The "Indian Chief" 3 C Robinson 12, 165 ER 367

Report Date: 1801

[3-C Robinson-12] THE " INDIAN CHIEF "-(Skinner, Master). Feb. 27, 1801.

Original Eng. Rep. version, PDF

National character of Mr. Johnson, settled in England as American consul, removing, in transitu, during a voyage to the enemies' colonies, &c.

[SC 1 Eng. Pr. Cas. 251. Referred to, The " Aina, " [1854] 2 Sp. Ecc and Ad. 314 The " Laconia, " [1863] Br. and L. 144; Udny v Udny, [1869] LR 1 H. L. (Sc.)

3 C Robinson 13, 165 ER p368

451; Re Tootal's Trusts, [1882] 12 Ch D. 534; Companhia de Mocambique v British South Africa Company, [1892] 2 Q. B. 372; Daimler Company, Limited v Continental Tyre and Rubber Company, Limited, [1916] 2 A. C. 311; Tingley v Müller, [1917] 2 Ch 175; The " Hypatia, " [1917] P. 39; The " Hamborn, " [1918] P. 21, affirmed [1919] A. C. 993; The " Lützow, " [1918] A. C. 436; Rodriguez v Speyer, [1919] A. C. 128; Casdagli v Casdagli, ibid. 157.]

This was a case of a ship and cargo seized in the harbour of Cowes, on a voyage from Batavia to Hamburgh, in which two questions arose, respecting the national character of Mr. Johnson, claimant of the ship, and of Mr. Miller, claimant of the cargo.

For the Captors, King's Advocate. The ship is claimed on behalf of Mr. Johnson as an American subject, having been taken on a voyage commencing at London 1795, to Madeira, from thence to Madras, Tranquebar, and Batavia, and back to Hamburgh. As the property of an American subject, so employed in a trade from the colonies of the enemy to ports not of this country, nor to the ports of this country, it would be liable to the objection of being engaged in an illegal commerce: it must at least be subject to the question of law, which is reserved in this point in other cases: but the more immediate objection to which this ship is liable, is, that it is the property of a British subject, and therefore liable to confiscation, for being engaged in trading with the enemy. The circumstances of Mr. Johnson's history which affect his national character, are these; he was born in America, but left that country so long ago as 1771, and settled as a merchant in this town. During the American war 1778, he left England, and settled in France as one of a house of trade, reserving to himself, in the articles of partnership, the liberty of returning to America when he thought [3-C Robinson-13] proper. In 1785, however, Mr Johnson returned again to England, and continued in England, as a merchant of this place, till September 1797; during the latter part of that period, from 1790, he acted as American consul in this country, but till that time he had no sort of American connection super-added to the character which a person naturally acquires by residence; whether he was invested with that title, or not, is perfectly immaterial as to the legal effect of determining his national character; as it has been decided, in various instances, that the national character of a consul is not affected by the title he bears, but is to be judged of simply as the character of other merchants, by residence, and the various other circumstances that constitute the character of other persons. The affidavit that has been brought in from Mr. Johnson, states, " That Mr. Johnson considered himself as an American subject, and that the American government considered him as an American subject, and declared him so to be by an act of the government, January 15, 1785, and that he always entertained an intention of returning "; but it is not on the bare intention, nor on the understanding of particular persons, that the Court will judge. The Court will look to the great facts of the case, and it will find them to be, that Mr. Johnson lived in this country twenty-six years; that he did not remove himself from his British residence till the month of September 1797, two years. after the commencement of this transaction; the voyage began in March 1795, and the capture did not take place till November 1797; during that time the vessel is to be considered in transitu; and it would by [3-C Robinson-14] opening a wide door to fraud, if persons engaged in illegal transactions could be allowed to disengage themselves from the penal consequences of those acts, by a mere removal whilst the property is in transitu, and just before they may expect to reap the profits of their illegal commerce; on these grounds, it is submitted, that Mr. Johnson is to be considered as a British merchant during the time of this voyage, and that as such he has exposed his property in this vessel to confiscation. by engaging in trade with the enemies of this country.

