berus would seem, therefore, to stand upon just principles; and though, from its generality, it leaves behind many grave questions as to its application, it has much to commend it, in point of truth, as well as of simplicity. It has accordingly been sanctioned both in England and America by a judicial approbation, as direct and universal as can fairly be desired for the purpose of giving sanction to it, as authority, or as reasoning.1 [* § 38 a. We beg to suggest here, that the only ground of any difference of opinion in regard to the just foundation of the principle, by which the courts of one country in giving effect to contracts or relations created in a foreign country, allow the force and authority of the laws of the country where the transaction had its consummation; and whether this results from comity, or strict obligation, arises solely from not carefully discriminating between the different stages of the process by which the foreign transaction is carried into operation and effect in the domestic tribunals. In regard to the question, how far one country will afford redress for the violation of contracts, or the commission of torts, or any other breach of duty, committed in a foreign forum, it must, in the first instance, be mere matter of discretion with the nation where such redress is sought; and if any is afforded it may properly enough be said, in one sense, to be matter of courtesy, or comity, to the nation where the transaction occurred. In regard to this, we think the question of giving any redress at all in such cases pertains more to the local policy of the state where such refriendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it, as a part of the voluntary law of nations. It is truly said, in Story's Conflict of Laws, § 38, that, 'In the silence of any positive rule, affirming, or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government; unless they are repugnant to its policy, or prejudicial to its interests. It is not the comity of the courts, but the comity of the nation which is administered, and ascertained in the same way, and guided by the same reasoning, by which all other principles of municipal law are ascertained and guided.' 1 Out of the great variety of authorities in which the rules of Huberus are directly or indirectly approved, the reader is referred to the following: Co. Lit. 79 b, Hargrave's note, 44; Robinson v. Bland, 2 Burr. R. 1077, 1078; Holman . Johnson, Cowper, 341; 2 Kent, Comm. Lect. 39, p. 453 to p. 463 (3d edit.); Pearsall v. Dwight, 2 Mass. R. 84, 90; Desesbats v. Berquier, 1 Binn. R. 336; Holmes v. Remsen, 4 Johns. Ch. R. 469; Mr. Cowen's note to 4 Cowen, R. 410; Saul v. His Creditors, 17 Martin, R. 569, 596, 597, 598; Greenwood v. Curtis, 6 Mass. R. 358; Bank of Augusta v. Earle, 13 Peters, R. 519, 588 to 591. evident, to the dress is sought, than to its courtesy, or comity. But call it local policy, or comity; it clearly has reference, it is point of giving or withholding any or all redress. After the policy of affording such redress is once conceded, it is manifest, there no longer remains any further space for comity. The foreign law by which the contract or relation was created, and according to which, in its inception, it was expected, by the parties to the relation, to be performed, becomes an indispensable element, in order to translate such contract, relation, or duty, into the vernacular language of the forum, where the remedy is sought. And the courts, in referring to the law of the foreign state, in order to give the proper force and interpretation to the contract or relation, and the consequent duties and obligations, cannot be said to act from comity, any more than they could be said to refer to a dictionary of the foreign language from comity, when such reference was indispensable to the proper understanding of the terms in which the contract is expressed. The knowledge of the foreign language is no more indispensable to comprehend the natural force of the terms of the contract, than the knowledge of the foreign law is to a full comprehension of the legal effect of such terms. The nearest approach to the formal enunciation of this distinction which we have found in the language of any writer or judge, is in the opinion of Lord Stowell, in Dalrymple v. Dalrymple.1] [*12 Hagg. Const. R. 59; ante, § 37.] CHAPTER III. NATIONAL DOMICIL. [§ 39. Analysis of the subsequent parts of the work. § 40. What is the legal import of the word domicil? § 41, 42. It is the settled home; and ultimate returning, central point, of one's acquisitions, and affections. § 43. In France, domicil is the place of one's principal establishment. § 44. It is where one resides, without any present intent to remove. 45. The place of domicil affected by intention and choice. 45 a. In Massachusetts held that one must have one, and can have but one, domicil. § 46, 47. Leading principles of the law of domicil. 48. The application of these principles to different states and classes of persons. § 49. Domicil of origin, by choice, and by operation of law. § 49 a. § 49 b. 49 c. Extensive discussion of change of national domicil before the Privy Council. Change of domicil within same state, kingdom, &c.] § 39. HAVING disposed of these preliminary considerations, it is proposed, in the further progress of these commentaries, to examine the operation and effect of laws; first, in relation to persons, their capacity, state, and condition; secondly, in relation to contracts; thirdly, in relation to property, personal, mixed, and real; fourthly, in relation to wills, successions, and distributions; fifthly, in relation to persons acting in autre droit, such as guardians, executors, and administrators; sixthly, in relation to remedies and judicial sentences; seventhly, in relation to penal laws and offences; and eighthly, in relation to evidence and proofs. § 40. As, however, in all the discussions