LECTURE IV.

OF THE VARIOUS KINDS OF PROPERTY LIABLE TO CAPTURE.

IT becomes important, in a maritime war, to determine 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 consequence 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, (a) 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.

It was considered by Sir William Scott, in the case of the Phenix, (a) and again in the case of the Vrow Anna Catharina, (b) to be a fixed principle of maritime law, that the posses

(a) Sparenburgh v. Bannatyne, 1 Bos. & Pull. 163.
(a) 5 C. Rob. 20.

(b) 5 C. Rob. 161.

sion 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 a holder of the soil; and the produce of that soil is held to be enemy's property, independent of the personal residence or occupation of the owner. The reasonableness of this principle will be acceded to by all maritime nations; and it was particularly recognized as a valid doctrine by the Supreme Court of the United States, in Bentzon v. Boyle. (c)1

1. Domicile in the Enemy's Country. - 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 subject for all civil purpose, whether that country be hostile or neutral; * 75 and he cannot be permitted to retain the privileges of a neutral character, during his residence and occupation in an enemy's country. (a) This general rule has been applied by

(c) 9 Cranch, 191.

(a) Wilson v. Marryat, 8 T. R. 31; M'Connell v. Hector, 3 Bos. & Pull. 113; The Indian Chief, 3 C. Rob. 12; The Anna Catharina, 4 C. Rob. 107; The President, 5 C. Rob. 277; Lord Stowell [in The Matchless], 1 Hagg. Adm. 103, 104.

1 The Crenshaw, Blatchf. Pr. 2, 27; temporary occupation of neutral terriThe Mary Clinton, ib. 556.

1 Ante, 44, n. 1; The Abo, 1 Spinks, Ad. & Ec. 347; The Aina, ib. 313, 28 Eng. Law & Eq. 600; The Gerasimo, 11 Moore, P. C. 88; but sometimes, as in this case, it is a question whether the place of residence is enemy's country or not. A

tory by an enemy's force does not necessarily give it a hostile character. But actual and firm possession by one power or the other determines the character of the place for the time being. Wheat. Dana's note 160.

As to domicile, see ii. 430, n. 1.

the English courts to the case of Englishmen residing in a neutral country, and they are admitted, in respect to their bona fide trade, to the privileges of the neutral character. (b) In the case of the Danous, (c) 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 Portuguese 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 (d) 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 domicile of the party, without reference to the place 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 subject to all the inconveniences,

*

of the neutral trade. He takes the advantages and dis* 76 advantages, whatever they may be, of the country of his residence. (a) The doctrine is founded on the principles of national law, and accords with the reason and practice of all civilized nations. Migrans jura amittat ac privilegia et immunitates domicilii prioris. (b) A person is not, however, permitted to acquire a neutral domicile that will protect such a trade in opposition to the belligerent claims of his native country, if he emigrate from that country flagrante bello. (c) Vattel (d) denies explicitly the right of emigration in a war in which his country is involved. It would be a criminal act. (e) This doctrine is considered as settled in the United States. (ƒ)

(b) M'Connell v. Hector, 3 Bos. & Pull. 113; The Emanuel, 1 C. Rob. 296.

(c) Cited in 4 C. Rob. 255, note.

(d) Bell v. Reid, 1 Maule & Selw. 726.

(a) Case of the Sloop Chester, 2 Dallas, 41; Murray v. Schooner Betsey, 2 Cranch, 64; Maley v. Shattuck, 3 Cranch, 488; Livingston v. Maryland Insurance Co.,

7 Cranch, 506; The Venus, 8 Cranch, 253; The Frances, 8 Cranch, 363.

(b) Voet, Comm. ad Pand. i. 347.

(c) The Dos Hermanos, 2 Wheaton, 76.

(d) B. 1, c. 19, sec. 220-223.

(e) See also, to the same effect, Grotius, lib. 2, c. 5, sec. 2. Puffendorf par Barbeyrac, b. 8, c. 11, sec. 3.

(ƒ) Duer on Insurance, i. 521.

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. (g) 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.

2. Residence in the Enemy's Country. It has been a question admitting of much discussion and difficulty, arising from the complicated character of commercial speculations, what state of facts constitutes a residence so as to change or fix the commercial character of the party. The animus manendi appears to have been the point to be settled. The presumption, arising from actual residence in any place, is, that the party is there animo manendi, and it lies upon him to remove the presumption, if it should be requisite for his safety. (h) If the intention to establish a permanent residence be ascertained, the recency of the * 77 establishment, though it may have been for a day only, is immaterial. If there be no such intention, and the residence be involuntary or constrained, then a residence, however long, does not change the original character of the party, or give him a new and hostile one. (a) But the circumstances requisite to establish the domicile are flexible, and easily accommodated to the real truth and equity of the case. Thus it requires fewer circumstances to constitute domicile in the case of a native subject, who returns to reassume his original character, than it does to impress the national character on a stranger. (b) The quo animo is, in each case, the real subject of inquiry; and when the residence exists freely, without force or restraint, it is usually held to be complete, whether it be an actual or only an implied residence.

When the residence is once fixed, and has communicated a national character to the party, it is not divested by a periodical

(g) 1 C. Rob. 296; Code Napoleon, Nos. 17, 21; Pothier's Traité du Droit de Propriété, No. 94.

(h) The Bernon, 1 C. Roh. 102.

(a) The Diana, 5 C. Rob. 60; The Ocean, 5 C. Rob. 90.

(b) La Virginie, 5 C. Rob. 99.

absence, or even by occasional visits to his native country. (e) Nor is it invariably necessary that the residence be personal, in order to impress a person with a national character. The general rule undoubtedly is, that a neutral merchant may trade in the ordinary manner to the country of a belligerent, by means of a stationed agent there, and yet not contract the character of a domiciled person. But if the principal be trading, not on the ordinary footing of a foreign merchant, but as a privileged trader of the enemy, such a privileged trade puts him on the same ground with their own subjects, and he would be considered as sufficiently invested with the national character by the residence

of his agent. Sir William Scott, in the case of the Anna *78 Catherina, (d) applied this distinction to the case of *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. (a) 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 (b) 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) 1

A national character, acquired by residence, may be thrown off at pleasure by a return to the native country. It is an ad(c) 1 Acton, 116; 9 Cranch, 414; Marshall, Ch. J., The Friendschaft, 3 Wheaton, 14.

(d) 4 C. Rob. 107.

(a) The San Jose Indiano, 2 Gallison, 268. In this case, says Mr. Duer, in his work on Insurance, i. 527, the language of Mr. Justice Story reflects the spirit and emulates the style of the illustrious judge whose doctrines he adopts and defends. (b) The Dree Gebroeders, 4 C. Rob. 232.

(c) Vattel, b. 4, c. 8, sec. 114; The Indian Chief, 3 C. Rob. 22; Albretcht v. Sussmann, 2 Ves. & Bea. 323; Arnold v. U. I. Company, 1 Johns. Cas. 363.

1 Cases cited, ante, 44, n. 1.