THIRTY HOGSHEADS OF SUGAR, (Adrian B. Bentzon, Claimant,) v. BOYLE and others, Being the officers and crew of the privateer Comet

THIRTY HOGSHEADS OF SUGAR, (Adrian B. Bentzon, Claimant,) v. BOYLE AND OTHERS, Being the officers and crew of the privateer Comet. Absent....Todd. J. APPEAL from the sentence of the Circuit Court; for the district of Maryland,'condemning 30 hogsheads of sugar, the property of the Claimant, a Danish subject, it being the produce of his plantation in Santa Cruz, and shipped after the capture of that island by the British, to a house in London for account and risk of the Claimant, who was a 'Danish oihccr and the -second in .authority in the government of the island, before its capture; and who,-shortly after-the capture, withdrew, and has since resided in the United States and in Deri-, mark. I5y the articles of capitulation, the inhabitants were permitted to retain their property, but could only' ship the produce of the island to Great Britain. . This sugar was capturedin July, 1812, after the fletlaration of. war by the United States against Great Britain, and* libelled as British property. The prodiwi oí* an enemy* colony is to be considered as hostile property so long as it. belongs to the owner of the soil, whatever may be his national character in other respects, or whatever., may be' hjs place of, residence. An island in the temporary occupation -.of ►the enemy is to be considered as an enerriy’s colony. In deciding'a question of the law, of nations, tjiis Court will respect the’decisions of foreign Courts- riARPER, for the Appellant, made two questions, 1. -is this case within the- rule oi the British .prize Courts, that the produce of a plantation in an enemy’s country shall be considered, .while such prodace*re mains the property, of the owner of the soil, as the property ,of 'an enemy, whatever may be the general, national character of the owner ? 2. If it be within that rule,, is the rale to be considered in this country as a rule of national law V 1. Sir William Scott, in laying down, the rule in the case of the Phoenix, 5 Bob. 26, 20, refers to the oase of Jaffrow Catharina in 1783, and the reason of the rule-seems to be that the proprietor'of the‘soil-Incorporates. himself with the permanent interests of the country, The rule is modern,, and several exceptions have been made to it. In the case of the Phoenix the claim was made by persons of' Germany for property taken on a voyage from Surinam to Holland, and described as the of their estates in Surinam, which was then a colony of Holland, with which Great Britain was at war, Germany being neutral. Sir Win. Scott admits that if the estates hád been purchased while Surinam was in the possession of the British, the case would not have been ivithin ¡he general rule. So in the case of the Diaña, & Rob. 60, (Eng. Ed.J those who settled in Demorara while it was under British protection, were held not to be within the' rule: and the case of the VroW Anna Catharina,, ’6 Rob. 161, fEng. Ed. ) is another modification of the rule. These cases were < xccpted, because the proprietors had not incorporated themselves with the permanent interests of the■ nation. In the present case Mr. Bentzon never incorporated himself with the interests of tlie”6ritish nation, either permanently or temporarily.. The character was forced upon him against his will; he always disclaimed it. He was by birth, and always continued, a Danish subject. He did not voluntarily purchase, a plantation in the country of the enemy. When he purchased his estate Santa Crum was neutral. The occupation of the island by the British was temporaryj it was neither permanent in fact nor in. law. Peace has restored the island to Denmark. Mr. Bentzon could not, by means of his estate in Santa Crum, incorporate hjmself permanently with the interests of Great Britain. 2.. But if the case comes within the British rule, are we to adopt that rule, and extend it to a neutral nation, which has never itself adopted it. It is but the ordinary case of a neutral carrying on liis lawful trade with our enemy; and has nothing in it contrary to the law of nations. The rule contended for is a mere arbitrary rulé, calculated to extend the field of rapine and to increase the maritime power of Great Britain. We have no interest in aiding those views. What is the law of nations ? Not á rule adoptéd by one nation only, but the law of nature, of reason, and of justice, applied to the intercourse of nations, and admitted by all such as are civilized. What is there in the code of any other nation to support this rule ? it is to be found only in the maritime code of Great which is not more binding fipon us thau that of any other maritime power. It can have no force with us, but in cases where the rule of reciprocity or of retaliation will justify its use. But Denmark has never used nor acknowledged the rule; and, therefore, we cannot justly enforce it against her. But if this Court should adopt (he rule, we trust it will be with the strictest limitation. Pinkney, contra. ■ By the capture of Santa Crux by the British, it immediately became the colony of an enemy. It is not