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"enemy's country at the breaking out of the war, partake "of the nature of the enemy's trade, and, as such, are subject to belligerent capture. The only question is, "whether Kraffts was temporarily here, or whether he "was here animo manendi. He having remained in the "United States for such a length of time, the presumption "of law is that it was his intention to reside here per"manently; and he is bound to explain the circumstance "of his residence to repel that presumption. This is the "doctrine of the British Admiralty Court (s), and it is "founded in good sense and the plainest principles of "policy. The fact of a person residing in a country for a "considerable period leads to the conclusion that he has

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adopted it as his residence. If the real fact be other"wise, he alone can show it. Kraffts came to this country "for his health; but he has not shown that the state of "his health required his continuance here. We find him "on one occasion actually purchasing a cargo to be sent. "to St. Bartholomew's, constituting a commercial agent, "and superintending the concerns of the house by advis“ing with and consulting with the agent of the house in "relation to their business with the firm. Indeed, there "is no proof that Kraffts ever talked of returning to St. "Bartholomew's, or that he ever explained himself to anyone, that he was here for mere temporary purposes."

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The learned Judge then cited, with approbation, The Jonge Klassina, 5 C. Rob. Adm. Rep. 297, and Judge Story's remarks in Livingston and Gilchrist v. Maryland Insurance Company, 7 Cranch, 542, and proceeded

"It seems to me not to admit of a doubt that, by the "well-understood law of nations, the facts disclosed in "this case, and the absence of all proofs that Kraffts was "here temporarily, or that he intended to return at any "future time to St. Bartholomew's, are decisive that he "had an indefinite intention to remain here; and especially

(s) The Bernon, 1 C. Rob. Adm. Rep. p. 102.

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"as he was actually engaged in superintending the business of his house in their concerns in this country. The "warrantry is therefore broken and falsified. The property "insured would have been liable to belligerent capture "and condemnation."

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CCCIV. The following observations of Lord Stowell are worthy of the most careful attention. He says—“ Of "the few principles that can be laid down generally, I may venture to hold that time is the grand ingredient "in constituting Domicil. I think that hardly enough is "attributed to its effects; in most cases it is unavoidably "conclusive: it is not unfrequently said that if a person "comes only for a special purpose, that shall not fix a "domicil. This is not to be taken in an unqualified "latitude and without some respect had to the time "which such a purpose may or shall occupy; for, if the "purpose be of a nature that may probably, or does actually, detain the person for a great length of time, I "cannot but think that a general residence might grow "on the special purpose. A special purpose may lead a "man to a country where it shall detain him the whole "of his life. A man comes here to follow a lawsuit: it "may happen, and indeed is often used as a ground of "vulgar and unfounded reproach (unfounded as matter "of just reproach, though the fact may be true) on the "laws of his country, that it may last as long as himself. "Some suits are famous in our judicial history for having " even outlived generations of suitors. I cannot but think, "that against such a long residence, the plea of an "original special purpose could not be averred: it must "be inferred in such a case that other purposes forced "themselves upon him, and mixed themselves with his original design, and impressed upon him the character "of the country where he resided. Suppose a man comes "into a belligerent country at or before the beginning of "a war: it is certainly reasonable not to bind him too "soon to an acquired character, and to allow him a fair

"time to disengage himself; but if he continues to reside during a good part of the war, contributing by payment "of taxes and other means to the strength of that country, "I am of opinion that he could not plead his special pur

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pose with any effect against the rights of hostility. If "he could, there would be no sufficient guard against the "fraud and abuses of masked, pretended, original and "sole purposes of a long-continued residence. There "is a time which will estop such a plea; no rule can fix "the time à priori, but such a time there must be. In "proof of the efficacy of mere time, it is not impertinent "to remark that the same quantity of business which "would not fix a domicil in a certain space of time, would "nevertheless have that effect if distributed over a larger space of time. Suppose an American comes to Europe. "with six contemporary cargoes, of which he had the present care and management, meaning to return to "America immediately: they would form a different case "from that of the same American coming to any par"ticular country of Europe with one cargo, and fixing "himself there to receive five remaining cargoes, one in "each year successively. I repeat that time is the great "agent in the matter: it is to be taken in a compound "ratio of the time and the occupation, with a great "preponderance of the article of time: be the occupation "what it may, it cannot happen but with few excep"tions, that mere length of time shall not constitute a "domicil" (t).

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CCCV. It is true that these observations are directly applied to the case of a commercial Domicil in the time of war, which may be more easily acquired than a testamentary Domicil; and the proposition, that "a general "residence may grow on a special purpose," if intended-from the context, the analogy of the lawsuit, and the absence of any qualification-to be holden as universally

(t) The Harmony, 2 C. Rob. Adm. Rep. pp. 324 6.

true of all kinds of domicil (u), cannot be so considered in England after the case of Hodgson v. De Beauchesne (x).

