them. When this is so the State will take steps to dissolve the family. When chil-. dren are uncared for, when husband and wife are not mutually helpful and do not fulfill their obligations to each other and to the State, and the State finds it impossible to compel proper relations between them, the State will grant a divorce to the parties and thus dissolve the marriage status and the family relation."

Yet, so long as the family does exist, it is recognized as a legal institution and for of control there must be some one purposes person who can be looked to as the head of the family. This head of the family is responsible to the law for the proper conduct of the members of the family. Here a difficulty arises. People are migratory. There is a restlessness about human beings that cannot be ignored. They move about and will not "Stay put." Hence, if the law wants to find a person it may have to chase him all over the world, unless the law arbitrarily determined that a certain place should be the legal home of the person. That is, the law as the agency of the State, must be able to say to each person: "This is where you are because this is where you should be." That is the real meaning of giving each person a domicile. The domicile is the legal home. It is the place where the law can act upon the status of the individual no matter where the individual may be in corpore. The social interest in the control of the individual makes it imperative that there should be some one place at least where the law could reach that individual.

Of course, the legal home cannot be imposed with total disregard of the right of the individual to "free motion and locomotion." He must be given an opportunity to choose his domicile and to change it as his needs require. But he cannot destroy it.

(7) Cf. Recent Reports of the Proceedings of Conferences of Charities and Corrections. Reports of the Commission on Uniform Divorce Laws. Pamphlets of the U. S. Treasury Dept. (8) Spencer; Justice, Ch. 9-18.

nor totally exclude himself from the operation of the law. He must have a domicile somewhere, and if he does not indicate where that domicile is the law will fix it for him.

The meaning of "domicile" in the law is perfectly clear. It means the permanent home of the individual. Permanency, however, is not a matter of time but of intention. Residence in a place with the intention of abandoning the old home and setting up a new one is enough to establish a domicile in the new place.

The idea of the domicile in the Roman law was that it was the place within which the individual carried on his principal business and to which he thought he really belonged. Story says that "by the term 'domicile' 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 domicile. In a strict and legal sense, that is properly the domicile of a person where he has his true, fixed, permanent home, and principal establishment and to which whenever he is absent, he has the intention of returning (animus revertendi).”10

Westlake is to the same effect11 and so is Phillimore, 12 while Dicey says: "The domicile of any person is, in general, the place or the 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."

13

where his domicile is to be. That is, it is really a social interest of the State to secure so far as it is possible the individual interest in the free choice of a domicile.

Summing up these sections we find that the State has the following interests in the family institution and the marriage status: 1. An interest in the procreation of children.

An interest in the development of the members of the family as individual interests of the members themselves.

3. An interest in knowing where the individuals legally belong.

4. An interest in the education of the members of the family as good citizens of the State. This is the interest of the State in its own security and permanence.

5. An interest in the conservation of the family as a means whereby the preceding interests can be furthered and maintained.

6. An interest in looking at the family as a legal institution which is amenable to law, and the indication of some one member of that family as the head of the family, and so as the person to whom the State may look for the faithful performance of the duties of the family.

7. An interest in giving the family a domicile.

8. An interest in the creation of the family and the means whereby it is created.

9. An interest in the dissolution of the family, should the interests of the State or of the individual members of the family require it, and the means whereby such dissolution may be effected.

10. An interest in the creation and utilization of substitutes for the family when the family is dissolved or divided, and in the means employed in the creation and control of these substitutes.

This preliminary survey having been made, it is the purpose of the following pages to discuss the domicile of a married woman. The specific question asked is this: "Should a married woman have a domicile of her own for all purposes?" The answer will depend upon a determination of how far giving her a separate domicile will help to secure the largest number on interests involved in the marriage status. with the sacrifice of the fewest of these interests.

(14) Beale; Domicile of a Married Woman, 2 Southern Law Quarterly 93.

