1818. The Friendschaft. he says it, but from the very nature of things, and adjudication, to which period every thing must be referred. 5. But even the Portuguese domicil of Mr. Winn will not avail to avert the condemnation of his property, because his native character is preserved, notwithstanding his residence and trade in Portugal. As the native domicil easily reverts, so also, it may with truth be affirmed, that it is with difficulty shaken off. Every native subject of a belligerent power is, prima facie, an enemy of the other belligerent. To repel this presumption, he must show, not merely that he has acquired a personal domicil in a neutral country, but that, under all the circumstances of the case, he is unaffected with the hostile character of his native domicil. The political relations between Great Britain and Portugal, completely recognize the privileged national character of British subjects in Portugal, which is preserved to them, in a manner analogous to that of European merchants in the East, who are held to take their national character from the factory to which they are attached, and from the European government under whose protection they carry on their trade. Thus, also, Sir W. Scott states, in the Henrick and Maria," that British subjects resident in Portugal retain their native national character in spite of their Portuguese domicil, even in the estimation of the enemy himself, (France,) and that they exercise an active jurisdiction over their own countrymen settled there. This peculiar immiscible character of British subjects in Portugal is strengthen a The Indian Chief, 3 Rob. 25. VOL. III. b 2 Rob. 50. 1818. The Friendschaft. 1818. The Friend schaft. ed by the circumstance of that country having been, from the earliest periods of her national existence, the ally of Great Britain; and something more than a mere common ally, as Sir W. Scott observes, in the Flad Oyen." The case of the Danaos, cited in a note to the Nayade,' in which the lords of appeal allowed a British born subject resident in the English factory at Lisbon, the benefit of a Portuguese character, so far as to legalize his trade with Holland, then at war with England, but not with Portugal, must be considered as a departure from principle, and imputed to some motive of national or commercial policy, operating on the lords at the time. Certain it is, that the reasons on which Sir W. Scott grounds the opinion expressed by him, are entitled to much more weight than is the mere authority of the lords, unsupported by any reasons whatever. This court, which is the supreme appellate prize tribunal of this country, will scrutinize carefully all the precedents settled in the British prize courts, (since the United States ceased to be a portion of the British empire,) and will regard rather the reason than the authority on which they are founded. Trace the treaties between Great Britain and Portugal, and it will be found that they impress something like a provincial dependence on Portugal, and an independent character on British subjects resident in that country. It is to the lights of 'history that we must resort to account for compacts so singularly unequal. Before the subjugation of Portugal by Spain, the an a 1 Rob. 135. b 4 Rob. 210. cient Portuguese kings granted special immunities to English merchants settled in their dominions. The want of capital in a poor and comparatively barbarous country, made it necessary to encourage the establishment of foreign merchants in factories, which were essential to their protection, on account of the difference of language, manners, religion, and laws, almost (if not quite) as great as between Christendom and the countries of the East." On the restoration of the monarchy by the house of Braganza, in 1640, John IV. was supported by Charles I. of England, who was the first prince that acknowledged the new Portuguese monarch, and entered into a treaty with him. Under the English commonwealth, this treaty was renewed by Oliver Cromwell, whose energy in maintaining the foreign influence and commercial interests of his country is so well known. Charles II. married the Infanta of Portugal; confirmed all former treaties; and made a new and perpetual one with Alfonzo VI. Under his mediation and guarantee, Spain acknowledged the independcnce of Portugal; which Great Britain has since constantly maintained, by succouring Portugal against her enemies. In return for a friendship so ancient, so unalterable, and so beneficial, Portugal has lavished upon the subjects of Great Britain the most precious commercial privileges; and for them has even relaxed her commercial monopoly, and opened to them the sanctum sanctorum of her possessions in the two Indies. These privileges have been uniform a 2 Posthelwaite's Dict. of Trade and Commerce, art. Treaties. 1818. The Friendschaft. 1818. The Friendschaft. be ly revived and renewed in every successive treaty a The Henrick and Maria, 4 Rob. 50. b 2 Chalmer's Coll. Treat. 279. c 2 Chalmers, 271. Treaty of 1674, art. 7. 13. Treaty of 1810, art. 10. |