Duguet v. Rhinelander — 1 Johns. Cas. 360

Majority

p. 430

*Duguet against Rhinelander and others.

Headnote

A warranty of neutral property, is to be construed in reference to the belligerent parties, and to the law of nations. .

A Frenchman who emigrates"to this country,, flagrante hello, and' becomes - naturalized, though he thereby acquires, the privileges of a citizen of the United States, is still to be considered a French subject, in regard to France and Great Britain, who are at war, according, to the law of nations.(a)

(a) ’ This case was reversed in the court of errors on this point, infra vól. 2, p. 476. g. C. 1 Caines’ Cas. .in Err. xxix. See Arnold v. The United Ins. Có. infra-3S3, and note (a) p. 368.

This was an action on a policy of insurance on goods) on hoard the schooner Daphne, from Philadelphia to Havana. - ,

' The facts were these:

On the 26th of January, 1799, “ Mr. William Thomas, for account of Philip U. Duguet, a citizen of the United States,” opened the policy in question. The vessel and property were warranted. American, and the defendants subscribed the sum of 2500 dollars.

The schooner was captured o.n the voyage insured; and, together with her cargo, were libelled at New Providence. The vessel'' was acquitted. The sentence,. pronounced on the 23d of September, 1799, by the judge of the vice-admiralty court, (Kelsall) against the property insured, was as follows :

“ It is a maxim, that things which should be judged by. the law of nations ought not to be determined by the civil law or the particular institutions of :any country. The state of war, and the rights which result from thencé are of this description. No individual can, of his own mere act, exempt himself from the relations this state places him in, both with respect to his sovereign, and to that, with whom he is at war. He is, by the act of. his sovereign, rendered an enemy, nor can his sovereign divest him,'of his own authority, of that character, without the consent, of'that power with whom he.

p. 431

wages hostilities.—Much less, I apprehend, can a neutral state plead that her municipal regulations have changed the political condition of the subject of a state at war, either to protect them from the punishment which their own sovereign can inflict, for a non-performance of their duties to him, to whom they owe a prior obligation, or to relieve them from the consequénces of those rights which accrue to the enemy, necessarily *and justly from the commence- [*361] ment of hostilities ; among these are the right of reprisals and the right to deprive the enemy of his goods and possessions.”

“ An individual in war emigrates at his own peril. In a neutral nation his person and his property are secure; but as his character of enemy cannot be changed but by the same powers which rendered him so, as long as war exists, by the law of nations he cannot come into the realnp nor travel on the high seas, nor send his goods and merchandizes from one place to another, without danger of being seized. In my opinion, a man who. was a citizen of France, at the commencement of the war, or who has not changed his domicil prior to that period, must be considered, with respect to Great Britain, as an enemy, notwithstanding his naturalization in a neutral state.- It is on these principles that I acquit the property of Joseph Donath and of James I. Masurie, as being citizens of the United States, and condemn that, of Peter ■ Ducoing, Peter Lacombe, and Philip Urbin Duguet, they having been, at the commencement'of the present hostilities between our sovereign lord the king and the republic of France, and stiff are, citizens or subjects of the said republic/’

The plaintiff is by birth a Frenchman, and became a naturalizéd -citizen of the United States, according to law, on the 11th of October, 1796. The schooner was an American vessel, and the plaintiff had goods on board to the value of the sum insured. An abandonment was made in due time, and the usual proofs of loss and interest were exhibited to the underwriters.

On a case made containing the above facts, it was agreed.

p. 432

that if the court should think that the plaintiff was entitled to recover for a total loss, a judgment should be entered for 2593 dollars ; or if the court should be of opinion, that the plaintiff was only entitled to a return of premium, that then the judgment should be entered for 185 dollars 50 [*362]„ cents. Or, if the court should be of *opihion that the plaintiff was not entitled to recover any thing, then a judgment was to be entered for the defendant,

B. Livingston, for the plaintiff.

Harison, for the defendant.

Placing out of view the question as to the conclusiveness of foreign sentences, I am of opinion, that the warranty of American property ought to be construed in reference to the belligerent parties. It was intended that the property should be neutral in regard to them. The reasoning of the court of admiralty appears to me to be well founded, that the plaintiff, being a Frenchman, could not, either in regard to his own country or its enemies, expatriate himself, flagrante hello, so as to destroy the relation in Which he stood, at the commencement of the war. This .principle appears to have been generally adopted by public writers, and in the practice of nations. I think, however, that for the reasons given in the case of Delavigne v. The United Insurance Company, (ante, p. 3.10,) decided in this term, that the plaintiff is entitled to a return of premium.

Benson, J., was of the same opinion.

For the reasons given by me in the case of Goix v. Low, (ante, p. 341,) I consider the sentence of condemnation as conclusive evidence of a breach of the warranty, and that judgment ought, therefore, to be-rendered for -the defendants. But supposing the. sentence still open for our examination, I think that the warranty of neutrality must be considered in reference to the law of nations; and the true question is, whether the plaintiff is to be considered as a Frenchman or an American, according to that law. It is immaterial how he was considered in France, or by the municipal law, because the parties, by the true construction of the contract, had in view a protection on the high seas,

p. 433

under the sanction of the general, law. By the law of nations, the plaintiff was to be deemed a Frenchman, and not an American, in respect to-the powers at war. It was necessarily to be inferred from the case, that the plaintiff emigrated from France, pending the war, and it *is a sound principle of national policy, that an emi- [*363] gration, flagrante bello, will not, and cannot, rightfully change the duties, and responsibility of the party. His sovereign may still claim him as a subject, and the enemy of that sovereign has a right to regard him as an enemy. The parties at war can only know the subjects of each other, as their respective domicils existed at the breaking out of the war. By the naturalization of the plaintiff here, he only acquired municipal privileges. He is left in statu quo, as to his pre-existing relations to other nations.

Lansing, Ch. J. did not admit the conclusiveness of the sentence of the admiralty court, but concurred in this opinion on the other grounds.

Lewis, J. dissented, and was of opinion that the plaintiff was entitled to judgment.

Judgment for the plaintiff, for the premium only.