enemy, by whom he doubtless understands, as the learned Gronovius has already explained, those who are domiciled in the country. Our author explains his own meaning in the second chapter of this book, in speaking of reprisals, which he allows against this species of foreigners, whilst he does not grant them against those who only pass through the country, or are temporarily resident in it." (a)

Whatever may be the extent of the claims of a man's native country upon his political allegiance, there can be no doubt that the natural-born subject of one country may become the citizen of another, in time of peace, for the purposes of trade, and may become entitled to all the commercial privileges attached to his required domicil. On the other hand, if war breaks out between his adopted country and his native country, or any other, his property becomes liable to reprisals in the same manner as the effects of those who owe a permanent allegiance to the enemy State.

constituting

The case

of St. Eus

§ 320. As to what species of residence constitutes such Species a domicil as will render the party liable to reprisals, the of residence text writers are deficient in definitions and details. domicil. Their defects are supplied by the precedents furnished by the British prize courts, which, if they have not applied the principle with undue severity in the case of neutrals, have certainly not mitigated it in its application to that of British subjects resident in the enemy's country on the commencement of hostilities. § 321. In the judgment of the Lords of Appeal in Prize Causes, upon the cases arising out of the capture tatius. of St. Eustatius by Admiral Rodney, delivered in 1785, by Lord Camden, he stated that "if a man went into a foreign country upon a visit, to travel for health, to settle a particular business, or the like, he thought it would be hard to seize upon his goods; but a residence, not attended with these circumstances, ought to be considered as a permanent residence." In applying the evidence and the law to the resident foreigners in St. Eustatius, he said, that "in every point of view, they ought to be considered resident subjects. Their persons, their lives, their industry, were employed for the benefit of the State under whose protection they lived; and, if war broke out, they, continuing to reside there, paid their pro

(a) Grotius, par Barbeyrac, in loc.

portion of taxes, imposts, and the like, equally with natural-born subjects, and no doubt come within that description." (a)

The case

mony.

§ 322. "Time," says Sir W. Scott, "is the grand inof The Har- gredient in constituting domicil. In most cases, it is unavoidably conclusive. It is not unfrequently said, that if a person comes only for a special purpose, that shall not fix a domicil. This is not to be taken in an unqualified latitude, and without some respect to the time which such a purpose may or shall occupy; for if the purpose be of such a nature as may probably, or does actually, detain the person for a great length of time, a general residence might grow upon the special purpose. A special purpose may lead a man to a country, where it shall detain him the whole of his life. Against such a long residence, the plea of an original special purpose could not be averred; it must be inferred in such a case, that other purposes forced themselves upon him, and mixed themselves with the original design, and impressed upon him the character of the country where he resided. Supposing a man comes into a belligerent country at or before the beginning of the war, it is certainly reasonable not to bind him too soon to an acquired character, and to allow him a fair time to disentangle himself; but if he continues to reside during a good part of the war, contributing by the payment of taxes and other means to the strength of that country, he could not plead his special purpose with any effect against the rights of hostility. If he could, there would be no sufficient guard against the frauds and abuses of masked, pretended, original, and sole purposes of a long-continued residence. There is a time which will estop such a plea; no rule can fix the time à priori, but such a rule there must be. In proof of the efficacy of mere time, it is not impertinent to remark that the same quantity of business which would not fix a domicil in a certain quantity of time, would nevertheless have that effect if distributed over a larger space of time. This matter is to be taken in the compound ratio of the time and the occupation, with a great preponderance on the article of time: be the occupation what it may, it cannot happen, with but few exceptions, that mere length of time shall not constitute a domicil." (a)

(a) MS. Proceedings of the Commissioners under the treaty of 1794, between Great Britain and the United States. Opinion of Mr. W. Pinkney, in the case of The Betsey.

(a) The Harmony, Robinson's Adm. Rep. ii. 324.

H

The case

§ 323. In the case of The Indian Chief, determined in of The In1800, Mr. Johnson, a citizen of the United States, domi- dian Chief. ciled in England, had engaged in a mercantile enterprise to the British East Indies, a trade prohibited to British subjects, but allowed to American citizens under the commercial treaty of 1794, between the United States and Great Britain. The vessel came into a British port on its return voyage, and was seized as engaged in illicit trade. Mr. Johnson, having then left England, was determined not to be a British subject at the time of capture, and restitution was decreed. In delivering his judgment in this case, Sir W. Scott said, "Taking it to be clear that the national character of Mr. Johnson, as a British merchant, was founded in residence only, that it was acquired by residence, and rested on that circumstance alone, it must be held, that, from the moment he turned his back on the country where he had resided, on his way to his own country, he was in the act of resuming his original character, and must be considered as an American. The character that is gained by residence, ceases by non-residence. It is an adventitious character, and no longer adheres to him from the moment that he puts himself in motion, bona fide, to quit the country, sine animo revertendi." (a)

easily re

§ 324. The native character easily reverts, and it re- The native quires fewer circumstances to constitute domicil, in the character case of a native subject, than to impress the national verts. character on one who is originally of another country. Thus, the property of a Frenchman who had been residing, and was probably naturalized, in the United States, but who had returned to St. Domingo, and shipped from thence the produce of that island to France, was condemned in the High Court of Admiralty. (a)

