The produce of an enemy's colony is to be considered as hostile
property so long as it belongs to the owner or the soil, whatever
may be his national character in other respects, or whatever may be
his place of residence.
An island in the temporary occupation of the enemy is to be
considered as an enemy's colony.
In deciding a question of the law of nations, this Court will
respect the decisions of foreign courts.
The law of nations is the great source from which we derive
these rules respecting belligerent and neutral rights which are
recognized by all civilized and commercial states throughout Europe
and America. This law is in part unwritten and in part
conventional. To ascertain that which is unwritten, we resort to
the great principles of reason and justice, but, us these
principles will be differently understood by different nations
under different circumstances, we consider them as being in some
degree fixed and rendered stable by a series of judicial decisions.
The decisions of the courts of every country, so far as they are
founded upon a law common to every country, will be received not as
authority, but with respect. The decisions of the courts of every
country show how the law of nations in the given case is understood
in that country, and will be considered in adopting the rule which
into prevail in this.
Without taking a comparative view of the justice or fairness of
the rules established in the British courts and of those
established in the courts of other nations, there are circumstances
not to be excluded from consideration, which give to those rules a
claim to our attention that we cannot entirely disregard. The
United States having at one time formed a component part of the
British empire, their prize law was our prize law. When we
separated, it continued to be our prize law, so far as it was
adapted to our circumstances, and was not varied by the power which
was capable of changing it.
It will not be advanced, in consequence of this former relation
between the two countries, that any obvious misconstruction of
public law made by the British courts will be considered as forming
a rule for the American courts, or that any recent rule of the
British courts is entitled to more respect than the recent rules of
other countries. But a case professing to be decided on ancient
principles will not be entirely disregarded, unless it be very
unreasonable or be founded on a construction rejected by other
nations.
Page 13 U. S. 192
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 libeled as British property.
Page 13 U. S. 195
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
The Island of Santa Cruz, belonging to the Kingdom of Denmark,
was subdued, during the late war, by the arms of his Britannic
Majesty. Adrian Benjamin Bentzon, an officer of the Danish
government, and a proprietor of land therein, withdrew from the
island on its surrender, and has since resided in Denmark. The
property of the inhabitants being secured to them, he still
retained his estate in the island under the management of an agent,
who shipped thirty hogsheads of sugar, the produce of that estate,
on board a British ship, to a commercial house in London, on
account and risk of the said A. B. Bentzon. On her passage, she was
captured by the American privateer
The Comet, and brought
into Baltimore, where the vessel and cargo were libeled as enemy
property. A claim for these sugars was put in by Bentzon, but they
were condemned with the rest of the cargo, and the sentence was
affirmed in the circuit court. The claimant then appealed to this
Court.
Some doubt has been suggested whether Santa Cruz, while in the
possession of Great Britain, could properly be considered as a
British island. But for this doubt there can be no foundation.
Although acquisitions made during war are not considered as
permanent until confirmed by treaty, yet to every commercial and
belligerent purpose, they are considered as a part of the domain of
the conqueror, so long as he retains the possession and government
of them. The Island of Santa Cruz, after its capitulation, remained
a British island until it was restored to Denmark.
Must the produce of a plantation in that island, shipped by the
proprietor himself, who is a Dane residing in Denmark, be
considered as British, and therefore enemy property?
Page 13 U. S. 196
In arguing this question, the counsel for the claimants has made
two points.
1. That this case does not come within the rule applicable to
shipments from an enemy country, even as laid down in the British
courts of admiralty.
2. That the rule has not been rightly laid down in those courts,
and consequently will not be adopted in this.
1. Does the rule laid down in the British courts of admiralty
embrace this case?
It appears to the Court that the case of the
Phoenix is
precisely in point. In that case, a vessel was captured in a voyage
from Surinam to Holland, and a part of the cargo was claimed by
persons residing in Germany, then a neutral country, as the produce
of their estates in Surinam.
The counsel for the captors considered the law of the case as
entirely settled. The counsel for the claimants did not controvert
this position. They admitted it, but endeavored to extricate their
case from the general principle by giving it the protection of the
Treaty of Amiens. In pronouncing his opinion, Sir William Scott
lays down the general rule thus:
"Certainly nothing can be more decided and fixed, as the
principle of this court and of the Supreme Court, upon very solemn
arguments, than that the possession of the soil does impress upon
the owner the character of the country, as far as the produce of
that plantation is concerned, in its transportation to any other
country, whatever the local residence of the owner may be. This has
been so repeatedly decided, both in this and the superior court,
that it is no longer open to discussion. No question can be made on
the point of law, at this day."
