it for a certain period, and this without any regard to his domicile, or any peculiarity in the law of that domicile, to exempt him from this obligation.

But this obligation to maintain the child does not affect its status as a bastard; he remains a bastard as he was before, without any legal connexion with his putative father, subject to the same disabilities or privileges of a bastard in England, whatever they may be. His only legal parent is his mother, and this only to the effect of the burden of maintenance in infancy; for in no other respect does he derive any right even from his mother. Therefore I cannot see how the domicile of the supposed father ought to have the smallest effect on the status of the child, and on the question whether it is or is not a bastard. Suppose that by the law of the putative father's domicile, a bastard were entitled to share more or less with his lawful children in his succession ab intestato,—this could not alter his status of bastardy, or place him in any other respect on a footing with the lawful children. Indeed, he must plead his bastardy even to give him this particular privilege. Or, suppose that the law of the father's domicile gave the father a right to claim, and take the child from the mother, and that the mother in England resisted; he could not succeed. If he had been found liable in maintenance, perhaps that might give him some claim to the custody of the child, though I do not know that it would. But certainly without that specialty, he could not take the child from the mother, merely by alleging that the law of his domicile would have allowed him to do so.

In short, I cannot see the smallest connexion between the status of the bastard, and either the previous or the subsequent domicile of his putative father. The child in England was born a bastard; and it cannot make any difference whether his putative father was a Scotsman, or a Frenchman, or a Turk. Accordingly, what was the opinion of the Judges in the House of Lords, in the very analogous case of Strathmore? and I take that case as my text; because, in deciding it, the learned Lords laid down the law generally as to the effect of personal status. In that case, Lord Eldon said—‘he was born in England, of an English woman, who never had been before in Scotland. The law therefore which attached at his birth, was the law of England; and if his mother and supposed father had died within a few years after, unquestionably he was an illegitimate child, born in England, subject only to the law of England, and having no character whatever, but that which had been derived from his mother.’ Then the Lord Chancellor Lyndhurst, after speaking on the supposition of a marriage in Scotland, and having that expressly in view, said, ‘It appears to me to be unnecessary to go into that point. It is sufficient that the child be born in a country where the illegitimacy is indelible. This in any country whatever would have the effect of rendering that child illegitimate.’ Then Lord Lyndhurst goes on to say, quoting the words of Lord Redesdale,—‘I do not enter into the question, whether, if this marriage had been entered into in Scotland, it might have had the effect of legitimizing the child, because I think it is not necessary.’ Then Lord Lyndhurst himself adds—‘I agree with the noble and learned Lord. I do not think it necessary, but I must say that I do not conceive how it could have that effect.’

Nor can I. I cannot conceive how any subsequent event whatever, whether by the parents, or otherwise, can have a retrospective effect to alter a status once effectually constituted. But more of this hereafter. In the mean-time, Lord Chancellor Lyndhurst goes on thus:—‘The opinion of Lord Redesdale is quite obvious from what I have stated, and from a subsequent passage, in which he considered the position of the child at the time of its birth as deciding the case.’ Then Lord Chancellor Lyndhurst proceeds,—‘Taking the whole of the judgment of the noble Lord together, I conclude that he is of opinion, that if the child was illegitimate at the time of its birth, according to the law of the country where it was born, that character was stamped upon it indelibly. No subsequent marriage could render it legitimate.’

And this, it will be remarked, is given as their opinion, without any qualification as to the domicile of either parent, or as to the marriage being in one country or another. It is generally, that no marriage could render the child legitimate. Then Lord Wynford said, ‘I will merely say that I entirely concur in every thing that has fallen from my noble and learned friends. All Jurists agree that the personal status of a man must be decided by the law of the country in which he is born. This person was born in England a bastard, and by the law of England bastardy is indelible. He cannot become legitimated,’ And this he gives without limitation or exception as to the means by which the bastardy is attempted to be effaced, either by marriage in Scotland, or by reference to the domicile of the putative father;—and then he cites the opinion of Boullenois in the case of De Conti, to which I referred in my opinion, in the case of Ross, and which Boullenois sums up thus:—‘Parce qu'il porte partout l'etat et la condition dont il est par les loix de sa nation.’ Accordingly, by the law of England, a bastard has faculties which in Scotland he has not. He has the jus testamenti faciendi, which in Scotland he has not, and which the domicile of his putative father could not affect. But I deem it unnecessary to prosecute this point farther; and, therefore, I shall now proceed to consider a point, which I think has been overlooked on this subject of personal status; id est, the distinction between the original constitution and continual subsistence of the status once properly acquired, and the consequences, pecuniary or otherwise, which may result from it in different countries.

I have already mentioned that a bastard in England has the jus testamenti faciendi, which in other countries he may not have; and there may be other countries, for any thing we know, in which he may have more important rights, in connexion with legitimate children.

This seems to have been the case with Abraham, and among his descendants. It appears from what Sarah said to Abraham (see 21 Genesis, v. 10) that Ishmael would have been heir along with Isaac, if Abraham had not cast him out. She said, ‘cast out this bondwoman and her son, for the son of this bondwoman shall not be heir with my son, even with Isaac.’ And Jacob's children by his two concubines seem to have been exactly on a footing with his children by his two wives, Leah and Rachel.

