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The Pamphlet Collection of Sir Robert Stout: Volume 43

The Law of Domicil

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The Law of Domicil.

Every person is subject to some particular system of law, by which he is more or less exclusively bound. The necessity of this will be more obvious when we view man, first, as to his commercial relations; second, as to his taxes; and, third, as to the succession to his estate on his death.

As to commercial relations, there are many cases, in this connection, in which it is important to determine the law with which an individual may be viewed as identified. A note is payable to me, for instance, but on its face no specific place of payment is designated. The presumption, in such case, is that the law by which the mode of payment is settled is the law in which I am myself enveloped. So, also, may it be inferred as to moratory interest flowing from me, when no other law is specified by which such interest may be governed. So, if I be an insurer, as to policies issued by me; or, if I be a banker, as to obligations issued by me. In default of other modes of discovering the law binding such cases, jurisprudence selects the law to which I am subjected myself.

So, in a still higher degree, is it with taxes. A man cannot, on any common principles of justice, be taxed for the same subject-matter by two independent sovereignties. He cannot, therefore, be taxed as to his income, or as to his person, or as to his estate, by more than one of the states of our American Union, although a contrary practice has, as to personal property, occasionally been resorted to. He cannot be taxed by both the United States and a foreign country; for, if he could, all the nations in the world, who could get hold either of him or of his property, could come down on him, and universal commercial ruin would ensue. In reference to taxes, therefore, even more fully than in reference page 4 to commercial obligation, each person must be viewed as subject to some one particular law, by which alone he is to be governed. This law, indeed, may involve a series of successively subordinate jurisdictions. Thus, subordinate to the federal government is the state, and subordinate to the state is the town; and these may, each in its sphere, tax the same person. But two governments of equal rank cannot both make the same person individually liable for personal taxes. Therefore, a man can be personally taxable only in one town in Massachusetts, or in one state in the American Union, or in one empire among the great powers of the world. And there must be some test, in cases of conflict, to determine to which claimant the taxes are to be paid. This test is supplied by domicil. Real estate and, according to the better opinion, personal assets are taxable by the law of the place where they are situated. But income taxes, poll taxes, and taxes on debts payable (without local security) to the creditor at his domicil, are settled by the lex domicilii.

So, still more strikingly, is it the case in the descent of estates. Few of us can be sure where we will die. Even those who have resisted, in youth, the dislodging power of enterprise, are apt, when their life is closing, to wander listlessly abroad in the restless languor of old age. New countries, in fact, are populated by emigration, and old countries renovated by emigration's reactions. Europe sends us its surplus populations to form our new families, whose object is to make money, and these new families, when they become old, go to Europe to spend the money so made. Domestic discomfort, also, has its share in producing these migratory propensities. Europe, it has been said, sends us our cooks, and our cooks send us to Europe. But, whatever may be the cause, the tendency to travel is almost universal; and those who do not travel to make money, travel to spend it. Hence it is that the place of a man's death is far from being universally the place of his home, or of his business. Such being the case, it is of much moment to us to determine whether the property we leave is to be sequestered by some foreign state—to pass through devious channels to objects page 5 which we did not intend, or whether it is to be placed in the custody of laws with which we are familiar, and of guardians whom we may elect. There is nothing, in the chances and changes of life, in which, as has been just seen, there is greater likelihood of a conflict of laws. And yet there is no subject as to which we must be more anxious to prevent, while as yet we can, the occurrence of such a conflict. This can be done only by agreeing, internationally, upon a common arbiter, by which a just, a universal, a peaceful, and a pre-ascertainable result can be reached. And this arbiter is the lex domicile.

We have thus noticed three personal relations as to which there is constant likelihood of conflict, and as to which, therefore, it is important to have some common test, internationally acknowledged, by which we can determine the applicatory law. These relations, to recapitulate, are, first, business in general, so far as concerns contracts with others; second, taxation; third, succession after death. What test, therefore, is there, of international acceptance, which we can adopt to determine collision on these topics ? Let us glance, in turn, at the tests which have been at different times suggested, closing with that which alone has a philosophical basis, and which has secured international assent, showing, as we proceed, that domicile affords the only just arbiter.

First. Can Present Residence be such a Test?—If so, a man doing business temporarily in Boston, no matter how settled his permanent abode might be elsewhere, might be subject to Massachusetts law. Yet this would be only during his residence; and as soon as his residence shifts, the applicatory law shifts. Supposing, for instance, that he leaves Boston at noon, by the Shore Line, for New York. In this case, independently of the series of local municipalities through which he rushes, and which in rapid succession permeate him with their respective judicial atmospheres, he is, in turn, subjected to four sovereign jurisprudences: Massachusetts, Rhode Island, Connecticut, and New York. If he have a note payable, with no designation of the place of payment, then this note, as he moves—if mere residence be page 6 the test—changes its legal hue at each boundary, and becomes, as to some of its incidents, substantially a new paper three times in an afternoon. This, however, would be as destructive to business as it is absurd. Then, again, the place we may happen to be in, at any particular time, is the result often of accident, determined sometimes by negligence, sometimes by providential dispensations which we cannot control; and it would be as unphilosophical as pernicious to make our most solemn engagements and dispositions of property depend on contingencies so arbitrary. Hence it is that by no civilized nation is mere residence regarded as the test by which the law, in cases of conflict, can be determined.

If residence must be rejected, so must, a fortiori, nationality, Nationality cannot apply as between the sister states of the American Union, each of which has a separate jurisprudence, while the oath of allegiance is to the federal government alone. Again, the right of expatriation is now by treaty acknowledged by the great powers of Christendom; and expatriation implies a voluntary divesting of one nationality before the full obligations of a second have matured. Neither residence nor nationality, therefore, can be invoked to supply the missing test.

