It is thought by most in the freedom/liberty/sovereign community that there was a time when a grand republic existed in which men did what they wanted (as long as they did not injury anyone), and the society was there to serve them.
However this lacks a basic understanding of how societies work, and even how they begin. Societies do exist to serve members needs, but on a collective level, not an individual one. You see societies form because one man needs the help of another. Men bind themselves together in contract for mutual benefit, and mutual obligations. It has always been this way, and will always continue to be this way. In fact, you can not think of any other way a society could form except thru contract of the members in the society. As with any contract, you have rights and duties, some of your rights you know, most of the duties you know.
Freedom and Liberty are just catch phrases for the mentally lazy zombies, they mean nothing because they are nothing. You have had obligations since the day you were born, as your kids do now as well. Your lack of understanding brought about by not understanding your mind, has repeated in your child. You are raising a lovely zombie, look he thinks just like you, amazing how that works.
If you have a belief and it is false, any line of thinking based on that belief is going to be faulty. Understand society and you will understand that people could never be free in society. Yes in some societies you have more civil rights then in others. However they are both still societies, and the members are still subject to the governing body and its laws.
Law is society and society is law, society was formed for the protection of the members rights, this protection was always obtained thru law. When you finally understand this you see that wo/men can only be free in nature. Society REQUIRES some giving up of natural rights to the body. There has never been, nor will there ever be a free society folks.
Wash away that belief that you can be a "state" anything or a "national" anything. Switching from one fictional society to another is not going to cut it.
If you believe me to be in error, i invite you to show evidence of a society where the members did not have obligations to other members of their society.
Sunday, May 21, 2017
Free home school resources.
Some free home school resources for you to enjoy. please vet all information as i dont have time to go thru all these sites and lessons.
http://www.k12videos.mit.edu/
https://archive.org/details/FedFlix
https://tutsplus.com/tutorials
https://www.youtube.com/user/learnoutloud
https://www.youtube.com/user/KiddieRecordsWeekly/videos?app=desktop
https://www.youtube.com/playlist?list=PLBNBwjy4bsKJDdCeviebFxU72AKFdzd6U
http://www.amblesideonline.org/curriculum.shtml
http://www.homeschoolcollegeusa.com/high-school-studies.html
http://freehomeschoolcurriulum.blogspot.com/
http://guesthollow.com/
http://worksheets.theteacherscorner.net/make-your-own/telling-time/
https://www.mathlearningcenter.org/resources/lessons/practice-books
http://www.freemathprogram.com/
http://www.teachwithmovies.org/index.html
http://topdocumentaryfilms.com/
http://www.e-learningforkids.org/
http://thekidshouldseethis.com/
http://www.socratica.com/browse
http://sqooltools.com/edvideos/index.html
http://www.watchknowlearn.org/
https://www.turtlediary.com/videos.html
http://www.neok12.com/
https://www.youtube.com/education
https://www.youtube.com/user/ParrMr/videos
http://www.teachertube.com/
http://www.k12videos.mit.edu/
https://archive.org/details/FedFlix
https://tutsplus.com/tutorials
https://www.youtube.com/user/learnoutloud
https://www.youtube.com/user/KiddieRecordsWeekly/videos?app=desktop
https://www.youtube.com/playlist?list=PLBNBwjy4bsKJDdCeviebFxU72AKFdzd6U
http://www.amblesideonline.org/curriculum.shtml
http://www.homeschoolcollegeusa.com/high-school-studies.html
http://freehomeschoolcurriulum.blogspot.com/
http://guesthollow.com/
http://worksheets.theteacherscorner.net/make-your-own/telling-time/
https://www.mathlearningcenter.org/resources/lessons/practice-books
http://www.freemathprogram.com/
http://www.teachwithmovies.org/index.html
http://topdocumentaryfilms.com/
http://www.e-learningforkids.org/
http://thekidshouldseethis.com/
http://www.socratica.com/browse
http://sqooltools.com/edvideos/index.html
http://www.watchknowlearn.org/
https://www.turtlediary.com/videos.html
http://www.neok12.com/
https://www.youtube.com/education
https://www.youtube.com/user/ParrMr/videos
http://www.teachertube.com/
Wednesday, May 10, 2017
Defending our self against "the state" in victim less cases
One point i dont see brought up a lot, if ever, is the definition/meaning of the "state" as it pertains to the prosecution of the case.
Penhallow 1795 tells us that the state is ALL the members making up the body, so if the state is 10,000 members and 9,999 of them are gathered in one spot, then the state is not gathered because it is missing a member.
So if i have two buddies in traffic court, and being members like i am, the fact of them not want to prosecute me should be enough to demand the court identify who exactly is prosecuting me since it would be impossible for "the state" to do so if some members were against it.
