Residence

national character for municipal purposes, and national character for international purposes. Every Permanent independent State is competent to decide absolutely constitutes upon what conditions individuals shall enjoy the Domicil. benefits of membership with it; and it may accord to persons born in foreign countries with more or fewer restrictions the same benefits which it accords to Natives, without reference to the consent of any other State. Accordingly the Right of Naturalising a natural born subject of another State is claimed and exercised by every independent Power without any regard to the municipal law of the particular State, within the territory of which the individual may have been born; but such Naturalisation does not necessarily determine the National Character of the individual for international purposes. It does not in the first lace release the individual from his I obligations of Natural Allegiance to the country of his Origin, for he can only be released from those obligations with the consent of the Sovereign to whom his allegiance is due; in other words the Naturalisation of an individual by a foreign State may operate to give to the party naturalised all the privileges of a natural born subject within the territory of the State itself, but it will be inoperative to dissolve his previous relations with the country of his Origin. Those relations indeed may be dissolved in such a case ipso facto under the provisions of the Municipal Law of the country of his Origin; but again the dissolution of those relations under that Law does not necessarily take effect beyond the territory, within which that Law is supreme. For instance, a third Nation might decree that the nationality of all foreigners coming within its jurisdiction shall be determined by their Origin, and by no other criterion whatsoever. Under such circum

stances a person who is by Origin an Austrian subject, and has been naturalised in France, and thereupon by the Law of France has acquired in France all the rights of a natural born subject of France, whilst by the Law of Austria he has lost in Austria all the rights of a natural born subject of Austria, might be adjudged by the Tribunals of a third Power to be clothed within its territory with an Austrian Nationality by reason of his Origin. Again, a Nation may have made no provision whatever under its Municipal Law for distinguishing the status of one foreigner from that of another foreigner within its territory; and such a system of Law may not be attended with any inconvenience in time of peace, but in time of war it becomes indispensable for every Nation to have some criterion to enable it readily to distinguish the character of an alien friend from that of an alien enemy. Nations have accordingly sought for a common rule in such matters, which would be free from ambiguity, whilst it should commend itself to universal acceptance by its natural justice; and Permanent Residence has been found to answer all the requirements of such a rule. An individual cannot be permanently resident in two countries; and wherever he is permanently resident, there he is contributing by his industry and general wealth to the strength of the country, and to its capacity to wage war. There can be therefore no injustice in regarding the property of such a person as forming part of the common stock of the Enemy Nation, upon which a belligerent may make reprisals. Thus Grotius observes, "By the Law of Nations all the

5

5 L. III. c. 2. § 7. Jure nente, sive indigenæ, sive adgentium subjacent pignorationi venæ non qui transeundi, aut omnes subditi injuriam facientis, moræ exiguæ causa alicubi sunt. qui tales sunt ex causa perma

subjects of the Sovereign, from whom an injury has been received, who are such from a permanent cause, are liable to reprisals, whether they be natives or immigrants, but not such persons as are only passing through his territory and sojourning in it for a short time." Accordingly we find, in the ordinary Declarations of Reprisals issued by Sovereign Powers, an express provision that the ships and goods of all persons inhabiting the territory of the adverse Power shall be subject to Reprisals. The most recent order in Council issued by Great Britain on 29 March 1854 was to the like effect, "Her Majesty is pleased, by and with the advice of her Privy Council, to order, and it is hereby ordered, that general Reprisals be granted against the ships, vessels, and goods, of the Emperor of All the Russias and of his subjects and others inhabiting within any of his countries, territories, or dominions.'

abandoned

set of war.

§ 154. Every inhabitant of an enemy's country is an acaccordingly prima facie an enemy, and his property domicil may be seized by a belligerent, if found in any place may be where a belligerent may lawfully exercise the Rights at the outof War. The burden of proof in such a case, that the merchant, whose property has been seized, is a natural born subject of a neutral Power, and of Right ought not to be treated by the belligerent Power as an enemy, falls upon the merchant. If he has acquired a Domicil in the enemy's country before war has commenced, and does not thereupon take immediately effective measures to abandon his acquired Domicil, he will be precluded by his Domicil from setting up his Neutral character of Origin. An actual return however to the country of his Origin is not always necessary, in order that such a person should devest himself of his Enemy-character nor

6 The Postilion, Hay and Marriott, p. 245.

7

even an actual departure from the country of his adoption, if he has actually put himself in motion in good faith to quit the Enemy's country with the intention of abandoning his residence in it. Lord Stowell has observed in regard to the national character of a natural born citizen of the United States of America, who by long residence in England had acquired under the Law of Nations the character of a British merchant at the commencement of hostilities between Great Britain and the United States, that "the character, that is gained by residence, ceases by residence. It is an adventitious character, which no longer adheres to him from the moment, that he puts himself in motion bonâ fide to quit the country sine animo revertendi." Accordingly, notwithstanding the owner of the ship Indian Chief had not quitted England at the time when his vessel sailed on an outward voyage from London, still as he had actually left England and was in the act of resuming his original American character at the time when his vessel was seized on her arrival at an English port for orders, the Prize Court held that her owner was to be considered as a neutral American citizen. So the Lords of Appeals had previously held that a Natural born Subject of Great Britain, who had acquired a Dutch domicil by continued residence in Surinam and St. Eustatius, and had left those settlements with the intention of returning to Great Britain, but was still in Holland, the mother country of those settlements, when the order of Reprisals on the part of Great Britain against Holland was issued, was nevertheless entitled to the restitution of his property as a British subject, inasmuch as he was

7 The Indian Chief, 3 Ch. Rob.

p. 20.

8 The Snelle Zeylder, Lords,

28 April 1783, reported in a note to the Indian Chief, 3 Ch. Rob. p. 21.

in itinere, had put himself in motion, and was in pursuit of his native British character. So likewise a British born subject who was domiciled in Holland at the commencement of hostilities with Great Britain, as partner in a house of trade at Flushing, and had immediately made arrangements for the dissolution of his partnership, and was only prevented from removing personally by the violent detention of all British subjects who happened to be within the territory of the enemy at the breaking out of war, was held by Lord Stowell to be entitled to have his property restored to him as a British subject. The same rule has been recognised in the Courts of the United States. "It is certainly true," observes Mr. Justice Story 19, "that a character acquired by residence ceases with the discontinuance of the residence. And therefore if a party, who has resided in an enemy country, puts himself in itinere to return to his native country with an intention of bona fide residence there, he is deemed already to have resumed his neutral character, although he has not arrived in such country. But until he has actually put himself in itinere, the character of the country where he resides adheres indissolubly to him. He takes it, with all its benefits and all its disadvantages."

10

property is

identical

§ 155. It has been sometimes said, that there is a The chapeculiarity about Domicil in time of war, as distin-racter of guished from Domicil in time of peace; and that as not always a person may have establishments in two countries with the for commercial purposes, he may have in time of war its owner. for commercial purposes both a neutral Domicil and a belligerent Domicil. It is true, indeed, that the Municipal Law of a State may permit a citizen to

character of