The Laws Of War, Affecting Commerce And Shipping Part 3

During his time, the question as to the _legality_ of such insurances was never mooted; for he frowned on every attempt to set up such a defence, as dishonest and against good faith.[56]

The strict rule of interdicted intercourse has been carried so far in the British Admiralty, as to prohibit supplies to a British Colony during its partial subjection to the enemy, and when the Colony was in want of provisions.[57]

[Sidenote: Cartel Ships]

The same interdiction to trade applies to Cartel Ships, or Ships of Truce, that is, to Ships sent to recover prisoners of war; and there is but one exception to this rigorous rule of International Law;--the case of Ransom Bills, which are contracts of necessity, founded on a state of war.

SECTION II.

_On Enemies and Hostile Property_.

During a peace of thirty-nine years, there has naturally arisen a vast inter-immigration throughout Europe; many complicated commercial and family relations have sprung up between nations of different countries; many Englishmen are permanently settled in various parts of Europe; and England, in return, is crowded with Foreigners, who look upon this country as their present and future home. What is the position of these persons at the commencement of war? Who, in fact, are our enemies?

And the previous Section, in which the effect of War on Commercial Relations has been sketched out, must have made it quite evident that it has become important accurately to determine what relations and circ.u.mstances impress a hostile character upon persons and property.

According to Chancellor Kent, "the modern International Law of the Commercial World is replete with refined and complicated distinctions on this point."

[Sidenote: Alien Enemies]

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 circ.u.mstances.[58]

The character of enemy arises from the party being in what the law looks upon as a state of allegiance to the state at war with us; if the allegiance is permanent (as in the case of a natural-born subject of the hostile Sovran), the character is permanent.

But with respect to the man who is an alien enemy from what he does under a local or temporary allegiance to a power at war with us--when the allegiance ends, the character of alien enemy ceases to exist.[59]

Of course all persons owing a natural allegiance to the enemy are our enemies; but on the same broad principles of natural justice that impress a temporary character upon our friends and fellow countrymen, under special circ.u.mstances individuals from amongst our natural enemies become our friends and fellow subjects.

[Sidenote: Prisoners of War.]

The first among these are Prisoners of War.

A Prisoner of War is _not_ adhering to the King's enemies, for he is here under the protection from the King. If he conspires against the King's life it is high treason; if he is killed (malice aforethought), it is murder. He is not, therefore, in a state of actual hostility. At one time it was ruled, that a prisoner of war could not contract; but that case was thought hard. Officers on their parole must subsist like other men of their own rank; but if they could not contract they must starve; for they could gain no credit if deprived of the power of sueing for their own debts. A prisoner in confinement is protected as to his person, and if on parole he has protection in his credit also.[60]

He is allowed to support himself, and add to his personal comfort, by applying himself in his trade or business, and may maintain an action on his contract for his wages; nor can he be compelled, when sueing for money necessary for his support, to give security for costs like any other foreigner temporarily resident in this country.[61]

[Sidenote: Married Foreigners.]

A wife generally follows the country and allegiance of her husband; but where she is in this country of necessity, or is here owing allegiance by her birth, and her husband is an alien enemy and under an absolute disability to come and live here, the law steps in to her aid, and gives her the privileges of an unmarried woman, so that she may sue and be sued, and make contracts for and against herself, for her maintenance. "Her case," says Chief Justice Holt, "does not differ from that of those ladies who were allowed to sue and be sued upon the adjuration or banishments of their lords, as if they had been sole."[62]

Foreign ladies, who have married Englishmen, are, by their marriage, naturalized, and have all the rights, privileges, and duties, of natural-born subjects, and cease to be enemies.[63]

[Sidenote: Enemies by Hostility.]

