English lawyer, at least (d), is aware that this statement is too broad, inasmuch as the mere accident of birth in English territory is attended with most important legal consequences to the person born therein (e). The French lawyer knows that the individual who is domiciled in France may yet be, in many civil respects, considered as a foreigner. And in [the German cantons of] Switzerland (f), as Savigny himself afterwards remarks, there is a jus originis springing from birth in a particular commune, and a jus domicilii, from domicil in a commune, the former overruling the latter in the more important Jural Relations.

XXXII. Towards the close of the Republic and during the first centuries of her Empire, Italy, with the exception of Rome, consisted of a variety of urban communities which were called, for the most part, municipia and coloniæ. Each of them possessed a kind of constitution of their own

their own magistrates, their own jurisdiction, and sometimes their own legislation. Every inhabitant of Italy appertained either to Rome or to one of these urban communities.

The provinces, on the contrary, had originally very various constitutions; but these, in the time of the great jurists of the two first Christian centuries, had become assimilated with the Italian communities. The general appellation of these urban communities was civitates or reipublicæ their domain was designated territorium, an expression which occurs often in the Justinian compilations, and sometimes regio. The vici were rural subdivisions of the civitas. The individual was bound to the urban community in two ways: 1st, by the Right of Citi

:

(d) Vide post; and see Story, ss. 51-74, for the opinions of Foreign Jurists, which, he says (s. 81), lay down, "that the law of the domicil of origin, or, the law of the actual domicil, is of universal obligation as to the capacity, state, and condition of persons." Very unsatisfactory, it must be admitted.

(e) Vide post, § xxxiv.

(f) Savigny, R. R. s. 358. It is remarkable that this peculiarity appears to have no connection with the Roman jurisprudence; vile post.

zenship generally founded on birth (Origo) (g); 2, by the Right of Domicil (domicilium) within the territorium (h).

XXXIII. There are certain passages in the Roman Law which classify the free inhabitants of the Empire as follows-Cives, Latini, Peregrini, which classification at first sight appears to apply to each class a determinate positive law: but this is not so. The classification did indeed materially affect the capacity of individuals, e.g. the Cives had connubium and commercium-the Latini had commercium only-the Peregrinus had neither: but the classification has no bearing on the consideration to which entire system of positive law the individual was subject (i).

The tie which bound the individual to an urban community, or, speaking generally, municipality, whether it sprang from origo or domicilium, produced three effects or consequences.

1. It subjected him to a share of the burdens and charges (munera) of the community (k).

2. It subjected him to the jurisdiction of the community (forum originis vel domicilii). The plaintiff (actor) was bound to institute his suit in the forum of the defendant (rei), but he might choose the forum originis or the forum domicilii.

3. It fastened upon him the particular law of the community as a personal attribute (lex originis—domicilii).

This last of the three effects or consequences Savigny (1) points out as of extreme importance. There is, he says,

(g) "Municipem aut nativitas facit, aut manumissio, aut adoptio." Dig. lib. 1. t. i. 1.

(h) "Cives quidem origo manumissio allectio vel adoptio, Incolas vero .. domicilium facit."-Cod. lib. x. t. xxxix. 7.

(i) Savigny, R. R. s. 356.

(k) Muneris particeps-but the exact primitive meaning of this word is doubtful; it came to be the designation of all who, out of Rome, had rights of citizenship, their connection with their particular community being generally expressed by the word origo or patria. (1) Savigny, R. R. s. 356.

an intimate connection between all the three effects, but especially between the two last (m), which are to be regarded but as different sides of one whole-different appearances of the same local or territorial law to which the individual is subject.

The intimate connection between the jurisdiction of, and the particular law derived from, the Community is a principle which extends beyond the mere antiquarian consideration of the Roman Constitution; it lies, in fact, at the root of the existing Private International Law; it furnishes the true solution of the problem, What law shall govern that Jural Relation which comes in contact with the law of divers territories (n)?

XXXIV. The observations in the last section are applicable, it will be remarked, to the tie by which Domicilium, as well as to that by which Origo, binds an individual to a State. In truth, the effect of mere Origin or Birth in binding the individual to a particular territory, and subjecting him to the law thereof, appears chiefly in the consideration of Public International Law, and has been treated of in an earlier volume of this work in a chapter upon "The right of Jurisdiction over Persons" inherent in the government of every independent State (o); and

(m) See, too, Bynkershoek, De Foro Leg. c. ii.; Forum competens, founded by origo et natura. Subjectio duplex--1, rei, 2, personæ. (n) This appears to me to give fairly, as far as the English language will allow, Savigny's meaning.

