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citizen of the United States. He had no intention to VENUS, abandon bis American rights, or to remain permanently
RAE, in England; but intended to return to the United States MASTER. whenever his duty should require him to return. Such
a residence, in time of peace, could not stamp a hostile character upon him; and, at the breaking out of war, he was entitled to a reasonable time to part from the British dominions, before he could forfeit his American character and become identified with the enemy. He did depart therefrom, and returned to the United States with his family within a year after the declaration of war. His having formed a connexion in trade with British partners was a lawful act, which did not derogate from his American character, but extended and facilitated his business as an American merchant.
Congress did not mean to authorize the capture of property belonging to mere inhabitants of the hostile country. When the bill to authorize the president to issue letters of marque was brought into the senate of the United States in June, 1812, it authorized him to issue them against all persons inhabiting in Great Britain or its territories or possessions ; but was amended in the senate so as to authorize lim to issue them only against the united kingdom of Great Britain and Ireland and the subjects thereof. See the secret journal of the senate for June, 1812.
Many cases have been cited by the counsel for the captors in bis endeavor to prove this a case for condemnation. The answer to most of them is, that the controversy in those cases was between neutrals and belligerents ; not between Great Britain and her subjects. The two cases are entirely different in principle. The connexion between a citizen and his government depends on the municipal law of the land. The rights of a neutral depend upon the law of nations.
With regard to the doctrine of naturalization, it is well known that, by the law of England, a person naturalized by act of parliament is as much a subject, to all intents and purposes, as a native. Co. Lit. 129, a. Bl. Com. B. 1, c. 10, p. 374. M.Gregor, we have seen, was naturalized in the United States. But it is said that he has returned to his former allegiance, and there
by lost his American character. This we deny. He returned to England in time of peace, by which we con VENUS, tend he neither forfeited nor abandoned his character RAE, as an American citizen. Our act of naturalization MASTER. contains nothing to authorize the opinion that he did. Nór could he throw off his adopted allegiance if he would. If found in arms against us he would be punished as a traitor.
The act of March, 1804, which has been cited by the captors, merely declares that a naturalized citizen shall lose one particular privilege of his citizenship by residing for more than a year in the country from which he originated; from which the implication is clear, tirat he shall retain all his other privileges.
In the case of the Charming Betsy, 2 Cranch, 64, and in the case of MIlvaine v. Coxe's lessee, decided in 4 Cranch, 211, the decision of this Court was, that residence in a foreign country does not deprive an American citizen of his rights as such. It has been decided, also, that by such residence in time of peace, the national character is not changed upon the sudden breaking vut of a war. Residence in time of peace is lawful; and if the person so residing return to his own country in a reasonable time after the breaking out of the war, he does not lose his original national character. 1 Bos. and Pul. 442, Marryat v. Wilson. Vattel, B. 1, c. 19, § 218, p. 169. Sir W. Scott has never said that such a residence would, on the sudden breaking out of a war, give a hostile character to the resident: he has never gone so far as to condemn property situated like that now in question. 5 Rob. 90. The Ocean.
Vattel (B. 3, c. 4, 5, 63, p. 477) says, that the sovereign declaring war is to allow those subjects of the enemy who are within his dominions at the time of the declaration, a reasonable time for withdrawing with their effects: and certainly a nation ought not to grant less indulgence to its own citizens than the enemy allows them. I trust this Court is not yet prepared to adopt, even with respect to neutrals, much less with regard to American citizens, the rigid rules of the British Court of admiralty-a mere political Court--a prerogative Court regulated by the king's orders in council,
designed to give Great Britain the sovereignty of the VENUS, ocean, to subject the whole commerce of the world to
RAE, her grasp, and to make the law of nations just what her MAŠTER. policy would wish it to be.
It is doubtful whether the Court ought to condemn, under the circumstances of the present case, although it should be proved that the property in question was enemy property.
