criterion is attempted to be shifted from residence to trading, at any rate by counsel; while Chief Justice Marshall's inexplicable invention of a "commercial domicile" lends color to the same idea. Did Marshall, by "commercial domicile" mean simply the conception of house of trade, independent of residence, or did he have in view residence coupled with commercial activity in the same place? It strikes the investigator that what was really in his mind was an attempt to preserve the single term "domicile" as the criterion of enemy character, whilst including in it (1) true domicile and (2) commercial domicile (i.e., house of trade), in which latter case it is the business which (so to speak) is "domiciled" in the hostile territory. Thus, Story J., in the San José Indiano alludes to a "house" as being "purely British in its domicile" (if I may use that expression). And Gaston, in argument, in The Antoine Johanna talks of a house having a "domicile." And again, "There must be an animus manendi to constitute domicile," says the same Dexter in the San José Indiano (1814, 2 Gall. 279).26

THE VENUS (March 12, 1814, 8 Cranch 253). This case by no means supports the proposition for which Halleck cites it, that a person domiciled (as distinguished from resident) in the enemy's country, cannot safely withdraw with his goods on the outbreak of war. All that it decides is that, as long as such persons remain in fact, their property is affected by their actual locality. This is seemingly inconsistent with the leniency shown in The Ocean, as will be apparent when we state the facts; but probably it can be reconciled by remembering that the party in The Ocean was forcibly detained by the enemy.

Maitland, McGregor & Jones, naturalized Americans, went back to Great Britain and established a "house of trade" there (see per Pitman, arguendo, p. 255). But the case does not seem to have concerned the property of that house. Before the outbreak of the War of 1812, they, individually, domiciled in Liverpool, shipped goods to England, asserted to be their joint property in varying shares. The ship was claimed by Maitland and one Lenox, together with considerable cargo. Much of the cargo was claimed by Maitland, Lenox and McGregor, a little for McGregor alone, and a quantity for McGregor & Jones. The goods can hardly therefore be said to be very obviously connected with the house of trade, in which Maitland, McGregor & Jones alone were partners. The case seems to rest on their individual domiciles. Unfortunately the court does not distinguish clearly between domicile and trading. Carried away by the fact that a merchant generally trades where he lives, they occasionally use language which confuses the two conceptions, and gives color to the notion that trade is an essential constituent of prize domicile; thus blurring the two criteria of house of trade and domicile.

26 See also Twiss, Law of Nations, II, 306; Pitt Cobbett, Leading Cases in International Law, I, 209.

Washington, J., in his leading opinion, gives countenance to the Westlake-Lindley theory that domicile for prize purposes means something short of civil domicile. He adopts Vattel's definition, "a habitation fixed in any place, with an intention of always staying there." He does, however, undoubtedly limit the effect of domicile, by apparently cutting down the liability to confiscation to goods both connected with the place of residence (domicile) and concerned in the trade of the enemy. This is really to adopt as the test of confiscability domicile plus a house of trade. As such it is quite irreconcilable with British theory, which condemns all the goods of a person domiciled in the enemy country, wherever trading (the Franklin), and those of a person carrying on a house of trade there, wherever domiciled (the Jonge Klassina). Washington seems to repudiate the Franklin doctrine, treating domicile, as he does, as the sole test; but he does not appear to have noticed that he was adding to that sole test an additional requirement, viz., that the trade should be carried on in the country of the domicile. He assumes, very naturally but quite gratuitously, that the person is carrying on trade where he is residing permanently. Actual removal, or "bona fide beginning to remove," on the outbreak of war, he expressly says, will change the national character. So that he explicitly allows, instead of contradicting (as Halleck would have it), the position that the person with an enemy domicile may safely quit 27 on the outbreak of war. But if the party remains in fact, he must expect unfavorable inferences. And if he waits until his property is captured before taking any decisive steps, he cannot snatch it out of the hand of the captor by subsequent determinations. "The character of the property, during war cannot be changed in transitu, by any act of the party, subsequent to the capture." And this, whether the doctrine of The Danckebaar Africaan (1 C. Rob. 107) be accepted or not, that it cannot be changed at all.

