III. PARTICULAR RELATIONS. 1. Domicil of Birth. § 35. (a.) Legitimate Children.-These, by the Roman law, Legitimate have the same domicil as their father. It was open to them, however, subsequently to elect another domicil, upon which the first ceased to exist. But until they children have same domicil with father. were competent to execute such choice, and actually executed it, their domicil followed that of their father in whatever changes he might make, provided they remained members of his household. The modern law differs from the Roman, in this respect, as follows: Origo, in the old Roman sense, is now obsolete.2 The modern idea of origo simply conveys the legal fiction that a child is domiciled at his birth in the place of his father's domicil. This form of origo (descent, Herkunft) fixes alike the jurisdiction that attaches to the child and the legal relations with which he is invested. To this state several modern civilians have applied the term domicilium originis; and although this expression involves an absurdity according to the Roman law, it rests upon a natural hypothesis in our own. It simply means, "This was a domicil acquired, not by choice, but by birth." In England and the United States there can be no question that a legitimate child takes at its birth its father's domicil.5 And so as to nation 3 § 36. The nationality of legitimate children has been already discussed, and it has been seen that internationally the children of persons travelling in a foreign land partake of their parents' nationality, subject to the right to elect, when they arrive at twenty-one years, their nationality of birth.o ality. dren take er's dom § 37. (b.) Illegitimate Children.—According to the old jurists, illegitimate children take the mother's domicil.1 And Illegiti such, according to high authority, is the prevalent mod-mate chilern law.2 Bluntschli3 thus states the law: "Illegiti- the mothmate (uneheliche) children, when not taken by an icil. adoptive father, accept the mother's home-rights, but do not follow her in other territorial relations, should she subsequently, through marriage, make such change." But there is a growing tendency, which Bluntschli, who may be viewed as the leader of the liberal jurists of Germany, represents, to regard the father who acknowledges his illegitimate children, or who is adjudged to be such by the law, as imparting his domicil to such children. mated chil § 38. (c.) Legitimated Children. The domicil of a legiti mated child, as soon as he is legitimated, follows that Legitiof the father. It is a more difficult question, however, whether such legitimation can take place, so as to work a change of domicil, without the consent of the court domicil. til that impresses its characteristics on the child, Fiore (Op. cit. § 82), in this as well as in other matters of capacity, argues for nationality. See supra, §§ 7, 8. No matter, he insists, what may be the place where the marriage was celebrated, or the place where the husband was domiciled at the time when the ceremony took place, it is certain that, as the husband is the member of a particular nation, the new family which he forms must belong to this nation, since the law to regulate the marriage should be that of the nation of the husband, under the protection of which the new family exists, and to which its members belong. This is well enough if we regard nationality as convertible with domicil. But suppose, as is the case with many European marriages, the ceremony takes place on the eve of emigration to the United States? And suppose, as is the case with all marriages in the United States, the nationality has no distinctive muni dren take the fa ther's cipal system of laws, but embraces a 2 Phil. iv. p. 90; Story Confl. of Laws, § 46; Wright's Trusts, 2 K. & J. 595. Hall's Int. Law (1880), § 69. 8 Das Moderne Völkerrecht, § 366. Legitimation is considered, infra, having jurisdiction of such child. Bar argues that it cannot; and this view is supported by the fact that until the period of such legitimation the father is in the eye of the law a stranger; and consequently cannot, by his own single action, effect so serious a change in the destinies of the child. For this purpose is needed the consent of the court having jurisdiction of the guardianship of the child. The question as to what law determines the legitimation of children born illegitimate will be hereafter treated.1 Foundlings are domiciled in § 39. (d.) Foundlings. The place where foundlings are discovered is held to be their domicil, with the qualification that removal to a place of education, or adoption in a private family, carries domicil with it.2 § 40. As we have already seen,3 nationality and domicil are place where found. SS 240 et seq. Mr. Dicey (Domicil, p. 69) says, that "in the case of a legitimated person, the domicil of origin is the domicil which his father had at the time of such person's birth." To this he cites Udny v. Udny, L. R. 1 Sc. Ap. 441; Dalhousie v. M'Douall, 7 Cl. & F. 817; Munro v. Munro, Ibid. 842; Wright's Trusts, 2 K. & J. 595. In Munro v. Munro, 7 Cl. & F. 881, Lord Cottenham expressly places the case on the ground that the child, “being the child of a domiciled Scotchman, had, at the moment of birth, a capacity for being legitimated by the subsequent marriage of parents." But while in England it is undoubtedly the law that the law of the father's domicil at the time of the child's birth is in such cases to prevail, it by no means follows that should the father remove to a state whose laws permit such legitimation, and there marry the mother of the child, the courts of the latter state would not hold the legitimation as operating. And in cases where the mother's domicil is in a state allowing such legitimation, why does not the child receive, as do (1.) L'enfant naturel d'un étranger devenu Français par l'effet d'un traité international et devenu étranger par son établissement en pays étranger suit la nationalité de son père quand il joint à une possession d'état constante le bénéfice d'une reconnaissance résultant du testament de son père. (2) D'après la loi espagnole, la reconnaissance d'un enfant peut entraîner sa légitimation, alors même qu'elle est postérieure au mariage du père avec la mère. Jour. du droit int. privé, 1879, p. 176. 1 Infra, §§ 240–247. 