national law, and the term "British subjects," as defining claimants, was omitted by express intention. There is no question whatever as to Thomas H. Cooper having been during all the period in question, and up to the close of the sitting of this commission at Victoria, legally domiciled in the United States. The fact of residence in New York and San Francisco for more than forty years continuously was testified to by Warren and by Cooper. (See Record, pp. 940, 1267, 1836-37, 941, 951.)

The United States did not choose to call out anything farther regarding the undoubted fact of that residence, and Great Britain did not seek to explain it. It was found by the testimony that Cooper was a married man and had resided in the United States and made his home at San Francisco for more than thirty-five years continuously, and that he had never been to Victoria but three times, and then only for a few days at a time on visits.

It is universally held that residence unexplained is conclusive proof of domicile.

Dicey states the rules of evidence as follows (see Dicey on "Conflict of Laws," American notes by J. B. Moore, 1896, p. 132):

(1) A person's presence in a country is presumptive evidence of domicile.

(2) When a person is known to have had a domicile in a given country, he is presumed, in absence of proof of a change, to retain such domicile.

(3) Residence in a country is prima facie evidence of the intention to reside there permanently (animus manendi), and in so far evidence of domicile.

See cases, and see Sir W. Scott, so often quoted on this subject: "Time is the grand ingredient in constituting domicile." (The Harmony, 1800, 2 C. Rob., 322; see Dicey, p. 137, note.)

"Residence is prima facie evidence of domicile." (Sir Sherston Baker's Halleck, Vol. I, p. 421.)

Phillimore on Domicile, page 146, says:

Every man is viewed by the law of nations as a member of the society in which he is found. Residence is prima facie 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 domicile, superadding to the original or prior character the rights and privileges, as well as the disa bilities and penalties of a citizen, a subject of the country in which the residence is established.

(Cited in arguments with Dr. Phillimore in Uhdes case, in report of decisions, Commission for the Settlement of Claims between Great Britain and the United States, U. S., 1856, p. 445.)

To the same effect see "The Indian Chief," Rob. Adm. Reports, 3-12, and collection of authorities, and their analysis in Dana's Wheaton, sec. 322 et seq., showing the British and American authorities in harmony.

In I Binney's Report (p. 349), domicile is defined as "residence at a particular place accompanied with positive or presumptive proof of continuing there for an unlimited time.'

The logical positions of Great Britain as to Cooper are these:

(a) That his ownership of the vessels seized must be taken as conclusive. (In this we fully agree, but on other and distinct grounds from those taken by Great Britain.)

(b) That although domiciled in the United States since boyhood, and for nearly half a century, because he was not naturalized, and because he was an original British subject, he could, under the municipal laws of Great Britain, take out a British registry for his ships, and put them under the British flag.

(e) That so domiciled, by virtue of such registry and flag alone, in direct violation of the municipal laws

of the United States of exterritorial force, and in direct violation of their criminal statutes, also of exterritorial force, and in direct defiance of the national claim and assertion of jurisdiction over the sealing waters of Bering Sea (a sovereign claim made authoritatively by all the branches of the Government) he could send his vessels to take seals in those waters.

(d) That concurrently with his, the vessels of Cooper's neighbors in San Francisco, who were nativeborn citizens of the United States, protected no more than himself by the laws of the United States, having been sent by them to take seals in the same waters, may be seized and condemned, under those laws, while at the same time their owners, his neighbors and fellow-citizens of thirty-five years, witness his fleets go and come, and take seals with impunity.

(e) That if in these circumstances the United States enforced the law alike and with equal hand upon the property of all their citizens of San Francisco, be he à citizen by domicile or like his neighbors by nativity or naturalization, that Cooper, by reason of his original political allegiance and by having put his vessels in a British registry and under a British flag, is a person on account of whom, for these penalties that he has suffered, and while still retaining his American domicile, Great Britain can claim compensation from the United States.

We affirm that no such monstrous doctrine can be tolerated for a moment.

In such circumstances the citizen by domicile (for that is what he is) can not lay aside his character as "national" of the United States whenever he sees fit to defy the same sovereignty and the same laws that protect him, by asserting his original political allegiance and the fact that he has not gone through the form of naturalization.

Much less can he call upon the country of his

original allegiance to make reclamation for him against the nation of his actual allegiance for what he has suffered for violation of the latter's laws.

We quote from the language of Secretary Fish, in his letter to Mr. Bachiller of April 8, 1874 (2 Wharton's Dig., sec. 215), the principle involved:

It would be a monstrous doctrine, which this Government would not tolerate for a moment, that a citizen of the United States who might deem himself injured by the authorities of the United States could, by transferring his allegiance to another power, confer upon that power the right to inquire into the legality of the proceedings by which he may have been injured while a citizen.

Protection can not be invoked by domiciled foreigners, except for discrimination and arbitrary acts "as distinguished from penalties and punishments incurred by the infraction of the laws of the country within whose jurisdiction the sufferers have placed themselves." (2 Wharton's Dig., sec. 189, p. 434, and authorities.)

And I Kent, p. 76: "Domicile is the test of national character."

Lord Stowell (I Dod. Adm., p. 224, The Ann):

A person domiciled in another country is to be taken as a subject of such country. * He can not take advantage

of both characters at the same time.

Bluntschli (Int. Law codified, sec. 394):

Certain persons may, in rare instances, be under the jurisdiction of two different States or even a greater number of States.

In case of conflict the preference will be given to the State in which the individual or family in question have their domicile; their rights in the States where they do not reside will be considered as suspended.

Said Mr. Webster, in his report to the President of the United States in Thrasher's case (6 Web. Works, pp. 522-523):

The general rule of the public law is that every person of full age has a right to change his domicile, and it follows that when he removes to another place with the intention to

make that place his permanent residence, or his residence for an indefinite period, it becomes instantly his place of domicile. It is well known that hundreds of thousands of persons are now living in this country who have not been naturalized according to the provisions of law, nor sworn any allegiance to this Government.

What would be the condition of this country and its Government if the sovereigns of Europe, from whose dominions they have emigrated, were supposed to have still a right to interpose to protect such inhabitants against the penalties which might be justly incurred by them in consequence of their violation of the laws of the United States?

In questions on this subject the chief point to be considered is the animus manendi, and this must be decided by reasonable rules and the general principles of evidence.

Mr. Marcy, Secretary of State, September 26, 1853, in Koszta case, as quoted in 2 Whart. Dig., sec. 198, p. 485:

Such domiciled citizen * is under the bonds of allegiance to the country of his residence, and if he breaks them, incurs the same penalties; he owes the same obedience to the civil laws and must discharge the duties they impose on him.

It is to be noted that in the Koszta case the right was asserted by the United States to protect a domiciled person, although unnaturalized, against every nation except the nation of his original citizenship.* (See id., p. 505.)

See also Marshall, C. J, in Murray v. Charming Betsey (2 Cranch, p. 120); Carlisle v. United States (16 Wall., p. 147).

Wharton, in his Criminal Law (8th edition, sec. 269-281), quotes Phillimore to the point that a man can have only one allegiance, and proceeds:

But I must agree with Heffter in holding that a mere resident in a State owes for the time being allegiance to such State, and may be guilty of treason to such State if as a

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This distinction is not in point here, but attention is called to it in connection with the question of original allegiance, considered later. Here the United States is not asserting the right to protect Cooper for violation of the laws of Great Britain, but is denying the right of Great Britain to protect Cooper in his defiance of the sovereignty and violation of the laws of the United States.