But the need has been met by the adoption, by the consent of jurists of all nations, of domicil, as supplying, so far as concerns personal status, the applicatory law. Domicil, in some cases, interprets a man's contracts; domicile always determines his personal taxes; domicil always directs his succession. What, then, is domicile ?

By the American courts it has been substantially defined as a particular place adopted by a person as his permanent residence, to be retained by him, as such, for an indefinite period of time. It is not necessary, as will hereafter be seen, that this domicile should be one in which he is invested with political rights; nor need it be his corporeal residence at a given period of time, for he may leave it for years, and yet retain it as domicile, if he have the intention of returning; nor need he be even a citizen of the country in which domicile is page 7 claimed, for he may have a domicil before he is naturalized. But it is essential that such domicil should be either impliedly or expressly adopted by him, and occupied as his permanent residence, to be indefinitely retained by him. And this definition has been accepted substantially by the whole civilized world.

Such being the definition of domicil, there are several questions connected with it which will now be examined, as follows:

First. Domicil by Birth.—By the Roman law, legitimate children have the same domicil as their father. It was open to them, however, subsequently to elect another domicil, upon which the first ceased to exist. But until they were competent to execute such choice, and actually executed it, their domicil followed that of their father in whatever changes he might make, provided they remained members of his household. The modern law differs from the Roman, in this respect, as follows: Origo, in the old Roman sense, is now obsolete. The modern idea of origo simply conveys the legal fiction that a child is domiciled, at his birth, in the place of his father's domicil. This form of origo (descent, Herkunft) fixes alike the jurisdiction that attaches to the child and the legal relations with which he is invested. To this state several modern civilians have applied the term domicilium origins, and although this expression involves an absurdity according to the Roman law, it rests upon a natural hypothesis in our own. It simply means: "This was a domicil acquired, not by choice, but by birth."

In England it has recently been held that there can be no change of domicil during infancy, and that the lapse of seven years after the attainment of majority cannot be regarded as affording a period sufficiently long to establish a change of domicil, in the face of any expressed intention to change.1

In the United States legitimate children accept the domicil of their father. A foreign born child of a domiciled city page 8 zen of the United States, however, has a double allegiance, and, on reaching maturity, he has the right to elect one allegiance and repudiate the other. And such election is final.2

Illegitimate children inherit, as a rule, the mother's domicil, irrespective of the place of birth.3 Under those codes, however, which give to the father the power of legitimating an illegitimate child by acknowledgment, the father's domicil, after such acknowledgment, followed by adoption, must prevail.

Second. Domicil and Nationality.—On this topic the following rules may be regarded as settled:
(a.)Domicil and nationality are not convertible terms. There may be domicil without nationality, and nationality without domicil. Thus, a German who emigrates with his family to this country, intending to make his permanent home on our soil, loses his German domicil and acquires an American as soon as lie takes up his abode among us, though he may take no steps to become an American citizen, and, indeed, before he has had an opportunity to take such steps. So, on the other hand, an American citizen may acquire a domicil in Europe without abandoning his American nationality. This is peculiarly the case with merchants, who frequently, while retaining their national ties of allegiance, acquire a commercial domicil in foreign lands. So, also, in a still stronger sense, is it in relation to taxes. We do not hesitate, for instance, to tax, as domiciled among us, a French merchant who may, nevertheless, decline to view himself as an American citizen; may resolutely cling to his French allegiance; and may always express an intention of returning to France. Nor is it likely that our courts will hesitate to apply the same rule to the Chinese. They are a thrifty race, many of whom, in the course of time, may acquire large fortunes under the protection of our laws. At the same time they decline, as a class, to accept our nation- page 9 ality, and they adhere, with religious pertinacity, to the determination of returning, before death, to their native land. Are such men, living and growing rich under the shelter of our flag, to be relieved from taxation ? Are they to be treated, as is the case with other undomiciled strangers, as still clothed with the legal status assigned to them by their native land, and entitled, when among us, to avail themselves of the privileges of that status? This is one of the undetermined questions of the future. But when it arises I cannot but believe that the decision will be that, as there may be domicil without nationality, so the obligations of domicil must be held to attach to the Chinese who take up their permanent abode on our shores, no matter how solemn may be their determination ultimately to return to their own land, or how severely they may maintain among us the distinctiveness of their Chinese nationality.

We must also remember that, when there is no other claim to nationality, that of domicil, or even of a long residence, may decide. It should be observed that there may even be nationality without naturalization. That naturalization is not essential to citizenship has been established in the United States by many precedents. When Texas was annexed, in 1845, its citizens became citizens of the United States by force of treaty; and such was the case with the treaty with Spain, annexing Florida, in 1819, and the treaty with France, annexing Louisiana, in 1803. The same rule applies to the late annexations of Savoy by France, and of Alsace by Germany.

In a number of our states foreigners are admitted as citizens before they are naturalized as citizens of the United States; and, so far as concerns the right to enjoy state privileges, this was held to be constitutional in the Dred Scott case. A country may decline to pass naturalization laws, yet in such countries we can readily conceive of emigrants acquiring nationality; and so as to bona fide settlers in the United States, in the period between their declaration of intention and their final naturalization.

For two reasons the old feudal idea of the perpetuity of page 10 the nationality of birth, and, a fortiori, the perpetuity of the domicil of birth, must be now viewed as exploded. In the first place, a sovereign who permits his subject to emigrate relinquishes all claims of sovereignty over such subject. In the second place, recent treaties between the great civilized powers of Christendom recognize the right of expatriation, and renounce the claim of perpetual allegiance.

