« EelmineJätka »
If such a person were required, on his arrival in a
THE foreign country, to declare his real intentions on the VENUS, subjict of residence, he would, most probably, say, if RAE, he spoke honestly, “ I come for the purpose of trade : MASTER. I shall remain while the situation of the two countries permits me to carry on my trade lawfully, securely, and advantageously: when that situation so changes as to deprive me of these rights, I shall return.” His intention, then, to reside in the country, bis domicil in its and, consequently, his commercial character, unless he continued his trade after war, would be clearly limited by the duration of peace. It would not, I think, be un. reasonable to say that the intention, to be implied from his conduct, ought to have the same limitation.
To me it seems that a mere commercial domicil acquired in time of peace, necessarily expires at the commencement of hostilites. Domicil supposes rights incompatible with a state of war. If the foreign merchant be not com: pelled to abandon the country, it is not because his commercial character confers on him a legal right to stay, but because he is specially permitted to stay. If in this I am correct, it would seem to follow, that, if all the legal consequences of a residence in time of peace do not absolutely terminate with the peace, yet the national commercial character which that residence has attached to the individual, is not so conclusively fixed upon him as to disqualify him from showing that, within a reasonable time after the commencement of hostilities, he made arrangements for returning to his own country. If a residence and trading after the war be not indispensably necessary to give the citizen merchant or his property a hostile character, yet removal, or measures showing a determination to remove, within a reasonable time after the war, may retroact upon property shipped before a knowledge of the war, and rescue that property from the hostile character attached to the property of the nation in which the individual resided.
The law of nations is a law founded on the great and immutable principles of equity and natural justic“. To draw an inference against all probability, whereby a citizen, for the purpose of confiscating his gods, is clothed, against his inclination, with the character of an enemy, in consequence of an act which, when comVOL. VIII.
mitted, was innocent in itself, was entirely compatible VENUS,
with his political character as a citizen, and with the RAE,
political views of his government, would seem to me to MASTER. sabvert those principles. The rule which, for obvi
ous reasons, applies to the merchant in time of peace or in time of war, the national commercial character of the country in which he resides, cannot, in my opinion, without subverting those principles, apply a hostile character to his trade carried on during peace, so conclusively as to prevent his protecting it by changing that character within a reasonable time after a knowledge of the war.
My opinion, then, is, that a mere commercial domicil acquired by an American citizen in time of peace, especially if he be a member of an American house, and is carrying on trade auxiliary to his trade with his own country, ought not to be considered positively as continuing longer than the state of peace. The declaration of war is a fact which removes the causes that induced his residence in the foreign country. They no longer operate upon him. When they cease, their ef. fects ought to cease. An intention which they produced, ought not to be supposed to continue. The character of his property shipped before a knowledge of the war, onght not to be decided absolutely by his residence at the time of shipment or capture, but ought to depend on his continuing to reside and trade in the enemy country, or on his taking prompt measures for returning to his own.
This is the conclusion to which my mind would certainly be conducted, might I permit it to be guided by the lights of reason and the principles of natural justice. But it is said that a course of adjudications has settled the law to be otherwise that we cannot, without overturning a magnificient system bottomed on the broad base of national law, and of which the facts are admirably adjusted to each other, yield to the dictates of humanity on this particular question. Sir William Scott, it is argued at the bar, has, by a series of decisions, developed the principles of national law on this subject, with a perspicuity and precision which mark plainly the path we ought to tread.
I respect sir William Scott, as I do every truely great man; and I respect his decision; nor should I depart VENUS, from them on light grounds : but it is impossible to
RAE, consider them attentively, without perceiving that his MASTER. mind leans strongly in favor of the captors. Resi. dence, for example, in a belligerent country, will conden the share of a neutral in a house, trading in a neutral country; but residence in a neutral country will not protect the share of a belligerent or neutral in a commercial house established in a belligerent country. In a great maritime country, depending on its navy for its glory and its safety, the national bias is perhaps so entirely in this direction, that the judge, without being conscious of the fact, must feel its influence. However this may be, it is a fact of which I am fully convinced ; and, on this account, it appears to me to be the more proper to investigate rigidly the principles on which bis decisions have been made, and not to extend them where such extension may produce injustice.
