Sect. III.—(§ 346.) RACE AND TERRITORIALITY AS GROUNDS OF THE SUBJECTION OF A PERSON TO A PARTICULAR POSITIVE LAW.
In order to discover the connection by which a person is
attached to a particular positive law by subjection to it, we
must remember that the positive law itself has its seat in the
people as a great natural whole, or in an ethnical (volksmiissig)
subdivision of this whole. It is only another expression of the
same truth, when we say that law has its seat in the state, or
in a particular organic part of the state, because, as it is only
in the state that the will of individuals is developed into a
common will, it is there only that the nation has a realized
existence (a). In pursuance of this general plan, we have then
to determine more minutely how this whole is constituted, and
how this unity is defined, within which the rules of law, as
constituent parts of the positive law, have their seat. Thus we
shall know by what tie individual persons are held together in
the common possession of the same positive law.
Sect. VII.—(§ 350.)
THE ROMAN DOCTRINE OF ORIGO AND DOMICILIUM.
The foregoing investigation leads us to this result, that the
collision of different positive laws in the decision of a case
(legal relation) is primarily to be regulated by the laws affecting
the person concerned in the legal relation, and that even the
numerous and important exceptions to this principle can be
rightly understood only in connection with it, and as modifications of it (§ 345). It was further shown that the law
governing the person, according to a rule long since universally
recognised, is determined by territory, not by birth (§§ 346—
But even the result thus obtained has no more than a
formal significance ; for the question still remains : How is
the individual person with its legal belongings (Rechtszustand)
attached to the territory ? What is it, therefore, that constitutes the connection between the person and the territorial
law ? We must next endeavour to answer this question.
Two relations of fact may be the grounds of this connection,
—origo and domkilium, origin and domicile. We have to
explain the meaning of these, their juridical influence, and
their relation to one another.
No one doubts that these terms, as well as the legal conceptions which they represent, have come to us through the
Roman law ; all who make use of them go back to the sources
of the Roman law. We must therefore, first of all, ascertain
what the Roman jurists understand by the phrases, and what
influence they ascribe to the legal notions which they express.
It is not, however, to be understood that the Roman conception of them is authoritative for us. It will rather appear in
the sequel of this inquiry, that it is just here that our law
shows the greatest deviations from the Roman law. We must
begin, then, by seeking to secure ourselves against the mistaken
use of words and ideas falsely supposed to be the technical
terms and legal conceptions of the Roman law.
With one of the terms referred to, domicilium, there is
little risk of mistake, since the state of the law is not essen
tially changed in regard to it, and daily practice sufficiently
secures its right understanding. It is otherwise with origo;
and that not because the Roman statements are obscure or
ambiguous, but because our law is, in this respect, completely
different from the Roman ; and hence actual experience
cannot protect against incorrect ideas. As, then, the term
origo easily leads us to refer to the place of birth, this last
notion has often found acceptance with modern jurists, even
with those who at the same time give the true meaning of
origo from the sources of the Roman law (a). The mere
place of birth, however, is in itself a purely accidental cir
cumstance, without any legal effect.
Before the true sense of these technical terms can be
established, it must be observed that their practical importance is by no means limited to our question of collision, but
rather that the decision of this question must be regarded as
only part of a larger connection.
For, in the eye of the public law, every individual is in a
position of dependence or obligation,—first, to the whole state
to which he belongs as a citizen and subject ; and, second,
to some narrower local circle (according to the Roman system,
to an urban community) which forms an organic member of
that greater whole. A man's attachment to this narrower
circle, and his connection with it, have many important
consequences : in the Roman law, in liability to municipal
burdens (munera), in obedience to municipal authorities, or
in the positive municipal law, which is the personal law of
Obedience to local magistrates appears in the jurisdiction
to which each individual is normally subject,—the forum
originis and forum domicilii.
But the local positive law, as the personal law of each individual, is the reason for considering this matter here. It
is necessary, in particular, to advert at the very beginning to
the connection between the jurisdiction and the personal law,
—-forum and lex originis ; forum and lex domicilii (b).
