Yet upon these facts is based the opinion of Lord Stowell, in which he speaks of the "immiscibility" of character in the paragraph already quoted as a reason why an Eastern domicile can not be acquired by a British subject, and to which Mr. Justice Chitty alludes as a precedent for his conclusion. In Maltas v. Maltas, decided by Dr. Lushington, the question was as to rule that should govern the descent of the personal property of John Maltas who died in Smyrna. One of the questions discussed was whether the testator had acquired a residence in Smyrna; he having had a domicile of origin in Great Britain. While this question was alluded to, it is apparent from a most cursory examination that the question of domicile was in no sense involved in the case. With reference to the question of domicile the court summed up its conclusions as follows:

I wish to observe that I am desirous not to be supposed to have given an opinion upon any question not necessary to be decided in this case; my judg ment, therefore, does not affect the question of domicile.

I give no opinion, therefore, whether a British subject can or can not acquire a Turkish domicile; but this I must say: I think every presumption is against the intention of British Christian subjects voluntarily becoming domiciled in the dominions of the Porte.

Yet the last part of this paragraph is the passage cited as a precedent. It is obvious then that the extracts cited from these cases as precedents are themselves pure dicta. It as manifestly follows that Mr. Justice Chitty's discussion upon the question of Chinese domicile was not only dictum itself, but founded upon dictum. The cases, therefore, upon which he relies for his conclusion by no means justify the statement that "the difference between the religion, laws, and manners of the Chinese and of Englishmen is so great as to raise every presumption against such a domicile," and Tootal's Trusts cannot be regarded as an authority for denying, as a presumption of law, the incompetency of acquiring a Chinese domicile.

We agree, however, with Mr. Justice Chitty upon the real issue before him for decision. An Anglo-Chinese domicile would certainly be of immiscible character. The Anglo-Indian domicile was so regarded by Mr. Justice Chitty himself, who says of the cases establishing the doctrine: "These authorities are generally admitted to be anomalous." While they may be regarded as anomalous in an attempt to establish a double domicile, a thing unknown to any rule of law and impossible in practice, they may be made, by a fair analysis, precedents in fact, if

not in name, for a straight Indian domicile in the anomalous cases considered, and for a straight Chinese domicile in the case at bar.

In its practical application, what does Anglo-Indian mean? It is simply the invention of a name. No new feature except the name appeared in any of these cases that did not comport with all the general rules of acquiring a domicile in India. In alluding to this compound domicile Baggallay, L. J., in Ex parte Cunningham, In re Mitchell, 13 Q. B. Div. 418, remarks:

There are some anomalous cases in which a subject of the Queen had entered into the service of the Old East India Company, and it was held that he had acquired what was called an Anglo-Indian domicile.

The phrase "what was called an Anglo-Indian domicile" is significant, and disclosed that, in the mind of the learned justice, no such domicile could be legally said to exist. It appears, as already stated, that the Anglo-Indian domicile was declared upon the ground that the East India Company was a permanent institution in India, and that those persons who entered its employ were, ipso facto, presumed to have abandoned their domicile of origin and to have become permanently located in India. Cotton, L. J., in the same case, takes emphatic exception to the elements of fact which the old cases declare are capable of constituting an Anglo-Indian domicile. He says:

It is said that a Scotchman by entering the service of the East India Company acquired an Anglo-Indian domicile. I take exception to the expression "by entering the service" of the East India Company. The ground of the decision in those cases was that the officer was residing in India under circumstances which showed that he intended to abandon his domicile of origin, under circumstances which rendered it his duty to reside there permanently. It was not the entering the service, but the residence in India under circumstances which required him to remain there, which caused the change of domicile.

This is really what was said by Wood, V. C., in Forbes v. Forbes, Kay, 356:

When an officer accepts a commission or employment, the duties of which necessarily require residence in India, and there is no stipulated period of service, and he proceeds to India accordingly, the law, from such circumstances, presumes an intention consistent with his duty, and holds his residence to be animo et facto in India.

In other words, the learned justice eliminates the East India Company, which made whatever domicile was acquired dependent, not upon the East India Company at all, but upon a permanent residence in India.

But eliminating the East India Company eliminates the component "Anglo" from Anglo-Indian, and leaves the Indian domicile only. The logic of these cases is that Anglo-Indian was a misnomer, as duty can not be considered superior to volition in power to fix intention.

On the other hand, the whole trend of modern authority is in opposition to the dictum advanced in Tootal's Trusts. Judge Wilfley of the United States Court for China sitting at Shanghai in 1907, in Re Probate of the Will of Young J. Allen, announced a strong opinion in which he rejects the dictum in Tootal's Trusts and comes to a directly opposite conclusion. The facts in the case are very similar to those in the case at bar. After an elaborate and exhaustive review of the authorities and text-writers, he comes to the conclusion:

First. "That there is nothing in the theory or practical operation of the law of extraterritoriality inconsistent with or repugnant to the application of the American law of domicile to American citizens residing in countries with which the United States has treaties of extraterritoriality."

Second. That Dr. Young J. Allen, having lived in China for a period of forty-seven years, and having expressed his intention to live there permanently, thereby acquired an extraterritorial domicile in China; consequently this court in the administration of his estate will be guided by the law which Congress has extended to Americans in China, which is the common law."

