Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Various Kinds of Property Liable to Capture
IT becomes important, in a maritime war, to determine with precision what relations and circumstances will impress a hostile character upon persons and property; and the modern international law of the commercial world is replete with refined and complicated distinctions on this subject. It is settled, that there may be a hostile character merely as to commercial purposes, and hostility may attach only to the person as a temporary enemy, or it may attach only to property of a particular description. This hostile character, in a commercial view, or one limited to certain intents and purposes only, will attach in consequence of having possessions in the territory of the enemy, or by maintaining a commercial establishment there, or by a personal residence, or by particular modes of traffic, as by sailing under the enemy’s flag or passport. This hostile relation, growing out of particular circumstances, assumes, as valid, the distinction which 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 adverse belligerent, and his hostility is commensurate in point of time with his country’s quarrel. But he who does not owe a permanent allegiance to the enemy, is an enemy only during the existence and continuance of certain circumstances. A neutral, for instance, said Ch. J. Eyre,1 can be an alien enemy only with respect to his acts done under a local or temporary allegiance to a power at war, and when his temporary allegiance determines, his hostile character determines also.
It was considered by Sir Wm. Scott, in the case of the Phoenix,2 and again in the case of the Vrow Anna Catharina,3 to be a fixed principle of maritime law, that the possession of the soil impressed upon the owner the character of the country, so far as the produce of the soil was concerned, wherever the local residence of the owner might be. The produce of a hostile soil hears a hostile character for the purpose of capture, and is the subject of legitimate prize when taken in a course of transportation to any other country. The enemy’s lands are supposed to be a great source of his wealth, and, perhaps, the most solid foundation of his power; and whoever owns or possesses land in the enemy’s country, though he may in fact reside elsewhere, and he in every other respect a neutral or friend, must be taken to have incorporated himself with the nation, so far as he is holder of the soil, and the produce of that soil is held to be enemy’s property, independent of the personal residence or occupation of the owner. The reasonableness of this principle will be acceded to by all maritime nations, and it was particularly recognized as a valid doctrine by the Supreme Court of the United States, in Bentzon v. Boyle.4
If a person has a settlement in a hostile country by the maintenance of a commercial establishment there, he will be considered a hostile character, and a subject of the enemy’s country, in regard to his commercial transactions connected with that establishment. The position is a clear one, that if a person goes into a foreign country, and engages in trade there, he is, by the law of nations, to be considered a merchant of that country, and a subject to all civil purposes, whether that country be hostile or neutral, and he cannot be permitted to retain the privileges of a neutral character, during his residence and occupation in an enemy’s country.5 This general rule has been applied by the English courts to the case of Englishmen residing in a neutral country, and they acre admitted, in respect to their bona fide trade to the privileges of the neutral character.6 In the case of the Danous,7 the rule was laid down by the English House of Lords in 1802, in unrestricted terms, that a British born subject, resident in Portugal, was allowed the benefit of the Portuguese character, so far as to render his trade with Holland, then at war with England, not impeachable as an illegal trade. The same rule was afterwards applied8 to a natural born British subject domiciled in the United States, and it was held, that he might lawfully trade to a country at war with England, but at peace with the United States.
This same principle, that for all commercial purposes, the domicile of the party, without reference to the place of birth, becomes the test of national character, has been repeatedly and explicitly admitted in the courts of the United States. If he resides in a belligerent country, his property is liable to capture as enemy’s property, and if he resides in a neutral country, he enjoys all the privileges, and is subjected to all the inconveniences, of the neutral trade. He takes the advantages and disadvantages, whatever they may be, of the country of his residence.9
The only limitation upon the principle of determining character from residence, is, that the party must not be found in hostility to his native country. He must do nothing inconsistent with his native allegiance, and this qualification is annexed to the rule by Sir William Scott in the case of The Emanuel. It has been questioned whether the rule does not go too far, even with this restriction; but it appears to be too well and solidly settled to be now shaken. A person is not, however, to be permitted to acquire a neutral domicile, that will protect such trade in opposition to the belligerent claims of his native country, if he emigrates from that country flagrante bello.10
It has been a question admitting of much discussion and difficulty, arising from the complicated character of commercial speculations, what state of facts constitutes a residence, so its to change or fix the commercial character of the party.11 The animus manendi appears to have been the point to be settled. The presumption arising from actual residence in any place, is, that the party is there animo manendi, and it lies upon him to remove the presumption, if it should be requisite for his safety? If the intention to establish a permanent residence be ascertained, the recency of the establishment, though it may have been for a day only, is immaterial. If there be no such intention, and the residence be involuntary or constrained, then a residence, however long, does riot change the original character of the party, or give him a new and hostile one.12 But the circumstances requisite to establish the domicile, are flexible, and easily accommodated to the real truth and equity of the case. Thus it requires fewer circumstances to constitutes domicile in the case of a native subject, who returns to re-assume his original character, than it does to impress the national character on a stranger.13 The quo animo, in each case, the real subject of inquiry, and when the residence exists freely, without force or restraint, it is usually held to be complete, whether it be an actual, or only an implied residence.
