either case the national character of the inhabitants who remain, is deemed to be changed from that of the former to the new sovereign, and in their relations with other nations they are entitled to all the advantages, and are subject to all the disadvantages, of their new international status. § 32. But mere cession by treaty does not of itself operate as an immediate transfer of the allegiance of the inhabitants of the ceded territory. They remain subjects of the power to which their allegiance was originally due, until the solemn delivery of the possession by the ceding State, and an assumption of the government by that to which the cession is made. The actual delivery of the possession, and the actual exercise of the powers of government must be clearly shown. In a case of capture of property belonging to a merchant of New Orleans, after the cession of Louisiana by Spain to France, which, if the owner was a French subject, was hostile, and, if a Spanish subject, was neutral, Sir William Scott decreed the restoration, on the ground that the evidence of any actual delivery of the territory to any French authority, was insufficient and unsatisfactory.' the time when the shipment in question was made, it seems impossible to hold that, by means of an occupation so taken, so continued, and so terminated, Moldavia ever became part of the dominions of Russia, and its inhabitants subjects of Russia and, therefore, enemies of those with whom Russia was at war. The utmost to which the occupation could be held to amount was a temporary suspension of the suzeraineté of the Porte, and a temporary assumption of that suzeraineté by Russia; but the national character of the country remained unaltered, and any intention to alter it was disclaimed by Russia. At what period, then, could foreigners dwelling there be said to have that notice of a change in the dominion and in the laws under which they were to live, to which Lord Stowell refers in the case of the Fama? At what period were they under the obligation of changing their domicil in it, under the penalty, if they omitted to do so, of being treated as enemies of Great Britain? Moldavia and Wallachia were not treated by the Porte as enemies, and it would be singular if these countries, though not held to be enemies by Turkey, should be held to be enemies of the allies of Turkey. That the Wallachian flag was recognised, both by the Russian and Turkish authorities, sufficiently appears from the documents before the court; and their Lordships have ascertained, by communication with the Foreign Office, the other facts above stated; and, further, that no act was ever done by the British Government to change the national character of the Provinces in relation to Great Britain; and without some such act the occupation by the Russians, under the circumstances stated, could not produce such an effect. Being of opinion that the claimant had a persona standi in the Court, their Lordships considered the effect of the evidence upon further proof, and advised restitution of the cargo and damages against the captors. -The 'Gerasimo,' 11 Moore, P. C. R. 88. 1 The Fama,' 5 Rob., 106. § 33. Revolution or possession by insurgents, as already stated, cannot be regarded by a prize court as changing the national character of the territory so possessed or occupied, until the fact has been recognised by the political authority of the government to which the court belongs. Thus, although it was a matter of notoriety that a considerable part of the island of St. Domingo had, by revolt, been detached from the French colonial government, and its inhabitants were in common opposition to France, then at war with England, the court of appeal, nevertheless, decided that such inhabitants must be regarded as hostile in their commercial relations, till the British Government should recognise their change of national character. But where any port or part of the island had been recognised by orders in council as not in the possession and under the dominion of France, such port or place would be so considered by the court. The supreme court of the United States has adopted the same rule of decision.' § 34. In many cases, the nature of the traffic or business in which an individual is engaged, may stamp upon him a national character, wholly independent of that which his place of residence alone would impose. Thus, although a neutral merchant, residing in his own country, and trading, in the ordinary manner, to the country of a belligerent, does not thereby acquire a hostile character, yet, if he is a privileged trader, engaged in a commerce that none but the subjects of the enemy are permitted to conduct, or that can only be carried on by a special license from the government, the place of his domicil will not protect such trade, but all his property embarked in it becomes liable to confiscation, as that of an enemy. So, also, if the neutral merchant has a house of trade in the hostile country, either as a partner, or on his sole account, all the commerce of such house is regarded as essentially hostile, and all his property engaged in it is liable to condemnation. The effect of the traffic in which a neutral vessel is engaged upon the national character of the owner, so far as such property is concerned, is fully discussed by Mr. Duer.2 1 The Manilla,' 1 Edw. R., I; the Pelican,' 1 Edw. R., app. D.; Yrisarri v. Clement, 3 Bing. R., 432; Johnson v. Greaves, 2 Taunt. R., 344; Blackburne v. Thompson, 3 Comp. R., 61; Hoyt v. Gelston, 3 Wheat. R., 324, note; Kennett v. Chambers, 14 How. R., 38. 2 Duer, On Insurance, vol. i. pp. 523-577. 35. There is, however, a very material distinction between the hostile character impressed by domicil, and that which results solely from the nature of the traffic in which the individual is engaged. A foreign merchant domiciled in the country of the enemy, is himself an enemy, in the same sense and to the same extent as a native subject; and all his property on the ocean, wherever it may be found, and whatever may be the nature of the commerce in which it is embarked, is liable to confiscation. But the hostile character which arises solely from the nature of the traffic, is limited, in its noxious and penal effects, to the transactions and property that the prohibited trade embraces; in all other respects, such individual still retains all the rights and immunities of a neutral, a subject, or an ally, as the case may be.1 $36. The habitual employment of an individual may also affect his national character. Thus, a person employed habitually and constantly, as a master or mariner, or as a supercargo or commercial agent, in the trade and navigation of a hostile country, although he has no domicil there, in the civil and legal sense of the term, is impressed with its national character, and this hostile character spreads itself, in its consequences, generally over his affairs. It follows and involves all his property, in whatever trade employed, that does not appear, from other circumstances, to have acquired a distinct national character. In order to redeem it from confiscation on this ground, the burthen of proof is cast upon him. The principle seems founded in reason; for persons so employed are as much incorporated with the commerce of the hostile country, as persons who have their permanent residence in the enemy's territory.2 § 37. The national character of ships is, as a general rule, determined by that of their owners. But, as hereafter shown, this rule is subject to many exceptions, a hostile character being not unfrequently impressed upon the vessel, while its owners are neutrals or friends. Thus, a hostile flag and pass, 'The 'Anna Catharina,' 4 Rob., 119; the 'Friendschaft,' 4 Wheat. R., 107; the 'San Jose Indiano,' 2 Gallis. R., 268. 