After this preliminary remark, I proceed to show the true
meaning of origo and domicilium in the Roman law, and the
practical bearing of these two notions on each other. Origo
and domicilium determine for every person :
1. The liability to share in municipal burdens (munera).
2. The duty of obedience to municipal magistrates, particularly the personal jurisdiction arising therefrom.
3. The special municipal law applicable to him, as a personal quality.
And these effects sometimes arise from both the relations
(origo and domicilium) co-existing, so that they are found at
two different places at the same time,—sometimes from one of
them alone. All this is now to be more minutely explained.
It is now to be determined in what way each individual
comes to pertain to an urban community, and thus enters
into a definite relation of dependence towards it. This takes
place in two ways : (1) by citizenship of the community
(origo); (2) by domicile in the urban territory (domicilium).
Citizenship (Burgerreoht) is acquired by the following
facts : Birth, Adoption, Manumission, Election (/).
1. Birth (origo, nativitas). (Note/.)
This mode of constituting the relation is entirely in
dependent of the free-will of the person who is thereby
attached to the community.
It is the regular and most frequent origin of citizen
ship, and its name is therefore very commonly used to
designate the civic relation itself so arising (g).
It indicates birth in a legal marriage when the father
himself has the right of citizenship (h). The native place
of the mother is, as a rule, without any influence ; yet
some communities had the peculiar privilege, that the
citizenship of women belonging to them was transmitted
to their legitimate children (i). Illegitimate children
acquired by origo citizenship in the native place of the
2. Adoption. (Note/.)
This does not extinguish the citizenship derived from
birth ; but the adopted son has then a double citizenship,
which descends to his children (I).
Emancipation of the adopted child, however, destroys every effect of adoption , and
therefore also this effect, which pertains to public law (m).
3. Manumission. (Note/.)
The manumitted slave could have no right by birth.
On the contrary, he acquired by manumission the right
of citizenship in the native town of the patron, which also
descended to his children. If the patron had citizenship
in several places, or if the common slave of several
masters was manumitted by them, then a plural citizen
ship might arise by manumission (n).
4. Election (Allectio) (o).
By this is to be understood the free gift of citizenship by
the municipal magistrates, of the legality of which there
could be no doubt, even if it were not expressly attested.
. Citizenship, with its consequences, was not extinguished by
the mere will of the persons who had acquired it in any one of
the methods above described (p). By legal marriage in a
foreign state, the wife, indeed, did not properly vacate her
native citizenship, but she was relieved during the subsistence
of the marriage from the personal burdens (munera) connected
with it (q). A similar relief from personal burdens, without
complete dissolution of the original citizenship, was also allowed
to a citizen raised to the dignity of a senator of the Roman
empire and to his descendants (r) ; also to every soldier as long
as his service lasted (s).
From the rules here laid down, it follows that one person
could possess at the same time citizenship in several cities of
the Roman empire, and consequently often combined in his
person the rights, and had to bear the burdens, pertaining to
the citizens of all these places (t). So to the native citizenship
a later one might be added by adoption or allection, and both
subsisted together (note b). In like manner, the manumitted
slave might be brought into several civic relations by manumission (note n).
On the other hand, however, it was conceivable that a per
son might have citizenship in no community, although certainly
this case did not often occur. It necessarily took place when a
foreigner was received as a resident into the Roman empire
without becoming by allection a citizen of any municipality
(note o) ; so, too, when the citizen of any town was released
from its municipal connection (note p) without being received
into another community ; finally, among the freedmen of the
lowest class, who were dedititiorum numero, and belonged to no
The second reason whereby individuals became attached to
an urban community was domicile (domicilium) (a).
That place is to be regarded as a man's domicile which he
has freely chosen for his permanent abode, and thus for the
centre at once of his legal relations and Ins business (b). The
term permanent abode, however, excludes neither a temporary
absence nor a future change, the reservation of which faculty
is plainly implied ; it is only meant that the intention of mere
transitory residence must not at present exist.
Domicilium, like origo, established a connection with a particular urban community. It therefore related to a definite
urban territory (c), and embraced not only the inhabitants of the city itself, but also those of the villages and farms (colonicc)
belonging to this territory (d).
