¹ See, for succinct statistics, the writer's Prize Law and Continuous Voyage (London). 1916.

² In Anglo-American law, that is. In most other systems, it is the decisive test. There seems no decisive case or authority against its being recognized in Anglo-American law as an additional criterion of enemy character, though the better opinion is to the contrary. See War and Its Legal Results (Baty and Morgan), pp. 306, 310.

³ See The Jonge Klassina, 5 C. Rob. 297, and our comments, infra.

⁴ General as regards customers and transactions, that is; not as regards lines of goods.

⁵ By this term we shall denote a chief business executive who is technically an agent or servant, but whose principal has no business activities of the class concerned.

⁶ This can only be surmised. But the surmise is a strong one, as, if the agent had been at all devoid of initiative, the case would hardly have been worth pressing Stowell with, or worth his attention in giving judgment. Nor would such an hypothesis have been in accordance with the circumstances of the time or the exigencies of international commerce.

⁷ Banking houses were not fully exempted. Proclamation of January, 1915.

⁸ May the reader be referred to War and Its Legal Results (Murray, London) by Professor Morgan and the present writer, p. 294 seq.f

⁹ Cf. The Juffrouw Louisa Uargaretha, 1 C. Rob. 203.

¹⁰ Of course, it must always be understood that a substantial (and perhaps preponderant) general business is being done in the neutral country. Otherwise, it i* only a blind.

¹¹ The Virginie infra (concluding part of this article in the next number)

¹² See also Westlake's International Law (War), II, 141 seq., where he seems to admit civil law domicile as a criterion of enemy character, but apparently only in the case of a trader, and not very explicitly or plainly.

¹³ Janson v. Driefontein, etc., Law Reports (1902) Appeal Cases, p. 505.

¹⁴ Wynne, Life of Jenkins, Vol. II, pp. 730, 785.

¹⁵ There is one in the Appendix to the 5th Volume of C. Robinson's Reports: The ‘William.

¹⁶ “There was no cargo,” says Stowell, “but the vessel was fitted out with stores necessary for the Greenland fishery.”

¹⁷ An extraordinary vagueness as to nationality is revealed by the master's evidence. “He was born in Holland, he had always been a subject of the Batavian republic [or its predecessors, the States-General], but thinks, from a paper which he received from Emden, that he is now a subject of the King of Prussia.” though he neVor was at Emden, and never took any oath of allegiance to the Prussian monarch.

¹⁸ But cf. The Jonge Ruiter, infra (where, however, the ship does not appear to have been of previous enemy nationality)

¹⁹ Emden, as is well known, was the great entrepot for Holland and attempts were made (and failed conspicuously) in The Imina (3 C. Rob. 167) to have its commerce treated as enemy commerce. In The Jonge Pieter (4 C. Rob. 79) it was indeed held to be too dangerous a port for British subjects to trade with. The town had been Dutch until the eighteenth century.

²⁰ Cf. what was said, supra, as to the attack on a belligerent house of trade being in effect an attack on the small people who are employed by it.

²¹ But cf. The Frederick (Sept. 7, 1803), 5 C. Rob. 8.

²² This must be added to the long list of quotations which are conclusive against Westlake's theory that prize law domicile means trading residence and has nothing to do with ordinary civil law domicile. Cf. the articles cited, supra, in Jour. 800. Comp. Leg. and Juridical Review.

²³ This would scarcely, it would seem, extend to the casual and fluctuating employment of common seamen, or perhaps even of subordinate officers.

²⁴ We adduce this as an additional proof that domicile, as the primary criterion of national character in prize cases, is simply the domicile resting on “animus manendi” of ordinary civil law, and is not a Pickwickian “prize” (or “trading”) domicile, compounded of trade and residence in unknown proportions. The passage also supplies the reason why “residence” is so often used as synonymous with domicile: it generally followed that where one was resident, there one was domiciled.

²⁵ Note that he does not say “being and trading in France.” This has an important bearing on Westlake's eccentric contention that “prize domicile” is something special and peculiar, flavored with trade. He does, indeed, say, when considering the effect of the claimant's admitted four years residence in France, that it is important to consider — whether it was occupied in trading or how (p. 337), but simply because it would be a fair inference that if he was there to trade he could remain there trading.

²⁶ “The master corresponded with Dutch merchants, and not at all with the asserted owner.”

²⁷ Cf. The Vigila ntia, supra, and The Portland (the Frau Louisa) infra.

²⁸ In The Jefferson (ibid., p. 325, May 9, 1799), the term “house of trade” was used as equivalent to “partnership.”

²⁹ The fact of a single ship coming from America to Europe for him with rice and toWtco. M StcweW. sa.'ya, “the eargo might have been order from france”

³⁰ Compare Mv. H. Grant's butler in Tlie Josephine, infra.

³¹ I.e., domiciled. “It is a question of residence or domicile,” Stowell. at p. 322.

³² P. 340. Hamburg creditors were, however, alleged in the same breath to have attached his property in France, and if English creditors could not do so, yet Americans could.

³³ “Had he returned to the United States, immediately after [the capture], I do not hazard much in saying that restitution would have been decreed.” Per Marshall, C. J. (The Venus, 8 Cranch, 300.)

³⁴ As it so often is, since residence inferred domicile.

