practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. . . . The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it, as a part of the voluntary law of nations. It is truly said in Story's Conflict of Laws, 37, that In the silence of any positive rule, affirming, or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interests. It is not the comity of the courts, but the comity of the nation which is administered, and ascertained in the same way, and guided by the same reasoning by which all other principles of municipal law are ascertained and guided."

GRAY, J., in HILTON v. GUYOT, 159 U. S. 113, 163 (1895). No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call "the comity of nations." Although the phrase has been often criticised, no satisfactory substitute has been suggested.

66

Comity," in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.'

1 See the dissenting opinion of FULLER, C. J., in the same case, at p. 233; and see further Dicey on the Conflict of Laws, p. 10. — Ed.

CHAPTER II.

JURISDICTION OVER PERSONS AND THINGS.

SECTION I.

DOMICILE.1

BELL v. KENNEDY.

HOUSE OF LORDS. 1868.

[Reported Law Reports, 1 House of Lords (Scotch), 307.]

2

THE LORD CHANCELLOR (LORD CAIRNS). My Lords, this appeal arises in an action commenced in the Court of Session, I regret to say so long ago as the year 1858; in the course of which action no less than sixteen interlocutors have been pronounced by the court, all, or the greater part of which, become inoperative or immaterial if your Lordships should be unable to concur in the view taken by the court below of the question of domicile.

The action is raised by Captain Kennedy, and his wife, the daughter of the late Mrs. Bell; and the defender is Mrs. Kennedy's father, the husband of Mrs. Bell. The claim is for the share, said to belong to Mrs. Kennedy, of the goods held in communion between Mr. and Mrs. Bell. This claim proceeds on the allegation that the domicile of Mrs. Bell, at the time of her death on the 28th of September, 1838, was in Scotland. And the question itself of her domicile at that time depends upon the further question, what was the domicile of her husband? Her husband, the appellant, is still living; and your Lordships have therefore to consider a case which seldom arises, the question, namely, of the domicile at a particular time of a person who is still living.

Mr. Bell was born in the island of Jamaica. His parents had come there from Scotland, and had settled in the island. There appears to be no reason to doubt but that they were domiciled in Jamaica. His father owned and cultivated there an estate called the

1 For the general principles of nationality see Calvin's Case, 7 Co. 1; U. S. v. Wong Kim Ark, 169 U. S. 649. — Ed.

2 The statement of facts is omitted, as are also the concurring opinions of Lords CRANWORTH, CHELMSFORD, and COLONSAY. — ED.

Woodstock estate. His mother died when the appellant was about the age of two years, and immediately after his mother's death he was sent to Scotland for the purpose of nurture and education. By his father's relatives he was educated in Scotland at school, and he afterwards proceeded to college. His father appears to have died when he was about the age of ten years, dying, in fact, as he was coming over to Great Britain for his health, but with the intention of returning to Jamaica.

The appellant, after passing through college in Scotland, travelled upon the Continent; and soon after he attained the age of twenty-one years he went out again to Jamaica, in the year 1823, with the intention of carrying on the cultivation of the Woodstock estate, which, in fact, was the only property he possessed. He cultivated this estate and made money to a considerable amount. He arrived at a position of some distinction in the island. He was the custos of the parish of St. George, and was a member of the Legislative Assembly. He married his late wife, then Miss Hosack, in Jamaica in the year 1828; and he had by her, in Jamaica, three children.

It appears to me to be beyond the possibility of doubt that the domicile of birth of Mr. Bell was in Jamaica, and that the domicile of his birth continued during the events which I have thus described.

In the year 1834 a change was made in the law with regard to slavery in the island of Jamaica, which introduced, in the first instance, a system of apprenticeship, maturing in the year 1838 into a complete emancipation. This change appears to have been looked upon by Mr. Bell with considerable disfavor, and, his health failing, in the year 1837 he determined to leave Jamaica, and to return to some part, at all events, of Great Britain. He entered into a contract for the sale of the Woodstock estate, the purchase-money being made payable by certain instalments; and in 1837 he left the island, to use his own expression, "for good." He abandoned his residence there without any intention at that time, at all events, of returning to the island. He reached London in the month of June, 1837. He remained in London for a short time, apparently about ten days, and he then went on to Edinburgh, and took up his abode under the roof of the mother of his wife, Mrs. Hosack, who at that time was living in Edinburgh.

I ought to have stated that while the appellant was in Jamaica he appears to have kept up a correspondence with his relatives and friends in Scotland. In the year 1833 he acquired (I prefer to use the term "acquired" rather than the word "purchased ") the estates of Glengabers and Craka. He appears to have taken to those estates mainly in settlement of a claim for some fortune or money of his wife secured upon them. It is apparent, however, that he had at no time any intention of residing upon Glengabers, and, in fact, the acquisition of those estates bears but little, in my opinion, upon the question of domicile, because in 1833, when he acquired them, his

domicile, beyond all doubt, was, and for some years afterwards continued to be, in Jamaica.

