Domicile

From the Catholic Encyclopedia

(Lat. jus domicilii, right of habitation, residence).

The canon law has no independent and original theory of domicile; both the canon law and all modern civil codes borrowed this theory from the Roman law; the canon law, however, extended and perfected the Roman theory by adding thereto that of quasi-domicile. For centuries ecclesiastical legislation contained no special provision in regard to domicile, adapting itself quite unreservedly on this point both to Roman and Barbarian law. It was only in the thirteenth century, after the revival at Bologna of the study of Roman law, that legists and then the canonists, returned to the Roman theory of domicile, introducing it first into the schools and then into practice. Not that the Church had "canonized", so to speak, this particular point of Roman law more than others, but civil law, being more ancient, formed a basis for canon law, which accepted it, at least in so far as it was not at variance with later decrees of pontifical 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 legislator.

I. ROMAN LAW

We must therefore revert to Roman law, which established domicile as the extension or communication of a pre-existent legal status of individuals-origin (origo, jus originis). In the theory of the Roman lawyers each man belongs to his municipality, to his city, where, as he contributes his share to the expenses and taxes, so he has a right to the common advantages. Children naturally follow their father's condition and belong likewise to the city, even though born 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 should have been born, the municipality 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 citizen, without loss, however, of his own origo or municipal right. Such, then, is the primitive concept of domicile in Roman law: the communication to a man, born in one municipality but residing permanently in another, of the civil rights normally reserved to citizens who are natives of the locality. To become as one of the latter, the stranger must crreate for himself a domicile, and it was this that necessarily led jurists to define domicile and the conditions upon which it could be acquired. Hence the celebrated definition of domicile given by the Emperors Diocletian and Maximianus (L. 7, G. de incol.): "It is certain that each one has his domicile in the place where he has established his home and business and has his possessions; a residence which he does not intend to abandon, unless 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 circumstances and especially the conditions of installation. It implies indefinite stability, not perpetuity in the restricted sense of the word, as though one renounced the right to change domicile. Another domicile may at any time be acquired on the same conditions as the first; it is lost when the intention of abandoning 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 understand 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), though these terms are used almost synonymously by legists and canonists; those who have spent a sufficient time there without, however, acquiring a domicile, are strangers (advenæ), though to them canonists concede a quasi-domicile. Finally, those who make but a passing sojourn there are transients (peregrini; 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 (vagi), 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 Barbarian invasions, the domicile of Roman law was lost sight of, and even the word itself disappeared from the juridical language of the time. However, this does not mean that persons inhabiting certain limited districts had wholly ceased to be connected with local authority, whether civil or religious, nor that all acts were regulated exclusively, after the barbarian concept, by a personal code. The material fact of habitation could not, it is true, be ignored, but it no longer served for a theory of domicile. The medieval ecclesiastical canons say that each Catholic (fidelis) 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, expecially 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 Roman theory was well expounded. Moreover, according to the favourite principles of their time, the glossarists brought into prominence the double constitutive element of domicile (or, properly speaking, of acquired domicile): the material element (corpus), i.e. habitation, and the juridical or formal element (animus), i.e. the intention to remain in this habitation indefinitely. Although they did not contribute directly to this revival of domicile, canonists nevertheless 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 Communion and Viaticum, confession, extreme unction, funerals, interments, then also to ordination and juridical competency. The actual canonical rules on domicile are about the same.