On the part of the Claimant, Arnold and Sewell. As to the illegality of the purpose with which this ship set out, considering Mr. Johnson as an American subject, it is not immaterial to observe, that it was not agreeable to his intentions, nor in consequence of any directions coming from him, that the ship was to return to Europe: she went out under the management of Mr. Hewlet the supercargo, with full powers committed to him to charter the vessel in the East Indies; as the second attestation of Mr. Johnson, states, " that it was his design the ship should go from the East Indies to America, if an advantageous freight could be obtained it was at Madras that the present engagement was entered into by Mr. Hewlet, who is a young man, and might not foresee all the consequences of such an engagement; parties are in

3 C Robinson 15, 165 ER p369

general undoubtedly answerable for the acts of their agents, but this rule is not to be held so strictly as not to be subject to favourable exceptions, especially in cases like the present, where there was no intention at all imputable to the principal, that the [3-C Robinson-15] matter in question should be so conducted, and where it has arisen from error rather than fraud on the part of the agent himself; as it is evident that if there had been any conception of an illegal traffic against the laws of this country, on the part of the persons concerned in it, the vessel would not have come voluntarily into a port of this country. The principal question that has been made, however, respects the national character of Mr. Johnson: It is said, that Mr. Johnson's removal did not take place till 9th of September 1797, a short time previous to the capture of the vessel, 1st of November 1797, and it is said that he is entitled to no benefit from the bare and latent intention, which he describes himself to have entertained long' before, of returning to America: So far is it from being a latent intention, that it is evident, in a letter written in March preceding to his creditors respecting his effects, in which he expresses an anxious wish to remove himself and family entirely to America, and states the terms on which he hoped to obtain their permission: subsequent to that time, he stayed only under the creditable motive of not removing without his creditors' consent. In September 1797, however, he had actually abandoned this country, and he had done everything in his power to quit this country from the moment that he set foot on board the vessel to return to America. From this time he is to be considered as an American; as to any fraud to which such an allowance may be exposed, the Court will be on its guard against such attempts when they appear; but it will not determine a present case, where there can be no suggestion of such a design, by anticipation [3-C Robinson-16] of circumstances of a different nature which may possibly appear in other cases.

The only imputation of fraud that could be raised in this case would be, that it was a mere temporary and colourable removal; but that cannot be suggested; Mr. Johnson's intention, founded on the fairest most natural and most credible motives, still continues; and that it was not hastily taken up, appears from the terms of the partnership in France, 9th June 1781, in which it is expressly stipulated, that he should be at liberty to remove to America, on giving due notice, and that on that event the partnership should cease. As to the mere legal effect of such a removal in transitu, as it is called, there are cases in which restitution has been allowed, in situations much stronger against the claimant than the circumstances of the present case. In the case of Mr. Curtissos, he himself was in the enemy's country at the time of capture, but on proof of his real intention of returning to England, his property was restored to him; and in the case of Haassam and Ernst, Mr. Ernst was resident in Amsterdam at the commencement of the transaction; but it being a temporary residence, and his intention of returning to Copenhagen being proved, he obtained restitution of his share.

In the case of Mr. Dutilth (Fair American, Adm. 1796) also, he has obtained restitution (a), though at the time of sailing he was resident in the enemy's country.

[3-C Robinson-17] Judgment-Sir W. Scott: This is the case of a ship seized in the port of Cowes, where she came to receive orders respecting the delivery of a cargo taken in at Batavia, with a professed original intention of proceeding to Hamburgh; but on coming into this country for particular orders, the ship and cargo were seized in port. It does not appear clear to the Court, that it might not be a cargo intended to be delivered in this country, as many such cargoes have been, under the Dutch property act: I mention this to meet an observation that has been thrown out, " that it is doubtful whether the ship might not be confiscable on the ground of being a neutral ship coming from the colony of the enemy, not to her own ports, or to the ports of this country. " I cannot assume it as a demonstrated fact in the case, that the cargo was to be delivered at Hamburgh. The vessel sailed in 1795, and as an American ship with an American pass, and all American documents; but nevertheless, if the owner really resided here, such papers could not protect his vessel: if the owner was resident in England, and the voyage such as an English merchant could not engage in, an American residing here and carrying on trade, could not protect his ship merely

(a) But see also, The, Hannibal " and " Pomona, " Lords, 1800, in which his property was condemned according to the circumstances of his, residence, at the time of capture.

3 C Robinson 18, 165 ER p370

by putting American documents on board; his interest must stand or fall according to the determination which the Court shall make on the national character of such a person.

