Philip Urbin Duguet, against Frederick Rhinelander and others, 1 Cai. Cas. xxv

Per curiam. The first question arising for the consideration of the court, in this cause, is, whether the plaintiff' has verified his warranty of American property in the ' goods insuredP The determination of this point involves the important question, whether the Plaintiff is to be deemed, for the purposes of commerce, an American Citizen.

On this question, while the claims of a state upon its citizens, when surrounded and pressed by its enemies, are recognized; while the course to which duty prompts is plain, and readily perceived ; yet so different are the circumstances of different states, so various their policy, that the right of citizens to emigrate during war, must, so far as respects the parent state, depend on the particular ordinances of each individual community.

What might not be inconsistent with good policy, in a state possessed of an overflowing population, and a scanty subsistence, would be quite different from that of a state with a thin population, requiring all her hands for defence, and with sufficient bread for all her citizens.

Was the condition of all nations alike in this respect; was the same reason and necessity for prohibiting emigration during war common to all, the rule contended for by the defendants, would have been long since settled, as a fundamentaf'principle of the Law of Nations, and expressed in language too unequivocal to admit of a doubt, at this period.

If a state is assailed by external enemies, and requires for defence the united efforts of all its citizens, of all that it has given birth to, a prohibition against emigration, as we have witnessed in France by the ordinances of 1704 and 1744, will attain all that is necessary in this respect, to the safety and defence of the state. If such prohibition is not interposed, the door is open to emigration. But is an emigration, which is lawful in relation to the parent state, equally so in reference to the enemy of such state ? As a general rule, it is so.

At the same time, should the citizens of a belligerent power, in concert with the state, or for the purpose of multiplying the warlike resources, or aiding the enterprises of the state, emigrate to, and take a stand" in a neutral country, in • order to mask mercantile projects under a neutral flag, there can be no hesitation in pronouncing such emigration fraudulent, • and that an establishment, and residence, for such unwarrantable purposes, cannot acquire to the emigrant a neutral domicil, he still would continue a member of his native family, and as such must participate in, and be affected by the fortunes of the parent state.

When such a case is brought before the court, such a determination will be had, as will preserve to the belligerent the full exercise of his rights over the property of its enemy. But because the right of emigration may be abused in time of war, it by no means follows, that such right does not exist; and though it may be difficult to detect and punish such abuses, the argument from thence, against the right, cannot prevail.

As far as appears from the record in this cause, the emigration of the plaintiff proceeded from a common principle of action that prevails more or less in all periods, and all countries; for the subsistence of himself and his family, he removed to and acquired a domicil in this state. This domicil, upon general principles, confers for the purposes of commerce, the right of an American citizen. Native Englishmen, domiciled in America, by a decision of Westminster-Hall, participate in the rights of American citizens, in relation to trade between America and the East-Indies.

It will be unnecessary to consider whether the situation of the parent state was not such, at the period of the plaintiff’s emigration, as to have no claims upon its citizens; as rent with factions and violence, and yielding no protection.

Upon the point of undue concealment, raised in the cause; after the foregoing opinion, it will be necessary only to add, that if the faith of contracts should be deemed to have required of the plaintiff a disclosure of his condition, as affording a pretext for condemnation, undue concealment is a fraud, odious in law, and as such, not being found by the verdict, .is not to be presumed. For the foregoing reason the judgment of the supreme court ought to be corrected, and the judgment here be -as for a total loss.