date, would have entitled them. They were considered as if they had been "residents of Amsterdam." THE VENUS, RAE, But sir William Scott observes, that "if there are MASTER. "among these any who have been actually removing, "and that fact is properly ascertained, their goods may "be capable of restitution." "Actually removing"when? Not, surely, before the seizure; for that was made in time of peace. Not before the declaration of war, when the original seizure was converted into a belligerent capture; for until that declaration was known, a person whose intention to remain or return was dependant on peace or war, would not be actually removing." On every principle of equity, then, the time to which these expressions refer, must be the surrender of Demarara, or a reasonable time after the declaration of war was known there. The one period or the other would be subsequent to that event which was deemed equivalent to capture. It is not unworthy of remark, that sir William Scott adds explanatory words which qualify and control the words actually removing," and show the sense in which he used them. "All," says the judge, that I "mean to express is, that there must be evidence of an "intention to remove, on the part of those who settled "prior to British possession, the presumption not being in their favor. It would, then, I think, be rejecting a part, and a material part, of the opinion, to say that an intention to remove clearly proved, though not accompanied by the fact of removal, would have been deemed insufficient to support the claim for restitution. Were there no other circumstances of real importance in this case-did it rest solely on the sentiments expressed by the judge, unconnected with those circumstances, I should certainly consider it as leaving open to the Claimants before this Court, the right of proving an intention to return within a reasonable time after the declaration of war, by other overt-acts than an actual removal. But there are other circumstances which I cannot THE deem immaterial; and, as the opinions of a judge are VÉNUS, always to be taken with reference to the particular RAE, case in which they are delivered, I must consider these MASTER. expressions in connexion with the whole case. The probability is, that the Claimants were not mereTy British merchants. Though the fact is not expressly stated, there is some reason to believe that they had become proprietors of the soil, and were completely incorporated with the Dutch colonists. They are not denominated merchants. They are spoken of, through the case, not as residents, but as settlers. "They had "passed," said sir William Scott, "from one sove"reignty to another with indifference." This mode of expression appears to me to indicate a more permanent interest in the country-a more intimate connexion with it than is acquired by a merchant removing to à foreign country, and residing there in time of peace, for the sole purpose of trade. And in another of the same class of cases, it is said that, previous to the last war, the principal plantations of the island were in possession of British planters from the other British islands. The voyage, too, in making which the Diana was captured, was a direct voyage between the colony and the mother country. The trade was completely Dutch; and the property of any neutral, wherever residing, if captured in such a voyage, during war, would be condemned. But it is still more material that those who settled in Demarara before British possession, must have settled daring the war which was terminated by the treaty of Amiens; or, if they settled in time of peace, must have continued there while the colony was Dutch, and while Holland was at war with Great Britain. Which ever the fact might be, whether they had settled in an enemy country during war, or had continued, through the war, a settlement made in time of peace, they had demonstrated that war made no change in their residence. In their case, then, it might be correctly said, "that war "created no presumption of an intention to return”. that they passed from one sovereignty to another with indifference." THE VENUS, I cannot consider claims under these circumstances, as being in the same equity with claims made by persons who had removed into a foreign country, in time RAE, of peace, for the sole purpose of trade, and whose trade MASTER. would be annihilated by war. The case of the Boedes Lust differs from the Diana only in this: the Claimants are not alleged to have been originally British subjects. Restitution was asked, because the property did not belong to an enemy at the time of shipment, nor at the time of seizure, nor at the time of adjudication. These grounds were all declared to be insufficient. The original seizure was provisionally hostile; and the declaration of war consummated the right to condemn, and vested the property in the crown, as enemy property. The subsequent charge in the character of the Claimants, who became British subjects by the surrender of Demarara, could not divest it. "Where property is taken in a state of hostility," said sir William Scott, "the universal practice has ever "been to hold it subject to condemnation, although the "Claimants may have become friends and subjects pri"or or to adjudication." "With as little effect," he added, can it be contended that a postliminium