a self-elected domicil of his own whenever he saw fit to do so. These decisions of the Roman jurists, Savigny argues, evidently rest upon the same principle as domicil of origin. in modern law, and "leave hardly a doubt that the Romans would have given to the son of a free-born man, if he had acquired no domicil of his own, that which his father had at his birth." Immu § 107. Opinions entertained by Continental Jurists. tability. The doctrine of domicil of origin was one which presented considerable difficulty to the Civilians, and gave rise to no little contrariety of opinion among them.1 Some undoubtedly held that it was, at least for some purposes, immutable. But this view was by no means held by all; and even where it appears to be held there is a provoking looseness of expression, and the grounds upon which it is put are far from being either satisfactory or indeed apparent, although it undoubtedly resulted from an imperfect notion of origo, as it existed in the Roman law, and a consequent confusion of origo and domicilium. This is especially noticeable among the glossators and the writers who immediately succeeded them. Grotius, however, in an opinion2 written in 1613, 1 Without citing in detail the authorities to particular points, it is sufficient to refer to the following: Bartolus, Comm. in Cod. De Municip. 10, 38; Azo, Summa, t. 38, no. 1; Christenæus, Decis. Curiæ Belgic. vol. v. 1. 10, t. 39, dec. 32, no. 7 et seq.; Gail, Pract. Obs. 1. 2, obs. 36; Zangerus, De Except. pt. 2, c. 1, no. 68 et seq.; Corvinus, Jur. Rom. 1. 10, t. 38, 39; Henry, For. Law, p. 197; Fœlix, Droit Int. Priv. t. 1, p. 55, note 2, ed. 1856; Bouhier, Obs. sur la Cout. de Bourg. ch. 22, p. 417, ed. 1742. It is unnecessary, as well as improper, here to enter into any minute examination of the positions of the Civilians on this subject. It is sufficient to say that what appears most prominently in their writings is that they held the doctrine of the immutability of domicil of origin or natural domicil with reference to municipal and personal burdens (which shows that they had in view the Roman doctrine of origo), and that they held the contrary with respect to jurisdiction (which corresponds with what has already been pointed out with respect to jurisdiction in the Roman law, supra, § 9). But they extended the doctrine of the immutability of domicil of origin to other subjects, e. g. succession. See Zangerus, loc. cit. and authorities there cited. Moreover, they were inaccurate in two particulars, first, in calling origo by the name domicilium, and second, in holding the domicil of the father instead of his citizenship as the basis of origo. In these respects, at least, they departed from the teachings of the Roman law. 2 Henry, For. Law, p. 197, quoting at length the opinion of Grotius from Hollandsche Consultatien, vol. iii. p. 528. declares that not only according to the general custom of the Netherlands, but even of the whole world at that time, a man might freely change his domicil of origin for another. The doctrine of the immutability of domicil of origin appears never to have been known in France, and it seems to have been entirely abandoned by the later continental jurists. It is true that some writers have considered that questions of majority and minority, paternal power, and the like should be determined by the law of the domicil of origin. But this relates to the legal consequences of domicil, and not to its constitution and change. § 108. Id. Constitution and Change. With reference to the constitution of domicil of origin, continental jurists are substantially agreed; namely, that it is the first domicil, or that which the child receives at birth, and corresponds with that which his parents have at the time of his birth, irrespective of the place of birth.1 Laurent, however, among the later writers, holds that it is "that which the father has at the moment when the infant becomes free to dispose of his person." They are generally agreed, also, that domicil of origin is of considerable importance, and is presumed to continue until it is shown to have been displaced by the acquisition of a domicil of choice, the burden of proof resting upon him who denies the domicil of origin to be the true domicil.3 3 Denizart, verb. Dom. no. 11. 4 See Story, Confl. of L. ch. iv. and authorities cited; Fiore, Droit Int. Priv. translated into French by PradierFodéré, 1. 1, c. 1, and authorities cited; Savigny, System, etc. §§ 365, 380; and Bar, § 52. 1 Savigny, System, etc. § 359 (Guthrie's trans. p. 130); Lauterbach, De Domicilio, no. 13; Bouhier, Obs. sur la Cout. de Bourg. c. 21, p. 383, ed. 1742; Boullenois, Personalité et Réalité des Lois, etc. tit. 1, c. 2, obs. 4, t. 1, p. 53; 2 Domat, Pub. L. bk. 1, t. 16, s. 3, art. 10; Denizart, verb. Dom. 12 and 13; Meier, De Conflictu Legum, p. 14; Fœlix, Droit Int. Priv. t. 1, no. 28; Zangerus, De Except. pt. 1, no. 9; Toullier, Droit Civil Français, t. 1, no. 371; Calvo, Manuel, etc. § 198; Id. Dict. verb. Dom. See also the adtional authorities cited in note 3, infra, 2 Principes de Droit Civil Français, t. 2, no. 73. 8 Mascardus, De Probat. concl. 535, no. 1; Carpzovius, Respons. 1. 2, t. 2, respons. 21, no. 14; Zangerus, De Except. pt. 2, c. 1, nos. 10, 11; Voet, Ad Pand. 1. 