necessary that the occupation should be perpetual; far the time it was indefinite, and during the occupation it was as much the colony of an enemy as any of his other possessions. If, then, Santa Cruz was an enemy’s colony, its produce, while it remained the property ,of the owner of ,the soil, was the property of an enemy. Sir W. Scott,, in the case of the Phoenix, 5 Rob. 21, ( Eng. Ed. J says that the rule has been so repeatedly decided both in that 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. The opposite argument gees to show that if the property in the soil be acquired before the capture of the island, the owner would not be considered an enemy, although the island should remain permanently a British colony. The case of the Phoenix, contains no exception to the . gener al rule; it is, however, said that the case of the Diana shows an exception ; but that was a mere question of domicil. The rule now under consideration was not discussed. It is said that the party, in order to acquire the ho;u tile character as to the produce of his estate, must incorporate himself with the interests of the enemy wliile the soil is in possession of the enemy. Rut the rule is not soó . There is no d ff -rence whether |ie acquire the estate before or after it come, into the possession of the enemy ; if he continuéis to hold the estate, lie becomes immediately incorporated with the nation jure belli. But it is asked, is Great Britain to legislate for other nations? We say.no. But this Court will pay great respect to the English decisions on this subject; especially as the rule has been acquiesced in by all the nations of Europe. Not one of them has remonstrated — not even Denmark. It has, therefore, the positive authority.of .England, and the negative-authority of all the residue.of Europe.. The rule is not harder than that of domicil, to which it is analogous.- Haiíper, in reply. It is said that the rule is general, because, all the nations of Europe have acquiesced iu the English decisions. Several reasons may he given- f>-r this appearance of acquiescence. It is a recent rule. No authority can be produced for it earlier.than 1783, just at the close of the American war. Peace having immediately taken place, removed the cause of complain»; And as to the late war with France; no case of the kind appeals to have arisen. The edicts of France, Ac. had a different hearing. - It is said that the role is analogous to that of domicil. But the rule of domicil rests upon a different principle — the principle of allegiance .and the safety of the state. A man found in the enemy’s country at the breaking out of the war receives the protection of- that country, and is hound to do n-¡thing to its injury and if he do not remove in a-reasonable time is to be considered as having incorporated himself with the. interests of that country. The rule of domicil is rather a rule of municipal than of national law; and the -principal ground of the rule is the necessity of preventing treasonable intercourse, with the enemy, ft becomes a part of national law only when if is applied to neutrals. :It has no analogy to the rulé now in question, which was adopted merely to prevent the interference of neutral with belligerent rights. March 4th. Absent....Tonn, J. [MAJORITY — Marshaix, Ch. J.] Marshaix, Ch. J. delivered the'opinion of the as follows: The island of Santa Cruz, belonging to the kingdom of Denmark, was subdued, during the late war, by the arms of his Britannic majesty. Adrian Benjamin Bentzon, an officer of the Danish government, and a proprietor of land therein, withdrew from the island on its surrender, and has since resid'd in Denmark. . The property of the inhabitants being secured to them, lie still retained his estate in the island under the management of'an agent, who shipped thirty hogsheads of sugar, the produce of that estate, on board a British .ship, to a commercial house in London, on account and risk of the said A. B. Bentzon. On her passage, she was captured by the American privateer, the Comet, and brought into Baltimore, where the vessel and cargo were libelled as enemy property. A claim for these sugars was put in by Bentzon 5 bu,t they were condemned with the rest of the cargo ; and the sentence was affirmed in the Circuit Court. The Claimant then appealed to this Court. Some doubt has been suggested whether Santa Cruz, while in the possession of .Great Britain, could properly be considered as a British island. But for this doubt there, can be no foundation. Although acquisitions inade during.war are not considered as permanent until confirmed by treaty, yet to every -commercial and belligerent purpose, they are considered as a part of the-domain of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British island until it tos restored to Denmark. Must the produce of a plantation in that island, ship-, ped by‘the proprietor himself, who is a Dane residing in Denmark, bo .considered as British, and therefore enemy j>foperty ? In arguing this question, the counsel for the Clair mants has made two points. 1. That this case does not come within the rule applicable to shipments from art enemy country, even as laid down in the British Courts of admiralty. 