But I do not confine my opinion to the case of the status of bastardy. I think the same reasoning and the same rules apply to other kinds of personal status, in which the status and personal condition of the parties are indelibly fixed, though the consequences, personal and patrimonial, may vary in different countries from which they originally came, or to which they may afterwards resort. Take the case of marriage. A man and woman meet in a foreign country, and are there married, according to the laws and ceremonies established there. That marriage is good, and will be acknowledged to be so in every civilized country. They could not dissolve it by reference to the domicile of either party, where by law such rites and ceremonies would not have constituted a valid marriage. The status of married persons is indelibly stamped upon them, and no previous domicile or subsequent change of domicile could affect it. But the personal and patrimonial consequences resulting from this status so effectually and indelibly constituted, may be different in different countries. If they continue in the country where they were legally married, the husband and wife may have certain personal prerogatives and privileges, and certain rights and powers, over their respective properties, peculiar to that country. If they return to their own country, or remove into a third country, all these may be totally changed. But no consequences of this kind affect the constitution and subsistence of the status of marriage originally and legally stamped upon them. Married they were, and married they must remain. No previous domicile or change of domicile can unmarry them,—they carry that status with them wherever they go, as Boullenois says; and if they have not settled their rights by a contract, they must take their chance of the effect which change of residence may produce. The same is exactly the case in the status of allegiance. If a person is born subject to allegiance to the Crown of Great Britain, no previous domicile of his father, at a remote period, and no change of domicile by himself, or his father, can dissolve his allegiance.

If he conspires against the life of the Sovereign, or is found in arms against him, he is guilty of treason, and he cannot plead the old domicile of his father, or any change by himself, as a defence.

But this status of allegiance may have very different effects and consequences, either advantageous or otherwise, in other countries. But these arise out of the existence of the status as validly established; and, so far from abrogating it, they presuppose it a continued and indelible existence.

The Scots had, till lately, certain privileges in Holland; and there was an officer, as your Lordships know, called the Conservator of the Scotch privileges at Campvere, whose duty it was to guard those privileges, and to settle disputes between Scotch merchants settled there. And in old times, during the alliance between the Crowns of Scotland and France, the Scots had certain privileges in that kingdom. Among others, they were exempted from the Droit d'Aubain. In like manner, after the union of the two Crowns under our James VI., the Post Nati, as they were called, had privileges in England which the Ante Nati had not. In other countries, again, being born subject to the allegiance of Scotland, or any other country, may subject a person to burdens and incapacities from which natives of those countries are exempted. But nothing of all this affects or touches the status itself, which remains fixed and indelible. Born a bastard, or a Scotsman, or legally married, those characters remained stamped on him for ever, wherever he goes or chooses to domicile himself. These principles I apprehend to be quite indisputable; and they go directly to prove, that the original status of bastardy cannot be affected by any conduct or operation of the putative father.

M'Douall's Case.

All these principles applicable to the case of Munro, apply also to this case, unless there be any facts and circumstances in it which render these principles not applicable.

Now, what are the facts in this case.

Mary Russel, the pursuer's mother, was domiciled in Scotland ratione originis only, and in no other way. She never had selected that country for her domicile by having a house of her own. She lived with her father, in his family, and under his protection.

But the domicilium originis is the weakest of all, as having been induced without any consent on the part of the child.

Now, in 1796, she voluntarily left her father's family, and forisfamiliated herself. She chose to form an unlawful connexion with Colonel M'Douall, and for a short time resided under his protection at Culgroat. Then, when his regiment was ordered to England, she voluntarily accompanied or followed him there. She was not under any obligation to do so. She was not his wife—she was not his servant. She might have left him at any moment, and without his consent. But she did not do so. She voluntarily continued in England, and at Chester was delivered of the pursuer. Unquestionably, therefore, the pursuer was born a bastard in England; and unless something happened afterwards to alter his condition, that condition was indelible bastardy; and so it must be admitted to have continued for at least twelve years, down to the acknowledgment of marriage in 1808.

