the definition contained in the Roman Code, says: "Such is also the thought of Article 102, when it declares that the domicil of every Frenchman is at the place of his principal establishment, that is to say, at the place which he has made the centre of his affections, of his affairs and habits, the seat, in fine, of his social existence, rerum ac fortunarum suarum summam, at the place where he is established in a manner permanent and durable, with the intention of being there held, of being there attached, of there returning sooner or later whenever he is absent. It must be understood, besides, that this word 'establishment' ought here to receive a very broad interpretation relatively to all the situations so diverse and so varied of which society is composed. The aged servant has his principal establishment in his little solitary chamber, just as the most opulent père de famille in his hôtel or the merchant in his house of commerce. In what place, above all, has he established his fixed abode? Where is found, if I may so express myself, his chief place, having regard to his personal situation? Such is the question of domicil, a question necessarily altogether relative. It is necessary, moreover, not to confound domicil with residence; the one is de droit, the other is de fait. Residence may be assuredly one of the indices of the principal establishment which constitutes domicil, and we say even that the actual habitation is one of the conditions demanded when the question is concerning the changing of it. But it is not the less certain that domicil does not depend upon residence; for it is an effect of the law, a juridical creation, a thing intellectual and abstract; it consists, as we have said, in the moral relation of the person with a certain place where the law has placed the juridical seat of such person, independently of the fact of residence. It is indeed that, above all, which constitutes the utility of this institution; for it has precisely for its object, to determine in a manner regular, fixed, and constant, the domicil of the person apart from his removals, his travels, his residence more or less accidental and transient in other places."

"Domicil consists," says Proudhon," "in the moral relation of a man with the place of his residence, where he has 6 Cours de Droit Français, t. 1, p. 119.

7

fixed the administrative seat of his fortune, the establishment of his affairs. We say 'in the moral relation,' because domicil does not consist in physical existence or in actual residence in a place, but in the attachment contracted by the person for the place chosen for the centre of his negotiations." Demante says: "It is an effect of law which consists in the relation established by law between a person and the place where he exercises his rights." Ortolan says: "Domicil is nothing else than the legal seat, the juridical seat of every person, the seat where he is considered to be in the eyes of the law, for certain applications of the law, whether he be corporeally found there, or whether he be not found there." Marcadé9 remarks: "Domicil is then the legal seat, the juridical seat, of the person. We say the juridical seat; for domicil is not, properly speaking, the house, the material construction; it is a thing altogether ideal, a thing moral and abstract, resulting solely from the creation of the law." And again: 10 "Domicil is the seat, purely moral and juridical, which the law attributes to each person for the exercise of the rights existing for or against such person."

§ 64. Definitions of Savigny and Calvo. - Savigny1 thus defines domicil: "That place is to be regarded as a man's domicil which he has freely chosen for his permanent abode, and thus for the centre at once of his legal relations and his business. The term permanent abode, however, excludes neither a temporary absence nor a future change, the res

7 Cours Analytique, t. 1, p. 197.

8 Explication des Institutes, t. 1,

no. 80, p. 402.

that the words "and thus for the centre at once of his legal relations and his business," "appear to be superfluous,

9 Explic. du Code Nap. t. 1, no. 309. since they point to a consequence of 10 Id. no. 334.

1 System, etc. vol. viii. § 353 (Guthrie's trans. p. 97). According to Dicey (p. 333): "This definition brings into prominence exactly the point neglected by most writers, viz., the element of choice or intention." But in the opinion of the writer it is just here that the definition fails as a general definition of domicil, inasmuch as it omits to provide for domicil attributed by law. (See infra, § 68.) Dicey objects, however,

the place being a permanent abode." He objects also that its terms might be taken to imply that a new domicil may be gained before the actual transfer of bodily presence to the place of contemplated permanent abode, and further that the words "freely chosen might be understood as excluding a change of domicil where the change of residence is in consequence of some degree of moral compulsion, such as motives of economy, health, and the like.

ervation of which faculty is plainly implied; it is only meant that the intention of mere transitory residence must not at present exist." One of the latest definitions is that of Calvo,2 who, though a South American diplomat, may be classed among the continental jurists. He says: "In its juridical acceptation, domicil is the legal seat where a person is presumed to be in contemplation of the law and for the application of the law. According to this definition, domicil would be an abstraction purely intellectual, created solely by the law, an effect of the law consisting in the relation established between the person and the place where he exercises his rights. In a usual and more practical acceptation, is meant by domicil the place itself, where a person has established the seat of his affairs and the centre of his interests."