There are two positions which are not to be controverted; that Mr. Johnson is an American generally by birth, which is the circumstance that first impresses itself on the mind of the Court; and also [3-C Robinson-18] by the part which he took on the breaking out of the American war. He came hither when both countries were open to him; but on the breaking out of hostilities, he made his election which country he would adhere to, and in consequence thereof went to France. As to the doubt that has been suggested, whether he would be deemed an American, not having been personally there at the time of the declaration of the independence of that country; I think that is sufficiently cleared up, by the circumstance of his being adopted as such by the act of the American government (18th Jan. 1785) declaring him and his family to be American subjects, and by the official character which that government has entrusted to him; I am of opinion, therefore, that he has not lost the benefit of his native American character. He came however to this country in 1783, and engaged in trade, and has resided in this country till 1797; during that time he was undoubtedly to be considered as an English trader; for no position is more established than this, that if a person goes into another country, and engages in trade, and resides there, he is, by the law of nations, to be considered as a merchant of that country; I should, therefore, have no doubt in pronouncing that Mr. Johnson was to be considered as a merchant of this country, at the time of the sailing of this vessel on her outward voyage. That leads me to take a view of the circumstances of this case; the ship went out in 1795 with Mr. Hewlet on board, and Mr. Johnson says, " he sent out Mr. Hewlet as supercargo, and put the vessel under his control to take freight for America, but that his designs were frustrated by various circumstances "; and the ship actually went to [3-C Robinson-19] Madeira, Madras, Tranquebar, and Batavia, and from thence to Cowes, where she was arrested.

Now, there can be no doubt that if Mr. Johnson had continued where he was at the time of sailing, if he had remained resident in England, it must be considered as a British transaction; and therefore a criminal transaction, on the common principle that it is illegal in any person owing an allegiance, though temporary, to trade with the public enemy. But it is pleaded that he had quieted this country before the capture, and that he had done this in consequence of an intention which he had formed of removing much earlier, but that he had been prevented by obstacles that obstructed his wish: to this effect the letter of March 1797 is exhibited, which must have been preceded by private correspondence and application to some of his creditors. It does, I think, breathe strong expressions of intention, and of an ardent desire to get over the restraint that alone detained him; and it affords conclusive reason to believe that if he had been a free man, and at liberty to go where he pleased, he would have removed long before; and that he was detained here as a hostage, as he describes himself, to his creditors, on motives of honour creditable to his character. On the 9th of September 1797, he did actually retire; of the sincerity of his quitting this country there can hardly be a doubt entertained; it is almost impossible to represent stronger or more natural grounds for such a measure; and I do not think the Court runs any risk of encountering a fraudulent pretension, put forward to meet the circumstances of the moment, without anything of an original and bonâ fide intention at the bottom of it.

[3-C Robinson-20] The ship was sent out under the management of the supercargo, and it is said that Mr. Hewlet exceeded his commission: The affidavit does not go so far; it does not appear from that that the agent had not the power to enter into such an engagement; but this, I think, appears clearly, that it was the understanding both of Mr. Johnson, and of his agent Mr. Hewlet, who had been his clerk, and to whom he refers for a confirmation of his avowed design of removing, that before the Completion of such a voyage, Mr. Johnson would be in America; therefore if the illegality of the voyage must be supposed to have presented itself to their minds, as a British transaction, owing to Mr. Johnson's residence in England, there was reason enough for them to conclude that Mr. Johnson would be removed; and, on that view of the matter, although it is certain that an agent would bind his employer in such a case, there is ground sufficient to presume that the agent acted fairly and bona fide, and under the expectation that Mr. Johnson would be returned to America.

3 C Robinson 21, 165 ER p371

The ship arrives a few weeks after his departure; and taking it to be clear, that the national character of Mr. Johnson as a British merchant was founded in residence only, that it was acquired by residence, and rested on that circumstance alone; it must be held, that from the moment he turns his back on the country where he has resided. on his way to his own country, he was in the act of resuming his original character, and is to be considered as an American: The character that is gained by residence ceases by residence: It is an adventitious character which no longer adheres to him from the moment that he puts himself in motion, bona fide, to quit [3-C Robinson-21] the country, sine animo revertendi. The Courts that have to apply this principle, have applied it both ways, unfavourably in some cases, and favourably in others. This man had actually quitted the country. Stronger was the case of Mr. Curtissos (The "Snelle Zeylder, "Lords, April 25, 1783). He was a British-born subject that had been resident in Surinam and St. Eustatius, and had left those 'settlements with an intention of returning to this country; but he had got no farther than Holland, the mother-country of those settlements, when the war broke out (a). It was determined by the Lords of Appeal, that he was in itinere, that he had put himself in motion, and was in pursuit of his native British character: and as such, he was held to be entitled to the restitution of his property. So here, this gentleman was in the actual pursuit of his American character: and, I think, there can be no doubt that his native character was strongly and substantially revived, not occasionally, nor colourably, for the mere purposes of the present claim; and therefore I shall restore this ship.