Now this might not get your case dismissed, but this is exactly the kind of questions we need to bring forward when we are going to court.
If anyone does use this and records it please let me know, i would love to know what they say about it.
Penhallow 1795 tells us that the state is ALL the members making up the body, so if the state is 10,000 members and 9,999 of them are gathered in one spot, then the state is not gathered because it is missing a member.
So if i have two buddies in traffic court, and being members like i am, the fact of them not want to prosecute me should be enough to demand the court identify who exactly is prosecuting me since it would be impossible for "the state" to do so if some members were against it.
Now this might not get your case dismissed, but this is exactly the kind of questions we need to bring forward when we are going to court.
If anyone does use this and records it please let me know, i would love to know what they say about it.
Non U.S. readers
Just a note to all my Non U.S. readers, the good news is that ALL men are created free and enter into these contracts thru domicile. Now depending on what form of government you signed up for will determine your fate.
But remember the power always is with the people thru the sheer numbers, the elite do crazy shit because WE allow them to do crazy shit. Lets work together to put them in check.
But remember the power always is with the people thru the sheer numbers, the elite do crazy shit because WE allow them to do crazy shit. Lets work together to put them in check.
Default state.
Back with you again, to talk to you about the mind, and that always spoken sentiment "i have an open mind". Upon hearing this i can assure myself that indeed this person does not have an open mind. They usually then provide evidence of their open mindedness by telling me the many fake news sites/papers they get their information from. What they do not understand is that man's mind has a default state, and that is closed.
Closed to new ideal's, new beliefs, anything that does not already jive with their system of beliefs they have had all their life. Mans default state is to believe what he already tends to believe, not open mindedness. It takes someone who understands this, to be on top of his game to stay open minded even a fraction of the time. Information comes at us fast, our brain works even faster, the directing/control value for information is our beliefs.
Control peoples beliefs, and you control them. It sickens me to see the propaganda that is targeting our kids today, from consumerism to vaccines, etc. They use tv,ads, etc to spread this crap, the signs are everywhere you look, if you are not a belief zombie that is. People see the world differently because we all see the world THRU our beliefs, our beliefs FILTER ALL, as in EVERY BIT of information that comes into our brain, so that the information makes sense to us.
https://www.thebestbrainpossible.com/seeing-the-world-through-rose-colored-glasses/
In order to understand this information, in order to truly understand anything, we must understand our self first. Without this truth, we can expect to find no other truth out there. The truth can only be found by those looking, the only ones really looking are those who truly think they do not know. Sadly most people think they know whats going on, what the problems are.
Remember they are open minded, and see both sides of the issue. When really the issue is just there to divide the weak minded zombies that believe ANY issue is comparable to the issue of subject vs freedom.
Let me be clear, there is NO OTHER issue. If the state can take whatever it wants, whenever it wants, for whatever reason it whats, up to and including your life, then no other issue matters friend.
Now i know the plantation we live on now is pretty dandy, we have to remember it is still a plantation and some day massa might not be so nice. But what do i know, things might get better if we just vote harder, besides let your kids deal with it, they know everything anyway right? Just kick back, grab a brew, turn on the tv and dont question your beliefs. Life will work itself out, it always has so far right?
Closed to new ideal's, new beliefs, anything that does not already jive with their system of beliefs they have had all their life. Mans default state is to believe what he already tends to believe, not open mindedness. It takes someone who understands this, to be on top of his game to stay open minded even a fraction of the time. Information comes at us fast, our brain works even faster, the directing/control value for information is our beliefs.
Control peoples beliefs, and you control them. It sickens me to see the propaganda that is targeting our kids today, from consumerism to vaccines, etc. They use tv,ads, etc to spread this crap, the signs are everywhere you look, if you are not a belief zombie that is. People see the world differently because we all see the world THRU our beliefs, our beliefs FILTER ALL, as in EVERY BIT of information that comes into our brain, so that the information makes sense to us.
https://www.thebestbrainpossible.com/seeing-the-world-through-rose-colored-glasses/
In order to understand this information, in order to truly understand anything, we must understand our self first. Without this truth, we can expect to find no other truth out there. The truth can only be found by those looking, the only ones really looking are those who truly think they do not know. Sadly most people think they know whats going on, what the problems are.
Remember they are open minded, and see both sides of the issue. When really the issue is just there to divide the weak minded zombies that believe ANY issue is comparable to the issue of subject vs freedom.
Let me be clear, there is NO OTHER issue. If the state can take whatever it wants, whenever it wants, for whatever reason it whats, up to and including your life, then no other issue matters friend.