2 In Captain Sherwin's case, the United States pleaded that his nationality was proved by his having commanded a United States' ship, which only United States' citizens could do.-Parl. Papers, No. 612, 1863. It was decided in Guier v. O'Daniel (1 Binn. 349) that the domicil of a seafaring man, without a known domicil, is the domicil of origin. See also Foelix, Droit Inter. Priv. 1. i. t. i. § 29. the carrying of military persons or despatches of an enemy, trading between enemy's ports, etc., will give to the vessel a hostile character, no matter what may be that of its owners. The national character of goods, as a general rule, follows that of their owner, but, as shown in the subsequent chapters, this rule is sometimes varied by the character and conduct of the vessel in which they are found, by the acts of the commander or supercargo in whose hands they have been placed, and by the nature of the documentary evidence by which the ownership is attempted to be proved. The origin, nature and destination of the goods themselves are sometimes conclusive of their national character, whatever may be that of their proprietor. Thus, where the goods are the produce of an estate or plantation in an enemy's territory or colony, the soil impresses upon them a hostile character, although the owner may be a neutral, and resident in a neutral country. Although his general national character may be neutral or friendly, he is considered an enemy, with respect to that particular produce, which, therefore, in its course of transportation to another country, is liable to capture as enemy's property. The rule applies even where such produce has been shipped in time of peace. The other questions will be discussed in subsequent chapters.1 1 Phillimore, On Int. Law, vol. iii. §§ 485, 487; the 'Phoenix,' 5 Rob., 25; the Vigilantia,' 1 Rob. 13; Bentzon v. Boyle, 9 Cranch. R., 191; the Herstelder,' 1 Rob., 115; the 'Packet de Bilboa,' 2 Rob., 133; see post vol. ii. ch. xxii. et seq. For the evidence of registry of a British ship, see 17 and 18 Vict., c. 104, s. 107, and 39 and 40 Vict., c. 80, ss. 36, 37. In cases of slave seizures the flag carried by the slave-ship does not fix the nationality of the vessel.—The ‘Eagle,' 1 W. Rob. 246. The Treaty of Naturalisation between Great Britain and the United States, signed May 13th, 1870, includes (inter alia) the following articles ARTICLE I. British subjects who have become, or shall become, and are naturalised according to law within the United States of America as citizens thereof, shall, subject to the provisions of Article II., be held by Great Britain to be in all respects and for all purposes citizens of the United States, and shall be treated as such by Great Britain. Reciprocally, citizens of the United States of America who have become, or shall become, and are naturalised, according to law within the British dominions as British subjects, shall, subject to the provisions of Article II., be held by the United States to be in all respects and for all purposes British subjects, and shall be treated as such by the United States. ARTICLE II. Such British subjects as aforesaid who have become, and are naturalised, as citizens within the United States, shall be at liberty to renounce their naturalisation and to resume their British nationality, provided that such renunciation be publicly declared within two years after the twelfth day of May, 1870. Such citizens of the United States as aforesaid, who have become and are naturalised, within the dominions of Her Britannic Majesty, as British subjects, shall be at liberty to renounce their naturalisation and to resume their nationality as citizens of the United States, provided that such renunciation be publicly declared within two years after the exchange of the ratifications of the present convention. The manner in which this renunciation may be made and publicly declared shall be agreed upon by the Governments of the respective countries. ARTICLE III. If any such British subject as aforesaid, naturalised in the United States, should renew his residence within the dominions of her Britannic Majesty, Her Majesty's Government may, on his own application and on such conditions as that Government may think fit to impose, readmit him to the character and privileges of a British subject, and the United States shall not in that case claim him as a citizen of the United States on account of his former naturalisation. In the same manner, if any such citizen of the United States as aforesaid, naturalised within the dominions of Her Britannic Majesty, should renew his residence in the United States, the United States Government may, on his own application and on such conditions as that Government may think fit to impose, readmit him to the character and privileges of a citizen of the United States, and Great Britain shall not in that case claim him as a British subject on account of his former naturalisation. The British Naturalisation Act, 1870 (33 Vict., c. 14), contains (inter alia) the following provisions : 2. Real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural-born British subject, and a title to real and personal property of every description may be derived through, from, or in succession to an alien in the same manner in all respects as through, from, or in succession to a natural-born British subject: provided,— (1) That this section shall not confer any right on an alien to hold. real property situate out of the United Kingdom, and shall not qualify an alien for any office, or for any municipal, parliamentary, or other franchise. (2) That this section shall not entitle an alien to any right or privilege as a British subject, except such rights and privileges in respect of property as are hereby expressly given to him. (3) That this section shall not affect any estate or interest in real or personal property to which any person has or may become entitled, either mediately or immediately, in possession or expectancy, in pursuance of any disposition made before the passing of this Act or in pursuance of any devolution by law on the death of any person dying before the passing of this Act. 3. Where Her Majesty has entered into a Convention with any foreign State to the effect that the subjects or citizens of that State, who have been naturalised as British subjects, may divest themselves of their status as such subjects, it shall be lawful for Her Majesty by Order in Council to declare that such Convention has been entered into by Her Majesty, and from and after the date of such order in council any person being origiginally a subject or citizen of the State referred to in such order, who has been naturalised as a British subject, may, within such limit of time as may be provided in the convention, make a declaration of alienage, and from and after the date of his so making such declaration, such person VOL. I. C C |