[3-C Robinson-22] IN THE SAME CASE. March 5, 1880. National character. Mr Millar, resident in Calcutta as American consul, deemed a British merchant: his property taken in trade with the enemy condemned.

As to the cargo, on a claim given on behalf of Mr. Millar, an asserted American subject, and American consul resident at Calcutta.

On the part of the captors, The King's Advocate contended that Mr. Millar had been a long time resident at Calcutta; that he was described by the supercargo (to the 12th interrogatory), as being the sole owner of this cargo, purchased in the enemy's colony; and that on these grounds his claim could not be sustained.

On the part of the claimant, Arnold and Laurence. It is not contended that a person living in a foreign country, and carrying on trade there, would be privileged by the character of consul of another state, or protected from having his national character determined by the place of his residence; but in this case a more important question arises, on which it is contended, on the part of Mr. Millar, that he would not acquire the British character by a residence in Calcutta. To invest a person with a national character arising from residence, it is necessary that such residence should be within the limits of the territory of the country; in this respect, therefore, there is a material difference between a residence in Calcutta (a), and a residence within the dominions of a sovereign state in Europe. The dominions and rights of sovereignty of Calcutta have never been assumed by this government, even through the medium of the East India Company, [3-C Robinson-23] who possess the beneficial interest in those ports; they hold whatever they possess by a sort of subinfeudation under the Mogul, in whom the sovereignty still resides; and it has been an object of great care and delicacy

(a) The order of reprisals against Holland, issued Dec. 1780. The " Snelle Zeylder " was captured 1st Jan. 1781; Mr. Curtissos had gone to Surinam in 1766, and from thence to St. Eustatius, where he stayed till 1776; from thence he went to Holland, to settle his accounts, and with an intention, as was said, of returning afterwards to England, to take up his final residence; but he did not return to England till 27th April 1781. The ship and goods had been condemned in the Court of Admiralty, 5th March and 10th April 1781, as Dutch property (as it was stated in the appeal), unknown to Mr. Curtissos.

Some other claims of Mr. Curtissos (The " Jalousie, " The " Vrow Maria, " Radau, Feb. 19, 1782) had been brought before the Court of Admiralty, and were restored on a full disclosure of the circumstances attending his situation, before the decision of the Lords in The " Snelle Zeylder. "

(a) A case has lately occurred before the Lords of Appeal, in some respects, similar to the present, on a claim of Armenian merchants resident in Madras, for property taken in trade with Manilla. See The " Angelique, " Streng, Appendix B.

3 C Robinson 24, 165 ER p372

always on the part of this country, to avoid the use of any terms in public instruments, that might appear to militate, in any degree, against those sovereign rights.

Court. Was there not a determination of the King's Bench, that our navigation laws extended to our settlements in that country; and was it not found necessary to pass a particular act of parliament to liberate vessels seized there for a breach of those laws?

