ment of the war, and accompanied the shipment in person, with the intention of abandoning his English domicil, and resuming his American character. But his property was captured and condemned by an American prize court, on the ground that whether an English subject, or an American citizen, his property was liable to confiscation,-if the former, as that of an enemy; and if the latter, as that of a citizen unlawfully trading with an enemy. The mere return of a party, whether a belligerent subject or a neutral, to his native country, is not sufficient, of itself, to restore his native character. If he merely returns for a visit, or temporay purpose, and designs to resume his former residence, the character impressed on him by his foreign domicil, remains unchanged. In other words, his domicil, once established, is not broken by a temporary change of residence, and his property on the ocean, although shipped or captured during his absence, remains liable to confiscation. (Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 4, § 7; Duer, On Insurance, vol. 1, p. 520; Wildman, Int Law, vol. 2, pp. 43-45; The President, 5 Rob. Rep., p. 277; The Citto, 3 Rob. Rep., p. 38; The Venus, 8 Cranch. Rep., p. 253; The Frances, 8 Cranch. Rep., pp. 335, 363; La Virginie, 5 Rob. Rep., p. 98.)

§ 28. In the application of the general rule that the native character of the party must be taken from that of the country where he resides, there is a material difference between removing from, and returning to, one's native country. Although the native character remains till a new domicil is acquired by actual residence or settlement in a foreign country, the adventitious character resulting from domicil, ceases with the residence from which it arose. But, according to the decisions of the courts of the United States, it is not sufficient to prove the mere intention of the party to return to his native country for the purpose of remaining there permanently; he must have actually commenced to return. The British courts, however, have, in some cases, considered other overt acts, when performed in good faith, as suffieient to restore the native national character, and in this opinion, Chief Justice Marshall coincided. (Wildman, Int. Law, vol. 2, pp. 44, 45; Phillimore, On Int. Law, vol. 3, § 85; Wheaton, Elem. Int. Law, pt. 4, ch. 1, § 17; Duer, On Insurance, vol. 1, pp. 515-520; Westlake, Private Int. Law, $ 40.)

§ 29. It seems to be a well settled principle of interna tional law that, during the existence of hostilities, (flagrante bello,) no subject of a belligerent can transfer his allegiance, or acquire a foreign domicil by emigration from his own country, so as to protect his trade either against the bellige. rent claims of his own country, or against those of a hostile power. In other words, his allegiance continues the same, and his native character is unaffected by his change of residence. This doctrine rests on the ground that to desert one's own country in time of war, is an act of criminality, and that if a citizen removed to another state, his allegiance is still due to his sovereign, and he is as much bound to abstain from trade with a public enemy, as if he had remained at home; and his property, as that of an enemy, continues to be just as liable to seizure and confiscation, by an opposite belligerent. This principle is sanctioned by the most approved writers on international law, and has been expressly affirmed by the courts of the United States. The doctrine above announced, is not in conflict with that contended for by some writers, that a citizen has a general right of expatriation in time of peace, and that the assent of his government to seek change of allegiance and national character, is implied in the absence of any prohibition. Nor is it to be construed as denying to a citizen the right to change his allegiance and national character in time of war, with the express consent of the state, and with authentic renunciation of preexisting citizenship. But expatriation, in time of war, does not result from a change of residence, aud the general consent of the state to emigration, which is presumed, in time of peace, from the absence of any general prohibition. If so, it might be appealed to as a mask to cover desertion, or treasonable aid to the public enemy. (Wheaton, Elem. Int. Law, pt. 4, ch. 1, § 17; Duer, On Insurance, vol. 1, pp. 521, 545; Dalloz, Repertoire, verb. Domicile, §§ 3, 4; Grotius, De Jur. Bel. ac Pac., liv. 2, c. 5, § 2; Vattel, Droit des Gens, liv. 1, ch. 19, §§ 220-223; liv. 2, ch. 27; Puffendorf, Droit des Gens, par Barbeyrac, liv. 8, c. 11, § 3; The Dos Hermanos, 2 Wheaton Rep., p. 98; Talbot v. Janson, 3 Dallas Rep., pp. 162, 163; The Santissima Trinidad, 7 Wheaton Rep., p. 284; Duguet v. Rhinelander, 1 Johns. Cases, p. 360; Jackson v. N. Y. Ins. Co.,

2 Johns. Cases, p. 191; United States v. Williams, 2 Cranch. Rep., p. 82, note; Murry v. The Charming Betsey, 2 Cranch. Rep., pp. 64, 119; The Venus, 8 Cranch. Rep., p. 253; 1 he Frances, 8 Cranch. Rep., p. 335.)

