CHAPTER VII.

DIFFERENT KINDS OF DOMICIL.

LXVII. THE kinds of Domicil are sometimes classed as follows:-1. The Domicil of Birth (Domicilium naturale). 2. The Domicil by Operation of Law (necessarium). 3. The Domicil of Choice, where one is abandoned and another acquired (Voluntarium, adscititium-Domicile de Choix) (a).

LXVIII. The Civilians generally use the expression Domicil of Origin (domicilium originis) as synonymous with Domicil of Birth (domicilium nativitatis). Though if the parents were on a journey, or temporarily absent from their own domicil, that, and not the accidental place of birth, was the domicil of the child. "The Domicil of Origin "is that arising from a man's birth and connections," according to the case of Somerville v. Lord Somerville (b).

(a) Wolff, c. i. s. 138, Jus Gentium; Vattel, liv. i. c. xix. s. 218; Pothier, Introd. Gén. aux Cout. s. 12.

(b) "Exemplo senatorii ordinis patris originem unusquisque sequatur."-Code, lib. x. t. xxxi. 36.

"Est autem originis locus in quo quis natus est, aut nasci debuit. Licet forte re ipsâ alibi natus esset, matre in peregrinatione parturiente."-J. Voet, lib. v. t. i. s. 91.

According to the law of England, even the children of aliens not at enmity with the Crown, if born within the realm, are natural-born subjects; and all children, whose fathers or grandfathers by the father's side were natural-born subjects, are, with certain exceptions, deemed natural-born subjects themselves.-Stephen's Commentaries, vol. ii. book iv. part i. chap. ii. For the 33 Vic. c. 14, "An Act to amend the law relating to the legal condition of aliens and British subjects," and 35 & 36 Vic. c. 39, see vol. i. p. 653, Appendix v. ; Cutler's Law of Naturalization, 1871. See also Kent's Commentaries,

LXIX. But this expression "Domicil of Origin" is incorrect, and tends to confound the distinct ideas of "Origin" and "Domicil." There is a time, indeed, when they happen to be identical; for instance, a child born in the State in which his father is domiciled has, generally speaking, his Origin and his Domicil in that State : because, in the case of a person who has never acquired a domicil, you must go back to the epoch when a domicil was chosen for him;-this epoch is the time of his birth.

This is the true meaning of "Origo," to which jurists have referred when they have spoken of the forum originis; though they have sometimes confounded Origin with the accidental place of birth, and sometimes have not had a clear idea of the relation which modern Origin bears to the Roman Origo (c).

Savigny explains the matter in this way:

The Romans called by the name Origo the right of citizenship which a man acquired by his birth. The moderns call by the name of Origo the fiction that a man has a Domicil in the place at which his parents at the time of his birth had a domicil. This notion of Origo in modern law is equally applicable to the jurisdiction (d) as forum originis, and to the local law which attaches to the person, or lex originis (e).

The expression, therefore, domicilium originis is, with reference to the language of the Roman Law, unintelligible, and confounds two distinct and independent ideas; while, with reference to modern law, it signifies a domicil not founded upon choice, but upon descent from a parent, and therefore in some sort upon a fiction.

LXX. The effect of origin, as an ingredient in the

vol. ii. Lecture 25; Somerville v. Lord Somerville, 5 Vesey's Reports, p. 750; Traité du Droit International Privé, &c., par M. Fœlix (Paris, 1856), liv. i. t. i. s. 28.

(c) Savigny, R. R. viii. ss. 350-359.

(d) Ib. viii. s. 369 (103).

(e) Ib. viii. s. 459 (103).

consideration of the circumstances which constitute a change of domicil, will be discussed in a later chapter in which the "Domicil of Choice" finds its place.

LXXI. Domicil by operation of Law comprises two classes of persons: 1. Those who are under the control of another, and to whom the State gives the Domicil of another. 2. Those on whom the State affixes a Domicil― (i.) By virtue of the employment or office they hold; (ii.) By virtue of some punishment inflicted upon them.

