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flags." On this statement of facts the court observed that "transfers of vessels flagrante bello were originally held invalid," but that the rule had been "modified." The court quoted from Hall's International Law, 4th edition, page 525, as containing the correct rule of law, the following passage: "In England and the United States, on the contrary, the right to purchase vessels is in principle admitted, they being in themselves legitimate objects of trade as fully as any other kind of merchandise, but the opportunities of fraud being great, the circumstances attending a sale are severely scrutinized, and the transfer is not held to be good if it is subjected to any condition or even tacit understanding by which the vendor keeps an interest in the vessel or its profits, a control over it, a power of revocation, or a right to its restoration at the conclusion of the war." The burden of proof, said the court, was on the claimant. In conclusion, the court held that the requirements of the law of prize were not satisfied by the proofs in question, and that the condemnation was proper.

The Benito Estenger, 176 U. S. 568.

The court cited Story's Notes on the Principles and Practice of Prize
Courts (Pratt's ed.) 63; 2 Wheat., App. 30; the Sechs Gesch-
wistern, 4 C. Rob. 100; the Jemmy, 4 C. Rob. 31; The Omnibus, 6 C.
Rob. 71; The Island Belle, 13 Fed. Cases, 168; The Baltica, Spinks's
Prize Cases, 264; The Soglasie, Spinks's Prize Cases, 104; The Ernst
Merck, Spinks's Prize Cases, 98.

Justices Shiras, White, and Peckham dissented.

The President did "not find himself justified in exercising clemency
(Mr. Hill, Act. See. of State, to Attorney-General, Feb.
13, 1901, 250 MS. Dom. Let. 651.)

in this case.

"Merchant vessels acquired from a hostile power or its subjects by persons of neutral nationality are acknowledged to be hostile vessels unless it is proven that the acquisition must be considered, according to the laws of the nation to whom the purchasers belong, as having actually taken place before the purchasers received news of the declaration of war, or that the vessels acquired in the manner mentioned, although after the receipt of such news, were acquired quite conscientiously, and not for the purpose of covering hostile property.”

Russian Prize Regulations, March 27, 1895, § 7, For. Rel. 1904, 736.

VIII. ENEMY CHARACTER.

1. BELLIGERENT DOMICIL

§ 1189.

The domicil of a merchant, and not his natural allegiance, determines the neutral or unneutral character of his trade.

Chester . Experiment, Federal Court of Appeals (1787), 2 Dall. 41.
See, also, the Harmony (1800), 2 C. Rob. 322; The Herman, 4 C. Rob. 228;
Jonge Klassina, 5 C. Rob. 302; Wilson v. Marryat, 8 T. R. 45; Bell r.
Reid, 1 Maul. & Selw. 726; The Abo, 1 Spinks, 345; The Gerasimo,
11 Moo. P. C. 88; The Baltica, id. 141.

While a citizen of the United States by settling permanently abroad for business purposes, so as to acquire a commercial domicil in such place of settlement, may impress upon his property found on the ocean the legal liabilities of such domicil, it does not follow from this that he becomes expatriated, so as to divest himself of the responsibilities and liabilities of citizenship of the United States.

United States v. Gillies, Pet. C. C. 159.

An American citizen, residing in a foreign country, may acquire the commercial privileges attached to his domicil; and, by making himself the subject of a foreign power, he places himself out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance.

Murray . The Charming Betsey, 2 Cranch, 64.

See, also, United States r. Cargo of El Telegrafo, 1 Newb. Adm. 383.

A Spanish subject, who comes to the United States in time of peace to carry on trade, and remains here engaged in trade after a war has been begun between Spain and Great Britain, is to be deemed an American merchant by the law of domicil, although by the law of Spain the trade in which he was engaged could be carried on only by a Spanish subject; his neutral character depending, not on the kind of trade in which he was engaged, but on his domicil.

Livingston . Maryland Ins. Co. (1813), 7 Cranch, 506,

See, also, the Pizarro (1817), 2 Wheat. 227.

Where a naturalized citizen of the United States, of British origin, was, on the declaration of war by the United States against Great Britain, domiciled within the dominions of the latter power, it was held that his property, shipped from England after the declaration of war, but before the declaration was known there, was subject to capture and condemnation as enemy's property.

The Venus (1814), 8 Cranch, 253.

Marshall, C. J., dissented, and his dissent is approved by Chancellor Kent (1 Com. 79), and by Mr. Duer (1 Duer on Insurance, 496–498).

James Thompson, a native of Scotland, came to the United States in 1793, and resided there, carrying on trade, till 1801. In 1797 he was naturalized. In 1801 he went to France on the business of his house; he afterwards went to England on similar business. In 1803 he settled in Glasgow, where he continued to attend to the business of his partnership till 1812, when the United States declared war. After knowledge of that event, he transacted no commercial business whatever, but applied himself to arranging his affairs so as to return to the United States. This accomplished, he engaged passage in

August, 1813, on a cartel ship from Liverpool to New York, but, being stopped by orders of the Government, went over to Ireland and privately embarked for the United States, where he arrived in November, 1813. There were affidavits to show that he always considered the United States his permanent place of residence, and that he uniformly expressed his intention to return. His letters manifested the same intention. His business was complicated, and required his attention after he ceased to engage in new adventures. He appeared as the claimant of certain goods of British manufacture, consigned to various persons in the United States and shipped on the ship Frances, which sailed from Greenoch, Scotland, for New York, July 19, 1812. The Frances was captured by an American privateer, war having been declared by the United States against Great Britain, June 18, 1812. The goods were shipped without knowledge of the war. Held, on the authority of the case of the Venus, that, as the rights of Thompson depended on his national commercial character, the goods must be condemned.

