Udny v Udny (1869) LR 1 Sc & Div 441
A Summary of the Decision and its Implications
Nemo potest exuere patriam.
No man can cast off his native land.
The case in brief
Udny v Udny was decided by the House of Lords in 1869. The question before the court was whether a child born out of wedlock had been legitimated by his parents’ subsequent marriage in Scotland. The answer turned entirely on where his father – Colonel Udny – was domiciled at the relevant times. The judgments of Lord Westbury, Lord Chelmsford, and the Lord Chancellor set out, with unusual clarity and at some length, the principles governing domicile and its relationship to civil and political status. Those principles have not been overturned and remain part of the common law received in Australia.
The two distinct legal conditions ascribed at birth
Lord Westbury identified two entirely separate legal conditions that attach to every man at birth, and insisted that they must never be confused with one another.
The first is political status – the condition by which a man becomes the subject of a particular country, bound by the tie of natural allegiance. This is the relationship between a man and his sovereign, his nation, his native land. It attaches at birth. It cannot be shed at will. As the Lord Chancellor stated plainly: “A man may change his domicil as often as he pleases, but not his allegiance. Exuere patriam is beyond his power.”
The second is civil status – the condition by which a man is ascribed the character of a citizen of a particular country, with the municipal rights and obligations that follow from it. Civil status is governed entirely by the principle of domicile – the place a man has chosen as his settled home. It can change. It is entirely distinct from political status.
Lord Westbury was emphatic on the importance of keeping these two categories separate: “To suppose that for a change of domicil there must be a change of natural allegiance is to confound the political and civil status, and to destroy the distinction between patria and domicilium.”
Domicile of origin – involuntary, persistent, indelible in its own way
Domicile of origin is the domicile assigned to a man at birth by operation of law – the domicile of his father if legitimate, the domicile of his mother if not. Lord Westbury was precise on its character: it is “involuntary. It is the creation of law – not of the party.”
A man does not choose his domicile of origin. It attaches to him by law. And because it attaches by law rather than by choice, it cannot be entirely destroyed by the act of the man himself. Lord Westbury: “as the domicil of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished.”
The domicile of origin stands in reserve. It revives the moment a domicile of choice is abandoned, without any need for a special intention to revert to it. As Lord Chelmsford confirmed: “The abandonment of a subsequently-acquired domicil ipso facto restores the domicil of origin.” And the fundamental principle: “It is undoubted law that no one can be without a domicil.” A man is never in a legal vacuum. His domicile of origin always remains available to regulate his personal rights and relations when no other domicile is established.
Domicile of choice – voluntary, freely chosen, capable of abandonment
Domicile of choice is the creation of the man himself. Lord Westbury: “Domicil of choice is a conclusion or inference which the law derives 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.”
Two elements are required – the fact of residence and the intention to remain indefinitely. Both must be present. And both must be free. Lord Westbury was specific: “There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness.”
A domicile of choice acquired under compulsion or external pressure is not a true domicile of choice. The free will of the man is indispensable.
Domicile of choice can be abandoned. When it is abandoned – by clear intention and act – the domicile of origin revives immediately. It does not cling to the man until he has established another. A man who has genuinely and decisively left a domicile of choice has left it, and his domicile of origin stands in its place until a new choice is freely made.
What the case says about residence, citizenship, and electoral status
The case draws clear lines that bear directly on questions of residence, citizenship, and electoral participation.
Residence alone is not domicile. A man may reside in a country for decades without acquiring domicile there if the intention to remain permanently is absent. Colonel Udny resided in London for thirty-two years. The courts found that this long residence did not necessarily establish an English domicile – because what matters is not the fact of residence but the intention behind it. “The question is not whether there is evidence of an intention to retain the domicil of origin, but whether it is proved that there was an intention to acquire another domicil.”
Citizenship as civil status is distinct from political allegiance. The case is explicit that a man’s civil status – which governs his municipal rights and obligations, including the rights and obligations associated with being a citizen of a particular place – is entirely separate from his political status, which is his indelible allegiance to his native land. A man can hold political allegiance to one country while his civil status – governed by domicile – is regulated by the law of another. The two are not the same thing and must not be treated as the same thing.
Electoral registration is a civil act, not a political condition. The right to vote – to participate in the formal political processes of a state – is attached in modern legal systems to registration on an electoral roll. That registration is a civil act. It changes civil status in a specific and documented way. Under the principles established in Udny v Udny, a civil act of this kind requires the free and voluntary participation of the man or woman concerned. It cannot be assumed from residence. It cannot be imposed by the state’s assumption that a man who lives within its territory has thereby adopted all the civil classifications the state wishes to attach to him.
A man who has not registered as an elector has not thereby lost his political standing. The political status of a free man or woman – their standing as a free being with inherent rights, belonging to their native land by the tie of allegiance – is not dependent on electoral registration. Lord Westbury’s insistence that political status and civil status are entirely distinct categories means that the civil act of electoral registration is not the foundation of political standing. A man who does not register is not thereby without political standing. He has simply not adopted the civil classification that registration creates.
Representation requires voluntary delegation. The electoral system operates on the premise that a man or woman who registers and votes has delegated their political will to a representative. That delegation is a civil act. Under the principles of Udny v Udny, a civil act of this kind requires free and voluntary choice – “residence freely chosen, and not prescribed or dictated by any external necessity.” A man or woman who has not freely and voluntarily registered, or who has not freely and voluntarily cast a vote, has not delegated their political will. The representation that follows from electoral participation attaches only to those who have freely chosen to participate in it.
The principle that no man is without status
Lord Chelmsford’s principle – that no man can ever be without a domicil, that the domicile of origin always stands in reserve – carries an implication that extends beyond the technical law of domicile.
A man or woman who has not entered any civil register – electoral, biometric, or otherwise – is not thereby in a legal vacuum. They stand in their existing condition, with all the rights that attend it. The common law does not require a man to have acquired any particular civil classification to be entitled to its protection. A man’s rights at common law are not contingent on his registration. They are prior to it.
This is the position Lord Chelmsford expressed in relation to domicile: the domicile of origin stands in reserve, always available, always operative, never extinguished. By analogy – and it is honestly stated as analogy – the common law standing of a free man or woman stands in reserve in the same way. No civil register, no administrative system, and no assumption of an operator displaces it. It remains until the man or woman themselves freely and voluntarily choose to adopt a different civil condition.
Summary of principles established
The following propositions are established by Udny v Udny and can be stated with confidence:
Political status – allegiance and nationality – attaches at birth, cannot be shed at will, and is entirely distinct from civil status.
Civil status – governed by domicile – is entirely separate from political status. A man’s civil and political conditions can be quite different.
Domicile of origin is involuntary – the creation of law, not of the party – and cannot be extinguished by the act of the man. It revives automatically when a domicile of choice is abandoned.
Domicile of choice requires free and voluntary choice and an intention to remain indefinitely. It cannot arise from external compulsion or assumption.
Residence alone, however long, does not establish domicile of choice if the intention to remain permanently is absent.
No man is ever without a domicil. His original condition always stands in reserve, regulating his personal rights when no other domicile is established.
The following propositions are supported by honest analogy from the case and stated as such:
A civil act of any kind – registration, delegation of political will, adoption of any civil classification – requires the free and voluntary participation of the man or woman concerned. It cannot be assumed from presence or from silence.
A man or woman who has not freely and voluntarily adopted a civil classification – electoral registration, biometric data profile, or any other – stands in their existing condition, with all rights intact, in the same way that a man without a domicile of choice stands in his domicile of origin.
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