EFFECT OF WAR ON INDIVIDUALS—ENEMY CHARACTER OF PERSONS.

The first question which arises upon this branch of the subject is,— who is an enemy? And here some distinction must be made between person and property. The character of an enemy appears to be indelibly impressed upon the person, according to the Municipal Law of England and the North American United States, by the allegiance which springs from the place of birth, or origin (and also from the place of domicile, when that domicile has been formally acquired, at the instance of the individual, under the authority of the State. It is for the individual, who has so acted, to take good heed that he be not taken in arms, either against the country of his origin, or against the country of his formal adoption; for the Government of each country will be entitled to treat him as a traitor.

Phillimore, vol. 3, p. 127.

Domicile is, to a certain extent, another test of belligerent character. This circumstance imposes a hostile character upon the property, though not necessarily upon the person of the domiciled individual.

The question has been much considered in the Prize Courts of England and the North American United States. They have acted upon the principle laid down by Bynkershoek, and it is now a well-established rule, that every person is to be considered as belonging to that country where he has his domicile, whatever may be his native or adopted country.

Thus the masters and crews of ships are deemed to possess the national character of the ships to which they belong during the time of their employment; and even if a person goes into a belligerent country originally for temporary purposes, he will not preserve his neutral character, if he remains there several years, paying taxes, etc. And a neutral Consul, resident and treating in a belligerent country, is, as to his mercantile character, deemed a belligerent of that country; and the same rule applies to the subject of one belligerent country resident in the country of its enemy and carrying on trade there; but the character acquired by mere domicile ceases upon removal from the country. The native character easily reverts, and it requires fewer circumstances to constitute domicile in the case of a native, than to impress the national character on one who is originally of another country; and in his favor, a party is deemed to have changed his domicile, and his native character reverts, as soon as he puts himself in itinere to return to his native country, animo revertendi.

In general, a neutral merchant trading in the ordinary manner with a belligerent country, does not, by the mere accident of his having a stationed agent there, contract the character of the enemy. But it is otherwise if he be not engaged in trade upon the ordinary footing of a neutral merchant, but as a privileged trader of the enemy, for then he is in effect carrying on a hostile trade. And the same remark applies if his agent carry on a trade, which is not clearly neutral, from the hostile country; if a person be a partner in a house of trade in an enemy's country, he is, as to the concerns and trade of that house, deemed an enemy, and his share is liable to confiscation as such, notwithstanding his own residence is in a neutral country, for the domicile of the house is considered in this respect as the domicile of the partners. But if he has a house of trade in a neutral country, he has not the benefit of the same principle; for if his own personal residence be in the hostile country, his share in the property of the neutral house is liable to condemnation. A man may have commercial concerns in two countries, and if he acts as a merchant of both he is liable to be considered as a subject of both, with regard to the transactions respectively originating in both countries; but shipments made by an enemy's house on account and risk, bonâ fide and exclusively, of a neutral partner or a neutral house, are not subject to confiscation as prize of War. However, if a neutral be engaged, in peace, in a house of trade in the enemy's country, his property so engaged in the house is not, at the commencement of War, confiscated; but if he continues in the house after the knowledge of the War, it is liable, as above stated, to confiscation. It is a set-. tled principle, that traffic alone, independent of residence, will, in some cases, confer a hostile character on the individual; and if a neutral be engaged in the enemy's navigation, it not only affects the peculiar vessel in which he is employed, but all other vessels belonging to him that have no distinct national character impressed upon them.

Phillimore, vol. 3, pp. 141-144.

When war is duly declared, it is not merely a war between this and the adverse government in their political characters. Every man is, in judgment of law, a party to the acts of his own government, and a war between the government of two nations is a war between all the individuals of the one and all the individuals of which the other nation is composed. Government is the representative of the will of all the people, and acts for the whole society. This is the theory in all governments; and the best writers on the law of nations concur in the doctrine, that when the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the sub

jects of the other. Very important consequences concerning the obligations of such subjects are deducible from this principle.

Kent, vol. I, pp. 67, 68.

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, can be an alien enemy only with respect to his acts done under a local or tem*porary allegiance to a power at war, and when his temporary allegiance determines, his hostile character determines also.

Kent, vol. I, p. 86; Sparenburgh v. Bannatyne: 1 Bos. & P., 163.

A war duly declared, or officially recognized, is not merely a contest between the governments of the hostile states in their political character or capacity; on the contrary, its first effect is to place every individual of the one state in legal hostility to every individual of which the other is composed, and these individuals retain the legal character of enemies, in whatever country they may be found.

Halleck, p. 356.

[When] a state has declared war, every citizen is bound to assist in carrying it to a successful conclusion, whatever may be his individual opinion of the necessity or propriety of the resort to arms by his own government.

Halleck, p. 381.

[The hostile character of the inhabitants of two states at war with each other] results from political ties, and not from personal feelings or personal antipathies; their status is that of legal hostility, and

not of personal enmity. So long as these political ties continue, or so long as the individual continues to be the citizen or subject of one of the belligerent states, just so long does he continue in legal hostility toward all the citizens and subjects of the opposing belligerent. Public enemies are such, whatever may be their occupation, and in whatever country they may be found.

Halleck, pp. 411, 412.

Allies of the enemy.

As a general rule, it is not necessary to make a formal declaration of war against the associates of the enemy before treating them as belligerents.

The nature of their obligations, or the character of their acts, makes them public enemies, and puts them in the same position toward us as if they were principals in the war. Our belligerent rights against them commence, in some cases, with the war, and, in others, with their first act of hostility against us. The existence of the alliance, with the acknowledgment of its obligation, and a preparation for carrying on the war, would make them public enemies, even before they actually take part in the military operations.

Halleck, pp. 423, 424.

Expatriation, in time of war.

It seems to be a well settled principle of international law that, during the existence of hostilities, (flagrante bello,) no subject of a belligerent can transfer his allegiance, or acquire a foreign domicile by emigration from his own country, so as to protect his trade either against the belligerent 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, and 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.

Halleck, pp. 717, 718.

Effect of military occupation.

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.) Halleck, pp. 718-719.