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To this it may be answered, that the residence which
THE imparts a hostile character must be residence connected VENUS, with some act of commerce blended with the commercial transactions of the enemy. Mere residence does MASTER. not give a hostile character, so long as the resident refrains from all voluntary acts tending to the aid and comfort of the enemy. If he engages in the enemy's commerce, he must, to be sure, be considered as an enemy; but even then, only to the extent of the commercial property engaged in the hostile trade, which may chance to be captured. A man in an enemy's country _may send home books or furniture purchased before the war for his own use, and they will not be hostile property. There must be a trading with the enemy to constitute an offence. Trading is essential ; time is not. A mere continuation in an enemy's country after the commencement of hostilities, without any act of trade, has never been decided to constitute a man an enemy. Sir W. Scott himself allows a person found in the enemy's country, a reasonable time to withdraw bis effects, and even to trade with the enemy so far as it may
be necessary for the removal of his property. 3, Rob. 17, 12. The Indian Chief. 4, Rob. 167, 195, Madonna delle Gracie. 1, Rob. 165, 196, the Hoop,
But it is said, that though an illegal act should be proved to have been committed by Maitland, yet that Lenox has been guilty of making a false claim to part of the cargo, which act of Lenox has criminally affected the property of Maitland.
We answer, that the doctrine on the subject of covering enemy property, applies only to neutrals; but Lenox was a citizen of the United States. Besides, it does not by any means appear, that, in making this claim, Lenox was influenced by a fraudulent motive. His conduct was, in all probability, owing to mistake. He had not seen the letters and papers proving the property, claimed by him, to belong to the enemy; and therefore cannot be supposed to have known that fact.
It is further urged by the captors, that a letter by the Lady Gallatin, of 22d August, 1812, shows that a purchase of 100 bags of cotton was made by Maitland, after knowledge of the war.
To the admissibility of the invoked papers, among VENUS, which this letter is one, we have already objected, and
RAE, must still insist upon the objection. Setting aside those MASTER. papers, it does not appear that Maitland did purchase
the cotton after knowledge of the war: and the presumption ought to be in his favor. But suppose this single purchase was made one day after war was known to exist, (which is all the captors contended for) is this sufficient to fix a hostile character, especially under circumstances like those attending this transaction, when it was universally supposed that the repeal of the orders in council would have put an end to the war?
With regard to Jones, it lías only been proved that he was residing in England a few months after the commencement of hostilities; but there is no evidence that he has not returned; nor is there any evidence of his having traded with the enemy. The burthen of proof lies on the captors.
DEXTER, in reply.
In cases like that now before the Court, the advantage in obtaining evid nce is clearly on the side of the Claimants. They have in their power the knowledge of all the facts relative to the case.
The evidence in præparatorio consists of the documents on board the ship, and the testimony of the crew. They may make ont their own case.
If the evidence in their favor be deficient, they may have an order for further proof, which does not give the captors any opportunity of introducing further evidence on their part. Under circumstances so manifestly advantageous, if the Claimants do not fully prove their case, the presumption must be against them. Whether the Claimants in the present case have satisfactorily done so, it is for the Court to decide.
With regard to the question of domicil. Sir W. Scott has decided that the animus manendi is to be presumed under circumstances perfectly analogous to those of the present case. What are the facts with regard to the several parties whose claims are now disputed ? M'Gregor, it appears, is a native of Scotland: he became a citizen of the United States by naturalization, in 1795, and resided at New York until 1802, except a temporary
risit to his native country, for the health of his wife. In 1802, he left New York for his own health, and in 1801, YENUS, established himself in a house of trade in Liverpool (En RAE, gland) in connexion with James Dennistown, a British MASTER. subject. Two other partners were afterwards admitted, both British subjects. M'Gregor was the only one of the partners who resided in Liverpool, and was the acting partner of the concern. He married a second wife in Great Britain, and had several children there, during his residence in Liverpool.
These facts are abundantly sufficient to establish his domicil.
