CHAPTER II. USES OF DOMICIL. § 25. General Remarks. Before entering upon a consideration of the general subject of domicil, its definition, nature, constitution, and change, and the ordinary evidence by which its change is shown, etc.,- it will be well to take a brief survey of the general field- or perhaps it would be more accurate to say the several fields of jurisprudence in which it is usually applied for the determination of legal relations. To do this with any degree of detail would itself require a volume, and moreover such a discussion would more naturally and logically follow than precede the consideration of domicil per se. It is the object of the writer, however, here only to outline briefly the various uses to which in American and British jurisprudence the principle of domicil is practically applied, for the purpose, if possible, of approximately estimating the values as authorities of the several classes of cases hereafter to be cited in the body of this work. From this chapter therefore the continental authorities will be, in the main, omitted, and the several topics will be discussed as succinctly as possible, with references only to the leading cases and text-books, to which the learned reader may refer for more elaborate discussion and fuller lists of authorities. § 26. Domicil in Public International Law; National Character. In general, the determination of the national character of a person, as subject, enemy or neutral, in time of war, depends upon his domicil; 1 "the general principle being that 1 The Vigilantia, 1 C. Rob. 1; The Emden, id. 17; The Harmony, 2 id. 322; The Indian Chief, 3 id. 22; The Neptunus, 6 id. 403; Marryat v. Wilson, 1 Bos. & P. 430, affirming Wilson v. Marryat, 8 T. R. 31; Bell v. Reid, 1 Maule & S. 726; Livingston v. Maryland Ins. Co., 7 Cranch, 506, 542, per Story, J.; The Venus, 8 id. 253; The Frances (Gillespie's Claim), id. 363; s. c. before Story, J., 1 Gall. 614; The Mary and Susan, 1 Wheat. 46; The Antonia every person is to be considered as belonging to that country where he has his domicil, whatever may be his native or adopted country." This principle is usually applied in prize cases, in the determination of which, however, peculiar considerations prevail. The object of prize capture in war is to cripple the resources of the enemy, and thus indirectly abridge fighting by depriving him of the sources of his wealth and the means of supplying himself with the sinews of war. To attain this object, not only is the property of every person domiciled within the territory of the enemy held liable to capture, but also the products of the hostile soil 5 and all Johanna, id. 159; The Friendschaft (Winn et al., claimants), 3 id. 14; United States v. Guillem, 11 How. 47; The Prize Cases, 2 Black, 635; The William Bagaley, 5 Wall. 377; Mitchell v. United States, 21 id. 350; United States v. Farragut, 22 id. 406; Desmare v. United States, 93 U. S. 605; The Ann Green, 1 Gall. 274; The Joseph, id. 545; Johnson v. Twenty-one Bales, 2 Paine, 601; s. c. Van Ness, 5; United States v. Penelope, 2 Pet. Ad. 438; Rogers v. The Amado, 1 Newb. 400; Elbers v. United Ins. Co., 16 Johns. 128; Law rence's Wheaton Int. L. 2d ed. p. 557 et seq.; Kent's Comm. vol. i. lect. 4; Phillimore, Int. L. vol. iii. pp. 128, 603; Twiss, Law of Nations in Time of War, § 152 et seq.; Arnould, Mar. Ins. ch. 5, § 2, art. 2; Duer, Mar. Ins. vol. i. lect. 5; Parsons, Mar. Ins. vol. i. ch. 2, § 2; Id. Maritime L. bk. 2, ch. 1. In Livingston v. Maryland Ins. Co., supra, Story, J., thus clearly states the doctrine: "It is clear, by the law of nations, that the national character of a person, for commercial purposes, depends upon his domicil. But this must be carefully distinguished from the national character of his trade. For the party may be a belligerent subject, and yet engaged in neutral trade; or he may be a neutral subject and yet engaged in hostile trade. Some of the cases respecting the colonial and coasting trade of enemies have turned upon this distinction. But whenever a person is bona fide domiciled in a particular country, the character of the country irresistibly attaches to him. The rule has been applied with equal impartiality in favor and against neutrals and belligerents. It is perfectly immaterial what is the trade in which the party is engaged, or whether he be engaged in any. If he be settled bona fide in a country with the intention of indefinite residence, he is, as to all foreign countries, to be deemed a subject of that country. Without doubt, in order to ascertain this domicil, it is proper to take into consideration the situation, the employment, and the character of the individual. The trade in which he is engaged, the family that he possesses, and the transitory or fixed character of his business, are ingredients which may properly be weighed in deciding on the nature of an equivocal residence or domicil. But when once that domicil is fixed and ascertained, all other circumstances become immaterial." 