v. Williams(n) to debt upon a bond by an executor, the defendant pleaded that the plaintiff was an alien enemy, and came into England without a safe conduct. The plaintiff replied, that at the time of making the bond he was, and yet is, in England, by the license, and under the protection of the king; and upon demurrer the court held, not that the plea was bad, but that the replication was good; and the court resolved, that if the defendant came there before the war, there was no need of a safe conduct; and if he came since the war, and continued without molestation, it should be intended that he came by a license, and his right to sue was consequent upon his protection. In this case, also, the objection did not arise; for the only question seemed to be, whether *a [*123] residence by the licence, and under the protection of the king, would entitle the party to sue without having a safe conduct; and the court held that it would. And this is but an affirmance of the doctrine of the year-books.(0)

"These are all the authorities upon which Casseres v. Bell professes to have been decided. On the other hand, in Sylvester's case(p) (which was not cited,) where the plea was alien enemy, on demurrer, the court held it good; and that, if the party were entitled under a general or special protection of the king, he ought to reply that fact. And so were the pleadings in George v. Powell.(g) And there are several other precedents, in which the plea does not negative the facts, which might enable an alien enemy to sue.(r)

“The case of Clark v. Morey(s) pushes the doctrine further, and asserts that an alien enemy who comes and resides within the North American United States without a safe conduct or license from the Government (for so is the averment in the plea,) is at all events entitled to sue, until ordered away by the president; and this too, although the party is not known by the Government to have his residence there. The English authorities have always required an express safe conduct or an implied license; and Poulton v. Dobree(t) decides, that a license is not to be implied from mere residence, unless sanctioned by the Government after the commencement of hostilities.

"It is certainly true that, as to individuals, their right to sue in the courts of a belligerent, or to hold or enforce civil rights, depends not on their birth and native allegiance, but on the character which they hold at the time when these rights are sought to be enforced. A neutral, or *a citizen of the United States, who is domiciled in the enemy's [*124] country, not only in respect to his property, but also as to his capacity to sue is deemed as much an alien enemy as a person actually born under the allegiance and residing within the dominions of the hostile nation. This, indeed, has long been settled as the general law of nations, and enforced in the tribunals of prize; and has been latterly recognized and confirmed in the Municipal Courts of other nations.(u) And the n) Lord Raymond's Rep. p. 282. S. C. Lutwyche's Rep. p. 311. Salkeld, 46. (0) 32 Henry VI., 23, (b).

(g) Fortescue's Rep. p. 221.

(p) 7 Modern Rep. 150.

(r) 9 Edward IV., 7. Croke's Elizabeth, p. 142. (t) 2 Campbell's Rep. 163.

(s) 10 Johnson's (Amer.) Rep. 69.

u) Omealy v. Wilson, 1 Campbell's Rep. 482. McConnell v. Hector, 3 Bosanquet & Puller, 113.

same principle has been applied to a house of trade established in a hostile country, although the parties might happen to have a neutral domicil; the property of the house being, for such purpose, considered as affected with the hostile character of the country in which it is employed.(x)

LXXXIII. “In this respect" (the learned judge continued) "a corporation authorized by its charter to carry on a trade, and established in the hostile country, such as the East India Company, would undoubtedly be held, as to its property, within the same rule, even admitting its members possessed a neutral domicil. In general, an aggregate corporation is not in law deemed to have any commorancy, although the corporators have ;(y) yet there are exceptions to this principle, and where a corporation is established in a foreign country by a foreign government, it is undoubtedly an alien corporation, be its members what they may; and if the country become hostile, it may, for some purposes at least, be clothed with the same character.