Counsel. As to British subjects, it is apprehended that might very fairly be allowed, without affecting the argument in this case. British subjects can hold nothing over which the government of this country may not have a sovereign and superintending power; and the regulations of trade, in respect to British subjects there, are as broad and sweeping as they could be here; they have been the same at all times since our first establishment on that coast, and whilst we held only a fort and factory, merely as reminders of the country; but the question respecting a foreign residence there, is very different from that, which depends chiefly on the quality of an original British merchant, settling there under the immediate protection and regulation of his own country: a local submission there must be in either case, from the first law of nations, in respect to the peace and order of society; if a foreigner is guilty of a disturbance of the peace, he would be [3-C Robinson-24] amenable to the local justice of the place; but he would not by that means acquire a national character, any more than natives of the countries of the east, living within our settlements: They do not acquire a British character by living under our settlements, nor are they amenable to British laws. How then can it be said, that a foreigner of another nation would acquire a national character more than these natives: the Danes, it is notorious, having no possessions, but only a factory, live about the country, without acquiring the British character. The Americans, more particularly, seem excluded from all benefit of residing there, by the 13th article of the treaty between America and this country, 1794; and therefore to subject them to inconvenience from such a residence, without allowing them to derive any privilege from it, would be manifestly unjust. As to the particular situation of this gentleman in Calcutta, it is farther observable, that it differs materially from consuls carrying on trade in countries where they reside. Mr. Millar does not appear to be connected in any way with the trade of Calcutta: he was living there merely as an official person, not engaged in the trade of that country; it was surely competent to him to give directions from thence, for any trade that he might carry on with other parts of the world. But taking him to be an American, a second question has been introduced, whether he does not fall within the scope of the order of council, which permits neutrals to trade from the colony of an enemy to their own ports only; and whether that order does not apply to the settlements in the East Indies, as well as to the West. To maintain such [3-C Robinson-25] an interpretation would be a most unjustifiable extension of the spirit of the order. The words are Islands and Settlements. But it is to be remembered that the order was substituted in the place of two other orders applying directly to the West India islands. After Holland and Spain had become enemies, the term Islands did-not correctly apply to the nature of their colonies in the West Indies, and therefore the term was altered; but without giving ground to say, that it was intended to prevent neutrals from carrying on a trade from the East Indies, except to their own ports. Does it rest on the common principle? Was it a trade ever prohibited in time of peace? The principle of restriction in the East India trade was, that it should be restricted to one company exclusively, as far as the trade of this country was concerned; but the prohibition did not extend to prevent other neutral nations from trading there. To slip in such a prohibition, by a mere construction of the later order of council, which was itself substituted only in the place of others (which in their terms expressly negatived such an inference), is an assumption to which the Court will not accede.

In reply, The King's Advocate said, It was unnecessary to enter into a nice distinction upon the question, in whom the high sovereignty of that country resided; it was sufficient, if there was that sort of imperium in imperio which marked the national character of those who live under it: the sovereignty of the British nation was complete over those who resided there under their protection, to give it the supreme power of life and death: it [3-C Robinson-26] was to them that Mr. Millar came accredited, and not to the Mogul; as living amongst the English, and under their protection, he was necessarily subject to the same laws as Englishmen residing there: those

3 C Robinson 27, 165 ER p373

laws forbid the trading between British subjects and the enemy. There was a case in the last war which appears to be conclusive on the circumstances in this case'; there the question turned on the property of a person living in the Dutch factory of Cochin, and it was contended that he was to be considered as a subject of the rajah of Cochin; but the judgment of the Lords of Appeal condemned his property, as the property of a person living in a Dutch factory, and therefore liable to be considered as a Dutch merchant.

Judgment-Sir W. Scott: This is a case of a cargo seized in the harbour of Cowes, where the ship had put in for final orders, her professed original destination being Hamburgh. A claim is given for this cargo as the property of a Mr. Millar, described to be American consul at Calcutta. The proofs of property are not satisfactory, and therefore further proof must be demanded, if it be necessary, to determine the matter upon that ground. But the captors are willing to admit the sufficiency of the present proof, for the purpose of obtaining the judgment of the Court upon points of law, which they contend to be decisive against the claim, however supported in point of fact. On the part of the claimant many grounds have been taken: I am first reminded that he was American consul, although it is not distinctly avowed that his consular character [3-C Robinson-27] is expected to protect him; nor could it with any propriety or effect, it being a point fully established in these Courts, that the character of consul does not protect that of merchant united in the same person. It was so decided on solemn argument in the course of the last war, by the Lords, in the cases of Mr. Gildermester, the Portuguese consul in Holland, and of Mr. Eykellenburg, Prussian consul at Flushing (a). These cases were again brought forward to notice in the case of Mr. Fenwick, American consul at Bourdeaux in the beginning of this war; on whose behalf a distinction was set up in favour of American consuls, as being persons not usually appointed, as the consuls of other nations are, from among the resident merchants of the foreign country, but specially delegated from America, and sent to Europe on the particular mission, and continuing in Europe principally in a mere consular character. But in that case as well as in the case of Sylvanus Bourne, American consul at Amsterdam (" Orion, " Cushing, Admiralty, March 24, 1797), where the same distinction was attempted, it was held that if an American consul did engage in commerce, there was no more reason for giving his mercantile character the benefit of his official character, than existed in the case of any other consul. The moment he engaged in trade, the pretended ground of any such distinction ceased; the whole of that question therefore is as much shut up and concluded as any question of law can be.