In the case of Ross, I stated in my opinion, that I would not take the law from such an extreme case, as that of a woman taken suddenly, and perhaps prematurely, in labour, while travelling in England, with or without her paramour, and brought to bed of a bastard there, and then returning with it, on her recovery, to Scotland. That is an extreme case; and what might be the law as to it, we must endeavour to settle, when such a case occurs. But this is not Mary Russel's case. She was not in England on a mere jaunt, or for some obviously temporary purpose. On the contrary, it is plain that she contemplated a much more protracted residence in that country, and, as it afterwards appeared, a permanent residence. At any rate, she was there at the time of the birth, by her own free will and choice, and she so continued there. She had it completely in her power, if she had so chosen, to return with her child to Scotland as soon as she recovered from her confinement. Colonel M'Douall could not have prevented her. But she chose to remain in England. If it be said that she remained there merely on account of her connexion with the Colonel, the answer is, that it was her own free choice to do so. But, in point of fact, it was not the case. The Colonel's regiment was disbanded in 1799 or 1800, when he returned to Scotland. But she did not follow him, nor return to her father's house, nor to any other place in Scotland; she fixed her abode at Penrith, in a house which the Colonel provided for her. But it was her own free choice to remain there. She did remain there, and I am persuaded would have continued there, if the subsequent marriage in 1808 had not taken place. It is plain, if it were of any consequence, that even the Colonel himself originally had no intention that she should return to Scotland; and it is equally plain, that till the marriage, she herself had not the least intention of returning there, and resuming her domicilium originis. On the contrary, she showed evidently that it was her intention to remain in Penrith—for she brought up her mother and sister, and then her brother, to live with her; and there she remained, in all appearance, permanently domiciled till 1808. But in order to constitute domicile, it is not necessary that the party should have a fixed and determined purpose to remain in his or her present residence for ever. It is enough if they have resided for such a length of time as to show that they had chosen that place as their only and proper home for that time; and no vague and floating intention which they may have expressed of returning to their country at some future time, can alter the domicile so acquired by long residence. Nay, in the case of Bruce, who was actually on his return to Scotland from India, but died on the passage, it was held and found by the House of Lords that India was to be held as his domicile; and his succession was regulated by the law of England, and not of Scotland, to which he was returning. In short, from the birth of the child in 1796, till the marriage in 1808, no less than twelve years, she was a domiciled Englishwoman, Therefore, if the residence and domicile of the mother, at the time of the birth of her child, and for years thereafter, be of material consequence, then her residence and chosen domicile for twelve years fixes the status of the child to be that of indelible bastardy.

It does not appear to me to be of any consequence, that the house in Penrith was not her own property, but the Colonel's, and that he allowed her to live in it rent free. Still it was her own voluntary residence, and constituted an English domicile as much as if she had bought or hired it; and she had no inducement, under her loss of character, to return to Scotland, and never showed the least intention of doing so, or that she was not in England animo remanendi. And this animus, in all human probability, never would have been altered, but for the event of the marriage, which she could not foresee, and probably little expected. Therefore, on the whole, I am of opinion that all the principles applicable to the case of Munro apply to this case of M'Douall, and that none of the facts and circumstances lead me to form a different opinion. I may add in regard to the War-render case, that it appears to me that the effect of the judgment there has been misunderstood. Sir George Warrender was married in England, though it is of no consequence where the ceremony took place, since he was legally married according to the forms required by the English marriage law, and therefore his domicile became that of his wife. But it is a different thing where the parties are not married, for the domicile of the paramour is not necessarily that of his mistress, there being no connexion between them which the law recognises. Sir George Warrender, however, being legally married in England, and being found to be a domiciled Scotsman,—his wife's domicile, in the eye of the law, was likewise Scotch, and an action might competently be brought against her in Scotland. Accordingly, all that was found by the decision was, to hold the action of divorce to be legally brought against her in Scotland, because she might be held as a domiciled Scotchwoman. The effect which this finding will have upon the decision on the merits of the case, we do not as yet know. The only thing fixed being, that the right of action against her lay in the Scotch Courts. This might be very important to Sir George Warrender, in other respects, for he might have to bring actions against her of another nature. She might have acquired separate property, in regard to which it might be necessary for him to sue her; and she could not have validly pleaded in defence, that she was domiciled in France. However, the. status of marriage has been indelibly fixed by the English celebration; and by this decision, her domicile, as a married woman, has been held to be that of her husband; and this is all the length to which the judgment in this case of Warrender goes.

Lord Gillies.—I have listened with great attention to the opinion which has now been so ably stated, but I must own that it has not altered the opinion which I had previously formed. I shall not be sorry, however, if it makes a stronger impression in another quarter. We have two cases before us, both of great importance, and both of them attended with extreme, I might almost say, unprecedented, difficulty. I do not mean to trouble your Lordships with the reasons in detail, which lead me, agreeably to my original opinion, to concur with the majority in the case of M'Douall. In the other case, I must own that the opinion which I had at first formed is changed, and I am now inclined, though with some hesitation, to concur with the minority in the case of Munro. I shall not attempt to explain ray reasons, as they are most distinctly detailed in the Opinion. Nothing is more certain than this, that a man or woman having appeared before a clergyman, and been regularly married, that marriage ceremony not only constitutes them married persons, but, in the eye of law, converts the putative father into the actual father of the children previously born; or, at least, he cases to be the putative father, and becomes undoubtedly the legal father. That is undoubtedly the law of Scotland. But then, in the case of Ross, you have the marriage in Scotland, and a child previously born in England. The child was acknowledged both by the man and the woman, but it was found that the child was not legitimated, although the marriage was unquestionably a good marriage. The child, it was ultimately found, was and continued to be a bastard. On what principle was this held? It was a judgment pronounced, as I understand the case, on this ground,—that the domicile of Ross was not in Scotland, but in England,—in short, that he was a domiciled Englishman, and because domiciled in England, they held that the marriage in Scotland could not have the effect allowed to it by the Scotch law, of making legitimate the child. Now, if a domicile in England prevents a Scotch marriage from legitimizing the children, why, it seems to follow, that a domicile if in Scotland must render the children legitimate by means of an English marriage. If the domicile hinders the legitimacy in the one case, it should be sufficient to accomplish it in the other. After all the consideration I have been able to bestow on the cases referred to, the true criterion as settled by them, and particularly by the case of Cromarty or Ross, for deciding this point, is this,—was the putative father domiciled in Scotland at the period of the marriage, or was he domiciled in England? It is of no consequence where the marriage is celebrated. It was found in the case of Ross, that the place of marriage had no effect. It therefore brings every question about the status of legitimacy to a question of fact of the most difficult nature; depending not only on facts, but on the inferences from facts. This doctrine likewise leads to this odd result, that when parties obtain a license from the Archbishop of Canterbury to be married, he grants it, not only to the effect of making them married persons, but to the effect of making perhaps half a dozen bastards legitimate children. That seems the consequence that must follow from the law, as laid down in the case of Ross, that the country where the marriage is contracted is of no consequence, and that the domicile of the father alone is to be looked to. If that be the law, the question here is, just whether Mr M'Douall, the father, was resident in Scotland or in England, and whether he continued a domiciled Scotchman. I am of opinion that he continued to be domiciled in Scotland, and that decides the question. And although with some difficulty, I likewise am of opinion that Sir Hugh Munro was also domiciled in Scotland. That being the case, I concur with the majority in the case of M'Douall, and with the minority, I mean the four Judges who signed the Opinion, in the case of Munro.

