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before the war, in their character of subjects of that VENUS, country, so long as they continued to retain their domi
RAE, cil; and when a state of war takes place between that MASTER. country and any other, by which the two nations and
all their subjects become enemies to each other, it follows that the property, which was once the property of a friend, belongs now, in reference to that property,'to an enemy. This doctrine of the common law and prize Courts of England is founded, like that mentioned under the first head, upon national law; and it is believed to be strongly supported by reason and justice. It is laid down by Grotius, p. 563, “ that all the subjects of the “ enemy who are such from a permanent cause, that is “ to say, settled in the country, are liable to the law of “ reprisals, whether they be natives or foreigners; but “not so if they are only trading or sojourning for a “ little time.” And why, it may be confidently asked, should not the property of such subjects be exposed to the law of reprisals and of war, so long as the owner retains his acquired domicil, or, in the words of Grotius, continues a permanent residence in the country of the enemy? They were before, and continue after the war, bound, by such residence, to the society of which they are membr's, subject to the laws of the state, and owing a qualified allegiance thereto; they are obliged to defend it, (with an exception in favor of such a subject, in relation to bis native country) in return for the protection it affords them, and the privileges which the such persons, equally with that of the native subjects in their totality, is to be considered as the goods of the nation, in regard to other states. It belongs, in some sort, to the state, from the right which she has over the goods of its citizens, which make a part of the sum total of its riches, and augment its power. Vatt. 147, and also B. 1, c. 14, 182. In reprisals, continues the same author, we seize on the property of the subject, just as we would that of the sovereign ; every thing that belongs to the nation is subject to reprisals, wherever it can be seized, with the exception of a deposit entrusted to the public faith. B. 2, c. 18, 544. Now if a permanent residence constitutes the person a subject of the country where he is settled, so 'long as he continues to reside there, and subjects his property to the law of reprisals, as a part of the property of the
nation, it would seem difficult to maintain that the same consequences would not follow in the case of an open YENUS, and public war, whether between the adopted and na RAE, tive countries of persons so domiciled, or between the MASTER. former and any other nation. If, then, nothing but an actual removal, or a bona fide beginning to remove, can change a national character acquired by donicil, and if, at the time of the inception of the voyagés as well as at the time of capture, the property belonged to stich domiciled person in his character of a subject, wbat is there that does, or ought to exempt it from capture by the privateers of his native country, if, at the time of capture, he continues to reside in the country of the adverse belligerent? It is contended tlrat a native or naturalized subject of one country, who is surprised in the country where he was domiciled by a declaration of war, ought to have time to make his election to continue there, or to remove to the country to which he owes a permanent allegiance; and that, until such election is made, his property ought to be protected from capture by the cruizers of the latter. This doctrine iş believed to be as unfounded in reason and justice, as it clearly is in law. In the first place, it it founded upon a presumption that the person will certainly remove, before it can possibly be known whether he may elect to do so or not. It is said that this presumption ought to be made, because, upon receiving information of the war, it will be liis duty to return home. This position is denied. It is his duty to commit no acts of hostility against bis native country, and to return to her assistance when required to do so; nor will any just nation, regarding the mild principles of the law of nations, require him to take aims against his native country, or refuse her permission to him to withdraw whenever he wishes to do so, unless under peculiar circumstances, which, by such removal at a critical period, might endanger the public safety. The conventional law of nations is in conformity with these principles. It is not uncommon to stipulate in treaties that the subjects of each shall be allowed to remove with their property, or to remain unmolested. Such a stipulation does not coerce those subjects either to remove or to remain. They are left free to chuse for themselves; and when they have made their election, they claim the right of enjoy
THE ing it under the treaty. But until the election is made, VENUS, their former character continues unchanged.