Now i know the plantation we live on now is pretty dandy, we have to remember it is still a plantation and some day massa might not be so nice. But what do i know, things might get better if we just vote harder, besides let your kids deal with it, they know everything anyway right? Just kick back, grab a brew, turn on the tv and dont question your beliefs. Life will work itself out, it always has so far right?
Sunday, May 7, 2017
STATUS OF THE PERSON
(CAPACITY TO HAVE RIGHTS AND CAPACITY TO ACT).
In judging of the various conditions and qualities (Zustande) of a person, whereby the capacity for rights and the capacity to act are determined, a pure and simple application of that local law to which the person himself belongs by his domicile, is the only possible course (§ 359). This principle, it is true, has not remained uncontradicted (a). But the number of its supporters is so overwhelming, that it may, notwithstanding, be described as an almost universal opinion ; it has even been confirmed by a universal consuetudinary law in Germany (b). This, too, is the proper signification of personal statutes, to which notion so much importance was attached in former times (§ 361, No. 1). It would be a mistake, however, to estimate this accord as very complete ; it is in great measure only apparent. The following distinction was very early attempted, and has lately been asserted with great emphasis (c). We are to distinguish between the mere abstract existence of the legal qualities of a fierson and the legal effects of these qualities ; that is to say, the rights and limitations of the person arising out of them. The qualities themselves must be judged according to the local law of the domicile ; but the legal consequences not according to it, but according to another local law.
What law ? Of this we have to speak afterwards. The advocates of this distinction, therefore, restrict to the abstract qualities or conditions themselves the generally received opinion, and the universal consuetudinary law depending on it. The meaning of this distinction will become clear from the following instances : —Among the qualities themselves are those of the ward, the pupil, the minor, the prodigal; also of females, of the married woman, of legitimate or illegitimate children, etc. The question, therefore, whether any one is under age or not,—that is to say, what is the limit of minority,—is to be decided according to the law of the domicile. On the other hand, the rights and restrictions of the minor are among the juridical effects, and are therefore, by this doctrine, not to be judged according to the law of the domicile.1
At all times, however, many writers have made no such distinction, but have determined the legal effects, as well as the qualities themselves, solely according to the law of the person's domicile (d). And in accordance with them, I too must altogether reject this distinction. I maintain it to be arbitrary and illogical ; for any real ground for drawing such a line is entirely wanting. If we look into the matter closely, we find no other difference than this, that many personal qualities or states are known by specific names, while others are not. But this accidental and indifferent circumstance can afford no reason for applying to them different territorial laws. We call him major who possesses the fullest capacity to act, attainable by age. It is therefore only a name for certain legal effects, for the negation of previous limitations of capacity. So we call him a minor who does not yet possess that full capacity. It is a name for the negation of the condition of perfect capacity. If a law lays down, in regard to minority itself, certain degrees of capacity, without affixing to them specific names, no ground can be discovered why these degrees of capacity, just as much as the commencement of complete capacity, should not be judged by the law of the domicile.
This assertion will become still more evident by the following example : —The defenders of that distinction admit that a Frenchman twenty-one years old must be regarded as major and of full capacity in Prussia, where twenty-four years—and likewise in the countries of the Roman law, where twenty-five years—are the terms of full age; for by article 488 of the French code, he has received the rank of majeur, and has accordingly an essential quality to which the law of the domicile is to be applied. But the same code allows to minors, partly at sixteen, partly at fifteen and eighteen, years of age, certain more limited powers, without constituting them a special class with a specific name (c). This is therefore, according to that theory, no essential quality, but merely a legal effect,—a specially con stituted restriction of the person ; and the law of the domicile does not apply to it.
It is therefore my opinion, that every one is to be judged as to his personal status always by the law of his domicile, whether the judgment is at home or abroad, and whether the personal quality itself, or its legal effects, be the object of the judgment.*
https://books.google.com/books?id=3KoNAAAAYAAJ&printsec=frontcover&dq=private+international+law+and+the+retrospective+operation+of+statutes&hl=en&sa=X&ved=0ahUKEwir9Yfl-N7TAhWISiYKHaEfBgoQ6AEIIzAA#v=onepage&q=private%20international%20law%20and%20the%20retrospective%20operation%20of%20statutes&f=false
In judging of the various conditions and qualities (Zustande) of a person, whereby the capacity for rights and the capacity to act are determined, a pure and simple application of that local law to which the person himself belongs by his domicile, is the only possible course (§ 359). This principle, it is true, has not remained uncontradicted (a). But the number of its supporters is so overwhelming, that it may, notwithstanding, be described as an almost universal opinion ; it has even been confirmed by a universal consuetudinary law in Germany (b). This, too, is the proper signification of personal statutes, to which notion so much importance was attached in former times (§ 361, No. 1). It would be a mistake, however, to estimate this accord as very complete ; it is in great measure only apparent. The following distinction was very early attempted, and has lately been asserted with great emphasis (c). We are to distinguish between the mere abstract existence of the legal qualities of a fierson and the legal effects of these qualities ; that is to say, the rights and limitations of the person arising out of them. The qualities themselves must be judged according to the local law of the domicile ; but the legal consequences not according to it, but according to another local law.
