HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0161 and id is 1 raw text is: SPARENBURGH V. BANNATYNE
1 BOS. & PUL. 164.
Replication. To the first Plea, joinder in issue.
To the 2d. Protesting that the said Plea, and the matters therein contained, in
manner and form as the same are above pleaded and set forth, are not sufficient in law
to bar the Plaintiff from having and maintaining his aforesaid action against the
Defendant; nevertheless, for replication in this behalf the Plaintiff saith, That he,
before the making the said several promises and undertakings of the Defendant, ill the
said declaration mentioned, to wit, on, &c. was a prisoner of war, ill custody of the
forces of our Lord the King, in parts beyond the seas, to wit, at the island of Saint
Helena, to wit, at, &c. and being such prisoner as aforesaid, he the Plaintiff their and
there was, by and with the consent and permission of the commanding officer of [164]
the forces of our said Lord the King, at the island of Saint Helena aforesaid, hired,
employed, and retained by the Defendant to serve as a seaman and mariner in and on
board the said ship or vessel called the Caledonia, on his retainer, and at his special
instance and request; and he the Plaintiff did then and there serve as such seaman or
mariner in and on board such ship or vessel on a certain voyage whereon the said
ship or vessel was then bound, to wit, from the island of Saint Helena aforesaid, to the
port of London aforesaid, to wit, at, &c. Without this, that he the Plaintiff, at the
time of suing forth the original writ of him the Plaintiff, was, or at any time hitherto
hath been, an enemy of our said Lord the King, adhering to the persons exercising the
powers of government in Holland, and so being enemies of our said Lord the King,
as in and by the said plea is above alleged. And this he is ready to verify:
wherefore, &c.
To the 3d Plea. Inducement and traverse, the same as to the 2d.
Rejoinder. Tendering issue on the traverses.
Surrejoinder. Joinder in both issues.
This cause was tried before Eyre Ch. J. at the Guildhall Sittings after last Trinity
term, when it appeared in evidence, that the Plaintiff, being a native of Oldenburgb
in Germany, was taken prisoner at the Cape of Good Hope, he then serving as a sailor
in the Dutch fleet under Admiral Lucas; that he was sent from the Cape to Saint
Helena, in a British frigate, as a prisoner of war, and was there put on board the
Caledonia, a British merchantman, then in great want of hands, by order of the
governor of the place, that during the voyage from Saint Helena to England he was
treated like the rest of the crew, and did his duty to the satisfaction of the captain,
the Defendant in the action; that on his arrival here, he was taken over to the
commissary with the other prisoners taken on board the Dutch fleet, and was at the
time of the action brought in custody as a prisoner of war. Verdict for the
Plaintiff, 241.
Shepherd and Heywood Serjts. on a former day, moved for a rule to shew cause
why the verdict should not be set aside, and a new trial be had ; which was granted
by the Court, after some hesitation.
Marshall Serjt. now shewed cause. First, the Plaintiff being a German born is not
an alien enemy within the legal acceptation of the term. Though there is no exact
definition of alien enemy in any of the text writers, yet all the entries describe him
in the same way. Alienigena natus in regno Francie in com. de B. sub [165] ligeantih
adversarii domini regis Anglice, de Francia, de patre et matre inimicis ipsius domini
regis Anglice, et eidem adversario sun adherentibus oriundus, &c. Rast. 252.
3 Instructor Cler. 16. That the place of birth is material appears from 3 Salk. 28.
Comb. 212, and Carter, 48 and 191, in which last case it was objected, that the
general averment of the Plaintiff's birth in the United Provinces was not sufficient,
because there might be some place in those countries not under the jurisdiction of the
King's enemies. Secondly, Supposing the Plaintiff a native of Holland, and taken
in actual hostility to this country, yet under the circumstances of the case he is
entitled to recover. Having entered into a contract with the license of the King's
officer, that license may be presumed to have been given with the King's permission ;
and a license to contract, necessarily implies a license to sue. The plea of alien enemy
is not now favoured by the courts. Formerly an alien enemy was disqualified in
all cases, and his goods might be seized; the reason given was, that his property was
forfeited as a reprisal for the damage committed by the enemy. Gilb. H. C. P. 205.
The reason at this day for the disability of an enemy is, that he shall not recover effects
which, being carried from hence, may enrich his country: and it has been holden,
that the subject of a power at war, who came here before the war broke out, or who
838](ViewImageLocal?handle=hein.slavery/ssactsengr0161&div=1&collection=&method=preview&ext=.png&size=3)