2 Linde, Lehrbuch, § 89; Savigny, Röm. Recht. viii. § 359; Vattel, i. ch. 19, §§ 212, 215; Heffter, pp. 108, 109; Felix, p. 53. 8 Supra, § 8. National ity distinfrom dom guishable far from being convertible. (1.) An emigrant may become domiciled in this country as soon as he puts his foot on its shores; but his nationality as a citizen of the United States will not be perfected until he is naturalized. (2.) Multitudes of persons are domiciled in foreign countries without any intention of being naturalized, or taking the nationality of such country. (3.) In federative systems there is a plurality of domicils to one nationality.1 1 In Udny v. Udny, L. R. 1. S. & D. Ap. 441, before the Naturalization Act of 1870, the following points were made: Every individual at his birth becomes the subject of some particular country by the tie of natural allegiance, which fixes his political status, and becomes subject to the law of the domicil which determines his civil status. Per Lord Westbury: To suppose that, for a change of domicil, there must be a change of natural allegiance, is to confound the political and civil status, and to destroy the distinction between patria and domicilium. Per the Lord Chancellor: A man may change his domicil as often as he pleases, but not his allegiance. Exuere patriam is beyond his power. Dictum of Lord Kingsdown, in Moorhouse v. Lord (10 Ho. Lords Cas. 272), qualified. Per Lord Westbury: It is a settled principle that no man shall be without a domicil, and to secure this end the law attributes to every individual as soon as he is born the domicil of his father, if the child be legitimate, and the domicil of his mother, if the child be illegitimate. This is called the domicil of origin, and is involuntary. It is the creation of law, not of the party. It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which icil. puts an end to the status civilis of the criminal; but it cannot be destroyed by will and act of the party. Domicil of choice is the creation of the party. When a domicil of choice is acquired, the domicil of origin is in abeyance, but it is not absolutely extinguished or obliterated. When a domicil of choice is abandoned, the domicil of origin revives; a special intention to revert to it being unnecessary. Per Lord Chelmsford: Story says that the moment a foreign domicil is abandoned, the native domicil is reacquired. The word "reacquired" is an inaccurate expression. The meaning is, that the abandonment of an acquired domicil ipso facto restores the domicil of origin. If, after having acquired a domicil of choice, a man abandons it, and travels in search of another domicil of choice, the domicil of origin comes instantly into action, and continues until a second domicil of choice has been acquired. Per Lord Westbury: A natural-born Englishman may domicil himself in Holland; but if he breaks up his establishment there and quits Holland, declaring that he will never return, it is absurd to suppose that his Dutch domicil clings to him until he has set up his tabernacle elsewhere. Heffter (§ 59), who is usually so accurate as well as authoritative, assumes that internationally a perma Infant's domicil changes with that of father, 2. Domicil of Infants. § 41. Domicil, in relation to birth and nationality, is considered under prior heads. The infant's domicil, as a rule, follows that of the parent from whom it derives its domicil of origin. When the parent's domicil shifts, nent domicil involves nationality. But 16 Gray, 337; Alston v. Newcomer, Bluntschli (Völkerrecht, § 357) calls 42 Miss. 186. That the term "resiattention to the fact that, in many dence," when used in a statute as decivilized states, foreign merchants and scribing political subjection, is equiv manufacturers acquire a domicil while alent to domicil, see supra, § 21; they retain their original nationality. Hinds v. Hinds, 1 Iowa, 36; State v. To this it may be added that most Minnick, 15 Iowa, 123. governments impose conditions on naturalization much stricter than those imposed by international law on domicil, so that the latter can readily happen without the former. Sce, also, Goldschmidt, Handbuch des Handelrechts, 1862, p. 275. The Code Civil (§ 17) declares expressly that, in cases of doubt, a mercantile settlement in a foreign land is not to be viewed as emigration. It is not "sans esprit de retour." At the same time Bluntschli (§ 369) is clearly right when he argues that, in default of other titles to nationality, that of domicil, or even of a long residence, should be admitted. Goldschmidt (p. 274) points out an inconsistency in the French and Austrian Codes, in that they make nationality the test of the capacity of their own subjects, but domicil that of the subjects of other lands. See Demangeat on Fœlix, i. p. 57; Unger, Oesterr. Privatrecht, i. § 23. See infra, §§ 75, 93; Hall's Int. Law (1880), § 172. That domicil and citizenship are distinguishable, and that domicil in a foreign country does not preclude citizenship in this, see Brown v. U. S. 5 Ct. of Cl. 571; Van Glahn v. Varrenne, 1 Dill. 515. That domicil and residence are not convertible, see Briggs v. Rochester, The fact that I have become domiciled in a foreign country without partaking of its nationality does not relieve me from being considered a subject of such country in spoliation issues. Thus it was held by the commission nominated under the Convention of 1853, between the United States and Great Britain, to liquidate the claims between the two powers, that English subjects by birth, who had been established in 1829 as merchants in Mexico, where they continued to reside, could not make claim as British subjects as against the United States, for goods confiscated as Mexican property by the United States army at the taking of Mexico in 1847. And the English Commission, under the treaty of Paris of 1814, decided that a foreigner domiciled in England (he being a French emigrant) could claim against France as a British subject. Lawrence sur Wheat. iii. 127. To same effect ruled the joint commission of 1872-3 to adjust claims arising during the American civil war. U. S. Foreign Relations, 1873-4, vol. i. pt. iii. Infra, § 73. In Koszta's case, Mr. Marcy took the ground that every state has by international law the right to protect its domiciled residents, though they be |