Third. How Domicil may be Changed.—A domicil once accepted is not to be viewed as divested by mere absence, no matter how long such absence may continue. Of this the most striking illustrations are those of merchants or factors in foreign ports; of officers in foreign service; of seafaring men; and of political refugees, whose return to their native land is temporarily barred.

"With regard to the domicil of birth," said Lord Cairns in a late case, "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 domicil is acquired."4 The same rule may be applied, generally, to domicil by election or operation of law.

"The animus to abandon one domicil for another," said Lord Curriehill in a Scotch case,5 "imports an intention, not only to relinquish those peculiar rights, privileges, and immunities which the law and constitution of the domicil confer—in the domestic relations, in purchases and sales, and other business transactions, in political or municipal status, and in the daily affairs of common life—but also the laws by which succession to property is regulated after death. The abandonment or change of a domicil is, therefore, a proceeding of a very serious nature, and an intention to make such a change requires to be proved by a very satisfactory evidence." Intent is essential to a change of domicil, and unconditional intent must be substantially proved. And it has been ruled by Vice-Chancellor Wigram that the evidence necessary to support the intention must be either page 11 express, or such as to show that, if the question had been formally submitted to the party whose domicil is in dispute, he would have declared his wish in favor of a change. Such an intention must be either shown to have actually existed in the mind of the party, or it must appear that it was reasonably certain it would have existed if the question had arisen in a form requiring a deliberate and solemn determination.6

When, however, an old domicil is definitely abandoned, and a new one selected and entered upon, "length of time is not important; one day will be sufficient, provided the animus exists."7 It is important to observe, especially in reference to emigrants to the United States, that, when the point of destination is not reached, domicil may shift in itinere, if the abandonment of the old domicil and the setting out for the new are plainly shown.8 A constructive residence may on this plan give domicil, though an actual residence may not have begun.9 Settlement, however, whether actual or constructive, is necessary to domicil.10 But it is enough to give the new domi- page 12 cil that the party should reside in it with the intention of remaining indefinitely. In such a case it is not necessary that there should be the purpose of technically permanent residence.11

Much discussion has been had on the question whether, when an elective domicil has been abandoned, that which was original revives. Judge Story earnestly advocates such revival;12 and to the same effect is the decision of a Scotch court13 and of the supreme court of Tennessee.14 Mr. Westlake explains and vindicates the old doctrine by saying,15 it "is commonly, though somewhat improperly, cited by the phrase, 'native allegiance easily reverts,' and its chief application has been in the prize courts. The liability of private property to warlike capture at sea has always depended, not merely on the nationality, but also on the domicil of the owner; or it may be said that, for this purpose, domicil is the criterion of nationality. The motive, doubtless, lay in the assumption that the benefit of trade mainly accrues to that country from the ports of which it is carried on; whence only an actually subsisting residence for commercial objects could afford protection to the owner's property as against his nationality, for when such residence was discontinued, nothing remains to take the case out of the general principle which exposed enemy's property, as such, to capture. With these considerations were combined the respect paid to the place of birth by the feudal principle of allegiance, and the recognized rule of international law, that a state to which allegiance has been transferred has not the right to protect the citizen against his former government, if by his voluntary act he again places himself within its power."

Yet it is important to remember that, whatever may be the reasons for the adoption of this doctrine of the revival page 13 of original domicil, when an elective domicil has been abandoned, it is inconsistent with the great body of the cases which place the adhesiveness of the elective domicil on the same basis as that of the original. Even by those holding to revival of domicil it has been repeatedly admitted that, when an elective domicil is actually acquired, it continues until a new domicil is definitely assumed. Sir John Leach, always rapid in arriving at a necessary conclusion, tells us that the same evidence is required to prove the resumption of the old domicil as the acquisition of one that is new;16 and, however this may be, we have an express decision of the Connecticut court of errors, that the abandonment of the elective domicil has no effect in reviving the original.17

Nor, in a question of this class, are we at liberty to keep out of view the test of policy. The consequences in the United States would be serious should the affirmative of this question be maintained. Emigrants come to us largely from countries subject to the modern Roman law, and make their domicil at their first port, often only to abandon it for another and then another, until they reach a home which affords them a convenient settlement. If we hold that on each abandonment they renew their original domicil, then their property and their persons would be frequently placed under the purview of a law utterly foreign to that which prevails in the country to which they emigrate. A German, for instance, abandoning a domicil in New York, in order to seek one, as yet undetermined, in the Northwest, would, as soon as he leaves New York, subject himself to the Roman law of marital community, thereby escaping the English common law of dower and curtesy; would sometimes, from being of full age, become a minor; would become sometimes incapable of any hypothecation of property without delivery, page 14 of possession; would subject himself to his native municipal burdens; and would throw his estate into foreign channels of succession. Such consequences are not to be tolerated; and yet such consequences necessarily flow from the position that native domicil revives on every abandonment of acquired domicil. Our wisest course is to reject this doctrine, and to return to that of the continuance of domicil in general, native or acquired, until a new domicil be secured.18

Fourth. How Change of Domicil is to be Proved.—I. Recitals.—It is a familiar principle that recitals of domicil in deed or will are not conclusive, but may be rebutted by proof that the actual domicil was elsewhere.19 Recitals of domicil, in fact, are often inserted by a conveyancer according to his own notions, or according to what may suit a passing whim of the party. As a matter of every-day practice, also, persons having several residences are apt, in deeds relating to either, to have the local residence recited. The party's actual domicil, however, can be in only one of these residences, and it may, perhaps, be in none of them. Nor is this all. Local law may prescribe certain recitals, as in the Marquis de Bonneville's case, where Sir H. Jenner said: "I am not inclined to pay much attention to the descriptions of the deceased in the legal proceedings in France, for it may have been necessary, as the proceedings related to real property, that he should describe himself as of some place in that kingdom."20 If it be argued that the French courts attach much weight to this species of evidence,21 the answer is that the recitals appealed to in the French cases are principally those which occur in notarial acts, dictated by the party himself, and often verified by his oath.

