This ship, under American colors, was seized in the river Thames, by the marshal of the admiralty, on the 1st of August, 1812. A claim was given by the master, who was also sole owner of the ship describing himself to be a British subject, and as such entitled to the benefit of the order in council of November, 1812, directing the restitution of British ships under the American flag. It appeared that he was a native of Scotland, and that his wife and family resided in that country, but that he had himself been admitted a citizen of America about sixteen years ago, upon taking All oath that he had been sailing out of the American port for two years; that from the year 1799 till 1805 he had been connected with a house of trade at Glasgow, which had an establishment at New York, and another at Charlestown, and that he had occasionally resided at each of the last-mentioned places; that he had purchased this vessel at public auction in America, and had made three voyages in her, the two first from Charlestown to Kingston, in Jamaica, returning each time in ballast, and the last from Charlestown to the river Thames. The question was, whether, from the residence and employment of this man, he was, quoad this vessel, to be considered as a British subject.[Page 1366]
Sir W. Scott. This ship, when seized by the marshal in the river Thames, was under the American flag, but, according to the account given by the master, was not furnished with the American, or indeed with any pass whatever. It is very difficult to conceive that this was the true state of the case, since the ship was not only American-built but likewise American-owned, as far, at least, as the ostensible character of the claimant is concerned; for though he could not altogether throw off his allegiance to his native country, he had been admitted a citizen of the United States. I cannot conceive, therefore, why the pass was not granted, or what obstacle prevented this man from obtaining so important a document. I must presume that the vessel was furnished with an American pass; but, supposing the case to be otherwise, still, if the ship was furnished with the documents usually granted to American ships, the same rule of law must be applied as if she had been furnished with a regular flag and pass. The ship must be conclusively held to be American property, and consequently subject to condemnation.
It is said, however, that this ship is protected by the order in council issued on the 28th of November, 1812, by which it is directed “that all vessels under the flag of the United States of America which are bona fide and wholly the property of His Majesty’s subjects, and not purchased by them subsequent to the date of hostilities on the part of the United States of America, and which shall have been detained in port under the embargo, or shall have sailed to or from the ports of this kingdom previous to the knowledge of hostilities, and shall have been captured on such voyage, shall be restored to the British owners, upon satisfactory proof being made to the high court of admiralty or the courts of vice-admiralty, to which they shall be taken for adjudication, that the said vessels are bona fide and wholly the property of His Majesty’s subjects as aforesaid, and had been engaged in trade as above described.” A claim has been given for this ship by Mr. Smith, describing himself to be a British subject; and, if he is a British subject, he will) under this order in council, be entitled to restitution.
The question, therefore, comes to this, whether the claimant is, quoad this property, to be considered a British subject. For some purposes he is undoubtedly so to be considered. He is born in this country, and is subject to all the obligations imposed upon him by his nativity. He cannot shake off his allegiance to his native country, or divest himself altogether of his British character by a voluntary transfer of himself to another country. For the mere purposes of trade he may, indeed, transfer himself to another state, and may acquire a new national character. An English subject, resident in a neutral state, is at liberty to trade with the enemy of this country in all articles, with the exception of those which are of a contraband nature; but a trade in such articles would be contrary to his allegiance. Now, the account which he gives of himself is, “that he was born at Falkirk, in Scotland; that during the last seven years he has been chiefly at sea, but, when at home, he has lived, and still lives, at Bathgate, in the shire of Linlithgow, in North Britain; that he is the subject of our sovereign lord the King, but about sixteen years ago he was admitted a citizen of the United States of America, for the purpose of commerce only.” Why, this transaction is for the purpose of commerce. According to his own account, then, he ceased to be a British subject for commercial purposes. He goes on to say, that he was admitted “for the purpose of covering a ship of his own, to enable her to sail without risk of capture, and he was so admitted by the magistrates of Philadelphia, on oath being made that he had sailed out of an American port for two years; that he hath never been admitted a burgher or freeman of any city or town, but, from the year 1799 to the year 1805, the deponent having been connected in a house of trade at Glasgow, which had a house at New York, and another at Charlestown in South Carolina,” so that, from the year 1799 to the year 1805, he might, as far as he was connected with the house at Glasgow, and for that particular branch of his trade, be considered a British subject. But since that time I understand him to say that he has withdrawn altogether from that connection. He says afterward, in answer to the ninth interrogatory, “that he is a North Briton by birth, and when he is at home his place of residence is Bathgate, in the shire of Linlithgow, in North Britain, where his wife and family reside, and where he the deponent hath always resided from the time he was ten or eleven years of age, when he was not at sea or in foreign parts.” The affirmative part of his history, as far as it goes, shows that he lived very much abroad, and principally at New York or Charlestown, in America. True it is that he had no house in either of these places, but he was there as a single man. It is not the mere circumstance of leaving a wife and family in Scotland that will avail him for the purpose of retaining the benefit of his national character. He cannot be permitted to take the advantage of both characters at the same time, and in the same adventure. The utmost that can be allowed to him is, that he should be entitled to the one character or the other, according to the circumstances of the transaction. When the vessel herself is American-built, when the personal residence of the owner, as far as he has any, is in America, (for it does not appear that this man at all resided in Scotland,) it would be difficult to say that it could [Page 1367] be any other than an American transaction. Since the purchase of this ship by Mr. Smith, he has made three voyages: two of them to Kingston in Jamaica, and one to the port of London; but to the ports of Scotland he has never sailed, nor does it appear that he has even visited his wife and family in that country. He has been sailing constantly out of American ports, and his prevailing destination has been to the West India Islands. It is quite impossible that he can be protected under the order in council, which applies only to those who are clearly and habitually British subjects, having no intermixture of foreign commercial character. It never could be the intention of His Majesty’s government that the benefit of this order should be extended to a person who has thrown off his allegiance, and estranged himself from his British character, as far as his own volition and act could do. I am of opinion that Mr. Smith is not entitled to the benefit of the order in council, and therefore I reject the claim. Ship condemned.