for the undertaking was altogether voluntary and inexcusable.24

So also, where goods were purchased, some time before the war, by the agent of an American citizen in Great Britain, but not shipped until nearly a year after the declaration of hostilities, they were pronounced liable to confiscation. Supposing a citizen had a right, on the breaking out of hostilities, to withdraw his property, purchased before the war, from the enemy's country, (on which the court gave no opinion,) such right must be exercised with due diligence, and within a reasonable time after a knowledge of hostilities. To admit a citizen to withdraw property from a hostile country a long time after the commencement of war, upon the pretext of its having been purchased before the war, would lead to the most injurious consequences, and hold out temptations to every species of fraudulent and illegal traffic with the enemy. To such an unlimited extent the right could not exist.25

We have seen what is the rule of public and municipal law on this subject, and what are the sanctions by which it is guarded. Various attempts have been made to evade its operation, and to escape its penalties; but its inflexible rigour has defeated all these attempts. The apparent exceptions to the rule, far from weakening its force, confirm and strengthen it. They all resolve themselves into cases where the trading was with a neutral, or the circumstances were considered as implying a license, or the trading was not consummated until the enemy had ceased to be such. In all other cases, an express license from the government is held to be necessary to legalize commercial intercourse with the enemy.26

L

Not only is such intercourse with the enemy, on the part $ 14. of the subjects of the belligerent state, prohibited and pun- with the

24 Cranch's Rep. vol. viii. p. 155. The Rapid.

25 Cranch's Rep. vol. viii. p. 434. The St. Lawrence. Vol. ix. p. 120, S. C.

26 Robinson's Adm. Rep. vol. vi. p. 127. The Franklin. Vol. iv. p. 195. The Madonna delle Grazie. Vol. v. p. 141. The Juffrow Catharina. P. 251. The Alby. Wheaton's Rep. vol. ii. Appendix, Note I. p. 34.

Trade

common

allied sub

jects.

ished with confiscation in the prize courts of their own counenemy, unlawful on try, but, during a conjoint war, no subject of an ally can trade the part of with the common enemy, without being liable to the forfeiture in the prize courts of the ally of his property engaged in such trade. This rule is a corollary of the other, and is founded upon the principle that such trade is forbidden to the subjects of the co-belligerent by the municipal law of his own country, by the universal law of nations, and by the express or implied terms of the treaty of alliance subsisting between the allied powers. And as the former rule can be relaxed only by the permission of the sovereign power of the state, so this can be relaxed only by the permission of the allied nations according to their mutual agreement. A declaration of hostilities naturally carries with it an interdiction of all commercial intercourse. Where one state only is at war, this interdiction may be relaxed as to its own subjects without injuring any other states; but when allied nations are pursuing a common cause against a common enemy, there is an implied, if not an express contract, that neither of the co-belligerent states shall do any thing to defeat the common object. If one state allows its subjects to carry on an uninterrupted trade with the enemy, the consequence will be that it will supply aid and comfort to the enemy which may be injurious to the common cause. It should seem that it is not enough, therefore, to satisfy the prize court of one of the allied states, to say that the other has allowed this practice to its own subjects; it should also be shown, either that the practice is of such a nature as cannot interfere with the common operations, or that it has the allowance of the other confederate state." 27

$ 15. Contracts with the enemy prohibited.

It follows as a corollary from the principle, interdicting all commercial and other pacific intercourse with the public enemy, that every species of private contract made with his subjects during the war is unlawful. The rule thus deduced is applicable to insurance on enemy's property and trade; to

27 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 10. Robinson's Adm. Rep. vol. iv. p. 251; vol. vi. p. 403. The Neptunus.

the drawing and negotiating of bills of exchange between subjects of the powers at war; to the remission of funds, in money or bills, to the enemy's country; to commercial partnerships entered into between the subjects of the two countries after the declaration of war, or existing previous to the declaration, which last are dissolved by the mere force and act of the war itself, although as to other contracts it only suspends the remedy.28