He wrote occasionally at that time from Jamaica, evincing a desire to buy an estate at some future period in Scotland, if he could obtain one to his liking, and even an intention, if he could obtain such an estate, of living in Scotland, but nothing definite appears to have been arranged or said upon the subject; and, in fact, at this time other suggestions as to other localities appear to have been occasionally entertained and considered by him.

In these letters he frequently uses an expression that was much insisted upon at the bar the expression of "coming home;" but I think it will be your Lordships' opinion that the argument is not much advanced, one way or the other, by that expression. It appears to me to be obviously a form of language that would naturally be used by a colonist in Jamaica speaking of the mother country in contradistinction to the colony.

Up to this point, my Lords, there is really no dispute with regard to the facts of the case. The birth-domicile of the appellant in Jamaica continued, at all events till 1837, and the onus lies upon those who desire to show that there was a change in this domicile, by which I mean the personal status indicated by that word, — the onus, I say, lies upon those who assert that the personal status thus acquired, and continued from the time of his birth, was changed, to prove that that change took place. The law is, beyond all doubt, clear with regard to the domicile of birth, that the personal status indicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicile is acquired.

I do not think it will be necessary to examine the various definitions which have been given of the term "domicile." The question which I will ask your Lordships to consider in the present case is, in substance, this: Whether the appellant, before the 28th of September, 1838, the day of the death of his wife, had determined to make, and had made, Scotland his home, with the intention of establishing himself and his family there, and ending his days in that country? The onus, as I have said, is upon the respondents to establish this proposition.

I will ask your Lordships, in the first place, to look at the facts subsequent to the return of the appellant to Scotland, as to which there is no dispute, then at the character of the parol evidence which has been adduced, and, finally, at a few passages in the correspondence which is in evidence.

As regards the facts which are admitted, they amount to this: The appellant lived under the roof of Mrs. Hosack from the time of his arrival in Edinburgh, in the year 1837, until the 1st of June, 1838. He appears to have borne the whole, or the greater part of her house-keeping expenses during that time. He inquired for, and

looked after, various estates, in the south of Scotland especially, and he indicated a preference for the estates of Blairston or Auchindraine, of Mollance, and of Enterkine. With regard to Blairston or Auchindraine, it does not appear, so far as I can discover, to have been actually offered to him for sale. With regard to Mollance, before he came to any determination as to it, it was sold to another person. With regard to Enterkine, at the time we are speaking of, the 1st of June, 1838, a negotiation had been going on by letters written between the appellant and those who were proposing to sell the estate, but the offer which he ultimately made for it had at that time been refused, and, on the 1st of June, 1838, there was no pending offer on his part for the property. Mrs. Bell, his wife, at this time was expecting her confinement. The house of his mother-in

law, in which they were sojourning, was not sufficiently commodious for their wants, and the appellant took for one year a furnished house in Ayrshire, called Trochraigue. He took it with no intention, apparently, of buying the estate, although it appears to have been for sale, but with the intention of living for a year in the house, and he hired servants for his accommodation. He removed to Trochraigue on the 1st of June, 1838, and, while so sojourning there, Mrs. Bell died in her confinement on the 28th of September in that year.

It appears to me, beyond all doubt, that prior to this time the appellant had evinced a great and preponderating preference for Scotland as a place of residence. He felt and expressed a great desire to find an estate there with a residence upon it, with which he would be satisfied. His wife appears to have been even more anxious for this than he himself was; and her mother and their friends appear to have been eager for the appellant to settle in Scotland. There is no doubt that, since the death of his wife, he actually has bought the estate which I have mentioned, the estate of Enterkine, and that his domicile is now in Scotland. All that, in my opinion, would not be enough to effect the acquisition of a Scotch domicile. There was, indeed, a strong probability up to the time of the death of his wife that he would ultimately find in Scotland an estate to his liking, and that he would settle there. But it appears to me to be equally clear that if, in the course of his searches, a property more attractive or more eligible as an investment had been offered to him across the Border, he might, without any alteration or change in the intention which he expressed or entertained, have acquired and purchased such estate and settled upon it, and thus have acquired an English domicile. In point of fact, he made more or less of general inquiry after estates in England; and a circumstance is told us by one of the witnesses, Mr. Telfer, which seems to me of great significance. Mr. Telfer says that his relations entertained great apprehension or dread that he would settle in England — a state of feeling on their part totally inconsistent with the notion