marrying without a marriage settlement, subjects himself to the communauté légale of the Code Napoléon. So, in the succession mobilière, the personal law of the Domicil is applied. The real difficulty is to ascertain the personal law when a question of status (d'état ou capacité) arises. And M. Demangeat is, on the whole, of opinion, though, as it would seem, with less confidence, that even in this case the personal law is the law of the Domicil,—both of that de facto and of that under permission of the government (u),—that it was the intention of the compilers of the 13th Article of the Code Napoleon, that the foreigner, so domiciled, should be likened en ce qui concerne le droit privé to the Frenchman, and if the concluding part of the 13th Article seems to say that the French law is the personal law of the Frenchman, the answer is that the Article contemplated the Frenchman who was resident, but not the Frenchman who was domiciled abroad. These observations, however, anticipate the consideration of the law as to personal status, to which, perhaps, they more properly belong.

XXXVI. Questions relating to the effect of the lex originis upon the individual and his personal status, which may arise between a State and her colonies (x), generally belong to the department of Public rather than International law; while, upon this question, with the abovementioned exception, Private International Law refers to the lex domicilii, which is the subject of the following chapter.

(u)" Acquis dans toute la force du terme."

(x) Birth in an English colony is at present equivalent to birth in England for all questions of origin as distinct from domicil.-(Donegani v. Donegani, 3 Knapp's P. C. Rep. p. 63; Re Adam, 1 Moore's P. C. Rep. p. 460.) As to naturalization in colonies, see 33 Vic. c. 14, vol. i. p. 653 App. It is possible that the power of self-legislation in the colonies may give rise to serious questions, e.g. the validity of a divorce decreed in England upon parties domiciled in a colony where a divorce is illegal. The English Divorce Court would not, it is true, adjudicate wittingly on such a case, but it might do so unwittingly. Various other instances might be suggested.

CHAPTER IV.

DOMICIL.

XXXVII. (a) WE have now to consider the question of Domicil, the second of the ties which bind, or of the causes which subject, the individual to the jurisdiction of a particular territory (b).

Questions of Domicil" (said Lord Chancellor Cottenham) "are frequently attended with great difficulty, and "the circumstances which give rise to such questions are "necessarily very various; it is of the utmost importance "not to depart from any principles which have been es"tablished relative to such questions, particularly if such "principles be adopted not only by England, but generally "by the laws of other countries" (c); and Cochin truly observes: "Les questions de domicile dépendent d'un "grand nombre de circonstances qu'il faut réunir" (d).

Domicil is, therefore, principally a question of fact; and though also, in some degree, a question of law, the former ingredient predominates-the contrary of which may be predicated of Origin (e).

XXXVIII. The Roman law is the great repository of the principles of this, as of most other branches of civil

(a) Donelli Comment. de Jure Civili, lib. xvii. c. ix. : 'Quis sit in jurisdictione competens judex: seu de foro competenti : seu quod idem valet, ubi quis agere vel conveniri debeat. Ac primum de territorio, et causis cujusque jurisdictioni attributis ; " c. xii. : "Ubi subjiciatur quisque ex personâ suâ jurisdictioni, tum quibus de causis: et in his primum de domicilio.”

(b) "Jus terrendi―unde territorium dictum volunt.”—Ib. cxii. 10. (c) Munro v. Munro, 7 Clark & Finnelly's Rep. p. 876. (d) Euvres, tome iv. p. 52, édit. Paris, A.D. 1821.

(e) Westlake, 31, note a.

jurisprudence. The Roman jurist bestowed great attention upon the different bearings of this question, and all the disquisitions and pains of modern lawyers have been engrafted upon the luminous investigation of the subject contained in the Digest and the Code.

XXXIX (ƒ). The universal extent, indeed, of the Roman Empire, excluded the possibility of any question of domicil arising between the subjects of Rome and those of another kingdom; but the necessity of considering domicil, as between the inhabitants of different parts of the same kingdom, was forced upon their jurists by various circumstances, principally by the oppressive nature of the duties and responsibilities incident to the Decurionatus, or municipal office (g). Under the Emperors, the decuriones, who collected the imperial taxes, became responsible for the payment of the fixed amount, and were compelled to supply the deficiencies from their own property. Each decurio was, moreover, considered as a guarantee for the solvency and good faith of his colleague, and for the successor whom he had presented to fill the office which he vacated. This grievous oppression made every citizen as anxious to escape as he had been formerly desirous to obtain the honour (h); but the law imposed upon everyone who had his domicilium in a particular place, the necessity of filling the public offices, and discharging the duties incident to them in that place. So also with respect to the assessment and payment of taxes, Domicil was of much importance; hence the criteria of it

(f) In some of the earlier English cases, this has been alleged by counsel as a reason why little or nothing was to be found in the Roman law on the subject of domicil; one of the many proofs how very slight the acquaintance of English lawyers with that law has been. Munroe v. Douglas, 5 Maddock's Rep. p. 291. Attorney-General v. Countess of Dalhousie, 7 Clark & Finnelly's Reports, p. 840. (g) Savigny, R. R. viii. s. 353.

