An American Perspective: Domicile/Residence

§4. Domicile/Residence

After the Unanimous Declaration of Independence, and before the adoption of the Constitution for the United States of America, the colonists of each state became Citizens of the State of which they resided, so long as they were engaged in a political relationship with their communities and State. There were only State Citizens; such citizens being separate political members of the several States united, operating within a confederacy between each other. After the ratification and adoption of the Constitution for the United States of America, there existed Citizens of the several States of the union and U.S. citizens, who were partaking in the offices of the newly formed national government. The People of the United States own the government and instituted the constitution for the United States of America to secure their rights. Citizenship, therefore, is a conduit of which the People can interact within their municipal, county, state and national governments to engage in the exercise of the allotted powers granted to the governmental structures in order to better secure their rights, and the governments cannot restrict the People’s relationship with them by taking away their citizenship.

Not everyone is entitled to engage in the activities of a political office, and the restrictions of eligibility were set in place for the United States of America and the various States through their Constitutions. The topic is addressed in the federal constitution for two branches of the government; in the legislative branch we find, Article 1, Section 2, clause 2 for the House of Representatives and Article 1, Section 3, clause 3 for the House of Senate; and, Article II, Section 1, clause 5 for the Executive branch.

A person’s domicile and residency collectively, along with their political community affairs determines that being’s citizenship and nationality status. Residency means you have a presence with a purpose. When you complete that purpose, you will return to your domicile. An example is a doctor's residency in a hospital. The doctor is there to complete his purpose, and when he is finished he leaves.

A domicile needs no purpose. It is not necessary to justify your presence at your domicile. It is your permanent home. For jurisdictional purposes, your claim of residency of a state is used to subject you to regulation under the interstate commerce clause of the U.S. Constitution (Article I, Section 8, Clause 3).

Residence - The place of one's domicil. (q. v.) There is a difference between a man's residence and his domicil. He may have his domicil in Philadelphia, and still he may have a residence in New York; for although a man can have but one domicil, he may have several residences. A residence is generally tran-sient in its nature, it becomes a domicil when it is taken up animo manendi.262

1. Residence is prima facie evidence of national character, but this may at all times be explained. When it is for a special purpose and transient in its nature, it does not destroy the national character.
2. In some cases the law requires that the residence of an officer shall be in the district in which he is required to exercise his functions. Fixing his residence elsewhere without an intention of returning would violate such law. Vide the cases cited under the article Domicil; Place of residence.263

Resident - International law. A minister, according to diplomatic language, of a third order, less in dignity than an ambassador, or an envoy. This term formerly related only to the continuance of the minister's stay, but now it is confined to ministers of this class.

1. The resident does not represent the prince's person in his dignity, but only his affairs. His representation is in reality of the same nature as that of the envoy; hence he is often termed, as well as the envoy, a minister of the second order, thus distinguishing only two classes of public ministers, the former consisting of ambassadors who are invested with the representative character in preeminence, the latter comprising all other ministers, who do not possess that exalted character. This is the most necessary distinction, and indeed the only essential one264.265

Resident - persons. A person coming into a place with intention to establish his domicil or permanent residence, and who in consequence actually remains there. Time is not so essential as the intent, executed by making or beginning an actual establishment, though it be abandoned in a longer, or shorter period266.267

As "domicile" and "residence" are usually in the same place, they are frequently used as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city and country, but only one domicile. Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. Residence simply required bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile268.269

"Residence" is not synonymous with "domicile," though the two terms are closely related; a person may have only one legal domicile at one time, but he may have more than one residence270.271

In certain contexts the courts consider "residence" and "domicile" to be synonymous272; while in others the two terms are distinguished273.274

Domicil - The place where a person has fixed his ordinary dwelling, without a present intention of removal.275 The law of domicil is of great importance in those countries where the maxim "actor sequitur forum rei" is applied to the full extent.276

1. A man cannot be without a domicil, for he is not supposed to have abandoned his last domicil until he has acquired a new one.277 Though by the Roman law a man might abandon his domicil, and, until be acquired a. new one, he was without a domicil. By fixing his residence at two different places a man may have two domicils at one and the same time; as, for example, if a foreigner, coming to this country, should establish two houses, one in New York and the, other in New Orleans, and pass one-half of the year in each; he would, for most purposes, have two domicils. But it is to be observed that circumstances which might be held sufficient to establish a commercial domicil in time of war, and a matrimonial, or forensic or political domicil in time of peace, might not be such as would establish a principal or testamentary domicil, for there is a wide difference in applying the law of domicil to contracts and to wills.278
2. There are three kinds of domicils, namely: 1. The domicil of origin. domicilium originis vel naturale. 2. The domicil by operation of law, or necessary domicil. 3. Domicil of choice.279

[262 Roberts; Ecc. R. 75.
263 Bouvier’s Law Dictionary, 6th Edition (1856)
264 Vattel liv. 4, c. 6, 73
265 Bouvier’s Law Dictionary, 6th Edition (1856)
266 See 6 Hall's Law Journ. 68; 3 Hagg. Eccl. R. 373; 20 John. 211 2 Pet. Ad. R. 450; 2 Scamm. R. 377.
267 Bouvier’s Law Dictionary, 6th Edition (1856)
268 Fuller v. Hofferbert, C./A.Ohio, 204 F.2d 592, 597. [see also In re Riley's Will, 266 N.Y.S. 209, 148 Misc. 588.]
269 Blacks Law Dictionary 4th Edition, Page 1176
270 Fielding v. Casualty Reciprocal Exchange, L.App., 331 So.2d 186, 188
271 Blacks Law Dictionary 4th Edition, Page 1176
272 e.g. divorce action, Cooper v. Cooper, 269 Cal.App.2d 6, 74 Cal. Rptr. 439, 441
273 e.g. venue, Fromkin v. Loehmann's Hewlett, Inc., 16 Misc.2d 117, 184 N.Y.S.2d 63, 65
274 Blacks Law Dictionary 4th Edition, Page 1176
275 10 Mass. 488; 8 Cranch, 278; Ersk. Pr. of Law of Scotl. B. 1, tit. 2, s. 9; Denisart, tit. Domicile, 1, 7,18, 19; Voet, Pandect, lib. 5, tit. 1, 92, 97; 5 Madd. Ch. R. 379; Merl. Rep. tit. Domicile;1 Binn. 349, n.; 4 Humph. 346
276 Code Civil, art. 102, &c.; 1 Toullier, 318
277 5 Ves. 587; 3 Robins. 191; 1 Binn. 349, n.; 10 Pick. 77
278 Phill. on Dom. xx; 11 Pick. 410 10 Mass. 488; 4 Wash. C. C. R. 514 279 Bouvier’s Law Dictionary (1856) ]