No. 228. Book 1, part 2, tit. 4, chap. 1. No. 228. A man cannot be without a domicil; at his birth he acquires that of his parents, and this he retains until he gains another by his choice, (a) or by operation of law. By fixing his residence at two different places at the same time, a man may have, for some purposes, two domicils at one and the same time; as, for example, if a foreigner, coming to this country, should establish two houses, one in New York and the other in New Orleans, and pass one half the year in each, he would for most purposes have two domicils. (b) If a man has two places of residence he may elect which shall be his domicil.(c) But it is to be observed that circumstances which might be held sufficient to establish a commercial domicil in time of war, and a matrimonial, or forensic, or political domicil in time of peace, might not be such as would establish a principal or testamentary domicil, for there is a wide difference in applying the law of domicil to contracts and to wills.(d) There are three kinds of domicils, namely: 1, the domicil of origin, domicilium originis vel naturali; 2, the domicil by operation of law, or necessary domicil; 3, the domicil of choice. These will be severally considered. CHAPTER I.-OF THE DOMICIL OF ORIGIN. 228. By domicil of origin, is understood the home of a man's parents at the time of his birth, not the place where, the parents being on a visit or journey, a child happens to be born. The domicil of origin is to be distinguished from the accidental place of birth. (e) (a) 1 Binn. 349, n.; Somerville v. Somerville, 5 Ves. 787; 3 Robinson, 191; Jennison v. Hapgood, 10 Pick. 77; Abington v. North Bridgewater, 23 Pick. 170. (b) Greene v. Greene, 11 Pick. 440. Ves. 750. (c) Burnham v. Rangely, 1 W. & M. 7. See Somerville v. Somerville, 5 (d) Phill. on Dom. xx: Greene v. Greene, 11 Pick. 410; Putnam v. John son, 10 Mass. 488; 4 Wash. C. C. 514. (e) Guier v. O'Daniel, 1 Binn. 349, n.; 2 B. & P. 231, n. No. 229. Book 1, part 2, tit. 4, chap. 2, sec. 1, 2. No. 231. CHAPTER II.-OF THE DOMICIL ACQUIRED BY OPERATION OF LAW. 229. There are two classes of persons who acquire or retain a domicil by operation of law. 1. Those who, being under the control of another, the law gives them the domicil of that other; 2, those on whom the state affixes a domicil. SECTION 1.—of THE DOMICIL OF PERSONS UNDER THE CONTROL OF ANOTHER. 230. Among those who, being under the control of another, acquire such person's domicil, are— 1. The wife. She takes the domicil of her husband. (a) On becoming a widow, she retains it until she changes it, which may be done in two ways; first, by removing to another place, with an intention of fixing her domicil there; secondly, by marrying again, in which case she immediately takes the domicil of her new husband.(b) 2. A minor. His domicil is that of his father, or in case of his death, that of his mother.(c) When his father and mother are both dead, the minor's domicil is in general that of his guardian, but to this there are some exceptions. (d) 3. A lunatic. In general the domicil of the lunatic is that of his guardian, curator, committee or other person who is lawfully appointed to take care of him. In this respect he resembles a minor. But the domicil of such a person may be changed by direction or with the assent of his guardian, either express or implied.(e) SECTION 2.-OF THOSE ON WHOM THE STATE AFFIXES A DOMICIL. 231. It is but reasonable that a man who serves (a) Greene v. Greene, 11 Pick. 410. (b) Adams' Eccl. R. 519. (c) Somerville v. Somerville, 5 Ves. 787; School Directors v. James, 2 Watts & S. 568; Parsonfield v. Kennebunkport, 4 Greenl. 47. (d) School Directors v. James, 2 W. & S. 568. (e) Holyoke v. Hoskins, 5 Pick. 20. No. 232. Book 1, part 2, tit. 4, chap. 3. No. 233. the public, and is compelled for this purpose to change his place of residence, should not on this account lose his domicil; for this there is a double reason, first, that the public should be better served; and secondly, because the officer did not intend to abandon his old domicil, but left it animo revertendi. 232. Persons who thus retain their domicil may be classed as follows: 1. Public officers whose temporary duties require them to reside at the capital, as the President of the United States, the several secretaries, etc. 2. American ambassadors and consuls who are compelled to go abroad in order to fulfil the duties of their appointments. And this privilege extends to their family or suite. 3. Officers, soldiers and marines of the United States do not lose their domicil, while thus employed. 4. A prisoner does not acquire a domicil where the prison is located, nor lose his old, because there is no intention on his part to do so. CHAPTER III.