Section II. What that government and other states (1); but the notoriety of the is War, and who are to be deemed existence of a war between two foreign states will not dispense Alien Enemies, with evidence of the fact. (2) and what con stitutes an hostile Alien Enemy An alien enemy is a person under the allegiance of the state at war with us (3). A distinction has been taken between a permanent and a temporary alien enemy. A man is said to be permanently an alien enemy, when he owes a permanent allegiance to the state at war with us, his hostility being as permanent as his allegiance, beginning at the commencement of his country's quarrel, and concluding only with the termination of the dispute; but he, who does not owe a permanent allegiance to the state at war with us, though he be himself engaged in actual combat against our forces, is not to be deemed a permanent enemy, for his hostility endures no longer than his own individual interest or convenience may continue it. This distinction between permanent and temporary enemies, as applied to the case of a neutral, was taken by Eyre, Ch. J. in the case of Sparenburgh and Bannatyne (4). In that case his Lordship said, "A neutral can be an alien enemy only with respect to what he is doing under a local or temporary allegiance to a power at war with us; when the allegiance determines, the character determines. He can have no fixed character of alien enemy who owes no fixed allegiance to our enemy, and has ceased to be in hostility against us ;*it being only in respect of his being in a state of actual hostility, that he was even for a time an enemy at all." So though a state may be in the military possession of one of two belligerents, that will not constitute her subjects enemies to the other belligerent, if the sovereign power of the latter causes to permit a continuance of commerce with them; therefore, where an insurance was effected on property shipped in this country on account of persons who were domiciled at Hamburgh, at a time when that country was in the possession of French troops, the senate continuing to exercise the powers of civil government in the same manner as before, it was beld, that the assured were entitled to recover for a loss which happened in the course of a voyage, permitted by His Majesty's orders in council. (5) (1) Id. ib. Thelluson v. Costling, 4 Esp. Rep. 266. (2) Dolder v. Ld. Huntingfield, 11 Ves. J. 292. (3) Per Eyre, Ch. J. in Sparenburgh v. Bannatyne, 1 Bos. and Pul. 163. As to who are aliens, (4) 1 Bos. & Pul. 163. 450. is War, and who and what con Commercial Besides those persons who are alien enemies strictly so called, Section II. What as actually bearing arms against one of the belligerent nations, or are to be deemed being liable to be called upon to bear arms against her by the Alien Enemies, obligation of their allegiance, we have to consider a hostile rela- stitutes an hostile tion of a much more complicated nature, the relation that exists Character for between a belligerent nation, and that class of persons who, Purposes. though they be not, during a whole war, nor even at a parti- of an hostile cular period of it, enemies in the strict sense of the word, abso- Character merely as to lutely and in all respects, yet must be deemed alien enemies to commercial Purcertain intents and purposes of a commercial nature, so that poses. their property may, for the most part, be taken as prize, according to the laws of war between adverse belligerents. Therefore, when we speak of an hostile character, it is to be understood to imply, not hostility to all intents and purposes, but only that degree of hostility which attaches to particular property, and which has been held to authorize the seizure of it. Possessions or the Maintenance there. The hostile character, thus understood, may be acquired in Hostile Characseveral ways. "It cannot be doubted," said Sir Wm. Scott in his ter, by having judgment on the Vrow Anna Catharina (1), "that there are trans- residing in the Territory of the actions so radically and fundamentally national, as to impress Enemy, or by the national character independent of peace or war. The pro- of a Commercial duce of a person's own plantation in the colony of the enemy, Establishment 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 is to be taken as part of that country in that particular transaction, independent of his own personal residence and occupation." So too in the case of the Phoenix (2), Sir Wm. Scott delivered the following principle: "Certainly nothing can be more decided and fixed, as the principle of this court, and of the supreme court, upon every solemn argument there, that the possession of the soil does impress upon the owner the character of the country, as 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 in the superior court, that it is no longer open to discussion. No question can be made on the point of law at this day. First, then, it appears that the produce of the hostile soil is to be considered as bearing a hostile character, and certainly, if any property ought to be War is, and who and what con stitutes an hostile Character for Section II. What considered as bearing such a character at all, for purposes of are to be deemed seizure, nothing can be more reasonable, than that the tracts of Alien Enemies, the enemy's land, one of the greatest sources, and as some have supposed the sole source of national wealth, should be regarded as legitimate prize. That the interest of friends may sometimes be involved in our vengeance upon enemies, is a matter which it is natural to regret, but impossible to avoid. The administration of public rules admits of no private exceptions, and he who clings to the profits of a hostile connection must be content to bear its losses also. Secondly, it will be found, that a settlement in a hostile jurisdiction, whether it be by residence, or merely by the maintenance of a commercial establishment, impresses on the person so settling, the character of the enemies among whom he settles, in regard to such of his commercial transactions as are connected with that settlement." The ship President (1) was taken on a voyage from the Cape of Good Hope, then in possession of the Dutch, at war with us, to Europe, and claimed for Mr. J. Elmslie as a subject of America. It appeared that