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the forces of our faid Lord the King, at the island of Saint Helena aforefaid, hired, employed, and retained by the Defendant to ferve as a feaman and mariner in and on board the BANNATYNE. faid fhip or veffel called the Caledonia, on his retainer, and at his special inftance and requeft; and he the Plaintiff did then and there ferve as fuch feaman or mariner in and on board fuch fhip or veffel on a certain voyage whereon the faid fhip or veffel was then bound, to wit, from the island of Saint Helena aforefaid, to the port of London aforefaid, to wit, at, &c. Without this, that he the Plaintiff, at the time of fuing forth the original writ of him the Plaintiff, was, or at any time hitherto hath been, an enemy of our faid Lord the King, adhering to the perfons exercifing the powers of government in Holland, and fo being. enemies of our faid 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 traverfe, the fame as to the 2d. Rejoinder. Tendering iffuc on the traverfes. Surrejoinder. Joinder in both iffues.

This caufe 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 Oldenburgh in Germany, was taken prifoner at the Cape of Good Hope, he then ferving as a failor in the Dutch fleet under Admiral Lucas; that he was fent 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 reft of the crew, and did his duty to the fatisfaction of the captain, the Defendant in the action; that on his arrival here, he was delivered over to the commiffary with the other prifoners taken on board the Dutch fleet, and was at the time of the action brought in cuftody as a prifoner of war. Verdict for the Plaintiff, 247.

Shepherd and Heywood Serjts. on a former day, moved for a rule to fhew caufe why the verdict fhould not be fet afide, and a new trial be had; which was granted by the Court, after fome hesitation.

Marshall Serjt. now fhewed caufe. 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 defcribe him in the fame way. Alienigena natus in regno Franciæ in com. de B. fub

ligeantiá

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ligeantiá adverfarii domini regis Angliæ, de Franciâ, de patre et matre inimicis ipfius domini regis Angliæ, et eidem adverfario fuo adherentibus oriundus, &c. Raft. 252. 3 Inftructor Cler. 16. That the place of birth is material appears from 3 Salk. 28. Comb. BANNATYNE. 212. and Carter 48. and 191. in which laft cafe it was objected, that the general averment of the Plaintiff's birth in the United Provinces was not fufficient, becaufe there might be fome place in those countries not under the jurifdiction of the King's enemies. SECONDLY, Suppofing the Plaintiff a native of Holland, and taken in actual hoftility to this country, yet under the circumstances of the cafe he is entitled to recover. Having entered into a contract with the licenfe of the King's officer, that licenfe may be prefumed to have been given with the King's permiffion; and a license to contract, neceffarily implies a licenfe to fue. The plea of alien enemy is not now favoured by the courts. Formerly an alien enemy was difqualified in all cafes, and his goods might be feized; the reafon given was, that his property was forfeited as a reprifal for the damage committed by the enemy. Gilb. H. C. P. 205. The reafon at this day for the difability of an enemy is, that he fhall not recover effects which, being carried from hence, may enrich his country: and it has been holden, that the fubject of a power at war, who came here before the war broke out, or who comes here even in time of war, with the King's permiffion, may maintain an action. Wells v. Williams, 1 Salk. 46. Lord Raym. 282. The difability is now confined to two cafes, viz. where the right fued for is acquired in actual hoftility, Anthon v. Fisher, Dougl. 649. n.; and where the Plaintiff being an alien enemy is refident in the enemy's country. Brandon v. Nefbit, 6 T. R. 23. Briftow v. Towers, 6 Term. Rep. 35. THIRDLY, This defence is founded on an idea of a right in the conqueror to reduce his prifoners to flavery, which is contrary to the law of nations. If the commanding officer may compel the prisoners to labour, and fubject them to punishment for difobedience of orders, there is nothing to prevent. his felling them for flaves. Among barbarous nations prifoners of war are put to death with cruelty; in a more advanced ftate they are fold for flaves; among civilized nations both are difavowed, and their perfons are only confined, till ransomed or exchanged. Grotius de Jure Belli ac Pacis, l. 3. c.7.9. If it be faid that the Plaintiff has made himself an enemy by his own act, the answer is, that a perfon who owes no natural allegiance to the power at war with us, may by his own acts cease to be an enemy ånd become

M 3

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a friend; his character of enemy continuing no longer than while he adheres to the enemies of the King.

Shepherd and Heywood Serjts. in fupport of the rule. NotPANNATYNE. withstanding the language of the entries, there is no ground afforded by any of the text writers for fuppofing that the disabi- . lity of an alien depends upon his birth. In Co. Litt. 129. b. an alien enemy is fpoken of as " a fubject to one that is an enemy to the King," not as a native of the country at war. Nor in the following books, Theloall's Dig. l. 1. c. 4. 1 Black. Com. 372. Termas de la Ley, 36. Foft. C. L. 185. H. P. C.164., which treat of alien enemy, is any mention made of birth. It is true that birth raifes and perpetuates the character of alien enemy; for by the law of England allegiance always follows the perfon; and if by the law of any other country the party could rid himfelf of his allegiance by his own act, it ought to be replied that he had done fo. The circumftance of birth however is no farther material than as it is one of the cafes which conftitute alien enemy, and even that is not decifive; for Lord Holt fays that a perfon may be born in a country at enmity with us, and yet infra ligeantiam Angliæ; and he inftances the attendants of an ambaffador. Comb. 212. Now the prefent Plaintiff, when he accepted a commifion from the Dutch government, (for the commiflion of the fhip is his commiffion,) became a fubject of Holland, owed allegiance to Holland, and was liable to be profecuted for the breach of it as a traitor. If then the Plaintiff