Afterwards, in the case of the
Vrow Anna Catharina, Sir
William Scott lays down the rule and states its reason. "It cannot
be doubted," he says,
"that there are transactions so radically and fundamentally
national as to impress the national character, independent of peace
or war, and the local residence of the parties. The
Page 13 U. S. 197
produce of a person's own plantation in the colony of the enemy,
though shipped in time of peace, is liable to be considered as the
property of the enemy, by reason that the proprietor has
incorporated himself with the permanent interests of the nation as
a holder of the soil, and is to be taken as a part of that country,
in that particular transaction, independent of his own personal
residence and occupation."
This rule laid down with so much precision does not, it is
contended, embrace Mr. Bentzon's claim, because he has not
"incorporated himself with the permanent interests of the nation."
He acquired the property while Santa Cruz was a Danish colony, and
he withdrew from the island when it became British.
This distinction does not appear to the Court to be a sound one.
The identification of the national character of the owner with that
of the soil, in the particular transaction, is not placed on the
dispositions with which he acquires the soil, or on his general
character. The acquisition of land in Santa Cruz binds him, so far
as respects that land, to the fate of Santa Cruz, whatever its
destiny may be. While that island belonged to Denmark, the produce
of the soil, while unsold, was, according to this rule, Danish
property, whatever might be the general character of the particular
proprietor. When the island became British, the soil and its
produce, while that produce remained unsold, were British.
The general commercial or political character of Mr. Bentzon
could not, according to this rule, affect this particular
transaction. Although incorporated, so far as respects his general
character, with the permanent interests of Denmark, he was
incorporated, so far as respected his plantation in Santa Cruz,
with the permanent interests of Santa Cruz, which was at that time
British, and though as a Dane he was at war with Great Britain and
an enemy, yet, as a proprietor of land in Santa Cruz, he was no
enemy; he could ship his produce to Great Britain in perfect
safety.
The case is certainly within the rule as laid down in the
British courts. The next inquiry is how far will that rule be
adopted in this country?
Page 13 U. S. 198
The law of nations is the great source from which we derive
those rules respecting belligerent and neutral rights which are
recognized by all civilized and commercial states throughout Europe
and America. This law is in part unwritten and in part
conventional. To ascertain that which is unwritten, we resort to
the great principles of reason and justice, but as these principles
will be differently understood by different nations under different
circumstances, we consider them as being in some degree fixed and
rendered stable by a series of judicial decisions. The decisions of
the courts of every country, so far as they are founded upon a law
common to every country, will be received not as authority, but
with respect. The decisions of the courts of every country show how
the law of nations, in the given case, is understood in that
country and will be considered in adopting the rule which is to
prevail in this.
Without taking a comparative view of the justice or fairness of
the rules established in the British courts, and of those
established in the courts of other nations, there are circumstances
not to be excluded from consideration, which give to those rules a
claim to our attention that we cannot entirely disregard. The
United States having at one time formed a component part of the
British empire, their prize law was our prize law. When we
separated, it continued to be our prize law so far as it was
adapted to our circumstances and was not varied by the power which
was capable of changing it.
It will not be advanced, in consequence of this former relation
between the two countries, that any obvious misconstruction of
public law made by the British courts, will be considered as
forming a rule for the American courts, or that any recent rule of
the British courts is entitled to more respect than the recent
rules of other countries. But a case professing to be decided on
ancient principles will not be entirely disregarded unless it be
very unreasonable, or be founded on a construction rejected by
other nations.
The rule laid down in the
Phoenix is said to be a
recent rule, because a case solemnly decided before the lords
commissioners in 1783, is quoted in the margin
Page 13 U. S. 199
as its authority. But that case is not suggested to have been
determined contrary to former practice or former opinions. Nor do
we perceive any reason for supposing it to be contrary to the rule
of other nations in a similar case.
The opinion that ownership of the soil does in some degree
connect the owner with the property, so far as respects that soil,
is an opinion which certainly prevails very extensively. It is not
an unreasonable opinion. Personal property may follow the person
anywhere, and its character, if found on the ocean, may depend on
the domicile of the owner. But land is fixed. Wherever the owner
may reside, that land is hostile or friendly according to the
condition of the country in which it is placed. It is no
extravagant perversion of principle, nor is it a violent offense to
the course of human opinion, to say that the proprietor, so far as
respects his interest in this land, partakes of its character, and
that the produce, while the owner remains unchanged, is subject to
the same disabilities. In condemning the sugars of Mr. Bentzon as
enemy property, this Court is of opinion that there was no error,
and the sentence is
Affirmed with costs.
