SECTION II.
On Enemies and Hostile Property.
During a peace of thirty-nine years, there has naturally arisen a vast inter-immigration throughout Europe; many complicated commercial and family relations have sprung up between nations of different countries; many Englishmen are permanently settled in various parts of Europe; and England, in return, is crowded with Foreigners, who look upon this country as their present and future home. What is the position of these persons at the commencement of war? Who, in fact, are our enemies?
And the previous Section, in which the effect of War on Commercial Relations has been sketched out, must have made it quite evident that it has become important accurately to determine what relations and circumstances impress a hostile character upon persons and property. According to Chancellor Kent, "the modern International Law of the Commercial World is replete with refined and complicated distinctions on this point."
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[Sidenote: Alien Enemies]
A man is said to be permanently an Alien Enemy, when he owes a permanent allegiance to the adverse belligerent, and his hostility is commensurate in point of time with his country's quarrel. But he who does not owe a permanent allegiance to the enemy, is an enemy only during the existence and continuance of certain circumstances.[58]
The character of enemy arises from the party being in what the law looks upon as a state of allegiance to the state at war with us; if the allegiance is permanent (as in the case of a natural-born subject of the hostile Sovran), the character is permanent.
But with respect to the man who is an alien enemy from what he does under a local or temporary allegiance to a power at war with us—when the allegiance ends, the character of alien enemy ceases to exist.[59]
Of course all persons owing a natural allegiance to the enemy are our enemies; but on the same broad principles of natural justice that impress a temporary character upon our friends and fellow countrymen, under special circumstances individuals from amongst our natural enemies become our friends and fellow subjects.
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[Sidenote: Prisoners of War.]
The first among these are Prisoners of War.
A Prisoner of War is not adhering to the King's enemies, for he is here under the protection from the King. If he conspires against the King's life it is high treason; if he is killed (malice aforethought), it is murder. He is not, therefore, in a state of actual hostility. At one time it was ruled, that a prisoner of war could not contract; but that case was thought hard. Officers on their parole must subsist like other men of their own rank; but if they could not contract they must starve; for they could gain no credit if deprived of the power of sueing for their own debts. A prisoner in confinement is protected as to his person, and if on parole he has protection in his credit also.[60]
He is allowed to support himself, and add to his personal comfort, by applying himself in his trade or business, and may maintain an action on his contract for his wages; nor can he be compelled, when sueing for money necessary for his support, to give security for costs like any other foreigner temporarily resident in this country.[61]
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[Sidenote: Married Foreigners.]
A wife generally follows the country and allegiance of her husband; but where she is in this country of necessity, or is here owing allegiance by her birth, and her husband is an alien enemy and under an absolute disability to come and live here, the law steps in to her aid, and gives her the privileges of an unmarried woman, so that she may sue and be sued, and make contracts for and against herself, for her maintenance. "Her case," says Chief Justice Holt, "does not differ from that of those ladies who were allowed to sue and be sued upon the adjuration or banishments of their lords, as if they had been sole."[62]
Foreign ladies, who have married Englishmen, are, by their marriage, naturalized, and have all the rights, privileges, and duties, of natural-born subjects, and cease to be enemies.[63]
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[Sidenote: Enemies by Hostility.]
A hostile character may be acquired by alien friends, by acts of actual hostility, and by alien friends and our fellow-subjects also, by what are termed personal and commercial domicile. Of course a British subject in actual hostility to his native country is more than enemy, he is a traitor, and has no belligerent rights; but an alien friend, that is a neutral engaging in war against this country, under the commission of a foreign prince, and in the ranks of a hostile army, or on board a legally commissioned enemy's vessel, is an enemy, and has all the rights of a prisoner of war, if taken.
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[Sidenote: Mariners.]
A Mariner, by a general rule, takes the character of the country in whose service he is employed, and even fugitive visits to the place of his birth will not entitle him to retain the benefit of a neutral character, in opposition to a regular course of employment in the enemy's country and trade; nor does the fact of his wife and family residing in his own country enable him to retain his native character.[64]
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[Sidenote: Domicile, Test of Nationality.]
