shall presently see, cause the infant's domicil thereafter to be governed by that of the father.' But the bastard's domicil in such case would cease to be the domicil of origin, and would become a constructive domicil. His first and original domicil was that of the mother, and hence when he afterwards acquires the domicil of the father by reason of the legitimation, it cannot be referred back to the time of his birth, even though the legitimation itself be referred to that date. The domicil of origin is assigned at the moment of birth; whatever is then the condition of the child will determine the locality of that domicil. If he be then illegitimate, and the mother's domicil is once assigned him legally as his domicil of origin, no other domicil of origin can be assigned him. That would be to give him two domicils at the same time.

It must be admitted however that there are authorities otherwise. For example, so able and accurate a commentator upon the Conflict of Laws as Mr. Dicey states the rule to be that one born a bastard but afterwards legitimated stands (after legitimation) in. the position he would have occupied if he had been born legitimate, and that his domicil of origin is therefore the country where his father was domiciled at the time of the bastard's birth (not at the time of his legitimation). But he admits that this opinion is open to doubt. This view seems to be based upon the theory that the act legitimating the bastard (such as an intermarriage of the parents) is to be referred to the time of conception or of birth, thus causing the conception or birth to take place, by relation, in wedlock. Even if this theory is admitted, it does not materially weaken the force of the reasoning above adduced against the proposition, and would be of no application at all in those cases where the legitimation arises from some other source than a subsequent intermarriage of the parents, such as the mere acknowledgment of the father, which suffices in some States."

2 Post, § 43; Dicey, Confl. L. 104; Whart. Confl. L. § 38.

See Jac. Dom. § 30.

Dicey, Confl. L. 104.

Dicey, Confl. L. 104.

See Munro v. Munro, 7 Cl. & F. 817.

See Blythe v. Ayres, 96 Cal. 352, 31 Pac. 915, 19 L. R. A. 40; Ives v. McNicoll, 59 Ohio St. 402, 43 L. R. A. 772.

§ 34. Original Domicil of a Foundling-Of an Adopted Child. A foundling's domicil of origin is the country where he is found.1 The principle applicable here is not different from that applied in other cases of original domicil. But there is here an element of uncertainty not arising under other circumstances,- an uncertainty as to the locality of the parents' domicil. In other cases this quantity in the equation is known. Here the parents themselves are not ascertained, much less their domicil.

The law therefore in such cases must not only raise the presumption, as in the case of other new-born infants, that they will have their permanent home in the domicil of their parents, but it must make a further presumption as to the locality of that domicil. The law will assume that the parents' domicil is in the country where the child is found, in the absence of evidence to the contrary, upon the principle that where no domicil is shown to exist elsewhere, mere presence in a country suffices to establish a prima facie domicil there.2

It is to be observed that the two presumptions above referred to differ in this respect. The presumption that the domicil of the parents is in the country where the foundling is discovered is merely a presumption of fact, rebuttable by evidence to the contrary; while the other presumption that a child has as his domicil of origin the domicil of his parents at the time of his birth is a conclusive presumption of law which cannot be rebutted in a particular case.

Hence, if it is afterwards discovered that the parents' domicil at the birth of the foundling was in reality in some other country than that wherein he is found, his domicil of origin is at once transferred thither, and the latter place will thenceforth be considered his domicil of origin. This last conclusion is not in conflict with the principle that no one can have more than one domicil of origin. The law, in this case, merely acknowledges itself mistaken in assuming that the parents were domiciled in

1 Dicey, Confl. L. 103, 132; Whart. Confl. L. § 39. See Washington v. Beaver, 3 W. & S. (Penn.) 548, 549.

2 Post, § 64; Dicey, Confl. L. 132.

See Washington v. Beaver, 3 W. & S. (Penn.) 548, 549.

the country where the child is found, and corrects its mistake. This is a very different case from that of the legitimated bastard adverted to in the preceding section.

Where a child has been adopted by persons, not his natural parents, it is evident that the adoption, like the subsequent legitimation of a bastard, being a circumstance supervening after his birth, cannot confer upon him any other original domicil than the one he already has.

§ 35. II. Constructive Domicil, arising by Operation of Law. The domicil of origin, it will be remembered, is assigned at the very moment of birth, and is retained until another is acquired. Such new domicil may be acquired in two ways. The individual, having reached maturity and being free from all disabilities, may choose a new home for himself. This is a domicil of choice. But it often becomes necessary for the law to assign a new domicil other than that of origin to infants and other persons incapacitated from selecting their own homes.

Thus, a child's domicil of origin is the domicil of the father at the moment of its birth. But the father may change his domicil to another State or country. The same reasons which induce the law to make the father's former domicil the child's domicil of origin operate to alter the child's domicil with that of the father. And so it is with disabilities other than infancy, such as those of a married woman or an idiot.