Another topic has rather been insinuated, than expressly urged, that Mr. Millar was not a general merchant of Calcutta; but whether he was a general merchant or not, is totally immaterial; for if this was even his first adventure, still in this [3-C Robinson-28] transaction he must be taken as a merchant, and can be considered in no other character: a third ground is, that the trading was not direct to Batavia, but that the ship sailed first to Tranquebar, and from thence took a cargo to Batavia; with the proceeds of which cargo the present cargo was purchased and taken in on account of this gentleman; but the mere prior interposition of a neutral port will not alter the nature of the offence, which consists in this, that the cargo, on which the present question arises, was taken in at the enemy's port. If Mr. Millar is to be taken as a British merchant, the outward voyage will be immaterial, and the circumstance of purchasing the cargo in question at the enemy's port, will be sufficient to make it liable to the penalty of confiscation. Another ground is, that he was not resident in the British territory, for that the sovereign of this country is not in possession of Bengal, with the same imperial rights as belong to the Mogul. It is contended on this point, that the King of Great Britain does not hold the British possessions in the East Indies in the right of sovereignty, and therefore that the character of British merchants does not necessarily attach on foreigners locally resident there. But taking it that such a paramount sovereignty, on the part of the Mogul princes, really and solidly exists, and that Great Britain cannot be deemed to possess a sovereign right there; still it is to be remembered, that wherever even a mere factory is founded in the eastern parts of the world, European persons trading under the shelter and protection of those establishments, are conceived to take their national character from

(a) "Concordia, " Lords, Feb. 5, 1782; The "Het Huys Brandenburg, " Lords, July 16, 1784; " Pigou, " Lords, July 18, 1797.

3 C Robinson 29, 165 ER p374

[3-C Robinson-29] that association under which they live and carry on their commerce. It is a rule of the law of nations, applying peculiarly to those countries, and is different from what prevails ordinarily in Europe and the western parts of the world, in which men take their present national character from the general character of the country in which they are resident; and this distinction arises from the nature and habit of the countries: In the western parts of the world alien merchants mix in the society of the natives; access and intermixture are permitted; and they become incorporated to almost the full extent. But in the East, from the oldest times, an immiscible character has been kept up; foreigners are not admitted into the general body and mass of the society of the nation; they continue strangers and sojourners as all their fathers were-Doris amara suam non intermiscuit undam; not acquiring any national character under the general sovereignty of the country, and not trading under any recognised authority of their own original country, they have been held to derive their present character from that of the association or factory, under whose protection they live and carry on their trade.

With respect to establishments in Turkey, it was declared in the case of Mr. Fremeaux (a) in the last [3-C Robinson-30] war, that a merchant carrying on trade at Smyrna, under the protection of the Dutch consul at Smyrna, was to be considered as a Dutchman, and in that case, the ship and goods belonging to Mr. Fremeaux, being taken after the order of reprisals against Holland, were condemned as Dutch property. The same in China, and I may say generally throughout the East, persons admitted into a factory, are not known in their own peculiar national character; and being not admitted to assume the character of the country, they are considered only in the character of that association or factory. The case alluded to (11 Rachel, " supra, p. 28), in which Lord William Murray was concerned as agent claiming for Mr. Cohen), was this; a Jew living in a Dutch establishment under the sovereignty of the rajah of Cochin, on the coast of Malabar, claimed under the character of a subject of the rajah of Old Cochin (a), but he was held by the Lords of Appeal [3-C Robinson-31] to be a Dutchman; and I remember perfectly well in the later case of Mr. Constant de Rubecque it was the opinion of the Lords, that although he was a Swiss by birth, and no Frenchman, yet if he had continued to trade in the French factory in China, which he had fortunately quitted before the time of capture, he would have been liable to be considered as a Frenchman (41 Etrusco, " Lords, Dec. 8, 1798). I am, however, inclined to think that these considerations are unnecessary, because though the sovereignty of the Mogul is occasionally brought forward for purposes of policy, it hardly exists otherwise than as a phantom: It is not applied in any way for the actual regulation of our establishments. This country exercises the power of declaring war and peace, which is among the strongest marks of actual sovereignty; and if the high, or as I may almost say, this empyrean sovereignty of the Mogul, is sometimes brought down from the clouds, as it were, for purposes of policy, it by no means interferes with that actual authority, which this country, and the East India Company, a creature of this country, exercises there with full effect. The law of treason, I apprehend, would apply to Europeans living there in full force; it is nothing to say that some particular parts of our civil code are not applicable to the religious or civil habits of the Mahomedan or Hindoo natives; and that they are, on

