sale prevent adjudication according to real ownership.1 The fraudulent alteration of a license destroys its validity, even where the person claiming protection is innocent of the fraud.2 And a wrong description invalidates a license, as where a person is described as of London, merchant, when he resides elsewhere, although he intended to go to London and settle there. The defence of "alien enemy" is one which is not favored by the law, and it has been said that the plea must not only aver such hostile character but also must set forth every fact that negatives the plaintiff's right to sue. But it has been shown by Mr. Justice Story that this position is not sustained by authority, the true rule being that every fact must appear upon the record which negatives the right of the alien to sue."

Alien friends may be parties to contracts of insurance as fully, to all intents and purposes, as citizens or subjects of the country where the policy is made. And an alien enemy in a country at war with his own, may have rights and privileges which the courts of that country may enforce; and if an alien has a

1 Conn. 571. This decision is not in conformity, however, with those above cited. The same may be said of Perkins v. N. E. Mar. Ins. Co., 12 Mass. 214; Hayward v. Blake, id. 176. See Ogden v. Barker, 18 Johns. 87; Colquhoun v. N. Y. Firem. Ins. Co., 15 id. 352.

1 The Vrouw Hermina, 1 Rob. Adm. 163; The Sechs Geschwistern, 4 id. 100; The Omnibus, 6 id. 71; The Minerva, 6 id. 396; The Ocean Bride, Eng. Adm. 1854, 33 Eng. L. & Eq. 576; The Soglasie, Eng. Adm. 1854, 33 Eng. L. & Eq. 587. The Ernest Merck, Eng. Adm. 1854, 33 Eng. L. & Eq. 594.

2 The Louise Charlotte, 1 Dods. 308.

8 Klingender v. Bond, 14 East, 484. "But see Lemcke v. Vaughan, 1 Bing. 473, 8 J. B. Moore, 646, 7 Dowl. & R. 236. See generally Rawlinson v. Janson, 12 East, 223; The Jonge Johannes, 4 Rob. Adm. 263; The Jonge Klassina, 5 id. 297; The Cousine Marianne, Edw. Adm. 346; Robinson v. Morris, 5 Taunt. 720.

Shepeler v. Durant, 14 C. B. 582, 25 Eng. L. & Eq. 334. The court in this case had made an order for time to plead, putting the defendant under terms to plead issuably. On the twenty-eighth of the month war was declared, and on the twenty-ninth the defendant took out a summons for leave to file the plea of alien enemy, which the court refused to grant. Jervis, C. J., said: “As far as I am concerned, I should not wish to encourage pleas of this sort. The court will not put the defendant into a position to plead such a plea. There may be countries in which advantage might be taken of such a plea; but fortunately in this country a more liberal policy prevails, and the courts here will require the utmost technical strictness in such cases, and will make every intendment against such a plea."

5 Casseres v. Bell, 8 T. R. 166.

Society for the Propagation of the Gospel v. Wheeler, 2 Gallis. 105, 127, 130. 7 Thus in the case of the Society for the Propagation of the Gospel v. Wheeler, 2 Gallis. 105, 135, it being provided by treaty between England and this country, that

license to carry on a certain trade, he may insure it. But it is otherwise with alien enemies generally, as we have seen. It may therefore be very important to ascertain who is, and who is not, an alien.

An alien is one who, in common phrase, belongs to another country; or in legal phrase, one who owes allegiance to the sovereignty of another country, and has there the rights and obligations of a citizen or subject. And, as a general rule, the citizens of a country which is under the temporary or permanent dominion of the enemies of another country, are considered as aliens in respect to such country, and all trade with them is illegal. But if the government chooses to recognise the country as neutral, courts of justice are bound by such recognition, and the citizens are treated as subjects of any other neutral power.2

Every man has a domicil somewhere or other; and where he has not a domicil, it may be said that he is an alien. The right of a citizen of a country to expatriate himself during war, in order to acquire neutral rights and privileges, has been much discussed in this country, and perhaps on authority the law is not yet settled whether he may do this at all,' but it is

the subjects of either country who then held lands in the other, should continue to hold them, and that neither they nor their heirs and assigns should be regarded as aliens in respect to the lands and the legal remedies incident thereto, Mr. Justice Story expressed a strong opinion "that as to all the titles and estates within the article, an alien enemy might maintain all the legal remedies" in a time of war, as well as when the countries were at peace. In Wells v. Williams, 1 Salk. 46, 1 Ld. Raym. 282, it was held that an alien enemy living in a foreign country under a safe conduct, or an alien coming to a country in time of peace, and living there under protection, can maintain an action during war.

