CHAPTER XII.

DOMICIL OF CHOICE.

CCIII. IT remains to consider the Domicil of Choice, which may be conveniently considered under the question of Change of Domicil, the subject of this chapter.

CCIV. It may be taken as a general maxim of European and American Law (a) that every person sui juris is at liberty to choose his domicil and to change it according to his inclination.

CCV. An exception to this rule was made, in the time of Grotius, with respect to the subjects of Russia (b); but the laws of that country, with respect to naturalization, allegiance, and nationality, matters closely connected with domicil, have undergone a great change since 1864 (c).

(a) "Nihil est impedimento quo minus quis, ubi velit, habeat domicilium quod ei interdictum non sit."-Dig. lib. 1. t. i. 31, Ad Municip. "Domicilium re et facto transfertur non nudâ contestatione sicut in his exigitur qui negant se posse ad munera ut incolas vocari."—Ibid. 20. “Incola jam muneribus publicis destinatus, nisi perfecto munere, incolatui renuntiare non potest."-Ibid. 34. "Non tibi obest, si cum incola esses, aliquod munus suscepisti, modo si antequam ad alios honores vocareris domicilium transtulisti."-Code, lib. x. t. xxxix. 1, De Incolis. Vide antè.

(b) Grotius says, De Jure Belli et Pacis, lib. ii. c. v. s. 24: "Solet hic illud quæri, an civibus de civitate abscedere liceat, veniâ non impetratâ. Scimus populos esse ubi id non liceat, ut apud Moschos: nec negamus talibus pactis iniri posse societatem civilem, et mores vim pacti accipere. Romanis legibus, saltem posterioribus, domicilium quidem transferre licebat: sed non eo minus qui transtulerat municipii sui muneribus obligabatur. Verum in quos id constitutum erat, ii manebant intra fines imperii Romani: atque ea ipsa constitutio specialem spectabat utilitatem tributariæ præstationis.”

(c) See note at the end of this chapter.

CCVI. According to the Roman Law, if the change of abode were made to avoid discharging the offices, or paying the taxes of the place of domicil, two things were required

-one that the change of domicil should be real and bond fide; another, that it should have been made before the nomination to the office or the assessment of the tax had taken place.

CCVII. Questions as to change of domicil may be classed under two divisions,-1. Change of Domicil from one town or one province to another within the same country; 2. Change of Domicil from one country to another. But as the same principles apply to both, it will be convenient to consider them together.

CCVIII. Whenever the facts and circumstances are such as to beget a doubt whether a domicil has been acquired or not, recourse must be had to probable conjectures (d) (conjecturæ probabiles); and though all cases must in a great measure be dependent on their particular circumstances, yet it is most important to bear in mind that the opinion of jurists and the decisions of Courts of Justice have impressed a character upon certain circumstances, as affording the best criteria of Domicil, as legal presumptions of the intention of the party deduced from his acts. "In "allegations" (says Lord Chancellor Cottenham) "depending upon intention, difficulties may arise in coming "to a conclusion upon the facts of any particular case;

66

(d) "Quoties autem non certo constat ubi quis domicilium constitutum habeat, et an animus sit inde non discedendi, ad conjecturas probabiles recurrendum, ex variis circumstantiis petitas, etsi non omnes æquè firmæ, aut singulæ solæ consideratæ non æquè urgentes sint, sed multum in iis valeat judicis prudentis et circumspecti arbitrium."J. Voet, lib. v. t. i. s. 97. De Judiciis, &c. "Plusieurs lois romaines énonçaient diverses circonstances comme signes caractéristiques de domicile."-Duranton, tome i. § 354. See, too, the speech of the Avocat-Général in the case of Mademoiselle de Choiseul." Mais comment connaître le fait de l'habitation réelle; comment avoir des preuves de la volonté ? &c. &c. Les juges ne peuvent donc en décider que par des conjectures.”—Denisart, Domicile, II. s. 1.

"but those difficulties will be much diminished by keeping "steadily in view the principle which ought to guide the "decision as to the application of the facts" (e). In the case of Moorhouse v. Lord (f), Lord Cranworth said, “In "order to acquire a new domicil-according to an expres"sion which I believe I used on a former occasion, and "which I shall not shrink on that account from repeating, "because I think it is a correct statement of the law-a man must intend quatenus in illo exuere patriam' (g). "It is not enough that you merely mean to take another "house in some other place, and that, on account of your "health or for some other reason, you think it tolerably "certain that you had better remain there all the days of your life. That does not signify; you do not lose your "domicil of origin, or your resumed domicil, merely because you go to some other place that suits your health "better, unless, indeed, you mean, either on account of your health, or for some other motive, to cease to be a "Scotchman and become an Englishman, or a Frenchman, "or a German. In that case, if you give up everything

66

66

you left behind you, and establish yourself elsewhere, "you may change your domicil. But it would be a most "dangerous thing in this age, when persons are so much "in the habit of going to a better climate on account of health, or to another country for a variety of reasons"for the education of their children, or from caprice, or "for enjoyment-to say that by going and living else"where, still retaining all your possessions here, and keeping up your house in the country, as this gentleman kept up his house at Clippens, you make yourself a "foreigner instead of a native. It is quite clear that that "is quite inconsistent with all the modern improved views "of domicil" (gg).

