the case of Freke v. Lord Carbery (s), it was holden that the validity of a testamentary disposition of an English leasehold is governed by the law of England, and not by the law of the testator's domicil; and that where a testator domiciled in Ireland by his will gave an English leasehold to trustees upon trust for sale, with directions to accumulate the interest of the proceeds for a period extending beyond the time allowed by the Thellusson Act (which act does not extend to Ireland), the direction to accumulate the interest of the proceeds beyond the time allowed by the Thellusson Act was invalid. The Supreme Court in America has also holden that the fiction of law, that the domicil of the owner draws to it his personal estate, wherever it may happen to be, yields whenever, for the purpose of justice, the actual situs of the property should be examined (t). XLIII. Of modern nations France, Italy, Holland, America, and Germany (u), and lately England, have pro (8) L. R. 16 Eq. p. 461. (t) Green v. Van Buskirk, 7 Wall. (Americ.) p. 139. (u) These, among other writers, may be mentioned :— Cujacius, On Code, lib. vii. t. xxxiii. De Præscriptione, &c.; on Dig., lib. xxvii. De Excusationibus. J. Voet, lib. v. t. i. 92, &c. Comment. on Dig. lib. v. t. i. De Judiciis, especially useful to those who wish to prosecute their studies further into the Civilians, from his frequent references to Zangerus, Donellus, Christinæus, and Struvius. Bynkershoek Quæstiones Juris Privati, lib. i. c. xvi. nam dicatur ratione domicilii. Forum competens quod Tractatio de Domicilio Eberhardina, Præside Wolfgang Adamo Lauterbach, 1663. This is, perhaps, not to be reckoned among the books generally accessible, but it contains the best separate treatise on Domicil which the Germans have produced. Savigny-R. R. viii. ss. 351–359. Denisart-Collection de Décisions, tit. Domicile. Pothier-Introduction Générale aux Coutumes d'Orléans. Merlin-Répertoire de Jurisprudence, tit. Domicile. Domat-Loix Civiles dans leur Ordre Naturelle. Le droit public, liv. i. tit. xvi. s. 3. In duced elaborate commentaries on the Law of Domicil, and for a like reason, namely, the division of their territory into divers provinces, governed by divers customs and ordinances. In these countries no question could be more material to the individual than to ascertain to which law his person, his money, his dealings, and his testament were subjected by the place of his domicil; before the Revolution no less than two hundred varying and conflicting customs were furnished by the provinces of France. the United States of America, the subject, from a similar cause, has undergone frequent and careful investigation. In England the consideration of it is of comparatively recent date (x). I find Sir Leoline Jenkins speaking of Domicil, in the reign of Charles the Second, "as a "term not vulgarly known" (y): and the answer of this learned civilian to the statement of the French lawyers, claiming for the Duchess of Anjou the succession to the Dowager Queen Henrietta Maria's goods, as having died domiciled in France, is the earliest exposition in England of the Law of Domicil which I have been able to discover. In this case, Sir Leoline Jenkins admitted, that the Law Toullier-Le Droit Civil Français suivant l'Ordre du Code, liv. i. t. iii. 362-378. Locré-Législation de la France, liv. i. tit. iii. tome iii. édition Paris, A.D. 1827. Story-Commentaries on the Conflict of Laws, ch. iii. Kent-Commentaries on American Laws, part v. lecture 35; part vi. lecture 37. R. Phillimore-On the Law of Domicil. Cole-On the Domicil of Englishmen in France. Westlake-On Private International Law, ch. iii. On Domicil. Lawrence Commentaire sur les Él. du Droit International, Seconde Partie, chap. ii. 5, Lex Domicilii. (Tome iii. p. 96, édition A.D. 1873, Leipzig. Wharton-Conflict of Laws, ch. ii. (x) See remarks of Lord Campbell, in Advocate-General v. Thomson, 12 Clark & Finnelly's Rep. p. 28, cited at length below. (y) See his letter to King Charles the Second from Niméguen, 1676, as to the sentence pronounced by the Scotch Court of Admiralty upon a Swedish vessel.-Life of Sir L. Jenkins, vol. ii. p. 785. of a fixed domicil ought to regulate the disposition of the personal property of every deceased person (z). This doctrine was subsequently upholden by Lord Chancellor Hardwicke, about the middle of the last century, and was finally confirmed by Lord Chancellor Thurlow in the great case of Bruce v. Bruce (a), appealed from the Scotch Courts to the House of Lords in 1790. The opinions of these high authorities seem not to have reached Scotland in a fully authentic shape, and it required another decision of the House of Lords firmly to engraft this principle of jurisprudence upon Scotch law (b). (2) "Ne mérite pas le nom d'un domicile fixé et tel qui doit régler la succession, soit qu'on en juge selon le droit de France ou selon celui de l'Angleterre, ou bien selon le droit Romain qui est commun à tant de nations."