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THE In the case of the Jonge Clarissa, Mr. Ravie had a liVENUS, cense to make certain importations as a British subject. RAE,
He had a house in Amsterdam, went there in person MASTER. quring the war, and made the shipment under his own
inspection and control.' It was determined that, in this transaction, he acted in his character as a Dutch merchant, and was not protected by his license. This was a trading during war.
In the case of the Citto, the property of Mr. Bowden, a British subject residing in Holland, was condemned. It appeared that he had settled in Amsterdam, where he had resided, carrying on trade, for six years. In 1795, when the French troops took possession of that country, he left it and settled in Guernsey. The Citto was a Danish vessel captured in April, 1796, on a voyage from a Spanish port to Guernsey, where Mr. Bowden then resided. In June, 1796, after the capture of the Citto, he returned to Holland. In argument, it was contended, that it appeared that British subjects miglit reside in Holland, without forfeiting their British character, from the proclamation of the 3d of September, 1796, which di. rects the landing of goods, imported under that order into the united provinces, to be certified by British merchants resident there.
The judge was desirous of knowing the nature of Mr. Bowden's residence in Holland-whether he had confined himself to the object of withdrawing his property, or had been engaged in the general traffic of the place. If the former, “lie may," said the judge, “ be intitled to “ restitution; more especially adverting to the order in « council, which is certainly so worded as not to be very "easy to be applied."
The cause stood for further proof.
It is plain that, in this opinion, the residence of the Claimant at the time of capture was not considered as conclusive. Had it been so, restitution must have been decreed, because Mr. Bowden was a British subject, and, at that time, resided in Guernsey. It is equally apparent, that, had his subsequent residence in the enemy country been for the sole purpose of withdrawing his property, the law was not understood to forbid restitution.
The language of sir William Scott certainly ascribes considerable influence to the proclamation, but does not "VENUS, rest the right of the Claimant altogether on that fact. RAE,
MASTER. On the 17th of March, 1800, an affidavit of Mr. Bowden, made the 6th of August, 1799, was produced, in which he stated his residence in Holland previous to the invasion by the French. That he quitted Holland and landed in Englanıl, the 20th of January, 1795, whence he proceeded to Guernsey, where he resided with his family. That, in the month of June, 1796, he was under the absolute necessity of returning to Holland, for the purpose of recovering debts due and effects belonging to the partnership, his partner remaining in Guernsey.
The affidavit then proceeded to state many instances of his attachment to his own government, and concluded with averring that he was still under the necessity of remaining in Holland, for the purpose of recovering part of the said debts and effects, which would be impossible were he to leave the country; but that it was his intention to return to his native country, so soon as his affairs would permit where his mother and his relations reside.
T'he Court observed that it appeared, from the affidavit, that Mr. Bowden was, at that time, in Holland ; and added, “it would be a strange act of injustice, if wbile " We are condeinning the goods of persons of all nations o resident in Hollanil, we were to restore the goods of "native British subjects resident there. An Englishman << residing and trading in Holland, is just as much a • Dutch merchant as a Swede or a Dane would be."
This case was decided in 1800. Mr. Bowden had returned to Holland in 1796, during the war, and had continued in the country of the enemy. It is not denied that he continued his trade, and the fact that he did con-. tinue it is fairly to be inferred, not only from his omitting to aver the contrary, but from the language of sir William Scott. "An Englishman residing and trading in Holland,” says that judge, “is just as much a Dutch 6 merchant as a Swede or a Dane would be.” The case of Mr. Bowden, then, is the case of a British subject who continued to reside and trade in the enemy country four years after the commencement of hostilities. His
THE property must have been condemned on one of two prin VENUS, ciples. Either the judge must have considered his resi
RAE, dence in Guernsey, from January, 1795 to June, 1796, as MASTER. a temporary interruption of his permanent residence in
Holland, and not as a change of domicil, since he returned to that country, and continued in it, as a trader, to the rendition of the final sentence; or he must have decided that, although Mr. Bowden remained and intended to remain in fact a British subject, yet the permanent national commercial character which he acquir. ed after this capture, retroacted on a trade which, at the time of capture was entirely British, and subjected the property to confiscation. On whichsoever of these principles the case was decided, it is clear that the hostile character attached to the property of Mr. Bowden in consequence of his residing and trading in the country of the enemy during the war. This case is, I think, materially variant from one in which the residence and trading took place during peace, and the capture was made before a change of residence could be conveniently effected.