While I make this observation, it would betray a want of candor not to accompany it with the acknowledgement that I perceive in the opinions of this eminent judge, no disposition to press this principle with peculiar severity against neutrals. He has certainly not mitigated it when applying it to British subjects.
With this impression respecting the general character of British admiralty decisions, I proceed to examine them so far as they bear on the question of domicil.
The case of the Vigilantia does not itself involve the point. But in delivering his opinion, the judge cited two cases of capture which have been quoted and relied on at bar. In each of these, the share of the partner residing in the neutral country, was restored, and that of the partner residing in the belligerent country was condemned. But these derisions applied to a trade continued to be carried on during war.
· In a subsequent case, the share of the partner residing in the neutral country also' was condemned ; and the lords commissioners said that the principle on which restitution was decreed in each of the first mentioned cases, was, “that they were merely at the commence.
ment of a war.” They said that “ a person carrying VENUS,
“ on trade habitually in the country of the enemy, RAE,
“ though not resident there, should have time to withMASTER. “ draw himself from that commerce ; that it would press
6 too heavily on neutrals to say that, immediately, on “ the first breaking out of a war, their goods would be“ come subject to confiscation."
On these cases it is to be observed, that, although the two first happened at the commencement of the war, yet they happened during a war; and the partners whose interest was condemned, do not appear to have discontinued their residence and trading in the country of the enemy, after war had taken place. The declaration “ that it would press too heavily on neutrals to say that, immediately on the first breaking out of a war, their goods would become subject to confiscation," though applied to a neutral not residing in the belligerent country, clearly discriminates, in a case of capture, between the rights of parties at the commencement of a war, and at a subsequent period. But it is sufficient to say that neither the case itself, nor the cases and opinions cited in it, apply directly to the question before this Court.
In the case of the Harmony, the property of Mr. Murray, an American citizen residing in France, was condemned on account of that residence. But Mr. Murray had removed to France, during the war, and had continued there for four years.
The scope of the argument of sir William Scott goes to show that the single circumstance of residence in the enemy country, if not intended to be permanent, will not give the enemy character to the property of such resident captured in a trade between his own country and that of the enemy It is material that the conduct of Mr. Murray, subsequent to the capture, had great influence in determining the fate of his property. Had he returned to the United States immediately after that event, I do not hazard much in saying that restitution would have been decreed.
In the case of the Indian Chief, Mr. Johnson, an American citizen domiciliated in England, had engaged
in a merchantile enterprize to the British East Indies a trade allowed to an American citizen, but prohibited VENUS, to a British subject. On its return, the vessel came RAE, into Cowes, and was seized for being concerned in illi. MASTER. cit trade. Mr. Johnson had then left England for the United States. He was considered as not being a British subject at the time of capture, and restitution was decreed.
In delivering his opinion in this case, sir William Scott said, “ Taking it to be clear that the national character of Mr. Johnson, as a British merchant, was founded in residence only, that it was acquired by residence, and rested on that circumstance alone, it must be held, that, from the moment he turns his back on the country where he has resided, on his way to his own country, he was in the act of resuming his original character, and is to be considered as an American. Tho character that is gained by residence, ceases by non'residence. It is an adventitious character that no longer adheres to him from the moment that he puts himself in motion, bona fide, to quit the country sine animo revertendi.”
This case undoubtedly proves, affirmatively, that the national character gained by residence ceases with that residence; but I cannot admit it to prove, negatively, that this national character can be laid down by no other
I cannot, for instance, admit that an Ameri. can citizen, who had gained a domicil in England during peace, and was desirous of returning home on the breaking out of war, but was detained by force, could, under the authority of this opinion, be treated as a Bri. tish trader, with respect to his property embarked before a knowledge of the war.
In the case of La Virginie, the property of a Mr. Lapierre, who was probably naturalized in the United States, but who had returned to St. Domingo, and had shipped the produce of that island to France, was condemned. But ke was considered as a Frenchman, was residing at the time in a French colony, and was engaged in a trade between that colony and the mother country. The case, the judge observed, might have been otherwise decided, had the shipment been made to the U. States.