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DOMICIL, in law. By the term domicil, in its ordinary acceptation, is meant the place where a person lives, or has his home. In this sense, the place where a person has his actual residence, inhabitancy or commorancy is sometimes called his domicil. In a strict and legal sense, that is properly the domicil of a person, where he has fixed his true, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning (animus revertendi). The Roman law stated it thus: In eodem loco singulos habere domicilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum summam constituit, unde cursus non sit discessurus si nihil avocet; unde, cum profectus est, peregrinari videtur; quod si rediit, peregrinari jam destitit. (Cod. Lib. 10, tit. 39, l. 7.) In the French law, some of its best writers define it thus: Le domicile est le lieu ou une personne jouissant de ses droits, établit sa demesne et le siége de sa fortune (Denizart, article Domicile); or, as the Encyclopédie Moderne (article Domicile) expresses it, C'est, à proprement parler, l'endroit ou l'on a placé le centre de ses affaires. Vattel (B. Î, ch. xix, § 22) seems to define it to be a fixed residence in any place, with an intention of always staying there. This is not quite accurate. It would be more correct to say, that that place is the home or domicil of a person, in which his habitation is fixed, without any present intention of removing therefrom (10 Mass. R. 488). The question of domicil is often one of great difficulty and nicety, and so dependent upon circumstances, that, as it has been observed by lord Stowell (2 Rob. 322), it is hardly capable of being defined by any general, precise rules. It is compounded partly of matter of fact and partly of law. It is often a mere question of intention;
sometimes of express intention, and sometimes of presumptive intention, from acts and conduct. The mere dwelling or residence in a place is not, of itself, sufficient to make it the domicil of the party. He must be there with the intention of remaining (animo manendi). The act of residence must be coupled with the intention of making it the real, substantial home of the party, excluding all others. If, therefore, a person, having his home in one place, go to another for temporary purposes, but with an intention to return, his domicil is not changed by such absence; nor does he acquire a new domicil in the place of such temporary residence. If a person go on a voyage to sea, or to a foreign country for health or pleasure, or business of a temporary nature, with an intention to return, no one supposes his domicil to be changed thereby. But, sometimes, where there has been a removal for temporary purposes at first, there may be engrafted on it, subsequently, an intention of permanent residence. And, in many instances, therefore, where we are called upon to decide upon questions of domicil, the length of time of the residence becomes a material ingredient. Lord Stowell has observed, that it is not unfrequently said, that if a person comes to a place for a special purpose, that shall not fix a domicil. "This," he adds, "is not to be taken in an unqualified latitude, and without some respect had to the time which such a purpose may occupy; for if the purpose be of a nature that may probably, or does actually, detain the person for a great length of time, a general residence might grow upon the special purpose. A special purpose may lead a man to a country, where it shall detain him the whole of his life." (2 Rob. Rep.
322,324.) These remarks, again, require some qualification; for time is not absolutely decisive in such cases, if it is clear, from other circumstances, that the purpose was wholly temporary and positive. Suppose a man should go to a country in ill health, and remain there a number of years, and, during that whole period, were incapable of being removed, or of returning home, without danger to his life; if such residence were so constrained, it would not change his former domicil. The question of domicil is of very great importance, for it often regulates political and civil rights, and founds or destroys jurisdiction over the person or property. Thus, for instance, there is what is called a political domicil, which is that place where a party must exercise his political rights, duties and privileges, as his right to vote, his duty to pay taxes, &c. Then there is what is called a civil domicil, or that where he has fixed his habitual home or residence, which decides upon his civil rights, and power to acquire, alienate and dispose of property, to contract marriage, &c. Then, again, there is, or may be, a forensic domicil (forum domicilii), or place where he is to sue or be sued, and to be subjected to the exercise of the jurisdiction of judicial courts. It may, and it often does happen, that the political, civil and forensic domicil is the same; but this is a matter, not so much of general principle, as of positive legislation in different countries; and, therefore, it is often regulated, in different countries, by very different rules, sometimes by opposite rules. Some general principles, however, may assist to guide us, in cases where there is no positive legislation to govern the case. I. The place of birth of a person is considered as his domicil, if it be at the time the home of his parents. Patris originem unusquisque sequitur. This is generally called domicilium originis (the domicil of nativity). But, if the parents were then on a visit or journey (in itinere), the home of the parents (at least if it were in the same country) would be deemed the domicil of nativity. A person born in a foreign country, while his parents are there under the allegiance of the government of the country, though they are there for temporary purposes only, is generally deemed a subject of such country, and owing allegiance to its sovereign. 2. The domicil of birth continues until a new domicil has been obtained. Infants are generally deemed incapable of changing their domicil during their minority, and, there
