DOMICIL, or DOMICILE, a residence; in law, the place where a person has his or her principal residence. In French law it is only a step to naturalization. In English law it implies something more than mere residence. A person has either a dom icil of origin or a domicil of choice. The former is the place of his parents' home—and the latter is the place where he intends to reside. In the United States, it is the place where a person exer cises his political rights.
Since the beginning of the 19th century most of the leading European States have unified their internal laws; and attach ment to a province by domicil having thus become an unnecessary consideration, they have adopted political nationality as the cri terion of the law to be applied in most of the questions which used to depend on domicil. Thus as between themselves they have greatly simplified the determination of those questions, but a sim ilar elimination of domicil is impossible in what concerns British subjects, because the British empire continues to include a great variety of laws, as those of England, Scotland, the province of Quebec, the Cape Colony, etc. Within the British dominions domi cil is the only available criterion of the legal character of a British subject, and all British courts continue to apply the same criterion to British subjects outside those dominions and to foreigners.
The Roman jurists defined domicil to be the place "ubi quis larem rerumque ac fortunarum summarn constituit; unde rursus non sit discessurus si nihil avocet: unde cum pro f ectus est, pere grinari videtur: quo si rediit' peregrinari iam destitit." This makes that place the domicil which may be described as the headquarters of the person concerned ; but a man's habits of life may point to no place, or may point equally to two places, as his headquarters, and the connection of domicil with law requires that a man shall always have a domicil, and never more than one. The former of these difficulties is met in the manner described by Lord West bury in Udny v. Udny. I H.L. Sc.A.) "It is," he said, "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 the 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 destroys the status civilis of the criminal ; but it cannot be destroyed by the 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 is not absolutely extinguished or oblit erated. When a domicil of choice is abandoned, the domicil of origin revives, a special intention to revert to it not being neces sary. 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." If to this we add that legitimate minors follow the changes of the father's domicil and a married woman follows the domicil of her husband, also that compulsory detention will not create a domicil, the outlines of involuntary domicil will have been sufficiently sketched.
For the establishment of a domicil of choice there must be both animus and factum, intention and fact. The fact need not be more than arrival in the territory of the new domicil if there be the necessary intention, while any number of years' continuance there will not found a domicil if the necessary intention is absent. As the result of the most recent English and Scottish cases it may be laid down that the necessary intention is incompatible with the contemplation by the person in question of any event on the occurrence of which his residence in the territory in question would cease, and that if he has not formed a fixed and settled purpose of settling in that territory, at least his conduct and dec larations must lead to the belief that he would have declared such a purpose if the necessity of making an election between that territory and his former one had arisen. The word territory, mean ing a country having a certain legal system, is used advisedly, for neither the intention nor the fact need refer to a locality. It is possible that a Scotsman or a foreigner may have clearly estab lished a domicil of choice in England, although it may be impos sible to say whether London, Brighton or a house in the country is his true or principal residence. What is here laid down has been gradually attained. In the older English cases an intention to return to the former domicil was not excluded, if the event on which the return depended was highly uncertain and regarded by the person in question as remote. Afterwards a tendency towards the opposite extreme was manifested by requiring for a domicil of choice the intention to associate oneself with the ideas and habits of the new territory—Quatenus in illo exuere patriam, not in the political sense, which it was never attempted to connect with change of domicil, but in the social and legal sense. At present it is agreed that the only intention to be considered is that of residence, but that, if the intention to reside in the territory be proved to amount to what has been above stated, a domicil will be acquired from which the legal consequences will follow, even defeating intentions about them so clearly expressed as, for in stance, by making a will which by reason of the change of domicil is invalid. The two most important cases are Douglas v. Douglas (1871), L.R., 12 Eq. 617, before Vice-chancellor Wickens, and Winans v. Att. Gen. (1904), A.C. 287, before the House of Lords.
When the circumstances of a person's life point to two terri tories as domicils, the selection of the one which alone can fill that character often leads to appeals even up to the highest court. The residence of a man's wife and family as contrasted with his place of business, his exercise of political or municipal functions, and any conduct which tends to connect his children with a given country, as by their education, or the start given them in life, as well as other indications, are often cited as important ; but none of them is in itself decisive. The situation must be considered as a whole. When the question is between the domicil of origin and an alleged one of choice, its solution is rendered a little easier than it is when the question is between two alleged domicils of choice, the burden of proof lying on the party which contends that the domicil of origin has been abandoned.
In the state of the law which has been described it will not be found surprising that an act of parliament, 24 and 25 Vict. c. 121, recites that by the operation of the law of domicil the expectation and belief of British subjects dying abroad with regard to the distribution of their property are often defeated, and enacts that when a convention to that effect has been made with any foreign country, no British subject dying in such country shall be deemed to have acquired a domicil therein, unless he has been resident in such country for one year previous to death and has made a declaration in writing of his intention to become domiciled; and that British subjects so dying without having so resided and made such declaration shall be deemed for all pur poses of testate or intestate succession as to movables to retain the domicil they possessed at the time of going to reside in such foreign country. Similar exemptions are conferred on the sub jects of the foreign State dying in Great Britain or Ireland. But the act does not apply to foreigners who have obtained letters of naturalization in any part of the British dominions. It has not been availed of, and is indeed an anachronism, ignoring as it does the fact that domicil has no longer a world-wide importance, ow ing to the substitution for it of political nationality as a test of private law in so many important countries. The United States of America is not one of those countries, but there the importance of domicil suffers from the habit of referring questions of ca pacity to the law of the place of contract instead of to any personal law. (J• W•)