(h) "Sed si aliis rationibus domicilium in splendidissimâ civitate Laodicæorum habere probatus fueris, mendacium quominus muneribus fungaris non proderit."— Code, lib. x. t. xxxix. 2.

are more fully examined in the passages of the Digest and the Code which relate to these subjects-but not alone in these passages-for in discussing the question as to the difference between the "civis " and the "incola " (1) of a province-as to the Tribunal before which a person should be convened-when and under what modifications the doctrine of Prescription should take placewhat causes excused the Tutor from accepting the office imposed upon him-in discussing these and various other subjects, the question of domicil was frequently brought under the consideration of the jurists of ancient Rome (j).

(i) "Incolas vero domicilium facit," Cod. lib. x. t. xxxix. 7. De Incolis. Vide post. To Origo belonged the expressions municipes, jus originis, patria; to Domicilium, the expressions incolæ, jus incolatûs, domus. Savigny, R. R. viii. s. 353.

(1) The following passages should be studied in the Digest and Code for an accurate acquaintance with the language of Roman jurisprudence on the subject of Domicil:

.

Dig. lib. i. t. ix. 11-De Senatorum domicilio.

Dig. lib. ii. t. xv. 8-De Transactionibus.

Dig. lib. iv. t. vi. 28-Ex quibus causis majores viginti quinque annis in integrum restituuntur. De absentiâ.

Dig. lib. v. t. i.-De Judiciis, et ubi quisque agere vel con

veniri debeat.

Dig. lib. xxvi. t. v. -De Tutoribus et Curatoribus datis, &c.

Dig. lib. xxvii. t. i. 30, 46, § 2-De Excusationibus.

Dig. lib. xlvii. t. x. 5-De injuriis et famosis libellis.

Dig. lib. 1. t. i. -Ad Municipalem; et de Incolis.

Dig. lib. 1. t. xvi. 190, 239-De verborum significatione; Dig. lib. xxiii. t. ii. 5-De ritu nuptiarum ; Dig. lib. xl. t. v. 28-De fideicommissariis libertatibus.

* Cod. lib. vii. t. xxxiii.-De præscriptione longi temporis, decem vel viginti annorum.

Cod. lib. x. t. xxxix.-De Incolis, et ubi quis domicilium habere videtur, et de his qui studiorum causâ in aliâ civitate degunt. Cod. lib. vi. t. xxiii. 9, has this passage: "si non speciali privilegio patriæ tuæ juris observatio relaxata est, &c. &c. nullo jure testamentum valet."

"De Interdictis et Relegatis et Deportatis." The Præses who interdicted a person domiciled in his province, had also the power to interdict him from the place of his origin.

The denotes the most important passages.

XL. It is the remark of a great modern jurist that the Canon Law, where it modifies the Civil Law, has obtained a European reception as general as that law itself (k).

Dissertations on the Law of Domicil under that system of jurisprudence were provoked by various causes-such as the prohibition imposed on the Presbyter to administer sacred rites to a person belonging to the congregation (parochianus) of another church-the law that a person in holy orders might become subject (subditus et diœcesanus) to the jurisdiction of a bishop ratione domicilii (l) -the law which, in order to check the encroachment of religious houses upon parochial churches, ordered a certain portion (canonica portio) of the ecclesiastical dues of sepulture to be paid to the parish church of the domicil of a deceased person, who had desired to be buried with the members of a religious fraternity. With reference to these and other subjects, rules were laid down, and opinions were given by Canonists how a domicil might be created, acquired, and abandoned (m).

XLI. Savigny, in his learned work on the History of the Roman law in the Middle Ages, ascribes the growth of personal rights, and personal as opposed to territorial laws, to the state of society which ensued on the conquest of the Roman Empire by the barbarians, after which both races lived together preserving their separate manners and laws. "The moderns," he observes, "always assume "that the law to which the individual owes obedience is

(k) Savigny, R. R. i. s. 17—"Denn auch dies hat eine gleich allgemeine Europäische Anerkennung gefunden, wie das Römische." (1) Lyndwood, Const. Oth. de Scrutinio Ordinandorum. Gloss. i. per Episcopum. (Oxford ed. 1679.)

(m) A very elaborate disquisition on the subject is to be found in the Treatise of Augustin Barbosa de officio et potestate Episcopi, pars secunda, Allegatio IV. p. 172 ; see also 6 Decretal. lib. iii. t. xii. c. ii. ; Decretal. lib. i. tit. iii. c. xxix. ; see also Dictionnaire de Droit Canonique, tit. Domicile, and Denisart, Domicile, s. 40. See also the cases collected by Mascardus, in his great work De Probationibus, Conclusio 535, v. 1.