the State where it is entered into, requires the enforcement of its law with respect thereto, rather than the law of the legal situs or domicil, which has no force ex proprio vigore outside its own limits, and which the party himself has temporarily renounced, so far as that transaction is concerned.

This is the natural and proper view for the courts of the State where the transaction occurs or of a third State to take; but it does not necessarily follow that the same view will be taken by the courts of the party's domicil, if in entering into such foreign transaction the party has violated its law or policy.1

But if the matter in question (determinable by the lex situs of the person) arises, without the active intervention of the party, merely as a creation of the law, while he is thus temporarily in a State other than the State of his domicil, the same reasoning is not applicable. The laws of each State are enacted primarily for the benefit of its own citizens; and to impose those laws, except where the welfare of the State demands it, as in case of police and criminal laws, upon the citizens of other States temporarily there, in regard to matters in which they have not voluntarily submitted themselves to those laws, would be unjust to them and to the State where they reside, whose sovereignty over its own inhabitants would thus be denied.

If, for example, we take the case of a transfer of personal property, which is in general governed by the law of the situs of the owner, and suppose that the transfer occurs while the owner is in a State other than his domicil, the transfer will be governed by the law of the actual situs of the owner (the lex loci contractus) or by the law of his legal situs (lex domicilii), according as the transfer is by voluntary agreement on the part of the owner, or arises by operation of law, as in the case of the succession of a distributee to the personal estate of the deceased intestate owner."

Matters of status are always the creatures of the law, being fixed by law, independently of the will of the individual. Hence we should expect to find such matters always regulated by the law of the person's legal situs or domicil, save in the exceptional 1 Post,§§ 72, 73.

2 Post, §§ 128 et seq., 136 et seq., 139 et seq.

cases of the preceding chapter. And such is the general rule. But even in respect to status (the status of capacity) the same principle has been applied, and a distinction is made between the law governing a person's capacity to do a voluntary act, such as to enter into a contract, and his capacity in respect to involuntary acts or matters arising by operation of law, such as capacity to hold property under a conveyance or will.

In conclusion, it may be said that there is usually no difficulty in ascertaining the actual situs of a person at a particular time. It is a mere question of fact. But often the ascertainment of the domicil or legal situs of the person is not so easy. It is a mixed question of law and fact. The legal rules by which the domicil is determined will be dealt with at length in the succeeding chapter.

Post, §§ 68 et seq.

4 Post, §§ 70, 144; Ross v. Ross, 129 Mass. 243, 246, 37 Am. Rep. 321.

CHAPTER IV.

LEGAL SITUS OF THE PERSON, OR THE DOMICIL.

§ 19. Domicil, National, Quasi-National, or Municipal. — Mr. Jacobs, in his work on the Law of Domicil,1 has appropriately divided Domicil into three classes (1) The national domicil, representing the absolutely sovereign State in which one may be domiciled; (2) the quasi-national domicil, representing residence in a State which is not wholly, but only partially sovereign, such as one of these United States; and (3) the municipal domicil, representing only the intra-State political division, such as a county or city within a State, which is not sovereign at all.

The last class has no place in private international law, but is entirely the subject of the municipal law of the State where the particular county or city is located. And the distinctions to be drawn between the first two are comparatively slight and unimportant. Whether the particular States in question are wholly or only partially sovereign, if they are supreme with respect to the point at issue, that is all that private international law requires. If the law of the domicil of a party is to control, it is usually of small importance whether this be a national or a quasi-national domicil. Occasionally however distinctions must be taken between them.

It follows from what has been said that cases deciding questions relating to municipal domicil should be accepted with caution as authority in regard to matters of national or quasinational domicil. The former is the subject of municipal law only, the latter of private international law. To argue from the principles of municipal law to those of private interna

1 Jac. Dom. § 77.

tional law is always apt to be misleading. The failure to remember this fact has sometimes led to serious error.2

.Dom

§ 20. Domicil distinguished from Mere Residence. icil, as we have seen, in the last chapter, is to be distinguished from the actual situs of a person, a mere temporary locality of existence in a particular State at a particular time.