II. Declarations.—Declarations preparatory to naturalization, under the present English and American statutes, are page 15 entitled to much weight as indicating intention. Even informal declarations of a person changing his residence, when accompanied with actual change, are always admissible to show the intent.22 It has, however, been held that mere unexecuted intentions are inadmissible,23 and even if this strong view be not taken, oral expressions indicative of an intention to change, if unaccompanied by actual removal, are so vague, and often so carelessly uttered, and so readily misunderstood, that they are entitled to very little credence.24 Unexecuted intentions, however, may be of importance, when they consist of statements of a person in a foreign country that he is not settled permanently in such country, but that he expects to return to the prior domicil which he regards as his home.25

III. Exercise of Political Rights.—Civilian jurists unite with our own in holding it important, in this relation, to determine the site of political rights: "Dictæ expressage declarationi domicile constituendi equipollent illa, si quis in civitate aliqua jus civitatis das Bürgerrecht impetraverit et ibi habitaverit, vulgo da einer verburgert oder Brbschuldigung geleistel haüsslich und beständig gessesen ist. Requtritur autem copulative, ut quis ibidem non solum jus illud impetraverit, sed etiam actualiter habitet."26 Menochius also writes, after quoting other civilians, "et idem ego ipse respondi, in cons, 39O, etc., dixi civem hunc non sustinentem onera esse improprie civem et secundum quid;" and he adds the authority of other civilians, and the decisions in the Rota Romana, "qui scripserunt civem originarium aliquem non esse, nisi parentes ibi page 16 domicilium contraxermt et civitatis numera subierint; ita et. olim apud Romanos civis Romanos dicebatur is, qui etsi natus esset Romæ altamen domicilium Romæ in ipsâ urbe contraxîsset ac qui tribum et bonorum potestatem adoptus esset."27 Under the old European systems, also, when political privileges were rare, and mostly had a feudal relation, the acquisition or acceptance of such privileges was viewed as connecting their possessor with a special territory. The domicil of the serf was in the land to which he was; the domical of the lord was in the land of which he was suzerain.

It was otherwise when political privileges became more common, and when they were annexed rather to the person than the soil. A man could have but one domicile, yet in England, in some parts of the Continent, and in Virginia, under the old system, he might vote at several polls. Suffrage now is regarded, under a wide and equal extension, as a personal right which may be exercised in any particular state of a general federation, only a few weeks' or months' special residence being required. In correspondence with this extension of suffrage, the presumption that the place of suffrage is the place of domicil has lost strength, and, where the right to vote is granted on brief and transient residence, the presumption arising from voting is easily rebutted by proof of actual domicil elsewhere.28

But the exercise of political franchise is not to be confounded with that deliberate surrender of one nationality and acceptance of another, which is marked by expatriation and naturalization. As the presumption of permanent page 17 residence to be deduced from voting is but slight, that to be drawn from expatriation and naturalization is of the strongest character, and amounts almost to conclusive proof. Even before expatriation was legalized by the government of Great Britain (as it has been by the statute of May 12, 1870), naturalization in another country was viewed in the English courts as very strong proof of transfer of domicil:29 Now, however, such expatriation and naturalization must be viewed as establishing a case of transfer of domicil which it would require extraordinary evidence of continuous inconsistent domicil to overcome.

IV. Payment of Taxes.—No strong inference can be drawn from payment or non-payment of taxes, unless in the case of property or income taxes of considerable amount.30 Yet here must we revert to the distinction already noticed. In a federal government, such as the United States, where an income tax is payable to the federal treasury, it may be a matter of indifference to a person taxed whether he pay in Maine or in Georgia; and after he has changed his domicil from the one state to the other he may continue, through his agent or otherwise, to pay such tax in the abandoned state. We cannot make this inference as to a tax payable to a state treasury. If this tax is considerable, we cannot, as has been previously hinted, presume that the party charged would pay when no longer liable to do so. Payment of taxes, therefore, in such cases, affords a strong presumption that the party believed his domicil to be in the state in which the taxes were paid.

V. Duration of Stay.—In this relation we may accept two propositions: First, no matter how long residence may be, it does not constitute domicil unless there be an intention to remain for an indefinite period; and, secondly, that if there be such a bona fide intention, executed by actual removal, or attempted removal, domicil may be constituted by a stay of a single day.

How Far there may be a Double Domicil.—A leading page 18 German authority tells us that a person may municipally have distinct domicils in places in which his residence is equally established, using each as a centre of his business and legal relations, and, when needed, actually dwelling in each31 In the Roman law, so far as the abstract question of subjection was concerned, and so far as related to municipal burdens and local jurisdiction, this position holds good. Another result, however, was reached when the issue was as to what jurisdiction should impress upon the individual his peculiar legal type. According to the Roman law, domicilium yielded precedence in this respect to origo (municipal citizenship, Burgerrecht); and, when there were several titles of the latter class, the earliest prevailed.32

That a man can have two domicils is thus emphatically denied by Chief Justice Shaw33 "The supposition that a man can have two domicils would lead to the absurdest consequences. If he had two domicils within the limits of sovereign states, in cases of war, what would be an act of imperative duty to one would make him a traitor to the other. "But it is a serious objection to the able argument of which this is part that it not only blends domicil with allegiance, but overlooks the fact that domicil, in the view of those who hold that it may be cumulative, is capable of several degrees. It is admitted on all sides that a person can have but one testamentary domicil—i. e., a domicil determining the law of the devolution of his property on his death. Yet, even by those courts by whom this position is most rigorously applied, it is maintained that domicil may be established, for the purposes of taxation or of divorce, on proof much less stringent than would be required to establish a testamentary domicil.

