been followed, although not entirely without protest in some is to be effected, no regard will be had to an intention of which the execution is so long deferred' (1 Duer, pp. 500, 501). "D., domiciled in England, goes to British India with the full intention of residing there till he has made his fortune in trade, and of then returning to England, where he has his domicil of origin. He resides in India for twenty years. He retains his English civil domicil. Suppose, however, that D., under exactly similar circumstances in every other respect, takes up his residence not in British India, but in the Portuguese settlement in India, and after war has broken out between England and Portugal, continues to reside and trade in the Portuguese settlement, though still retaining his intention of ultimately returning to England. D., thereupon, acquires a Portuguese commercial domicil. "(iii.) As to Abandonment. The rules as to abandonment are different. A civil domicil once acquired can be changed only by complete abandonment in fact of the country where a person is domiciled (In Goods of Raffenel, 32 L. J. P. & M. 203). The intention to change, even if accompanied by steps for carrying out a change, will not, it would seem, produce a change as long as the person whose domicil is in question continues in fact to reside in the country where he has been domiciled. "A commercial domicil in time of war can, it would seem, be changed, under some circumstances, by the intention to change it, accompanied by steps taken for the purpose of effecting a change. 'The native national character, that has been lost or partially suspended by a foreign domicil, easily reverts. The circumstances by which it may be restored are much fewer and slighter than those that were originally necessary to effect its change. It adheres to the party no longer than he consents to bear it. It is true, his mere intention to remove, not manifested by overt acts, but existing secretly in his own breast, . . is not sufficient to efface the character that his domicil has impressed; something more than mere verbal declarations, some solid facts, showing that the party is in the act of withdrawing, is always necessary to be proved; still, neither his actual return to his own country, nor even his actual departure from the territories of that in which he has resided, is indispensable' (1 Duer, pp. 514, 515). “(iv.) As to Domicil by Operation of Law. It may fairly be doubted whether the rules as to domicil by operation of law, e. g., in the case of persons who have in fact no home, or of dependent persons, which play so large a part in the law of civil domicil, can be without considerable limitations applied to the ascertainment of commercial domicil. D., for example, is a French subject, whose domicil of origin is English. He has an acquired domicil in France. Both France and America declare war against England. D. thereupon leaves France, intending to settle in New York. He resumes during the transit from one country to another his domicil of origin; but it can hardly be supposed that he is not during such transit an alien enemy. D., again, is an infant, or a married woman, carrying on a commercial business on his, or her, own account in France during a war with England. It can hardly be maintained that the fact of the father in the one case, or the husband in the other, having an English domicil and being resident in England, will free D. from the character of an alien enemy. "(v.) As to Special Rules. There are one or two rules as to commercial domicil which can have no application to an ordinary civil domicil. Thus, according to American decisions, at least, an American citizen (and the same principle would perhaps be applied by English courts to British subjects) cannot, by emigration from his own country during the existence of hostilities, acquire such a foreign domicil as to protect his trade particulars by such jurists as Marshall 10 and Story.11 But the during the war against the belligerent claims either of his own country or of a hostile power (1 Duer, p. 521; The Dos Hermanos, 2 Wheaton, 76). So, again, a neutral merchant may at any time withdraw his property and funds from a hostile country, and such a withdrawal may restore him to his neutral domicil. But whether the subject of a belligerent state can, after the outbreak of hostilities, withdraw from a hostile state, so as to escape the imputation of trade with the enemy is doubtful. If the with drawal can be effected at all, either it must be done within a short period after the outbreak of war, or any delay in effecting it must be shown to have arisen from necessity or from compulsion (The Diana, 5 C. Rob. 59; The Ocean, id. 90; The President, id. 277; 1 Duer, p. 519). "C. Person's Civil need not coincide with his Commercial Domicil. From the distinctions between a civil and a commercial domicil, the conclusion follows that a person may have a civil domicil in one country, and, at the same time, a commercial domicil or residence in another. Thus, suppose that D.'s domicil of origin is English, but that he goes to France and sets up in trade there without any purpose of making France his permanent home, but