events gave every opportunity for a quick and outright conquest, the territory was only taken after a fair conventional agreement with Spain. It is particularly ridiculous to hear Mr. Marriott declare that "the purchase of the Alaskan territory in 1867 from Russia was a more obvious demonstration of an imperialistic temper." Besides being a rather happy and, in the public mind at the time, unforeseen and dubious accident, it was sold by Russia at such a price as to indicate that the United States was picking up something without very serious effort on her part. The Congress very nearly refused outright to appropriate the money for the purchase at all. There was no general national imperialism whatever in evidence. Finally, various islands have been acquired by discovery and occupation. In none of these cases are there any substantial qualifications to be made. This is the normal mode of acquisition for the United States.

The events of 1846 and 1898 are exceptions or partial exceptions here as above. New Mexico and California were taken primarily by conquest. The abnormal cause for that action is notorious, and has already been mentioned. It remains to be noted that steps were already on foot in 1846 to purchase these territories from Mexico, according to the usual practice of the United States. From the standpoint of the true American policy, one can but regret that the South did not give time for the normal methods to be followed. An American does, however, regret it, and not boast of it.

As for Cuba, Porto Rico, and the Philippines, the case is slightly different again. Cuba, of course, was not annexed by the United States, but simply freed from Spain. The Philippines were taken by a combined process of conquest and purchase. Porto Rico and Guam were taken by conquest, apparently. So much for the initial steps. In regard to all of these, however, the most significant facts are those connected with the method of treatment accorded to the annexed territories. To that we shall return in a moment.

The next thing to be noted is that the great bulk of the territorial acquisitions of the United States have been made from contiguous territory. The frontier of settlement has grown outward by a natural process. In some cases, defense of the existing frontier was a motive; in some cases boundary disputes-real, and not artificially stimulated-led to territorial acquisitions. Florida, the trans-Appalachian regions, Louisiana, Oregon, California, and even the Southwest were reached in this manner, not by overseas adventures or incursions into the settled or occupied territories of other nations.

In other words, the American people moved slowly and peaceably into what were nearly empty territories. The lands settled were not already occupied by a population with a developed culture and life of their own. No great numbers of an alien people were subjected to a conqueror's government. The Indians cannot be so described. They were not entitled, by any sort of social ethic which can be seriously considered, to be respected in their

occupation of the land as if they had been a civilized people. They could not be cited here in such a manner. By and large, the Americans have simply flowed into empty territory; they have not conquered and annexed existing states or portions thereof.

The same exceptions are to be noted here as in the discussion of the manner of acquisition. The Philippines and Porto Rico and the Pacific islands, and even Alaska, lie away from the mainland of the United States. And while Alaska and the Pacific islands were largely empty or inhabited only by uncivilized natives, Porto Rico and the Philippines were settled countries and so was the Hawaiian group. In this case the Southwest stands better than they, for it was both contiguous and sparsely occupied, and held in the vague Mexican Empire rather lightly and artificially.

But the decisive fact, after the method of acquisition itself, is the method by which the acquired territories have been treated. In this the Philippines and Porto Rico and the Hawaiian group fare well. The characteristic American practice has been to incorporate acquired territories in the Union on a basis of equality with the original member States, and not to hold them in subjection as colonial possessions. This process was applied to all the acquisitions down to 1898. Even Alaska, remote and unsettled, is on the recognized historic route to statehood.

In the cases of the acquisitions of 1898 that practice has also been followed. Hawaii and Porto Rico have been given "territorial" governments, which have always been the prelude to statehood, and they may conceivably achieve statehood in the not distant future. The Philippines have been given "territorial" government and might conceivably follow the same path. What is more likely to happen, however, and the distinction has its own significance, is that the Philippines will go one way-to independence, while Porto Rico and Hawaii, perhaps, go the other-to statehood. We have promised the Philippines their independence, acting apparently on the assumption that they could not become part of the Union. They may be retained in a protectorate; they may come to stand with Cuba, as another relinquished conquest. In either case, the protectorate would gain its significance not so much in distinction from a theoretical or potential stage of complete independence as from the immediately preceding stage of conquest and dominion.

From all of these facts, the conclusion is unescapable. They are not vague and indefinite ideas; they are historic facts. They are irrefragible obstacles to any attempt to portray American territorial expansion as a process of imperialism.

From one point of view the task of refuting such an attempt may appear to be too easy to have deserved to take up so much time and energy. And in a sense that is true. No person who is familiar with American political life can take such a contention seriously. The people of the United States have not the imperialistic temper. Except when on a sort of spirit

ual spree as in 1846 and 1898, they are frankly embarrassed at such a grandiose rôle in international politics. Have they not always played, or pretended to play, a minor rôle in that tragi-comedy, even a silent rôle ? They have thrilled at the idea of "conquering" and "subduing" a continent in the sense of exploring, settling and cultivating the earth; in that sort of imperialism against nature they have gloried. The extension of the empire of man over brute nature-that is American imperialism. As for the hard and greedy international imperialism of military conquest, for that they have neither the requisite stage presence in international relations, nor the necessary viciousness.

