to decide where, and the fiction of the persistence of domicil of origin in such cases has been not inaptly characterized as "a sterile subtlety which cannot be of any assistance in practice."6 § 85. French Jurists. Most of the French jurists hold that a person is not able to be without a domicil, although his domicil may not be known; and they follow the same course of reasoning as the British and American authorities, relying besides upon the interpretation of several provisions of the French Codes. Some of them, however,― notably Demolombe, -are unwilling to admit the universal application of the principle. That author, while admitting that the theory of the persistence of the paternal domicil is generally true, cites two cases in which it does not appear to him sufficient to remove all the difficulties which the situation presents; namely, first, "where the trace of domicil of origin is entirely lost and unknown," -for example in the case of "a strolling player, a pedler, or other itinerant individual, who passes his life in travelling from town to town. His domicil of origin is in fact altogether unknown, — perhaps he never had any. He was born in an inn, of parents in simple passage in a town, and who have led the same cosmopolitan life which he has be discovered. This question may arise when the man dies, and his intestate succession is to be determined. Scarcely any course will be possible but to assume his residence at the time to be the domicil, and therefore (if the question relates to succession) the place at which he has died." And Dicey (Dom. pp. 61, 117) expresses a similar opinion. Westlake says (Priv. Int. L. 1st ed. p. 34, no. 34): "Suppose a vagabond whose parentage and place of birth are totally unknown, so that no domicil of origin can be assigned him; practically such a person could hardly come under the law of domicil for any other purpose than that of jurisdiction, which would probably be exercised over him without scruple by any court within the territory of which he might be found." 6 Ancelle, Thèse pour le Doctorat (Du Domicile), p. 105. 1 Duranton, Cours de Droit Français, t. 1, no. 360; Toullier, Droit Civil Français, t. 1, no. 371; Richelot, Principes de Droit Civil Français, t. 1, no. 224; Proudhon, Traité sur l'État des Personnes, t. 1, p. 243; Laurent, Principes de Droit Civil Français, t. 2, no. 66; Marcadé, Explication, etc. de Code Napoléon, sur art. 103, no. 3. See also Demolombe, Cours de Code Napoléon, t. 1, no. 348. Such is also the doctrine of Pothier, Intr. aux Cout. d'Orléans, no, 12; and see the report of Conseiller d'État Emmery, presented at the time of the discussion of tit. iii. Code Napoléon (Séance du 13 Ventôse, An 11). 2 Demolombe, loc. cit.; Ducaurroy, Bonnier et Roustain, Commentaire, etc. de Code Civil, t. 1, no. 470; Vallette, Cours de Code Civil, t. 1, p. 139. See also Marcadé, Explication, etc. de Code Napoléon, sur art. 103, no. 4; Zachariae, t. 1, p. 278; and Sirey et Gilbert, Code Civil Annoté, art. 103, notes 21-25. continued with them and after them. The paternal domicil is here evidently of no assistance. The truth is that these individuals then have no domicil even in the subtlety of the law. Idem est non esse aut non apparere." Of such nomads Valette 3 also remarks: "Without doubt, by running back far enough, one may succeed in finding a sedentary ancestor, but it would be puerility to pretend to attach his descendants to a place where they never have had any interest whatever or where they never have lived." The second case supposed by Demolombe is as follows: "Even when the domicil of origin is known, it is possible that a person who has not adopted another, and who is thus reputed to have preserved the former, has for a long time and absolutely abandoned it, and has no longer any kind of connection with it. I demand whether the domicil which is in such case, to speak truly, only a pure abstraction, a sort of juridical subtlety, shall nevertheless produce all of the effects of actual domicil." "It may be perfectly well known that Paul was born at Strasburg; but twenty or thirty years have elapsed since he quitted that city, since he broke all his relations with it, where he has no longer any interest, and where perhaps he knows no person. He travels, he rambles over the world, he is not fixed in any place, or else he has devoted his life to a military career and follows his colors everywhere." While admitting that for most purposes the reasoning which invokes the effect of the domicil of origin proceeds logically, he is of opinion that it should not be pushed to the extent of covering the facts of his second case, when a question of the service of process or the like is involved. His remarks upon this point, however, are based mainly upon the provisions of the French Code of Procedure, and relate rather to municipal than to national domicil; indeed, the discussions of the later French jurists have, generally, reference more to the former than to the latter phase of domicil. § 86. Municipal Domicil. With respect to municipal domicil the principle has been laid down as a general rule, subject to few, if any, exceptions. It is necessary that a person who 3 Loc. cit. Pick. 170; Opinion of the Judges, 5 1 Abington v. North Bridgewater, 23 Met. 587; Bulkley v. Williamstown, is subject to the laws of a State should have some certain, fixed place where he may be called upon to perform the duties and obligations which he owes to the State, and where, too, he may enjoy the privileges which the State accords to him. The cases of municipal domicil, therefore, lay down the principle broadly that every person must have a domicil somewhere. The Maine Settlement cases 2 hold that a person may abandon his "home" within the meaning of that word as used in the poor-laws, without gaining another. But the courts of that State have been careful to say distinctly that such "home" is something different from, and less than, domicil.3 These cases, therefore, cannot be considered as militating against the general principle laid down. Several Massachusetts cases have occasioned some comment. In