liable to capture, on the ground that his permanent residence had stamped him with the national character of that country. The hostile character was deemed to attach to the American citizen, only in respect to his property connected with his residence in the enemy's country; and the converse of the proposition was also true, that the subject of a belligerent state, domiciled in a neutral country, was to be considered a neutral by both the belligerents, in reference to his trade. The doctrine of enemy's property, arising from a domicil in an enemy's country, is enforced strictly; and equitable qualifications of the rule, are generally disallowed, for the sake of preventing frauds on belligerent rights, and to give the rule more precision and certainty.

In the law of nations, as to Europe, the rule is, that men take their national character from the general character of the country in which they reside; and this rule applies equally to America. But in Asia and Africa an immiscible character is kept up, and Europeans, trading under the protection of a factory, take their national character from the establishment under which they live and trade. This rule applies to those parts of the world from obvious reasons of policy, because foreigners are not admitted there, as in Europe, "and the western part of the world," into the general body and mass of the society of the nation, but they continue strangers and sojourners, not acquiring any national character under the general sov- *80 ereignty of the country. (a)

National character may be acquired in considera- Character tion of the traffic in which the party is concerned. If from traffic. a person connects himself with a house of trade in the enemy's country, in time of war, or continues during a war a connection formed in a time of peace, he cannot protect himself by having his domicil in a neutral country. He is considered as impressed with a hostile character, in reference to so much of his commerce as may be connected with that establishment. The rule is the same, whether he maintains that establishment as a partner or as a sole trader. (b) The Supreme Court of the United

(a) The Indian Chief, 3 Rob. Rep. 22.

(b) The Vigilantia, 1 Rob. Rep. 1. The Portland, 3 Rob. Rep. 41. The San Jose

States, referring to the English prize cases on this subject, observed, that they considered the rule to be inflexibly settled, and that they were not at liberty to depart from it, whatever doubt might have been entertained if the case was entirely

new.

But though a belligerent has a right to consider as enemies all persons who reside in a hostile country, or maintain commercial establishments there, whether they be by birth neutrals, or allies, or fellow-subjects, yet the rule is accompanied with this equitable qualification, that they are enemies sub modo only, or in reference to so much of their property as is connected with that residence or establishment. This nice and subtle distinction allows a merchant to act in two characters, so as to protect his property connected with his house in a neutral country, and to subject to seizure and forfeiture his effects belonging to the establishment in the belligerent country. So there may be a partnership between two persons, the one residing in a neutral, and the other in a belligerent country, and the * 81 trade of one of them with the enemy will be held lawful, and that of the other unlawful, and consequently the share of one partner in the joint traffic will be condemned, while that of the other will be restored. This distinction has been frequently sustained, notwithstanding the difficulties that may attend the discrimination between the innocent and the noxious trade, and the rule has been introduced into the maritime law of this country. (a)

Colonial

The next mode in which a hostile character may be trade of the impressed, according to the doctrine of the English enemy. courts, is by dealing in those branches of commerce which were confined, in time of peace, to the subjects of the enemy. There can be no doubt, that a special license, granted by a belligerent to a neutral vessel, to trade to her colony, with all the privileges of a native vessel, in those branches of commerce which were before confined to native subjects, would warrant the presumption that such vessel was adopted and

Indiano, 2 Gallison, 268. The Antonia Johanna, 1 Wheaton, 159. The Friendschaft, 4 Wheaton, 105.

(a) The Portland, 3 Rob. Rep. 41. The Herman, 4 Rob. Rep. 228. Classina, 5 Rob. Rep. 297. The San Jose Indiano, 2 Gallison, 268.

The Jonge

naturalized, or that such permission was granted in fraud of the belligerent right of capture, and the property so covered may reasonably be regarded as enemy's property. This was the doctrine in the case of Berens v. Rucker, as early as 1760. (a) But the English rule goes further, and it annexes a hostile character, and the penal consequences of confiscation, to the ship and cargo of a neutral engaged in the colonial or coasting trade of the enemy, not open to foreigners in time of peace, but confined to native subjects by the fundamental regulations of the state. This prohibition stands upon two grounds: 1st. That if the coasting or colonial trade, reserved by the permanent policy of a nation to its own subjects and vessels, be opened to neutrals during war, the act proceeds from the pressure of the naval force of the enemy, and to obtain relief from that pressure. The neutral who interposes to relieve the belligerent, under such circumstances, rescues him from *82 the condition to which the arms of the enemy had reduced him, restores to him those resources which had been wrested from him by the arms of his adversary, and deprives that adversary of the advantages which successful war had given him. This the opposing belligerent pronounces a departure from neutrality, and an interference in the war, to his prejudice. 2d. If the trade be not opened by law, the neutral employed in a trade reserved by the enemy to his own vessels, identifies himself with that enemy, and assumes his character. These principles first became a subject of interesting discussion in the war of 1756, and they are generally known in England, and in this country, by the appellation of the rule of 1756; but the rule is said to have been asserted before that period.