For persons who became attached in this way to an urban
community the regular designation is Incola (e).
different grounds, however, by which such a connection could
be established (citizenship and domicile), are distinguished by
the following contrasted terminology :
Municipes and Tncolce (/).
Origo and Domicilium (g).
Jus originis and Jus incolatus (A).
Patria and Domus (t).
From this definition results the essential distinction between
domicile and mere residence on the one hand, and the owner
ship of land on the other. Residence, not accompanied with
the present intention that it is to be permanent and perpetual,
does not constitute domicile, even if by accident it continues
for a long time, and therefore is not merely transient.1
for instance, is the residence of students at an educational
institution ; only when this continued for ten years was it,
according to an ordinance of Hadrian, to be regarded as permanent, and therefore as constituting domicile (k). Ownership of land in a territory is not required for domicile, and by
itself is insufficient to constitute it (/).
The constitution of domicile, with its legal consequences, is
the result of free will and the act corresponding therewith, not
therefore of a mere declaration of intention without any act (m).
Freedom of choice is in this matter so strictly required, that it
must not be at all restrained by provisions of private law, e.g.
by the condition of a particular residence annexed to a legacy,
which condition is generally to be regarded as not written (?i).
On the other hand, this freedom may in many ways be restricted by the public law. Thus every servant of the state,
e.g. every soldier, has a necessary domicile at the place of his
service (o) ; the exile at the place of his banishment (p).
Conversely, a certain residence may be forbidden by way of
But further, domicile could be constituted in the following
cases by the relation in which a person stood to another
person and his domicile ; and this may be called a relative
1. Wives have universally and necessarily the same domicile
as their husbands (r). This domicile is retained by the widow
so long as she does not enter into a new marriage, or otherwise
voluntarily change her domicile (s).
2. Children born in wedlock have unquestionably from
their birth the same domicile as their father. They may, how
ever, afterwards freely choose another domicile, when their
original one ceases (t). It must, in like manner, be said of
natural children, that the domicile of the mother is to be
regarded as theirs.2
3. So is it with freedmen. Their domicile was originally
that of the patron (u) ; but they could afterwards change it at
4. In our modern relations, it is the same with hired servants (w) ; likewise with day-labourers working permanently
The obligation to undertake municipal burdens normally
affected all members of a municipality, whether they had
entered into this relation by origo or by domicile (wt). Who
ever, therefore, had by origo the citizenship of several towns
at once, or, it might be, had also a domicile in several
(§§ 351, 354), was in each of these towns obliged fully to
participate in its burdens, and might thereby come into a
very disadvantageous position.
But although this general and uniform obligation of all
members was the rule, there were yet, by way of exception,
many exemptions on different grounds, and under different names (vacatio, cxcusatio, immunitas)—some perpetual and
some temporary (n).
(forum originis, domicilii).
At the foundation of this subject lies the general rule, that
every lawsuit is to be brought in the forum of the defendant,
not of the plaintiff (o). If it be asked, then, where the
defendant has his regular forum, the Roman law determines it
thus : In every town, whose magistrate he is bound to obey,
because he belongs to it. But the individual belongs to a town
as well by origo as by domicile ; and thus that principle is trans
formed into the practical rule : A person may be cited as defendant in every town in which he has citizenship by origo, and
also in every town in which he has a domicile. This rule is
enunciated precisely in these terms, and also referred to the
higher principle above assigned, in the following passage of
Gaius (p) : ' Incola et his magistratibus parere debet, apud
quos incola est, et illis apud quos civis erit ; nee tantum municipali
jurisdictioni in utroque municipio subjectus est, verum
etiam omnibus publicis muneribus fungi debet.'
In this important passage it is recognised that the forum is
in precisely the same position as the municipal burdens. It
follows, therefore, that there could be jurisdiction over the same
person in more than two towns at the same time ; if, for instance,
he had citizenship by origo in several towns, and at the same
time domicile in several others. It was, then, in the free choice
of the plaintiff in which of these ciritates he would make a
lawsuit depend, and the defendant was bound to answer in
any place that might be selected.
