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the 27th of April, 1781, Mr. Curtissos returned to Eng. VENUS, land : and, on an appeal, the sentence of condemnation
RAE, was reversed by the lords of appeals, and restitution MASTER. decreed.
Other claims of Mr. Curtissos were brought before the Court of admiralty; and, on a full disclosure of these circumstances, restitution was decreed, before the decree of the lords in the case of the Snelle Zeylder was pronounced.
The principle of this decree is said to be, that Mr. Curtissos was in itinere, and had put himself in motion, and was in pursuit of his original British character.
I do not mean to find fault with this decision ; but certainly it presents some strong points more unfavorable to the Claimant than will be found in some of the cases now before this Court. Mr. Curtissos had obtained a commercial domicil in the country of the enemy. At the time of the sailing, capture and condemnation of the Snelle Zeylder, he still resided in the country of the enemy. But it is said he was in itinere ; he was in motion in pursuit of his original British character, What was this journey he is said to have been performing in pursuit of his original character ? He had passed from one part of the dominions of the united provinces to another. He had moved his residence from St. Eustatius to Holland, where he remained from the year 1776 till 1781-a time of sufficient duration for the acquisition of a domicil, had he not previously acquired it. This change of residence, to make the most of it, is an act too equivocal in itself to afford a strong presumption that it was made for the purpose of returning to England. Had his stay in Holland even been short, a colonial merchant trading to the mother country, may so frequently be carried there on the business of his trade, that the fact can afford but weak evidence of an intention to discontinue that trade : but an interval of between four and five years elapsed between his arrival in Holland and his departure from that country, during which time he is not stated to have suspended his commercial pursuits, or to have made any arrangements, such as transferring his property to England, or making an establishment there, which might indi
cate, by overt-acts, the intention of returning to his native country. This journey to Holland, connected with VENUS, this long residence, would seem to me to be made as a RAE, Dutch merchant for the purpose of establishing himself MASTER. there, rather than a preparatory to his return to England. But it was said that he intended to return to England. How was this intention shown ? If not by his journey to Holland and his long residence there, it was only shown by his being employed in the settlement of his accounts while a merchant at St. Eustatius, a business in which he would of course engage, whatever his future objects might be. This equivocal act does not appear to have been explained, otherwise than by his own declarations ; nor does it appear that these declarations were made previous to the capture.
But could I even admit that the journey from St. Eustatius to Holland was made with a view of passing ultimately from Holland to England, yet the intention was not to be immediately executed. The time of carrying it into effect, was remote and uncertain ; subject to so many casualties that, had not the war supervened, it might never have been carried into effect.
But laying aside these circumstances, the case proves only that being in itinere, in pursuit of the native character, divests the enemy character acquired by residence and trading; it is not insinuated that this character can be divested by no other means.
Mr. Whitehills case, though one of great severity, does not, I think, overturn the principle I am endeavoring to sustain. He went to St. Eustatius but a few days before admiral Rodney and the British forces made their appearance before that place. But it was proved that he went for the purpose of making a permanent settlement there. No intention to return appears to have been alleged. The recency of his establishment seems to have been the point on which his claim rested.
This case, in principle, bears on that before the Court, so far only as it proves that war does not, under all circumstances, necessarily furnish a presumption, that the foreigner residing in the enemy country, intends to return to his own. The circumstances of this VOL. VIII.
TAE case, so far as we understand them, were opposed to VENUS, the presumption that war could affect Mr. Whitehills
RAE, residence. War actually existed at the time of his reMASTER. moval; and had that fact been known to him, there
would have been no hardship in his case. He would have voluntarily taken upon himself the enemy character at the same time that he took upon himself the Dutch character. There is reason to believe that the Court considered him in equal fault with a person removing to a country known to be hostile. St. Eustatius was deeply engaged in the American trade, which, from the character of the contest, was, at that time, considered by England as cause of war, and was the fact which drew on that island the vengeance of Britain. Mr. Whitehill could have fixed himself there only for the purpose of prosecuting that trade.
