rights, which they had parted with, as well by their own engagement as by the nature of the situation in which they were placed. Such an act is essentially invalid, and can have no legal consequence attached to it, either for the benefit of those persons themselves, or for the benefit of others, who may claim through them. The Court held the Dutch government to be aggrieved, as undoubtedly an enemy may be aggrieved by an undue exercise of the rights of war; and, considering the interest which the Crown has in preserving the sanctity of good faith in all public relations to foreign states, it decreed the property to be delivered to his Majesty, to be by him disposed of as his sense of justice towards the injured government might direct (o). Cartel ships are subject to a double obligation to both countries not to trade. To engage in trade may be disadvantageous to the enemy or to their own country; both countries are mutually engaged to permit no trade to be carried on under a fraudulent use of this intercourse. All trade, therefore, must be held to be prohibited, and it is not without the consent of both governments, that vessels engaged in that service can be permitted to take in any goods whatever. The conduct of ships of this description cannot be too narrowly watched; the service on which they are sent is so highly important to the interests of humanity, that it is peculiarly incumbent on all parties to take care that it should be conducted in such a manner as not to become a subject of jealousy and distrust between the two nations. It is not a question of gain, but one on which depends the recovery of the liberty of individuals, who may happen to have become prisoners of war; it is, therefore, a species of navigation, which, on every consideration of humanity and policy, must be conducted with the most exact attention to the original purpose, and to the rules, which have been built upon it, since, if such a mode of intercourse is broken off, it cannot but

be followed by consequences extremely calamitous to individuals of both countries. There is no way in which this purity of conduct can be maintained, but by considering the owner as answerable for the due execution of the service on which his vessel is employed. It is the very last description of case, in which the responsibility of the owner should be relaxed. Hence, where goods were taken on board a cartel ship not clandestinely, but in such quantities as to call for the remonstrance of the officers of the ship, it was held, that that was not such petty malversation as should be imputable to the master only, and the ship was condemned (p). On the same grounds goods taken on board a cartel ship are liable to confiscation (q). The privilege of cartel being confined to the intercourse of hostile states can have place between belligerents only, and is not applicable to the transactions of a neutral state acting for its own purposes, without reference to the existence of a war with any other country (r).

Title is acquired jure belli to all property taken from the enemy; but it is not complete until the things seized are carried into a place of safety; infra præsidia (s). Property captured from an enemy, who was entitled to it jure belli, can not be claimed by the former owner (t). Such title has reference only to questions between neutrals and the original owners of property; as to the enemy he has the right of recapture, until he has renounced it by a treaty of peace (u). But no title is acquired to neutral property in the towns or territories of the enemy, though it is always presumed to be enemy's property, until the contrary is proved (v). All booty is acquired to the

(p) The Venus, 4 Rob. 335.
(9) The Caroline, 6 Rob. 336.

(r) The Rose in Bloom, 1 Dod. 60.

(s) Grot. iii. 6, ii.—iii. 6, iii.—iii. 9, xvi.; Bynk. Q. J. P. i. iv.

(t) Grot. iii. 6, vii.

(u) Puff. viii. 6, xviii.

(v) Grot. iii. 6, v. vi.-iii. 6, xxvi. i.

state, and to those who claim under it (w). Plunder or booty, in a mere continental war, without the presence or intervention of any ships or their crews, has never been important enough to give rise to any question about it. There is no instance in history or law, ancient or modern, of any question before any legal judicature ever having existed about it in this kingdom. It is often given to the soldiers on the spot, or wrongfully taken by them contrary to military discipline. If there any dispute, it is regulated by the commander-in-chief (x).

is

(w) Grot. iii. 6, x., and Barbey. in not. in loc, ibid. xxi. xxii.; Puff. viii. 6, xviii.

(x) Le Caux v. Eden, 2 Doug. 614, n.

36

CHAPTER II.

OF NATIONAL CHARACTER.

NATIONAL character may be considered in respect of, first, Personal domicil, or national character acquired by residence. Secondly, Commercial domicil or national character acquired by trade. Thirdly, The national character of ships. Fourthly, The national character of goods. Fifthly, The national character of the produce of landed property. Sixthly, The national character of countries.

First, National character by residence, or personal domicil is a matter depending upon facts and intention (a). The domicil of a person is, where he has taken up his abode with the intention of permanent residence (b). In the language of the Roman lawyers it is, ubi quis larem ac fortunarum summam constituit, unde non sit discessurus, si nil avocet; unde quum profectus sit peregrinari videtur. Those who are domiciled in a country acquire its national character, no less than native subjects (c). They are entitled to carry on trade to the same extent as native subjects, provided it be not inconsistent with their native allegiance (d). But this disability is personal; where a contract illegal in the hands of a subject is transferred to foreigners, the illegality does not

(a) Pothier, xvi. 4.

(b) Grot. iii. 2, vii. 2.—iii. 4, viii.-iii. 4, vii.

(c) Grot. ibid.

(d) The Emanuel, 1 Rob. 302; The Neptunus, 6 Rob. 408; The Ann, 1 Dod. 223; The Etrusco, 4 Rob. 262, (n); The Dos Hermanos, 2 Wheaton, 76; Kent Comm. i. 72.

run with the contract, nor affect them as a contract made or executed in breach of allegiance (e).

Where a shipment from the enemy's country was made on account of a house of trade in a neutral country, consisting of partners domiciled, some in a neutral and some in the enemy's country. The shares of the former were restored, and the shares of the latter were condemned (f). As to captors, partners are presumed to take in equal proportions, unless on the face of the original papers a different apportionment appears. The reason of this rule is manifest, for were it otherwise, as the evidence to change the proportions must come from the enemy, whose interest it must be to diminish his own share as much as possible, the Court would, by admitting further proof, be exposed to every species of belligerent fraud (g). Mere intention to settle, or a mere nominal residence, will not constitute domicil; for that purpose there must be residence taken up honestly, with a bonâ fide intention of making it the place of habitation (h). Residence or domicil is a question of considerable difficulty, depending upon a great variety of circumstances, hardly capable of being defined by general precise rules. The active spirit of commerce, now abroad in the world, still farther increases this difficulty by increasing the variety of local situations, in which the same individual is to be found at no great distance of time, and by that sort of extended circulation, by which the same transaction communicates with different countries; in which the same trading adventures have their origin perhaps in America, travel to France, from France to England, from England back to America again, without enabling us to assign accurately the exact legal effect of the local character of every particular portion of this divided transaction. In deciding such cases

(e) The Anna Catharina, 4 Rob. 112.

(f) San Jose Indiano, 2 Gallison, 268. 293, et seq.

(g) Ibid. 303.

(h) The Endraught, 1 Rob. 24; The Falcon, 6 Rob. 198.