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DOMICILE AS A TEST OF ENEMY CHARACTER

By MALCOLM M. LEWIS, M.A., LL.B.,

Lecturer in International Law, University College of Wales, Aberystwyth.

I.

THE wars of the nineteenth century revealed a definite and well-established cleavage between the practice of the States of Continental Europe and that of Great Britain and the United States in the test applied for the purpose of determining enemy character. Most continental countries, in seeking to define the persons who were to be regarded as alien enemies, adopted nationality as the criterion. Thus in the case of Le Hardy contra La Voltigeante1 the French Conseil des Prises in 1802 laid down the principle that enemy subjects domiciled in neutral countries retain their enemy character and that neutral subjects domiciled in enemy countries retain their neutral character. It is true that the principle was not carried to its logical conclusion so as to treat neutral subjects resident in occupied territory in a different manner from enemy subjects resident there, and when at the second Hague Conference in 1907 Germany proposed that special treatment should be accorded in such cases to neutral subjects, e. g. that no war tax should be levied on them, the proposal was energetically opposed by the delegations of France, the Netherlands and Russia, as well as Great Britain, and was abandoned.2 But subject to this exception, the continental countries adhered strictly to the principle of nationality, in particular with regard to the exercise of the right of capture of enemy vessels and goods in warfare at sea. Allegiance was with them the test of an enemy.

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On the other hand, in the British Empire and the United States, nationality has not been adopted as a criterion either for the law applicable in private matters or for the purpose of deter

1 Pistoye et Duverdy: Traité des Prises Maritimes, Vol. II. p. 321.

2 A. Pearce Higgins: Hague Peace Conferences, pp. 85, 293. Scott: Proceedings of Hague Peace Conference of 1907, Vol. I. p. 154.

mining enemy character. For the latter purpose the principle of commercial domicile has been made by them 1 the dominant factor, and this principle has been explained by Lord Justice Scrutton in Tingley v. Müller 2 as follows:

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"Originally war declared by one prince against another involved in its consequences all the subjects of both, who were exhorted in the customary proclamation Courir sus aux ennemis.' . . . Allegiance was then the test of 'alien enemy.' In the time of Calvin's case 3 the alienigena (alien born) might become an enemy by a war with his prince. It is this governing principle that is stated by Lord Davey in the Driefontein Case. But with the growth of commerce and greater tenderness to private property an alleviation or exception was introduced into the rule of allegiance or nationality. An alien enemy by allegiance could lose his enemy character for the time if he was residing in the King's dominions or trading there by the licence of the Crown. . . . A subject by allegiance could, for the time, lose his friendly or national character by residing or trading in the enemy's dominions. Either party by trading or residing in a neutral country might acquire for the time being a neutral character. The conditions under which this loss of national character might be achieved and under which the new character by residence might be lost have been carefully considered by Lord Stowell in several cases where questions of trading with the enemy or the enemy ownership of property seized as prize were in dispute. The conditions of this character are sometimes called 'domicil,' but by that phrase is not meant ' civil domicil '—what Lord Lindley calls 'real domicil '—but a condition more easily acquired and lost, called by some of the text writers' commercial ' or 'trade domicil - domicile in a peculiar sense differing considerably from ordinary domicile, which is known as trade domicile in war, but is equally applicable to persons not engaged in trade.' . . . Civil domicil is such a permanent residence in a country as makes that country a person's home. Commercial domicil is such a residence in a country for the purpose of trade or otherwise as makes a person's trade or estate form part of its resources.'

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Postponing a further consideration of the elements constituting commercial domicile," it may be said that the importance attributed to it as a test of enemy character in the British and American view is based on the fact that a foreigner residing and doing business in a State is largely under its control.

"He cannot be made to serve it personally in war, but he contributes by way of payment of ordinary taxes to its support, and his property is liable, like that of subjects, to such extraordinary subsidies as the prosecution of a war may demand. His property being thus an element of strength to the State it may reasonably be treated as hostile by an enemy. Conversely when the foreigner lives in a neutral country, he is so far subject to its sovereignty that it can restrain him from taking advantage of its territory to do acts of hostility against the

1 And also by Japan: see Russian and Japanese Prize Cases, Vol. II. p. 25.
(1917) 2 Ch. 172–3.
3 (1608) 7 Rep. 1a.
(1902) A.C. 499.

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enemy of his State, and it is responsible for his acts, if he does them. For the purposes of the war, therefore, he is in reality a subject of the neutral State." 1

II.

