thither with that cargo. Subsequently, the ship voyaged to Ireland with naval stores, and back with glass and whiskey. She then went again to Ireland, and proceeded to Lisbon and St. Ubes, returning to America; and lastly performed another journey to Ireland and back. War between the United States and the United Kingdom having then broken out, Davis "determined to quit that country" where he was apparently established meanwhile, attending to these various shipments. He loaded The Elisia with what property he could collect, and she started for St. Bartholomew, during which voyage she was taken by The Statira and Eotius as American property.

Davis deposed that he only went to the United States "for convenience," which must surely mean business convenience, and the court, if it had held that the place of business was decisive and that domicile in prize law meant trading residence, must have told him that his civil domicile, even if Irish, did not matter. But the Lords of Appeal (1815) restored him his property, in spite of its American origin, in spite of the master's and supercargo's deposition that he was still living in Bath, U. S. A. The case seems, therefore, a strong authority, like The Louisa 33 (and to a certain extent The Harmony) that it takes more than a few isolated acts of commerce to constitute a house of trade, even if there be personal presence in the enemy country and no house of trade elsewhere.

34

THE MARY AND SUSAN (II) (1816, 1 Wheat. 46). In a note to report of this case (p. 54), Wheaton develops the doctrine of so-called "commercial domicile." He squarely defines domicile as "commercial inhabitancy"; thus effectually mixing up the ideas of house of trade and domicile. The strange thing is that he never speaks of domicile as "commercial inhabitancy" in his Elements, nor does he fail there to distinguish accurately and succinctly between the two conceptions. The effect of such a doctrine as is developed in this note of his, would be to make a house of trade in an enemy country exempt from attack unless the proprietor resided there, which is certainly not the case. Moreover, he cites in support of it the Act of Congress of March 3, 1800, which applies a rule of salvage reciprocity to "the vessels or goods of persons permanently resident within the territory . . . of any foreign government," saying no word about trading there.35

33 This JOURNAL, April, 1921, p. 225.

34 And see work on Captures (pp. 102-150), and his elaborate appendix to Vol. 2 of his Reports, especially p. 29. "If his own personal residence be in the hostile country, his share in the property of the neutral house is subject to condemnation." The first text-book which appears to identify prize domicile with trade seems to be Thompson's Laws of War (1852, p. 27). There was the less excuse for it, as Wildman had in 1850 clearly distinguished trading from domicile, and pointed out that either may involve the attribution of an enemy character (International Law, p. 45).

35 See also The Amado (1847), Newberry, 400, and De Luneville v. Phillips (1806), 2 New Rep., 97.

THE ANTONIA JOHANNA (1816, 1 Wheat. 159). Here we get the common case of two parties carrying on business in two countries under different styles. William S. Burnett was domiciled in hostile British, and William Ivens in neutral Portuguese, territory. They were partners, and called themselves Burnett & Co. in London, and Ivens & Burnett at St. Michaels. These the court treated as two separate "houses." Considering the goods as the property of the Portuguese house, they condemned the share of Burnett because of his hostile domicile. It does not appear that the fact that Burnett was trading in that domicile was regarded as important. And the term "commercial domicile" is quietly dropped.

Wheaton, for the captors, endeavored to condemn Ivens' share also. The partnership was one, wherever it was, and a shipment like this, from the house at London to the house at St. Michaels, though expressed to be at the order and for the account and risk of the latter house, was really a shipment by Ivens & Burnett from themselves to themselves. How could it be called an exclusively Portuguese transaction? One cannot but think the argument entitled to great weight. It is much like that which prevailed in the Jonge Klassina.

It may here be added that Gaston, in argument, uses again the curious phrase of "a house" having a domicile. This marks the importance which trading and the place of trade had now reached in American cases. It is further worth notice that Wheaton seems to argue that neutrals trading with the enemy country are restricted to the use of commission merchants and supercargoes. This seems to be inconsistent with The Anna Catharine; and, if correct, would prevent a neutral firm from maintaining in the hostile country an agency for the distribution of its own goods. Dexter goes almost equally far in the San José Indiano (p. 277).

THE DOS HERMANOS (1817, 2 Wheat. 77). Here it was apparently doubted whether a born subject can by emigration flagrante bello reacquire a neutral domicile which he at one time had. But the interest of the case to us lies in the fact that Key, arguendo, still upheld the classical doctrine, and urged that the residence and trading of Mr. Green, the claimant, in neutral Carthagena was without sufficient animus manendi. The case went off on a point of procedure.

THE FRIENDSCHAFT (I) (1818, 3 Wheat. 14). Here the claimant, Winn, had lived at Lisbon some years prior to 1814, when he went (June 12th) to Bordeaux, leaving his staff of clerks, etc., attending to his business for him. He subsequently came to London, where he was on June 29, 1815, intending to return to Portugal. As he was originally domiciled in England, the captors tried to argue that his national character had reverted, on the strength of The Virginie. It is not surprising that they were unsuccessful. Had the captured goods been connected with the business done by him in England, we might have had more light thrown on the subject of house of trade.

THE FRIENDSCHAFT (II) (4 Wheat. 105). This case may be cited because there can be no possible doubt that "domicile" was used in it as meaning permanent residence, totally independent of trade. Moreira, Vieira & Machado, carrying on business in London, had a senior partner "domiciled" at Lisbon. The two junior partners were domiciled in London. Moreira applied for restitution of his share because of his domicile in Portugal. If domicile meant trading residence, he could have stated himself out of court, because he was not trading there. He failed, of course, because neutral domicile does not save one's share in an enemy house of trade. But no one told him that he had not a Portuguese domicile, or distinguished between his "domicile" in Portugal and his partners' "domicile" in England. Story, J., simply says, "The only question is, whether the share of Moreira is exempt from condemnation by reason of his neutral domicile." He does not tell him that his domicile in Lisbon is not a domicile in the sense of prize law at all. He says in effect that it is, but that in the circumstances it does not help him.

