A Breach of Promise and a Matter of Sovereign Immunity: Mighell v The Sultan of Johor

[This unpublished jeu d'esprit concerns the famous case of Mighell v Sultan of JohoreLaw Reports [1894] 1 Q B 149]

In the 1880s Sultan Sir Abu Bakar ibni Daing Ibrahim, the Ruler of Johor, a State on the Malay Peninsula (he reigned from 1862 to 1895), was the very model of a modern Asiatic prince. Not only was he tall, distinguished and handsome, but he was the progressive Ruler of a prosperous State that had good relations with the British Empire and enjoyed its protection. He was known as a good Muslim (he had recently had himself re-styled ‘Sultan’ of Johor instead of ‘Maharaja’), well educated with fluent English, a moderniser, and a man of cosmopolitan tastes. He was well travelled, as much at home chatting with Chinese contractors as he was accompanying the future King George V by car to the Singapore races. Queen Victoria herself became his life-long friend. He was destined to make many improvements to the law and administration of his state, bequeathing to Johor its first written constitution in 1895. He was also, as we would say these days, a bit of a lad.

Travelling incognito in England in the 1880s, Abu Bakar had adopted the name of ‘Albert Baker’. In this guise as an ordinary, if somewhat wealthy and foreign-looking, subject of Her Majesty, with a house in Goring, Surrey, he had struck up a relationship with a Miss Jenny Mighell, who had become his mistress. The relationship had developed the point where ‘Albert’ had promised to marry her. It was then that she found out, by accident, that he was not Albert Baker but a Malay Sultan. He entreated her to keep his identity secret. Whether because of this discovery or for other reasons, Abu Bakar decided not to marry Jenny Mighell, and made plans to return home.

In the 19th century a promise to marry was actionable as a tort under the common law, and in 1893 Miss Mighell sued His Royal Highness (as we should now call him) for damages. (You might, if you are old enough, recall a wonderful 1975 movie on the theme of breach of promise of marriage called ‘Love Among the Ruins’, with Laurence Olivier and Katharine Hepburn. It had a great court scene). There was an obvious problem, however, in that as a foreign ruler HRH might - and indeed he did - claim immunity from suit. It was after all well established in international law and recognised in the English courts that a foreign head of state could not be sued. HRH argued that the court had no jurisdiction over him and applied to have the action struck out.

The judge in the High Court, Wright J, resolved the issue by asking the Colonial Office whether the Sultan of Johor was to be regarded as a foreign ruler. Yes, came the official reply, the Sultan had all the characteristics of a foreign ruler. The Colonial Office was particularly impressed with the facts that Johor had its own navy, courts, and, crucially it seems, postal service. It was therefore in international law much like Britain, but a bit smaller, lacking only tea with milk at four o’clock with scones and strawberry jam (they did have cricket, though). A Treaty with the Crown dated 1885 supporting this claim was attached. Wright J referred the motion striking out the claim to the Divisional Court which found that the letter concluded the matter. But Miss Mighell appealed to the Court of Appeal. The point was, she argued, that HRH had acted as a private individual, not as a head of state; and in any case surely the court should make up its own mind as to his status, which could arguably be seen as inferior to that which the Government had indicated?

The Court of Appeal was unanimous, however, in finding against her. The only limits to sovereign immunity, held the judges, were cases where the defendant expressly submitted to the court’s jurisdiction after a writ had been filed, or where he himself sued and there was a counter-claim by the defendant. The court would not look behind the Government’s certification.

The satirical London magazine Modern Society was far less impressed with the decision, demanding that Queen Victoria herself, who ‘should not have such disreputable friends’, even be they independent sovereigns and allies of the Queen, should compensate the victim of the ‘Goring of Johor’. Sovereign immunity, it argued, should join velvet waistcoats, the dodo, and belief in the exclusiveness of White’s Club, as a thing of the past.

Sultan Abu Bakar died 1895. Bukit Senyum in Johor Bahru, the capital of the State of Johor, translates as ‘Smile Hill’; it is reckoned to be so called, not because of its commanding view of the Straits of Johor, but because of the smile with which Sultan Abu Bakar’s aide received all inquiries as to his sovereign’s doings in Europe.

Johor was the last of the Malay States to become a British protectorate - in 1914. The Malay Rulers became constitutional Heads of their States within the Federation of Malaya in 1948, their powers reduced, having almost been abolished by an aborted plan of unification in 1946. The action for breach of promise of marriage was abolished in England in 1971, and has also been abolished in most common law jurisdictions, although it is still extant in some US states. The Colonial Office was abolished in 1966. In 1993 the immunity of the Malay Rulers was removed by an amendment to the Malaysian Constitution. The proximate cause of this was a series of violent incidents involving members of the Johor royal family, which were, as in 1895, the subject of battles between the London press and the Johor monarchy. The Malay sovereigns are now liable to be hauled - and they have been - before a Special Court which has power to deal with both civil and criminal cases in which they are involved. In 1998 the House of Lords, in Pinochet’s case, denied sovereign immunity in cases of human rights abuses. Modern Society too no longer exists. However the English Court of Appeal does, as also do White’s Gentlemen’s Club (established 1683) and the Singapore races. Velvet waistcoats are also still in use - by top snooker players.

A wag at Lincoln’s Inn penned the following witty memorial of the case.

Jenny Mighell brought an action ‘gainst the Sultan of Johore,
And demanded satisfaction for the maiden name she bore.
She declared, as Albert Baker, he had wooed her for his bride,
But he now declined to take her to be consort at his side.
Quoth the Sultan, “Such divinity doth hedge about a King,
That (although there's nothing in it) I need not deny the thing.
Be it fact or be it fiction that I scrupled not to fool her,
This Court hath not jurisdiction o'er an independent ruler.”
Said the Judge, “Your plea has met the plaintiff’s case, I don't deny
But your royal status let the Foreign Office certify.”
From a Foreign Office clerk a note was sent to say what store
There is set by Abubakar, Maharajah of Johore.
“He's a bona fide sovereign, our gracious Queen’s ally,
Reigning independent of her and of any feudal tie.
He has land and naval forces, postal system, and a Court,
Where his delegate discourses law of contract, crime, and tort.
He has founded orders knightly; titles, honours, he bestows.
So remaining yours politely, this epistle here I close.”
Then the Judges, after reading the above precise report,
Held that Abubakar's pleading put the plaintiff out of Court.
“Say, that like Haroun Al Rasched, he preferred to walk unknown;
Say, the hapless maid was mash’ed by his princely form and tone.
Say, he offered lawful wedlock: still he never made submission
To be sued (and that’s the deadlock) for his promise’s rescission.
By the comity of nations, legal process won’t intrude
On men holding kingly stations; they’re exempt from being sued.
As to this, law, reason’s flower, does not differentiate
A great European power from a petty potentate.”
Now a bard of light and leading has bewailed the lost delight
Of the ancient subtle pleading gone into die Ewigkeit.

And the Ewigkeit is where the words and feelings between these two people will remain. Was Sultan Abu Bakar a heartless cad? Or was Jenny Mighell an opportunist gold-digger? We shall never know.

[Mighell v Sultan of Johore, 10 Times Law Reports 37, 115; Law Reports [1894] 1 Q B 149]


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