has already directed, in advance of any treaty of peace, that property in the hands of the custodian shall be returned in certain classes of cases to its owners, and in particular where the owner is a woman who at the time of her marriage was a nativeborn citizen of the United States and prior to April 6, 1917, intermarried with a subject or citizen of Germany or Austria-Hungary (Act of June 5, 1920, amending sec. 9 of the act of Oct. 6, 1917). It follows that even in its application to aliens in hostile territory, the maintenance of this treaty is in harmony with the nation's policy and consistent with the nation's welfare. To the extent that there is conflict between the treaty and the statute (40 Stat. ch. 106), we have the same situation that arises whenever there is an implied repeal of one law by another. To the extent that they are in harmony, both are still in force. There is in truth no conflict here except in points of detail. In fundamental principle and purpose, the treaty remains untouched by later legislation. In keeping it alive, we uphold the policy of the nation, revealed in acts of Congress and proclamations of the President, "to conduct ourselves as belligerents in a high spirit of right and fairness" (President Wilson's Address to Congress, April 2, 1917; Scott, Diplomatic Correspondence between United States and Germany, p. 324), without hatred of race and without taint of self-seeking.

I do not overlook the statements which may be found here and there in the works of authors of distinction (Hall, supra; Halleck Int. L. (4th ed.) 314; Wheaton, Int. L. (5th ed.) 377) that treaties of commerce and navigation are to be ranked in the class of treaties which war abrogates or at least suspends. Commerce is friendly intercourse. Friendly intercourse between nations is impossible in war. Therefore, treaties regulating such intercourse are not operative in war. But stipulations do not touch commerce because they happen to be embodied in a treaty which is styled one to regulate or encourage commerce. We must be on our guard against being misled by labels. Bluntschli's warning, already quoted, reminds us that the nature and not the name of covenants determines whether they shall be disregarded or observed. There is a line of division, fundamental in importance, which separates stipulations touching commerce between nations from those touching the tenure of land within the territories of nations (Cf. The Convention "as to tenure and disposition of real and personal property" between the U. S. & Great Britain dated March 2, 1899). Restrictions

upon ownership of land by aliens have a history all their own, unrelated altogether to restrictions upon trade (Kershaw v. Kelsey, supra; Fairfax v. Hunter, supra). When removed, they cease to exist for enemies as well as friends, unless the statute removing them enforces a distinction (Kershaw v. Kelsey, Fairfax v. Hunter, supra). More than that, the removal, when effected by treaty, gives reciprocal privileges to the subjects of each state, and is thus of value to one side as much as to the other. For this reason, the inference is a strong one, as was pointed out by the Master of the Rolls in Sutton v. Sutton (1 Russ & M. 664, 675) that the privileges, unless expressly revoked, are intended to endure (Cf. 2 Westlake, p. 33; also Halleck, Int. L., supra). There, as in Society for the Propagation of the Gospel v. Town of New Haven (8 Wheat. 464, 494), the treaty of 1794 between the United States and England protecting the citizens of each in the enjoyment of their landed property, was held not to have been abrogated by the war of 1812. Undoubtedly there is a distinction between those cases and this in that there the rights had become vested before the outbreak of the war. None the less, alike in reasoning and in conclusion, they have their value and significance. If stipulations governing the tenure of land survive the stress of war though contained in a treaty which is described as one of amity, it is not perceived why they may not also survive though contained in a treaty which is described as one of commerce. In preserving the right of inheritance for citizens of Austria when the land inherited is here, we preserve the same right for our citizens when the land inherited is there (Brown v. U. S., 8 Cranch 110, 129). Congress has not yet commanded us, and the exigencies of war, as I view them, do not constrain us, to throw these benefits away.