Lord Mackenzie.—I concur in the opinion just delivered. I have been of the same opinion always, and I do not yet see sufficient grounds to alter it. In the case of Munro, I concur with the opinion of Lord Moncreiff and the other Judges who go along with him. Concurring with them, it is not necessary to resume the reasons for doing so, as that opinion contains a full statement of the grounds of judgment; but I may shortly refer to two points which I think of importance. The first is the general question, whether a Scotch marriage can legitimate an English bastard. I think that it may, for the reasons stated in the opinion signed by me in the case of Ross. It is true that the House of Lords did not sustain the legitimacy of Ross's child; but from the speeches made on that occasion, I see they did not reverse on the general point, but because they held that the marriage was not to be regarded as a Scotch, but an English marriage. It was upon that view the decision went, thus saving and avoiding the general point. I do not therefore think myself precluded by the decision of the House of Lords, from retaining the opinion I had then, and have still, that a Scotch marriage may legitimate an English bastard. I cannot help entertaining doubt, whether the indelibility of English bastardy has any meaning beyond this,—that an English bastard is not legitimated by an English marriage. I doubt whether indelibility is not rather a quality in the marriage than in the bastardy. Otherwise, why does an English marriage not legitimate a Scotch bustard? If the question rested solely on the quality of the bastardy, then a Scotch bastard ought to be rendered legitimate by the marriage of his parents in England, or in any country. But suppose it were true that English bastardy is indelible, not only against a marriage in England, but against a marriage all the world over;—I say, supposing there was produced a statute providing and declaring that an English bastard born in England should remain a bastard all the world over, notwithstanding any thing that could be done in any country,—I ask, could we give it effect? Could we acknowledge the authority of such a statute? I think we would be bound to say, that the English Parliament might rule the fate of bastards in England, but that its laws were not entitled to extend to other countries, and that there was no principle of the law of nations which could give effect to such a statute. The second question is, whether the marriage in this case was a Scotch marriage, which is certainly attended with difficulty; but, on the whole my opinion is, that the marriage must be considered as a Scotch marriage; and for two reasons:—First, I think, on the whole, though not without doubt, that the domicile of Sir Hugh Munro, at the time of his marriage, was in Scotland; and secondly, that the marriage was contracted by the parties with a view that they should live in Scotland, and not in England. That those two circumstances, taken together, must have the effect of making the marriage be regarded as a Scotch marriage, there are many authorities; but I think it unnecessary to go beyond two, both decisions of the House of Lords. The first is the case of Ross; and the other that of Warrender. In the case of Ross, the marriage took place in Scotland. The parties came on purpose to make it a Scotch marriage,—they stayed a considerable time to insure its being a Scotch marriage; yet, the opinion of the House of Lords was, that, Ross, not being truly domiciled in Scotland, but in England, in which he contemplated living with his wife, this marriage, although contracted in Scotland, clearly with a view to legitimating the children, must be held an English marriage, and for that reason could not have the effect of legitimating the children. It fixed the point, that a marriage may be contracted in Scotland, under the forms of the Church of Scotland, but that the party being a domiciled Englishman, and having contracted it with the design of living in England, it is in law an English marriage. And the case of Warrender is the counterpart of this decision. Sir George Warrender was married in England, by the forms of the English Church, to an English lady who had never been in Scotland. It was held that that marriage must be considered as a Scotch marriage, because Sir George was a domiciled Scotchman, and the marriage was contracted with the view of the parties living in Scotland. For these reasons, it was held a Scotch marriage; and for these reasons, the action of divorce, which was brought in Scotland, was held not incompetent. With these two decisions before me, I am clear, that if, in point of fact, it is made out that Sir Hugh Munro was domiciled in Scotland, and that at the time he contracted the marriage, his intention was to come to live in Scotland, the marriage must be regarded, notwithstanding the form of it, as being a Scotch marriage. The chief difficulty was to make out satisfactorily from the evidence, that these two circumstances did exist; but, on the whole, I am satisfied that they did, and therefore I hold the marriage of Sir Hugh Munro to be a Scotch marriage. Holding this, I also hold that it was sufficient to produce the legitimacy of his daughter, although the bastardy was an English bastardy.

