Page images
PDF
EPUB

THE

VENUS,

RAE,

the Circuit Court of Massachusetts condemning the one hundred casks of white lead claimed by Lenox and Maitland be, and the same is hereby affirmed with costs. And that the, sentence of the said Circuit Court as to the MASTER. claim of Magee and Jones to twenty-one trunks of merchandize be, and the same is hereby reversed and annulled; and that the said twenty-one trunks of merchandize be condemned to the captors; and that the sentence of the said Circuit Court as to the ship Venus claimed by Lenox and Maitland be and the same is hereby reversed; and that the said ship Venus be condemned, the one half thereof to the captors, the other half to the United States, under the order of the said Circuit Court. That the sentence of the said Circuit Court as to the claim of Wm. Maitland to one half of one hundred and fifty crates of earthen ware, thirty-five cases and three casks of copper, nine pieces of cotton bagging and twenty and four twentieths tons of coal, be and the same is hereby reversed, and that the same be condemned to the captors; and that the sentence of the said Circuit Court, as to the claim of Alexander M’Gregor to one half of one hundred and ninety-eight packages of merchandize as the joint property of himself and Lenox and Maitland, and of the claim of Wm. Maitland for one fourth of the same goods, and of the claim of Alexander M'Gregor to twenty-five pieces of cotton bagging and five trunks of merchandize, be, and the same is hereby reversed and annulled, and that the same he condemned to the captors; and that the said cause be remanded to the said Circuit Court for further proceedings to be had therein.

JOHNSON, J. declined giving an opinion.

STORY, J. I do not sit in this cause: but the great question involved in it, respecting the effect of domicil on national character, forms the leading point in many cases before the Court. Those cases have been ably and fully argued, and I haye listened, with great solicitude and attention, to the discussion. On so important a question, where a difference of opinion has been expressed on the bench, I do not feel at liberty to withdraw myself from the responsibility which the law imposes on me. The parties in the other cases have a right to my opinion; and, however painful it is, in the embarrassing

1

THE

VENUS,

RAE,

situation in which I stand, to declare it, I shall not shrink from what I deem a peremptory duty. The question is not new to me: It has been repeatedly before me in the MASTER. Circuit Court, and has been applied sometimes to relieve and sometimes to condemn the Claimant. I shall not pretend to go over the grounds of argument; but content myself with declaring my entire concurrence in the opinion expressed by Judge Washington on this point.

MARSHALL, Ch. J. I entirely concur in so much of the opinion delivered in this case, as attaches a hostile character to the property of an American citizen continuing, after the declaration of war, to reside and trade in the country of the enemy; and I subscribe implicitly to the reasoning urged in its support. But from so much of that opinion as subjects to confiscation the property of a citizen shipped before a knowledge of the war, and which disallows the defence founded on an intention to change his domicil and to return to the United States, manifested in a sufficient manner, and within a reasonable time after knowledge of the war, although it be subsequent to the capture, I feel myself compelled to dissent.

The question is undoubtedly complex and intricate. It is difficult to draw a line of discrimination which shall be at the same time precise and equitable. But the difficulty does not appear to me to be sufficient to deter Courts from making the attempt.

A merchant residing abroad for commercial purposes may certainly intend to continue in the foreign country so long as peace shall exist, provided his commercial objects shall detain him so long, but to leave it the instant war shall break out between that country and his own. This intention, it is not necessary to manifest during peace; and when war shall commence, the belligerent cruizer may find his property on the ocean, and may capture it, before he knows that war exists. The question whether this be enemy property or not, depends, in my judgment, not exclusively on the residence of the owner at the time, but on his residence taken in connexion with his national character as a citizen, and with his intention to continue or to discontinue his commercial domicil in the event of war.

THE

The evidence of this intention will rarely, if ever, be given during peace. It must, therefore, be furnished, if VENUS, at all, after the war shall be known to him; and that RAE, knowledge may be preceded by the capture of his goods. MASTER. It appears to me, then, to be a case in which, as in many others, justice requires that subsequent testimony shall be received to prove a pre-existing fact. Measures taken for removal immediately after a war, may prove a previous intention to remove in the event of war, and may prove that the captured property, although, prima facie, belonging to an enemy, does, in fact, belong to a friend. In such case, the citizen, in my opinion, has a right, in the nature of the jus postliminii, to claim restitution.