Story agreed with Washington, though in no detail; and Marshall (I believe, rightly) thought that the claim based on mere intention to return to the country of one's political allegiance ought to prevail. Grotius had placed the identification of a person with the belligerent on his permanent residence.28 Vattel had done the same. Marshall accepts this test, as laid down by Vattel, and we cannot doubt that he meant to accept it ex animo; but in his preliminary skirmishing, he does speak of "a merchant residing abroad for commercial purposes," and "intending to continue in the foreign country. . . providing his commercial objects shall detain him [until a hypothetical event]." Clearly such a residence, meant to come to an end with the completion of particular business, falls short of domicile. But Marshall is not defining the test of enemy character. He is

27 Unless, perhaps, of enemy political allegiance.

28 P. 282. "All the subjects of the enemy who are such from a permanent cause are liable to the law of reprisals. . . Not so, if they are only trading or sojourning for a little time."

merely instancing a common case as introductory matter. When he gets to definitions, he is quite clear. "A domicil then, in a sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but 'an intention of always staying there.' Actual residence without this intention amounts to no more than 'simple habitation.'' And he proceeds in the strongest terms to deny that mere residence confers the national character. "The intention which gives a domicil is an unconditional intention 'to stay always.'

What his judgment really amounts to is, not (as Westlake would have it) that one can easily acquire a so-called "commercial domicile" which will give one an enemy character, but that a foreign merchant's residence, contingent, as it must be presumed to be, on the continuance of peace between the two nations, can never amount to domicile at all, unless conclusively proved by his staying in spite of war. This doctrine must surely be erroneous,29 but whether right or wrong, it obviously affords no support to the notion that prize-law domicile is different from civil-law domicile, and is more easily established. Marshall admits that "less conclusive evidence than would seem to be required in general cases, by the law of nations, has been allowed to fix the domicil for commercial purposes." This may have been the case. But he declared that the nature of domicile for prize purposes remained unaltered; it still meant essentially permanent residence, and it does not appear that any of the other judges disagreed with this, or with its applicability as the test of enemy character. What he objected to was the presumption (p. 296) that a merchant of one country settled in another is intending to remain there always. That such a presumption exists is clear (The Bernon), that it is reasonable is fairly plain, and it can be rebutted. To stigmatize a domicile based upon it as a "commercial domicile," created by the mere fact of residence coupled with trading, is a potent fallacy. Marshall uses the term "commercial domicile" to mean a true domicile presumed (and perhaps often unjustifiably presumed) from the facts of residence and trading.30 Those who rashly cite him in support of the assertion that national character depends on trading residence, use it to mean a new-fangled "domicile" created by trading residence.

We may note that Dexter, in argument, squarely stated that residence plus trading constitutes domicile. This is entirely without support from any decision, nor is any cited. Of course, trade is enough of itself to condemn one's goods without residence.

It is of some importance to note the careers of the parties. McGregor came to America a minor; and, after embarking in business, naturalization,

29 The specific event of war is not necessarily contemplated by merchants when taking up their residence in a foreign country.

war.

30 His whole argument is that such a presumption is inapplicable in the event of

marriage and purchase of real estate (residing for twelve years in New York), he went back to Great Britain and in 1805 began business in Liverpool. Says Stockton, arguendo (p. 261), "His employment was that of an American merchant shipping goods from England, and receiving American produce there to sell on commission;" and he rightly observes that McGregor's own goods could not be affected by his having English partners. He thus makes the ingenious attempt to represent him in his several capacities, as an American locally in England, but carrying on an essentially American trade. I am not quite sure that the plea would not have succeeded before Stowell. It was not until he sent butter to a strange country, Portugal, that Stowell viewed Grant's proceedings in a serious light in The Dree Gebroeders. As above stated, McGregor returned to America ten months after the capture (p. 270), and his delay clearly justified the court in condemning his goods.