1 Hagedorn v. Reid, 1 M. & S. 567; Kensington v. Inglis, 8 East, 273; Usparicha v. Noble, 13 East, 332. See also, De Tastet v. Taylor, 4 Taunt. 233; Grigg v. Scott, 4 Camp. 339.

2 Blackburne v. Thompson, 15 East, 81, 3 Camp. 61; Hagedorn v. Bell, 1 M. & S. 450.

$ Crawford v. Wilson, 4 Barb. 504.

In The Dos Hermanos, 2 Wheat. 76, 98, there is a remark upon this point which, although not entitled to the force of a decision, as the opinion turned partly upon another point, is yet entitled to great weight. The question was as to the domicil of the claimant at the port of Carthagena, he having during the war returned to the United States, and become the owner of a privateer at New Orleans. Mr. Justice Story said: "In respect to the domicil of Mr. Green, there is certainly much reason to doubt, if it would be sufficient to protect him, even if he could show himself, at the

certain that if he removes "in order to mask his mercantile projects under a neutral flag," such an act is fraudulent and of no avail.1

Where the domicil is, depends upon the two essential elements, of residence and intention.2

3

Residence implies intention, where there is no evidence to the contrary; and sometimes the whole question of domicil, or alienage, is determined by the consideration, whether the residence is of that length, or for that purpose, or of that character, that it implies absolutely, intention, and therefore proves domicil.

Every case in which this question arises must be judged of by itself. But some considerations and adjudications may be useful in determining it.

Domicil is but a Latin form of the word "home;" and every man has his home, says the Roman civil law, there where "he has established his hearth and the sum of his possessions

time of capture, a citizen of Carthagena. For if upon his return to New Orleans after the war, he acquired a domicil there (of which the circumstance of his becoming the owner of a privateer in that port affords a strong presumption), he became a redintegrated American citizen, and he could not, by an emigration afterwards, flagrante bello, acquire a neutral character, so as to separate himself from that of his native country." In The Santissima Trinidad, 7 Wheat. 283, 347, the same learned judge said: "Assuming for the purposes of argument, that an American citizen may, independently of any legislative act to this effect, throw off his own allegiance to his native country, as to which we give no opinion, it is perfectly clear that this cannot be done, without a bonâ fide change of domicil under circumstances of good faith. It can never be asserted as a cover for fraud, or as a justification for a commission of a crime against the country, or for a violation of its laws, when this appears to be the intention of the act. It is unnecessary to go into a further examination of this doctrine; and it will be sufficient to ascertain its precise nature and limits, when it shall become the leading point of a judgment of the court." In Jackson v. N. Y. Ins. Co., 2 Johns. Cas. 191, and in Duguet v. Rhinelander, 1 id. 360, it was held that a person cannot expatriate himself in time of war so as to assume the character of a neutral. The Court of Errors, however, reversed the decision in the latter case. 2 Johns. Cas. 476,

1 Caines, Cas. xxv. The continental jurists generally deny the right of a citizen to transfer his allegiance in time of war. See Vattel, liv. 1, c. 19, liv. 2, c. 27; Grotius de Jure Bel. ac Pac. liv. 2, c. 5, § 2; Puffendorf, Droit des Gens, liv. 8, c. 11, § 3.

1 See Duguet v. Rhinelander, 2 Johns. Cas. 476, 1 Caines, Cas. xxv.; The Santissima Trinidad, 7 Wheat. 283, cited in the preceding note.

2 Burnham v. Rangeley, 1 Woodb. & M. 7.

In The Bernon, 1 Rob. Adm. 102, 104, Sir Wm. Scott said: "The presumption arising from a person's residence is, that he is there animo manendi, and it lies on him to explain it."

and his fortunes; whence he will not depart if nothing calls him away; whence if he has departed he seems to be a wanderer, and if he returns he ceases to wander." 1

Where a man has his birth and parentage (or to speak more correctly his origin, for a man may be born in one country and yet, taking the domicil of his father, belong to another), there, unless circumstances show the contrary, is his domicil. And this domicil remains until it is changed.2 Nor can it be changed by intention alone, without change in fact, nor by change in fact alone without intent, although, as we have seen, this change of residence may be such as to imply change of intention. And generally if a domicil is once acquired, it is presumed to continue till a new one is clearly shown.5.

