a neutral, invested with the privileges of a Spanish merchant, and the full benefit of the Spanish character; and this case has been followed to its fullest extent in this country. It affords a sample of that piercing and unwearied investigation which the courts of admiralty have displayed, in unravelling the intricate process, by which an enemy's trade was attempted to be protected from hostile seizure, and in the application of sound principles of national law to new and complex cases. On the same ground it has been decided, that an American consul general in Scotland, committing his whole duty to vice-consuls, was deemed to have lost his neutral character by engaging in trade in France; and it is well settled, that if a foreign consul carries on trade as a merchant, in an enemy's country, his consular residence and character will not protect that trade from interruption by seizure and condemnation as enemy's property.c A national character acquired by residence, may be thrown off at pleasure, by a return to the native country. It is an adventitious character, and ceases by non-residence, or when the party puts himself in motion bona fide, to quit the country sine animo revertendi, and such an intention is essential in order to enable the party to reassume his native character. In the case of the Venus, the decisions of the English courts on the subject of national character acquired by residence, and on the consequences of such acquired character, were recognised as being founded on sound principles of public law. It was declared, that the law of nations distinguishes between a temporary residence in a fo e a The Indiano, 2 Gallison, 268. b 4 Rob. Rep. 232, The Dree Gebroeders. c Vattel, b. 4. c. 8. sec. 114. 3 Rob. Rep. 22. The Indian Chief. 2 Ves. & Bea. 323. Albrecht v. Sussinan. 1 Johns. Cas. 363. Arnold and Ramsay v. U. I. Company. d 3 Rob. 12. The Indian Chief. 3 Wheaton, 14. The Friendschaft. e 8 Cranch, 253. reign country for a special purpose, and a residence accompanied with an intention to make it the party's domicil, or permanent place of abode; and that the doctrine of the prize courts, and the common law courts of England, was the same on this subject with that of the public jurists. As a consequence of the doctrine of domicil, the court decided, that if a citizen of the United States should establish his commercial domicil in a foreign country, and hostilities should afterwards break out between that country and the United States, his property, shipped before knowledge of the war, and while that domicil continued, would be liable to capture, on the ground, that his permanent residence had stamped him with the national character of that country. The hostile character was deemed to attach to the American citizen, only in respect to his property connected with his residence in the enemy's country, and the converse of the proposition was also true, that the subject of a belligerent state, domiciled in a neutral country, was to be considered a neutral by both the belligerents, in reference to his trade. The doctrine of enemy's property, arising from a domicil in an enemy's country, is taken strictly; and equitable qualifications of the rule are generally disallowed, for the sake of preventing frauds on belligerent rights, and to give the rule more precision and certainty. In the law of nations as to Europe, the rule is, that men take their national character from the general character of the country in which they reside, and this rule applies equally to America, But in Asia and Africa an immiscible character is kept up, and Europeans, trading under the protection of a factory, take their national character from the establishment under which they live and trade. This rule applies to those parts of the world from obvious reasons of policy, because foreigners are not admitted there, as in Europe," and the western part of the world," into the general body and mass of the society of the nation, but they continue strangers and sojourners, not acquiring any na tional character, under the general sovereignty of the country. National character may be acquired in consideration of the traffic in which the party is concerned. If a person connects himself with a house of trade in the enemy's country, in time of war, or continues, during a war, a connexion formed in a time of peace, he cannot protect himself by having his domicil in a neutral country. He is considered as impressed with a hostile character, in reference to so much of his commerce as may be connected with that establishment. The rule is the same, whether he maintains that establishment as a partner or as a sole trader. The Supreme Court of the United States, referring to the English prize cases on this subject, observed, that they considered the rule to be inflexibly settled, and that they were not at liberty to depart from it, whatever doubt might have been entertained, if the case was entirely new. But though a belligerent has a right to consider as enemies, all