(a) " Twee Frienden, " Angel, Lords, July 12, 1784). The attestation of Mr. Fremeaux stated, that he was born at Smyrna, and had ever resided there, with the exception of a short trip to France: that the ship and goods claimed by him were his sole property; that none of His Majesty's enemies had any share therein, and that he had never been a member of any Dutch factory or company established at Smyrna, or in any other part of the Ottoman dominions. The ship was sailing from Amsterdam to Smyrna, under Dutch colours, with a Dutch pass, and documented as a Dutch ship. The printed papers of appeal contain a full and particular account of the nature of the Dutch establishment in Smyrna. For which, see Appendix, No. 1.

(a) In the libel of appeal, the claimant, Mr. Cohen, was described as an inhabitant of Cochin China, and as a subject of the Emperor of China; and this is sometimes spoken of as a Chinese case: but the mistake was corrected in other parts of the proceedings: he was, in fact, a resident in Koetsiem de Sima, in the territories of the Rajah of Koetsiem, or as it is called by the English, Cochin, on the coast of Malabar, and claimed as a subject of the rajah of Koetsiem.

3 C Robinson 32, 165 ER p375

that account, allowed to remain under their own laws. I say this is no exception; for with [3-C Robinson-32] respect to internal regulations, there is amongst ourselves in this country, a particular sect, the Jews, that in matters of legitimacy, and on other important subjects, are governed by their own particular regulations, and not by all the municipal laws of this country, some of which are totally inapplicable to them. It is, besides, observable, that our own acts of parliament and our public treaties have been by no means scrupulous in later times in describing the country in question as the territory of Great Britain. In the American treaty (19th Nov. 1794, Art. 13) the particular expression occurs, " That the citizens of America shall be admitted and hospitably received in all the seaports and harbours, of the British territories in India. " The late case in the Court of King's Bench, Wilson v Marryat (8 Term. Rep. 34) arising upon the interpretation of that treaty (and in which it appears to have been the inclination of that Court to hold our possessions in India to come within the operation of the navigation acts), gave occasion to an act of parliament, in which the term British territory is borrowed from the treaty. There is likewise a general act of 37 Geo. III. c. 117, for the allowance of neutral traders in India, which expressly uses the same term; reciting that " Whereas it is expedient that the ships and vessels of countries and states in amity with His Majesty should be allowed to import goods and commodities into, and to export the same from the British territories in India. " It is besides an obvious question, to whom are the credentials of this gentleman as consul addressed? Certainly to the British government-to the East India Company and not to the Mogul. What is [3-C Robinson-33] the condition of a foreign merchant residing there? From attention to the argument of a gentleman whose researches have been particularly turned to subjects connected with the East, I have made enquiry of a person of the greatest authority on such a subject (a) who is just returned from the highest judicial situation in that country; and the result is (as on general principles I should certainly have expected), that a foreign merchant resident there is just in the same situation with a British merchant, subject to the same obligations, bound by the same duties, and amenable to the same common authority of British tribunals.

It is said to be hard that Mr. Millar should incur the disabilities of a British subject at the same time that he receives no advantage from that character; but I cannot accede to that representation; because he is in the actual receipt of the benefit of protection for his person and commerce from British arms and British laws, under an existing British administration in the country. He may be subject to some limitations of commerce incident to such establishments, which would not occur in Europe; but he must take his situation with all its duties, and amongst these duties, the duty of not trading with the enemies of this country.

I am of opinion, therefore, that he must be considered as a British merchant; and that his property, as the property of a British merchant, taken in trade with the enemy, is liable to [3-C Robinson-34] condemnation. I am under the necessity of pronouncing this determination, and of condemning these goods as droits and perquisites of Admiralty, being seized and taken in port.

If the party thinks that I have decided on a wrong principle of law, he may appeal, and take the benefit of another tribunal; or if he thinks that the principle of law operates on the particular facts of this case with undue rigour; as the property must be condemned as droits of Admiralty, he will have the additional benefit of an application to the Crown, which possesses the only power to determine, how far from any equitable policy or private indulgence, the rigour of the principle of law ought to be relaxed and mollified, upon the special circumstances of this case.