ENEMY GOODS AND HOUSE OF TRADE

BY THOMAS BATY, LL.D., D.C.L.

I. GENERAL

It is proposed to examine shortly, in the following pages, the precise extent to which a neutral's commerce with a belligerent country is liable to interruption by the cruisers of the opposite belligerent, apart from the traditional doctrines of blockade and contraband, and from the practice of reprisals. We shall also eliminate the operation of the dogma of continuous voyage. Needless to say, that dogma is one which introduces utter uncertainty into the realm of prize law, and makes it easy for belligerents to behave towards neutral commerce in a quite arbitrary fashion. When combined with a swollen list of contraband, its application amounts to a complete control of commerce by belligerents; and might best be met by a friendly war being commenced between neutrals, who might thus, perhaps, regain the freedom of which they otherwise stand deprived. But taking the dogma as it stands, we cannot but realize that its true design and justification is to restore to belligerents their old liberty of seizing enemy property withdrawn from them in 1856 by the Declaration of Paris. That, and not the pernicious influence of railways, is its true raison d'être. When Chief Justice Chase, by his casting vote in the United States Supreme Court, laureled the doctrine during the American Civil War, it was with no idea of countering the influence of railways in his mind. Railways were not important in that connection. No railway, at that time, traversed the waters of the Gulf of Mexico. Nassau was on an island. Any influence that railways may have exercised, in making a belligerent territory more accessible from neutral ports, is more than offset by the enormous power of controlling commerce exercised by the modern fast cruiser-a power incomparably greater than that of the old frigate over the old merchantman.1

Accordingly, if the continuous voyage dogma be duly anathematized in the interest of a modicum of decent security for neutrals, it will scarcely be possible to avoid the substitution, in some form or another, of liberty to intercept the enemy's goods laden on neutral ships. The neutral in that case will preserve his ship, will even get his freight, and no harm will be done to anybody except the enemy,-a much more satisfactory state of affairs than the present, when by a forced and unnatural series of

1 See, for succinct statistics, the writer's Prize Law and Continuous Voyage (London), 1916.

fictions, innocent cargoes are treated as contraband, and are held to involve forfeiture of ship and freight,—a virtual return to the brutal old doctrine of la robe ennemie confisque le vaisseau ami. In that event, the question of whether particular goods are really intended for, or are coming from, a particular enemy must always be important. The question we shall examine, therefore, is the position of the importer and exporter in the enemy country. When is he an enemy?

2

Putting aside the test of political nationality as of doubtful admissibility, it may, I think, be taken as demonstrated that the test of domicile intends merely the domicile of ordinary private law. The same considerations as are decisive in private law cases were adverted to by Scott as decisive in the leading cases of The Harmony and The Indian Chief. Prize decisions and divorce and testamentary decisions are quoted indiscriminately in prize and municipal cases. Prize domicile is simply civil law domicile. It is adopted as a test, because a person's settled residence is where he normally spends, and may be expected to spend, his money. As Scott explained in The Harmony (2 C. Rob. 325), it is there that his net resources may be drawn on for the prosecution of the war.

His "house of trade," on the other hand, is where he makes his money. To attack it is, in part, analogous to taxation of income at the source. It is really a mode of attacking the numerous small incomes of the small people whom he employs. Their domiciles are where they work; and their employer's "house of trade" embraces them all. Also it attacks the advantage which accrues to the population through the operations of the house of trade, which enables them to exchange their superfluities for more needed commodities.

The idea that "prize domicile" is something different from "civil law domicile," and means "trading residence" is, as I have elsewhere shown, perfectly irreconcilable with the cases and, moreover, attributes a singular imbecility to the courts. Since every trading residence of a kind calculated to attract the imputation of enemy character involves the setting up of a house of trade, the introduction of the test of domicile, if domicile means trading residence, would be entirely superfluous. "House of trade" would be a sufficient conception to include all cases.

For the demonstration of the principle that domicile is not, in the eye of prize law, a kind of watery "house of trade" in which personal residence supplies the want of substantial business apparatus, the reader is referred to the (Edinburgh) Juridical Review (October, 1909, page 209), and to the Journal of the Society of Comparative Legislation, IX, 157; X, 183 (a discussion between Professor Westlake and the present writer).

2 In Anglo-American law, that is. In most other systems, it is the decisive test. There seems no decisive case or authority against its being recognized in Anglo-American law as an additional criterion of enemy character, though the better opinion is to the contrary. See War and Its Legal Results (Baty and Morgan), pp. 306, 310.