ELBERS V. KRAFT (16 Johnson, 128). This case, the last that need be cited prior to modern days, was decided in America in 1819, and clearly shows that the old conception of domicile still prevailed in prize law. No new-fangled "commercial domicile" is referred to, and it is probable that by 1819 it had become apparent that the conception of domicile as a test of enemy character was perfectly distinct from that of trading as a like test. The latter, though often confused with trading residence (commercial domicile), or confused with domicile (the domicile of a house, if I may so speak), was probably by this time analyzed as a thing apart. It is worth setting out the facts, as it is one of the few cases in which the neutral character of the trade was held insufficient to outweigh the belligerent character of the personal residence.

A. and B. had a house of trade in a Swedish island (S. Bartholomew's), but B. was in America doing business and maintaining agents on account of the partnership. Was it a Swedish business, or an American one, that B. was carrying on? It would have been truly interesting to know, but the shipment had no special connection with the business B. was carrying on in America, so the point did not arise. The goods were consigned to A. and B. at St. Bartholomew's, i.e., to a Swedish house of trade. But B.'s share was condemned as American property on account of his personal permanent residence.

"The only question," per Spencer, J., "is, whether Kraft was temporarily here, or whether he was here animo manendi. He having remained in the United States for such a length of time [two or three years] the presumption of law is that it was his intention to reside there permanently

The absence of all proof that B. was here temporarily, or that he intended to return at any future time to S. Bartholomew's is decisive that he had an indefinite intention to remain here; and especially as he was

actually engaged in superintending the business of his house in their concerns in this country."

The judge here seems to regard the business carried on by the partnership in S. Bartholomew's and in America as one individual house. It may have contributed to this that Mr. Kraft had no fixed counting-house in America, so that the great preponderance may have lain with the center of the business at S. Bartholomew's. Or the American business may not have been of a general character. From the English case of The Ann, a copy of the record of which is in the Inner Temple Library we gather that both Elbers and Kraft customarily resided in S. Bartholomew's and were Swedes by national allegiance.

THE AINA (June 21, 1854, Spinks, 316). Here Lushington, D.C.L.,ST gave it as his opinion that where a neutral "continues to reside in the enemy's country for purposes of trade, he is considered as adhering to the enemy, and is disqualified from claiming as a neutral altogether." This is clearly too wide, and quite inconsistent with Stowell's opinion in The Anna Catharine. If he has a house of trade in the enemy's country, it does not matter whether he resides there. If he has not, but resides there for the purpose of carrying on his own foreign trade, he is at perfect liberty to do so; provided, he has no intention of remaining permanently. The dictum was not necessary to the decision.

IV. CONCLUSION

The authorities are scanty, so far as the facts of trading go. The principles are vague and elusive. Possibly the whole subject requires reexamination, and the elements of (1) soil, (2) manufacture, (3) distribution, (4) expenditure of profits (domicile), taken into scientific account. Meanwhile it would be a pity that the subject of house of trade should be relegated to the list of those of which it is dangerous to venture on a definition,-like Fraud and Reasonableness. Merchants ought to be able to know where they stand, and should not be exposed to the fluctuations of belligerent prejudice.

36 Folio Prize Appeals (1813-14), fo. 418.

37 It is a current jest in the Temple (not at all justified) that Lushington was "always wrong." In The Abö (ib. 349) he made the statement that "in time of war a person is considered as belonging to that nation where he is resident and where he carries on his trade,”—again a very questionable deliverance.

EDITORIAL COMMENT

PRESIDENT HARDING'S FOREIGN POLICY

On the 12th of April, 1921, President Harding appeared before the Congress of the United States in joint and extraordinary session and delivered in person his first message to the legislative branch of the Government of the Union. In the concluding portion of his message, he dwelt upon foreign relations, and he stated, it would seem, in clear and unmistakable terms the attitude of the government in so far as he could express it at that time toward the League of Nations. He said, by way of introduction:

It ill becomes us to express impatience that the European belligerents are not yet in full agreement, when we ourselves have been unable to bring constituted authority into accord in our own relations to the formally proclaimed peace.

Little avails in reciting the causes of delay in Europe or our own failure to agree. But there is no longer excuse for uncertainties respecting some phases of our foreign relationship.

And amid enthusiastic applause, as recorded in the Congressional Record, he continued: "In the existing League of Nations, world-governing with its super-powers, this Republic will have no part." Then, amid applause, he added: "There can be no misinterpretation, and there will be no betrayal of the deliberate expression of the American people in the recent election; and, settled in our decision for ourselves, it is only fair to say to the world in general, and to our associates in war in particular, that the League Covenant can have no sanction by us."

President Harding, however, was unwilling to disassociate himself from the purpose which the advocates of international organization sought to secure through the League, although he was outspoken in this passage and in other portions of his address against the method by which this purpose was to be realized. Thus, he continued: "The aim to associate nations to prevent war, preserve peace, and promote civilization our people most cordially applauded. We yearned for this new instrument of justice, but we can have no part in a committal to an agency of force in unknown contingencies; we can recognize no super-authority. To President Harding the League is an agency of force, and it apparently defeated its purpose through the element of force and through its connection with the Treaty of Versailles. "Manifestly the highest purpose of the League of Nations was defeated in linking it with the treaty of peace and making it the enforcing agency of the victors in the war."