CCCVI. The following dicta of the American judges upon this point are worthy of observation :-" In questions on this subject, the chief point to be considered is the "animus manendi, and Courts are to devise such reason"able rules of evidence as may establish the fact of inten"tion. If it sufficiently appear that the intention of "removing was to make a permanent settlement, or for "an indefinite time, the right of domicil is acquired by a "residence even of a few days" (y). Again, "Every man "is viewed by the law of nations as a member of the society in which he is found. Residence is primá facie

(u)"Quodnam autem temporis spatium, aut quantus annorum numerus ad hanc diuturnitatem requiratur, doctores valdè inter se digladiantur. Plerique judicis arbitrio id relinqunt, ut ex loci et personarum conditione ac qualitate vel breviori vel longiori termino dijudicet (Zangerus and Menochius are here cited and compared with Mascardus and Mævius). Quidam existimant etiam solo decennio domicilium contrahi, et ad hoc probandum adducunt 2 C. De incolis, cui hane rationem jungunt, quod per diuturnum tempus, decem scilicet annorum, domicilium præscriptum esse censeatur.-Ernest. Cothm. vol. i. resp. 21, b. 4, et Warmser, exerc. 4, q. 10, p. m. 152. Qui etiam argumentis Zangeri ita respondet: Non imus inficias, minori etiam tempore domicilium constitui posse, ita tamen ut aliæ conjecturæ et circumstantiæ tacitè contracti domicilii concurrant. Tunc autem non tam ex temporis ratione, quam potius ex ipsis conjecturis et circumstantiis tacitè contractum æstimabitur. Verum impræsentiarum quando quæritur, an decennium ad contrahendum domicilium necessarium sit; aliis conjecturis minimè opus est, sed sufficit solius temporis decursus.' Sed priorem sententiam tutiorem esse arbitratur etiam Du Carpsov. 1. ii. t. ii. resp. 22, n. 5."-Tractatio de Domicilio Eberhardina A.D. 1663. Tubinga.

"Lorsqu'on ne connoît pas la cause pour laquelle quelqu'un est allé demeurer ailleurs qu'au lieu de son domicile, sa volonté d'y transférer son domicile peut se prouver, tant par la longueur du temps qu'il a commencé d'y demeurer, que par d'autres circonstances, qui sont laissées à l'arbitrage du juge."-Pothier, Introd. Gén. aux Coutumes, chap. i. s. 15.

(x) 12 Moore's P. C. Rep. p. 285.

(y) 3 Peter's Condensed Reports of Cases in the Supreme Court of the United States, p. 172 (Note to The Frances, Boyer master); reported also, 8 Cranch, p. 363. See also The Diana, 5 C. Rob. Adm. Rep. p. 60.

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"evidence of national character: susceptible, however, "at all times, of explanation. If it be for a special purpose, and transient in its nature, it shall not destroy the original or prior national character; but if it be taken up animo manendi, then it becomes a domicil, super"adding to the original or prior character the rights and privileges, as well as the disabilities and penalties, of a "citizen-a subject of the country in which the residence "is established" (z).

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"An

CCCVII. And in another case it was laid down, "inhabitant, or resident, is a person coming into a place "with intention to establish his domicil or permanent re"sidence, and in consequence actually resides. The time "is not so essential as the intent, executed by making or "beginning the actual establishment, though it is aban"doned in a longer or shorter period" (zz).

CCCVIII. So, in the case of Stanley v. Bernes, the declarations of Mr. Stanley of his intention to return to England were outweighed by his residence of fifty years in Portugal (a).

CCCIX. The object of the residence in these cases was not special, the purpose was not temporary, so as to bring it within the rule of the civilians, exempting all such cases from the application of the legal presumption of domicil. The merchant engaged on a special and limited venture; the student who resides for the sake of prosecuting his studies; the individual detained by the prosecution of a lawsuit; the officer employed by the State in a particular service, all fell under this exception of the civilians (b),

(z) See Johnson v. Sundry Articles of Merchandise, 6 Hall's American Law Journ. p. 68. Cited in 3 Peter's Condensed Rep. p. 173. (zz) United States v. The Penelope, cited 3 Peter ubi sup.

(a) 3 Haggard's Eccl. Rep. p. 373. Suprà, §§ ccxc. ccxci. (b) "Et primum dicendum est habitationem et domicilium inter se differre. Nam domicilium habere quis dicitur in loco qui animo ibi commorandi perpetuò habitat. Is verò qui pro emptione aliquâ ex causâ, puta studiorum, vel litis, vel simili, commoratur, habitare dicitur."-Menochius, De Præsumpt. lib. vi. Præs. xlii., (p. 799).