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to grant to the subjects of other nations, an exemp-
tion from monopolies obligatory on native merchants.
It is perfectly familiar to the court, that under the
British treaty of 1795, such an exemption was ac-
corded to American merchants from the monopoly of
the British East India Company. And in the trea
ty of 1810 it will be seen that the stipulations are re-
ciprocal. There is much difficulty in ascertaining the
precise nature of the immunities enjoyed by British
merchants in Portugal, at the date of the treaty of
1810, because the practice had been to grant them
occasionally by alvaras. These are temporary proc-
lamations, which have effect, only, for a year
and a day. It is very certain that some privileges.
heretofore granted, were not then possessed. For
instance, the alvara of 1717 exempts Englishmen
from certain taxes to which the natives
are lia-
ble, while the 7th article of the treaty of 1810,
provides that they shall be liable to the same taxes,
(and no other) as are imposed on the natives of Por-
tugal. The probability is, that the most important of
these immunities are especially enumerated in the
treaty. It is unnecessary, however, to proceed fur-
ther with this examination. Enough appears to show
that the attempt to take the case of British merchants
resident in Portugal, out of the general rule applied
to domicil among civilized nations, whatever admi-
ration may be due to its boldness, cannot receive the
sanction of an enlightened court. The analogy be-
tween such merchants and Europeans in Turkey,
who, there, neither sustain their original character,
nor take the character of the people within whose
territories they sojourn, but owe their name and poli-

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tical existence to the factory and association under whose protection they carry on a precarious traffickwho are viewed as a people exempt from Turkish dominion, and who never mix with the natives in any social or domestic concern-is too forced and unnatural to afford a basis for any arguments applicable to them both. No authority is cited in support of this objection, other than a remark of Sir William Scott in the Henrick and Maria, which must be understood secundum subjectam materiam. He is there speaking of the validity of a condemnation in England of an enemy's ship, carried into Lisbon or Leghorn-into the port of a very close and intimate ally. But in opposition to it there are great authorities. The case of the Armenian merchants resident at Madras under special privileges, who were nevertheless, subjected to the general rule of domicil, bears directly upon it. The case of the Nayade, which applies the commercial rule of domicil to Prussian The case merchants in Portugal, also bears upon it.

of the Danaos,d decided in March, 1802, at a time when the objection was stronger than at present, is directly in point, and of the highest prize tribunal in England. In the St. Joze Indianoe it was expressly decided by one of the learned judges of this court, that British residents in the dominions of Portugal take the character of their domicil, and as to all third parties, are to be deemed Portuguese subjects. This decision was acquiesced in by the counsel for the captors. In the case of the Antonio Johanna, such

a See Consuller Certificate in the Herman, 3 Rob. Appen. I. 295.

b The Angelique, 3 Rob. Appen. B. 294.

c 4 Rob. 206. d4 Rob. 210. e 2 Gallis. 268. 292

was considered the settled rule; and, accordingly, restitution was made by this court to Mr. Ivers, a resident British merchant, at St. Michael's, one of the firm of Burnet & Ivers, of the moiety claimed in his behalf as a Portuguese subjecta The counsel who now advances this objection, declined then to bring it forward.

Mr. Chief Justice MARSHALL delivered the opinion of the court, and after stating e facts, proceeded as follows:

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The appellants contend, 1st. That the sentence pronounced by the district court in August, 1814, which was affirmed by the circuit court in May, 1815, condemned finally, the packages for which a decree of restitution was afterwards made, and that the subsequent proceedings were irregular, and in a case not before the court. 2dly.. That upon the merits, farther proof ought not to haxe been ordered, and a condemnation ought to have taken place.

On the first point, it is contended, that these goods, having been comprehended in invoices not endorsed, nor accompanied with letters of advice, are within the very terms of the sentence of condemnation, and must, consequently, be considered as condemned.

The principle on which this argument was overruled in the court below, is to be found in its sentence. The district court, in its decree of 1814, did not intend to confine its description of the property condemned, to the general terms used in that decree, but did intend to enumerate the particular bills to which those

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terms should apply. This is conclusively proved by reference to the subsequent intended enumeration, which is followed by a blank, obviously left for that enumeration. Had the enumeration been inserted as was intended, the particular specification, would undoubtedly have controlled the general description which refers to it. The unintentional and accidental omission to fill this blank, leaves the decree imperfect in a very essential point; and if the case, and the whole context of the decree can satifactorily supply this defect, it ought to be supplied. This court is of opinion, that no doubt can be entertained respecting the bills with which the district court intended to fill up the blank. The condemnation of shipments evidenced by bills of lading, with blank endorsements, or without endorsement, could apply to those only which required endorsement, or which were in a situation to admit of it. These were the bills which were made deliverable to shipper, or to the order of the shipper. Bills addressed to a merchant, residing in Lisbon, could not be endorsed by such merchant, until the vessel carrying them should arrive at Lisbon. Consequently, such bills could not be in the view of the judge, when condemning goods, because the bills of lading were not endorsed; and, had he completed his decree, such bills could have been inserted in it. No. conceivable reason exists, for admitting to farther proof, the case of a shipment, evidenced by a bill of lading, made deliverable to shipper, or order, and endorsed to a merchant, residing in Lisbon; and at the same time condemning, without admitting to farther proof, the same shipment, if evidenced by a bill of lading,

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made deliverable, in the first instance, to the Lisbon merchant. No. 108, for example, is made deliverable The Friendat Lisbon, to Seguior Jose Ramos de Fonseco, and is consequently not endorsed. It is contended, that these goods are not condemned. But had the bill been

order, and endorsed

made deliverable, to shipper, or
to Segnior Jose Ramos de Fonseco, farther proof
would have been admitted.

Nothing but absolute necessity could sustain a construction, so obviously absurd. This court is unanimously of opinion, that justice ought not to be diverted from its plain course, by circumstances so susceptible of explanation, that error is impossible; and that, when the decree was returned to the district court of North Carolina, with the blank unfilled, that court did right in considering the specification intended to have been inserted, and for which the blank was left, as a substantive and essential part of the decree, still capable of being supplied, and in acting upon, and explaining the decree, as if that specification had been originally inserted.

This impediment being removed, the cause will be considered on its merits.

It is contended, with great earnestness, that farther proof ought not to have been ordered, and that the goods which have been restored, ought to have been condemned as prize of war. In support of this proposition, the captors, by their counsel, insist that the rights of belligerents would be sacrificed, should a mere bill of lading, consigning the goods to a neutral, unac

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