ventitious 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. (d) 1 In the case of the Venus, (e) the decisions of the English courts on the subject of national character acquired by residence, and on the consequences of such acquired character, were recognized as being founded on sound principles of public law. It was declared that the law of nations distinguishes between a temporary residence in a foreign purpose, and a residence, accompanied with an intention to make it the party's domicile, 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 domicile, the court decided that if a citizen of the United States should establish his commercial domicile in a foreign country, and hostilities should afterwards break out between that country and the

country for a special * 79

(d) The Indian Chief, 3 C. Rob. 12; The Friendschaft, 3 Wheaton, 14.

(e) 8 Cranch, 253. In this case, Ch. J. Marshall dissented from the decision of the court, and contended that a commercial domicile, wholly acquired in time of peace, ceased at the commencement of hostilities, which superseded the motives that alone induced the foreign residence; that the presumption of an intention to return to the native country at the first opportunity was to be entertained; and that this presumption ought to shield the property from condemnation until delay or circumstances should destroy that presumption. Mr. Duer, in his Treatise on Insurance, i. 494–508, considers this opinion of the Ch. J. as exceedingly able, and he evidently concurs in that opinion. There is no doubt of its superior solidity and justice.

1 United States v. Guillem, 11 How. 47; The Amy Warwick, 2 Sprague, 143; s. c. 2 Black, 635, 674. A foreigner residing in a country, if a war breaks out between that country and another, is allowed a reasonable time for leaving it and withdrawing his business connections. The Gerasimo, 11 Moore, P. C. 88; The Ariel, ib. 119, 127. And a like rule was applied in favor of citizens of Northern States temporarily residing or having business relations with the South at the beginning of the late war. The Sarah Starr, Blatch. Pr. 650; 69; 52 Bales of Cotton, ib. 644; The John Gilpin, ib.

C61; The William Bagaley, 5 Wall. 377; The Gray Jacket, ib. 342, 370; The Peterhoff, ib. 28, 60; [Gates v. Goodloe, 101 U. S. 612.] The property of persons remaining within the Southern lines was treated as enemy property, without regard to personal disposition. See cases last cited, and the Prize Cases, 2 Black, 635; Mrs. Alexander's Cotton, 2 Wall. 404; Flying Scud, 6 Wall. 263; Miller v. United States, 11 Wall. 268, 306; Elgee v. Lovell, 1 Woolw. 102; The Adelso, 11 Op. Att.-Gen. 445, 451; cf. 15 U. S. St. at L. 75, § 3; and see El Telegrafo, Newb. 383.

United States, his property, shipped before knowledge of the war, and while that domicile 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 domicile in an enemy's country, is enforced 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, *80 not acquiring any national character under the general

sovereignty of the country: (a) 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 connection formed in a time of peace, he cannot protect himself by having his domicile 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.1 The rule is the same,

(a) The Indian Chief, 3 C. Rob. 22; [ante, 42, n. 1.]

1 The William Bagaley, 5 Wall. 377; The Gray Jacket, ib. 342; The Cheshire, 3 Wall. 231; s. c. Blatchf. Pr. 151.

whether he maintains that establishment as a partner or as a sole trader. (b) 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 of *81 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) y1

*

3. Colonial Trade. - The next mode in which a hostile character may be impressed, according to the doctrine of the English courts, is 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

(b) The Vigilantia, 1 C. Rob. 1; The Portland, 3 C. Rob. 41; The San Jose Indiano, 2 Gallison, 268; The Antonia Johanna, 1 Wheaton, 159; The Friendschaft, 4 Wheaton, 105.

(a) The Portland, 3 C. Rob. 41; The Herman, 4 C. Rob. 228; The Jonge Klassina, 5 C. Rob. 297; The San Jose Indiano, 2 Gallison, 268.

yl Hall, Int. Law, pt. 3, c. 6, on "Enemy Character." It is to be observed that property may be liable to capture either because it is an enemy's property, or because it is itself hostile in origin or in the

purpose to which it is intended to be put. Thus cotton within the enemy's lines was liable to capture though belonging to a British subject. Young v. United States, 97 U. S. 39.

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. (b) 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 open 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 circumstances, * rescues him from the condition to which the arms of his enemy had reduced him, restores to him those resources which have 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.

82

In the letter of Puffendorf to Groningius, published in 1701, (a) 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

(b) 1 Wm. Bl. 313. See also the case of The Princessa, 2 C. Rob. 52; The Anna Catharina, 4 C. Rob. 107; The Rendsborg, 4 C. Rob. 121; The Vrow Anna Catharina, 5 C. Rob. 15.

(a) Puff. Droit des Gens, par Barbeyrac, ii. 558.

of the war to augment it, to the prejudice of the English and the Dutch. The French ordinances of 1704 and 1744 (b) have been considered as founded upon the basis of the same rule, and regulations are made to enforce it, and to preserve to neutrals the same trade which they had been accustomed to enjoy in peace, and to prohibit them from engaging in the colonial trade of the enemy. 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 the * 83 law of nations. (a) But it was in the war of 1756 that the rule awakened general and earnest attention. Mr. Jenkinson, in his "Discourse on the conduct of Great Britain in respect to neutral nations," written in 1757, considered it to be unjust and illegal for neutrals to avail themselves of the pressure of war to engage in a new species of traffic, not permitted in peace, and which the necessities of one belligerent obliged him to grant to the detriment, or perhaps to the destruction, of the other. (b) On the other hand, Hübner, who published his treatise (c) in 1759, is of opinion that neutrals may avail themselves of this advantage presented by the war, though he admits the lawfulness of the trade to be a question of some uncertainty.

*

Thus seemed to stand the authority of the rule of 1756, (d) when it was revived and brought into operation by England, in

(b) Valin, Comm. ii. 248, 250.

(a) 6 C. Rob. 74, note, and 252, note.

(b) In the British Memorial, addressed to the Deputies of the States General of Holland, December 22, 1758, the injustice of neutrals in assuming the enemy's carrying trade was urged, and it was declared that their high mightinesses had never suffered such a trade, and that it had been opposed in all countries in like circum

stances.

(c) De la Saisie des Batimens Neutres. Mr. Wheaton, in his History of the Law of Nations in Europe and America, New York, 1845, 219-228, has given a summary of the two small volumes of Hübner on neutral rights; and he says that the doctrines of Hübner found but little favor with the public jurists, his contemporaries. It is a work of inferior weight and authority.

(d) It stood upon loose grounds, in point of official authority, according to the able examination of the documentary evidence of the rule, given in a note to the first volume of Mr. Wheaton's Reports, App. note 3.