THE

where he is or return to his own country. Respectable VENUS, authorities, however, have said that, if required, he is RAE, bound to return. Sir W. Scott says he is bound immeMASTER. diately to put himself in motion to return.

3d. As to mere native subjects, it is needless to make any remarks. The persons whose national character is now in question are natural born subjects of Great Britain, naturalized in the United States, and who afterwards returned to the country of their nativity. These persons, we contend, are, even without the intervention of a war, as much British subjects as if they had never been naturalized in another country. The British government had a right to prevent their return to the United States. In saying this, we would not be understood as admitting the legality of impressment; the cases are materially different.

The naturalization law of the United States requires permanent residence and no longer than that residence continues, can a man claim the privileges of naturalization. Before he can be admitted to those privileges, he must abjure all allegiance to the state of which he was before a citizen. By so doing, he binds himself not to return to that state. By returning he violates his oath ; and can thereafter claim no protection from the country which he has thus abandoned. Abjuration does not absolve him from his former allegiance; he may incur new duties, but he cannot swear away his old obligations. It is for this Court to explain the true meaning of the law of naturalization. It may, however, be observed, that neither the constitution nor the laws of the United States 'consider a naturalized citizen in the same light as a native. The laws of Great Britain, also, and indeed the laws of every country, make a distinction between the two. A native is considered as a citizen wherever he goes; but a person naturalized is no longer looked upon as a citizen, than while he continues in his adopted country. No nation confers the privilege of naturalization without an equivalent. No nation extends its protection to naturalized subjects, if they return to their former country. And shall we be an exception? Shall we be the first to extend to naturalized foreigners this Quixotic protection?

THE

VENUS,

RAE,

The expression “ad fidem utriusque regis,” from Calvin's case, has been mis-translated, "the faith of both kings." Had that been the meaning of the phrase it would have been utrumque regum, in the plural: The MASTER. meaning is, that a man may be the subject of either power according to his residence. Were the doctrine, that he may be the subject of both, correct, he would have it in his power to enjoy the privileges of both governments, without being subject to the duties of either.

With regard to the false claim of Lenox. It is a rule of prize law, that a man who makes a false claim to protect enemy property, forfeits any property of his own that may be captured with it. This Lenox appears to have done with respect to the white lead. If he has, not only his own property is forfeited, but that of Maitland his partner must share the same fate. What has been said by the counsel for the Claimants to exculpate. Lenox, is mere conjecture.

As to the ship. It is clear that the register was improperly obtained-not to say fraudulently. Maitland, by residing in England, was not entitled to an American register. Lenox, by concealing, when on oath, the fact of Maitland's residence in England, becomes particeps criminis, and if he mixes his interest with that of his partner, the same decree must be rendered as to the property of both.

STOCKTON, with regard to the withholding of papers with which M'Gregor was taxed by the counsel on the opposite side, stated that the decree of the Court below was only rendered in October last, when M'Gregor had the first intimation that the papers were required; since which, there had not been time to obtain them.

Saturday, March 12th. Absent....LIVINGSTON. J.

WASHINGTON, J. after stating the facts of the case, delivered the opinion of the majority of the Court as follows:

The claims of Maitland, M.Gregor and Jones are resisted, in toto, upon an objection to the national character of the Claimants. The general question affecting VOL. VIII.

35

THE these parties, will, for the present, be postponed in order to VENUS, dispose of particular objections which are made to all RAE, the claims, either in whole or in part, and which will MASTER. depend on the particular circumstances applying to those cases.

1. The first claim that will be considered will be that of Lenox and Maitland to the 100 casks of white lead, which, it is contended, is the property of Thos. Holloway, an acknowledged British subject, but shipped in June, 1812, by Wm. Maitland & Co. (a house established in Liverpool, and composed of Wm. Maitland and James Lenox) to Lenox and Maitland, a house established at New York, and composed of the same parties. To establish the fact of property in Thos. Holloway, the captor relies upon the following evidence: The original bill of parcels, enclosed in a letter under date of the 3d of July, 1812, from Wm. Maitland & Co. to Lenox and Maitland, which is headed thus, Thos. Holloway bought of Thomas Walker & Co. lead merchants," dated June 2d, 1812. In corroboration of this prima facie evidence of property in Holloway, the freight and primage of this lead is cast in the margin of the bill of lading, but not so upon the acknowledged property of Lenox and Maitland, the owners of the ship, and included in the same bill of lading; from which circumstance it is argued that this article did not belong to Lenox and Maitland; since, if it did, no freight could have been charged on it, any more than upon the other parts of the cargo claimed by them. In addition to this, in a list of goods shipped by Wm. Maitland & Co. by this vess!, on account of and consigned to Lenox and Maitland, and enclosed in a letter of the 220 August, 1842, from the former to the latter, by the Lady Gallatin, all the goods claimed by that house separately, and also by them and M'Gregor jointly, are enumerated, except this parcel of white lead. This evidence is certainly very strong to fix a hostile character on this property; and is rendered conclusive by the omission of Maitland, in his affidavit made under the order for further proof, to say any thing in relation to the white lead, although he is very particular as to all the other property claimed by Lenox and Maitland, and by that house jointly with M Gregor. This Court is

