before it can possibly be known whether he may elect to do so or not. It was said, that the presumption ought to be made, because, upon receiving information of the war, it would be his duty to return home. This position was denied. It was his duty to commit no acts of hostility against his native country, and to return to her assistance when required to do so; nor would any just nation, regarding the mild principles of the law of nations, require him to take arms against his native country, or refuse permission to him to withdraw whenever he wished to do so, unless under peculiar circumstances, which, by such removal, at a critical period, might endanger the public safety. The conventional law of nations was in conformity with these principles. It is not uncommon to stipulate in treaties, that the subjects of each party shall be allowed to remove with their property, or to remain unmolested. Such a stipulation does not coerce those subjects to remove or remain. They are left free to choose for themselves; and, when they have made their election, may claim the right of enjoying it, under the treaty. But until the election is made, their former character continues unchanged. Until this election is made, if the claimant's property found upon the high seas, engaged in the commerce of his adopted country, should be permitted by the cruisers of the other belligerent to pass free, under a notion that he may elect to remove upon notice of the war, and should arrive safe; what is to be done, in case the owner of it should elect to remain where he is? For if captured, and brought immediately to adjudication, it must, upon this doctrine, be acquitted, until the election to remain is made and known. In short, the point contended for would apply the doctrine of relation to cases where the party claiming the benefit of it may gain all and can lose nothing. If he, after the capture, should find it for his interest to remain where he is domi-, ciled, his property, embarked before his election was made, is safe; and if he finds it best to return, it is safe, of course. It is safe, whether he goes or stays. This doctrine producing such contradictory consequences was not only unsupported by any authority, but would violate principles long and well established in the Prize Courts of England, and which ought not, without strong reasons which may render them inapplicable to America, to be disregarded by the Court. The rule there was, that the character of property during war cannot be changed in transitu, by any act of the party, subsequent to the capture. The rule indeed went further;

as to the correctness of which, in its greatest extension, no judg ment needed then to be given; but it might safely be affirmed, that the change could not and ought not to be effected by an election of the owner and shipper, made subsequent to the capture, and more especially after a knowledge of the capture is obtained by the owner. Observe the consequences. The capture is made and known. The owner is allowed to deliberate whether it is his intention to remain a subject of his adopted or of his native country. If the capture be made by the former, then he elects to become a subject of that country; if by the latter, then a subject of that. Could such a privileged situation be tolerated by either belligerent? Could any system of law be correct which places an individual, who adheres to one belligerent, and, down to the period of his election to remove, contributes to increase her wealth, in so anomalous a situation as to be clothed with the privileges of a neutral, as to both belligerents? This notion about a temporary state of neutrality, impressed upon a subject of one of the belligerents, and the consequent exemption of his property from capture by either, until he has had notice of the war and made his election, was altogether a novel theory, and seemed, from the course of the argument, to owe its origin to a supposed hardship, to which the contrary doctrine exposes him. But if the reasoning em

ployed on the subject was correct, no such hardship could exist; for if, before the election is made, his property on the ocean is liable to capture by the cruisers of his native and deserted country, it is not only free from capture by those of his adopted country, but is under its protection. The privilege is supposed to be equal to the disadvantage, and is, therefore, just. The double privilege claimed seems too unreasonable to be granted. (a) 160

(a) The Venus, Cranch, viii. 277. The Mary and Susan, Wheaton's Rep. i. 54. United States v. Guillem, Howard, xi. 60.

[160 In the civil war in the United States, property was condemned on the ground of domicil only. It was decided, first, that if a place was in the firm possession and under the control of the rebel enemies, it was, for the time, and in the technical sense of the prize law, enemy's territory; second, that the property of a person domiciled in that place at the time of capture was liable to condemnation as enemy's property, in the sense of the prize courts; and, lastly, that although the owner was a citizen of the United States, and had always resided in that place, which was held to be of right a part of the United States, and of right a proper place of residence to constitute citizenship of the United States, yet the property of such a person was to be condemned without inquiring whether he was or was not, in his intentions or acts, loyal or disloyal. No offer was made, in these cases, to prove an attempt to change

Merchants residing in the East.

§ 333. The national character of merchants residing in Europe and America is derived from that of the country in which they reside. In the eastern parts of the world, European persons, trading under the shelter and protection of the factories founded there, take their national character from that association under which they live and carry on their trade: this distinction arises from the nature and habits of the countries. In the western part of the world, alien merchants mix in the society of the natives; access and intermixture are permitted, and they become incorporated to nearly the full extent. But in the East, from almost the oldest times, an immiscible character has been kept up; foreigners are not admitted into the general body and mass of the nation; they continue strangers and sojourners, as all their fathers were. Thus, with respect to establishments in Turkey, the British courts of prize, during war with Holland, determined that a merchant, carrying on trade at Smyrna, under the protection of the Dutch consul, was to be considered a Dutchman, and condemned his property as belonging to an enemy. And thus in China, and generally throughout the East, persons admitted into a factory are not known in their own peculiar national character: and not being permitted to assume the character of the country, are considered only in the character of that association or factory.

