Page:Catholic Encyclopedia, volume 5.djvu/134

 DOMICILE

104

DOMICILE

as it was not at variance with later decrees of pontifi- cal law. So true is this that there exists no document in which the theory of domicile has been completely and officially expounded by an ecclesiastical legisla- tor.

I. RoM.VN L.\w. — ^We must therefore revert to Ro- man law, which established domicile as the extension or communication of a pre-existent legal status of in- dividuals — origin (origo, jus originis). In the theory of the Roman lawyers each man belongs to his muni- cipality, to his city, where, as he contributes his share to the expenses and taxes, so he has a right to the common advantages. Children natiu-ally follow their father's condition and belong likewise to the city, even though bom at a distance. Such is the Roman origo, quite akin to what we call nationality, except that the origo relates to the restricted locality of one's birth, and nationality to one's native land. Hence it is birth, the legal birthplace, that determines one's origo, i. e. not the actual site of birth but the place where each one shoukl have been born, the mimicipality to which the father belonged (L. 1. ff. Ad municip.). Let us now suppose a man settled for a long time in a city of which he is not a native. Partly in return for the taxes he pays, and partly to permit him to exercise local civic duties, he is granted the status of a real citi- zen, without loss, however, of his o^\•n origo or mimici- pal right. Such, then, is the primit ive concept of domi- cile in Roman law: the communication to a man, born in one mimicipality but residing permanently in an- other, of the civil rights normally reserved to citizens who are natives of the locality. To become as one of the latter, the stranger must create for himself a domi- cile, and it was this th:it necessarily led jurists to define domicile and the conditions upon which it could be ac- quired. Hence the celebrated definition of domicile given by the Emperors Diocletian and Maximianus (L. 7, C. de incol.): "It is certain that each one has his domicile in the place where he has established his home and busmess and has his possessions; a resi- dence which he does not intend to abandon, imless called elsewhere, from which he departs only as a traveller and by returning to which he ceases to be a traveller." The juridical element constitutive of domicile is the intention, the will definitively to settle oneself in a place, this will being deduced from the circmnstances and especially the conditions of instal- lation. It implies mdefinite stability, not perpetuity iu the restricted sense of the word, as though one re- noimced the right to change domicile. Another domi- cile may at any time be acquired on the same condi- tions as the first ; it is lost when the intention of aban- doning it is coupled with the fact of desertion. Since, therefore, domicile conferred the same rights as origo, its importance became gradually more and more marked.

We can now better imderstand the words that so often recur in Roman law and have been adopted by canonists: those who belong to a municipality by right of birth are citizens (cives); those who come from elsewhere, but have become its members by domicile are inhabitants {incolcc), though these terms are used almost sj-nonj-mously by legists and canon- ists; those who have spent a sufficient time there without, however, acquiring a domicile, are strangers (advenfe), though to them canonists concede a quasi- domicile. Finally, those who make but a passing so- journ there are transients (percgrini; cf. L. 239, de Verb. sign.). To these categories canonists have added one which the Roman origo, being permanent, could not recognize, namely the wanderers {''ngi), who have no fixed residence or who, having definitely abandoned one domicile, have not as yet acquired another.

II. Development of " Domicile" in Canon Law. — In the troublous times that prevailed after the Bar- barian invasions, the domicile of Roman law was lost

sight of, and even the word itself disappeared from the jm-idical language of the time. However, this does not mean that persons inliabiting certain limited dis- tricts had wholly ceased to be comiected with local authority, whether civil or religious, nor that all acts were regulated exclusively, after the barbarian con- cept, by a personal code. The material fact of habi- tation could not, it is true, be ignored, but it no longer served for a theory of domicile. The medieval eccle- siastical canons say that each Catholic (Jidelis) should pay his tithes in the church where he was baptized and that his obsequies should be held wherever he pays his tithes, etc., but there is no mention of domicile.

The Roman theory was again restored to honour by the glossarists of the Bolognese .School, especially by Accursius in the beginning of the thirteenth century. Whether it was because they mistook the real meaning of origo or desired to explain it in a way that suited the customs of their time, they interpreted it as a sort of domicile resulting from one's birthplace, and if one were born there per accidens, from the place of one's father's birth. Except for this inaccuracy, the Ro- man theory was well expounded. Moreover, according to the favoiu-ite principles of their time, the glos- sarists brought into prominence the double constitu- tive element of domicile (or, properly speaking, of ac- quired domicile): the material element (corpus), i. e. habitation, and the juridical or formal element (ani- mus), i. e. the intention to remain in this habitation indefinitely. Although they did not contribute di- rectly to this revival of domicile, canonists neverthe- less adopted it and it was definitively admitted in the gloss of "Liber Sextus" (cc. 2 and 3, de sepult.). They applied these rules to the acts of Christian life: baptism, paschal Conmiunion and A'iaticum, confession, extreme unction, fimerals, interments, then also to or- dination and judicial competency. The actual canon- ical rules on domicile are about the same.

In the meantinie almost the only development of canon law in this matter has been the creation of the quasi-domicile theorj', foreign alike to Roman and modern civU law. As its name implies, quasi-domi- cile is closelj' patterned on domicile and consists in a sojourn in some one place during a sufficient length of time. Not only does it not call for abandonment of the real domicile, but can co-exist with the latter and even supposes the intention of returning thither. It was evident that the ordinari,- acts of the Christian life, the rights and obligations of a parishioner, could not be confined to permanent residents only; hence the necessity of assunilating to such residents those who sojom-n in the place for a certain length of time. The canonists soon concluded that whoever has a quasi- domicile in a place may receive there the sacraments and perform there legitimately all the acts of the Chris- tian life without forfeiting any of his rights in the place of his real domicile; he may even thus become subject to the judicial authority of his place of quasi-domicile. The only restrictions are, as we shall see, for ordina- tions and, to a certain extent, for funerals. For a long time, however, the theory remained vague and imde- tennined. Authors could scarcely agree as to precisely what was meant by the "sufficient length" of time (non breve tempus) required for quasi-domicile, and they hesitated to pronoimce on the various pos- sible reasons for a sojourn and the degree in which they could create presiunption of an intention to ac- quire quasi-domicile. Strictly speaking, the questior was really important only in regard to those mar- riages whose validity depended on the existence of a quasi-domicile in coimtries where the Tridentine decree "Tametsi" had been published; in this way, as we shall see below, new legislation became necessary. The quasi-domicile theory was not definitively settled until the appearance of the Instruction of the Holy Office addressed to the Bishops of England and the United States, 7 June, 1S67, in which quasi-domicile is