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With at least as much fairness, it may be taken as meaning “ a Court with exclusive jurisdiction in England in matters matrimonial.” Read fairly, the two versions come, no doubt, to the same thing. They mean “a Court which shall in England have exclusive jurisdiction over such matrimonial matters as are properly within the jurisdiction of an English Court.” What is the test ofthisjurisdiction?
It is laid down by James, L.].—in perfect accordance, so far, with the principles of international 1aw—that the jurisdiction exists “ where and while the matrimonial home is English.”* The test is a sound one, if followed out to its logical conclusion—a conclusion accepted by Brett, L.]., and Sir R. Phillimore, but rejected by its framer. The condition that the matrimonial home should be English, is, in the mouth of a lawyer, identical with the condition that the husband should be domiciled in England. In the eye of the law, home is domicil and domicil is home. The difiiculty of defining the legal phrase is only equalled by the notorious impossibility of translating the colloquial one; but to show that the legal conception of domicil is theoretically and actually the colloquial conception of home draped in legal robes, a few of the most successful attempts to define the former term may here be given.
“ Domicil is the legal conception of residence, and the two words differ no otherwise than, as in all sciences, common words, on becoming technical, are limited in meaning for the sake of precision/’——(\Vestlake, sec. 30.)
“By the term domicil in its ordinary acceptation is meant the place where a person lives and has his home. In a strict and legal sense that is properly the domicil of a person where he has his true fixed home and principal establishment.”—(Story, Confl., p. 37.)
1‘ At p. g (L.R., 4 P.D.). It is worth while observing that James, L.]., goes on to add a further test, and one, as far as I know, never before demanded by an English Court, though it has been suggested in America (Story, sec. 229 and (n)). He adds, “and where . . . the wrong is done here.” Surely there can be no doubt that a domiciled Englishman could obtain a divorce here on the ground of adultery committed by his wife in France !
“Two things must concur to constitute domicil; first, residence; and secondly, the intention of making it the home of the party.”—(Story, Confl., p. 37.)
“ Domicil is a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.”-—(Phillimore, Law Dom., p. I3.)
“ Domicil is the place where a man would be if there were no particular circumstance to determine his position in some other place at that period.”—~(Per Lord Loughborough in Bempde v. johnstone, 3 Ves. jun., 202.)
“ Domicil of Choice” (i.e., as opposed to domicil of origin) “is a conclusion or inference which the law draws from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. . . . There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office.”—(Per Lord Westbury in Udny v. Udny, L.R. I, H.L. Sc. 458.)
The above citations seem sufficient to establish the proposition that domicil is the legal equivalent of the colloquial home. It would be difficult, at any rate, to select language more fitted to support such an argument. It may not be superfluous to subjoin, in illustration of the same truth, the well-known description of domicil which is so often borrowed from the Roman Law. “ In eo loco singulos habere domicilium non ambigitur, ubi quis larein rermnque ac fortunarum suarum sumrnam constituit; uncle rursus non sit discessurus, si nihil avocet; unde cum profectus est, peregrinari oidetur ; qua si rediit, peregrinari jam destitit.”—(Cod. X., 39, 40.)
It only remains, in order to apply the above explanation of the meaning of domicil to the present case, to enquire how, why, and to what extent, the general rule is modified in the case of consuls. The secret of such modification is to be found in the judgment of Lord \Vestbury in Udny v. Udny, quoted above. The residence or home which the law translates into domicil must be “freely chosen, and not prescribed or dictated by . . . the duties of oflice." If the person whose condition“ is being inquired into has a. quasi-residence or home which is prescribed by such an external necessity as the duties of an ofiice (consular, for example), the la\v refuses to draw the conclusion or inference of domicil from such compulsory quasi-residence. It continues to attribute to him the domicil which he had before and apart from such quasi-residence; and from this attribute it draws the inevitable inference that the place of such former domicil is his natural and continuing home, though he is temporarily severed from it. Thither it expects him to return and take up his permanent abode,* so soon as the external necessity which binds him to foreign soil is removed. If it did not expect this, the law would in truth and in substance regard him as domiciled in his new abode; but it is alegal principle that this inference of new dornicil shall never be drawn from compulsory ofiicial residence alone.