I think the case of M'Douall attended with less difficulty. In that ease, I am not satisfied that the bastardy was an English bastardy. The bastard, although conceived in Scotland, happened to be born in England; but I think, although a great deal has been said on this point, that it ought to be viewed as a Scotch bastard. But it is not necessary to go into that,—for supposing it were held as an English bastard, I still think legitimation would take place; for there is no question that the marriage, in this case, was a Scotch marriage, and in my opinion, therefore, must have the effect of conferring legitimation on the child. In that case, therefore, I agree with the opinion of the whole Judges.

Lord Corehouse.—When this cause (Munro v. Munro) was reported, I issued a note explaining generally the views which I entertained of the law as applicable to it. But in consequence of the discussion which has subsequently taken place, the opinions which have been returned by the consulted Judges, and what I have heard to-day from your Lordships, I feel it incumbent upon me to enter a little more fully both into the law and the facts of the case.

Various questions have been raised at the bar, and argued with great minuteness and ability; but it appears to me that the decision must rest on the circumstance where Sir Hugh Munro was domiciled at the date, not of the pursuer's birth, but of his marriage to her mother.

It is admitted on both sides, that the pursuer was born illegitimate, whether her parents were then domiciled in Scotland or in England. By the law of both countries, a child born out of wedlock must necessarily be so at its birth. It is needless to advert to an exception, or supposed exception to that rule, in the law of Scotland, I mean as to the issue of a putative marriage, because it has no connexion with this case.

The status impressed on a party by the law of his domicile, continues when his domicile is transferred; but after it is transferred, his status falls under the controul of the law of the new domicile, and becomes subject to its operation. Whatever would change the status of a person born or domiciled in Scotland, must change the status of one born and domiciled elsewhere, but who afterwards acquires a domicile in Scotland. Were it otherwise, a person would import into his new domicile not only the status which he held in his previous domicile, but the law which regulated that status, which would lead to inextricable confusion.

It has been argued at the bar, that if a person is born illegitimate, in England, his illegitimacy is indelible, though he should remove his domicile elsewhere. I am of opinion that that position cannot be maintained; and I do not think that any of the consulted Judges have held it to be tenable. In an analogous case, the doctrine of a marriage being indissoluble here, because it was contracted in England, has been uniformly, and, as I think, rightly rejected by our courts; and a single decision in England to the contrary is, I believe, now viewed in that country by the highest authorities, in the same light in which it has always been viewed here. As there can be no marriage, wherever contracted, which is indissoluble in Scotland, on the same principle there can be no illegitimacy necessarily indelible. On this point I concur entirely with Lord Gillies and Lord Mackenzie; and I conceive that nothing turns in this case on the status either of the pursuer or her parents at the period of her birth.

At the period of Sir Hugh Munro's marriage, he was either domiciled in Scotland, or he was not. If he was domiciled in Scotland at that time, his marriage in England, celebrated according to the laws of that country, must have had the same effect as if it had been legally celebrated in this country, and as if parties had actually been resident here. ‘Quando lex in personam dirigitur respiciendum est ad leges illius civitatis quæ personam habet subjectam, id est, leges domicilii.’ 1 ‘Laws purely personal,’ says Boullenois, ‘whether universal or particular, extend themselves everywhere; that is to say, a man is everywhere deemed in the same state, whether universal or particular, by which he is affected by the law of his domicile.’ This aphorism is universally received. The same author says, ‘that the whole world acknowledges that the status of a person depends upon his actual domicile.’

The apparent exceptions to the rule arise in cases in which the question of status is complicated with other questions respecting the destination of landed property, inheritance ab intestate, foreign contracts, &c., to one of which I shall afterwards have occasion to refer.

It follows, therefore, I conceive, that if Sir Hugh Munro was domiciled in Scotland at the time of his marriage in England, the pursuer would be legitimated by that marriage.

I observe that a doubt has been started, whether this effect would have taken place, on the ground that Lady Munro was domiciled in England at that period, because the only recognised parent of an illegitimate child is the mother. I do not think that there is any room for that doubt. By the nuptial benediction, Sir Hugh's Scotch domicile in the case supposed, would, eo ipso, have become the domicile of his wife and his child, and the child would simultaneously have acquired her father's domicile, and the benefit of the Scotch law of legitimation.

I think it unnecessary to quote a series of authorities in support of these propositions. I hold them to he elementary principles of international law, and they are not called in question by a great majority of the consulted Judges, and of your Lordships.

But, on the other hand, let it be assumed that Sir Hugh was domiciled in England at the time of his marriage, and in my humble apprehension, it follows as clearly that the opposite result must take place.

The pursuer was not legitimated by the English marriage in that case, because, by the law of England attaching on all the subjects of that country, legitimatio per subsequens matrimonium does not obtain. Notwithstanding their marriage, therefore, and subsequent to it, the pursuer remained illegitimate, and according to the aphorism already quoted, she was illegitimate not only in England, but all the world over.