§ 30. Mere military occupation of a territory by the forces of a belligerent, (without confirmation of conquest by one of the modes recognized in international law,) does not, in general, change the national character of the inhabitants. It will be shown in a subsequent chapter, that the allegiance of such inhabitants is temporarily suspended, but not actually transferred to the conqueror. They owe to such military occupants certain duties, but these fall far short of a change of the allegiance due to their former sovereign. But if the military occupation be by a power in amity with the former sovereign, and has taken place with the evident concurrence of those acting under his authority, a prior and formal cession is presumed. The national character of the inhabitants is therefore deemed to be changed by the presumed transfer of their allegiance. Thus, the occupation of the Ionian republic by French troops, by the voluntary surrender of the Russian authorities, then at peace with France, was deemed sufficient to repel the supposition that such occupation was hostile and temporary, and therefore sufficient to raise the presumption of a formal cession, although none was proved. So of the inhabitants of territory in the possession and under the government of the conqueror prior to cession or complete conquest, for every commercial and belligerent purpose they are considered by other countries as subjects of the conqueror, notwithstanding that he himself may regard them as aliens with respect to the inhabitants of his other dominions. Upon this point, however, there are conflicting decisions, belligerents having sometimes regarded territory in the military occupation of their enemy as friendly, and sometimes as hostile, according to their own interests and the peculiar circumstances of the case. If the sovereign power of the state choose to permit a continuance of commerce with them, the courts of the same state will regard them as friendly, and vice versa. (Wildman, Int. Law, vol. 2, p. 115; Duer, On Insurance, vol. 1, p. 438; The Roletta, Edw. Rep., p. 171; Benson v. Boyle, 9 Cranch Rep., p. 191;

Hagedorn v. Bell, 1 Maule and Selw. Rep., p. 450; Westlake, Private Int. Law, § 24.)

§ 31. It will also be shown hereafter that, where the conquest is confirmed, or in any other way made complete, the allegiance of the inhabitants who remain in the conquered territory is transferred to the new sovereign. The same effect is produced by an ordinary cession of such territory. In either case the national character of the inhabitants who remain, is deemed to be changed from that of the former to the new sovereign, and in their relations with other nations they are entitled to all the advantages, and are subject to all the disadvantages, of their new international status. (Vattel, Droit des Gens, liv. 3, ch. 13, § 200; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 8; Westlake, Private Int. Law, § 40; Flemming v. Page, 9 Howard Rep., p. 608; American Ins. Co., v. Cauter, 1 Peters Rep., p. 542; United States v. Perchman, 7 Peters Rep., p. 86; Lucas v. Strother, 12 Peters Rep., p. 436; Campbell v. Hale, 1 Cowp. Rep., p. 208; McIlvaine v. Coxe's Lessee, 4 Cranch Rep., p. 211.)

§ 32. But mere cession by treaty does not of itself operate as an immediate transfer of the allegiance of the inhabitants of the ceded territory. They remain subjects of the power to which their allegiance was originally due, until the solemn delivery of the possession by the ceding state, and an assumption of the government by that to which the cession is made. The actual delivery of the possession, and the actual exercise of the powers of government must be clearly shown. In a case of capture of property belonging to a merchant of New Orleans, after the cession of Louisiana by Spain to France, which, if the owner was a French subject, was hostile, and, if a Spanish subject, was neutral, Sir William Scott decreed the restoration, on the ground that the evidence of any actual delivery of the territory to any French authority, was insufficient and unsatisfactory. (Wildman, Int. Law, vol. 2, p. 115; Duer, On Insurance, vol. 1, p. 438; The Fama, 5 Rob. Rep., p. 106.)

§ 33. Revolution or possession by insurgents, as already stated, cannot be regarded by a prize court as changing the national character of the territory so possessed or occupied,

until the fact has been recognized by the political authority of the government to which the court belongs. Thus, although it was a matter of notoriety that a considerable part of the island of St. Domingo had, by revolt, been detached from the French colonial government, and its inhabitants were in common opposition to France, then at war with England, the court of appeal, nevertheless, decided that such inhabitants must be regarded as hostile in their commercial relations, till the British government should recognize their change of national character. But where any port or part of the island had been recognized by orders in council, as not in the possession and under the dominion of France, such port or place would be so considered by the court. The supreme court of the United States has adopted the same rule of decision. (Wildman, Int. Law, vol. 2, pp. 116, 117; The Manilla, 1 Edw. Rep., p. 1; The Pelican, 1 Edw. Rep., app. D; Yrisarri v. Clement, 3 Bing. Rep., p. 432; Johnson v. Greaves, 2 Taunt. Rep., p. 344; Blackburne v. Thompson, 3 Comp. Rep., p. 61; Hoyt v. Gelston, 3 Wheaton Rep., p. 324, note; Kennett v. Chambers, 14 Howard Rep., p. 38.)

§ 34. In many cases, the nature of the traffic or business in which an individual is engaged, may stamp upon him a national character, wholly independent of that which his place of residence alone would impose. Thus, although a neutral merchant, residing in his own country, and trading, in the ordinary manner, to the country of a belligerent, does not thereby acquire a hostile character, yet, if he is a privileged trader, engaged in a commerce that none but the subjects of the enemy are permitted to conduct, or that can only be carried on by a special license from the government, the place of his domicil will not protect such trade, but all his property embarked in it becomes liable to confiscation, as that of an enemy. So, also, if the neutral merchant has a house of trade in the hostile country, either as a partner, or on his sole account, all the commerce of such house is regarded as essentially hostile, and all his property engaged in it is liable to condemnation. The effect of the traffic in which a neutral vessel is engaged upon the national character of the owner, so far as such property is concerned, is fully discussed by Mr. Duer. (Duer, On Insurance, vol. 1, pp. 523-577; Dalloz,