RAE, MASTER. Until this election is made, if his property found
upon the high sas, engaged in the commerce of his adopted country, should be permitted, by the cruizers of the other belligerent, to pass free, under the notion that he may elect to remove, upon notice of the war, and should arrive safe, what is to be done in case the owner of it should afterwards elect to remain where he is ? or, if captured and brought immediately to adjudication, it must, upon this doctrine, be acquitted until the election to remain is made and known. In short, the point contended for would apply the doctrine of relation to cases where the party claiming the benefit of it may gain all, and can lose nothing. If he, after the capture, should find it bis interest to remain where he is domiciled, his property embarked before his election was made, is safe; and if he finds it best to return, it is safe of course. It is safe whether he goes or stays. This doctrine, producing such contradictory consequences, is not only unsupported by any authority, but it would violate principles long and well established in the prize Courts of England, and which ought not, without strong reasons which may render them inapplicable to this country, to be disregarded by this Court. The rule tiiere, is, that the character of property, during war, cannot be changed in transitu, by any act of the party, subsequent to the capture. The rule indeed goes farther : as to the correctness of which in its greatest extension, no opinion need now be given; but it may safely be affirmed that this change cannot and ought not to be effected by an election of the owner and shipper of it made subsequent to the capture, and, more especially, after a knowledge of the capture is obtained by the owner. Observe the consequences which would result from it. The capture is made and known. The owner is allowed to deliberate whether it is his interest to remain a subject of his adopted, or of his native country, If the capture be made by the former, then he elects to be a subject of that country; if by the latter, then a subject of that. Can such a privileged situation be tolerated by either belligerent? Can any system of law be correct, which places an individual who adheres to one belligerent, and, to the period of his election to re
move, contributes to encrease her wealth, in so anom-
It will be observed, that in the foregoing opinion respecting the nature and consequences of domicil, very few cases have been referred to. It was thought best not to interrupt the chain of argument, by stopping to examine cases; but faithfully to present the essential principles to be extracted from those which were cited at the bar, or wbich have otherwise come under the view of the Court, and which applied to the subject. With what success this has been executed, is not for me to "e ide. But there are two or three cases which stem to be so applicable, and at the same time so conclusive on the great points of this question, that it may not be improper briefly to notice them. In support of the general principles, that the national character of the owner at the time of capture, must decide lis right to claim, and that a subject is condemned by it, even in the Courts of his native country, without time being allowed to him to elect to remove, the following cases may be referred to. . In the Boedes Lust, 5 Rob. 247, it was decided that the property of a resident of Demarara, shipped before hostilities of any kind hail occurred between Holland and Great Britain, but which was captured under an embargo declared by England upon Dutch property, as preparatory to war which ensued soon after the seizure, was, by the retroactive effect of the war applied to property so seized, to be consider
ed as the property of an enemy taken in war.
In this VENUS, case, sir W. Scott lays it down, that, where property is RAE,
taken in a state of hostility, the universal practice has MASTER. ever been to hold it subject to condemnation, although
the Claimants may have become friends and subjects prior to the adjudication. This case is somewhat stronger than the present, in the circumstance that in that, the state of hostility, alleged to have existed at the time of capture was made out by considering the subsequent declaration of war as relating back to the time of seizure under the embargo, by which reference it was decided to be a hostile embargo, and of course, tantamount to an actual state of war. But this case also proves, not only that the liostile character of the property at the time of capture establisses the legality of it, but that no future circumstance changing the hostile character of the Claimant to that of a friend or subject, can entitle him to restitution. Whether the Claimant, in this case, was a neutral or a British subject, does not appear. But if the former, it will not, it is presumed, be contended that he is, upon the principles of national law, less to be favor. ed in the Courts of the beiligerent, than a subject of that nation domiciled in the country of the adverse belligeFent. Whitehill's case, however, referred to frequently in Rob. reports, comes fully up to the present, because he was a British subject, who had settled but a few days in the lostile country, but before he knew or could have known of the declaration of war; yet, as he went there with an intention to settle, this, connected with his residence, short as it was, fixed his national character, and identified him with the enemy of the country he had so recently quitted. The want of notice, and of an opportunity to extricate himself from a situation to which he had so recently and so innocently exposed himself, could not prevail to protect his property against the belligerent rights of his own country,and to save it from confiscation. There are many other strong cases upon these points, which I forbear to notice particularly, from an unwillingness to swell this opinion already too long.
The sentence of the Court is as follows:
This cause came on to be heard on the transcript of the record, and was argued by counsel; on consideration. whereof, it is decreed and ordered that the sentence of