meaning from what it had at the time the decision was rendered. It was quite natural for the Courts thirty years ago to announce that the immiscible character of the two races, and the radical difference between the religions, customs, habits, and laws of peoples of the two countries raised a strong presumption against a British subject becoming domiciled in China. At that time it was doubtless the fixed purpose of the majority of those who came to China to sojourn here only a few years, and then to return to the country from which they came. This is not the case at present. . . . It requires a greater stretch of the imagination, and the adoption of a greater fiction of law, to hold that a person can be domiciled in a country where he does not reside and has no intention of residing at any future time, than to hold that a citizen of a foreign state can acquire an extraterritorial domicile in a community which is not the community possessing the territorial power. . . . We hold, therefore, that Dr. Young J. Allen... acquired an extraterritorial domicile in China; consequently this Court in the administration of his estate will be guided by the law which Congress has extended to Americans in China, which is the common law.' The result of the case is correct. But the reasons supporting it are not very clearly stated; there is a tendency to confuse the question as to the amount of evidence necessary to overcome the presumption against the acquisition of a domicile in China with the question of the legal possibility of acquiring such a domicile under any circumstances. The choice of the words 'extraterritorial domicile' is unfortunate in that it is likely to convey the idea of exemption from the laws of the territorial sovereign. Most of the writers of textbooks on private international law confine themselves to a statement of the doctrine announced in the case of Tootal's Trusts. Mr. Hall1 says that the doctrine of AngloOriental domicile has its reasonable place in English law, and suggests its adoption by an Order in Council. Mr. Westlake was the first to examine the question critically, and to present in a clear and adequate manner the principles of law involved 2. Sir Francis Piggott believes that the doctrine laid down by the English Courts demands reconsideration. He makes an accurate statement of the principles underlying the question when he says that the law which regulates a man's personal status must be that of the governing power in whose dominions his intention is permanently to reside, or must be so recognized and established by that governing power as to be in fact the law of the land.' 6 To sum up. The acquisition of a domicile in a country granting 1 Foreign Jurisdiction of the British Crown, pp. 184-6. 6 Domicile at a Chinese Treaty Port,' in 9 Law Magazine and Review (4th ser.), pp. 363-82. See also his Private International Law (4th ed.), pp. 311-22. 3 Exterritoriality, pp. 228 et seq. exterritorial privileges is governed by the same principles of law as the acquisition of a domicile in other countries. Where the requisite factum and animus are shown to exist there is no valid reason why an Englishman or an American should not be held to acquire a domicile in China. In respect of all matters which private international law refers to the law of the domicile he would be governed by the Chinese law, the law of the territorial sovereign. The law to which he would be subject would be none the less the law of China because it provides that persons of British and American nationality shall be governed by such laws as their respective countries may enact to govern their nationals in China. The legislative power of China extends to all persons and things within the territorial limits of the Empire; the British Parliament in legislating for British nationals in China acts merely under a delegation of authority. Such laws are operative within the territory of China only because China recognizes them as part of the law of the land. The Chinese law subjects certain persons owing allegiance to a foreign government to rules of law which may differ from those that are applied to persons of Chinese nationality, just as the common law subjects certain transactions having their origin in foreign countries to rules of law which may differ from those that are applied to transactions taking place in the forum. Nor is the principle affected by the circumstance that this law is administered by officials appointed by a foreign government. It follows from these principles that if the so-called exterritorial privileges are withdrawn by the territorial sovereign, even in violation of treaties, the domicile acquired in such country would continue, the persons remaining subject to such rules of law as the state of their domicile makes applicable to them. It follows further that a change in the nationality of a person domiciled in a country granting exterritorial privileges may involve a considerable change in the applicatory law governing matters subject to the law of domicile. This view, it is submitted, preserves intact the theory that domicile is a legal relation between an individual and a particular country, and involves a certain submission to the laws of such country as the laws of the territorial sovereign. It upholds the doctrine that each state is supreme over all persons and things within the territorial boundaries. It does away with an anomaly in the law of domicile, and enables the courts to recognize the legal existence of a domicile where the facts and intent ordinarily requisite are present. CHARLES HENRY HUBERICH. Stanford University, California. THE great war began as far as England was concerned in 1793. It was more prolific than all its predecessors in raising questions of International Law, and it found in this country a man able and willing to seize to their fullest extent the opportunities granted to him. Sir William Scott-afterwards Lord Stowell-was appointed to preside at the