In the nature of things it is impossible to determine by a fixed rule what residence is sufficient to give a national character; nor have any governments or courts endeavored to do so. Various things must be taken into consideration. In few cases are

all these present; and where they are so, one may be in one case

1 Code, Lib. 10, tit. 39, 7.

2 Brown v. Smith, 15 Beav. 444, 11 Eng. L. & Eq. 6; Sears v. City of Boston, 1 Met. 250; Crawford v. Wilson, 4 Barb. 504. In Bruce v Bruce, cited 2 B. & P. 229, Lord Chancellor Thurlow said: “A person's origin in a question of, where is his domicil, is to be reckoned as but one circumstance in evidence, which may aid other circumstances; but it is an enormous proposition, that a person is to be held domiciled where he drew his first breath, without adding something more unequivocal." In Somerville v. Somerville, 5 Ves. 750, 787, it was held that the domicil of origin is to prevail “until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and taking another as his sole domicil." The learned Master of the Rolls then added: "I speak of the domicil of origin rather than of birth; for the mere accident of birth at any particular place, cannot in any degree affect the domicil. I have found no authority or dictum that gives, for the purpose of succession, any effect to the place of birth. If the son of an Englishman is born upon a journey in foreign parts, his domicil would follow that of his father. The domicil of origin is that arising from a man's birth and connections."

8 Attorney-General v. Dunn, 6 M. & W. 511; Hallowell v. Saco, 5 Greenl. 143; State v. Hallett, 8 Ala. 159; Williams v. Whiting, 11 Mass. 424; Hairston v. Hairston, 27 Miss. 704.

* Bradley v. Lowry, 1 Speer's Eq. 1; Granby v. Amherst, 7 Mass. 1; Lincoln v. Hapgood, 11 id. 350; Harvard College v. Gore, 5 Pick. 370; Cadwalader v. Howell, 3 Harrison, 138; Wilton v. Falmouth, 15 Maine, 479.

Cadwalader v. Howell, 3 Harrison, 138; Kilburn v. Bennett, 3 Met. 199; Burnham v. Rangely, 1 Woodb. & M. 7.

strong and important while the others are feeble and trifling, and another case may present the exact reverse.

The elements to be considered are (1), length of residence; (2) continuity of residence; (3) purpose or cause of residence; (4) character and extent of business done there, and its relation to the person's whole business, or to his business elsewhere; that is, is it principal and dominant, or only ancillary and subordinate; (5) his household and family ties or relations; (6) the kind and degree of communication which he keeps up with an earlier home. The general principle is well settled, that if a person goes abroad for the purpose of remaining there permanently, either with the intent of entering into business1 or not, he is considered as an alien. So completely is this rule established, that if a citizen of one country has his commercial domicil in another, he may engage in trade with a country which is at peace with his adopted country, although at war with his native country, and insurance on such trade may be affected in the latter country.3

But if a person goes to a foreign country, for a short time and a special purpose, with a decided intention of returning, he would not be thought by any one to acquire a domicil there.*

1 One of the earliest, and the leading case on this subject is that of Mr. Whitehill, cited in The Diana, 5 Rob. Adm. 60. Here, a British merchant had gone to St. Eustatius only a day or two before it was taken possession of by a British force, but it being proved that he went for the purpose of remaining there permanently, his property was condemned. The general rule on this subject is well stated by Sir Wm. Scott, in The Indian Chief, 3 Rob. Adm. 12, 18, as follows: "No position is more established than this, that if a person goes into another country, and engages in trade, and resides there, he is by the law of nations to be considered as a merchant of that country." See also, O'Mealey v. Wilson, 1 Camp. 482; Willison v. Patteson, 7 Taunt. 439; Tabbs v. Bendelack, 4 Esp. 108; The Citto, 3 Rob. Adm. 38; The Aina, Eng. Adm. 1854, 28 Eng. L. & Eq. 600; The Abo, Eng. Adm. 1855, 29 Eng. L. & Eq. 591, 594; The Frances, 8 Cranch, 363; Murray v. The Charming Betsy, 2 id. 64, 120.

2 Thorndike v. City of Boston, Met. 242; Laneuville v. Anderson, 17 Jur. 511, 22 Eng. L. & Eq. 641, affirmed in the Privy Council, Anderson v. Laneuville, 9 Moore, P. C. 325, 29 Eng. L. & Eq. 59.

3 Bell v. Reid, 1 M. & S. 726. And as a citizen of his adopted country, he may in time of peace engage in a trade which is prohibited to the citizens of his native country. Wilson v. Marryat, 8 T. R. 31, affirmed in the Exchequer Chamber, Marryat v. Wilson, 1 B. & P. 430.

4 Sears v. City of Boston, 1 Met. 250. In this case a native inhabitant of Boston, intending to reside in France, departed for that country, and was followed by his family about three months afterwards. His dwelling-house and furniture were leased for a year, and he hired a house for a year in Paris. At the time of his departure, he