decisions commentaries on the law of nations, and affording a vast Judicial variety of instructive precedents for the application of the on Public principles of that law. They have also this to recommend Law. them: that they are pre-eminently distinguished for sagacity, wisdom, and learning, as well as for the chaste and classical beauties of their composition. Many of the most important principles of public law have been brought into use, and received a practical application, and been reduced to legal precision, since the age of Grotius and Puffendorf; and it is acknowledged in the United States that resort must be had to the judicial decisions of the prize tribunals in Europe, as well as in their own country, for information and authority on a great many points, on which all the leading text-books have preserved a total silence. The complexity of modern commerce has swelled, beyond all bounds, the number and intricacy of questions upon national law, and particularly upon the very comprehensive head of maritime capture. The illegality and penal consequences of trade with the enemy; the illegality of carrying enemy's despatches, or of engaging in the coasting, fishing, or other privileged trade of the enemy; the illegality of transfer of property in transitu, between the neutral and belligerent; the rules which impress upon neutral property a hostile character, arising either from the domicil of the neutral owner, or his territorial possessions, or his connexion in a house in trade in the enemy's country, are all of them doctrines in the modern international law, which are either not to be found at all, or certainly not with any fulness of discussion, and power of argument, anywhere, but in the judicial investigations to which reference has been made, and which have given the highest authority and splendour to this branch of learning. CHAPTER V. OF THE VARIOUS KINDS OF PROPERTY LIABLE TO CAPTURE. Enemy, how ac quired. Ir becomes important, in a maritime war, to determine character with precision what relations and circumstances will impress a hostile character upon persons and property, and the modern international law of the commercial world is replete with refined and complicated distinctions on this subject. It is settled, that there may be a hostile character merely as to commercial purposes, and hostility may attach only to the person as a temporary enemy, or it may attach only to property of a particular description. This hostile character, in a commercial view, or one limited to certain intents and purposes only, will attach in conse quence of having possessions in the territory of the enemy, or by maintaining a commercial establishment there, or by a personal residence, or by particular modes of traffic, as by sailing under the enemy's flag or passport. This hostile relation, growing out of particular circumstances, assumes, as valid, the distinction which has been taken between a permanent and a temporary alien enemy. A man is said to be permanently an alien enemy, when he owes a permanent allegiance to the adverse belligerent, and his hostility is commensurate in point of time with his country's quarrel. But he who does not owe a permanent allegiance to the enemy, is an enemy only during the existence and continuance of certain circumstances. A neutral, for instance, said Ch. J. Eyre', can be an alien enemy only with respect to his acts done under a local or temporary allegiance to a power at war, and, when his temporary allegiance determines, his hostile character determines also. 1 Sparenburg v. Bannatyre, 1 Bos. and Pull. 163. sion of character. It was considered by Sir Wm. Scott, in the case of the Posses Phoenix', and again in the case of the Vrow Anna Catha- the soil rina3, to be a fixed principle of maritime law, that the impresses possession of the soil impressed upon the owner the character of the country, so far as the produce of the soil was concerned, wherever the local residence of the owner might be. The produce of a hostile soil bears a hostile character for the purpose of capture, and is the subject of legitimate prize when taken in a course of transportation to any other country. The enemy's lands are supposed to be a great source of his wealth, and, perhaps, the most solid foundation of his power; and whoever owns or possesses land in the enemy's country, though he may in fact reside elsewhere, and be in every other respect a neutral or friend, must be taken to have incorporated himself with the nation, so far as he is the holder of the soil, and the produce of that soil is held to be the enemy's property, independent of the personal residence or occupa tion of the owner. The reasonableness of this principle will be acceded to by all maritime nations, and it was particularly recognised as a valid doctrine by the Supreme Court of the United States, in Bentzon v. Boyle, [where, in strict accordance with and reliance upon the principles laid down by Lord Stowell in the two cases above mentioned, it was held that the produce of an enemy's colony or other territory is to be considered as hostile property, so long as it belongs to the owner of the soil, whatever may be his national character in other respects, or wherever may be his place of residence.] If a person has a settlement in a hostile country by the maintenance of a commercial establishment there, he will be considered a hostile character, and a subject of the enemy's country, in regard to his commercial transactions connected with that establishment. The position is a clear one, that if a person goes into a foreign country, and engages in trade there, he is, by the law of nations, to be considered a merchant of that country, and a sub 25 Rob. Rep. 161. 