As this question is not only decisive of many claims now depending before this Court, but is also of vast importance to our merchants generally, I may be excused for stating, at some length, the reasons on which my opinion is founded.

[ocr errors]

The whole system of decisions applicable to this subject, rests on the law of nations as its base. It is, therefore, of some importance to enquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character, or partaking of the character of the nation in which they reside.

Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says, "the citizens are "the members of the civil society; bound to this socie❝ty by certain duties, and subject to its authority, they "equally participate in its advantages. The natives, or "indigenes, are those born in the country, of parents "who are citizens. Society not being able to subsist "and to perpetuate itself but by the children of the citi "zens, those children naturally follow the condition of "their fathers, and succeed to all their rights."

"The inhabitants, as distinguished from citizens, are "strangers who are permitted to settle and stay in the "country. Bound by their residence to the society, they "are subject to the laws of the state, while they reside "there, and they are obliged to defend it, because it grants VOL. VIII.

37

THE

VENUS,
RAE,

"them protection, though they do not participate in all "the rights of citizens. They enjoy only the advan"tages which the laws, or custom gives them. The perMASTER. " petual inhabitants are those who have received the right "of perpetual residence. These are a kind of citizens "of an inferior order, and are united and subject to the "society, without participating in all its advantages."

"The domicil is the habitation fixed in any place, "with an intention of always staying there. A man "does not, then, establish his domicil in any place, un"less he makes sufficiently known his intention of fixing "there, either tacitly or by an express declaration. "However, this declaration is no reason why, if he af"terwards changes his mind, he may not remove his "domicil elsewhere. In this sense, he who stops, even "for a long time, in a place, for the management of his "affairs, has only a simple habitation there, but has no ❝ domicil."

A domicil, then, in the sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but "an intention of always staying there." Actual residence without this intention, amounts to no more than "simple habitation."

Although this intention may be implied without being expressed, it ought not, I think, to be implied, to the injury of the individual, from acts entirely equivocal. If the stranger has not the power of making his residence perpetual, if circumstances, after his arrival in a country, so change, as to make his continuance there disadvantageous to himself, and his power to continue, doubtful; "an intention always to stay there" ought not, I think, to be fixed upon him, in consequence of an unexplained residence previous to that change of circumstances. Mere residence, under particular circumstances, would seem to me, at most, to prove only an intention to remain so long as those circumstances continue the same, or equally advantageous. This does not give a domicil. The intention which gives a domicil is an unconditional intention to stay always."

The right of the citizens or subjects of one country to remain in another, depends on the will of the sovereign

THE

of that other; and if that will be not expressed otherwise than by that general hospitality which receives and VENUS, affords security to strangers, it is supposed to terminate RAE, with the relations of peace between the two countries. MASTER, When war breaks out, the subjects of one belligerent in the country of the other are considered as enemies, and have no right to remain there.

Vattel says, " enemies continue such wherever they "happen to be. The place of abode is of no account "here. It is the political ties which determine the qual"ity. While a man remains a citizen of his own coun"try, he remains the enemy of all those with whom his "nation is at war."

It would seem to me, to require very strong evidence of an intention to become the permanent inhabitant of a foreign country, to justify a court in presuming such intention to continue, when that residence must expose the person to the inconvenience of being considered and treated as an enemy. The intention to be inferred solely from the fact of residence during peace, for commercial purposes, is, in my judgment, necessarily conditional, and dependent on the continuance of the relations of peace between the two countries.

So far is the law of nations from considering residence in a foreign country in time of peace, as evidence of an intention "always to stay there," even in time of war, that the very contrary is expressed. Vattel says, "the "sovereign declaring war can neither detain those sub"jects of the enemy who are within his dominions at the "time of the declaration, nor their effects. They came "into his country on the public faith. By permitting "them to enter his territory and to continue there, he "tacitly promised them liberty and security for their "return. He is therefore to allow them a reasonable "time for withdrawing with their effects; and if they "stay beyond the time prescribed, he has a right to treat ❝them as enemies, though as enemies disarmed."

The stranger merely residing in a country during peace, however long his stay, and whatever his employment, provided it be such as strangers may engage in, cannot, on the principles of national law, be considered

« EelmineJätka »