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same light as a native citizen, and that his property is THE
THE If the war had been sudden, humanity might plead in FRANCES, behalf of the Claimant. But in this case, there was no (G LLES- surprize. War had been threatening for a long time
IE's previous to its actual declaration. No indulgence, CLAIM,) therefore, on this ground, can be claimed. BOYER, MASTER,
The counsel for the Claimant has cited lord Coke in support of his doctrine of naturalization, but does not seem to have considered that, according to that author, a British subject can never become a citizen of any other country.
The case of Marryat v. Wilson has also been cited. That case is perhaps entitled to some consideration ; but even there, the Court had, at first, decided against Col: let, and it was only upon the request of the American minister (Mr. King) that they consented to re-consider the case, when they finally decided in his favor.
2. If Gillespie was politically an enemy, at the time of the capture, the doctrine of commercial domicil is wholly immaterial in the present case. But as the Court may not view the subject in the same light as we do, a few remarks on the latter point may not be unnecessary.
We lay it down then, as an indisputed position, that the character of captured goods is decided by the commercial domicil of the owner at the time of capture. And we contend that Gillespie had a commercial domicil in Great Britain, at the time of the capture of the goods in question. It does not appear that he had, in any manner, put himself in motion in itinere, to return before the capture. All the evidence showing his intention to return, arose after that event. A hostile character, therefore, attached to the property, if not to the owner.
This is not a case of withdrawing funds : it is a case of trade originating before the war, and continued after the war. Besides, the rule of withdrawal applies only to cases where the domicil of the party is not in the enemy country, though his trade is carried on and his property situated there. See Coopman's case, cited in the Vigilantia, 1 Rob. 12, 14. Escott's case, cited in the
Hoop, 1 Rob. 170, 201.
The Madonna delle Gracie, 4 Rob. THE 161, 195.
(GILLESIt has been said, that at the time of the shipment of PIE's the goods in question, the war was not known in En- CLAIM,) gland, and that it would be a case of great hardship, BOYER, under such circumstances, to subject this property to MASTER. condemnation. But want of nutice, in cases like this, is an excuse not known to the law of nati: ns. See Whitehill's case: (referred to in the case of the Hoop, 1 Rob. 170, 201)-Whitebil was a British subject-had been at St. Eustatius only two days and bad no knowledge of the war-yet his property was condemned.
As to the fact, that public treaties frequently allow a particular time for the respective subjects of both parties to withdraw in case of war, it may be observed, that this is only providing against the exercise of a right which the contracting parties would otherwise bave lad. But these mutual concessions do not alter the nature or effect of the domicil.
At all events, Gillespie ought to have put himself in motion to return to the United States, immediately upon knowledge of the war. This he does not appear to have done : and, acccording to sir W. Scott, nothing but the actual force of the government is a sufficient excuse for the neglect. But no such excuse has been offered.
On either of the grounds, therefore, which have been taken in this argument, we conceive that the property in controversy must be condemned.
HARPER, in reply.
It is the nature of the trade, not the place of residence, which determines the hostile or neutral character of the trader.
We must still insist, that a naturalized citizen of the United States is a citizen to every intent, the right to be president of the United States only excepted, which exception but proves the general rule.
It is said, on the part of the captors, that a natu. VOL. VIII.
ralized American citizen ceases to be such, when he FRANCES, returns to his native country. Suppose, then, while (GILLES- absent in his native country, a descent should be cast
PIE'S upon him in this would he be considered by our Courts CLAIM,) as an alien, so as to deprive him of the estate so cast BOYER, upon him? Again, suppose, in case of war between the MASTER. two countries, he should enlist himself under the ban.
ners of our enemy, and be found in arms against us, should we not consider him as a traitor, and treat him accordingly? If he choses to take such double responsibilities upon himself, it is his business to reconcile them: we can only consider him as an American citizen,
We might admit, perhaps, that by a return to his native country in time of war, he must be considered as having abandoned his rights as a citizen of the United States, in relation to trade : still, however, he could not throw off his duties. But Gillespie returned in time of peace. He therefore did not assume new duties incompatible with those he owed to this country. He assumed only that temporary allegiance to the government of Great Britain, which every other stranger in that country owed. Upon the breaking out of the war, perhaps new duties might arise inconsistent with his duties as an Ameriran citizen. Yet, in that case, a reasonable time ought to be allowed him to remove; and if he made every reasonable exertion to return to the United States, and especially if he did actually return in less than a year after being informed of the existence of the war, which is the fact, he must be considered as having retained his American character.
The domicil of the owner at the time of capture, is not the criterion whereby to determine the character of the property captured, in all cases. If it be so generally, this case ought to be an exception. Gillespie was lawfully in England at the breaking out of the war: he cannot be presumed to have known that war would take place; it is impossible that he should have known it; such a presumption is unreasonable. Whitehill's case has been cited on the other side; but the counsel for the captors is mistaken as to the facts of that case. Whitehill knew of the war, and that St. Eustatius was hostile, at the time he went there, which essentially distinguishes it from the case now before the Court.
PINKNEY, referred to the history of the times, to show that Whitehill liad no knowledge of the war when he FRANCES, went to St. Eustatius.
PIE's HARPER. If Whitehill did not know that war had CLAIM,) actually been declared, he knew that measures had been BOYER, taken which may be considered as equivalent to a de- Master. claration. The capture took place in February. He knew that letters of marque had been issued in Decem, ber preceding, and that a long irritation had existed between the two governments. He knew, also, that . the trade in which he was engaged, was a trade frowned upon by his own government. In the present case, the circumstances were entirely different. 5 Rob. 220, 247.
Saturday, March 12th. Absent....LIVINGSTON, J.
MARSHALL, Ch. J. delivered the opinion of the Court as follows:
Colin Gillespie, a naturalized American citizen residing in Glasgow, claimed sundry goods, shipped on his own account, as his property. This claim depends entirely on his national character, and is decided in the case of the Venus.
The sentence of the Circuit Court, condemning the property of the Claimant, is aflirmed.
VOWLES AND OTHERS V. CRAIG AND OTHERS.
Absent....MARSHALL, Ch. J.
who has ob tained a sur
THIS case, as stated by Todd, J. in delivering the If a person, opinion of the Court was as follows:
vey upon a mi This suit was instituted on the chancery side of the litary land Circuit Court of the United States for the Kentucky dis- the commontrict, by the Complainants, now Appellants as the heirs wealth of Virs