APPEAL from the sentence of the Circuit Court for the district of Maryland, condemning 30 hogsheads of sugar, the property of the Claimant, a Danish subject, it being the produce of his plantation in Santa Cruz, and shipped after the capture of that island by the British, to a house in London for account and risk of the Claimant, who was a Danish officer and the second in authority in the government of the island before its capture; and who, shortly after the capture, withdrew, and has since resided in the United States and in Denmark. By the articles of capitulation, the inhabitants were permitted to retain their property, but could only ship the produce of the island to Great Britain. This sugar was captured in July, 1812, after the declaration of war by the United States against Great Britain, and libelled as British property.
HARPER, for the Appellant, made two questions,
1. Is this case within the rule of the British prize Courts, that the produce of a plantation in an enemy's country shall be considered, while such produce remains the property of the owner of the soil, as the property of an enemy, whatever may be the general national character of the owner?
2. If it be within that rule, is the rule to be considered in this country as a rule of national law?
1. Sir William Scott, in laying down the rule in the case of the Phoenix, 5 Rob. 26, 20, refers to the case of Jaffrow Catharina in 1783, and the reason of the rule seems to be that the proprietor of the soil incorporates himself with the permanent interests of the country. The rule is modern, and several exceptions have been made to it. In the case of the Phoenix the claim was made by persons of Germany for property taken on a voyage from Surinam to Holland, and described as the produce of their estates in Surinam, which was then a colony of Holland, with which Great Britain was at war, Germany being neutral. Sir Wm. Scott admits that if the estates had been purchased while Surinam was in the possession of the British, the case would not have been within the general rule. So in the case of the Diana, 5 Rob. 60, (Eng. Ed.) those who settled in Demarara while it was under British protection, were held not to be within the rule; and the case of the Vrow Anna Catharina, 5 Rob. 161, (Eng. Ed.) is another modification of the rule. These cases were excepted, because the proprietors had not incorporated themselves with the permanent interests of the nation.
In the present case Mr. Bentzon never incorporated himself with the interests of the British nation, either permanently or temporarily. The character was forced upon him against his will; he always disclaimed it. He was by birth, and always continued, a Danish subject. He did not voluntarily purchase a plantation in the country of the enemy. When he purchased his estate Santa Cruz was neutral. The occupation of the island by the British was temporary; it was neither permanent in fact nor in law. Peace has restored the island to Denmark. Mr. Bentzon could not, by means of his estate in Santa Cruz, incorporate himself permanently with the interests of Great Britain.
2. But if the case comes within the British rule, are we to adopt that rule, and extend it to a neutral nation which has never itself adopted it.
It is but the ordinary case of a neutral carrying on his lawful trade with our enemy; and has nothing in it contrary to the law of nations.
The rule contended for is a mere arbitrary rule, calculated to extend the field of rapine and to increase the maritime power of Great Britain. We have no interest in aiding those views.
What is the law of nations? Not a rule adopted by one nation only, but the law of nature, of reason, and of justice, applied to the intercourse of nations, and admitted by all such as are civilized. What is there in the code of any other nation to support this rule? It is to be found only in the maritime code of Great Britain; which is not more binding upon us than that of any other maritime power. It can have no force with us, but in cases where the rule of reciprocity or of retaliation will justify its use.
But Denmark has never used nor acknowledged the rule; and, therefore, we cannot justly enforce it against her. But if this Court should adopt the rule, we trust it will be with the strictest limitation.
By the capture of Santa Cruz by the British, it immediately became the colony of an enemy. It is not necessary that the occupation should be perpetual; for the time it was indefinite, and during the occupation it was as much the colony of an enemy as any of his other possessions.
If, then, Santa Cruz was an enemy's colony, its produce, while it remained the property of the owner of the soil, was the property of an enemy. Sir W. Scott, in the case of the Phoenix, 5 Rob. 21, (Eng. Ed.) says that the rule has been so repeatedly decided both in that and the superior Court, that it is no ...