persons who reside in a hostile country, or maintain commercial establishments there, whether they be by birth neutrals, or allies, or fellow subjects, yet the rule is accompanied with this equitable qualification: that they are enemies sub modo only, or in reference to so much of their property as is connected with that residence or establishment. This nice and subtle distinction allows a merchant to act in two characters, so as to protect his property connected with his house in a neutral country, and to subject to seizure and forfeiture his effects belonging to the establishment in the belligerent country. So there may be a partnership between two persons, the one residing in a neutral, and the other in a belligerent country, and the trade of one a 3 Rob. Rep. 22. The Indian Chief. b The Vigilantia, 1 Rob. Rep. 1. The Portland, 3 Rob. 41. The Indiano, 2 Gallison, 268. The Antonia Johanna, 1 Wheaton, 159. The Friendschaft, 4 Wheaton, 105. of them, with the enemy, will be held lawful, and that of the other unlawful, and consequently the share of one partner in the joint traffic will be condemned, while that of the other will be restored. This distinction has been frequently sustained, notwithstanding the difficulties that may attend the discrimination between the innocent and the noxious trade, and the rule has been introduced into the maritime law of this country. a Trade of the The next mode in which a hostile character may be im-Colonial pressed, according to the doctrine of the English courts, is Enemy. by dealing in those branches of commerce which were confined, in time of peace, to the subjects of the enemy. There can be no doubt, that a special license, granted by a belligerent to a neutral vessel, to trade to her colony, with all the privileges of a native vessel, in those branches of commerce which were before confined to native subjects, would warrant the presumption that such vessel was adopted and naturalized, or that such permission was granted in fraud of the belligerent right of capture, and the property so covered may reasonably be regarded as enemy's property. This was the doctrine in the case of Berens v. Rucker, as early as 1760. But the English rule goes further, and it annexes a hostile character, and the penal consequences of confiscation, to the ship and cargo of a neutral engaged in the colonial or coasting trade of the enemy, not open to foreigners in time of peace, but confined to native subjects by the fundamental regulations of the state. This prohibition stands upon two grounds: 1st. That if the coasting or colonial trade, reserved by the permanent policy of a nation to its own subjects and vessels, be opened to neutrals during war, the act proceeds from the pressure of the naval force of the enemy, and to obtain relief from that pressure. The neutral who interposes to relieve the belligerent, under such circum a The Portland, 3 Rob. Rep. 41. The Herman, 4 Rob. 228. The, Jonge Classina, 5 Rob. 297. The San Jose Indiano, 2 Gall. 268. b 1 Wm. Black. Rep. 313. Rule of 1756. stances, rescues him from the condition to which the arms of his enemy had reduced him, restores to him those resources which had been wrested from him by the arms of his adversary, and deprives that adversary of the advantages which successful war had given him. This the opposing belligerent pronounces a departure from neutrality, and an interference in the war, to his prejudice. 2d. If the trade be not opened by law, the neutral employed in a trade reserved by the enemy to his own vessels, identifies himself with that enemy, and assumes his character. These principles first became a subject of interesting discussion in the war of 1756, and they are generally known in England, and in this country, by the appellation of the rule of 1756; but the rule is said to have been asserted before that period. In the letter of Puffendorf to Groningius, published in 1701, he says, that the English and the Dutch were willing to leave to neutrals the commerce they were accustomed to carry on in time of peace, but were not willing to allow them to avail themselves of the war to augment it, to the prejudice of the English and the Dutch. The French ordinance of 1704, has been considered as founded upon the basis of the same rule, and its regulations made to enforce it, and to preserve to neutrals the same trade which they had been accustomed to enjoy in peace. There is some evidence, also, that in the reign of Charles II. neutral vessels were considered, both by England and Holland, to be liable to capture and condemnation, for being concerned in the coasting trade of the enemy. The Dutch, at that day, contended for this neutral exclusion, on the authority of general reasoning and the practice of nations; and the same rule is said to have been asserted in the English courts, in the war of 1741, and the exclusion of neutral vessels from the coasting trade of the enemy, was declared to stand upon a Puff. Droit des Gens, par Barbeyrac, tom. 2. 558. |