(15) Baldwin v. Flagg, 43 N. J. Law 495; Anderson v. United States, 202 Fed. 200; Succession of Daniel Christie, 20 La. An. 383; Colburn v. Holland, 14 Rich. Eq. 176 (S. C. 1876); Cone v. Cone, 61 S. C. 512; Dalhousie v. M'Douall, 7 Cl. & F. 817; In re Daly, 25 Beav. 456; Danbury v. New Haven, 5 Conn. 584; Dolphin v. Robins, 7 H. of L. 389; Dougherty v. Snyder, 15 S. & R. 84; Dow v. Gould, 31 Cal. 629; Faries v. Sipes, 99 Tenn. 298: Guilford v. Oxford, 9 Conn. 321; Greene v. Greene, 11 Pick. (Mass.) 410; Hackettstown Bank v. Mitchell, 4 Dutcher 516; Harrison v. Harrison, 20 Ala. 629; Harvey v. Farnie, 6 P. D.; Henderson v. Ford, 46 Tex. 627; Hood v. Hood, 11 Allen (Mass.) 196; Jackson v. Jackson, 18 Victoria Law Reports 766; Johnson v. Johnson, 75 Ky. (12 Bush) 485; Johnston v. Turner, 29 Ark. 280; Kennedy v. Kennedy, 87 Ill. 250; Knox v. Waldborough, 3 Green (Md.) 455; McGowan v. McGowan, 43 N. Y. S. 745; McKenna v. Brockhaus, 10 Bissels 128; In re MacKenzie (1911), 1 Ch. 578; Maguire V. Maguire, 7 Dana 181; Mason V. Homer, 105 Mass. 116; Masten V. Masten. 15 N. H. 159; Newcombs Executor v. Newcomb, 13 Bush (Ky.) 544; Ogden v. Ogden (1908), P. 46; Parrett v. Palmer, 8 Ind. Appl. 356; Warrender v. Warrender, 9 Bligh (N. S.) 89; Whiting v. Shibley, 127 Md. 113; In re Wickes, 128 Cal. 270; Williams v. Saunders, 5 Cold. (Tenn.) 60; Wingfield v. Rea, 77 Ga. 84; Wilmer v. Spicer, 152 N. W. 767; Winslow v. Troy, 97 Me. 130; Yelverton v. Yelverton, 1 Sw. Tr. 574; Brook v. Brook, 13 L. R. D. 9 (New South Wales); Halket v. Halket, 1 L. R. D. 12: Jewell v. Jewell, 30 W. N. 130 (New South Wales); Parker v. Parker, 8 L. R. 509; 5 C. L. R. 691; Cables v. Cables, 32 N. Z. L. R. 178; McCortie V. McCortie, 23 N. Z. L. R. 126; Walker v. Walker, 28 N. Z. L. R. 917; Edwards v. Edwards, 20 Gr. 392 (Ontario); Morcombe v. M'Lelland, Ferg. 264 (Scotland); Packer v. Packer, 3 Tasmania L. R. 5.

(16) 1 Bl. Com. 441. (17)

Paul's Epistle to the Ephesians, 5; 22.

that it prevented the greater evils of fornication and adultery. The church in its zeal to keep the souls of men unspotted from the world, and in its belief that the physical instincts should be overcome and destroyed so far as that was possible, neglected to observe and to realize that the very factors which make up the Christian spirit, which spirit the church was avowedly trying to foster, were most developed within the family life. The church wanted to destroy the body to save the soul. Failing in this, it made the best of a bad situation, and, looking upon the woman as the temptress of man, from the days of Adam and Eve down, it placed the woman under the control of the man. And when the State courts took over the control of the marriage status it also took over the idea of the subjection of the wife to her husband.

The second factor was probably this: In the seventeenth and the early part of the eighteenth centuries, the jurists and text writers tried to find a general principle that would explain the legal position of women and children. The Blackstonian phrases do explain the actual conditions of Blackstone's time. With the usual conservatism which permits the Courts to retain a principle or rule of law long after the reason for its existence has vanished, the old rule has been followed until very recent times, without regard to changing conditions and circumstances.

As the husband is in legal contemplation the only thing that exists, he is naturally the head of the family, when the law takes cognizance of the family as a legal institution. Where he is, is, therefore, the place where the family is. And as he must have a domicile somewhere, the place where he has his domicile is the domicile of the members of his family who are not sui juris. That is, the husband must establish the family home and the wife and children must live in it.18

(18) Codoni v. Codoni, 6 Cal. App. 83; State v. Flower, 27 Ida. 223; Babbitt v. Babbitt, 69 Ill. 277: Isaacs v. Isaacs, 71 Neb. 537; Cone v. Cone, 61 S. C. 512.

There is, of course, a good argument to be made in favor of this position. It is well stated by Crosbey, Surrogate, when he says: "If a married woman is to be given the right to choose her own residence, then the husband's right in that regard should be made subservient to her wish, in order that the home, the very foundation of society, may have a local habitation, without which it is but a name, and meaningless at that. Either the husband or the wife must have the final say in the matter of where their home is to be; and so long as the husband is burdened with the responsibility of feeding and clothing the family, the wife and children, that very responsibility ought to carry with it the authority to determine the location where his toil will earn its best reward for their benefit.