he had been a British-born subject, who had gone to the Cape of Good Hope during the last war, and had been employed as American consul at that place. Sir Wm. Scott said, "The court must, I think, surrender every principle on which it has acted in considering the question of national character, if it were to restore this vessel. The claimant is described to have been for many years settled at the Cape with an established house of trade, and as a merchant of that place, and must be taken as a subject of the enemy's country." In the case too of the Indian Chief (2), Sir Wm. Scott said, "No position is more established than this, that if a person goes into another country, and engages in trade and resides there, he is by the law of nations to be considered as a merchant of that country." In the case of M'Connel and Hector (3), Lord Alvanley said, "That while an Englishman resides in a hostile country, he is a subject of that country." And upon the same principle in the case of De Luneville v. Phillips (4), the court, upon discovering that the plaintiff was resident in an enemy's country, refused to afford her relief. And Lord Ellenborough, in a subsequent case, declared, that if a British subject resides in an enemy's country, without being detained as a prisoner of (1) 5 Rob. Rep. 277. (3) 3 Bos. & Pul. 113. war, he is precluded from suing here, nor does it signify that he is recognized as a citizen of a neutral state (1); but in order to prevent a British subject who is in an enemy's country from suing here, it must be proved that his residence there was voluntary. (2) In the earlier part of the last war, a very general misapprehension prevailed among the American merchants, who conceived themselves entitled to retain the entire privilege of the American character, notwithstanding a residence and occupation in any other country. This misapprehension was, however, corrected by a great number of decisions of our courts. In the case of the Anna Catharina (3), a gentleman had been at first described as an American merchant; but upon further proof being required by the court, he was described as a person having a house of trade and actually living at Curacoa, then a Dutch possession. Under this description, Sir Wm. Scott said, "he is undoubtedly to be considered as an enemy at the commencement of this transaction, Holland being at that period of time the enemy of this country." Upon the same principle, a foreigner lawfully residing within the British dominions has been held to be for various commercial purposes a British subject. In the case of the Indian Chief (4), a cargo, which belonged to Mr. Millar, an American consul resident at Calcutta, and which had been taken in trade with the enemy, was condemned as the property of a British merchant engaged in illegal commerce. "It is said to be hard," observed Sir Wm. Scott," that Mr. Millar should incur the disabilities of a British subject, at the same time that he receives no advantage from that character; but I cannot accede to that representation, because he is in the actual receipt of the benefit of protection for his person and commerce from British arms and British laws; under an existing British administration in the country, he may be subject to some limitations of commerce incident to such establishments, which would not occur in Europe, (1) O'Mealey v. Wilson, 1 Campb. 482; but in a subsequent case, it was held, at Nisi Prius, that an action may be maintained here by a neutral, on a promissory note given him by a British goods sold there. Houriet v. Mor- (2) Roberts v. Hardy and others, (3) 4 Rob. Rep. 107. Section II. What is war, and who are to be deemed Alien Enemies, stitutes an hostile and what con Character for Section II. What but he must take his situation with all its duties, and amongst is War, and who are to be deemed those duties, the duty of not trading with the enemies of this country." Alien Enemies, and what constitutes ån hostile Character for Commercial Purposes. This general rule, that a person's settlement will impress him with the national character of the place where he is settled, is not confined to the instance of persons settling among enemies; it is admitted with great impartiality in all cases, and therefore, Lord Alvanley, in his judgment in the case of M'Connel and Hector (1), gave it as his own determination, and quoted as a further authority, the case of Marryatt v. Wilson (2), that an Englishman is entitled to all the privileges of a neutral country, while resident in a neutral country. So also, Sir Wm. Scott, in the case of the Emanuel (3), stated it as a general rule, that a person living bona fide in a neutral country, is fully entitled to carry on a trade to the same extent as the native merchants of the country in which he resides; provided it is not inconsistent with his native allegiance. And the same doctrine seems to have been decided, even beyond the reservation of native allegiance, in the case of Danvers (4), which was determined before the Lords. In this case a British-born subject, resident at the English factory at Lisbon, was allowed the benefit of a Portuguese character, so far as to render his trade with Holland, then at war with England, but not with Portugal, not impeachable as an illegal trade. It is true, that in the case of De Metton v. De Mello (5), Lord Ellenborough does not notice these decisions; but the observations of his Lordship in that case, particularly when coupled with the concluding part of his judgment, which advised that the plaintiff should go back to the Court of Admiralty, and have the matter set right there, appear to amount to nothing like a denial of the above doctrine. So it has been recently determined, that a natural-born subject of this country, domiciled in a foreign country in amity with this, may lawfully exercise the privileges of a subject of the country where he is domiciled, to trade with another country in hostility with this; and therefore, where the plaintiff in an action, being a British-born subject domiciled in America, effected a policy of assurance on freight and goods at and from Virginia to any port in the Baltic, and the ship was captured in her way to Elsineur (1) 3 Bos. & Pul. 114. (2) 1 Bos. & Pul. 43. 8 Term Rep. 31. (3) 1 Rob. Rep. 296. (4) 4 Rob. Rep. 255. (5) 2 East. 234. 2 Campb. 420. |