(0) Vol. i. pt. iii. c. xviii.: "Right of Jurisdiction over Persons." In Shedden v. Patrick, 1 Macqueen's House of Lords Cases, p. 611, Lord Chancellor Cranworth observes, that in England, independently of Statute Law, and with certain exceptions, every one born abroad is an alien. See, also, Mr. Westlake's Private International Law, c. ii.

The English Statutes are 25 Edw. III. stat. 1; 7 Anne, c. 5; 4 Geo. II. c. 21; 13 Geo. III. c. 21; 7 and 8 Vic. c. 66, s. 3, [which is now repealed by 33 Vic. c. 14].

English Leading Cases.-Bacon's Case, Croke's Car. Reports, p. 602.
Doe v. Jones, 4 Term Reports, p. 308.

Countess de Conway's Case, 2 Knapp's P. C. Rep. p. 364.

Count de Wall's Representatives Case, 6 Moore's P. C. Rep. p. 216.

also the collateral question as to the acquisition of a new and the loss of an old national character. The theory of Domicil has in fact, with few but important exceptions, swallowed up the theory of Origin in all matters of Comity.

The effect of Origin is, however, still seen when the positive law of the State in which a man is born affixes an indelible incapacity upon its subject to do certain acts, and enter into certain obligations. Thus, in Switzerland the jus originis of the commune may decide, in preference to the jus domicilii, both the local positive law and the forum in suits concerning Divorce and Succession. The law of England incapacitates an Englishman from possessing a slave in any State, and certain members of its Royal Family from contracting marriages (p) in any State without certain previous consents. The law of England also applied the law of treason-though this is a matter of Public International Law-with great severity, affixing, till quite recently, on all who have been born from parents who are not enemies (7) within its territory an indelible allegiance, and therefore an indelible incapacity to bear arms against herself (r). So with regard to incestuous

These two last Cases, and Bacon's Case, were before the 7 & 8 Vic. c. 66, s. 16 of which makes the foreign wife of an Englishman an Englishwoman; and it has been holden in a criminal case that she cannot refuse this character, but must accept it with its advantages and disadvantages.-Maria Manning's Case, 2 Carrington & Kirwan's Rep. p. 887; also of course before 33 Vic. c. 14, which repeals the former statute.

[See De Geer v. Stone, L. R. 22 Ch. Div. p. 243.]

As to the status of wives under the present law (33 Vic. c. 14), see

vol i. § cccxxxi.

(p) 12 George III. c. 11.

Sussex Peerage Case, 11 Clark & Finnelly's Rep. p. 85.

(9) See this exception, Calvin's Case, 7 Coke's Rep. p. 18 a.

(r) See the celebrated case of Æneas Macdonald, 18 State Trials, p. 857. He had not been in Great Britain since his infancy, but he was born there. In 1745 he was taken in arms under a French commission, and holden guilty of treason.

See, too, Drummond's Case, 2 Knapp's P. C. Rep. pp. 295, 311, 314.

marriages; under which head it is to be observed that the Law of England at present places marriages with the wife's sister, making, as it does, no difference between relations by consanguinity and by affinity (s). This subject is further discussed in a later part of this volume, which deals with the law relating to Foreign Marriages.

XXXV. M. Demangeat, in. his endeavour to answer the question, What is the circumstance which determines for each individual his personal law ? justly observes, that if the domicil of the individual were always and necessarily identical with the territory of the State to which he belonged, it would be enough to say, by way of answer to the question, that the personal law of the individual is the law of the place wherein the individual is domiciled (t).

But it may happen in France that a person may be domiciled in France, and yet not cease to be étranger: for incontestablement cela est possible, M. Demangeat says: nay, he may be even domiciled with the permission of the French government, and yet remain étranger. In this latter case what would be his personal law?

M. Demangeat observes that when the personal law serves to disclose to us the intention of the individual, there is no difficulty in saying that it is the positive law of his domicil (du domicile), not the law of his Origin or State (de la patrie), which is his personal law; thus the French courts have decided that a domiciled foreigner,

Fitch v. Weber, 6 Hare's Rep. p. 65.

With respect to the status of aliens, and the capacity of subjects to expatriate themselves under the present English law, see vol. i. § cccxxxi. As to the American (U.S.) law, see Wharton, §§ 3, 4. By an Act of July 27, 1868, expatriation is declared "a natural and inherent right of all people," a proposition which can of course not be considered as one of International Law, because one State has thought proper to incorporate it into its own law.

Et vide infra, chapter xvii.

(s) See Story, ss. 86-88. From s. 113(a) to 119 he discusses the question and condemns the English Law; though his reasoning at s. 116(a) is strange.-Sed vide post.

(t) Revue Pratique de Droit Français, tome i. n. 2, p. 65.