15 Rob. Rep. 21. 39 Cranch, 191. [The reader will find this case cited at full length by Mr Wheaton in the 2nd Vol. of the Elements of Internat. Law, Part IV. Ch. 1. § 21. pp. 576-580, Edn. 1863, by W. B. Lawrence. See also the Dree Gebroeders, 4 Rob. 232.] Settle ment in a hostile country. Settle ment in a hostile country. Domicil national ject to all civil purposes, whether that country be hostile or neutral, and he cannot be permitted to retain the privileges of a neutral character during his residence and occupation in an enemy's country'. This general rule has been applied by the English courts to the case of Englishmen residing in a neutral country, and they are admitted, in respect of their bond fide trade, to the privileges of the neutral character. In the case of the Danous, the rule was laid down by the English House of Lords in 1802, in unrestricted terms, and a British born subject, resident in Portugal, was allowed the benefit of the Portguese character, so far as to render his trade with Holland, then at war with England, not impeachable as an illegal trade. The same rule was afterwards applied to a natural born British subject domiciled in the United States, and it was held, that he might lawfully trade to a country at war with England, but at peace with the United States. This same principle, that for all commercial purposes, the test of the domicil of the party, without reference to the place character. of birth, becomes the test of national character, has been repeatedly and explicitly admitted in the courts of the United States. If he resides in a belligerent country his property is liable to capture as enemy's property, and if he resides in a neutral country he enjoys all the privileges, and is subjected to all the inconveniences, of the neutral trade. He takes the advantages and disadvantages, whatever they may be, of the country of his residence'. This doctrine is founded on the principles of 1 Wilson v. Maryat, 8 T. R. 31. McConnell v. Hector, 3 Bos. and Pull. 113. The Indian Chief, 3 Rob. 12. The Anna Catharina, 4 Rob. 107. The President, 5 Rob. 277. The Matchless, 1 Hagg, Adm. Rep. 103, 104. [O'Mealey v. Wilson, 1 Campb. 482. Albrecht v. Sussmann, 2 Ves. and B. 323. The Aina, Ì Spinks (Ecc. and Adm.) 315.] 2 McConnell v. Hector, 3 Bos. and Pull. 113. The Emanuel, 1 Rob. 249. 3 Cited in 4 Rob. 255, note. Murray v. Schooner Cranch, 488. Living 4 Bell v. Reid, 1 Maule and Selw. 726. 5 Case of the sloop Chester, 2 Dallas, 41. Betsey, 2 Cranch, 64. Maley v. Shattuck, 3 ston v. Maryland Ins. Co. 7 Cranch, 506. The Venus, 8 Cranch, 253. The Frances, 8 Cranch, 363. [San Jose Indiano and cargo, 2 Gallison, 28. The judgment in the case of the Venus is cited at character. national law, and it accords with the reason and practice Enemy, of all civilized nations. Migrans Jura amittit ac Privi- Domicil legia et immunitates domicilii prioris'. A person is not the test. however to be permitted to acquire a neutral domicil, that will protect such a trade in opposition to the belligerent claims of his native country, if he emigrates from that country flagrante bello. [Vattel denies the right of emigration in a war in which his country is involved. In the Dos Hermanos this doctrine was upheld as well settled law, and, in his remarks upon it, Mr Duer says, that the ground of the doctrine is that there rests upon every subject or citizen a moral obligation not to abandon his country in time of war without the express sanction of the government. "It is for these reasons," says the learned author here referred to, "that the principle in question has been sanctioned by many of the most approved writers on the law of nations, and although not ́expressly approved, as far as I can discover, by any decision of the English Admiralty, I doubt not that its authority would be promptly admitted and followed by the court." Mr Arnould, too, cites the principle with approval "as founded on a decision that seems thoroughly well founded"."] : The only limitation upon the principle of determining the character from residence, is, that the party must not be found in hostility to his native country. He must do nothing inconsistent with his native allegiance, and this qualification is annexed to the rule by Sir William Scott in the case of the Emanuel, and the same qualification exists in the French law, as well since as before their revolution. It has been questioned whether the rule does not go too far, even with this restriction; but it appears to be too well and solidly settled to be now shaken. full length in Wheaton's Elements, Vol. 11. pp. 565–572. Edn. 1863, by W. B. Lawrence.] 1 Voet, Com. ad Pand. Tom. I. 347, § 99. See also Story, Conflict of Laws, ch. 1. § 48. The Dos Hermanos, 2 Wheaton, 76. [Vattel, Bk. 1. Ch. xIx. $$ 220, 223. 1 Duer, On Insurance, 523. 1 Arnould, On Insurance, 113.] 31 Rob. Rep. 249. Code Napoleon, Articles 17, 21. [For a description of these Articles, the reader is referred to Macardé, Explication du Code, 5ième edn. T. 1. pp. 209-226.] Pothier's Traité du droit de Propriété, No. 94. Limita tion of the test from resi dence. |