When the residence is once fixed, and has communicated a national character to the party, it is riot divested by a periodical absence, or even by occasional visits to his native country.14 Nor is it invariably necessary, that the residence be personal, in order to impress a person with a national character. The general rule undoubtedly is, that a neutral merchant may trade in the ordinary manner, to the country of a belligerent, by means of a stationed agent there, and yet not contract the character of a domiciled person. But if the principal be trading, not on the ordinary footing of a foreign merchant, but as a privileged trader of the enemy, such a privileged trade pits him on the same ground with their own subjects, and he would be considered as sufficiently invested with the national character by the residence of his agent. Sir William Scott, in the case of the Anna Catharina,15 applied this distinction to the case of a neutral, invested with the privileges of a Spanish merchant, and the full benefit of the Spanish character; and this case has been followed to its fullest extent in this country.16 It affords a sample of that piercing and unwearied investigation which the courts of admiralty had displayed, in unraveling the intricate process, by which an enemy’s trade was attempted to be protected from hostile seizure, and in the application of sound principles of national law to new and complex cases. On the same ground it has been decided,17 that an American consul general in Scotland, committing his whole duty to vice-consuls, was deemed to have lost big neutral character by engaging in trade in France; and it is well settled, that if a foreign consul carries on trade as a merchant, in an enemy’s country, his consular residence and character will not protect that trade from interruption by seizure and condemnation as enemy’s property.18
A national character acquired by residence, may be thrown off at pleasure, by a return to the native country. It is an adventitious character, and ceases by non-residence, or when the party puts himself in motion bona fide, to quit the country sine animo revertendi, and such an intention is essential in order to enable the party to reassume his native character.19 In the case of the Venus,20 the decisions of the English courts on the subject of national character acquired by residence, and on the consequences of such acquired character, were recognized as being founded on sound principles of public law. It was declared, that the law of nations distinguishes between a temporary residence in a foreign country for a special purpose, and a residence accompanied with an intention to make it the party’s domicile, or permanent place of abode; and that the doctrine of the prize courts, and the common law courts of England, was the same on this subject with that of the public jurists. As a consequence of the doctrine of domicile, the court decided, that if a citizen of the United States should establish his commercial domicile in a foreign country, and hostilities should afterwards break out between that country and the United States, his property, shipped before knowledge of the war, and while that domicile continued, would be 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 domicile in an enemy’s country, is taken 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 ruder 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 parts 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 sovereignty of the country.21
National character may be acquired in consideration of the traffic in which the party is concerned. If 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 domicile in a neutral country. He is considered its 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.22 The Supreme Court of the United 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 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, not withstanding 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.23
The next mode in which a hostile character may be impressed, according to the doctrine of the English 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 heat 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 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 Berenes v. Rucker, as early as 1760.24 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 tune 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 the condition to which the arms of his enemy had reduced him, restores to hire 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 net 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.
In the letter of Pufendorf to Groningius, published in 1701,25 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 ordinance of 1704,26 has been considered as founded upon the basis of the same rule, and its regulations made to enforce it, and to preserve to neutrals the same trade which they had been accustomed to enjoy in peace. 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 trade of the enemy, was declared to stand upon the law of nations.27 But it was in the war of 1757, 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 1759, 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. On the other hand, Hubner, who published his Treatise28 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, (and it certainly stood upon loose grounds, in point of official authority, as has been shown in a note to the 1st 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.29 On the other hand, it is certain that 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 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 exceptions of blockades and contrabands, to and between all ports of the enemy, and in all articles, although the trade should not have been open to them in time of peace.”30 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 in 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 a breach of neutrality. The rule of 1756, especially in respect to colonial trade, has also been repeatedly attacked by writers in this country, with great 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 exempted froth 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 Commercen,31 alluded to the rule, but purposely avoided expressing any opinion on the correctness of the principle. It is very possible, that if the United States should hereafter attain that elevation of maritime power and influence, which their rapid growth and great resources seem to indicate, and which shall prove sufficient to render it expedient for her maritime enemy (if any such enemy shall ever exist) to open all his domestic trade to enterprising neutrals, we might be induced to feel more sensibly than we have hitherto done, the weight of the arguments of the foreign jurists in favor of the policy and equity of the rule.
