is adopted at the present time in practically all the countries of continental Europe, the principle having received renewed stimulus through the Italian school of Mancini. In England and the United States, however, domicil has retained practically all its importance as the test of the civil status of the person, and nationality or citizenship has become the test of political status.1

Domicil is the place where a person resides as his permanent home with the fixed intention of constantly remaining there, to which, whenever he is absent, he has the intention of returning.2

Much confusion has arisen as to the true relation between domicil and national character by reason of three different factors: first, the occasional expression of executive opinion to the effect that domicil in the United States confers upon the person domiciled a national character as American and the right to American protection—a view expressed by Secretary Marcy in the Koszta case-and that permanent residence or domicil abroad of an American citizen amounts to a voluntary renunciation of American citizenship and the right to diplomatic protection, or indeed, that it constitutes an act of expatriation; secondly, the universal rule of American and English courts in matters of prize law to the effect that the domicil of a merchant in belligerent or neutral territory, fixes the character of his property at sea as enemy or neutral, regardless of his national allegiance;

3

4

The question of domicil is almost entirely within the scope of the conflict of laws; hence it cannot be discussed here except in its relation to national character. Domicil is fully discussed in the works on the conflict of laws by Dicey (American notes by J. B. Moore, 1896; 2d English ed. 1908), Story (8th ed., 1883), Wharton (3d ed., 1905), and Minor (1901) and in the works on private international law by Bar (2d ed., Gillispie's trans., 1892), Foote (4th ed., 1914), Phillimore (v. 4 of his Commentaries, 3d ed., 1889), Savigny (2d ed., Guthrie's trans., 1880) and Westlake (5th ed., 1912). See also the special works on domicil by Dicey (1879), Phillimore (1847), Round (1861), Jacobs (1887), and Bentwich (1911).

2 See the definitions of domicil by Phillimore, Story and Wharton quoted by Moore in the Digest III, 813. The Roman law definition of domicil was very similar. See Ortolan, Generalization of Roman law, 573, cited by Morse, op. cit., 93. See also Guier v. Daniel, 1 Binney, 349; Medina v. Costa Rica, Moore's Arb. 2587 and Flutie v. Venezuela, Ralston, 38, 43.

3 The Koszta case is discussed, infra, § 250. The effect of prolonged residence abroad, infra, § 324 et seq.

4 Supra, p. 110. This doctrine of trade domicil in war will be more fully discussed presently.

and thirdly, the rule that permanent residence of a person in belligerent territory subjects him and his property there situate to all the risks of war.1

Influenced largely by one or the other of these doctrines the argument has occasionally been made that in the interpretation of protocols of arbitration of private claims the term "citizen" or "subject" must be understood in a so-called "larger" sense of international law, according to which all persons are "citizens" or "subjects" who by permanent domicil are within the protection of the government under which they reside, rather than in the strict sense of municipal law which construes the term as meaning absolute citizenship or paramount allegiance to a sovereign. Such an argument has some support in certain dicta of the British Privy Council passing on appeals from awards of the Board of Commissioners under the treaty of 1814 between Great Britain and France, and in certain decisions of English common-law courts. The decisions of prize courts and other opinions. to the effect that belligerent domicil impresses a certain national char

3

2 This was the substance of Mr. Hale's argument before the British-American Claims Commission of May 8, 1871. His argument was rejected by the Commission. Barclay (Gt. Brit.) v. U. S., Moore's Arb. 2727, Hale's Rep. 50. See also Brief of U. S. Solicitor in case of Jonas P. Levy, Sen. Misc. Doc. 251, 35th Cong., 1st sess. (v. 4), 13-15. See also Sec'y Marcy's celebrated argument in Koszta's case, particularly part found in Moore's Dig. III, 832.