Thus, of this distinction we have a conspicuous English illustration in a case where it was ruled that a person may retain a foreign domicil for many purposes, and yet be domiciled in England so as to give jurisdiction to the court of divorce34

Of American cases we have an abundance to show that a page 19 matrimonial domicil may exist on evidence clearly insufficient to establish a domicil for the purposes of succession. The prize rulings of Lord Stowell, also, whatever may be their present authority, instruct us that it has been held in England that a commercial domicil can be acquired in a foreign land when the original political domicil remains unchanged.35 So, also, we are told by the judicial committee of the privy council that there is "a wide difference in applying the law of domicil to contracts and to wills."36 Sir R. Phillimore well says (Vol. iv. 48): "It might, perhaps, have been more correct to have limited the use of the term domicil to that which was the principal domicil, and to have designated:simply as residences the other kinds of domicil; but a contrary practice has prevailed, and the neglect to distinguish between the different subjects to which the law of domicil is applicable has been the chief source of the errors which have occasionally prevailed on this subject. This view coincides with that of Domat37. and of Chancellor Kent,38 who held that, while there "is a political, a civil, and a forensic domicil, a man can have but one domicil for the purpose of succession."39

Political domicil is subject to distinct considerations. For many years the tendency of the English courts was, by implication, to hold that a man can have a plurality of domicils of this class. "Acting on the principle of the indelibility of English allegiance, they maintained in theory that an Englishman and an Englishman's son must retain a political domicil till the tie was dissolved by death. Yet, practically, they were constrained, after the acknowledgment page 20 of American independence and the treaties that sprang therefrom, to acknowledge that a political domicil could also be acquired in the United States. For a while there was an attempt to enforce the theoretic domicil of origin. Personal taxes were to be due from such emigrants; impressment was threatened, and, in some few cases, executed. After the war of 1812, however, impressment was abandoned. The same result was reached as to taxation, in 1845, when the House of Lords, overruling the Scotch court of exchequer, held that legacy duty was not payable by the legatees named in the will of a British subject who had died domiciled in a British colony, though the personal property was locally situate in Scotland, to which the statute extended.40

The naturalization statute of 1870 settles this question definitely, so far as concerns English subjects naturalized in a foreign land. They are declared, by so doing, to have dissolved their relations to the mother country; and their single domicil, therefore, is in their adopted land. But the decision of the House of Lords, just noticed, goes beyond this. So far as concerns personal taxes, which is the main practical relation of political domicil, there is but one domicil. That domicil is the one the party has selected, and which, by residence without the purpose of return, he has acquired. There, and nowhere else, is he liable to be personally taxed. His alienage—i. e., his non-naturalization—does not relieve him from such taxation in the country of his domicil;41 nor is it a bar to prosecutions for political offences against the country of his residence.42 But such change of domicil, though unaccompanied by change of allegiance, relieves him, as has been seen, from personal taxation in his native land."43

Sixth. Conflict as to Domicils.—Cases constantly arise where it is important to decide which of two domicils envel- page 21 opes a particular person in its laws. In our own practice these questions come up most frequently in cases of taxation, when two or more states claim the same person as so domiciled as to be liable to taxation in each. A, for instance, has a colliery business in Nova Scotia, where he spends a month or two in the spring; a summer residence in Newport; a hunting-lodge in Maine, where he goes for recreation and diversion in the fall; and a winter home in Florida, where he tries to escape the cold. Is he domiciled in Nova Scotia, or Rhode Island, or Maine, or Florida, and by which is he personally taxable? And then, again, if he dies, by what jurisdiction is his estate to be distributed ? By what code of law is his personal status to be determined? The answer, of course, is, by the law of his domicil. But then comes the question, what is his domicil? And in answering this question the following points are to be kept in mind:
(a.)Where there are two or more residences, that which the party selects as his domicil will be viewed, all other things being equal, as having the preference.44
(b.)Supposing him, however, to have made no such selection, and supposing the conflict to be between two homes, one in the country and one in the town, then the inclination should be in favor of the home which the party seems himself to have regarded as his permanent abode. In England this is regarded generally to be the town house. But it is otherwise if either house be used only for temporary purposes, and it is in a condition only to be temporarily used.45

We have this distinction thus expressed by Lord Hatherly, when vice-chancellor: "If a party select two residences, in one of which he can reside all the year, whilst in the other his health will not permit him to do so; and he must from the first be aware that, should his health fail him, his days must be passed where alone he can constantly page 22 reside; there is an additional reason for concluding that he regards such place from the first as that which must be his home—a conclusion greatly fortified by his chief establishment being fixed there."46 Such considerations weigh still more strongly in the United States, where the attachment to the country residence of the summer is, on patrimonial grounds, comparatively slight. But, even in this relation, express intent must control.

We must at the same time remember that when there are two residences, the claims of which are in this connection about equal, the earlier may be presumed to be that preferred as domicil.47 But this fades away in the presence of evidence showing that the party, in selecting a second residence, selected it for permanent use. On this distinction, and on this alone, can we sustain a recent ruling of Vice-Chancellor Bacon,48 where a Canadian came to Europe in order to educate his children, and, after living in Paris ten years, proceeded to England, where he remained, selecting, it as a permanent residence, three years longer, that he was to be regarded as domiciled in England, though he sometimes spoke of intending to return to Canada.