2 Phillimore, Int. L. 1st ed. vol. iii. p. 603. 8 Collaterally it is applied in other cases also, particularly in cases of marine insurance. Marryat v. Wilson, supra; Bell v. Reid, supra; Livingston v. Maryland Ins. Co., supra ; Elbers v. United Ins. Co., supra; Duer, Mar. Ins., supra; Arnould, id., supra; Parsons, id., supra; Id. Maritime L., supra. 4 Authorities cited in note 1, supra. 5 The Phoenix, 5 C. Rob. 21; The interests and property in or connected with houses of trade established within the hostile territory, no matter to whom they may belong, whether friend, enemy, or neutral. Cases of this description are usually decided in the courts of the belligerents themselves, and at times and under circumstances which preclude the fullest investigation of all the facts bearing upon the ownership of the thing captured, and particularly of the facts bearing upon the animus of the claimant. For all these reasons, and because, moreover, there are great temptations, and great possibilities also, for the commission of frauds by claimants, prize courts have leaned strongly in favor of captors, and principles have been applied by them which do not prevail in other classes of cases. The development of the law of prize as it has been applied by the British and American courts is due mainly to the learned and luminous judgments of Lord Stowell at the close of the last and the beginning of the present century, and the leaning of the mind of that great jurist was, as has been pointed out by high authority, strongly in favor of captors.7 As a single instance may be given his remarks, in The Harmony, upon the subject of length of residence as indicative of domicil, in which he propounds doctrine wholly at variance Vrow Anna Catharina, id. 161; Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191; The Gray Jacket, 5 Wall. 342; 1 Kent's Comm. p. 74; Lawrence's Whea ton, 2d ed. p. 576 et seq.; Phillimore, Int. L. 1st ed. vol. iii. p. 607. 6 The Vigilantia, 1 C. Rob. 1; The Portland, 3 id. 41; The Antonia Johanna, 1 Wheat. 159; The Friendschaft (Moreira, claimant), 4 id. 105; The Cheshire, 3 Wall. 231; The San Jose Indiano, 2 Gall. 268; 1 Kent's Comm. p. 80; Phillimore, Int. L. vol. iii. p. 605. 7 Marshall, C. J., in The Venus, 8 Cranch, 253, 299, said: "I respect Sir William Scott as I do every truly great man, and I respect his decisions; nor should I depart from them on light grounds; but it is impossible to consider them attentively without perceiving that his mind leans strongly in favor of the captors. Residence, for example, 8 2 C. Rob. 322. See further on this subject, infra, § 386 et seq. with the views of almost all of the courts and writers who have spoken on the subject of time in its relation to domicil considered with reference to general purposes. From these and other considerations it is apparent that cases of national character in time of war should be used with the greatest caution upon the general subject of domicil.9 9 In Hodgson v. De Beauchesne, 12 Moore P. C. C. 285, 313, Dr. Lushington says: "Various meanings have been affixed to the word 'domicil,' - domicil jure gentium; domicil by the municipal law of any country, and we may add domicil during war, as it may govern the rights of belligerent States. This species of domicil is, it is true, in one sense domicil jure gentium; but in many particulars it is governed by very different considerations, and decisions belonging to it must be applied with great caution to the questions of domicil independent of war." In The Baltica, Spinks' Prize Cas. 264, 266, the same distinguished judge said: 'Much has been said as to the domicil of origin of Mr. Sorensen, Jr. I briefly advert to it, though I do not think it has any strong bearing on the case, for the question before me is that of mercantile national character, which is governed by rules and by authorities particularly applicable to it alone. I think I should only confuse the case by following it up in reference to other cases of domicil." The same caution is repeated by various writers on the subject of domicil. See, e. g., Westlake, 2d ed. p. 285; Wharton, § 70; Dicey, p. 341 et seq. civil domicil. Each domicil is a kind of residence, each bears a close resemblance to the other, but they are distinguished by marked differences. "I. Resemblance of Commercial Domicil to Civil Domicil. - A trading or commercial domicil bears so close a resemblance to a civil domicil that it is often described in language which appears to identify the two kinds of domicil. Thus Arnould writes of the domicil which determines