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.

3

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

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.

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.1 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.

3 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.

tice Marshall's dissent 1 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.

4

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, 144145; 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," 1 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.