Imágenes de páginas
PDF
EPUB

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.

racter, how

It becomes important, in a maritime war, to determine Enemy chawith precision what relations and circumstances will im- acquired. press 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.

the soil im

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.

Possession of It was considered by Sir Wm. Scott, in the case of the presses cha- Phoenix, and again in the case of the Vrow Anna Catha

racter.

rina, to be a fixed principle of maritime law, that the 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 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 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

[blocks in formation]

4 9 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.]

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 subject 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 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 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.

test of na

racter.

This same principle, that for all commercial purposes, Domicile the the domicil of the party, without reference to the place tional chaof birth, becomes the test of national character, has been repeatedly and explicitly admitted in the courts of the

1 Wilson v. Maryat 8. T. R. 31. Mc Connell 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, 1 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.

Bell v. Reid, 1 Maule and Selw. 726.

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 national law, and it accords with the reason and practice of all civilized nations. Migrans Jura amittit ac Privilegia et immunitates domicilii prioris. A person is not however to be permitted to acquire a neutral domicile, 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"."]

1 Case of the sloop Chester, 2 Dallas, 41. Murray v. Schooner Betsey, 2 Cranch, 64. Maley v. Shattuck, 3 Cranch, 488. Livingston 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 full length in Wheaton's Elements, Vol. II. pp. 565-572. Edn. 1863, by W. B. Lawrence.]

223.

2 Voet, Com. ad Pand. Tom. I. 347, § 99.

3 The Dos Hermanos, 2 Wheaton, 76. [Vattel, Bk. 1. Ch. XIX. §§ 220 1 Duer, On Insurance, 523. 1 Arnould, On Insurance, 113.]

« AnteriorContinuar »