1

tice Marshall's dissent from this decision on the ground that a neutral merchant should have a reasonable time to withdraw from a country and a trade which has suddenly become hostile, has had the approval of Chancellor Kent and of other authorities, and has been followed by the courts.2

§ 246. Effect of Domicil before International Tribunals.

The Anglo-American doctrine as to trade domicil in war in its relation to national character has been followed by international and domestic commissions acting under protocols of arbitration.3 International commissions, however, have not always confined the rule to its limited application to property at sea for purposes of prize law, but have at times extended the effects of foreign domicil so as to confer national character for civil purposes. Thus, in the case of Raborg v. Peru, the commission adopted the language of Kent to the effect that "if a person goes into a foreign country and engages in trade 1 The Venus, 8 Cranch, 315.

2 The Gerasimo, 11 Moore P. C. 88, 96 (dictum); The Ariel, 11 Moore, P. C. 119; The Gray Jacket, 5 Wall. 342; The William Bagaley, 5 Wall. 377; Westlake, II, 144– 145; Wharton, III, 344-345. Eleven months was considered too long a time for the withdrawal of property to escape condemnation. The St. Lawrence, 9 Cranch, 120. 3 Claims of American citizens who had established houses of commerce with foreigners in France, England, or other foreign countries were excluded from the benefits of the treaty of April 30, 1803 between the U. S. and France, art. V., Malloy I, 514. See Rules of decision of commission distributing French indemnity of 1803, Moore's Arb. 4442, 4445. The board of commissioners under the treaty of July 4, 1831 with France confined the rule that trade domicil is the criterion of citizenship "strictly to matters of prize law," and did not extend its application further. Kane's Notes, 1836, p. 18, Moore's Arb. 4471-72. See also The Pizarro, 2 Wheat. 228; Murray v. Charming Betsey, 2 Cranch, 120.

The general rule was followed in Prats (Mexico) v. U. S., July 4, 1868, Moore's Arb. 2890, Ferrer, ibid. 2721 (dictum); Carmalt (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3157; Rodocanochi Sons & Co. v. U. S., Act of June 23, 1874, Distribution of Geneva Award, ibid. 2359.

In the Betsey (U. S.) v. Great Britain, Nov. 19, 1794, Moore's Arb. 2825, 2853 the general rule was admitted, but the purely temporary presence of the owner in enemy territory was not considered a commercial or enemy domicil so as to affect his property at sea with enemy character. To the effect that temporary residence is not domicil see Beales (U. S.) v. Mexico, Act of March 3, 1849, ibid. 2670 (dictum).

Raborg (U. S.) v. Peru, Jan. 12, 1863, Moore's Arb. 1614 (dictum); Upham, American commissioner, in the Laurent case, relied upon Kent's statement, ibid. 2678. See also Finn (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 2348–2349 (dictum).

there, he is by the law of nations to be considered a merchant of that country, and a subject to all civil purposes," and deprived the claimant of his standing as an American citizen for the enforcement of a contract with the government of Peru by reason of his commercial establishment in Peru.

The rule was similarly extended beyond its ordinary application to the belligerent capture of property at sea in the cases of Laurent and of Uhde (Great Britain v. U. S.) before the mixed commission under the convention of February 8, 1853.2 Both these claimants, British subjects by birth, had established a commercial domicil in Mexico and had remained in Mexico after the outbreak of the war between the United States and Mexico in 1846. The claim of the Laurents was based upon the seizure by General Scott of certain moneys which the Laurents had placed in a bank to the credit of the Mexican government, said money having been the purchase price of certain church property which the Mexican government had confiscated and contracted to sell to the claimants. The claim of Messrs. Uhde was based upon an alleged wrongful seizure by the United States authorities at Matamoras, a port then held by the United States forces, of certain merchandise alleged to have been introduced by a fraudulent evasion of the customs regulations. In both cases, the question was raised as to the right of the claimants to appear before the commission as British subjects. Bates, the umpire of the commission, relying upon certain decisions of English courts to the effect that commercial domicil in time of war impresses the national character of the domicil upon property at sea connected with the place of domicil, held that the claimants, by reason of their commercial domicil in Mexico, could not be considered "British subjects" within the meaning of the convention, and that the commission was without jurisdiction.3

1 See Abdy's Kent, 2d ed., 1878, p. 195. Kent here had reference solely to commercial domicil in enemy territory in prize law.

