Hostile character: how impressed. CHAPTER II. ENEMY CHARACTER AND DOMICILE. HOSTILE CHARACTER: HOW IMPRESSED UPON PERSONS AND PRO- 1. It is of much importance, as a question of Maritime 1 Kent, Com. i. p. 81. San Josè p. 28. The Dree Gebroeders, 4 Rob. Indiano and Cargo, 2 Gallison, p. 235. The Phoenix, 5 Rob. p. 20. 2 a country as its produce, quite independent of that national character of its owner which is derived from personal residence.1 In England this rule was for the first time stated in the case of the "Phoenix," where it was considered by Sir William Scott to be a fixed principle of Maritime Law, that the possession of the soil impressed upon the owner the character of the country so far as the produce of the soil was concerned, wherever the national character or personal domicile of the owner might be; and that the produce of a hostile soil bore a hostile character for the purpose of capture, and was the subject of legitimate prize when taken in a course of transportation to any other country. Again, in another well-known case the same learned judge thus laid down the rule and stated the reason. "There are," he said, " transactions so radically and fundamentally national as to impress the national character independent of peace or war, and the local residence of the parties. The produce of a person's own plantation in the colony of an enemy, though shipped in time of peace, is liable to be considered as the property of the enemy, by reason that the proprietor has incorporated himself with the permanent interests of the nation as a holder of soil, and is to be taken as a part of that country in that particular transaction, independent of his own personal residence and occupation. So in the case of a strict exclusive colonial trade from the colony to the Colonial mother country, when the trade is limited to native subjects by the fundamental regulations of the state."3 trade. upon The decision in the case of the "Phoenix "1 proceeded the same principle. In that case the vessel was captured in a voyage from Surinam to Holland, and a part of the cargo was claimed by persons residing in Germany, then a neutral country, as being the produce of their estates in Surinam. The counsel for the captors considered the law of the case as entirely settled. The counsel for the claimants did not controvert the position. They admitted it, but endeavoured to withdraw the case from the general principle of law by bringing it within the protection of the Treaty of Amiens. But Sir William Scott in pronouncing his judgment noticed the doctrine as being a fixed and well-recognised rule of Public Law. The produce of the claimants' estate in the colonies of the enemy was, he considered, properly subject to condemnation, inasmuch as the possession of the soil impressed upon the owner the character of the country as far as the produce of the plantation was concerned, in its transportation to any other country, whatever the local residence of the owner might have been. In the American Courts the question was discussed, and the rules of the British Courts of Prize recognised and adopted in the following case. The island of Santa Cruz, belonging to the King of Denmark, was captured by England during the late European war. An officer of the Danish Government, by name Bentzon, who was a proprietor of land in the island, withdrew on its surrender, and took up his residence in Denmark. The property of the inhabitants being secured to them by 2 15 Rob. p. 20. Maastrom, Juf- 2 Thirty Hogsheads of Sugar v. frow Catherina, and other cases. Bentzon, Cranch's Rep. vol. ix, Lords, 1783. The Venus, Cranch's p. 191. Rep. vol. viii. p. 253. the capitulation, he still retained his estate in the island under the management of an agent, who shipped thirty hogsheads of sugar, the produce of the estate, on board a British vessel and consigned them to a commercial house in London, on account and risk of the owner. On her passage the ship was captured by an American privateer, and brought in for adjudication. The sugar was condemned in the Court below as prize of war, and the sentence of condemnation was affirmed on appeal by the Supreme Court. In pronouncing its judgment the Court was clear that the island of Santa Cruz after its capitulation remained a British island until it was restored to Denmark; and the question therefore was whether the produce of a plantation in that island shipped by the proprietor himself, who was a Dane residing in Denmark, must be considered as British, and therefore as enemy's property. It appeared to the Court that the cases of the "Phoenix" and the "Vrow Anna Catherina" decided in the British Court of Admiralty were directly in point; and that the contention that Mr. Bentzon's claim as owner did not come within the rule laid down in these cases, because "he had not incorporated himself with the permanent interests of the nation," could not be supported. It was indeed true that he acquired the property while Santa Cruz was Danish, and that he withdrew from the island when it became British; but the distinction did not appear to the Court to be a sound one, because the identification which takes place of the character of the owner with that of the soil does not rest upon the disposition with which he acquires the soil, or on his general national character. The acquisi tion of land in Santa Cruz bound the claimant, so far as respects that land, to the fate of Santa Cruz, whatever its destiny might be. While that island belonged to Denmark, the produce of the soil, while unsold, was, according to this rule, Danish property, whatever might be the general national character of the individual proprietor. When the island became British, the soil and its produce, while that produce remained unsold, were British. The general, commercial, or political character of Mr. Bentzon could not, according to this rule, affect that particular transaction. Although incorporated, as far as respects his general national character, with the permanent interests of Denmark, he was incorporated, so far as respected his plantation in Santa Cruz, with the permanent interests of Santa Cruz, which was at that time British ; and though as a Dane he was at war with Great Britain, and an enemy, yet as a proprietor of land in Santa Cruz he was no enemy; he could ship his produce to Great Britain in perfect safety. The case was therefore entirely within the rule as laid down by the British Courts of Prize. "The opinion," observed Chief Justice Marshall, "that the ownership of the soil does in some degree connect the owner with the property, so far as respects that soil, was an opinion that certainly prevailed very extensively. It was not an unreasonable opinion. Personal property may follow the person anywhere; and its character if found on the ocean may depend on the domicile of the owner. But land is fixed. Wherever the owner may reside, that land is hostile or friendly according to the condition of the country in which it |