That this is the true rationale of the rule as to consulart domicil appears from the following considerations. A consul is only regarded as domiciled in the country which he represents, in cases where he had that domicil before his appointment. If a British consulate, for example, is accepted by a person already domiciled abroad, who thereupon undertakes to represent the British government in the country of his own domicil, he does not thereby lose his domicil of origin and acquire a domicil in England. Nor would an Englishman, who accepted the French consulate which M. Niboyet held at Newcastle, acquired a French domicil by so doing.* The domicil of a consul, in short, does not depend upon his official relationship to a particular country, except so far as that relationship determines the voluntary and permanent nature, or the contrary, of his residence or dwelling. If the official relationship does not interfere with the residence, the domicil remains unchanged. If it compels a new residence, such residence is not regarded as voluntary or permanent, and the domicil is again unaffected. Such quasi-residence does not constitute home.
' See the language of Lord Loughborough in Bcmpde v. Yollrzstonc, already cited.
1- The doctrine as to ambassadors is governed by diflerent considerations. By the theory of cxlcrrit0rialit<", the house of an ambassador is part of his sovereign’s territory, and residence there is consequently not residence abroad, but in the country which he represents.
To sum up the preceding argument, it has been shown that domicil is the legal equivalent of the colloquial home, and the only determinate form in which the law can recognise that intangible and ill-defined conception. The admitted fact, therefore, in Niboyet v. Niboyet, that the husband was domiciled in France, involved necessarily and peremptorily the conclusion that his h0me—-i.e., the “ matrimonial home ”—was in France also, and that his so-called “ residence” in England was in its nature temporary, compulsory, and devoid of legal value. It follows therefore that it is immaterial whether the condition of jurisdiction is verbally expressed as “ matrimonial home in England” or “domicil in England ;” because neither of these condi
tions (in reality one and the same) was fulfilled in the case under discussion.
It only remains to point out some of the inconveniences and difficulties which would result from the distinction between home and domicil which james, L.]., draws. The question of domicil, as the Lord justice remarks, has often been found very difficult of solution. \‘Vhether regarded as an issue of law or of fact, it is one which involves a lengthened inquiry, a careful balance of minute particulars, a
judicial determination of the most delicate kind. Will these difficulties be lessened or increased, when Courts are called upon to discriminate, not between domicil and nondomicil simpliciter, but between these and a third or intermediate conception called home, less than one and greater than the other, as difficult of definition and as elusive of the grasp as that which it is intended to supersede? Remembering the definitions of domicil which have been given above, what attributes are there left with which the new legal conception of home is to be endowed? What means can be suggested of equipping it, except by robbing the existent legal conception of domicil of all the essential qualities which give it a practical and effectual being, leaving the empty shell or name for the complicated jural code of existing international law to operate upon ? What else has been done, indeed, in the present instance? The Court of Appeal find a person cited before them who ought, according to their view, to be regarded as domiciled in England, and who probably was so in fact. It is, however, admitted on the pleadings that his domicil is French—the admission being, no doubt, partly due to the effect of a well-established legal presumption. Unable to deny the existence of the legal presumption, or to ignore the effect of the admission, the Court of Appeal reconcile their inclination with the facts in the following way. “ The petitioner,” they say in effect, “ is living in England, but is domiciled, by law and by the admission of the parties, in France. Be it so. We will verbally admit the French domicil, but we will not allow it to have its usual consequences. The kernel of domicil is home—permanent residence. In this case the admission makes the shell—the domicil—French, but says nothing at all about the home—the kernel. We will, therefore, confine the effect of the admission and of the rule of law to the domicil, which we will make an empty phrase, without colour, meaning, or practical effect; and we will hold that the home which constitutes its colour and