But these principles are considered not to be applicable to the vast territories occupied by the British in Hindostan; because, as Sir W. Scott observes, "though the sovereignty of the Mogul is occasionally brought forward for the purposes of policy, it hardly exists otherwise than as a phantom: it is not applied in any way for the regulation of their establishments. Great Britain exercises the power of declaring war and peace, which is among the strongest marks of actual sovereignty; and if the high and empyrean

domicil, and remove beyond the reach of the enemy's control, before the capture. In short, the rule of international war as to the domicil in the enemy's country was applied to citizens in the civil war. (The Prize Causes, Black's Rep. ii. 635; Amy Warwick, Sprague's Decisions, ii.; and Law Reporter, xxiv. 335, 494.) The same rule was applied to the property of foreigners domiciled in such places.

The general doctrine, that, in a civil war, actual and firm possession, and not the rights or merits of the parties to the war, determines the character of the place for the time being, so far as the commercial relations of neutrals are concerned, was also asserted by the United States in its diplomatic relations with Peru. Opinion of Attorney-General Black, May 15, 1858; Mr. Cass to Mr. Clay, Nov. 26, 1858: Senate Ex. Doc. No. 69, 35th Cong.]—D.

sovereignty of the Mogul is sometimes brought down from the clouds, as it were, for the purposes of policy, it by no means interferes with the actual authority which that country, and the East India Company, a creature of that country, exercise there with full effect. Merchants residing there are hence considered as British

subjects." (a)

enemy's

§ 334. In general, the national character of a person, House of as neutral or enemy, is determined by that of his domi- trade in the cil; but the property of a person may acquire a hostile country. character, independently of his national character, derived from personal residence. Thus the property of a house of trade established in the enemy's country is considered liable to capture and condemnation as prize. This rule does not apply to cases arising at the commencement of a war, in reference to persons who, during peace, had habitually carried on trade in the enemy's country, though not resident there, and are therefore entitled, to time. to withdraw from that commerce. But if a person enters into a house of trade in the enemy's country, or continues that connection during the war, he cannot protect himself by mere residence in a neutral country. (a)

of the

§ 335. The converse of this rule of the British Prize Converse Courts, which has also been adopted by those of America, rule. is not extended to the case of a merchant residing in a hostile country, and having a share in a house of trade in a neutral country. Residence in a neutral country will not protect his share in a house established in the enemy's country, though residence in the enemy's country will condemn his share in a house established in a neutral country. It is impossible not to see, in this want of reciprocity, strong marks of the partiality towards the interests of captors, which is perhaps inseparable from a prize code framed by judicial legislation in a belligerent country, and adapted to encourage its naval exertions. (a) 161

(a) The Indian Chief, Robinson's Adm. Rep. iii. 12.

(a) Robinson's Adm. Rep. i. 1, The Vigilantia; ii. 255, The Susa.; iii. 41, The Portland; v. 297, The Jonge Klassina. Wheaton's Rep. i. 159, The Antonia Johanna; iv. 105, The Friendschaft.

(a) Mr. Chief Justice Marshall, in The Venus, Cranch, viii. 253.

[161 But there seems no sound reason for demanding the application to these cases of what is called reciprocity. Reciprocity implies two parties, who make some equitable exchange or offset of rights or benefits yielded or enjoyed. The cases stated in the text are rather those of two positions of a third party, each having an element

Produce

§ 336. The produce of an enemy's colony, or other of the ene- territory, is to be considered as hostile property so long

my's terri

tory consid- as it belongs to the owner of the soil, whatever may be

ered as hos

tile, so long his national character in other respects, or wherever may longs to the be his place of residence.

as it be

owner of the soil, whatever

may be his national character or

domicil.

This rule of the British Prize Courts was adopted by the Supreme Court of the United States, during the late war with Great Britain, in the following case. The personal island of Santa Cruz, belonging to the King of Denmark, was subdued during the late European war by the arms of His Britannic Majesty. Adrian Benjamin Bentzon, an officer of the Danish government, and a proprietor of land in the island, withdrew from the island on its surrender, and had since resided in Denmark. The property of the inhabitants being secured to them by the capitulation, he still retained his estate in the island under the management of an agent, who shipped thirty hogsheads of sugar, the produce of that estate, on board a British ship, and consigned to a commercial house in London, on account and risk of the owner. On her passage the vessel was captured by an American privateer, and brought in for adjudication. The sugars were condemned in the court below as prize of war, and the sentence of condemnation was affirmed on appeal by the Supreme Court.

the Su

of the

This rule § 337. In pronouncing its judgment, it was stated by adopted by the Court, that some doubt had been suggested whether preme Court Santa Cruz, while in the possession of Great Britain, could properly be considered as a British island. But for this doubt there could be no foundation. Although acquisitions, made during war, are not considered as permanent, until confirmed by treaty, yet to every commer

United
States, in

the case of

the thirty

hogsheads

of sugar.

of hostile connection, presented conversely. In the one case, a stranger to the belligerents is a neutral, as far as his personal domicil is concerned, but has an active commercial interest involved with the enemy's interests, and subject to the enemy's control and taxation. In the other, his special commercial interest referred to is neutral, as far as its locality is concerned; but, by reason of his personal domicil, he is himself subject to the enemy's control, and liable to compulsory service, and to unlimited taxation and forced contributions, which may reach and include the profits of his commercial house in the neutral country. The decision of the one case in the affirmative carries with it no argument that the other should be decided in the negative. The two cases are independent. The question in each is, whether the element of hostile connection or control which it presents, is sufficient to warrant a belligerent in taking the property jure belli.] — D.