« EdellinenJatka »
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 persons who
acter cast upon as to subject the productions of that soil to seizure are not alien
enemies. 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 po 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
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 it's 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. diction.
. 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 hostile char
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
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 estab. lished 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
The President, 5 Rob., 277.
court, was ascertained and described to be a person having a house of trade and actually residing at Curaçoa. The ship was condemned as lawful prize; --Lord Stowell declaring: “The claimant is undoubtedly to be considered an enemy at the commencement of the transaction, Holland being, at that period of time, the enemy of this country.”
“No position,” said Lord Stowell, in another case, “is more established, than this, that if a person goes into another country, and engages in trade, and resides there, he is, by the law of nations, to be considered a member of that country."2
In this last case, a cargo which belonged to Mr. Millar, an American consul resident at Calcutta, and which had been taken in trade with the enemy, was condemned as the property of a British mer. chant resident at Calcutta, and engaged in illegal commerce.
“It is said to be hard,” said Lord Stowell, “ that Mr. Millar should incur the disabilities of a British subject, at the same time that he receives no advantages from that character; but I cannot concede to that representation, because he is in the actual receipt of the benefit of protection for his person and commerce from British arms and British laws—un. der an existing British administration in the coun. try;-- he may be subject to some limitations of commerce incident to such establishments, which would not occur in Europe, but he must take his situation with all its duties, and among those, the duty of not trading with the enemies of this country.”
* The Anna Catherina, 4 Rob., 107. ? The Indian Chief, 3 Rob., 12.
The common law courts of England have recog. Rule applied
in common nized and applied the same doctrine.
In the United States, this principle seems to have been very fully established by numerous decisions.
Chancellor Kent says: “This principle, that, for all commercial purposes, the domicil of the party, .. without reference to the place of birth, becomes the test of national character, has been repeatedly and explicitly admitted in the courts of the United States. If he reside in a belligerent country, his property is as liable to be captured as enemy's property; as, if he resides in a neutral country, he enjoys all the privileges, and is subject to all the inconveniences of the neutral trade. The general rule is, that a person living bona fide in a neutral country, is fully entitled to carry on a trade to the same extent as the native merchants of the country in which he resides, provided it is not inconsistent with his native allegiance.
In a case which was determined in the House of Lords, in 1802, the same principle seems to have been established, even beyond the reservation of a native allegiance. In this case, a British-born subject, resident at the English factory at Lisbon, was accorded the privilege of a Portuguese character, so far as to render his trade with Holland (then at war with England, but not with Portugal) unimpeach able as illicit trade.
There is, indeed, one case at law in the English courts,' in which the question was involved, and in
· McConnel vs. Hector, 2 Bos. & Pul., 113; De Laneville vs.. Phillips, 2 New Rep., 97.
* Kent's Com., I., 83; The Emanuel, 1 Rob., 296.