No statute ought to repeal the laws of nature. Man, by reason of his superior physical strength and the fact that he does not bear the children, must ever be the one to bear arms in war, and upon him must always fall the responsibility of providing for the family. The burden of his responsibility is the secret of his authority. And the legislature has not intended to go so far as to say that he shall be responsible for the care and maintenance of one who owes him no allegiance whatever. If, in addition to all her conceded rights, woman may now select her own home and domicile, it is hard to see where she has a single duty to perform for the one who becomes a disorderly person, under the Penal Code, the moment he neglects or refuses to earn her living for her by the sweat of his brow. If we have emancipated women to the extent claimed by the executors herein, the process of emancipating man ought now to begin."19

And says Prof. Beale in regard to the above argument: "It is not necessary to accept every sentiment herein expressed, but the soundness of the main argument is

undeniable." Other judges and text writers talk in the same way, and the strength of the argument will be conceded gladly if the interests which are impueary secured by the language used will be recognized, and if the rule will not be applied in such cases where it is obvious that the interests involved are not secured, but are obviously ignored if not destroyed.

The proper reasoning, it is submitted, which supports the rule that the domicile of the wife is that of her husband is this: The man wishes to expand his personality and to gratify his physical instincts by entering into the marriage relation. The State says to him: "We shall allow you to enter into this relation which we shall legally recognize, as the status of marriage. But as you enter into this relation you must assume certain duties, which we impose upon you. You must provide for your wife and children. You must see to it that they have opportunities to expand as individuals, and you must protect them from danger and harm. Furthermore, you must help them to become good citizens of the State, and if you do not help them do this, we shall see to it that, at least, you do not hinder them in this regard.

"As you are under a duty of providing for your family, we grant to you the right to go to such places where you can get the best results from your labors, as out of the fruits of your labors must the provision for your family come. We shall compel your wife and children to go with you and help you, so far as it is possible for us to do so, when we consider their interests and our interest in them as as individuals and as members of the State. You must make the home and they must live in it. Wherever you go they must go. Whatever control we have over them shall, so far as it is possible, be exercised through you. Hence, your domicile must be their domicile."

And it is urged that the right to fix the domicile which the husband has is one

which carries with it the duties to secure the interests of the wife and to act as a means of control over her as an agent of the State. The right cannot and should not be exercised unless the duties are discharged. And it is well settled law that so long as the duties are discharged, and even at times when they are not (with which last we quarrel), the domicile of the wife is that of her husband, and when he changes it during marriage, her domicile it drawn to his.20

But in the cases where the marital duties are not discharged and it is still held that the domicile of the wife is that of the husband it is submitted, that there has been either a slavish following of precedents without considering the situations or the facts in the cases cited as precedents, or else, that the interests of the wife were outbalanced by the other interests involved.21

An analysis of several typical cases will show this to be true.

(20) McKenna v. Broackhouse, 10 Biss 128; Anderson v. U. S., 202 Fed. 200; Dow. Gould, 31 Cal. 629; In re Wickes, 128 Cal. 270; Dean v. Dunn, 9 Cal. App. 352; Banbury v. New Haven, 5 Conn. 584; Wingfield v. Rea, 77 Ga. 84; Ilo v. Ramey, 18 Ida. 642; Ashbaugh v. Ashbaugh, 17 Ill. 476; Kennedy v. Kennedy, 87 Ill. 250; Parett v. Palmer, 8 Ind. Appl. 356; Petty v. Petty, 42 Ind. App. 443; McAfee v. Kentucky University, 7 Bush (Ky.) 735; Knox v. Waldoborough, 3 Me. 455; Winslow v. Tory, 97 Me. 130; Whiting v. Shipley, 127 Md. 113; Mason v. Homer, 105 Mass. 115; Wilmer v. Spicer, 152 N. W. 767; Baldwin v. Flagg, 43 N. J. L. 495; In re Hartman's Estate, 70 N. J. Eq. 664; Liscomb v. N. J. R. R. & T. Co., 6 Lans. (N. Y.) 75; In re Bushbey, 112 N. Y. S. 262; Gout v. Zimmerman, 5 N. C. 440; Smith v. Moorehead, 6 Jones Eq. (N. C.) 360; Dougherty v. Snyder, 15 S. & R. (Pa.) 84; Hunnings v. Hunnings, 55 Pa. Sup. Ct. 261; Cone v. Cone, 61 S. C. 512; Williams v. Saunders, 5 Cold. (Tenn.) 60; Faries v. Spies, 99 Tenn. 298; McClellan v. Carroll, 42 S. W. 185; Warrender v. Warrender, 9 Bligh (N. S.) 89, 103.

V.

