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sidered as British subjects. In the case of La Virginie, THE 5 Rob. 98, sir W. Scott said, “ It is always to be remem VENUS, 66 bered, that the native character easily reverts, and RAE, “ that it requires fewer circumstances to constitute do- MASTER: 6 micil in the case of a native subject, than to impriss o the national character on one who is originally of 66 another country.”
It is not necessary to contend against the doctrine of expatriation. We do not deny the right. We contend only that in order to render his nat.ralization valid for the purposes in question, a man must expatriate himself bona fide, must remove from his original country and not return to it, animo manendi. In support of this doctrine, vid. the act of congress of March 27. 1804. Laws of U. S. vol. 7, p. 146–also act of 31st December, 1792, 0 2. Laws U. S. vol. 2, p. 132. 3 Dallas, 153, Talbot v. Janson.
The British doctrine on this subject is well known. 66 Once a British subject, always a British subject,” is an established rule in the English law. Great Britain respects the naturalization laws of the United States only for co:nmercial purposes. If one of her subjects be naturalized in this country, and afterwards return to a British territory, she considers him as 'still, to all intents and purposes, a British subject. She does not even require him to abjure his adopted allegiance.
It is to be presumed that Maitland, M Gregor and Jones knew the laws of their own country: yet with this knowledge they returned to England; and that, as it appears from their subsequent conduct, not for a temporary purpose merely, but animo manendi. They have established there a house of trade. They have placed themselves and their property under the protection of Great Britain, and cannot now, with any show of reason, claim protection from the United States, al. though the United States may still claim something from them. 2 Cranch, 120, Murray v. Schooner Charming Betsy.
It is evident, from all the circumstances of the prea sent case, that Maitland did not intend to return to the United States until he heard of the capture of the vese VOL. VIIE.
THE sel: on the contrary, it appears that, with a full knowVENUS, ledge of the war, he made his election to remain in
RAE, England. MASTER.
When M Gregor left England for the United States, he embarked as a British subject. His passport was from the privy council, and signed by lord Sidmouth ; whereas American citizens obtained their passports from the alien office. He is still a partner in a house of trade in England he is engaged in a British trade. It remains for these parties to explain their conduct. We have stated the facts, and the burden of proof now lies on the Claimants. Such would be the rule even if they were neutrals. 3 Rob. 37, 38. The Citto. 4 Rob. 191, 232. The Dree Gebroeders. 1 Rob. 88, 104. The Bernon. 1 Rob. 12, 15. The Vigilantia. 3 Rob. 40, 41. The Portland. 5 Rob. 91. The Ocean. 2 Rob. 264, 322. The Hurmony.
In attempting to establish the national character of these Claimants, as American citizens, it was said in the Court below, that they held landed property in this country. This argument is overthrown by the decision in the case of the Dree Gebroeders cited above; 4 Rob. 194, 235.
2. It appears that M Gregor has fraudulently attempted to cover the whole property in question; his claim, therefore, being false in part, he cannot recover even his own share, although we should admit him to be an American citizen. The whole, therefore, is justly liable to condemnation. 2 Rob. 212, 257. The Susa. 1 Rob. 210, 250. The Odin. 2 Rob. 281, 343. The Rosalie and Betty. 3 Rob. 92, 109. The Graaf Bernstorf. 4 Røb. 65, 74. The Jonge Pieter.
3. As to the claim of Lenox and Maitland to the ship, we contend, 1st. That, under the act of congress of March 27, 1804, (Lars U. S. vol. 7, p. 146) she cannot be considered as an American vessel. By that act it is declared " That no ship or vessel shll be entitled to be registered as a ship or vessel of the United States, or, if registered, to the benefits thereof, if owned in whole or in part by any person naturalized in the United States, and residing for more than one year in
the country from which he originated, &c. But Maitland had been residing in England more than a year, VENUS, and consequently was not entitled to an American re RAE, gister. 2d. That Lenox being found in violation of the MASTER. law, as it respected the ship's register, he is not rectus in curia for the purpose of claiming the ship. Vid. the cases cited in the Rapid, on this point: viz. 2 Rob. 72, 77. The Walsingham Packet. 5 Rob. 28, 32. The Cornelis and Maria. 6 Rob. 348. The Recovery. 3d. That Lerox and Maitland having attempted to conceal enemy's property, (the 100. casks of white lead) and to withdraw the same from the belligerent rights of the United States by a fraudulent shipment and claim, their claims to the property captured therewith must be rejected, and the penalty of confiscation attaches to the same. This principle is intended to be applied to the claim of Maitland as well to the cargo as to the ship.