-OF THE DOMICIL OF CHOICE. 233. The domicil of origin is retained until another is acquired by the act of the party, or by operation of law. In order to acquire a domicil of choice, there must be an actual removal with an intention of residing in the place to which the party has removed. (a) As soon as the removal is completed, with such intention, the new domicil is acquired, and the old one is lost.(b) A mere intention to remove, unless such intention be carried into effect, is not sufficient to operate the change.(c) When a man changes his domicil and gains another, and afterward returns to his original domicil with an (a) Jennison v. Hapgood, 10 Pick. 77; Cooper v. Galbraith, 3 Wash. C. C. R. 546. (b) 3 Wash. C. C. 546; Wilton v. Falmouth, 3 Shep. 479. No. 234. Book 1, part 2, tit. 5. No. 234. intention to reside there, his original domicil is at once restored. (a) TITLE V.-OF ABSENTEES. 234. Having treated of the domicil, it is proper to consider an absence from it, and its effects. The law watches with care the rights of a man during the whole of his life, and even before his birth, while in ventre sa mère. It is to be regretted that in general it is so loose on this important subject, and that the questions which arise are to be decided frequently by the opinion of the judges, unaided by any statutory provision. By absence, is sometimes meant that a person is not at the place of his domicil, yet his place of residence being known, or news or information having been received from him, his existence is not uncertain. But in a more confined and more technical sense, absence signifies that the residence of the person, who is not at the place of his domicil, is unknown, and that, for this reason, his existence is doubtful. It is in this last sense that it is here considered. When a person has been absent for a long time, unheard from, the law will presume him to be dead: it has been adjudged, that after twenty-five years; (b) twenty years; in another case, sixteen years ;(c) fourteen years; (d) twelve years; (e) and seven years,(ƒ) the presumption of death arises. It seems to be agreed, that after an absence of seven years, without being heard from, the presumption of death is sufficient to treat the absentee's property as if he were dead; though, like every other presumption, this may be rebutted by showing that the absentee is alive.(g) (a) Miller's estate, 3 Rawle, 312; Gallis. 274, 284; 5 Rob. Adm. R. 99. (b) Dixon v. Dixon, 3 Brown, C. C. 510. (c) Mainwaring v. Baxter, 5 Ves. 458. (d) Miller v. Beates, 3 S. & R. 490. (e) King v. Paddock, 18 John. 141. (f) Loring v. Steinman, 1 Metc. 204; Burr v. Sim. 4 Whart. 150; Brad ley v. Bradley, 4 Whart. 173. (g) 1 Phil. Ev. 159; Smith v Knowlton, 11 N. H. Rep. 191. No. 235. Book 1, part 2, tit. 6. No. 236. In consequence of this absence and presumed death, administration will be granted on his estate, and guardians may be appointed to his children; his property will vest in his heirs, subject to be divested by proof that the absentee is alive; and his wife may marry without being guilty of the crime of bigamy; (a) but upon his return he has the choice of retaking his wife, or abandoning her to her new husband. (b) TITLE VI.-OF MARRIAGE. 235. Marriage owes its institution to the law of nature, and its perfection to the municipal or civil law. It is considered in this country as a civil contract simply, and not, as in some countries, a sacrament. As an institution established by nature, it consists in the free and voluntary consent of both parties, and in the reciprocal faith which they pledge to each other. As a civil contract, it not only requires the free consent of the parties, but also that that consent shall be lawful, that is, conformable to the laws of the state where the contract takes place. 236. Viewed in this light, marriage is a contract, made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, unless it shall be lawfully dissolved within that time, in the union which ought to exist between husband and wife, for the purpose of perpetuating their species, to assist each other, and to share a common destiny as to the good or evil which shall happen to them. By the terms free man and free woman, here used, are meant, not only that they are free, and not slaves, but also, that they are clear of all bars to a lawful marriage.(c) (a) By the English Stat. 1 Jac. I., C. 1, the wife is exempted from punishment, if she marry after an absence of seven years; and the principles of this statute have been adopted in the United States generally, though the time is not always the same. (b) Kenley v. Kenley, 2 Yeates, 207. (c) Shelf. on M. & D., C. 1, S. 1; Dig. 23, 2, 1; Ayl. Parer. 359; Stair's Inst. tit. 4, s. 1. |