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persons or their property more protection than it is required by law to give, under like circumstances, to its own subjects, unless otherwise obligated by treaty stipulations. The Constitution provides that private property of citizens shall not be appropriated to public use without just compensation; but this provision has no application to the capture or destruction of enemy's property in time of war, whether the enemy are foreigners or citizens of the United States. The destruction or capture of the property of loyal citizens by military forces invading the loyal States, is not an appropriation of property by our government. Nor are we bound by the Constitution, or by any law of Congress, to indemnify our own citizens for losses thus occasioned. Still less do we owe such indemnity to foreigners. But if the private property of loyal citizens, inhabitants of loyal States, is appropriated by our military forces for the purpose of supplying our armies, and to aid in prosecuting hostilities against a public enemy, the government is bound to give a reasonable compensation therefor to the owner; and under like circumstances, it is obligated to give just compensation to neutral foreigners. But property of such citizens and of such foreigners may be destroyed by our military forces, under certain circumstances, without liability to pay for it. Thus, if one of our armies marches across a cornfield, and so destroys a growing crop, or fires a building which conceals or protects the enemy, or cuts down timber to open a passage for troops through a forest, the owner of such property, citizen or alien, has no legal claim to have his losses made up to him by the United States. Misfortunes like these must be borne wherever they fall. any government is obli

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gated to guarantee its subjects against losses by casualties of public war, such obligation must be founded upon some constitutional or statute law. Thus far no such obligations have been recognized in our system. of congressional legislation.

DOMICILE.

In examination of the political status of all classes of aliens, it will be necessary in nearly every case to determine the question of domicile of the claimant; and it may be convenient here to define the meaning of the word domicile, as now understood by writers on international law.

"According to the law of nations, when the national character of a person is to be ascertained, the first question is, In what territory does he reside, and is he resident in that territory for temporary purposes, or permanently? If he resides in a given territory permanently, he is regarded as adhering to the nation to which the territory belongs, and to be a member of the political body settled therein. If he is only resident in a given territory for temporary purposes, he is regarded as a stranger thereto; and a further question must then be asked, In what country is his principal establishment, and where, when he has returned, does he consider himself to be at home? The country which satisfies the conditions implied in this further question is designated, in the language of public law, the domicile of the individual, which Vattel defines as 'a fixed residence in any place with the intention of always remaining there.'"*

* Twiss, Law of Nations, vol. ii. p. 233. Grotius, Droit des Gens, L. I. § 217.

A foreigner may have his personal or permanent domicile in one country, and at the same time his constructive or mercantile domicile in another. The national character of a merchant, so far as relates to his property engaged in trade, is determined by his commercial domicile. "All such persons" (viz., all who have become subjects of the sovereign from whom an injury has been received, and who are subjects for a permanent, not transitory cause, whether natives or citizens; and all who came to reside within the country of a belligerent power with knowledge of the existence of war; and all who came into the country before the war, and continue to reside there after the commencement of hostilities for a longer time than is necessary for their convenient departure) "are de facto subjects of the enemy sovereign, being resident within his territory, and are adhering to the enemy so long as they remain within his territory. If, however, they quit the enemy's territory with the intention of abandoning it, and resuming a permanent residence in the country of their origin, they divest themselves of the hostile character at once upon so quitting the enemy's territory."†

A neutral, or a citizen of the United States, domiciled in the enemy's country, not only in respect to his property, but also as to his capacity to sue, is deemed as much an alien enemy as a person actually born under the allegiance and residing within the dominions of the hostile nation; but a party's putting himself in itinere

*Halleck, Int. Law and Laws of War, p. 714.

† 1 Twiss, L. of N., vol. i. p. 83.

Since the publication of the last edition, Congress has passed the Act 1868, ch. 71– which provides that the party asserting the loyalty of any person in a proceeding in any court must prove it; and that voluntary residence in rebel States is prima facie evidence of having given aid and comfort to the rebellion.

‡ 2 Gallison, 205, Society v. Wheeler.

ALIENS DOMICILED IN THE UNITED STATES.

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to return to his native country, will exempt property from a hostile character acquired by residence where such property has been engaged in a trade lawful in the native character, and not otherwise.*

4. In relation to neutral or friendly aliens who have acquired a permanent personal domicile in the loyal States before or during the war, few if any questions have arisen; and their rights are so well defined under the settled principles of international law, and by treaties of friendship and commerce between the United States and foreign nations, that their claims to protec tion or indemnity require no especial attention at the present time; but neutral or friendly aliens, who, before the war began, had acquired a permanent personal domicile in the States declared in rebellion, and who did not, within reasonable time after the commencement of hostilities, withdraw from those States, are by that law held to be public enemies of the United States; themselves and their property are liable to the same treatment as the persons and property of other public enemies.†

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The proclamations of the President, and the acts of Congress against districts of country engaged in rebellion, include all the inhabitants thereof, without exception, and recognize them as public enemies. acts expressly refers to aliens.§

* 1 Gallison, 467, The St. Lawrence. Ibid. 614, The Francis.

One of these

† Twiss, L. of N., vol. i. p. 82. Grotius, de B. et P., L. III. c. 2, § 7.

Act of Congress, 13 July, 1861, ch. 3. Proclamation, 6 Aug. 1861. Proclamation, 2 April, 1863.

§ Act July 2, 1864, ch. 225, sect. 4.

By this act it is provided that "the prohibitions and provisions of the act approved July 13, 1861, and of the acts amendatory or supplementary thereto, shall apply to all commercial intercourse by and between persons residing or being within districts within the present or future lines of national military occupation in the States or parts of States declared in insurrection, whether with each other or with persons residing or being

The law of nations fully sanctions such legislation against those foreigners who prefer to take their chance under the rebel government rather than to rely on the protection of their lawful sovereign, and to entitle themselves to that protection by withdrawing from the enemy's country. They have the moral and legal right to remain in the hostile jurisdiction; but so remaining, they must take the hazards of the community with which they choose to cast their lot. Their continued residence in a rebellious district lends voluntary aid and countenance to the enemies of the Union by their presence, and by their property, which becomes liable to contribute, by taxation and otherwise, to the support of the rebellion. The means of carrying on war are thus, in part, supplied by those aliens who continue to associate themselves with rebels. Their property, found on the sea, is lawful prize, or if captured on land, it is lawful capture. It is not material to ascertain whether the sentiments or conduct of aliens so domiciled are hostile or friendly towards the Union. The fact of remaining, without effecting a removal of their persons and property from the enemy's country within reasonable time after the commencement of hostilities, is conclusive evidence that they are to be deemed in law public enemies. If the government, of whom they are subjects, has recognized a state of civil war, and has conceded to the rebels belligerent rights, all such subjects are bound by the act of their government to elect either to withdraw within reasonable time after such recognition and concession, or else to be forever after

within districts declared in insurrection, and not within those lines; and that all per sons within the United States, not native or naturalized citizens thereof, shall be subject to the same prohibitions in all commercial intercourse with inhabitants of States or parts of States declared in insurrection, as citizens of loyal States are subject to under said act or acts."

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