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tribunal of the last resort, will be looked for by the profession and the community with an interest morė deep and absorbing than has attached to any questions submitted to the arbitrament of the judicial power since the formation of the Constitution.




WE have said that from the established prin. ciple in the law of nations which recognizes the identity between the wealth of the nation and that of the aggregation of individuals composing the nation, many important rights accrue to the citizen in time of war, to enable him to indemnify his own or the state's injuries, by capture and reprisals of the property of the enemy. Before considering the subject of reprisals, captures, and confiscation, it is important to determine who are, in legal intend


. ment, alien enemies, and who are clothed with that hostile character as to subject their property to seizure and confiscation as lawful prize; and also who are to be regarded as possessing the character of lawful belligerents, with the rights of such at the hands of neutral nations.

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An alien enemy is one who is under the allegiance of a government at war with our own.

Where the allegiance due is of that permanent character which attaches to the citizen or subject, as such, there is no difficulty in determining his position and liabilities. His hostility is coeval with, and as permanent as, his allegiance. It begins with


acter cast upon

persons who


the commencement of his country's quarrel, and ends only with its termination.

But there are those who are clothed with such character of hostility as subjects them and their property to all the liabilities and forfeitures to which that of permanent alien enemies are subject, and yet do not owe permanent allegiance to the nation at war with us—and it is important to consider the several and various circumstances, of more or less complication, which occasion and determine such a hostile character.

Hostile character may be cast upon a person by Hostile charhis ownership of soil in the enemy's country, so far as to subject the productions of that soil to seizure are not alien as lawful prize.

" It cannot be doubted,” says Lord Stowell, “ that there are transactions so radically and fundamentally national, as to impress the national character, independent of peace or war, or the local residence of the parties.

“ The produce of a person's own plantation in the Impressed colony of the enemy, though shipped in time of upon property peace, is liable to be considered as the property of the enemy, by reason that the proprietor has incorporated himself with the permanent interests of the nation, as a holder of the soil, and is to be taken as a part of that country in that particular transaction, independent of his own personal residence and occupation."

In another case, the same learned judge says: “ Certainly nothing can be more decided and fixed than the principle of this court and of the Supreme

1 The Vrow Anna Catharina, 5 Rob., 161.


Court, upon every solemn argument there, that the Ownership of possession of the soil does impress upon the owner

the character of the country, whatever the local residence of the owner may be. This has been so repeatedly decided, both in this and the Superior Court, that it is no longer open to discussion. No question can be made on the point of law at this day.

“First, then, it appears that the produce of the hostile soil is to be considered as bearing a hostile character; and certainly, if any property ought to be considered as bearing such a character at all, for purposes of seizure, nothing can be more reasonable than that the products of the enemy's land, one of the greatest sources, and as some have supposed, the

, sole source of national wealth, should be regarded as legitimate prize. That the interests of friends may

sometimes be involved in our vengeance upon enemies, is a matter which it is natural to regret, but impossible to avoid. The administration of public rules admits of no private exception, and he who clings to the profits of a hostile connection, must be content to bear its losses also. Secondly,

it will be found that a settlement in a hostile jurisResidence in a diction, whether it be by residence, or merely by hostile juris

the maintenance of a commercial establishment, impresses on the person so settling, the character of the enemies among whom he settles, in regard to such of his commercial transactions as are con

nected with that settlement. Uniformity of “The American jurists and courts have repeatedly pression of recognized the rule as a reasonable and just one to

be acceded to by all maritime nations."1

·Kent's Com. I., 82; Bentzon vs. Bogle, 9 Cranch, 191; The Ann Greene, 1 Gall., 284; The Venus, 8 Cranch, 253.



rule as to im

hostile char. acter.

The ship President was captured by an English privateer, on a voyage to Europe from the Cape of Good Hope, then in possession of Holland, with whom Great Britain was at war. A claim was filed on behalf of Mr. J. Emslie, as a citizen of the United States. It appeared that he was born in Britain, but had settled at the Cape of Good Hope during the preceding war, and had been employed there as American consul. In pronouncing the decree of the court in this case, Lord Stowell said: “The court must, I think, surrender every principle on which it has acted, in considering the question of national character, if it were to restore this vessel. The claimant is described to have been, for many years, settled at the Cape, with an established house of trade, and as a merchant of that place, and must be taken as a subject of the enemy's country.”

During the last war between Great Britain and Holland, there seems to have been a very general misapprehension among the merchants of the United States, that they were entitled to retain all the privileges of American citizens, without regard to the fact of their residence and occupation in another country. Numerous decisions of the English courts corrected this error, to the not inconsiderable cost of those who had unhappily fallen into it. A ship was captured on a voyage from Curaçoa, then a Dutch possession, and claimed in the English court, where she was libeled as prize, by one who was first described as an American merchant, but who, upon further proof being required by the

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· The President, 5 Rob., 277.

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