public Law the Domicil of the individual, which Vattel1 defines as a fixed residence in any place with the intention of always remaining there. Wolff has, in a similar manner, defined domicilium to be "habitatio aliquo in loco constituta, perpetuo ibidem manendi animo 32' The word Domicil is originally a term of Roman Municipal Law, the Romans using the expression to denote the place in which a Roman citizen had to discharge his municipal obligations, in distinction from the place in which he was born; and in this sense it is employed by Grotius, as illustrating the privilege which Roman citizens enjoyed under the later Imperial Constitutions, of transferring their permanent abode from one Municipium to another. The distinction between the civis and the incola was founded thereupon. "Cives quidem origo, manumissio, allectio, vel adoptio, incolas vero domicilium facit," and jurisdiction was made in many cases to depend upon the place of residence of the individual, as distinguished from the place of his birth. The question of Domicil lost its importance after the conquest of the Roman Empire by the Barbarians, as for a long time a system of personal laws prevailed amongst the communities of mixed races, the Lombard living under the Lombardic, and the Roman under the Roman Law; but after the Peace of Westphalia, from which event we may date the commencement of normal intercourse between European Nations, the subject of Domicil came to Jurisdic tion and be again discussed by Jurists under new circumstances, namely, with reference to the residence of individuals in different Territories, and not as in the Roman system of Law, with reference to their residence in different places within the same Territory, namely, the Roman Empire. Dr. Phillimore, in his Treatise on Domicil37, has observed that "as the subjects of one 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 the adopted country, gave importance to the Law of Domicil, and rendered the maintaining an uniformity of rules respecting it in Christendom a matter of great consequence. Lord Campbell, to the same effect, in a recent judgment of the House of Lords, overruling the Scotch Courts of Exchequer, has taken occasion to remark, that "the doctrine of Domicil has sprung up in Great Britain very recently, and that neither the Legislature nor the Judges thought much of it, but it is a very convenient doctrine, it is now well understood, and it solves the difficulty with which this case was surrounded 38" Dr. Phillimore has further remarked most aptly, that the circumstance which has most contributed to give importance to the Law of Domicil, has been the universally increasing value of personal property. §162. Jurists have laid it down that there are, proRemedies. perly speaking, three places of jurisdiction; first, the domicil of the defendant, commonly called forum domicilii: "Nam ubi domicilium reus habet, vel tempore contractûs habuit, licet hoc postea transtulerit, ibi tantum eum conveniri oportet ";" secondly, the 37 The Law of Domicil, § 8. (House of Lords) Reports, p. 1. 39 Codex, Lib. III. Tit. XIII. § 2. 40 place where the thing in controversy is situated, commonly called forum rei sita: "Sed et in locis, in quibus res, propter quas contenditur, constitutæ sunt, jubemus in rem actionem adversus possidentem moveri ;" and thirdly, the place where the contract is made or other acts done, commonly called forum rei gestæ or forum contractus": "Illud secundum est, eum, qui ita fuit obligatus, ut in Italia solveret, si in provincia habuit domicilium, utrobique posse conveniri, et hic et ibi 2" These distinctions constitute the basis of the reasoning of most Jurists in discussing the competency of tribunals to hold jurisdiction of causes and the proper operation of Judgments and Decrees (rei judicata); as for instance, whether they are final and preclude any further proceeding on the same cause of action before the Tribunals of another country. Some countries, such as France, repudiate all obligation on the part of their Tribunals to administer the law of the forum contractûs. Other countries, such as Great Britain and the United States of America, administer the law of the forum contractus in this manner: What the nature of the obligation is must be determined by the laws of the country where it was entered into, and then this country will apply its own law to enforce it " all agree that in construing contracts we must be governed by the laws of the country where they are made, for all contracts have reference to such laws. But when we come to remedies, it is another thing. They must be pursued by the means which the law points out, where the parties reside. The laws of the 40 Codex, Lib. III. Tit. XIX. § 3. 66 "We 42 Dig. L. V. Tit. I. s. 19. § 4. +3 Lord Chief Justice Eyre in 41 Huberus, Lib. V. Tit. I. Melan v. Fitzjames, 1 Bos. and Boullenois, Obs § 25. Puller, 138. Nations in property. country where the contract was made can only have reference to the nature of the contract; not to the mode of enforcing it. Whoever comes voluntarily into a country subjects himself to the laws of that country, and therein to all remedies directed by those laws on his particular engagements"." It is immaterial whether the remedies given by the law of a foreign country, to the tribunals of which country the complaint is made, exceed or fall short of those given by the law of the place of contract; in either case the parties to a suit must accept the remedy of the Forum, to which they have appealed. Lord Tenterden in a more recent case has said, "A person suing in this country must take the law as he finds it. He cannot by virtue of any regulation in his own country enjoy greater advantages than other suitors here, and he ought not therefore to be deprived of any superior advantage which the law of this country may confer. He is to have the same rights which all the subjects of this country are entitled to." A similar doctrine has been solemnly promulgated in the House of Lords on a still more recent occasion 46. 45 Comity of § 163. The rightful exercise of jurisdiction on the regard to part of a Nation depends upon one or other of these personal conditions, that the person or the property is within the territory of the Nation. In either of these cases a Nation is capable of enforcing the judgment of its tribunals in invitos. If the persons are within its territory, the Sovereign Power of the Nation can compel them to appear before its tribunals, and can enforce its decisions in personam. If the property is within its territory, the Sovereign Power of the 4 Mr. Justice Heath in Ogden v. Saunders, 12 Wheaton, p. 213. 45 De la Vega v Viana, 1 Barn. and Adolph. 284 46 Don. v. Lipmann, 5 Clark and Finelly, 1, 13, 14. "Les Nation has control over it, and can enforce its judgments in rem. But the exercise of the strict Right of Nations has been tempered by the Comity of Nations with respect to persons, and with respect to personal as distinguished from real property, and in practice the Civil Law of a Nation has exclusive operation given to it only with respect to persons domiciled within its territory, and with respect to real property which is there situate. The maxim mobilia sequuntur personam is interpreted to signify that moveables are, in law, attached to the person of the owner, although they may in fact be apart from it. The incidents of Moveable property are accordingly regulated by the same law as the person of the owner, that is by the law of his Domicil. meubles," says Cochin, "quelque sorte qu'ils soient, suivent le Domicile "." Personal property having no Situs of its own, follows the domicil of its owners. Mr. Justice Story, in his Conflict of Laws, has discussed at great length the reasoning of various Jurists as to the grounds upon which this doctrine proceeds, but their arguments all lead to the same result, and whatever may have been the true origin of the doctrine, it has now received so general a sanction amongst civilised nations, that it may be treated as part of the Jus Gentium. The grounds upon which the English Tribunals have received the doctrine are stated by Lord Loughborough: "It is," he says, “a clear proposition not only of the Law of England, but of every country in the world, where Law has the semblance of a Science, that personal property has no locality. The meaning of this is, not that personal 47 47 Cochin, Œuvres, Tom. V. General, 12 Clark and Finelly, p. 85. (House of Lords) Repts. p. 1. 4 Thomson v. The Advocate |