DOMICI´LIUM
DOMICI´LIUM This word signifies a man's permanent
home. The following is the wellknown definition of
domicilium given in the
Corpus
Juris (Cod. 10.40, 7):--“In eo loco singulos habere
domicilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum
summam constituit, unde rursus non sit discessurus, si nihil avocet,
unde cum profectus est peregrinari videtur, quo si rediit peregrinari
jam destitit.” In a passage of the Digest a man's home is thus
defined (
Dig. 50,
16,
203): “Sed de ea re constitutum esse
(respondit) eam domum unicuique nostrum debere existimari, ubi quisque
sedes et tabulas haberet suarumque rerum constitutionem
fecisset.” A man acquired
domicilium by
making a place his residence and intending to remain in it permanently
(
animus manendi).
Domicilium was lost by abandonment. The question of the
existence of domicile was treated as one of fact to be determined by the
circumstances of each case.
Thus it is determined (
Dig. 50,
1,
27.1) that a person must be considered
to have his
domicilium in a
municipium if he buys and sells there, attends the public
spectacles, keeps the festival days there, and in fine enjoys all the
advantages of the
municipium and none of the
colonia, where he is merely for the purpose
of cultivation (
ubi colendi ruris causa
versatur). The terms
incolam esse and
domicilium habere are equivalent (
Dig. 50,
1,
5; cf. Cod. 10, 39, 7 “Cives quidem origo, manumissio,
allectio, vel adoptio, incolas vero domicilium facit” ).
The word
domicilium was used in a fixed sense in
the Lex Plautia Papiria, which was enacted B.C. 89: “Si qui foederatis
civitatibus adscripti fuissent, si turn cum lex ferebatur in Italia
domicilium habuissent et si sexaginta diebus apud praetorem essent
professi” (
Cic. pro Arch.
ch. 4). Cicero in the same passage indirectly describes
domicilium in a way which partly agrees with the
definition of the Code above cited. “At domicilium Romae non habuit:
is qui tot annis ante civitatem datam sedem omnium rerum ac fortunarum
suarum Romae collocavit.”
It might be necessary for many purposes to determine where a man had his
permanent abode. An
incola was bound to obey
the magistrates of the place where he was an
incola, and also the magistrates of the place where he was a
civis; he was not only subject to the
municipal jurisdiction in both municipalities, but he was bound to perform
all public functions (
publica munera). A
plaintiff was bound to bring his action in the forum of the defendant
(
actor sequitur forum rei), but the
plaintiff had the choice of suing the defendant either at the place of his
domicile (
forum domicilii) or at the place of
which the defendant was a citizen (
forum
originis). A man's legal relations were governed by the law of the
place in which he was a citizen (
lex originis),
and not by that of the place of domicile; but if he was not a citizen of any
municipium, he was subject to the
lex domicilii. In the
praescriptio longi temporis decem vel viginti annorum, it was
enacted by Justinian, that the ten years' prescription should apply, if both
parties had their
domicilium in the same
provincia; otherwise the prescription of
twenty years was required.
The conception of domicile has far more important consequences in modern
systems of law than in ancient; it is the foundation of a branch of what is
sometimes called private International law, but more correctly the conflict
of laws. (Savigny,
System, 8. § § 353,
354.)
[
G.L] [
E.A.W]
