enemy character all property connected with that particular business (t). The various applications of these principles will be considered hereafter in connection with the law of war (u). Domicile, however, is also important for another purpose. Permanent residence in a particular country, accompanied by intent to remain, is regarded by the British Courts, as well as by the Courts of the United States and certain other countries, as determining the personal law by which a man's civil rights and liabilities are for the most part governed-as the criterion, in fact, of his civil status. This form of domicile we may perhaps call “civil domicile." This frequently coincides with commercial domicile"; but the distinction which is commonly drawn between the two is that, whilst "civil domicile" is founded on actual or presumed residence in a country for the purpose of making it one's home, commercial domicile is founded on residence for the purposes of trade. Commercial domicile, in fact, is said to imply some relation in the nature of a trade establishment, sufficient to identify the trader with the country, and of a kind calculated to contribute to its resources, but not necessarily a permanent or indefinite relation such as that involved in civil domicile. But really it would seem that both these forms of domicile involve a similar relation to the country of residence; and that both are governed by similar principles (x), and attended by similar consequences in a case where the facts admit of their application. In each case there must be residence with intent to continue; although in one case this is looked to for the purpose of ascertaining civil status, and in the other for ascertaining liability in war, especially as regards commercial property. A fixed residence with intent to remain, whether for the purposes of a home or for trade, will equally confer a civil status, and an enemy character in time of war; and it would seem that nothing short of fixed residence will suffice in either case (y).

GENERAL NOTES.-Political and Civil Status.-The law of nearly every country attributes to every individual two status: (1) a political status, in virtue of which he becomes a citizen or subject of some particular State, to which he owes allegiance and to which he may look for protection; and (2) a civil status, in virtue of which he becomes invested with certain rights and duties, capacities and incapacities, within the domain of private law. It is by the law governing this civil status that questions of civil capacity, including capacity to marry,

64

(t) The Portland (3 C. Rob. 41).

(u) Infra, vol. ii., sub nom. Enemy Character of Persons and Property," where the authorities are more fully cited and considered.

(x) Prize cases, such as The Indian Chief, are cited in civil right cases, and vice versa. It is sometimes said that they differ in the greater facility with which commercial domicile may be relinquished, but even this appears

to be only a difference in the mode of proof.

(y) As to trading without domicile, see p. 216, supra. For a discussion of this question see two articles by T. Baty and Westlake, J. S. C. L. (N.S.), xix. p. 157, and xx. p. 265. See also Janson V. Driefontein ([1902] A. C., at p. 505); and Nigel G. M. Co. v. Hoode, (17 L. T. R. 711).

and even to enter into other contracts, capacity to alienate movables, capacity to make a will of movables, and the succession to movables, including both tangible things and choses in action, are for the most part determined. And the rights and duties, capacities and incapacities, which so accrue will, in general, be recognised by the Courts of other civilised States (z).

How Civil Status is determined.-From the point of view of British and American Courts, the question of civil status is determined by the principle of domicile. That is, a man's civil status will be deemed to depend on the law of the country in which he is, or is presumed to be, permanently resident. From this point of view, it will frequently happen that both the political and civil status of a given individual will be referable to the law of one and the same country. So, a person born in France of French parentage, and permanently resident there, will possess both the political and civil status of a Frenchman. But they may, on the other hand, be referable to different laws. So, a person who was by birth a natural-born British subject may become permanently resident in France, although without becoming naturalised there; in which case he will still retain his political status as a British subject, whilst his civil status will be governed by the law of France, as being the law of his domicile (a). In King v. Foxwell (L. R. 3 Ch. D. 518) it was held that a natural-born British subject, who had emigrated to the United States, and had been naturalised there, nevertheless recovered his English domicile and its attendant status on returning to England with intent to remain, even though he retained the political status of a citizen of the United States. The same State, moreover, may comprise within its territory several countries, each of which possesses its own system of private law; and in such a case each such country will be regarded as a separate entity or unit for the purpose of determining civil status. So, a person domiciled in England, Scotland, Ireland, or a British possession, will be deemed to possess a civil status which will be governed by the private law of that particular part of the British dominions in which he resides. The rule that civil status is determined by domicile is also adopted by other municipal systems, such as those of Denmark, Norway, and Austria. On the other hand, in other countries, such as France, Germany, and Italy, the question of civil no less than political status appears to be determined by the principle of nationality, or by the law of the State to which the individual in question owes allegiance as a subject or citizen (b). Of these two principles, that of domicile appears to be the more convenient; for the reasons (1) that it is more dependent on external facts, and hence more easy of ascertainment than nationality; (2) that it makes a man's civil status and personal law more dependent on his own will; and (3) that for the purposes of private law, and in the domain of civil right, it treats citizen and alien as being on an equal footing (c). Nationality," moreover, is

(b) Dicey, Conflict of Laws, 102 n; and L. Q. R. April, 1908. p. 133. (c) See Meili, 116 and 123.

altogether inapplicable as a criterion of civil status in the case of countries such as England, Scotland, and Ireland, which, whilst possessing separate systems of private law and judicature, are yet nationally parts of one and the same State (d).