3 In Drummond's case, 2 Knapp P. C. Rep. 295, the claim of a British subject against France was rejected on the ground that by French law he was also a French subject. This case, frequently cited to support Mr. Hale's argument, is therefore not in point. In Countess Conway's case (2 Knapp P. C. Rep. 364, 367), Baron Parke expressed the opinion, as dictum, that had the Countess been domiciled in England she would have been entitled to British protection. In André's case (2 Knapp P. C. Rep. 365, 368), not fully reported, it seems that claimant's domicil in England at the time of the confiscation of her property in France entitled her to British protection.

Marryat v. Wilson (1798), 8 T. R. (Durnford & East), 31, 45; 1 Bosanquet and Puller, 429, 443 (dictum); McConnell v. Hector (1802), 3 B. & P. 113 (British subject commercially domiciled in enemy territory, held disentitled to sue in British courts); Tabbs v. Bendelack (1802), 3 B. & P. 207, note (commercial domicil of American citizen in Great Britain affected him with character of British subject); Bell v. Reid (1813), Maule & Selwyn, 726, 733 (British subject relieved from penalties of illicit trade with Great Britain's enemy, Denmark, by reason of his domicil in a neutral country, the United States); Albretcht v. Sussman (1813), 2 Ves. & Beam. 323.

acter upon the property of the person so domiciled and for belligerent purposes temporarily suspends his paramount allegiance have occasionally been erroneously cited in support of a contention that for civil purposes and in time of peace domicil conferred national character.1 The language of some decisions, unless understood as having relation only to trade domicil in time of war, is indeed calculated to mislead.2 The misinterpreted declarations of Secretary of State Marcy in Koszta's case, to the effect that domicil plus a declaration of intention conferred a right to American protection, led the commissioners of the American-Mexican commission under the protocol of July 4, 1868until Thornton became the umpire-to hold that domicil in the United States combined with a declaration of intention conferred American citizenship and protection.4

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§ 244. Domicil Neither Confers nor Forfeits Citizenship.

The better rule and the one which, apart from the special matter of belligerent domicil, has been practically uniformly adopted is that domicil neither confers nor forfeits citizenship.5 This is believed to be the correct principle, notwithstanding the executive declaration to the effect that the establishment of a domicil abroad with the intention of not returning to the United States may be construed as

1 Kent appears to have fallen into this error (1 Commentaries, 78, 79), and Sec'y Marcy in Koszta's case relied largely upon Kent, Moore's Dig. III, 832. Cockburn correctly, it is believed, considers this position "altogether inadmissible." Nationality, 203, 204.

2 E. g., The Pizarro, 2 Wheat. 227, to the effect that by the law of nations, a person domiciled in a country, and enjoying the protection of its sovereign is deemed a subject of that country. See also the Charming Betsey, 2 Cranch, 64.

3 Infra, §§ 250, 251.

4 Jarr & Hurst (U. S.) v. Mexico, Moore's Arb. 2707 and the cases following ir Moore's Arb. Mr. Ashton's brilliant, if somewhat specious argument (ibid. 2708) appears to have led the American commissioner, Mr. Wadsworth, into the error. Thornton declined to consider a declaration of intention or domicil, singly or together, as conferring citizenship. Wilkinson (U. S.) v. Mexico, ibid. 2720.

See Mr. Ashton's able argument in De Leon v. Mexico, No. 593, July 4, 1868, v. III, 392-405; IV, 50-51 paraphrased in Moore's Arb. 2696-2706. See also Adlam (Gt. Brit.) v. U. S., May 8, 1871, ibid. 2552; Barclay, ibid. 2721, 2728; Wilkinson, ibid. 3736. See also Lem Moon Sing v. U. S. (1895), 158 U. S. 538, 547; Lau Ow Bew v. U. S., 144 U. S. 47, 62; Fong Yue Ting v. U. S., 149 U. S. 698, 724, and infra, p. 690.

an act of voluntary expatriation,1 for in these cases the foreign domicil is only one of the tests by which the intent to renounce American citizenship is determined.

§ 245. Belligerent Domicil.

