ingredient predominates-the contrary of which may be predicated of Origin (e). XXXVIII. The Roman Law is the great repository of the principles of this, as of most other branches of civil jurisprudence. The Roman jurist bestowed great attention upon the different bearings of this question, and all the disquisitions and pains of modern lawyers have been engrafted upon the luminous investigation of the subject contained in the Digest and the Code. XXXIX (ƒ). The universal extent, indeed, of the Roman Empire, excluded the possibility of any question of domicil arising between the subjects of Rome and those of another kingdom; but the necessity of considering domicil, as between the inhabitants of different parts of the same kingdom, was forced upon their jurists by various circumstances, principally by the oppressive nature of the duties and responsibilities incident to the Decurionatus, or municipal office (g). Under (e) Westlake, 31, note a. (f) In some of the earlier English cases, this has been alleged by counsel as a reason why little or nothing was to be found in the Roman law on the subject of domicil; one of the many proofs how very slight the acquaintance of English lawyers with that law has been. Munroe v. Douglas, 5 Maddock's Rep. p. 291. Attorney General v. Countess of Dalhousie, 7 Clarke & Finnelly's Reports, p. 840. (g) In the time of the free Republic, the citizens, both of Rome and in the provinces, appear to have been divided into the classes of cives optimo jure, and cives non optimo jure, or plebeian. The former enjoyed the privilege of voting for the candidates to high offices, and of being eligible to them. The municipalities of the provinces were governed, as to their internal administration, by a Senate, called, first, ordo decurionum, subsequently ordo simply, and latterly curia, whose members were curiales, or decuriones. When Augustus permitted the municipes to send their suffrages in writing for the elections at Rome, he confined this privilege to the decuriones. From this time the name municipes, originally given to all the inhabitants, is used almost synonymous with decuriones. See Savigny, Geschichte des Römischen Rechts im Mittelalter, Band. I. c. 2. System des R. R. viii. s. 353. the Emperors, the decuriones, who collected the imperial taxes, became responsible for the payment of the fixed amount, and were compelled to supply the deficiencies from their own property. Each decurio was, moreover, considered as a guarantee for the solvency and good faith of his colleague, and for the successor whom he had presented to fill the office which he vacated. This grievous oppression made every citizen as anxious to escape as he had been formerly desirous to obtain the honour (h); but the law imposed upon every one who had his domicilium in a particular place, the necessity of filling the public offices, and discharging the duties incident to them in that place. So also with respect to the assessment and payment of taxes, Domicil was of much importance ; hence the criteria of it are more fully examined in the passages of the Digest and the Code which relate to these subjects—but not alone in these passages-for in discussing the question as to the difference between the "civis" and the "incola" (i) of a province-as to the Tribunal before which a person should be convened-when and under what modifications the doctrine of Prescription should take place-what causes excused the Tutor from accepting the office imposed upon him—in discussing these and various other subjects, the question of domicil was frequently brought under the consideration of the jurists of ancient Rome (j). (h) "Sed si aliis rationibus domicilium in splendidissimâ civitate Laodicæorum habere probatus fueris, mendacium quo minus muneribus fungaris non proderit."-Code x. t. 40, s. 2. (i) Incolas vero, domicilium facit, c. x., de Incolis. Vide post. To Origa belonged the expressions municipes, jus originis, patria; to Domicilium, the expressions incolæ, jus incolatus, domus.- Savigny, R. R. viii. s. 353. (j) The following passages should be studied in the Digest and Code for an accurate acquaintance with the language of Roman jurisprudence on the subject of Domicil : Dig. i. t. 9, 1. 11-De Senatoribus. Dig. ii. t. 15, 1. 8-De Transactionibus. Dig. iv. t. 6, 1. 28-Ex quibus causis majores viginti quinque annis in integrum restituuntur. XL. It is the remark of a great jurist of the present day that the Canon Law, where it modifies the Civil Law, has obtained an European reception as general as that law itself (k). Dissertations on the Law of Domicil under that system of jurisprudence were provoked by various causes-such as the prohibition imposed on the Presbyter to administer sacred rites to a person belonging to the congregation (parochianus) of another church-the law that a person in holy orders might become subject (subditus et diocæsanus) to the jurisdiction of a bishop ratione domicilii (t)—the law which, in order to check the encroachment of religious houses upon parochial churches, ordered a certain portion (canonica portio) of the ecclesiastical dues of sepulture to be paid to the parish church • Dig. v. t. 1-De Judiciis et ubi quisque agere vel conveniri debeat. * Dig. xxvi. t. 5-De Tutoribus et Curatoribus datis, &c. . Dig. xxvii. t. 2, 1. 