appeared to me to assist us at all in arriving at a conclusion. In fact, none of them is, properly speaking, a definition. They are all illustrations, in which those who have made them have sought to rival one another by endeavoring, as far as they can, by some epigrammatic neatness or elegance of expression, to gloss over the fact that, after all, they are endeavoring to explain something clarum per obscurum. By domicil we mean home, the permanent home; and if you do not understand your permanent home I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it. I think the best I have ever heard is the one which describes the home as the place (I believe there is one definition in which the lares are alluded to), the place 'unde non sit discessurus si nihil avocet; unde cum profectus est, peregrinari videtur.' I think that this is the best illustration, and I use that word rather than definition to describe what I mean." § 60. Id. id. Criticism of Kindersley, V. C., in Lord v. Colvin. — The remarks upon the same definition by Kindersley, V. C., in Lord v. Colvin,1 are so appropriate and elegant that they are here given in full: "It is not my intention to enter upon. an elaborate discussion of the various definitions which have been given or attempted to be given of the term 'domicil;' at the same time it is impossible to avoid some reference to them. I concur with the observations of Lord Cranworth in Whicker v. Hume, that many of them are rather illustrations than definitions. Some of them also appear to me objectionable, because they are expressed in language more or less figurative, which ought never to be the case in what professes to be a definition. Some of the Roman definitions are utterly inapplicable to the present condition and habits of mankind. The Roman definition most frequently cited is this: "In eodem loco, etc.' . . . I confess that it has appeared to me that this sentence is more to be admired for the neatness of its latinity than for its merits as a legal definition. It seems to me to be open to the objection of being (at least in the first branch of the sentence) expressed in figurative language. 1 4 Drew. 366, 373. Moreover, it depends upon the manner in which it is translated whether it accords with the decisions of our courts; and I know of no sentence more difficult to translate. Almost every important word presents some difficulty. Larem,' which even to a Roman was a figurative expression, may be properly translated household,' meaning by that term the united body, consisting of a man and his wife and children and domestics dwelling together in one abode. Larem' does not signify the place of abode. The words are in eodem loco ubi quis larem constituit;' i. e., a man has his domicil in that place where he has established his 'larem.' The word must mean not the place of residence, but the body which resides there; or perhaps more correctly, the act of co-residence as members of the same family. It is not easy to suggest a translation of the words 'rerum ac fortunarum summam ' which shall be faithful to the original, and at the same time convey to the mind a precise and definite idea. 'Res' probably here signifies 'business;'fortunæ' no doubt means 'possessions' or property;' but what does summa' mean? The proper meaning is the 'sum' or 'aggregate;' but it is, perhaps, here used to signify the chief or principal part or bulk.' Mr. Justice Story evidently felt the difficulty of rendering this branch of the sentence into English; and in order to give something intelligible he has sacrificed accuracy of translation. He renders it thus: "There is no doubt that every person has his domicil in that place which he makes his family residence and principal place of his business.' This 2 Story's translation is as follows: "There is no doubt that every person has his domicil in that place which he makes his family residence and principal place of business; from which he is not about to depart, unless some business requires; when he leaves it, he deems himself a wanderer; and when he returns to it, he deems himself no longer abroad." Story, Confl. of L. § 42. Phillimore translates, or rather paraphrases, the same passage thus: "In whatsoever place an individual has set up his household gods, and made the chief seat of his affairs and interests, from which, without some special avocation, he has no intention of departing; from which, when he has departed, he is considered to be from home; and to which, when he has returned, he is considered to have returned home; - in this place, there is no doubt whatever, he has his domicil." Law of Dom. no. xi. p. 11. In White v. White, supra, Cooper, J., says: “The beautiful definition of the civil law is as unexceptionable as any which has been attempted, if we give to the terms used a liberal translation to adapt them to the circumstances of modern times; for it combines precision is obviously rather a paraphrase than a translation. Again, the term 'peregrinari' in the last branch of the sentence requires a particular translation to make the definition agree with the decisions of our courts; the word properly means to be in a foreign country,' but if it is so translated, it militates with the proposition now well established, that a man may establish a domicil in a foreign country, and in which he still continues to be a foreigner. The word 'peregrinari' must therefore be translated to be a wanderer,' viz., from home, and so Mr. Justice Story translates it. Therefore, if this celebrated passage from the Roman law is to be used as a definition by which our courts of justice are to be guided, I think it must be translated in some such form as this: There is no doubt that every person has his domicil in that place where he has established his household and the chief part or bulk of his business and property, from which he is not intending to depart if nothing calls him away; from which when he goes away he seems to be wandering from home, and when he has returned he has ceased wandering.' Thus translated, the sentence may not be objected to on the score of inaccuracy, though it is still open to the observation that a man may have his family residence (his larem ') in one country and the chief part or bulk of his business (rerum ac fortunarum summam ') in another." § 61. Id. Definitions of the Digest. — Another passage from the Roman law is frequently quoted and treated as a definition. It is by Ulpian, is found in the Digest, and is as follows: "Si quis negotia sua non in colonia, sed in municipio semper agit, in illo vendit, emit, contrahit, eo in foro, balineo, of language with poetic imagery. A 1 Dig. 50, t. 1, 1. 