Reference has already been made 2 to the Anglo-American doctrine of belligerent or commercial domicil, which differs from civil domicil in that it does not require residence with the intention to establish a permanent home, but merely establishment, not necessarily permanent, with the intention to engage in business. Actual physical residence of the owner is not even required to affect property with the political character of the country in which the house of trade whence the property originates is established. The unfortunate use of the word "domicil" in relation to two concepts so different as civil and commercial domicil has contributed to the confusion surrounding the effects upon national character of a foreign commercial residence. The rule as to commercial domicil adopted by English and American courts must be understood as furnishing a criterion to determine the political character-enemy, friendly, or neutral-of private property at sea in time of war. In other words, the property of a merchant acquires the political character of the nation in which he carries on his trade.

It is also a rule of the Anglo-American system, applied particularly to partnership property, that while residence in a neutral country will not protect a merchant's share in a house established in the enemy's country, residence in the enemy's country will condemn his share

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1 Infra, p. 690.

2 Supra, pp. 110, 253.

3 See Dicey's definition of commercial belligerent domicil supra, p. 254 and references to articles on trade domicil in war by Baty, Bentwich and Westlake, supra, p. 111, note. See also references to works by Schuster, Trotter, and Page, cited supra, p. 253. See also Story's definition and reasoning in the San José Indiano, 2 Gallis. 268, 286, and Lord Lindley in Janson v. Driefontein Cons. Mines [1902], 484, 505.

4 See decisions of municipal courts quoted, paraphrased, and cited in Moore's Dig. VII, § 1189; Wharton's Dig. III, § 352; Duer on Marine insurance, 524-528.

The Friendschaft, 4 Wheat. 105; The San José Indiano, 2 Gall. 268; The Cheshire, 3 Wall. 231; The William Bagaley, 5 Wall. 377; Moore's Dig. VII, § 1192.

in a house established in a neutral country. The lack of reciprocity in this rule indicates the partiality of the Anglo-American system for the rights of captors. Even if owned by a loyal citizen of the country of the captors, property emanating from enemy territory bears the impress of enemy character.2

The distinction between civil and commercial domicil, and the special effects of commercial domicil upon property in time of war, make it clear that the same individual, in reference to different transactions, may sustain, during the same period of time, two different, and even opposite, national characters.3

When a neutral merchant, resident in neutral territory, is habitually engaged in a trade with a country which, by the outbreak of war, becomes hostile, he has been allowed a reasonable time to withdraw from the trade without subjecting his goods to confiscation. As observed by Sir William Scott in The Indian Chief,5 "the character that is gained by residence ceases by non-residence. It is an adventitious character which no longer adheres to him from the moment he puts himself in motion bona fide to quit the country sine animo revertendi." Where a neutral, however, was domiciled in belligerent territory and did not actually carry out his intention to depart until a year after the outbreak of war, the Supreme Court of the United States declined to relax the rule, and condemned the property of American citizens who had been caught by the outbreak of war in 1812 with a commercial domicil in England, notwithstanding the manifestation of their desire to return to the United States. Chief Jus

1 Dana's Wheaton, § 335; Westlake, II, 141–142 (1907 ed.); Oppenheim, II, §§ 88, 90; Bentwich, 142; Duer on Marine insurance, §§ 42, 45; The Antonia Johanna (1816), 1 Wheaton, 159.

2 The Gray Jacket, 5 Wall. 342; The Venus, 8 Cranch, 253; The Frances, 8 Cranch, 335.

The Jonge Klassima, 5 C. Rob. 302; Janson v. Driefontein Consolidated Mines (1902), A. C. 505, 506.

4 The Jacobus Johannes and the Ospray, cited by Sir William Scott (Lord Stowell) in the Vigilantia, 1 Rob. 14. See Duer, op. cit., § 42.

3 Rob. 12, 20. See also U. S. v. Guillon, 11 How. 45, 60; The Frances, 8 Cranch, 335, 366.

The Venus, 8 Cranch, 253. The property condemned was shipped before the outbreak of war.