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Amongst the questions submitted for discussion at the Naval Conference of London in 1908 was "the question whether the nationality or the domicile of the owner should be adopted as the dominant factor in deciding whether property is enemy property." The British memorandum suggested that the principle of domicile was "both sounder and more practical," but the British delegation was instructed that the principle was not of such importance as to make insistence on it a vital matter.2 At the Conference an agreement was reached as to ships, and Article 57 of the Declaration of London provided that "the enemy character of a vessel is determined by the flag which she is entitled to fly." But the Powers were unable to agree as to the definition of enemy character as applied to goods. Strenuous arguments were raised against domicile as a test. It was pointed out that from the point of view of the captor the advantages to be derived from the principle of domicile were more imaginary than real. The commerce of a foreigner should be regarded as an element of the wealth of the foreigner's own country, since it is from the expansion of its commerce across the world that a nation derives its commercial power. Every State encourages and protects the commerce of its nationals abroad, and the effect of the British rule in time of war would be to compel it to treat the commerce of its subjects in enemy territory, encouraged and protected in time of peace, as enemy commerce.3

It was urged by the German delegate that the adoption of the principle of domicile would be absolutely incompatible with the German system of national defence. If a reserve officer established a house of trade in a country with which Germany declared war and returned to Germany to fulfil his military obligations, he would not by that act cease to have a commercial domicile in the enemy country, and his goods carried under an enemy flag would, therefore, be liable to confiscation. To indemnify him

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2 Parl. Papers, Misc. No. 5 (1909), p. 32. The memoranda of Spain and Japan supported the British proposal, but those of other Continental States were solidly against it.

3 Parl. Papers, Misc. No. 5 (1909), p. 332.

from the loss would be impossible, because neutral States would be entitled to demand the same treatment for their subjects domiciled in enemy territory. Again, the principle of domicile would have the effect that while goods belonging to an enemy subject domiciled in neutral territory would be exempt from confiscation, the vessel of such a person carrying his national flag would be confiscated.1 The Committee appointed to review the question also took into consideration the fact that the principle of nationality would be in conformity with Article 16 of the fifth Hague Convention of 1907, providing that “nationals of a State not taking part in the hostilities are considered as neutrals."

In favour of the principle of domicile it was pointed out that it answers better than any other the end of the captor, that it alone permits striking a blow at enemy commerce, and that the nationality of a person engaged in the commerce of any country is of little importance, because the commerce of an individual is the commerce of the country where it is carried on. Moreover, from the practical point of view domicile is a question more easily determined than nationality.2

A majority of the Committee was in favour of putting an end to the uncertainties revealed in actual practice by adopting the following provision :

"The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy nationality of their owner, or, if he is of no nationality or of double nationality (i. e. both neutral and enemy), by his domicile in a neutral or enemy country." 3

But unanimity was not forthcoming and this provision remained without effect, the Declaration being silent on the subject.4 Thus, at the outbreak of war in 1914, each belligerent was free to define enemy character in accordance with its accustomed practice, untrammelled by treaty obligations. The British courts, therefore, continued to treat domicile as the decisive factor. It is proposed in the following pages to examine in detail the working of the principle of domicile and to point out in what ways it was found necessary to modify it by statutory intervention in a war of world magnitude.

1 Parl. Papers, Misc. No. 5 (1909), p. 258.

3 Ibid., No. 4 (1909), p. 35.

2 Ibid., p. 332.

• The Manual adopted by the Institute of International Law at Oxford in 1913 made no attempt to solve the problem. See Article 51 of Proposed Laws of Maritime War in Respect of the Relations between Belligerents. Barclay: International Law and Practice, Appendix VII., p. 282.

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In English law the fact that a person is an involves at least three consequences: he cannot sue in an English court; his property carried on board an enemy ship is liable to confiscation on capture of the ship; and British subjects are forbidden to engage in commercial intercourse with him. The British cases all turn on these aspects of the problem of enemy character, and in all of them the rule laid down is that the term "alien enemy " is not synonymous with the term enemy subject, " but that the criterion is the commercial domicile of the person involved.

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The first question to be discussed is the manner in which an enemy subject can free himself from the disabilities of an alien enemy by acquiring a non-hostile domicile. The definition of commercial domicile given in Dicey's Conflict of Laws has been quoted with approval in so many cases that it may be accepted as the authoritative view of the British courts. He says—

"commercial domicile 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." 1

2

An enemy subject seeking to establish such a friendly or neutral commercial domicile must offer affirmative proof of its acquisition. In the case of The Flamenco, H., a German subject, carried on his trade at Coquimbo in Chile, a neutral country. Shortly after the outbreak of war he left Chile for a destination which was presumed to be Switzerland. Sir Samuel Evans in his judgment said:

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“In the claim and affidavits . . it is stated that though a German subject he does not reside or carry on business in an enemy country.' That does not supply the proper test. If he had given up his trade domicile in Coquimbo it matters not to what country he betook himself. If he had gone to the United States or to Switzerland (as was suggested) he would, for the purposes of this case, be as clearly an enemy as if he had from a sense of patriotic duty returned to his native land."

It is clear that in the view of the British courts residence is an essential element in the constitution of a friendly or neutral

1 Appendix, Note 4, p. 741.

2 1 B. and C.P.C. 509. Cf. The Derfflinger (No. 3) 1 B. and C.P.C. 643.

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