According to the same maxim, when her parents and she removed to Scotland, and acquired a new domicile there, she came with the status of illegitimacy affixed to her, and the mere change of domicile, per se, could have no effect upon her status. Then, how could she be legitimated afterwards? Not by the marriage of her parents, for they were married before she came, and could not be married a second time. The mere repetition of the ceremony, supposing it had been repeated, which it was not, could not operate upon her status any more than it could operate

_________________ Footnote _________________

1 Hertius De Con. Leg. p. 123.

upon their status. It would have been a vain and idle form. But there is no other mode of legitimation known in Scotland (I lay out of view the interference of the legislature); therefore, if she was not legitimated, per subsequens matrimonium, before she left England, she must have remained illegitimate after her domicile was removed to Scotland.

It seems to be argued, though not very confidently, that a different rule should be applied to this case, because the question is involved, whether the pursuer shall succeed as heiress of entail to a Scotch estate, and consequently the law of legitimation, per subsequens matrimonium, must be applied wherever the succession to landed property in Scotland is at issue. I humbly conceive that that circumstance must be entirely laid out of view, because the pursuer's right to inherit land in Scotland depends entirely on her status, and according to every principle of international law, her status cannot be different in Scotland from what it is in England. Status once impressed, and remaining unchanged, must, as already said, be the same all over the world. The English case of Birtwhistle, which, I presume, is alluded to in the pursuer's argument, does not, as I understand it, at all infringe upon this principle. The decision in that case proceeded on the ground, that by the statute law of England, no one can inherit property of a certain description there, unless he is born in lawful wedlock. One of the Judges says, ‘I take it that legitimacy alone is not sufficient to make a person inherit soccage lands. It must be legitimacy sub modo, the heir must be a child born after marriage.’ By the same argument, if the pursuer could say, that in virtue of a Scotch statute, every child born of parents married, either before or after his birth, is entitled to succeed as heir under a Scotch tailzie, her plea would be irresistible. But there is no such statute in the law of Scotland. Her right to inherit depends upon her status alone.

Let us come then to what I conceive to be the real and only question at issue,—where was Sir Hugh Munro domiciled at the date of his marriage? There is no doubt that Scotland was the domicile of his origin;—that he retained this domicile while he was in England at his education, and on the Continent for the benefit of foreign travel;—and that he retained it after his return from the Continent, while he resided with his mother at her house of Ardully in Ross-shire.

But what was the domicile of his choice? When he returned from the Continent, he had no house of his own, at least no house which was habitable. The Castle of Fowlis was ruinous, and he did not carry on the repairs which his father, Sir Harry Munro, had commenced. While he was in Ross-shire at that time, he was a lodger or boarder with his mother for three or four years; and having a misunderstanding with her, he left this country in 1794, and went to London, where he resided for eight years, without once setting his foot in Scotland. After living in lodgings for a short time, he took a lease of a house for twenty-one years, with two breaks, but of which he did not avail himself, and this was his permanent abode. It will be particularly observed that he did not go to London for the discharge of any temporary duty, or in the exercise of any temporary office, or for any transient object. He was not in the army,—the navy,—or in Parliament. He did not go to enjoy the amusements of fashionable life, during the fashionable season only; nor to superintend a law-suit, nor to bring any specific piece of business to a conclusion. London was his ordinary and sole residence for seven years before his marriage;—it was so at the date of his marriage, and continued to be so at least for one year afterwards.

Here, then, is a continued residence,—a fixed abode,—for a long period of years. I do not say that residence of itself constitutes a domicile, but it is a main ingredient in constituting the domicile of choice.

There is another and still more important ingredient. It was in London where he had his establishment,—and his sole establishment. The Code Civile of France declares, that the domicile of every Frenchman is the place where he has his principal establishment. That is not an arbitrary rule of French law. It is drawn from a careful collation of all their writers on this subject; and in consequence of that kingdom being at one time divided into various States, in some of which the Roman, and in others a consuetudinary law prevailed, this branch of jurisprudence was cultivated at an earlier period, and more successfully, than in any other country in Europe.

Now, as has just been said, Sir Hugh Munro had no establishment before he went to London in 1794. It was in London where his family and his servants were then placed, and where they continued to reside. There were his carriages, his furniture, his plate, his pictures, his library, his wines,—every article of use or enjoyment in life, according to the way in which he chose to live. So far as domicile, therefore, is constituted by fact, that is, by residence and establishment, the proof of Sir Hugh Munro's domicile is complete.

But I am aware, that domicile is not constituted by fact alone, but facto et animo, and it is on the question of intention that the pursuer takes her stand.

It appears to me, that the circumstances in which Sir Hugh Munro fixed his residence in London, and formed an establishment there, lead to the inference, that he meant to make it his fixed abode. When he left the Castle of Fowlis in a ruinous state, and stopped the repairs which his father had commenced, he plainly did not mean to reside there. It was not a fit abode for a Highland chief, or indeed for any gentleman of his station and fortune. He rendered it still more, unfit for that purpose, by letting off the home farm, and part of the lawn. In 1796, a lease of the farm and lawn was granted for seven years, with a break at the end of three. But in 1799, the break was discharged, and the lease rendered absolute for seven years. On the contrary, the lease of his house in London was of a length that clearly indicated the. intention of permanent residence, coupled with the circumstance that his whole establishment was there.

