34 Society, &c. vs. Wheeler. careful examination, however, of the cases cited, it will not be found that they support the doctrine. In Derrier vs. Arnaud, the original record of which, Lord Kenyon says, had been examined, the plea negatived every presumption that could arise in favour of the plaintiff's right to sue. But the case did not turn at all upon that point, but simply on the question, whether oriundus, in the plea, was equivalent to natus, and upon examining precedents, the court held the plea good; and, as no such objection was made, it seems difficult to admit, that a mere averment of the additional facts was adjudged necessary, when upon the judgment of the court it stands purely indifferent. In Openheimer vs. Levy, to an action of assumpsit the defendant pleaded alien nee, without saying alien enemy, and the court held, that, as an alien friend may maintain a personal action, and in order to abate the writ, the plaintiff should be shewn to be an alien enemy, which is not to be presumed, nor the contrary necessary to be replied, therefore the plea was bad; and so the law had before that time been beld. The case, therefore, steers wide of the doctrine contended for. In Wells vs. Williams, to debt upon a bond by an executor, the defendant pleaded, that the plaintiff was an alien enemy, and came into England without a safe conduct. The plaintiff replied, that at the time of making the bond he was, and yet is, in England, by the license, and under the protection of the King; and upon demurrer the court held, not that the plea was bad, but that the replication was good; and the court resolved, that if the defendant came there before the war, there was no need of a safe conduct; and if he came since the war, and continued without molestation, it should be intended 38 37 1 Ld. Ray. 282. S. C. Lutw. 34. Salk. 46. 36 Dyer, 2. Society, &c. vs. Wheeler. that he came by a license, and his right to sue was consequent upon his protection. In this case, also, the objection did not arise; for the only question seemed to be, whether a residence by the license, and under the protection of the King, would entitle the party to sue without having a safe conduct; and the court held that it would. And this is but an affirmance of the doctrine of the year books. 38 39 These are all the authorities, upon which Casseres vs. Bell professes to have been decided. On the other hand, in Sylvester's case (which was not cited,) where the plea was alien enemy, on demurrer, the court held it good; and that, if the party were entitled under a general or special protection of the King, he ought to reply that fact. And so were the pleadings in George vs. Powell." And there are several other precedents, in which the plea does not negative the facts, which might enable an alien enemy to sue. 41 If, therefore, the present question turned at all upon Casseres vs. Bell, which was cited at the argument, it would require a good deal of consideration, before that decision could be maintained. The case of Clark vs. Morey, " pushes the doctrine farther, and asserts that an alien enemy, who comes and resides here without a safe conduct or license from the government, (for so is the averment in the plea) is at all events entitled to sue, until ordered away by the President; and this too, although the party is not known by the government to have his residence here. The English authorities have always required an express safe conduct or an implied license; and Boulton vs. Dobree 3 decides, that a license is not to be implied from mere residence, un Society, &c. vs. Wheeler. less sanctioned by the government after the commencement of hostilities. The present case, however, may well rest upon distinct grounds; for whether the facts should, in pleading, come from one party or the other, to bring the plaintiff within, or to take the plaintiff out of, the disability of alien enemy: it is very clear, that every fact must appear on the record, which negatives his right to sue; otherwise the judgment cannot be arrested. The objections to the rendition of judgment for the demandants, in the case at bar, seem to be two; first, that the corporation itself, being established in the enemy's country, acquires the enemy's character from its domicil; second, that the members of the corporation are subjects of the enemy, and therefore personally affected with the disability of hostile alienage. It is certainly true, that as to individuals, their right to sue in the courts of a belligerent, or to hold or enforce civil rights, depends not on their birth and native allegiance, but on the character, which they hold at the time when these rights are sought to be enforced. A neutral, or a citizen of the United States, who is domiciled in the enemy's country, not only in respect to his property, but also as to his capacity to sue, is deemed as much an alien enemy, as a person actually born under the allegiance and residing within the dominions of the hostile nation. This, indeed, has long been settled as the general law of nations, and enforced in the tribunals of prize; and has been latterly recognised and confirmed in the municipal courts of other nations. 44 And the same principle has been applied to a house of trade established in a hostile country, al Omealy vs. Wilson, 1 Camp. 482. M'c Connel vs. Hector, 3 Bos. & Pull. 113. Society, &c. vs. Wheeler. though the parties might happen to have a neutral domicil; the property of the house being, for such purpose, considered as affected with the hostile character of the country, in which it is employed." In this respect, a corporation, authorized by its charter to carry on trade, and established in the hostile country, such as the East India Company, would undoubtedly be held, as to its property, within the same rule, even admitting its members possessed a neutral domicil. In general, an aggregate corporation is not in law deemed to have any commorancy, although the corporators have"; yet there are exceptions to this principle; and where a corporation is established in a foreign country, by a foreign government, it is undoubtedly an alien corporation, be its members who they may; and if the country become hostile, it may, for some purposes at least, be clothed with the same character. Even in respect to mere municipal rights and duties, an aggregate corporation has been deemed to have a local residence. It has been held to be an "inhabitant" under the statute for the reparation of bridges;" and an "inhabitant and occupier" liable to pay poor rates, under the statute, 43 El. ch. 2. It may therefore acquire rights, and be subject to disabilities, arising from the country, if I may so express myself, of its domicil. And, indeed, upon principle or authority, it seems to me difficult to maintain, that an aggregate corporation, as for instance an insurance company, a bank, or a priva teering company, established in the enemy's country, could, merely from its being an invisible, intangible thing, a mere incorporeal and legal entity, be entitled to main 45 The Vigilantia and the cases therein cited, 1 Rob. R. 1. [The In diano. post.] 48 Inhabitants of Lincoln County vs. Prince, 2 Mass. R. 544. 47 22 H. 8, ch. 5. 2 Inst. 697, 703. 4o Rex. vs. Gardner, Cowp, 83, Society, &c. vs. Wheeler, tain actions, to enforce rights, acquire property or redress wrongs, when its own property on the ocean would be good prize of war. If the reason of the rule of the disability of an alien enemy be, as is sometimes supposed, that the party may not recover effects, which, by being carried hence, may enrich his country, that reason applies as well to the case of a corporation, as of an individual, in the hostile country. If the reason be, as Lord Chief Justice Eyre in Sparenburg vs. Barnatine "asserts it to be, that a man professing himself hostile to our country, and in a state of war with it, cannot be heard, if he sue for the benefit and protection of our laws, in the courts of our country, that reason is not less significant in the case of a foreign corporation, than of a foreign individual, taking advantage of the protection, resources and benefits, of the enemy's country. In point of law, they stand upon the same footing. It has been argued, that the Court will look to the purposes, for which the corporation was instituted, and to the conduct, which it observes; if these be innocent or meritorious, they afford an exception from the general rule. But it is not the private character or conduct of an individual, which gives him the hostile or neutral character. It is the character of the nation, to which he belongs and where he resides, He may be retired from all business, devoted to mere spiritual affairs, or engaged in works of charity, religion and humanity, and yet his domicil will prevail over the innocence and purity of his life. Nay more, he may disapprove of the war, and endeavour by all lawful means to assuage or extinguish it, and yet, while he continues in the country, he is known but as an enemy. The same principle must apply, in the same manner, to a corporation. The objects, 491 Bos. and Pull. 163. |