Rule of 1756.

In the letter of Puffendorf to Groningius, published in 1701, (b) he says that the English and the Dutch were willing to leave to neutrals the commerce they were accustomed to carry on in time of peace, but were not willing to allow them to avail themselves of the war to augment it, to the prejudice of the English and the Dutch. The French ordi

(a) 1 Wm. Bl. Rep. 313. See, also, the case of The Princessa, 2 Rob. 52. The Anna Catharina, 4 Rob. 107. The Rendsborg, Ibid. 121. The Vrow Anna Catharina, 5 Rob. 15.

(b) Puff. Droit des Gens, par Barbeyrac, tom. ii. 558.

nances of 1704 and 1744, (a) have been considered as founded upon the basis of the same rule, and regulations are made to enforce it, and to preserve to neutrals the same trade which they had been accustomed to enjoy in peace, and to prohibit them from engaging in the colonial trade of the enemy. There is some evidence, also, that in the reign of Charles II., neutral vessels were considered, both by England and Holland, to be liable to capture and condemnation, for being concerned in the coasting trade of the enemy. The Dutch, at that day, contended for this neutral exclusion, on the authority of general reasoning and the practice of nations; and the same rule is said to have been asserted in the English courts, in the war of 1741, and the exclusion of neutral vessels from the coasting * 83 trade of the enemy was declared to stand upon * the law of nations. (b) But it was in the war of 1756 that the rule awakened general and earnest attention. Mr. Jenkinson, in his "Discourse on the conduct of Great Britain in respect to neutral nations," written in 1757, considered it to be unjust and illegal for neutrals to avail themselves of the pressure of war, to engage in a new species of traffic, not permitted in peace, and which the necessities of one belligerent obliged him to grant to the detriment, or perhaps to the destruction of the other. (c) On the other hand, Hübner, who published his treatise (d) in 1759, is of opinion that neutrals may avail themselves of this advantage presented by the war, though he admits the lawfulness of the trade to be a question of some uncertainty.

Thus seemed to stand the authority of the rule of 1756, (e)

(a) 2 Valin's Com. 248, 250.

(b) 6 Rob. Rep. 74, note, and 252, note.

(c) In the British Memorial, addressed to the Deputies of the States General of Holland, December 22d, 1758, the injustice of neutrals in assuming the enemy's carrying trade was urged, and it was declared that their high mightinesses had never suffered such a trade, and that it had been opposed in all countries in like circum

stances.

(d) De la Saisie des Batimens Neutres. Mr. Wheaton, in his History of the Law of Nations in Europe and America, New York, 1845, pp. 219–228, has given a summary of the two small volumes of Hübner on neutral rights; and he says that the doctrines of Hübner found but little favor with the public jurists, his contemporaries. It is a work of inferior weight and authority.

(e) It stood upon loose grounds, in point of official authority, according to the able examination of the documentary evidence of the rule, given in a note to the first volume of Mr. Wheaton's Reports, App. note 3.

*

when it was revived and brought into operation by England, in the war of 1793, and again upon the renewal of war in 1803. The rule was enforced by her, under occasional relaxations, during the long course of the wars arising out of the French revolution; and it was frequently vindicated by Sir William Scott, in the course of his judicial decisions, with his customary ability and persuasive manner, as a rule founded in natural justice, and the established jurisprudence of nations. (a) On the other hand, the government of the United States constantly and earnestly protested against the legality of the rule, to the extent claimed by Great Britain; and they insisted, in their diplomatic intercourse, that the rule was an attempt to establish "a 84 new principle of the law of nations," and one which subverted "many other principles of great importance, which have heretofore been held sacred among nations." They insisted, that neutrals were of right entitled "to trade, with the exception of blockades and contrabands, to and between all ports of the enemy, and in all articles, although the trade should not have been opened to them in time of peace." (b) It was considered to be the right of every independent power to treat, in time of peace, with every other nation, for leave to trade with its colonies, and to enter into any trade, whether new or old, that was not of itself illegal, and a violation of neutrality. One state had nothing to do with the circumstances or motives which induced another nation to open her ports. The trade must have a direct reference to the hostile efforts of the belligerents, like dealing in contraband, in order to render it breach of neutrality. The rule of 1756, especially in respect to colonial trade, has also been attacked and defended by writers in this country, with ability and learning; and though the rule would seem to have received the very general approbation of British lawyers and statesmen, yet it was not exempt from severe criticism, even in distinguished publications in that country. The principle of the rule of 1756 may, therefore, very fairly be considered as one unsettled and doubtful, and open to future and vexed discussion. The Chief Justice of the United States, in the case of The Com

(a) The Immanuel, 2 Rob. Adm. Rep. 186, and Rob. Rep. passim.

(b) Mr. Monroe's Letter to Lord Mulgrave, of September 23d, 1805, and Mr. Madison's Letter to Messrs. Monroe and Pinckney, dated May 17th, 1806.