2 Laurent (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 2671-2691, S. Ex. Doc. 103, 34th Cong., 1st sess., 120-160; Uhde (Gt. Brit.) v. U. S., ibid. 2691-2695, S. Ex. Doc. 103, 34th Cong., 1st sess., 436 et seq.

3 Moore's Arb. 2689, 2695. Upham, the American commissioner, wrote a long opinion (2677-2683) also denying the jurisdiction of the commission on the ground of lack of citizenship.

In the Uhde case, however, jurisdiction was assumed on the ground that the United States in its diplomatic correspondence with Great Britain had entertained the claim.

Mr. Bates was not a lawyer, and it is believed that he misconceived the doctrine of trade domicil in war by applying it to the situation of the claimants Laurent and Uhde. Mere commercial domicil in Mexico should not have been considered as involving a loss of British nationality. The conclusion in both cases was probably correct, but for entirely different reasons than the ones advanced. It was not the domicil of the claimants in Mexico which affected their national character as British subjects, but it was the transactions in which they were engaged which in the one case did, and in the other did not, deprive them of the right to British protection. By purchasing property from Mexico and depositing money in trust for the Mexican government, the Messrs. Laurent had rendered assistance to one of the belligerents, and as against the United States, had forfeited their neutrality as British subjects and their right to British protection. By introducing cargo into a port in the possession of the United States the Messrs. Uhde did not, as against the United States, forfeit their right to British protection, whatever might have been the consequences as against Mexico.1 On these grounds, which appeal to the lawyer as more logical and reasonable than the principle of commercial belligerent domicil, the Laurent and the Uhde decisions may be reconciled.

Trade domicil in war, therefore, it is submitted, does not deprive a citizen of his nationality, nor confer upon him the nationality of his domicil. For the particular purpose of belligerent capture of property at sea, it serves to impute the national character of the domicil upon so much of a merchant's property as is connected with his commercial domicil, and to this limited extent only, suspends the rights growing out of his actual political allegiance.

The effect of the domicil of a neutral alien in enemy territory upon his rights of person and property has also led to erroneous conclusions as to the effect of domicil upon national character. In our discussion

1 See the valuable criticisms of the Laurent and Uhde decisions in the doctrinal notes on these cases in Lapradelle and Politis' Recueil, I, 675, 680.

of war claims, it was observed that neutral aliens and even citizens domiciled in an enemy state, with their property there situated, are exposed to the risks of war and the consequences of hostilities to the same extent as subjects of the enemy.1 A citizen of a neutral nation, residing in a country between which and another war breaks out may exempt himself from the liabilities incident to hostile character by taking early steps to remove from the belligerent territory.2 By continuing his residence in the belligerent territory he may be considered to owe at least temporary allegiance and to have elected to adhere to the sovereign of his domicil of choice, and to have placed himself out of the protection of the government to which his original and permanent allegiance is due. His person and property may be treated by the other belligerent as the person and property of an enemy.1 While such domicil in belligerent territory involves a temporary allegiance and imposes upon the individual the rights and liabilities, for belligerent purposes, of a national of the country in which he is domiciled, he does not thereby become a citizen of that country, nor lose his citizenship in his home state, although he is deemed by his continued domicil. in the belligerent territory, to have impliedly renounced his right to the diplomatic protection of his home government for all purposes connected with his belligerent domicil. The right of continued residence of aliens is often provided for in treaties,

3

1 Supra, p. 251, notes 1, 2 and p. 252, note 1. See also U. S. v. Farragut, 22 Wall. 406; The Wm. Bagaley v. U. S., 5 Wall. 377; Prize cases, 2 Black, 635; Page v. U. S., 11 Wall. 268; Green v. U. S., 10 Ct. Cl. 466 (exception in case of Abandoned or Captured Property Act); Haycraft v. U. S., 22 Wall. 81; Lamar v. Browne, 92 U. S. 187; Young v. U. S., 97 U. S. 39; Jaragua Iron Co. v. U. S., 212 U. S. 297, 306; Peter N. Paillet v. U. S., Ct. Cl. Rep. 220, 36th Cong., 1st sess., 19-20.