With the exception of these special cases, in a state of war, Domicile is the Test of Nationality. According to Grotius,
"By the Law of Nations all the subjects of the offending state, who are such from a permanent cause, whether natives or emigrants from another country, are liable to reprisals; but not so those who are only travelling or sojourning for a little."
And he even holds that the right of killing and doing bodily harm to enemies extends "not only to those who bear arms, or are subjects of the author of the war, but to all those who are found in the enemy's territory;" meaning all those found domiciled or adhering to the enemy.
If, then, a native of England resides in a belligerent country, his property is liable to capture as enemy's property; and if he resides in a neutral country, he enjoys all the privileges, and is subject to all the inconveniences of the neutral trade.[65]
He takes all the advantages and disadvantages of the country of his adoption; with the limitation, that he must do nothing inconsistent with his native allegiance;[66] as, for example, if he emigrate to a neutral country during the time of war, he will not be permitted to acquire the character of a neutral merchant, and trade with the enemy in that character, it being his duty to injure the enemy to the full extent of his power.[67]
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[Sidenote: Test of Domicile.]
In determining the important question of Domicile, the animus manendi, or disposition to remain or settle in the land of the domicile, is the question to be determined.
If a man goes into a foreign country upon a visit, to travel for health, to settle a particular business, or for similar purposes, the residence naturally attendant on these circumstances is not generally regarded as a permanent residence.
But though a special purpose, such as the above, does not fix a domicile, yet these circumstances are not to be taken without respect to the time they may probably or actually do occupy. A general residence may grow upon a special purpose. It is difficult to fix the amount of time necessary to create a domicile, and it probably must be determined from each particular case. Thus, if a man remained in a hostile state after the outbreak, employed on some great work, which would occupy him many years, or beyond the probable termination of the war, or were unable to leave that particular climate on account of health, or were under any disability to return to his native country, the amount of time he had resided there would become an element of the question; against such a residence, the plea of an original special purpose, could not be averred; but it must be inferred, in such a case, that other purposes forced themselves upon him, mixed themselves with his original design, and impressed upon him the character of the country where he resided.
But, as an exception, a residence involuntary or constrained, however long, does not change the original character of the party, and give him a new and hostile one.
Domicile is fixed by a disclosed intention of permanent residence; if the emigrant employs his person, his life, his industry, for the benefit of the state under whose protection he lives; and if, war breaking out, he continues to reside there, pays his proportion of taxes, imposts, and revenues, equally with the natural-born subjects, no doubt he may be said to be domiciled in that country.
When these circumstances are ascertained, time ceases to be an element in the question, and the animus manendi, once ascertained, the recency of the establishment, though it may have been for a day only, is immaterial.
The intention is the real subject of enquiry; and the residence, once the domicile, is not changed by periodical absence, or even by occasional visits to the native country, if the intention of foreign domicile remains.
The native character, however, easily reverts; more so in the case of a native subject, than of one who is originally of another country. The moment an emigrant turns his back on his adopted country, with the intention of returning to (not simply visiting) his native country, he is in the act of resuming his original character, and must be again considered as a citizen of his native land;[68] even if he is forcibly detained in the country he is parting from, as was the case with British subjects on the breaking out of the War of 1804.[69]
But it is advisable for persons so situated, on their intended removal, to make application to Government for a special pass, rather than to trust valuable property to the effect of a mere intention to remove, dubious as that intention may frequently appear, under the circumstances that prevent that act from being carried into execution.
But, as we have before observed, general principles on this subject are scarcely sufficient; the right of domicile must depend on each individual case. If no express declaration has been made, and the secret intention has yet to be discovered, it can be evidenced by the acts of the party. In the first instance, these acts are removal to a foreign country, settlement there, and engagement in the trade of the country: and if a state of war brings his national character into question, it lies on him to explain the circumstances of his residence.
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[Sidenote: Domicile in Eastern Countries.]
A singular exception exists in reference to the rule of domicile. In the Western parts of Europe, alien merchants mix in the society of the natives; but in the East, from almost the oldest times, an immixable character has been kept up; foreigners continue strangers and sojourners, as all their fathers were. Merchants residing in these countries are hence still considered British subjects.
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[Sidenote: Hostile character acquired by Trade.]