Such domicil, being assigned by the law, is said to arise by construction or operation of law. As in the case of the original domicil, the determination of the constructive domicil is based upon legal presumptions, which however are so strong as to be in the main conclusive and incontrovertible. Indeed the domicil of origin itself is only one instance of constructive domicil, though generally treated separately because of its peculiar importance and influence.

There are two main points of difference between a domicil of origin and a constructive domicil.

The first is that the domicil of origin is assigned to infants at the moment of birth, while a constructive domicil is always assigned after birth, and may be given to others under disabilities as well as to infants.

The second difference is to be found in the weight sometimes attached to the domicil of origin in ascertaining the domicil of choice in doubtful cases. It is expressed by the maxim: The domicil of origin is less easily abandoned and more easily reverts.1 This is simply a rule of evidence and means that it will take more convincing proof to show that one has abandoned his original domicil for a new one than to show that he has abandoned one later domicil for another; and on the other hand, it will require less evidence to prove a resumption of the domicil of origin (upon the abandonment of some later domicil) than to prove the acquisition of an entirely new domicil.2

There are a number of instances of constructive domicil, the most important of which, those of infants, married women, and insane persons, will now be examined.

§ 36. Constructive Domicil of Infant Legitimate Child. Infants, not having arrived at years of discretion, are incapable in law of exercising that voluntary and discreet choice in regard to their permanent abode which is essential to the acquisition of a domicil of choice.1

Furthermore, it being ordinarily true in fact that an infant occupies the home of his parents and is under their fostering care and protection, until he is himself able to battle with the world, the law substitutes the general presumption that such is the case in the place of particular evidence in each case as it arises. We have already noted the application of this rule in ascertaining the domicil of origin. The same principles will in general apply to any subsequent change of domicil during

1 Jac. Dom. §§ 110, 115 et seq.; Ennis v. Smith, 14 How. 400; Hallett v. Bassett, 100 Mass. 167; Otis v. Boston, 12 Cush. (Mass.) 44; Harvard College v. Gore, 5 Pick. (Mass.) 370; Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502; Somerville v. Somerville, 5 Ves. 750; Douglas v. Douglas, L. R. 12 Eq. 617. See Steer's Succession, 47 La. Ann. 1551, 18 So. 503; post, §§ 65, 66.

This last proposition is discussed, and in some measure dissented from, post, §§ 65, 66.

1 Jac. Dom. § 229; Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; Price v. Price, 156 Penn. St. 617, 27 Atl. 291; Lamar v. Micou, 112 U. S. 452; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Mears v. Sinclair, 1 W. Va. 185; Guier v. O'Daniel, 1 Binn. (Penn.) 349, note.

the child's minority, and in the main similar distinctions are to be taken.

The domicil of a legitimate child may be brought into question under various circumstances. The child's father may be living; or he may be dead, the mother surviving; or both may be dead; or they may be divorced.

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§ 37. Domicil of Legitimate Child - Father Alive. It is a well established rule that the domicil of an infant will usually change with that of the father, so long as he lives. It will in general make no difference in the application of this principle that the father and mother actually reside apart in different States or countries, or that in fact the child lives with its mother.2

The reason for this presumption of law is not only that in the vast majority of cases the child actually has the home of his father, but it may be placed upon the broader ground of the established legal right of the father, as the natural guardian of the child, to the custody of his person against all the world, -even against the mother, and his corresponding duty to afford it home and shelter.

It is said that possibly the father's abandonment of his family and the emancipation of the child will constitute exceptions to this rule. And if the parents should have been divorced, under

1 Dicey, Confl. L. 120; Jac. Dom. § 235; Story, Confi. L. § 46; Whart. Confl. L. § 41; Sharpe v. Crispin, L. R. 1 P. & D. 611; Lamar v. Micon, 112 U. S. 452; School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525; Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; Mears v. Sinclair, 1 W. Va. 185; Dresser v. Illuminating Co., 49 Fed. 257; Hiestand v. Kuns, 8 Blackf. (Ind.) 345, 46 Am. Dec. 481; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892, 896; Kline v. Kline, 57 Ia. 386, 10 N. W. 825, 826.

2 See Jac. Dom. § 236; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Kelsey v. Green, 69 Conn. 291, 37 Atl. 679.

Allgood v. Williams, 92 Ala. 551, 8 So. 722. See Lamar v. Micou, 114 U. S. 214. "The nurture and education of the offspring make it indispensable that they be brought up in the bosom of their parents' family; without which the father could not perform the duties he owes them, or receive from them the service that belongs to him." School Directors v. James, 2 W. & S. (Penn.) 568, 37 Am. Dec. 525, 527.

Jac. Dom. §§ 231-237; Allgood v. Williams, 92 Ala. 551, 8 So. 722. See Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628.