Cockpit towards the end of the year 1798, and in the space of the next half-dozen years or so made the most characteristic and the most enduring contribution to the science of the law of nations that any Englishman has ever accomplished. As we have already seen, the writings of statesmen and a few judicial decisions had laid down the leading principles upon which Great Britain acted with regard to contraband of war and kindred subjects. But to the English mind the subject-matter of no papers of state, however important, and the opinions of no jurist, however eminent, could ever be elevated to the dignity of legal rules unless they had been adopted by the courts in the form of judicial decisions. There were existing a certain number of cases, but except in rare instances they gave no reasons. Lord Stowell brought to the task before him exceptional qualifications in an extensive knowledge of the writings of European publicists, and an intimate acquaintance with commercial affairs. Added to these were a power of exposition, clear, dignified, and definite, a thorough grasp of the principles underlying the rules of International Law, and a complete realization of the magnificent opportunity afforded to him. VII. The Catalogue of Contraband. It will be convenient, in the first place, to consider the catalogue of contraband articles so far as they have been the subjects of judicial decision, and afterwards to consider certain of the more important principles laid down in Lord Stowell's decisions. The following table presents a view of the cases on contraband from this point of view. It is perhaps needless to observe that such things as arms and munitions of war are not included in the list for the simple reason that their contraband character has never been in doubt. A. ARTICLES HELD TO BE ABSOLUTE CONTRABAND. Pitch and Tar.-The Med Guds Hielpe, 1745, 1 R. P. C. 1. The Maria (No. 1), 1799, 1 R. P. C. 152. Tar, pitch, and hemp The Twee Juffrowen, 1802, 1 R. P. C. 384. 'I take it to be the established doctrine of this Court that pitch and tar are universally contraband unless protected by treaty, or unless it is shown that they are the produce of the country from which they are exported, in which latter case they are considered on the more modern and lenient application of the rule as subject to pre-emption only.' Saltpetre. The Jesus, 1756, 1 R. P. C. 6. Masts.-The Staadt Embden, 1798, 1 R. P. C. 37. Non-contraband goods part of the same cargo and the property of the same owner, were also condemned. The Charlotte (No 2), 1804, 1 R. P. C. 490. Hemp.-The Maria (No. 1), supra. The Ringende Jacob, 1798, 1 R. P. C. 60. This was decided under the Danish treaty of 1780, but the judgment declares hemp to be contraband apart from treaty. The Apollo (No. 1), 1802, I R. P. C. 368. Hemp is certainly liable to be considered as generally contraband.' In this particular case the cargo was restored as the produce of a neutral country which had exported it, although on board the ship of another neutral country. Sail-cloth. The Neptunus (No. 3), 1800, 1 R. P. C. 264. That is universally contraband, even on a destination to ports of mere mercantile naval equipment.' B. ARTICLES HELD TO BE CONDITIONAL CONTRABAND. Salt. The Jonge Tobias, 1747, 1 R. P. C. 3. Butter, Tallow. The Young Andreas, 1747, 1 R. P. C. 3. The Neptunus (No. 3), 1800, 1 R. P. C. 264. Masts. The Vryheid (No. 1), 1778, 1, R. P. C. 13. A Dutch ship bound for Rochfort with a cargo of masts for the French Government was captured. The Court ordered the cargo to be sold for the use of His Majesty, all freight expenses and charges to be paid by His Majesty.' This case appears to be in conflict with the Staadt Embden and the Charlotte (No. 2). The decision was influenced to a certain extent by the Anglo-Dutch treaty of 1674. Cheeses. The Jonge Margaretha, 1799, 1 R. P. C. 100. The leading cases on conditional contraband. The Zelden Rust, 1805, 1 R. P. C. 532. Wines. The Edward, 1801, 1 R. P. C. 350. Resin. The Nostra Signora de Begona, 1804, 1 R. P. C. 433. C. ARTICLES HELD TO BE NON-CONTRABAND. Coals. The Young Andreas, 1747, 1 R. P. C. 3. Oil, Lemons.-The St. Jacob, 1759, 1 R. P. C. 6. VIII. Food-Stuffs. The Great War opened with an altogether unjustifiable attempt on the part of Great Britain to classify as contraband all food-stuffs going into France at all, quite irrespective of the question whether they were intended for any military purpose or were attempting to enter a blockaded port. The Orders in Council of June 8, 1793, instructed British cruisers on this point: 'To detain all vessels laden with corn, flour, or meal, bound to any port in France, or any port occupied by the armies of France, and to send them into a British port in order to subject the cargoes to the right of pre-emption.' It was argued in support of these instructions that the extraordinary character of the war authorized a deviation from the ordinary maxims of international law, that it was universally recognized that provisions might become contraband when there were hopes of reducing the enemy by famine, that they might still more justly be so regarded when the distress of the enemy was occasioned by the unprecedented measures (i. e. the levée en masse) he had adopted to carry on a war, of a character equally unprecedented and which menaced the safety of the whole civilized world 1. The instructions may be explained but hardly justified by the state of public opinion at the time, by the reports of the famished condition of the Parisian populace (so vividly described by Carlyle), by the natural repugnance of order-loving Britons to the excesses of the Terror, by the feelings of horror generated by the execution of the French king, and by the burning desire to check the spread of revolutionary principles immediately and decisively. The neutral nations, Denmark, Sweden, and the United States, whose trade was grievously affected by the Orders in Council, 1 Wheaton, op. cit., p. 375. |