27, § 1. Story (§ 42) thus translates it: "If any one always carries on his business, not in a colony but in a municipality or city where he buys, sells, and contracts, where he makes use of and attends the forum, the public baths and public shows, where he celebrates the holidays and enjoys all municipal privileges, and none in the colony, he is deemed there to have his domicil, rather than in the place (colony) in which he sojourns for the purpose of agriculture." spectaculis utitur: ibi festos dies celebrat: omnibus denique municipii commodis, nullis coloniarum, fruitur, ibi magis habere domicilium, quam ubi colendi causa diversatur." Most of the criticisms made upon the passage above quoted from the Code apply also to this passage. It is apparently a statement of the most usual criteria of domicil to be found in the life of a Roman, and is therefore more properly formula of evidence than a definition. Alfenus Varus, in a passage also to be found in the Digest,2 in answer to the question "Quid est domum ducere?" says: "Sed de ea re constitutum esse, eam domum unicuique nostrum debere existimari, ubi quisque sedes et tabulas haberet, suarumque rerum constitutionem fecisset." But this definition, far from solving the difficulty, only increases it. For what are we to understand by "sedes et tabulæ," and what by rerum constitutio"? 66 § 62. Other Definitions: Donellus; John Voet; Hertius; Pothier; Vattel. Donellus,1 after criticising and pointing out the uncertainty of the expressions used in the passage above quoted from the Code, suggests as more concise and certain a definition of his own, as follows: "Locus, in quo quis habitat eo animo, ut ibi perpetuo consistat, nisi quid avocet.” John Voet says:" "Aliud insuper proprie dictum domicilium est, quod quis sibi constituit animo inde non discedendi, si non aliud avocet." This definition Kindersley, V. C., in Lord v. Colvin, considers "as little open to objection as any." Hertius defines domicil: "Ubi quis frequentius ac diutius commorari solet, rerumque ac fortunarum suarum majorem partem constituit." Pothier, in his introduction to Book 50, Title 1, of the Pandects, generalizes the Roman definitions thus: "Domicilium facit potissimum sedes fortunarum suarum, quas quis in aliquo loco habet." Vattel 5 describes domicil as "an habitation fixed in any place, with an intention of always staying there." This definition has been frequently quoted 2 50, t. 16, 1. 203. 1 Op. cit. 1. 17, c. 12, p. 978, no. 30 b. 2 Comm. ad Pand. 1. 5, t. 1, no. 94. Opera, De Collisione Legum, p. 177, ed. 1716. 4 Ad Pand. 50, 1, introd. art. 2, no. 18. 5 Droit des Gens, 1. 1, c. 19, § 218. "Le domicile est l'habitation fixée en quelque lieu, dans l'intention d'y demeurer toujours." and criticised. Story, following Parker, Justice, in Putnam v. Johnson, says: "But this is not an accurate statement. It would be more correct to say that that place is properly the domicil of a person in which his habitation is without any present intention of removing therefrom." Cujas 8 combines in one the several Roman definitions thus: "Domicilium cujusque ibi est ubi larem fovet, ubi sedes et tabulas rationum suarum habet, ubi rerum et fortunarum suarum summam constituit, ubi assidue versatur, negotiatur, ubi majorem suorum bonorum partem habet, ubi festos dies agitat, utitur foro eodem, balneo eodem, spectaculis." § 63. Definitions of French Jurists. The French writers have made frequent attempts at the definition of domicil. In addition to the several already given, the following may be noted. Denizart1 says: "Domicil is the place where a person enjoys his rights, and establishes his abode and the seat of his fortune." Pothier 2 says: "It is the place where a person has established the principal seat of his abode and of his business." The "Encyclopédie Moderne "3 defines it thus: "It is, properly speaking, the place where one has fixed the centre of his business." The French Code declares: "The domicil of every Frenchman, as to the exercise of his civil rights, is at the place where he has his principal establishment." Demolombe,5 in commenting upon this definition, after quoting also 6 Confl. of L. § 43. 710 Mass. 488, 501. See infra, § 65. 8 Opera 5, 1148, c. 1 The definition above given is quoted by Story (§ 43), who also gives the original as follows: “Le domicile est le lieu où une personne, jouissant de ses droits, établit sa demeure et le siége de sa fortune." The 7th edition of the "Collection de Décisions' (which is the one possessed by the writer and usually cited herein), published in 1771, six years after the death of Denizart, contains the following (verb. Dom. nos. 1 and 2): "On appelle domicile, le lieu de la demeure ordinaire de quelqu'un. Le principal domicile de chacun est celui qu'il a dans le lieu où il tient le siége et le centre de ses affaires, où il a ses papiers, qu'il ne quitte que pour quelque cause momentanée ; d'où, quand il est absent, on dit qu'il est en voyage; où, quand il revient, on dit qu'il est de retour; où il passe les principales fêtes de l'année, où il supporte les charges publiques, où il jouit des priviléges de ceux qui en sont habitans." 2 Introd. Gén. aux Cout. d'Orléans, c. 1, § 1, no. 8. "C'est le lieu où une personne a établi le siége principal de sa demeure et de ses affaires." 8 Verb. Dom. "C'est, à proprement parler, l'endroit où l'on a placé le centre de ses affaires.” 4 Art. 102. "Le domicile de tout Français, quant à l'exercice de ses droits civils, est au lieu où il a son principal établissement." 344. Cours de Code Napoléon, t. 1, no. |