upon this subject, perpetual reference will be made to the domicil of the party, it may be proper to ascertain, what is the true meaning of the term "domicil"; or rather, what constitutes the national or local domicil of a party, according to the understanding of publicists and jurists.1 § 41. By the term "domicil," in its ordinary acceptation, is meant the place, where a person lives or has his home. In this sense the place where a person has his actual residence, inhabitancy, or commorancy, is sometimes called his domicil. In a strict and legal sense, that is properly the domicil of a person, where he has his true, fixed, permanent home, and principal 1 Upon the subject of this chapter the learned reader is referred to Burge's Comment. on Col. and Foreign Law, Vol. 1, P. 1, ch. 2, p. 32 to 57. CONFL establishment, and to which, whenever he is absent, he has the intention of returning (animus revertendi),1 § 42. In the Roman law it is said: "There is no doubt that every person has his domicil in that place, which he makes his family residence and principal place of his business; from which he is not about to depart, unless some business requires; when he leaves it he deems himself a wanderer; and when he returns to it, he deems himself no longer abroad." In eodem loco singulos habere domicilium, non ambigitur, ubi quis larem rerumque ac fortunarum summam constituit; unde rursus non sit discessurus, nihil avocet; unde cum profectus est, peregrinari videtur: quod si rediit, peregrinari jam destitit.2 And in another place it is said: "If any one always carries on his business, not in a colony, but in a municipality, or city, where he buys, sells, and contracts; where he makes use of, and attends the forum, the public baths, and public shows; where he celebrates the holidays, and enjoys all municipal privileges, and none in colony; he is deemed there to have his domicil, rather than in the place (colony), in which he sojourns for purposes of agriculture." Si quis negotia sua non in coloniâ, sed in municipio, semper agit; in illo vendit, emit, contrahit; eo in foro, balneo, spectaculis utitur; ibi festos dies celebrat; omnibus denique municipii commodis, nullis coloniarum, fruitur; ibi magis habere domicilium, quam ubi colendi causâ diversatur.3 And again: "He is deemed an inhabitant, who has his domicil, in any place, and whom the Greeks call wάpoikov, that is to say, a neighbor, or person inhabiting near to a village. For those are not alone to be deemed inhabitants, who dwell in a town; but those also, who cultivate grounds near its limits, so that they conduct themselves, as if their place of abode were there." Incola est, qui aliquâ regione domicilium suum contulit; quem Græci Táρoιkov, (id est, juxta habitantem) appellant. Nec tantum hi, qui in oppido morantur, incolæ sunt; sed etiam, qui alicujus oppidi finibus ita agrum habent, ut in eum se quasi in aliquam sedem, recipiant. Some, at least, of these, are more properly descrip 1 Dr. Lieber's Encyc. Americ. art. Domicil. And see Laneuville v. Anderson, 22 Eng. Law & Eq. R. 642. Cod. Lib. 10, tit. 39, 1. 7; Pothier, Pand. Lib. 50, n. 15; 1 Voet, ad Pand. Lib. 5, tit. 1, n. 92, p. 344; Id. n. 94, p. 345. 3 Dig. Lib. 50, tit. 1, 1. 27; Pothier, Pand. Lib. 50, tit. 1, n. 18; 2 Domat, Public Law, B. 1, tit. 16, § 3, art. 4. Dig. Lib. 50, tit. 16, l. 239, § 2; Id. 1. 203; Pothier, Pand. Lib. 50, n. 16. tions, than definitions of domicil. Pothier has generalized them in his own introduction, to this title of the Pandects, and says: The seat of the fortune or property, which any person possesses in any place, constitutes his chief domicil. Domicilium facit potissimum sedes fortunarum suarum, quas quis in aliquo loco habet.1 Voet says: Proprie dictum Domicilium est, quod quis sibi constituet animo inde non decedendi, si non aliud avocet.2 § 43. The French jurists have defined domicil to be the place, where a person has his principal establishment. Thus Denizart says: "The domicil of a person is the place, where a person enjoys his rights, and establishes his abode, and makes the seat of his property." Le domicile est le lieu, où une personne, jouissant de ses droits, établit sa demeure et le siége de sa fortune. The Encyclopedists say: "That it is, properly speaking, the place where one has fixed the centre of his business." C'est, à proprement parler, l'endroit, où l'on a placé le centre de ses affaires.* Pothier says: "It is the place, where a person has established the principal seat of his residence and of his business." C'est le lieu, où une personne a établi le siége principal de sa demeure et de ses affaires. And the modern French Code declares, that the domicil of every Frenchman, as to the exercise of civil rights, is the place where he has his principal establishment; (Est le lieu, où il a son principal établissement). Vattel has defined domicil to be a fixed residence in any place, with an intention of always staying there. But this is not an accurate statement. It would be more correct to say, that that place is properly the domicil of a person, in which his habitation is fixed without any present intention of removing therefrom.8 [The definition of the word domicil is, however, not without difficulty, and in a late case it was observed by Dr. Lushington, that although so many powerful minds had been applied to this question, there is no universally agreed definition of the term; no agreed enumeration of the ingredients which con 1 Pothier, Pand. Lib. 50, tit. 1, Introd. art. 2, n. 18. 3 Voet, ad Pand. Lib. 5, tit. 1, n. 94. * Denizart, art. Domicil. 4 Encyclop. Moderne, art. Domicil. Pothier, Introd. Gén. Cout. d'Orléans, ch. 1, § 1, art. 8. • Cod. Civ. art. 102. See also Merlin, Répert. art. Domicil. ' Vattel, B. 1, ch. 19, § 22. Dr. Lieber's Encyc. Amer. Domicil; Putnam v. Johnson, 10 Mass. R. 488; Tanner v. King, 11 Louisiana Rep. 175; Greene v. Windham, 13 Maine, 225. |