In an English case tried in 1870, before Vice-Chancellor James, A., a domiciled Scotchman, married an English-woman, and then, on account of health, left Scotland, where his business relations were established, and resided for ten years in England. After this he returned to Scotland, and remained there for a few months, for business purposes, but was again compelled by ill health to go to England, where, for nearly two years, he was confined in an asylum. He then spent five years in travelling on the continent and in England. At the end of that time he settled at Brighton, and remained there, with his wife, for ten years till his death. His domicil was ruled to be in England.49 Nor does the fact page 23 that a Scotch residence has been retained make any difference, if the conjugal residence and the permanent seat of the family is in England.50 But even to this there is an exception, put with great weight by Sir W. P. Wood, vice-chancellor, afterwards Lord Chancellor Hatherly: "If some particular state of health required the wife to reside in a warm climate not agreeable to her husband, or the like, so that he was obliged to visit his wife away from home, he might still be domiciled at a residence of his own, apart from her, supposing he retains his family with himself."51

(c.) Home, as a general thing, is to be preferred to place of business. It is true that the English prize courts, in the wars with the first Napoleon, thought proper, in order to confiscate the property of neutral merchants trading in hostile countries, to reject this rule, and to hold that American traders sojourning in French ports were domiciled French-men, though the parties so adjudicated upon disclaimed French citizenship, and had families in America whom they visited in places they regarded as their homes.52 But when England has lately found herself in the position of a neutral, her views on this point have undergone a change, and the indications are that Lord Stowell's rulings, as above noticed,. Will be no longer respected.

It is admitted, even by Lord Stowell, that in oriental or barbarous lands no mere mercantile residence confers a domicil. "Wherever," he said,53 "a mere factory is founded in the eastern parts of the world, European persons, trading under the shelter and protection of their establishments, are conceived to take their national character from that association under which they live and carry on their commerce. It is a rule of the law of nations, applying particularly to those countries, and is different page 24 from what prevails ordinarily in Europe and the western parts of the world, in which men take their present national character from the general character of the country in which they are resident; and this distinction arises from the nature and habits of the countries. In the western parts of the world, alien merchants mix in the society of the natives; access and intermixture are permitted, and they become incorporated to the full extent. But in the east, from the oldest times, an inmiscible character has been kept up; foreigners are not admitted into the general mass of the society of the nation; they continue strangers and sojourners, as all their fathers were. 'Doris amare enamore intermisceat undam.' Not acquiring any national character under the general sovereignty of the country, and not trading under any recognized authority of their own original country, they have been held to derive their present character from that of the association or factory under whose protection they live."

These views have since been gradually extended to all cases of merely mercantile residence.54.

As between civilized states and, a fortiori, between coördinate states under the same federal government, as is the case with the United States, the home is, as a rule, to be treated judicially as domicil in preference to the place of business. In a case in which this rule was pushed to its extremest limit, the late Colonel James Fisk was held in New York to be domiciled in Boston, where his wife resided in a house bought by him for her in her own name, and where he occasionally visited, though his place of business had been for years notoriously and conspicuously in New York.55 And however extreme this decision, under the particular circumstances, may appear, we must hold that where a man establishes his family there is his principal domicil.

Even as to unmarried persons, this rule applies in cases- page 25 where they have a family, though with that family their residence is only occasional. "If a man is unmarried," says Judge Story,56 "that is generally deemed the place of his domicil where he transacts his business, exercises his profession, or assumes and exercises municipal duties or privileges." Yet, at the same time, "this," the learned author goes on to say, "is subject to some qualifications;" and he judicially held, in a case tried before him in the circuit court, that a young, unmarried man who had resided with his mother in Providence, but who, at the service of the writ, was engaged as a clerk in his brother's store in Connecticut, making frequent visits to his mother in Providence, was domiciled in Providence.57

In Mitchell v. United States, 21 Wall. 350, Swayne, J., giving the opinion of the court, said: "The place where a person lives is taken to be his domicil until facts adduced establish the contrary. Bruce v. Bruce, 2 Bos. & Pull. 228, note; Bampde v. Johnstone, 3 Ves. 201; Stanley v. Bernes, 3 Hagg. Eccl. Rep. 374, 437; Best on Presumptions, 235. The proof of the domicil of the claimant in Louisville is sufficient. There is no controversy between the parties on that proposition. We need not, therefore, further consider the subject.

"A domicil once acquired is presumed to continue until it is shown to have been changed. Somerville v. Somerville, 5 Ves. 787; Harvard College v. Gore, 5 Pick. 370; Wharton's Conf. of Laws, § 55. Where a change of domicil is alleged, the burden of proving it rests upon the person making the allegation. Crookenden v. Fuller, I Sw. & Tr. 441; Hodgson v. De Buchesne, 12 Moore's P. C. 288 (1858). To constitute the new domicil two things are indispensable: first, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be page 26 the animus to change the prior domicil for another. Until the new one is acquired the old one remains. Whart. Conf., supra, and the authorities there cited. These principles are axiomatic in the law upon the subject. When the claimant left Louisville, it would have been illegal to take up his abode in the territory whither he was going. Such a purpose is not to be presumed. The presumption is the other way. To be established, it must be proved. 12 Moore's P. C., supra. Among the circumstances usually relied upon to establish the animus manendi are: declarations of the party; the exercise of political rights; the payment of personal taxes; a house of residence, and a place of business. Phillim. 100; Whart. § 62, and post. All these indicia are wanting in the case of the claimant."

