subjects.

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[Sidenote: Hostile character acquired by Trade.]

Again, a National Character may be acquire by Trade, or, as it is called, by commercial domicile. In general, the national character of a person, as neutral or enemy, is determined by that of his domicile; but the property of a person may acquire a hostile character independently of his personal national character derived from personal domicile. A person carrying on trade habitually in the country of the enemy, though not personally resident there, should have time given him to withdraw from that commerce; it would press too heavily on neutrals to say, that immediately on the first breaking out of a war, their goods should become subject to confiscation. But if a person enters into a house of trade in the enemy's country, in time of war, or continued that connexion during the war, he cannot protect himself by mere residence in a neutral country. "It is a doctrine supported by strong principles and equity," says Sir William Scott, "that there is a traffic which stamps a National Character on the individual, independent of that Character which mere personal residence may give him."[70] The principle does not go to the extent of saying that a man, having a house of trade in the enemy's country, as well as in a neutral country, should be considered in his whole concerns as an enemy's merchant, as well in those which respected solely his neutral house, as in those which belong to his belligerent domicile.[71]

His lawful trade is exonerated from the operation of his unlawful trade, in all cases, and under all phases. All trade that does not originate from the belligerent country is protected, but not so, if it can be traced so to arise in not too remote a degree.

The same protection however is not extended to the case of a merchant residing in the hostile country, and having a share of a house of trade in an enemy's country. Residence in a neutral country will not protect his share in a house established in the enemy's country, though residence in the enemy's country will condemn his share in a house established in a neutral country.[72]

[Sidenote: Rule of 1756.]

The next mode in which a hostile character may be given to those not naturally bearing it, is by dealing in those branches of commerce which are confined in the time of peace to the subjects of the enemy: i.e. the ships and cargoes of a Neutral engaged in the colonial or coasting trade of the enemy (not open to foreigners in time of peace), are liable to the penal consequences of confiscation. This point; was first mooted in the war of 1756, and is called the rule of 1756.[73]

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[Sidenote: National Character of Ships.]

When there is nothing particular or special in the conduct of the vessel itself, the national character is determined by the Residence of the Owner; but there may be circumstances arising from that conduct which will lead to a contrary conclusion. It is a known and established rule with respect to a vessel, that if she is navigating under the pass of a foreign country, she is considered as bearing the national character of the nation under whose pass she sails; she makes a part of its navigation, and is in every respect liable to be considered as a vessel of that country. In like manner, and on similar principles, if a vessel, purchased in the enemy's country, is by constant and habitual occupation continually employed in the trade of that country, commencing with the war, continuing during the war, and evidently on account of the war, that vessel is deemed a ship of the country from which she is so navigating, in the same manner as if she evidently belonged to the inhabitants of it.[74] Further, when parties agree to take the pass and flag of another country, they are not permitted, in case any inconvenience should afterwards arise, to aver against the flag and pass to which they have attached themselves, and to claim the benefit of their real character. They are likewise subject to this further inconvenience, that their own real character may be pleaded against them by others. Such is the state of double disadvantage to which persons expose themselves by assuming the flag and pass of a foreign state.[75]

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[Sidebar: Distinction as to Cargoes]

A distinction is made in England between the Ship and the Cargo. Some countries have gone so far as to make the flag and pass conclusive on the cargo also; but in England it is held that goods have no dependence upon the authority of the state, and may be differently considered. If the cargo is laden in time of peace, though documented as foreign property, in the same manner as the ship, the sailing under a foreign flag and pass has not been held conclusive as to the cargo.[76]

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[Sidebar: Hostile Property cannot be Transferred in Transitu.]

Property which has a hostile character at the commencement of a voyage, cannot change that character by assignment while it is in transitu, so as to protect it from capture.[77]

In the ordinary course of things, in the time of peace, such a transfer in transitu can certainly be made. When war intervenes, another rule is set up by the Courts of Admiralty, which interferes with the ordinary practice. In a state of war, existing or imminent, it is held that the property shall be deemed to continue as it was at the time of shipment, till actual delivery; this arises out of a state of war, which gives a belligerent a right to stop the goods of his enemy. If such a rule did not exist, all goods shipped in an enemy's country would be protected by transfers, which it would be impossible to detect.[78]