It is said, that Scotland being Sir Hugh Munro's domicile of origin, the presumption of law is, that he did not mean to change it. That rule may hold in the general case, but here there are presumptions much more than sufficient to outweigh it. Sir Hugh Munro was a gentleman of fortune, of talents and acquirements; he was educated from his youth in England; when his education was finished, he resided eight years constantly abroad, or in the metropolis. He lived in the fashionable world in Paris and in London, and that at the period of life when habits and tastes are formed. Whether is it presumable, in these circumstances, that, at the age of thirty-one, he would fix his residence in London, or in a ruined castle in the far north of Scotland, where he had no employment or occupation, and where he could never hope to enjoy the polished society to which, from his youth upwards, he had been accustomed? I think that the presumption is in favour of the London residence. Politics and agriculture, the motives which most frequently induce gentlemen to reside on their estates in the country, did not operate in his case. He may have given his vote at an election, but he never took any part as a candidate or active partisan. As for farming again, we have seen that he let the ground round his mansion upon a lease up to the very door. Take these circumstances in connexion with the fact that he did reside in London uninterruptedly for eight years, down to the period of his marriage, and a year afterwards, there cannot, I conceive, be a question that at that period his domicile was in England, in so far as intention can be inferred.

But there is a voluminous correspondence produced, and much reliance is placed on certain expressions in his letters from London, bearing that he is to return to Scotland, and to live at Fowlis. But do those expressions, when read in connexion with the context, import that he was to return to Scotland, with a view to settle permanently there, and to live at the Castle of Fowlis during the rest of his life? The very reverse is manifest. Every year during these eight years he meditated a visit to Scotland,—and every year, for some reason or another, it was put off. It is in allusion to these visits, that he says he is to return, and it is during these visits that he expresses a wish to reside at Fowlis. Thus, in 1707, he writes to his factor,—‘The mill is not to work before my return to Ross-shire;’ and certain articles will be paid ‘when I return to Ross-shire.’ In a letter to the same he writes, that certain papers are to be sealed up,—‘not to be opened till my return to Ross-shire,’

But in other letters, at that very time, and relating to this intended visit, he says,—‘I am not yet quite decided on my jaunt to Scotland.’ He orders job-horses to be hired during his stay in Scotland; and in a letter to his agent, Mr Mackenzie, dated the 13th October, 1797, he says expressly,—‘My stay in the country will be about six weeks, or to the end of December at the very latest.’ Again, as to living at Fowlis Castle, he writes,—‘It is my resolution, please God, to go early next summer into Scotland. I wish, if possible, to reside at Fowlis while I am in that country.’

Then it is said that he expresses an intention of taking the management of his affairs in Scotland, and acting as his own factor, which is represented to infer an intention of constant residence in this country. But there is satisfactory proof in the very same letter, that this was not his intention. It appears that he did take the management of his whole estate to a certain extent, from the year 1795 downwards, and gave special directions in writing about every matter, however important or however trivial, from the letting of leases, and levying rents, down to the custody of the key of the meal-chest, and the disposal of empty packing-boxes, But all these directions were given year after year, for seven years, during which he was never absent from London. With regard to the phrase of being his own factor, observe how it is limited. Writing to Mr David Aitken in 1795, he says,—‘When in the country, as I writ you, I shall consider myself as factor, under your directions, when I am here you will be factor under mine.’ And in another letter to the same person he says,—‘I embrace this opportunity of informing you, that though I propose being my own factor, I shall, both when in Ross-shire and here, refer the management of the estate to you.’

Occasionally he sent articles of furniture from London to Fowlis Castle, but such articles must have been requisite for the accommodation of himself and his family, though he had contemplated a jaunt for six weeks only, as he did in 1797.

I may observe also, that the facility with which all his projected annual visits for seven years were abandoned, shows how much he was attached to a London life.

Even after his marriage, and after Lady Fowlis's death, it may be remarked, that he stayed only a few years in Scotland, after which he returned to London, retaining during the whole intermediate time his house in Gloucester Place, which proves, that even then he had no intention of abandoning his London domicile.

He revisited Scotland in 1817, and spent two or three years in Ross-shire, when he finally left this country, and hastened back to the scene which he was fitted by his education, his habits and pursuits, to enjoy, and where, since that time (excepting some short visits to the Continent) he has uniformly remained. From the year 1794, then, when he first established his domicile in London, to the present day, he has, with the exceptions mentioned, been constantly resident there, being a period of no less than forty three years, and there he continues. I do not think there can be more conclusive evidence to establish a domicile of choice, facto et animo.