The question, then, remains—did he take timely and sufficient steps, after knowledge of the war, to divest himself of his British character, and return to the United States? This does not appear. On the contrary, it appears from papers invoked and introduced into this cause, and it is not contradicted, that he continued his connexion with his British partners ten months after the declaration of war, and, as acting partner of the house, made a shipment to Halifax. He has not, in any of his affidavits, declared that he did not continue his trade. The testimony on his part does not deny all secret trusts. He comes into Court well informed of the suit, yet without the books, articles of partnership, original bills of parcels, and the other papers connected with the transactions under consideration.
It has been urged in his defence, that being a commission merchant, having the property of others in his hands, and being the only acting partner of the firm, he was justified in remaining in England till he could wind up his business. But this is no sufficient justification. The contracts of a citizen residing abroad, must be consistent with the interests of his country. If the good of his country requires his return, as in the event of war, it is his duty to leave his business in other hands. M'Gregor might have left his affairs to the care of his partners.
Most of the facts with regard to Maitland have been already stated. It may be added, however, that he continued to reside in England and was transacting busi.
ness there as late as April, 1813; whereas the war VENUS, was known on the 24 h or 26th of July, 1812. In his
RAE, letter of the 22d of August, 1812, in which he informs MASTER. his partner of a purchase of cotton wool he had just
made, he says nothing of any intention of returning to the United States,
His continuance in England is defended on nearly the same groun is as that of M'Gregor; viz. his extensive mercantile concerns. Sickness was not alleged by him as an excuse, till 13th April, 1813.
As to the goods shipped by Jones, it has already been observed, that, in his letter to Magee of 1st of July, 1812, he gives him his option either to be interested in them or not. Of course, at the time of the shipment, they were the sole property of Jones; and before the letter was receceived by Magee before there was a possibility of his making an election, the goods were captured; but it is an acknowledg d rule of prize law, that the character of goods cannot change in transitu ; at the time of capture, therefore, tey were the sole property of Jones, and must, we contend, be condemned in toto.
Besides the particular circumstances which have been urged in justification of the individrals concerned in this cause, a general defence has been set up; viz. That though the property in question should be determined to be British, yet it came here under the faith of the nation; and is therefore entitled to protection. Vattel, it is said, lays down this doctrine. This is not denied. But did the property in controversy come into the country under the national faith? It was not here at the breaking out of liostilities. It was not brought into the country until after the declaration of war; and then it was brought in as a prize of war. Besides, if it was considered as protected on this principle, why was the attempt made to cover it. under the name of M'Gregor? This has a suspicious appearance; and shows clearly that the Claimants themselves placed little reliance on the cirCrimstance which is now urged in their defence.
As to the objection to the admission of the invoked papers, it need only be observed that the counsel for the
Claimants is under a mistake on the subject. There was an order for further proof on the part of the captors ; VENUS, and under that order these papers were invoked.
MASTER • The great question of law on the subject of domicil yet remains to be examined.
Three classes of residents are recognized by the law of nations.
1st. Mere residents.
2d. Domiciled residents.
3d. Natural born subjects.
Before entering upon the discussion of the main ques . tion, I would remark, with regard to sonie observations which have fallen from the counsel for the Claimants respecting the severity of the rules adopted by the Bri. tish Court of admiralty, that these rules have been applied by sir W. Scott with equal rigor, to British subjects as to neutrals; which is a sufficient answer to the allegation that they have been introduced merely to subserve the grasping policy of the British nation, and destroy all neutral commerce.
With regard, then, to the first class of residents. It is admitted that mere residence in a foreign country, for a particular temporary purpose, without engaging in the commerce of the country, is not sufficient to change the national character.
2d. Residence in a foreign country connected with the carrying on a general trade and mixing in the commercial affairs of the nation, constitutes domicil; thereby making a man, sub modo, a subject of that foreign country: and in case of war breaking out between his original and adopted country, if he continues, notwithstanding, to reside and trade in the latter, he is to be considered by his original country, as invested with a hostile character to all intents and purposes. He ought not, it will be admitted, to be considered in this light immediately on the declaration of war: be ought, perhaps to be allowed a reasonable time to make his election whether to remain