Sailing under the flag and pass of an enemy, is another mode by which a hostile character may be affixed to property; for, if a neutral vessel enjoys the privileges of a foreign character, she must expect, at the same time, to be subject to the inconveniences attaching to that character. This rule is necessary to prevent the fraudulent mask of enemy’s property. But a distinction is made, in the English cases, between the ship and the cargo. Some countries have gone so far as to make the flag and pass of the ship conclusive on the cargo also; but the English courts have never carried the principle to that extent, as to cargoes laden before the war. The English rule is, to hold the ship bound by the character imposed upon it by the authority of the government from which all the documents issue. But goods which have no such dependence upon the authority of the state may be differently considered; and if the cargo be laden in time of peace, though documented as foreign property in the same manner as the ship, the sailing under a foreign flag and pass has not been held conclusive as to the cargo.32 The doctrine of the courts in this country has been very strict on this point, and it has been frequently decided, that sailing under the license and passport of protection of the enemy, in furtherance of his views and interests, was, without regard to the object of the voyage, or the port of destination, such an illegality as subjected both ship and cargo to confiscation as prize of war.33 The federal courts placed the objection to these licenses on the ground of a pacific dealing with the enemy, and as amounting to a contract that the party to whom the license is given, should, for that voyage, withdraw himself from the war, and enjoy the repose and blessings of peace: The illegality of such an intercourse was strongly condemned; and it was held, that the moment the vessel sailed on a voyage, with an enemy’s license on board, the offense was irrevocably committed and consummated, and that the delictum was not done away even by the termination of the voyage, but the vessel and cargo might be seized after arrival in a port of the United States, and condemned as lawful prize.
Having thus considered the principal circumstances which have been held by the courts of international law, to impress a hostile character upon commerce, it may be here observed, that property which has a hostile character at the commencement of the voyage, cannot change that character by assignment, while it is in transitu, so as to protect it from capture. This would lead to fraudulent contrivances, to protect the property from capture, by colorable assignments to neutrals. During peace, a transfer in transitu may be made, but when war is existing or impending, the belligerent rule applies, and the ownership of the property is deemed to continue, as it was at the time of the shipment, until actual delivery. This illegality of transfer, during, or in contemplation of war, is for the sake of the belligerent right, and to prevent secret transfers from the enemy to neutrals, in fraud of that right, and upon conditions and reservations which it might be impossible to detect.34 So, property shipped from a neutral to the enemy’s country, under a contract to become the property of the enemy on arrival, may be taken in transitu as enemy’s property, for capture is considered as delivery. The captor, by the rights of war, stands in the place of the enemy.35 The prize courts will riot allow a neutral and belligerent, by a special agreement, to change the ordinary rule of peace, by which goods ordered and delivered to the master are considered as delivered to the consignee. All such agreements are held to be constructively fraudulent, and if they could operate, they would go to cover all belligerent property, while passing between a belligerent and a neutral country, since the risk of capture would be laid alternately on the consignor or consignee, as the neutral factor should happen to stared in the one or the other of those relations. These principles of the English admiralty have been explicitly recognized and acted upon by the prize courts in this country. The great principles of national law were held to require, that, in war, enemy’s property should not change its hostile character in transitu; and that no secret liens, no future elections, no private contracts looking to future events, should be able to cover hostile property while sailing on the ocean.36 Captors disregard all equitable liens on enemy’s property, and lay their hands on the gross tangible property, and rely on the simple title in the name and possession of the enemy. If they were to open the door to equitable claims, there would be no end to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be lost.37 All reservation of risk to the neutral consignors, in order to protect belligerent consignees, are held to be fraudulent, and these numerous and strict rules of the maritime jurisprudence of the prize courts, are intended to uphold the rights of lawful maritime capture, and to prevent frauds, and preserve candor and good faith in the intercourse between belligerents and neutrals. The modern cases contain numerous and striking instances of the acuteness of the captors in tracking out deceit, and of the dexterity of the claimants in eluding investigation.