therefore of opinion that the Court below did right in rejecting this claim.

66

THE VENUS, RAE,

2. The next claim to be considered, is that of Magee MASTER. and Jones to a part of the cargo on board of this vessel. Magce is a citizen of the United States, settled in New York, and connected with Jones in a house of trade. It is urged by the captors that the whole of this property ought to have been condemned as the sole property of Jones. The bill of lading of these goods expresses them to be shipped by M.Gregor & Co. unto and on account of James Magee & Co. of New York. The invoice is signed by Jones, at Manchester, in England, and describes them as goods to be shipped on board the Venus, and to be consigned to James Magee & Co. of New York; but it does not specify on whose account and risk. In a letter from Jones to Magee, dated the 1st of July, 1812, covering an invoice of these goods, he says they are to be sold on joint account, or on mine at your option." - The whole question, as to the exclusive property of Jones in these goods, is rested, by the captors, upon the above expressions giving an option to Magee to be jointly concerned or not in the shipment. The question of law is, in whom the right of property was at the time of capture? To effect a change of property as between seller and buyer, it is essential that there should be a contract of sale agreed to by both parties; and if the thing, agreed to be sold, is to be sent by the vendor to the vendee, it is necessary to the perfection of the contract that it should be delivered to the purchaser or to his agent, which the master, to many purposes, is considered to be. The only evidence of a contract, such as is now set up, appears in the affidavit of Magee; who states that, in 1810, he was in England, and agreed with Jones that the latter should ship goods on joint account, when the intercourse between the two countries should be opened; and that, in consequence of this agreement, the present shipment was made. Now admit that such an agreement was made, yet the delivery of the goods to the master of the vessel was not for the use of Magee and Jones, any more than it was for the use of the shipper solely; and, consequently, it amounted to nothing so as to divest the property out of the shipper, until Magée should elect to take them on joint account, or

THE

to act as the agent of Jones. Until this election was VENUS, made, the goods were at the risk of the shipper, which is conclusive as to the right of property.

RAE, MASTER.

3. The next claim is that of Lenox and Maitland to the ship. The facts in relation to this subject are, that James Lenox, as joint owner with W. Maitland of this ship, obtained, in November, 1811, a register for her, which was granted upon his oath, that he, together with W. Maitland, of the city of New York, merchant, were the only owners. At this time, Maitland was domiciled in Great Britain; and it is contended that the statement, that Maitland was of New York, was untrue, and subjected the vessel to forfeiture, under the act of congress of the 31st of December, 1792; and that although no claim is interposed for the United States, still the forfeiture produced by the misconduct of Lenox, is sufficient to turn him out of Court, whatever disposition may ultimately be made of the property. The rule of the prize Court is correctly stated in this argument; and the only question is, whether a forfeiture did accrue to the United States. The act of congress directs that the owner who takes the oath, in case there are more than one owner, shall, in his oath, specify the names and places of abode of such owners, and that they are citizens of the United States, if such be the fact; and if one or more of them reside abroad, as a partner or partners in a co-partnership consisting of citizens, and carrying on trade with the United States, that such is the case. The law then proceeds to declare, that if any of the matters of fact in the said oath alleged, within the knowledge of the party swearing, shall not be true, the ship shall be forfeited to the United States. It cannot be denied that, at the time this oath was taken, W. Maitland was a resident merchant of Great Britain, carrying on trade with the United States; a fact totally inconsistent with that alleged in the oath, that he was of the city of New York. It is probable, and the Court is willing to believe, that this statement was innocently made, under a misconception of the real character which the foreign domicil of Maitland had impressed upon him. But still, the law required explicitness on this point, and marked te distinction between a person residing abroad, and one residing within the United States. It must be admitted, in point of law,