In regard to this unambiguous enunciation as well of the
rule itself as of its higher principle, and of its connections with
the municipal burdens, it is remarkable that so little is said in
other passages of the jurisdiction founded upon mere origo
(forum originis), as distinguished from domicile.
The line between what is and is not applicable in the whole
teaching of the Romans on this subject will be made plainer,
by considering separately the three effects which Roman law
attaches to domicile as well as to citizenship (§§ 355, 356).
1. Municipal burdens (muncra) may here be put out of view
altogether, as they related to exclusively Roman circumstances.
2. Jurisdiction (forum domicilii). —This effect of domicile not only remains in modern law, but it is still more
important than it was among the Romans ; for with them the
forum originis very often co-existed with the forum domicilii,
so that the plaintive might choose between the two (§ 355).
With us, origo in the Roman sense has vanished ; and thus
the forum domicilii is now the only ordinary and regular forum
of every man.
But this jurisdiction, like domicile itself, upon which it
depends, has now a signification different from what it had in
the Roman law. It no longer relates, as it did there, universally and necessarily to the judicial authority over a municipal territory to which the domicile refers, but to a judicial
territory and local jurisdiction which may have very various
origins and limits, and may or may not coincide with the
boundaries of a municipal territory.
3. The particular territorial law to which, as his personal
law, every individual is subject.—Here we repeat the observation which has been made with respect to jurisdiction. This
effect of domicile has not only remained, but has become still
more exclusively applicable, and therefore more important, than
it was among the Romans ; but at the same time it has, like
the forum domicilii, acquired with us a different meaning.
This subject is more important for the purpose of the present inquiry than all the rest ; indeed, it is on account of it
alone that all the other questions here treated of have been
brought within the limits of this investigation.
ORIGO AND DOMICIL1UM IN MODERN LAW.
In modern law, domicile is to be regarded as determining,
in the ordinary case, the particular territorial law to which, as his personal law, every individual is subject (§ 358) ; and this
proposition has at all times found general acceptance (a). That,
therefore, becomes for us the normal condition, which, in the
Roman law, was necessarily admitted only exceptionally for
those persons who happened to have proper citizenship in no
city, and therefore were without origo (§ 357). In order to
show its relation both to the Roman law and to the kindred
rule as to jurisdiction above referred to, this principle of modern
law may be thus stated: 1. Among the Romans, the forum
originis subsisted alongside of the forum domicilii, both having
equal authority ; with us, the forum originis, in the Roman
sense, has disappeared,—the forum domicilii alone remains. 2.
With the Romans, the lex originis was the personal territorial
law of individuals, and the lex domicilii only exceptionally for
those who happened to have no origo ; 1 with us, the lex domi
cilii is the only regular criterion of the territorial personal law
of individuals (b).
Although, then, this exceedingly important principle, which
furnishes the foundation for the whole of the following inquiry,
is very generally admitted as a rule, it is still necessary to
define it more minutely in two respects.
First, in modern times, domicile, in regard to territorial law,
has another meaning and other limits than in Roman law, just
as has been already observed in respect of jurisdiction (§ 358).
With the Romans, the lex originis, as well as the lex domicilii,
was always the local law of a definite territory (§356) ; with us,
on the contrary, the unity of a territorial law, just like the jurisdiction, has very various sources and limits (c) ; and it is only
by accident that the territorial law coincides with the boundaries
of a municipal territory, and is the law of a city. If, there
fore, we wish to obtain for this relation the advantage of a
fitting designation, we must first give it a special technical
name ; and perhaps the word Gesetzsprengel (territory of a law, ■ressort d'une loi) might be suitable, and would be easily under
stood from its similarity to the common word Gerichtsprengel
(territory of a court, ressort d'un tribunal). Only it is here
to be understood that the word Gesetz (statute, positive law),
as well as lex domicilii, is taken in a wide sense for every rule
of the positive law, without distinguishing whether it may have
originated by a proper statute or by customary law.
Domicile, therefore, must be recognised as, in fact, the universal principle of determination ; and so the writers referred
to above (§ 358, a) have treated it as the true foundation of
the subject-relation (in respect to private law).