"If the reason of the rule of the disability of an alien enemy be, as is sometimes supposed, that the party may not recover effects, which, by being carried hence may *enrich his country, that reason applies [*125] as well to the case of a corporation as of an individual in the hostile country. If the reason be, as Lord Chief Justice Eyre, in Sparrenburg v. Bamatine,(z) asserts it to be, that a man professing himself hostile to our country, and in a state of war with it, cannot be heard, if he sue for the benefit and protection of our laws, in the courts of our country, that reason is not less significant in the case of a foreign corporation, than of a foreign individual, taking advantage of the protection, resources, and benefits of the enemy's country. In point of law, they stand upon the same footing.”

The learned judge afterwards proceeded as follows:

"Let us now advert to the second objection, which is, that the members of the corporation are all alien enemies. In the writ, it is expressly alleged, that all the members are aliens and subjects of the King of the United Kingdom of Great Britain and Ireland. It does not, however, hence necessarily follow that they are alien enemies. This averment in the writ was proper, if not indeed indispensable, in order to sustain the jurisdiction of this court; for the corporation, as such, might perhaps have no authority whatsoever to maintain an action here, under the limited jurisdiction confided by the constitution of the United States to their own courts. But in the character of its members as aliens, we have incontestable authority to enforce the corporate rights; and it has been solemnly settled by the Supreme Court, that, for this purpose, the court will go behind the corporate name, and see who are the parties really interested. (a) And if, for this purpose, the court will ascertain who the corporators are, it seems to follow, that the character of the corporators may be averred, not only to sustain, but also to bar, an action

(x) The Vigilantia (and the cases therein cited), 1 Rob. Adm. Rep. 1. The Indiana, 2 Gallison's (Amer.) Rep. 267.

(y) Inhabitants of Lincoln County v. Prince, 2 Massachusetts Amer. Rep. 544. (z) 1 Bosanquet & Puller's Rep., p. 163.

(a) Bank of United States v. Deveaux, 5 Cranch's (Amer.) Rep. 61.

brought in the name of the corporation. It might therefore have been pleaded in this case, even if the corporation had been *established [*126] in a neutral country, that all its members were alien enemies; and upon such a plea, with proper averments, it would have deserved great consideration, whether it was not, pendente bello, an effectual bar. Where the corporation is established in the enemy's country, the plea would á fortiori apply. But although the corporation itself, and the members also, may be liable to the imputation of being alien enemies, yet that character does not necessarily or unavoidably attach to either. For aught that appears upon the face of the record, every member of the corporation may be now domiciled in the United States, under the safe conduct or license of Government. In such a predicament, it is clear that, though aliens, they would not be enemies, but might sue and be sued in our courts. (b) And in respect to the corporation itself, although established in Great Britain, it may have the safe conduct or license of the Government of the United States for its property and the maintenance of its corporate rights. It is clearly competent for the Government, under the general rights of War, to grant letters of protection, and thereby to suspend the hostile character of any person; and when he has such protection, wherever he may be domiciled, he is to be considered, quoad hoc, a neutral.(c) "Nor is there, in this respect, any difference between a corporation and an individual. And it would be highly injurious to humanity, as well as public policy, if institutions established in a foreign country for religious, literary, or charitable purposes, might not, during war, obtain protection and patronage for their laudable exertions to soften private misery and diffuse private virtue. To support the motion in arrest of judgment, it is necessary for the court to negative every presumption that could arise of a safe *conduct or license, either to the mem[*127] bers or to the corporation itself. This cannot be done in the present case consistently with the principles of law. The suit was commenced in a time of peace, and every presumption, which can, ought to be made, to support it. It is sufficient, however, that by possibility the demandants, in their corporate capacity, and the capacity of their members, may have a persona standi in judicio, to entitle them to judgment. "There is another consideration also, which may properly weigh in this case. The suit was commenced during peace, and on the declaration of War it was competent for the tendants to plead the hostile alienage of the demandants, if it existed, in bar to the further prosecution of the suit, in the nature of a plea puis darrein continuance, as it was pleaded in Le Bret v. Papillon.(d) They did not so plead, and thereby have affirmed the ability of the demandants to prosecute the suit to judgment. Upon this ground, where the disability of alien enemy occurred before judgment, and on a scire facias on the judgment the disability was pleaded, the plea has been held bad. (e)

282.

