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Enemy Goods and House of Trade
Published online by Cambridge University Press: 04 May 2017
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The Trois Frères (Stewart, V, Adm. Cases, N.S. 1). The continued adherence of the British courts to the doctrine of a locus pœnitentiœ, even for persons domiciled in a country which becomes an enemy, is here seen. A Frenchman became naturalized in the United States and traded there. Ultimately, however, he left, with all his books and papers, on a French ship for France, intending to remain there permanently. “War supervening between France and Britain, the ship put about, with the intention of returning to America. But she was taken by the British, and the trader’s effects seized as prize. Liberty was given him to establish, by affidavit, the total abandonment of his intention of going to France.
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- Copyright © American Society of International Law 1921
References
* The first part of this article appeared in this JOUBNAL for April, 1921, pp. 198-231.
1 Story disapproved of the decision: see The Anne Green, 1 Gall. 286.
2 This is important; it provides a limitation to the scope of the principle that the produce of belligerent soil is belligerent. See infra.
3 As a general definition, not pretending to furnish any concrete tests, it would hardly be possible to improve on this statement.
4 Of course, not absolutely. Cf. The Hope (27 June, 1809, 1 Acton 44).
5 This JOURNAL, April, 1921, p. 209.
6 This is, of course, very far from saying, as Lord Lindley did, with much applause in Janson v. Driefontein Gold Mines, that "the national character of a merchant in time of war depends on where he carries on his business." (1902) A. C. 499.
7 This is not an essential requisite, though it is common. It is, however, obvious that in practice, the local presence of the trader among the enemy exerts a great influence on the mind of the court. That it is not essential, is abundantly evident from the cases above noted.
8 This was in the height of the Napoleonic wars; yet correspondence with agents in Amsterdam was not apparently made the subject, by Stowell, of the slightest futile comment, much less stigmatized as treason. He alluded feelingly to "the difficulties in carrying on correspondence with the enemy's countries" in the Juffroie Catharina (March 13, 1804, ibid. 142).
9 In the Jonge Klaasina, the claimant had important business interests in England, but of course that only made the matter worse, as England was not neutral but hostile.
10 As regards this question of “originating,” see per Dexter (arg.) and Story in the San Josè Indiana, 2 Gall. 279.
11 See per Stowell in the Jonge Klassina, 5 C. Rob. 303.
12 This JOURNAL, April, 1921, p. 220
13 Ibid., p. 221.
14 The reporter's statement of facts states the cargo as claimed “as the property of I. and W. Bell, partners in a house of trade in America, and also 'of' a house in London, where Mr. W. Bell resided, but claimed as the sole property of I. Bell of America.” “Of” must surely here mean “in”; the cargo was certainly not claimed as the property “of” a London house.
15 This was a very common practice. It was, I think, begun on the occasion of war with Prussia in 1806 and repeated on various occasions when neutrals became enemies. Cases under the Order in Council in the Prussian case are in the London Record Office, 170 Privy Council Registers, 535 (July 2, 1806) ; and for the American order see 193 ibid., Nov. 28, 1812.
16 Not “by mere acts of trade.”
17 Cf. The Harmony, 2 C. Rob. 325.
18 This JOURNAL, April, 1921, p. 209.
19 In the Lawrence, S. Google Scholar (1815, 9 Cranch 120), Story himself still treats the question of withdrawal as an open question.
20 See The Frances, supra
21 The only one (it seems) in which an enemy by allegiance was treated as neutral, until we come to The Abo in the Crimean War.
22 These terms are used shortly here to indicate the Portuguese and British dominions respectively, the former including Brazil.
23 Or to a neutral house on the like terms. There is some confusion in the case of Dyson. The goods are said to be shipped on account of the Rio house (p. 284) and on account of the English house (p. 289).
24 It is difficult to see, therefore, why (p.*298) the claim of a Rio house of Heyworth should have been rejected. The shipment is made by a house at Liverpool, composed of the same persons as the house at Rio to which it is consigned, and is upon the account and risk of the Rio House. “The case . . . falls directly within the decision” in the case of Dyson and the claim must be rejected. Perhaps “account and risk of the Rio House” ought to read, “account and risk of the Liverpool House.”
25 Dexter puts the point neatly in the San Josi Indiano: “The question is simply as to the commercial character of the claimants. It is personal, and does not relate to the branch of trade they are engaged in (p. 277).”
26 See also Twiss, , Law of Nations, II, 306;Google Scholar Cobbett, Pitt , Leading Cases in International Law, I, 209.Google Scholar
27 Unless, perhaps, of enemy political allegiance.
28 p. 282. “All the subjects of the enemy who are such from a permanent cause . . . are liable to the law of reprisals. . . . Not so, if they are only trading or sojourning for a little time.”
29 The specific event of war is not necessarily contemplated by merchants when taking up their residence in a foreign country.
30 His whole argument is that such a presumption is inapplicable in the event of war.
31 And, in The Frances, he says plainly, “It is the nature of the trade, not the place of residence, which determines the hostile or neutral character of the trader.” (8 Cranch 369.)
32 Murray v. The Charming Betsy (February, 1804, 2 Cranch 64). This is the case which probably became the innocent cause of the unfortunate expression “commercial domicile.” An American non-intercourse act was held not applicable to a person domiciled and trading in Danish territory. Obviously a just decision, if a lenient one, but having no bearing on the subject of prize. For the whole object of the act was commercial, to discourage commercial intercourse between America and France. The whole act being directed to trade, his place of trading was supremely important. The personal domicile was quite immaterial.
Shattuck, the claimant, had done all he could to make a Dane of himself, having even become naturalized. In these circumstances Marshall, C. J., declared that domicile abroad may confer the commercial privileges of the place. But he nowhere says that only “commercial” domicile can confer the character of the place.
The interesting case of The Constant is cited from Comynge Reports (677). (Scott v. Schwarz.) English subjects domiciled in Russia were held to be Russians for the purposes of navigation acts. They were “of that country or place.”
33 This JOURNAL, April, 1921, p. 225.
34 And see work on Captures (pp. 102-150), and his elaborate appendix to Vol. 2 of his Reports, especially p. 29. “If his own personal residence be in the hostile country, his share in the property of the neutral house is subject to condemnation.” The first text-book which appears to identify prize domicile with trade seems to be Thompson's Laxos of War (1852, p. 27). There was the less excuse for it, as Wildman had in 1850 clearly distinguished trading from domicile, and pointed out that either may involve the attribution of an enemy character (International Law, p. 45).
35 See also The Amado (1847), Newberry, 400, and De Luneville v. Phillips (1806), 2 New Rep., 97.
36 Folio Prize Appeals (1813-14), fo. 418.
37 t is a current jest in the Temple (not at all justified) that Lushington was “always wrong.” In The AM (ib. 349) he made the statement that “in time of war a person is considered as belonging to that nation where he is resident and where he carries on his trade,”again a very questionable deliverance.