The "Indian Chief"-Skinner, Master
| Jurisdiction | England & Wales |
| Judgment Date | 27 February 1801 |
| Date | 27 February 1801 |
| Court | High Court of Admiralty |
English Reports Citation: 165 E.R. 367
IN THE HIGH COURT OF ADMIRALTY
S. C. 1 Eng Pr Cas 251. Referred to, The "Aina," [1854] 2 Sp Ecc. and Ad 314; The "Lacoma," [1863] Br. and L. 144; Udny v. Udny, [1869] L. R. 1 H. L. (Sc.)
[12] the " indian chief "-(Skinner, Master). Feb 27, 1801.-National character of Mr. Johnson, settled in England as American consul, removing, in transitu, during a voyage to the enemies' colonies, &c. [S. C. 1 Eng Pr Cas 251. Referred to, The " Aina" [1854] 2 Sp Ecc. and Ad 314 ; The " Laconta," [1863] Br. and L. 144; Udny v. Udny, [1869] L. R. 1 H. L. (Sc.) 368 the "indian chief" ac rob.is. 451 ; Re TootaVs Trusts, [1882] 12 Ch. D. 534 ; Companhia de MocamUque v. British South Africa Company, [1892] 2 Q. B 372 ; Daimler Company, Limited v. Continental Tyre and Rubber Company, Limited, [1916] 2 A. C. 311, Tvngley v. Mutter, [1917] 2 Ch. 175 ; The " Hypatia," [1917] P. 39 ; The " Hamborn" [1918] P. 21, affirmed [1919] A. C. 993 ; The " Lutzow" [1918] A. C. 436 ; Rodriguez v. Speyer, [1919] A. C. 128 ; Casdagh v. Casdagli, ibid. 157.] This was a case of a ship and carga seized in the harbour of Cowes, on a voyage from Batavia to Hamburgh, in which two questions arose, respecting the national character of Mr. Johnson, claimant of the ship, and of Mr. Miller, claimant of the cargo. For the Captors, King's Advocate.-The ship is claimed on behalf of Mr. Johnson as an American subject, having been taken on a voyage commencing at London 1795, to Madeira, from thence to Madras, Tranquebar, and Batavia, and back to Hamburgh. As the property of an American subject, so employed in a trade from the colonies of the enemy to ports not of this country, nor to the ports of this country, it would be liable to the objection of being engaged in an illegal commerce : it must at least be subject to the question of law, which is reserved in this point in other cases : but the more immediate objection to which this ship is liable, is, that it is the property of a British subject, and therefore liable to confiscation, for being engaged in trading with the enemy. The circumstances of Mr. Johnson's history which affect his national character, are these ; he was born in America, but left that country so long ago as 1771, and settled as a merchant in this town. During the American war 1778, be left England, and settled in France as one of a house of trade, reserving to himself, in the articles of partnership, the liberty of returning to America when he thought [13] proper. In 1785, however, Mr Johnson returned again to England, and continued in England, as a merchant of this place, till September 1797 ; during the latter part of that period, from 1790, he acted as American consul in this country, but till that time he had no sort of American connection super-added to the character which a person naturally acquires by residence ; whether he was invested with that title, or not, is perfectly immaterial as to the legal effect of determining his national character ; as it has been decided, in various instances, that the national character of a consul is not affected by the title he bears, but is to be judged of simply aa the character of other merchants, by residence, and the various other circumstances that constitute the character of other persons. The affidavit that has been brought in from Mr. Johnson, states, " That Mr. Johnson considered himself as an American subject, and that the American government considered him as an American subject, and declared him so to be by an act of the government, January 15, 1785, and that he always entertained an intention of returning " ; but it is not on the bare intention, nor on the understanding of particular persons, that the Court will judge. The Court will look to the great, facts of the case, and it will find them to be, that Mr, Johnson lived in this country twenty-six years ; that he did not remove himself from his British residence till the month of September 1797, two years after the commencement of this transaction ; the voyage began in March 1795, and the capture did not take place till November 1797 ; during that time the vessel is to be considered in transit1**; and it would by [14] opening a wide door to fraud, if persons engaged in illegal transactions could be allowed to disengage themselves from the penal consequences of those acts, by a mere removal whilst the property is in transitu, and just before they may expect to reap the profits of their illegal commerce ; on these grounds, it ib submitted, that Mr Johnson is to be considered as a British merchant during the time of this voyage, and that as such he has exposed his property in this vessel to confiscation, by engaging in trade with the enemies of this country. On the part of the Claimant, Arnold and Sewdl.-As to the illegality of the purpose with which this ship set out, considering Mr. Johnson as an American subject, it is not immaterial to observe, that it was not agreeable to his intentions, nor in consequence of any directions coming from him, that the ship was to return to Europe : she went out under the management of Mr. Hewlet the supercargo, with full powers committed to him to charter the vessel in the East Indies ; as the second attestation of Mr Jonnson, states, " that it was his design the ship should go from the East Indies to America, if an advantageous freight could be obtained " : it was at Madras that the present engagement was entered into by Mr. Hewlet, who is a young man, and might not foresee all the consequences of auch an engagement; parties are in 30, ROB. IS. THE " INDIAN CHIEF" 369 general undoubtedly answerable for the acts of their agents, but this rule is not to be held so strictly as not to be subject to favourable exceptions, especially in cases like the present, where there was no intention at all imputable to the principal, that the [15] matter in question should be so conducted, and where it has arisen from error rather than fraud on the part of the agent himself ; as it is evident that if there had been any conception of an illegal traffic against the laws of this country, on the part of the persons concerned in it, the vessel would not have come voluntarily into a port of this country. The principal question that has been made, however, respects the national character of Mr. Johnson : It is said, that Mr Johnson's removal did not take place till 9th of September 1797, a short time previous to the capture of the vessel, 1st of November 1797, and it is said that he is entitled to no benefit from the bare and latent intention, which he describes himself to have entertained long before, of returning to America : So far is it from being a latent intention, that it is evident, in a letter written in March preceding to his creditors respecting his effects, in which he expresses an anxious wish to remove himself and family entirely to America, and states the terms on which he hoped to obtain their permission : subsequent to that time, he stayed only under the creditable motive of not removing without his creditors' consent In September 1797, however, he had actually abandoned this country, and he had done everything in his power to quit this country from the moment that he set foot on board the vessel to return to America. From this time te is to be considered as an American ; as to any fraud to which such an allowance may be exposed, the Court will be on its guard against such attempts when they appear ; but it will not determine a present case, where there can be no suggestion of such a design, by anticipation [16] of circumstances of a different natuie which may possibly appear in other cases. The only imputation of fraud that could be raised in this case would be, that it was a mere temporary and colourable removal; but that cannot be suggested ; Mr. Johnson's intention, founded on the fairest, most natural and most credible motives...
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