In the meantime almost the only development of canon law in this matter has been the creation of the quasi-domicile theory, foreign alike to Roman and modern civil law. As its name implies, quasi-domicile is closely 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 suppose the intention of returning thither. It was evident that the ordinary acts of the Christian life, the rights and obligations of a parishioner, could not be confined to permanent residents only; hence the necessity of assimilating to such residents those who sojourn 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 Christian 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 ordinations and, to a certain extent, for funerals. For a long time, however, the theory remained vague and undetermined. 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 pronounce on the various possible reasons for a sojourn and the degree in which they could create presumption of an intention to acquire quasi-domicile. Strictly speaking, the question was really important only in regard to thosse marriages whose validity depended on the existence of a quasi-domicile in countries 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, 1867, in which quasi-domicile is patterned as closely as possible on domicile. Like the latter, it is made up of the double element of fact and right, i.e. of residence and the intention of abiding in it for a sufficient length of time, this time being clearly stated as a period covering more than six months-per majorem anni partem. As soon as these two conditions coexist, quasi-domicile is acquired and immediately involves the legal use of rights and competencies resulting therefrom. (See below for a recent restriction in regard to marriage.) Finally, quasi-domicile is lost by the simultaneous cessation of both its constitutive elements, i.e. by the abandonment of residence without any intention of returning to it. Suffice it to add that in this matter the canon law, yielding to custom, tends easily to adapt itself to the provisions of civil law, e.g. as regards the legal domicile of minors, wards, and other analogous provisions.

III. PRESENT LAW

From the preceding explanation there results a very important conclusion which throws a strong light on canonical legislation concerning domicile and which we must now set forth. It is this: the law does not deal with domicile for its own sake, but rather on account of its consequences; in other words, on account of the personal rights and obligations attached thereto. This explains why domicile must meet divers requirements more or less severe according to the case in point, e.g. marriage, ordination, juridical competency. Keeping therefore in view the legal consequences of domicile and its various forms it may be defined as a stable residence which entails submission to local authority and permits the exercise of acts for which this authority is competent. To this definition the laws and their commentators confine themselves, without touching on the legal effects of domicile. As we have already seen, domicile, properly so called, is the place one inhabits indefinitely (locus perpetuæ habitationis), such perpetuity being quite compatible with more or less transitory residence elsewhere. It matters not whether one be the owner or simply the occupant of the house in which one dwells or whether one owns more or less property in the locality. The place of one's domicile is not the house werein one resides but the territorial district in which the house or home stands. This district is usually the smallest territory possessing a distinct, self-governing organization. All authors agree that, from a civil viewpoint, the municipality is the place of domicile and, canonically considered, the parish or territorial division replacing it, e.g. mission or station. It is in the municipality that the acts and rights of civil life are exercised, and in the parish those of the Christian life. Strictly speaking, one cannot acquire domicile in a ward or hamlet or in any territorial division which does not form a self- governing group. Of course there are certain acts that do not depend, or that no longer depend, on local authority; in this sense, it is possible to speak of domicile in a diocese when it is question e.g. of ordination, or of domicile in a province apropos of the competency of a tribunal. But these exceptions are merely apparent; they imply that one has a domicile in some parish within a given diocese. The canon law has never recognized as domicile an unstable residence in different parts of a diocese without intent to establish oneself in some particular parish. Canon law (c. 2, de sepult. in VI), like Roman law (L. 5, 7, 27, Ad municip.), allows a double domicile, provided there be in both places a morally equal installation; the most ordinary example of this being a winter domicile in the city and a summer domicile in the country.-There are three kinds of domicile: domicile of origin, domicile of residence or acquired domicile, and necessary or legal domicile. The domicile of origin, a somewhat inexact imitation of the Roman origo, is that assigned to each individual by his place of nativity unless he be accidentally born outside of the place where his father dwells; practically it is the paternal domicile for legitimate and the maternal domicile for illegitimate children. Again, in reference to the spiritual life, domicile of nativity is the place where adults and abandoned children are baptized.-The domicile of residence or acquired domicile is that of one's own choice, the place where one establishes a residence for an indefinite period. It is acquired by the fact of material residence joined to the intention of there remaining as long as one has no reason for settling elsewhere; this intention being manifested either by an express declaration or by circumstances. Once acquired, domicile subsists, despite more or less prolonged absences, until one leaves it with the intention of not returning.-Finally, necessary or legal domicile is that imposed by law; for prisoners or exiles it is their prison or place of banishment; for a wife it is the domicile of the husband which she retains even after becoming a widow; for children under age it is that of the parents who have authority over them; for wards it is that of their guardians; lastly, for whoever exercises a perpetual charge, e.g. a bishop, canon, or parish priest, etc., it is the place where he discharges his functions.