Persons

enemy's

Grotius, in the second chapter of his third book, where he § 16. is treating of the liability of the property of subjects for the domiciled injuries committed by the state to other communities, lays in the down that "by the law of nations, all the subjects of the of- country fending state, who are such from a permanent cause, whether liable to reprisals. natives or emigrants from another country, are liable to reprisals, but not so those who are only travelling or sojourning for a little time;-for reprisals," says he, "have been introduced as a species of charge imposed in order to pay the debts of the public; from which are exempt those who are only temporarily subject to the laws. Ambassadors and their goods are, however, excepted from this liability of subjects, but not those sent to an enemy." In the fourth chapter of the same book, where he is treating of the right of killing and doing other bodily harm to enemies, in what he calls solemn war, he holds that this right extends, "not only to those who bear arms, or are subjects of the author of the war, but to all those who are found within the enemy's territory. In fact, as we have reason to fear the hostile intentions even of strangers who are within the enemy's territory at the time, that is sufficient to render the right of which we are speaking applicable even to them in a general war. In which respect there is a distinction between war and reprisals, which last, as we have seen, are a kind of contribution paid by the subjects for the debts of the state."29

28 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 21. Duponceau's Trans. p. 165, Note. Kent's Commentaries on American Law, vol. i. p. 64. 29 De Jur. Bel. ac Pac. lib. iii. cap. 2, § 7 ; cap. 4, § 6.

§ 17. Species of residence constituting domicil.

Barbeyrac, in a note collating these passages, observes, that "the late M. Cocceius, in a dissertation which I have already cited, De Jure Belli in Amicos, rejects this distinction, and insists that even those foreigners who have not been allowed time to retire ought to be considered as adhering to the enemy, and for that reason justly exposed to acts of hostility. In order to supply this pretended defect, he afterwards distinguishes foreigners who remain in the country, from those who only transiently pass through it, and are constrained by sickness or the necessity of their affairs. But this is alone sufficient to show that, in this place, as in many others, he criticised our author without understanding him. In the following paragraph, Grotius manifestly distinguishes from the foreigners of whom he has just spoken those who are permanent subjects of the enemy, by whom he doubtless understands, as the learned Gronovius has already explained, those who are domiciled in the country. Our author explains his own meaning in the second chapter of this book, in speaking of reprisals, which he allows against this species of foreigners, whilst he does not grant them against those who only pass through the country, or are temporarily resident in it.”30

Whatever may be the extent of the claims of a man's native country upon his political allegiance, there can be no doubt that the natural-born subject of one country may become the citizen of another, in time of peace, for the purposes of trade, and may become entitled to all the commercial privileges attached to his acquired domicil. On the other hand, if war breaks out between his adopted country and his native country, or any other, his property becomes liable to reprisals in the same manner as the effects of those who owe a permanent allegiance to the enemy state.

As to what species of residence constitutes such a domicil as will render the party liable to reprisals, the text writers are deficient in definitions and details. Their defects are supplied by the precedents furnished by the British prize

30 Grotius, par Barbeyrac, in loc.

courts, which, if they have not applied the principle with undue severity in the case of neutrals, have certainly not mitigated it in its application to that of British subjects resident in the enemy's country on the commencement of hostili

ties.

In the judgment of the lords of appeal in prize causes, upon the cases arising out of the capture of St. Eustatius by Admiral Rodney, delivered in 1785 by Lord Camden, he stated that "if a man went into a foreign country upon a visit, to travel for health, to settle a particular business, or the like, he thought it would be hard to seize upon his goods; but a residence, not attended with these circumstances, ought to be considered as a permanent residence." In applying the evidence and the law to the resident foreigners in St. Eustatius, he said, that" in every point of view, they ought to be considered resident subjects. Their persons, their lives, their industry, were employed for the benefit of the state under whose protection they lived; and if war broke out, they continuing to reside there, paid their proportion of taxes, imposts, and the like, equally with natural-bórn subjects, and no doubt come within that description."31

"Time," says Sir W. Scott, "is the grand ingredient in constituting domicil. In most cases, it is unavoidably conclusive. It is not unfrequently said, that if a person comes only for a special purpose, that shall not fix a domicil. This is not to be taken in an unqualified latitude, and without some respect to the time which such a purpose may or shall occupy; for if the purpose be of such a nature as may probably, or does actually, detain the person for a great length of time, a general residence might grow upon the special purpose. A special purpose may lead a man to a country, where it shall detain him the whole of his life. Against such a long residence, the plea of an original special purpose could not be averred; it must be inferred, in such a case, that other purposes forced themselves upon him, and mixed themselves with the original de

31 MS.Proceedings of the Commissioners under the Treaty of 1794, between Great Britain and the United States. Opinion of Mr. W. Pinkney in the case of the Betsey.