that he presumes the goods shipped belong to the respective consignees. The rights of belligerents are not the only rights deserving of the notice, and entitled to the protection of courts of prize. Though human testimony may sometimes be corrupt, and often fallacious, it is by human testimony alone, that human tribunals can hope to eviscerate the truth. Condemnation should take place only when the fact of enemy's property has been ascertained; and where that fact is doubted, proof should be resorted to. These principles have received the countenance of all those engaged in the administration of public law, whom the civilized world (cruisers excepted) regard with reverence. They will be found stated with simplicity and perspicuity in the famous British answer to the Prussian memorial, and communicated to the American government in 1794, as the basis of the proceedings in British courts of Admiralty; and which has been adopted by this court as the substratum of its own conduct in cases of prize.-3. When it is recollected that the claimants have sought to furnish proof, both from the port of shipment and the port of destination, from London and from Lisbon; that during the war, the means of procuring such proof from Europe and bringing it to the United States were unfrequent and uncertain; and that delay will not be occasioned by listening to the additional proof now tendered, it is believed that the court will not refuse to hear it. The case of the Bernon, (") shows that the court, after receiving farther proof, may order additional proof, if requisite to enlighten its judgment; (a) 1 Rob. 86. 1818. The Friendschaft. 1818. The Friend schaft. are, and the case of the Frances (4) is an authority in point, that the appellate court may order additional proof, if the farther proof on which the cause has been heard below is defective. May not the appellate court then hear it, if to prevent injurious delays it be prepared in anticipation ?4. The only inquiries of fact, as to the character of the claimant, according to the rules laid down by Sir William Scott, in the Herstelder, (b was he at the time of seizure entitled to restitution; and is he, at the time of adjudication, in a capacity to claim. The present capacity of the claimant is without doubt. His right to restitution must be tested by his national character at the time of seisure, on the 10th of May, 1814. But the objection is founded entirely on a misconception of the meaning of the affidavits. Whether the facts testified be true or not, must depend on the veracity of the deponents. If they are to be believed, they prove a residence of the claimant as an established merchant at Lisbon, for several years preceding the seizure, and up to the 12th of June thereafter; the leaving of Lisbon on mercantile business, animo revertendi, on the 12th of June, 1814, and the continuance of his domicil, residence, and establishment there, and a continued purpose of actually returning thither, up to the date of the affidavits.-5. It must be conceded, that for commercial purposes, among the civilized nations of Europe and the West, the national character of an individual is ordinarily that of the country in which he resides. No position is better established than this, that if a person goes to another country, and theré engages in (b) 1 Rob. 97. (a) 8 Cranch, 308. 355. trade and takes up his residence, he is by the law of nations, to be considered as a merchant of that country. This general rule applies to the case of British merchants domiciled in Portugal. They owe allegiance to the government, are protected by its laws, mingle intimately with the natives in all the social and domestic relations, cherish Portuguese industry, increase Portuguese capital, and contribute to the revenue of Portugal. It is true that a very intimate commercial connexion has long subsisted between Portugal and Britain, and that the subjects of the latter are encouraged to settle in the Portuguese dominions, by many advantageous regulations in favour of their traffic. But it is by no means true that any British authority is exercised in Portugal, or that Portugal can be viewed as the dependant province of Britain. First. There is no authority for the assertion that the ports of Portugal are open in war for the adjudication of British captures made from nations at peace with Portugal. An irregular practice formerly obtained to that effect, to which sir Wm. Scott alludes in the Henrick and Maria; but it was sanctioned neither by treaty nor decree. The treaty of 1810 is utterly silent on that head, and it is a matter of notoriety, that on the breaking out of the late war between the United States and Great Britain, a royal decree was issued, forbidding the cruisers of belligerents from bringing their prizes into the dominions of Portugal, which was enforced throughout the war. Second. Portugal is not bound by treaty to deliver up British vessels brought into her ports which have been taken by the enemy of Britain. VOL. III. 7 1818. The Friend schaft. 1818. The Friendschaft. The 30th article of the present treaty limits the obligation to the restitution of property plundered by pirates. And this obligation is reciprocal. Third. British residents are not exempt from the jurisdiction of the Portuguese tribunals. They have the privilege indeed of choosing from among the commissioned judges of the realm one who is to be presented to the king for his approbation as their judge conservator, and who, if approved, is so appointed. The authority of this judge, (who is usually selected because of his knowledge of the English language,) reaches only to the trial in the first instance of commercial disputes brought before him by British merchants, and is ever subordinate to the higher tribunals of justice established in the realm, who, in all cases, possess over him an appellate jurisdiction. The privilege is not peculiar to the British, but is extended to every friendly European nation. Fourth. The provision of the treaty of 1654, relative to the appointment of administrators to British residents dying intestate, is not renewed in the treaty of 1810. There is in lieu of it a reciprocal stipulation, (Art. 7th.) for the disposal, by the subjects of both nations, of their personal property by testament. Fifth. The provision for applying the effects seised by the Inquisition to the payment of the debts due the British creditor, is but a dictate of justice, and probably places these creditors on the same footing with native creditors. It is not found in the treaty of 1810. Sixth. There is nothing extraordinary in the mutual stipulation for the tolerance, by each, of the religion of the subjects of the other, as far as it may consist with the laws of their respective realms. Seventh. Nor is it unusual to grant to the subjects of other nations, an exemption from monopolies obligatory on native merchants. It is perfectly familiar to the court, that under the British treaty of 1795, such an exemption was accorded to American merchants from the monopoly of the British East India Company. And in the treaty of 1810 it will be seen that the stipulations are reciprocal. There is much difficulty in ascertaining the precise nature of the immunities enjoyed by British merchants in Portugal, at the date of the treaty of 1810, because the practice had been to grant them occasionally by alvaras. These are temporary proclamations, which have effect, only, for a year and a day. It is very certain that some privileges. heretofore granted, were not then possessed. For instance, the alvara of 1717 exempts Englishmen from certain taxes to which the natives are liable, while the 7th article of the treaty of 1810, provides that they shall be liable to the same taxes, (and no other) as are imposed on the natives of Portugal. The probability is, that the most important of these immunities are especially enumerated in the treaty. It is unnecessary, however, to proceed further with this examination. Enough appears to show that the attempt to take the case of British merchants resident in Portugal, out of the general rule applied to domicil among civilized nations, whatever admiration may be due to its boldness, cannot receive the sanction of an enlightened court. The analogy between such merchants and Europeans in Turkey, who, there, neither sustain their original character, nor take the character of the people within whose territories they sojourn, but owe their name and poli 1313. The Friendschaft. |