It must now be observed that domicil is also to be distinguished from a mere residence, of a temporary character, not intended to be permanent. Residence in a State is usually said to be necessary to domicil, but it must be a residence of a permanent, not of a temporary or limited, character. When the term " "resident or "residence " is used in connection with private international law, it is generally used in the sense of domicil, though not always.1

The Virginia case of Long v. Ryan is a good illustration of the distinction between mere residence and domicil. In that case, a person domiciled in Washington came to Virginia intending to remain there about nine months, until he should complete a contract into which he had entered, proposing afterwards to leave Virginia. His property was attached in Virginia under a statute permitting attachments against "non-residents," but the court, notwithstanding his domicil in Washington, held him to be a resident of Virginia, and dismissed the attachment.

So also a foreign minister actually resides or is personally present at the court to which he is accredited, but his legal residence and domicil are in his own country. Indeed, by the fiction of exterritoriality, the place of his residence is a part of his own country. It is otherwise with consuls.*

2 For example, with respect to the right of a guardian to alter the ward's domicil. See post, § 41.

1 In re Wrigley, 8 Wend. (N. Y.) 134; Frost v. Brisbin, 19 Wend. 11, 32 Am. Dec. 423; Langdon v. Doud, 6 Allen (Mass.), 423, 83 Am. Dec. 641; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Chitty v. Chitty, 118 N. C. 647, 82 L. R. A. 394; Wood v. Roeder, 45 Neb. 311, 63 N. W. 853; Ayer v. Weeks, 65 N. H. 248, 18 Atl. 1108; Long v. Ryan, 30 Gratt. (Va.) 718; Tipton v. Tipton, 87 Ky. 243, 8 S. W. 440. See Story, Confl. L. § 49, note (c).

2 30 Gratt. 718.

• Whart. Conf. L. § 49; Crawford v. Wilson. 4 Barb. (N. Y.) 505.

So it is with students. Though resident at a college or university for the period necessary to complete their course, they are not domiciled there unless they have the intention to remain there permanently. But the question of domicil is distinct from the right of suffrage. The latter is a matter of municipal law, and is subject to the rules prescribed by each State within its own borders. If those laws do not require a domicil as a condition of suffrage, but only a mere residence, a student may be permitted to vote, though he be not domiciled in the State. Such is the general rule in the United States.*

§ 21. Domicil distinguished from Nationality or Citizenship. The distinction between domicil and nationality or citizenship is just as marked as that which exists between domicil and residence. A person may be a subject or citizen of one country, while domiciled in another. Thus, a citizen of France may actually be in New York. If merely passing through he has only his actual situs in New York. If he resides there, with the intention to remain for a limited period, he is a resident of New York, and if, coupled with the residence, there is the intention to remain there permanently or for an unlimited period, he is domiciled in New York, yet he may all the time remain a citizen of France.

But it must be observed that, so far as citizens of the United States are concerned, the rule is otherwise as between the States of this Union. The fourteenth amendment to the federal constitution expressly provides that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside" (that is, are domiciled). This provision establishes for the States of the Union the rule that a citizen of one State,

4 Whart. Confl. L. § 48; Opinion of the Judges, 5 Met. (Mass.) 587; Fry's Case, 71 Penn. St. 302; Hart v. Lindsey, 17 N. H. 235, 43 Am. Dec. 602; Kelley v. Garrett, 67 Ala. 304; Sanders v. Getchell, 76 Me. 158; Vanderpoel v. O'Hanlon, 53 Ia. 246, 36 Am. Rep. 216; Dale v. Irwin, 78 Ill. 170.

1 Harral v. Harral, 39 N. J. Eq. 379, 51 Am. Rep. 17, 21; Haymond v. Haymond, 74 Tex. 414, 12 S. W. 90, 92; Larquie v. Larquie, 40 La. Ann, 457, 4 So. 335, 336; Roth v. Roth, 104 Ill. 35, 44 Am. Rep. 81, 82; Powers v. Lynch, 3 Mass. 77.