ports spoils which they had wrung in times of peace from foreign ships. The attempts made to punish on land offences committed. on shipboard were but slight. The admiralty, it is true, claimed authority; but the high admiral administered, according to forms which were at once odious, capricious, and inadequate, only a quasi court-martial jurisdiction belonging to him as head of the fleet. The appeals to this jurisdiction, however, were rare. The usual remedy for unsuccessful revolt was summary punishment on shipboard; and as to this the officers exercised despotic sway. When revolt was successful, all that was necessary was for the culprits to take refuge in a foreign port, and there triumphantly to defy pursuit. Nor was it any better in settlements made in barbarous or desert lands. The flag, it used to be thought, would punish for itself. Wrongs inflicted on other Englishmen, the head of the expedition, if not the wronged party, would avenge; for wrongs inflicted on the savage there was no avenger. The consequences were disastrous. Men left England to plunder on the high seas or in the Indies, and came back to enjoy their plunder in conspicuous but undisturbed repose. If only the place where the offender stood at the time of the offence has jurisdiction, then of offences of this class there is no court of any country that has jurisdiction. The difficulty, however, is met by the adoption of the objective theory, the theory that the country in which the crime takes effect has jurisdiction to punish the offender. A crime, therefore, that is committed on a United States ship on the high seas, the ship being part of the dominion of the United States, is cognizable in a United States court. And as all civilized nations have a common right to the high seas, piracy on the high seas is cognizable in the courts of all civilized nations. (4.) The subjective theory rests on a petitio principii. 1 It may be said that the principle advocated in the text militates with the provision in the Constitution of the United States that a criminal trial shall be in the state or district wherein the crime shall have been committed." If so, all prosecutions in federal courts for offences on the high seas, and for counterfeiting in foreign countries, militate against this sec tion. But the true meaning of the section is that the trial must be, not where the offender was at the time of the offence, but where the crime itself was committed; i. e. consummated. See fully Whart. Crim. Law, 8th ed. §§ 271 et seq. I have discussed the topic in the text at large in an article in the Criminal Law Magazine for November, 1880, pp. 689 et seq. "This place," such is the assumption, "has jurisdiction because the defendant was in it at the time of the commission of the crime." It makes, therefore, jurisdiction dependent upon the guilt of a party whose guilt is not proved. 62 I. DEFINITION. CHAPTER II. DOMICIL. Domicil determines personal capacity and liability, § 20. Domicil is a residence acquired as a final abode, § 21. By Savigny it is defined as a place voluntarily selected as a centre of business, § 22. By Vattel as a residence adopted with the intention of always staying, § 23. II. HISTORICAL DEVELOPMENT. By old Roman law membership of urban community was by "origo" or "domicilium," § 24. Under "origo" was included, birth, adoption, manumission, and enfranchisement, $25. Foundlings are domiciled in place where found, § 39. Nationality of birth distinguishable from domicil, § 40. 2. Infants. Infant's domicil changes with that of father, not necessarily with that of mother, § 41. Guardian cannot change domicil except with leave of court, § 42. 3. Married Women. Wife's domicil is that of her husband, § 43. Compulsory domicil of husband does not affect wife, § 44. Otherwise wife's domicil changes with that of husband, § 45. Separations by law sever domicil, § 46. 4. Servants. By subsequent laws citizenship was gener- Servant's domicil depends on permanence ally conferred, § 26. "Domicilium" was the result of choice, § 27. of service, § 47. 5. Students. In such case animus manendi must be shown, Student's domicil is his home, § 48. § 28. Domicils might be plural, and there might be persons without domicil, § 29. The Roman "origo" no longer exists, § 30. Domicil no longer involves subjection to an urban community, § 31. It determines applicatory territorial jurisprudence, § 32. Impracticability of other tests of personal law, § 33. Nationality cannot be taken as a substitute, § 34. III. PARTICULAR RELATIONS. 1. Domicil of Birth. Legitimate children have same domicil as father, § 35. And so as to nationality, § 36. Illegitimate children take mother's domicil, $37. Legitimated children take father's domicil, $38. Corporation's domicil is its centre of busi6. Corporations. ness in the place of its creation, § 48 a. 7. Domicil of Ambassadors and Consuls. Domicil of diplomatic agents is in the country by which they are accredited, § 49. 