a person's character in time of war, "That is properly the domicil of a person where he has his true, fixed, permanent home and principal establishment, in which when present he has the intention of remaining (animus manendi), and from which he is never absent without the intention of returning (animus revertendi) directly he shall have accomplished the purpose for which he left it' (1 Arnould, Marine Insurance, 3d ed. p. 121), whilst Duer states with regard to the national character of a merchant: 'It is determined solely by the place of his permanent residence. In the language of the law, it is fixed by his domicil. He is the political member of the country into which, by his residence and business, he is incorporated; a subject of the government that protects him in his pursuits that his industry contributes to support, and of whose national resources his own means are a constituent part' (1 Duer, p. 495). Nor are the points in which the two kinds of domicil resemble each other hard to discern. They are each kinds or modes of residence. The constituent elements of each are, first, 'residence ;' secondly, a 'purpose or intention' (on the part of the person whose domicil is in question) with regard to residence.' In spite, however, of the terms used by In this country the decisions of Lord Stowell have usually high authorities, and of the undoubted likeness between the two kinds of domicil, they are different in essential particulars. "II. Differences between Civil and Commercial Domicil. - The fundamental distinction between a civil domicil and a commercial domicil is this: A civil domicil is such a permanent residence in a country as makes that country a person's home and renders it, therefore, reasonable that his civil rights should in many instances be determined by the laws thereof. A commercial domicil, on the other hand, is such a residence in a country for the purpose of trading there as makes a person's trade or business contribute to or form part of the resources of such country, and renders it therefore reasonable that his hostile, friendly, or neutral character should be determined by reference to the character of such country. When a person's civil domicil is in question, the matter to be determined is whether he has or has not so settled in a given country as to have made it his home. When a person's commercial domicil is in question, the matter to be determined is whether he is or is not residing in a given country with the intention of continuing to trade there. From this fundamental distinction arise the following differences (i.) As to residence. - Residence in a country is, in general, prima facie evidence of a person having there his civil domicil, but it is only prima facie evidence, the effect of which may be quite got rid of by proof that a person has never lived in the country with the intention of making it his permanent home; but residence is far more than prima facie evidence of a person's commercial domicil. In time of war a man is taken to be domiciled for commercial purposes in the country where he in fact resides; and if he is to escape the effect of such presumption, he must prove affirmatively that he has the intention of not continuing to reside in such country. A long period further of "The intention which goes to make up the existence of a civil domicil is the present intention of residing perma nently, or for an indefinite period, in a given country. The intention which goes to make up the existence of a commercial domicil is the intention to continue residing and trading in a given country for the present. The former is an intention to be settled in a country and make it one's home; the latter is an intention to continue residing and trading there. Hence, on the one hand, a person does not acquire a civil domicil by residence in a country for a definite purpose or period (pp. 80, 81, ante ), and cannot by residence in one country, e. g. France, get rid of a domicil in another, e. g. England, if he retains the purpose of ultimately returning to England as his home; while, on the other hand, the intention 'which the law attributes to a person residing in a hostile country, is not disproved by evidence that he contemplated a return to his own country at some future period. If the period of his return is wholly uncertain, if it remains in doubt at what time, if at all, he will be able to accomplish the design, the design, however seriously entertained, will not avail to refute the legal presumption. A residence for an indefinite period is, in the judgment of law, not transitory, but permanent. Even when the party has a fixed intention to return to his own country at a certain period, yet, if a long interval of time an interval not of months, but of years is to elapse before his removal |