5, t. 1, nos. 92, 97; Bouhier, Obs. sur la Cout. de Bourg. c. 21, p. 383, ed. 1742; Meier, De Conflictu Legum, p. 14, no. 1; Pothier, Intr. aux Cout. d'Orléans, no. 12; Henry, For. Law (Opinion of Corvinus), p. 191; Denizart, verb. Dom. no. 13; Merlin, Répertoire, verb. Dom. § 2; Fœlix, Droit Int. § 109. Domicil of Origin in British and American Jurisprudence. The British and American authorities attach great importance and peculiar qualities to domicil of origin, and lay down with respect to it two principles, which have passed into maxims; namely, (1) Domicil of origin clings closely; and (2) Domicil of origin reverts easily. Both of these principles are universally received in Great Britain and America. § 110. a. (1) Domicil of Origin clings closely.1 — As a mere principle of evidence for the ascertainment of the element of intention in a question of change of domicil, it may be assumed that a person will be loath to leave, and eager to return to, the land of his birth; and that, therefore, when a question arises between a domicil of origin and an acquired domicil, in an otherwise doubtful case, where the facts are apparently in equilibrio, the presumption of intention should be applied in favor of the former and against the latter. This reasoning would apply, however, only where domicil of origin happens — as it generally, although not universally, does to coincide with the land of birth and early connections. And thus far the propositions laid down above would express presumptions of fact rather than rules of law. But they have a much deeper and more artificial meaning, resting upon the legal fiction which attributes to every person a domicil of origin at the place where his parents happen to be domiciled at the time of his birth, without any necessary reference to the place of his birth and early education. Thus in Udny v. Udny 2 the most extraordinary consequences are attributed to Colonel Udny's domicil of origin in Scotland, where he was neither born nor reared; his father, though a native of Scotland, having been at the time of his birth, and for many years afterwards, a British consul in Italy. § 111. Ia. Udny v. Udny. - With respect to the first maxim, namely, "Domicil of origin clings closely," the British and American authorities are in entire accord in holding it, Priv. no. 28; Demolombe, Cours de Code Napoléon, t. 1, §§ 345, 348; Laurent, Principes de Droit Civil Français, t. 2, no. 74; Calvo, Manuel, etc. § 198; Id. Dict. verb. Dom., and many others. See, e. g., French author ities cited, Sirey et Gilbert, Code Civil Annoté, art. 102, notes 3, 8. 1 See generally the authorities cited under this and the succeeding sections. 2 L. R. 1 Sch. App. 441. although the degree of tenacity attributed by the late British cases to domicil of origin is greater than that ever yet attributed to it by any decided case in this country. In the late case of Udny v. Udny, decided in 1869 by the House of Lords, it was held that domicil of origin, having its foundation in a legal fiction, and being wholly independent of the will of the subject of it, clings and adheres to him so closely that he can never wholly free himself from it, and that, upon the acquisition of a domicil of choice, his domicil of origin is merely suspended or put in abeyance, to spring again into full being upon his abandonment of the acquired domicil, without any reference whatever to his ulterior intention. Lord Westbury thus states the doctrine: "It is a settled principle that no man shall be without a domicil, and to secure this result the law attributes to every individual, as soon as he is born, the domicil of his father, if the child be legitimate, and the domicil of his mother, if illegitimate. This is called the domicil of origin, and is involuntary. Other domicils, including domicil by operation of the law as on marriage, are domicils of choice. For as soon as an individual is sui juris, it is competent to him to elect and assume another domicil, the continuance of which depends upon his will and act. When another domicil is put on, the domicil of origin is for that purpose relinquished and remains in abeyance during the continuance of the domicil of choice; but as domicil of origin is the creature of the law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicil, and it does not require to be regained or reconstituted animo et facto in the manner which is necessary for the acquisition of a domicil of choice. . . . The domicil of origin may be extinguished by the act of the law, as, for example, by sentence of death, or exile for life, which puts an end to the status civilis of the criminal; but it cannot be destroyed by the will and act of the party." The doctrine thus laid down was necessary to the decision of the case, and was substantially concurred in by Lords [CHAP. VI. Hatherley and Chelmsford.1 The case originated in the Scotch courts, and came up to the House of Lords on appeal. It has, however, been followed in several English decisions,2 so that the British doctrine, thus clearly enounced, may be considered as firmly established beyond the reach of change, save by legislation. § 112. Id. id. In spite of the care with which Lord Westbury distinguishes in this case between allegiance and domicil, it is impossible not to discover the tincture of the doctrine of perpetual allegiance running throughout it. The earliest British cases,1 in which peculiar adhesiveness was attributed to domicil of origin, were prize cases, in which the question of national character in time of war was involved. Clinging as the British courts then did to the doctrine of the indelibility of native allegiance, and at the same time endeavoring to administer the more modern doctrine that national character in time of war depends upon residence or domicil, they very naturally came to invest domicil of origin by way of analogy with a prominence and controlling influence which, if the question had first arisen in another class of cases, they probably would not have attributed to it. But the doctrine having been once adopted, was with such astonishing severity of logic carried out to its utmost conclusions in Udny v. Udny, in which the question involved was a purely civil one, - legitimation per subsequens matrimonium. In 1870 British statesmen by treaty and statute finally surrendered the principle of perpetual allegiance; and it may well be doubted whether, if the case had been decided a year later, a different doctrine would not have been held, or at least the doctrine stated in a more qualified form. § 113. Ia. Doctrine of Udny v. Udny not likely to be held in America. Leaving out of view several dicta1 by-it must be confessed-illustrious jurists, no American authority has ever gone-perhaps it might be added ever will go-to the same length as Udny v. Udny. It is true that the precise question 1 For the opinions of Lords Hatherley and Chelmsford, see infra, §§ 193, 194. 2 King v. Foxwell, L. R. 3 Ch. D. 518; Firebrace v. Firebrace, L. R. 4 P. D. 63; Bradford v. Young, L. R. 29 1 See infra, §§ 197, 198. |