CHAPTER XI. DOMICIL. I. A SOURCE OF CIVIL STATUS, § 487. II. BELLIGERENT DOMICIL, § 488. III. THRASHER'S CASE, § 489. IV. THE KOSZTA CASE. 1. Marcy-Hulsemann Correspondence, § 490. I. A SOURCE OF CIVIL STATUS. § 487. By a person's domicil is meant, generally speaking, his permanent home. It is the criterion, in English and American law, of civil as distinguished from political status. The case is the same in the law of other countries, though not of all. In Italy, for example, civil status follows the political; and so it does to a great extent in France, and in countries which, like Belgium, have followed the French civil code. It is not, however, conversely true that in countries where civil status is derived from domicil the political status follows the civil. In such countries the two conceptions are distinct, neither being dependent upon the other. In primitive times it was not so. In days when the people were generally attached to the soil, when individuals traveled little and seldom changed their abode, domicil was the general criterion of status, political as well as civil, if, indeed, it can be said that such a distinction then existed. But, with the passing away of the feudal system and the rise of the modern national state, together with the coincident development of commerce and industry, political allegiance-allegiance to the nation—became, as a distinct conception, the test of national character, while domicil, whether national or quasi-national, or merely municipal, remained the test of rights in civil relations. As the test of civil status, domicil directly affects a person's civil rights and obligations, in respect of personal capacity, legitimacy, intestacy, and various other matters. It may also materially affect the extent of his liabilities, as in matters of taxation; for, while all persons within the jurisdiction of a state owe obedience to its laws, those who live continuously under their protection may, by so doing, reciprocally acquire rights and incur obligations more extensive 811 than pertain to merely transient persons. These things belong, however, chiefly to the domain of private international law, and are pri marily of juridical rather than of political cognizance. In consonance with this principle, it has often been argued that political intervention should be sparingly granted to citizens who complain of the action of the tribunals of a foreign country in which they are domiciled. Sometimes the argument has been carried further; so far, indeed, as to treat the assumption of a foreign domicil as a renunciation not only of the right to intervention, but also of national allegiance-in other words, as an act of complete expatriation. This view is believed to be exceptional, and, unless under peculiar circumstances, scarcely capable of justification on modern principles. be In only one particular is domicil generally admitted to determine national character, and that is in matters of -prize, where, the object being to strike at the enemy's resources, all persons settled in the enemy's country are held to be tinctured with his belligerent character, so far as concerns their trade, so that their property may captured on the high seas as enemy property. This doctrine is known by the title "belligerent" or "commercial" domicil; and its reason and object are further characterized by the circumstance that the courts have not always exacted, as a condition of the status thus described, the same intention of permanent residence as in cases of domicil in the ordinary sense. On the contrary, there has been a tendency to treat persons as having a belligerent domicil because they are found to be in fact inhabitants of the enemy's country. Belligerent domicil, in giving a national character in matters of prize, works no change of allegiance. Not only is there an entire agreement on this point, but it is frequently stipulated by treaty that, if war should break out between the contracting parties, the citizens of each residing in the territories of the other shall be permitted quietly to remain there, paying obedience to the laws. It is obvious that nations do not by such stipulations intend in case of war to release their citizens from their allegiance, much less to transfer it from the one to the other; nor yet to interfere with the usual operation of the law of prize. The complete dissociation of the special national character, derived from belligerent domicil. from the general and paramount national character, derived from political allegiance, is also well exemplified by the ruling of the English and American courts that the property of a person engaged in trade in a belligerent country may be captured as enemy's property, even though such person be a foreign consul. In Guier v. O'Daniel (1806), 1 Binney, 349 n., domicil is defined as a residence at a particular place, accompanied with positive or presumptive proof of continuing it an unlimited time." This defini tion is substantially adopted by Phillimore." Story defines the term, "in its ordinary acceptation," as "the place where a person lives or has his home;" and, in "a strict and legal sense," as the place "where he has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning." This definition has been widely accepted by the courts. The phrase, “principal establishment," was and is employed in the civil code of Louisiana. Wharton defines domicil as "a residence acquired as a final abode.” e To acquire domicil in a place, there must be (1) residence, and (2) an intention to remain permanently or indefinitely. Where the physical facts as to residence are not disputed, the sole question is that of intention. See, more fully, as to domicil, Dicey on Domicil; Dicey on the Conflict of In the American cases a distinction is sometimes made, implicitly as well as explicitly, between domicil with reference to an independent country, and domicil with reference to a political division of a