30—46, s. 2—De Excusationibus. Dig. xlvii. t. 10, 1. v.-De injuriis et famosis libellis. Dig. 1. t. 1-Ad Municipalem et de Incolis. Dig. 1. t. 16, 1. 190, 239-De verborum significatione; Dig. xxiii. t. 2, 1. 5—De ritu nuptiarum; Dig. xl. t. 5, 1. 28—De fideicommissariis libertatibus. *Cod. vii. t. 33-De præscriptione longi temporis, decem vel viginti annorum. * Cod. x. t. 39-De Incolis et ubi quis domicilium habere videtur, "De Interdictis et Relegatis et Deportatis." The Præses who interdicted a person domiciled in his province, had also the power to interdict him from the place of his origin. * The denotes the most important passages. (k) Savigny, System des Römischen Rechts, Band. 1, Kap. 111, s. 17, p. 75—“ Denn auch dies hat eine gleich Allgemeine Europäische Anerkennung gefunden, wie das Römische." (1) Lyndwood, Const. Oth. de Scrutinio Ordinandorum. Gloss. i. per Episcopum.-(Oxford ed. 1679). of the domicil of a deceased person, who had desired to be buried with the members of a religious fraternity. With reference to these and other subjects, rules were laid down, and opinions were given by Canonists how a domicil might be created, acquired and abandoned (m). XLI. Savigny, in his learned work on the History of the Roman law in the Middle Ages, ascribes the growth of personal rights, and personal, as opposed to territorial laws, to the state of society which ensued on the conquest of the Roman Empire by the barbarians, after which both races lived together preserving their separate manners and laws. "The moderns," he observes, "always assume that the law to which the individual owes obedience is that of the country where he lives: and that the property and contracts of every resident are regulated by the law of his domicil. In this theory the distinction between native and foreigner is overlooked, and national descent is entirely disregarded: not so, however, in the middle ages, when, in the same country, and often indeed in the same city, the Lombard lived under the Lombardic, and the Roman under the Roman law" (n). XLII. When the darkness of the Middle Ages began to disappear, and the pacific intercourse of European nations to increase, the subject of Domicil came to be discussed by writers on Public and International Law (o). As the subjects of one (m) A very elaborate disquisition on the subject is to be found in the Treatise Augustini Barbosa de officio et potestati Episcopi. Pars secunda Allegatio IV. p. 172; see also 6 Decretal. 1. 3, t. 12, c. 2; Decretal. lib. 1, tit. 3, c. 29; see also Dictionnaire de Droit Canonique, tit. Domicile, and Denisart. Domicile, s. 40. See also the cases collected by Mascardus, in his great work "De Probationibus.' Conclusio dxxxv. v. 1, (n) Vol. 1, c. 3. See also Story's Conflict of Laws, ch. 1, s. 2, note where this passage is cited. (0) In the Great American case of the Venus, it was said by Mr. Justice Marshall, that "Grotius nowhere uses the word 'Domicil"" (8 Cranch's Reports, p. 278). This is a mistake, for the word is used by him, l. 2, c. 5. s. 24; the quotation is given at length in another part kingdom began to migrate into and reside in other countries, the various questions, arising from a conflict between the municipal regulations of the original and adopted country, gave importance to the Law of Domicil, and rendered the maintaining a uniformity of rules respecting it in Christendom a matter of great consequence. The circumstance which has most contributed towards producing this effect has been the universal and increasing value of personal property. The Roman law made but slight distinction between the rules applicable to personal and real property. This distinction issued from the maxims of the feudal code: from these, and from the comparatively insignificant value (p) of moveables or chattels, arose the maxim, generally received in Europe, that moveables followed the person (mobilia sequuntur personam); while land was governed by the law of the country in which it was situated (lex loci rei sita) (q). The progress of trade and commerce has since imparted to the law of chattels an interest and importance at least equal to that which regulates real estates. XLIII. Of modern nations France, Italy, Holland, America, of this work. But it is among the writers who followed in the track which this illustrious man had opened, that the word is of frequent occurrence, and the thing constantly discussed. (p) Blackstone's Commentaries, chap. 24, book 2, "Hence it was that a tax of the fifteenth tenth, or sometimes a much larger proportion of all the moveables of the subject, was frequently laid without scruple, and is mentioned with much unconcern by our ancient historians, though now it would justly alarm our opulent merchants and stockholders.” Mr. Reeves remarks that chattels are scarcely mentioned as objects of importance in treatises or reports before the time of Henry VI.; Hist. of English Law, vol. 3, p. 15, s. 69. It is in the reign of Richard III. that the Duke of Buckingham urges his master to grant him "The Earldom of Hereford and the moveables."—Richard III., act 4, sc. 2. (q) All jurists of all countries agree in this position: so that, in the language of Bynkershoek, "Adeo recepta hodie sententia est ut nemo ausit contra hiscere." Questiones Juris Privati, lib. 1, c. 16. |