6. He went, says sir William Scott, “ to a place which had rendered itself particularly obnoxious by its conduct in that war.' This was certainly a circumstance which could not be disregarded, in deciding on the probability of his intending to remain in the country in the event of
These are the cases which appear to me to apply most strongly to the question before this Court. No one of them decides, in terms, that the property of a British subject residing abroad in time of amity, which was shipped before a knowledge of war, and captured by a British cruizer, shall depend, conclusively, on the residence of the Claimant at the time of capture, or on bis having, at that time, put himself in motion to change his residence. In no case which I have had an opportunity of inspecting, have I seen a dictum to this effect. The cases certainly require an intention, on the part of the subject residing and trading abroad, to return to his own country, and that this intention should be manifested by ovért-acts; but they do not, according to my understand ing of them, prescribe any particular overt act, as being exclusively admissible ; nor do they render it indispensable that the overt act should, in all cases, procede the capture. If a British subject residing abroad for commercial purposes, takes decided measures, on the breaking out of war, for returning to his native country, and especially if he should actually return, his claim for the restitution of property shipped before his knowledge of
the war, would, I think, be favorably received in a Bri THE tish Court of admiralty, although his actual return, or VENUS, the measures proving his intention to return, were sub RAE, sequent to the capture. Thus understanding the English MÀSTER. authorities, I do not consider them as opposing the principle I have laid down.
An American citizen having merely a commercial domicil in a foreign country, is not, I think, under the British authorities, concluded, by his residence and trading in time of peace, from averring and proving an intention to change his domicil on the breaking out of war, or from availing himself of that proof in a Court of admiralty. The intrinsic evidence arising from the change in his situation, produced by war, renders it extremely probable that in this new state of things he must intend to return home, and will aid in the construction of any overt-act by which such intention is manifested. Dissolution of partnership, discontinuance of trade in the enemy country, a settlement of accounts, and other arrangements obviously preparatory to a change of residence, are, in my opinion, such overt-acts as may, under circumstances showing them to be made in good faith, entitle the Claimant to restitution.
I do not perceive the mischief or inconvenience that can result from the establishment of this principle. Its operation is confined to property shipped before a knowledge of the war. For if shipped afterwards, it is clearly liable to condemnation, unless it be protected by the principle that it is merely a withdrawing of funds. Being confined to shipments made before a knowledge of the war, the evidence of an intention to change or continue a residence in the country of the enemy, must be speedily given. A continuance of trade after the war, unless, perlaps, under very special circumstances, and for the mere purpose of closing transactions already commenced, would fix the national character and the domicil previously acquired. An immediate discontinuance of trade, and arrangements for removing, followed by actual removal within a reasonable time, unless detained by causes which might sufficiently account for not removing, would fix the intention to change the domicil, and show that the intention to return had never been abandoned ; that the intention to remain always had never
THE been formed. It is a case in which, if in any that can VENUS, be imagined, justice requires that the citizen, having
RAE, entirely recovered his national character by his own act, MASTER. and by an act which shows that he never intended to
part with it finally,should, by a speciesof the jus postlimi. nii, be allowed to aver the existence of that character at the instant of capture. In the establishment of such a principle, I repeat, I can perceive no danger. In its rejection, I think I perceive much injustice. An individual whose residence abroad is certainly innocent and lawful, perhaps advantageous to his country, who never intended that residence to be permanent, or to continue in time of war, finds himself, against his will, clothed with the character of an enemy, 50 conclusively that not even a return to his native country can rescue from that character and from confiscation, property shipped in the time of real or supposed peace. My sense of justice revolts from such a principle.
In applying this opinion to the Claimants before the Court, I should be regulated by their conduct after a knowledge of the war. If they continued their residence and trade after that knowledge, at any rate after knowing that the repeal of the orders in council was not imincdiately followed by peace, their claim to restitution would be clearly unsustainable. If they took immediate measures for returning to this country, and have since actually returned, or have assigned sufficient reasons for not returning, their property I think may be capable of restitution. Some of the Claimants would come within one description, some within the other. It would, under the opinion given by the Court, be equally tedious and useless to go through their cases.
My reasoning has been applied entirely to the case of native Americans. This course has been pursued for two reasons. It presents the argument in what I think its true light; and the sentence of condemnation makes no discrimination between native and other citizens.
The Claimants are natives of that country with which we are at war, who have been naturalized in the United States. It is impossible to deny that many of the strongest arguments urged to prove the probability that war must determine the pative American citizen to abandon