§ 65. American Definitions: Story; President Rush; Parker, J., in Putnam v. Johnson. - Story's definition, which has been so often and so deservedly quoted, is as follows: "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 his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning (animus revertendi)." President Rush, in the leading American case of Guier v. O'Daniel,2 defines domicil "to be a residence at a particular place, accompanied with positive or presumptive proof of continuing it an unlimited time." This definition has been much quoted, and with general approbation. It is highly commended by Calvo, is repeated by Phillimore with a slight modification, and through the influence of his authority has produced some effect in the English cases.

The definition of Parker, Justice, in Putnam v. Johnson,

2 Dict. de Droit Int. Pub. et Priv.,

verb. Dom.

1 Confl. of L. § 41.

21 Binney, 349 n.

8 Manuel de Droit Int. Pub. et Priv.

$197.

Law of Domicil, no. 15, p. 13; Int. L. vol. iv. no. 49.

5 10 Mass. 488, 501.

in the slightly inverted form in which it has been given by Story, has also been received by many jurists in this country as accurate. In that case the learned judge, commenting upon the definition of Vattel, says: "The definition of domicil, as cited from Vattel by the counsel for the defendants, is too strict, if taken literally, to govern in a question of this sort; and if adopted here, might deprive a large portion of the citizens of their right of suffrage. He describes a person's domicil as the habitation fixed in any place, with an intention of always staying there. In this new and enterprising country it is doubtful whether one half of the young men, at the time of their emancipation, fix themselves in any town with an intention of always staying there. They settle in a place by way of experiment, to see whether it will suit their views of business and advancement in life, and with an intention of removing to some more advantageous position if they should be disappointed. Nevertheless, they have their home in their chosen abode while they remain. Probably the meaning of Vattel is that the habitation fixed in any place, without any present intention of removing therefrom, is the domicil. At least this definition is better suited to the circumstances of this country." It is to be remarked, however, that Putnam v. Johnson was a case of municipal domicil, and it will be seen further on in this work that the definition there given by Parker, Justice, is not applicable to cases of national or quasi-national domicil. It is believed that this distinction has been overlooked by many of the judges who have sought to apply this definition with sometimes unfortunate results.

The Louisiana Code,6 following the French Code, declares: "The domicil of each citizen is in the parish wherein his principal establishment is selected." An opinion of the Louisiana Supreme Court, in applying this definition, defines further thus: "A man's domicil is his home, where he establishes his household and surrounds himself with the apparatus and comforts of life." Wharton & defines domicil as "a residence acquired as a final abode."

6 Art. 42 (38). It further defines the principal establishment as "that in which he makes his habitual residence."

7 Tanner v. King, 11 La. R. 175, per Carleton, J.

8 Confl. of L. § 21.

§ 66. Definitions of English Judges: Kindersley, V. C., in Lord v. Colvin; Lord Wensleydale in Whicker v. Hume. — The English judges have, with several exceptions, studiously avoided defining domicil. Kindersley, V. C., who has decided more cases on the subject of domicil than any other single English judge, after carefully considering the definitions in the light of the decided cases, suggests this: "That place is properly the domicil of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home." This definition, however, is unfavorably criticised by Lord Chelmsford in the same case on appeal.2 Lord Wensleydale, in Whicker v. Hume,3 adopts this as a "very good definition: " "Habitation in a place with the intention of remaining there forever, unless some circumstance should occur to alter his intention."

§ 67. English Text-writers: Phillimore, Foote, Westlake, Dicey. - Phillimore,1 in his work on our subject, referring to some of the dicta of American judges, who he says have been most successful in their attempts at definition, frames the following as a tolerably accurate definition: "A residence at a particular place, accompanied with positive or presumptive proof of an intention of remaining there for an unlimited time." It will be seen that this is based mainly upon the language of President Rush, in Guier v. O'Daniel. It has been much quoted, and probably has had considerable effect in fixing the description of the animus manendi requisite for a change of domicil. The introduction into it, however, of the words "positive or presumptive proof of," which also are in President Rush's definition, is criticised by Dicey 2 as being at best superfluous, upon the ground that the maxim De non apparentibus et non existentibus eadem est ratio is in law of universal

1 Lord v. Colvin, 4 Drew. 366.

2 Sub nom. Moorhouse v. Lord, 10 H. L. Cas. pp. 272, 285. See infra, § 166, where his criticism is given in full.

2

8 7 H. L. Cas. 124, 164.

1 Law of Dom. no. 15; also Int. L. vol. iv. no. 49. 2 Appendix, note 1, p. 334.