Quasi-domicile is of one kind only, namely of residence and choice and cannot be acquired in any other way. It is acquired and lost on the same conditions as domicile itself and is deduced mainly from such reasons as justify a sojourn of at least six months, e.g. the pursuit of studies, or even for an indefinite period, as in the case of domestics. Quasi-domicile is presumed, especially for marriage, after a month's sojourn according to the Constitution "Paucis abhinc" of Benedict XIV, 19 March, 1758; but this presumption yields to contrary proof, except however when it is transformed into a presumption juris et de jure, which admits of no contrary proof; such is the case for the United States in virtue of the indult of 6 May, 1886, granted at the request of the Council of Baltimore in 1884 (Acts et Decreta, p. cix) and extended to the Diocese of Paris, 20 May, 1905. This being so, quasi-residents are regarded as subjects of the local authority just as are permanent residents, being therefore parishioners bound by local laws and possessing the same rights as residents, with this difference, that, if they so choose, they may go and use their rights in their own domicile. They can, therefore, apply to the local parish priest, as to their own parish priest, not only for those sacraments administered to every one who presents himself, e.g. Holy Eucharist and penance, but also for the baptism of their children, for first Communion, paschal Communion, Viaticum, and extreme unction. Their nuptials may also be solemnized in his presence and, except when they have chosen to be buried elsewhere, their funerals should take place from the parish church of their quasi-domicile. Finally, the quasi-domicile permits of their legitimate citation before a judge competent for the locality. As regards marriage, the quasi-domicile affected its validity in parishes subject to the decree "Tametsi" until the decree "Ne temere" of 2 August, 1907, rendered the competency of the parish priest exclusively territorial, so that all marriages contracted in his presence, within his parochial territory, are valid; for a licit marriage, however, one of the two betrothed must have dwelt within the parish for at least a month.

On the other hand those who have neither a domicile nor a quasi-domicile in a parish, who are only there as transients (peregrini), are not counted as parishioners; the parish priest is not their pastor and they should respect the pastoral rights of their own parish priest at least in so far as possible. The restrictions of former times, it is true, have been greatly lessened and at present no one would dream of obtaining parochial rights for annual confession, paschal Communion or the Viaticum. Something, however, still remains: for marriage transients must ask the delegation or authorization of the parish priest of their domicile (regularly of the bride) if the contracting parties have not already sojourned for a month within the parish where they seek to contract marriage; funerals also belong to the parish priest of the domicile, i.e. if the interested parties desire to, and can transport to the parish church the body of the deceased; in any event the parish priest may demand the parochial dues known as quarta funeralis. Generally speaking, transients (peregrini) are not subjects of the local ecclesiastical authority; they are not held to the observance of local laws except inasmuch as these affect public order, nor do they become subjects of the local judicial authority.

As to the domicile requisite for ordination there are special rules formulated by Innocent XII, in his Constitution "Speculatores", 4 November, 1694. The candidate for orders depends upon a bishop, first by reason of his origin, that is to say, of the place where his father had a domicile at the time of his son's birth; second by reason of his own acquired domicile. But the conditions which this domicile must satisfy are rather severe: the candidate must have already resided in the diocese for ten years or else have transported most of his movable goods to a house in which he has resided for three years; moreover, in both cases, he must affirm under oath his intention of definitively establishing himself in the diocese. This is a qualified domicile, the conditions of which must not be extended to other cases.

BENEDICT xiv, Ep. Paucis abhinc: Id. Instit. Can. 33, 88; SANCHEZ, De matrim., III; FAGNANUS, Comment. in Decretal. in cap. Significavit, III, tit. xxix; BASSIBEY, La clandestinité dans le mariage (Bordeaux, 1904); FOURNERET, Le domicile matrimonial (Paris, 1906); D'ANNIBALE, Summula Theologiæ moralis (Rome, 1908), I, n. 82-86; O'NEILL in Am. Eccles. Rev. (Philadelphia, April, 1908).

A. BOUDINHON