Again, a National Character may be acquire by Trade, or, as it is called, by commercial domicile. In general, the national character of a person, as neutral or enemy, is determined by that of his domicile; but the property of a person may acquire a hostile character independently of his personal national character derived from personal domicile. A person carrying on trade habitually in the country of the enemy, though not personally resident there, should have time given him to withdraw from that commerce; it would press too heavily on neutrals to say, that immediately on the first breaking out of a war, their goods should become subject to confiscation. But if a person enters into a house of trade in the enemy's country, in time of war, or continued that connexion during the war, he cannot protect himself by mere residence in a neutral country. "It is a doctrine supported by strong principles and equity," says Sir William Scott, "that there is a traffic which stamps a National Character on the individual, independent of that Character which mere personal residence may give him."[70] The principle does not go to the extent of saying that a man, having a house of trade in the enemy's country, as well as in a neutral country, should be considered in his whole concerns as an enemy's merchant, as well in those which respected solely his neutral house, as in those which belong to his belligerent domicile.[71]
His lawful trade is exonerated from the operation of his unlawful trade, in all cases, and under all phases. All trade that does not originate from the belligerent country is protected, but not so, if it can be traced so to arise in not too remote a degree.
The same protection however is not extended to the case of a merchant residing in the hostile country, and having a share of a house of trade in an enemy's country. Residence in a neutral country will not protect his share in a house established in the enemy's country, though residence in the enemy's country will condemn his share in a house established in a neutral country.[72]
[Sidenote: Rule of 1756.]
The next mode in which a hostile character may be given to those not naturally bearing it, is by dealing in those branches of commerce which are confined in the time of peace to the subjects of the enemy: i.e. the ships and cargoes of a Neutral engaged in the colonial or coasting trade of the enemy (not open to foreigners in time of peace), are liable to the penal consequences of confiscation. This point; was first mooted in the war of 1756, and is called the rule of 1756.[73]
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[Sidenote: National Character of Ships.]
When there is nothing particular or special in the conduct of the vessel itself, the national character is determined by the Residence of the Owner; but there may be circumstances arising from that conduct which will lead to a contrary conclusion. It is a known and established rule with respect to a vessel, that if she is navigating under the pass of a foreign country, she is considered as bearing the national character of the nation under whose pass she sails; she makes a part of its navigation, and is in every respect liable to be considered as a vessel of that country. In like manner, and on similar principles, if a vessel, purchased in the enemy's country, is by constant and habitual occupation continually employed in the trade of that country, commencing with the war, continuing during the war, and evidently on account of the war, that vessel is deemed a ship of the country from which she is so navigating, in the same manner as if she evidently belonged to the inhabitants of it.[74] Further, when parties agree to take the pass and flag of another country, they are not permitted, in case any inconvenience should afterwards arise, to aver against the flag and pass to which they have attached themselves, and to claim the benefit of their real character. They are likewise subject to this further inconvenience, that their own real character may be pleaded against them by others. Such is the state of double disadvantage to which persons expose themselves by assuming the flag and pass of a foreign state.[75]
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[Sidebar: Distinction as to Cargoes]
A distinction is made in England between the Ship and the Cargo. Some countries have gone so far as to make the flag and pass conclusive on the cargo also; but in England it is held that goods have no dependence upon the authority of the state, and may be differently considered. If the cargo is laden in time of peace, though documented as foreign property, in the same manner as the ship, the sailing under a foreign flag and pass has not been held conclusive as to the cargo.[76]
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[Sidebar: Hostile Property cannot be Transferred in Transitu.]
Property which has a hostile character at the commencement of a voyage, cannot change that character by assignment while it is in transitu, so as to protect it from capture.[77]
In the ordinary course of things, in the time of peace, such a transfer in transitu can certainly be made. When war intervenes, another rule is set up by the Courts of Admiralty, which interferes with the ordinary practice. In a state of war, existing or imminent, it is held that the property shall be deemed to continue as it was at the time of shipment, till actual delivery; this arises out of a state of war, which gives a belligerent a right to stop the goods of his enemy. If such a rule did not exist, all goods shipped in an enemy's country would be protected by transfers, which it would be impossible to detect.[78]