Merchants residing in the East.

§ 333. The national character of merchants residing in Europe and America is derived from that of the country in which they reside. In the eastern parts of the world, European persons, trading under the shelter and protection of the factories founded there, take their national character from that association under which they live and carry on their trade: this distinction arises from the nature and habits of the countries. In the western part of the world, alien merchants mix in the society of the natives; access and intermixture are permitted, and they become incorporated to nearly the full extent. But in the East, from almost the oldest times, an immiscible character has been kept up; foreigners are not admitted into the general body and mass of the nation; they continue strangers and sojourners, as all their fathers were. Thus, with respect to establishments in Turkey, the British courts of prize, during war with Holland, determined that a merchant, carrying on trade at Smyrna, under the protection of the Dutch consul, was to be considered a Dutchman, and condemned his property as belonging to an enemy. And thus in China, and generally throughout the East, persons admitted into a factory are not known in their own peculiar national character: and not being permitted to assume the character of the country, are considered only in the character of that association or factory.

But these principles are considered not to be applicable to the vast territories occupied by the British in Hindostan; because, as Sir W. Scott observes, "though the sovereignty of the Mogul is occasionally brought forward for the purposes of policy, it hardly exists otherwise than as a phantom: it is not applied in any way for the regulation of their establishments. Great Britain exercises the power of declaring war and peace, which is among the strongest marks of actual sovereignty; and if the high and empyrean

domicil, and remove beyond the reach of the enemy's control, before the capture. In short, the rule of international war as to the domicil in the enemy's country was applied to citizens in the civil war. (The Prize Causes, Black's Rep. ii. 635; Amy Warwick, Sprague's Decisions, ii.; and Law Reporter, xxiv. 335, 494.) The same rule was applied to the property of foreigners domiciled in such places.

The general doctrine, that, in a civil war, actual and firm possession, and not the rights or merits of the parties to the war, determines the character of the place for the time being, so far as the commercial relations of neutrals are concerned, was also asserted by the United States in its diplomatic relations with Peru. Opinion of Attorney-General Black, May 15, 1858; Mr. Cass to Mr. Clay, Nov. 26, 1858: Senate Ex. Doc. No. 69, 35th Cong.]—D.

sovereignty of the Mogul is sometimes brought down from the clouds, as it were, for the purposes of policy, it by no means interferes with the actual authority which that country, and the East India Company, a creature of that country, exercise there with full effect. Merchants residing there are hence considered as British subjects." (a)

enemy's

§ 334. In general, the national character of a person, House of as neutral or enemy, is determined by that of his domi- trade in the cil; but the property of a person may acquire a hostile country. character, independently of his national character, derived from personal residence. Thus the property of a house of trade established in the enemy's country is considered liable to capture and condemnation as prize. This rule does not apply to cases arising at the commencement of a war, in reference to persons who, during peace, had habitually carried on trade in the enemy's country, though not resident there, and are therefore entitled to time. to withdraw from that commerce. But if a person enters into a house of trade in the enemy's country, or continues that connection during the war, he cannot protect himself by mere residence in a neutral country. (a)

of the

§ 335. The converse of this rule of the British Prize Converse Courts, which has also been adopted by those of America, rule. is not extended to the case of a merchant residing in a hostile country, and having a share in a house of trade in a neutral 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. It is impossible not to see, in this want of reciprocity, strong marks of the partiality towards the interests. of captors, which is perhaps inseparable from a prize code framed by judicial legislation in a belligerent country, and adapted to encourage its naval exertions. (a) 161

(a) The Indian Chief, Robinson's Adm. Rep. iii. 12.

(a) Robinson's Adm. Rep. i. 1, The Vigilantia; ii. 255, The Susa.; iii. 41, The Portland; v. 297, The Jonge Klassina. Wheaton's Rep. i. 159, The Antonia Johanna; iv. 105, The Friendschaft.

(a) Mr. Chief Justice Marshall, in The Venus, Cranch, viii. 253.

[161 But there seems no sound reason for demanding the application to these cases of what is called reciprocity. Reciprocity implies two parties, who make some equitable exchange or offset of rights or benefits yielded or enjoyed. The cases stated in the text are rather those of two positions of a third party, each having an element

Produce

of the ene

§ 336. The produce of an enemy's colony, or other territory, is to be considered as hostile property so long tory consid- as it belongs to the owner of the soil, whatever may be

my's terri

ered as hos

tile, so long his national character in other respects, or wherever may longs to the be his place of residence.

as it be

owner of the soil, whatever

may be his national character or

personal domicil.

This rule of the British Prize Courts was adopted by the Supreme Court of the United States, during the late war with Great Britain, in the following case. The island of Santa Cruz, belonging to the King of Denmark, was subdued during the late European war by the arms of His Britannic Majesty. Adrian Benjamin Bentzon, an officer of the Danish government, and a proprietor of land in the island, withdrew from the island on its surrender, and had since resided in Denmark. The property of the inhabitants being secured to them by the capitulation, he still retained his estate in the island under the management of an agent, who shipped thirty hogsheads of sugar, the produce of that estate, on board a British ship, and consigned to a commercial house in London, on account and risk of the owner. On her passage the vessel was captured by an American privateer, and brought in for adjudication. The sugars were condemned in the court below as prize of war, and the sentence of condemnation was affirmed on appeal by the Supreme Court.