LXXII. Under the first class may be reckoned the Domicil of-1. The Wife. 2. The Minor (i.) legitimate, and (ii.) illegitimate. 3. The Student. 4. The Lunatic. 5. The Servant.

Under the latter class may be reckoned-1. The Officer employed by the State, whether Civil or Military. 2. The Ecclesiastic. 3. The Prisoner. 4. The Exile. 5. The Emigrant.

[The Domicil of a Corporation will also have to be considered.]

CHAPTER VIII.

I. NECESSARY DOMICIL-WIFE.

LXXIII. WE have now to consider the case of those persons who are comprised under the first class, the domicil of whom is determined by operation of Law.

LXXIV. First of the Wife (a).

The maxim of the Roman (b) and of Continental civilians, and of this country and of America, is, that, as the wife takes the rank, so does she the domicil, of her husband; and the widow retains it, by the same analogy (c), after the death of her husband. If, however, the widow marry again, her domicil will be that of her second husband; and, according to the Canon law, she had a right to be buried in the place of sepulture belonging (d) to the domicil of her last husband.

(a) Disabilities of American Women married abroad, by W. H. Lawrence, New York, 1871.

As to the national status of married women according to the present law of England (33 Vic. c. 14 and 35 & 36 Vic. c. 39), see vol. i. p. 653, Appendix.

(b) "Item rescripserunt mulierem quamdiù nupta est incolam ejusdem civitatis videri cujus maritus ejus est, et ibi unde originem trahit non cogi muneribus fungi."-Dig. lib. 1. t. i. 38. "Mulieres honore maritorum erigimus, genere nobilitamus, et forum ex eorum personâ statuimus; et domicilia mutamus."-Code, lib. xii. t. i. 13.

(c) "Vidua mulier amissi mariti domicilium retinet, exemplo clarissimæ personæ per maritum factæ. Sed utrumque aliis intervenientibus nuptiis permutatur.”—Dig. lib. 1. t. i. 22. "Sin autem minoris ordinis virum postea sortitæ fuerint, priore dignitate privatæ, posterioris mariti sequentur conditionem et domicilium."- Code, lib. x.

t. xxxix. 9.

(d)" Mulier autem quæ plures viros habuit successivè, si sepul

LXXVI. This doctrine of the widow's title to the domicil of her husband was successfully sustained by one of our most eminent civilians against the lawyers of France, in the question of the disputed succession to the personal property of Henrietta Maria, widow of Charles the First.

LXXVII. The French lawyers claimed the property for the Duchess of Anjou (e), her daughter, alleging that Charles the Second, the Duke of York, and the Princess of Orange (the other children), were excluded and disabled by the "droit d'aubaine," which took effect because Henrietta Maria had died domiciled in France.

They reasoned in this manner: that the Dowager Queen of England was a Frenchwoman, the daughter of Henry the Fourth, from whom she had received a "dot" of one hundred thousand crowns; that having fled from England in 1645, she purchased a house in France, and lived there for twenty-five years, till the time of her death, visiting England only twice during that period, and dying in her French residence; that she was, therefore, a domiciled native of France; and that the acknowledged rule of "mobilia sequuntur personam" must be applied to the question of succession to her personal property.

LXXVIII. It was argued, on the other side, by Sir Leoline Jenkins, that it was a clear proposition of public law that the wife followed the domicil of her husband; that she always continued to do so; and that no length of absence from her husband could affect this right; that the Queen Dowager of England originally went to France in obedience to the order of her husband, at the time when England was embroiled in civil war; that she afterwards resided there for the sake of her health, having

turam non eligat, est cum viro ultimo, cujus domicilium retinet et honorem tumulanda."-Decretal. lib. iii. t. xii. c. iii.

(e) Better known in our history as Duchess of Orleans.