San Jose Indiano. THE SAN JOSE INDIANO AND CARGO, FELIS, MASTER. A ship is deemed to belong to the country, where the owners reside. If a ship carry the Portuguese flag, but the owners reside in England, she is condemnable as prize of war. Courts of prize look to the legal interest in the ship, and will not recognise neutral equitable interests. The property of a person may acquire a hostile character, although his residence be neutral. Therefore, where a person is engaged in the ordinary or extraordinary commerce of an enemy's country, upon the same footing, and with the same advantages as native resident subjects, his property employed in such trade is deemed incorporated into the general commerce of that country, and subject to confiscation, be his residence where it may. If there be a house of trade established in the enemy's country, the property of all the partners in the house is condemnable as prize, notwithstanding some of them have a neutral residence. But such connexion will not affect the other separate property of the partners having a neutral residence. If such house ship goods, on their own account, to one of the partners, who is domiciled in a neutral country, it is liable as prize; but it is otherwise, if the shipment be made by the order of the partner, on his separate account and risk, and not on joint account If a person domiciled in the enemy's country be a partner in a house of trade established in a neutral country, and ship goods to them upon their joint account and risk, and not on his separate account, the goods are not liable to condemnation. But it is otherwise, if shipped for his separate account. In general, the residence of a stationed agent in an enemy's country will not affect the trade of the neutral principal with a hostile character. But this is true only, as to the ordinary trade of a neutral, as such, carried on in the ordinary manner; for if such trade is carried on, not on the footing of a foreign merchant, but as a privileged trader, or by an incorporation with the general commerce of the enemy, in the same manner and with the same benefits, as a native merchant, it is dermed hostile. Therefore, if a partner in a neutral house be domiciled in the enemy's country, and engaged in its general commerce, for the benefit of his neutral house, the property is condemnable as prize. The doctrine as to stoppage in transitu applies only to the case of insolvency, and presupposes, not only that the property of the goods has passed to the consignee, but that the possession is in a third person in transit to the consignee. It cannot apply to a case, where the actual or constructive possession remains in the shipper, or his exclusive agents. In general, the rules of the prize court, as to the vesting of property, are the same as those at common law. Where a merchant abroad, in pursuance of orders to purchase goods, sells either hig own goods, or purchases goods for his correspondent on his own credit, no property San Jose Indiano. in the goods vests in his correspondent, until he has done some notorious act to divest himself of his title, or has parted with the possession by an actual and unconditional delivery for the use of such correspondent. A shipment made by the shipper to his own agent, of the goods so purchased, giving him a right to hold them, until he has made arrangements with his correspondent, does not devest the title or possession of the shipper. Where a shipment is made to a firm, and the persons who compose it do not appear, farther proof will be required of the names and domicil of the parties. Where a shipment is made to partners, they are held by the Prize Court to take in equal moieties, unless upon the original papers a different proportion appears. Where a shipment is made in an enemy's vessel, in a voyage from an enemy's country, it is presumed to belong to enemies, unless a distinct neutral character be impressed upon it. The treaty of 1810, between the Portuguese and British governments, did not prevent British merchants, resident in the Brazils, from acquiring the neutral character of their domicil. THIS was a prize cause, coming before this Court on appeal from the District Court of Maine. The cargo was claimed by the master in behalf of twenty-six different shippers, including a claim for his own adventure; and the ship was claimed by him, as the property of Da Costa, Guimaraens and Co. of Liverpool. At the opening of the cause, Pitman, for the captors, stated, that in the Court below the claimant had been permitted to examine the papers before filing the claim, and he produced the record, from which it appeared, that an objection to this course, made by the captors, was overruled by the court. [STORY, J. This is contrary to the ordinary practice. In general, the claimant must make his claim and affidavit, without being assisted by the papers in shaping them, and if they be found substantially to agree with the documents, he will afterwards be permitted to correct any formal errors from the documents themselves. But in special cases, where a proper ground is laid by affidavits, San Jose Indiano. an order will be made for an examination of such papers, as are necessary to a party to make a proper specification of his own claim, but not for a general examination of all the ship's papers.] As the several claims, with the facts relating to them, are distinctly considered in the opinion of the Court, it will be unnecessary here to detail the circumstances of each shipment. It will be sufficient to observe, that the claimants were either Portuguese or British subjects, residing, some in Brazil, and others in England, and for the most part members of commercial houses, having establishments, or resident partners, in both the countries. The cases divided themselves into three classes; 1. Where there were houses in both the countries con stituted by the same persons. 