The Diana is also a case, of considerable interest, which contains doctrines entitled to attentive consideration.
During the war between Great Britain and Holland, which commenced in 1795, the island of Demarara, surrendered to the British arms. By the treaty of Amiens, it was restored to the Dutch. That treaty contained an article allowing the inhabitants, of whatever country they might be, a term of three years, to be computed from the notification of the treaty, for the purpose of «isposing of their property acquired and possessed before or during the war, in which term they may have the full exercise of their religion and enjoyment of their property.
Previous to the declaration of war against Holland, in 1803, the Diana and several other vessels, loaded with colonial produce, were captured on a voyage from Demarara to Holland. Immediately after the declaration of war, and before the expiration of three years from the notification of the treaty of Amiens, Demarara again surrendered to Great Britain. Claims to the captured
property were filed by original British subjects, inhabi
THE tants of Demarara, some of whom had settled in the co VENUS, lony while it was in possession of Great Britain, others RAE, before that event. The trial came on after the island had MASTER. again become a British colony.
Sir William Scott decreed restitution to those British subjects who had settled in the colony while in British possession, but condemned the property of those who had settled there before that time. He held, that their settling in Demarara while belonging to Great Britain, afforded a presumption of their intending to return, if the island should be transferred to a foreign power; which presumption, recognized in the treaty, relieved those Claimants from the necessity of proving such intention. He thought it highly reasonable that they should be admitted to their jus postliminii, and be held entitled to the protection of British subjects.
But the property of those Claimants who had settled before it came to the possession of Great Britain, was condemned. “Having settled without any faith in British possession, it car:not be supposed,” he said, “ that 6 they would have relinquished their residence, because “ that possession had ceased. They had passed from “ one sovereignty to another with indifference; and if s they may be supposed to have looked again to a con6 nexion with this country, they must have viewed it as “a circumstance that was in no degree likely to affect « their intention of continuing there." 66 On the situa“tion of persons settled there previous to the time of “ British possession, I feel myself,” said the judge, s obliged to pronounce that they must be considered in “ the same light as persons resident in Amster!am. It “ must be understood, however, that if there were among “ these, any who have been actually removing, and that “ fact is properly ascertained, their goods may be capa6 ble of restitution. All that I mean to express is, that or there must be evidence of an intention to remove, on 6st he part of those who settled prior to British posses“sion, the presumption not being in their favor."
This having been a hostile seizure, though made before the declaration of war, the property is held equally VOL. VIII.
liable to condemnation as if captured the instant of that declaration.
So much of the case as relates to those Claimants who had settled during British possession, proves that other circumstances than an actual getting into motion for the purpose of returning to bis own country, may create a presumption of intending to return; and may put off that hostile commercial character which a British subject residing and trading in the country of an enemy, is admitted to acquire. The settlement having been made in a country which, at the time, was in possession of Great Britain, though held only by the right of conquest-a tenure known to be extremely precarious, and rarely to continue longer than the war in which the acquisition is made, is sufficient to create this presumption ; but the case does not declare negatively that no other circumstances would be sufficient,
I am aware that the part of the case which applies to Claimants who had settled previous to British possession, will, at first view, appear to have a strong bearing on the question before the Court. The shipment was in time of peace, and the seizure was made before the declaration of war. The trade was one in which a Britisli subject, in time of peace, might lawfully engage. However strong his intention might be to return to his native country in the event of war, he could not be expected to manifest that intention before the actual existence of war. The re-conquest of the island followed the declaration of war so speedily, as scarcely to leave time for putting in execution the resolution to return, had one been formed. Taking these circumstances into view, the condemnation would seem to he one of extreme severity. Yet even this case, admitting the decision to be perfectly correct, dues not, I think, when accurately examined, go so far as to jastify a condemnation under such circumstances as belong to some of the cases at bar.
The island having surrendered during war, such of its inbabitants as were originally British subjects were not allowed to derive, from this re-annexation to the dominions of Great Britain, the advantages to which a voluntary return to their own country, of the same