In The Indian Chief, the case of Mr. Dutilth is referred to by the claimant's counsel, as having obtained restitution, though at the time of sailing he was resident in the enemy's country; but the decision of the Lords of Appeal, in 1800, is mentioned by Sir C. Robinson, in which different portions of Mr. Dutilth's property were condemned or restored, according to the circumstances of his residence at the time of capture. That decision is more particu

(a) The Indian Chief, Robinson's Adm. Rep. iii. 12.

(a) La Virginie, Robinson's Adm. Rep. v. 99. The same rule is also adopted in the prize law of France, Code des Prises, tom. i. pp. 92, 139, 303, and by the American prize courts, The Dos Hermanos, Wheaton's Rep. ii. 76.

larly stated by Sir J. Nicholl, at the hearing of the case of The Harmony before the Lords, July 7, 1803. "The case of Mr. Dutilth also illustrates the present. He came to Europe about the end of July, 1793, at the time when there was a great deal of alarm on account of the state of commerce. He went to Holland, then not only in a state of amity, but of alliance with this country; he continued there until the French entered. During the whole time he was there, he was without any establishment; he had no counting-house; he had no contracts nor dealings with contractors there; be employed merchants there to sell his property, paying them a commission. Upon the French entering into Holland, he applied for advice to know what was left for him to do under the circumstances, having remained there on account of the doubtful state of mercantile credit, which not only affected Dutch and American, but English houses, who were all looking after the state of credit in that country. In 1794, when the French came there, Mr. Dutilth applied to Mr. Adams, the American Minister, who advised him to stay until he could get a passport. He continued there until the latter end of that year, and, having wound up his concerns, came away. Some part of his property was captured before he came there. That part which was taken before he came there was restored to him, (The Fair American, Adm., 1796,) but that part which was taken while he was there was condemned, and tase because he was in Holland at the time of the capture.” The Hannibal and Pomona, Lords, 1800. (b)

The case

of the Dr

$$25. The case of The Diana, determined by Sir W. Scott, in 1803, is also full of instruction on this subject. During the war which commenced in 1795 between Great Britain and Holland, the colony of Demerara surrendered to the British arms, and by the treaty of Amiens it was restored to the Dutch. That treaty contained an article allowing the inhabitants, of whatever country they might be, a term of three years, to be computed from the notification of the treaty, for the purpose of disposing of their effects acquired before or during the war, in which term they might have the free enjoyment of their property. Previous to the declaration of war against Holland, in 1803, The Diana and several other vessels, laden with colonial produce, were captured on a voyage from Demerara to Holland. Immediately after the decla

(b) Wheaton's Rep. ii. Appendix, 27, 28, 29.

ration, and before the expiration of the three years from the notification of the treaty of Amiens, Demerara again surrendered to Great Britain. Claims to the captured property were filed by original British subjects, inhabitants of Demerara, some of whom had settled in the colony while it was in possession of Great Britain; others before that event. The cause came on for hearing after it had again become a British colony.

Sir W. Scott decreed restitution to those British subjects who had settled in the colony while in British possession, but condemned the property of those who had settled there before that time. He held that those of the first class, by settling in Demerara while belonging to Great Britain, afforded a presumption of their intending to return, if the island should be transferred to a foreign power, which presumption, recognized by the treaty, relieved those claimants from the necessity of proving such intention. He thought it reasonable that they should be admitted to their jus postliminii, and he held them entitled to the protection of British subjects. But he was clearly of opinion that "mere recency of establishment would not avail, if the intention of making a permanent residence there was fixed upon the party. The case of Mr. Whitehill fully established this point. He had arrived at St. Eustatius only a day or two before Admiral Rodney and the British forces made their appearance; but it was proved that he had gone to establish himself there, and his property was condemned. Here recency, therefore, would not be sufficient."

But the property of those claimants who had settled in Demerara before that colony came into the possession of Great Britain, was condemned. "Having settled without any faith in British possession, it cannot be supposed," he said, "that they would have relinquished their residence because that possession had ceased. They had passed from one sovereignty with indifference; and if they may be supposed to have looked again to a connection with this country, they must have viewed it as a circumstance that was in no degree likely to affect their intention of remaining there. On the situation of persons settled there previous to the time of British possession, I feel myself obliged to pronounce, that they must be considered in the same light as persons resident in Amsterdam. It must be understood, however, that if there were among these any who were actually removing, and that fact is properly ascertained, their goods may be capable of restitution.