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![handle is hein.slavery/ssactsengr0396 and id is 1 raw text is: 5 C. ROB. 249.
THE ABBY
765
accidentally found in British possession, before the breaking out of hostilities ; but
where it is seized by an order of state, acting provisionally in contemplation of
hostilities, the declaration produces something more than a prospective, future,
personal incapacity to claim. It decides upon the character of the property already
seized, and on the nature and quality of the seizure. I am of opinion, therefore,
that when it is assumed, that the capture is legally to be considered as made in time
of peace, theargument legally fails, becausein all legal view of the matter, it is taken
in hostility ; it is rendered enemy's property at the time of seizure, by [249] the neces-
sary and general retroaction of the subsequent declaration of hostilities. The whole
foundation of the argument, therefore, is defective in the fact. We distinguish,
it is true, as between the different interests to which such prize enures, whether it
is taken before or after the declaration. That is a matter of subsequent and domestic
regulation, but not influencing the general question of prize. If I am right in this
opinion, it is quite unnecessary to discuss many questions which have entered into
the debate; Whether the description of property comes within the periods of the
test affidavit or not, will be perfectly immaterial. Nothing is more clear to my
apprehension, than that the reference to those periods is not prescribed as the
constituent and the distinguishing qualification of property, but merely for the
purpose of ascertaining a clearer view of the general facts respecting that property-
For instance, as to the first periods, the time of shipment, nobody can suppose
that the time of shipment can be there introduced for any other purpose than that
of bringing out the whole detail of facts, it being perfectly clear that it is in no
degree necessary that it should be enemy's property at the time of shipment to
subject it to condemnation. It is equally immaterial to look to the style of the sen-
tence, for that has accommodated itself according to the discretion of the Court,
to correspond with the facts. The Court is under no necessity of referring to any
period of time, in the descriptive language applying to the property or to the parties.
If the Court is legally satisfied that it is liable to be condemned as enemy's property,
there is no occasion to express inthe con-[250]-struction of the sentence, the particular
time at which the liability attached.
With as little effect can it be contended, that a postliminium can be attributed
to these parties. Here is no return to the original character, on which only a jus
postliminii can be raised. The original character, at the time of seizure and immedi-
ately prior to the hostility which has intervened, was Dutch. The present character
which the events of war have produced, is that of British subjects ; and though the
British subject might under circumstances acquire thejus postlimini upon the resump-
tion of his native character, it never can be considered that the same privilege accrues
upon the acquisition of a character totally new and foreign. As to more popular
topics to which recourse has been had, I shall leave them to their operation in that
quarter, where only they can have a proper effect. It is my duty, in the present
case, to apply the principles of a law not very lenient. How far it may be proper
to relax the rigour of such an application, will be best considered by those who have
more latitude of judgment, as well as a wider sphere of political information and
knowledge. It may be fit in that ultimate and superior consideration, to refer still
further back to the former condition of the claimants, as British subjects, during a
considerable period of the late war, and down to a time but shortly antecedent to
the shipment of these goods. It may be fit to look to the affections and dispositions
of the colony ; though every surrender of war must be legally considered as the
effect of mere force. It may be fit to consider that the property belongs to those,
who are now entitled [251] to the character of British subjects. These considera-
tions may have their separate, or their united influence upon that ultimate judgment
to which the law iefers the disposal of property captured prior to hostilities. They
could only mislead me, from the execution of my duty, which is simply to pronounce
that the property, at the time of the capture, belonged to subjects of the Batavian
Republic, and is as such or otherwise liable to confiscation.
THE ABBY -(Murchy). July 26, 1804.-Trade with the enemy, on an adventure
originating before the war, but not stopped on notice of hostilities.-Imputation
removed by the Portus ad quem, becoming British before the arrival of the
vessel.
[S. C. 1 Eng. Pr. Cas. 464.]](ViewImageLocal?handle=hein.slavery/ssactsengr0396&div=1&collection=&method=preview&ext=.png&size=3)