So, in a late case in Massachusetts, the domicil of an unmarried police officer was held to be in N., where he kept his clothes and resided occasionally, as at a home, expressing himself as being an inhabitant of that town, though he worked and boarded in the town of W.58

One important observation remains to be made as the summing up of the discussion which we are closing. It is impossible to get at the true idea of domicil unless we take into consideration the fact that it is man in his family relations whom it is the dominant policy of the state to preserve. Man as an individual may be well cared for by the state; but no matter what may be the care bestowed on him, he soon, if he is treated as a unit, passeth away as a flower, and is gone, and is no more seen. But man as a link in the chain of a family is continuous, and on the integrity and strength of the family depend the integrity and strength of the body politic. Hence it is that private international law envelopes a man in the jurisprudence to which his wife and children are subject. The jurisprudence in which he places them is that in which he himself is placed. Their home forms the anchorage to which he is judicially attached, no matter how widely and wildly he may wander. He may be absent for a series of page 27 years in a foreign land, yet by the law of his home is he governed, and not by the law of his foreign residence. He is taxed by his home law. His relations as to the three great decisive epochs of life—birth, marriage, and death—are determined by his home law.59

His home, or rather the home of his family, determines the law regulating his personal status, though he may be born when his parents are far distant from that home. His home determines the legal duties and privileges of his marriage, though he may be married in a foreign land. His home gives the law by which his property is to be distributed on his death, no matter how remote from home may be the place in which he dies. It would seem as if the law of nations, in its tenderness for humanity, had summoned, as man's attendant in the most critical junctures of his life, the genius of home, and had given to that genius supreme judicial control. What the lex domicilii, or the law of home, decrees at these junctures, is the law that is final. The reason of this is obvious. It is the family that is to be preserved, for the sake both of the man himself and of the state. The man will be a vagrant, the state will be dissolved, unless the family be preserved; and this preservation of the family is the first duty of the law. And the application is obvious. The sanction which civilized nations have agreed to impose, we, as a nation peculiarly dependent on family purity and integrity for our well-doing, must hold sacred. In treating judicially of the law of domicil, we must in no case forget that, by reason as well as by authority, the law of domicil is the law of home.

Francis Wharton, LL. D.

Cambridge, Mass.

1 Jopp v. Wood, 4 De G. J. & S. 616.

2 Ludlaw v. Ludlaw, 26 N. Y. (12 Smith) 356. See letter from Mr. Seward to Mr.—, Dip. Cor. 1868, pt. 11,935. That an infant follows the domicil of surviving parent, see Ryall v. Kennedy, 40 N. V. Sup. Ct. 347.

3 Whart. Conf. of Laws, § 37.

4 Bell v. Kennedy, Law Rep. 3 H. of L. 307.

5 Donaldson v. McClure, 20 D. 307; and see Jopp v. Wood, 4 De G. J. & S. 616.

6 Douglass v. Douglass, 41 L. J. Ch. 74.

7 See Moorhoase v. Lord, to H. of L. Cas. 272; Munro v. Munro, 7 C. & F. 842; Jopp v. Wood, 4 De G. J. & S. 616; Parsons v. Bangor, 61 Me. 457; Hamden v. Levant, 59 Me. 557; Ross v. Ross, 103 Mass. 575; First: Nat. Bk. v. Balcom, 35 Conn. 351; Moreland v. Davidson, 71 Penn. St. 371; Reed's Appeal, 71 Penn. St. 378; Smith v. Dalton, I Cin. (o.) 150; Daniel v. Sullivan, 46 Ga. 277; Hawkins v. Arnold, 46 Ga. 659, Wood v. Fitzgerald, 3 Oregon, 268. Cragie v. Servin, 3 Curteis, 448. Uno solo die constituitur Comicilium si de volunlate affareat.

8 Sir J. Leach, in Munroe v. Douglass, 5 Madd. 405; Forbes v. Forbes,. Kay. 354.

9 Williams v. Roxbury, 12 Gray, 21. In Fayette v. Livermore, 62 Me. 229,. it was held that a domicil of a woman cannot be changed by a mere intention to move, until actual removal. See, also, Carey's Appeal, 75 Penn. St. 201; Kellar v. Baird, 5 Heisk. 39. In Bangs v. Brewster, III Mass. 382, where a master mariner, in 1867, being domiciled in B., went to sea with his wife, intending to make his home at O., and sent her, in 1868, to O., where she boarded with her father, and in July, 1869, arrived at O. himself, it was held that in May, 1869, his domicil was in O.

10 Munro v. Munro, 7 C. & F. 877; Blunier ex parity 27 Texas, 734 Hill v. Woodville, 38 Miss. 646; Hicks v. Skinner, 72 N. C. 1.

11 sleeper v. Paige, 15 Gray, 349; Whitney v. Sherborn, 12 AlIen, III; Wilbrsliam v. Ludlow, 99 Mass. 587; Whart. Conf. of Laws, §§ 20-24.

12 Story Conf. of Laws, § 48.

13 Colville v. Lander, Morison, 14,963, App.; 5 Madd. 384.

14 Kellar v. Baird, 5 Heisk. 39.

15 Int. Law Art. 40; See Abdy's Kent, 217.

16 Munroe v. Douglass, 5 Madd. 403.

17 First Nat. Bk. v. Balcom, 35 Conn. 351. See, also, Hicks v. Skinner, 72 N. C. I, where it is held that, when domicil of origin is abandoned, residence is the test. So, in Reed's Appeal, 71 Penn. St. 378, it is said that original domicil revives only when there is an intent to return home.

18 In North Yarmouth v. Gardiner, 58 Me. 207, it is held that domicil may be in abeyance.

19 See cases cited in Whart on Ev. § 1097. Gilman v. Gilman, 52 Me. 165; Somerville in re, 4 Vesey, 750; Attorney General v. Kent, I Hurl. & Colt. 12; Curling v. Thornton, Addam's Rep. 19.