Lenox and Maitland had their house of trade (J. Lenox & W. Maitland) in New York, where both were naturalized and held real estate. Lenox remained in New York, but Maitland went to England in July, 1810. In 1811 he took a counting-house at Liverpool and carried on business as "W. Maitland & Co." for himself and his partner Lenox. Were there then two houses, or one house, and were they American or English, or both? It would seem plausible to say that one house alone subsisted (under different names), and that it was essentially an American house. Maitland's share might be confiscable through his personal domicile, Lenox's share for his fraudulent conduct (see p. 276). Maitland was still in England in April, 1813, the capture having been on August 6, 1812. The court, however, seems to have regarded the partnership as a different entity when operating in England from what it was when operating in America. Unlike The Herman (4 C. Rob. 228), we have, as in The Franklin, a case where the partners are precisely the same; and their English business may have been of a purely American texture, but (seemingly) not confined to the receipt and marketing of goods forwarded by their own American establishment. They had taken up the position in England of English merchants doing a general American trade.

On the whole, it appears an irresistible conclusion that the American court had not quite succeeded in separating the radically different conceptions of domicile and house of trade. They appear to confuse the two, and to assume that where the one is, the other must be also. Harper, indeed, arguendo (p. 267), attempts to substitute trading for time as the eriterion of what should constitute domicile ! 31

It appears to be to this case, with its failure to distinguish domicile

31 And, in The Frances, he says plainly, "It is the nature of the trade, not the place of residence, which determines the hostile or neutral character of the trader." (8 Cranch 369.)

from trading, that the subsequent confusion is to be attributed.32 We shall consider ourselves absolved from going at length into the modern cases, and shall only cite one as typical (The Aina, infra).

SOCIETY FOR THE PROPAGATION OF THE GOSPEL V. WHEELER (October, 1814, 2 Gall. 130). The strongest possible repudiation of the idea that domicile for prize-law purposes is a "commercial domicile" dependent on trading, is found in the present case, decided seven months after The Venus, and after full opportunity of discussion. And the judgment is by Story, whose language in The Venus and The Frances is thus seen to have reference solely to the facts of those particular (mercantile) cases.

A neutral, or a citizen of the United States, who is domiciled in the enemy's country. . is deemed as much an alien enemy, as a person actually born under the allegiance and residing within the dominions of the hostile nation. And the same principle has been applied to a house of trade established in a hostile country, although the parties might happen to have a neutral domicile; . . . But it is not the private character or conduct of an individual, which gives him the neutral or hostile character. It is the character of the nation, to which he belongs and where he resides. He may be retired from all business, devoted to mere spiritual affairs, or engaged in works of charity, religion and humanity, and yet his domicile will prevail over the innocence and purity of his life. This is conclusive that domicile, for prize purposes, does not mean trading residence.

THE ELISIA. (Inner Temple Folio Prize appeals [1813-14] fo. 472.) The advocates of the theory that place of business is everything in war must find considerable difficulty in the case of The Elisia (now for the first time, like The Louisa, made public). The owner of ship and cargo (one Davis) was a subject of King George III, and regarded himself as domiciled in Ireland. But his commercial center was certainly nowhere in the United Kingdom. Being at Lisbon early in 1810, he bought an American vessel, got a Papenberg register for her, and christened her The Elisia. He went to Waterford in her, and loaded glass for America, proceeding

32 Murray v. The Charming Betsy (February, 1804, 2 Cranch 64). This is the case which probably became the innocent cause of the unfortunate expression “commercial domicile." An American non-intercourse act was held not applicable to a person domiciled and trading in Danish territory. Obviously a just decision, if a lenient one, but having no bearing on the subject of prize. For the whole object of the act was commercial, to discourage commercial intercourse between America and France. The whole act being directed to trade, his place of trading was supremely important. The personal domicile was quite immaterial.

Shattuck, the claimant, had done all he could to make a Dane of himself, having even become naturalized. In these circumstances Marshall, C. J., declared that domicile abroad may confer the commercial privileges of the place. But he nowhere says that only "commercial" domicile can confer the character of the place.

The interesting case of The Constant is cited from Comynge Reports (677). (Scott v. Schwarz.) English subjects domiciled in Russia were held to be Russians for the purposes of navigation acts. They were "of that country or place."