wars of the principles contended for by such writers crystallized into accepted law what had before been but matter of belief. So that at the present day the writings of Wheaton, Kent, and other publicists may be regarded as an exposition of the Law of Nations as now accepted by the powers and acted upon in the various national tribunals.

Whether a formal declaration of war communicated to the enemy should precede the outbreak of offensive operations is somewhat of an open question. As a matter of fact, the various powers appear to consider themselves under the obligation to make such a declaration only at such time as it may suit them. Thus, in 1877 the Russian declaration of war against Turkey was preceded by some hours by the entry of the Russian forces into Turkey. A nation may convey its warlike intentions to the state with which it is at variance by the recall of its minister, or by a public declaration of war within its own territory, or by announcement of an ultimatum followed by hostile acts; or, indeed, by any such unambiguous mode of intimation as may grow out of the circumstances at the time. War having once been commenced, a formal declaration to the enemy can, it would seem, be formulated and communicated at leisure if it so please the aggressor. But it is of course open to nations to provide for such a case by a clause in international treaties.

Previous to the actual declaration of war or commencement of active hostilities a provisional seizure is occasionally made of enemy ships and goods within the national jurisdiction. Such seizures are of the nature of embargo or reprisal, and may be relinquished on adjustment of the difficulty which resulted in the hostile act. This subject will be considered under the head Embargo and Reprisals (b). The disputed right of confiscation of enemy debts and property within the national territory will also be considered in its place (c).

(b) Vide p. 36, infra.

(c) Vide p. 49, infra.

When war is entered upon, every individual of the nations engaged is considered to be involved in the hostilities, since every man is considered to be a party to the acts of his own government. According to the letter of the law of nations this condition of affairs warrants the arrest of any subject of the enemy found within the national territory. But this right, if right it be, is now obsolete, though if one nation at war were to revive and execute it, the other would probably claim the same right by retortion if not by the law of nations. The effect of this taint of hostilities, as regards individuals, is to stop all intercourse between citizens of the nations at war. The individual members of the nations are embarked in one common bottom and must share one common fate. Therefore, all trading with the common enemy becomes at once illicit, and is usually so proclaimed on the outbreak of hostilities (d).

But the extension of this spirit of hostility to individuals does not, by the usage of nations, entitle individuals to engage in independent hostile acts against the enemy or subjects of the enemy. Only those persons who have been expressly empowered or commissioned by their government to engage in active hostility are entitled to exercise any such aggressive acts.

The circumstance that two nations decide to settle their differences by resort to war is not to be allowed to interfere with legitimate trade on the part of neutrals. It is now a fundamental principle of the public law of Europe that neutral nations shall, in time of war, be allowed to carry on their accustomed trade, subject only to such restrictions on the part of belligerents as may be necessary for the safety and protection of the latter. The nature of such restrictions. will be set forth in its place (e).

(d) Vide sub "Trading with the Enemy," p. 258, infra.
(e) Vide p. 345, infra.

By the law of nations it is permissible to seize and confiscate enemy property found on board a neutral vessel; but this right, as will presently appear, has been disavowed by the Declaration of Paris. Ships of the enemy may of course be seized and confiscated, and any enemy property found on board of them will be involved in the same fate, though neutral goods, except contraband of war, must be restored. These subjects will receive fuller consideration later on, but meantime it may be observed that a fruitful source of difficulty and irritation between belligerents and neutrals is the decision of the crucial point as to the ownership of goods found on enemy vessels. That is, whether the property in such goods is to be regarded as vested in neutral subjects, and the goods therefore exempt from confiscation; or in subjects of the hostile nation, and the goods consequently the subject of legal condemnation to the captors. The answer to this important question frequently turns on the domicile of the owner. Before proceeding further it will be well to give some special consideration to this subject.

II.

DOMICILE AND OWNERSHIP.

DOMICILE and nationality are not of necessity the same thing. Thus a British subject may have a commercial domicile or domiciles in foreign countries, or the subject of a foreign state may have a domicile in Great Britain. In deciding as to the nationality of captured goods, the courts of prize are not ordinarily concerned to inquire of what nation the owner of the property is a member: what they do set themselves to ascertain is, whether the property is to be deemed to be owned by an enemy subject or—which is the same thing-by a person who has cast in his lot with the enemy. Of what particular nationality the owner may himself be is another matter altogether, and not ordinarily material to the point at issue. No matter of what nationality a person may be, if he establishes himself in business in a neutral or hostile state, he becomes, so far as the transactions of such business are concerned, to all intents and purposes a neutral or an enemy, as the case may be. And in such capacity he must accept all its inconveniences, just as he shares its advantages. Therefore all persons trading in the enemy's country are considered pro hac vice to be enemy subjects so far as concerns the interests of their alien domicile. Aliens are deemed to be under no obligation to remain in the enemy country, and the fact that they do so remain is to be taken as an admission of their willingness to

cast in their lot with the foe. The theory acted upon is that an alien subject resident in a country against which war is declared by his government must at once return to the national territory. To hesitate is to be lost; and even if, on at once returning with his goods, the latter should be captured by his government, the Courts, before restoring them, will require the clearest proof of his intention to abandon the hostile domicile (a). A distinction is drawn between a temporary and a permanent residence, though the mere fact that a person has only just recently entered the country with which hostilities have broken out will not absolve him if it be clear that he came there with intent to remain. Nor will the circumstance of a longer residence necessarily convict him if he should succeed in rebutting the presumption that such prolonged stay was evidence of his intention to remain. What has in all cases to be looked at is the animus manendi or the animus revertendi, the onus of disproof or of proof lying on the claimant (b). "A mere intention to remove has never been held sufficient, without some overt act" (c).

Whether, on the outbreak of war, a subject domiciled in the enemy country can withdraw his property from such country, free from risk of confiscation on the part of his own government, without first obtaining a licence or safe-conduct from his government, is disputed. But to take such a precaution would, in any case, be a prudent act on the citizen's part (d). An instance of double domicile is supplied by the case of The Portland (e), where the property of a German subject was seized on the ground that he had a domicile on French territory, Great Britain being then at war with

(a) Vide Passports and Safe-conducts, p. 277, infra.

(b) Vide The Diana, 5 Rob. 60.

(c) The President, 5 Rob. 277.

(d) Vide p. 266, infra.

(e) 3 Rob. 41.