Civil Domicile: (i) How acquired.-Domicile has been defined as a man's principal place of residence; ubi quis larem rerum ac fortunarum suam summam constituit. It is. in fact, the place where a man has or is presumed to have his home, and which is therefore the centre of his jural relations. It is said to depend, and does in most cases actually depend, on a combination of fact and intention; on the physical fact of a man's fixing his residence at a particular place, and on his mental purpose to remain there permanently or for an indefinite time. Every man is presumed to have some domicile. At his birth he inherits the domicile of the father if he is legitimate, or that of the mother if he is illegitimate. This is called the domicile of origin"; and is frequently, although not necessarily, identified with the country from which a person derives his national character. Thereafter, and until he becomes sui juris, his domicile continues dependent on that of his father; or, if the father be dead, then primarily on that of his mother; whilst if both parents are dead, he should, it is conceived, be regarded as retaining the domicile which belonged to his father at the time of death (e). When a person becomes sui juris, it will be competent to him to choose another domicile; a domicile so acquired being termed a "domicile of choice." For this it is necessary that he should abandon his former domicile, and take up his residence in a new country, with intent to remain there for an unlimited time. With respect to the evidence necessary to establish a new domicile, Courts of justice much necessarily draw their own conclusions from the circumstances of each particular case (f). The two essential factors are residence and intention. More will depend on the nature and character of the residence than on its length. If the intention is manifest, the duration of residence is comparatively unimportant; but in other or doubtful cases time will be regarded as an important factor in determining domicile (g).

(ii) How lost.-A domicile of origin may be extinguished by act of law, as by a sentence of perpetual exile. The acquisition of a new domicile of choice, however, will not extinguish but will merely suspend the domicile of origin; which will accordingly revert, if the domicile of choice should be abandoned without a new domicile being acquired (h). Domicile of choice, on the other hand, as it is gained animo et facto, must in like fashion be determined animo et facto; and to constitute an abandonment there must be an actual cessation of residence, coupled

(d) For an example, see In re Johnson [1903] (1 Ch. 821).

(e) Although this is not settled; see Dicey, Conflict of Laws, 124.

(f) As to the legal presumptions with respect to domicile, see Dicey, Conflict of Laws, 132.

(g) The Harmony (2 C. Rob. 322); and Nelson, Cases in Private International Law, 15-33.

(h) See The Indian Chief (supra); Udny v. Udny (L. R. 1 Sc. App. 441); and Bell v. Kennedy (L. R. 1 Sc. App. 307).

with an intention to abandon; neither being sufficient without the other (i).

Domicile in Public International Law.-With the question of civil status public international law is not strictly concerned, save in so far as may be necessary to mark clearly the distinction between that and political status. Nevertheless domicile possesses a certain importance even in the domain of external relations. In the first place, as has already been pointed out, the nationals of one State, if resident within the territory of another, are the objects of certain international requirements as regards their treatment (k); and these requirements apply equally to domiciled aliens, although, in view of the fixed relation which domicile involves, the intervention of the parent State is sometimes less readily conceded (1). In the second place, according to the view entertained by some States, enemy character in time of war (m) is determined mainly, although not exclusively, by "domicile"; and even though other States adopt "nationality" as the criterion for determining the liability of property to maritime capture, yet all alike recognise residence, and a fortiori domicile, as determining liability to the incidents of land warfare (n). Finally, as we have seen, domicile, as distinct from nationality, has occasionally been put forward as conferring on a State a right of protection over persons domiciled within its territory, when personally present in other States; although it is conceived that, in the present state of international usage, such a right cannot justly be asserted as against the State of origin (o). In general, however, and subject to the exceptions previously mentioned (p), it would seem that domicile must be limited in its effects to matters of civil status. So, in Ah Yin v. Christie (4 C. L. R. 1428) it was held that an admitted domicile on the part of an alien father could not confer a right of entry, in derogation of the local immigration law, on an infant child who was resident in a foreign country; for the reason that domicile was confined to the determination of questions of civil status (q).

CRIMINAL JURISDICTION AND LAW OF A STATE.

(i) TERRITORIAL.

MACLEOD v. ATTORNEY-GENERAL FOR NEW
SOUTH WALES.

[1891; App. Cas. 455.]

Case.] IN 1872 the appellant was married in New South Wales to one Mary Manson. In 1889, and during the lifetime of Mary Manson, he was married in the United States of America to one Mary Elizabeth Cameron. He was subsequently arrested in New South Wales, and indicted for bigamy under s. 54 of the Criminal Law Amendment Act, 1883, a statute passed by the local Legislature. That section was in the following words: "Whosoever, being married, marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for ten years.' On this indictment the appellant was convicted at a Court of Quarter Sessions, and his conviction was subsequently affirmed by the Supreme Court. On appeal, by special leave, to the Privy Council, however, this judgment was reversed and the conviction set aside on the ground that the provisions of the local statute must be regarded as having been intended to apply only to offences committed by persons within the territory of the Legislature by which it was passed.

Judgment.] In the judgment of the Judicial Committee, which was delivered by Lord Halsbury, L.C., it was pointed out that the word "whosoever" in the section would, if accepted in its ordinary meaning, cover all persons all over the world, natives of whatever country; whilst the word "wheresoever" was equally universal in its application. Hence, if they were to construe the statute as it stood, any person married to any other person, who married a second time anywhere in the habitable globe, would be amenable to the criminal jurisdiction of New South Wales, if caught in that colony. But that was an impossible construction, and they could not attribute to the Colonial Legislature an effort