66

66

(e) Munro v. Munro, 7 Clark & Finnelly's Rep. p. 877.

(f) 10 House of Lords Cases, p. 283 (a.d. 1863).

(g) Whicker v. Hume, 7 H. L. Cas. p. 159.

[(gg) See In re Marrett, L. R. 36 Ch. D. p. 400.]

CCIX. The circumstances which appear principally to be relied upon as affording evidence of the intention (animus manendi) are the following.

CCX. 1. Place of Birth and Origin.

2. Oral and Written Declarations.

3. The Place of Death.

4. The Place of Wife and Family.

5. The House of Trade.

6. The depository of Family Papers and Memorials.

7. The Mansion House.

8. Description in Legal Documents.

9. Possession and exercise of Political Rights and Privileges.

10. Possession of Real Estate.

11. Length of residence and lapse of Time (h).

(h) New Law of Domicil and Naturalization of Russia. Imperial Ukase, dated March 6, 1864.

(Extract from Letter from Lord Napier, H.M.'s Minister at

St. Petersburg.)

St. Petersburg, March 30, 1864.

MY LORD,-An Act has recently received the sanction of the Emperor, and been published in the Russian papers, regulating the position of foreigners claiming to obtain certain rights in this country. The law will no doubt be shortly inserted in the Journal de St. Pétersbourg in French. I beg to submit to your Lordship at present the substance of the measure ::

A. (1.) A foreigner must be domiciled in the Empire before he can be admitted as a Russian subject.

(2.) A foreigner wishing to become domiciled in Russia must inform the Governor of the Province in which he wishes to reside of his desire to do so, explaining the nature of his occupation in his own country, and the pursuits he purposes to follow in Russia. On the receipt of such declaration the petitioner is considered to be domiciled in Russia, but will nevertheless be accounted a foreigner until he shall have taken the oath of allegiance.

(3.) Foreigners already resident in Russia, distinguished in art, trade, commerce, or in any other pursuit, may prove their domiciliation by other means than those specified in § 2.

(4.) A foreigner, after being domiciled five years in Russia, may apply to be admitted to Russian allegiance.

(5.) Foreign married women cannot become Russian subjects without their husbands.

(6.) The allegiance when sworn to is merely personal, and does not affect children, whether of age or minors, previously born. Those born after the adoption of Russian nationality are acknowledged as Russians.

(7.) Specific rules to be observed in petitioning the Minister of the Interior to be admitted to Russian allegiance (documents and declarations required, &c.).

(8.) It is optional with the Minister to grant the above petition or not.

(9.) An oath to be taken.

(10.) Mode of taking oath.

(11.) In special cases the period requisite to constitute a domicil may be shortened.

(12.) Children of foreigners, not Russian subjects, born and educated in Russia, or if born abroad, yet who have completed their education in a Russian upper or middle school, will be admitted to Russian allegiance, should they desire to do so, a year after they shall have attained their majority.

(13.) The children of foreigners wishing to become Russian subjects will be admitted on the same terms as their parents.

(14.) Foreigners in the Russian military or civil service, or ecclesiastics of foreign persuasions, will be admitted to Russian allegiance without period of domicil.

(15.) A Russian subject marrying a foreign husband, and therefore considered a foreigner, may on the death of her husband, or in case of her divorce, return to her former allegiance.

(16.) The children in the above case are treated as in § 12.

(17.) Foreign women marrying Russian subjects, and the wives of foreigners who have become Russian subjects, are admitted as Russian subjects without taking oath of allegiance. Widows and divorced wives retain the nationality of their husbands.

(18.) Special enactments relative to colonists, foreign agricultural labourers, Bulgarians, &c., remain in full force.

(19.) Foreigners admitted to Russian nationality are placed, in respect to their rights and obligations, on a perfect equality with born Russians.

(20.) Provides for the speedy transaction of business in connection with the adoption of Russian nationality.

B. Transitional measures.

(1.) Foreigners who shall have already adopted Russian nationality may return at any time to their former nationality on payment of all claims against them, whether Government or private.

(2.) Those who throw off their Russian allegiance may either quit