case from the general principle by giving it the protection of the treaty of Amiens. In pronouncing his judgment, Sir William Scott laid down the general rule thus: "Certainly nothing can be more decided and fixed, as the principle of this court, and of the Supreme Court, upon very solemn argument there, than that the possession of the soil does impress upon the owner the character of the country, so far as the produce of that plantation is concerned, in its transportation to any other country, whatever the local residence of the owner may be. This has been so repeatedly decided, both in this and the Superior Court, that it is no longer open to discussion. No question can be made upon the point of law at this day." 1 Afterwards, in the case of Vrow Anna Catharina, Sir William Scott laid down the rule, and stated its reason. "It cannot be doubted," said he, "that there are transactions so radically, and fundamentally national as to impress the national character, independent of peace or war, and the local residence of the parties. The produce of a person's own plantation in the colony of the enemy, though shipped in time of peace, is liable to be considered as the property of the enemy, by reason that the proprietor has incorporated himself with the permanent interests of the nation as a holder of the soil, and is to be taken as a part of that country in that particular transaction, independent of his own personal residence and occupation." It was contended that this rule, laid down with so much precision, did not embrace Mr. Bentzon's claim, because he had not "incorporated himself with the permanent interests of the nation." He acquired the property while Santa Cruz was a Danish colony, and he withdrew from the island when it became British. This distinction did not appear to the court to be a sound one. The identification of the national character of the owner with that of the soil, in the particular transaction, is not placed on the dispositions with which he acquires the soil, or on his general national character. The acquisition of land in Santa Cruz bound the claimant, so far as respects that land, to the fate of Santa Cruz, whatever its destiny might be. While that island belonged 1 Robinson's Adm. Rep. vol. v. p. 21. The Phoenix. The Vrow Anna Catharina. to Denmark, the produce of the soil, while unsold, was, according to this rule, Danish property, whatever might be the general national character of the particular proprietor. When the island became British, the soil and its produce, while that produce remained unsold, were British. The general, commercial, or political character of Mr. Bentzon could not, according to this rule, affect that particular transaction. Although incorporated, so far as respects his general national character, with the permanent interests of Denmark, he was incorporated, so far as respected his plantation in Santa Cruz, with the permanent interests of Santa Cruz, which was at that time British; and though, as a Dane, he was at war with Great Brtain, and an enemy, yet as a proprietor of land in Santa Cruz, he was no enemy: he could ship his produce to Great Britain in perfect safety. 2. The case was therefore certainly within the rule as laid down by the British prize courts. The next inquiry was, how far that rule will be adopted in this country? The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial States throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this. Without taking a comparative view of the justice or fairness of the rules established in the British prize courts, and of those established in the courts of other nations, there were circumstances not to be excluded from consideration, which give to those rules a claim to our consideration that we cannot entirely disregard. The United States having, at one time, formed a component part of the British empire, their prize law was our prize law. When we separated, it continued to be our prize law, # so far as it was adapted to our circumstances, and was not varied by the power which was capable of changing it. It would not be advanced, in consequence of this former relation between the two countries, that any obvious misconstruction of public law made by the British courts, is entitled to more respect than the recent rules of other countries. But a case professing to be decided entirely on ancient principles will not be entirely disregarded, unless it be very unreasonable, or be founded on a construction rejected by other nations. The rule laid down in The Phoenix was said to be a recent rule, because a case solemnly decided before the Lords Commissioners, in 1783, is quoted in the margin as its authority. But that case was not suggested to have been determined contrary to former practice or former opinions. Nor did the court perceive any reason for supposing it to be contrary to the rule of other nations in a similar case. The opinion that ownership of the soil does, in some degree, connect the owner with the property, so far as respects that soil, was an opinion which certainly prevailed very extensively. It was not an unreasonable opinion. Personal property may follow the person anywhere; and its character, if found on the ocean, may depend on the domicile of the owner. But land is fixed. Wherever the owner may reside, that land is hostile or friendly according to the condition of the country in which it is placed. It was no extravagant perversion of principle, nor was it a violent offence to the course of human opinion to say, that the proprietor, so far as respects his interest in the land, partakes of its character, and that its produce, while the owner remains unchanged, is subject to the same disabilities.1 racter of So, also, in general, and unless under special circum- § 22. Nastances, the character of ships depends on the national tional chacharacter of the owner, as ascertained by his domicile; ships. but if a vessel is navigating under the flag and pass of a foreign country, she is to be considered as bearing the national character of the country under whose flag she sails: she makes a part of its navigation, and is in every respect liable to be considered as a 'Cranch's Rep. vol. ix. p. 191–199. Thirty hogsheads of Sugar, Bentzon, Claimant. vessel of the country; for ships have a peculiar character impressed upon them by the special nature of their documents, and are always held to the character with which they are so invested, to the exclusion of any claims of interest which persons resident in neutral countries may actually have in them. But where the cargo is laden on board in time of peace, and documented as foreign property in the same manner with the ship, with the view of avoiding alien duties, the sailing under the foreign flag and pass is not held conclusive as to the cargo. A distinction is made between the ship, which is held bound by the character imposed upon it by the authority of the government from which all the documents issue, and the goods, whose character has no such dependence upon the authority of the State. In time of war a more strict principle may be necessary; but where the transaction takes place in peace, and without any expectation of war, the cargo ought not to be involved in the condemnation of of the vessel, which, under these circumstances, is considered as incorporated into the navigation of that country whose flag and pass she bears.1 ing under license. § 23. Sail- We have already seen that no commercial interthe enemy's course can be lawfully carried on between the subjects of States at war with each other, except by the special permission of their respective governments. As such intercourse can only be legalized in the subjects of one belligerent State by a license from their own government, it is evident that the use of such a license from the enemy must be illegal, unless authorized by their own government; for it is the sovereign power of the State alone which is competent to act on the considerations of policy by which such an exception from the ordinary consequences of war must be controlled. And this principle is applicable not only to a license protecting a direct commercial intercourse with the enemy, but to a voyage to a country in alliance with the enemy, or even to a neutral port; for the very act of purchasing or procuring the license from the enemy is an intercourse with him prohibited by the laws of war: and even supposing it to be gratuitously issued, it must be for the special 1 Robinson's Adm. Rep. vol. i. p. 1. The Vigilantia. Vol. v. p. 161. The Vrow Anna Catharina. Dodson's Adm. Rep. vol. i. p. 131. The Success. purpose of furthering the enemy's interests, by securing supplies necessary to prosecute the war, to which the subjects of the belligerent State have no right to lend their aid, by sailing under these documents of protection.1 1 Cranch's Rep. vol. viii. p. 181. The Julia. Ibid. p. 203. The Aurora. Wheaton's Rep. vol. ii. p. 143. The Ariadne. Vol. iv. p. 100. The Caledonia. |