The Frances (1814), 8 Cranch, 335.

Certain goods belonged to Colin Gillespie, a native of Great Britain, who emigrated to the United States in 1793 and was naturalized in 1798. He went to Great Britain on commercial business in 1794 and 1796; was in the United States in 1795 and 1797; returned to Great Britain in 1799 and married there; went, in the same year, with his wife, to New York, and remained there till June, 1802; then revisited Great Britain and resided there till November, 1805, when he returned to the United States and formed a partnership in New York; returning in the same year to Glasgow, he continued in business there, both while his partnership lasted and after its dissolution, till July 2, 1813, when he returned to the United States with his family. He kept house at Glasgow, and built a warehouse there, which he still owned, and in which he kept his counting house. He deposed that he determined to return to the United States when he heard of the declaration of war, but was prevented from immediately doing so by engagements and commercial affairs, some of which he finally left unarranged. Held, on the authority of the case of the Venus, that the goods must be condemned as enemy property.

The Frances (1814), 8 Cranch, 363.

See The St. Lawrence, 1 Gall. 467; The Frances, id. 314.

A merchant having a fixed residence, and carrying on business at the place of his birth, does not acquire a foreign commercial character by occasional visits to a foreign country.

The Nereide, 9 Cranch, 388.

Goods, the property of merchants actually domiciled in the enemy's country at the breaking out of the war, are subject to capture and confiscation as prize.

The Mary and Susan, 1 Wheat. 46.

See, particularly, a note by Mr. Wheaton to this case.

A Frenchman who had resided thirteen years in Mexico was held to have acquired a domicil in the enemy's country, subjecting him, so far as his property was concerned, to all the disabilities of an alien enemy.

Rogers r. The Amado, 1 Newb. Adm. 400.

All persons, whether foreigners or not, residing within the territory occupied by the hostile party in the civil war in the United States, are liable to be treated as enemies.

The Prize Cases, 2 Black, 635; The Venice, 2 Wall. 258; The William
Bagaley, 5 Wall. 377; The Gray Jacket, 5 Wall. 342; The Pioneer,
Blatchf. Prize Cas. 61; The Prince Leopold, id. 89; The Lilla, 2
Sprague, 177.

Property left in a hostile country by an owner who, abandoning such country, returns to his proper allegiance, becomes, unless a prompt effort is made to remove it, impressed with a hostile character, and is liable to the consequences attaching to enemy's property.

The William Bagaley, 5 Wall. 377.

The court reaffirms the ruling in the William Bagaley (5 Wall. 377), that a resident of a section in rebellion should leave it as soon as practicable and adhere to the regular established government; and furthermore holds that one who, abandoning his home, enters the military lines of the enemy and is in sympathy and cooperation with those who strive by armed force to overthrow the Union, is, during his stay there, an enemy of the Government, and liable to be treated as such, both as to his person and property.

Gates v. Goodloe, 101 U. S. 612.

"As to strangers, those who settle in the enemy's country after a war is begun, of which they had previous notice, may justly be looked upon as enemies, and treated as such. But in regard to such as went thither before the war, justice and humanity require that we should give them a reasonable time to retire; and if they neglect that opportunity, they are accounted enemies."

Burlamaqui, Principles of Natural and Politic Law (translated by Nugent, 1763) II. 281, adopted, as far as quoted, by Mr. Pinkney as commissioner in the case of the Betsey, Wheaton's Life of Pinkney, 251.

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"According to Chancellor Kent, the principle that for all commercial purposes the domicil 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' (here domicil' and residence' are treated as convertible by Chancellor Kent, which, if the latter term be regarded as defining the rule, would largely extend belligerent rights) 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 subject to all the inconveniences, of the neutral trade.' (1 Kent Com. 75; The Chester, 2 Dall. 41; Maley . Shattuck, 3 Cranch, 458; The Venus, 8 id. 253. To the same effect, see The William Bagaley, 5 Wall. 377; The Cheshire, 3 Wall. 231.) Sir Robert Phillimore, on the other hand, evidently accepts this position with reluctance (4 Phill. 169), though it is reaffirmed by Mr. Dicey, who states the distinction to be as follows: 'A commercial domicil is such a residence in a country for the purpose of trading there as makes a person's trade or business contribute to or form part of the resources of such country, and renders it, therefore, reasonable that his hostile, friendly, or neutral character should be determined by reference to the character of such country. When a person's civil domicil is in question, the matter to be determined is whether he has or has not so settled in a given country as to have made it his home. When a person's commercial domicil is in question, the matter to be determined is whether he is or is not residing in a given country with the intention of continuing to trade there.' (Dicey on Domicil, 345; see further Whart. Confl. of Laws, § 70.) This is clearly put; and if we accept the position that an enemy's goods may be seized at sea wherever found, gives us at least a line of demarkation readily understood and easily applied. It is, however, to be regretted that the term 'domicil' should be adapted to conditions so different as residence with intention to establish a permanent home, and residence with intention to engage in business. The rejection of this distinction renders still more objectionable the claim of belligerents to seize an enemy's goods at sea. If by an enemy' is to be considered any one who by his business contributes to the resources of an enemy's country, it would be hard for any goods on the high seas, in any way related to a belligerent country, to escape the meshes of the net of the other belligerent. And even were we to holds that a commercial domicil' of this kind stamps the party accepting it with the political character of the country in which he does business, the more reasonable view is that if he engage in such business in time of peace, this domicil,' if not adopted as final, ceases when the sovereign of such country enters into a war which could not have been contemplated by the party when he engaged in the business. This is the position taken by Marshall, C. J., in The

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