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he says it, but from the very nature of things, and
the gravitating tendency, (if the expression may be
allowed,) which every person has towards his native
country. Here Mr. Winn was returning to his native
country, shortly after the capture, and we may safely
conclude, arrived there long before the first adjudi-
cation. There he continued until long after the
peace, without resuming his acquired domicil in Por-
tugal; and more than a year afterwards, we find him
still resident in his native country. He was not in
transitu to regain his neutral character, like Mr. Pinte
in the case of the Nereide; but he was in transitu
to regain his native hostile character. He did regain
it, and became a redintegrated British subject.
That the party must be in a capacity to claim at the
time of adjudication, as well as entitled to restitution
at the time of sailing and capture, is an elementary
principle which lays at the very foundation of the law
of prize. It is alluded to by Sir W. Scott, in a lead-
ing case on this subject; it is evinced by the anciently
established formula of the test affidavit, and sentence
of condemnation, both of which point to the nation-
al character of the party at the time of adjudication,
as an essential ingredient in determining the fate of
his claim. Mr. Winn had no persona standi in ju-
dicio at the time of the first adjudication; and unless
he has been re-habilitated by the subsequent inter-
vention of peace, and restored to his capacity to claim,
by a species of the jus postliminii, his native character
still remains fixed upon him, and his property must be
condemned by relation back to the time of the first
a 9 Cranch, 388.
The Herstelder, 1 Rob. 97.

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.

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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.

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be

ly revived and renewed in every successive treaty
which has been formed between the two countries,
and may be enumerated under the following heads.
First. Prizes made by British subjects, from nations
at peace with Portugal, may be carried into the Por-
tuguese ports for adjudication, and condemned whilst
lying there. If the ports of Portugal can be so far
considered as British, as that British prizes may
carried into them, and condemned, surely they must
be considered such in respect to British subjects resi-
ding and trading there. The rule of reciprocity or
amicable retaliation may be extended to them (being
enemies,) though it may not be extended by the court
to the subjects of Portugal, (because they are friends,)
and the judicial department cannot reciprocate to, or
retaliate on them, the unjust proceedings of their na-
tion. Second. Portugal is bound, by treaty, to deliver
up
British vessels captured and brought into her ports
by the enemies of Great Britain, but her friends.*
Third. British subjects resident in Portugal are ex-
empt from the ordinary jurisdiction of the country;
and are amenable only to the judge conservator ap-
pointed by themselves, who has cognizance of all
civil causes in which they are concerned; and the
ordinary authorities of the country cannot proceed
against them in criminal cases, without a permission
in writing from the judge conservator, except only
where the offender is taken flagrante delicto. Fourth.

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.