No one can study the vague and wavering statements of treatise and decision in this field of international law with any feeling of assurance at the end that he has chosen the right path. One looks in vain either for uniformity of doctrine or for scientific accuracy of exposition. There are wise cautions for the statesman. There are few precepts for the judge. All the more, in this uncertainty, I am impelled to the belief that until the political departments have acted, the courts, in refusing to give effect to treaties, should limit their refusal to the needs of the occasion; that they are not bound by any rigid formula to nullify the whole or nothing; and that in determining whether this treaty survived the coming of war, they are free to make choice

of the conclusion which shall seem the most in keeping with the traditions of the law, the policy of the statutes, the dictates of fair dealing, and the honor of the nation.

The judgment should be affirmed with costs, and the question certified answered in the affirmative.

HISCOCK, Ch. J., CHASE, HOGAN, MCLAUGHLIN and CRANE, JJ., concur; ELKUS, J., concurs in result.

Judgment affirmed.

NOTE.-See The Frau Ilsabe (1801), 4 C. Robinson, 63; Carneal Banks (1825), 10 Wheaton, 181; Sutton v. Sutton (1830), 1 Russel & Mylne, 663. As to the nature of the treaty of peace of 1783 between Great Britain and the United States, see M'Ilvaine v. Cox's Lessee (1808), 4 Cranch, 209; Harcourt v. Gaillard (1827), 12 Wheaton, 523. The character of the treaty of 1783 played an important part in the American argument in the North Atlantic Fisheries Arbitration. For further discussion of the subject, see Crandall, Treaties-Their Making and Enforcement, sec. 181; Butler, The Treaty-Making Power of the United States; Wheaton (Dana), 342, (Phillipson), 368; Pitt Cobbett, Cases and Opinions, II. 35; Hyde, II. 91; Bonfils (Fauchille), sec. 1049; Moore, Digest, V. sec. 779, 780.

CHAPTER XII.

ENEMY CHARACTER.

SECTION 1. NATURAL PERSONS.

THE HARMONY.

HIGH COURT OF ADMIRALTY OF ENGLAND. 1800.

2 C. Robinson, 322.

This was one of several American vessels in which a claim had been reserved for part of the cargo, on further proof to be made of the national character of G. W. Murray, who appeared in the original case, as a partner of a house of trade in America, but personally resident in France; restitution had been decreed in the several claims to the house of trade in America, with a reservation of the share of this partner. [It appeared

in evidence that G. W. Murray, an American citizen, had gone to France in 1794 to dispose of a cargo belonging to his firm. He remained a year, and after a visit of about six months to America, he returned to France and four years later was still in that country. The court construed this as a continuous residence of six years in France. The claimant argued that these facts did not show a domicile in France.]

SIR W. SCOTT [LORD STOWELL]-This is a question which arises on several parcels of property claimed on behalf of G. W. Murray; and it is in all of them a question of residence or domicil, which I have often had occasion to observe, is in itself a question of considerable difficulty, depending on a great variety of circumstances, hardly capable of being defined by any general precise rules: The active spirit of commerce now abroad in the world, still farther increases this difficulty by increasing the variety of local situations, in which the same individual is to be found at no great distance of time; and by that sort of extended

circulation, if I may so call it, by which the same transaction communicates with different countries, as in the present cases, in which the same trading adventures have their origin (perhaps) in America, travel to France, from France to England, from England back to America again, without enabling us to assign accurately the exact legal effect of the local character of every particular portion of this divided transaction.

In deciding such cases, the necessary freedom of commerce imposes likewise the duty of a particular attention and delicacy; and strict principle of law must not be pressed too eagerly against it; and I have before had occasion to remark, that the particular situation of America, in respect to distance, seems still more particularly to entitle the merchants of that country to some favourable distinctions. They live at a great distance from Europe; they have not the same open and ready constant correspondence with individuals of the several nations of Europe, that these persons have with each other; they are on that very account more likely to have their mercantile confidence in Europe abused, and therefore to have more frequent calls for a personal attendance to their own concerns; and it is to be expected that when the necessity of their affairs calls them across the Atlantic, they should make rather a longer stay in the country where they are called, than foreign merchants who step from a neighboring country in Europe, to which every day offers a convenient opportunity of return.

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 upon 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 a matter of just reproach though the fact may be true), on the laws of this country, that it may last as long as himself. Some suits are famous in our juridical his