The pursuer founds on a citation from the commentator John Voet, and she says the general principle of law cannot be better expressed than in his words:—‘Illud certum est neque solo animo neque destinatione patris familias, aut contestatione sola, sine re et facto domicilium constitui: neque sola domus com-moratione in aliqua regione; neque sola habitatione sine proposito illic perpetuo morandi, cum Ulpianus a domicilio habitationem distinguat.’ 1 But although Vattel has expressed himself to nearly the same purpose, I have no hesitation in saying, that if at any time that was the rule of international law, it is not so at present. The correct principle is laid down by Professor Story in his excellent work on the Conflict of Laws:—‘Vattel has defined domicile to be fixed residence in any place with an intention of always staying there. But this is not an accurate statement. It would be more correct to say, that that place is properly the domicile of a person, in which his habitation is fixed, without any present intention of removing therefrom.’ 2 It is possible that Sir Hugh Munro, besides his intention of making short visits to Scotland, may have contemplated at some future and indefinite period of life, to take up his abode in Ross-shire. But that is not enough. The same author observes, that ‘if a person has actually removed to another place with an intention of remaining there for an indefinite time, and as a place of present domicile, it becomes his place of domicile, notwithstanding he may entertain a floating intention to return at some future period.’ 3 Can it be maintained that Sir Hugh Munro at the time of his marriage, or at any other time during the last forty-three years, is proved to have had more than ‘a floating intention’ to settle himself permanently in Scotland?

Two cases have been cited for the pursuer,—that of the Earl of Strathmore's son in the House of Lords, and that of Lord Somerville's succession in the Court of Chancery. The case of Strathmore does not bear upon this question at all; for it was admitted on both sides, from the outset, that Lord Strathmore's domicile

_________________ Footnote _________________

1 Voet. 5, 393.

2 Story on the Conflict of Laws, p. 42.

3 Story on the Conflict of Laws, p. 45.

was in England. Lord Somerville's case agrees with this case in two particulars. Lord Somerville, as well as Sir Hugh Munro, had a Scotch domicile of origin, and both had houses in Scotland and in London. But in every other circumstance the cases are exactly opposed to each other. Lord Somerville's time was equally divided between Scotland and England. He lived one half of the year in London, and the other half in Mid-Lothian. In Scotland, his establishment and style of living were suitable to his rank and fortune. In London he had only one or two female servants, and brought two men servants from Scotland, taking them hack with him when he returned, and using job-horses in London occasionally. In his manner of living in London, he was very private,—seeing no company, dining usually at a club, and keeping his servants on board wages. His house in London was out of repair. On the contrary, Sir Hugh Munro, at the time of his marriage, being the period in question, did not divide his time between Scotland and England, but spent the whole year in London. He kept up a constant establishment in London; in Scotland he had no establishment whatever. In England, Sir Hugh Munro's style of living was suitable to his rank and fortune; in Scotland, he had only two female servants to take care of his house. When he contemplated a visit to Scotland, every year for eight years, he intended to take his own servants with him, and to bring them back to England, and to use job-horses occasionally in Scotland. When he did visit Scotland, but after the period in question, he lived very privately, seeing little company, and his house was, as it always had been, out of repair.

On these grounds, I have come to the conclusion, that Sir Hugh being domiciled in England at the date of his marriage with Lady Munro, the pursuer remains illegitimate. My opinion, in point of law, is the same with that of Lord Gillies and Lord Mackenzie. On the fact, I agree with the majority of the consulted Judges.

With regard to the case of M'Douall, it is admitted that the domicile of Colonel M'Douall was in Scotland. He went to England with his regiment; and it is laid down in all the books, that a person absent on military service retains his previous domicile. Further, I am inclined to think, that the lady whom he married in England retained her Scotch domicile. She went with the Colonel to England, and while there, had illegitimate children born to him, whom he wished to have educated in England. The Colonel took a house for them at Penrith for that purpose; and I consider the lady as a part of his family, and acting as the governess or superintendant of his children while there. It is laid down in the Roman law, that men-servants and maid-servants (famuli et ancillæ) follow the domicile of their master; and on that account I think this lady, as the governess of Colonel M'Douall's children, retained her Scotch domicile. But at the same time, in my opinion, Mrs M'Douall's domicile, at the period of her marriage, is a matter of no consequence whatever. On the principle stated in the preceding case of Munro, I conceive that the moment the marriage took place, Colonel M'Douall's domicile became the domicile of the lady and her children; and, at the same moment, the children had the benefit of the Scotch law of legitimation. *

_________________ Footnote _________________

1 These speeches were revised by the Judges.

Lord President.—Bruce was held domiciled elsewhere, although actually on his passage home.

Lord Corehouse.—Persons going to the East or West Indies from this country, with the view of making a fortune, have for the most part a fixed intention of returning home when their fortune is made. I know but of one instance of a gentleman who realized a large fortune, and who had retired from the public service, but who resolved to end his days on the banks of the Ganges. There is a series of decisions, both in our own and the English books, among the rest that of Bruce, to which your Lordship alludes, in which persons in the civil service in India, though they had expressed a decided intention to return to Britain and had taken steps for that purpose, were held to have had an Indian domicile.

The Court pronounced an interlocutor, sustaining the defences, and finding that the pursuer was illegitimate.

Solicitors: Sang and Adam, S.S.C.— Smith and Kinnear, W.S.—Agents.

SS 16 SS 18 1837


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/1837/016SS0018.html