8. Public Officers. Soldier's domicil is his home, § 50. Officers on permanent duties may be domiciled in place of such duties, § 51. 9. Lunatics. Lunatic's domicil to be fixed by court, § 52. Father may change domicil of insane child, $ 53. 10. Prisoners and Exiles. Imprisonment and exile do not involve new domicil, § 54. IV. CHANGE OF DOMICIL. Old domicil presumed to continue until new be assumed, § 55. Burden on party holding residence is not domicil, § 55 a. Change must be in intention and fact, § 56. Permanent residence with settled business duties may constitute change, § 57. A new domicil may be immediately acquired, § 58. Commercial domicil may be obtained in for- Otherwise as to barbarous lands, § 71. Otherwise as to matters political, matrimo- Original domicil does not revive on aban- One domicil only for poll and succession Domicil determines personal capacity and liabil ity. I. DEFINITION. § 20. ASSUMING, in conformity with the conclusions which have been just stated, that domicil, not nationality, is the arbiter of personal law, the importance of determining in what domicil consists becomes manifest. By the law of domicil, capacity, if not absolutely and ubiquitously determined, is primarily defined. By the law of domicil state taxation is adjusted. By the last domicil of a decedent is the succession of his personal estate shaped. By matrimonial domicil is the condition of the matrimonial estate prescribed. Domicil is the international standard by which jurisdiction in divorce suits is adjudged. The domicil of debtors, of factors, of contractors of all kinds, may become an important ingredient in the engagements they undertake. As preliminary, therefore, to a more minute discussion of the points to which the law of domicil is applicable, let us inquire in what domicil consists. § 21. Domicil is a residence acquired as a final abode. To constitute it there must be: (1.) residence, actual or inchoate; (2.) the non-existence of make a domicil elsewhere.1 1 Sir R. Phillimore (iv. p. 43), after showing the inadequacy of prior definitions, proceeds as follows: "Perhaps, however, the American judges have been most successful in their attempts, and from a combination of their dicta upon different occasions, we may arrive at a tolerably accurate definition in designating it a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.'"' To this he cites Guier v. Daniel, 1 Binn. R. 349, note, giving as definition "a residence at a particular place, accompanied with positive or presumptive proof of continuing there for an unlimited time." See, also, Laneuville v. Anderson, 22 Eng. Law & Eq. 642; 9 Moore P. C. 325; Greene v. Windham, 13 Me. 225; Putnam v. Johnson, 10 Mass. 488; Daniel v. Sullivan, 46 Ga. 277. But as all proof is now understood to be "presumptive," i. e. inferential or circumstantial, it is hard to see in what "positive," in this definition, differs from " "presumptive." And in any view the terms are redundant as here used. Mr. Dicey, in his work on Domicil, p. 42, says that "The domicil of any person is, in general, the place or country which is in fact his permanent home; but is in some cases the place or country which, whether it be in fact his home or not, is determined to be his home by a rule of law." For the statement, that "domicil means permanent home," he cites Lord Cranworth, Whicker v. Hume, 28 L. J. (Ch.) 396, 400; Attorney General v. Rowe, 31 L. J. (Ex.) 314, 66 any intention to 320. I prefer the term "final" to 'permanent." I may abandon my home in my present domicil, and may expect to be absent for years; yet if I intend to return and resume my home in this domicil, it continues my domicil. Compare article in London Law Mag. for 1873. It would be a dangerous doctrine to hold that mere residence, apart from the consideration of circumstances, constitutes a change of domicil. A question which no one could settle would immediately arise, namely, what length of residence should produce such consequence. It is evident that time alone cannot be the only criterion. There are many cases in which a very short residence would constitute domicil, as in the case of an emigrant, who, having wound up all his affairs in the country of his origin, departs with his wife and family to a foreign land and settles there. In a case like that, a residence for a very brief period would work a change of domicil. "Take a contrary case, where a man, for business, or pleasure, or mere love of change, is long resident abroad, occasionally returning to the country of his origin, and maintaining all his natural connections with that country, the time of residence would not to the same extent, or in the same degree, be proof of a change of domicil." Hodgson v. De Beauchesne, 12 Moore, P. C. 285. Per curiam. It is impossible to get at the true idea of domicil unless we take into consideration the fact, that it is the family relation which it is the dominant policy of the state to preserve. |