The shipment, in the present case, was made on the faith of the representations of the American charge d'affaires, Mr. Russel; who had given it as his opinion that property shipped after the repeal of the British orders in council, and before knowledge of the war, would be admitted into the United States. Under these circumstances the conduct of the owners of this property was perfectly justifiable. It has been decided in a British Court, that property which comes into the possession of a nation under the public faith, is not liable to forfeiture, and Congress has virtually acknowledged the same principle, by passing the act of 27th February, 1813, remitting the forfeitures which had accrued under the non-intercourse act of March 1, 1809. Laws U. S. vol. 11, p. 388. Vid. Mr. Russell's statement in the report of the committee of congress... journal of H. of Rep. and the case of the Althea, cartel, which was captured at Halifax as American property, and discharged by judge Croke, because it came into the possession of the British under the public faith.
PITMAN, as to the objection to the invocation of papers from other Courts, cited the following authorities : 18th Interrogate, 1 Rob. ( Amer. ed.) 323.6 Rob. 351. The Romeo. 4 Rob. 170, 205. The Convenientia 1 Rob. 27. 31. The Magnus. 2 Rov. 2, 3. The Eenrom. id. 211, 254. The Susa. id. 281, 343. The Rosalie and Betty He observed that there was an order, in the Circuit Court, for further proof on the part of the captors, saving the question whether it were a case for further proof.
HARPER, for Lenox and Maitland and Jones and Magee.
Lenox and Maitland claim.
1st, The ship Venus.
2d. As their joint property, the white lead, crates, copper, cotton bagging and coal.
3d. One moiety of 198 packages of merchandize and cotton bagging, as the joint property of Lenox and Maitland and Alexander M Gregor, and shipped by them.
Magee and Jones claim 21 trunks of prints, part of the cargo of the Venus, as their joint property.
Lenox and Maitland are natives of Scotland. They removed many years since to New York, where the former was naturalized on the 10th of November, 1794, and the latter on the 8th of July, 1804. They entered into partnership in trade in 1797, and established their house in New York, in which they were alone interested, under the name and firm of J. Lenox and W. Maitland; which has continued to the present time. For fourteen years they both resided, without interruption, in the city of New York, carrying on the business of their American house, as American citizens; and, as such, they hold valuable real estate in the city and in the state of New York, and also hold American regis. tered ships. Lenox still resides in New York; but Maitland, in July 1810, to promote the interest of their commercial establishment in New York, by attending the sales of the shipments to Europe and the returns to America, went to Liverpool, in England, where, in 1811, he took a house and counting-room and transacted bụsiness for the said concern, under the name and firm of W. Maitland and Co. consisting only of said Lenox and Maitland. He has long since given up his countingroom and attempted to dispose of his house; and is still in England, detained there by sickness. In July, 1812, and long before and at the time of the capture of the Venus by the Dolphin, Lenox and Maitland were the sole owners of the said ship. under an American register. The Venus sailed from Liverpool for New York, on the 4th of July, 1812, with a cargo of British produce and manufactures, the proceeds of the funds of Lenox and Maitland, with instructions to wait off the Hook, to know if the goods could be landed. ProceedVOL. VIII.
THE ing with her cargo on this voyage, she was captured VENUS, and libelled as has been before stated.
RAE, MASTER. James Magee was naturalized 9th August, 1805, and
has ever since resided and been established in New York.
John S. Jones was naturalized 10th December, 1795, and resided in New York thirteen years. In 1810, he went to Manchester (England.) and arrangements were made for shipping goods to Magee, the partner in New York.
It has been contended, on the part of the captors, with regard to the ship, that, by the laws of the United States, she is not to be deemed an American ship, nor entitled to the benefits of an American register, on account of the residence of Maitland in Liverpool for more than a year.
Admitting, for the sake of argument, that this position is correct, still we contend that the ship is not forfeited. She has merely incurred t':e disability attached to a foreign ship. Her owners are still American citizens, but have lost the privilege of availing themselves of the register. It is contended, however, that this very disability which attaches to the ship, renders her belligerent property. This is truly a novel doctrine. There is no law by which it can be supported.
As to the right of Lenox to his share of the ship, there can be no reasonable doubt. He is certainly an Ameri an citizen and has done nothing to forfeit that character. He has been naturalized in this country, and has continued to reside here ever since. It is said, however, that he has made a false clairn to the white leal. This point will be considered in the course of the argument.
Maitland, it is true, has been residing in England for a considerable time past; and it is upon this ground that the ship and cargo is claimed by the captors. They contend that his residence in England (although an American citizen) clothes him with a hostile character.