-Life of Sir L. Jenkins, vol. ii. p. 668. But the earliest cases judicially decided in England, upon the question as to the disposition of the personalty of a person, whose domicil was in one place and personalty in another, were the cases of Cholmley v. Cholmley, 2 Vernon's Reports, p. 47, in 1683, and of Webb v. Webb, 1689, Robertson on Personal Succession, p. 105; in both which the Court of Chancery pronounced that the custom of London followed the person and prevailed over the custom of York, which was the law of the domicil. In these cases the deceased parties were freemen of London; and, as late as 1826, there has been a decision confirming this anomaly to the general law of domicil in favour of the custom of the City of London.-Onslow v. Onslow, 1 Simons' Reports, p. 18. Lord Hardwicke appears to have been the first judge who clearly laid down the law in England, "that the personal estate follows the person and becomes distributable according to the law or custom of the place where the intestate lived." This was in a case decided in 1744.-Pipon v. Pipon, Ambler, p. 25. In Thorne v. Watkins, 2 Vesey, 35, the same judge, in 1750, pronounced that the case of a Scotch personal succession was regulated by an English Domicil. In Sill v. Worswick, 1 H. Blackstone, p. 665, Lord Chancellor Loughborough said, "It is a clear proposition, not only of the law of England, but of every country in the world where law has the semblance of a science, that personal property has no locality. (a) See note to Marsh v. Hutchinson, 2 Bosanquet & Puller's Reports, p. 299. (b) Hogg v. Lashley, Robertson's Appeal Cases, p. 4, and see Robertson on Personal Succession, pp. 126-150. The earlier decisions as to the law in Scotland seem to have been correct, but there had been, Of late years, the extent and variety of our colonial (c) dependencies, and the importance of the interests at stake, especially with regard to the marriage contract, governed by different laws in the north and south of the same kingdom, have produced a more accurate acquaintance with this branch of jurisprudence, in its application to British subjects; while during the long maritime war which grew out of the French Revolution, it came also to be considered in its application to the subjects of other nations, in our courts of International Law (d). XLIV. In the following pages, it will be attempted to collect together and set forth, under each division of the subject, those maxims of jurisprudence relating to the Law of Domicil which are contained in the sources mentioned above, namely, in the Roman and Canon law, in the opinions of European and American jurists, the decisions of European and American tribunals, with a more especial reference to the decisions of the various Courts of Justice in Great Britain. It will be seen that this question has undergone much discussion in Westminster Hall, in the Ecclesiastical and Admiralty Courts, the Privy Council, the Courts of Equity, and the House of Lords. Mr. Bell says, "a very distressing versatility of opinion."-Commentaries on the Law of Scotland, vol. i. p. 683. It should appear, too, that the Ecclesiastical Courts had held the doctrine of the lex loci rei sitæ ; but see Somerville v. Lord Somerville, 5 Vesey, p. 750; and the opinion cited above of Sir L. Jenkins. (c) Burge, Comment. on Foreign and Colonial Law, vol. i. c. ii. Chapter on Domicil; Henry, Report of the Case of Odwin v. Forbes, Appendix. (d) See first of the standing Interrogatories administered in the time of war, 1 C. Rob. Adm. Rep. p. 381. The decisions, however, of the Prize Courts on Commercial Domicil in time of war are only sub modo applicable to domicil in time of peace. Vide antè, vol. iii. § lxxxv. CHAPTER IV. A. DEFINITION OF DOMICIL. XLV. THE definition of Domicil, according to the Roman Law, is as follows: "Si quis negotia sua non in coloniâ sed in municipio "semper agit, in illo vendit, emit, contrahit, in eo foro, "balineo, spectaculis utitur: ibi festos dies celebrat: om"nibus denique municipii commodis, nullis coloniarum "fruitur: ibi magis habere domicilium quam ubi colendi "ruris causâ versatur, videtur" (a)... “Et in eodem "loco singulos habere domicilium non ambigitur, ubi quis "larem, rerumque ac fortunarum suarum summam con"stituit, unde rursus non sit discessurus, si nihil avocet, "unde cum profectus est, peregrinari videtur; quod si "rediit, peregrinari jam destitit” (b). 66 "Eam domum unicuique nostrûm debere existimari, ubi quisque sedes et tabulas haberet, suarumque rerum con"stitutionem fecisset" (c). "Domicilium re et facto "transfertur, non nudâ contestatione " (d). Donellus justly observes as to the first of these definitions, "Sed majore venustate quam certitudine defini❝tionis" (e). (a) Dig. lib. 1. t. i. 27, § 1. (e) "Nam illa," (he says) "sedem rerum suarum alicubi constituere ; unde non esse discessurum si nihil avocet; inde si quis profectus sit eum peregrinari videri, quæ sunt in superiore descriptione; si non aquè incerta sunt atque illud, alicubi domicilium habere, ut certè non sunt incerta sunt tamen, et adhuc illam quæstionem desiderant, unde |