(b) Bynk., Q. J. P., c. xxv. s. 8. Wells v. Williams, 1 Lord Raymond's Rep. (c) Bynk., Q. J. P., c. vii. Usparicha v. Noble, 13 East's Rep. 332. (d) 4 East's Rep. 502.

(e) West v. Sutton, 2 Lord Raymond's Rep. 853.

"Upon the whole the motion in arrest of judgment must be overruled."

The same doctrine, namely, that the plea of alien enemy is one which the court will not favour, has been holden by the English Courts of Common Law.(ƒ) Nevertheless, under the relaxation of belligerent rights introduced by the Orders in Council of the existing War (1854-5,) the English Prize Court has holden that the affidavit of the claimant, being an enemy, must state matter showing that he has a persona standi in judico;—such a persona will not be presumed, but must be proved.(g) *LXXXIV. The national character of corporations, as well as [*128] of individuals, frequently undergoes discussion in Treaties of

Peace which award compensation for losses unjustly sustained before or during War.

It has been held in England, by the high authority of the judicial Committee of the Privy Council, that a Corporation of British Subjects in a foreign country, under the control of a foreign Government, must be considered as a Foreign Corporation, and is not therefore entitled to claim compensation for the loss of its property, under a Treaty giving the right of doing so to British Subjects.(h)

LXXXV. Domicil is, to a certain extent, another test of an enemy. This circumstance imposes a hostile character upon the property, though not necessarily upon the person, of the domiciled individual.

The question has been much considered in the Prize Courts of England and the North American United States. They have acted upon the principle laid down by Bynkershoek,(i) and it is now a well-established rule, that every person is to be considered as belonging to that country where he has his domicil, whatever may be his native or adopted country.(k)

(ƒ) Schepeler v. Durant, 2 Common Law & Equity Reports (Finlason,) 729. (g) Eccles. & Adm. Rep. (Spinks,) The Troiga, vol. i. pp. 342-3.

(h) Long v. Commissioners for Claims on France, 2 Knapp's Privy Council Rep. 51. Daniel v. Commissioners for Claims on France, ib., p. 23.

(i) "Hostium nomine an et amici nostri intelligantur, qui victi apud hostes sunt, urbé eorum forte occupatâ, dubitari posset? Nou putat Petrinus Bellus, De Re Militari, Pt. II. tit. ii. n. 5; et nihil definit Zouchous, De Jure Fecial., Pt. II. s. viii. q. 4. Ego putarem, etiam eos intelligendos esse, certè quod ad bona, quæ sub hostium imperio habent, atque adeo ea bona jure belli probe rectè a nobis occupari, si hostes antea ab amicis occupaverint. Quæcunque hostium sunt rectè capimus, ea autem bona pars sunt Imperii hostilis, quæque ita hosti prodesse, nobis nocere possunt."-Bynk., Q. J. P., 1. i. c. iii., in fine.

(k) The Vigilantia, 1 Rob. Adm. Rep. 1. The Endraught, 1 Ib. 19. The Sarah Christina, 1 Ib. 237, The Indian Chief, 3 Ib. 23. The President, 5 Ib. 277. The Neptune, 6 Ib. 403. The Venus, 9 Cranch, (Amer.) Rep. 253. The Frances, Gillespie's claim, 1 Gallis. (Amer.) Rep. 614. The Mary and Susan, Richardson's claim: McConnel v. Hector, 3 Bosanquet & Puller's Rep. 113.

"On n'aura aucun égard aux passe-ports accordés par les princes neutres ou alliés, tant aux propriétaires qu'aux maîtres des navires sujets des Etats ennemis, s'ils n'ont été naturalisés, et n'ont transféré leur domicile dans les Etats des dits princes avant la déclaration de la présente guerre.

