equity. The disability to sue is personal. It takes away from the king's enemies the benefit of his courts, whether for the purposes of immediate relief, or to give assistance in obtaining that relief elsewhere." : I would ask the attention of the counsel for the claimants to this decision. It is singularly applicable to the peculiar features of their case, and to the nature of the proceeding here: aliens adhering to the king's enemies, shall derive no benefits through his courts. After such decisive authorities, it must be unnecessary to multiply them. They are too numerous to admit of a minute examination, and I shall only refer to a few others, which prove incontestably that an alien enemy, commorant in his own country, cannot sue in the courts of the other. Sparenburgh vs. Bannatime, 1 B. & P. 163 in 1797; Mc. Connel vs. Hector, 3 B. & P. 113, 1802; Le Bret vs. Papillon, 4 East, 502, 1804; D'Luneville vs. Philips, 5 B. & P. 97, in 1806; and this surely is all that is necessary to establish. For if neither of two belligerents can sue the other, how is either to be sued? To prove that neither can sue, is all that can be proved. But Beswicke & son proceed by an agent, and I shall cite one other authority to show, that in the common law courts they derive no advantage from that circumstance. The case to which I allude, is that of Raphael Brandon against Nesbit, 6th D. & E. 23. It was an action on a policy of insurance, effected by the plaintiff on account of alien enemies, resident in France, and who were indebted to him the plaintiff, a British subject, in a sum exceeding the amount of the policy, and he intended to reimburse himself in part by a recovery in this suit. Lord Kenyon decided, that an action would not lie, either by or in favour of an alien enemy, under such circumstances. That, what he could not do directly, he should not do indirectly. : This is precisely the case here, and brings the common law authorities directly to the point before the court. The case of Bristow against Towers, in the same book, page 35, is similar in principle. Having, as I think, sufficiently ascertained that alien enemies, commorant in their own country, cannot sue in the common latv courts, it is proper to examine what are the principles and prac : tice adopted by courts proceeding according to the law of nations and of war. The first authority to which I shall refer, in pursuing this inquiry, is Bynkershoeck. For of all writers on public and general law, he is the most lucid and satisfactory, on the particular subjects of which he treats. In the 25th chapter of his treatise on the law of war, at the head of the 8th section, the learned translator lays it down, as the clear and indubitable result of his author's reasoning, "that one who resides in an enemy's country, under a safe conduct from the sovereign, may sue and be sued." This is the principle adopted by the common law courts. In the 7th chapter of this treatise will be found what the author considers, in this respect, the disabilities of alien enemies, not thus in the country. In order to meet the remarks which were made upon it, I will state it with some precision. The author says, "that except in the case where there is a mutual commerce permitted by both belligerents, an alien enemy has no "persona standi in judicio." This phrase is rendered, by the learned translator, "no right to be heard, as plaintiff in courts of justice," and this explanation is relied on to support the right of the claimants to be heard. It is extremely doubtful, I think, whether this be a just exposition of these words; but it is perfectly immaterial whether it be or not. Admit, for a moment, that by these words, the author means to say, that an alien enemy "cannot be heard as plaintiff in a court of justice;" and admit also, all that was said by the counsel, that the present claimants must be considered, not as plaintiffs, but defendants; that in common law language, they are not suing, but sued; and how does it aid them? It is very obvious, that this mysterious sentence, is but part of the law which Bynkershoeck means to state. It is but part of what he does state on the subject. He here says, that an alien enemy can have "no persona standi in judicio," " cannot be heard as plaintiff in courts of justice." And in the next section he proceeds-" moreover, if you do not permit your enemy to bring actions, neither can you, with justice, suffer them to be brought against your enemy;" and then goes on to reprobate, in very decisive language, a different course which had once been permitted by the Dutch government-so that the explanation of the learned translator may be permitted to remain as altogether harmless, and not at all at variance with the general law established by the context; which indubitably is, that the subject of one belligerent, cannot have a legal personal standing in the courts of the other. He cannot appear or be heard in them, except in the cases which have been mentioned. He is totally ex lex. In the language of one of the English authorities, "he cannot have the benefit of the king's courts." Adopting this as the law, it becomes immaterial to inquire, whether the claimants must be viewed as plaintiffs or defendants; whether the proceeding is by, or against them. But surely they are not in the situation of ordinary defendants. In the first place, they are not brought here by any compulsory process. They appear here voluntarily, to assert and prosecute a right, not to defend property, which is demanded of them and in their possession, but to demand and recover property, the possession of which they have lost-not to resist an injury threatened, but to claim a benefit alleged to be withheld. And this is precisely what even the most doubtful authorities say they shall not be permitted to do. Sir William Scott, who, when his opinions are not influenced by the executive authority, or by the peculiar situation and policy of his nation, is great and high