This rule

the Su

of the

United

§ 337. In pronouncing its judgment, it was stated by adopted by the Court, that some doubt had been suggested whether preme Court Santa Cruz, while in the possession of Great Britain, could properly be considered as a British island. But the case of for this doubt there could be no foundation. Although hogsheads acquisitions, made during war, are not considered as permanent, until confirmed by treaty, yet to every commer

States, in

the thirty

of sugar.

of hostile connection, presented conversely. In the one case, a stranger to the belligerents is a neutral, as far as his personal domicil is concerned, but has an active commercial interest involved with the enemy's interests, and subject to the enemy's control and taxation. In the other, his special commercial interest referred to is neutral, as far as its locality is concerned; but, by reason of his personal domicil, he is himself subject to the enemy's control, and liable to compulsory service, and to unlimited taxation and forced contributions, which may reach and include the profits of his commercial house in the neutral country. The decision of the one case in the affirmative carries with it no argument that the other should be decided in the negative. The two cases are independent. The question in each is, whether the element of hostile connection or control which it presents, is sufficient to warrant a belligerent in taking the property jure belli.] — D.

cial and belligerent purpose they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British island until it was restored to Denmark.162

The question was, whether the produce of a plantation in that island, shipped by the proprietor himself, who was a Dane residing in Denmark, must be considered as British, and therefore enemy's property.

In arguing this question the counsel for the claimants had made two points: 1. That the case did not come within the rule applicable to shipments from an enemy's country, even as laid down in the British Courts of Admiralty. 2. That the rule had not been rightly laid down in those courts, and consequently would not be adopted in those of the United States.

[162 The Supreme Court of the United States decided that, while Castine, in Maine, was in the firm possession of the British forces, who had established a temporary military government over it, it was not a port of the United States, within the meaning of the revenue laws, in such manner that the United States could, after the evacuation of the place, compel a citizen to pay duties upon goods which he imported into it during the British occupation. (United States v. Rice, Wheaton's Rep. iv. 246.) During the Mexican war, certain ports of the country which were in the firm possession of the United States forces, were decided not to be ports of the United States, in such sense that the ordinary revenue laws established for the Union would take effect there; but were places held by the nation for a special purpose of war, — whether to be permanently held or not, being matter of future determination, — and subject, while so held, to such special revenue regulations as the proper department of the government should establish. In the absence of any provisions by Congress for such cases, the President, as commander-in-chief, had authority to prescribe them. As regards goods imported into the United States from a place so held, they are to be considered as importations from a foreign country. (Fleming v. Page, Howard, ix. 603. Cross v. Harrison, Howard, xvi. 164.)

The general doctrine may be stated thus: firm possession by the enemy in war suspends the power and right to exercise sovereignty over the occupied place, and gives the enemy certain rights over it, of a temporary character, which all nations recognize, and to which loyal citizens may submit. It is, for the time, in the sense of the laws of war, enemy's territory, and is to be treated as such in almost all supposable cases of belligerent or neutral rights and duties. (United States v. Rice, Wheaton's Rep. iv. 246. Thirty Hogsheads of Sugar, Cranch ix. 191. Fleming v. Page, Howard, ix. 603. Cross v. Harrison, Howard, xvi. 164.) It was upon this principle that the courts of the United States, during the civil war, were able to treat portions of the United States as enemy's territory, for the time being, in the technical sense of the laws of war, and the property of persons residing in it, captured at sea, as enemy's property, without touching the question of the general political status of such places and their inhabitants. See note 153, ante, on Belligerent Powers in Civil Wars; and note 169, infrà, on Conquest and Belligerent Occupation.] — D.

The Thirty

Hogsheads of Sugar, continued.

cases ex

amined.

§ 338. 1. Did the rule laid down in the British Courts of Admiralty embrace this case? It appeared to the Court that the case of The Phoenix was precisely The British in point. In that case a vessel was captured in a voyage from Surinam to Holland, and a part of the cargo was claimed by persons residing in Germany, then a neutral country, as the produce of their estates in Surinam. The counsel for the captors considered the law of the case as entirely settled. The counsel for the claimants did not controvert this position. They admitted it, but endeavored to extricate their case from the general principle by giving it the protection of the treaty of Amiens. In pronouncing his judgment, Sir William Scott laid down the general rule thus: "Certainly nothing can be more decided and fixed, as the principle of this court, and of the Supreme Court, upon very solemn argument there, than that the possession of the soil does impress upon the owner the character of the country, so far as the produce of that plantation is concerned, in its transportation to any other country, whatever the local residence of the owner may be. This has been so repeatedly decided, both in this and the Superior Court, that it is no longer open to discussion. No question can be made upon the point of law at this day." (a)

Afterwards, in the case of The Vrow Anna Catharina, Sir William Scott laid down the rule, and stated its reason. "It cannot be doubted," said he, "that there are transactions so radically and fundamentally national as to impress the national character, independent of peace or war, and the local residence of the parties. The produce of a person's own plantation in the colony of the enemy, though shipped in time of peace, is liable to be considered as the property of the enemy, by reason that the proprietor has incorporated himself with the permanent interests of the nation as a holder of the soil, and is to be taken as a part of that country in that particular transaction, independent of his own personal residence and occupation.” (b)

It was contended that this rule, laid down with so much precision, did not embrace Mr. Bentzon's claim, because he had not "incorporated himself with the permanent interests of the nation."

(a) The Phoenix, Robinson's Adm. Rep. v. 21.

(b) The Vrow Anna Catharina, Robinson's Adm. Rep. v. 167.