"Ne pourront pareillement les dits propriétaires et maîtres des navires ou sujets des Etats ennemis, qui auront obtenu les dits lettres de naturalité, jouir de leur effet si, depuis qu'elle ont été obtenues, ils sont retournés dans les Etats ennemis your y continuer leur commerce."-Réglement du 21 Octobre, 1744, art. xi. décr. xxvi., Juillet, 1788. art. vi.

*Thus the masters and crews of ships are deemed to possess [*129] the national character of the ships to which they belong during the time of their employment;(7) and even if a person goes into a belligerent country originally for temporary purposes, he will not preserve his neutral character, if he remain there several years, paying taxes, &c.(m) And a neutral Consul, resident and treating in a belligerent country, is, as to his mercantile character, deemed a belligerent of that country;(n) and the same rule applies to the subject of one belligerent country resident in the country of its enemy and carrying on trade there ;(0) but the character acquired by mere domicil ceases upon removal from the country.(p) The native character easily reverts, and it requires fewer circumstances to constitute domicil in the case of a native, than to impress the national character on one who is originally of [*130] another *country ;(q) and in his favour, a party is deemed to have changed his domicil, and his native character reverts, as soon as he puts himself in itinere to return to his native country animo revertendi.(r)

In general, a neutral merchant trading in the ordinary manner with a belligerent country, does not, by the mere accident of his having a stationed agent there, contract the character of the enemy.(s) But it is otherwise if he be not engaged in trade upon the ordinary footing of a neutral merchant, but as a privileged trader of the enemy, for then he is in effect carrying on a hostile trade.(t) And the same remark applies if his agent carry on a trade, which is not clearly neutral, from the hostile country;(u) if a person be a partner in a house of trade in an enemy's country, he is, as to the concerns and trade of that house, deemed an enemy, and his share is liable to confiscation as such, notwithstanding his own residence is in a neutral country, for the domicil of the house is considered in this respect as the domicil of the partners.(x) But if he has a house of trade in a neutral country, he has not the benefit of the same principle; for if his own personal residence be in the hostile country, his share in the property of the neutral house is liable to condemnation. A man may have commercial concerns in two countries, and if he acts as a *merchant of both he is liable to be con[*131] sidered as a subject of both, with regard to the transactions respectively originating in both countries; but shipments made by an enemy's house on account and risk, bona fide and exclusively, of a neutral partner or a neutral house are not subject to confiscation as prize of War.(y) How(1) The Endraught, 1 Rob. Adm. Rep. xxii. The Bernon, 1 Ib. 102. The Embden, 1 Ib. 17. The Frederick, 5 Ib. 8. The Ann, 1 Dodson, 221. (m) The Harmony, 2 Rob. 332. The Embden, 1 Ib. 17.

(n) The Indian Chief, 3 Ib. 22. The Josephine, 4 Ib. 25.

(0) The Citto, 3 Ib. 38. M'Connel v. Hector, 3 Bos. & Pull. 113.

(p) The Indian Chief, 3 Rob. 12.

(9) La Virginie, 5 Rob. 98.

(r) The Indian Chief, 3 Ib. 12. The St. Lawrence, 1 Gall. (Amer.) 467. The Anna Catharina, 4 Rob. 119. The Rendsborg, Ib. 139.

(t) The Anna Catharina, Ib. 119.

(u) Ibid.

(x) The Vigilantia, 1 Ib. 1, 14, 19. The Susa, 2 Ib. 255. The Indiana, 3 Ib. 44. The Portland, Ib. The Vriendschap, 4 Ib. 166. The Jonge Klassina, 5 Ib. 297, The Antonia Johanna, 1 Wheaton (Amer.,) 159. The St. Joze Indiana, 2 Gall. (Amer.) 268.

(y) The St. Joze Indiana, 2 Gall. (Amer.) 268, 274-289, 290, 291. The Frances, 1 Ib. 618. S. C., 8 Cranch (Amer.,) 348.