We wish to say, however, that we do not agree with Judge Wilfley in employing the name "extraterritorial domicile." It appears to be inconsistent with the fundamental idea of domicile, which, as we have endeavored to show, is a relation between an individual and a particular locality or country. The fact that the law governing the particular locality is extraterritorial does not make the domicile extraterritorial, since it is immaterial upon the question of domicile from what source the law is proclaimed, as before shown.

This same view is taken by Prof. Huberich in the article already alluded to, in which he says:

The choice of the words "extraterritorial domicile" is unfortunate, in that it is likely to convey the idea of exemption from the laws of the territorial sovereign.

Sir Francis Piggott, Chief Justice of Hong Kong, in a recent work, expresses the opinion.

that when the question is again raised it will be found that the principles established by the most recent cases necessitate a reconsideration of the law laid down on the subject by Mr. Justice Chitty.

2 AMERICAN JOURNAL OF INTERNATIONAL LAW, vol. 1, p. 1029.

As a result of his discussion he further concluded:

A man may set up his home in a treaty port; he may have banished forever the idea of returning to his native country; the animus manendi may be clear, without shadow of doubt; on the hypothesis, too, there is a body of law regulating the community. Why is it impossible, then, for the ordinary principles of the law to be applied, and for the personal relations of the permanent members of the community to come under that law permanently as the law of the domicile of their choice, of those who are born members of the community as the law of the domicile of their origin? Linking these two propositions together, it is suggested that the inevitable result is a modification of Lord Watson's interpretation of the law of domicile referred to above on the following lines: The . law which regulates a man's personal status must be that of the governing power in whose dominions his intention is permanently to reside, or must be so recognized and established by that governing power as to be in fact the law of the land.

*

Lord Watson's interpretation was that domicile must be referred to locality, and not community.

Hall, a distinguished authority on international law, in his work on the Foreign Jurisdiction of the British Crown, also takes issue with the views expressed in Tootal's Trusts upon the ground of expediency, and

says:

It is perhaps to be regretted that a change in the law is not made, which a short order in council could easily effect. Anglo-Oriental domicile has its reasonable, it may almost be said its natural, place.

This suggestion clearly shows that in the opinion of the learned author the doctrine of immiscibility, which has been made the fundamental objection to the possibility of an Eastern domicile, should no longer be regarded as a potential reason for denying such domicile. He further says upon the question of expediency:

So long as persons have not identified themselves with the life of a new community, they must keep each his own law; but, as soon as they have shown their wish and intention to cut themselves adrift from the association of birth, they prove their indifference to the personal law attendant on their domicile of origin. There is therefore no reason why simplicity and unity of law should not be gained for British subjects by attributing community in the laws of England to all of European blood. There is also every reason for avoiding very grave difficulties of another kind, which are opened through invariable preservation of the domicile of origin. English families, even in the present day, often remain through more than one generation in oriental countries as their permanent place of abode. Formerly the history of persons whose domicile might become a matter of importance was generally known sufficiently well. Many are now of obscure antecedents, and of an origin uncertain among the numerous places from which

British subjects can derive. As no domicile can be acquired in an Anglo-Oriental community, it becomes every year more probable that cases will occur in which the determination of the domicile of a father, perhaps of a grandfather, may become necessary, and in which it may be equally impracticable to impute an English domicile or to attribute any other with fair probability. It would be a great advantage that in such cases there should be a fixed rule which should correspond with the obvious facts, and that the courts, instead of searching with infinite trouble and expense for an ancestral domicile, should be enabled to find that a domicile had been acquired in the Eastern country which carried with it the application of English law.

Prof. Huberich upon this point says:

The English view, it is submitted, is based on erroneous conceptions of domicile and extraterritoriality. It is supported by the authority of a single case (Tootal's Trusts), has been vigorously attacked, and may be repudiated by courts not bound by the precedent.

In reviewing Judge Wilfley's opinion, he says: "The result of the case is correct."

Westlake, in his Private International Law, takes the same view, and points out the inconsistency of the opinion in which Mr. Justice Chitty declared: "There is no authority that I am aware of in English law that an individual can become domiciled as a member of a community which is not the community possessing the supreme or sovereign power having said in the same connection: "It may well be that a Hindoo or Mussulman sitting in British India, and attaching himself to his own. religious sect there, would acquire an Anglo-Indian domicile." Westlake says: "The Hindoos or Mussulmans are as little the supreme or territorial power in India as the English are such in China." This discrepancy serves to point out the complexities that arise in an attempt to deny or modify the application of the rational and established rules of law.

The theory of this opinion is in accordance with the application of the ordinary rules of law touching the question of domicile. We have found no difficulty, and discover no error, in referring the existence of domicile to locality. We allude to this matter for the purpose of avoiding any confusion which might arise in reading the text-writers cited in connection with the opinion. While they all advocate the legal propriety of holding that an American national or an English national may acquire a domicile in a treaty port, they suggest, if we interpret them correctly, that such a domicile may be referred to community rather than locality. The reference of Sir Francis Piggott to "a modification of Lord Watson's