2. Where there were houses in both the countries, but the partners not all the same. 3. Where there was no house in the belligerent country, but a partner residing there for the purpose of transacting business. The questions of law discussed in the argument were, either as to the neutral or hostile character of the property, considered in relation to the residence and commercial connexions of the owner; or they concerned the right of property, whether it remained in the belligerent shipper, or had vested in the neutral claimant, at the time of the capture? In regard to the first, Pitman for the captors made two points; 1. That where a partner of a house in an enemy's country resides in a neutral country, and there carries on the trade of the house, the character of the traffic will make San Jose Indiano. the property hostile, notwithstanding the personal residence.' 2. That British subjects, resident in the Portuguese dominions, were considered in England to retain their British character, and were therefore excepted from the general principles of prize law, as to commercial residence.2 Upon these grounds, the captors sought condemnation of the whole of the property belonging to British subjects, wherever resident, and of all that belonging to Portuguese subjects, who resided in Great Britain. 1 1 Rob. 14, 15, The Vigilantia.-4 Rob. 230, The Herman.—3 Rob. 41, The Portland.-5 Rob. 302, The Jonge Classina.--4 Rob. 235, The Dree Gebroeders.-4 Rob. 118, The Anna Catarina. 24 Rob. 61, The Henrick and Maria.-1 Rob. 142, The Flad-Oyen.— The treaty of amity, &c. between his B. M. and the P. R. of Portugal, made at Rio, 19 Feb. 1810; article 10.* *The material part of that article is as follows:-" His Royal Highness the Prince Regent of Portugal, desiring to protect and facilitate the commerce of the subjects of Great Britain within his dominions, as well as their relations of intercourse with his own subjects, is pleased to grant to them the privilege of nominating, and having, special magistrates to act for them, as Judges Conservators in those ports and cities of his dominions, in which tribunals and courts of justice are or may hereafter be established. These judges shall try and decide all causes brought before them by British subjects, in the same manner as formerly, and their authority and determinations shall be respected; and the laws, decrees, and customs of Portugal, respecting the jurisdiction of the Judge Conservator are declared to be recognised and renewed in the present treaty. They shall be chosen by the plurality of British subjects residing in, or trading at, the port or place, where the jurisdiction of the Judge Conservator is to be established; and the choice so made shall be transmitted to his Britannic Majesty's ambassador, or minister resident at the court of Portugal, to be by him laid before his Royal Highness the Prince Regent of Portugal, in order to obtain his Royal Highness's consent and confirmation, in case of not obtaining which, the parties are to proceed to a new election, until the royal approbation of the Prince Regent be obtained."-The residue of the article provides for the removal of the Judge Conservator by application through the ambassador or minister; and also contains some stipulations in return on the part of his Britannic Majesty. San Jose Indiano. W. Sullivan, for the claimants. The captors rest their claim of condemnation upon two grounds: 1. That, though residing in a neutral country, the claimants enjoy there such privileges, as can only belong to British subjects. 2. That they are concerned in houses of trade in the enemy's country. As to the residence, it is contended, that an Englishman resident in a neutral country is neutral.3 Do the circumstances, under which they reside in the Portuguese dominions, prevent the application of the general principle in the present instance? The 10th article of the treaty, which is relied on for this purpose, cannot have this effect. It provides for nothing more, than the establishment of a tribunal, similar to the consular courts, which exist throughout the world. It is a mere commercial concession, for which the British government gives an equivalent by the treaty. The judge is a Portuguese, chosen by the British subjects, but confirmed by the Prince Regent of Portugal. A British subject so situated might commit treason against the Portuguese government.** Does the connexion with a house of trade in England take away the neutral character? The principle of neutrality derived from residence being once established, it follows, that a British subject so resident may carry on trade with his native country. He may ship, and receive returns, and his goods, in going and coming, will be protected from capture. He may do whatever any other neutral may do. If then he may carry on the trade, how is the case varied, if he choose to connect himself with others in the enemy's country? It cannot deprive him of his neutral 33 Rob. 12, The Indian Chief.-1 Rob. 296, The Emanuel.-8 Bos. and Pull. 113, Mc Connelle vs. Hector. Chitty L. of N. 41 to 46.-Ibid. 37. |