§ 151d. Case of the cause it had not been pronounced by the Court of Divorce here" (i). only be removed by the Legislature" (k). An interesting case regarding the effect to be attributed to the second marriage of a woman in Germany, who had been previously married in France, where divorce is not permitted, occurred in 1875. The Princesse de Bauffremont was married in France to a Frenchman, and in August, 1874, obtained a séparation de corps from the French Courts. In May, 1875, she was naturalized at Saxe-Altenbourg, and became a subject of the German Empire. She then domiciled herself near Dresden, and in October, 1875, married the Prince Bibesco, at Berlin, according to the laws of Germany. The opinion of Herr Holtzendorff, a professor at Munich, was asked as to the effect of this second marriage, and he fully considers the subject in his reply (1). By the law of Germany, naturalization will not be conferred unless the applicant is capable of contracting by the law of his own country (m). This refers to a general incapacity to contract, and the incapacity of a French subject to marry after a séparation de corps, is a special incapacity, and one not contemplated in the German law. Hence the naturalization of the Princess was valid in Germany. The French code (n) provides without any limitation, that the quality of French subject is lost by naturalization abroad, and by the common law of Germany a séparation de corps is looked upon as equivalent to a divorce (o). Thus Herr Holtzendorff argued that the Princess, having rightfully ceased to be a French, and having become a German subject, also acquired the right of marrying again, and that the marriage was certainly valid in Germany. Whether the marriage would be recognised in France appears to be an open question, but there is some authority for supposing that it would (p). (i) [Shaw v. Gould, L. R. 3 H. L. 96. See also Brodie v. Brodie, 2 Sw. & Tr. 259]. (k) [Ibid., p. 88]. (1) [See Revue de Droit International, 1876, p. 205]. (m) [Law of 1st June, 1870]. (n) [Code Civil, art. 17]. () [Schulte, Handbuch des Katholishchen Eherechts (ed. 1855), p. 596]. (P) [Merlin, Questions de Droit, Divorce, § 11, p. 350. Story, § 214]. CHAPTER II A. NATIONAL CHARACTER AND DOMICILE. QUESTIONS relating to national character and domicile, are of such importance in private international law, and have so frequently arisen since Mr. Wheaton published the last additions to his text, that some account of the present state of the law on these points seems necessary. The question of domicile as it affects the property of merchants during war is considered in a subsequent part of this work (a). It has been distinguished from domicile jure gentium during peace (b). It is necessary at the outset to distinguish clearly what is meant by the terms national character and domicile. The distinction was explained by Lord Westbury in the House of Lords as follows:-"The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one, by virtue of which he becomes the subject of some particular country, binding hin by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicile, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage succession, testacy or intestacy must depend "(c). The political status of the individual is called his national character, his civil status is referred to by the term domicile. Domicile and residence are two distinct things. Residence is a matter of fact, although it is difficult to define what amounts to it (d), but domicile is an idea of law. It is a relation which the law creates between an individual and a particular country in which the individual is said to have his domicile (e). National character is also an idea of law, but it is quite distinct from domicile. (a) [See post, §§ 318 to 339]. (b) [Per Dr. Lushington in Hodgson v. De Beauchesne, 12 Moo. P. C. 313]. (c) [dny v. Udny, L. R. 1 Sc. & Div. 457]. (d) [King v. Foxwell, 3 Ch. D. 520]. (e) [Bell v. Kennedy, L. R. 1 Sc. & Div. 307]. § 151 A. Distinctions be tween na tional cha racter, domicile, and allegiance. § 151 B. Definitions of domicile. § 151 C. Domicile of origin and of choice. A person may be invested with the national character, of one country, and be domiciled in another (ƒ). Allegiance is a term synonymous with national character. By it is understood the obligations of fidelity and obedience, which an individual owes to the State whose national character he bears (g). It is remarkable no definition of domicile has as yet been universally accepted (h). It has been said to be "A residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time"(). This explains what constitutes a domicile, perhaps better than it can otherwise be expressed, but t is not strictly a definition. The actual fact of residence makes it probable the party is domiciled there, but on the other hand a person may be domiciled in a country he seldom visits. In its ordinary acceptation a person's domicile means the country where he lives and has his home (k), and if he has been married and has not been separated from his wife, the country of his domicile will probably be the one where his wife lives-that is where his chief establishment for the purposes of habitation is. But the presumption thus created may be repelled by evidence that it was not the person's intention to remain there for an indefinite time (1). Two ingredients are essential to domicile. There must be the fact that an abode which can in some shape or other be considered a home exists in the country, and there must be the intention that this abode shall not cease to be the home within any definite period. The domicile of a wife is that of her husband (m), but if the husband and wife live apart, without being judicially separated, it seems that the wife may acquire a separate domicile from that of the husband (n). It is a settled principle that no man shall be without a domicile, and to secure this result the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate. This has been called the domicile of origin, and is involuntary. Other domiciles, including domicile by operation of law, as on marriage, are domiciles of choice. For as soon as an individual is sui juris, it is competent to him to elect and assume another domicile, the continuance of which depends upon his act and will. When another domicile is put on, the domicile of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicile of choice; but as the domicile of origin is the creature of 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 (f) [Per Lord Chancellor Hatherley in Udny v. Udny, L. R. 1 Sc. & Div. 452. Field, Int. Code (2nd ed.), p. 128]. (g) [Field, Int. Code, 261]. (h) [Maltass v. Maltass, 1 Robertson, 74]. (i) [Guyer v. Daniel, 1 Binney, 349, note; Mitchell v. U. S. 21 Wallace, 352]. (k) [Story, Conflict of Laws, § 41]. (1) [Forbes v. Forbes, Kay, 364; Aitchison v. Dixon, L. R. 10 Eq. 589]. entirely obliterated and extinguished. It revives and exists whenever there is no other domicile, and it does not require to be regained or reconstituted animo et facto, in the manner which is necessary for the acquisition of a domicile of choice. Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicile, not a definition of the term. There must be a residence freely chosen and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed, not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case, so soon as the change of purpose, or animus manendi can be inferred, the fact of domicile is established. The domicile of origin may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the statis civilis of the criminal; but it cannot be destroyed by the will or act of the party. Domicile of choice, as it is gained animo et facto, so it may be put an end to in the same manner. When put an end to, the domicile of origin revives and continues until the individual acquires another domicile of choice. Suppose a natural born Englishman to settle in Holland and acquire a Dutch domicile. After a time he quits Holland and travels in France or Italy without settling anywhere. As soon as he quits Holland, his English domicile of origin revives, and continues till he acquires another domicile of choice (0). What is a man's domicile is a question of fact; the consequences of being invested with it, when ascertained, are a question of law. The intention of a person to acquire a domicile of choice must be collected from various indicia incapable of precise definition (p). When a domicile has been acquired it is presumed to continue until it is shown to be renounced, and when a change is alleged, the burden of proof rests upon the party making the allegation (q). Mere length of residence in a foreign country will not of itself confer a new domicile, but it raises a presumption that it was the intention of the party to acquire such domicile (r). This presumption may be rebutted by evidence showing that there was not such an intention. It may also be presumed that a person is less likely to relinquish a domicile of origin than a domicile of choice; greater proof of intention is required in the former than in the latter case (s). This is so especially when the party is connected (o) [See judgment of Lord Westbury in Udny v. Udny, L. R. 1 Sc. & Div. 457-9]. (p) [Forbes v. Forbes, Kay, 353]. (q) [Desmare v. U. S., 3 Otto, 605; Crockenden v. Fuller, 1 Sw. & Tr. 442; Mitchell v. U. S., 21 Wallace, 350]. (r) [Brunel v. Brunel, L. R. 12 Eq. 300]. (s) [Bell v. Kennedy, L. R. 1 Sc. & Div. 307; Shaw v. Shaw, 98 Massa § 151 D. Domicile of choice. § 151E. Change of domicile. § 151 F. Intention to change domicile. § 151 G. Acquisition of domicile and na racter. with the country of his domicile of origin by some specific ties, such as being a peer of the realm, or serving in some public capacity such as the army or civil service (†). To change his domicile of origin a person must choose a new domicile -the word "choose " indicates that the act is voluntary on his parthe must choose a new domicile by fixing his sole or principal residence in a new country with the intention of residing there for a period not limited as to time (u). To change a domicile of choice it need only be relinquished, without any new domicile of choice being necessarily chosen. The intention required for a change of domicile as distinguished from the action embodying it, is not necessarily an intention to change a civil status; that is, an intention to cease to be subject to the laws of one country, and to place oneself under the laws of another. It is sufficient to work the change, if there be an intention to settle in a new country as a permanent home. If this intention exists, and is sufficiently carried into effect by acts, certain legal consequences follow, whether such consequences were intended or not, and perhaps even though the person in question may have intended the exact contrary. To prove such intention (in the absence of any express declaration), the evidence must lead to the inference that if the question had been formally submitted to the person whose domicile was in question, he would have expressed his wish in favour of a change (x). According to the French code the domicile of every Frenchman "est le lieu où il a son principal établissement” (y). Domicile depends almost entirely upon the will of the individual. He is invested with a domicile of origin at his birth, and this is involuntary, but he may by his own act change this and cause it to be inoperative tional cha- while the new domicile subsists, by locating himself in any country he pleases with the intention of settling there. National character, on the other hand, depends upon the will of the State. To divest himself of the national character he acquired at the time of his birth, an individual must in many cases obtain the consent of his own government, and to acquire a new national character the consent of the country of his adoption is always necessary (2). § 151 H. Incidents of national character. National character confers benefits, and imposes duties on the individual. It entitles him to the protection of his country wherever he may be, but it requires him to fulfil the duties of supporting the State, or defending it against its enemies. The extent to which States will protect their subjects, or claim their allegiance when abroad, depends chusetts, 158; Whicker v. Hume, 7 H. of L. Cas. 124. Wharton, Conflict of Laws, § 55]. (t) [Hamilton v. Dallas, 1 Ch. D. 257; Hodgson v. De Beauchesne, 12 Moo. P. C. 285; Sharpe v. Crispin, L. R. 1 P. & M. 611; Niboyet v. Niboyet, 3 P. D. 52]. (u) [King v. Foxwell, 3 Ch. D. 520]. (x) [Douglas v. Douglas, L. R. 12 Eq. 644-5; Haldane v. Eckford, L. R. 8 Fq. 631]. (y) [Code Civil, art. 102]. (*) [Westlake, § 20. Halleck, p. 695) Inglis v. Sailor's Snug Harbour, 3 Peters, 125. |