authority, has adopted these principles in their whole extent. "In time of war," he says, "there is a total inability to sustain a contract, by an appeal to the tribunals of the one country, on the part of the subjects of the other. In the laws of almost every country, the character of alien enemy carries with it a disability to sue, or to sustain, in the language of the civilians, a persona standi in judicio. The peculiar law of our own country, applies this principle with great rigour. The same principle is received in our courts of the law of nations; they are so far British courts, that no man can sue therein, who is a subject of the enemy, unless under particular circumstances, that pro hac vice discharge him from the character of enemy." The same principle then is received in the Admiralty and Common Law Courts. And nothing more is requisite than to conform its application to the nature of the subject in controversy, and to the proceedings of the respective courts. The proceedings in one are in personam, in the other in rem. If in the one, the benefit of enforcing a personal contract is withheld, so in the other must be withheld the benefit of claiming and demanding the thing or property in dispute. In the one, he shall not be entitled to a proceeding, by means of which he may recover the value of the property he pursues, nor in the other the property itself. : Sir William Scott, has not only recognized these principles in theory, but has evidently adopted them in practice. Whereever the character of the claimant, or the property seemed at all tinctured with hostility, the claim has either been rejected, or the property condemned. The grounds on which the cases of the Walsingham packet, that of the Juffrowe Louisa Margaretha and others, referred to in the case of the Hoop, were decided, although not precisely to this point, have their origin in the same principle. But I think the case of the Two Brothers, 3 Rob. 134, is very conclusive. It appears from that case, that even where property is captured within the limits of a neutral country, the original owners cannot claim it in the courts of the country, at war with theirs. Their relief must be obtained, through the neutral government of the violated territory. The property being hostile, as between the captors and owners was liable to capture, unless saved by the situation in which it was placed. If so, the government exercising jurisdiction over the place where it was taken, must do justice to the party, whom it has permitted to be injured. That is the only way in which he can obtain it. This principle is certainly incontestable, and will presently receive an application to this case. Two recent cases have been referred to by the counsel for the claimants, as authorizing the reception of this claim. The Hope decided at doctor's commons by Sir William Scott, and the Zodiack in the vice admiralty court, at Halifax. But on examining these cases, they will be found to be wholly unconnected in principle with this. The objection to this claim is, that it is of-fered by, and on behalf of an enemy, who, neither by municipal nor general law, has a right to appear in our courts. But the moment he is divested even temporarily of his hostile character, he is restored to this right. He can be thus exonerated from the character of an enemy, either by an express act of the sovereign power of our own country, or by being placed in a situation, where the law of nations interdicts all acts of hostility from being committed by or against him. This was precisely the situation of the Hope and the Zodiack. The owners of the first, VOL. XXI. 0 were completely exonerated from the character and consequences of hostility, by a license from the British government, which, as to that government, legalized the transaction in which they were concerned, and quo ad that, rendered them friends. In every thing that related to it, they were in the situation of neutrals at least. They had an undoubted right therefore, to be heard in the courts of England on every question connected with that voyage. In their character of authorized and permitted traders, they were in a capacity to claim, and therefore to receive restitution. This is a very clear case. Shew a license from this government to Messrs. Beswicke and son to import these goods, and there is an end to the question. They shall not only be permitted to claim, but they shall have restitution. The case of the Zodiack is equally clear. She was captured by a British Cartel schooner, which was interdicted expressly by her own government, and by the law of nations, from committing any act of hostility during the voyage in which she was so employed as a Cartel. Every hostile act, therefore, on her part was a violation of the faith of her own government, and of universal law. Every capture by her was illegal and void ab initio. She was not during that voyage, the enemy of the American vessel; neither could capture the other. If the Cartel had been brought in here as a prize, she must have been restored instantly, on the ground that she was devested of her hostile character, by the flag she bore. The American vessel could not be captured by her therefore, as an enemy. The faith of the government was pledged, that her Cartels should comply with the usages of war, which require that they shall make no captures, and if they do, that they shall be restored. It is admitted in the case of the Zodiack, that the claim is received and restitution awarded, by reason of its own peculiarity. It is an exception to the general laws and rules of war, and cannot be adjudged on general principles. I shall not quote Chitty's law of nations as an authority. It contains nothing original or new. It is but a hasty and imperfect collection of authorities, as to modern usages and practice, chiefly taken from Sir William Scott's decisions. All he says on the question before us, is a literal extract from the judgment in the case of the "Hoop." |