³⁵ Subject to what has been observed regarding sole partners, and persons with nc domiciled enemy partners.

³⁶ Extended a little so as to cover the case of a domiciled enemy subject withdrawing from the enemy country on the outbreak of war. Halleck denies this extension to be law in America, citing The Venus (8 Cranch, 253).

³⁷ “He had emigrated,” says Stowell (ibid., p. 44). His allegiance is not stated.

³⁸ The Spazamheid, Younge Ferdinand, Hoop, Juffroutv Alida, Jonge Isabella, Jonge Emilia, Frau Louisa, Floreat Commercium and apparently another unnamed (or, more probably, though Stowell is made to say “nine other ships,” The Portland was one of the nine).

³⁹ It is quite irrelevant, but we remember some years ago seeing in a very well informed periodical (The Musical Times, London) a note of sarcastic exclamation placed after the quotation of the original dedication “To the Emperor of Germany” of Haydn's Creation: the writer being under the impression that the sovereign of Vienna and Antwerp was “Emperor of Austria.” Needless to say, there was no Emperor of Austria until 1804.

⁴⁰ The fact that Holstein, though Danish, was also nominally imperial, may be disregarded. The imperial supremacy has never been supposed to be material on questions of national character. Ostend, on the contrary, was actually governed by, or on behalf of, the Emperor, as part of the Hapsburg patrimony.

⁴¹ Presumably Dutch for the Hope, and (more or less) so pronounced.

⁴² The Franklin, infra.

⁴³ The same qualities are found in another author who polished and re-polished, Campbell, the author of Gertrude of Wyoming. When he wrote rapidly he was clear and forcible. His touchings and re-touchings render him obscure to a degree.

⁴⁴ The case of The Portland is peculiar, as it is not the case of a whole country becoming hostile (as Holland did, in The Indiana). It was only a certain part (though an integral part) of the Austrian Dominions, that was occupied by the French troops, causing these particular localities to bear a hostile character. It may be doubted, therefore, whether Mr. Ostermeyer ever had, even momentarily, a hostile domicile. His imperial domicile would s bsist until he either evinced an intention of remaining under the French occupation, or of emigrating to a third country. [The contrary hypothesis, that persons domiciled like Mr. Ostermeyer at the particular place invaded, sustain an instantaneous and involuntary (if temporary) change of domicile upon invasion, seems to offer inseparable difficulties. One is not domiciled at a town, but in a country. You may be domiciled in France though you may never mean to spend a week in any partic lar French town. Another possible hypothesis, that persons domiciled in the country invaded and resident at the place invaded, change their domicile, is obviously inconsistent with principle, as long as domicile is maintained as the criterion.] And he lost no time in removal, thus clearly showing that he did not mean to remain under the new regime. Mr. Sontag's character, on the contrary, must have remained Dutch, and consequently hostile, until he quitted Holland for Altona.

⁴⁵ It is worthy of notice that no importance seems to be attached to the fact that Amsterdam was also under French occupation in 1798 when this ship was taken. A house of trade, unlike a domicile, is established, not in a country, but in a town.

⁴⁶ See The Juffrouw Elbrecht (supra) and The Jonge Buiter (infra), where mere employment in belligerent trade, without charter, was held in the circumstances insufficient to condemn. In The Vigilantia, there was indeed no charter, but much identification in the nature of the traffic. n The Hoop (1 C. Rob. 203).

⁴⁸ This seems to discredit the modern proclamations which fulminate against the trade with persons “being in the enemy's country.”

⁴⁹ The Bernon, supra.

⁵⁰ The packet service between Dover and Boulogne remained uninterrupted throughout the war.

⁵¹ I.e., retaining the power to represent his goods as concerned in the transactions of a substantial business in a neutral country, although the actual locale of the transactions may have been in a belligerent one. This is the only use (I think) of the term “domicile” by Stowell.

⁵² But, in The Vreede Scholtys (Jan. 10, 1804, 5 C. Rob. 5, note), Stowell seems to think it doubtful whether the subjects of other Powers, who are, by exceptional favor, admitted to a close trade of a particular state, necessarily become affected with the belligerent character if that state goes to war. Perhaps there is a distinction between mere close trade and privileged trade—the latter bringing the trader into intimate relations with the government, and making the goods normally the property of the latter immediately on importation.

⁵³ The head-note speaks of the claimants as “personally domiciled”; the text speaks of “local residence.”

⁵⁴ Qu. "Possessor"? Would not the principle apply to a lessee or bona fide possessor?

⁵⁵ See Marshall's masterly analysis of this case and the Boldes Lust in The Venus (8 Cranch, 253).

⁵⁶ As to withdrawal on the outbreak of war, see The Solde Hoop (1 Acton 32), and especially per Marshall, C. J., in The Venus (8 Cranch at p. 306)

⁵⁷ Halleck (International Law, I I , c. 23, §6) seems to deny that a domiciled enemy can quit his domicile in safety on the outbreak of war; and cites The Venus (8 Cranch). See this case infra. Cf. per Marshall, C. J. (ibid.). "I cannot admit that an American citizen who had gained a domicile in England, during peace, and was desirous of returning home, on the breaking out of war, but was detained by force, could, under the authority of [The Indian Chief] be treated as a British trader, with respect to his property embarked before a knowledge of the war" (p. 301).