country. The former is called national domicil; the latter, municipal domicil. Jacobs, in his excellent work, also uses the term quasinational domicil, to indicate "that domicil which has for its seat a quasi-autonomous state, such as the States of this Union, or the various countries and colonies composing the realm of Great Britain." In discussing quasi-national domicil, however, the courts generally speak of "national domicil." But, in the case of municipal domicil, there is a tendency to give greater weight to mere residence or personal presence, and to recognize more readily a change of domicil, than in the case of national domicil; and to a less extent the same tendency may be observed in respect to quasi-national domicil. See Dicey's Conflict of Laws, Moore's American Notes, 158. Where a domicil is established in a particular place, it continues there till a new domicil is acquired. Price . Price, 156 Pa. St. 617, 27 Atl. 291; Cooper v. Beers, 143 III. 25, 33 N. E., 61; Cobb v. Rice, 130 Mass., 231; Reed's Appeal, 71 Pa. St., 378; Cruger v. Phelps, 47 N. Y. S. 61, 21 Misc., 252. Kosciusko's "declarations that his residence was in France, in the way they were made in his wills, with an interval of ten years between them, would, upon the authority of adjudged cases, be sufficient to establish, prima facie, his domicil in France. Such declara a Law of Domicil, § xv.; 4 Int. Law, § xlix. b Conflict of Laws, § 41. c Conflict of Laws, § 21. d Law of Domicil, §§ 77, 207, 362. . tions have always been received in evidence, when made previous to the event which gave rise to the suit. They have been received in the courts of France, in the courts of England, and in those of our own country. Kosciusko's domicil of origin was Lithu ania, in Poland. The presumption of the law is that it was retained. unless the change is proved, and the burden of proving it is upen him who alleges the change. (Somerville v. Somerville, 5 Veser. 787.) But what amount of proof is necessary to change a domicil of origin into a prima facie domicil of choice? It i residence elsewhere, or where a person lives out of the domicil of origin. That repels the presumption of its continuance, and casts upon him who denies the domicil of choice the burden of disproving it. Where a person lives is taken prima facie to be his domicil, until other facts establish the contrary. . . It is dif ficult to lay down any rule under which every instance of resi dence could be brought, which may make a domicil of choice. But there must be, to constitute it, actual residence in the place, with the intention that it is to be a principal and permanent residence. That intention may be inferred from the circumstances or condition in which a person may be as to the domicil of his origin, or from the seat of his fortune, his family and pursuits of life. A removal which does not contemplate an absence from the former domicil for an indefinite and uncertain time is not a change of it. But when there is a removal, unless it can be shown, or inferred from circumstances, that it was for some particular purpose, expected to be only of a temporary nature, or in the exercise of some particular profes sion, office, or calling, it does change the domicil. The result is that the place of residence is prima facie the domicil, unless there be some motive for that residence not inconsistent with a clearly established intention to retain a permanent residence in another place." Ennis r. Smith, 14 How. 422, et seq. . With regard to an act of the Colombian Congress, in 1866, which undertook to define, among other things, "the circumstances which are to afford a presumption of the purpose of a foreigner to become domiciled" in that country, Mr. Seward said: "One of these [circumstances is marriage with a native and two years continuous resi dence. The time and circumstances which constitute the legal domicil of a foreigner have usually been a subject of judicial decision, and as such it varies according to the facts of the case. The right of a government to define such domicil by municipal law can. not be questioned. Such a right can only be relinquished or modified by treaty. The definition by statute may seem arbitrary; but if a foreigner goes to or stays in a country where it prevails he can not reasonably complain, especially if it should be impartially executed. Of course in this respect we can not submit to any discrimination against citizens of the United States." Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, No. 155, Citizens of the United States residing in countries where they enjoy extraterritoriality, thus living more or less under the protection of their own government and being answerable to its laws, "are generally held to retain their American domicil." Mr. Rives, Assist. Sec. of State, to Mr. Sewall, cons. general at Apia, The domicil of a married woman is, as a rule, the same as that of her husband, and changes with it. Anderson . Watt, 138 U. S. 694; Howland . Granger, 45 Atl. 740. See Matter of Florance, 54 Hun (N. Y.) 328. But a wife may, after judi- The domicil of a widow is presumed to be that of her deceased husband, unless she has exercised the right to change it. Pennsylvania v. Ravenel, 21 How. 103. The domicil of a minor is the same as, and changes with, that of the father. Lamar v. Micou, 112 U. S. 452; Allgood r. Williams, 92 Ala. 551, 8 So. 722. The domicil of a minor whose father is dead is the same as, and changes with, the domicil of the mother, so long as she remains a widow. Kennedy r. Ryall, 67 N. Y. 379. It is not changed by her marrying again and acquiring the domicil of another husband. (Lamar r. Micou, 112 U. S. 452.) See Marks r. Marks, 75 Fed. Rep. 321. As to the power of a guardian to change the domicil of his ward, the following propositions have been laid down: "A testamentary guardian nominated by the father may have the same control of the ward's domicil that the father had And |