CHAPTER II.

DOMICILE.

§ 42. In general. The preceding chapter dealt chiefly with the applicability to an individual, in one territory, of the law of another nation in whose territory he was not actually present and in which the transaction, to which some rule of conduct had to be applied, did not occur.

We shall next consider the possibility of applying the law of a nation, from whose territory the individual has parted, but with which he has not finally severed all relations. The relations retained may be manifested in different forms, such as having preserved a domicile there, or having property, real or personal, under its protection, or both.

§ 43. Problems connected with domicile. The maintenance of these relations with one nation, when the individual is at the same time in another nation, has given rise to a multitude of problems, such as: Whether the validity or construction of contracts and instruments of conveyance is to be determined by the law of the domicile, by the law of the nation where the property is, or by the law of the place where the contract or instrument of conveyance was executed; whether the marital rights of one spouse, in the property of the other, are to be determined by the law of the matrimonial domicile, the law of the domicile of the married pair when the controversy arose,

or the law of the nation where the property in which marital rights are claimed is located; whether the nation of a person's domicile shall provide the rules for the distribution of his property in case of his death intestate, or the nation where he is, or the nation where his property is; whether the validity and construction of his will is to be determined by the law of his domicile, by the law of the nation where his will was made, by the law of the nation where the property is located, or by the law of the nation where he dies. To all of these Conflict of Laws gives an answer. In the investigation and solution of the problem, which of two or more nations is capable, as a matter of international law, of providing the court or tribunal to grant divorces, the domicile is of the greatest importance. See Chapter VI, Section 3, below.

As appears from the problems just stated, the domicile of an individual is an important element in the determination of a number of them. Owing to its great importance, a separate chapter will be devoted to the rules of law applied in determining where one's domicile really is, and when he has succeeded in acquiring a new one.

§ 44. Term "domicile" explained. Courts and law writers have at various times sought to give a definition of the word "domicile." Vattel defines it as "the habitation fixed in any place, with an intention of always staying there." Some courts have modified this by saying that it is the habitation fixed in any place without any present intention of removing therefrom; others have said it is the habitation of an individual at a place accompanied with the intention to remain there permanently, or at least for an indefinite time. The definition most fre

quently referred to is that of Justice Story in his work on Conflict of Laws. He says that one's domicile is "his true, fixed, permanent home, and principal establishment, to which, whenever he is absent, he means to return." In giving a description of the circumstances which create or constitute a domicile, Lord Westbury, in Udny v. Udny (1), said: "Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.' 99

§ 45. Status of domicile is common to all persons. The conception, recognized by the law, that every person maintains a domiciliary status in some nation, is fundamental. As stated by Lord Westbury in Bell v. Kennedy: "Domicile is an idea of law. It is the relation which the law creates between an individual and a particular locality or country. To every adult person the law ascribes a domicile" (2). As personal property, the subject of ownership, is deemed at all times to be in the possession of some one, so a person is at all times deemed to have the relation of domicile toward some nation.

§ 46. Domicile of birth or origin. This conception of the universality of domicile is carried even to infants. Before the age of discretion and the capacity to choose arrives, the individual is deemed by law to have the domicile of the father (3), if he is living; the domicile of the mother, his natural guardian, if he is dead. In Udny v.

(1) L. R. 1 House of Lords (Scotch), 441. (2) L. R. 1 House of Lords (Scotch), 307. (3) Lamar v. Micou, 112 U. S. 452.

Udny (4) the court said: "It is a settled principle that no man shall be without a domicile, and to secure this result the law attributes to every individual, as soon as he is born, the domicile of his father, if the child be legitimate; and the domicile of the mother, if illegitimate. This has been called the domicile of origin, and is involuntary." The domicile of birth persists until a new domicile is acquired. Lord Cairns said in Bell v. Kennedy, above: "The law is, beyond all doubt, clear with regard to the domicile of birth, that the personal status indicated by that term clings and adheres to the subject of it, until an actual change is made by which the personal status of another domicile is acquired."

§ 47. Domicile of choice. The domicile of birth or origin is ascribed to one who is incapable of making a choice. It arises by operation of law and exists entirely independently of voluntary action. This domicile is capable of being abandoned, and, when once lost, according to American law, it can only be reacquired in the usual way of acquiring a domicile. The manner in which a domicile of origin may be lost is by the acquisition of another domicile. The domicile thus acquired, and all subsequent ones, including the domicile a married woman acquires upon her marriage (when the law attributes to her the domicile of the husband), are known as domiciles of choice. It is known as such because it results from the voluntary action of the individual. "Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief

residence in a particular place, with an intention of continuing to reside there for an unlimited time" (5). How an individual may acquire a domicile of choice, what acts and circumstances constitute evidence of the existence of a new domicile, and what do not, are discussed below. § 48. Abandonment of domicile. In the states of the Union, a domicile of origin is lost by the acquisition of a domicile of choice. The rule is the same in England. But by English law a peculiarity is recognized. When a domicile of choice is once abandoned, the domicile of birth or origin reattaches. In Udny v. Udny (6) the court said: "The moment the foreign domicile (that is, the domicile of choice) is abandoned, the native domicile or domicile of origin is reacquired." It permits an abandonment of a domicile of choice without an actual intention to acquire another domicile. In the states, an abandonment of a domicile is insufficient to cause it to be lost and for another to attach. It can only be abandoned by the acquisition of another domicile. This can only be acquired by appropriate acts and an actual intent to acquire it, and is not capable of acquisition merely by virtue of an abandonment of a prior domicile.

§ 49. Domicile cannot be acquired by agent. There are some acts recognized by law that an individual cannot do by an agent or servant. His immediate and personal attention to the execution of the act is requisite to make it effective. Thus, one cannot exercise the elective franchise, the right to vote, by an agent. One cannot execute his will by an agent. Neither can a legislator,

(5) Udny v. Udny, L. R. 1 House of Lords (Scotch), 441. (6) L. R. 1 House of Lords (Scotch), 441.