fore, they always retain the domicil of their parents; and if their parents change their domicil, that of the infant follows; and if the father dies, his last domicil is that of the infant. A person who is of age to choose a domicil for himself, still retains the paternal domicil, while he continues to remain with his parents. But when he is emancipated, or has acquired a domicil of his own, he no longer follows the paternal domicil. 3. The domicil of birth, also, easily reverts; and it requires fewer circumstances to establish in proof, that a party has reverted to the domicil of his nativity, or family domicil, than to establish his foreign domicil. The reason is obvious. A residence in the place of one's birth, unexplained, gives rise to a general presumption, that it is of permanent choice; because an affection for such a place, and a desire to abide there, are so commonly found among all classes of persons. 4. The domicil of a married woman follows that of her husband. This results from the general principle, that a person who is under the authority and power of another, possesses no right to choose a domicil. 5. By the civil law, minors retain, as we have seen, the domicil of their parents; and the same principle is said to apply, in that law, to the case of persons insane, or non compos mentis, whether they are under guardianship or not; for the guardian has no power to change their domicil, as it may change the order of succession to their estates. But it has been said that our law is different, and that a guardian may change the domicil of his ward, if he chooses. (9 Mass. R. 543; 5 Pick. R. 20.) But this is a point which deserves very grave consideration, and does not seem universally settled, as a part of the common law. (See Guier v. O'Daniel, 1 Binney, 352, note; Somerville v. Somerville, 5 Vesey jr., 787; Pottinger v. Wightman, 3 Meriv. R. 67.) 6. Primá facie, the place where a person lives is taken to be the place of his domicil, until other facts establish the contrary. 7. Every person of full age having a right to change his domicil, it follows, that if he removes to another place, with the intention to remain (animo manendi), the latter instantaneously becomes his place of domicil. It is of no consequence, in such a case, how short his residence may have been; for it is the fact, coupled with the intention, that settles his domicil, and here both are unequivocal. 8. If a person has actually removed to another place, with an intention of remaining
there for an indefinite time, and as a place of present domicil, it becomes his place of domicil, notwithstanding he may have a floating intention to go back at some future period. 9. The place where the family of a married man resides is generally considered as his domicil. But this may be controlled by circumstances. For if the place be only a temporary establishment for his family, or for temporary objects, it may be different. 10. If a married man has his family fixed in one place, and does his business in another, the former is considered as the place of his domicil. 11. If a married man has two places of residence at different times of the year, that will be esteemed his domicil which he selects, considers or describes as his fixed home, or which appears to be the centre of his affairs, where he votes, or acts as a citizen. 12. If a man is unmarried, that is generally the place of his domicil where he transacts his business, exercises his profession, or assumes municipal duties or privileges. 13. Residence in a place by constraint, or involuntarily, will not give the party a domicil there; but his antecedent domicil remains. 14. Mere intention to acquire a new domicil, without the fact of removal, avails nothing; neither does the fact of removal, without the intention. Presumptions arising generally from circumstances, will not prevail against positive acts, which fix and determine domicil. 13. Widows retain the domicil which had been their husbands' until they have acquired a new one. Vidua mulier amissi mariti domicilium retinet.-There are some other considerations, of a general nature, which deserve enumeration, as they respect domicil in a foreign country. Those which have been already referred to, principally respect domicil in different parts of the same country. 1. We have already seen, that persons who are born in a country, are deemed inhabitants and citizens of that country. Foreigners, also, who reside there for permanent and indefinite purposes, or, as Vattel expresses it (B. I, ch. xix, § 213), who are permitted to settle and stay in a country, are deemed inhabitants. If they are there merely on a visit, or for temporary purposes, they are not deemed inhabitants. 2. A person who resides in a foreign country, for purposes of trade, is deemed an inhabitant of that country by foreign nations; and his character changes with that of the country. In peace he is deemed a neutral, in war an enemy; and his property is dealt with accordingly in prize courts.
