this question. "It is very clear," he observed," that in general the national character of a person is to be decided by that of his domicile; if that be neutral, he acquires the neutral character; if otherwise, he is affected by the enemy's character. But the property of a person may acquire a hostile character altogether independent of his own peculiar character derived from residence. In other words, the origin of the property, or the traffic in which it is engaged, may stamp it with a hostile character, although the owner may happen to be domiciled in a neutral country. Such are the familiar instances of engagements in the colonial, coasting, fishing, or other privileged trade of the enemy.1 So the produce of an estate in an enemy's country belonging to a person permanently resident in a neutral country, is impressed with the character of the soil, notwithstanding the character of the owner.2 So if a vessel purchased in the enemy's country is by consent and habitual occupation employed in the trade of that country during war, she is deemed a vessel of the country from which she is so navigating, whatever may be the domicile of the owner.3 The principle to be extracted from these cases seems to be, that when a person is engaged in the ordinary or extraordinary commerce of an enemy's country, upon the same footing and with the same advantages as native resident subjects, his property so employed is to be deemed incorporated into the general commerce of that country, and subject 1 The Vigilantia, 1 Rob. p. 1. The Immanuel, 2 Rob. p. 148. The Anna Catherina, 4 Rob. p.107. The Rendsborg, 4 Rob. p. 121. The Vrow Anna E Catherina, 6 Rob. p. 161. 2 The Dree Gebroeders, 4 Rob. p. 235. The Phoenix, 5 Rob. p. 20. 3 The Vigilantia, 1 Rob. p. 12. to confiscation, be his residence where it may; and the principle seems founded on reason. Such a trade, so carried on, has a direct and immediate effect in aiding the resources and revenue of the enemy, and in warding off the pressure of the war. It subserves his manufactures and industry, and its whole profits accumulate and circulate in his dominions, and become regular objects of taxation, in the same manner as if the trade were pursued by native subjects. There is no reason, therefore, why he who thus enjoys the protection and benefits of the enemy's country should not, in reference to such a trade, share its dangers and its losses. It would be too much to hold him entitled, by a mere neutral residence, to carry on a substantially hostile commerce. I agree therefore that it is a doctrine. supported by strong principles of equity and propriety, that there is a traffic which stamps a national character on the individual independent of that national character which mere personal residence may give him." Upen the general principles of law applicable to this subject there is, the reader will observe, but little dispute. The national character of a trader is to be decided, for purposes of trade, by the national character of the place where it is carried on. If a war breaks out, a foreign merchant carrying on trade in an enemy's country has a reasonable time allowed him for transferring himself and his property to another country. If he does not avail himself of this opportunity he is treated, for the purposes of trade, as a subject of the Power under whose dominion he carries it on, and, of course, as an enemy of those with whom that Power is at war. This principle is obviously just, but the whole foundation of it is, that the country to which the merchant trades is an enemy's country.1 character This distinction between the hostile character as it attaches to persons distinct from property, under which those who reside in a hostile country, or have commercial establishments there, are enemies sub modo Enemy, only, or in reference to so much of their property as is sub modo. connected with such establishment, allows a merchant to act in two characters, so as to protect his property connected with his house in a neutral country, and to subject to seizure and confiscation his effects belonging to the establishment in the belligerent State.2 "The decisions of prize tribunals," says Dr. Twiss, "have sometimes proceeded upon the view that a belligerent character may be engrafted sub modo upon the neutral character of a merchant, without suspending altogether the latter. But this is only another form of embodying the principle, that the neutral domicile of the owner is not always conclusive of the neutral character of his property. When a merchant has commercial establishments in two countries, and it is necessary in time of peace to decide by what law the succession to his personal property is to be governed, the country which is the seat of his principal establishment is held to be the place of his domicile. But Courts of Prize do not weigh the question of domicile in the same accurate scales which are used by Courts which administer the law of nations in time of peace; and they have been accustomed to rule that, if a person has mercantile concerns in two countries, and acts as a merchant of 1 Cremidi v. Powell, 11 Moore, P. C. C. p. 96. both countries, he must be liable to be considered as a subject of either the one or the other, according as the particular transactions of his commerce have originated in one or the other of the two countries." 1 1 Law of Nations, in Time of War, p. 308. See Kent's Commentaries, i. p. 87. The Portland, 3 Rob. p. 41. The Herman, 4 Rob. p. 228. The Jonge Classina, 5 Rob. p. 297. CHAPTER III. TRADING WITH AN ENEMY. TRADING WITH THE ENEMY INCONSISTENT WITH A STATE OF WAR- WHEN THERE IS A LICENSE TO TRADE PROCEEDING IMMEDIATELY with an 1. TRADING with an enemy is absolutely inconsistent with Trading a state of war. No position of Maritime Law is clearer enemy. than that which lays down the proposition, that commercial intercourse, or pacific dealing, cannot subsist between subjects of belligerent states, except by the special permission of the government, or the express license of the sovereign. The interests and the duties of trade are directly opposed to the interests and the duties arising out of a state of war. It is a well-settled doctrine, to use the language of an eminent writer, that there cannot at the same time exist a war for arms and a peace for commerce.1 2. This rule was stated, and the leading decisions enforcing it were reviewed, by Sir W. Scott in the celebrated case of "The Hoop."2 In that case he states that there are two grounds on which this sort of communi21 R p. 201. 1 Kent's Com. i. p. 75. |