the case of Briggs v. Rochester4 there was evidence that in April, 1858, B., who was then an inhabitant of Rochester, Mass., removed out of the State cum animo non revertendi, and with the intention of fixing his future abode and home in Motthaven, New York; that on the 1st of May he had not yet reached his intended new abode, but was sojourning in New York City, and that shortly afterwards he went to Motthaven and henceforth resided there. Upon this state of facts the court held that B. had on the 1st of May ceased to be an inhabitant and taxable in Rochester, putting its decision, however, upon a distinction between domicil and inhabitancy under the tax laws of the State. In Colton v. Longmeadow 5 the court went a step farther. In that case the facts were 3 Gray, 493; Briggs v. Rochester, 16 id. 337; Kirkland v. Whately, 4 Allen, 462; Wilson v. Terry, 11 id. 206; Whitney v. Sherborn, 12 id. 111; Littlefield v. Brooks, 50 Me. 475; North Yarmouth v. West Gardner, 58 id. 207; Shepherd v. Cassiday, 20 Tex. 24; Cross v. Everts, 28 id. 523. The French authorities cited above (§ 85, note 1) are mainly upon municipal domicil. The case of Kilburn v. Bennett, 3 Met. 199, has been cited as establishing a contrary doctrine, but this point does not seem to have been either decided or discussed, the questions raised having been merely questions of evidence. 2 Exeter v. Brighton, 15 Me. 58; Jef. ferson v. Washington, 19 id. 293; Phillips v. Kingsfield, id. 375; Gorham v. Springfield, 21 id. 58; Littlefield v. Brooks, supra; North Yarmouth v. West Gardner, supra; Hampden v. Levant, 59 id. 557. 3 See particularly Littlefield v. Brooks, supra, and the cases cited supra, § 55, note 2. 4 16 Gray, 337. that on the 28th of April C. left Longmeadow, Mass. (where he had up to that time always resided) cum animo non revertendi, and proceeded on his way to Philadelphia, with the intention of residing there. On the 1st of May he was not in Massachusetts but in Connecticut, in itinere to Philadelphia, which place he reached a few days afterwards. Upon this state of facts the court decided that on the 1st of May C. had ceased to be an inhabitant of Longmeadow, so as to be taxable there under the statute. In Shaw v. Shaw,6 a case of divorce, the same court (per Foster, J.), referring to Colton v. Longmeadow and making it depend upon the construction of the statute, said that the rule laid down in that case" is such an exception to the ordinary rule of construction as ought not to be extended;" and in the subsequent tax case of Borland v. Boston, after holding the word "inhabitant," as used in the tax laws of that State, to mean, according to an overwhelming preponderance of authority, "one domiciled," and after doubting the authority of Briggs v. Rochester and Colton v. Longmeadow, declared (per Lord, J.) that "if they are to be deemed authority, they should certainly be limited to the exact facts" contained in them. § 87. But, notwithstanding the comments upon it and the fact that it was distinctly put upon the construction of the statute, it is probable that Briggs v. Rochester was correctly decided upon general principles as to domicil. For as B. had left not only the town in which he had formerly resided, but the State also, cum animo non revertendi, and had already reached a point in the State in which he intended setting up his new abode, the requirements of a change of quasi-national domicil were fulfilled.1 In such case it would be difficult to contend that he retained his former municipal domicil, because it would certainly be an anomaly for a person to have the seat of his quasi-national domicil in one place and that of his 6 98 Mass. 158. 7 132 Mass. 89. For the comments at length in this case upon Briggs v. Rochester and Colton v. Longmeadow, see supra, § 76, note 2. 1 That a person may acquire a na tional or quasi-national domicil without at the same time acquiring a municipal domicil, or having a definite place of abode within the State or country in question, see infra, § 133. municipal domicil in another, a greater anomaly, indeed, than that he should be without municipal domicil. For, with the cessation of his subjection to the laws of the former State, would also cease the necessity for his having a certain, fixed place where to perform the duties or fulfil the obligations imposed by its laws. On the other hand, as B. was proceeding with reasonable speed to the place in New York selected by him as his place of abode, but had not yet arrived there, he could hardly be said to have gained a municipal domicil in that State. It follows that he must have been without one in either State. Colton v. Longmeadow, however, although professedly decided upon the authority of Briggs v. Rochester, contained a different state of facts and cannot be sustained upon general principles, inasmuch as no change of quasi-national domicil had taken place while C. was in itinere, and it would seem to follow that he retained his municipal domicil along with his quasi-national domicil. 2. No Person can at the same Time have more than one Domicil. § 88. Roman Law. While there was some conflict of opinion among the jurists whose writings constitute the sources of the Roman law, yet the generally received opinion seems to have been that a person might have domicil in two places at the same time if he appeared to be equally established in both. Labeo decided that a person who transacted his affairs equally in several places had domicil nowhere; while others were of opinion that under such circumstances he had several domicils, and Paulus approved the latter opinion. The text of Paulus is: "Labeo judicat, eum, qui pluribus locis ex æquo negotietur, nusquam domicilium habere; quosdam autem dicere refert, pluribus locis eum incolam esse aut domicilium habere; quod verius est."1 We find Ulpian cited upon this point in two passages in the Digest, in the first of which he declares it to be a received opinion that a person may be domiciled in two places if he appears to be equally established in both. "Viribus prudentibus placuit, duobus locis posse 1 Dig. 50, t. 1, 1. 5. |