ever became a fubject of Holland, the next queftion is, how far that character has been altered by fubfequent events? A prifoner at war muft be confidered as much the fubject of the country from which he was taken, as when he was in actual fervice: and his detention is juftified on no other principle than that of preventing fuch country from having the benefit of his fervice again. If he be releafed, he will become fui juris, and may put off the temporary allegiance which he owed to the country under which he ferved: but the period is not arrived at which the prefent Plaintiff is become fui juris. The conqueror might have flain him in battle: now the mercy of the conqueror has not changed his character; but it continues the fame in prifon, as when no mercy had been extended to him. The Plaintiff is not treated as a neutral in this country, nor does that character attach while he continues a prifoner: if he endeavoured to escape and was fhot in the attempt, the foldier fhooting him would not be tried by the municipal law. He is confined and fed like any of

the

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the other Dutch prifoners. Indeed it is faid, Vattel, l. 3. c. 15. 230. that "volunteers taken by the enemy are treated as if part of the army in which they fight." The reafon why no other plea is to be found in the entries than that of alien enemy née, is BANNATYNE, because no other perfon coming under the defcription of alien enemy could be refident here. If an action be brought by a native of an hoftile ftate, the Defendant may plead alien enemy on the discovery of the Plaintiff's birth: but any other alien becomes fui juris by refidence, except in the prefent cafe of a prisoner at war. The only remaining queftion relates to the licenfe of the officer. The act of an individual can no more remove the difability of an alien enemy to contract, than it can create the character of alien enemy. Bro. Abr. Denizen, pl. 20. Unless this were fo, any Englishman by contracting with an alien enemy might relieve him from that character: but licenfe is an act of ftate. Befides, if licenfe is to be relied on, it fhould have been pleaded. 7 Mod. 150. 1 Ld. Raym. 282. In Brandon V. Nesbitt, 6 T. R. 23. there were two pleas exactly fimilar to the fecond and third in the prefent cafe, and though they were demurred to, the Defendant had judgment.

112.

EYRE Ch. J. The question is, Whether on the evidence produced in this cafe the Plaintiff is to be confidered as an alien enemy at the time when the writ iflued? If he muft be fo confidered, I take it to be a neceffary confequence that this action 3 Bf Pall. muft fail. The fact is, that this man, being a native of fome part of Germany, and therefore a neutral by birth, was found on board a fhip belonging to the enemies of this country, and was captured in actual hoftility. What then is his fituation? Having been taken in the act of hoftility, he is either a pirate, or quoad that act of hoftility a fubject of the prince or power under whofe commiffion he acted, No doubt, this man being a neutral by birth committed an act of hoftility againft this country, under a commiffion from a ftate at war with this country. So far I take to be clear. I therefore go a great way with the Defendant's counfel, who have argued that at this day the form of the plea of alien enemy, which ftates the party to be alien enemy born, is not abfolutely neceffary to be adhered to in exclufion of every other cafe of enmity. In the courfe of the argument we have had many reasons and authorities adduced to fhew, that if a man is really to be confidered as alien enemy, though not a native of the country at war, he is fo to be confidered as to all the confequences which apply to alien enemy by birth. But here the

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1797. Plaintiff became an enemy in confequence of having participated in one fingle act of hoftility. Now fuppofe it had been the plea SPARENBURGH fure of this ftate to fhew him favour. Suppofe this had been BANNATYNE. faid, "You are a neutral, and perhaps have been drawn into the act in which you were engaged: you are at liberty to return to your own country, or you may remain here, as you are the fubject of a prince in amity with us." It has been admitted in argument, that as foon as he should become fui juris, the character of enemy would be purged. If then the Crown had not thought fit to hold the Plaintiff prisoner at war, he could not have been confidered as fuftaining the character of enemy, but would have been treated as the fubject of a state in amity with this country. The difficulty of the cafe, if there be difficulty, arifes from the Plaintiff having been detained as prifoner at war: it has been contended that if, at the moment of capture, he was alien enemy, that character must continue till he ceafes to be prifoner at war. That part of the argument I never was fatisfied with; I cannot deny that he was captured as alien enemy; at that moment he was fo: but how came he to be fo? Not inconfequence of any permanentcharacter of enemy, but because he had joined in one act of hostility, for which act he is not, according to the rigour of antient war, putto the fword, or delivered into the hands of the individual who took him prifoner, to be kept prifoner by him, till he should receive the ranfom; but he remains in the hands of the King till he is ranfomed by an exchange for the benefit of the state, or fet at liberty by the King's command. But how does this tend to fix on him the permanent character of alien enemy? That character arifes from the party being under the allegiance of the flate at war with us; the allegiance being permanent, the character is permanent, and on that ground he is alien enemy, whether in or out of prison. But a neutral, whether in or out of prison, cannot, for that reafon, be an alien enemy; he can be alien enemy only with refpect to what he is doing under a local or temporary allegiance to a power at war with us. When the allegiance determines, the character determines. He can have no fixed character of alien enemy who owes no fixed allegiance to our enemy, and has ceafed to be in hoftility against us; it being only in respect of his being in a state of actual hoftility that he was even for a time an enemy at all. As a prifoner of war, how does he differ from any other individual who is in cuftody for an offence which he has committed, and for which he is anfwerable? Captain Vaughan (a)

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(a) 5 State Trials, p. 17. No. 162.