20 Curteis' Eco. Rep. 856.

21 See Phil. iv. 174, and cases there cited.

22 Brodie v. Brodie, 2 Sw. & Tr. go; Ennis v. Smith, 14 How. 400; Thorndike v. Boston, I Metc. (Mass.) 242; Kilburn v. Bennett, 3 Metc. (Mass.) 199; Burgess v. Clark, 3 Ind. 250.

23 Bangor v. Brewer, 47 Me. 97; see Whart. on Ev. &11097; and see Moke v. Fellman, 17 Tex. 367.

24 Whart. Conf. of Laws, $63; Phil. iv. 156; Lord Somerville's Case, 5 Vesey, 750; Harvard College v. Gore, 5 Pick. 370; Anderson v. Lanenville, 9 Moore P. C. 325; Hallowell v. Saco, 5 Greenl. 143; The Venus, 8 Cranch. 253.

25 . See Moorhouse v. Lord, 10 H. of L. 272.

26 Tractatio de Domicilio (1663), 27, cited by Phillimore, iv. 175.

27 Lib. VI., Presump. XXX., s. xxiv., p. 1037; Phil, ut supra.

28 Shelton v. Tiffon, 6 How. 163; Easterly v. Goodwin, 35 Conn. 279; Kellogg v. Oshkosh, 14 Wis. 623; Mandeville v. Huston, 15 La. Ann. 281; Folger v. Staughter, 19 La. Ann. 323; Guierv. O'Daniel, 1 Binney, 349, note. In Van Valkenburgh v. Brown, 43 Cal. 48, it was properly ruled that persons not citizens might legally be voters; this was the practice under the North-west Ordinance, which permitted the voting of French and Canadian settlers, not citizens. See Dr. Spear's article in Alb. L. J., 1876, 486. It is otherwise as to Indians with whom there is no treaty. McKay v. Campbell, 2 Sawyer, 118.

29 See Phil. iv. 176, 177; Moore v. Darral, 4 Hagg. 353.

30 Thomson v. Advocate General, 12 Cl. & Fin. 1; see Guier v. O'Daniel, I Binney, 349, note.

31 Savigny, Rom. Recht. viii. § 354.

32 Savigny, viii. §§ 356, 357.

33 Abington v. North Bridgewater, 23 Pick. 170.

34 Yelverton v. Yelverton, I Sw. & Tr. 574.

35 The Ann, Dodson's Adm. Rep. 223; Phil. iv. 51; Wheaton's Int. Law, 159.

36 Croker v. Hertford (Marquis of), 4 Moore P. C. 339. See, also, Thorn-dike v. City of Boston, I Metc. 242; Greene v. Greene, II Pick. 410; Putnam v. Johnson, 10 Mass. 488; Somerville v. Somerville, 5 Ves. 750.

37 L. i. t. xvi. § 6.

38 Lect. 37, § 4, note.

39 See, also, Maltass v. Maltass, 1 Robertson's Ecc. R. 75 Robertson on Personal Succession, 142; Thompson v. Advocate General, 12 Cl. & Fin.; 1 Whart. Conf. of Laws, § 74.

40 Thompson v. Advocate, General, 12 Cl. & Fin. 1.

41 State v. Bordentown, 3 Vroom (N. J.), 192.

42 Whart. Conf. of Laws, § 902.

43 Whart. Conf. of Laws, § 74.

44 The older cases will be found grouped in my work on the Conflict of Laws. Among the more recent cases may be noticed Hampden v. Levant, 59 Me. 557; Moreland v. Davidson, 71 Penn. St. 371; Chariton v. Moberly, 59 Mo. 238.

45 Wharf. Conf. of Laws, § 69.

46 Forbes v. Forbes, Kay, 341.

47 Gilman v. Gilman, 52 Me. 165.

48 Stevenson v. Masson, 22 W. R. 10.

49 Aitchison v. Dixon, Law Rep. 10 Eq. 589; s. c., 39 Law T. (N. S.) pt. 1,705.

50 Forbes v. Forbes, Kay, 341

51 Forbes v. Forbes, Kay, 341. See Exchange Bank v. Cooper, 40 Mo. 169.

52 The Indian Chief, 3 Robinson, 18; The Matchless, I Haggard, 103; The Rendsburg, 4 Robinson, 139; The President, 5 Robinson, 279; The Diana, 5 Robinson, 168. See The Venus, 8 Cranch, 279.

53 The Indian Chief, 3 Robinson, 18.

54 Advocate General (Bengal) v. Ranee Surnomoye Dossee, 9 Moore App. 387; 2 Moore, P. C. C. (N. S.) 22; and see Whart. Conf. of Laws, & 863.

55 Fisk v. Chicago R. R., 53 Barb. 472. See, as a very strong case to this, effect, Graham v. Trimmer, 6 Kans. 230.

56 Story, Conf. of Laws, § 47.

57 Catlin v. Gladding, 4 Mason, C. C. 308.

58 Com. v. Kelleher, 115 Mass.

59 Thus, persons who by the law of their domicil are precluded from contracting a marriage of particular class cannot, by removing from their domicil, contract such a marriage validly. So the converse is true; if their marriage is valid in their domicil, it will be there regarded as valid, though contracted abroad in a place where it is invalid. Medway v. Needham, 16 Mass. 157; Stevenson v. Gray, 17 B. Mon. 193; State v. Kennedy, Sup. Ct. N. C. 1877. See Brook v. Brook, discussed fully in Whart. Conf. of Laws,. §§ 141, 162, 183.