Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1853-10-08

such party would be in the privileged situation Of
making his election after the capture to claim under
either nation, according as it might be for his inte-
rest to choose the one or the other.
So the case of the Indian Chief, cited by the
Secretary, in B Rob-! There capture was made
under circumstances which wNld have made it
good prize if the owner were a British merchant
but otherwise not. The fact that the shipper, Mr..
Johnson was an American citizen, was not at all the
point on which the judgment of Sir William Scott
turned On the contrary, he expressly says
"If the owner was resident in England, and the
voyage such as an English merchant could not en-
gage in, an 4mertcdn residing here and carrying
on trade could not protect his ship merely by put
ting American documents on board" &c.
And SO, conoerso, it has been held by the Bri-
fish courts that voyage not lawful for British
merchant may be prosecuted lawfully by British
subject domiciled in a country where such voyage
would be lawful. And yet the principle of the
British law holds such person to be absolutely in
capable of diyesting himself of his allegiance
In the same case of the Indian Chief, another OF
the claimants was Mr.. Millar, an American citizen
and AMERICAN CONSUL at Calcutta, but carrying on
business there as domiciled merchant While Sir
William Scott restored his goods to Mr. johnson,
on the ground that he not domciled at the time
of the capture, he condemned those of the American
Consul NIillar because he aoas domiciled.
Again: we submit it to the candor of the learned
Secretary that this national character does not al
ways depend on domicil In either Of the cases
Of prize cited by him the property would have been
condemned, though it had appeared that the domi-
Gil in fact in the country of the captors if it
had appeared that the owner, notwithstanding such
domicil kept on foot commercial establishment in
the enemy's country, and that the captured goods
proceeded from that establishment. The law on
this subject appears to be collected in 1st Arnould
Insurance, at p. 104. This writer Getting altho-
rities) says:
"Domicil, however, though very important, is
by no means the only test of national character /;
the nature of the trade man carries on, and the
mode in which he pursucs it, is hardly less inflen-
tial in determining his national character for om-
mercial purposes than the place of. his residence.
Thus there can be no doubt that the act of trading
or keeping or foot mercantile establishment in a
foreign country, evea uithou residence there, i'm
presses the national character of that country for
the purposes of commerce on all the property con-
nected with such establishment"
We think we have said enough to justify om po-
sition, that the principles of public law invoked
and the cases cited by the honorable Secretary
touching national character" do not in airy de-
gree tend to sustain his positions. We repea' that
we have had great hesitancy in entering int this
discussion. We have been indebted to him for re-
ferences with single exception to the authorities
which we rely on in the view we have taken Of this
important matter We must think, until further
instructed, not only that they do not justify him in
describing the individual in question as :" clothed
with an American nationality" but that, in the
sense in which he uses that language, there is no
such thing known to the public law
There are other questions arising upon this very
able and remarkable paper; but we have selected
the topics embraced in these observations as of ma
tional concern, and, in view of their great impor
lance, have no doubt our readers will justify US
in giving them so much time and space.