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 domiciled, 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 judgment 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 employed 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.1 (a) § 18. Mer The national character of merchants residing in Europe and America is derived from that of the coun- chants residing in the try in which they reside. In the eastern parts of the east. 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 ex 1 Cranch's Rep. vol. viii. p. 277. The Venus. Wheaton's Rep. vol. i. p. 54. The Mary and Susan. (a) [It was decided by the Supreme Court of the United States, in a case arising during the Mexican war, that a neutral leaving, with his family, at the commencement of the war, a belligerent country, in which he had been domiciled, might carry with him his property acquired there. His neutral character reverts, as to his person and property, as soon as he sails from the hostile port. The property he takes with him is not liable to condemnation, for a breach of blockade by the vessel in which he embarks, when entering or departing from the port, unless he knew of the intention of the vessel to break it in going out. Howard's Rep. vol. xi. p. 60. United States v. Guillem.] tent. But in the east, from almost the oldest times, an immis cible 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 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." § 19. House the enemy's country. In general, the national character of a person, as neuof trade in tral or enemy, is determined by that of his domicile; but the property of a person may acquire a hostile 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, 1 Robinson's Adm. Rep. vol. iii. p. 12. The Indian Chief. 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.1 rule. The converse of this rule of the British prize courts, 20. Conwhich has also been adopted by those of America, is verse of the 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.2 enemy's The produce of an enemy's colony, or other territory, 21. Prois to be considered as hostile property so long as it be- duce of the longs to the owner of the soil, whatever may be his territory national character in other respects, or wherever may as hostile, so be his place of residence. by considered long as it' belongs to the owner of the soil, may be his character This rule of the British prize courts was adopted the Supreme Court of the United States, during the whatever late war with Great Britain, in the following case. The national island of Santa Cruz, belonging to the King of Den- or personal mark, 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 domicile. Robinson's Adm. Rep. vol. i. p. 1. The Vigilantia. Susa. Vol. iii. p. 41. The Portland. Vol. v. p. 297. Wheaton's Rep. vol. i. p. 159. The Antonia Johanna. Friendschaft. Vol. ii. p. 255. The The Jonge Klassina. Vol. iv. p. 105. The 2 Mr. Chief Justice Marshall, Cranch's Rep. vol. viii. p. 253. The Venus. 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. In pronouncing its judgment, it was stated by the court, that some doubt had been suggested whether 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 commercial and belligerent purpose they are considered as a part of the domain of the conqueror, so long as he retains the possessión and government of them. The island of Santa Cruz, after its capitulation, remained a British island until it was restored to Denmark. The question was, whether the produce of a plantation in that island, shipped by the proprietor himself, who was a Dane residing in Denmark, must be considered as British, and therefore enemy's property. In arguing this question the counsel for the claimants had made two points. 1. That the case did not come within the rule applicable to shipments from an enemy's country, even as laid down in the British Courts of Admiralty. 2. That the rule had not been rightly laid down in those courts, and consequently would not be adopted in those of the United States. 1. Did the rule laid down in the British Courts of Admiralty embrace this case? It appeared to the court that the case of The Phoenix was precisely in point. In that case a vessel was captured in a voyage from Surinam to Holland, and a part of the cargo was claimed by persons residing in Germany, then a neutral country, as the produce of their estates in Surinam. The counsel for the captors considered the law of the case as entirely settled. The counsel for the claimants did not controvert this position. They admitted it, but endeavored to extricate their |