or notorious character. In one case, the claimant urged against the presumption by the proof of his residence in a hostile country, that he had no fixed counting-house there. But Lord Stowell said, "that he had no fixed counting-house in the enemy's country, will not be decisive. How much of the great mercantile concerns of this country is carried on in coffee-houses? A very considerable portion of the great insurance business is so conducted. It is, indeed, a vain idea, that a counting-house or fixed establishment is necessary to make a man a merchant of any place. If he is there himself, and acts as a merchant of that place, it is sufficient, and the mere want of a fixed counting-house there, will be no breach in the mercantile character, which may well exist without it."1 acter impress character of traffic. Another principle upon the subject of hostile Hostile charcharacter for commercial purposes has been estab-ed by peculiar lished by numerous authorities. It is nearly connected with the question of residence, but results from the peculiar character of the commerce or traf fic engaged in. In an early case, it was declared by Lord Stowell, to be "a doctrine supported by strong principles of equity and propriety, that there is a traffic which stamps a national character in the individual, independent of that character which mere personal residence may give-and it was laid down in the case of the 'Nancy and other ships,' which was heard before the Lords, on the 9th of April, 1798, that if a person entered into a house of trade in the enemy's country, in time of war, or 1 The Jonge Klassina, 5 Rob., 297. continued that connection during the war, he should not protect himself by mere residence in a neutral country." The maintenance of a commercial house or establishment in a hostile country, either personally or by agent, impresses the person with a hostile character, with reference to so much of the commerce as is connected with that establishment. The citizen or subject of a belligerent, residing or maintaining a commercial house in the country of the adverse belligerent, is deemed as possessed of a hostile character, so far as to subject to seizure such of his property as is concerned in the commerce of his foreign establishment. So, too, the citizen of a neutral nation, residing or maintaining a commercial establishment in the territory of a belligerent, is deemed as possessed of a hostile character towards the other belligerent, so far as to justify the seizure of his property that is connected with his commerce in the belligerent nation. And a citizen of a belligerent state, residing or maintaining a commercial establishment in a neutral state-is deemed a neutral, both by his na tive country and by the adverse belligerent-and with reference alike to the trade carried on by him with the adverse belligerent, and with all the rest of the world. The residence only affects the particular trade. As was said by Lord Stowell in a case before cited: "A man having mercantile concerns in two countries, and acting as a merchant of both, must 1 The Vigilantia, 1 Rob., 13. The Jonge Klassina, 5 Rob., 297. be liable to be considered as a subject of both, with regard to the transactions originating respectively in those countries." And the same learned judge, in another case1 says: "The personal domicil of the claimant, is at Embden, where he resides, and has a house of trade. He is only connected with this country by his part. nership in a house here, which is to be taken in a manner, as collateral and secondary to this house at Embden. That he may carry on trade with the enemy at his house in Embden cannot be denied, provided it does not originate from his house in London, nor vest an interest in that house." In another case, the distinction is very clearly drawn between that trade, as affected with liability to capture and forfeiture, which a merchant may carry on at his hostile, and that which he may carry on at his neutral establishment. In this case, the claimant resided in a neutral country, but had two commercial establishments, one in a neutral country, and the other at Ostend, in a hostile country. In disposing of this case, in which there were nine other ships involved, besides the Portland, Lord Stowell observes: "As to the circumstance of his being engaged in trading with Ostend, I think it will be difficult to extend the consequences of that act, whatever they may be, to the trade which he was carrying on at Hamburgh, and having no connection with Ostend, because, call it what you please, a colorable character as to the trade carried on at Ostend, I cannot think it will give The Herman, 4 Rob., 228. The Portland, 3 Rob., 41. Residence of owner deter al character of such a color to his other commerce, as to make that liable for the frauds of his Ostend trade. As far as the person is concerned, there is a neutral resi dence. As far as the commerce is concerned, the nature of the transaction and destination are perfectly neutral, unless it can be said, that trading in an enemy's commerce, makes a man, as to all his concerns, an enemy-or, that being engaged in a house of trade in the enemy's country, would give a general character to all his transactions. I do not see how the consequences of Mr. Ostermeyer's trading to Ostend can affect his commerce in other parts of the world. I know of no case, nor of any principle, that would support such a position as this-that a man, having a house of trade in an enemy's country, as well as in a neutral country, should be considered in his whole concerns as an enemy's merchant, as well in those which respected solely his neutral house, as in those which belonged to his belligerent domicil." The national character of a ship is, in general, mining nation- determined by the residence of her owner. There a ship as gen. may, however, be circumstances connected with the particular or special conduct of the ship which will the presumption of character arising from resi dence. eral rule. Ship consider ed of the na vary If a ship, of whatever nation as to her owner's tion whose residence, is navigating the seas under a pass of a flag or pass foreign nation, she is regarded to all intents, so to liability to far as liability to capture is concerned, as a ship of that nation. she bears, as capture. Sometimes the Upon the same principle, if a ship be purchased acter of vessel by a neutral in the country of the enemy, and is national char by its employ employed subsequently and habitually in the trade is determined of that country, commencing with the war, continu- ment. ing during the war, and on account of the war, she is to be deemed, notwithstanding a bona fide change of ownership, a ship of the country where she is thus employed. In pronouncing judgment of condemnation in the case of The Vigilantia, before cited,' Lord Stowell says: "Here is a Dutch built vessel-a Dutch fishing vessel-that went from Amsterdam regularly and habitually to Greenland, and to return to Amsterdam, there to deliver her cargo. She is pur chased in Holland. She is purchased avowedly for the purpose of pursuing the same course of commerce the fishing trade of Holland. She is purchased at a time when it is said there was a defect of conveniences for carrying on this trade at Embden. But I am satisfied it was the intention of the parties to carry on this trade to and from Amsterdam. Now, I ask, upon what ground is it that this vessel, so purchased, and so employed, is to be considered merely as a Prussian vessel? Here is a ship as thoroughly engaged and incorporated in Dutch commerce as a ship possibly can be. She is fitted out uniformly from Amsterdam. She is fitted out with Dutch manufacture. She is fitted out for Dutch importation, in all respects employing and feeding the industry of that country. She is managed by a Dutch ship's husband, and finding occupation for the commercial knowledge and industry of the subjects of that country. She is commanded by a Dutch captain; she is manned by a Dutch 1 Rob. 1. |