with the distinct intention of returning to England within ten years. He clearly retains his English domicil of origin; and the outbreak of a war between France and England does not of itself affect D.'s civil domicil. - only illustrates the fact constantly dwelt upon in this work, that residence is different from domicil, and that a person while domiciled in one country may, in fact, reside in another." But he is not correct in assuming that the intention requisite for the establishment of "commercial domicil" is "intention to continue residing and trading in a given country." Intention to trade is merely accessory, and not at all essential, at least such is the American view, as may be seen in the cases cited in the notes to this section; and it is so explicitly declared by Story, J., in the passage quoted above, in note 1. See also particularly The Venus, supra, where Marshall, C. J., says: "For commercial purposes, the merchant is considered as a member of that society in which he has his domicil; and less conclusive evidence than would seem to be required in general cases, by the law of nations, has been allowed to fix the domicil for commercial purposes. But I cannot admit that the original meaning of the term is to be entirely disregarded, or the true nature of this domicil to be overlooked." It is true that this language was used in a dissenting opinion; but the nature of the animus manendi was not the point upon which the court divided. Washington, J., in the majority opinion, considers the necessary animus to be intention to settle permanently or "for an indefinite time." Twiss, in his treatise on "The Law of Nations in Time of War" (§ 153), after laying down domicil as the test of national character, says: "" A nation may have made no provision whatever under its municipal law for distinguishing the status of one foreigner from that of another foreigner within its territory; and such a system of law may not be attended with any inconvenience in time of peace; but in time of war it becomes indispensable for every nation to have some criterion to enable "In The Ann Green, 1 Gall. 274. Supreme Court of the United States in its latest decisions 12 seems inclined to put the question of national character upon the broad ground of domicil; and for the ascertainment of domicil, to apply as far as possible the same principles and tests in cases of this description as in other cases. § 27. Id. Naturalization. The Act of Congress regulating naturalization requires as a condition precedent to admission it readily to distinguish the character of an alien friend from that of an alien enemy. Nations have accordingly sought for a common rule in such matters, which would be free from ambiguity, whilst it should commend itself to universal acceptance by its natural justice; and permanent residence has been found to answer all the requirements of such a rule. An individual cannot be permanently resident in two countries; and wherever he is permanently resident, there he is contributing by his industry and general wealth to the strength of the country and to its capacity to wage war. There can be, therefore, no injustice in regarding the property of such a person as forming part of the common stock of the enemy nation, upon which a belligerent may make reprisals. Thus Grotius observes: 'By the law of nations all the subjects of the sovereign, from whom an injury has been received, who are such from a permanent cause, are liable to reprisals, whether they be natives or immigrants; but not such persons as are only passing through his territory and sojourning in it for a short time.' Accordingly, we find, in the ordinary declarations of reprisals issued by sovereign powers, an express provision that the ships and goods of all persons inhabiting the territory of the adverse power shall be subject to reprisals. The most recent order in council issued by Great Britain, on 29 March, 1854, was to the like effect: 'Her Majesty is pleased, by and with the advice of her Privy Council, to order, and it is hereby ordered, that general reprisals be granted against the ships, vessels, and goods of the Emperor of all the Russias, and of his sub jects and others inhabiting within any of his countries, territories, or dominions.'" It is true that Twiss notes a difference between "domicil for civil purposes" and "domicil for international purposes; " but what he particu larly points out is, that for the latter purposes a person can have but one domicil, while for the former (as he assumes) he can have several. But this assumption is, as we shall hereafter see, (infra, ch. 4), inadmissible. The same learned author, however, says (§ 156) that "courts of prize do not weigh the question of domicil in the same accurate scales which are used by courts which administer the law of nations in time of peace" (Conf. with Marshall, C. J., supra). And herein, as the writer believes, lies the true solution of the whole matter. For upon a review of the various authorities the better opinion appears to be that domicil used as a test of national character is the same as domicil when applied to other purposes, but that in its ascertainment different results may be reached in different courts, because of differences in the methods of inquiry; in other words, that the difference consists not in the thing inquired about, but in the method of ascertaining it. And mainly because of these different results and methods of proof arises the danger of indiscriminate reliance upon cases of national character in cases involving other subjects. 