2. That the rule has not oeen rightly laid" down in those Courts, and consequently will n‘ot be adopted in this» 1. Does the rule laid down in the British Courts of admiralty embrace this case ? It appears to the Court that the case of the Phoenix is precisely in point. In that case a vessel was captured in a voyage from Surinam to Holland, and a part of the cargo was claimed by persons residing in Germany, then a neutral country, as the produce of their estates in Surinam. The counsel for the captors considered the law of the case as entirely settled. The counsel for the Claimants did not controvert this position. They admitted, it; but endeavored to extricate their case from the general principle by giving it the protection of the treaty of Amiens. In pronouncing his opinion, sir William Scott lays 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 arguments, than that the possession of ««the soil does'impress upon the owner the character of ««the country, as far as the produce of that plantation *« is concerned, in its transportation to any other coun- «< try, 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 ou the point of ««law, at this day.” Afterwards, in the case of the 17r«w Anm, Catharina, sir William Scott lays down the rule, and states its reason. ««It cannot be doubted,” he says,««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 tne colony of the enemy, though shipped in time of peace, is liable to he considered as the property of the enemy, by reason that the proprietor has incorporated hiinse’" 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 ticular transaction, independent of his own personalicesidence and occupation.” This rule laid down with so much precision, does not, it is contended, embrace Mr. Bentzon’s claim,- because he has not incorporated himself with the permanent interests of the nation.” He acquired the property while Santa Cruz was a Danish coiony, and hé withdrew from the island when it became British. This distinction, does not appear to the Court tobe 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 character. The acqmsition of land in Santa. Cruz binds him, so far as respects that land, to the fate of Santa Cruz, whatever its destiny may be. While that island belonged to Denmark, the produce, of the soil, while unsold, was, according to this rulé, Danish property, whatever might be the general character of the particular proprietor. When the island became British, the soil and its produce, whileTbat produce remained unsold, were British. The general commercial or political character of Mr. Bentzou could not, according to this rule, affect this particular transaction. Although incorporated, so far as respects his general 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 Britain, and an enemy, yet, as a proprietor of land in Santa Cruz, lie was no enemy : he . could sliip his produce to Great Britain, in perfect safety. The case is certainly within the rule as laid down in the British Courts. The next enquiry is: how far will that rule be adopted in this country ? The 1 aw. of nations is the great source from which we de- . rive tho¡?e mies, respectingbelligereut and neutral rignts, which are recognized by alt 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 principies 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 scries 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 bow 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 pr. fairness of the rules established in the British Courts, and of those.established in .the Courts of other nations, there are circumstances not to be excluded from consideration, which give to those rules a claim to our attention that wo '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 will 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, will be considered as forming a rule for the American Courts, or that, any recent rule of the British Courts'is entitled to more respect tlupi the recent r iles of other countries. But a case professing to be decided 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 is said to be a recent rule, .because a case solemnly decided before the lords commissioners -in lT^, is quoted in the margin as its authority. But that case is not suggested to have been determined contrary to former, practice or former' opinions. JNor do \we 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, is an opinion which certainly,pre-vails very extensively. It. is not an unreasonable opinion. Personal property may follow* the person any. where; and its character, if, found on the ocean, may depend on the domicil 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 is no extravagant perversion of principle,'nor .is it a violent offence to the course of human #opinion to say that the proprietor, so far as respects his interest in this land, partakes of its character; and that the produce, while the owner remains unchanged, is subject to the same disabilities. In condemning the sugars of Mr. Ilcntzon as enemy property, this Courtis of opinion that there was no error, and'the. sentence is affirmed with costs.