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be liable to be considered as a subject of both, with regard to the transactions originating respectively in those countries.”
And the same learned judge, in another case' says: “The personal domicil of the claimant, is at Embden, where he resides, and has a house of trade. He is only connected with this country by his partnership in a house here, which is to be taken in a manner, as collateral and secondary to this house at Embden. That he may carry on trade with the enemy at his house in Embden cannot be denied, provided it does not originate from his house in London, nor vest an interest in that house.”
In another case, the distinction is very clearly drawn between that trade, as affected with liability to capture and forfeiture, which a merchant may carry on at his hostile, and that which he may carry on at his neutral establishment. .
In this case, the claimant resided in a neutral country, but had two commercial establishments, one in a neutral country, and the other at Ostend,. in a hostile country.
In disposing of this case, in which there were nine other ships involved, besides the Portland, Lord Stowell observes: “As to the circumstance of his being engaged in trading with Ostend, I think it will be difficult to extend the consequences of that act, whatever they may be, to the trade which he was carrying on at Hamburgh, and having no connection with Ostend, because, call it what you please, a colorable character as to the trade carried on at Ostend, I cannot think it will give
The Herman, 4 Rob., 228.
The Portland, 3 Rob., 41.
such a color to his other commerce, as to make that liable for the frauds of his Ostend trade. As far ils the person is concerned, there is a neutral residence. As far as the commerce is concerned, the nature of the transaction and destination are perfectly neutral, unless it can be said, that trading in an enemy's commerce, makes a man, as to all his concerns, an enemy—or, that being engaged in a house of trade in the enemy's country, would give a general character to all his transactions. I do not see how the consequences of Mr. Ostermeyer's trading to Ostend can affect his commerce in other parts of the world. I know of no case, nor of any principle, that would support such a position as this—that a man, having a house of trade in an 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 belonged to his belligerent domicil.”
Residence of The national character of a ship is, in general, owner determining nation. Il termined by the residence of her owner. There al character of a ship as gen. may, however, be circumstances connected with the
particular or special conduct of the ship which will vary the presumption of character arising from resi.
dence. Ship consider. If a ship, of whatever nation as to her owner's ed of the nation whose residence, is navigating the seas under a pass of a
as foreign nation, she is regarded to all intents, so to liability to far as liability to capture is concerned, as a ship of capture.
that nation. Sometimes the Upon the same principle, if a ship be purchased national character of vessel by a neutral in the country of the enemy, and is
employed subsequently and habitually in the trade is determined
by its employ. of that country, commencing with the war, continu- ment. ing during the war, and on account of the war, she is to be deemed, notwithstanding a bona fide change of ownership, a ship of the country where she is thus employed.
In pronouncing judgment of condemnation in the case of The Vigilantia, before cited, Lord Stowell says: “Here is a Dutch built vessel—a Dutch fishing vessel—that went from Amsterdam regularly and habitually to Greenland, and to return to Amsterdam, there to deliver her cargo. She is pur. chased in Holland. She is purchased avowedly for the purpose of pursuing the same course of commerce—the fishing trade of Holland. She is purchased at a time when it is said there was a defect of conveniences for carrying on this trade at Embden. But I am satisfied it was the intention of the parties to carry on this trade to and from Amsterdam. Now, I ask, upon what ground is it that this vessel, so purchased, and so employed, is to be con. sidered merely as a Prussian vessel ? Here is a ship as thoroughly engaged and incorporated in Dutch commerce as a ship possibly can be. She is fitted out uniformly from Amsterdam. She is fitted out with Dutch manufacture. She is fitted out for Dutch importation, in all respects employing and feeding the industry of that country. She is managed by a Dutch ship’s husband, and finding occupation for the commercial knowledge and industry of the subjects of that country. She is commanded by a Dutch captain ; she is manned by a Dutch
1 Rob. 1.
crew, and brings back the produce of her voyage for Dutch consumption and Dutch revenue. If to this you add that the vessel is transferred by the Dutch, because they themselves are unable to carry on the trade avowedly in their own persons, it is truly a Dutch commerce in a very eminent degree, not only in its essence, but for the very hostile purpose of rescuing and protecting the Dutch from the naval superiority of their British enemy.
“There had been a determination last war, in the case of two persons, one resident at St. Eustatius, and the other in Denmark, who were partners in a house of trade at St. Eustatius. The one who resided there, forwarded the cargoes to Europe; the other received them at Amsterdam, disposed of them there, and then returned to Denmark. It was decided, in that case, that the share of the person resident in St. Eustatius was liable to condemnation as the property of a domiciled Dutchman, and that the share of the other partner should be restored as the property of a neutral. (The Jacobus Johannes. House of Lords, Feb. 10, 1785.)
“There was also a case in this war of some persons who migrated from Nantucket to France, and there carried on a fishery very beneficial to the French. In that case, the property of a partner domiciled in France was condemned, whilst the property of another partner, resident in America, was restored. From these two cases a notion had been adopted, that the domicil of the parties was that alone to which the court had a right to resort; but the case of Coopman, House of Lords, April 9, 1798, was lately decided on very different principles. It was there said by the Lords that the former cases were
cases merely at the commencement of a war; that in the case of a person carrying on trade habitually in the country of the enemy, though not resident there, he should have time to withdraw himself from that commerce, and that 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 it was then expressly laid down, that if a person entered into a house of trade, in the enemy's country, in time of war, or continued that connection during the war, he should not protect himself by mere residence in a neutral country.
“ That decision instructs me in this doctrine-a doctrine supported by strong principles of equity and propriety—that there is a traffic which stamps a national character on the individual, independent of that character which mere personal residence may give him."
nator og mor hanarily confined
There is still another mode in which a hostile Hostile char
acter impresscharacter may be imparted to the person, so as to ed by engage
ment in comsubject his property to capture, and that is, by a merce ordicommerce of that peculiar character as may be re.
ay De les to the adverse Garded to be confined to the subjects of the adverse belligerent. belligerents themselves.
The case illustrating this point, is The Princessa, The facts in this case are stated by the learned judge in his decision. Lord Stowell says: “This is a Spanish frigate, employed as a packet of the king of Spain, to bring bullion and specie from South America to old Spain; and I think the presumption is most strong, that none but Spanish sub
* 2 Rob., 49.