12 Mitchell v. United States, 21 Wall. 351; Desmare v. United States, 93 U. S. 605. There has, however, from the first been a stronger disposition in the American cases to put national character upon the general principles of domicil than is apparent in the English cases. to citizenship five years' residence in the United States and one year's residence in the State or Territory in which application is made; and the residence required by the act is domicil.2 Conversely, it has been declared by high authority 3 that an American citizen cannot throw off his allegiance without a bona fide change of domicil. In questions of international citizenship, therefore, domicil plays an important part. § 28. Domicil in Private International and Municipal Law. – In British jurisprudence domicil finds its main application within the field of what is commonly known as Private International Law or the Conflict of Laws; that is to say, it is principally used for the purpose of ascertaining which of several conflicting territorial laws is applicable to the determination of certain legal questions arising between individuals. In American jurisprudence domicil is similarly applied, but it is also very extensively used for the determination of the rights and duties of individuals under the municipal law, and particularly for the ascertainment of the place where such rights may be enjoyed and such duties must be performed. It is apparent that in the first class of cases, namely, those involv ing Private International Law, questions of national or quasinational domicil can alone arise; while in the second class the question may be one of either national, quasi-national, or municipal domicil; although in point of fact, in cases of this character, municipal domicil most frequently comes under discussion. In continental practice, as we have seen,' after the failure of the principle of national descent, domicil became, as it had been to a limited degree under the Roman law, the basis of the application of personal laws, or, as they were for a long time and to some extent are even now technically known, personal statutes. And this continued to be the almost universally received doctrine, at least until the adoption of the Code Napoleon, although there were many and grave disputes in its application. 1 April 14, 1802, § 1, 2 Sts. p. 153; Rev. St. § 2165. As to the requirement by other countries of domicil as a condition precedent to naturalization, see Cockburn on Nationality, passim. 2 Matter of Scott, 1 Daly, 534; Matter of Bye, 2 id. 525. 8 Talbot v. Jansen, 3 Dall. 133; The Santissima Trinidad, 7 Wheat. 283, 347, per Story, J. 1 Supra, § 15. How far that system of legislation wrought a change in this respect is a matter which has caused some dispute, and cannot be considered as definitely settled. But during the past few decades there has been a growing disposition among continental jurists, which has also found expression to some extent in positive legislation, to replace domicil as the basis of personal laws by political nationality. But here again exist differences of opinion as to the extent and manner of the application of the new doctrine; and at the present day continental views upon the subject of Private International Law may be said to be in a very unsettled and unsatisfactory state, from which probably the only definite relief will be by some concerted action among the principal civilized nations, by treaty or otherwise. To state even briefly the views propounded by the leading jurists, or applied by courts upon the Continent, would require more space than can be here devoted, and would indeed be beside the immediate purpose of this chapter. It seems best, therefore, to confine the discussion in the domain of Private International Law exclusively, or nearly so, to the doctrine laid down by the British and American authorities. § 29. Status.1 It may be laid down that the status—or, as it is sometimes called, civil status, in contradistinction to political status of a person depends largely, although not universally, upon domicil. The older jurists, whose opinions are fully collected by Story 2 and Burge,3 maintained, with few exceptions, the principle of the ubiquity of status conferred by the lex domicilii with little qualification. Lord Westbury, in Udny v. Udny, thus states the doctrine broadly: "The civil status is governed by one single principle, namely, that 2 Supra, § 16, and id. note 1. 1 On this general subject, see Story, Confl. of L. ch. 4; Burge, For. & Col. L. vol. i. ch. 3 et seq.; Phillimore, Int. L. vol. iv. ch. 17; Westlake, Priv. Int. L. 1st ed. ch. 13; id. 2d ed. ch. 2, 3; Foote, Priv. Int. L. ch. 3; Wharton, Confl. of L. ch. 3; Dicey, Dom. pt. 3, ch. 2; Piggott, For. Judgments, ch. 10; Savigny, System, etc. vol. viii. §§ 362-365 (Guthrie's trans. p. 148 |