Domicil of Choice. property has no visible locality, but that it is subject " $164. The Domicil of a person for international Domicil of purposes may be either his Domicil of origin, or his Domicil of choice.. The Domicil of origin of a person is identical with the Domicil of his father at the time of his birth. "Patris originem unusquisque sequatur." If his parents at the time of his birth should be on a temporary visit to a foreign country, the home of the parents, and not the country of his birth, is the Domicil of origin of the child 52. The Domicil of origin is thus not necessarily identical with the place of birth. The place of birth on the other hand may constitute a person a natural born subject of one Sovereign for municipal purposes, whilst he is a domiciled subject of another sovereign for international purposes. The Domicil of origin cannot be divested during minority by a change of residence on the part of the minor with the intention of making his new residence his home, but it may be divested by the act of his father. 49 Still v. Worswick, 1 Henry, Blackstone's Repts. 690. If the father changes his 451, S. C. 2 Clark and Fin. 571. 51 Codex, Lib. X. Tit. XXXI. 50 Doe d. Birthwhistle v. Var- § 36. dill, 5 Barn. and Cresswell, 438, 52 Wolffii Jus Gentium, § 138. residence and acquires a new Domicil, it becomes the Domicil of his minor children, and if the father dies leaving minor children surviving him, the father's Domicil of choice at the time of his death is the necessary Domicil of his children until they come of age, and are capable of acquiring a Domicil of choice. Every person of full age is capable of selecting a Domicil; and if such a person removes from the country, where his father had his Domicil, to a foreign country with the settled purpose of making it his permanent residence, the country of his adoption becomes his domicil of choice. Domicil being thus under the Law of Nations the foundation of jurisdiction over persons, it is intelligible on general principles that the residence of Ambassadors and Political Envoys in a foreign country, even if such residence continue up to the time of their death, being a residence "sine animo manendi," should not operate to change their Domicil, such as it was at the time when they became resident in the foreign country; their extraterritoriality besides secures to them an "immiscibility" of national character. A different rule however prevails with respect to Consuls or Commercial Agents, who, if permanently engaged in commerce themselves, may acquire a Domicil in the country where they reside. It is sometimes a question of great intricacy to determine in what place a person has his true Domicil. No person according to the Law of Nations is without a Domicil. In the absence of all evidence of any other Domicil de facto, the Domicil of Origin is the Domicil de jure, but a per 53 Quoniam tamen domicilium naturale tamdiu quis retinere censetur, quamdiu propria voluntate sibi nullum constituit, vaga bundi quoque domicilium naturale vulgo retinere censentur. Wolff. Jus Gentium, § 139. son may have more than one Domicil for commercial purposes; as for instance, a person may be a partner in a great commercial establishment in New York, and in another equally great commercial establishment in Liverpool; and in respect of contracts he may be subject to two different jurisdictions according as the contract is entered into by the New York establishment, or by the Liverpool establishment; but no person can have more than one testamentary Domicil, as the latter is identical with the place of the party's principal establishment. To enter more minutely into the criteria of Domicil would be foreign from the purpose of the present treatise, which is concerned with Domicil only so far as the principle of Domicil influences the Jurisprudence of Nations, in reference to persons and personal property. Mr. Justice Story's excellent work on the Conflict of Laws and M. Fœlix's treatise on Private International Law may be consulted with advantage by those, who desire to become more accurately acquainted with the details of this branch of the Law of Nations. 34 Labeo judicat eum, qui pluribus locis ex æquo negotietur, nusquam domicilium habere ; quosdam autem dicere refert, pluribus locis eum incolam esse, aut domicilium habere; quod verius est. Dig. L. Tit I. § 5. The San José Indiano and Cargo, 2 Gallison's American Reports, p. 287. The Portland, 3 Robinson, p. 41. The Jonge Classina, 5 Robinson, p. 502. CHAPTER X. RIGHT OF THE SEA. The use of the open Sea common to all mankind-A Common Law of the Sea-Affinity to the Roman Law in certain matters — Origin of the Admiralty Jurisdiction-Its connection with that of the Consules Maris-Piracy justiciable everywhere-Concurrency of Admiralty with National Jurisdiction-National Jurisdiction over the open Sea-Maritime Jurisdiction of a Nation-Territorial Seas distinguished from Jurisdictional Waters-Prescriptive Right over portions of the Sea-Right of Fishery on the High Seas-Neutrality of Jurisdictional Waters-Right of Maritime Toll in respect of Lighthouses and Sea-Marks-Prescriptive Right of Sea-Toll-The Sound Dues-The Straits between the Mediterranean and the Black Sea-The Comity of Nations in matters of Revenue and Quarantine- Right of Fishery in Jurisdictional Waters-Ceremonial of the High Seas-Ceremonial within Jurisdictional Waters. the open mankind. $165. THE Ocean or open Sea is by Nature not The use of capable of being reduced into the Possession of a Sea comNation, since no permanent settlement can be formed mon to all upon its ever changing surface; neither is it capable of being brought under the Empire of a Nation, as no armed fleet can effectively occupy it in its full extent, so as to preclude other Nations altogether from the use of it. Nature herself has in these respects set limits to human enterprise and human ambition. But independently of these insurmountable difficulties, the use of the open Sea, which consists in navigation, is innocent and inexhaustible; he who navigates upon it does no harm to any one, and the Sea in this respect is sufficient for all mankind. But Nature does not give to man a right to appropriate to himself things which may be innocently used by all, and which are inexhaustible and sufficient for all. For since those things, whilst common to all, are suf A Common ficient to supply the wants of each, whoever should attempt to render himself sole proprietor of them, (to the exclusion of all other participants,) would unreasonably wrest the bounteous gifts of nature from the parties excluded. Further, if the free and common use of a thing, which is incapable of being appropriated, were likely to be prejudicial or dangerous to a Nation, the care of its own safety would authorise it to reduce that thing under its exclusive Empire, if possible, in order to restrict the use of it on the part of others by such precautions, as prudence might dictate. But this is not the case with the open Sea, upon which all persons may navigate without the least prejudice to any Nation whatever, and without exposing any Nation thereby to danger. It would thus seem that there is no Natural warrant for any Nation to seek to take possession of the open Sea, or even to restrict the use of it by other Nations'. § 166. The open Sea is, strictly speaking, nullius territorium. No Nation can claim to exercise jurisdiction over its waters on any ground of exclusive Possession. On the other hand, it is the public highway of Nations, upon which the vessels of all Nations meet on terms of equality, each vessel carrying with it the laws of its own Nation for the government of those on board of it in their mutual relations with one another, but all subject to a Common Law of Nations in matters of mutual relation between the vessels themselves and their crews. The origin of this Common Law of the Sea is lost in the darkness of a very remote antiquity, but it sprang into existence with the earliest necessities of maritime commerce. We find the rudiments of such a law amongst 1 Vattel, Lib. I. c. 23. § 279. Grotius, Lib. I. c. 2. § 3. Wolffii Jus Gentium, § 127. Klüber, § 132. |