(The Venus, 8 Cranch R. 278.) 3. A person may have a national character of his trade, although his domicil be in a different country. Thus, if he be allowed to engage in the trade exclusively belonging to the subjects of an enemy's country, he will, so far as respects that trade, be deemed an enemy trader, and his property will be liable to condemnation as such, though his own domicil be neutral. So, if he is the owner of a plantation in an enemy's country, the produce thereof will be liable as prize in the same manner. So, if he be a partner in a house of trade in an enemy's country, his property in the partnership will be deemed the property of an enemy. (9 Cranch, 191; The Vigilantia, 1 Rob. R., 14, 15; The Phœnix, 5 Rob. R., 20; The San Jose Indiano, 2 Gallison's R., 268.) 4. A national character, acquired by residence in a foreign country, changes with a change of that residence; and if no other domicil be acquired by the party subsequently, his native domicil reverts; and, in such a case, it will revert as soon as he puts himself in motion to return to his native country, although he has not actually arrived there. But the mere return to his native country does not destroy his foreign domicil, unless there is an intention to abandon the latter. (The Venus, 8 Cranch R., 278, 281; The France, 8 Cranch R., 335.) 5. If a person quits his own country, for temporary purposes, or in public employment, and solely by reason of such employment, his native domicil is not changed thereby. If an Englishman, for instance, should go to Germany in the king's service, or for a temporary purpose, the domicil of his birth would not be changed. But if he entered into the German service, although with a general, indefinite intention to return to England, it would be otherwise. 6. The descent of real estate, such as lands, is according to the law of the place, rei sita. But the descent and distribution of personal estate is according to the law of the place of the owner's domicil. It has been recently doubted in England, whether a British subject can, by a foreign domicil, change the general law of succession, as to his personal estate, existing in his own country. But it is admitted he may change his domicil, in different parts of his own country, and thereby change the succession and distribution of his personal estate. (Curling v. Thornton, 2 Addam's Eccles. R., 17, 19.) 7. A will of personal estate, good by the law of the place where the party
has his domicil, is sufficient to pass all personal estate in any other country. But, if not good by the law of the place of the party's domicil, it is said not to be good to pass personal property in any other country, although otherwise sufficient by the law of the country where the personal property is. (Desesbats v. Berquier, 1 Binney, 336. But see Curling v. Thornton, 2 Addam's Eccles. R. 6, 19 to 25.) 8. Ambassadors and other ministers still retain the domicil of the country which they represent, and to which they belong; and their children, born in the foreign country where they reside, are considered as natives of the country of their own sovereign. It is not so in relation to consuls and other commercial agents. They are considered as having, like other subjects, their domicil in the country where they reside. (Vattel, B. I, ch. xix, § 217; The Indian Chief, 3 Rob. 13, 27; The Josephine, 4 Rob. 26.) 9. Children born upon the sea are generally deemed to be natives of the country to which their parents belong. (See Vattel, B. I, ch. xix, § 216.) The reader who desires further information on the subject
of domicil, is referred to the title Domicile, in Denizart, Collection de Jurisprudence, tom. 6; the same in Encyclopédie Moderne, tom. 10; in Merlin's Répertoire de Jurisprudence; in 2 Domat, 464, B. I, title 16, s. 3, of Public Law; in Digest, lib. 50, title 1, 1. 1 et seq.; and Code, lib. 10, title 39, 1. 2, 4, 5, 7; Code Civil de France, tit. 3, art. 102, &c.; Vöet ad Pand. lib. 5, Priv. Juris., lib. 1, ch. 16; Pothier, Coutit. 1, sec. 90, 91, 92; Bynkershock, Quæst. tumes d'Orléans, Introd. n. 16, 20. In the English and American law, the following references will be found most useful: 229; Somerville v. Somerville, 5 Ves. jr., Bruce v. Bruce, 2 Bosanquet & Puller, Curling v. Thornton, 2 Addam's Eccles. 786; Bempde v. Johnstone, 3 Ves. 195; R. 5; Pottinger v. Wightman, 3 Merivale R. 67; Green's Admiralty Digest, National Character; The Venus, 8 Cranch, 278; Wheaton's Digest, title Prize, iv; Holyoke v. Haskins, 5 Pick. R. 20; Cam bridge v. Charlestown, 13 Mass. Rep. 501; Williams v. Whiting, 11 Mass. Rep. 424; Guier v. O'Daniel, 1 Binney's Rep. 352, note; Elbers v. U. Insurance Company, 16 Johnson's Rep. 128.