There can be no reasonable doubt that the lead be. longed to some person or persons other than the Claimants. The following facts are considered as conclusive on this point.
1. The original bill of parcels enclosed in a letter dated 3d July, 1812, from Wm. Maitland & Co. to Lenox and Maitland, is headed thus : “ Thomas Holloway bought of Thomas Walker, Malby & Co. lead merchants," and is dated at Liverpool, June 2d, 1812.
2. In the bill of lading of the goods claimed as the property of Lenox and Maitland, in which the white lead is included, the freight and primage is cast upon the lead in the margin of the bill of lading, and not upon the crates, copper, bagging, or coal.
3. To a letter from Maitland to Lenox of 22d August, 1812, found on board the Lady Gallatin, is annexed a list of goods shipped by Wm. Maitland & Co. by the Venus, on account of and consigned to Messrs. J. Lenox and Wm. Maitland. In this list all the goods claimed by Lenox and Maitland, and by Lenox, Maitland and M Gregor, are enumerated, except the white lead.
4. Upon the order for further proof in the District
Court, no further proof was offered respecting the lead. VENUS, Maitland, in bis affidavit made January 7th, 1813, in RAE,
Liv rpool, swears that the copper, crates, coals and MASTER. bagging were purchased and shipped on board the Ve
nus, on the sole account and risk of himself and Lenox: he also swears as to their joint property with M.Gregor: but
not a word about the lead.
From these circumstances we must conclude that the white lead was the property of Thomas Holloway, an acknowledged British subject; that it is therefore liable to condemnation, and subjects the property captured with it to the same fate.
4. In respect to the claim of Magee and Jones, we contend that at the time of capture the property belonged solely to Jones, a British merchant and subject, and is therefore to be condemned as enemy property.
In the bill of lading of these goods, they are expressed to be shipped by M.Grigor & Co. unto and on account of James Magee & Cc. of New York. The invoice is signed by Jones, at Manchester, and describes them as goods to he shipped on board the Venus, and to be consigned to James Magee & Co. of New York ; but does not specify on whose account and risk. It is therefore to be considered as at the risk of Jones. Vid. on this point, the case of the Marianna, 6 Rob. 27.
In a letter from John S. Jones to James Magee & Co. lated at Manchester, 1st July, 1812, he says,
This serve's to hand you invoice of 21 trunks prints per Venus, amount 1,3231, 13s. Od. subject to the same terms as the goods per Aristomenes; that is, to be sold on joint account, or on mine at your option.” Now, to eff.ct a change of property, it is essential that there be a contract of sale agreed to by both parties. Here appears to have been no such contract.
The property, therefore, at the time of capture, was exclusively in Jones.
If Jones had a right to stop these goods in transitu, so had the United States, who, by the laws of war, suceeeded to his rights. 6 Rob. 127. The Constantia. The Copenhagen, 1 Rob. 245, 291, is an analogous case.
STOCKTON, contra, for M Gregor, contended,
VENUS, 1st. That M.Gregor, to the exclusion of his partners, RAE, Lenox and Maitland, was owner of one half of 198 MASTER. packages of Manchester goods, and one half of 25 pieces of cotton bagging, and to the whole of five trunks of goods.
2d. That these goods were not the goods of an enemy, and ought to be restored to M Gregor as an American citizen.
In support of the first point, he relied on the ship's papers, on certain letters of Maitland & Co. and of M Gregor himself, on the affidavits of M Gregor in the Court below, &c. He contended that the testimony on this point, introduced since the evidence in proeparatorio, was incompetent; but if competent, not important. The cause was heard in September, 1812, and further proof allowed for the Claimants; but no such order on the part of the captors, nor any order to proceed by plea and proof. The cause stood, on their side, on the proof taken in præparatorio. The evidence introduced by them is upon simple affidavit. 1 Rob. 263, 313. The Adriana. Letter from sir W. Scott and sir J. Nicholl to Mr. Jay, 1 Rob. (Amer. ed.) p. 8.
Second point. As to the national character of M.Gregor. He came to the United States a minor; was an established merchant in New York before 1795; he was then naturalized; he married in New York, and purchased a house there before his departure for England, which he still retains : he has also purchased large tracts of land in the states of New York and New Jersey, which he yet owns: he resided about twelve years in New York. His return to England was produced by temporary causes. In 1798 he returned thither on account of the sickness of his wife, who died in Scotland. His second return was for his own health. In 1805 he commenced business in Liverpool as an American merchant. His cmployment was that of an American merchant shipping goods from England, and receiving American produce to sell there on commission. His residence in England was in time of peace: it was lawful, and could in no manner impair his rights as a