A hostile character may be acquired by alien friends, by acts of actual hostility, and by alien friends and our fellow-subjects also, by what are termed personal and commercial domicile. Of course a British subject in actual hostility to his native country is more than enemy, he is a traitor, and has no belligerent rights; but an alien friend, that is a neutral engaging in war against this country, under the commission of a foreign prince, and in the ranks of a hostile army, or on board a legally commissioned enemy's vessel, is an enemy, and has all the rights of a prisoner of war, if taken.

[Sidenote: Mariners.]

A Mariner, by a general rule, takes the character of the country in whose service he is employed, and even fugitive visits to the place of his birth will not ent.i.tle him to retain the benefit of a neutral character, in opposition to a regular course of employment in the enemy's country and trade; nor does the fact of his wife and family residing in his own country enable him to retain his native character.[64]

[Sidenote: Domicile, Test of Nationality.]

With the exception of these special cases, in a state of war, Domicile is the Test of Nationality. According to Grotius,

"By the Law of Nations all the subjects of the offending state, who are such from a _permanent_ cause, whether natives _or emigrants from another country_, are liable to reprisals; but not so those who are only travelling or sojourning for a little."

And he even holds that the right of killing and doing bodily harm to enemies extends "not only to those who bear arms, or are subjects of the author of the war, but to _all_ those who are found in the enemy's territory;" meaning all those found domiciled or adhering to the enemy.

If, then, a native of England 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 subject to all the inconveniences of the neutral trade.[65]

He takes all the advantages and disadvantages of the country of his adoption; with the limitation, that he must do nothing inconsistent with his native allegiance;[66] as, for example, if he emigrate to a neutral country _during the time of war_, he will not be permitted to acquire the character of a neutral merchant, and trade with the enemy in that character, it being his duty to injure the enemy to the full extent of his power.[67]

[Sidenote: Test of Domicile.]

In determining the important question of Domicile, the _animus manendi_, or disposition to remain or settle in the land of the domicile, is the question to be determined.

If a man goes into a foreign country upon a visit, to travel for health, to settle a particular business, or for similar purposes, the residence naturally attendant on these circ.u.mstances is not generally regarded as a permanent residence.

But though a special purpose, such as the above, does not fix a domicile, yet these circ.u.mstances are not to be taken without respect to the _time_ they _may probably_ or _actually do_ occupy. A general residence may grow upon a special purpose. It is difficult to fix the amount of time necessary to create a domicile, and it probably must be determined from each particular case. Thus, if a man remained in a hostile state after the outbreak, employed on some great work, which would occupy him many years, or beyond the probable termination of the war, or were unable to leave that particular climate on account of health, or were under any disability to return to his native country, the amount of time he had resided there would become an element of the question; against such a residence, the plea of an original special purpose, could not be averred; but it must be inferred, in such a case, that other purposes forced themselves upon him, mixed themselves with his original design, and impressed upon him the character of the country where he resided.

But, as an exception, a residence involuntary or constrained, however long, does not change the original character of the party, and give him a new and hostile one.

Domicile is fixed by a disclosed intention of permanent residence; if the emigrant employs his person, his life, his industry, for the benefit of the state under whose protection he lives; and if, war breaking out, he continues to reside there, pays his proportion of taxes, imposts, and revenues, equally with the natural-born subjects, no doubt he may be said to be domiciled in that country.

When these circ.u.mstances are ascertained, time ceases to be an element in the question, and the _animus manendi_, once ascertained, the recency of the establishment, though it may have been for a day only, is immaterial.

The intention is the real subject of enquiry; and the residence, once the domicile, is not changed by periodical absence, or even by occasional visits to the native country, if the intention of foreign domicile remains.

The native character, however, easily reverts; more so in the case of a native subject, than of one who is originally of another country.

The moment an emigrant turns his back on his adopted country, with the intention of returning to (not simply visiting) his native country, he is in the act of resuming his original character, and must be again considered as a citizen of his native land;[68] even if he is forcibly detained in the country he is parting from, as was the case with British subjects on the breaking out of the War of 1804.[69]