What law ? Of this we have to speak afterwards. The advocates of this distinction, therefore, restrict to the abstract qualities or conditions themselves the generally received opinion, and the universal consuetudinary law depending on it. The meaning of this distinction will become clear from the following instances : —Among the qualities themselves are those of the ward, the pupil, the minor, the prodigal; also of females, of the married woman, of legitimate or illegitimate children, etc. The question, therefore, whether any one is under age or not,—that is to say, what is the limit of minority,—is to be decided according to the law of the domicile. On the other hand, the rights and restrictions of the minor are among the juridical effects, and are therefore, by this doctrine, not to be judged according to the law of the domicile.1
At all times, however, many writers have made no such distinction, but have determined the legal effects, as well as the qualities themselves, solely according to the law of the person's domicile (d). And in accordance with them, I too must altogether reject this distinction. I maintain it to be arbitrary and illogical ; for any real ground for drawing such a line is entirely wanting. If we look into the matter closely, we find no other difference than this, that many personal qualities or states are known by specific names, while others are not. But this accidental and indifferent circumstance can afford no reason for applying to them different territorial laws. We call him major who possesses the fullest capacity to act, attainable by age. It is therefore only a name for certain legal effects, for the negation of previous limitations of capacity. So we call him a minor who does not yet possess that full capacity. It is a name for the negation of the condition of perfect capacity. If a law lays down, in regard to minority itself, certain degrees of capacity, without affixing to them specific names, no ground can be discovered why these degrees of capacity, just as much as the commencement of complete capacity, should not be judged by the law of the domicile.
This assertion will become still more evident by the following example : —The defenders of that distinction admit that a Frenchman twenty-one years old must be regarded as major and of full capacity in Prussia, where twenty-four years—and likewise in the countries of the Roman law, where twenty-five years—are the terms of full age; for by article 488 of the French code, he has received the rank of majeur, and has accordingly an essential quality to which the law of the domicile is to be applied. But the same code allows to minors, partly at sixteen, partly at fifteen and eighteen, years of age, certain more limited powers, without constituting them a special class with a specific name (c). This is therefore, according to that theory, no essential quality, but merely a legal effect,—a specially con stituted restriction of the person ; and the law of the domicile does not apply to it.
It is therefore my opinion, that every one is to be judged as to his personal status always by the law of his domicile, whether the judgment is at home or abroad, and whether the personal quality itself, or its legal effects, be the object of the judgment.*
https://books.google.com/books?id=3KoNAAAAYAAJ&printsec=frontcover&dq=private+international+law+and+the+retrospective+operation+of+statutes&hl=en&sa=X&ved=0ahUKEwir9Yfl-N7TAhWISiYKHaEfBgoQ6AEIIzAA#v=onepage&q=private%20international%20law%20and%20the%20retrospective%20operation%20of%20statutes&f=false
Saturday, May 6, 2017
Connection of a person with a particular legal territory.
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.
INTRODUCTION.
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— 348). 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 the individual. 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). (1.) Citizenship. 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 mother (k). 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 community (w).
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).
The two 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
Such, 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 punishment (j).
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 domicile : 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 will (v). 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).
II. jurisdiction
(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.
(continuation.)
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).
https://books.google.com/books?id=3KoNAAAAYAAJ&printsec=frontcover&dq=private+international+law+and+the+retrospective+operation+of+statutes&hl=en&sa=X&ved=0ahUKEwir9Yfl-N7TAhWISiYKHaEfBgoQ6AEIIzAA#v=onepage&q=private%20international%20law%20and%20the%20retrospective%20operation%20of%20statutes&f=false
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.
INTRODUCTION.
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— 348). 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 the individual. 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). (1.) Citizenship. 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 mother (k). 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 community (w).
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).
The two 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
Such, 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 punishment (j).
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 domicile : 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 will (v). 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).
II. jurisdiction
(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.
(continuation.)
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).
https://books.google.com/books?id=3KoNAAAAYAAJ&printsec=frontcover&dq=private+international+law+and+the+retrospective+operation+of+statutes&hl=en&sa=X&ved=0ahUKEwir9Yfl-N7TAhWISiYKHaEfBgoQ6AEIIzAA#v=onepage&q=private%20international%20law%20and%20the%20retrospective%20operation%20of%20statutes&f=false
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