can be at"tributed to these parties. Here is no return to the "original character, on which only a jus postliminii can "be raised. The original character at the time of "seizure, and immediately prior to the hostility which has intervened, was Dutch. The present character, which the events of war have produced, is that of British subjects; and, although the British subject "might, under circumstances, acquire the jus postlimi nii, upon the resumption of his native character, it "never can be considered that the same privilege ac"crues upon the acquisition of a character totally new "and foreign." This opinion is certainly not decisive; but it appears to me rather to favor than oppose the idea, that a 'merchant residing abroad, and taking measures to return on the breaking out of war, may entitle himself to the jus postliminii, with respect to property shipped before a knowledge of the war. The President was captured on a voyage from the RAE, THE Cape of Good Hope to Europe. Mr. Elmslie, the VENUS, Claimant, was born a British subject, but claimed as a citizen of the United States. He had removed to the MASTER. Cape of Good Hope, during the preceding war, and still resided there. The property was condemned. In delivering his opinion, sir William Scott observed, “It "is said the Claimant is intitled to the benefit of an in"tention of removing to Philadelphia, in a few months. "A mere intention to remove, has never been held suf"ficient without some overt-act, being merely an inten"tion residing secretly and undistinguishably in the "breast of the party, and liable to be revoked every hour. The expressions of the letter in which this in"tention is said to be found, are, I observe, very weak “and general, of an intention merely in futuro. Were "they even much sronger than they are, they would "not be sufficient. Something more than mere verbal "declaration, some solid fact showing that the party is in the act of withdrawing, has always been held ne"cessary in such cases." It is to be held in mind, that this opinion is delivered in the case of a person who had fixed his residence in an enemy country, during war, and that he claimed to be the subject of a neutral state. For both these reasons, the war afforded no presumption of his intending to return either to his native or adopted country. To the vague expression of an intention to return at some future indefinite time, no influence can be ascribed. When the judge says that "something more than mere “ verbal declaration, some solid fact showing that the "party is in the act of withdrawing, has always been "held necessary in such cases," I do not understand him to say that the person must have put himself in personal motion to return, must have commenced his voyage homeward, in order to be considered as in "the act of withdrawing." Many other overt-acts, as selling a commercial establishment, stopping business, making preparations to return, accompanied by declarations of the intent, and not opposed by other circumstances, may, in my opinion, be considered as acts of withdrawing. In the case of the Ocean, sir William Scott said "This “ claim relates to the situation of British subjects set THE VENUS, RAE, "tled in a foreign state, in time of amity, and taking "early measures to withdraw themselves, on the "breaking out of war. The affidavit of claim states "that this gentleman had been settled as a partner in MASter. "a house of trade in Holland, but that he had made ar❝rangements for the dissolution of the partnership, and "was only prevented from removing personally, by the "violent detention of all British subjects who happened "to be within the territories of the enemy, at the break"ing out of the war. It would, I think, under these "circumstances, be going further than the principle ❝of law requires, to conclude this person by his former "occupation, and by his present constrained residence ❝ in France, so as not to admit him to have taken him"self out of the effect of supervening hostilities, by the "means which he had used for his removal.” If other means for removal were taken, than arrangements for the dissolution of the partnership, they are not stated; and it is fairly to be presumed, that these arrangements were the most permanent of them, since that fact is alone selected and particularly relied upon. In his statement of the case, the reporter says that the Claimant had actually made his escape and returned to England, in July, 1803; (the trial was in January, 1804) but this must be a mistake, or is a fact not adverted to by the judge, since he says, in his opinion, that the Claimant is, at the time," a constrained resident of France." I shall notice two other cases which are frequently cited, though I have seen no full report of either of them. The first is the case of Mr. Curtissos. This gentleman, who was a British subject, had gone to Surinam in 1766, and from thence to St. Eustatius, where he remained till 1776. He then went to Holland to settle his accounts, and with an intention, "as was said," of returning afterwards to England to take up his final residence. In December, 1780, orders of reprisal were issued by England against Holland. On the first of January, 1781, the Snelle Zeylder was captured, and, on the 5th of March and 10th of April, 1781, the vessel and cargo were condemned as Dutch property. On |