(21) The wife cannot during the existence of the marriage acquire a domicile of her own; Blake v. Nelson, 29 La. Ann. 245; First National Bank v. Hinton, 123 La. 1018; Smith v. Moorehead, 6 Jones Eq. (M. C.) 360; Dolphin Robins, 7 H. L. C. 390; even though she is living apart from her husband by reason of his fault; Harrison v. Harrison, 20 Ala. 629; Neal v. Her Husband, 1 La. Ann. 315; Richardson v. Richardson, 2 Mass. 153; Hopkins v. Hopkins, 3 Mass. 158; or by his consent; Clements v. Lacy, 51 Tex. 150; Warrender v. Warrender, 9 Bligh (N. S.) 89, 145; nor if she has long ceased to dwell with

The three leading English decisions to the effect that the domicile of the wife is that of her husband are Dolphin v. Robins, 22 Warrender v. Warrender,23 and Yelverton v. Yelverton.24 The first of these cases will be considered later when divorce is taken up; the other, two cases will be taken up now.

On the authority of these three cases Dicey does not grant a wife a domicile of her own for any purposes. He says: "Though a wife may acquire a home for herself, she can under no circumstances have any other domicile or legal home than that of her husband.25 But Warrender v. Warrender is on the facts of the case an authority that the domicile of the wife is that of her husband only when the husband is still supporting the wife. In this case the husband is Scotch and the wife is English. The marriage took place in England. He was domiciled in Scotland. At the time of the marriage the wife took the domicile of the husband. Later there was an agreement made between them to separate, and the estates of the husband were charged to support the wife. Later still the wife goes to France to live. Then the husband

him and occupies a separate dwelling house: Johnson v. Turner, 29 Ark. 280; Davis v. Davis, 30 Ill. 180; Greene v. Windham, 13 Me. 225; Hood v. Hood, 11 Allen (Mass.) 196; McPherson V. Housel, 2 Beas. (13 N. J. Eq.) 35; Jackson v. Jackson, 1 Johns (New York) 424; Pauldings Will, 1 Tuck (New York) 47; Van Buren v. Syracuse, 131 N. Y. S. 345; Lacy v. Clements, 36 Tex. 661; Essex v. Jericho, 76 Vt. 194; Edwards v. Edwards, 20 Grant (Ont.) 392; Parker v. Parker, 5 Comm. L. R. (Australia) 691; Boyd v. Boyd (1913), Victoria L. R. 282; and even if the wife does not live at the domicile of her husband; Kashaw v. Kashaw, 3 Cal. 312; Babbitt v. Babbitt. 69 Ill. 277; Allen v. Allen, 175 Ill. App. 220; McCollem v. White, 23 Ind. 43; Maguire v. Maguire, 7 Dana (Ky.) 180; Gugat v. Markham, 2 La. 29; Succession of Christie, 20 La. An. 383; Succession of McKenna, 23 La. An. 369; Burlen v. Shannon, 115 Mass. 438; Hairstone v. Hairstone, 27 Miss. 704; Smith v. Smith, 19 Neb. 706; Hackettstown Bank v. Mitchell, 4 Dutcher (28 N. J. L.) 516; Colburn v. Holland, 14 Rich. Eq. (S. C.) 176; Russell v. Randolph, 11 Tex. 460; Yelverton v. Yelverton, 1 Sw. & Tr. 574.

(22) 7 H. L. C. 389 (1859).

(23) 9 Bligh (N. S.) 89.

(24) 1 Sw. & Tr. 574.

sues for divorce in Scotland, his own domicile, on the grounds that his wife had committed adultery in France. The wife was personally served in France. It was held that the Scotch court had jurisdiction to grant the divorce as the domicile of the wife was in Scotland. On the facts the case was rightly decided. The husband was fulfilling his duties. He was supporting his wife. In return he is given the right to say where the domicile of the family is even though they have agreed to live apart. It is obviously just that so long as the husband fulfills his duties he is to fix the domicile.

Yelverton v. Yelverton was also justly decided. In that case the husband was domiciled in Ireland, but deserts his wife while they were in France. She comes to England, her own pre-marriage domicile, and sues in the English courts for restitution of conjugal rights. She was told that the courts had no jurisdiction over the matter. And rightly so. For she wanted to have the duties which were imposed upon the husband by the marriage status enforced. For this purpose the law must look to the place where the static duties are to be enforced, that is to the domicile of the husband. The wife is not asking that her personal interests be conserved as an individual but as a wife. She does not want the marriage dissolved. She wants it enforced. All that the case really decides is that if the wife wants to have marital duties enforced she must go to the domicile of the husband to have them enforced. The case should not be taken as an authority that the wife cannot have a domicile of her own for any purposes and under any circumstances. But the cases have been followed blindly, it is submitted, as laying down the rule that even in a suit for divorce the wife must sue at the domicile of the husband.

An analysis of other cases lead to some interesting results. Some do flatly decide that the domicile of the wife is that of