2 The Wm. Bagaley v. U. S., 5 Wall. 377; Gates v. Goodloe, 101 U. S. 612; Clow (U. S.) v. Mexico, Domestic commission, Act of March 3, 1849, Moore's Arb. 2657.

3 Clow (U. S.) v. Mexico, Act of March 3, 1849, Moore's Arb. 2657, 2658; Cooke (U. S.) v. Mexico, ibid. 2659, 2660; Haggerty et al. (U. S.) v. Mexico, ibid. 2663; Thompson (U. S.) v. Mexico, ibid. 2667.

4 Cooke (U. S.) v. Mexico, Act of March 3, 1849, ibid. 2659, 2661; Haggerty et al. (U. S.) v. Mexico, ibid. 2665; Thompson (U. S.) v. Mexico, ibid. 2669; Barclay (Gt. Brit.) v. U. S., May 8, 1871, ibid. 2727 (dictum); Laurent (Gt. Brit.) v. U. S., Feb. 8, 1853, ibid. 2671 and Uhde (Gt. Brit.) v. U. S., ibid. 2691 (see also supra, p. 562, note 2). Prats (Mexico) v. U. S., July 4, 1868, ibid. 2886, 2890 (dictum). See also supra, p. 252, note 1.

and their subjection to war risks by reason of continued domicil should not be extended beyond its ordinary application to belligerent acts.

In some countries, the fact of being domiciled for a certain period confers the rights of citizenship, if not citizenship itself. This rule might with advantage be generally adopted by states which entertain habitually large numbers of permanently domiciled foreigners. It would furnish something in the nature of a solution for the problem which confronts the national government of such foreigners who, although permanently absent and fulfilling none of the duties of citizenship, nevertheless demand diplomatic protection when they get into difficulties.

EFFECT OF DECLARATION OF INTENTION TO BECOME A CITIZEN

§ 247. International Effects.

Under the naturalization laws of the United States, an alien who desires to become a citizen of the United States must, at least two years prior to his admission to citizenship, declare on oath before the clerk of an authorized court that it is his intention to become a citizen of the United States and to renounce forever all other allegiance.2 The few exceptions to the requirement of a declaration of intention as a condition of admission to citizenship are not important.3

1 1 Cockburn, Nationality, 203, 204.

Formerly § 2165, R. S., now § 4, paragraph 1 of Act of June 29, 1906, 34 Stat. L. 596.

3 In case of honorably discharged soldiers, § 2166 R. S. Honorable discharge from Navy after five years' service, Act of July 26, 1894, 28 Stat. L. 124. Honorable discharge after four years' service in Navy, Marine Corps, Revenue-Cutter Service, etc., Act of June 30, 1914, Session laws, 63rd Cong., 2nd sess., pt. I, 395. Widow and children of declarant who dies before final naturalization, Act of June 29, 1906, § 4, Parag. 6. In Hawaii only five years' residence is required, Act of April 30, 1900, 31 Stat. L. 161. By § 30 of the Act of June 29, 1906 inhabitants of the Philippines or other insular possessions need not renounce foreign allegiance. By the Act of June 25, 1910 (36 Stat. L. 830), a person who has resided in the U. S. for five years next preceding May 1, 1910 and acted under the impression that he was a citizen and exercised the rights of citizenship may receive a certificate of naturalization, without making a declaration of intention. In re Urdang, 212 Fed. 557. The "minor's clause" (§ 2167, R. S.) was repealed by the Act of June 29, 1906. See Van Dyne, Naturalization, 61-64.