117 / 536
103
CYIL 7 ȍ2016Ȏ
THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE
The freedom of the city was given him in accordance with the provisions of the law
of Silvanus and Carbo: “If any men had been enrolled as citizens of the confederate
cities, and if, at the time that the law was passed, they had a domicile in Italy, and
if within sixty days they had made a return or themselves to the praetor.
4
A citizen’s enrollment was subject to personal and objective conditions. Based
on the law, domicile in Italy was a
conditio sine qua non
. The right of citizenship
was a category of belonging to an urban community other than one’s domicile.
Domicilium,
like
origo
established a connection with particular urban community.
5
Domicile as an independent form of affiliation with an urban community
constituted distinct legal grounds and thus established its forms. Children born
out of marriage shared the domicile of the father. The regular place of abode was
assigned to be the domicile of nativity (
domicilium originis
).
6
In the event of a trip
or travel (
in itinere
) the new-born child received a domicile based on their place of
abode. Adversely, an illegitimate child followed the domicile of his or her mother.
Due to the legal incapacity of children, they retained the domicile of one of their
parents.
7
In changing domicile, children followed their parents. In the case of the
death of the father,
pater familias
, his last domicile extended to his child. The legal
principle implying that an individual who is subject to power and authority does
not possess the right to choose domicile was applied generally on the parent-child
relations. The right to choose one’s domicile was inherent to every person of full age.
The Social War induced legal disruption in the development of means of affiliation
of person and city. Before the Social War the Roman citizen could not hold the
citizenship of another community. Roman citizenship was exclusive. By obtaining
another citizenship, such as of an ally of Rome, a person lost
ei ipso
Roman citizenship.
8
After the Social War and the grant of Roman citizenship to all Italians, the Italians had
two
patriae,
as Cicero said: one of law, Rome (which gave them the status of citizens),
and one of nature, the local city through which they exercised their Roman citizenship
and which defined both their
origo
(their origin) and their status
municeps
9
within the
Roman system.
10
4
CICERO Marcus Tullius.
The Orations of Marcus Tullius Cicero.
London: Henry G. Bohn, 1856, § 7.
5
SAVIGNY, Friedrich Carl.
A Treatise on the Conflict of |Laws, and the Limits of their Operation in Respect
of Place and Time
. Edinburgh: T. & T. Clark, Law Publishers, 1869, p. 54.
6
STORY, Joseph.
Commentaries on the Conflict of Laws, Foreign and Domestic in regard to Contracts,
Rights, and Remedies, and Especially in regard to Marriages, Divorces, Wills, Successions, and Judgments
.
Boston: Hilliard, Gray, and Company, 1834, p. 43.
7
SMITH, William.
A Dictionary of Greek and Roman Antiquites
(
Infants
). London: John Murray, 1875,
pp. 636-637.
8
KRÁL, Josef.
Státní zřízení římské. Pro akademická čtení.
Praha: Jednota českých filologů, 1921, p. 15.
9
SAVIGNY, Friedrich Carl, op. cit., p. 52: “
Municeps
, therefore, became the general term for every
possessor of any municipal citizenship out of Rome, and therefore for all those persons whose common
connection with any urban city is very commonly expressed by
origo
or
patria
.”
10
MOATTI, Claudia. Mobility and Identity between the Second and Fourth Centuries: The